The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHRISTINA L. FACCI-BRAHLER,
Plaintiff,
-against- 1:18-CV-0941 (LEK/ATB)
MONTGOMERY COUNTY, et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Christina Facci-Brahler has filed this civil rights action pursuant to 42 U.S.C.
§ 1983 and related state law against Montgomery County (the “County”), Montgomery County
Sheriff Michael J. Amato, and Under Sheriff Justin Cramer (collectively, “Defendants”). Dkt.
No. 1 (“Complaint”) ¶¶ 1, 10–11.
Plaintiff asserts seven causes of action against all Defendants, including: (1) equal-
protection claims under the Fourteenth Amendment; (2) equal-protection claims under Art. I,
§ 11 of the New York State Constitution; (3) discrimination and retaliation claims under the New
York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”); (4) malicious-prosecution
claims under the Fourth and Fourteenth Amendments; (5); malicious-prosecution claims under
Art. I, § 6 of the New York State Constitution; (6) malicious-prosecution claims under New York
State common law; and (7) due-process claims under the Fifth and Fourteenth Amendments. Id.
¶¶ 68–81. Plaintiff also brings claims of negligence against the County and Amato under New
York State common law. Id. ¶¶ 81–83.
Presently before the Court is Defendants’ motion to dismiss each claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. Dkt. Nos. 9 (“Motion to Dismiss”); 9-9 (“Defendants’ Memorandum”). Plaintiff
opposes Defendants’ Motion to Dismiss, Dkt. No. 14 (“Response”), and Defendants have filed a
reply, Dkt. No. 16 (“Reply”).
For the following reasons, the Motion to Dismiss is granted.
II. BACKGROUND
The Court draws all facts, which are assumed to be true, from the Complaint. Bryant v.
N.Y. State Educ. Dep’t, 692 F.3d 202, 210 (2d Cir. 2012).
Plaintiff is a “disabl[ed],” African American, Latina female who was employed as a
correction officer in the Montgomery County Correctional Facility (“Montgomery Cty. C. F.”)
from June 2008 until 2017. Compl. ¶¶ 15, 19–20. During that time, she was regularly subjected
to harassment and discriminatory treatment by “some co-workers.” Id. ¶ 21. The harassment took
the form of on-the-job racial, ethnic, and gender-based comments made by co-workers. Id.
Specific instances of such harassment included the posting of break room cartoons with racist
stereotypes, such as images purporting to correlate Puerto Ricans and food stamps, while another
instance involved a co-worker telling Plaintiff that Puerto Ricans “can’t be trusted” and that they
“always bring in contraband.” Id. Another co-worker expressed to Plaintiff that she should buy a
“pink thong” and followed up with asking Plaintiff if she ever “f–ked around” on her husband.
Id. Additionally, Plaintiff was denied equal access to preferred job assignments and to training
opportunities. Id. ¶ 22. On numerous occasions, Plaintiff complained about her discriminatory
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treatment to supervisors, including Amato. Id. {| 23. However, the complaints were not taken
seriously. Id. Jj 24.
Despite efforts to correct the situation by filing complaints with the Equal Employment
Opportunity Commission (“EEOC”) and the New York State Division of Human Rights
(“NYSDHR’”) in 2010 (the “2010 Complaints”), the treatment persisted. Id. J] 23, 26-28, 32-34.
NYSDHR conducted an investigation, in which Amato, among others, was required to appear
and respond to Plaintiff's claims. Id. §] 29. For reasons not identified in the Complaint, the filings
with the EEOC and Division of Human Rights were ultimately dismissed. Id. 731. As a result of
the investigation, Plaintiff alleges that Defendants were displeased with her decision to file the
2010 Complaints and engaged in retaliatory behavior, culminating in criminal charges and her
subsequent arrest in 2016. Id. □□ 32-35, 40.
