Cagan v. Rittenhouse

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TOD S. CAGAN,

Plaintiff, MEMORANDUM & ORDER

22-CV-00260(EK)(LGD)

-against-

NEW YORK CITY POLICE OFFICER

GREGORY RITTENHOUSE, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Tod Cagan was arrested and prosecuted in Nassau County

for allegedly assaulting Gregory Rittenhouse, an officer of the

New York Police Department. Rittenhouse pressed state criminal

charges against Cagan, alleging Cagan tricked him into vaping

marijuana.

Cagan denies that he assaulted anyone. The complaint

alleges that his assault prosecution was adjourned in

contemplation of dismissal under N.Y. Crim. Proc. Law

§ 170.55(2). Under that procedure, following a probationary

period, Cagan’s charges would be “deemed to have been

dismissed.”

Cagan now sues various defendants under 42 U.S.C.

§ 1983, alleging that Rittenhouse’s charges, and his attendant

arrest and prosecution, were part of a cover-up to protect

Rittenhouse from being fired for a positive drug test.

Rittenhouse, his fellow NYPD officer Michael Philbin, and the

City of New York have moved to dismiss in part. Except for the

“John Doe” defendants allegedly employed by Nassau County, the

other defendants have all appeared.

Rittenhouse and Philbin both move to dismiss Cagan’s

Section 1983 claims for false arrest and malicious prosecution.

The City moves to dismiss all claims against it. For the

reasons that follow, the motions are granted.

I. Background

The following factual background is taken from Cagan’s

amended complaint, ECF No. 32, and assumed to be true for

purposes of this motion.

Cagan lives across the street from defendant Philbin,

an NYPD officer, in the Village of Freeport in Nassau County.

Am. Compl. ¶ 36. One night in June of 2018, Cagan gave Philbin

a ride by boat to the Nautical Mile area of Freeport. Id. ¶ 38.

Cagan and Philbin proceeded to separate destinations there. But

hours later, Philbin and his friend, defendant Rittenhouse,

asked Cagan for a ride back. Id. ¶ 43.

Cagan obliged. Some time after the three men arrived

at Cagan’s house, Rittenhouse entered the bathroom. Id. ¶ 45.

After Rittenhouse exited the bathroom, Cagan noticed vomit and

urine “all over his bathroom.” Id. ¶ 47.

After cleaning his bathroom, Cagan met Rittenhouse and

Philbin in his kitchen. Id. ¶¶ 47–48. Rittenhouse asked Cagan

about a vaporizer pen on Cagan’s kitchen table. Id. ¶ 49. He

asked, “what’s in the vape pen?” Id. Cagan responded, “It’s

CBD” — cannabidiol, a marijuana extract. Id.

CBD’s legality has evolved since June 2018.

Nevertheless, as explained below, it was quite likely, if not

certain, that possession of a CBD vaporizer was a crime at that

time — under both federal and state law.

Following this conversation, Philbin and Rittenhouse

left Cagan’s home and contacted Philbin’s friend, a Village of

Freeport Police Officer named Michael Geniale, who met Philbin

and Rittenhouse outside of Philbin’s home. Id. ¶ 51. They told

Geniale that Rittenhouse “was at a bar” in Freeport and had

“inhaled a puff of a vape pen that belonged to a stranger.” Id.

¶ 52. After speaking with a sergeant, Geniale instructed

Rittenhouse and Philbin to call 911, request an ambulance, and

go to the hospital. Id. ¶ 53.1

Rittenhouse and Philbin then called 911. Id. ¶ 55.

Another VFPD Officer arrived, and, per a police report,

Rittenhouse and Philbin reiterated that Rittenhouse “was at a

bar and inhaled a puff of a Vaporizer pen that belonged to a

1 Cagan does not allege a basis for knowing precisely what was said in

this conversation, although he states that his entire complaint is alleged

“upon information and belief.” Am. Compl. 1.

stranger.” Id. ¶ 56. Rittenhouse went to the hospital and

tested positive for THC. Id. ¶ 57.

