Silas v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

REYNOLD B. SILAS,

Plaintiff, MEMORANDUM & ORDER

18-CV-07122 (HG) (RML)

v.

THE CITY OF NEW YORK, NEW YORK CITY

POLICE DEPARTMENT, DETECTIVE JOHN

DOE, THE CITY OF YONKERS, THE CITY OF

YONKERS POLICE DEPARTMENT,

DETECTIVE CAVE, Individually and in his

Official Capacity, THE HOME DEPOT, INC. d/b/a

HOME DEPOT, and HOME DEPOT U.S.A., INC.

d/b/a HOME DEPOT,

Defendants.

HECTOR GONZALEZ, United States District Judge:

Table of Contents

FACTUAL BACKGROUND ......................................................................................................... 2

PROCEDURAL HISTORY............................................................................................................ 7

DISCUSSION ................................................................................................................................. 9

I. Plaintiff’s Section 1983 Claims Fail .................................................................................... 9

A. Plaintiff’s Section 1983 Claims against the Home Depot Defendants Fail ............ 10

B. Plaintiff’s Section 1983 Claims Against the Yonkers Defendants Fail .................. 11

i. Municipal Liability .......................................................................................... 11

ii. False Arrest and False Imprisonment .............................................................. 12

iii. Malicious Prosecution ..................................................................................... 14

iv. Excessive Force and Police Brutality .............................................................. 16

v. Negligent and Excessive Detention ................................................................. 17

vi. Abuse of Process ............................................................................................. 17

vii. Invasion of Privacy .......................................................................................... 18

viii. Libel and Slander, Negligence, Negligent and Intentional Infliction of

Emotional Distress, Negligent Hiring and Retention, Menacing and

Harassment, and Reckless Disregard ............................................................... 19

II. Plaintiff’s Section 1985 Claims Fail .................................................................................. 20

III. Plaintiff’s Section 1981 Claim Fails .................................................................................. 21

IV. The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff’s New York

Common Law Claims ........................................................................................................ 23

CONCLUSION ............................................................................................................................. 23

Pro se Plaintiff Reynold B. Silas1 filed this action against Defendants the City of

Yonkers, the City of Yonkers Police Department (the “YPD”), YPD Detective William Cave, Jr.

(together, the “Yonkers Defendants”) as well as Home Depot Inc., and Home Depot U.S.A., Inc.

(together, the “Home Depot Defendants”) (collectively, “Defendants”) alleging several causes of

action, including, among other things, negligent and excessive detention, negligent and

intentional infliction of emotional distress, excessive force, and municipal liability, in violation

of Plaintiff’s constitutional rights and civil rights under the Constitution of New York, the

Constitution of the United States, as well as 42 U.S.C. §§ 1981, 1983, 1985 and 28 U.S.C. §

1343. ECF No. 1-1 at 6–7 (Complaint).2

Presently before the Court are the separate motions for summary judgment of the

Yonkers Defendants and the Home Depot Defendants. ECF Nos. 55, 58. For the reasons set

forth below, the Court grants Defendants’ motions for summary judgment.

FACTUAL BACKGROUND3

On December 23, 2015, Plaintiff went to the Home Depot store located at 601 Sprain

Road, Yonkers, New York. ECF No. 58-2 ¶ 1 (Home Depot Defendants’ Rule 56.1 Statement of

1 Plaintiff was represented by counsel at the time he initiated the action on November 2,

2018. See ECF No. 1-1 at 17 (Signature Page of Complaint). Plaintiff’s former counsel filed a

motion to withdraw on April 22, 2022. ECF No. 50. After providing Plaintiff with an

opportunity to object to the withdrawal, on June 9, 2022, the Court granted counsel’s motion to

withdraw. Following the Court’s orders directing Plaintiff to clarify whether he intended to

obtain new counsel, on August 11, 2023, Plaintiff filed a letter informing the Court that he

intended to proceed pro se. ECF No. 53.

2 Defendants the City of New York, the New York City Police Department and Detective

John Doe were terminated from the action on June 27, 2019, by joint stipulation. ECF No. 19

(Stipulation and Order of Dismissal).

3 Plaintiff did not submit a counterstatement to Defendants’ 56.1 statements of fact. The

Court will treat the facts asserted in Defendants’ 56.1 statements as undisputed to the extent they

2

Undisputed Material Facts). Plaintiff contends he was at the store “to get a price on . . .

materials” because he was “supposed to do a [job] close to that area.” ECF No. 58-3 at 6

(Plaintiff Deposition Transcript). Defendants contend Plaintiff “fraudulently opened a credit line

in the name of non-party Michael Hazan[] . . . without his consent and used the same to purchase

$8,932.54 worth of flooring.” ECF No. 58-2 ¶ 2. A Home Depot customer order specialist,

Ronya Ahmed, and her colleague helped Plaintiff open the Home Depot credit line and verified

the credit card and ID used in the transaction. ECF No. 55-5 at 12–13 (Ahmed Deposition

Transcript). Ms. Ahmed recalled that the name on the ID was “Michael.” Id.

As Home Depot employees were gathering the flooring Plaintiff purchased and putting

together the order, but while Plaintiff was still in the store, Mr. Hazan received an email

notification of the purchase. ECF No. 58-2 ¶ 3; ECF No. 58-10 at 2 (Email from Home Depot to

Mr. Hazan dated December 23, 2015). Mr. Hazan immediately called Home Depot to alert them

of the fraudulent purchase, and spoke with Ms. Ahmed. ECF No. 58-2 ¶ 4; ECF No. 55-5 at 5

(Ahmed Deposition Transcript) (“[I]n the middle of [the purchase] a customer called the store. . .

