Morgan v. City of Utica, New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

PETER R. MORGAN,

Plaintiff,

vs. 6:20-CV-1424

(MAD/ML)

CITY OF UTICA, NEW YORK,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

PETER R. MORGAN

70 West Main Street

Mohawk, New York 13407

Plaintiff pro se

CITY OF UTICA – CORPORATION COUNSEL ZACHARY OREN, ESQ.

1 Kennedy Plaza, 2nd Floor

Utica, New York 13502

Attorneys for Defendant

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff, proceeding pro se, commenced this action on November 5, 2020, in New York

State Supreme Court, Oneida County, alleging false imprisonment, unlawful confinement, assault

and battery, and malicious prosecution. See Dkt. No. 1-1 at 3-4. Defendant removed the action to

this Court on November 19, 2020. See Dkt. No. 1. On May 21, 2021, the Court granted

Defendant's motion to dismiss all claims. See Dkt. No. 24. Specifically, the Court found that

Defendant failed to set forth a claim for Monell liability and, since the only named Defendant was

the City of Utica, Plaintiff's complaint must be dismissed. See id. at 4-5. Additionally, the Court

addressed the substantive allegations in the complaint and found that, in the alternative, they

failed to set forth any plausible claims for relief. See id. at 6-12. On June 1, 2021, Plaintiff filed

an amended complaint alleging the same four causes of action.

Currently before the Court are the parties' cross-motions for summary judgment. See Dkt.

Nos. 100 & 108.

II. BACKGROUND

Starting in 2011, Plaintiff was involved in a romantic relationship with Melinda Miner

until 2018. See Dkt. No. 108-18 at ¶¶ 1-2. Shortly after the end of the relationship, an order of

protection was entered in favor of Ms. Miner against Plaintiff by the New York State Family

Court, Herkimer County. See id. at ¶ 3. Of note, the Herkimer County Family Court entered a

stay away order of protection in favor of Ms. Miner against Plaintiff on November 1, 2019, that

was to stay in effect until November 1, 2020. See id. at ¶ 4. The order was served on Plaintiff

and he never appealed. See id. at ¶ 5.

Starting in August 2015, Ms. Miner began working at the Masonic Care Community,

located at 2150 Bleecker Street, in the City of Utica. See id. at ¶ 8. Ms. Miner had set lunch

hours, which were from 1:00 p.m. to 1:30 p.m. See id. at ¶ 9. As such, Ms. Miner would frequent

the Dari Del, a gas station/convenience store located at the corner of Bleecker and Culver, for her

lunch breaks, as it is close in proximity to her work. See id. at ¶ 10. Additionally, around the

time she began her employment with Masonic Care Community, Ms. Miner purchased a silver

Lincoln MKZ, which was her only vehicle. See id. at ¶¶ 12-13; see also Dkt. No. 108-3 at 30.

Turning to the day of the incident, January 7, 2020, Ms. Miner was working at Masonic

Community Care and took her lunch break shortly after 1:00 p.m. that day. See Dkt. No. 108-18

at ¶¶ 14-15. On her lunch break, Ms. Miner went to the Dari Del in her Lincoln MKZ. See id. at

¶ 16. Specifically, Ms. Miner traveled along Bleecker Street in a westerly direction. See id. at ¶

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17. Also at this time, Plaintiff was operating a black Subaru hatchback in a westerly direction on

Bleecker Street, immediately in front of Plaintiff's vehicle. See id. at ¶ 18. Security camera

footage obtained from Auto Dimensions Plus at 412 Culver Avenue, looking east along Bleecker

Street confirms the same. See id. at ¶ 19. Initially, Plaintiff was in the right-turn lane, while Ms.

Miner was in the farthest left lane waiting to turn into the Dari Del. See id. at ¶¶ 20-21. Upon

Ms. Miner turning into the Dari Del, Plaintiff then left the far-right turn lane and crossed three

lanes of traffic to turn into the Dari Del parking lot. See id. at ¶ 22. While Plaintiff was turning

into the lot, Ms. Miner parked her vehicle at the northern corner of the store. See id. at ¶ 23.