On May 16, 2016, Plaintiff was arrested and charged by Cramer with promoting prison
contraband in the second degree for allegedly possessing her cell phone inside the Montgomery
Cty. C. F. Id. J§] 36-37, 40. This occurred even though “many officers, officials and employees of
the County regularly possessed their personal cell phones while on duty and inside of [the
Montgomery Cty. C. F.][,]” and no white, male, non-disabled officer, official, or employee had
ever been arrested for such conduct. Id. 4] 49-50, 52-53. Cramer commenced the action against
Plaintiff with the knowledge and consent of Amato and the County. Id. ] 37-38. Plaintiff was
briefly held in custody, fingerprinted, and photographed. Id. §] 40. The case against Plaintiff was
ultimately dismissed. Id. 47. However, as a consequence of the charge, arrest, and subsequent
prosecution, Plaintiff was terminated from her employment as a correction officer. Id, 56. As a
result, Plaintiff asserts she suffered severe and debilitating psychological and emotional pain and
suffering as well as other injuries and damages, including lost wages, medical bills, and legal
fees. Id. ¶ 67. Plaintiff further alleges that her liberty was constrained and infringed upon from
May 16, 2016 until May 18, 2017 (i.e., the entire period of time the charges were pending). Id. ¶
46.
Plaintiff requests $1,000,000 in compensatory damages, $100,000 in punitive damages
from each of Amato and Cramer, court costs, and attorneys’ fees. Id. at 16.
III. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter . . . ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (citing Twombly, 550 U.S. at 556). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Put another way, a claim is plausible if it is
supported by “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence
of [the alleged misconduct].” Twombly, 550 U.S. at 556. In assessing whether this standard has
been met, courts “must accept all allegations in the complaint as true and draw all inferences in
the light most favorable to the non-moving party[] . . . .” In re NYSE Specialists Sec. Litig., 503
F.3d 89, 95 (2d Cir. 2007) (internal citation omitted).
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IV. DISCUSSION
A. Consideration of Materials Outside of the Pleadings
In support of Defendants’ Motion to Dismiss, Defendants’ attorney, Shawn F. Brousseau,
has submitted an affidavit and documentary evidence. Dkt. Nos. 9-1 to 9-8. As noted by another
court in this circuit:
Ordinarily, a court may not look beyond the four comers of the
complaint in considering a motion to dismiss. See Friedl v. City of
New York, 210 F.3d 79, 83 (2d Cir. 2000). “However, a court may
convert a motion to dismiss into a motion for summary judgment by
considering extrinsic evidence, as long as the opposing party receives
sufficient notice and an opportunity to respond.” Mayo v. Federal
Government, —— Fed.Appx. ——, 2014 WL 928999, at *1 (2d Cir.
2014) (citing Hernandez v. Coffey, 582 F.3d 303, 307-08 (2d Cir.
2009)).
Rath v. Pitcher, No. 12-CV-6543L, 2014 WL 1315413, at *1 (W.D.N.Y. Mar. 28, 2014); see also
Fed. R. Civ. P. 12(d).
The Court need not consider Defendants’ proffer of evidence extrinsic to the Complaint
because, as discussed further below, the Court finds Plaintiff's allegations insufficient to support
her claims. Hence, the Court will “exclude the additional material and decide the motion on the
complaint alone.” See Friedl, 210 F.3d at 83.
B. Equal-Protection Claims Under the Fourteenth Amendment
Defendants argue that Plaintiff's allegations of equal-protection violations are too
threadbare to support her claims because she does not identify any specific correction officers
who were treated differently from her. Defs.” Mem. at 6-7. The Court agrees.
The Equal Protection Clause of the Fourteenth Amendment requires that the government
treat all similarly-situated people alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). Specifically, the Equal Protection Clause “bars the government from selective
adverse treatment of individuals compared with other similarly situated individuals if ‘such
selective treatment was based on impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a
person.’” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders, 627
F.2d 606, 609-10 (2d Cir. 1980)). To state a viable claim for denial of equal protection, a
plaintiff generally must allege “purposeful discrimination . . . directed at an identifiable or
suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). “[P]urposeful
discrimination requires more than intent as volition or intent as awareness of consequences. It
instead involves a decisionmaker’s undertaking a course of action because of, not merely in spite
of, [the action’s] adverse effects upon an identifiable group.” Mitchell on behalf of J.C.M. v. City
of Poughkeepsie Sch. Dist., No. 19-CV-3879, 2019 WL 3080835, at *3 (S.D.N.Y. July 12, 2019)
(quoting Turkmen v. Hasty, 789 F.3d 218, 252 (2d Cir. 2015), rev’d and vacated in part on other
grounds sub nom, Ziglar v, Abbasi, 137 S. Ct. 1843 (2017)). In the alternative, under a “class of
one” theory, a plaintiff must allege that she has been intentionally treated differently from others
similarly situated, with no rational basis for the difference in treatment. Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000); DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003).