. [T]he customer we were ringing up was the same customer on the phone complaining to me,

are supported by record evidence, and Plaintiff’s submissions do not contradict them. See

Brandever v. Port Imperial Ferry Corp., No. 13-cv-2813, 2014 WL 1053774, at *3 (S.D.N.Y.

Mar. 13, 2014) (“The law is clear that a nonmoving party’s failure to respond to a Rule 56.1

statement permits the court to conclude that the facts asserted in the statement are uncontested

and admissible. A pro se litigant is not excused from this rule.”). Here, the Court ordered

Defendants to file their motions for summary judgment with statements notifying Plaintiff of the

potential consequences of failure to respond, as required by Local Civil Rule 56.2. See Text

Order dated November 2, 2022; see also ECF No. 62 (Yonkers Defendants’ Certificate of

Service); ECF No. 64 (Home Depot Defendants’ Local Civil Rule 56.2 Notice and Certificate of

Service ). Despite this notice, Plaintiff failed to submit responses to Defendants’ 56.1

statements. Accordingly, the Court may consider the facts in Defendants’ 56.1 statements as

uncontested and admissible. See Berry v. Marchinkowski, 137 F. Supp. 3d 495, 502 n.1.

(S.D.N.Y. 2015).

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yelling to me, saying he’s never been to Yonkers and why did someone open up a credit card of

$9,000.”). Ms. Ahmed then “went to the other side [of the Home Depot store], [] called her

manager” and “went around the corner to make sure that the flooring didn’t leave the store.”

ECF No. 55-5 at 14 (Ahmed Deposition Transcript). Because the customer who made the

fraudulent transaction was still in the store, a Home Depot security guard decided to call the

YPD. ECF No. 56 ¶ 1 (Yonkers Defendants’ Rule 56.1 Statement of Undisputed Facts); ECF

No. 58-2 ¶ 5; ECF No. 58-5 at 5 (Hazan Deposition Transcript) (“Q. And eventually . . . the

decision was made during that . . . call . . . because the person who had used your name to

purchase materials in Home Depot that day, was still shopping in the store to call the police; is

that correct? A. That’s right, yes.”).

The Home Depot security guard told the YPD dispatcher that the customer who

completed the fraudulent transaction “was a black male with hair braids, who was wearing a

green sweatshirt, jeans and a black hat.” ECF No. 56 ¶ 4. When the YPD officers arrived at the

store they observed a black male wearing a green sweatshirt—later identified as Plaintiff—by the

door and asked the security guard to confirm whether he was the individual who had completed

the fraudulent transaction. Id. ¶ 9; ECF No. 58-2 ¶ 6. After the security guard confirmed

Plaintiff’s identity, one of the YPD officers approached Plaintiff and observed him throw

paperwork to the ground. ECF No. 56 ¶¶ 10–11; ECF No. 58-2 ¶ 7. The officer “recovered the

paperwork that Plaintiff threw to the ground, observed the paperwork to be a temporary credit

account in the name of Mr. Hazan . . . and [placed Plaintiff in custody] without incident.” ECF

No. 56 ¶ 12; ECF No. 58-2 ¶ 8. The officers also spoke with Ms. Ahmed, who identified

Plaintiff as the credit applicant. ECF No. 56 ¶ 13.

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The officers transported Plaintiff to the YPD Detective Division. Id. ¶ 15–19. There,

Detective Cave and his colleague attempted to speak to Plaintiff, but terminated the interview

when he requested an attorney. Id. ¶ 20. Ms. Ahmed was unable to go to the YPD Detective

Division that day to give a written statement. Id. ¶ 23. Without a statement from her or the

victim’s statement, Detective Cave released Plaintiff, but continued the investigation. Id. ¶ 24.

On December 25, 2015, two days after the incident, Mr. Hazan went to the YPD

Detective Division to provide a statement and stated that he had never been to the Home Depot

in Yonkers and did “not open and/or authorize anyone to open/use a Home Depot credit account

in his name.” Id. ¶¶ 25–28, 32–33; ECF No. 58-2 ¶ 11. Mr. Hazan further stated that he did not

know Plaintiff and wished to file formal charges against him. ECF No. 56 ¶¶ 30–31.

On February 8, 2016, Detective Cave met with Ms. Ahmed, and she positively identified

Plaintiff in a photographic array as “the male she assisted with opening a Home Depot credit

account on December 23, 2015.” Id. ¶¶ 36–37. Detective Cave also showed Ms. Ahmed the

credit card account paperwork recovered on the scene, and Ms. Ahmed “confirmed that the

paperwork was, in fact, the paperwork she provided to Plaintiff when Plaintiff opened a credit

account in Mr. Hazan’s name and purchased . . . [the] flooring material on December 23, 2015.”

Id. ¶ 38; ECF No. 58-2 ¶ 15.

