# Hagans v. Nassau County Police Department

> District Court, E.D. New York · March 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10303924

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
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.
------------------------------------X
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.)
14
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.

19
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
23
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
24
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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303924. Public record. Not legal advice.