Hagans v. Nassau County Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHAHIDAH HAGANS,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-1918(JS)(AYS)

NASSAU COUNTY POLICE DEPARTMENT,

OFFICER MICHAEL VERGANO, OFFICER

THOMAS KANAOWICZ, OFFICER MICHAEL

O’BRIEN, SERGEANT PATRICK MUCHOW,

NASSAU COUNTY DISTRICT ATTORNEY’S

OFFICE, JANE and JOHN DOES 1-15

whose names are unknown (in their

official and unofficial capacities),

Defendants.

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APPEARANCES

For Plaintiff: Shahidah Hagans, pro se

1 Griggs Drive

Greenlawn, New York 11740

For Defendants: Jennean R. Rogers, Esq.

Nassau County Attorney’s Office

One West Street

Mineola, New York 11501

SEYBERT, District Judge:

Pro se plaintiff Shahidah Hagans (“Plaintiff”) brings

this civil rights action alleging violations of 42 U.S.C. §§ 1983

(“Section 1983”), 42 U.S.C. § 1985 (“Section 1985”), the New York

State Constitution and state law against the Nassau County Police

Department (“NCPD”), the Nassau County District Attorney’s Office

(“NCDAO”), Officer Michael Vergano (“Vergano”), Officer Thomas

Kananowicz (“Kananowicz”), Officer Michael O’Brien (“O’Brien”),

1

and Sergeant Patrick Muchow (“Muchow”) (collectively,

“Defendants”). Currently pending before the Court is Defendants’

motion to dismiss Plaintiff’s Amended Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). (Def. Mot., D.E. 24;

Def. Br., D.E. 26; Pl. Opp., D.E. 31; Def. Reply, D.E. 32.) For

the reasons that follow, Defendants’ motion to dismiss is GRANTED.

BACKGROUND1

Plaintiff alleges that on or around July 2014, the NCPD,

in collusion with non-party Nassau County Child Protective

Services (“CPS”), began to harass Plaintiff “for months” because

she declined to speak to CPS without an attorney. (Am. Compl.,

D.E. 12, at 2.) According to Plaintiff, the NCPD sent police

officers to her home when there were no reports of “imminent

danger” to her children. (Am. Compl. at 2.)

I. The October 6, 2014 Arrest

At some point prior to October 6, 2014, Plaintiff allowed

non-party Manny McNeeley (“McNeeley”) to temporarily stay at her

home. (Am. Compl. at 2.) On October 6, 2014, Plaintiff

reprimanded her children and McNeeley for being disrespectful and

for breaking items in her home. (Am. Compl. at 2.) In response,

1 The allegations in the Amended Complaint are assumed to be true

for the purposes of this motion to dismiss. Dick v. Enhanced

Recovery Co., LLC, No. 15-CV-2631, 2016 WL 5678556, at *2

(E.D.N.Y. Sept. 28, 2016) (citing Harris v. Mills, 572 F.3d 66,

71 (2d Cir. 2009)).

2

McNeeley verbally assaulted Plaintiff. (Am. Compl. at ECF p. 2.)

Plaintiff then asked McNeeley to leave her home and placed his

belongings in the garage. (Am. Compl. at ECF p. 2.) At that

point, McNeeley physically assaulted Plaintiff. (Am. Compl.

at 2.) Plaintiff attempted to call 911 but was unsuccessful

because McNeeley threw her phone and it cracked. (Am. Compl.

at 2.) After re-assembling the phone, Plaintiff’s children

recorded the alleged assault. (Am. Compl. at 2.)

McNeeley then called 911 and Defendants Vergano,

Kananowicz, and O’Brien (“the Officers”) responded to the call.

(Am. Compl. at 2.) According to Plaintiff, the Officers refused

to review footage of the assault and ignored Plaintiff’s claims

that McNeeley assaulted her and posed a danger to her family. (Am.

Compl. at 2-3.) Within fifteen minutes after their arrival, the

Officers placed Plaintiff in handcuffs for ten minutes because she

was “too excited and needed to calm down.” (Am. Compl. at 3.)

Within an hour of their arrival, the Officers informed Plaintiff

that they would not force McNeeley to leave. (Am. Compl. at 3.)

Plaintiff again called 911 and requested a sergeant to

the scene. (Am. Compl. at 3.) Sergeant Muchow responded and

questioned Plaintiff but did not review video footage of the

assault. (Am. Compl. at 4.) According to Plaintiff, Muchow

informed her that McNeeley would be arrested for preventing a 911

3

call. (Am. Compl. at 4.) McNeeley then alleged that Plaintiff

prevented McNeeley from calling 911 and stated that both Plaintiff

and McNeeley would be arrested. (Am. Compl. at 4.) Plaintiff was

“forcefully arrested” for criminal mischief and resisting arrest

(the “October 2014 Arrest”). (Am. Compl. at 4.) See People v.