Plaintiff then parked his vehicle near the rear end of Plaintiff's vehicle, opposite the direction of

and away from the gas pumps. See id. at ¶ 24.

Video of this incident reveals that Plaintiff was parked behind Ms. Miner's vehicle for

fifty-seven (57) seconds. See id. at ¶ 25. During this time, Plaintiff did not make any purchases

at the Dari Del or even exit his vehicle. See id. at ¶ 26; see also Dkt. No. 108-9 at 13:22:34-

13:23:31. When Plaintiff parked behind her vehicle, Ms. Miner called 911. See Dkt. No. 108-18

at ¶ 27. While Ms. Miner was on the phone with 911, Plaintiff left the parking lot by pulling back

onto Bleecker Street. See id. at ¶ 28. Plaintiff then made a right turn onto Culver Avenue from

the right hand turn lane on Bleecker Street that he was originally driving in before pulling into the

Dari Del parking lot. See id. at ¶ 29. As for Ms. Miner, upon seeing Plaintiff leave the area, she

ended her call with 911, purchased her lunch, and returned to work. See id. at ¶ 30.

Upon returning to work, Ms. Miner was still upset over the encounter, discussed the

incident with her boss, and ultimately decided to call the police. See id. at ¶ 32. Utica Police

Officer Maynard Anken responded to Plaintiff's call and took her statement while she was at

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work. See id. at ¶¶ 32-33. Ms. Miner's statement was captured by Officer Anken's body camera

and she ultimately signed a supporting deposition concerning the incident. See id. at ¶¶ 33-34.

Using Ms. Miner's supporting deposition, Officer Anken lodged a complaint against

Plaintiff for criminal contempt in the second degree: disobeying a court order pursuant to New

York Penal Law § 215.50(3). See id. at ¶ 35. Specifically, the Utica Police Department Incident

Report includes an addendum entered by Officer Anken on January 7, 2020, with the operative

order of protection downloaded from the New York State Police. See id. at ¶ 36. Additionally,

Officer Anken notified the Herkimer Police Department of the charge lodged against Plaintiff.

See id. at ¶ 37.

Later that day, officers from the Herkimer Police Department arrested Plaintiff at his

home. See Dkt. No. 108-18 at ¶ 38. Plaintiff was subsequently transferred to the custody of the

Utica Police Department. See id. at ¶ 39. Body camera footage of the prisoner exchanges reveals

that the officers made only minimal contact with Plaintiff during the prisoner exchange and that

Plaintiff did not complain about the contact that was made or the manner in which the handcuffs

were applied. See id. at ¶ 41. Plaintiff was subsequently booked at the Utica Police Station,

arraigned at the Oneida County Jail, and then released from custody. See id. at ¶ 42.

Ms. Miner, in addition to supporting a criminal charge against Plaintiff, filed a petition

against him in the Herkimer County Family Court alleging, among other things, that Plaintiff

violated the order of protection as a result of the Dari Del incident on January 7, 2020. See id. at

¶ 45. On February 6, 2020, the Herkimer County Court held a trial on the issues raised in the

petition, during which Plaintiff was permitted to and did in fact called witnesses in his defense.

See id. at ¶¶ 46-47; see also Dkt. No. 108-6 at 245-56. At the conclusion of the trial, the

Herkimer Family Court found by a preponderance of the evidence that Plaintiff had violated the

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order of protection at the Dari Del on January 7, 2020, and on February 27, 2020, the court

sentenced Plaintiff to an additional thirty (30) days in jail. See id. at ¶¶ 48-49. Although Plaintiff

appealed the Family Court decision, he failed to timely perfect the appeal. See id. at ¶ 50.

Plaintiff also moved for reconsideration of the Family Court's decision, which was denied and no

appeal was taken from that decision. See id. at ¶¶ 51-52.

