Parkinson v. The Town of Niskayuna Police Department

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JAHNELL PARKINSON,

Plaintiff,

v. 1:22-cv-70 (BKS/CFH)

TOWN OF NISKAYUNA, DETECTIVE PAUL

HOBSON, PATROLMAN JACKSON ARCHAMBAULT,

DETECTIVE MARK FLORELL, FRANCIS WALL,

CITY OF SCHENECTADY, OFFICER ERIC REYELL,

BRANDAN KIETLINSKI, TOWN OF ROTTERDAM,

DETECTIVE CONNOR LEE, OFFICER SEAN

SIMMONS, COUNTY OF SCHENECTADY, DAVID P.

MARINUCCI, and JOHN R. MCFADDEN,

Defendants.

Appearances:

Plaintiff pro se:

Jahnell Parkinson

Schenectady, New York 12303

For Defendants Town of Niskayuna, Paul Hobson, Jackson Archambault, Mark Florell, and

Francis Wall:

Ryan E. Manley

Conway, Donovan & Manley PLLC

50 State Street, 2nd Floor

Albany, New York 12207

For Defendants City of Schenectady and Brandan Kietlinski:

Hannah H. Hage

Gregg T. Johnson

Johnson & Laws LLC

646 Plank Road, Suite 205

Clifton Park, New York 12065

For Defendants Town of Rotterdam, Connor Lee, and Sean Simmons:

Ryan P. Bailey

Bailey, Johnson & Peck, P.C.

5 Pine West Plaza, Suite 507

Washington Avenue Extension

Albany, New York 12205

For Defendant John R. McFadden:

Jonathan M. Bernstein

Goldberg Segalla, LLP

8 Southwoods Boulevard, Suite 300

Albany, New York 12211

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On January 26, 2022, Plaintiff pro se Jahnell Parkinson initiated this action by filing a

complaint that asserted claims under 42 U.S.C § 1983 for (1) denial of access to the courts;

(2) deprivation of property without due process of law; (3) denial of due process and equal

protection of the law; (4) municipal liability for deliberate indifference; and (5) conspiracy

against eleven defendants: (1) the Town of Niskayuna Police Department; (2) Paul Hobson;

(3) Jackson Archambault; (4) Mark Florell; (5) Francis Wall; (6) the City of Schenectady Police

Department; (7) Eric Reyell; (8) Brian Kietlinski; (9) the Town of Rotterdam Police Department;

(10) Connor Lee; and (11) Sean Simmons. (Dkt. No. 1, ¶¶ 9–21, 50–78.) All of the defendants,

except Eric Reyell, who has not yet appeared in this action moved to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 8, 22, 25.)1 On January 9, 2023, the Court granted

the motions and dismissed Plaintiff’s complaint with leave to amend. See Parkinson v. Town of

1 Defendants City of Schenectady Police Department and Brandan Kietlinski state that Eric Reyell has not been

employed by the Schenectady Police Department since 2015, (Dkt. No. 48-1, at 6 n.1), well before the events alleged

in the amended complaint. Defendant Reyell has not appeared in this action, and Plaintiff has not filed a proof of

service as to any Defendant. Plaintiff is directed to file proof of service as to Defendant Reyell, and the other

Defendants who have not appeared in this action—the County of Schenectady and David Marinucci—by December

26, 2023. See Fed. R. Civ. P. 4(m) (providing for dismissal of a complaint “[i]f a defendant is not served within 90

days after the complaint is filed”).

Niskayuna Police Dep’t, No. 22-cv-70, 2023 WL 131023, at *8, 2023 U.S. Dist. LEXIS 3067, at

*21 (N.D.N.Y. Jan. 9, 2023).

On April 6, 2023, Plaintiff filed the operative amended complaint in which he asserts

claims against fourteen defendants: (1) the Town of Niskayuna; (2) Paul Hobson; (3) Jackson

Archambault; (4) Mark Florell; (5) Francis Wall; (6) the City of Schenectady; (7) Eric Reyell;

(8) Brandan Kietlinski; (9) the Town of Rotterdam; (10) Connor Lee; (11) Sean Simmons;

(12) the County of Schenectady; (13) David P. Marinucci; and (14) John R. McFadden. (Dkt.

No. 36, ¶¶ 10–23.) Plaintiff asserts claims under 42 U.S.C § 1983 for (1) denial of access to the

courts; (2) deprivation of property without due process of law; (3) denial of due process and

equal protection of the law; (4) municipal liability for deliberate indifference; (5) conspiracy;

(6) “conspiracy to convict”; (7) violation of the right to counsel; (8) denial of Fourth and

Fourteenth Amendment rights; (9) denial of Fifth and Fourteenth Amendment rights; and

(10) denial of Sixth and Fourteenth Amendment rights. (Dkt. No. 36, ¶¶ 64–107.)

Presently before the Court are motions to dismiss under Rule 12(b)(6) of the Federal Rule

of Civil Procedure by: (1) Defendants Town of Niskayuna, Hobson, Archambault, Florell, and

Wall (“Niskayuna Defendants”), (Dkt. No. 47); (2) Defendants City of Schenectady and

Kietlinski (“City of Schenectady Defendants”), (Dkt. No. 48); (3) Defendants Town of

Rotterdam, Lee, and Simmons (“Rotterdam Defendants”), (Dkt. No. 50); and (4) Defendant

McFadden, (Dkt. No. 52). Plaintiff opposes each of these motions. (Dkt. No. 67.)2 Defendant

McFadden, City of Schenectady Defendants, and Rotterdam Defendants filed replies in further

2 In light of Plaintiff’s delay in responding to the motions to dismiss, City of Schenectady Defendants and Rotterdam

Defendants requested that their motions be considered unopposed. (Dkt. Nos. 61, 62.) However, upon request from

Plaintiff, (Dkt. No. 63), and given his pro se status, the Court extended the time for Plaintiff to respond to the motions

to dismiss. (Dkt. No. 65.) Plaintiff filed his opposition on September 5, 2023. (Dkt. No. 67.) Accordingly, the Court

denies City of Schenectady Defendants’ and Rotterdam Defendants’ requests to consider their motions unopposed.

support of their motions. (Dkt. Nos. 68, 69, 71.) For the following reasons, the Court grants the

motions filed by City of Schenectady Defendants and Defendant McFadden and grants in part

and denies in part the remaining motions to dismiss.

