# Merrill v. Copeland

> District Court, N.D. New York · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10312953

## Case

- **Court:** District Court, N.D. New York
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10312953

## How later opinions describe it (automated extraction)

- explaining that the Circuit has “found that officials acted under color of law when their misuse of official power made the commission of a constitutional wrong possible”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

HEATHER MERRILL,

Plaintiff, 3:19-cv-01240 (BKS/ML)

v.

CORRINE L. COPELAND,

Defendant.

Appearances:
For Plaintiff:
Michael H. Sussman
Sussman & Associates
1 Railroad Avenue, Suite 3
P.O. Box 1005
Goshen, NY 10924
For Defendant:
Meredith A. Moriarty
Smith Hoke, PLLC
16 Wade Road
Latham, NY 12110
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Heather Merrill brings this action against Defendant Corrine L. Copeland under
42 U.S.C. § 1983, alleging claims of false arrest and malicious prosecution in violation of her
Fourth Amendment rights. (Dkt. No. 1). Defendant moves to dismiss the Complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 8). The parties have filed
responsive briefing. (Dkt. Nos. 12, 13). For the reasons that follow, Defendant’s motion is
denied.
II. FACTS1
A. Plaintiff’s Sexual Assault
Plaintiff Heather Merrill was a “long-time employee” of the Youth Leadership Academy
(the “Facility”)2 in Delaware County, New York. (Dkt. No. 1, ¶ 4). Defendant Corrine L.
Copeland was employed by the Office of Children and Family Services as a youth counselor. (Id.
¶ 2). Between 9:00 and 10:00 p.m. on October 17, 2017, J.C., a “minor resident” of the Facility

sexually assaulted Plaintiff in a bathroom stall while a second minor resident, G.H., “served as a
lookout.” (Id. ¶¶ 4–5, 16(A)). J.C. and G.H. “had criminal records.” (Id. ¶ 21). “During the
sexual assault,” Defendant, “then the Administrator-on-Duty at the facility” came into the “room
associated with the bathroom stall” and opened the “stall where [P]laintiff was being sexually
assaulted.” (Id. ¶ 6). Plaintiff “pleaded with [Defendant] for assistance.” (Id. ¶ 11). Rather than
separating Plaintiff from J.C. and the G.H., Defendant, who “had a radio on her person and could
have sought assistance . . . and maintained her position” near Plaintiff, “left [P]laintiff alone in
the area with both minors.” (Id. ¶¶ 12–13). “From the outset, [P]laintiff explained that she had
been forced into the bathroom stall and sexually assaulted.” (Id. ¶ 27).
B. Defendant’s False Statements in a Supporting Deposition

Later that evening, Defendant “signed a Supporting Deposition” in which she “falsely
reported” the following facts:
 When Defendant “opened the door of the stall where J.C. was sexually assaulting
[Plaintiff] and asked what was happening, [P]laintiff responded, ‘I was teaching
him how to clean the toilet.’” (Id. ¶ 7).

1 The facts are taken from the Complaint. (Dkt. No. 1). The Court will assume the truth of, and draw reasonable
inferences from, those well-pleaded factual allegations. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).
2 While the Complaint provides little information regarding this entity, the Complaint refers to it as “the Facility,” and
the Court does so as well.
 Defendant falsely reported that J.C. “told [Defendant] that he ‘finger popped’”
Plaintiff “three times and stuck his dick in her two or three times” before
Defendant “came into the stall.” (Id. ¶ 8).
 That “J.[C.] advised [Defendant] that [Plaintiff] coerced him to have sex.” (Id. ¶

9).
Defendant also “falsely claimed that [P]laintiff had begged [Defendant] not to report the
incident” and that Plaintiff “expressed concern that she would lose her job due to the incident.”3
(Id. ¶ 14). Defendant “never reported” Plaintiff’s plea for assistance. (Id. ¶¶ 11, 16(D)).
According to the Complaint, Defendant claims that she was “so outraged” at Plaintiff that
“this explains why she left” Plaintiff with J.C. and G.H., and that if she “had stayed in the room,
she would have “punched [P]laintiff out.” (Id. ¶¶ 17–18). Defendant further claims that she was
“so angry” with Plaintiff that she “could not dial her phone properly” and alert the authorities to
the incident. (Id. ¶ 19).
C. Defendant’s False Statements to a Grand Jury