On March 31, 2016, Detective Cave presented his investigation to Assistant District

Attorney (“ADA”) Jonathan Strongin, who authorized Plaintiff’s arrest on one count of identity

theft in the first degree in violation of Penal Law § 190.80(2). ECF No. 56 ¶¶ 40, 43–44; ECF

No. 58-2 ¶ 16. On April 15, 2016, Detective Cave and ADA Darcy Rydlun called Plaintiff,

informed him that formal charges were being filed, and asked that he surrender himself. ECF

No. 56 ¶ 41–42; ECF No. 58-2 ¶ 17. Plaintiff responded that he would surrender the following

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week, but failed to do so. Id. On April 29, 2016, upon the application of Detective Cave and the

Westchester County District Attorney’s Office, a judge of the City of Yonkers Court issued a

felony arrest warrant for Plaintiff. ECF No. 56 ¶¶ 42–44.

On July 18, 2017, approximately 18 months after the incident at Home Depot, New York

Police Department (“NYPD”) officers pulled Plaintiff over for a traffic infraction. ECF No. 56 ¶

45; ECF No. 58-2 ¶ 18. During the course of the traffic stop, officers determined that there was

an outstanding warrant for Plaintiff and placed him under arrest. ECF No. 56 ¶¶ 46–47; ECF

No. 58-2 ¶ 18. Two days later, the YPD executed the arrest warrant and transferred Plaintiff to

YPD Central Booking. ECF No. 56 ¶¶ 48–49; ECF No. 58-2 ¶ 19. Thereafter, Plaintiff was

taken to the Westchester County Detention Center where he remained for two weeks until he

posted bail. ECF No. 56 ¶ 52; ECF No. 58-2 ¶ 20.4

On August 7, 2017, “in lieu of conducting a felony hearing for the charge of identity theft

in the first degree against Plaintiff, the Westchester County District Attorney’s Office charged

Plaintiff [in] a superseding misdemeanor information” with one count of identity theft in the

third degree, in violation of Penal Law § 190.78(1), and one count of attempted grand larceny in

the fourth degree, in violation of Penal Law § 155.30(1). ECF No. 56 ¶ 53.

4 While in custody at the Westchester County Detention Center, “Plaintiff was placed on a

‘MEDICAL KEEP LOCK’ by a licensed practical nurse from July 23, 2017, through July 27,

2017,” because he was allegedly incorrectly diagnosed with tuberculosis. ECF No. 56 ¶ 51; see

also ECF No. 55-13 at 4 (Westchester County Dept. of Correction Inmate Admission Form)

(“Due to an increased risk for Tuberculosis . . . the Department of Correction has established a

testing program for this disease.”).

6

On February 8, 2018, the day Plaintiff’s criminal case was scheduled for trial, the DA’s

Office withdrew the charges because the witnesses needed for trial were not available. ECF No.

56 ¶¶ 54–55; ECF No. 58-2 ¶ 21.5

PROCEDURAL HISTORY

On November 2, 2018, Plaintiff filed a complaint against Defendants in the Supreme

Court of the State of New York, County of Kings. ECF No. 1-1 at 7. On December 14, 2018,

the Home Depot Defendants removed the action to this District with the consent of the Yonkers

Defendants. ECF No. 1.

On September 29, 2022, the Yonkers Defendants and the Home Depot Defendants each

filed motions for summary judgment. ECF Nos. 55, 58. On October 28, 2022, Plaintiff filed his

opposition to the Yonkers Defendants’ motion. ECF No. 61. On November 2, 2022, the Court

ordered Defendants to serve their motions for summary judgment on Plaintiff with the “Notice to

Pro Se Litigant Who Opposes Summary Judgment” required by Local Civil Rule 56.2 and

provided Plaintiff with additional time to file supplemental responses.6 On December 12, 2022,

Plaintiff filed his opposition to the Home Depot Defendants’ motion. ECF No. 66. On

5 While Plaintiff contends that he was “found not guilty,” he does not introduce any

evidence to that effect or oppose Defendants’ 56.1 Statements of Material Facts. ECF No. 61 at

1; see also ECF No. 55-16 at 3–4 (City Court of Yonkers Hearing Transcript dated February 5,

2018) (“Judge, People are not going to be able to go forward with this trial. Some of our

necessary witnesses from the Yonkers Home Depot store are no longer available . . . . [S]o at

this time we make a motion to dismiss. . . . THE COURT: Okay. The matter is marked

withdrawn.”).

6 Defendants served their Local Civil Rule 56.2 notices on Plaintiff on November 3, 2022,

and November 7, 2022. See ECF No. 62 (Yonkers Defendants Certificate of Service); ECF No.

63 (Yonkers Defendants Local Civil Rule 56.2 Notice); ECF No. 64 (Home Depot Defendants

Local Civil Rule 56.2 Notice and Certificate of Service).

7

December 22, 2022, the Yonkers Defendants and the Home Depot Defendants each filed their

replies. ECF Nos. 67, 68.

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In other words, a court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).7 The

moving party has the burden of demonstrating that there is no genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Where the moving party demonstrates the

absence of a genuine issue of material fact, the opposing party must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly &

Co., 654 F.3d 347, 358 (2d Cir. 2011).

In deciding a summary judgment motion, any ambiguities and inferences drawn from the

facts must be viewed in the light most favorable to the nonmoving party. LaFond v. Gen.

Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). Additionally, “it is well established that a

court is ordinarily obligated to afford a special solicitude to pro se litigants, particularly where

motions for summary judgment are concerned.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir.

2016). This means that the Court must “liberally construe pleadings and briefs submitted by pro

se litigants, reading such submissions to raise the strongest arguments they suggest.” Id. at

7 Unless noted, case law quotations in this Order accept all alterations and omit all internal

quotation marks, citations, and footnotes.