On September 15, 2020, in Utica City Court, Plaintiff's criminal charge of criminal

contempt in the second degree was dismissed. See id. at ¶ 54. Assistant District Attorney

Matthew Worth noted that the reason the case was being dismissed was due to the fact that

Plaintiff had been convicted and punished by the Herkimer County Family Court for the same

incident that was the basis for the criminal charge. See id. at ¶ 55; see also Dkt. No. 108-11 at 6-

7.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue

warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43

F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the

court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at

36-37 (quotation and other citation omitted). Substantive law determines which facts are

material; that is, which facts might affect the outcome of the suit under the governing law. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). In assessing the record to determine

whether any such issues of material fact exist, the court is required to resolve all ambiguities and

draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36

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(citing Anderson, 477 U.S. at 255) (other citations omitted). Irrelevant or unnecessary facts do

not preclude summary judgment, even when they are in dispute. See Anderson, 477 U.S. at 258.

The moving party bears the initial burden of establishing that there is no genuine issue of

material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect

to any issue on which the moving party does not bear the burden of proof, it may meet its burden

on summary judgment by showing that there is an absence of evidence to support the nonmoving

party's case. See id. at 325. Once the movant meets this initial burden, the nonmoving party must

demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e). A

genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

"[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,

295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations

omitted). The Second Circuit has held that the court is obligated to "make reasonable allowances

to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a

legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "However, this

does not mean that a pro se litigant is excused from following the procedural requirements of

summary judgment." Kotler v. Fischer, No. 9:09-CV-01443, 2012 WL 929823, *12 (N.D.N.Y.

Mar. 19, 2012) (citations omitted). Specifically, "a pro se party's 'bald assertion,' completely

unsupported by evidence is not sufficient to overcome a motion for summary judgment." Lee v.

Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d

Cir. 1991)).

B. Plaintiff's Moving Papers and Response

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Pursuant to Local Rule 56.1, "[a]ny motion for summary judgment shall contain a separate

Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered

paragraphs, a short and concise statement of each material fact about which the moving party

contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the

record where the fact is established." N.D.N.Y. L.R. 56.1(a). Local Rule 56.1 further provides

that the party opposing a motion for summary judgment shall file a response to the statement of

material facts, which "shall mirror the movant's Statement of Material Facts by admitting and/or

denying each of the movant's assertions in a short and concise statement, in matching numbered

paragraphs," with "specific citation to the record where the factual issue arises." N.D.N.Y. L.R.

56.1(b). The Local Rule further provides that "[t]he Court shall deem admitted any properly

supported facts set forth in the Statement of Material Facts that the opposing party does not

specifically controvert." Id. (emphasis in original).

The Second Circuit has recognized "that district courts have the authority to institute local

rules governing summary judgment submissions . . . and have affirmed summary judgment

rulings that enforce such rules." N.Y. Teamsters Conference Pension & Retirement Fund v.

Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (internal and other citations omitted).

"Rules governing summary judgment practice are essential tools for district courts, permitting

them to efficiently decide summary judgment motions by relieving them of the onerous task of

'hunt[ing] through voluminous records without guidance from the parties.'" Id. at 649 (quotation

and other citations omitted).

In the present matter, Plaintiff failed to include a statement of material facts with his

motion for summary judgment and he failed to file a response to Defendant's statement of

material facts. Plaintiff's motion consists of an eight page memorandum of law with eighty-two

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pages of exhibits attached. See Dkt. No. 100. In his memorandum of law, Plaintiff discusses a

wide ranging conspiracy that has been perpetrated against him by Ms. Miner, "multiple corrupt

police officers, ambulance, hospital staff, advocates from Catholic charities, sheriffs departments,

district attorneys, and pastors with personal vendettas against me, Attorney General, Investigator

General, Previous Governor, Federal Bureau of Investigation, lawyers and judges." Id. at 2. As

set forth in more detail below, Plaintiff's conclusory assertions are insufficient to create material

issue of fact as to any of his claims. Similarly, Plaintiff's response to Defendant's motion fails to

create an issue of fact and Defendant is entitled to summary judgment on all remaining claims.