Later that day, Rittenhouse pressed state criminal

assault charges against Cagan. See id. ¶ 60. In statements to

the Freeport Police Department, Rittenhouse and Philbin both

claimed that Rittenhouse was deceived by Cagan, into inhaling

while at Cagan’s home — not a bar. See id. ¶¶ 62–63. They

reported that Cagan said the vaporizer contained “just tobacco,”

but then subsequently revealed that it contained “medical

marijuana.” Id.

On June 17, 2018 — the day after Rittenhouse’s

positive THC test — Geniale and other VFPD officers arrested

Cagan at his home. Id. ¶ 64. He was detained overnight and

arraigned the next day, when he was charged with felony assault

and released on his own recognizance. Id. ¶¶ 66–67.

Some six months later, Cagan accepted an adjournment

in contemplation of dismissal (ACD) of his state criminal case.

Id. ¶¶ 30, 77. The complaint alleges that Cagan “is presently

seeking to have his ACD disposition vacated and, thereafter,

have the charges dismissed.” Id. ¶ 30.

II. Legal Standards

At the pleading stage, “all well-pleaded,

nonconclusory factual allegations in the complaint” are assumed

to be true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111,

124 (2d Cir. 2010).

To survive a motion to dismiss on Rule 12(b)(6)

grounds, the complaint must plead sufficient “facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). “A claim is plausible

when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d

57, 63 (2d Cir. 2011).2 Courts “are not bound to accept as true

a legal conclusion couched as a factual allegation,” and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. Discussion

A. Rittenhouse’s and Philbin’s Motions to Dismiss

Rittenhouse and Philbin move to dismiss the false

arrest and malicious prosecution Section 1983 claims against

them.

1. False Arrest

A Section 1983 false arrest claim requires the

plaintiff to plead that: (1) the defendant acted under color of

2 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

state law; (2) the defendant “intended to confine him”; (3) the

plaintiff was conscious of the confinement; (4) the plaintiff

did not consent to the confinement; and (5) the confinement was

not otherwise privileged. Posr v. Doherty, 944 F.2d 91, 96–97

(2d Cir. 1991). Only two of these elements are in dispute:

first, whether Philbin and Rittenhouse acted under color of

state law; and second, whether that confinement “was privileged,

that is, whether the [defendants] had probable cause to arrest”

Cagan. Guan v. City of N.Y., 37 F.4th 797, 804, 807 (2d Cir.

2022).

“Under ‘color’ of law means under ‘pretense’ of law”

and “acts of officers in the ambit of their personal pursuits

are plainly excluded.” Pitchell v. Callan, 13 F.3d 545, 547–48

(2d Cir. 1994) (quoting Screws v. United States, 325 U.S. 91,

111 (1945)). Thus, “personal pursuits [by] police officers do

not give rise to section 1983 liability.” Id. at 548.

Nevertheless, “liability may be found where a police officer,

albeit off-duty, nonetheless invokes the real or apparent power

of the police department.” Id.

“To the extent that . . . defendants are subject to

the obligations imposed on state actors, they also share the

immunities the law extends to those actors.” Fabrikant v.

French, 691 F.3d 193, 211 (2d Cir. 2012). Thus, to the extent

that state action is implicated, the defense of qualified

immunity “shields law enforcement officers from § 1983 claims

for money damages provided that their conduct does not violate

clearly established constitutional rights of which a reasonable

person would have been aware.” Figueroa v. Mazza, 825 F.3d 89,

99 (2d Cir. 2016).

“In the context of § 1983 actions predicated on

allegations of false arrest, . . . an arresting officer is

entitled to qualified immunity so long as ‘arguable probable

cause’ was present when the arrest was made.” Id. at 100. A

police officer has arguable probable cause “if either (a) it was

objectively reasonable for the officer to believe that probable

cause existed, or (b) officers of reasonable competence could

disagree on whether the probable cause test was met.” Id. “Put

another way, an arresting officer will find protection under the

defense of qualified immunity unless no reasonably competent

officer could have concluded, based on the facts known at the

time of arrest, that probable cause existed.” Id.

