# Bey v. Antoine

> District Court, E.D. New York · August 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10306672

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 23, 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/10306672

## How later opinions describe it (automated extraction)

- noting that even after Twombly, federal courts “remain obligated to construe a pro se complaint liberally”
- noting that even after Twombly, federal courts “remain obligated to construe a pro se complaint liberally”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
EMPRESS HADIYA BEY,

Plaintiff,
MEMORANDUM & ORDER
- against - 19-CV-1877 (PKC) (RER)

JOSEPHINE ANTOINE et al.,

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Empress Hadiya Bey, proceeding pro se, commenced this action on March 27,
2019, against 96 state, municipal, and individual defendants. The Court has dismissed the claims
against all but four defendants, including Defendant Jason Rocke (“Rocke”), as to whom the Court
allowed 42 U.S.C. § 1983 claims to proceed for false arrest and excessive force based on events
that took place on May 4, 2018.
Before the Court is Defendant Rocke’s motion to dismiss the allegations against him under
Federal Rule of Civil Procedure 12(b)(6). (Defendant’s Motion (“Def. Mot.”), Dkt. 67; see also
2/1/2021 Docket Order (construing Defendant’s motion requesting a pre-motion conference as a
motion to dismiss and ordering supplemental briefing).) Rocke’s motion also asserts qualified
immunity with respect to the allegation that he falsely arrested Plaintiff. (Def. Mot., Dkt. 67, at
3.) The Court denies Rocke’s motion in its entirety.
BACKGROUND
I. Factual Background
The Amended Complaint alleges the following facts, which the Court accepts as true for
purposes of this motion. See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d
424, 429 (2d Cir. 2012).
On May 2, 2018, New York City Police Department (“NYPD”) officers and
Administration of Children’s Services (“ACS”) workers entered Plaintiff’s apartment through a
kitchen window, located off the fire escape, after Plaintiff refused to allow them to enter through
her front door. (Amended Complaint (“Am. Compl.”), Dkt. 7, at ECF1 64.) One of the two officers
who entered through the kitchen window made Plaintiff and her children stay in the living room

while the other officer opened the front door for additional police officers and ACS workers. (Id.
at ECF 64–65.) “After an hour of probative actions[,] . . . all six of the individuals left [Plaintiff’s]
apartment.” (Id. at ECF 65.)
On May 3, 2018, a Kings County Family Court judge issued an order finding that Plaintiff’s
children were “at imminent risk” in her home and granting their removal. (Id. at ECF 95.) The
next day, ACS workers and several police officers, including Defendant Rocke, went to Plaintiff’s
home to remove her children pursuant to the order. (Id. at ECF 65; see also id. at ECF 87–95
(Family Court petition and removal order dated May 3, 2018).)
Plaintiff was away from home when the officers arrived, but returned when her husband

called her. (Id. at ECF 65.) On the way, she called the police and told them that she needed help.
(Id.) When she got home, she “ran up the stairs and immediately started looking for [her]
children.” (Id.) She heard her daughter screaming in the bathroom. (Id.) Plaintiff opened the
bathroom door, but an officer closed it and told her she could not go in. (Id.) Plaintiff responded,
“You don’t hear my fucking daughter screaming. How did yall get in here, you know full well
you all are not supposed to be in my house.” (Id.) An officer “showed [Plaintiff the] removal
order.” (Id.)

1 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
Plaintiff then joined her husband in the kitchen. (Id.) She saw officers “attempt[] to go
after him,” and she “jumped in between him and the officers to keep them from harming him and
said, ‘Don’t fucking touch him he didn’t do nothing wrong.’” (Id.) At that point she “knew [she]
was going to be arrested because [she] was not letting them walk [her] children out of [her] house.”
(Id. at ECF 65–66.) She “intended to lock [her]self and all 8 officers inside the house.” (Id. at

ECF 66.) “[A]s [she] headed to the front door [Defendant] grabbed [her] and put handcuffs[] on
[her] and he did not put on the safety locks.” (Id.)
Defendant and another officer took Plaintiff to the 77th Precinct. On arriving at the
Precinct, Plaintiff exited the police car and “headed toward the door,” at which point the other
“officer grabbed [Plaintiff] and forcefully pulled [her] backward[] which made the handcuffs
tighter [and] immediately a sharp excruciat[ing] pain shot up [Plaintiff’s] right arm and [Plaintiff]
almost lost [her] balance.” (Id.) Defendant then “tightly grabbed [Plaintiff’s] left arm” and the
other officer “pushed [her] forward.” (Id.) Plaintiff “turned to [the other officer] and said ‘Why
are you pushing me like that . . . . [Y]ou’re hurting me and why are these handcuffs so tight[?]’”