II. FACTS3

On or about May 23, 2019, Plaintiff alleges he was pulled over in his vehicle by

Defendants Reyell, Lee, and Simmons in the Town of Rotterdam, “taken out of his vehicle,

handcuffed, searched[,] and placed in the back of an unmarked vehicle.” (Dkt. No. 36, ¶¶ 35,

37.) Plaintiff “did not know the nature of the stop” but knew “that he was legally driving his

vehicle and not committing any crimes or in the process of such.” (Id. ¶ 36.) Afterward,

Defendant Lee said to Plaintiff: “[Y]ou messed up . . . . [Y]ou shouldn’t have never [sic] tried to

get a relative of a police officer arrested!” (Id. ¶ 37.) Plaintiff was taken to “the stationhouse” by

a different car where Defendant Simmons conducted a strip search and an inventory search. (Id.

¶ 38.) While there, Defendant Simmons told Plaintiff that officers were at his residence with a

search warrant and that if Plaintiff did not give Defendant Simmons a combination code to enter

Plaintiff’s residence, officers would “break open the door, causin[g] excessive damage to

[Plaintiff’s] home.” (Id. ¶ 39.) Plaintiff gave officers access to the residence before learning that

there was no valid search warrant. (Id. ¶ 40.)

Defendants Town of Niskayuna and Town of Rotterdam and its officers, “acting in

concert” with Defendants Reyell, Florell, and Lee, seized property from Plaintiff’s residence,

including money, iPhones, watches, and cars. (Id. ¶ 41.) Plaintiff alleges that no drugs or

3 These facts are drawn from the amended complaint. (Dkt. No. 36.) The allegations in the amended complaint are

largely repetitive of the allegations in the original complaint. (Dkt. No. 1.) The Court assumes familiarity with those

allegations and has only included what is relevant to the instant motions. The Court assumes the truth of, and draws

reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of New York, 952 F.3d 67, 74–75

(2d Cir. 2020), but does not accept as true the legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

paraphernalia were found there. (Id.) Plaintiff was arrested on drug charges, “his property was

confiscated[,] and his bank accounts were frozen” by Defendants Town of Rotterdam, Town of

Niskayuna, Florell, Lee, and Simmons “acting in conspiracy with” Defendants Hobson,

Archambault, and Wall. (Id. ¶ 42.) Plaintiff’s bail was set at $100,000, which Plaintiff alleges

was “excessive in light of two minor drug sales.” (Id. ¶ 43.) A judge ordered that Plaintiff’s bank

account be released and that Defendants return one of Plaintiff’s vehicles. (Id. ¶ 48.)

Plaintiff was indicted by a grand jury and his case was scheduled for trial. (Id. ¶ 44.)

Plaintiff hired Defendant Marinucci and, later, Defendant McFadden to represent him, but

Plaintiff alleges that these Defendants “were compromised and in collusion with the

prosecution.” (Id. ¶ 45.) Without specifying which attorney is the subject of his claims, Plaintiff

alleges that “he”4 “failed to effectively challenge the legality of the stop frisk and the search of

the plaintiff or his apartment[;] . . . the arrest warrant[;] or the probable cause for the stop and

search of the plaintiff.” (Id. ¶ 47.) “He” “proceeded to trial without any discovery or witness[]

statements and knew that the indictment was fraudulent . . . [but] never requested the necessary

hearings specified for the evidence presented in the case.” (Id.) “He” “failed to investigate or

object to the evidence and went to trial unprepared . . . [and] coerced the plaintiff to plead guilty

in the middle of trial.” (Id.) Plaintiff pleaded guilty during the trial and was convicted of drug

charges; he served two years in state prison. (Id. ¶¶ 47, 90.)

4 Other than the collusion allegation, (id. ¶ 45), Plaintiff’s factual allegations against Defendants Marinucci and

McFadden are contained in a single paragraph. (Id. ¶ 47.) Plaintiff initially alleges that “Defendant Marinucci and

McFadden failed to effectively challenge the legality of the stop frisk and the search of the plaintiff or his apartment,”

(id.). But the remainder of the allegations in that paragraph refer only to a single person without specifying to which

Defendant, Marinucci or McFadden, Plaintiff is referring. (Id.)

III. STANDARD OF REVIEW

A. Rule 12(b)(6)

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). A court

must accept as true all well-pleaded 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.” Iqbal, 556 U.S. at 678.

The complaint of a plaintiff proceeding pro se “must be construed liberally with ‘special

solicitude’ and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738

F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

“Nonetheless, a pro se complaint must state a plausible claim for relief.” Id.

IV. ANALYSIS

A. Dismissal of Claims Previously Dismissed

The Court assumes familiarity with the analysis in its previous decision dismissing

Plaintiff’s claims of denial of access to the courts, deprivation of property without due process of

law, and denial of due process and equal protection of the law. See Parkinson, 2023 WL 131023,

at *4–7, 2023 U.S. Dist. LEXIS 3067, at *10–18. Though Plaintiff has added Defendants to the

amended complaint, he has not alleged any new facts material to those causes of action. For the

reasons set forth in the Court’s previous ruling, these claims are dismissed.