At the pleading stage, to prevail on a qualified

immunity defense, a defendant “must show that, construing all

reasonable inferences in the plaintiff’s favor, the facts

supporting the immunity defense appear on the face of the

complaint” and “the plaintiff can prove no set of facts . . .

that would entitle him to relief.” Kass v. City of N.Y., 864

F.3d 200, 206 (2d Cir. 2017). “Qualified immunity is

appropriately granted on a Rule 12(b)(6) motion only if it is

based on facts appearing on the face of the complaint, exhibits

to the complaint, documents incorporated by reference, and items

of which judicial notice may be taken.” Biswas v. Kwait, 576 F.

App’x 58, 59 (2d Cir. 2014), as amended (Aug. 28, 2014).

As set forth below, Cagan’s Section 1983 false arrest

claim (a) fails adequately to allege that Philbin and

Rittenhouse were acting under color of law and (b) does plead

facts consistent with arguable probable cause.

a. Cagan Fails to Allege that Rittenhouse and

Philbin Acted Under Color of State Law

Action under color of state law requires that the

defendant exercised power “possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the

authority of state law.” West v. Atkins, 487 U.S. 42, 49

(1988).

Based on the complaint, by contrast, Rittenhouse and

Philbin acted as private individuals. They “contact[ed] the

police to report that [Rittenhouse] ha[d] been the victim of an

assault,” just “as any individual may.” Rodriguez v. N.Y.C.

Transit Auth., No. 06–CV–13762, 2009 WL 3817298, at *5 (S.D.N.Y.

Nov. 10, 2009). And “neither speaking to, nor filing a report

with, the police constitutes a public function — i.e. a function

that is ‘traditionally the exclusive prerogative of the State.’”

Capogrosso v. Gelbstein, No. 18-CV-2710, 2022 WL 4550812, at *2

(E.D.N.Y. Sept. 29, 2022) (quoting Rendell-Baker v. Kohn, 457

U.S. 830, 842 (1982)), aff’d, No. 22-2827, 2023 WL 7485363 (2d

Cir. Nov. 13, 2023).3

Actions that are not “taken pursuant to [the

official’s] role and authority” are “not performed under color

of state law.” Brady v. Grant, 225 F.3d 645, 2000 WL 1160707,

at *3 (2d Cir. 2000) (table). A line of cases in this circuit

have applied this rule where a government employee was

responsible for a plaintiff’s arrest by others. These cases do

not turn on “a simple determination as to whether [the employee]

was on or off duty,” Pitchell, 13 F.3d at 548, but instead ask

instead whether the employee exercised “power possessed by

virtue of” being “clothed with the authority of state law.”

West, 487 U.S. at 49.

For example, in Brady, the Second Circuit held that

a government employee who was “on duty” nevertheless engendered

the plaintiff’s arrest without exercising his own state power.

2000 WL 1160707, at *3. In that case, a town supervisor, who

worked privately as an insurance agent, obtained a temporary

3 See also Pitchell, 13 F.3d at 548. In Pitchell, the Second Circuit

cited with approval the Third Circuit’s conclusion that a police inspector

had not acted under color of law when he signed a complaint for arrest of the

plaintiff, who had placed obscene telephone calls to the inspector’s home.

Id. (citing Perkins v. Rich, 204 F. Supp. 98 (D. Del. 1962), aff’d on opinion

below, 316 F.2d 236 (3d Cir. 1963)).

restraining order against the plaintiff, who had harassed the

supervisor while he was selling insurance. Id. at *1. When the

plaintiff later appeared at a town board meeting where the

supervisor was presiding, the supervisor “threatened to call the

police to enforce the TRO unless [the plaintiff] left.” Id.

The plaintiff refused to leave, and a deputy sheriff ultimately

arrested him for violating the TRO. Id.

The Second Circuit held, on appeal of judgment issued

at the summary judgment stage, that the defendant had not acted

in his role as town supervisor when he invoked the TRO. Id. at

*3. That TRO protected him as a private citizen. Id. “Any

person at the meeting who was protected by a facially valid TRO

could have enforced it and caused the arrest of the person who

violated it,” without herself wielding any state authority. Id.