C. False Arrest

Defendant contends that Plaintiff's false arrest claim must be dismissed because there was

probable cause for the arrest. See Dkt. No. 108-19 at 7-14. Plaintiff's response does not

specifically respond to this argument. See Dkt. No. 110 at 2-4.

"'A § 1983 claim for false arrest ... is substantially the same as a claim for false arrest

under New York law.'" Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting

Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). "Under New York law, an action for false

arrest requires that the plaintiff show 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.'" Id. (quoting Broughton v. State of New

York, 37 N.Y.2d 451, 456 (1975)).

"Probable cause 'is a complete defense to an action for false arrest' brought under New

York law or § 1983." Id. (quotation omitted). "Probable cause to arrest exists when the officers

have ... reasonably trustworthy information as to [ ] facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that an offense has been ... committed by the

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person to be arrested." Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). In deciding

whether probable cause existed for an arrest, the court must assess "whether the facts known by

the arresting officer at the time of the arrest objectively provided probable cause to arrest." Jaegly

v. Couch, 439 F.3d 149, 153 (2d Cir. 2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153

(2004)). Whether probable cause existed for the charge "actually invoked by the arresting officer

at the time of the arrest" is irrelevant. Devenpeck, 543 U.S. at 154. Accordingly, a defendant will

prevail if there was probable cause to arrest the plaintiff for any single offense. See Marcavage v.

City of New York, 689 F.3d 98, 109-10 (2d Cir. 2012). The same is true under New York law:

probable cause "does not require an awareness of a particular crime, but only that some crime

may have been committed." Wallace v. City of Albany, 283 A.D.2d 872, 873 (3d Dep't 2001).

Even if there was not probable cause, a police officer is entitled to qualified immunity if they had

arguable probable cause to arrest a plaintiff in a false arrest suit. See Garcia v. Does, 779 F.3d

84, 92 (2d Cir. 2015) (quoting Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013)).

In the present matter, the undisputed record evidence establishes that there was probable

cause to arrest Plaintiff. Shortly after Plaintiff's relationship with Ms. Miner ended, an order of

protection was entered in favor of Ms. Miner against Plaintiff by the Herkimer County Family

Court, which ordered Plaintiff to, among other things, "stay away from" Ms. Miner. See Dkt. No.

108-3 at 142. The stay away order was in effect from November 1, 2019 through November 1,

2020. Moreover, Plaintiff was personally served with the order of protection and was present in

the Herkimer County Family Court when it was issued. Ms. Miner reported the January 7, 2020

incident at the Dari Del to Utica Police Officer Anken and her statement was recorded on the

officer's body camera. Using Ms. Miner's oral statement and supporting deposition, Officer

Anken lodged an information complaint against Plaintiff for criminal contempt in the second

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degree pursuant to New York Penal Law § 215.50(3). Officer Anken then notified the Herkimer

Police Department of the charge lodged against Plaintiff, who arrested Plaintiff later that day.

"A person is guilty of criminal contempt in the second degree when he engages in any ...

[i]ntentional disobedience or resistance to the lawful process or other mandate of a court[.]" N.Y.

Penal Law § 215.50(3). "'Under New York law, the crime of criminal contempt in the second

degree requires that (1) a valid protective order existed, (2) the defendant knew about that order,

and (3) the defendant intended to violate the order.'" Williams v. Suffolk Cnty., 284 F. Supp. 3d

275, 285-86 (E.D.N.Y. 2018) (quotation and other citations omitted).

