Sabino v. Port Authority Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

SAUL SABINO,

Plaintiff,

21-cv-5731 (JGK)

-against-

MEMORANDUM OPINION AND

PORT AUTHORITY POLICE ORDER

DEPARTMENT; NEW YORK COUNTY

DISTRICT ATTORNEY’S OFFICE,

Defendants.

JOHN G. KOELTL, United States District Judge:

The plaintiff, currently incarcerated in the George R.

Vierno Center on Rikers Island, brings this pro se action under

42 U.S.C. § 1983, alleging that the Defendants violated his

constitutional rights.1 By order dated August 10, 2021, the Court

granted the plaintiff’s request to proceed in forma pauperis

(IFP).2 For the reasons explained below, the complaint is

dismissed in part.

I

The plaintiff advances claims against the Port Authority

Police Department and the New York County District Attorney’s

Office (“DA’s Office”). ECF No. 1 (“Compl.”). The complaint

contains the following allegations. On August 10, 2020, while

1 The plaintiff initially filed the complaint on December 10, 2020, in

the United States District Court for the Eastern District of New York. On

July 2, 2021, that court transferred the matter here. See Sabino v. Port

Auth. Police Dep’t, No. 20-cv-5247 (E.D.N.Y. July 2, 2021).

2 Prisoners are not exempt from paying the full filing fee even when

they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).

the plaintiff was “off” his medication for schizophrenia and

bipolar disorder, and “under the influence of a ton of street

[d]rugs/[n]arcotics,” he “went on a shoplifting rampage” in the

Marshalls store across the street from One World Trade Center.

Compl. at 5. The plaintiff “saw demons on fire that were ready

to attack” him, who were actually “loss prevention workers,” and

he “pull[ed] out a hammer to try to scare the [d]emons” away.

Id. The plaintiff ran out of the store, and was chased by “more

people,” including Port Authority police officers. Id. The

plaintiff was arrested, and after he was handcuffed, several of

the officers assaulted and injured him. Id. at 5-6. The

plaintiff was charged with first-degree robbery, criminal

possession of a weapon, and assaulting an officer. His criminal

proceedings are ongoing in the New York County Supreme Court.

According to the plaintiff, those charges should not have

been brought because he was “only shoplifting.” Id. at 6. The

plaintiff asserts claims of malicious prosecution, excessive

force, and false arrest. The plaintiff seeks money damages, the

“reversal” of the alleged malicious prosecution, and other

equitable relief.

II

The Prison Litigation Reform Act requires that federal

courts screen complaints brought by prisoners who seek relief

against a governmental entity or an officer or employee of a

governmental entity. See 28 U.S.C. § 1915A(a). The Court must

dismiss a prisoner’s IFP complaint, or any portion of the

complaint, that is frivolous or malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639

(2d Cir. 2007). The Court must also dismiss a complaint if it

lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

III

A.

The plaintiff advances claims for money damages against the

DA’s Office. Compl. at 7. However, state prosecutors are immune

from civil suits for damages for acts committed within the scope

of their official duties where the challenged activities are

“intimately associated with the judicial phase of the criminal

process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The

absolute immunity for damages enjoyed by state prosecutors

extends to claims for malicious prosecution unless the

prosecutor “proceeds in the clear absence of all jurisdiction.”

Shmueli v. City of New York, 424 F.3d 231, 237-38 (2d Cir.

2005); id. at 237 (“Once the court determines that the

challenged prosecution was not clearly beyond the prosecutor's

jurisdiction, the prosecutor is shielded from liability for

damages for commencing and pursuing the prosecution, regardless

of any allegations that his actions were undertaken with an

improper state of mind or improper motive.”).

Here, the plaintiff’s claims against the DA’s Office are

premised on allegations that the DA’s Office brought and is

pursing charges in connection with the plaintiff’s arrest

following the plaintiff’s actions on August 10, 2020. Because

the DA’s Office is indisputably prosecuting statutorily

enumerated crimes, the complained of activity is intimately

associated with the judicial phase of the criminal process and

not beyond the DA Office’s jurisdiction. See id. at 238 (“The

allegations that the ADAs prosecuted [the plaintiff] and

continued with the prosecution describe only functions for which

a prosecutor is normally accorded absolute immunity”).