The supervisor thus had not acted under color of state law and

could not be liable under Section 1983 for the plaintiff’s

purportedly unconstitutional arrest or prosecution. Id.

A district court reached a similar conclusion in

Rodriguez, where a subway conductor reported his on-duty

assault. See 2009 WL 3817298, at *5. The alleged assailant

sued the conductor under Section 1983 for false arrest and

malicious prosecution. See id. at *2. The district court,

following Brady, granted the conductor summary judgment. Id. at

*4. The court held that the conductor did not wield state power

by calling the police on his assailant — rather, “any individual

may contact the police to report that he or she has been the

victim of an assault; one need not be employed by the [city

transit authority] to do so.” Id. at *5.

In McAuliffe v. Pomposello, a district court denied an

off-duty police officer’s motion for summary judgment because

genuine questions of fact remained as to whether the officer

wielded state power. See No. 10-CV-8721, 2011 WL 4633867, at *2

(S.D.N.Y. Oct. 4, 2011). Like Rodriguez, McAuliffe concerned a

government employee’s calling police to a train to arrest the

plaintiff. See id. at *2. But unlike in Rodriguez, the

McAuliffe defendant was a police officer, not a train conductor;

he called his on-duty colleagues to his aid. See id. Moreover,

to allow his colleagues to board at a particular station, he put

his foot in the door of the commuter train he was riding and

held the train for several minutes, id. at *2 — an action

outside the legal repertoire of civilian passengers.

Furthermore, a reasonable jury could have found from the

plaintiff’s testimony that the defendant “directed his fellow

officers to arrest [the plaintiff] and remove her from the

train.” Id. at *4.

The allegations here are inconsistent with state

action. Philbin and Rittenhouse — NYPD officers — are alleged

to have called Philbin’s friend, a member of Freeport’s local

police force. See Am. Compl. ¶ 51. Eventually, Philbin and

Rittenhouse called 911, and another Freeport police officer

responded to the scene. Id. ¶ 55. Rittenhouse chose to press

charges, and Rittenhouse and Philbin then gave statements to the

VFPD asserting that Cagan had assaulted Rittenhouse. See id.

¶¶ 60, 62–63. The complaint does not allege that Rittenhouse

pressed charges through channels unavailable to private

citizens. A day after the incident, Officer Geniale and other

local officers arrested Cagan; neither Philbin nor Rittenhouse

is alleged to have been present. Id. ¶ 63.

These allegations do not plausibly suggest that

Philbin and Rittenhouse were able to effectuate Cagan’s

detention because they were off-duty NYPD officers. Rather, at

most, Cagan alleges that Philbin and Rittenhouse could do so

because they had a friend who was an on-duty VFPD officer.

Unlike in McAuliffe, Philbin and Rittenhouse are not alleged to

have summoned their own on-duty colleagues, directed anyone to

arrest Cagan, or to have taken any actions that might have been

impermissible for a civilian, like holding a train on its route.

Importantly, whatever informal clout the NYPD officers

may have carried with their counterparts in the VFPD is

irrelevant. It is “erroneous[]” to base the color of law

analysis on the “subjective reaction to [the off-duty officer’s]

conduct rather than the nature of [his] activity.” Pitchell, 13

F.3d at 548–49. Thus in Rodriguez, the district court rejected

the argument that the train conductor defendant had acted under

color of state law because “his report of a crime carried more

weight than a report by a private citizen would.” 2009 WL

3817298, at *5. Judge Sullivan held that the defendant’s

conduct “may not be deemed to have been under color of state law

merely because [a police officer] chose to place great weight on

[his] allegations.” Rodriguez, 2009 WL 3817298, at *5.4

And where “a police officer exercises independent

judgment in how to respond to a private party’s legitimate

request for assistance, the private party is not jointly engaged

in the officer’s conduct so as to render it a state actor under

Section 1983.” Ginsberg v. Healey Car & Truck Leasing, Inc.,

189 F.3d 268, 272 (2d Cir. 1999). Here, Cagan does not

sufficiently allege that any VFPD officer failed to exercise

independent judgment because Philbin and Rittenhouse were NYPD

officers.