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56. However, although “courts must refrain from assessing competing evidence in the summary

judgment record and avoid making credibility judgments,” even a pro se plaintiff must defeat

summary judgment by putting forth “evidence on which the jury could reasonably find for the

non-moving party.” Saeli v. Chautauqua Cty., 36 F.4th 445, 456 (2d Cir. 2022) (emphasis in

original) (affirming summary judgment dismissing complaint brought by pro se plaintiff).

DISCUSSION

As discussed previously, Plaintiff asserts several causes of action including claims for

“false arrest, false imprisonment, negligent detention, excessive detention, negligent infliction of

emotional distress, intentional infliction of emotional distress, battery, menacing, harassment,

excessive force, police brutality, negligent hiring/training/retention, negligence, gross

negligence, reckless disregard, abuse of process, municipal liability, malicious prosecution”

against Defendants in alleged violation of 42 U.S.C. §§ 1981, 1983, 1985, 28 U.S.C. § 1343, and

New York common law. ECF No. 1-1 at 7. The Court addresses each claim in turn.

I. Plaintiff’s Section 1983 Claims Fail

Section 1983 provides, in relevant part, that: “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.

§ 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating

federal rights elsewhere conferred by those parts of the United States Constitution and federal

statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Cornejo v.

Bell, 592 F.3d 121, 127 (2d Cir. 2010). To state a claim under Section 1983, a plaintiff must

allege two essential elements: “(1) that the defendants deprived him of a right secured by the

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Constitution or laws of the United States; and (2) that they did so under color of state law.”

Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001).

A. Plaintiff’s Section 1983 Claims against the Home Depot Defendants Fail

The Constitution regulates only the conduct of government actors and not that of private

parties. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Private conduct,

no matter how discriminatory or wrongful, is generally beyond the reach of Section 1983. See

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); see also Baez v. JetBlue Airways,

745 F. Supp. 2d 214, 221 (E.D.N.Y. 2010) (“There must be such a close nexus between the State

and the challenged private action that seemingly private behavior may be fairly treated as that of

the State itself.”).

For Plaintiff to succeed on his Section 1983 complaint against a non-state actor, he must

first establish that the conduct of that defendant is “fairly attributable to the State.” Sullivan, 526

U.S. at 50. In other words, for Plaintiff to show that his constitutional rights have been violated,

he must first establish that the challenged conduct constitutes “state action.” See Ciambriello,

292 F.3d at 323. Plaintiff’s Section 1983 claims against the Home Depot Defendants fail

because Plaintiff has not plausibly pled that they were acting under the color of state law.

Azkour v. Bowery Residents Comm., Inc., 646 F. App’x 40, 41 (2d Cir. 2016) (affirming

dismissal of Section 1983 claim because defendant was a private entity, not a state actor).

Plaintiff seemingly argues that the Home Depot Defendants acted under the color of state law

because they wrongfully identified him as the individual who committed the fraudulent

transaction. See ECF No. 66 at 3 (“I was wrongfully accused of a crime that I didn’t commit . . .

. I had no knowledge of the crime that was committed until my arrest.”). Even if Plaintiff was

correct that the Home Depot Defendants wrongfully identified him as the individual who

10

committed the fraudulent transaction, “providing false information to the police does not make a

private individual a state actor and liable under § 1983.” Baez, 745 F. Supp. 2d at 221.

B. Plaintiff’s Section 1983 Claims Against the Yonkers Defendants Fail

Plaintiff brings Section 1983 claims against the City of Yonkers, the YPD and Detective

Cave. However, the City of Yonkers and the YPD “are not liable under section 1983 for any

deprivations of [Plaintiff’s] constitutional rights unless such deprivations resulted from acts

pursuant to an official municipal policy or custom.” See Carlisle v. City of Yonkers, No. 94-cv-

2945, 1996 WL 164697, at *1 (S.D.N.Y. Apr. 9, 1996), rev’d on other grounds, 104 F.3d 352

(2d Cir. 1996) (affirming in part and remanding in part and finding that the district court should

not have dismissed plaintiff’s claims with prejudice in light of plaintiff’s request to amend his

complaint at an earlier stage in the action). Accordingly, the Court considers whether Plaintiff

sufficiently asserts a claim for municipal liability against the City of Yonkers and the YPD, and

considers whether Plaintiff sufficiently asserts causes of action against Detective Cave for the

remainder of his Section 1983 claims.

i. Municipal Liability

A plaintiff asserting a claim pursuant to Section 1983 against a municipality, such as the

City of Yonkers, or a municipal agency, such as the YPD, must allege “challenged conduct” that

was done “pursuant to official municipal policy or a decision by a municipal policymaker that

violates federal law,” as required by the U.S. Supreme Court’s decision in Monell v. Department

of Social Services, 436 U.S. 658 (1978), and its progeny. Rodrigues v. City of New York, 835 F.

App’x 615, 618 (2d Cir. 2020) (affirming dismissal of municipal liability claim brought by pro

se plaintiff). Even if a plaintiff alleges that a municipal custom or policy caused purported

constitutional violations, “[t]he mere assertion that a municipality has such a custom or policy is

11

insufficient in the absence of allegations of fact tending to support, at least circumstantially, such

an inference.” Cotto v. City of New York, 803 F. App’x 500, 503 (2d Cir. 2020) (affirming

dismissal of municipal liability claim brought by pro se plaintiff). The Court grants summary

judgment in favor of the City of Yonkers and YPD because Plaintiff does not even allege that a

City of Yonkers or YPD policy existed or played a role in the denial of the constitutional rights

that he invokes. See generally ECF No. 1-1.

ii. False Arrest and False Imprisonment

Federal courts look to state law when considering federal civil rights claims for false

arrest and false imprisonment. See Guan v. City of New York, 37 F.4th 797, 804 (2d Cir. 2022).

