McCullough v. Graves

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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JOHN H. MCCULLOUGH, JR.,

Plaintiff,

-v- 5:23-CV-1028

OFFICER BRIAN GRAVES,

Oswego City Police Officer,

OFFICER MICHAELA FROST,

Oswego City Police Officer, and

OFFICER PRITCHARD, Oswego

City Police Officer,

Defendants.

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APPEARANCES: OF COUNSEL:

JOHN H. MCCULLOUGH, JR.

Plaintiff, Pro Se

29 East 9th Street

Oswego, NY 13126

GOLDBERG, SEGALLA, LLP JONATHAN M.

Attorney for Defendants BERNSTEIN, ESQ.

8 Southwoods Boulevard, Suite 300

Albany, NY 12211

DAVID N. HURD

United States District Judge

DECISION and ORDER

I. INTRODUCTION

On August 22, 2023, pro se plaintiff John H. McCullough, Jr. (“plaintiff”)

filed this civil case using the N.D.N.Y.’s form complaint for 42 U.S.C. § 1983

actions. Dkt. No. 1. Broadly speaking, plaintiff’s complaint alleges that

three law enforcement officers from the City of Oswego’s Police Department

violated his constitutional rights during a police encounter that began with a

traffic stop but ripened into an arrest and then a prosecution for drugs.1 Id.

On October 11, 2023, defendants Graves, Frost, and Pritchard (collectively

“defendants”) moved under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

to dismiss plaintiff’s complaint in its entirety. Dkt. No. 19. The motion has

been fully briefed, Dkt. Nos. 24, 25, and will be considered on the basis of

these submissions without oral argument.2

II. BACKGROUND

The following facts are taken from a review of plaintiff’s complaint, Dkt.

No. 1, the attached exhibits, Ex. B at Dkt. No. 1-2 through Ex. G at Dkt. No.

1-7, and a review of plaintiff’s memorandum of law in opposition, Dkt. No. 24.

1 Plaintiff sought permission to “supplement” his complaint with certain additional exhibits,

Dkt. No. 14, but the assigned Magistrate Judge denied that request, Dkt. No. 15. Plaintiff was

advised at that time that he could still amend his complaint, but to do so he would have to comply

with the relevant rules of civil procedure governing amendments to pleadings. Id.

2 Plaintiff has also filed a “supplemental” response. Dkt. No. 28. This appears to be a duplicate

copy of his motion papers. See id. The Court has considered it, too.

Late on September 3 or early in the morning of September 4, 2020—the

parties seem to agree that it was around midnight—Police Officer Michaela

Frost stopped plaintiff’s car. Compl. at 7 ¶ 18; Pl.’s Mem. at 6.3 According to

her later testimony at an evidentiary hearing in state court, Frost claimed

that she had received information from Investigator Graves, who warned her

that he had observed plaintiff violate various traffic laws. See Ex. C at 6.

Plaintiff’s complaint alleges that defendant Frost’s explanation is false

and contends that she could not have possibly coordinated with defendant

Graves. See, e.g., Compl. at 5 ¶ 5. Instead, plaintiff claims that a non-party

named “Charles Kangah,” a drug dealer who is “best friends” with defendant

Graves, somehow helped to get plaintiff arrested. Compl. at 5 ¶¶ 2–5.

In either case, plaintiff’s complaint acknowledges that a traffic stop

occurred that night. According to her later testimony in the state court

hearing, Officer Frost approached plaintiff’s car, questioned him, and then

instructed him to step out of the vehicle. See Ex. C at 6. When plaintiff

complied, defendant Frost claimed that she saw a small baggie of marijuana

drop to the ground nearby. Id.

Thereafter, Investigator Graves arrived at the scene, searched plaintiff’s

vehicle and patted down his person, and claimed that he discovered some

3 Pagination corresponds to CM/ECF.

cocaine. See Ex. C at 7. Defendants arrested plaintiff. See id. A grand jury

eventually indicted him on some drug charges. Id. at 4. Plaintiff later filed

an omnibus motion to suppress the evidence against him. See id.

On April 24, 2023, after an evidentiary hearing at which defendant Frost

testified, Oswego County Court Judge Karen M. Brandt Brown concluded

that defendant Frost had “probable cause” to stop plaintiff’s car based on

Frost’s own observation that plaintiff had committed traffic infractions. Ex.

