Charles v. Doe 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JENSKY CHARLES, 762-289,

Plaintiff,

MEMORANDUM & ORDER

-against- 21-CV-5422(JS)(JMW)

JOHN DOE #1, Patrol Officer, MTA

Police Department; JOHN DOE #2,

Patrol Officer, MTA Police

Department; JOHN DOE #3, Detective,

MTA Police Department; JANE DOE #1,

Assistant District Attorney; JANE

DOE #2, Senior Parole Officer;

Defendants.

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APPEARANCES

For Plaintiff: Jensky Charles, pro se

762-289

Suffolk County Correctional Facility

110 Center Drive

Riverhead, New York 11901

For Defendants: No Appearances.

SEYBERT, District Judge:

On or around September 29, 2021, pro se plaintiff Jensky

Charles (“Plaintiff”) commenced this action while incarcerated by

filing a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”)

against five John and Jane Doe defendants: (1) two patrol officers

(John Doe #1 and John Doe #2) and a detective (John Doe #3) employed

by the “M.T.A. Police Department” (collectively, the “Officer

Defendants”); (2) a Suffolk County Assistant District Attorney

(Jane Doe #1); and (3) a senior parole officer (Jane Doe #2).

(Compl., ECF No. 1.) Together with his Complaint, Plaintiff filed

an application to proceed in forma pauperis (“IFP”) and a Prisoner

Authorization form pursuant to the Prison Litigation Reform Act

(“PLRA”). (IFP App., ECF No. 2; PLRA Form, ECF No. 3.)

For the reasons that follow, Plaintiff’s IFP application

is GRANTED; however, his official capacity claims against Jane

Doe #1 and Jane Doe #2 are DISMISSED WITH PREJUDICE pursuant to

28 U.S.C. §§ 1915(e)(2)(b); 1915A(b). Plaintiff’s remaining

claims for malicious prosecution, false arrest, unreasonable

search and seizure, and excessive force are DISMISSED WITHOUT

PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b); 1915A(b). In

light of the fact that the state criminal prosecution against

Plaintiff remains ongoing, this case is ADMINISTRATIVELY CLOSED.

Plaintiff is GRANTED leave to move to reopen this case within

thirty (30) days of the conclusion of the underlying criminal

matter. Plaintiff is also GRANTED leave to file an Amended

Complaint in accordance with this order together with his motion

to reopen this case.

BACKGROUND

Plaintiff utilized the Court’s form complaint for civil

rights actions under Section 1983 and attached additional pages to

elaborate upon his claims. He alleges that, on October 30, 2020

at approximately 12:02 a.m.:

The officers referred to as John Doe #1 [and]

John Doe #2 violated the Plaintiff’s 4th

Amendment Constitutional Rights by ordering

Plaintiff to step out of vehicle, illegally

searched the Plaintiff for “marijuana” [which]

the Plaintiff told the officer he is

prescribed for medical reason [which] the

Plaintiff has proof of and unlawfully arrested

him when officers “unlawfully expanded the

scope of the traffic stop” by ordering the

Plaintiff out of the vehicle for purposes

unrelated to the mission of a lawful traffic

stop. John Doe # 1, John Doe #2 had all

necessary information to complete traffic

stop, instead was bias and profiled the

Plaintiff because of his “parole status”

[which] is insufficient probable cause to step

out the vehicle illegally searching the

Plaintiff without presenting a “consent to

search” forum and a lack of substantial basis

for the search of the Plaintiff and the

vehicle and unlawful arrest of the Plaintiff.

(Compl. at 6-7.)1 According to the Complaint, Plaintiff was pulled

over at 2158 Ocean Avenue, Ronkonkoma, New York for a “traffic

violation of window tints.” (Id. at 6-7.) At the time of the

stop, an unidentified female was a passenger in Plaintiff’s

vehicle. (Id. at 7.) John Doe #1 and John Doe #2 approached

Plaintiff’s vehicle and obtained his driver’s license and

registration. (Id.) Plaintiff alleges that John Doe #2 then told

Plaintiff to “step out of the vehicle” because John Doe #2 did not

want to “embarrass the Plaintiff by asking him about his parole

status in front of the female the Plaintiff was with.” (Id.)

After Plaintiff exited the vehicle, he claims John Doe #2 searched

1 The Court refers to the pagination assigned by the Court’s

Electronic Case Filing system and not the page numbers Plaintiff

wrote on the top of each page.

him without his consent and found marijuana. (Id.) Plaintiff

explained to John Doe #2 that he uses marijuana for medical reasons

and “has proof of his ‘medical license’” for such use. (Id.)

Plaintiff alleges that John Doe #2 disregarded this “proof”

proffered by Plaintiff and then searched his vehicle, finding a

“concealed” weapon inside. (Id.) John Doe #2 then demanded that

Plaintiff turn around; however, Plaintiff ran away because he

suffers from “severe anxiety and PTSD [which] is the reason the

Plaintiff is subscribed marijuana for the medical reason.” (Id.

at 7-8.) John Doe #2 then allegedly tased Plaintiff, causing him

to be hospitalized. (Id. at 8.) While he was hospitalized,

Plaintiff claims that John Doe #3 and John Doe #4 “illegally

searched the trunk of the Plaintiff’s car without any warrants.”

(Id. at 9.) The Court notes that although John Doe #4 is referred

to in the Complaint, he is not a named defendant and does not

appear in the caption. In addition, the Court points out that

Jane Doe #1 and Jane Doe # 2, who are named defendants, are not

mentioned in the body of the Complaint. (See generally Compl.)

As a result of the foregoing, Plaintiff claims that the

John Doe Defendants deprived him of his Fourth Amendment rights by

committing “bias-based” profiling on account of his status as a

parolee and unlawfully arresting him. (Id. at 9.) Plaintiff

alleges that he has been “illegally detained for over 10 months”2

and seeks to recover a damages award in the total sum of $10

million. (Id. at 9-10.) Plaintiff further claims that John Doe #1

and John Doe #2 violated his Fourth Amendment rights because they

(1) did not have probable cause or consent to search Plaintiff’s

vehicle; (2) unlawfully expanded the scope of their traffic stop

“by ordering the Plaintiff out of the vehicle for ‘parole

purpose’”; and (3) searched Plaintiff without probable cause or

his consent. (Id. at 9.) Moreover, Plaintiff claims that John

Doe #3 and John Doe #4 violated his Fourth Amendment rights by

searching the trunk of his vehicle without a warrant. (Id.) In

light of Plaintiff’s pro se status, the Court also construes the

Complaint to assert claims for false arrest, malicious

prosecution, and excessive force, all of which are set forth in

more detail below.

2 According to the information maintained by the New York State

Office of Court Administration on its public website, Plaintiff is

awaiting trial having been indicted and charged with, inter alia,

criminal possession of a weapon in the second degree (loaded

firearm), unlawful possession of marijuana in the first degree,

resisting arrest, unlawful operation of a motor vehicle by an

unlicensed driver, and an infraction for an equipment violation

(safety glass). Plaintiff was remanded having not posted bail.

See https://iapps.courts.state.ny.us/webcrim_attorney/Defendant

Search (last visited Jan. 19, 2022); 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 Giraldo v. Kessler, 694 F.3d 161, 164 (2d

Cir. 2012))).

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

The Court finds that Plaintiff is qualified by his

financial status to commence this action without prepayment of the

filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s

IFP application is GRANTED.

II. Legal Standards

A. Consideration of the Complaint Under 28 U.S.C. § 1915

Section 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) (citation omitted). The

Court is required to dismiss the action as soon as it makes such

a determination. See 28 U.S.C. § 1915A; Avant v. Miranda, No. 21-

CV-0974, 2021 WL 1979077, at *2 (E.D.N.Y. May 18, 2021).

Courts are obligated to construe the pleadings of a pro

se plaintiff liberally and to interpret them to raise the

“strongest [claims] that they suggest.” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation

marks and citations omitted) (emphasis in original).

B. Section 1983

Section 1983 provides that:

Every 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.” Rodriguez v.

Shoprite Supermarket, No. 19-CV-6565, 2020 WL 1875291, at *2

(E.D.N.Y. Apr. 15, 2020) (internal quotation marks and citation

omitted).

III. Application of 28 U.S.C. § 1915

A. Claims Against Jane Doe #1 and Jane Doe #2

1. Personal Involvement

To state a claim for relief under Section 1983 against

an individual defendant, a plaintiff must allege the personal

involvement of the defendant in the alleged constitutional

deprivation. Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).

The Supreme Court held in Iqbal that “[b]ecause vicarious liability

is inapplicable to . . . [Section] 1983 suits, a plaintiff must

plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.”

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A complaint based

upon a violation under Section 1983 that does not allege the

personal involvement of a defendant fails as a matter of law and

should be dismissed. Johnson v. Barney, 360 F. App’x 199, 201 (2d

Cir. 2010).

Here, although named as defendants, neither Jane Doe #1

nor Jane Doe #2 are mentioned in the body of the Complaint. Wholly

absent from the Complaint are any factual allegations concerning

Jane Doe #1 or Jane Doe #2, let alone conduct, inaction, or

personal involvement in the underlying events that is attributable

to either of them. As such, Plaintiff’s claims against Jane Doe #1

and Jane Doe #2 “must be dismissed because Plaintiff does not

allege any facts showing that anything that [they] personally did

or failed to do violated Plaintiff’s rights.” Moultrie v. Wright,

No. 21-CV-3925, 2021 WL 3372031, at *4 (S.D.N.Y. Aug. 3, 2021).

Accordingly, Plaintiff’s claims against Jane Doe #1 and Jane Doe #2

are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§§ 1915(e)(2)(b)(i)-(ii); 1915A(b).

2. The Eleventh Amendment

To the extent Plaintiff seeks to recover a monetary award

against Jane Doe #1 and Jane Doe #2 in their official capacities

as an assistant district attorney and senior parole officer,

respectively, these claims are implausible because these

Defendants are immune from suit under the Eleventh Amendment.

Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984). The Eleventh

Amendment bars suits brought by a state’s own citizens in federal

court. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466

F.3d 232, 236 (2d Cir. 2006). The “Eleventh Amendment . . . bars

[plaintiff] from pursuing a claim for damages against the

individual defendants in their official capacities.” Darcy v.

Lippman, 356 F. App’x 434, 436–37 (2d Cir. 2009); Ying Jing Gan v.

City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (holding when

a district attorney decides whether to prosecute, he or she is

representing the State, not the county, and is, thus, entitled to

invoke Eleventh Amendment immunity); Kalamaras v. N.Y.S. Div. of

Parole, No. 15-CV-3775, 2015 WL 6760330, * 2-3 (E.D.N.Y. Nov. 5,

2015) (finding official capacity damages claims against parole

officer-defendants were barred by the Eleventh Amendment).

Here, because Jane Doe #1 and Jane Doe #2 appear to be

New York State employees sued in their official capacities,

Plaintiff’s claims for damages are barred by the Eleventh

Amendment. Kentucky v. Graham, 473 U.S. 159, 165-67, & n.14 (1985)

(barring suit for damages against state officer in official

capacity pursuant to the Eleventh Amendment). Accordingly, these

claims are thus DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.

§§ 1915(e)(2)(b); 1915A(b).

3. Malicious Prosecution

Even if Plaintiff sufficiently alleged Jane Doe #1’s and

Jane Doe #2’s personal involvement in the ongoing criminal

prosecution, his malicious prosecution claim is premature. To

state a claim for malicious prosecution, a plaintiff must allege

that criminal proceedings were initiated or continued against him,

with malice and without probable cause, and terminated in his

favor. See Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir.

2016); see also Lanning v. City of Glens Falls, 908 F.3d 19, 22

(2d Cir. 2018) (holding that plaintiff must allege facts suggesting

“the underlying criminal proceeding ended in a manner that

affirmatively indicates his innocence”). “Claims of malicious

prosecution accrue when the relevant criminal proceedings

terminate in a plaintiff’s favor.” Lesane v. Doe 1, No. 21-CV-

4746, 2021 WL 3173056, at *3–5 (S.D.N.Y. July 26, 2021) (citing

Bumbury v. City of New York, 62 A.D. 3d 621 (N.Y. App. Div. 1st

Dep’t 2009)).

Here, Plaintiff fails to allege facts that reasonably

suggest a plausible malicious prosecution claim. Given the ongoing

criminal prosecution, Plaintiff has not -- and cannot at this

juncture -- allege that the proceedings ended in a manner that

affirmatively indicates Plaintiff’s innocence. Indeed, a

conviction would be fatal to Plaintiff’s malicious prosecution

claim because the proceedings would not terminate in his favor.