Hagans, 63 Misc. 3d 139(A), 114 N.Y.S.3d 800 (2d Dep’t 2019).

Plaintiff alleges that she was “dragged and assaulted” in front of

her four children. (Am. Compl. at 4.) Plaintiff spent six days

in the Nassau County Correctional Facility and was released on

bail. (Am. Compl. at 4.)

McNeeley remained in Plaintiff’s home and on or around

October 16, 2015, Plaintiff obtained an order of protection

against him. (Am. Compl. at 5.) When executing the order of

protection, the Nassau County Sheriff’s Department discovered a

criminal felony warrant pending against McNeeley. (Am. Compl.

at 5.) Therefore, according to Plaintiff, the NCPD was negligent

when it did not remove McNeeley from her home while an arrest

warrant was pending. (Am. Compl. at 5.)

On August 3, 2016, a jury convicted Plaintiff for

resisting arrest (the “Resisting Arrest Conviction”). Hagans, 63

Misc. 3d 139(A), 114 N.Y.S.3d 800. Plaintiff appealed the

4

conviction2 and argued that “the information charging her with

resisting arrest is jurisdictionally defective because it contains

no factual allegations that the arrest was authorized.”3 Id. On

April 11, 2019, the Second Department reversed the Resisting

Arrest Conviction and dismissed the accusatory instrument on the

grounds that “the factual portion of an information charging

resisting arrest” did not set forth sufficient allegations to

establish, “if true, that the arrest was lawful in that it was

‘premised on probable cause.’” Id. (citations omitted).

Plaintiff alleges she was the victim of malicious

prosecution because the prosecution (1) refused to drop the

resisting arrest charges although the accompanying criminal

mischief charge was dropped and (2) proceeded to trial on the

resisting arrest charge without further contact with or

cooperation from the “complaining witness.” (Am. Compl. at 6.)

2 At the time she filed the Amended Complaint, Plaintiff’s appeal

was pending. (Am. Compl. at 7.) The Court is permitted to take

judicial notice of facts contained in publicly available

documents, including, in this case, the filings in the State

court criminal proceedings. See Person v. White, No. 09-CV-3920,

2010 WL 2723210, at *3 (E.D.N.Y. July 2, 2010) (quoting Commer

v. McEntee, No. 00-CV-7913, 2006 WL 3262494, at *23 (S.D.N.Y.

Nov. 9, 2006)) (“[T]he Court may take judicial notice

of . . . matters of general public record”).

3 On appeal, “the People concede[d] that the information is

jurisdictionally defective and state that they did not file a

supporting deposition in connection therewith.” Hagans, 63

Misc. 3d 139(A), 114 N.Y.S.3d 800.

5

According to Plaintiff, there was no probable cause for her arrest

and the prosecution disregarded video and 911 audio evidence. (Am.

Compl. at 6-7.)

II. The March 19, 2015 Arrest

At some point before March 19, 2015, a CPS worker

alleged that Plaintiff’s five-year-old son stated he saw a gun in

Plaintiff’s home. (Am. Compl. at 5-6.) According to Plaintiff,

the CPS worker was “disgruntled” with Plaintiff’s “uncooperative

nature.” (Am. Compl. at 5.) On March 19, 2015, unnamed NCPD

officers “forcibly” broke into her home and conducted an “illegal”

search. (Am. Compl. at 5-6.) Plaintiff alleges that the search

was unconstitutional because it was based on hearsay and because

statements made by her son are not credible “due to his age and

his socio-developmental status.” (Am. Compl. at 5-6.)

While the unnamed officers searched her home, Plaintiff

was handcuffed in a police car. (Am. Compl. at 6.) The officers

did not find any weapons or firearms during their search. (Am.

Compl. at 6.) However, Plaintiff was arrested for endangering the

welfare of a child (the “March 2015 Arrest”). (Am. Compl. at 6.)

The arresting officers informed Plaintiff that the CPS worker

submitted a deposition that served as the basis of the “criminal

instrument” against her. (Am. Compl. at 6.) Plaintiff told the

unnamed officers that the instrument was defective and

6

insufficient because it was “hearsay” and “NOT direct knowledge.”

(Am. Compl. at 6 (emphasis in original).)

At some point, Plaintiff’s children were removed from

her care for eighteen months. (Am. Compl. at 6.) Three of her

children were committed to psychiatric wards and they all suffered

trauma as a result of her arrest. (Am. Compl. at 6.) Plaintiff

alleges that orders of protection were issued against her and

hindered her right to obtain a hearing regarding her children.

(Am. Compl. at 6.)