Furthermore, though, as discussed below, Plaintiff has now alleged claims—for violation

of his Fourth Amendment right against unreasonable searches—that survive the motions to

dismiss, the amended complaint, as with the original complaint, contains no allegations of any

municipal policy or custom, see Monell, 436 U.S. at 690, widespread practice or unofficial

policy, see Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006), or inadequate training, see

Ambrose v. City of New York, 623 F. Supp. 2d 454, 465 (S.D.N.Y. 2009), that could provide the

basis for a claim for municipal liability. Therefore, Plaintiff’s municipal liability claim is

dismissed.

Finally, Plaintiff does not allege that his sole surviving claims provide the basis for his

conspiracy claim. Rather, Plaintiff premises his conspiracy claim on claims that do not survive

the motions to dismiss. (Dkt. No. 36, ¶¶ 91–98.) Accordingly, the Court dismisses Plaintiff’s

conspiracy claim for failing to plausibly allege an underlying constitutional violation. See Singer

v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995); see also Droz v. McCadden, 580 F.3d

106, 109 (2d Cir. 2009); Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). To the

extent Plaintiff does base his conspiracy claim on a surviving claim, it is wholly conclusory and,

as described in this Court’s previous ruling, vague and conclusory allegations that defendants

have engaged in conspiracy are insufficient to state a plausible claim for conspiracy.

B. Unlawful Seizure and Detention

In his eighth cause of action, Plaintiff alleges that Defendants County of Schenectady,

Town of Rotterdam, Hobson, Archambault, Florell, Wall, Reyell, Kietlinski, Lee, Simmons,

Marinucci, and McFadden “unlawfully and wrongfully seized” Plaintiff, causing his “unlawful

detention” in violation of the Fourth and Fourteenth Amendments. (Dkt. No. 36, ¶¶ 99–102.)

Niskayuna Defendants argue that Plaintiff’s allegations related to his unlawful seizure claim are

conclusory and speculative. (Dkt. No. 47-1, at 22.) Rotterdam Defendants similarly argue that

Plaintiff’s allegations are conclusory, that any claim for unlawful seizure is subsumed by a claim

for false arrest, and that Defendants’ actions fell within well-established exceptions to the

warrant requirement. (Dkt. No. 50-1, at 23–26.) Defendant McFadden argues that Plaintiff fails

to allege any personal involvement by Defendant McFadden. (Dkt. No. 52-3, at 6.)

The Fourth Amendment guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. This “protects the right of private citizens to be free from unreasonable government

intrusions into areas where they have a legitimate expectation of privacy,” United States v.

Newton, 369 F.3d 659, 664 (2d Cir. 2004) (citations omitted), and includes freedom from arrest

without probable cause, see Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Arresting officers

have probable cause to arrest when they have “knowledge or reasonably trustworthy information

sufficient to warrant a person of reasonable caution in the belief that an offense has been

committed by the person to be arrested.” See Singer, 63 F.3d at 119 (quoting O’Neill v. Town of

Babylon, 986 F.2d 646, 650 (2d Cir. 1993)). “For circumstances to warrant an investigatory stop,

law enforcement officials must have a ‘reasonable basis to think that the person to be detained is

committing or has committed a criminal offense.’” United States v. Patterson, 25 F.4th 123, 135

(2d Cir. 2022) (quoting United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014)).

Plaintiff alleges that he was stopped in his vehicle by Defendants Reyell, Lee, and

Simmons. (Dkt. No. 36, ¶ 35.) Plaintiff alleges that he “did not know the nature of the stop,” and

that he was “legally driving his vehicle and not committing any crimes or in the process of such.”

(Id. ¶ 36.) Plaintiff alleges that he was handcuffed, searched, and placed in the back of an

unmarked vehicle by Defendant Reyell and taken to “the stationhouse” by “[a]nother unit.” (Id.

¶¶ 37–38.) Plaintiff alleges that he was “arrested on drug charges,” that his bail was excessive

“in light of two minor drug sales,” and that he was “coerced to plead guilty in the middle of

trial.” (Id. ¶¶ 42–43, 47). Plaintiff alleges that he pleaded guilty during the trial, was convicted of

drug charges, and served two years in state prison. (Id. ¶¶ 47, 90.)

To the extent Plaintiff premises his Fourth Amendment claim on the seizure of his

person, such a claim is dismissed because it is tantamount to a claim for false arrest, see Dixon v.

City of Syracuse, 493 F. Supp. 3d 30, 42 (N.D.N.Y. 2020) (dismissing a claim for an unlawful

seizure as duplicative of a claim for false arrest where no facts differentiate the claims); Lozada

v. Weilminster, 92 F. Supp. 3d 76, 98 (E.D.N.Y. 2015) (same), and Plaintiff has neither stated a

claim for false arrest nor alleged facts to differentiate the circumstances of his seizure from those

of his arrest on charges that led to his conviction. To state a claim for false arrest under § 1983, a

plaintiff must plead “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.” Toussaint v. County of Westchester, 615 F. Supp. 3d

215, 224 (S.D.N.Y. 2022) (alteration in original) (quoting Jocks v. Tavernier, 316 F.3d 128,

134–35 (2d Cir. 2003). But “[t]he existence of probable cause to arrest constitutes justification

and ‘is a complete defense to an action for false arrest,’ whether that action is brought under state

law or under § 1983.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (quoting

Weyant, 101 F.3d at 852).

“[B]y pleading guilty to the crimes charged resulting from the purportedly false arrest, or

to any lesser-included offenses to resolve all of the crimes charged, a plaintiff concedes as a

matter of law that there was probable cause for all charges covered by the plea agreement.”