Accordingly, all claims for damages against the DA’s Office are

dismissed with prejudice because they seek monetary relief

against a defendant who is immune from suit and are frivolous.

28 U.S.C. § 1915(e)(2)(b)(i), (iii).3

3 The plaintiff’s pursuit of money damages stemming from his claim for

malicious prosecution is also barred by Heck v. Humphrey, 512 U.S. 477

(1994), because the state criminal proceedings have not yet been resolved in

the plaintiff’s favor. Id. at 486-87; Walden v. City of New York, No. 20-cv-

9360, 2020 WL 7496285, at *4 (S.D.N.Y. Dec. 18, 2020) (Heck’s “favorable

termination rule” precluded malicious prosecution claim seeking money damages

because the plaintiff failed to allege that his “conviction ha[d] been

overturned or otherwise invalidated”); see infra Section III.B.

B.

The complaint, liberally construed, suggests that the

plaintiff is seeking equitable relief for his malicious

prosecution claim against the DA’s Office. Compl. at 6-7. Unlike

the plaintiff’s claim for money damages, the DA’s Office does

not enjoy absolute immunity from claims seeking equitable

relief. Shmueli, 424 F.3d at 238-39 (noting that a state

prosecutor’s entitlement to absolute immunity from a malicious

prosecution claim for damages “does not bar the granting of

injunctive relief”).

The tort of malicious prosecution “remedies detention

accompanied, not by absence of legal process, but by wrongful

institution of legal process.” Wallace v. Kato, 549 U.S. 384,

389-90 (2007) (emphasis in original). To prevail on a malicious

prosecution claim under New York law and federal law, a

plaintiff must show: (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, (3)

the absence of probable cause for the criminal proceeding and

(4) actual malice. Kee v. City of New York, No. 20-2313-cv,

--- F.4th ---, 2021 WL 3852241, at *8 (2d Cir. Aug. 30, 2021).

For a malicious prosecution claim under Section 1983, a

plaintiff also must allege a sufficient post-arraignment liberty

restraint. Id.

Because favorable termination is an element of a malicious

prosecution claim, a plaintiff cannot state a claim if the

relevant criminal proceeding is pending. See, e.g., Bayan v.

Sikorski, No. 17-cv-4942, 2021 WL 1163653, at *5 (S.D.N.Y. Mar.

26, 2021); Bussey v. Devane, No. 13-cv-3660, 2013 WL 4459059, at

*6 (E.D.N.Y. Aug. 16, 2012).

Here, the plaintiff alleges that his criminal matter is

pending. Accordingly, the plaintiff fails to state a claim for

malicious prosecution. The plaintiff’s claims for malicious

prosecution seeking equitable relief are dismissed without

prejudice.

C.

The plaintiff advances a claim for false arrest against the

Port Authority Police Department. A Section 1983 claim “for

false arrest, resting on the Fourth Amendment right of an

individual to be free from unreasonable seizures . . . is

substantially the same as a claim for false arrest under New

York law.” Kee, 2021 WL 3852241, at *5 (citation omitted). To

establish a false arrest claim under New York law, a plaintiff

must show that: “(1) the defendant intended to confine [the

plaintiff], (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.” Liranzo v. United

States, 690 F.3d 78, 95 (2d Cir. 2012) (alteration in original;

emphasis and citation omitted); see also Kee, 2021 WL 3852241,

at *5.

Probable cause to arrest is a complete defense to a false

arrest claim. Jenkins v. City of New York, 478 F.3d 76, 84 (2d

Cir. 2007). Officers have probable cause to arrest when they

“have knowledge or 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.” Gonzalez v. City of

Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (emphasis and

citation omitted). “[P]robable cause can exist even where it is

based on mistaken information, so long as the arresting officer

acted reasonably and in good faith in relying on that

information.” Bernard v. United States, 25 F.3d 98, 102 (1994);

Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001).