Under New York law, there is no distinction between false arrest and false imprisonment. See

Rhodes v. United States, 519 F. App’x 703, 705 (2d Cir. 2013); Liranzo v. United States, 690

F.3d 78, 91 n.13 (2d Cir. 2012). To state a claim for false arrest under New York law, “a

plaintiff must show that: (1) the defendant intentionally confined 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 justified.” Douglas v. City of New York, 595 F. Supp. 2d 333,

340 (S.D.N.Y. 2009).

The existence of probable cause is “a complete defense to an action for false arrest,

whether that action is brought under state law or under § 1983.” Weyant v. Okst, 101 F.3d 845,

852 (2d Cir. 1996). “[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 arrested has committed or is

committing a crime.” Id.

12

Here, Plaintiff was arrested on July 18, 2017, when he was pulled over by the NYPD for

a traffic violation and the arresting officer became aware of an outstanding arrest warrant. ECF

No. 56 ¶ 45. The parties do not dispute that the “NYPD checked Plaintiff’s identification and

discovered that he was wanted by [the] YPD under [a felony arrest warrant] for identity theft in

the first degree.” Id. ¶ 47. The felony arrest warrant was obtained after an investigation

conducted by Detective Cave, with authorization of the Westchester County District Attorney’s

Office, and was ultimately issued by a judge of the City of Yonkers Court. Id. ¶¶ 42–44.

In light of the circumstances and the facts available to Detective Cave, the Court finds

that there was probable cause to arrest Plaintiff. See Aponte v. Kanbur, No. 20-cv-624, 2021 WL

3854069, at *4 (2d Cir. Aug. 30, 2021) (finding that “in the context of a false arrest claim, the

existence of a valid arrest warrant” supports probable cause “because arrests pursuant to a

warrant . . . are generally presumed to be reasonable given that warrants cannot be issued absent

probable cause”); Phillips v. DeAngelis, 571 F. Supp. 2d 347, 353 (N.D.N.Y. 2008) (“Since

[plaintiff] was arrested pursuant to an arrest warrant, his false arrest claim cannot lie. While

plaintiff[] contend[s] that the arrest warrant was issued without probable cause, it was facially

valid, which means that a malicious prosecution claim, not a false arrest claim, is the proper

vehicle for relief.”). Because probable cause is a complete defense to an action for false arrest,

Plaintiff’s claim fails, and Detective Cave is entitled to summary judgment. See Weyant, 101

F.3d at 852; see also Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007) (“[I]f, when the

facts are construed in favor of the plaintiff, the officer’s probable cause determination was

objectively reasonable, the court under New York law should dismiss the plaintiff’s false arrest

claim at the summary judgment stage.”).

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iii. Malicious Prosecution

“To prevail on a malicious prosecution claim under federal law, a plaintiff must show:

(1) the commencement or continuation of a criminal proceeding by the defendant against the

plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of

probable cause for the criminal proceeding, and (4) actual malice. Thompson v. Clark, No. 14-

cv-7349, 2023 WL 3570658, at *4 (E.D.N.Y. May 18, 2023). Under federal law, Plaintiff “must

[also] demonstrate a sufficient post-arraignment liberty restraint.” Id.

Probable cause, in the context of malicious prosecution, has been described as such

facts and circumstances as would lead a reasonably prudent person to believe the

plaintiff guilty. This is a slightly higher standard than the probable cause required

to defeat a false arrest claim under Section 1983, which only requires the arresting

officer to have knowledge or reasonably trustworthy information of facts and

circumstances that are sufficient to warrant a person of reasonable caution in the

belief that the person to be arrested has committed or is committing a crime. For a

defendant successfully to invoke probable cause to defeat a claim for malicious

prosecution, probable cause must be shown as to each crime charged in the

underlying criminal action.

Id. at *4–5. However, probable cause is “an absolute defense” to a malicious prosecution claim.

Maron v. Cnty. of Albany, 166 F. App’x 540, 541 (2d Cir. 2006).

Plaintiff was arrested for allegedly committing identity theft in the first degree, in

violation of Penal Law § 190.80(2). He was ultimately prosecuted for identity theft in the third

degree, in violation of Penal Law § 190.78(1), and attempted grand larceny in the fourth degree,

in violation of Penal Law § 155.30(1). ECF No. 56 ¶¶ 44, 47, 49. Section 190.78(1) states in

relevant part,

A person is guilty of identity theft in the third degree when he or she knowingly

and with intent to defraud assumes the identity of another person by presenting

himself or herself as that other person, or by acting as that other person or by using

personal identifying information of that other person, and thereby . . . obtains goods,

14

money, property or services or uses credit in the name of such other person or

causes financial loss to such person or to another person or persons;

Section 155.30(1) states in relevant part, “[a] person is guilty of grand larceny in the fourth

degree when he steals property and when . . . the value of the property exceeds one thousand

dollars.”