Plaintiff was criminally charged and convicted for

conduct arising out of the March 2015 Arrest. (Am. Compl. at 7.)

Plaintiff alleges she was the victim of malicious prosecution

because the “District Attorney refused to allow the presiding

family court judge to have exclusive jurisdiction over

the . . . orders of protection[ ] against [Plaintiff] on behalf of

[her] four children.” (Am. Compl. at 7.) Further, Plaintiff

alleges that although the prosecution dropped the endangering the

welfare of a child charge, the prosecution did not drop the

accompanying obstruction of government administration charge

“knowing that [neither] CPS nor the [NCPD] possessed any order

granted by a judge to authorize actions taken against me.” (Am.

Compl. at 7.)

7

PROCEDURAL HISTORY

Plaintiff commenced this action on March 19, 2018.

(Compl., D.E. 1.) Around September 27, 2018, Plaintiff filed an

Amended Complaint (1) against “each and every officer who

responded to, had any involvement, and/or was present at the

location of the wrongful arrest, illegal search, and illegal

seizure of” Plaintiff’s children and the “illegal” detainment of

Plaintiff and her children in violation of her civil rights under

Section 1983; (2) against the NCPD for municipal liability for

failure to train, supervise, and discipline employees under

Section 1983; (3) against the individually-named Defendants and

“prosecuting attorneys” for conspiracy to deprive Plaintiff of her

constitutional rights pursuant to Section 1985 and the Fourth,

Fifth, and Fourteenth Amendments; (4) against all Defendants for

violations of the New York State Constitution, Article I, Sections

5, 6, 8, 11, and 12; and (5) against all Defendants for violations

of various claims sounding in tort. (See Am. Compl. at 8-9.) As

for the first cause of action, Plaintiff alleges Section 1983

claims for: “false arrest, unlawful entry, excessive use of force,

malicious abuse of power, failure to intervene, unreasonable

detention, unreasonable search and seizure, abuse of authority,

pattern of harassment, conspiracy, discrimination, selective

enforcement, fabrication of evidence, denial of equal protection

8

of the laws, denial of right to a fair trial, denial of due process,

and malicious prosecution.” (Am. Compl. at 8.) Plaintiff seeks

$1.5 million in actual damages and $750,000 in punitive damages.

(Am. Compl. at 9-10.)

DISCUSSION

I. Legal Standard

To withstand a motion to dismiss, a complaint must

contain factual allegations that “‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974, 167 L. Ed. 2d 929 (2007)). This plausibility standard is

not a “probability requirement” and requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (internal

quotation marks and citation omitted).

In deciding a motion to dismiss, the Court is confined

to “the allegations contained within the four corners of [the]

complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71

(2d Cir. 1998), but this has been interpreted broadly to include

any document attached to the complaint, any statements or documents

incorporated in the complaint by reference, any document on which

the complaint heavily relies, and anything of which judicial notice

9

may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,

152–52 (2d Cir. 2002).

A complaint filed by a pro se litigant is to be construed

liberally and “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.

Ed. 2d 1081 (2007). Nevertheless, a pro se complaint must state

a plausible claim for relief and comply with the minimal pleading

standards set forth in Federal Rule of Civil Procedure 8. Hiller,

2015 WL 4619624, at *7.

II. Section 1983 Claims Arising out of the March 2015 Arrest

When a claim for damages under Section 1983 calls into

question the validity of an underlying conviction, a district court

must dismiss the claim, unless the conviction has been invalidated.

Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372, 129 L.

Ed. 2d 383 (1994). In Heck, the Supreme Court enumerated four

methods of demonstrating that a conviction has been invalidated:

(1) the conviction was reversed on a direct appeal; (2) an

executive order expunged the conviction; (3) a habeas corpus

petition was issued by a federal court; or (4) an authorized state

tribunal declared the conviction invalid. Id. at 486-87.

Here, any claims concerning the legality of the

March 2015 Arrest for which Plaintiff now stands convicted are

10

barred by Heck. Plaintiff does not allege that the conviction

arising out of her March 2015 Arrest has been invalidated. Rather,

Plaintiff states that she abandoned an appeal of that conviction.

(Pl. Opp. at 8.) Thus, Heck precludes the Court from adjudicating

Plaintiff’s Section 1983 claims challenging the conviction arising

out of the March 2015 Arrest.