The plaintiff fails to allege facts suggesting that the

Port Authority police officers did not have probable cause to

arrest him on August 10, 2020. The plaintiff acknowledges that

he shoplifted items from the Marshalls store and brandished a

hammer. He then ran away from the store security personnel and

the police, who were not in a position to know that the

plaintiff had taken drugs and was hallucinating. Therefore, the

complaint indicates that “the facts known by the arresting

officer[s] 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, 152

(2004)).

Accordingly, the Court dismisses the plaintiff’s false

arrest claim against the Port Authority Police Department with

prejudice. See 28 U.S.C. § 1915(e)(2)(B)(ii).4

C.

The plaintiff also asserts a claim of excessive force

against the Port Authority Police Department. A claim that

excessive force was used “in the context of an arrest or

investigatory stop of a free citizen [is] most properly

characterized as one invoking the protections of the Fourth

Amendment.” Graham v. Connor, 490 U.S. 386, 395 (1989). Police

officers’ application of force is excessive, in violation of the

Fourth Amendment, if it is “objectively unreasonable ‘in light

of the facts and circumstances confronting them, without regard

to [the officers’] underlying intent or motivation.” Jones v.

Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (alteration in original)

(citing Graham, 490 U.S. at 397). This standard “requires

4 To the extent that the plaintiff also sought to plead a claim for

false arrest against the DA’s Office, the plaintiff would need to have

alleged “facts suggesting that [the prosecutor] was personally involved in

the decision to arrest [the plaintiff] or to detain him pre-arraignment.”

Nunez v. City of New York, No. 14-cv-4182, 2016 WL 1322448, at *6 (S.D.N.Y.

Mar. 31, 2016), aff’d, 735 F. App’x 756 (2d Cir. 2018). The complaint is

devoid of any such allegations. Accordingly, any claim for false arrest

against the DA’s Office is dismissed for failure to state a claim.

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396.

Here, the plaintiff alleges that after he was handcuffed,

multiple Port Authority police officers “assaulted” him

“resulting in two large lacerations to [his] right arm.” Compl.

at 6. The plaintiff further alleges that as a result of the

alleged assault, he lost feeling in his right hand and suffered

lower back pain. Id. The plaintiff claims that he subsequently

received medical treatment for his injuries at Riker’s Island

and received “daily wound care.” Id.

Allegations that the officers assaulted the plaintiff while

he was handcuffed and caused him to suffer injuries for which he

needed medical treatment are sufficient to state a claim for

excessive force. Accordingly, the plaintiff’s claim for

excessive force is not dismissed.

D.

To the extent that the plaintiff seeks release from

custody, the Court liberally construes his submission as a

habeas corpus petition filed under 28 U.S.C. § 2241. Under

Section 2241(c)(3), habeas corpus relief is available to a

person “in custody in violation of the Constitution or laws or

treaties of the United States.” A convicted prisoner in state

custody generally must challenge his confinement in a habeas

corpus petition under 28 U.S.C. § 2254, but a state pretrial

detainee challenging his custody as unlawful under the

Constitution or federal law may seek habeas corpus relief in a

petition brought under Section 2241. See, e.g., Robinson v.

Sposato, No. 11-cv-191, 2012 WL 1965631, at *2 (E.D.N.Y. May 29,

2012); see also Hoffler v. Bezio, 831 F. Supp. 2d 570, 575

(N.D.N.Y. 2011), aff’d, 726 F.3d 144 (2d Cir. 2013).

Before seeking Section 2241 habeas corpus relief, however,

a state pretrial detainee must first exhaust any available state

court remedies. See United States ex rel. Scranton v. New York,

532 F.2d 292, 294 (2d Cir. 1976) (“While [Section 2241] does not

by its own terms require the exhaustion of state remedies as a

prerequisite to the grant of federal habeas relief, decisional

law has superimposed such a requirement in order to accommodate

principles of federalism.”). In the pretrial context, such

exhaustion includes seeking habeas corpus relief in the state

court and, if necessary, appealing up to the New York Court of

Appeals. See N.Y.C.P.L.R. §§ 7001 et seq.