The complaint also fails to state a claim based on

Philbin’s or Rittenhouse’s “conspiring” with state actors. A

plaintiff may state a Section 1983 conspiracy claim by plausibly

4 This reading of Pitchell and Rodriguez is critical to the conclusion

here, as the complaint would support the inference that Rittenhouse and

Philbin’s reports “carried more weight” with the VFPD. Among other things,

Cagan has alleged that the VFPD pursued charges despite the reporting

officers’ stories having changed as to who provided the vaporizer (a stranger

at a bar, versus Cagan — Philbin’s neighbor) and where Rittenhouse inhaled

from it (at a bar at the Nautical Mile, versus at Cagan’s home).

alleging “(1) an agreement between a state actor and a private

party; (2) to act in concert to inflict an unconstitutional

injury; and (3) an overt act done in furtherance of that goal

causing damages.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307,

324–25 (2d Cir. 2002). But “complaints containing only

conclusory, vague, or general allegations that the defendants

have engaged in a conspiracy to deprive the plaintiff of his

constitutional rights are properly dismissed.” Id. at 325.

Cagan’s complaint is general and conclusory on this point. He

alleges that all the “Defendants conspired” to “protect

Defendant Rittenhouse’s employment,” and that Rittenhouse “used

his status” as an NYPD officer “in order to fabricate” the

charges against Cagan. Id. ¶ 58. The only factual allegation

suggestive of a conspiracy is that certain VFPD officers knew

that Rittenhouse claimed to have inhaled from a vaporizer pen at

a bar, rather than at Cagan’s house. See Am. Compl. ¶¶ 52, 56.

But inferring conspiracy from these limited allegations would be

too “speculative.” Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.

2009) (dismissing civil rights conspiracy claim for insufficient

factual content).

Because Rittenhouse and Philbin were not engaged in

state action when they effectuated Cagan’s detention, their

motion to dismiss the Section 1983 false arrest claim is

granted.

b. On the Face of the Complaint, Qualified Immunity

Shields Rittenhouse and Philbin from the False

Arrest Claim

Even if they had engaged in state action, Rittenhouse

and Philbin would be shielded from the Section 1983 false arrest

claim by qualified immunity, as it is apparent on the face of

the complaint that they had at least arguable probable cause to

arrest Cagan. “An officer is entitled to qualified immunity

from a federal false arrest and imprisonment claim if he had

arguable probable cause to arrest the plaintiff for any offense,

regardless of the offense with which the plaintiff was actually

charged.” Kass, 864 F.3d at 206.

Here, by Cagan’s own allegations, he confessed to

possessing CBD shortly before he was arrested. See Am. Compl.

¶ 49. In June of 2018, both New York and federal law deemed CBD

to be “marihuana” – “a Schedule I controlled substance” that

“was therefore unlawful to possess.” Linder v. Six Flags Ent.

Corp., No. 18–CV–9954, 2019 WL 13240608, at *3 (C.D. Cal. May

31, 2019) (discussing federal law); accord N.Y. Pub. Health Law

§ 3306 (McKinney 2017) (amended July 11, 2018) (New York law).

Compare 21 U.S.C.A. § 802(16) (West 2017) (amended October 24,

2018) (federal marijuana definition), with N.Y. Pub. Health Law

§ 3302(21) (McKinney 2017) (amended March 8, 2020) (materially

identical New York definition). Congress first narrowed the

federal definition of marijuana to exclude CBD in December of

that year. See Agricultural Improvement Act of 2018, Pub. L.

115-334, § 10113, 132 Stat. 4490, 4908 (2018); see also, e.g.,

Linder, 2019 WL 13240608, at *3 n.2. And New York followed suit

in 2020. N.Y. Pub. Health Law § 3302(21) (McKinney 2020)

(amended March 31, 2021).

