# Swanhart v. State of New York

> District Court, S.D. New York · March 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10339749

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10339749

## How later opinions describe it (automated extraction)

- noting that § 1981 “was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” (internal quotation marks and citations omitted)

## Opinion text

UNITED STATES DISTRICT COURT USDC SDNY
SOUTHERN DISTRICT OF NEW YORK DOCUMENT
ELECTRONICALLY FILED
BRYAN SWANHART, DESIREE DOC #:
BARTHOLOMEW, and JOYCE SWANHART, DATE FILED. 03/24/2022
Plaintiffs,
-against-
STATE OF NEW YORK, NEW YORK STATE
POLICE, GEORGE P. BEACH Il, sued both in his No. 20 Civ. 6819 (NSR)
individual and official capacity as Superintendent of OPINION & ORDER
the New York State Police, TROOPER KYLE
JACKSON, SHIELD # 2795, sued both in his
individual capacity and official capacity as a
Trooper with the New York State Police, and JOHN
DOE OFFICERS 1-5 (their true names and identities
presently unknown), acting both in their official and
unofficial capacities,
Defendants.
NELSON S. ROMAN, United States District Judge:
Plaintiffs Bryan Swanhart (“Bryan S.”), Desiree Bartholomew, and Joyce Swanhart
(“Joyce S.”) bring this action under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, and state common
law, alleging that after Bryan S. had a car accident after suffering a seizure, the responding New
York State trooper, instead of rendering medical assistance, allegedly (1) shook and slapped him;
(11) had his blood drawn against his consent and released his medical information to his employer;
(11) falsely arrested and charged him for driving while impaired, following too closely, and leaving
the scene of the crime; (iv) denied him access to his wife, Bartholomew, and his mother, Joyce S.
while hospitalized; and (v) tampered with evidence during his subsequent criminal prosecution.
(See Compl. at 1-9, ECF No. 1.) They sue Defendants State of New York, New York State Police,
George P. Beach II (Superintendent of the New York State Police), Trooper Kyle Jackson, and

John Doe Officers 1-5, asserting federal claims for violations of their constitutional rights, as well
as an assortment of state common law claims arising from such violations. (See id. at 10–20.)
Presently pending before the Court is Defendants’ motion to dismiss Plaintiffs’ Complaint
under Federal Rule of Civil Procedure 12(b)(1) and (6). (ECF No. 21.) For the following reasons,

the Court GRANTS Defendants’ motion to dismiss.
BACKGROUND
I. Factual Background
The following facts are derived from the Complaint and are taken as true and constructed
in the light most favorable to Plaintiffs for the purposes of this motion.1
A. Bryan S. has a car accident after suffering a seizure; Trooper Jackson responds
to the scene and does not provide medical assistance
On September 1, 2017, Bryan S., a sergeant for the New York Department of Corrections
and Community Supervision (“DOCCS”), had a car accident on 1360 Route 22, Southeast, New
York, after suffering a seizure while driving his vehicle. (Compl. ¶¶ 14–15, 49.) Troopers Jackson
and Jane Doe 1 responded to the scene. (Id. ¶¶ 16–17.) Upon arriving at the scene, an unidentified
off-duty New York City Police Detective, whose identity is known to Defendants, was already
present at the scene and informed the troopers that Bryan S. was having a seizure. (Id. ¶ 17.)
Rather than addressing Bryan S.’s medical needs, Trooper Jackson shook Bryan S. and
slapped him in the face. (Id. ¶ 19.) Trooper Jackson repeatedly and continuously yelled profanities
toward Bryan S., stating “What the fuck are you on?” (Id. ¶ 21.) Trooper Jackson directed Bryan
S., who was still seated inside his vehicle with his seatbelt on, to undo his seatbelt and face towards

1 The Court notes that some of the Complaint’s allegations describe events that are not necessarily
in chronological order and they fail to include certain salient facts, which make it difficult to comprehend
how certain allegations occurred in relation to each other. Plaintiffs’ response in opposition also fails to
provide context on these allegations. The following compilation of facts is the result of the Court’s
reasonable attempt to figure out the logical temporal order that Plaintiffs may have originally intended.
him. (Id. ¶ 22.) Bryan S. complied while in excruciating pain. (Id. ¶ 23.) Trooper Jackson then
demanded Bryan S. to tell him what medications he was taking and told him that he would not be
going to the hospital but to jail until he submitted to blood tests. (Id. ¶ 25.) Trooper Jackson told
Bryan S. that he was going to strap him down, take him to jail, and draw his blood against his