Defendant testified before a grand jury and “continued to lie about the incident.” (Id. ¶
15). Defendant told the following lies to the grand jury, (id. ¶ 16):
 That on October 17, 2017, Plaintiff “asked [Defendant] if [Plaintiff] could take
J.C. to do his duties. (Id. ¶ 16(A)). In fact, Plaintiff “made no such request that
evening and, instead,” Defendant had “directed [Plaintiff] to take J.C. and . . .
G.H. to a remote area to clean.” (Id.).
 That Plaintiff “changed the way she wore her hair” and that Plaintiff’s “behavior
was changing over a period of a couple weeks before the incident.” (Id. ¶ 16(B)).

3 The Complaint does not state where this “false claim[]” was made. (Dkt. No. 1, ¶ 14).
In fact, Plaintiff “made no substantial or noticeable changes during these days or
weeks to her appearance or in her deportment.” (Id.).
 That Plaintiff “dyed her hair ‘gang colors’ the day before the incident.” (Id. ¶
16(G)).

 That when Defendant “observed feet in the bathroom stall,” Plaintiff was “facing
J.C.” (Id. ¶ 16(C)). In fact, “J.C. was at the front of the stall, blocking [P]laintiff
who was behind him in the stall.” (Id.).
 That when Defendant “opened the stall,” Plaintiff kept saying, “Copeland please
don’t say anything, please don’t say anything.” (Id. ¶ 16(D)). In fact, Plaintiff
“made no such remark to [D]efendant and instead pleaded with Defendant for
assistance.” (Id.).
 That Plaintiff “did not ask [Defendant] for assistance or ask her to stay with her,”
(id. ¶ 16(E)), when in fact she pleaded with Defendant for assistance. (Id. ¶¶ 11,

16(D)).
 That Plaintiff and J.C. “had a relationship.” (Id. ¶ 16(E)).
 That she and other staff at the Facility “didn’t know she was sleeping with the
kids,” which falsely suggested that Plaintiff “had engaged in that activity.” (Id. ¶
16(F)).
 That J.C. and G.H. were “harmless.” (Id. ¶16(H)), when in fact, both “were in the
facility for acts of violence.” (Id.).
The various false reports Defendant gave—and the ones she omitted—were intentional. (Id. ¶
29). Defendant “acted out of animus” toward Plaintiff. (Id. ¶ 30).
D. Plaintiff’s Arrest and Trial
Plaintiff was arrested and prosecuted on two felony counts of third-degree rape and
endangering the welfare of a child, a misdemeanor. (Id. ¶¶ 20, 24). Following her arrest, Plaintiff
was “transported to the county jail, arraigned, . . . and detained for hours before bail could be
raised and posted.” (Id.).

At Plaintiff’s criminal trial, Defendant “was the only adult witness” to corroborate “the
charges against Plaintiff.” (Id. ¶ 23). On or about November 20, 2018, a jury acquitted Plaintiff
on each count. (Id. ¶ 28). As a “direct consequence” of Defendant’s “false allegations,” Plaintiff
was “terminated from her employment,” losing salary and benefits. (Id. ¶ 25). Plaintiff
“suffer[ed] substantial expenses for legal defense, was left emotionally distraught at the loss of
her job,” and further suffered embarrassment, humiliation, and emotional distress. (Id. ¶ 31).
III. LEGAL STANDARD
To survive a motion to dismiss, “a complaint must provide ‘enough facts to state a claim
to relief that is plausible on its face.’” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d
129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Although a complaint need not contain detailed factual allegations, it may not rest on mere

labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the
factual allegations ‘must be enough to raise a right to relief above the speculative level.’”
Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist.
LEXIS 155140, at *5 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). The Court
must accept as true all factual allegations in the complaint and draw all reasonable inferences in
the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
IV. DISCUSSION
A. Grand Jury and Criminal Trial Testimony
Defendant argues that she has absolute immunity from liability for testimony given
before the grand jury and at Plaintiff’s criminal trial. (Dkt. No. 8-1, at 7–8). Plaintiff agrees and