In this case, the plaintiff did not allege any facts

suggesting that he has exhausted state court remedies by seeking

habeas corpus relief in the state courts and appealing to the

New York Court of Appeals. Because the plaintiff failed to show

that he exhausted his available state court remedies before

filing his Section 2241 petition in this Court, the Court denies

without prejudice any application for relief under Section 2241.

E.

To the extent that the plaintiff seeks intervention by this

Court in the ongoing state criminal proceedings, he is not

entitled to such relief. In Younger v. Harris, 401 U.S. 37

(1971), the United States Supreme Court held that a federal

court may not enjoin a pending state court criminal proceeding

in the absence of special circumstances suggesting bad faith,

harassment, or irreparable injury that is both serious and

immediate. Id. at 41, 52; see also Sprint Commc’ns, Inc. v.

Jacobs, 571 U.S. 69, 72-73 (2013) (“Younger exemplifies one

class of cases in which federal-court abstention is required:

When there is a parallel, pending state criminal proceeding,

federal courts must refrain from enjoining the state

prosecution.”)

The plaintiff has alleged no facts showing bad faith,

harassment, or irreparable injury with respect to his pending

state-court criminal proceedings. Therefore, the Court will not

intervene in those proceedings.

IV

A.

Because the plaintiff has been granted permission to

proceed IFP, he is entitled to rely on the Court and the United

States Marshals Service to effect service. Walker v. Schult, 717

F.3d. 119, 123 n.6 (2d Cir. 2013); 28 U.S.C. § 1915(d) (“The

officers of the court shall issue and serve all process [in IFP

cases].”); Fed. R. Civ. P. 4(c)(3) (the court must order the

United States Marshals Service to serve if the plaintiff is

authorized to proceed IFP). Although Federal Rule of Civil

Procedure 4(m) generally requires that the summons and complaint

be served within 90 days of the date the complaint is filed, the

plaintiff is proceeding IFP and could not have served the

summons and complaint until the Court reviewed the complaint and

ordered that a summons be issued. The Court therefore extends

the time to serve until 90 days after the date the summons is

issued. If the complaint is not served within that time, the

plaintiff should request an extension of time for service. See

Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (providing

that it is the plaintiff’s responsibility to request an

extension of time for service); see also Murray v. Pataki, 378

F. App’x 50, 52 (2d Cir. 2010) (“As long as the [plaintiff

proceeding IFP] provides the information necessary to identify

the defendant, the Marshals’ failure to effect service

automatically constitutes ‘good cause’ for an extension of time

within the meaning of Rule 4(m).” (citations omitted)).

To allow the plaintiff to effect service on the Port

Authority Police Department through the United States Marshals

Service, the Clerk of Court is instructed to fill out a United

States Marshals Service Process Receipt and Return form (USM-285

form) for this defendant. The Clerk of Court is further

instructed to issue a summons and deliver to the Marshals

Service all the paperwork necessary for the Marshals Service to

effect service upon this defendant.

The plaintiff must notify the Court in writing if the

plaintiff’s address changes, and the Court may dismiss the

action if the plaintiff fails to do so.

B.

The plaintiff does not name John Doe defendants, but the

Court assumes that the plaintiff intended to sue the officers

who allegedly used excessive force against him. Under Valentin

v. Dinkins, 121 F.3d 72 (2d Cir. 1997), a pro se litigant is

entitled to assistance from the district court in identifying a

defendant. Id. at 76. In the complaint, the plaintiff appears to

supply sufficient information to permit the Port Authority of

New York & New Jersey to identify the John Doe police officers

who were involved in the plaintiff’s arrest. It is therefore

ordered that the Port Authority of New York & New Jersey

ascertain the identity and badge number of each John Doe officer

whom the plaintiff seeks to sue here and the address where each

defendant may be served. The Port Authority of New York & New

Jersey shall provide this information to the plaintiff and the

Court within sixty days of the date of this order.