Plaintiff avers that Defendants, by arresting and prosecuting Plaintiff for possessing a cell
phone within the Montgomery Cty. C. F., purposefully discriminated against her in retaliation for
engaging in protected activity and as a disabled, a non-white, and female correction officer. See
Compl. §[§[ 49-53. As an initial matter, the Second Circuit “disallows a retaliation claim based on
the Equal Protection Clause.” Hickey v. Myers, No. 09-CV-1307, 2010 WL 786459, at *2
(N.D.N.Y. Mar. 2, 2010) (citing Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996)). Moreover,
“[d]isability and/or perceived disability are not suspect or quasi-suspect classifications.” Kaiser
v. Highland Cent. Sch. Dist., No. 08-CV-436, 2008 WL 5157450, at *2 (N.D.N.Y. Dec. 8, 2008)
(Kahn, J.). While race and gender are suspect classes for the purposes of an equal-protection
claim, Awad v. Semple, No. 18-CV-2008, 2019 WL 1922294, at *3 (D. Conn. Apr. 29, 2019)
(citing Winston v. City of Syracuse, 887 F.3d 553, 560 (2d Cir. 2018)), Plaintiff has not alleged
facts suggesting Defendants “purposefully discriminated against the plaintiff because of her
membership” in those protected classes. See Mitchell on behalf of J.C.M., 2019 WL 3080835, at
*3. Although unidentified co-workers may have made inappropriate statements to Plaintiff
regarding her race and gender, Compl. ¶ 21, those statements alone do not suggest Defendants
arrested Plaintiff because she is a non-white and female correction officer. None of Plaintiffs
other allegations suggest Defendants purposefully discriminated against Plaintiff by arresting and
prosecuting her. Even if “many officers, officials and employees of the County regularly
possessed their personal cell phones while on duty and inside of [the Montgomery Cty. C. F.][,]”
and no white and male officer, official, or employee had ever been arrested for such conduct, id.
¶¶ 49–50, 52, these allegations indicate that Defendants may have wanted to make an example
out of Plaintiff to discourage other employees of the correctional facility from violating prison
regulations.
Plaintiff alleges under a “class of one” theory that Defendants intentionally treated her
differently than “other similarly situated employees.” Compl. ¶ 48. Yet as Plaintiff “does not
identify any similarly-situated individuals . . . let alone any similarly-situated individuals that
were treated differently,” Plaintiff’s class-of-one claim must fail. See Jenn-Ching Luo v. Baldwin
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Union Free Sch. Dist., No. 12-CV-6054, 2013 WL 4719090, at *5 (E.D.N.Y. Sept. 3, 2013). And
even if Plaintiff had identified such employees, the Court must dismiss Plaintiff’s class-of-one
claim because “the Equal Protection Clause does not apply to a public employee asserting a
violation of the Equal Protection Clause under a ‘class of one’ theory.” See Kaiser, 2008 WL
5157450, at *2 (citing Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591 (2008)).
In sum, the Court dismisses Plaintiff’s equal-protection claims under the Fourteenth
Amendment for failure to state a claim.
C. Equal-Protection Claims Under the N.Y. Constitution
As noted by another court in this circuit:
Article I, Section 11 of the New York State Constitution provides that
‘[n]o person shall be denied the equal protection of the laws of this
state or any subdivision thereof.’ N.Y. Const., art. I, § 11. Like its
federal counterpart, it ‘commands that persons similarly situated
should be treated alike[.]’ Walton v. N.Y. State Dep’t of Corr., 13
N.Y.3d 475, 492, 893 N.Y.S.2d 453, 921 N.E.2d 145 (2009) (internal
quotation marks and citation omitted).
Sullivan v. City of New York, No. 17-CV-3779, 2018 WL 3368706, at *19 (S.D.N.Y. July 10,
2018).
“The New York Court of Appeals has recognized that a plaintiff may bring constitutional
tort claims for damages independent of a common law cause of action. However, this claim is a
narrow remedy available only when there is no alternative remedy, such as actions at common
law or under Section 1983.” Edrei v. City of New York, 254 F. Supp. 3d 565, 583 (S.D.N.Y.
2017) (internal citations and quotation marks omitted), aff’d sub nom. Edrei v. Maguire, 892
F.3d 525 (2d Cir. 2018), cert. denied, 139 S. Ct. 2614 (2019).
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Even assuming at this stage that Plaintiff has no alternative remedy for her equal-
protection claims, Plaintiff has failed to adequately plead a claim under Art. I, § 11 of the New
York State Constitution. In Sullivan, the court dismissed a similar claim in part “[b]ecause of the
paucity of Plaintiff’s factual allegations suggestive of racial discrimination.” Sullivan, 2018 WL
3368706, at *20. Similar to Sullivan, and as discussed above, Plaintiff has not sufficiently
alleged Defendants intentionally discriminated against her. Nor has Plaintiff identified similarly-
situated individuals with whom she was comparatively treated differently. Thus, Plaintiff’s
equal-protection claims under the New York State Constitution must be dismissed for failing to
state a claim.
D. Discrimination Claims under the NYSHRL
Defendants argue that Plaintiff “has failed to plead any facts that would create an
inference that” Defendants discriminated against Plaintiff based on her race, gender, and
disability. Defs.’ Mem. at 12–13. The Court agrees.
First, Plaintiff has not shown that her race or her gender was plausibly a motivating factor
behind the adverse employment actions she purportedly suffered: hostile-work environment and
termination from her job. Compl. ¶¶ 34, 56. “New York courts require the same standard of proof
for claims brought under the NY[S]HRL as for those brought under Title VII . . . .” Leopold v.
Baccarat, Inc., 174 F.3d 261, 264 (2d Cir. 1999). As another court in this circuit has observed:
A plaintiff asserting a Title VII discrimination claim must allege facts
showing that (1) the employer took adverse action against her and (2)
her race, color, religion, sex, or national origin was a motivating
factor in the employment decision, which can be shown by alleging
facts that directly show discrimination or facts that indirectly show
discrimination by giving rise to a plausible inference of
discrimination. In other words, absent direct evidence of
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discrimination, to survive a motion to dismiss a claim of employment
discrimination in violation of Title VII, a plaintiff must plausibly
allege facts that would support a finding that she suffered an adverse
employment action and has at least minimal support for the
proposition that the employer was motivated by discriminatory intent.
Powell v. Delta Airlines, 145 F. Supp. 3d 189, 201 (E.D.N.Y. 2015) (internal citations, quotation
marks, and alterations omitted).
As yet another court in this circuit has noted:
In general, if bringing a hostile-work-environment claim, a plaintiff
must show that a defendant’s conduct (1) was ‘objectively severe or
pervasive,’ (2) created an environment that was ‘subjectively
perceive[d] as hostile or abusive,’ and (3) ‘created such an
environment because of the plaintiff’s [protected characteristic].’
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). To survive a
motion to dismiss, a plaintiff need only ‘plead facts sufficient to
support the conclusion that she was faced with harassment . . . of such
quality or quantity that a reasonable employee would find the
conditions of her employment altered for the worse.’ Donahue v. Asia
TV USA Ltd., 208 F. Supp. 3d 505, 514 (S.D.N.Y. 2016) (alterations
in original) (quoting Patane, 508 F.3d at 113). Courts will look at ‘the
totality of the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work performance.’
Yan v. Ziba Mode Inc., No. 15-CV-47, 2016 WL 1276456, at *5
(S.D.N.Y. Mar. 29, 2016) (internal quotations omitted). ‘While each
of these elements is relevant to the inquiry, no single factor is
required.’ Dawson v. Cty. of Westchester, 373 F.3d 265, 272 (2d Cir.
2004) (internal quotations omitted).
When analyzing severity, a court ‘must distinguish between merely
offensive or boorish conduct and conduct that is sufficiently severe
as to alter the conditions of employment.’ Lenart v. Coach Inc., 131
F. Supp. 3d 61, 66 (S.D.N.Y. 2015). Similarly, when analyzing
pervasiveness, a court will evaluate whether ‘the incidents
complained of [were] more than episodic.’ Littlejohn v. City of New
York, 795 F.3d 297, 321 (2d Cir. 2015). ‘In other words, a plaintiff
must show either that a single incident was extraordinarily severe, or
that a series of incidents were sufficiently continuous and concerted
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to have altered the conditions of her working environment.’ Yan,
2016 WL 1276456 at *5 (internal quotations omitted).
Alvarado v. Mount Pleasant Cottage Sch. Dist., No. 18-CV-494, 2019 WL 4039149, at *9
(S.D.N.Y. Aug. 27, 2019).'