explains that her claims are not based on Defendant’s grand jury or criminal trial testimony.
Rather, her claims are premised on Defendant’s “prior and independent conduct of falsifying her
witness account when initially reporting . . . what she observed on October 17, 2017.” (Dkt. No.
12, at 11). Thus, the Court does not address this argument further.
B. Color of State Law
Defendant moves to dismiss Plaintiff’s claims on the ground that she has failed to allege
that Defendant was acting under color of state law. (Dkt. No. 8-1, at 8–11). Defendant makes
two principal arguments. First, she argues that Plaintiff’s allegations of acting under color of
state law are conclusory. (Id. at 10). Second, she argues that “witnessing an incident and
reporting to law enforcement” was not done under color of state law “because it could have been

done by any private citizen” and the fact that Defendant was “on-duty at the time that these
actions occurred . . . does not determine whether she was acting under the color of state law.”
(Id.). Plaintiff responds that she has “plausibly allege[d] that [Defendant] misused her State
position and role as [the Administrator-on-Duty].”4 (Dkt. No. 12, at 14).

4 Plaintiff also argues that Defendant was “a private party . . . jointly engaged with state officials in wrongfully
procuring [Plaintiff’s] arrest and prosecution.” (Dkt. No. 12, at 14). The Court does not reach Plaintiff’s second,
alternative argument.
By its terms, section 1983 applies only where the defendant acts “under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia.” 42 U.S.C. § 1983; Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (“[A]
plaintiff must allege a violation of rights secured by the Constitution or laws of the United States,
and that such violation was committed by a person acting under the color of state law.”). “[A]

defendant in a § 1983 suit acts under color of state law when he abuses the position given to him
by the State.” Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (quoting West v. Atkins,
487 U.S. 42, 49 (1988)). By contrast, “acts of officers in the ambit of their personal pursuits are
plainly excluded.” United States v. Giordano, 442 F.3d 30, 42–43 (2d Cir. 2006) (Sotomayor, J.)
(quoting Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion)). “[T]here is no
bright line test for distinguishing ‘personal pursuits’ from activities taken under color of law.”
Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994). A defendant acts under color of state law for
the purposes of § 1983 when she exercises a power “possessed by virtue of state law and made
possible only because the wrongdoer is cloaked with the authority of state law.” Colombo v.

O’Connell, 310 F.3d 115, 118 (2d Cir. 2002) (quoting Monsky, 127 F.3d at 245). The “focus” of
the color of law inquiry is on “whether there was an abuse or misuse of a power conferred upon
[the state employee] by state authority,” and “look[s] to the nature of the officer’s act, not simply
[her] duty status.” Pitchell, 13 F.3d at 548–49
Here, the Complaint alleges that Defendant was employed by the state as a youth
counselor through the Office of Children and Family Services, (Dkt. No. 1, ¶ 2), and that
Defendant was the “Administrator-on-Duty” when she encountered Plaintiff and the two “minor
resident[s],” J.C., and G.H., in the “bathroom stall at the facility.” (Id. ¶¶ 4–5).5

5 The Court declines to credit Plaintiff’s allegation that Defendant at “all relevant times . . . was a state actor,” (Dkt.
No. 1, ¶ 2), because it is a legal conclusion. See Iqbal, 556 U.S. at 678; see also James v. Bauet, No. 09-cv-609, 2009
The fact that Defendant’s conduct could, as she argues, have been “done by any private
citizen” does not preclude a finding of state action. (See Dkt. No. 8-1, at 10). As the Second
Circuit recently explained, “[i]f an individual is possessed of state authority and purports to act
under that authority, h[er] action is state action. It is irrelevant that [s]he might have taken the
same action had [s]he acted in a purely private capacity.” Defalco v. MTA Bus Co., 788 F. App’x