“A false arrest and imprisonment claim, however, does

not inevitably undermine a conviction, and therefore is not always

barred under Heck.” Brown v. Paterson, No. 10-CV-5833, 2012 WL

639151, at *7 (S.D.N.Y. Feb. 28, 2012) (citing Covington v. City

of N.Y., 171 F.3d 117, 123 (2d Cir. 1999)). Moreover, “‘the

existence of probable cause is an absolute defense to a false

arrest claim.’” Id. (quoting Jaegly v. Couch, 439 F.3d 149, 152

(2d Cir. 2006)). Probable cause “‘is presumed where an arrest is

made pursuant to a valid arrest warrant.’” Id. (quoting Barcomb

v. Sabo, No. 07-CV-0877, 2011 WL 1770795, at *10 (N.D.N.Y. May 9,

2011)). Accordingly, “‘unless it can be shown that the warrant

was obtained using fraud, perjury, or the misrepresentation or

falsification of evidence, a claim for false arrest or wrongful

imprisonment must fail.’” Id. (quoting Barcomb, 2011 WL 1770795,

at *10).

Plaintiff challenges the validity of the March 2015

search warrant and arrest instrument. (Pl. Opp. at 7; Am. Compl.

11

at 7.) However, Plaintiff’s conclusory allegations that the search

warrant and arrest instrument were defective is insufficient. See

Brown, 2012 WL 639151, at *7. Indeed, taking Plaintiff’s

allegations as true, the Amended Complaint states that the search

warrant and arrest warrant were based on an affidavit from a CPS

worker who stated Plaintiff’s son informed her that there was a

gun in her home. Therefore, Plaintiff has not plausibly alleged

that the search warrant and arrest instrument were obtained by

perjury, fraud, or the misrepresentation or falsification of

evidence and false arrest and imprisonment claims arising out of

the March 2015 Arrest fail.

III. Claims Arising out of the October 2014 Arrest

A. Statute of Limitations as to Plaintiff’s Section 1983

Claims for False Arrest, Unlawful Search and Seizure,

Failure to Intervene, Excessive Force, Malicious Abuse

of Process, and Conspiracy

Defendants argue that the Section 1983 claims and

respective state law claims arising out of the October 2014 Arrest

are barred by the statute of limitations. (Def. Br. at 6-8.)

Plaintiff responds that the relevant statutes of limitations were

tolled to April 11, 2019, the date that her Resisting Arrest

Conviction was reversed. (See Pl. Opp. at 3-4; Hagans, 63 Misc.

3d 139(A), 114 N.Y.S.3d 800). Assuming, without deciding, that

Heck does not apply, Plaintiff’s Section 1983 claims for false

arrest, unlawful search and seizure, failure to intervene,

12

excessive force, and malicious abuse of process are barred by the

statute of limitations.

Section 1983 itself does not provide a statute of

limitations, see Section 1983, but “courts apply the statute of

limitations for personal injury actions under state law.” Hogan

v. Fisher, 738 F.3d 509, 517 (2d Cir. 2013) (citations omitted).

In New York, the applicable statute of limitations is three years.

N.Y. C.P.L.R. § 214. However, federal law determines when a

Section 1983 claim accrues. Wallace v. Kato, 549 U.S. 384, 388,

127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007). Under federal law, “it

is the standard rule that [a claim accrues] when the plaintiff has

a complete and present cause of action, that is, when the plaintiff

can file suit and obtain relief.” Id. (alteration in original)

(internal quotation marks and citations omitted).

For a claim of false arrest, the statute of limitations

“begins to run at the time the claimant becomes detained pursuant

to legal process.” Wallace, 549 U.S. at 397, 127 S. Ct. at 1100.

The same is true for claims of failure to intervene, unlawful

search and seizure, and excessive force. See Mercano v. City of

N.Y., No. 15-CV-3544, 2017 WL 1969676, at *3 (S.D.N.Y. May 12,

2017) (failure to intervene); Mallard v. Potenza, No. 94-CV-0223,

2007 WL 4198246, at *5 (E.D.N.Y. Nov. 21, 2007) (search and

seizure); Mitchell v. Kugler, No. 07-CV-1801, 2009 WL 160798, at

13

*6 (E.D.N.Y. Jan. 23, 2009) (“A claim for excessive force accrues

when the use of force occurred.”).

The three-year statute of limitations also applies to a

claim for malicious abuse of process.4 Hadid v. City of N.Y., No.

15-CV-0019, 2015 WL 7734098, at *4–5 (E.D.N.Y. Nov. 30, 2015),

aff’d, 730 F. App’x 68 (2d Cir. 2018) (Heck does not apply to abuse

of process claims because they “could have been remedied without

disputing the validity of [her] conviction.”). This claim accrues

“‘at such time as the criminal process is set in motion--typically

at arrest--against the plaintiff. However, accrual cannot be

appropriate before such time as plaintiff is aware, or ought to be

aware, of those facts providing a basis for his claim.’” Id.,

2015 WL 7734098, at *5 (quoting Duamutef v. Morris, 956 F. Supp.

1112, 1118 (S.D.N.Y. 1997).

Plaintiff was arrested and arraigned on October 6, 2014.

Hagans, 63 Misc. 3d 139(A), 114 N.Y.S.3d 800. Plaintiff alleges

she spent six days in jail before she was released. (Am. Compl.

at 4.) Therefore, at the latest, Plaintiff’s claims for false

arrest, unlawful search and seizure, failure to intervene,

excessive force, and malicious abuse of process accrued on

October 12, 2014-—the date she was released. Because Plaintiff

4 The Court construes Plaintiff’s Section 1983 claims for

malicious abuse of power and abuse of authority as a claim for

malicious abuse of process. (Am. Compl. at 8.)

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filed the instant action on March 19, 2018, more than three years

after her release, Plaintiff’s false arrest, unlawful search and

seizure, failure to intervene, excessive force, and malicious

abuse of process claims are DISMISSED with prejudice.

The same three-year statute of limitations applies to

Section 1983 and Section 1985 conspiracy claims rooted in false

arrest, unlawful search and seizure, failure to intervene,

excessive force, and malicious abuse of process. See Pearl v.

City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002); King v. City

of N.Y., No. 15-CV-3779, 2019 WL 5653675, at *2 (E.D.N.Y. Oct. 31,

2019) (three-year statute of limitations for Section 1985

conspiracy claims). The existence of a conspiracy “does not

postpone the accrual of causes of action arising out of the

conspirators’ separate wrongs. It is the wrongful act, not the

conspiracy, which is actionable, whether that act is labelled a

tort or a violation of [Section] 1983.” Singleton v. City of N.Y.,

632 F.2d 185, 192 (2d Cir. 1980) (citation omitted); King, 2019 WL

5653675, at *2. Therefore, because Plaintiff’s claims for false

arrest, unlawful search and seizure, failure to intervene,

excessive force, and malicious abuse of process arising out of the

October 2014 Arrest are untimely, Plaintiff’s Section 1983 and

15

1985 conspiracy claims based on those claims are also untimely and

must be DISMISSED with prejudice.5

B. Plaintiff’s Claims for Malicious Prosecution and

Fabrication of Evidence

Plaintiff asserts Section 1983 claims for malicious

prosecution and fabrication of evidence. (Am. Compl. at 8.) To

state a claim for malicious prosecution under Section 1983, a

plaintiff must “show that the underlying criminal proceeding ended

in a manner that affirmatively indicates his innocence.” Lanning

v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); Jones v.

City of N.Y., No. 19-CV-9126, 2019 WL 6529303, at *3–4 (S.D.N.Y.

Dec. 3, 2019) (“A malicious prosecution claim under § 1983 requires

four elements: (1) the initiation or continuation of a criminal

proceeding; (2) termination of the proceeding in the plaintiff’s

favor; (3) lack of probable cause for commencing the proceeding;

and (4) actual malice as a motivation for the defendants’

actions.”) (citations omitted). Thus, “where a dismissal in the

interest of justice leaves the question of guilt or innocence

unanswered, . . . it cannot provide the favorable termination

5 For the same reasons, any equal protection or due process

claims arising out of these claims are also time barred. BaRoss

on behalf of BaRoss v. Greenlawn Volunteer Fire Dep’t, Inc., No.

16-CV-4805, 2017 WL 2124424, at *7 (E.D.N.Y. May 16, 2017)

(applying three year statute of limitation to Section 1983

claims relating to the deprivation of equal rights and due

process under the Fourteenth Amendment to the Constitution).

16

required as the basis for [that] claim.” Thompson v. Clark, 364

F. Supp. 3d 178, 195 (E.D.N.Y. 2019) (quoting Lanning, 908 F.3d

28-29).

“The statute of limitations for a fabricated-evidence

claim [ ] does not begin to run until the criminal proceedings

against the defendant (i.e., the § 1983 plaintiff) have terminated

in his favor.” McDonough v. Smith, 139 S. Ct. 2149, 2154–55, 204

L. Ed. 2d 506 (2019) (stating that for a fabricating of evidence

claim, “malicious prosecution is the most analogous common-law

tort” for accrual purposes); Rodriguez v. Derienzo, No. 20-CV-

0087, 2020 WL 615052, at *3 (S.D.N.Y. Feb. 7, 2020) (to state a

claim for the denial of a fair trial based on the fabrication of

evidence, a plaintiff must allege that “‘an (1) investigating

official (2) fabricates information (3) that is likely to

influence a jury’s verdict, (4) forwards that information to

prosecutors, and (5) the plaintiff suffers a deprivation of life,

liberty, or property as a result.’” (quoting Garnett v. Undercover

Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016))).

The Second Department’s decision reversing the Resisting

Arrest Conviction is not a termination in Plaintiff’s favor and

her claims for malicious prosecution and fabrication of evidence

must be dismissed. In Lanning, “the Second Circuit reaffirmed the

longtime requirement that favorable termination under federal law

17

requires that ‘the prosecution terminated in some manner

indicating that the person was not guilty of the offense charged,’

based on the ‘merits’ rather than ‘on any number of procedural or

jurisdictional grounds.’” Rosario v. City of N.Y., No. 18-CV-

4023, 2019 WL 4450685, at *4 (S.D.N.Y. Sept. 16, 2019) (citing

Lanning, 908 F.3d at 28). “No single type of disposition is

necessary or sufficient, but the termination must be ‘measured in

objective terms by examining the totality of the circumstances.’”

Id. (quoting Lanning, 908 F.3d at 28). Under this standard, the

Lanning plaintiff’s “‘vague allegations’ of favorable termination

were insufficient, because the . . . plaintiff agreed the

dismissals were based at least in part on lack of jurisdiction;

and a state court had explicitly stated that there was no

‘determination of the merits’ upon dismissal.” Id. (quoting

Lanning, 908 F.3d at 28).

Here, Plaintiff’s Resisting Arrest Conviction was

reversed and the accusatory instrument was dismissed as a result

of a jurisdictional defect. See Hagans, 63 Misc. 3d 139(A), 114

N.Y.S.3d 800. The Second Department did not pass on the merits of

the resisting arrest charge. Id. Moreover, Plaintiff does not

argue, nor does she allege, that “the termination of the

prosecutions against [her] affirmatively indicated [her]

innocence,” as compared to a “dismissal on any number of procedural

18

or jurisdictional grounds, all of which fail to affirmatively

indicate innocence.” Lanning, 908 F.3d at 28. Therefore,

Plaintiff’s Section 1983 and state law claims for malicious

prosecution and fabrication of evidence must be DISMISSED. See

Mhina v. Colavita, No. 15-CV-0327, 2020 WL 224743, at *4 (N.D.N.Y.

Jan. 15, 2020) (collecting cases); see also Hagans, 63 Misc. 3d

139(A), 114 N.Y.S.3d 800 (noting that the Plaintiff argued “that

the information charging her with resisting arrest is

jurisdictionally defective because it contains no factual

allegations that the arrest was authorized.”) (emphasis added).

Even if the conviction terminated in Plaintiff’s favor,

Plaintiff does not allege facts sufficient to state a claim for

malicious prosecution and fabrication of evidence. For a malicious

prosecution claim, “to satisfy the initiation requirement, a

plaintiff must allege facts suggesting that the defendant ‘played

an active role in the prosecution, such as giving advice and

encouragement or importuning the authorities to act.’” McLean v.

Clark, No. 19-CV-10967, 2020 WL 508902, at *3 (S.D.N.Y. Jan. 31,

2020) (quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 214

(2d Cir. 2000)). To state a claim for fabrication of evidence, a

plaintiff must allege that an “investigating official” fabricated

information. Rodriguez, 2020 WL 615052, at *3.

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Here, Plaintiff named the Nassau County District

Attorney’s Office, which is immune from suit under Section 1983,

as discussed infra. Moreover, Plaintiff does not make any

allegations regarding the persons responsible for initiating the

charges against her or that anyone fabricated information. To

that extent, Plaintiff does not allege information was fabricated,

if any. Accordingly, Plaintiff fails to state a claim of malicious

prosecution and fabrication of evidence arising out of the

October 2014 Arrest and Resisting Arrest Conviction and those

claims are DISMISSED.6

IV. Section 1983 Municipal Liability Claim Against the NCPD,

NCDAO, and Nassau County

Plaintiff argues that the NCPD and Nassau County are

liable “for failure to train its employees as to display a

deliberate indifference to the constitutional rights of those

within its jurisdiction.” (Pl. Opp. at 4.) As a preliminary

6 For the same reasons, Plaintiff’s claims for the denial of a

fair trial are dismissed. Bailey v. City of N.Y., 79 F. Supp.

3d 424, 445 (E.D.N.Y. 2015) (“A section 1983 claim for the

denial of a fair trial is, in essence, a claim for damages

attributable to an unconstitutional conviction.”). Because

Plaintiff makes no allegations regarding an investigating

official who fabricated evidence, or that any evidence was

fabricated, her claim necessarily fails. Id. at 446 (“A denial

of the right to a fair trial claim requires a plaintiff to prove

that: an (1) investigating official (2) fabricates evidence

(3) that is likely to influence a jury’s decision, (4) forwards

that information to prosecutors, and (5) the plaintiff suffers a

deprivation of liberty as a result.” (internal quotation marks

and citation omitted)).