wishes. (Id. ¶ 26.) Bryan S. informed Trooper Jackson that he was in significant pain and needed
medical treatment. (Id. ¶ 18.)
When an ambulance arrived, rather than permitting its crew to assist Bryan S., Trooper
Jackson directed Bryan S. to walk to the ambulance without any assistance. (Id. ¶ 20.) Throughout
this encounter, Trooper Jackson told Jane Doe 1 that “she was going to learn how to ‘do a
[Correction Officer] today’ and that it does not matter that [Bryan S.] is a Sergeant.” (Id. ¶ 25.)
Eventually, Trooper Jackson permitted the ambulance crew to transport Bryan S. to Danbury
Hospital in Connecticut and followed them to that location. (Id. ¶¶ 27–28.)
B. Bryan S. is hospitalized and his wife and mother visit him, but Trooper Jackson
denies them access, and obtains and discloses Bryan S.’s medical information without his
consent to the DOCCS
At Danbury Hospital, Trooper Jackson denied Bryan S.’s wife, Bartholomew (who is an
African-American female) access to Bryan S. by throwing her out of the hospital room where her
husband was, and threatened her with arrest if she failed to comply with his orders. (Id. ¶¶ 28, 59.)
Trooper Jackson did permit Bryan S.’s mother, Joyce S., to remain inside the hospital room with
her son, but he did not permit her to speak to Bryan S. (Id. ¶ 29.) Trooper Jackson then interrogated
Bartholomew, demanding she tell him what medication Bryan S. takes, when he took the
medication, and whether he smokes marijuana (Id. ¶ 31.) Bartholomew told Trooper Jackson that
she gave Bryan S. his required medications, but that she did not see him take his pain medication,
and that he did not smoke marijuana. (Id. ¶¶ 30–31.)
Trooper Jackson continued to interrogate Bartholomew and Bryan S. and also obtained
Bryan S.’s medical information without his consent. (Id. ¶ 33.) Trooper Jackson directed Bryan
S.’s blood to be drawn against his will despite him writing NO on a consent form—a form which
Trooper Jackson claims is now lost. (Id. ¶¶ 34.) Trooper Jackson later released Bryan S.’s medical

information to the DOCCS, for which Bryan S. suffered negative repercussions from his employer.
(Id. ¶ 39.) Trooper Jackson, who had previously worked at DOCCS, also called Bryan S.’s
supervisor, Lieutenant Michael Harvey (the acting watch commander), and falsely informed him
that Bryan S. had admitted to smoking marijuana, causing negative repercussions for Bryan S.
with DOCCS. (Id. ¶ 49.)
C. Trooper Jackson arrests and charges Bryan S. for violations of traffic law; Bryan
S. is criminally prosecuted
Trooper Jackson then arrested Bryan S. and charged him with violating New York Vehicle
and Traffic Law §§ 1192(4) (driving while impaired by drugs), 1129(a) (following too closely)
and 600.01(A) (leaving the scene of an accident), despite knowing said charges to be false. (Id. ¶
40.) Trooper Jackson told Bryan S. to show up at the Trooper Barracks by 6:00 p.m. because he
would start his vacation at 6:00 p.m., and if Bryan S. “fucks up” his vacation, he would charge
Bryan S. with felonies instead of misdemeanors, drag him to jail, and make him wait a week to
bail out. (Id ¶ 41.) Hospital staff advised Bryan S. to remain in the hospital because he could have
a spine fracture, but Bryan S. still signed out in fear of retribution by Trooper Jackson. (Id. ¶¶ 42–
43.) Bryan S. also suffered an additional seizure while at the hospital in the presence of medical

staff. (Id. ¶ 44.) Bryan S. immediately returned to the hospital (presumably after meeting Trooper
Jackson) after the staff informed him that he was at risk of paralysis because he suffered a
compression fracture of his spine, a concussion, and bruising to his shoulder, chest, and ribs as a
result of the accident. (Id. ¶ 45.)
Bryan S. was subsequently criminally prosecuted for the charges Trooper Jackson pressed,
which he knew to be false. (Id. at 7.)2 During the criminal prosecution, Trooper Jackson claimed
to have lost the dash cam evidence with footage of the scene of the accident and encounter between
him and Bryan S. When the dash cam was later found, the footage depicting the encounter between

the two had been deleted, as well as Trooper Jackson’s conduct towards Bryan S. (Id. ¶ 47.)
Trooper Jackson also erased the name of the off-duty New York City Detective from the official
police reports, although this information was later recovered. (Id.) All criminal charges against
Bryan S. were subsequently dismissed and sealed. (Id. ¶ 48.)
II. Procedural Background
On August 24, 2020, Plaintiffs filed the instant Complaint (Compl., ECF No. 1.) After they
were served with the Complaint and summons, on January 14, 2021, Defendants sought leave to
file a motion to dismiss, which the Court subsequently granted and issued a briefing schedule.
(ECF Nos. 19 & 20.) On April 15, 2021, the parties filed their respective briefing on the instant
motion: Defendants their notice of motion (ECF No. 21), memorandum in support (“Motion,” ECF
No. 22), and reply (“Reply,” ECF No. 23); and Plaintiffs their response in opposition (“Response

in Opposition,” ECF No. 25) and a declaration with accompanying exhibits (Gambino Decl., ECF
No. 26).3

2 To avoid confusion, the Court cites to the Complaint’s page here because Plaintiffs’ Complaint
contains two paragraphs numbered “45.”

