# Avant v. Miranda

> District Court, E.D. New York · May 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10306198

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 18, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306198

## How later opinions describe it (automated extraction)

- noting where, as here, the “underlying criminal action is ongoing, the better course might be for the District Court to hold [the plaintiff’s] civil action in abeyance until a judgment of conviction has been entered in [the underlying] criminal case”
- holding that a plaintiff proceeding under Section 1983 must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
RICKEY AVANT,

Plaintiff,
MEMORANDUM & ORDER
-against- 21-CV-0974(JS)(SIL)

DETECTIVE JUAN MIRANDA,
DETECTIVE ANTHONY COUSINS,
LT. STEVEN L. HOROWITZ,
SGT. BRIAN S. CONNOLLY, and
HEMPSTEAD POLICE DEPARTMENT,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff: Rickey Avant, pro se
2020001153
Nassau County Correctional Center
100 Carman Avenue
East Meadow, New York 11554

For Defendants: No appearances.

SEYBERT, District Judge:
On or around February 22, 2021, pro se plaintiff Rickey
Avant (“Plaintiff”) filed a civil rights Complaint pursuant to
42 U.S.C. § 1983 (“Section 1983”) against Detective Juan Miranda
(“Det. Miranda”), Detective Anthony Cousins (“Det. Cousins”),
Lieutenant Steven L. Horowitz (“Lt. Horowitz”), Sergeant Brian S.
Connolly (“Sgt. Connolly”), and the Hempstead Police Department
(the “HPD,” and collectively, “Defendants”). (See Compl., ECF No.
1.) Plaintiff also filed an application to proceed in forma

1
pauperis (“IFP”). (IFP Mot., ECF No. 2.) For the reasons that
follow: (1) Plaintiff’s application to proceed in forma pauperis
GRANTED; (2) Plaintiff’s Section 1983 claims against the HPD are
DISMISSED WITH PREJUDICE; (3) Plaintiff’s Section 1983 claims
against Det. Miranda, Det. Cousins, Lt. Horowitz, and Sgt. Connolly

are DISMISSED WITHOUT PREJUDICE; (3) this action is STAYED pending
the conclusion of Plaintiff’s underlying state court criminal
proceeding; and (4) Plaintiff is GRANTED leave to file an amended
complaint after resolution of the underlying criminal proceeding.
BACKGROUND1
Plaintiff utilized the Court’s Section 1983 complaint
form and alleges:
On June 11, 2020 at 4:37 p.m. at 100 Terrace
Ave. in Hempstead, NY 11550, Detectives Juan
Miranda Shield # 198, & Anthony Cousins Shield
# 1217 unlawfully seized me & violated my
Constitutional rights (4th Amendment) by
drawing their guns on me, depriving me of my
liberty of movement, invading my privacy &
arresting me for a crime that they thought I
had committed. They also filed false felony
complaints in the Hempstead Police Department
Accusing me of being a suspect of a crime that
I did not commit & now my freedom has been
taken from me.

1 Excerpts from the Complaints are reproduced exactly as they appear in
the original. Errors in spelling, punctuation, and grammar have not
been corrected or noted.

2
(Compl. at ECF p. 2.)2 Plaintiff further alleges that: “Yes
medical treatment was received. I was taken to the Nassau County
Medical Center to receive a medical treatment for my Asthma. This
arrest caused me to have an Asthma attack.” (Id. ¶ II.A.)
As for relief, Plaintiff seeks damages award in:

the sum of $1 million for false imprisonment,
pain & suffering, & cruel & unusual punishment
for the hardship I had to endure being locked
down in Nassau County Jail during an epidemic.
I also want to be reimbursed for all the money
my family spent supporting me on commissary,
packages, mail postage, & collect calls.

(Id. at ECF p. 3, ¶ III.)
DISCUSSION
I. Plaintiff’s In Forma Pauperis Application is Granted
Upon review of Plaintiff’s declaration in support of the
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified by his financial status to commence this
action without prepayment of the filing fee. See 28 U.S.C. §
1915(a)(1). Therefore, Plaintiff’s request to proceed in forma
pauperis is GRANTED.

2 When citing to the Complaint, the Court refers to the page numbers
generated by the Court’s Electronic Case Filing system.

3
II. Consideration of 28 U.S.C. § 1915
28 U.S.C. § 1915 requires a district court to dismiss an
in forma pauperis complaint if the action is frivolous or
malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief against a defendant who is immune from

such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).
An action is frivolous as a matter of law when, inter alia, it is
based on an “indisputably meritless legal theory” or when it “lacks
an arguable basis in law . . ., or [when] a dispositive defense
clearly exists on the face of the complaint.” Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The
Court is required to dismiss the action as soon as it makes such
a determination. See 28 U.S.C. § 1915A.
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004). However, a complaint must plead

sufficient facts to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

4
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
The plausibility standard requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. at 678; accord Wilson
v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). While
“‘detailed factual allegations’” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555).
With these standards in mind, the Court considers
Plaintiff’s claims below.
III. Analysis of Plaintiff’s Claims Pursuant to Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . ..

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff
must “allege that (1) the challenged conduct was attributable at
least in part to a person who was acting under color of state law
and (2) the conduct deprived the plaintiff of a right guaranteed
under the Constitution of the United States.” Rae v. Cnty. of
Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider

5
v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)). Section 1983 “creates
no substantive rights; it provides only a procedure for redress
for the deprivation of rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993).
A. Plaintiff’s Section 1983 Claims Against the HPD are
Dismissed With Prejudice

It is well-established that “under New York law,
departments that are merely administrative arms of a municipality
do not have a legal identity separate and apart from the
municipality and, therefore, cannot sue or be sued.” Davis v.
Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002).
Thus, Plaintiff’s claims against the HPD cannot proceed because
the HPD has no legal identity separate and apart from the
Incorporated Village of Hempstead (the “Village”). Accordingly,
the claims against the HPD are DISMISSED WITH PREJUDICE pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). See, e.g., Bussey
v. Devane, No. 13-CV-3660, 2013 WL 4459059, at *5 (E.D.N.Y. Aug.
16, 2013) (dismissing Section 1983 claims against the HPD because
it lacks the capacity to be sued).
Given Plaintiff’s pro se status, the Court liberally
construes the Complaint to assert a Section 1983 claim against the
municipality, the Village. As discussed below, any claims against
the Village are dismissed without prejudice.

6
It is well-established that a municipality, such as the
Incorporated Village of Hempstead, cannot be held liable under
Section 1983 on a respondeat superior theory. See Monell v. Dep’t
of Soc. Servs. of N.Y.C., 436 U.S. 658, 691 (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
(2011)); see also Monell, 436 U.S. at 690-91. “[L]ocal
governments . . . may be sued for constitutional deprivations
visited pursuant to governmental ‘custom’ even though such a custom
has not received formal approval through the body’s official
decisionmaking channels.” Monell, 436 U.S. at 690-91 (internal
citation omitted).
To establish the existence of a municipal policy or
custom, the plaintiff must allege: (1) the existence of a formal

policy which is officially endorsed by the municipality, see
Connick, 563 U.S. at 60-61; (2) actions taken or decisions made by
municipal policymaking officials, i.e., officials with final
decisionmaking authority, which caused the alleged violation of
the plaintiff’s civil rights, see Amnesty Am. v. Town of W.

7
Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Jeffes v. Barnes, 208
F.3d 49, 57 (2d Cir. 2000); (3) a practice “so persistent and
widespread as to practically have the force of law,” Connick, 563
U. S. at 61; see also Green v. City of N.Y., 465 F.3d 65, 80 (2d
Cir. 2006), or that “was so manifest as to imply the constructive

acquiescence of senior policy-making officials,” Patterson v. Cty.
of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal
quotation marks and citations omitted); or (4) that “a policymaking
official exhibit[ed] deliberate indifference to constitutional
deprivations caused by subordinates” Cash, 654 F.3d at 334
(internal quotation marks and citations omitted); see also Okin v.
Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 439 (2d
Cir. 2009) (A municipal custom may be found when “faced with a
pattern of misconduct, [the municipality] does nothing, compelling
the conclusion that [it] has acquiesced in or tacitly authorized
its subordinates’ unlawful actions.” (citation omitted) (second
alteration in original)).

Here, when liberally construing the Complaint, there are
no factual allegations from which the Court could reasonably
construe a plausible Section 1983 cause of action against the
Village. Accordingly, to the extent alleged, claims against the
Village are DISMISSED WITHOUT PREJUDICE.