Here, Ms. Miner's verbal complaint and supporting deposition were sufficient to establish

probable cause. Plaintiff fails to present any evidence that would have caused Officer Anken to

doubt Ms. Miner's veracity. Additionally, before the criminal information was issued, Officer

Anken confirmed that there was an order of protection in place. Accordingly, the Court finds that

there was probable cause to arrest Plaintiff for the crime charged and, therefore, his false arrest

claim must be dismissed. See Williams, 284 F. Supp. 3d at 286. Alternatively, there was, at the

very least, arguable probable cause to arrest Plaintiff, and, therefore, Defendant is entitled to

qualified immunity as to this claim.

D. Malicious Prosecution

Under both New York State law and the Fourth Amendment, a malicious prosecution

claim requires: (1) the commencement or continuation of a criminal proceeding by the defendant

against the plaintiff; (2) the termination of the proceeding in favor of the accused;1 (3) the absence

1 In Thompson v. Clark, 142 S. Ct. 1332 (2022), the Supreme Court resolved a circuit split

regarding how to apply the favorable-termination element in a section 1983 claim. Prior to

Thompson, for a federal malicious prosecution claim to succeed in the Second Circuit, the

favorable-termination element required some affirmative indication of the plaintiff's innocence in

(continued...)

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of probable cause for the criminal proceedings; and (4) actual malice. See Kee v. City of New

York, 12 F.4th 150, 161-62 (2d Cir. 2021) (citations omitted). To succeed on a Fourth

Amendment malicious prosecution claim, the plaintiff also must establish "some deprivation of

liberty consistent with the concept of 'seizure' ... to ensure that the § 1983 plaintiff has suffered a

harm of constitutional proportions." Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir.

1995).

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

facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.'"

Kee, 12 F.4th at 166 (quoting Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)).

"Although probable cause to prosecute is a complete defense to a claim of malicious prosecution,

... such probable cause must be shown as to each crime charged in the underlying criminal

action." Id. (internal and other citations omitted). "Thus, probable cause to prosecute should not

be conflated with probable cause to arrest." Id.

A police officer likewise is entitled to qualified immunity on a malicious prosecution

claim if there was "arguable probable cause" at the time the criminal proceeding commenced and

continued. See Betts v. Shearman, 751 F.3d 78, 82, 83 (2d Cir. 2014). In assessing arguable

probable cause, the inquiry is "whether any reasonable officer, out of the wide range of

reasonable people who enforce the laws in this country, could have determined that the

challenged action was lawful." Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (emphases in

original).

1(...continued)

the underlying proceeding. See Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018).

The Supreme Court rejected this requirement and held that "[a] plaintiff need only show that the

criminal prosecution ended without a conviction." Thompson, 142 S. Ct. at 1341.

11

In the present matter, the criminal contempt in the second degree charge was dropped

against Plaintiff only after the Herkimer County Family Court found that Defendant had violated

the order of protection on January 7, 2020 and sentenced him to an additional thirty (30) days in

jail. As discussed, both the Family Court petition and the criminal charge for criminal contempt

in the second degree were filed as a result of Plaintiff's conduct on January 7, 2020 at the Dari

Del.

It is well settled that a disposition under Section 841 of the Family Court Act for a proven

violation of an order of protection is considered punitive in nature, thus triggering double

jeopardy protections. See People v. Wood, 95 N.Y.2d 509, 513 (2000). Since Plaintiff had

already been found to have violated the order of protection and punished for that conduct by the

Family Court, the criminal charge against Plaintiff was subject to dismissal on double jeopardy

grounds. Having already been found to have engaged in the conduct alleged in the criminal

charge by the Herkimer County Family Court, it necessarily follows that there was probable

cause, or at least arguable probable cause, to prosecute Plaintiff for that conduct. Moreover, this

claim is also subject to dismissal under Heck v. Humphrey, 512 U.S. 477 (1994), since a finding

that there was no probable cause for the charge of criminal contempt in the second degree would

necessarily imply the invalidity of the Family Court order finding Plaintiff in criminal contempt

of that court's order of protection.