3 Plaintiffs also filed a notice of motion to amend or correct their complaint. (ECF No. 24.) They
included a paragraph in their Response in Opposition asking for leave to amend should the Court is inclined
to dismiss upon the pleadings. (Resp. in Opp’n at 20.) But Plaintiffs’ briefing on their motion to amend is
procedurally deficient because they failed to comply with Rule 3(A)(ii) of this Court’s Individual Practices
by not filing a pre-motion letter seeking conference before filing their motion.
LEGAL STANDARD
I. Federal Rule of Civil Procedure 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir.2000) (citing Fed. R. Civ. P. 12(b)(1)). “Once challenged,

the burden of establishing jurisdiction rests with the party asserting that it exists. The party
asserting subject matter jurisdiction has the burden of proving, by a preponderance of the
evidence, that the court has subject matter jurisdiction.” Augienello v. F.D.I.C., 310 F. Supp. 2d
582, 587–88 (S.D.N.Y. 2004) (Sweet, J.) (internal citations omitted).
“On a motion to dismiss for lack of subject matter jurisdiction, the court may resolve
disputed jurisdictional factual issues by reference to evidence outside the pleadings” such as
affidavits or other evidence. Id. at 588 (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011
(2d Cir. 1986)). “[C]ourts must accept as true all material factual allegations in the complaint” and
“refrain from drawing from the pleadings inferences favorable to the party asserting
[jurisdiction].” Fox v. Commonw. Worldwide Chauffeured Transp. of NY, LLC, No. 08–CV–1686,

2009 WL 1813230, at *1 (E.D.N.Y. June 25, 2009) (Garaufis, J.) (internal quotation marks and
citations omitted).
II. Federal Rule of Civil Procedure 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff's
favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to
dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic
recitation[s] of the elements of a cause of action will not do”; rather, the complaint's “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. In applying these principles, the Court may consider facts alleged in the complaint
and documents attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282

F.3d 147, 152–53 (2d Cir. 2002) (internal quotation marks and citation omitted).
DISCUSSION
Plaintiffs assert claims under federal law against Trooper Jackson and Jane Doe 1 for (1)
violation of their rights under the First and Fourteenth Amendments to freely associate with others;
(2) violation of Bryan S.’s Fourth Amendment right to be free from excessive force; and (3) false
arrest and imprisonment, and malicious prosecution of Bryan S. (See Compl. at 11–13.) Plaintiffs
also assert federal claims—premised on Trooper Jackson and Jane Doe 1’s alleged violations of
their constitutional rights—against the remaining Defendants for (1) conspiracy under § 1983; (2)
conspiracy under § 1985(3);4 and (3) supervisory liability and failure to intercede. (See id. at 10–
14.) Plaintiffs also assert state common law claims against all Defendants for (1) gross negligence,

negligence, and intentional and negligent infliction of emotional distress; (2) respondeat superior;
(3) assault and battery; (4) false arrest and false imprisonment; (5) prima facie tort; (6) negligent
hiring and supervision; and (7) libel and slander. (See id. at 14–20.)
Defendants seek to dismiss all claims arguing that: (1) the Court lacks subject matter
jurisdiction over all claims against the State of New York, the New York State Police, and
individual defendants in their official capacity because the Eleventh Amendment and sovereign
immunity bars all such claims; (2) Plaintiffs fail to allege personal involvement of Superintendent

4 None of the allegations in Plaintiff’s Complaint seem to invoke § 1985(1) and (2) because they
relate to conspiracy claims to prevent officers from performing their duties and to obstruct judicial
proceedings by intimidating a party, witness, or juror.
Beach; (3) Plaintiffs’ federal claims fail as a matter of law on several grounds; (4) Superintendent
Beach and Trooper Jackson are entitled to qualified immunity; (5) Plaintiffs’ state law claims fail
as a matter of law on several grounds; and (6) Superintendent Beach and Trooper Jackson are
immune from state tort claims because they are being sued for actions that are discretionary in

nature. (See Mot. at 13–30.) The Court analyzes Defendants’ arguments in that order.
I. The Eleventh Amendment and sovereign immunity bars all of Plaintiffs’ claims
against the State of New York, the New York State Police, and individual
defendants in their official capacity
As a preliminary matter, the Court agrees with Defendants that it lacks subject matter
jurisdiction over all of Plaintiffs’ claims against the State of New York, the New York State Police,
and the individual defendants in their official capacity because the Eleventh Amendment and
sovereign immunity bar such damages claims. (Mot. at 13–14.) Indeed, Plaintiffs concede that
these claims must be dismissed. (Resp. in Opp’n at 10.)
The Eleventh Amendment jurisdictionally bars from federal court all suits by private
parties against a state or one of its agencies unless the state consents to such suit or Congress has
expressly abrogated the state’s immunity. See Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 100–02 (1984). Congress did not abrogate states’ immunity when it enacted §§ 1981,
1983, 1985, 1986. See, e.g., Quern v. Jordan, 440 U.S. 332, 343–45 (1979) (§ 1983); Daisernia v.
State of New York, 582 F. Supp. 792, 800, 803 (N.D.N.Y. 1984) (§ 1981); True v. New York State
Dep’t of Corr. Servs., 613 F. Supp. 27, 31 (W.D.N.Y. 1984) (§ 1985); Seibert v. Oklahoma, 867
F.2d 591, 594 (10th Cir. 1989) (§ 1986), abrogated on other grounds by Federal Lands Legal
Consort, ex rel. Robart Estate v. United States 195 F.3d 1190 (10th Cir. 1999). The State of New
York has also not consented to suit in federal court under either § 1983, see Le Grand v. Evan, 702
F.2d 415, 417 (2d Cir. 1983), § 1981, see Quirk v. City of New York, No. 03 Civ. 0324, 2003 WL
1872714, at *1 (S.D.N.Y. Apr. 10, 2003), § 1985, see id., or § 1986, see Gasparik v. Stony Brook
University, No. CV-05-3817, 2007 WL 2026612, at *4 (E.D.N.Y. July 9, 2007).
The immunity provided by the Eleventh Amendment extends to actions seeking damages
against state officials sued in their official capacities if the state is the real party in