43, 45 (2d Cir. 2019) (quoting West, 487 U.S. at 56 n.15). In Defalco, the Circuit vacated a grant
of summary judgment where, as here, “a state employee” defendant became involved in an
investigation that arose “directly from his position” with the state. Id. The defendant in Defalco
was alleged to have “knowingly made misrepresentations to MTA police” in an “eyewitness
statement and written assertions” regarding his account of a theft of public property involving the
plaintiffs. Id. at 44, 46. The Second Circuit held that the defendant acted under color of state law
because he “undertook all relevant action as a means of carrying out the responsibilities of his
official position.” Id. at 45. Here, although the Complaint does not provide many details
regarding the Facility or Defendant’s duties there, drawing all reasonable inferences in Plaintiff’s

favor, as in Defalco, Defendant “undertook all relevant action as a means of carrying out the
responsibilities of [her] official position,” id. at 45, as the Administrator-on-Duty at the Facility.
(Dkt. No. 1, ¶¶ 6–11).
Defendant relies on Hoit v. Capital District Transportation Authority, among other cases,
for the proposition that being present and “on duty” are insufficient to establish that a state
employee was acting under color of law. No. 15-cv-0134, 2016 WL 3947613, at *11, 2016 U.S.
Dist. LEXIS 93576, at *35 (N.D.N.Y. July 19, 2016), aff’d in part, vacated in part, remanded,

WL 3817458, at *4, 2009 U.S. Dist. LEXIS 106463, at *12 (S.D.N.Y. Nov. 11, 2009) (explaining that a pro se
plaintiff’s allegation that the defendants acted “under color of state law,” was insufficient to plead the color of law
requirement under Iqbal).
805 F. App’x 41 (2d Cir. 2020). To be sure, alleging those facts, without more, would not satisfy
§ 1983’s color of law requirement. E.g., Pitchell, 13 F.3d at 548 (“More is required than a simple
determination as to whether an officer was on or off duty when the challenged incident
occurred.”). Here, however, the Complaint includes allegations beyond the fact that Defendant
was a state employee who was present and on duty. Plaintiff alleges that Defendant was the

Administrator-on-Duty at the Facility, with supervisory authority, who witnessed a sexual assault
on her watch, and falsely reported Plaintiff as the perpetrator. (Dkt. No. 1, ¶¶ 6–12, 16(A), 29).
Kern, 93 F.3d at 43 (“It is firmly established that a defendant in a § 1983 suit acts under color of
state law when he abuses the position given to him by the State.” (quoting West, 487 U.S. at 50)).
The alleged misuse of authority is particularly stark here because Defendant was the “only adult
witness” to Plaintiff’s sexual assault apart from Plaintiff herself. (Id. ¶ 21). See Giordano, 442
F.3d at 44 (explaining that the Circuit has “found that officials acted under color of law when
their misuse of official power made the commission of a constitutional wrong possible”). The
Court reasonably infers that “the air of official authority pervaded” Defendant’s reports to law

enforcement. Id. (quoting United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991)). Thus,
Plaintiff has plausibly alleged Defendant was acting under color of state law.
C. False Arrest
“A § 1983 claim for false arrest is substantially the same as a claim for false arrest under
New York law.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). To prevail
on a Fourth Amendment false arrest claim, a plaintiff must establish that: “(1) the defendant
intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement, and (4) the confinement was not otherwise privileged.” Ackerson
v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (citing Broughton v. State, 37 N.Y.2d
451, 456 (1975)).
To establish the first element—that Defendant intended to confine Plaintiff—the
defendant “must have either: (1) confined or intended to confine [the] plaintiff[], or (2)
affirmatively procured or instigated the plaintiff’s arrest.” King v. Crossland Sav. Bank, 111 F.3d
251, 256 (2d Cir. 1997). However, “a civilian complainant, by merely seeking police assistance
or furnishing information to law enforcement authorities who are then free to exercise their own

judgment as to whether an arrest should be made and criminal charges filed, will not be held
liable for false arrest.” Du Chateau v. Metro-N. Commuter R. Co., 253 A.D.2d 128, 131 (1st
Dep’t 1999). On the other hand, “a complainant can be held liable for false arrest if the
complainant ‘intentionally provided false information’ to instigate an arrest by law-enforcement
officials, or had no reasonable basis for the report.” Biswas v. City of New York, 973 F. Supp. 2d
504, 519 (S.D.N.Y. 2013) (quoting Brown v. Nassau Cty., 306 A.D.2d 303, 303 (2d Dep’t
2003)).
Defendant argues that Plaintiff cannot establish that she “affirmatively induced” officers
to act. (Dkt. No. 8-1, at 15). Plaintiff responds that “knowingly and intentionally” providing