(Id.) Plaintiff was placed in a holding cell and “they tried to remove the handcuff[s],” but “the
pain was unbearable,” so Plaintiff “told them to leave [her] alone.” (Id.) “They did not call EMS,
nor did they care that [Plaintiff] was in pain.” (Id.)
Plaintiff was charged with several criminal offenses, including obstructing governmental
administration in the second degree and harassment in the second degree, in violation of,
respectively, New York State Penal Law §§ 195.05 and 240.26. (Id.) All charges were dismissed
at trial. (Id.)
On April 1, 2019, Plaintiff told police officers that she was suffering from “nerve damage
from [handcuffs] and [was] wearing a hand brace.” (Id. at ECF 70.) When she filed her Amended
Complaint in May 2019, she had “nerve damage in [her] hands [that] [was] worst in [her] left hand
as [her] thumb ha[d] been numb for about a month.” (Id. at ECF 71.)2
II. Procedural Background
On March 27, 2019, Plaintiff sued 96 state, municipal, and individual defendants seeking
their criminal prosecution. (See Dkt. 1.) On April 22, 2019, the Court granted Plaintiff’s

application to proceed in forma pauperis, dismissed her criminal prosecution claims, and granted
Plaintiff 30 days to file an amended complaint setting forth any plausible Section 1983 claims.
(Dkt. 6.) On May 17, 2019, Plaintiff filed an amended complaint naming over 150 defendants.
(Dkt. 7.) On July 15, 2019, the Court sua sponte dismissed Plaintiff’s claims against all but 10
defendants, including Defendant Rocke, against whom the Court allowed Plaintiff’s Section 1983
claims for false arrest and excessive force, based on the events of May 4, 2018, to proceed. (Dkt.
9, at 22; Am. Compl., Dkt. 7, at ECF 65–66.)
On January 19, 2021, Defendant Rocke moved to dismiss the allegations against him under
Federal Rule of Civil Procedure 12(b)(6). (Def. Mot., Dkt. 67; see also 2/1/2021 Docket Order
(construing Defendant’s Motion as a motion to dismiss and ordering supplemental briefing).)

Defendant also asserted qualified immunity with respect to the allegation that he falsely arrested
Plaintiff. (Def. Mot., Dkt. 67, at 3.) At the Court’s direction, Rocke filed a supplemental brief in
support of his motion to dismiss on February 20, 2021. (Defendant’s Supplemental Brief (“Def.
Br.”), Dkt. 71.) In his supplemental brief, Defendant reiterates his argument under 12(b)(6) and
additionally appears to maintain that he is entitled to qualified immunity with respect to Plaintiff’s

2 Although Plaintiff references at least one incident in which she was handcuffed between
May 4, 2018 and April 1, 2019 (see, e.g., Am. Compl., Dkt. 7, at 69), the Court accepts, for the
purposes of Plaintiff’s pro se complaint, the inference that her alleged injury resulted from the
handcuffing on May 4, 2018.
false arrest claim. (See Def. Br., Dkt. 71 at 3 (arguing that Defendant had “arguable probable
cause” to arrest Plaintiff, reflecting the qualified immunity argument in Rocke’s motion to
dismiss).)
LEGAL STANDARD
I. Rule 12(b)(6) Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Id. (quoting Twombly, 550 U.S. at 556). The “plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citation omitted).
Determining whether a complaint states a plausible claim for relief is “a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at
679 (citation omitted). “In addressing the sufficiency of a complaint[, the Court] accept[s] as true