Detective Cave’s investigation revealed that: (i) eyewitnesses identified Plaintiff as the

customer who initiated a fraudulent transaction on the day of the incident; (ii) an officer

observed Plaintiff throw credit application paperwork on the ground with the victim’s name on

it; (iii) the victim provided a statement and evidence that he did not open and/or authorize

anyone to open or use a Home Depot credit account in his name; (iv) that a purchase of

$8,932.54 was made using the victim’s identity; and (v) an eyewitness identified Plaintiff in a

photographic array as the customer who initiated the fraudulent transaction. ECF No. 56 ¶¶ 10–

11, 13, 25–28, 30–33, 36–38; ECF No. 58-2 ¶¶ 7–8, 11, 15. The Court finds that these “facts and

circumstances . . . would lead a reasonably prudent person to believe the plaintiff guilty.” Kee,

12 F.4th 150 at 166; see also Johnson v. Constantellis, 221 F. App’x 48, 50 (2d Cir. 2007) (“If

probable cause existed at the time of arrest, it continues to exist at the time of prosecution unless

determined by the discovery of some intervening fact.”). Accordingly, the Court concludes that

there was probable cause to prosecute Plaintiff for identity theft in the third degree and attempted

grand larceny in the fourth degree.

Moreover, Plaintiff cannot satisfy the malice prong of his malicious prosecution claim.

“The Second Circuit denies malicious prosecution claims against police officers unless the

plaintiff can establish that the indictment was produced by fraud, perjury, the suppression of

evidence or other police conduct undertaken in bad faith.” Wilson v. McMullen, No. 07-cv-948,

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2010 WL 1268055, at *6 (E.D.N.Y. Mar. 30, 2010). Plaintiff provides no evidence that

Detective Cave’s involvement in the subsequent prosecution was motivated by malice.

iv. Excessive Force and Police Brutality8

“The Fourth Amendment protects individuals from the government’s use of excessive

force when detaining or arresting individuals. A police officer’s use of force is excessive in

violation of the Fourth Amendment if it is objectively unreasonable in light of the facts and

circumstances confronting him, without regard to his underlying intent or motivation.” Lawson

v. Cnty. of Suffolk, 920 F. Supp. 2d. 332, 339 (E.D.N.Y. 2013). “Summary judgment is

appropriate where . . . the record is devoid of evidence of any kind supporting [Plaintiff’s]

description of his injuries—other than his own claims.” Smith v. City of New York, No. 18-cv-

5079, 2021 WL 4267525, at *7 (S.D.N.Y. Sept. 20, 2021). Nothing in Plaintiff’s complaint

suggests that Detective Cave or any other member of the YPD used excessive force to place

Plaintiff in custody on December 23, 2015, or during Plaintiff’s arrest on July 18, 2017, other

than Plaintiff’s “own bare assertions” that he suffered “pain” and “physical injury.” Id. at *7;

ECF No. 1-1 at 11. Accordingly, on the record before it, the Court finds that there are no

genuine issues of material fact, and that Detective Cave is therefore entitled to summary

judgment on Plaintiff’s excessive force claim.

8 While Plaintiff raises police brutality as a separate claim, the Court finds that Plaintiff’s

excessive force and police brutality claims are essentially the same. “Therefore, it is reasonable

to treat . . . [P]laintiff’s police brutality claim as subsumed within his excessive-force claim.”

Smith v. New York City Police Dept., No. 06-cv-15436, 2010 WL 423039, at *3 n.2 (S.D.N.Y.

Feb. 4, 2010).

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v. Negligent and Excessive Detention

Plaintiff generally asserts an excessive detention claim against Detective Cave. ECF No.

1-1 at 7. To prevail on an excessive detention claim, “a plaintiff must demonstrate (1) that he

has a right to be free from continued detention stemming from law enforcement officials’

mishandling or suppression of exculpatory evidence, (2) that the actions of the officers violated

that right, and (3) that the officers’ conduct shocks the conscience.” Nzegwu v. Friedman, 605 F.

App’x 27, 32 (2d Cir. 2015). Here, Plaintiff alleges that following his arrest on July 18, 2017, he

“was held against [his] will, mistreated and put into solitary confinement for a few days.” ECF

No. 61 at 1 (Opposition to Yonkers’ Defendants Motion for Summary Judgment). As an initial

matter, Detective Cave cannot be held liable for excessive detention because Plaintiff was

arrested pursuant to a warrant. See Caravalho v. City of New York, 732 F. App’x 18, 23 (2d Cir.

2018) (“A claim for excessive detention is governed by the Fourth Amendment, which requires a

prompt judicial determination of probable cause as a prerequisite to an extended pretrial

detention following a warrantless arrest.”).

Moreover, without proof of suppression or mishandling of evidence, the Court “need not

even reach the question of whether [Detective Cave’s] behavior shocks the conscience or

whether the evidence was exculpatory or not.” Nzegwu, 605 F. App’x at 32. Given that there is

no allegation that “evidence was tampered with, lost, tainted, or concealed, and no allegation

supported by record evidence that any evidence was withheld” by Detective Cave, summary

judgment is granted as to Plaintiff’s excessive detention claim. Id.

vi. Abuse of Process

“[U]nder § 1983, an abuse of process claim in New York lies against a defendant who (1)

employs regularly issued legal process to compel performance or forbearance of some act (2)

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with intent to do harm without excuse or justification, and (3) in order to obtain a collateral

objective that is outside the legitimate ends of the process.” Coleman v. City of New York, 585 F.