Seward v. Antonini, No. 20-cv-9251, 2023 WL 6387180, at *16, 2023 U.S. Dist. LEXIS 177138,

at *40 (S.D.N.Y. Sept. 29, 2023) (alteration in original). Thus, a plaintiff “can under no

circumstances recover” under § 1983 for false arrest if he pleaded guilty to the offense for which

he was arrested. See Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986); see also Wahid v.

Mogelnicki, 406 F. Supp. 3d 247, 249 (E.D.N.Y. 2017).

Here, because Plaintiff alleges that he was arrested on and convicted of drug charges after

pleading guilty, (Dkt. No. 36, ¶¶ 42, 47, 90), and because Plaintiff has alleged no facts to

differentiate the circumstances of his seizure from those of his arrest on charges that led to his

conviction, his claims for false arrest and unlawful seizure must be dismissed. The same

principles also prevent Plaintiff from stating a claim for false imprisonment or malicious

prosecution. See Cameron, 806 F.2d at 387.

C. Unreasonable Searches

Although Plaintiff does not include a claim for unreasonable search in any of his causes

of action, Plaintiff does allege that he was “subjected to an illegal search,” that Defendant

“stripped searched him and conducted an inventory search while in custody all without probable

cause,” and that Plaintiff provided a combination code to his apartment after Defendant Simmons

falsely stated that officers had a search warrant. (Dkt. No. 36, ¶¶ 7, 38–40.) Construing these

allegations liberally, the Court interprets the amended complaint as asserting unreasonable search

claims concerning the strip search and the search of Plaintiff’s apartment.5

5 The Court, however, does not find that Plaintiff has alleged a plausible claim for an unlawful inventory search.

Plaintiff’s allegations that he was pulled over, handcuffed, and taken to the police station in the back of a police car

demonstrate objectively that he was seized within the meaning of the Fourth Amendment prior to arriving at the police

station, where he has acknowledged that he was held in custody. See Mara v. Rilling, 921 F.3d 48, 70 (2d Cir. 2019).

An “inventory search constitutes a well-defined exception to the warrant requirement,” and Plaintiff has not alleged

Rotterdam Defendants similarly construed the amended complaint and argue that

Plaintiff’s allegations are conclusory and that each search fell within a well-established exception

to the warrant requirement. (Dkt. No. 50-1, at 23–26.)

1. Strip Search

A search incident to an arrest “constitutes an exception to the warrant requirement” the

Fourth Amendment otherwise imposes. See Sloley v. VanBramer, 945 F.3d 30, 37 (2d Cir. 2019)

(quoting Riley v. California, 573 U.S. 373, 382 (2014)). But “the scope of a search incident to

arrest is limited.” Id. “To determine whether a particular search incident to arrest falls within this

exception, ‘[courts] examine the degree to which [it] intrud[es] upon an individual’s privacy and

the degree to which [it is] needed for the promotion of legitimate governmental interests.’” Id.

(second, third, and fourth alterations in original) (quoting Birchfield v. North Dakota, 579 U.S.

438, 461 (2016)). The Second Circuit “has held that the ‘uniquely intrusive nature of strip

searches, as well as the multitude of less invasive investigative techniques available to officers’

make it such that a strip search cannot be treated as a routine search of an arrestee’s person.” Id.

(quoting Hartline v. Gallo, 546 F.3d 95, 102 (2d Cir. 2008)). Therefore, a strip search conducted

incident to a misdemeanor arrest requires reasonable suspicion that the arrestee is concealing

contraband based on the crime charged, and a visual body cavity search incident to a

misdemeanor or felony arrest requires reasonable suspicion that the arrestee is secreting evidence

inside the body cavity. See Sloley, 945 F.3d at 39; Hartline, 546 F.3d at 100. Though the Second

Circuit has not decided the issue, district courts within the Second Circuit “have consistently

any facts from which the Court could infer that the inventory search while Plaintiff was in custody was unlawful. See

United States v. Mendez, 315 F.3d 132, 137 (2d Cir. 2002).

held that a reasonable suspicion is required to perform a strip search of a felony arrestee.”

Seward, 2023 WL 6387180, at *29, 2023 U.S. Dist. LEXIS 177138, at *79–80 (collecting cases).

“Reasonable suspicion” requires more than a “mere hunch,” but “the level of suspicion

the standard requires is considerably less than proof of wrongdoing by a preponderance of the

evidence, and obviously less than is necessary for probable cause.” See Sloley, 945 F.3d at 43

(quoting Navarette v. California, 572 U.S. 393, 397 (2014)). To determine whether an officer

had reasonable suspicion, courts “look at the totality of the circumstances.” Id. at 43 (quoting

United States v. Arvizu, 534 U.S. 266, 273 (2002)). An arrest for a drug offense does not

automatically give rise to a reasonable suspicion to conduct a strip search. See Seward, 2023 WL

6387180, at *30, 2023 U.S. Dist. LEXIS 177138, at *81 (collecting cases).

Though Plaintiff alleges that Defendant Simmons conducted the strip search “without

probable cause”—a standard more stringent than reasonable suspicion that is not required to

justify a strip search incident to felony arrest, see Sloley, 945 F.3d at 43—Plaintiff alleges that he

had not been committing any crimes when he was pulled over, (Dkt. No. 36, ¶ 36). Plaintiff’s

later arrest on drug charges does not alone amount to reasonable suspicion justifying a strip

search. See Seward, 2023 WL 6387180, at *30, 2023 U.S. Dist. LEXIS 177138, at *81; see also

Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 273–74 (S.D.N.Y. 2002) (“[A]utomatic

justification for strip searches based on an arrest for a drug-related crime would be inconsistent

with the legal concept of reasonable suspicion based on the totality of the circumstances . . . .”