Within thirty days of receiving this information, the

plaintiff must file an amended complaint naming the John Doe

defendants. The amended complaint will replace, not supplement,

the original complaint. An amended complaint form that the

plaintiff should complete is attached to this order. Once the

plaintiff has filed an amended complaint, the Court will screen

the amended complaint and, if necessary, issue an order

directing the Clerk of Court to complete the USM-285 forms with

the addresses for the named John Doe Defendants and deliver all

documents necessary to effect service to the United States

Marshals Service.

CONCLUSION

The claims for damages against the New York County District

Attorney’s Office are dismissed on immunity grounds. See 28

U.S.C. § 1915(e)(2)(B)(iii). The false arrest and malicious

prosecution claims are dismissed for failure to state a claim on

which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

The claim for excessive force is not dismissed.

The Clerk of Court is instructed to complete the USM-285

form with the address for the Port Authority Police Department

and deliver all documents necessary to effect service to the

United States Marshals Service. The Clerk of Court is also

directed to add John Doe defendants to the docket.

The Clerk of Court is further directed to mail a copy of

this order to the Port Authority of New York & New Jersey at: 4

World Trade Center, 150 Greenwich Street, 23rd Floor, New York,

New York 10007.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any

appeal from this order would not be taken in good faith, and

therefore in forma pauperis status is denied for the purpose of

an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45

(1962) (providing that an appellant demonstrates good faith when

he seeks review of a nonfrivolous issue).

The Clerk of Court is directed to mail a copy of this order

to the plaintiff, together with an information package.

SO ORDERED.

Dated: New York, New York

September 1, 2021

_____/s/ John G. Koeltl_____

John G. Koeltl

United States District Judge

DEFENDANT AND SERVICE ADDRESS

Port Authority Police Department

625 8th Avenue

New York, New York 10018

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CVE

Write the full name of each plaintiff. (Include case number if one has been

assigned)

-against- COMPLAINT

(Prisoner)

Do you want a jury trial?

ssssssss...0.0.0. L1Yes LINo

Write the full name of each defendant. If you cannot fit the

names of all of the defendants in the space provided, please

write “see attached” in the space above and attach an

additional sheet of paper with the full list of names. The

names listed above must be identical to those contained in

Section IV.

NOTICE

The public can access electronic court files. For privacy and security reasons, papers filed

with the court should therefore not contain: an individual’s full social security number or full

birth date; the full name of a person known to be a minor; or a complete financial account

number. A filing may include only: the last four digits of a social security number; the year of

an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

I. LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for

prisoners challenging the constitutionality of their conditions of confinement; those claims are

often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina

“Bivens” action (against federal defendants).

L] Violation of my federal constitutional rights

L] Other:

II. PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name

State any other names (or different forms of your name) you have ever used, including any name

you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency

and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address

County, City State Zip Code

II. PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

L] Pretrial detainee

L] Civilly committed detainee

Immigration detainee

L] Convicted and sentenced prisoner

L] Other:

IV. DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct

information is not provided, it could delay or prevent service of the complaint on the defendant.

Make sure that the defendants listed below are identical to those listed in the caption. Attach

additional pages as necessary.

Defendant 1:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

Defendant 2:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

Defendant 3:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

Defendant 4:

First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were

harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach

additional pages as necessary.

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,

if any, you required and received.

VI. RELIEF

State briefly what money damages or other relief you want the court to order.

VII. PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the

complaint is not being presented for an improper purpose (such as to harass, cause unnecessary

delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law

or by anonfrivolous argument to change existing law; (3) the factual contentions have

evidentiary support or, if specifically so identified, will likely have evidentiary support after a

reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise

complies with the requirements of Federal Rule of Civil Procedure 11.

I understand that if I file three or more cases while I am a prisoner that are dismissed as

frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in

future cases.

I also understand that prisoners must exhaust administrative procedures before filing an action

in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be

dismissed if I have not exhausted administrative remedies as required.

I agree to provide the Clerk's Office with any changes to my address. ] understand that my

failure to keep a current address on file with the Clerk's Office may result in the dismissal of my

case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to

proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Prison Address

Date on which | am delivering this complaint to prison authorities for mailing: