# Charles v. Doe 1

> District Court, E.D. New York · January 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10307368

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 19, 2022
- **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/10307368

## How later opinions describe it (automated extraction)

- holding that plaintiff must allege facts suggesting “the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence”
- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307368. Public record. Not legal advice.