8
B. Plaintiff’s Section 1983 Claims Against Lt. Horowitz and
Sgt. Connolly are Dismissed Without Prejudice

Although Plaintiff names Lt. Horowitz and Sgt. Connolly
in the caption of the Complaint, neither Defendant is mentioned in
the body of the Complaint. “It is well settled that, in order to
establish a defendant’s individual liability in a suit brought
under § 1983, a plaintiff must show, inter alia, the defendant’s
personal involvement in the alleged constitutional deprivation.”
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).
Thus, “a Section 1983 plaintiff must ‘allege a tangible connection
between the acts of the defendant and the injuries suffered.’”
Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, *2 (S.D.N.Y.
Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986)).
Moreover, as the Second Circuit recently made clear,
“there is no special rule for supervisory liability” and, “[t]o
hold a state official liable under § 1983, a plaintiff must plead
and prove the elements of the underlying constitutional violation
directly against the official without relying on a special test
for supervisory liability.” Tangreti v. Bachmann, 983 F.3d 609,
619-20 (2d Cir. 2020). Where a Section 1983 claim fails to allege
a defendant’s personal involvement, the claim fails as a matter of
law. See Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010).

9
Here, as is readily apparent, Plaintiff has not alleged
factual allegations of conduct or inaction attributable to
Lt. Horowitz or Sgt. Connolly. The failure to allege any facts
demonstrating their personal involvement is fatal to Plaintiff’s
Section 1983 claims against Lt. Horowitz or Sgt. Connolly. See

Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d
Cir. 2013) (holding that a plaintiff proceeding under Section 1983
must allege facts showing the defendants’ direct and personal
involvement in the alleged constitutional deprivation).
Accordingly, Plaintiff’s Section 1983 claims against Lt. Horowitz
and Sgt. Connolly are DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b).
C. Plaintiff’s Section 1983 Claims Against Det. Miranda and
Det. Cousins are Dismissed Without Prejudice

Plaintiff alleges that Det. Miranda and Det. Cousins
unlawfully seized me & violated my
Constitutional rights (4th Amendment) by
drawing their guns on me, depriving me of my
liberty of movement, invading my privacy &
arresting me for a crime that they thought I
had committed. They also filed false felony
complaints in the Hempstead Police Department
accusing me of being a suspect of a crime that
I did not commit & now my freedom has been
taken from me.

(Compl. at ECF p. 2.) The Court construes these allegations as
asserting false arrest and false imprisonment claims against

10
Det. Miranda and Det. Cousins.
A Section 1983 claim for false arrest “is substantially
the same as a claim for false arrest under New York law.”3 Bonadies
v. Town of Amenia, No. 19-CV-10890, 2020 WL 5209510, at *10
(S.D.N.Y. Aug. 31, 2020) (quoting Weyant v. Okst, 101 F.3d 845,

852 (2d Cir. 1996)). To succeed on a false arrest claim under New
York law, a plaintiff must show that “(1) the defendant intended
to confine the plaintiff, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the confinement,
and (4) the confinement was not otherwise privileged.” Wheeler
v. Kolek, No. 16-CV-7441, 2020 WL 6726947, at *4 (S.D.N.Y. Nov.
16, 2020) (internal quotation marks and citation omitted); see
also Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012).
The existence of probable cause is a complete bar to a claim for
false arrest. Ackerson v. City of White Plains, 702 F.3d 15, 19
(2d Cir. 2012) (“Probable cause is a complete defense to an action
for false arrest.”) (citation and internal quotation marks

omitted).

3 “Plaintiff’s false arrest and false imprisonment claims are addressed
together for the purposes of this court’s analysis.” Montes v. O’Shea,
No. 21-CV-0303, 2021 WL 1759853, at *3 n.6 (N.D.N.Y. Apr. 6, 2021),
Report and Recommendation Adopted, 2021 WL 1758858 (N.D.N.Y. May 4, 2021)
(citing Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991) (“False arrest
is simply an unlawful detention or confinement brought about by means
of an arrest rather than in some other way and is in all other respects
synonymous with false imprisonment.”)).

11
Further, “[a]n arrest is privileged as a matter of law
if the individual claiming false arrest is convicted of the crime
for which he or she was arrested.” Icangelo v. Doe, No. 13-CV-
1638, 2013 WL 1455313, at *2 (E.D.N.Y. Apr. 2, 2013); see also
Sanchez v. Miller, No. 20-CV-0620, 2020 WL 1140843, at *6 (S.D.N.Y.