all factual allegations and draw[s] from them all reasonable inferences; but [the Court is] not
required to credit conclusory allegations or legal conclusions couched as factual
allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013).
II. 42 U.S.C. § 1983
Section 1983 “does not confer any substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred.” Vill. of Freeport v. Barrella, 814 F.3d 594, 600
n.8 (2d Cir. 2016) (quotations omitted). “To state a claim under § 1983, a plaintiff must allege
that defendants violated plaintiff’s federal rights while acting under color of state law.” McGugan
v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (citations omitted).
III. Qualified Immunity
“Qualified immunity is available to officials” in a Section 1983 action “so long as their
actions do not violate ‘clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir.
2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To determine whether
defendants enjoy qualified immunity, [courts in this Circuit] consider the specificity with which a
right is defined, the existence of Supreme Court or Court of Appeals case law on the subject, and
the understanding of a reasonable officer in light of preexisting law.” Id. (citation and quotations
omitted).
Although “qualified immunity should be resolved ‘at the earliest possible stage in
litigation’” id. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)), “as a general rule, the
defense of qualified immunity cannot support the grant of a Rule 12(b)(6) motion,” id. (citation,
quotations, and brackets omitted). Thus, “a qualified immunity defense can be presented in a Rule

12(b)(6) motion, but . . . the defense faces a formidable hurdle when advanced on such a motion.”
McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004). “[A] defendant presenting an immunity
defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the
more stringent standard applicable to this procedural route.” Id. “Not only must the facts
supporting the defense appear on the face of the complaint, but, as with all Rule 12(b)(6) motions,
the motion may be granted only where it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief.” Id. (citations and quotations
omitted). “Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not
only those that support his claim, but also those that defeat the immunity defense.” Id.
IV. Pro Se Filings
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations and quotations
omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly,

federal courts “remain obligated to construe a pro se complaint liberally”). Courts liberally
construe pro se complaints “particularly when they allege civil rights violations.” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d
Cir. 2001)); accord Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
DISCUSSION
I. Plaintiff’s False Arrest Claim Against Defendant Rocke
In its July 15, 2019 Order, the Court allowed Plaintiff’s false arrest claim against Defendant
Rocke to proceed. (See Dkt. 9, at 19–20.) Rocke now moves to dismiss that claim under Rule
12(b)(6) and also asserts that he is entitled to qualified immunity as to that claim.
A. Legal Standards
“Claims for false arrest brought under Section 1983 are substantially the same as claims
for false arrest under state law.” Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir. 2021)

(citation and quotations omitted)). “Under New York law, to prevail on a claim for false arrest, 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.” Id. (citation, quotations, and alterations omitted). In
other words, “[t]o state a valid claim for false arrest . . . under § 1983, a plaintiff must plead an
unreasonable deprivation of liberty in violation of the Fourth Amendment . . . .” Walker v. Sankhi,
494 F. App’x 140, 142 (2d Cir. 2012) (summary order) (citing, inter alia, Jaegly v. Couch, 439
F.3d 149, 151–52 (2d Cir. 2006)).
“Probable cause is a complete defense to a constitutional claim of false arrest . . . .” Betts
v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (citation omitted). “Probable cause exists when one
has knowledge of, or reasonably trustworthy information as to, facts and circumstances that are

sufficient to warrant a person of reasonable caution in the belief that an offense has been or is
being committed by the person to be arrested.” Id. (citation and quotations omitted). “[T]he
probable cause inquiry is based upon whether the facts known by the arresting officer at the time
of the arrest objectively provided probable cause to arrest,” Jaegly, 439 F.3d at 153 (citing
Devenpeck v. Alford, 543 U.S. 146, 153 (2004))—“i.e., it is objective rather than subjective,”
Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010) (quotations omitted).
“In the context of a false arrest claim, qualified immunity protects an officer if he had
arguable probable cause to arrest the plaintiff.” Myers v. Patterson, 819 F.3d 625, 632–33 (2d Cir.
2016) (citation and quotations omitted). “Arguable probable cause exists if either (a) it was

objectively reasonable for the officer to believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test was met.” Id. at 633
(citation and quotations omitted). “In other words, an officer lacks arguable probable cause and is
not entitled to qualified immunity only where no officer of reasonable competence could have
made the same choice in similar circumstances.” Id. (citation and quotations omitted).
B. Plaintiff Adequately Pleads False Arrest as to Defendant Rocke
Rocke argues that Plaintiff’s allegation that he falsely arrested her on May 4, 2018 should
be dismissed because it fails to state a claim and he is otherwise entitled qualified immunity as to
that allegation. As part of his motion, Rocke contends that the Court should judicially notice the
arrest report, which, he argues, establishes probable cause.
1. The Amended Complaint States a False Arrest Claim as to Defendant Rocke
and He Is Not Entitled to Qualified Immunity at This Stage
Plaintiff alleges that “as [she] headed to the front door [Defendant Rocke] grabbed [her]
and put handcuffs[] on [her].” (Am. Compl., Dkt. 7, at ECF 66.) Rocke does not contest that he
“intended to confine” Plaintiff, that Plaintiff “was conscious of the confinement,” that Plaintiff
“did not consent to the confinement,” see Ashley, 992 F.3d at 136 (citation and quotations
omitted)), or that he deprived Plaintiff of her liberty, see Walker, 494 F. App’x at 142. Rather,
Rocke argues that “[t]here was probable cause to arrest [P]laintiff” for obstructing governmental
administration under New York Penal Law § 195.05 (Def. Br., Dkt. 71, at 2–3), or that “[a]t a
minimum, arguable probable cause existed,” entitling him to qualified immunity (Def. Mot., Dkt.
67 at 3).

Section 195.05 prohibits “intentionally obstruct[ing] . . . the administration of law[,] . . . or
attempt[ing] to prevent a public servant from performing an official function, by means of
intimidation, [or] physical force or interference . . . .” N.Y. Penal Law § 195.05. “The elements
of the offense are: 1) intent; 2) obstruction or impairment of a government function, or preventing
or attempting to prevent the performance of that function by 3) physical interference.” Esmont v.
City of New York, 371 F.Supp.2d 202, 210 (E.D.N.Y. 2005) (citation omitted). Defendant thus
must show that “[i]t was objectively reasonable under [the facts alleged in the Amended
Complaint] for” him “to believe that [Plaintiff] was intending to obstruct” the officers in the
performance of their government function. See Mitchell v. City of Albany, No. 08-CV-871 (TJM),
2010 WL 1235389, at *4 (N.D.N.Y. Mar. 31, 2010).

As Defendant Rocke points out, Plaintiff attached to the Amended Complaint the May 3,
2018 Order of the Kings County Family Court finding that her children were “at imminent risk”
and granting their removal. (Am. Compl., Dkt. 7, at ECF 95.) This Order authorized Rocke to
enter Plaintiff’s home in the performance of an “official function.” See, e.g., Shaheed v. Kroski,
833 F. App’x 868, 870–71 (2d Cir. 2020) (summary order) (noting that “New York Family Court
orders provide an independent basis for police officers to enter peoples’ homes,” so officers
entering a home under such an order are “‘performing an official function’”), cert. denied, No. 20-
7704, 2021 WL 2405244 (U.S. June 14, 2021).

Plaintiff further admits that the officers “showed [her the] removal order” and that she
“knew [she] was going to be arrested because [she] was not letting them walk [her] children out
of [her] house.” (Am. Compl., Dkt. 7, at ECF 65–66.) She concedes that she “intended to lock
[her]self and all 8 officers inside the house.” (Id. at ECF 66.)
But Defendant Rocke fails to explain how “the facts [he knew] at the time of the arrest
objectively provided probable cause to arrest” Plaintiff. Jaegly, 439 F.3d at 153 (citation omitted).
Although Plaintiff confesses that she “intended to lock [her]self and all 8 officers inside the house,”
the only manifestation of this intent, according to the Amended Complaint, was Plaintiff
“head[ing] to the front door,” at which point Rocke handcuffed her. (Am. Compl., Dkt. 7, at ECF

66.) Although, as Rocke notes in his motion, the “officers were present at [P]laintiff’s home for
the lawful removal of her children” (Def. Mot., Dkt. 67 at 2), this does not mean that Plaintiff was
prohibited from leaving the apartment. Thus, Plaintiff’s “head[ing] to the front door,” away from
the children the officers were removing, did not provide either probable cause or even an arguably
“objectively reasonable” basis for Rocke “to believe that [Plaintiff] was intending to obstruct” the
officers in the performance of their government function. Cf. Mitchell, 2010 WL 1235389, at *4
(finding arguable probable cause to arrest the plaintiff for obstruction because the plaintiff
“walk[ed] in the direction of the police vehicle” where her daughter was in custody even though
the defendant “had repeatedly denied [the plaintiff’s] request to release her daughter” (emphasis
added)); Provost v. City of Newburgh, 262 F.3d 146, 158 (2d Cir. 2001) (rejecting the defendant’s
assertion of probable cause as a defense to a false arrest claim, and declining to overturn a jury
verdict, because “[t]he jury could reasonably have concluded that [the defendant] knew that [the
plaintiff’s] hollering and yelling through the window was for the legitimate purpose of getting the
desk officer’s attention, not to cause public inconvenience, annoyance or alarm” (quotations and