App’x 787, 788 (2d Cir. 2014). “[I]t is not sufficient for a plaintiff to allege that the defendants

were seeking to retaliate against him by pursuing his arrest and prosecution. Instead, he must

claim that they aimed to achieve a collateral purpose beyond or in addition to his criminal

prosecution.” Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003). Here, Plaintiff merely

alleges in conclusory fashion that he was “wrongfully accused of a crime that [he] did not

commit.” ECF No. 61 at 1 (Plaintiff’s Opposition to Yonkers’ Defendants Motion for Summary

Judgment). “[W]ithout an allegation that the process has been improperly perverted after its

issuance,” “i.e., that the perverted operation of the process itself tended to effect the defendants’

malicious objectives,” Plaintiff’s abuse of process claim must be dismissed. See Jones v.

Maples/Trump, No. 98-cv-7132, 2002 WL 287752, at *7–8 (S.D.N.Y. Feb. 26, 2002) (emphasis

added), aff’d, 71 F. App’x 873 (2d Cir. 2003). There is no evidence that Detective Cave used the

prosecution of Plaintiff for any collateral purpose. Given the Court’s finding that there was

probable cause to arrest and prosecute Plaintiff, see supra sections I.B.ii and I.B.iii, the Court

grants summary judgment in favor of Detective Cave on Plaintiff’s abuse of process claim.

vii. Invasion of Privacy

Plaintiff further alleges that Detective Cave’s actions “constituted an invasion of privacy”

without specifying whether he is referring to the common law tort or a federal constitutional

right to privacy. ECF No. 1-1 at 14. “A common law tort does not give rise to a § 1983 action

unless the commission of the tort also violates a right guaranteed plaintiff under the Constitution

or federal statute.” Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir. 1995). To the extent that

Plaintiff is alleging a violation of his constitutional right to privacy under the Constitution or

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another federal statute, the Court finds that Plaintiff has offered no factual or legal support to

sustain such a claim in his complaint or oppositions to the Yonkers Defendants’ and the Home

Depot Defendants’ motions for summary judgment. Accordingly, the Court grants summary

judgment in favor of Detective Cave because there is no genuine issue of material fact given that

Plaintiff fails to state a claim.

viii. Libel and Slander, Negligence, Negligent and Intentional Infliction of Emotional

Distress, Negligent Hiring and Retention, Menacing and Harassment, and Reckless

Disregard

Plaintiff generally asserts in wholly conclusory fashion additional claims for libel and

slander, negligent infliction of emotional distress, intentional infliction of emotional distress,

battery, menacing and harassment, negligent hiring/training/retention, negligence, and reckless

disregard against Detective Cave in alleged violation of Section 1983. ECF No. 1-1 at 7, 16.

However, none of these claims are federally recognizable under Section 1983 and are therefore

dismissed. See, e.g., Smith v. Town of Lewiston, No. 18-cv-1069, 2020 WL 5237924, at *11

(W.D.N.Y. July 30, 2020) (“It is settled, however, that a § 1983 claim does not lie based solely

upon allegations of slander or libel.”), report and recommendation adopted, 2020 WL 5230906

(W.D.N.Y. Sept. 2, 2020); Felix-Torres v. Graham, 687 F. Supp. 2d 38, 65 (N.D.N.Y. 2009)

(holding that ordinary negligence by itself cannot establish a cause of action under Section

1983); Anderson v. City of New York, No. 13-cv-1745, 2013 WL 6182675, at *3 (S.D.N.Y. Nov.

19, 2013) (“[W]hile there are no Second Circuit decisions on point, federal courts in other

districts have dismissed § 1983 claims for intentional infliction of emotional distress because it is

not a cognizable constitutional claim.”); Greene v. Trustees of Columbia Univ., 234 F. Supp. 2d

368, 381 (S.D.N.Y. 2002) (“Menacing and harassment is recognized in the criminal law, but is

not a cognizable tort.”). In any event, Plaintiff does not allege any facts or introduce any

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evidence to support these claims. Accordingly, the Court grants summary judgment in favor of

Detective Cave.

II. Plaintiff’s Section 1985 Claims Fail

Plaintiff generally asserts a Section 1985 claim against Defendants. See ECF No. 1-1 at

15 (“[P]laintiff . . . was deprived of his civil rights under the . . . Constitution of the United States

. . . including 42 U.S.C.A. § . . . 1985”). “To state a cause of action under § 1985, a plaintiff

must allege (1) a conspiracy; (2) for the purpose of depriving a person or class of persons of the

equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt

act in furtherance of the conspiracy; and (4) an injury to the plaintiff’s person or property, or a

deprivation of a right or privilege of a citizen of the United States.” Chillemi v. Town of

Southampton, 943 F. Supp. 2d 365, 380–81 (E.D.N.Y. 2013). “To assert a conspiracy under

Section 1985, a plaintiff must [also] provide some factual basis supporting a meeting of the

minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful

end.” Masters v. Mack, No. 22-cv-6582, 2022 WL 17961211, at *6 (E.D.N.Y. Dec. 27, 2022);

see also Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999) (“[A] plaintiff alleging a conspiracy

under § 1985(3) must allege, with at least some degree of particularity, overt acts which

defendants engaged in which were reasonably related to the promotion of the claimed

conspiracy.”).

Plaintiff has failed to plead sufficient facts to support his allegations that the Yonkers

Defendants or the Home Depot Defendants acted in concert to deprive him of the equal

protection of the law. Plaintiff argues that “he was racially profiled because of [his] skin color.”