Mar. 6, 2020) (“[A] civil rights plaintiff cannot pursue claims
that would necessarily be inconsistent with a conviction.”).
Therefore, if plaintiff is subsequently convicted of the charges
for which he was arrested, to recover damages for an allegedly
false arrest, he “must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s
issuance of a writ of habeas corpus[.]” Heck v. Humphrey, 512
U.S. 477, 486-87 (1994).
First, following this guidance, the Court takes judicial
notice that New York State Office of Court Administration records

reflect that Judge Robert G. Bogle scheduled an appearance for
June 7, 2021 relating to the arrest that forms the basis of
Plaintiff’s Complaint here.4

4 (https://iapps.courts.state.ny.us/webcrim_attorney/DefendantSearch
(last visited May 17, 2021)); Toussaint v. Guadarama, No. 21-CV-0032,
2021 WL 1648648, at *1 n.1 (D. Conn. Apr. 27, 2021) (“The Court may
‘take judicial notice of relevant matters of public record.’” (quoting

12
Second, although the charges that form the basis of the
Complaint are pending, the Court finds that Heck, cited above,
does not bar Plaintiff’s claims here. Specifically, “Heck bars a
§ 1983 claim based on an extant conviction, but it has no
application to an anticipated future conviction.” Stegemann v.

Rensselaer Cty. Sheriff’s Office, 648 F. App’x 73, 76 (2d Cir.
2016); see Wallace v. Kato, 549 U.S. 384, 393 (2007) (rejecting
the argument that “an action which would impugn an anticipated
future conviction cannot be brought until that conviction occurs
and is set aside” and stating “[w]e are not disposed to embrace
this . . . extension of Heck” (emphasis in original)); McDonough
v. Smith, 139 S. Ct. 2149, 2157 (2019) (noting that “some claims
do fall outside Heck’s ambit when a conviction is merely
‘anticipated’” (citations omitted)). Accordingly, “the pending
criminal charges do not, . . ., bar Plaintiff’s false arrest and
false imprisonment claims.” Myers v. Municipality of Greene Cty.,
No. 19-CV-0325, 2020 WL 204296, at *4 (N.D.N.Y. Jan. 14, 2020).

Third, because Plaintiff is awaiting trial and/or the
charges remain pending, “his false arrest claim is premature.”
Hall v. Salaway, No. 20-CV-4651, 2021 WL 826169, at *4 (E.D.N.Y.
Mar. 3, 2021); Birdsall v. City of Hartford, 249 F. Supp. 2d 163,

Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012))).

13
171 (D. Conn. 2003) (“It is well settled in the Second Circuit
that in order to prevail on a cause of action for false arrest .
. ., a plaintiff must prove that the underlying criminal proceeding
terminated in his favor.” (citation omitted)). As discussed
below, the Court stays this action pending resolution of the

underlying criminal proceeding.
Fourth, even when considering the merits, the Court
finds that Plaintiff’s false arrest and false imprisonment claims
must be dismissed. It is well-established that “if ‘the facts
known by the arresting officer at the time of the arrest
objectively provided probable cause to arrest,’ the arrest is
privileged, and the plaintiff cannot state a claim for false
arrest.” Sanchez, 2020 WL 1140843, at *6 (quoting Devenpeck v.
Alford, 543 U.S. 146, 152 (2004)). “Officers have probable cause
to arrest when they have ‘knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the

person to be arrested has committed . . . a crime.’” Id.
(alterations in original) (quoting Jaegly v. Couch, 439 F.3d 149,
152 (2d Cir. 2006)). To that extent, “police officers may have
had probable cause to arrest if they have acted reasonably, even
if they were mistaken.” Id. (collecting cases).