brackets omitted)).3
Defendant Rocke also notes that Plaintiff “act[ed] uncooperatively by jumping in between
her husband and officers and yelling obscenities.” (Def. Mot., Dkt. 67, at 3.) But, again, Defendant
was not at Plaintiff’s home to remove her husband. (See id. at 2.) Defendant fails to explain how
he reasonably could have believed that Plaintiff’s jumping between other officers and her husband
impeded the official function of removing her children. Defendant thus has not shown that “facts
supporting [probable cause or arguable probable cause] appear on the face of the complaint,” given
that Plaintiff is “entitled to all reasonable inferences from the facts alleged, [including] those that
defeat the immunity defense.” See Chamberlain, 960 F.3d at 110.

2. The Court Declines to Judicially Notice the Arrest Report
Defendant Rocke asks the Court to consider, in assessing the issue of probable cause, “the
NYPD Arrest Report.” (Def. Br., Dkt. 71 at 2 (referencing Arrest Report, Dkt. 72-1).) The officer
who filled out the Arrest Report wrote that “[Plaintiff] was refusing to comply with simple police
commands[,] . . . was purposely stepping between officers and her children[,] . . . was coercing
[her] children to be noncompliant to police[,] . . . was making physical threats to ACS

3 While it appears from her allegations that Plaintiff was heading toward the front door to
carry out her intention to “lock [her]self and all 8 officers inside the house” (Am. Compl., Dkt. 7,
at ECF 66), there is no indication that Defendant Rocke knew that, or could have known that, at
the point he handcuffed her.
workers[,] . . . [and] was attempting to block [her] children from ACS and police.” (Arrest Report,
Dkt. 72-1, at ECF 1.) If the assertions in the arrest report are true, it likely establishes that Rocke
had at least arguable probable cause to arrest Plaintiff for obstruction under Section 195.05. The
question thus is whether the Court can consider the arrest report, and, if so, for what purposes.
When considering the pleadings on a Rule 12(b)(6) motion, “[a] complaint is deemed to

include any written instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016)
(citation and quotations omitted). “Where a document is not incorporated by reference, the court
may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby
rendering the document integral to the complaint.” Id. (citations and quotations omitted). “A
necessary prerequisite for taking into account materials extraneous to the complaint is that the
plaintiff rely on the terms and effect of the document in drafting the complaint; mere notice or
possession is not enough.” Id. (citation and quotations omitted).
Further, “[u]nder Federal Rule of Evidence 201, a ‘court may judicially notice a fact that

is not subject to reasonable dispute.’” Dixon v. von Blanckensee, 994 F.3d 95, 102 (2d Cir. 2021)
(quoting Fed. R. Evid. 201(b)). “Such facts must either be (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” Id. (citation and quotations omitted).
“Put another way, facts appropriate for judicial notice must ‘meet either one of the tests of
indisputability contained in Rule 201(b): they should be common knowledge, or derived from an
unimpeachable source.’” Alvarez v. County of Orange, 95 F. Supp. 3d 385, 398 (S.D.N.Y. 2015)
(alterations omitted) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc.,
146 F.3d 66, 70 (2d Cir. 1998)). “Because the effect of judicial notice is to deprive a party of the
opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence,
caution must be used in determining that a fact is beyond controversy under Rule 201(b).” Int’l
Star Class Yacht Racing Ass’n, 146 F.3d at 70 (citations omitted).
Although some courts in this Circuit have observed “that a district court may rely on [arrest
reports] in deciding a motion to dismiss under Rule 12(b)(6),” Harris v. Howard, No. 08-CV-4837

(CM), 2009 WL 3682537, at *2 (S.D.N.Y. Oct. 30, 2009) (quotations omitted), courts generally
decline to judicially notice arrest reports to establish the truth of the assertions therein, see Vasquez
v. City of New York, No. 99-CV-4606 (DC), 2000 WL 869492, at *1 n.1 (S.D.N.Y. June 29, 2000)
(judicially noticing an arrest report “not for the truth of the facts set forth therein, but for the fact
that the document[] existed”).4 And some courts in this Circuit have declined to judicially notice
arrest reports altogether. See, e.g., Weaver v. City of New York, No. 13-CV-20 (CBA) (SMG),
2014 WL 950041, at *3 (E.D.N.Y. Mar. 11, 2014) (declining to “consider[] . . . an arrest report on
a 12(b)(6) motion” in part because “it [did] not appear that the report of [the] arrest [was] in fact a
public record, as the first page of the report state[d] that it contain[ed] sealed information”).5

Defendant does not contend that Plaintiff incorporated the Arrest Report into her Amended
Complaint by reference or that she “rel[ied] on the terms and effect of the document in drafting

4 See also Liang v. City of New York, No. 10-CV-3089 (ENV) (VVP), 2013 WL 5366394,
at *5 (E.D.N.Y. Sept. 24, 2013) (considering arrest reports “only to establish their existence and
legal effect, or to determine what statements they contained[,] not for the truth of the matters
asserted” (citations, quotations, and alterations omitted)); cf. Roth v. Jennings, 489 F.3d 499, 509
(2d Cir. 2007) (“If the court takes judicial notice, it does so in order to determine what statements
[documents] contained—but again not for the truth of the matters asserted.” (citation and
quotations omitted)).
5 See also Coggins v. County of Nassau, No. 07-CV-3624 (JFB) (AKT), 2008 WL 2522501,
at *6 & n. 4 (E.D.N.Y. June 20, 2008) (declining to judicially notice police reports on a motion to
dismiss); Crews v. County of Nassau, No. 06-CV-2610 (JFB) (WDW), 2007 WL 4591325, at *6
(E.D.N.Y. Dec. 27, 2007) (declining to take notice of “non-judicial documents (such as police
reports)” on a motion to dismiss a claim of false arrest).
the complaint.” See Nicosia, 834 F.3d at 230 (citation and quotations omitted). Nor has Defendant
shown that the assertions in the Arrest Report are “capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned,” such that the Court could take
judicial notice of the report. See Dixon, 994 F.3d at 102 (citations and quotations omitted).
First, the Arrest Report says it “contains sealed information” and “may not be made

available to any person or public or private agency outside the police department.” (Arrest Report,
Dkt. 72-1.) Thus, as in Weaver, “it does not appear that the report of [the] arrest is in fact a public
record.” See Weaver, 2014 WL 950041, at *3.
Second, Defendant Rocke did not rely on the Arrest Report—prepared after the arrest—in
deciding to arrest Plaintiff. Thus, the Report is not a potential source of probable cause—of which
the Court might take judicial notice—but simply one side’s characterization of past events. Even
if the Court could take judicial notice of the Arrest Report, therefore, it may do so “not for the truth
of the facts set forth therein, but [only] for the fact that the document[] existed.” Vasquez, 2000
WL 869492, at *1 n.1. Because Rocke proffers the Arrest Report for the truth of the assertions

therein (see Def. Br., Dkt. 71 at 3 (arguing Rocke had probable cause because “[t]he Arrest Report
indicates that [P]laintiff was ‘refusing to comply with simple police commands,’” etc.)), the Court
declines his request to take judicial notice of the sealed Arrest Report.
Defendant Rocke relies on Vasquez, Obilo v. City Univ. of City of New York, No. 01-CV-
5118 (DGT), 2003 WL 1809471, at *6 (E.D.N.Y. Apr. 7, 2003), and Toliver v. City of New York,
No. 10-CV-3165 (PAC) (JCF), 2012 WL 7782720, at *6 (S.D.N.Y. Dec. 10, 2012), report and
recommendation adopted, 2013 WL 1155293 (S.D.N.Y. Mar. 21, 2013), to argue that the Court
may judicially notice the arrest report to establish the assertions therein. (Def. Br., Dkt. 71, at 2.)
But, as noted, the prevailing view in this Circuit is that courts may take judicial notice of an arrest
report only “for the fact that the document[] existed” and “not for the truth of the facts set forth
therein.” Vazquez, 2000 WL 869492, at *1 n.1. Indeed, the court in Obilo considered an incident
report consistent with this practice, that is, not for the truth of the assertions therein, but because it
was provided to the defendant-officer before the arrest and he “acted reasonably and in good faith
in relying on the information” in determining whether probable cause existed. 2003 WL 1809471,

at *6. Similarly, in Toliver, the magistrate judge took judicial notice of an arrest report to ascertain
the time the plaintiff was arrested, but not for the purpose of determining whether probable cause
existed. 2012 WL 7782720, at *6. By contrast, Rocke proffers the arrest report essentially as
testimony regarding the events he claims gave him probable cause. The Court declines to judicially
notice the document for that purpose. See, e.g., Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)
(“[A] ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to
make findings of fact.”).
Finally, Defendant Rocke asks that “the Court convert his motion to dismiss into a motion
for summary judgment” if it “declines to take judicial notice of the NYPD arrest report.” (Def.