Here, Plaintiff has not established she was plausibly exposed to a hostile-work
environment because of her race or gender. Although co-workers may have made inappropriate
statements to Plaintiff regarding her race or gender, Compl. 21, Plaintiff does not identify
which co-workers made such statements or clarify whether those statements “were sufficiently
continuous and concerted to have altered the conditions of [her] employment.” See Alvarado,
2019 WL 4039149, at *9 (quoting Yan v. Ziba Mode Inc., No. 15-CV-47, 2016 WL 1276456, at
*5 (S.D.N.Y. Mar. 29, 2016) (internal quotations omitted)). Thus, as in a previous case decided
by this Court, “[t]he Court is not convinced these allegations reflect nothing more than ‘offensive
utterances and remarks that seemingly and understandably engendered offensive feelings in
Plaintiff,’ but which do not meet the standard for a hostile-work-environment claim.” See
Buczakowski v. Crouse Health Hosp., Inc., No. 18-CV-330, 2019 WL 6330206, at *7 n.9
(N.D.N.Y. Nov. 26, 2019) (Kahn, J.) (quoting Alvarado, 2019 WL 4039149, at *10). Plaintiff
has not pled any additional facts to establish she was exposed to a hostile-work environment, let
alone that exposure to such an environment was motivated by Plaintiffs race or gender.
While Plaintiff avers that Defendants terminated her employment as a correction officer
for possessing a cell phone within the Montgomery Cty. C. F., she does not plead facts
' While the standard articulated in Alvarado pertains to hostile-work-environment claims
brought under Title VII, that standard also applies to such claims brought under the NYSHRL.
See, e.g., Woods v. Enlarged City Sch. Dist., 473 F. Supp. 2d 498 n.1 (S.D.N.Y. 2007).
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suggesting Defendants were motivated to terminate Plaintiff because of her race or gender. See
Khaleel v. Swissport USA, Inc., No. 15-CV-4880, 2015 WL 5307733, at *2 (E.D.N.Y. Sept. 10,
2015) (“Even under the most liberal interpretation of [the plaintiff’s] complaint, he provides no
facts that could possibly connect or link any adverse employment action to a protected status.”
(citing, inter alia, Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).
Additionally, Plaintiff has not shown her disability was a motivating factor behind the
hostile-work environment and termination she allegedly suffered. To successfully allege
violations of the NYSHRL based upon disability discrimination, Plaintiff “must show that [] she
suffers from a disability and that the disability engendered the behavior for which [] she was
discriminated against in the terms, conditions, or privileges of [] her employment.”
Ruane-Wilkens v. Bd. of Educ. of City of New York, 868 N.Y.S.2d 112, 113 (2008) (App. Div.).
Plaintiff’s disability discrimination claim must fail because she alleges, without further
elaboration, that she is “a person with a disability.” Compl. ¶ 15. Such a conclusory allegation is
insufficient to support her claims. Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” citing Twombly, 550
U.S. at 555)). And even if Plaintiff had sufficiently established she is in fact disabled for the
purposes of the NYSHRL, her claim would still founder because Plaintiff has not averred facts
suggesting Defendants were motivated to subject Plaintiff to a hostile-work environment or to
terminate Plaintiff because of a disability. See Haynes v. Capital One Bank, No. 14-CV-6551,
2015 WL 2213726, at *2 (E.D.N.Y. May 8, 2015) (“[A]lthough Haynes indicates that she was
discriminated against on the basis of her race, she does not state what race she is. Further, aside
from one ambiguous remark made by her branch manager, in which she stated that ‘this is why I
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don’t hire her kind,’ Haynes fails to allege any facts that suggest her termination or any other
adverse employment actions were connected to her race.”)
In sum, the Court must dismiss Plaintiff’s discrimination claims under the NYSHRL for
failing to state a claim.2
E. Retaliation Claims Under the NYSHRL
“To state a retaliation claim under the NYSHRL, a plaintiff must allege that: ‘(1) she
engaged in protected activity; (2) the employer was aware of that activity; (3) the employee
suffered a materially adverse action; and (4) there was a causal connection between the protected
activity and that adverse action.’” Wermann v. Excel Dentistry, P.C., No. 13-CV-7028, 2014 WL
846723, at *3 (S.D.N.Y. Feb. 25, 2014) (quoting Giudice v. Red Robin Int’l, Inc., 555 F. App’x
67, 68 (2d Cir. 2014)). “In this Circuit, a plaintiff can indirectly establish a causal connection to
support a discrimination or retaliation claim by showing that the protected activity was closely
followed in time by the adverse [employment] action.” Gorman-Bakos v. Cornell Co-op
Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks
omitted).