interest. See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002); Ying Jing Gan v. City of New
York, 996 F.2d 522, 529 (2d Cir. 1993); Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988).
Accordingly, the Court dismisses all of Plaintiffs’ federal and state law claims against the
State of New York, the New York State Police, and individual defendants in their official capacity
with prejudice.
II. Plaintiffs’ conspiracy claims fail because Defendants are legally incapable of
conspiring together under the intracorporate conspiracy doctrine
Next, the Court agrees with Defendants that Plaintiffs’ conspiracy claims under §§ 1983
and 1985 against the individual Defendants (Superintendent Beach, Trooper Jackson, and John
Does 1-4), in their individual capacities, fail because they are barred by the intracorporate
conspiracy doctrine. (Mot. at 15.)
“Under the ‘intracorporate conspiracy’ doctrine, the officers, agents, and employees of a
single corporate entity, each acting within the scope of her employment, are legally incapable of
conspiring together.” Little v. City of New York, 487 F. Supp. 2d 426, 442–43 (S.D.N.Y. 2007)
(quoting Salgado v. City of New York, No. 00 Civ. 3667(RWS), 2001 WL 290051, at *8–9
(S.D.N.Y. March 26, 2001) (citing Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978); Girard

v. 94th St. and Fifth Ave. Corp., 530 F.2d 66, 71–72 (2d Cir. 1976))). An exception to this doctrine
exists where the individuals are “motivated by an independent personal stake in achieving the
corporation’s objective.” Id. (quoting Salgado, 2001 WL 290051, at *8.)
Here, Plaintiffs formulaically allege that the individual Defendants conspired with each
other to violate their rights under both §§ 1983 and 1985, (see Compl. ¶¶ 61–64, 81–83), and that
the individual Defendants are part of a single corporate entity: the New York State Police. (See id.
¶¶ 4, 8.) Moreover, nowhere in the Complaint do Plaintiffs allege “that [any] of the officers were

motivated by an independent personal stake” in carrying out the alleged conspiracy of the violation
of their rights. Little, 487 F. Supp. 2d at 443.
Accordingly, the Court dismisses all of Plaintiffs’ conspiracy claims against
Superintendent Beach, Trooper Jackson, and John Does 1-4 without prejudice.
III. Plaintiffs fail to allege the personal involvement of Superintendent Beach and John
Does 2-4
Next, the Court agrees with Defendants that Plaintiffs’ claims against Superintendent
Beach are insufficiently pled for failure to allege his personal involvement in any of their asserted
claims. (Mot. at 14.) The Court is also of the view that Plaintiffs’ claims against John Does 2-4
fail for similar reasons.
“A defendant in a § 1983 action may not be held responsible unless he was personally
involved in the alleged constitutional violations.” Whitton v. Williams, 90 F. Supp. 2d 420, 427
(S.D.N.Y. 2000). “The Second Circuit has held that ‘personal involvement’ for these purposes
means ‘direct participation, or failure to remedy the alleged wrong after learning of it, or creation
of a policy or custom under which unconstitutional practices occurred, or gross negligence in
managing subordinates.’” Id. (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)).

Here, the majority of Plaintiffs’ allegations relating to each of their federal causes of action
hastily attribute the violations of Plaintiffs’ rights to all “Defendants” despite Plaintiffs’ initial
factual allegations averring only the personal involvement of Trooper Jackson, and at best, also
that of Jane Doe 1—who was allegedly present during the incidents with Plaintiffs. (Compare
Compl. ¶ 19 (“Trooper Kyle Jackson . . . violently shook [Bryan S.] and slapped him in the face.”)
and id. ¶ 28 (“Trooper Kyle Jackson . . . threw . . . [Bartholomew], who is African-American, out
of [Bryan S.’s] hospital room, denying them access to each other and threatened her with arrest if
she failed to comply with his order.”) with id. ¶ 67 (“The conduct of the Defendants toward

Plaintiff constituted assault and battery on the person of the Plaintiff by Defendants.” (emphasis
added)) and id. ¶78 (“By their conduct and under color of law, federal and state, Defendants
deprived [Bartholomew] of her First and Fourteenth Amendment rights to freely associate with
others.” (emphasis added)).
Further, regarding those claims against Superintendent Beach, Plaintiffs merely
conclusorily allege that, as the Superintendent of the New York State Police, he implemented the
policies and practices and supervised the actions of the subordinate officers. (Compl. ¶¶ 11, 12,
57, 58.) “Absent further factual enhancement, simply stating that [Superintendent Beach] created
unidentified policies or practices” and supervised actions of his subordinate officers are “not
enough to defeat a Rule 12(b)(6) motion.” Casiano v. Cnty. of Nassau, No. CV161194SJFARL,