Thus, as is readily apparent, Plaintiff’s malicious prosecution

claim is premature and DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. §§ 1915(e)(2)(B), 1915A(b).3

B. Claims Against the John Doe Defendants

1. False Arrest

Federal claims pursuant to Section 1983 for false arrest

“rest on an individual’s Fourth Amendment right to be ‘free from

unreasonable seizures, including arrest without probable cause,’

and are ‘substantially the same as a claim for false arrest under

New York law.’” Wong v. Yoo, 649 F. Supp. 2d 34, 58 (E.D.N.Y.

2009) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).

3 Though far from clear given the absence of any factual allegations

against Jane Doe #1, insofar as Plaintiff seeks to impose liability

on her for deciding to charge him and for presenting the case to

the Grand Jury, she would be shielded from suit by absolute

prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 430

(1976) (Prosecutors are absolutely immune from civil suits for

acts committed within the scope of their official duties where the

challenged activities are not investigative in nature, but rather

are “intimately associated with the judicial phase of the criminal

process.”); Simon v. City of New York, 727 F.3d 167, 171 (2d Cir.

2013) (The actions for which a prosecutor is entitled to absolute

immunity “include deciding whether to bring charges and presenting

a case to a grand jury or a court.”).

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)); see

also Heyliger v. Peters, 771 F. App’x 96, 97 (2d Cir. 2019)

(summary order) (Since “[a]n arrest is privileged if it is

supported by probable cause,” the existence of probable cause to

arrest “is an absolute defense to a false arrest claim.”).

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, a review of public records maintained by the New

York State Office of Court Administration on its website reflects

that Plaintiff’s most recent appearance relating to his underlying

arrest was January 4, 2022 which was adjourned to February 3, 2022,

and the Court notes that a trial has not yet been scheduled.4 In

light of the fact that Plaintiff’s criminal case is still ongoing,

his false arrest claim is premature at this juncture and must be

dismissed. 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, 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)).

Second, even if the Court were to consider the merits of

Plaintiff’s false arrest claim, it must still be dismissed. As

4 See https://iapps.courts.state.ny.us/webcrim_attorney/Defendant

Search (last visited Jan. 19, 2022).

set forth above, an arrest based upon probable cause is privileged

and a complete defense to a false arrest claim. “[P]robable cause

to arrest exists when the officers 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 arrest has committed or is committing a

crime.” Barnes v. City of New York, 338 F. Supp. 3d 317, 323

(S.D.N.Y. 2018) (quoting Gonzalez v. City of Schenectady, 728 F.

3d 149, 155 (2d Cir. 2013)). “Probable cause can exist even where

it is based on mistaken information, so long as the arresting

officer acted reasonably and in good faith in relying on that

information.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir.

1994) (citation omitted); see also Curley v. Vill. of Suffern, 268

F.3d 65, 70 (2d Cir. 2001).

Here, Plaintiff alleges that the Officer Defendants

searched his vehicle, trunk, and person without probable cause and

without a warrant or his consent. However, Plaintiff’s other

allegations belie Plaintiff’s assertions that he was falsely

arrested. For example, Plaintiff concedes that he was on parole

and initially pulled over due to the window tints on his vehicle.

Moreover, Plaintiff admits that he attempted to flee the scene of

the arrest after John Doe #2 asked him to “turn around.” As such,

Plaintiff’s Complaint does not allege facts showing that the

officers lacked probable cause to arrest him. If anything, it

shows the opposite is true and that the officers acted reasonably

while conducting the arrest. Following the conclusion of

Plaintiff’s criminal proceedings, he may file an Amended Complaint

to include additional allegations to demonstrate that the

underlying arrest was not privileged. Accordingly, Plaintiff’s

false arrest claim is DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. §§ 1915(e)(2)(B), 1915A(b).

2. Unlawful Search and Seizure

The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const. amend.

IV; see Terry v. Ohio, 392 U.S. 1, 9 (1968) (“[W]hat the

Constitution forbids is not all searches and seizures, but

unreasonable searches and seizures.” (citation omitted; internal

quotation marks omitted)). “As a general matter, ‘[t]he

reasonableness of a search depends on the totality of the

circumstances, including the nature and purpose of the search and

the extent to which the search intrudes upon reasonable privacy

expectations.’” United States v. Lambus, 897 F.3d 368, 402 (2d

Cir. 2018) (quoting Grady v. North Carolina, 575 U.S. 306, 310

(2015)).