Plaintiff alleges, without more, that Defendants terminated her position in 2017 in
retaliation for her internal complaints3 regarding the discrimination she faced while employed at
2 The Court need not reach Defendants’ alternative arguments for dismissal, namely that
Cramer is not subject to the NYSHRL and that any claims of discrimination occurring before
August 8, 2015 are time-barred. Defs.’ Mem. at 9–11.
3 While Plaintiff does not clarify when she made these complaints beyond “early in her
tenure” at the Montgomery Cty. C. F., Compl. ¶ 23, the Court surmises such complaints were
made prior to 2010 when Plaintiff filed formal complaints of discrimination with the EEOC and
NYSDHR.
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the Montgomery Cty. C. F. and her 2010 Complaints to the EEOC and SDHR about the same
episodes of discrimination. Compl. §] 35. However, even assuming Plaintiff has adequately pled
she suffered adverse action through her termination and engaged in protected activities through
making her complaints, a six- or more-year gap between the alleged adverse action and protected
activities cannot establish the causal nexus required for Plaintiff's retaliation claims to proceed.
See Fox v. Nat’] R.R. Passenger Corp. (Amtrak), No. 06-CV-1135, 2009 WL 425806, at *8
(N.D.N.Y. Feb. 19, 2009) (Kahn, J.) (citing Hollander v. American Cyanamid Co., 895 F.2d 80,
85-86 (2d Cir. 1990)) (finding an eight-month lag “between the most recent protected action (the
filing of the complaint) and the alleged retaliatory act... too long to suggest a causal connection,
without more evidence of retaliatory animus”), adhered to on reconsideration sub nom. Fox v.
R.R. Passenger Corp., No. 06-CV-1135, 2009 WL 656406 (N.D.N.Y. Mar. 11, 2009)
(Kahn, J.), aff'd sub nom. Fox v. Nat’| R.R. Passenger Corp., 370 F. App’x 156 (2d Cir. 2010).
Hence, the Court must dismiss Plaintiffs retaliation claims for failing to state a claim.
F. Malicious Prosecution Claims Under the Fourth and Fourteenth Amendments
and New York State Law
“A plaintiff who brings a federal malicious prosecution claim must allege all the elements
of malicious prosecution under state law.” Oxman v. Downs, 999 F, Supp. 2d 404, 412
(E.D.N.Y. 2014) (citing Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002)); Janetka v. Dabe,
892 F.2d 187, 189 (2d Cir. 1989)). “Under New York law, Plaintiff must prove four elements to
establish a claim for malicious prosecution: (1) the initiation of a proceeding, (2) termination of
said proceeding favorably to the plaintiff, (3) lack of probable cause, and (4) malice .... Where a
Fourth Amendment violation is asserted, the plaintiff must also plead some deprivation of liberty
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consistent with the concept of seizure.” Folk v. City of New York, 243 F. Supp. 3d 363, 373
(E.D.N.Y. 2017) (internal citations and quotation marks omitted).
Defendants argue Plaintiff has failed to adequately plead facts supporting the second,
third, and fourth elements of a malicious prosecution claim. Defs.’ Mem. at 18-20. The Court
agrees,
Plaintiff has insufficiently alleged facts supporting favorable termination. Under § 1983, a
plaintiff must plead facts plausibly suggesting her “‘prosecution terminated in some manner
indicating that the person was not guilty of the offense charged,’ based on the ‘merits’ rather than
‘on any number of procedural or jurisdictional grounds.’” Rosario v. City of New York, No. 18-
CV-4023, 2019 WL 4450685, at *4 (S.D.N.Y. Sept. 16, 2019) (quoting Lanning v. City of Glens
Falls, 908 F.3d 19, 28 (2d Cir. 2018)). New York State law requires a “lesser showing” of
favorable termination, namely “that ‘the trial court’s reasons for dismissing the charges are not
inconsistent with ... innocence.’” Butler v. Sampognaro, No. 18-CV-545, 2019 WL 3716595, at
*A (D. Conn. Aug. 7, 2019) (quoting Lanning, 908 F.3d at 27); see also Rosario, 2019 WL
4450685, at *8. In Lanning, the Second Circuit upheld the dismissal of a § 1983 malicious-
prosecution claim because the plaintiff had made a “vague allegation” that the charges against
him “‘were dismissed’ at some point after a jury trial, without specifying how or on what
grounds.” 908 F.3d at 28. Here, Plaintiff makes a similarly conclusory allegation that “[t]he
dismissal of the charge” for promoting prison contraband in the second degree “was a favorable
termination.” See Compl. § 48.
Regarding lack of probable clause, Plaintiff “baldly assert[s] [D]efendants prosecuted
[her] without probable cause.” See Parkash v. Town of Se., No. 10-CV-8098, 2011 WL 5142669,
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at *4 (S.D.N.Y. Sept. 30, 2011) (citing Iqbal, 556 U.S. at 679–80), aff’d, 468 F. App’x 80 (2d
Cir. 2012); Compl. ¶ 43 (“Defendants lacked probable cause to believe that on May 16, 2016,
Ms. Facci-Brahler had introduced contraband into the facility.”). As in Dava v. City of New
York, “Plaintiff’s failure to plead facts—rather than conclusory allegations—sufficient to
establish a lack of probable cause dooms [her] malicious prosecution claim.” See
No. 15-CV-8575, 2016 WL 4532203, at *6 (S.D.N.Y. Aug. 29, 2016).
Finally, Plaintiff has inadequately pled Defendants acted with malice in prosecuting
Plaintiff for promoting prison contraband in the second degree. “To plead a malicious
prosecution claim, Plaintiff must also allege malice for each of the Defendants. Malice may be
shown by proving that the prosecution complained of was undertaken from improper or wrongful
motives, or in reckless disregard of the rights of the plaintiff.” Ying Li v. City of New York, 246
F. Supp. 3d 578, 614 (E.D.N.Y. 2017) (internal citation, quotation marks, and alterations
omitted). Plaintiff argues that she has sufficiently averred Defendants acted with malice since
“the Complaint alleges that Plaintiff was singled out by Defendants as the sole correction officer
or employee to ever be criminally charged and prosecuted for allegedly possessing a cell phone in
[the Montgomery Cty. C. F.], although it was common knowledge that many other officers
brought cell phones into the facility on a regular basis.” Pl.’s Resp. at 15. But, as discussed
within the context of Plaintiff’s equal-protection claims, Plaintiff has not specifically identified
any other correction officers or employees who were treated differently than Plaintiff. While
Plaintiff cites to twenty-five paragraphs of her Complaint to support her contention that
Defendants acted with malice, none of the citations (individually or collectively) plausibly
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suggest Defendants “specifically . . . acted with malice.” See Nieves v. Cty. of Monroe, 761 F.
Supp. 2d 48, 52 (W.D.N.Y. 2011) (emphasis in original).
In sum, the Court must dismiss Plaintiff’s malicious-prosecution claims.4
G. Due-Process Claims Under the Fifth and Fourteenth Amendments
As an initial matter, “[t]he Fifth Amendment’s Due Process Clause protects citizens
against only federal government actors, not State officials.” Mitchell v. Home, 377 F. Supp. 2d
361, 372 (S.D.N.Y. 2005) (citing Dusenbery v. United States, 534 U.S. 161, 167 (2002)). Since
Defendants are state—not federal—actors, Plaintiffs’ due-process claims under the Fifth
Amendment are dismissed.
Under the Due Process Clause of the Fourteenth Amendment, no state shall “deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. As
noted by another court in this district:
The Due Process Clause of the Fourteenth Amendment contains both
a procedural and substantive component. Zinernon v. Burch, 494 U.S.
113, 125, 110 S.Ct. 975, 983 (1990). The procedural component bars
‘the deprivation by state action of a constitutionally protected interest
in ‘life, liberty, or property’ . . . without due process of law.’ Id.
(emphasis in original). The substantive component ‘bars certain
arbitrary, wrongful government actions regardless of the fairness of
the procedures used to implement them.’ Id.
Rotundo v. Vill. of Yorkville, No. 09-CV-1262, 2011 WL 838892, at *7 (N.D.N.Y. Mar. 4,
2011).
4 The Court need not reach Defendants’ alternative arguments for dismissal, namely that
Plaintiff’s malicious-prosecution claims under Art. I., § 6 of the New York State Constitution
and New York State common law are time barred and that defendants are entitled to qualified
immunity. Defs.’ Mem. at 17, 20–22.
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Plaintiff claims she has a “property interest in her continued public employment as a
correction officer... Pl.’s Resp. at 23.