2019 WL 487868, at *7 (E.D.N.Y. Jan. 7, 2019), report and recommendation adopted, No.
16CV1194SJFARL, 2019 WL 337098 (E.D.N.Y. Jan. 28, 2019); see also Curley v. Village of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (“Failure to intercede results in liability where an officer
observed excessive force is being used or has reason to know that it will be.” (citations omitted));
Lindsey v. Butler, 43 F. Supp. 3d 317, 330 (S.D.N.Y. 2014), reconsideration granted on other
grounds, 2014 WL 5757448 (S.D.N.Y. Nov. 5, 2014) (“In order to hold supervisors liable for
creating a custom or policy fostering a constitutional violation, courts in this Circuit have required
that plaintiffs plead more than conclusory allegations of the existence of the custom or policy.”
(citing cases)).
Additionally, Plaintiffs’ federal claims against John Does 2-4 are similarly insufficient
because all that Plaintiffs allege is that Trooper Jackson’s actions “were supervised by supervisors
of the New York State Police identified as John Does 2-4” and that they “knew or should have
known that the allegations” leading to Bryan S.’s arrest were false and not based on probable cause.

(Compl. ¶¶ 50–51); see also Gray-Davis v. New York, No. 5:14-CV-1490 GTS/TWD, 2015 WL
2120518, at *8 (N.D.N.Y. May 5, 2015) (dismissing supervisory liability claim against John Doe
defendant because plaintiff failed to sufficiently allege personal involvement).
Accordingly, the Court dismisses all of Plaintiffs’ federal claims against Superintendent
Beach and John Does 2-4 without prejudice.
IV. Plaintiffs’ remaining federal claims against Trooper Jackson and Jane Doe 1 fail
The only federal claims remaining are Plaintiffs’ claims against Trooper Jackson and Jane
Doe 1, including: (1) for violation of Bryan S.’s Fourth Amendment right to be free from excessive
force; (2) for Bryan S.’s false arrest, false imprisonment, and malicious prosecution; (3) for
violation of Plaintiffs’ First and Fourteenth Amendments right to association; and (4) those
purportedly asserted under §§ 1981 and 1986. The Court addresses these claims in that order.

A. Plaintiffs’ excessive force claim fails because they fail to sufficiently allege that
the force used was either not de minimis or objectively unreasonable
Section 1983 provides, in relevant part, that: “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Cornejo v. Bell, 592 F.3d 121,
127 (2d Cir. 2010). To state a claim under § 1983, a plaintiff must allege two essential elements:
“(1) that the defendants deprived him of a right ‘secured by the Constitution or laws of the United
States’; and (2) that they did so ‘under color of state law.’” Giordano v. City of New York, 274
F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50

(1999)).
Here, the main dispute between the parties involves only the first element: whether there
was a deprivation of a constitutional right. Plaintiffs allege that Trooper Jackson violated Bryan
S.’s Fourth Amendment right to be free of excessive force by “violently [shaking] and slapp[ing]”
him right after Bryan S. had his seizure that resulted in a car accident. (Compl. ¶ 19.) Defendants
contend that Plaintiffs’ excessive force claim fails because they fail to allege that Trooper Jackson
used more than de minimis force and that his use of force was objectively unreasonable under the
circumstances. (Mot. at 17.) After due consideration, the Court agrees with Defendants.
As a preliminary matter, the Court notes that the relevant allegations here strongly suggest
that Trooper Jackson suspected that Bryan S. was driving under the influence, and was seeking to

seize him until he could confirm his suspicions. (See, e.g., Compl. ¶¶ 21, 25 (alleging that Trooper
Jackson asked Bryan S. whether he took any medications and also: “What the fuck are you on?”);
id. ¶ 25 (alleging that Trooper Jackson told Bryan S. that he would take him to jail and not the
hospital until he submitted to blood tests).) Therefore, based on these allegations, Trooper
Jackson’s use of force during the course of this encounter must be analyzed under the Fourth
Amendment and its “reasonableness standard.” See Graham v. Connor, 490 U.S. 386, 395 (1989).
The Fourth Amendment’s reasonableness standard requires “balancing . . . ‘the nature and
quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Dancy v. McGinley, 843 F.3d 93, 116 (2d. Cir. 2016) (quoting
Graham, 490 U.S. at 395–96). A police officer’s use of force is excessive “if it is objectively
unreasonable ‘in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)
(quoting Graham 490 U.S. at 397).

Factors relevant to this inquiry include:
the need for the application of force, the relationship between the need and the
amount of force that was used, the extent of injury inflicted, and whether force was
applied in a good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.

Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting Johnson v. Newburgh Enlarged Sch.
Dist., 239 F.3d 246, 251–52 (2d Cir. 2001)).
“[I]t is . . . well established that not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a [plaintiff’s] constitutional rights.” Kayo
v. Mertz, 531 F. Supp. 3d 774, 797 (S.D.N.Y. 2021) (quoting Mesa v. City of New York, No. 09
Civ. 10464 (JPO), 2013 WL 31002, at *18 (S.D.N.Y. Jan. 3, 2013) (cleaned up)). However, “[i]t
is the force used, not the injuries caused, which must be determined to be de minimis as a matter
of law.” Jackson v. Mastrangelo, 405 F. Supp. 3d 488, 492 (W.D.N.Y. 2019) (quoting Campbell
v. City of New York, No. 06-CV-5743, 2010 WL 2720589, at *8 (S.D.N.Y. June 30, 2010)).
Here, even when construing the Complaint in the light most favorable to them, Plaintiffs
fail to sufficiently allege that Trooper Jackson used more than de minimis force and that such force
was unreasonable under the circumstances. Specifically, the Complaint’s allegations relating to
Plaintiffs’ excessive force claim omit certain salient facts material to the reasonableness analysis,
and they also describe events that are not necessarily in chronological order. Hence, these
deficiencies in the Complaint make it difficult for the Court to discern how certain allegations
occurred in relation to each other.
For example, in relevant part, Plaintiffs allege that upon Trooper Jackson’s arrival at the
scene, an off-duty New York City Police Detective at the scene informed him that Bryan S. “was
having a seizure”—that is, in the middle of a seizure episode at the same time the detective and
Trooper Jackson were talking. (Compl. ¶ 17.) But Plaintiffs’ next allegation is that Bryan S.

informed Trooper Jackson “that he was in significant pain and needed medical treatment.” (Id. ¶
18.) Viewed together, these allegations inconclusively suggest three possible alternative scenarios,
that (a) Bryan S. was conscious and could still communicate while suffering a seizure; (b) some
undefined time passed between Bryan S.’s seizure and him regaining his ability to communicate;
or (c) Bryan S. informed Trooper Jackson that he was in significant pain and needed medical
treatment at some other point in time during the encounter. Yet, Plaintiffs do not provide sufficient
context in either the remaining allegations or their response in opposition to make clear what they
intended to allege.5
This omitted context is important because Plaintiffs’ next allegation is the one at issue here:
that Trooper Jackson shook and slapped Bryan S. As the reasonableness standard requires the

Court to analyze whether the force used was reasonable under the circumstances alleged, without
any clarifying allegations as to the timing of alleged force used in relation to Bryan S.’s seizure
and him regaining the ability to communicate, the Court is unable to conduct the analysis because
the circumstances are a matter of speculation. Indeed, Plaintiffs also crucially fail to allege or
clarify whether the forced used caused Bryan S. any injury6 or even the number of times that

5 In another instance, Plaintiffs allege that Trooper Jackson told Jane Doe 1 that “she was going to
learn how to ‘do a [Correction Officer] today’ and that it does not matter that Bryan S. is a sergeant.” (Id.
¶ 24.) But nowhere in their previous allegations did Plaintiffs allege when or how Trooper Jackson found
out about Bryan S.’s identity, employment, and rank at the DOCCS.

6 In their response in opposition, Plaintiffs impliedly contend that Bryan S. suffered injuries as a
result of Trooper Jackson denying him immediate medical assistance, preventing the ambulance crew from
helping him, and requiring him to walk to the ambulance. (Resp. in Opp’n at 13–14.) However, Plaintiffs
Trooper Jackson slapped Bryan S., both of which are material circumstances on which the
reasonableness analysis could turn decisively.
To illustrate, in considering the different scenarios that the allegations mentioned above
suggest, the results of the reasonableness inquiry vary. In the first scenario, if Trooper Jackson

shook and slapped Bryan S. multiple times while he was conscious and able to communicate while
in the middle of a seizure, then the force used can neither be de minimis nor reasonable because
Bryan S. was restrained in his car, not resisting, and in “significant pain and in need of medical
assistance.” See, e.g., Campbell v. City of New York, No. 06 CV 5743 (HB), 2010 WL 2720589,
at *8 (S.D.N.Y. June 30, 2010) (“The alleged force used on Campbell when he was being
interrogated at the police station, slapping and cigarette burns, in particular cannot conceivably be
deemed a de minimis use of force if it in fact occurred.”); Yang Feng Zhao v. City of New York,
656 F. Supp. 2d 375, 391 (S.D.N.Y. 2009) (“[W]e do not believe that any particular quantum of
physical injury is required in such circumstances, since the evidence demonstrates that no use of
force was justified. That is the scenario here, which involved an interrogation of an unresisting

previously-arrested individual.”).
Of course, the result would be the opposite if Trooper Jackson only slapped Bryan S. once
and resulted in no injury because then the force used would be de minimis. See Lewis v. Huebner,
No. 17-CV-8101 (KMK), 2020 WL 1244254, at *6 (S.D.N.Y. Mar. 16, 2020) (“Courts have
repeatedly held that a single slap that results in no injury constitutes
unactionable, de minimis force.” (collecting cases)).