C at 5–7. However, the state court judge suppressed the cocaine evidence

because she concluded that defendant Graves’s second search (of plaintiff’s

person) was improper under state law. Id. at 10.

It is unclear from the complaint, or from a review of the other documents

attached to the pleading as exhibits, whether some or all of the drug charges

in the indictment were dismissed as a result of the state court’s suppression

of the cocaine. However, other documents offered by plaintiff suggest that

the state-court indictment was later dismissed entirely. Dkt. No. 14.4

Broadly construed, plaintiff’s complaint alleges § 1983 claims for (1) false

arrest; (2) malicious prosecution; (3) fabrication of evidence or testimony; and

4 These documents are not part of the complaint. Instead, they were offered by plaintiff as part

of his request to “supplement” his pleading. Dkt. No. 14. The assigned Magistrate Judge denied

that request. Dkt. No. 15. However, defendants reference these documents and have encouraged the

Court to examine them for the purpose of this motion practice. Dkt. No. 19-1 at 16.

(4) conspiracy. He also alleges a state-law claim for intentional infliction of

emotional distress. Plaintiff seeks 15 million dollars and punitive damages.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiff’s right to relief above the

speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So

while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.

v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).

IV. DISCUSSION

As an initial matter, plaintiff is pro se. So his filings must be held to less

stringent standards. Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012). As

the Second Circuit has repeatedly warned, documents filed pro se “must be

construed liberally with ‘special solicitude’ and interpreted to raise the

strongest claims that [they] suggest[ ].” Hogan v. Fischer, 738 F.3d 509, 515

(2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

1. False Arrest & Malicious Prosecution

Defendants argue that the § 1983 claims for false arrest and malicious

prosecution must be dismissed because the exhibits attached to the complaint

establish probable cause for plaintiff’s arrest (at the traffic stop) and his later

indictment (on the drug charges). Defs.’ Mem., Dkt. No. 19-1 at 15.

Notably, defendants’ brief seems to treat this “probable cause” inquiry on

the false arrest claim as identical to, or perhaps overlapping with, the version

of the probable cause inquiry relevant to the malicious prosecution claim. See

Defs.’ Mem. at 12–15; see also Defs.’ Reply, Dkt. No. 25 at 6 & n.1.

But these are distinct inquiries. Stansbury v. Wertman, 721 F.3d 84, 95

(2d Cir. 2013) (“The probable cause standard in the malicious prosecution

context is slightly higher than the standard for false arrest cases.”). So they

must be analyzed separately. See, e.g., McClellan v. Smith, 439 F.3d 137, 145

(2d Cir. 2006) (finding that trial court erred in applying presumption of

probable cause arising from indictment to false arrest claim).

a. False Arrest

To establish a claim under § 1983 for false arrest, the plaintiff must show

that: (1) the defendant intended to confine him; (2) he was conscious of the

confinement; (3) he did not consent to it; and (4) the confinement was not

privileged. LaFever v. Clarke, 525 F. Supp. 3d 305, 329 (N.D.N.Y. 2021).

In the context of an arrest, a confinement is “privileged” if it is based on

“probable cause.” See, e.g., Simpson v. City of N.Y., 793 F.3d 259, 265 (2d Cir.

2015). “A police officer has probable cause to arrest when he has knowledge

of reasonably trustworthy information of facts and circumstances that are

sufficient to warrant a person of reasonable caution in the belief that the

person to be arrested has committed or is committing a crime.” Hulett v. City

of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017) (cleaned up).

Defendants argue that the false arrest claim must be dismissed because

“the Decision & Order on Hearings confirmed that plaintiff had cocaine and

marijuana.” Def.’s Mem. at 14 (citing Dkt. No. 1-3). According to defendants,

this conclusion is supported by the fact that plaintiff attached as an exhibit

the “State Police lab report confirming cocaine.” Id. (citing Dkt. No. 1-3).

In other words, defendants claim that certain findings in the state-court

proceedings preclude plaintiff from relitigating the probable cause issue in

this federal action. To be sure, issue preclusion can sometimes bar a § 1983

claim. Barnes v. Cnty. of Monroe, 85 F. Supp. 3d 696, 723 (W.D.N.Y. 2015)

(“It is well-settled that collateral estoppel may bar a plaintiff from bringing

an action in federal court pursuant to 42 U.S.C. § 1983.”).