Generally, a police officer must obtain a warrant from

a judicial officer before conducting a search or a seizure. See

California v. Carney, 471 U.S. 386, 390 (1985); New York v. Belton,

453 U.S. 454, 457 (1981). Although a police officer’s “temporary

detention of a person . . . [after] stop[ping] her vehicle . . .

constitutes a seizure for Fourth Amendment purposes, and thus must

not be unreasonable,” see Gilles v. Repicky, 511 F.3d 239, 244–45

(2d Cir. 2007), officers may stop and detain a motorist when they

have “at least articulable and reasonable suspicion . . . that

either the vehicle or an occupant is . . . subject to seizure for

violation of law.” Delaware v. Prouse, 440 U.S. 648, 663 (1979).

“[A] police officer may as a matter of course, order” a passenger

or a driver out of “a lawfully stopped car.” Maryland v. Wilson,

519 U.S. 408, 410 (1997) (citing Pennsylvania v. Mimms, 434 U.S.

106, 108–09 (1977) (per curiam)).

In addition, individuals on parole, such as Plaintiff,

“can be subjected to burdens upon their privacy that would be

unconstitutional were they applied to the general citizenry, as

long as those burdens are imposed pursuant to a regulation that

satisfies the Fourth Amendment’s reasonableness requirement.”

Frego v. Kelsick, 690 F. App’x 706, 708 (2d Cir. 2017) (summary

order). “[O]nce a police officer has probable cause to effect an

arrest, he has the authority to conduct a search incident to it

regardless of the nature of the offense.” Joyner v. City of Mount

Vernon, No. 09-CV-8982, 2011 WL 3296083, at *4 (S.D.N.Y. July 25,

2011). Relevant to Plaintiff’s claim, a vehicle may be searched

without a warrant in two circumstances. First, under the

“automobile exception,” a law enforcement officer may conduct a

warrantless search of a vehicle where the officer has probable

cause to believe that the vehicle contains contraband. United

States v. Babilonia, 854 F.3d 163, 178 (2d Cir. 2017). Second, an

arresting officer may search a vehicle incidental to a lawful

arrest “when an arrestee is within reaching distance of the vehicle

or it is reasonable to believe the vehicle contains evidence of

the offense of arrest.” Arizona v. Gant, 556 U.S. 332, 346 (2009).

Here, Plaintiff’s Fourth Amendment claims hinge upon the

same probable cause issue as his false arrest claim. Accordingly,

Plaintiff’s claims for unreasonable search and seizure are

DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§§ 1915(e)(2)(b)(i)-(ii); 1915A(b).

3. Excessive Force

“It is well-settled that ‘[t]he right to make a lawful

arrest carries with it the right to use reasonable force to

effectuate that arrest.’” Rizk v. City of New York, 462 F. Supp.

3d 203, 222 (E.D.N.Y. 2020) (quoting Lin v. Cty. of Monroe, 66 F.

Supp. 3d 341, 358 (W.D.N.Y. 2014)). “The fact that a person whom

a police officer attempts to arrest resists, threatens, or assaults

the officer no doubt justifies the officer’s use of some degree of

force, but it does not give the officer license to use force

without limit.” Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d

Cir. 2000). “The force used by the officer must be reasonably

related to the nature of the resistance and the force used,

threatened, or reasonably perceived to be threatened, against the

officer.” Id.

Plaintiff alleges that he was tased by John Doe #2 and

required hospitalization; however, it appears Plaintiff was tased

after attempting to flee the scene of the arrest following the

officers’ discovery of marijuana and a concealed weapon. (See

Compl. at 7-8.) It is “clearly established that an officer’s

significant use of force against an arrestee who was no longer

resisting and who posed no threat to the safety of officers --

whether such force was by pepper spray, taser, or any other similar

use of significant force -- violates the Fourth Amendment.” Scoma

v. City of New York, No. 16-CV-6693, 2021 WL 230295, at *12

(E.D.N.Y. Jan. 22, 2021) (quoting Jones v. Treubig, 963 F.3d 214,

216 (2d Cir. 2020)), report and recommendation adopted, 2021 WL

1784385 (E.D.N.Y. May 4, 2021). The Second Circuit has explained

that “officers may not use a taser against a compliant or non-

threatening suspect.” Muschette on Behalf of A.M. v. Gionfriddo,

910 F.3d 65, 69-70 (2d Cir. 2018) (citing Tracy v. Freshwater,

623 F.3d 96-98 (2d Cir. 2010)). As such, Plaintiff’s excessive

force claim is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§§ 1915(e)(2)(b)(i)-(ii); 1915A(b).