“false and/or misleading information” to law enforcement is actionable for a false arrest claim.
Here, the Complaint plausibly alleges that Defendant’s report to law enforcement went
beyond simply furnishing information to law enforcement and, further, that Defendant had no
reasonable basis for her report. Plaintiff alleges that, in the supporting deposition, Defendant
attributed statements to Plaintiff and J.C. that were not made, (Dkt. No. 1, ¶¶ 7–9, 14), including
fabricating the statement attributed to J.C. that Plaintiff “coerced him to have sex.” (Id. ¶ 9).
Defendant also “never reported” that when she opened the stall, Plaintiff “pleaded with her for
assistance” but instead reported that when she opened the stall and “asked what was happening,”
Plaintiff responded, “I was teaching him how to clean the toilet.” (Id. ¶¶ 7, 11). That Defendant
acted intentionally finds further support in Plaintiff’s allegations that she omitted reporting
Plaintiff’s plea for help, continued to lie before the grand jury, and that she “acted out of animus”
toward Plaintiff. (Id. ¶¶ 11, 16, 23, 29–30). Drawing all reasonable inferences in Plaintiff’s favor,
she has plausibly alleged that these statements were made intentionally and with no reasonable
basis to instigate the arrest. See Biswas, 973 F. Supp. 2d at 519. Accordingly, Defendant’s

motion to dismiss Plaintiff’s false arrest claim is denied.
D. Malicious Prosecution
A § 1983 claim for malicious prosecution has four elements: “(1) the initiation or
continuation of a criminal proceeding; (2) termination of the proceeding in the plaintiff’s favor;
(3) lack of probable cause for commencing the proceeding; and (4) actual malice as a
motivation” for the defendant’s actions. Laureano v. United States, No. 19-cv-10986, 2020 WL
1847739, at *2, 2020 U.S. Dist. LEXIS 64635, at *3 (S.D.N.Y. April 10, 2020) (citing Murphy v.
Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). In addition, under § 1983, a plaintiff must allege “a
sufficient post-arraignment liberty restraint to implicate the plaintiff’s Fourth Amendment
rights,” Rohman v. New York City Transit Auth. (NYCTA), 215 F.3d 208, 215 (2d Cir. 2000), and

that “the underlying criminal proceeding ended in a manner that affirmatively indicates h[er]
innocence.” Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018). “[A] state’s tort law
serves . . . as a source of persuasive authority” in defining the elements of a § 1983 malicious
prosecution claim. Lanning, 908 F.3d at 25.
1. Initiating Plaintiff’s Prosecution
Defendant moves to dismiss Plaintiff’s malicious prosecution claims on the ground that
Plaintiff has not plausibly alleged that Defendant initiated Plaintiff’s prosecution. Plaintiff argues
that “knowingly and intentionally” providing “false and/or misleading information” to law
enforcement to procure an arrest or prosecution “satisfies the ‘initiation’ prong” of a malicious
prosecution claim. (Dkt. No. 12, at 16).
“Initiation” in the context of a malicious prosecution claim “is a term of art.” Rohman,
215 F.3d at 217. 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.” Id. (quoting DeFilippo v. Cty. of
Nassau, 183 A.D.2d 695, 696 (2d Dep’t 1992)). “Giving information to the police that is known
to be false qualifies as the commencement of a prosecution.” Rivers v. Towers, Perrin, Forster &
Crosby Inc., No. 07–cv–5441, 2009 WL 817852, at *3, 2009 U.S. Dist. LEXIS 26301, at *7
(E.D.N.Y. March 27, 2009); see also Wong v. Yoo, 649 F. Supp. 2d 34, 65 (E.D.N.Y. 2009)
(“[W]here a party is responsible for providing false information or manufactured evidence that
influences a decision whether to prosecute, he may be held liable for malicious prosecution.”
(quoting Chimurenga v. City of New York, 45 F. Supp. 2d 337, 343 (S.D.N.Y. 1999))).
Here, for many of the reasons discussed above with respect to Plaintiff’s false arrest