Cagan contends that, even in June of 2018, not all CBD

met the legal definition of marijuana. See Pl.’s Letter 1, ECF

No. 82. He acknowledges contemporaneous guidance from the U.S.

Department of Justice that it was “not practical” to legally

obtain “more than trace amounts of” CBD, but he argues that it

may nevertheless have been possible. See id. (citing U.S. Dept.

of J., Drug Enf. Admin., Clarification of the New Drug Code

(7350) for Marijuana Extract (“DOJ Clarification”)).5 Per that

DOJ guidance, “trace amounts” of CBD may be found in parts of

the cannabis plant that are excluded from the definition of

marijuana. See DOJ Clarification.

Given this state of the law, Rittenhouse and Philbin

had at least arguable probable cause to arrest Cagan. Cagan

confessed to possession of a vaporizer pen’s worth of a

substance that it was “not practical” to legally obtain in bulk.

The Second Circuit has found arguable probable cause to arrest

5 https://www.deadiversion.usdoj.gov/schedules/marijuana/m_extract_

7350.html.

for drug offenses based on much less. See Gonzalez v. City of

Schenectady, 728 F.3d 149, 152, 157–58 (2d Cir. 2013).

In Gonzalez, the arrestee had said to a confidential

informant, “What do you need? I can get you whatever you need,”

in an area known for drug activity. Id. at 152. The Second

Circuit held that the arresting officers had lacked probable

cause to arrest for drug possession or other drug offenses based

on this statement. Id. at 156–57. Nevertheless, the officers

had arguable probable cause and thus were not liable for Section

1983 false arrest. Id. at 158. The Second Circuit explained

that “[w]hile [the plaintiff’s] statement on its own d[id] not

satisfy the elements of any crime,” the officers could not have

been “expected to undertake” a “close examination of the

elements of a number of different criminal statutes” while

making a “moment-to-moment” arrest decision. Id. at 157.

Here, Philbin and Rittenhouse were not expected to

undertake a close reading of complex federal and state guidance

concerning whether a CBD vaporizer could have been legal in June

of 2018, given the strong likelihood that it was not. Cagan’s

false arrest claims thus cannot surmount qualified immunity.6

6 Cagan conclusorily argues that Rittenhouse and Philbin would not have

had arguable probable cause based on Cagan’s earlier admission to CBD

possession by the time Cagan was actually taken into custody, the day after

Rittenhouse’s drug test. Pl.’s Mem. Opp. Rittenhouse Mot. 2, ECF No. 65-4.

This is irrelevant; Philbin and Rittenhouse were not present at Cagan’s

ultimate arrest by the VFPD. Am. Compl. ¶ 63. To the extent Philbin and

2. Malicious Prosecution

Rittenhouse and Philbin also move to dismiss Cagan’s

Section 1983 malicious prosecution claim. In addition to

Section 1983’s state action requirement, the elements of this

malicious prosecution claim are derived from applicable state

law. Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013).

Under New York law, those elements are: (1) commencement of a

criminal proceeding, (2) favorable termination of the

proceeding, (3) lack of probable cause, and (4) institution of

the proceedings with actual malice. Id. at 111–12.

To “commence” a prosecution for these purposes, “the

mere reporting of a crime to police and giving testimony are

insufficient; it must be shown that defendant played an active

role in the prosecution, such as giving advice and encouragement

or importuning the authorities to act.” Rahman v. N.Y.C.

Transit Auth. (NYCTA), 215 F.3d 208, 217 (2d Cir. 2000). This

standard may be satisfied where, for example, the defendant knew

incriminating information about the plaintiff “to be false, yet

still gave it to the police.” Estiverne v. Esernio-Jenssen, 581

F. Supp. 2d 335, 348 (E.D.N.Y. 2008). This, of course, is

precisely what Philbin and Rittenhouse are alleged to have done.

Rittenhouse would be liable for false arrest, it would be because Rittenhouse

pressed charges — the same day as his drug test, at which time there was

arguable probable cause for Cagan’s arrest.

Additionally, “to be actionable under section 1983

there must be a post-arraignment seizure, the claim being

grounded ultimately on the Fourth Amendment’s prohibition of

unreasonable seizures.” Swartz, 704 F.3d at 112.

Cagan’s malicious prosecution claim must be dismissed

for two reasons: first, that (once again) he cannot allege that

Rittenhouse and Philbin acted under color of state law; and

second, that he has not alleged that the charges against him

have actually been dismissed.

Regarding state action, as with the Section 1983 false

arrest claim, there is no allegation that the role Rittenhouse

and Philbin played in Cagan’s prosecution in Nassau County was

beyond the capability of ordinary citizens to play. The Section

1983 malicious prosecution claim thus fails, as any malicious

prosecution by these defendants was not under color of state

law.

Separately, Cagan has failed to allege favorable

termination of his criminal proceedings. He states (in

conclusory fashion) that his “prosecution terminated” when he

agreed to an ACD on January 2, 2019. Am. Compl. ¶ 77. However,

even if a dismissal pursuant to an ACD may be a favorable

termination for these purposes, Cagan has alleged only the ACD,

not the ensuing dismissal. “When a defendant accepts an ACD in

New York state court, . . . the government retains the right to

move to restore the case to the calendar” by “a motion within

six months — or in some cases one year — after the defendant

accepts the ACD.” Smalls v. Collins, 10 F.4th 117, 142 (2d Cir.

2021) (citing N.Y. Crim. Proc. Law § 170.55(2)). “If the

government does not move within the prescribed time period, the

accusatory instrument is, at the expiration of such period,

deemed to have been dismissed by the court in furtherance of

justice and the arrest and prosecution shall be deemed a

nullity.” Id. (citing N.Y. Crim. Proc. Law § 170.55(2) and

(8)). In short, dismissal after an ACD depends on whether “the

defendant behaved himself.” Singleton v. City of N.Y., 632 F.2d

185, 194 (2d Cir. 1980).

Here, Cagan expressly alleges that the state has not

dismissed charges against him. Id. ¶ 30 (“Plaintiff is

presently seeking to have his ACD disposition vacated and,

thereafter, have the charges dismissed . . . .”). Cagan filed

the amended complaint containing this allegation more than three

years after accepting the ACD, and he has not amended it in the

two years since. This allegation is inconsistent with favorable

termination. See, e.g., Price v. City of N.Y., No. 15–CV–5871,

2018 WL 3117507, at *9 n.10 (S.D.N.Y. June 25, 2018) (“Plaintiff

alleges that her criminal charge remained pending for almost six

years after her initial appearance in criminal court. This

suggests that the final disposition was not an ACD.”). Cagan

has thus failed to plausibly allege favorable termination.

The malicious prosecution claims against Cagan and

Rittenhouse are dismissed.

B. New York City’s Motion to Dismiss

The City moves to dismiss all claims against it.

Under Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91

(1978), to prevail on a claim against a municipality under

section 1983 based on acts of a public official, a plaintiff is

required to prove, among other things, that a “municipal policy

of some nature caused a constitutional tort.” Roe v. City of

Waterbury, 542 F.3d 31, 38 (2d Cir. 2008). “In other words, a

municipality may not be found liable simply because one of its

employees committed a tort.” Id. Rather, a plaintiff must

demonstrate that, through its deliberate conduct, the

municipality was the “moving force” behind the alleged injury.

Id. at 37.

In addition to official policy, a plaintiff can

satisfy Monell by pleading “sufficient instances of tolerant

awareness by supervisors of abusive conduct.” Lucente v. Cnty.

of Suffolk, 980 F.3d 284, 298 (2d Cir. 2020). This will permit

the “inference that they had a policy, custom or usage of

acquiescence in such abuse.” Id.