“A procedural due process inquiry entails two inquiries: 1) whether there [was] a
constitutionally protected property interest; and 2) whether the process afforded was adequate.”
Rotundo, 2011 WL 838892, at *8. Plaintiff's “constitutional claim depends on [her] having had a
property right in continued employment . .. . Property interests are not created by the
Constitution, they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.” Coles v, Erie Cty., 629
F, App’x 41, 42 (2d Cir. 2015) (internal quotation marks omitted) (quoting Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). “In the employment context, the interest [in
continued employment] is typically established by showing that under the provisions of a statute
or collective bargaining agreement, the employee cannot be terminated or demoted without a
hearing.” Rotundo, 2011 WL 838892, at *8 (citing Ciambriello v. Cty. of Nassau, 292 F.3d 307,
313-14 (2d Cir. 2002)). Since Plaintiff “fails to point to a contract or statute that would have
conferred a protected property interest in her position,” she has not sufficiently alleged a
constitutionally protected property interest. See Blan v. Correct Care Sols., LLC, No. 17-CV-182,
2017 WL 8640634, at *3 (D. N.M. Dec. 11, 2017). Accordingly, the Court must dismiss
Plaintiff's procedural due-process claim.
“To establish that defendants violated plaintiff's substantive due process rights, the Court
must first inquire ‘whether a constitutionally cognizable property interest is at stake.’” Scaccia v.
Stamp, 700 F. Supp. 2d 219, 235 (N.D.N.Y. 2010) (quoting Villager Pond, Inc. v. Town of
Darien, 56 F.3d 375, 378 (2d Cir. 1995)), aff'd, 447 F. App’x 267 (2d Cir. 2012). Second, the
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Court must determine whether Defendants “acted in an arbitrary or irrational manner in depriving
[Plaintiff] of that property interest.” Rotundo, 2011 WL 838892, at *9.
As another court in this circuit has observed:
‘The Second Circuit has never articulated a fundamental interest in
public employment giving rise to substantive due process protection,’
see, e.g., Mathirampuzha v. Potter, No. 8-CV-682, 2010 WL 55061
*9 (D. Conn. Jan. 4, 2010), and other courts have explicitly declared
that there is no such interest. See, e.g., Nicholas v. Pa. State Univ.,
227 F.3d 133, 142 (3d Cir. 2000) Goining the ‘great majority of
courts of appeals’ in holding that ‘tenured public employment’ is not
a ‘fundamental property interest entitled to substantive due process
protection[’]); McKinney v. Pate, 20 F.3d 1550, 1553, 1560 (11th
Cir. 1994) (en banc) (state-created property interest in employment
does not give rise to substantive due process claim).
Nichik v. New York City Transit Auth., No. 10-CV-5260, 2013 WL 142372, at *12 (E.D.N.Y.
Jan. 11, 2013). Because, similar to the plaintiff in Rotundo, “Plaintiff has not alleged any
constitutionally protected property or liberty interest other than [her] continued public
employment” as a correction officer, the Court must dismiss Plaintiff's substantive due-process
claim. See Rotundo, 2011 WL 838892, at *10.
H. Negligence Claims
Plaintiff brings negligence claims against the County and Amato. Compl. {J 82-83.
Plaintiff fails to clarify on what grounds the County and Amato may have acted negligently. “To
the extent that plaintiff is alleging an alternate theory of liability for .. . prosecution sounding in
negligence, New York does not provide a cause of action under such a theory. A plaintiff may
seek recovery only through the traditional tort remedies of false arrest, false imprisonment and
malicious prosecution.” Rheingold v. Harrison Town Police Dep’t, 568 F. Supp. 2d 384, 396 n.3
(S.D.N.Y. 2008) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)), Plaintiff's
19
negligence claims are therefore dismissed. See Davis v. United States, No. 03-CV-1800, 2004
WL 324880, at *11 (S.D.N.Y. Feb. 19, 2004) (dismissing a plaintiff's negligence claim on the
pleadings because the “proper manner” to challenge the conduct at issue “is through claims of
false arrest and malicious prosecution”).°
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 9) is GRANTED; and it is
further
ORDERED, that Plaintiff may replead her claims within sixty days of the date of this
Memorandum-Decision and Order; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED: January 22, 2020
Albany, New York
fee
U.S. District Judge
> The Court need not reach Defendants’ argument for dismissal, namely that Plaintiff's
negligence claims are time barred. Defs.’ Mem. at 22-23.
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