Br., Dkt. 71, at 2 n.1.) Federal Rule of Civil Procedure 12(d) provides: “If, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56” and “[a]ll parties
must be given a reasonable opportunity to present all the material that is pertinent to the motion.”
Palin v. New York Times Co., 940 F.3d 804, 810 (2d Cir. 2019) (quoting Fed. R. Civ. P. 12(d)).
Here, however, the Court finds that “converting this [Rule 12(b)(6)] motion to a motion for
summary judgment under Fed. R. Civ. P. 56 . . . would be premature . . . given the lack of
discovery.” Crews, 2007 WL 4591325, at *6. For example, Plaintiff has had no opportunity to
depose Defendant Rocke or the officer who prepared the Arrest Report on which Rocke relies, or
to otherwise challenge its validity. The Court therefore declines Defendant’s request to treat the
motion to dismiss as a motion for summary judgement without giving the parties the opportunity
to develop a record. Plaintiff’s false arrest claim against Defendant may proceed.
II. Excessive Force
In its July 15, 2019 Order, the Court declined to dismiss Plaintiff’s claim that Defendant

Rocke “used excessive force when handcuffing Plaintiff.” (Dkt. 9, at 19–20.) Rocke now moves
to dismiss that claim under Rule 12(b)(6).
A. Legal Standard
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court “concluded that where a
claim for excessive force ‘arises in the context of an arrest or investigatory stop of a free citizen,
it is most properly characterized as one invoking the protections of the Fourth Amendment.’”
Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019) (quoting Graham, 490 U.S. at 394).
“It is therefore analyzed under the Fourth Amendment’s reasonableness standard, rather than under
the subjective substantive due process approach, which requires consideration of whether the
individual officers acted in good faith or maliciously and sadistically for the very purpose of
causing harm.” Id. (citations and quotations omitted). “Because the right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it, determining whether the amount of force an officer used is reasonable
requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Id. (citation and
quotations omitted).
“The proper application of the reasonableness standard, according to the Graham Court,
‘requires careful attention to the facts and circumstances of each particular case, including’ (1) ‘the
severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of
the officers or others,’ and (3) ‘whether the suspect is actively resisting arrest or attempting to
evade arrest by flight.’” Id. (brackets omitted) (quoting Graham, 490 U.S. at 396). “[T]he
reasonableness inquiry is an objective one.” Id. (citation and quotations omitted). “It requires a
court to view officers’ actions in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation or the 20/20 vision of hindsight.” Id. (citation and

quotations omitted). “Graham thus stands for the proposition that a government officer may not
intrude on a person’s Fourth Amendment rights by employing a degree of force beyond that which
is warranted by the objective circumstances of an arrest.” Id. “[T]he objective reasonableness
standard established in Graham applies to actions taken with respect to a person who asserts . . . a
claim for excessive force after she has been arrested and detained, but prior to the time when she
is arraigned or formally charged, and remains in the custody (sole or joint) of the arresting officer.”
Id. (citation, quotations, and alterations omitted).
“[E]xcessively tight handcuffing that causes injury can constitute excessive force in
violation of the Fourth Amendment . . . .” Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir.

2015) (collecting cases). In considering whether handcuffing an arrestee “constitute[s] excessive
force in violation of the Fourth Amendment,” courts consider whether “(1) the arrestee’s handcuffs
were unreasonably tight; (2) the defendants ignored the arrestee’s pleas that the handcuffs were
too tight; and (3) the degree of injury to the arrestee’s wrists.” Cugini, 941 F.3d at 612 (brackets
omitted) (quoting Esmont, 371 F. Supp. 2d at 215). But although “[t]hese evidentiary factors may,
indeed, prove useful to a district court in assessing the soundness of a handcuffing-based excessive
force claim, . . . [t]he test of reasonableness under the Fourth Amendment . . . is not capable of
precise definition or mechanical application.” Id. at 613 (citation and quotations omitted). “A
court’s reasonableness analysis is not limited to a factual checklist; it must instead be guided by a
careful balance between the nature and quality of the intrusion and the countervailing government
interests at stake under the circumstances.” Id. (citation, quotations, and brackets omitted).
“Thus[,] a plaintiff asserting a claim for excessive force need not always establish that she
alerted an officer to the fact that her handcuffs were too tight or causing pain.” Id. “The question
is more broadly whether an officer reasonably should have known during handcuffing that his use