ECF No. 66 at 3. Plaintiff further contends that “[t]he description that was given was not me.

They was [sic] looking for someone in their early 20s.” Id. However, the evidence presented by

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Defendants contradicts Plaintiff’s assertions. The Home Depot security guard told the YPD

dispatcher that the customer who completed the fraudulent transaction “was a black male with

hair braids, who was wearing a green sweatshirt, jeans and a black hat.” ECF No. 56 ¶ 4. When

the YPD officers arrived at the Home Depot they observed the Plaintiff—a black male wearing a

green sweatshirt—by the door of the store and asked the security guard to confirm whether

Plaintiff was the individual who completed the fraudulent transaction. Id. ¶ 9; ECF No. 58-2 ¶ 6.

Plaintiff’s conclusory allegation that he was racially profiled is contradicted by the

uncontroverted evidence that he was identified by multiple eyewitnesses as the customer who

attempted to engage in the fraudulent transaction. Plaintiff has failed to meet his burden to

“come forth with significant probative evidence to demonstrate that a factual dispute does in fact

exist.” Phelps v. Szubinski, 577 F. Supp. 2d 650, 662 (E.D.N.Y. 2008); see also Roach, 165 F.3d

at 147 (finding defendants were entitled to summary judgment where “[plaintiff] alleged no facts

and presented no evidence that could have shown that [defendants] acted with class-based

discriminatory animus”).

Accordingly, the Court finds that Defendants are entitled to summary judgment on

Plaintiff’s section 1985 claim. Roach, 165 F.3d at 147 (“Absent specific factual allegations as to

the participation of a particular defendant in the conspiracy, plaintiff's § 1985(3) claim cannot

survive a motion for summary judgment by that defendant.”).

III. Plaintiff’s Section 1981 Claim Fails

Plaintiff also generally asserts a Section 1981 claim against Defendants. See ECF No. 1-

1 at 15 (“[P]laintiff . . . was deprived of his civil rights under the . . . Constitution of the United

States . . . including 42 U.S.C.A. § . . . 1981”). Section 1981 provides that, “[a]ll persons within

the jurisdiction of the United States shall have the same right in every State and Territory to

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make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of

all laws and proceedings for the security of persons and property as is enjoyed by white

citizens.” 42 U.S.C. § 1981(a). Section 1981 bars all racial discrimination in contracts,

including retaliation. Claud v. Brown Harris Stevens of Hamptons, LLC, No. 18-cv-1390, 2023

WL 3858677, at *20 (E.D.N.Y. June 7, 2023).

To establish a claim under § 1981, a plaintiff must allege facts in support of the

following elements: (1) the plaintiff is a member of a racial minority; (2) an intent

to discriminate on the basis of race by the defendant; and (3) the discrimination

concerned one or more of the statutorily enumerated activities. With respect to the

second element, a plaintiff must offer more than conclusory allegations that he was

discriminated against because of his race. A plaintiff must plead sufficient facts to

state a plausible claim for relief under 42 U.S.C. § 1981, and cannot rely on wholly

conclusory allegations of discriminatory intent.

Gray v. City of New York, No. 10-cv-3039, 2014 WL 12862303, at *14 (E.D.N.Y. Feb. 25,

2014). Plaintiff’s Section 1981 claim fails for several reasons. First, Section 1981 is

inapplicable here because Plaintiff’s claim is not based on the making or enforcement of a

contract nor does his claim concern retaliation. Second, as set forth previously, see supra section

III, Plaintiff fails to plead sufficient facts to support his claim beyond conclusory allegations that

he was discriminated against because of his race. ECF No. 66 at 3. Accordingly, the Court finds

that Defendants are entitled to summary judgment on Plaintiff’s Section 1981 claim because

Plaintiff has failed to allege his Section 1981 claim in a non-conclusory manner. See Clyburn v.

Shields, 33 F. App’x 552, 555 (2d Cir. 2002) (“[C]laims of race-based discrimination under . . .

42 U.S.C. § 1981 . . . require that intentional discrimination be alleged in a non-conclusory

fashion.”).

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IV. The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff’s New

York Common Law Claims

To the extent that Plaintiff raises state law claims,9 the Court declines to exercise

supplemental jurisdiction over those claims. “District courts may use their discretion in deciding

whether to exercise supplemental jurisdiction over state law claims after dismissing a plaintiff’s

only federal claims, so long as the federal claims were not dismissed for lack of subject matter

jurisdiction.” Probiv v. PayCargo LLC, No. 22-cv-2907, 2023 WL 159788, at *5 (E.D.N.Y. Jan.

11, 2023); 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has

original jurisdiction.”); see also Cangemi v. United States, 13 F.4th 115, 134 (2d Cir. 2021).

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ motions for summary

judgment in their entirety. The Clerk of Court is respectfully directed to enter judgment in favor

of Defendants, and to close this case. The Clerk of Court is further directed to mail a copy of

this Order to the pro se Plaintiff and to note the mailing on the docket.

SO ORDERED.

/s/ Hector Gonzalez .

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

August 28, 2023

9 Plaintiff purports to assert the following common law claims: “false arrest, false

imprisonment, negligent detention, excessive detention, negligent infliction of emotional

distress, intentional infliction of emotional distress, battery, menacing, harassment, excessive

force, police brutality, negligent hiring/training/retention, negligence, gross negligence, reckless

disregard, abuse of process, municipal liability, malicious prosecution.” ECF No. 1-1 at 6–7.

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