20

matter, Plaintiff’s request for relief against the NCPD and NCDAO

is dismissed with prejudice because they are administrative arms

of Nassau County and lack the capacity to be sued as separate

entities.7 See, e.g., Ravenell v. Cty. of Nassau, No. 18-CV-6010,

2019 WL 5423435, at *8 (E.D.N.Y. Oct. 21, 2019); Clements v. Nassau

Cty. Corr. Ctr., No. 10-CV-0422, 2010 WL 1779985, *3 (E.D.N.Y.

Apr. 30, 2010); Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d

463, 477 (E.D.N.Y. 2002); Adames v. Cty. of Suffolk, No. 18-CV-

4069, 2019 WL 2107261, at *2 (E.D.N.Y. May 14, 2019).

Plaintiff has not named Nassau County as a defendant but

argues Nassau County is liable for “failure to train its employees

as to display a deliberate indifference” to constitutional rights.

(Pl. Opp. at 4.) Given Plaintiff’s pro se status and affording

the Amended Complaint a liberal construction, the Court considers

whether Plaintiff has alleged a plausible Section 1983 claim

against Nassau County and finds that she has not. Here, there are

no factual allegations from which the Court could reasonably

construe a plausible Section 1983 claim against Nassau County.

It is well-established that a municipality such as

7 Further, claims against the NCDAO cannot proceed. “As agencies

of the State of New York, [the NCDAO is] entitled to immunity

under the Eleventh Amendment.” Carthen v. Gonzalez, No. 19-CV-

6392, 2020 WL 376569, at *2 (E.D.N.Y. Jan. 23, 2020) (citing

Ying Jing Gan v. City of N.Y., 996 F.2d 522, 535 (2d Cir. 1993)

(District Attorney’s Office is protected by the Eleventh

Amendment)).

21

Nassau County cannot be held liable under § 1983 on a respondeat

superior theory. See Monell v. Dep’t of Soc. Servs. of N.Y. City,

436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978);

Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). To

prevail on a Section 1983 claim against a municipality, a plaintiff

must show “that ‘action pursuant to official municipal policy’

caused the alleged constitutional injury.” Cash v. Cty. of Erie,

654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563

U.S. 51, 60, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d 417 (2011)); see

also Monell, 436 U.S. at 690-91.

Here, there are no factual allegations from which the

Court could reasonably construe a plausible Section 1983 claim

against Nassau County. Beyond the facts alleged in this particular

case, the October 2014 Arrest, Plaintiff has not articulated facts

regarding the existence of a custom or policy in Nassau County.

“It is well-established that ‘a single incident in a complaint,

especially if it involved only actors below the policy-making

level, does not suffice to show a municipal policy.’” Raphael v.

Cty. of Nassau, 387 F. Supp. 2d 127, 131 (E.D.N.Y. 2005) (quoting

Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir.

1991)). Plaintiff has not alleged, nor has she argued, the

existence of similar incidents and her “reliance on the facts

alleged in this single incident fail to rise to the level of custom

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or policy required for municipal liability.” Id.

Plaintiff further argues that (1) the NCPD internal

affairs bureau has a “customary practice” of neglecting formal

complaints (Pl. Opp. at 4) and (2) it is “common knowledge” that

NCPD officers fail to follow a “policy” requiring probable cause

for an arrest (Pl. Opp. at 5). However, as stated, claims against

the NCPD are “implausible.” Ravenell, 2019 WL 5423435, at *8.

Finally, Plaintiff appears to argue that the Court

should permit the parties to exchange discovery regarding a custom,

policy, or lack of training. (Pl. Opp. at 4.) However, Plaintiff

“must first state plausible facts giving rise to a reasonable

inference of an unlawful municipal policy, as required by Iqbal,

before [she] may proceed to discovery on [her] Monell claim.” In

re Dayton, 786 F. Supp. 2d 809, 823 (S.D.N.Y. 2011). Therefore,

to the extent alleged, Plaintiff’s Section 1983 claim against

Nassau County is DISMISSED.

V. Plaintiff’s Claims Against the Nassau County District

Attorney and Nassau County Assistant District Attorneys

To the extent that Plaintiff seeks to impose liability

against the Nassau County District Attorney, who is not named as

a defendant, it appears that Plaintiff’s claim is based solely on

the supervisory position she holds. Wholly absent, however, are

any allegations sufficient to establish the District Attorney’s

personal involvement in the complained of conduct. A supervisor

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cannot be liable solely by virtue of being a supervisor because

there is no respondeat superior liability under Section 1983.

Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).

Accordingly, in the absence of any factual allegations of conduct

or inaction, Plaintiff’s claims against the Nassau County District

Attorney are DISMISSED.