of force was excessive.” Id. “A plaintiff satisfies this requirement if either the unreasonableness
of the force used was apparent under the circumstances, or the plaintiff signaled her distress,
verbally or otherwise, such that a reasonable officer would have been aware of her pain, or both.”
Id. (citations omitted). “[A]s with all aspects of a Fourth Amendment inquiry, an officer’s
awareness is judged from the perspective of a reasonable officer on the scene.” Id. (citation and
quotations omitted). “[W]here an officer’s use of force in handcuffing is plainly unreasonable
under the circumstances or where a plaintiff manifests clear signs of her distress—verbally or
otherwise—a fact finder may decide that the officer reasonably should have known that his use of
force was excessive for purposes of establishing a Fourth Amendment violation.” Id.

“[T]ight handcuffing does not constitute excessive force unless it causes some injury
beyond temporary discomfort.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d
459, 468 (S.D.N.Y. 2008). “The most common injuries found to satisfy the injury requirement in
handcuff cases are scarring and nerve damage.” Usavage v. Port Auth. of N.Y. & N.J., 932 F.
Supp. 2d 575, 592 (S.D.N.Y. 2013).
B. Plaintiff Adequately Pleads Excessive Force
Based on a consideration of the relevant factors—i.e., whether “(1) [Plaintiff’s] handcuffs
were unreasonably tight; (2) [Defendant Rocke] ignored [her] pleas that the handcuffs were too
tight; and (3) the degree of injury to [Plaintiff’s] wrists,” Cugini, 941 F.3d at 612 (quoting Esmont,
371 F. Supp. 2d at 215)—the Court finds that Plaintiff has plausibly stated an excessive force
claim. Plaintiff alleges that, at her home, Rocke “grabbed [her] and put handcuffs[] on [her] and
he did not put on the safety locks.” (Am. Compl., Dkt. 7, at ECF 66.) She asserts that she later
asked, “[W]hy are these handcuffs so tight[?]” (Id.) Plaintiff alleges that when she was in a
holding cell at the police station, “they tried to remove the handcuff[s],” but “the pain was
unbearable,” so Plaintiff “told them to leave [her] alone.” (Id.) Finally, she alleges that she has

“nerve damage in [her] hands [that] is worst in [her] left hand as [her] thumb has been numb for
about a month.” (Id. at ECF 71.) “[A]ccept[ing] as true all factual allegations and draw[ing] from
them all reasonable inferences,” Rothstein, 708 F.3d at 94, leads the Court to conclude that the
Amended Complaint plausibly pleads that (1) Plaintiff’s handcuffs were so tight they caused her
severe pain, (2) she asked why they were so tight but Defendant Rocke did not respond or remove
them, and (3) she suffered nerve damage as a result of their tightness. Although Plaintiff notes
that a different officer’s act of “pull[ing] [her] backward[] . . . made the handcuffs tighter” (id. at
ECF 66), the Amended Complaint at least plausibly alleges the handcuffs were too tight when
Rocke placed them on her (see id.).

Defendant Rocke argues that the force he used in arresting and handcuffing Plaintiff was
not excessive because (1) Plaintiff’s “active and dangerous obstruction with [his official] function
warranted [her] arrest, and [Rocke] was entitled to use at least some level of force to effectuate
that arrest,” and (2) Plaintiff suffered only “de minimis injuries.” (Def. Br., Dkt. 71, at 4.) But
the Amended Complaint belies both arguments. As noted above, Rocke lacked arguable probable
cause to arrest Plaintiff for obstruction. And “nerve damage” is not a “de minimis” injury. See,
e.g., Usavage, 932 F. Supp. 2d at 592 (“The most common injuries found to satisfy the injury
requirement in handcuff cases are scarring and nerve damage.”). Plaintiff therefore has stated an
excessive force claim against Defendant Rocke.
CONCLUSION
Defendant Jason Rocke’s motion to dismiss is denied. Plaintiff’s claims for false arrest
and excessive force against Defendant Rocke may proceed.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: August 23, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306672. Public record. Not legal advice.