14
Moreover, “[a]n arrest pursuant to a warrant is presumed
to be reasonable under the Fourth Amendment because such warrants
are issued only after a showing of probable cause.” Id. (citing
Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007)) (further
citation omitted). Plaintiff may rebut the presumption of

probable cause “only if he alleges facts suggesting that the arrest
warrant was facially invalid or that it was procured through fraud,
perjury, or the misrepresentation or falsification of evidence.”
Id. (quoting Vasquez v. Reilly, No. 15-CV-9528, 2017 WL 946306, at
*7 (S.D.N.Y. Mar. 9, 2017)).
Here, Plaintiff asserts only that Defendants “unlawfully
seized me & violated my constitutional rights (4th Amendment) by .
. . depriving me of my liberty of movement, invading my privacy &
arresting me for a crime that they thought I had committed.”
(Compl. at ECF p. 2.) The claims fail because the Complaint fails
to allege facts “suggesting that the arrest was not privileged.”
Sanchez, 2020 WL 1140843, at *6. Thus, the false arrest and false

imprisonment claims are DISMISSED WITHOUT PREJUDICE.

15
IV. This Action is Stayed Pending Resolution of the Underlying
Criminal Case

Because Plaintiff’s criminal case is ongoing, as noted
above, this action is STAYED pending the conclusion of the
underlying criminal proceeding. Wallace, 549 U.S. at 393–94 (“If
a plaintiff files a false arrest claim before he has been convicted
(or files any other claim related to rulings that will likely be
made in a pending or anticipated criminal trial), it is within the
power of the district court, and in accord with common practice,
to stay the civil action until the criminal case or the likelihood
of a criminal case is ended.” (citations omitted)); Stegemann, 648
F. App’x at 78 (noting where, as here, the “underlying criminal
action is ongoing, the better course might be for the District
Court to hold [the plaintiff’s] civil action in abeyance until a
judgment of conviction has been entered in [the underlying]
criminal case”); see also Hall, 2021 WL 826169, at *6 (collecting
cases). The Clerk of the Court shall administratively CLOSE this
case. Plaintiff is GRANTED leave to request, in writing, that
this case be reopened within two (2) weeks after the conclusion of
his state court criminal proceeding, if so warranted at that time.

16
V. Plaintiff is Granted Leave to File an Amended Complaint Upon
Resolution of the Underlying Criminal Case

A pro se plaintiff should ordinarily be given the
opportunity “to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.”
Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)
(internal quotation marks and citation omitted). Therefore,
Plaintiff is GRANTED leave to to submit an Amended Complaint in
accordance with this Order following the conclusion of the on-
going criminal proceedings against Plaintiff in state court. See
Hall, 2021 WL 826169, at *6 (collecting cases).
In any Amended Complaint, Plaintiff must provide the
names of the individual officers he alleges falsely arrested and
imprisoned him and allege facts suggesting that the officers did
not have probable cause to arrest and imprison him. If Plaintiff
was arrested pursuant to a warrant, the Amended Complaint “must
allege facts suggesting that the warrant was facially invalid or
that it was procured through fraud, perjury, or the
misrepresentation or falsification of evidence.” Sanchez, 2020
WL 1140843, at *6 (internal quotation marks and citation omitted).
“Conclusory assertions that [Plaintiff] was ‘illegally’ or
‘unlawfully’ arrested are not sufficient to state a claim under”
Section 1983. Id. Finally, if Plaintiff is “subsequently

17
convicted of the charges for which he was arrested, in order to
recover damages for an allegedly false arrest, he ‘must provide
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by

a federal court’s issuance of a writ of habeas corpus[.]’” Id.
(quoting Heck, 512 U.S at 486-87).
CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that
Plaintiff’s application to proceed in forma pauperis (ECF No. 2)
is GRANTED; and
IT IS FURTHER ORDERED that Plaintiff’s claims against
the HPD are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b); and
IT IS FURTHER ORDERED that Plaintiff’s claims against
Defendants Lt. Horowitz, Sgt. Connolly, Det. Miranda, and Det.
Cousins are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A(b); and
IT IS FURTHER ORDERED that Plaintiff is granted leave to
file an Amended Complaint. However, this action is STAYED pending
the resolution of the underlying criminal case; and

18
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to
request in writing that this case be re-opened within two (2) weeks
from the conclusion of the underlying criminal case, if so
warranted at that time; and
IT IS FURTHER ORDERED that the Clerk of the Court shall

(1) administratively close this case and (2) mail a copy of this
Order to the pro se Plaintiff; and
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith;
therefore, in forma pauperis status is DENIED for the purpose of
any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45,
(1962).
SO ORDERED.

/s/ JOANNA SEYBERT ____
Joanna Seybert, U.S.D.J.

Dated: May 18 , 2021
Central Islip, New York

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306198. Public record. Not legal advice.