(citing United States v. Arvizu, 534 U.S. 266, 266 (2002))). Thus, the Court declines to dismiss

Plaintiff’s claim that Defendant Simmons violated Plaintiff’s Fourth Amendment rights by

conducting a strip search of Plaintiff at the stationhouse.

2. Search of Plaintiff’s Residence

Under the Fourth Amendment, warrantless searches are presumed unreasonable. See

Newton, 369 F.3d at 665. But consent renders a search reasonable. See United States v. Garcia,

56 F.3d 418, 422 (2d Cir. 1995). However, consent to search only satisfies the Fourth

Amendment where it is voluntarily given, and “[t]he question whether a consent to a search was

in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of

fact to be determined from the totality of all the circumstances.” Phillips v. County of Orange,

894 F. Supp. 2d 345, 370 (S.D.N.Y. 2012) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

227 (1973)).

“To ascertain whether consent is valid, courts examine the ‘totality of all the

circumstances’ to determine whether the consent was ‘a product of that individual’s free and

unconstrained choice, rather than a mere acquiescence in a show of authority.’” Garcia, 56 F.3d

at 422 (quoting United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993)). “The standard for

evaluating consent is ‘“objective” reasonableness—what would the typical reasonable person

have understood by the exchange between the officer and the suspect?’” United States v. Munoz,

987 F. Supp. 2d 438, 444 (S.D.N.Y. 2013) (quoting Garcia, 56 F.3d at 423). “Thus, ‘the Fourth

Amendment is satisfied when, under the circumstances, it is objectively reasonable for the

officer to believe that the scope of the [] consent permitted him to conduct the search that was

undertaken.’” Id. (quoting Garcia, 56 F.3d at 423). But where “the police lie to a subject and

claim to have a search warrant when they in fact have none, any consent to search is . . .

involuntary.” Id. (citing Bumper v. North Carolina, 391 U.S. 543, 549–50 (1968)).

Construing Plaintiff’s allegations liberally and drawing all reasonable inferences in

Plaintiff’s favor, Plaintiff has stated a claim against Defendant Simmons, Florell, and Lee for

violation of his Fourth Amendment right against unreasonable searches arising from the search

of his residence. Rotterdam Defendants point out that Plaintiff alleges that Defendants

“knowingly and willfully submitt[ed] false data regarding the transactions that led to Plaintiff’s

arrest such as the search warrant and witness statements.” (Dkt. No. 50-1, at 25 (quoting Dkt.

No. 36, ¶ 104).) Rotterdam Defendants argue that this is an admission that there was a search

warrant for Plaintiff’s apartment. (Id.) However, the amended complaint refers to other seizures,

including seizure of a 2016 Mercedes Benz, (Dkt. No. 36, ¶¶ 41–42), and the amended complaint

does not identify the subject of “the search warrant” alleged to include “false data,” (id. ¶ 104).

Thus, liberally construing Plaintiff’s allegations and drawing all reasonable inferences in favor of

Plaintiff, the Court infers that there was no search warrant for Plaintiff’s residence when

Defendant Simmons asked for the combination code.

Plaintiff alleges that Defendant Simmons asked Plaintiff for the “combination code entry

to his apartment” and told Plaintiff “the police were at his residence with a search warrant” and

“that if he doesn’t give it to him they would only break open the door, causin[g] excessive

damage to his home.” (Id. ¶ 39.) Plaintiff alleges that as a result, he gave “defendant officers

access to his apartment,” but later learned that “there wasn’t any search . . . warrant.” (Id. ¶¶ 40.)

Plaintiff alleges that Defendants Florell and Lee searched the residence and seized various

possessions. (Id. ¶ 41.)6

6 Plaintiff alleged that “the Town of Niskayuna, Town of Rotterdam and its officer [sic] acting in concert with Reyell,

Florell and Lee” seized items in the search, (id.), but this allegation is too vague to find that Plaintiff has plausibly

alleged the personal involvement of any of the other individual moving Defendants, see Grullon v. City of New Haven,

720 F.3d 133, 138 (2d Cir. 2013). Plaintiff appears to be attempting to bring a Fourth Amendment claim against

Defendants Town of Niskayuna and Town of Rotterdam. Plaintiff has also included government-entity Defendants in

several of his other non-Monell claims. (Dkt. No. 36, ¶¶ 64–82, 91–102.) But “Monell expressly prohibits respondeat

superior liability for municipalities” and Plaintiff has not plausibly alleged that any individual Defendant “is someone

‘whose edicts or acts may fairly be said to represent official policy’” for any of the government-entity Defendants.

See Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97–98 (2d Cir. 2020) (quoting Monell v. Dep’t of Soc. Servs. of City

of N.Y., 436 U.S. 658, 694 (1978)). Thus, Plaintiff has failed to state any non-Monell claims against government-entity

Defendants. See id. at 100–01; Byrd v. Town of DeWitt, No. 23-cv-390, 2023 WL 6467921, at *13, 2023 U.S. Dist.

LEXIS 179478, at *31–32 (N.D.N.Y. Oct. 5, 2023). Accordingly, Plaintiff’s non-Monell claims against government

Defendants are dismissed.