For instance, if a state court determines that a warrantless search or

seizure was supported by probable cause, the state-court defendant who later

becomes a civil-rights plaintiff typically cannot relitigate the issue of probable

cause in a § 1983 action in federal court. See, e.g., Hayes v. Cnty. of Sullivan,

853 F. Supp. 2d 400, 426 (S.D.N.Y. 2012) (collecting cases).

The problem with defendants’ argument is that the exhibits attached to

plaintiff’s complaint do not conclusively establish that he litigated and lost

the issue of probable cause for the arrest. The submissions establish that the

state court heard testimony and concluded that Officer Frost “had probable

cause to stop the vehicle based on her observations of the defendant’s traffic

violations.” Ex. C at 7.5 So it is possible that plaintiff would be unable to

relitigate the validity of the initial seizure; i.e., the vehicle stop itself.6 See,

e.g., Forte v. City of N.Y., 2023 WL 6259652, at *5 (S.D.N.Y. Sept. 26, 2023).

But the justification needed for a traffic stop (here, that Frost observed

traffic infractions) is ordinarily different than what is required to establish

5 The state court called this “probable cause” to seize the vehicle but cited language suggesting

it was more of a Terry stop, which is subject to a lesser standard. Ex. C at 8.

6 Even that conclusion is less than clear on the existing record. The charges against plaintiff

seem to have been dropped entirely, which means the findings in the state court’s pre-trial

suppression hearing might not be entitled to any preclusive effect at all. See Forte, 2023 WL

6259652, at *5.

probable cause to arrest. And that distinction matters, because the issue is

whether defendants had probable cause to arrest plaintiff, not just to stop

him.

Defendants say they arrested plaintiff after they found the drugs on his

person. Notably, plaintiff’s complaint does not clearly allege that he was not

in possession of the marijuana at the time of the stop. Compl. at 2 (alleging

that defendant Graves (who recovered the cocaine) “planted drugs on [his]

person.”); but see Compl. at 7 ¶ 17 (“Every accusation made by these officers

on the night in question is a lie.”).

But even assuming for present purposes that plaintiff did in fact concede

that Frost recovered marijuana from him, the state court concluded that an

arrest on that basis was improper because marijuana possession warranted

only an appearance ticket at that time. Ex. C. at 9–10.

That result is at least a little unexpected, since the decision of whether to

issue an appearance ticket (versus an arrest) is ordinarily a discretionary

determination by the police. Zarkower v. City of N.Y., 461 F. Supp. 3d 31,

38–39 (E.D.N.Y. 2020) (collecting cases). Thus, depending on the state of the

law at the time, it is still possible that “arguable probable cause” existed to

arrest plaintiff for the marijuana alone.

But defendants’ brief does not articulate whether the marijuana, standing

alone, would have supported the arrest. Instead, defendants focus on the

cocaine allegedly recovered by defendant Graves. In defendants’ view, this

evidence certainly gives rise to probable cause for the arrest. Defs.’ Mem. at

15. Although they acknowledge that the state court suppressed the cocaine

after concluding that it was the fruit of an improper search, defendants argue

that the fact of the cocaine being found on plaintiff’s person can be considered

in this civil rights action. Id. After all, plaintiff’s own filings include the lab

report that confirmed the substance found on him was cocaine. Id. at 14.

But this argument begs the question. Plaintiff alleges that Investigator

Graves “planted drugs on [his] person.” In other words, plaintiff appears to

deny that he possessed any cocaine at the stop. So if that is assumed true, as

typically required on a motion to dismiss, it does not matter if some piece of

evidence later tested by the police lab was cocaine. And because it seems like

all the drug charges against plaintiff were later dropped, there is no obvious

bar to this claim, such as under Heck v. Humphrey, 512 U.S. 477 (1994).

Even so, plaintiff’s § 1983 false arrest claim must be dismissed because it

fails to plausibly allege that one or more of the named defendants violated his

Fourth Amendment right to be free from a warrantless arrest in the absence

of probable cause. “Pro se status confers on an unrepresented party several

direct and indirect benefits, typically in the form of extra procedural latitude

and a substance-over-form approach to a lawyer-less litigant’s less-than-

perfect pleading, briefing, and argumentation.” Clark v. Tanner, 2023 WL

6847691, at *2 (N.D.N.Y. Oct. 17, 2023).