neither explicitly include these allegations in their Complaint, nor can the Court draw reasonable inferences
alluding the same from Plaintiffs’ allegations. But above all, “[i]t is long-standing precedent in this circuit
that parties cannot amend their pleadings through issues raised solely in their briefs.” Fadem v. Ford Motor
Co., 352 F. Supp. 2d 501, 516 (S.D.N.Y. 2005).
On the other hand, in the second and third scenarios, if Trooper Jackson shook and slapped
Bryan S. while he was still suffering a seizure but before he had regained his ability to
communicate, then, even when construing the allegations in Plaintiffs’ favor, the force used would
plausibly be reasonable. Notably, given that Trooper Jackson suspected that Bryan S. was driving

under the influence, it follows that the allegations would suggest that he ostensibly used such force
to assess Bryan S.’s sobriety or consciousness. But even then, Trooper Jackson’s force could still
be unreasonable depending on whether he slapped Bryan S. multiple times and such force resulted
in an injury.
To be sure, for purposes of this motion, the Court recognizes that it must accept all factual
allegations in the complaint as true and draw all reasonable inferences in Plaintiffs’
favor. Freidus, 734 F.3d at 137. However, “the [C]ourt cannot simply ‘fill in the blanks’ to supply
what is missing, on a motion to dismiss,” Read v. Corning Inc., 351 F. Supp. 3d 342, 357
(W.D.N.Y. 2018), “or follow a bread crumb trail of a represented plaintiff.” Jackson v. Cnty. of
Onondaga, No. 917CV845GLSCFH, 2019 WL 355729, at *4 (N.D.N.Y. Jan. 28, 2019). Put

differently, at this stage, the Court is not required to either speculate or puzzle out Plaintiffs’
allegations in such a way that the Court would be effectively pleading Plaintiffs’ claim for them.
And moreover, the Court notes that Plaintiffs also fail to allege how Jane Doe 1, who was
allegedly present at the scene with Trooper Jackson, was personally involved in the violation of
Bryan S.’s right to be free of excessive force. See Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474
(S.D.N.Y. 2003), aff’d sub nom. Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005) (“A
police officer is personally involved in the use of excessive force if he either: (1) directly
participates in an assault; or (2) was present during the assault, yet failed to intercede on behalf of
the victim even though he had a reasonable opportunity to do so.” (citing Ricciuti v. New York City
Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994)). In fact, even if Plaintiffs had sufficiently alleged that Trooper Jackson used excessive
force, they would still fail to sufficiently allege a claim against Jane Doe 1 for her failure to
intercede because the Complaint contains no allegations that she had “a reasonable opportunity to

do so.” Id.
Accordingly, the Court dismisses all of Plaintiffs’ claims for the alleged violation of Bryan
S.’s Fourth Amendment right to be free from excessive claim without prejudice.
B. Plaintiffs fail to allege a claim for false arrest, false imprisonment, and malicious
prosecution as a matter of law because the allegations suggest Trooper Jackson had
probable cause
1. False arrest and false imprisonment
Because “[f]alse arrest is considered a kind of false imprisonment, . . . the claims are
analyzed in identical fashion. See Mitchell v. Home, 377 F.Supp.2d 361, 371 (S.D.N.Y. 2005)
(citing Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (describing false arrest claim
as type of false imprisonment claim and stating that claims are analyzed identically), cert.
denied, 517 U.S. 1189 (1996); Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996) (quoting Singer)).
“To establish a claim for false arrest under 1983, a plaintiff must show that ‘the defendant
intentionally confined him without his consent and without justification.’” Escalera v. Lunn, 361
F.3d 737, 743 (2d Cir. 2004) (quoting Weyant, 101 F.3d at 852). A plaintiff cannot prevail on a
false arrest claim if the arresting officer had probable cause to arrest. See Singer, 63 F.3d at 118.
Probable cause exists if officers 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.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal
quotation omitted). “Probable cause does not require absolute certainty.” Boyd v. City of New York,
336 F.3d 72, 76 (2d Cir. 2003). Indeed, “some exculpatory evidence does not make an arrest illegal
when the totality of evidence still establishes probable cause to believe that the suspect committed
the crime.” Stansbury v. Wertman, 721 F.3d 84, 94 (2d Cir. 2013).
To defeat a false arrest claim, an arresting officer need not have had probable cause to
arrest the plaintiff for the specific offense invoked by the officer at the time of the arrest, or the

offense with which the plaintiff was charged. See Devenpeck v. Alford, 543 U.S. 146, 153
(2004); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006). As long as there was probable cause
to arrest the plaintiff for some offense, a false arrest claim will fail. See Jaegly, 439 F.3d at 152.
“Once a police officer has a reasonable basis for believing there is probable cause, he is not
required to explore and eliminate every theoretically plausible claim of innocence before making
an arrest.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Here, Plaintiffs allege that Trooper Jackson arrested Bryan S. for violating New York
Vehicle and Traffic Law §§ 1192(4) (driving while impaired by drugs), 1129(a) (following too
closely) and 600.01(A) (leaving the scene of an accident), “despite knowing said charges to be
false.” (Compl. ¶ 40.) Based on Plaintiffs’ placement of this allegation within the Complaint,