Cagan’s Monell claims against the City fail because of

— at least — his failure to allege that an official policy

caused a violation of Cagan’s rights. Cagan points to one

ostensible city-wide policy in support of his Monell claim: the

myriad “systemic flaws” in the City’s “police misconduct review

process.” Am. Compl. ¶ 86. Cagan posits that these flaws in

the City’s review process have created a “custom” of the City’s

“tolerat[ing] the improper and illegal arrests and other

wrongful actions by its police officers.” Id. ¶ 85. Cagan

contends that this “led to the Individual Defendants having the

belief that they can act without consequence causing the

deprivation of Plaintiff’s Constitutional Rights.” Pl.’s Mem.

Opp. City Mot. 6, ECF No. 62.

Cagan does not adequately allege that the City has a

policy of “acquiescence” in conduct like Philbin’s or

Rittenhouse’s. While “the persistent failure to discipline

subordinates who violate civil rights” may constitute a policy

of acquiescence in constitutional violations, Batista v.

Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983), no such persistence

is alleged here. The complaint is devoid of allegations that,

besides Rittenhouse and Philbin on this one occasion, any NYPD

officers have filed false criminal charges in other

jurisdictions to protect their NYPD employment — much less that

the City has tolerated their doing so.

Cagan’s allegations also fail to establish Monell

liability based on “the specific acts” of City officials. City

of Waterbury, 542 F.3d at 39–40. Because liability on this

ground would “hold a municipality liable for a single decision”

by a pair of “municipal policymaker[s],” Cagan must plausibly

allege that Philbin and Rittenhouse were “act[ing] in accordance

with the responsibility delegated [them] under state law for

making policy” for the City. Id. at 41. At most, as to any

responsibility the City delegated to Philbin and Rittenhouse as

police officers, they allegedly “misuse[d] [their] power to

advance a purely personal agenda.” Id. The City cannot be held

liable for those acts. See id.7

All claims against New York City are dismissed.8

7 Count 7 of the complaint — labeled “Monell” — is dismissed in its

entirety, including as to non-moving defendants. “Monell does not provide

an independent separate cause of action against a municipality; ‘it extends

liability to a municipal organization where that organization’s failure to

train, or the policies or customs that it has sanctioned, led to an

independent constitutional violation.” Gem Fin. Serv., Inc. v. City of N.Y.,

298 F. Supp. 3d 464, 490 (E.D.N.Y. 2018) (citing Segal v. City of N.Y., 459

F.3d 207, 219 (2d Cir. 2006)).

8 Rittenhouse’s counsel did not appear for two consecutive court

proceedings: an August 11, 2022 pre-motion conference concerning, among other

motions, Rittenhouse’s own proposed motion to dismiss; and then the August

10, 2023 oral argument on the same. In both cases, the court’s Case Manager

attempted to contact Rittenhouse’s attorney of record, and in both cases, the

attorney of record identified on the court’s electronic docket, insisted he

had no role in this case. Rather, the court was told, Rittenhouse’s counsel

was his son, an attorney whose appearance was not reflected on the docket —

and who, like his father, did not appear at either conference.

On August 17, the court ordered both attorneys to “show cause why

sanctions should not issue for the missed court appearances.” ECF No. 76.

In light of counsel’s letters, ECF Nos. 77–78, the court will not order

sanctions.

IV. Conclusion

The motions to dismiss are granted. The claims for

false arrest and malicious prosecution under Section 1983 are

dismissed against defendants Rittenhouse and Philbin. The

complaint is dismissed in its entirety as to the City. Count 7

is also dismissed as to all defendants.

This dismissal is without prejudice to replead if

Cagan can allege facts sufficient to cure the defects discussed

herein. Cagan may file an amended complaint within thirty days

of the date of this order. If the complaint is amended for the

sole purpose of curing the defects at issue, Cagan need not move

for leave to amend, and may simply provide the proposed amended

complaint and a blackline in his filing, in accordance with this

court’s individual rules and practices. If no such amendment is

forthcoming in the time allotted, the claims addressed herein

shall be dismissed with prejudice.

In addition, Cagan shall file a status report within

14 days of this order indicating whether he is continuing to

assert claims against any John Doe defendants who have not been

identified.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: March 29, 2024

Brooklyn, New York