Niskayuna Defendants and Rotterdam Defendants argue that Plaintiff consented to the

search of his residence by giving officers access. (Dkt. No. 47-1, at 22; Dkt. No. 50-1, at 25.) But

these Defendants fail to address Plaintiff’s allegation that Defendant Simmons lied to Plaintiff in

order to get Plaintiff’s consent to search the residence, (Dkt. No. 36, ¶¶ 39–40). Because consent

to search satisfies the Fourth Amendment only where that consent is voluntary, see Phillips, 894

F. Supp. 2d at 370, and because consent to search is involuntary where police lie in claiming that

they have a search warrant, see Munoz, 987 F. Supp. 2d at 444, Plaintiff has plausibly alleged

that Defendants Simmons, Florell, and Lee violated Plaintiff’s Fourth Amendment right by

searching his residence without a search warrant.7

D. Right to Counsel

Plaintiff asserts, without any specific factual allegations and without indicating against

whom the claim is asserted, that Defendants violated his right to counsel. (Dkt. No. 36, at 10.)8

Plaintiff has not alleged that he did not have the assistance of counsel during his criminal

prosecution; rather, Plaintiff alleges that he “could not afford a lawyer of his own choosing, only

a lawyer that was convenient” and that he later hired Defendants Marinucci and McFadden. (Dkt.

No. 36, ¶¶ 43, 45.) Defendant McFadden argues that Plaintiff cannot state such a claim because

Plaintiff was represented by counsel. (Dkt. No. 52-3, at 10.) Niskayuna Defendants and

7 As discussed below, Rotterdam Defendants argue that other claims are barred by Heck v. Humphrey, 512 U.S. 477

(1994), (Dkt. No. 50-1, at 19–21), but they do not argue that Plaintiff’s Fourth Amendment unreasonable search claims

are so barred. In any event, based on the amended complaint, it does not appear that Heck bars Plaintiff’s Fourth

Amendment unreasonable search claims because Plaintiff alleges that, “[n]o drugs or paraphernalia w[ere] found in

[Plaintiff’s] apartment,” he refers to “two minor drug sales,” and he was “convicted of drug charges.” (Dkt. No. 36,

¶¶ 41, 90.) It does not appear, therefore, that Plaintiff’s Fourth amendment unreasonable search claims necessarily

imply the invalidity of his conviction. See Walker v. Johns, No. 16-cv-437, 2016 WL 4508358, at *4, 2016 U.S. Dist.

LEXIS 115204, at *8–9 (N.D.N.Y. Aug. 29, 2016) (“[W]here the Section 1983 action even if successful will not

demonstrate that invalidity of any outstanding criminal judgment or prison disciplinary determination against the

plaintiff, a court should allow the action to proceed.”).

8 The Court also construes Plaintiff’s tenth claim as asserting a violation of his Sixth Amendment right to counsel. (Id.

at 11.)

Rotterdam Defendants argue that by failing to allege any supporting facts whatsoever, Plaintiff

has failed to plausibly allege such a claim. (Dkt. No. 47-1, at 12; Dkt. No. 50-1, at 18–19.)

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.

The right to counsel attaches upon “the initiation of adversary judicial criminal proceedings”

against the defendant and applies to all “critical stages” of the prosecution before, during, and

after trial. See Miller v. O’Bryan, 498 F. Supp. 2d 548, 557 (N.D.N.Y. 2007) (quoting United

States v. Gouveia, 467 U.S. 180, 189 (1984)).

As a preliminary matter, the Court notes that, to the extent Plaintiff asserts this claim

against Defendant McFadden, such a claim is dismissed because Plaintiff has not plausibly

alleged that he was a state actor as is required under § 1983. Cf. Rodriguez v. Weprin, 116 F.3d

62, 65–66 (2d Cir. 1997) (”[I]t is well-established that court-appointed attorneys performing a

lawyer’s traditional functions as counsel to defendant do not act ‘under color of state law’ and

therefore are not subject to suit under 42 U.S.C. § 1983”). And it is equally well-settled that “the

‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an

award of damages under § 1983.’” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (quoting

Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). That is, to establish a defendant’s individual

liability in a suit brought under § 1983, a plaintiff must show “the defendant’s personal

involvement in the alleged constitutional deprivation.” Grullon, 720 F.3d at 138 (citations

omitted). To do so, a plaintiff must “allege a tangible connection between the acts of a defendant

and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).

Here, Plaintiff has not plausibly alleged the personal involvement of any Defendant in

any alleged violation of his right to counsel. To the extent Plaintiff premises this claim on an

inability to “afford a lawyer of his own choosing” because “his bank account was frozen,” (Dkt.

No. 36, ¶¶ 43, 60), Plaintiff acknowledged having later hired two attorneys—Defendants

McFadden and Marinucci—to represent him. (Id. ¶ 45.) And Plaintiff’s failure to allege, beyond

conclusory allegations, the personal involvement of any Defendant or facts from which the Court

could infer that any bank account seizure was purposeful and unjustified requires dismissal of his

claim. Cf. United States v. Kolfage, 537 F. Supp. 3d 559, 565 (S.D.N.Y. 2021). Thus, Plaintiff’s

claim for denial of his right to counsel is dismissed.

E. Right to a Fair Trial

The Court construes Plaintiffs ninth claim, which Plaintiff alleges arise under the Fifth

and Fourteenth Amendments, as a claim for violation of Plaintiff’s right to a fair trial.9

Specifically, Plaintiff appears to allege claims for Brady violations, fabrication of evidence, and

provision of false testimony. (Dkt. No. 36, ¶¶ 5, 7, 96–98, 103–07.) Plaintiff does not state

against whom these claims are asserted. (Id. ¶¶ 103–07.) Niskayuna Defendants and City of

Schenectady Defendants argue that Plaintiff’s allegations in support of these claims are too

vague and nonspecific to state a claim and that Plaintiff fails to allege the personal involvement

of any Niskayuna Defendant. (Dkt. No. 47-1, at 13, 26–27; Dkt. No. 48-1, at 13–14.) Rotterdam

Defendants argue that these claims are barred by Heck v. Humphrey. (Dkt. No. 50-1, at 19–21.)10

9 Additionally, though the Court dismissed Plaintiff’s conspiracy claim for the reasons stated in its prior decision, see

supra section IV.A, the Court construes Plaintiff’s sixth claim, which Plaintiff refers to as a “conspiracy to convict”

claim, as alleging violations of Plaintiff’s right to a fair trial, (Dkt. No. 36, ¶¶ 95–98), which the Court addresses here

in connection with Plaintiff’s ninth claim.