However, pro se status does not “exempt a party from compliance with

relevant rules of procedural and substantive law.” Clark, 2023 WL 6847691,

at *2 (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.

2006)). This includes the baseline procedural requirement imposed by our

federal plausibility pleading regime, which tests the legal sufficiency of a

pleading by asking whether the plaintiff has alleged “sufficient factual

matter” to state a plausible claim for relief. Iqbal, 556 U.S. at 678.

As the foregoing discussion serves to demonstrate, the Court has been left

to speculate about basically all of the salient historical facts. Indeed, the

whole analysis is lousy with tentative qualifiers such as “appears,” “seems,”

and “likely.” Of course, adding some measure of solicitude to the mix is par

for the course in cases with pro se plaintiffs. But the Court cannot make up

all the necessary facts for the plaintiff or assume the existence of a whole set

of facts that would state a plausible claim.

This is because, even for pro se plaintiffs, the federal plausibility standard

requires more than “an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 678. But as of right now, that is all plaintiff

has offered: an unadorned assertion that Investigator Graves planted drugs.

And aside from his single, wholly conclusory accusation against defendant

Graves, plaintiff’s complaint and attached exhibits fail to offer any facts that

might tend to show that defendant Frost and/or defendant Pritchard were

“personally involved” in misconduct that might be actionable as a false arrest

under § 1983. Accordingly, this claim will be dismissed.

b. Malicious Prosecution

To establish a claim under § 1983 for malicious prosecution, the plaintiff

must show: (1) the initiation or continuation of a criminal proceeding by the

defendant against him; (2) the termination of that proceeding in his favor;

(3) a lack of probable cause; (4) that actual malice motivated the defendant’s

actions; and (5) a sufficient post-arraignment liberty restraint for Fourth

Amendment purposes. Harris v. Tioga County, –F. Supp. 3d–, 2023 WL

2604125, at 16 (N.D.N.Y. Mar. 23, 2023) (citing Dettelis v. Sharbaugh, 919

F.3d 161, 163–64 (2d Cir. 2019) and Buari v. City of N.Y., 530 F. Supp. 3d

356, 383 (S.D.N.Y. 2021)).

Defendants argue that plaintiff’s § 1983 claim for malicious prosecution

must be dismissed because “the grand jury of Oswego County indicated [sic]

plaintiff on four criminal counts.” Def.’s Mem. at 14. In defendants’ view,

“[b]y including the grand jury transcript with the complaint, plaintiff’s

pleadings demonstrate the existence of probable cause.” Id.

As with a claim for false arrest, “probable cause” is a complete defense to

this kind of § 1983 claim. Manganiello v. City of N.Y., 612 F.3d 149, 161–62

(2d Cir. 2010). “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.” Soomro v. City of N.Y., 174 F.

Supp. 3d 806, 814 (S.D.N.Y. 2016) (quoting Boyd v. City of N.Y., 336 F.3d 72,

76 (2d Cir. 2003)).

Importantly, however, a heightened requirement applies here because

plaintiff’s submissions establish that a grand jury indicted him on the drug

charges. “A grand jury indictment creates a presumption of probable cause

that ‘may be rebutted only be evidence that the indictment was procured by

fraud, perjury, the suppression of evidence, or other police conduct

undertaken in bad faith.’” Buari, 530 F. Supp. 3d at 384 (quoting

Manganiello, 612 F.3d at 162).

Upon review, this claim must also be dismissed. As noted supra, plaintiff

appears to allege that defendant Graves somehow falsified evidence (e.g., he

“planted drugs”). Plaintiff also appears to claim that defendant Graves, and

possibly defendants Frost and/or Pritchard, falsified some later statements

and perhaps even testified falsely to the grand jury.

As an initial matter, some of this possible misconduct is just not actionable

under § 1983 no matter how much more factual detail plaintiff might offer. It

may seem unusual, but grand jury witnesses are immune from § 1983 claims

based on their testimony, even if the testimony is alleged to be false or

perjurious. See, e.g., Rehberg v. Paulk, 556 U.S. 356 (2012).

Notably, however, law enforcement officials who falsify or fabricate

evidence used in contexts other than a grand jury proceeding may only be

shielded with a less-than-complete form of immunity. See, e.g., Shabazz v.

Kailer, 201 F. Supp. 3d 386, 392 (S.D.N.Y. 2016) (collecting cases).