Accordingly, the Court grants Defendant's motion for summary judgment as to Plaintiff's

malicious prosecution claim.

E. Monell Liability

To establish a municipal liability claim, "a plaintiff is required to plead and prove three

elements: '(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a

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denial of a constitutional right.'" Lucente v. County of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)

(quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)); see also Frost v. N.Y.C.

Police Dep't, 980 F.3d 231, 257 (2d Cir. 2020). A plaintiff can establish an official policy or

custom by showing any of the following: (1) a formal policy officially endorsed by the

municipality; (2) actions or decisions made by municipal officials with decision-making

authority; (3) a practice so persistent and widespread that it constitutes a custom of which

policymakers must have been aware; or (4) a failure by policymakers to properly train or

supervise their subordinates, such that the policymakers exercised "deliberate indifference" to the

rights of the plaintiff and others encountering those subordinates. See Iacovangelo v. Corr. Med.

Care, Inc., 624 Fed. Appx. 10, 13-14 (2d Cir. 2015) (formal policy officially endorsed by the

municipality); Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread

and persistent practice); Carter v. Inc. Village of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014)

(failure to train amounting to deliberate indifference); Jones v. Town of East Haven, 691 F.3d 72,

81 (2d Cir. 2012) (policymaking official's "express" or "tacit" ratification of low-level employee's

actions); see also Hansen v. Watkins Glen Cent. Sch. Dist., 832 Fed. Appx. 709, 715 (2d Cir.

2020) (affirming the district court's finding that the defendant's "restricted access to school

property on only four other occasions in the more than ten years he served as a [s]uperintendent"

did not amount to a custom or policy). "Deliberate indifference is not demonstrated on every

occasion that a plaintiff has reported potential rights violations to a policymaker: rather,

constitutionally cognizable deliberate indifference is a 'stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his action.'" O'Kane v.

Plainedge Union Free Sch. Dist., 827 Fed. Appx. 141, 143 (2d Cir. 2020) (quoting Bd. of County

Comm'rs v. Brown, 520 U.S. 397, 410 (1997)).

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"[U]nder Monell municipal liability for constitutional injuries may be found to exist even

in the absence of individual liability, at least so long as the injuries complained of are not solely

attributable to the actions of named individual defendants." Barrett v. Orange Cnty. Hum. Rights

Comm'n, 194 F.3d 341, 350 (2d Cir. 1999); see also Rutigliano v. City of New York, 326 Fed.

Appx. 5, 9 (2d Cir. 2009). "[E]ven in situations where the acts or omissions of individual

employees do not violate an individual's constitutional rights, 'the combined acts or omissions of

several employees acting under a governmental policy or custom may violate' those rights."

Barrett, 194 F.3d at 350 (quotations omitted). In addition, where "the individual defendants

violated plaintiff's rights but nonetheless enjoy qualified immunity," a plaintiff can pursue a

Monell claim. Bonilla v. Jaronczyk, 354 Fed. Appx. 579, 582 (2d Cir. 2009) (citing Curley v.

Village of Suffern, 268 F.3d 65, 71 (2d Cir. 2001)).

In the present matter, the Court finds that, even assuming that Plaintiff had presented

sufficient evidence to withstand summary judgment as to his false arrest and malicious

prosecution claims, Defendant is still entitled to summary judgment. In his complaint, Plaintiff

sets forth the following allegations in support of Monell liability: (1) "The above acts of the

[u]niformed Utica Police officers, were pursuant to a formal policy, promulgated or adopted by

the Defendant;" (2) "The actions of the uniformed Utica Police Officers were performed by police

officers who had policy making authority;" and (3) "The actions of the said Utica uniformed

police officers were pursuant to an unlawful practice by uniformed officers that was so permanent

and well settled so as to constitute a custom, and the practice was so wide spread, that the policy

making officials had constructive notice of such." Dkt. No. 26 at 3. Even assuming these

conclusory allegations are sufficient to plead a plausible Monell claim, Plaintiff has failed to put

forth any evidence in support of these claims.

