# Sabino v. Port Authority Police Department

> District Court, S.D. New York · September 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10334707

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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:

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10334707. Public record. Not legal advice.