claim, Plaintiff has plausibly alleged that Defendant made statements she knew to be false in the
supporting deposition she signed. (Dkt. No. 1, ¶¶ 7–11, 14). This included statements that
Defendant fabricated and attributed to Plaintiff and J.C. (Id. ¶¶ 8–10, 14). See Wong, 649 F.
Supp. 2d at 65 (denying summary judgment on malicious prosecution claim to non-law
enforcement defendant who “deliberately made false statements to the police regarding the
events” at issue). These statements went beyond “the mere reporting of a crime.” Rohman, 215
F.3d at 217; TADCO Const. Corp. v. Dormitory Auth. of State of N.Y., 700 F. Supp. 2d 253, 270
(E.D.N.Y. 2010) (concluding that the plaintiff had “adequately alleg[ed] the commencement of a
criminal proceeding” where the defendant “falsely told police that [the plaintiff] was trespassing,
when in fact he was authorized to be at the job site”). Thus, Defendant’s motion to dismiss
Plaintiff’s malicious prosecution claim on this basis is denied.
2. Actual Malice
Defendant argues that Plaintiff has not alleged malice, as required to plead a malicious
prosecution claim, because “she does not allege” that Defendant “willfully made statements in

bad faith, except a naked assertion” that Defendant “acted intentionally and with animus.” (Dkt.
No. 8-1, at 18; see also Dkt. No. 13, at 9–11). Plaintiff responds that the Complaint alleges
Defendant’s “false report to police” was “an out-an-out lie” and that “such a lie, when knowingly
told to procure someone’s arrest and prosecution” demonstrates bad faith. (Dkt. No. 12, at 18).
“Under New York law, malice does not have to be actual spite or hatred, but means only
‘that the defendant must have commenced the criminal proceeding due to a wrong or improper
motive, something other than a desire to see the ends of justice served.’” Lowth v. Town of
Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting Nardelli v. Stamberg, 44 N.Y.2d 500,
502–03 (1978)); Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996) (“The element of malice
implicates an evil or unlawful purpose.”).

Here, drawing all reasonable inferences in Plaintiff’s favor, she plausibly alleges that
Defendant acted with a motive “other than a desire to see the ends of justice served.” Lowth, 82
F.3d at 573 (quoting Nardelli, 44 N.Y.2d at 502–03). In addition to Plaintiff’s allegation that
Defendant acted out of animus toward Plaintiff, (Dkt. No. 1, ¶ 30), the Complaint alleges that
Defendant made various false reports in her supporting deposition and did not report that
Plaintiff had pleaded with her to help. (Id. ¶¶ 7–11). Allen v. City of New York, 480 F. Supp. 2d
689, 717 (S.D.N.Y. 2007) (“Knowingly filing a false report is strong evidence of malicious
intent.”). Thus, Defendant’s motion to dismiss on this basis is denied.6
E. Causation
Defendant argues that Plaintiff has failed to plead both “but for” and proximate causation,
as required under § 1983. (Dkt. No. 8-1, at 18–19). Plaintiff responds that she alleges that had

Defendant “told the truth, her account would not have matched” the accounts J.C. and G.H.
provided and that it was therefore foreseeable that her false reports could result in Plaintiff’s
“arrest and prosecution.” (Dkt. No. 12, at 19). In her reply brief, Defendant further argues that
“Plaintiff’s conclusory statement that the minors were ‘inherently unreliable’” is insufficient to
establish causation because “no authority” “supports the proposition” that witnesses with
criminal records cannot be used to establish probable cause. (Dkt. No. 8-1, at 19; see also Dkt.
No. 13, at 11).
Under § 1983, a plaintiff must show that the defendant’s misconduct was both the “but
for” cause and the proximate cause of the plaintiff’s injury. Arnold v. Geary, 981 F. Supp. 2d
266, 269 (S.D.N.Y. 2013), aff’d, 582 F. App’x 42, 43 (2d Cir. 2014). “Proximate cause is

defined as a cause ‘which in a natural sequence, unbroken by any new cause, produces that event
and without which that event would not have occurred.’” Sanchez v. Bellefeuille, 855 F. Supp.