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Notably, there is no evidence or testimony to support the allegations that there is a formal

(or even informal) policy relating to the decision to criminally charge Plaintiff for his conduct on

January 7, 2020. Moreover, contrary to Plaintiff's conclusory allegation, the criminal information

was filed by Utica Police Officer Anken, who was employed as a "Patrol Officer" on the day of

Plaintiff's arrest. See Dkt. No. 108-10. Clearly, as a "Patrol Officer," Officer Anken was not a

municipal official with decision-making authority. See Shakir v. Stankye, No. 3:11-cv-1940,

2017 WL 11514785, *4 (D. Conn. Mar. 21, 2017) (holding that the fact that a police officer may

have secured the warrant for the plaintiff's arrest, arrested him, and supervised the search of his

home does render him an official with decision-making authority for purposes of Monell) (citing

cases); see also Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 304 (S.D.N.Y. 2015)

(holding that there is "no basis, on the facts alleged by Plaintiffs, for the Court to find that ... a

police sergeant, had final policymaking authority with respect to how Mount Vernon police

officers were to carry out searches"); Gagne v. DeMarco, 281 F. Supp. 2d 390, 398 (D. Conn.

2003) (holding that false arrest claim against Town of Old Saybrook and its police department

failed to state claim as a matter of law because the plaintiff did not allege "or offer evidence that

Officers ... possessed final policy-making authority for the town ... or the Police Department")

(citation omitted); Kaufman v. City of New York, No. 87-CV-4492, 1992 WL 247039, *3

(S.D.N.Y. Sept. 17, 1992) (granting summary judgment on a Monell claim where the plaintiff

"fail[ed] to submit evidence ... that [the police] [s]ergeant [who ordered his arrest] ... was a

municipal policy maker with final decision making authority regarding his arrest," and noting that

"[a]n officer making an arrest is not establishing policy").

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Finally, Plaintiff has failed to put forth any evidence demonstrating a widespread practice.

Rather, the evidence before the Court relates to an isolated incident where Plaintiff was found to

have violated an order of protection.

Accordingly, the Court finds that Defendant is entitled to summary judgment on this

alternative ground.

F. Supplemental Jurisdiction

Plaintiff pleads a state-law claim for assault and battery as his final cause of action.

Where, as here, a district court has dismissed all claims over which it has original jurisdiction, the

court may decline to exercise supplemental jurisdiction over remaining state-law claims. See 28

U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Klein &

Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006). The

decision is a discretionary one, and its justification "lies in considerations of judicial economy,

convenience and fairness to litigants[.]" United Mine Workers of Am., 383 U.S. at 726; see also

Kolari v. New York–Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) ("Once a district

court's discretion is triggered under § 1367(c)(3), it balances the traditional 'values of judicial

economy, convenience, fairness, and comity,' in deciding whether to exercise jurisdiction")

(quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).

Here, after carefully considering the relevant factors, i.e., economy, convenience, fairness,

and comity, the Court finds that they weigh decidedly in favor of declining to exercise

supplemental jurisdiction over Plaintiff's remaining state-law assault and battery claim.

Accordingly, the Court will dismiss Plaintiff's state-law claim without prejudice pursuant to 28

U.S.C. § 1367(d).

IV. CONCLUSION

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After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, the Court hereby

ORDERS that Plaintiff's motion for summary judgment (Dkt. No. 100) is DENIED; and

the Court further

ORDERS that Defendant's motion for summary judgment (Dkt. No. 108) is GRANTED;

and the Court further

ORDERS that Plaintiff's false arrest and malicious prosecution claims are DISMISSED

with prejudice; and the Court further

ORDERS that Plaintiff's state-law claim is DISMISSED without prejudice pursuant to

28 U.S.C. § 1367(d); and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close

this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: October 25, 2022 J) ‘ le oy : .

Albany, New York ma : = = □□□ ps

U.S. District Judge

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