But as before, outside of the conclusory assertion that defendant Graves

planted drugs at some point and in some manner, it would be total guesswork

to figure out what, if anything, Graves did that might meet any of the other

elements of a malicious prosecution. And just as much or more guesswork

would be necessary to figure out how defendants Frost and/or Pritchard could

be “personally involved” in misconduct that might be actionable as a claim for

malicious prosecution.

In short, plaintiff has failed to allege sufficient factual matter to state a

plausible § 1983 claim for malicious prosecution. Cf. Stukes v. City of N.Y.,

2015 WL 1246542, at *6 (E.D.N.Y. Mar. 17, 2015) (holding presumption of

probable cause unrebutted where the plaintiff alleged in conclusory fashion

that the defendants presented “false-facts” to the grand jury).

2. Fabrication of Evidence

Defendants argue that any § 1983 claim for fabrication of evidence or false

testimony must be dismissed, either because absolute immunity shields the

defendants from liability based on their grand jury testimony or because the

exhibits attached to plaintiff’s complaint establish the “essential fact of drug

possession.” Defs.’ Mem. at 16.

“To succeed on a fabricated-evidence claim, a plaintiff must establish that

‘an (1) investigating official (2) fabricate[d] information (3) that is likely to

influence a jury’s verdict, (4) forward[ed] that information to prosecutors, and

(5) the plaintiff suffer[red] a deprivation of life, liberty, or property as a

result.” Ashley v. City of N.Y., 992 F.3d 128, 139 (2d Cir. 2021) (quoting

Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016)).

Upon review, this claim will be dismissed substantially the same reasons

as the malicious prosecution claim just discussed above. Unlike false arrest

or malicious prosecution claims, probable cause is not fatal to a fabricated-

evidence claim. See, e.g., Smalls v. Collins, 10 F.4th 117, 133 (2d Cir. 2021).

But as with plaintiff’s other § 1983 claims, aside from a single conclusory

assertion about defendant Graves, the contours of this fabricated-evidence

claim are a total mystery. Accordingly, this claim will be dismissed.

3. Conspiracy

Defendants argue that plaintiff’s § 1983 claim for conspiracy must be

dismissed because the complaint fails to plausibly allege that one or more

defendants conspired with anyone else. Defs.’ Mem. at 19–21.

“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement

between two or more state actors or between a state actor and a private

entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an

overt act done in furtherance of that goal causing damages.” Butler v. Hesch,

286 F. Supp. 3d 337, 363 (N.D.N.Y. 2018) (D’Agostino, J.).

Upon review, defendants’ motion to dismiss this claim will be granted.

Broadly construed, plaintiff’s complaint seems to suggest that one or more of

the defendants may have somehow coordinated with others to have plaintiff

arrested on false charges. But this kind of generalized speculation is far from

enough to plausibly allege a claim for conspiracy.

First off, to the extent plaintiff suggests that defendant Graves may have

conspired with defendant Frost (it remains unclear how Pritchard comes into

this story), law enforcement officers are legally incapable of conspiring with

each other.7 See, e.g., Chamberlain v. City of White Plains, 986 F. Supp. 2d

363, 388 (S.D.N.Y. 2013). Accordingly, any § 1983 claim for conspiracy

between one or more of the named defendants would fail as a matter of law.

Second, plaintiff’s complaint (and some of his attached exhibits) suggests

that he believes his former attorney may have somehow been working at odds

7 There are some limited exceptions to this rule, but they are not implicated in this fact pattern.

with his litigation goals, or that possibly the drug dealer named Kangah may

have been involved because he and defendant Graves are old friends.

But those allegations are also completely insufficient to plausibly allege a

conspiracy claim. As relevant here, “a plaintiff must provide some factual

basis supporting a meeting of the minds, such that defendants entered into

an agreement, express or tacit, to achieve the unlawful end.” Webb v. Goord,

340 F.3d 105, 110 (2d Cir. 2003).

Unlike plaintiff’s other § 1983 claims, which might turn out to be plausible

if supported with some additional level of detail, this § 1983 conspiracy claim

is completely devoid of any facts and instead relies on a familiar but faulty

proposition: “one or more defendants harmed me” and therefore “they must’ve

conspired to do it.” But that is not enough. Accordingly, this § 1983 claim

will be dismissed without leave to amend.8

4. State-Law Claim

As a final matter, defendant identifies in plaintiff’s pleading a possible

state-law claim for intentional infliction of emotional distress (“IIED”). Def.’s

Mem. at 21–22. Plaintiff, for his part, takes up this suggestion. He goes on

to reference this IIED claim in the table of contents of his brief, but does not

8 In his opposition brief, plaintiff also talks about “kidnapping.” A review confirms there is no

obvious basis on which to construe this as a possible claim under federal or state law. It will not be

considered further.

go on to develop the contours of the claim in any detail. Compare Pl.’s Opp’n

at 2, with Pl.’s Opp’n at 3–10.