IV. This Action is Administratively Closed Pending the

Resolution of the Underlying Criminal Case

In light of the fact that Plaintiff’s criminal case is

still ongoing, this action is ADMINISTRATIVELY CLOSED pending the

conclusion of the underlying criminal proceeding. Plaintiff is

GRANTED leave to request, in writing, that this case be reopened

within thirty (30) days of the conclusion of his state court

criminal proceeding, if so warranted at that time.

V. Leave to Amend

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); see also Patel v.

NYU Langone Hosps., No. 20-CV-0112, 2021 WL 4852426, at *4 (2d

Cir. Oct. 19, 2021) (absent a finding of futility, a district court

should afford a pro se litigant “at least one opportunity to amend

his complaint to cure its shortcomings”). Therefore, if Plaintiff

timely moves to reopen this case after criminal proceedings are

concluded, he is GRANTED leave to submit an Amended Complaint in

accordance with this Order. See Hall, 2021 WL 826169, at *6.

In his Amended Complaint, Plaintiff must properly name

John Doe #4 as a defendant and provide any available identifying

information concerning John Doe #4 and the other defendants.

Plaintiff shall also allege additional facts regarding his claims

against Jane Doe #1 and Jane Doe #2 to demonstrate their personal

involvement in his claims. Similarly, he must allege additional

facts to suggest that the officers did not have probable cause to

arrest, search, or seize him as well as facts to suggest that the

officers’ use of force was excessive under the circumstances. If

Plaintiff is convicted of the charges for which he was arrested,

he must allege that the conviction or sentence was reversed,

expunged, invalidated, or called into question by a federal court’s

issuance of a writ of habeas corpus to recover damages for his

malicious prosecution and false arrest claims.

The Amended Complaint shall be clearly labeled “Amended

Complaint” and shall bear case number 21-CV-5422(JS)(JMW).

Further, because the Amended Complaint will completely replace the

original Complaint, it must include all factual allegations and

claims that Plaintiff seeks to pursue in this case. Plaintiff

shall include his Amended Complaint together with his letter

requesting that this case be reopened within thirty (30) days after

the conclusion of his state court criminal proceedings.

CONCLUSION

For the reasons stated, IT IS HEREBY ORDERED that

Plaintiff’s IFP application (ECF No. 2) is GRANTED; and

IT IS FURTHER ORDERED that Plaintiff’s official capacity

claims against Jane Doe #1 and Jane Doe #2 are DISMISSED WITH

PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); and

IT IS FURTHER ORDERED that Plaintiff’s remaining claims

are DISMISSED WITHOUT PRJEUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i)-(ii) and 1915A (b)(1); and

IT IS FURTHER ORDERED that this case is ADMINISTRATIVELY

CLOSED pending the resolution of the state criminal prosecution of

Plaintiff; and

IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to

request, in writing, that this case be reopened within thirty (30)

days of the conclusion of his state court criminal prosecution, if

so warranted at that time. PLAINTIFF IS HEREBY ON NOTICE: FAILURE

TO TIMELY MOVE TO REOPEN THIS CASE MAY RESULT IN THE DISMISSAL OF

THIS ACTION; and

IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to

file an Amended Complaint in accordance with the guidance set forth

above. The Amended Complaint shall be filed together with

Plaintiff’s written request to reopen this case, which is to be

accomplished within thirty (30) days of the conclusion of the state

court criminal proceedings; and

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), the Court certifies that any appeal from this Order

would not be in good faith and 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); and

IT IS FURTHER ORDERED that the Clerk of the Court

shall mail a copy of this Order to the pro se Plaintiff at his

address of record and include the notation “Legal Mail” on the

envelope.

SO ORDERED.

_/s/ JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: January 19, 2022

Central Islip, New York