6 Defendant also argues that “as a mandatory reporter,” who could be “guilty of a misdemeanor” for failing to report
suspected child abuse, she is “immune from liability for such reports as long as she did not engage in willful
misconduct or negligence.” (Dkt. No. 8-1, at 17–18). In support of this argument, Defendant’s counsel submitted a
declaration. (Dkt. No. 8-2). “Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to
consideration of the complaint itself.” Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). The Court may consider
“material outside the complaint” where it is attached to the complaint, incorporated by reference, or where the
complaint “relies heavily” on the outside material’s “terms and effect.” Chambers v. Time Warner, Inc., 282 F.3d 147,
152–53 (2d Cir. 2002). The declaration meets none of these criteria, and the Court declines to treat this motion “as
one for summary judgment.” Faulkner, 463 F.3d at 134; Fed. R. Civ. P. 12(d). Accordingly, the Court declines to
consider the declaration in deciding the instant motion and does not further address Defendant’s argument, which is
based on factual averments external to the complaint. E.g., United States v. Nassar, No. 13-cv-8174, 2014 WL
5822677, at *3, 2014 U.S. Dist. LEXIS 158520, at *8 (S.D.N.Y. Nov. 10, 2014) (declining to consider “declarations
submitted by the [d]efendant” on a motion to dismiss).
587, 595 (N.D.N.Y. 1994) (quoting Caraballo v. United States, 830 F.2d 19, 22 (2d Cir. 1987)).
“Proximate cause is usually a factual question for the jury because the question of foreseeability
is subject to differing views.” Noga v. City of Schenectady Police Officers, 169 F. Supp. 2d 83,
89 (N.D.N.Y. 2001). “‘But for’ cause” asks whether the harm alleged would “have happened but
for the” act at issue. See Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 161 (S.D.N.Y.

2009).
Plaintiff has plausibly alleged that Defendant’s false reports were both a but for and
proximate cause of her arrest and prosecution. Drawing all inferences in Plaintiff’s favor,
Plaintiff may not have been arrested had Defendant truthfully reported what she witnessed,
which would have contradicted J.C. and G.H.’s accounts and may have corroborated Plaintiff’s
account that J.C. sexually assaulted her. (E.g., Dkt. No. 1, ¶¶ 6–9, 27). Moreover, the Complaint
alleges that Defendant was the Administrator-on-Duty, suggesting that Defendant had
supervisory authority at the Facility, which in addition to contradicting J.C. and G.H., would
have lent credibility to Plaintiff’s account of the incident. (Id. ¶¶ 6, 16(A), 27). Thus, at this

stage, Plaintiff has plausibly alleged that Defendant’s false reports were both a “but for” and
proximate cause of Plaintiff’s arrest and prosecution.7
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendant’s motion to dismiss (Dkt. No. 8) is DENIED.

7 In her response, Plaintiff argues that “if the Court were to conclude that there is no set of facts under which
[Defendant] could be found to have acted under color [of] state law when she falsely and maliciously procured
[Plaintiff’s] arrest and prosecution, that the Court should read” the complaint as “also asserting her malicious
prosecution claim under New York state law.” (Dkt. No. 12, at 15). Defendant views this argument as a request to
amend the Complaint. (Dkt. No. 13, at 11–13). As the Court concludes that Plaintiff’s federal malicious prosecution
claim withstands Defendant’s motion to dismiss, the Court does not consider these issues.
IT IS SO ORDERED.
Dated: June 30, 2020
Syracuse, New York
BrnrrA of cA kK nannies
Brenda K. Sannes
U.S. District Judge

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312953. Public record. Not legal advice.