Plaintiff argues that “the attorneys assigned to

prosecute the cases against [ ] plaintiff, did act with knowledge

of information and evidence that would otherwise disprove my guilt,

and still proceeded to maliciously prosecute me in the matters.”

(Pl. Opp. at 6; see also Am. Compl. at 8-9.) As a preliminary

matter, the “personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of

damages under § 1983” and Plaintiff has failed to name the

prosecutors involved in the Resisting Arrest Conviction. Farrell

v. Burke, 449 F.3d 470, 484 (2d Cir. 2006); Shah v. Helen Hayes

Hosp., 252 F. App’x 364, 366 (2d Cir. 2007) (“A party may not use

his or her opposition to a dispositive motion as a means to amend

the complaint”).

Plaintiff’s claims fail even construing the Amended

Complaint to include claims against the Assistant District

Attorneys involved in the Resisting Arrest Conviction.

Prosecutors are entitled to “absolute immunity with respect to

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their ‘prosecutorial functions,’ which include their actions ‘as

advocates and when their conduct involves the exercise of

discretion.’” Bouchard v. Olmsted, 775 F. App’x 701, 703 (2d Cir.

2019) (quoting Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir.

2011)). Immunity does not extend to “‘conduct unrelated to

advocacy, such as giving legal advice, holding a press conference,

or acting as a complaining witness.’” Id. (quoting Flagler, 663

F.3d at 547).

Plaintiff accuses the Assistant District Attorneys who

prosecuted her Resisting Arrest Conviction of misconduct for

(1) refusing to drop the resisting arrest charges and

(2) continuing the prosecution with knowledge that the arresting

officers acted without probable cause. (Am. Compl. at 6-7.)

Assuming these allegations to be true, the prosecutors are still

entitled to absolute immunity even if they “conspir[ed] to present

false evidence at a criminal trial”. Dory v. Ryan, 25 F.3d 81, 83

(2d Cir. 1994); Bernard v. Cty. of Suffolk, 356 F.3d 495 (2d Cir.

2004) (absolute immunity shields prosecutors from suit pursuant to

section 1983 for alleged malicious or selective prosecution and

for misconduct in the presentation of evidence to the grand jury).

Therefore, to the extent alleged, claims against the Assistant

District Attorneys are DISMISSED.

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VI. Plaintiff’s Remaining State Law Claims

Having dismissed all of Plaintiff’s federal claims, the

Court declines to exercise supplemental jurisdiction over her

remaining state law claims. See Delaney v. Bank of Am. Corp., 766

F.3d 163, 170 (2d Cir. 2014) (“In general, where the federal claims

are dismissed before trial, the state claims should be dismissed

as well.” (internal quotation marks and citation omitted)).

VII. Leave to Amend

Plaintiff argues that she intends “to file an Amended

Complaint including the County of Nassau, in the case that they

are deemed a more appropriate defendant.” (Pl. Opp. at 5.) The

“court should freely give leave [to amend] when justice so

requires.” FED. R. CIV. P. 15(a)(2). “[I]t is within the sound

discretion of the district court to grant or deny leave to amend,”

and a “district court has discretion to deny leave for good reason,

including futility, bad faith, undue delay, or undue prejudice to

the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d

184, 200 (2d Cir. 2007) (citations omitted). However, “a futile

request to replead should be denied.” Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000) (citation omitted). “An amendment to

a pleading is futile if the proposed claim could not withstand a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente

v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002)

26

(citation omitted). Moreover, while amendments to pro se

complaints should be granted “fairly freely,” even pro se litigants

are not entitled to unlimited opportunities to amend their

pleadings. Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980)

(citation omitted); Best v. City of N.Y., No. 12-CV-7874, 2014 WL

163899, at *3 (S.D.N.Y. Jan. 15, 2014).

Given the Second Circuit’s guidance that a pro se

complaint should not be dismissed without leave to amend unless

amendment would be futile, the Court has carefully considered

whether leave to amend is warranted here. Because the defects in

the Amended Complaint are substantive and would not be cured if

afforded an opportunity to amend, leave to amend the Complaint is

DENIED.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

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CONCLUSION

For the reasons stated, Defendants’ motion to dismiss

(D.E. 24) is GRANTED in its entirety and Plaintiff’s Amended

Complaint is DISMISSED.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal would not be taken in good faith and therefore in

forma pauperis status is denied for purpose of an appeal. Coppedge

v. United States, 269 U.S. 438, 444-45 (1962).

The Clerk of the Court is directed to mail a copy of

this Order to the pro se Plaintiff and to mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______

JOANNA SEYBERT, U.S.D.J.

Dated: March 18 , 2020

Central Islip, New York

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