10 “Where a plaintiff brings a Section 1983 claim and ‘a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence . . . the complaint must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.’” Beckwith v. City of Syracuse, 642 F. Supp. 3d 283, 291

(N.D.N.Y. 2022) (quoting Heck, 512 U.S. at 487). However, because the Court disposes of these claims on other

grounds, the Court need not address this issue.

Defendant McFadden argues that Plaintiff has failed to allege personal involvement of Defendant

McFadden and that Plaintiff otherwise fails to state a claim. (Dkt. No. 52-3, at 10.)

1. Brady Violation

Plaintiff alleges that “the defendant . . . failed to timely disclose ‘BRADY’ material to

plaintiff’s defense [] counsel” and that “the defendants knowingly, willfully and wrongfully

concealed information that would have assisted plaintiff in his defense against serious criminal

charges.” (Dkt. No. 36, ¶¶ 98, 106.)

Brady violations11 are actionable under 42 U.S.C. § 1983. See Poventud v. City of New

York, 750 F.3d 121, 132 n.12 (2d Cir. 2014) (en banc). Stating a Brady violation requires the

pleading of three elements: “The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that evidence must have been suppressed

by the State, either willfully or inadvertently; and prejudice must have ensued.” United States v.

Rivas, 377 F.3d 195, 199 (2d Cir. 2004)

Plaintiff does not allege what information was not disclosed, let alone that it constitutes

exculpatory or impeachment evidence. See Rivas, 377 F.3d at 199. Nor has Plaintiff alleged the

personal involvement of any Defendant. Thus, Plaintiff has failed to plausibly allege a claim

under § 1983 for a Brady violation. See Myers v. County of Nassau, 825 F. Supp. 2d 359, 368

(E.D.N.Y. 2011) (dismissing a Brady claim under § 1983 where the Plaintiff “set forth no facts

supporting any such theory”).

11 See Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, “[t]he government has the obligation to turn over evidence

in its possession that is both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie,

480 U.S. 39, 57 (1987).

2. Fabrication of Evidence and False Testimony

Plaintiff alleges that Defendants “knowingly and willfully submitt[ed] false data

regarding the transactions that led to Plaintiff’s arrest such as the search warrant and witness

statements . . . [and] . . . uttered false testimony during plaintiff’s prosecution as well as trial that

led to him being indicted and convicted on narcotics sale charges.” (Dkt. No. 36, ¶¶ 104–05.)12

“It is firmly established that a constitutional right exists not to be deprived of liberty on

the basis of false evidence fabricated by a government officer.” Buari v. City of New York, 530 F.

Supp. 3d 356, 389 (S.D.N.Y. 2021) (quoting Harris v. City of New York, 222 F. Supp. 3d 341,

351 (S.D.N.Y. 2016)). “When a police officer creates false information likely to influence a

jury’s decision and forwards that information to prosecutors, he violates the accused’s

constitutional right to a fair trial, and the harm occasioned by such unconscionable action is

redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti v. N.Y.C. Transit Auth.,

124 F.3d 123, 130 (2d Cir. 1997). The elements of a claim for denial of the right to a fair trial

due to fabrication of evidence are: “(1) [an] investigating official (2) fabricates information

(3) that is likely to influence a jury’s verdict, (4) forwards that information to prosecutors, and

(5) the plaintiff suffers a deprivation of life, liberty, or property as a result.” Garnett v.

12 Construed liberally, Plaintiff’s allegation of fabricated evidence used to apply for a search warrant could suggest

Plaintiff has asserted a claim for malicious prosecution. See Bailey v. City of New York, 79 F. Supp. 3d 424, 447

(E.D.N.Y. 2015). To state a claim for malicious prosecution, a plaintiff must plausibly allege “‘(1) the initiation or

continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack

of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions.’”

See Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d 938, 947

(2d Cir. 1997)). As discussed above, a proceeding that terminates in a conviction precludes a claim of malicious

prosecution. See Thompson v. Clark, 596 U.S. 36, 39 (2022) (“To demonstrate a favorable termination of a criminal

prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a plaintiff need

only show that his prosecution ended without a conviction.”); see also Barnes v. City of New York, 68 F.4th 123, 128

(2d Cir. 2023) (“We accordingly affirm the dismissal of [Plaintiff]’s malicious prosecution claim because he cannot

show that his ‘criminal prosecution ended without a conviction.’” (quoting Thompson, 596 U.S. at 39)). Here, Plaintiff

concedes that he was convicted of drug offenses and served two years in state prison. (Dkt. No. 36, ¶¶ 47, 90.) Thus,

Plaintiff has not shown that the proceeding terminated in his favor, and therefore, to the extent Plaintiff asserts a claim

for malicious prosecution, that claim is dismissed.

Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016) (citing Ricciuti, 124 F.3d at 130).

However, law enforcement witnesses at grand jury proceedings and at trial, as with other

witnesses, are absolutely immune from § 1983 claims arising from their testimony. See Rehberg

v. Paulk, 566 U.S. 356, 367 (2012) (citing Briscoe v. LaHue, 460 U.S. 325, 332–33 (1983)).