Upon review, this claim must be dismissed. Plaintiff may or may not be

able to amend his pleading to assert one or more plausible § 1983 claims. But

the named defendants here were acting as municipal employees; i.e., police

officers, at the time of the alleged misconduct.

New York law bars IIED claims against this kind of defendant. See, e.g.,

D’Angelo-Fenton v. Town of Carmel, 470 F. Supp. 2d 387, 399 (S.D.N.Y.

2007). Even assuming otherwise, plaintiff has failed to allege the kind of

“extreme and outrageous conduct that transcends the bounds of decency” that

would be necessary to sustain this kind of state-law claim. Id. Accordingly,

this claim will also be dismissed without leave to amend.

V. CONCLUSION

Plaintiff’s complaint must be dismissed. Even accounting for his pro se

status, he has failed to plausibly allege any actionable claims. However, with

the exception of the § 1983 claim for conspiracy and the state-law claim for

IIED, defendants’ request to dismiss plaintiff’s complaint with prejudice (i.e.,

without any leave to amend) must be denied at this juncture.

This is because plaintiff is pro se and this is his first attempt at pleading

these claims against these defendants. See, e.g., Matima v. Cell, 228 F.3d 68,

81 (2d Cir. 2000) (“Generally, leave to amend should be freely given, and a

pro se litigant in particular should be afforded every reasonable opportunity

to demonstrate that he has a valid claim.”). Thus, with the exception of the

conspiracy and IIED claims, plaintiff shall be given an opportunity to amend

his pleading.

If plaintiff chooses to take advantage of this opportunity, plaintiff is

advised that he must include sufficient factual detail to enable the Court to

determine whether he has plausibly alleged one or more of his § 1983 claims

against one or more of the named defendants under the law governing claims

for false arrest, malicious prosecution and/or fabricated evidence. To do so,

plaintiff must clearly set forth the facts that give rise to his claims, including

the dates, times, and places of the alleged acts, and an explanation of how

each individual committed each allegedly wrongful act.

Plaintiff is cautioned that any amended pleading will replace the previous

existing complaint. In other words, the amended complaint must be a single

document that does not rely upon any other materials that have previously

been filed with the Court (although he can certainly attach exhibits to the

new pleading, as he has previously done with this one).

As for any exhibits he might attach to his amended pleading, plaintiff is

advised that, instead of scribbling handwritten narrative statements into

certain highlighted portions of these documents, he should write a pleading

that contains a single, clear history of the events that occurred and describe,

with supporting factual detail (preferably in a sequential series of numbered

individual paragraphs) how each defendant was involved in the alleged

violation of his constitutional rights.

Therefore, it is

ORDERED that

1. Defendants’ motion to dismiss is GRANTED in part and DENIED in

part;

2. Plaintiff’s complaint is DISMISSED;

3. Plaintiff’s § 1983 claims for false arrest, malicious prosecution, and

fabrication of evidence are DISMISSED with leave to amend;

4. Plaintiff’s § 1983 claim for conspiracy is DISMISSED without leave to

amend;

5. Plaintiff’s state-law claim for intentional infliction of emotional distress

is DISMISSED without leave to amend;

6. Plaintiff shall have THIRTY DAYS in which to file an amended

complaint as to his § 1983 claims for false arrest, malicious prosecution,

and/or fabrication of evidence against defendants Graves, Frost, and/or

Pritchard;

7. If plaintiff files an amended pleading within this time period, the Clerk

shall reset the deadlines in which to answer or move against the pleading;

and

8. If plaintiff does not file an amended pleading within this thirty-day

time period, the Clerk is directed to close this case and enter a judgment

without further Order of this Court.

IT IS SO ORDERED.

Dated: December 5, 2023 US. De wt Judge

Utica, New York.

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