To the extent Plaintiff’s claims are based on allegedly false testimony, such claims are

dismissed because witnesses are afforded absolutely immunity from § 1983 claims arising from

their testimony at grand jury proceedings or at trial. See Rehberg, 566 U.S. at 367. To the extent

Plaintiff’s claims are based on allegedly fabricated evidence presented during his prosecution,

such claims are dismissed because Plaintiff has not alleged the existence of any specific

fabricated information that was either likely to influence a jury’s verdict or forwarded to a

prosecutor, let alone that any Defendant was personally involved in any such fabrication. See

Garnett, 838 F.3d at 279. Indeed, the only allegation that can be construed as alleging the

fabrication of specific information by a specific Defendant is that Defendant Kietlinski “failed to

produce the necessary paperwork or falsified the paperwork to make it appear that [Plaintiff’s]

car was abandoned rather than stolen.” (Dkt. No. 36, ¶ 58.) But Plaintiff does not allege that

paperwork related to his allegedly stolen vehicle was provided to prosecutors in relation to his

criminal prosecution, that such information was likely to influence a jury’s verdict, or that such

information was relevant to his criminal prosecution at all. Rather, Plaintiff appears to point to

that allegation in support of his claims for denial of access to the courts and failure to investigate,

both of which the Court dismissed and neither of which is factually related to Plaintiff’s criminal

prosecution. Thus, Plaintiff has failed to plausibly allege a claim under § 1983 for fabrication of

evidence. Accordingly, Plaintiff’s ninth and tenth claims, arising under the Fifth, Sixth, and

Fourteenth Amendments, are dismissed.13

F. Qualified Immunity

Niskayuna Defendants, of whom Defendant Florell remains, and Rotterdam Defendants,

of whom Defendants Lee and Simmons remain, argue that they are entitled to qualified

immunity. (Dkt. No. 47-1, at 24–26; Dkt. No. 71, at 12–13.) But a ruling on qualified immunity

on this record would be premature, and the Court declines to address qualified immunity here.

See, e.g., Chamberlain ex rel. Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d Cir.

2020) (“[A]dvancing qualified immunity as grounds for a motion to dismiss is almost always a

procedural mismatch.”). Accordingly, Niskayuna Defendants’ and Rotterdam Defendants’

motions to dismiss based on qualified immunity are denied, and Defendants may renew this

argument at a subsequent stage.

G. Temporary Restraining Order

In addition to compensatory and punitive damages, Plaintiff seeks “[i]njunctive relief in

the form of a Temporary Restraining Order (TRO), to prevent these defendants from harassing,

intimidating, retaliating and threatening plaintiff during this suit.” (Dkt. No. 136 at 11.)

Niskayuna Defendants appear to construe Plaintiff’s request as a motion for a temporary

restraining order and cite caselaw based on motions under Federal Rule of Civil Procedure 65.

(Dkt. No. 47-1, at 27–28.) But Plaintiff has not moved for a temporary restraining order or a

13 Niskayuna Defendants also argue that the amended complaint must be dismissed because it violates Federal Rule

of Civil Procedure 8. (Dkt. No. 47-1, at 11–14.) Rule 8(a) requires that a pleading contain: “(1) a short and plain

statement of the grounds for the court’s jurisdiction . . . ; [](2) a short and plain statement of the claim showing that

the pleader is entitled to relief; and [](3) a demand for the relief sought, which may include relief in the alternative or

different types of relief.” The purpose of Rule 8(a) is to “give the defendant fair notice of what the . . . claim is and

the grounds upon which it rests.” See Twombly, 550 U.S. at 555 (alteration in original) (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957)). Because the Court disposes of all but one of Plaintiff’s claims on Rule 12(b)(6) grounds and

finds that Plaintiff’s surviving Fourth Amendment unreasonable search claim does not run afoul of Rule 8, the Court

need not address Niskayuna Defendants’ Rule 8 argument further.

preliminary injunction under Rule 65; rather, Plaintiff seeks injunctive relief as a remedy. (Dkt.

No. 36, at 11.) Because there is not a motion for a temporary restraining order pending, the Court

need not address the issue at this point.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that City of Schenectady Defendants’ and Rotterdam Defendants’ requests

to consider their motions unopposed, (Dkt. Nos. 61, 62), are DENIED; and it is further

ORDERED that Defendants Town of Niskayuna, Hobson, Archambault, Florell, and

Wall’s motion to dismiss, (Dkt. No. 47), is GRANTED in part and DENIED in part; and it is

further

ORDERED that Defendants City of Schenectady and Kietlinski’s motion to dismiss,

(Dkt. No. 48), is GRANTED; and it is further

ORDERED that Defendants Town of Rotterdam, Lee, and Simmons’s motion to dismiss,

(Dkt. No. 50), is GRANTED in part and DENIED in part; and it is further

ORDERED that Defendant McFadden’s motion to dismiss, (Dkt. No. 52), is

GRANTED; and it is further

ORDERED that the following claims alleging violations of Plaintiff’s Fourth

Amendment right against unreasonable searches may proceed: (1) his claim arising from the strip

search against Defendant Simmons, and (2) his claim arising from the search of his residence

against Defendants Simmons, Florell, and Lee; and it is further

ORDERED that all other claims which are the subject of Defendants’ motions are

DISMISSED; and it is further

ORDERED that all Defendants other than Defendants County of Schenectady, Simmons,

Reyell, Florell, Lee, and Marinucci be terminated as parties to this action; and it is further

ORDERED that Plaintiff must file proof of service of the amended complaint on

Defendants Eric Reyell, County of Schenectady, and David Marinucci by December 26, 2023.

IT IS SO ORDERED.

Dated: December 11, 2023 DADA db CN ant

S New York KM EAI"

yracuse, New Yor

Brenda K. Sannes

Chief U.S. District Judge

23