Trooper Jackson presumably arrested Bryan S. after he was hospitalized, his blood drawn from
him, and Trooper Jackson obtained his medical information. (See id. ¶¶ 34–40.)
As a result, after due consideration, the Court agrees with Defendants that, even when
viewing the Complaint in Plaintiffs’ favor, the allegations suggest that Trooper Jackson had
probable cause to arrest Bryan S. for violating New York Vehicle and Traffic Law § 1192(4)
(driving while impaired by drugs). First, the Complaint alleges that Trooper Jackson asked
Bartholomew whether her husband, Bryan S., takes medication and when. (See id. ¶ 30.)
Bartholomew responded that she had given Bryan S. his required medication, but that she did not
see him take his pain medication. (See id. ¶ 31.) Further, the Complaint alleges that Trooper
Jackson arrested Bryan S. after he learned of his medical information and had his blood drawn.
(See id. ¶¶ 34–40.) In sum, it can be inferred from these allegations that Trooper Jackson developed
probable cause that Bryan S. was driving under the influence due to the medications he had taken
earlier and the results of his blood tests. Additionally, that the criminal charges against Bryan S.

were eventually dismissed and sealed has no bearing on the issue of whether Trooper Jackson had
probable cause to effectuate the arrest. See Quinn v. City of New York, No. 99 Civ. 7068, 2003 WL
1090205, at *4 (E.D.N.Y. Mar. 12, 2003) (“The validity of an arrest does not depend on a finding
of innocence or any other disposition.” (citing Haussman v. Fergus, 894 F. Supp. 142, 147–48
(S.D.N.Y. 1995)).
Accordingly, the Court dismisses all of Plaintiffs’ claims for false arrest and imprisonment
against Trooper Jackson without prejudice. The Court also dismisses those same claims against
Jane Doe 1, who Plaintiffs once again fail to allege how she was personally involved in Bryan S.’s
arrest.
2. Malicious prosecution
The elements of a malicious prosecution claim under § 1983 are that: (1) the defendant

initiated a prosecution against the plaintiff; (2) the defendant lacked probable cause to believe the
proceeding could succeed; (3) the defendant acted with malice; (4) the prosecution terminated in
the plaintiff’s favor; and (5) there was a sufficient post-arraignment liberty restraint to implicate
the plaintiff’s Fourth Amendment rights. Rohman v. New York City Transit Auth. (NYCTA), 215
F.3d 208, 215 (2d Cir. 2000); see also Singer, 63 F.3d at 116–17 (relying in part on common law
and New York State malicious prosecution law in analyzing § 1983 malicious prosecution claim,
and observing that “[t]he ‘appropriate starting point’ of the inquiry is the common law of torts”
(quoting Carey v. Piphus, 435 U.S. 247, 258 (1978))).
Here, Plaintiffs’ malicious prosecution claim under § 1983 against Trooper Jackson and
Jane Doe 1 fails because, even when construing the Complaint in the light most favorable to
Plaintiffs, the allegations indicate that Trooper Jackson had probable cause to arrest Bryan S., as
discussed above.

Furthermore, while police officers do not generally “commence or continue” criminal
proceedings against defendants, a claim for malicious prosecution can still be maintained against
a police officer if the officer is found to “play[ ] an active role in the prosecution, such as giving
advice and encouragement or importuning the authorities to act.” Manganiello v. City of New
York, 612 F.3d 149, 163 (2d Cir. 2010) (quoting Rohman, 215 F.3d at 217). “This element might
be satisfied by, for example, showing that an officer generated witness statements or was regularly
in touch with the prosecutor regarding the case.” Bermudez v. City of New York, 790 F.3d 368, 377
(2d Cir. 2015) (citing Manganiello, 612 F.3d at 163). However, Plaintiffs allege no facts indicating
that either Trooper Jackson or Jane Doe 1 played an active role in the subsequent prosecution of
Bryan S.

Accordingly, the Court dismisses Plaintiffs’ malicious prosecution claim under § 1983
against Trooper Jackson and Jane Doe 1 without prejudice.
C. Plaintiffs’ claims for the violation of their rights under the First and Fourth
Amendments fail because the allegations suggest the temporary separation was not
shocking, arbitrary, and egregious
Plaintiffs next claim that Trooper Jackson interfered with their familial association when
Bryan S. was hospitalized and he refused to allow Bartholomew and Joyce S. be present during
Bryan S.’s questioning. (Compl. ¶¶ 28–29.) But Defendants argue that such claim is meritless
because, for the claim to be viable, the interference with their familial association must be
“shocking, arbitrary, and egregious.” (Resp. in Opp’n at 21–22.) The Court agrees.
The Second Circuit has held that relatives maintain, “in general terms, a substantive right
under the Due Process Clause to remain together without the coercive interference of the awesome
power of the state.” Anthony v. City of New York, 339 F.3d 129, 142–43 (2d Cir. 2003). To prevail
on a claim for violation of the substantive due process right of familial association, a plaintiff

“must demonstrate that [the alleged offending act] was so shocking, arbitrary, and egregious that
the Due Process Clause would not countenance it even were it accompanied by full procedural
protection.” Id. at 143 (internal citation and quotations omitted) (holding that a woman’s
temporary separation from her sister due to involuntary confinement at hospital did not violate her
sister’s substantive due process right to familial association).
To rise to a “conscience-shocking level,” the misconduct alleged in a substantive due
process claim must be either conduct intended to injure in some way unjustified by any
governmental interest, or inflicted with deliberate indifference that was shocking under the
circumstances. Miner v. New York State Dep’t of Health, No. 02 Civ. 3180, 2004 WL 1152491, at
*5 (S.D.N.Y. May 24, 2004) (finding the lack of deliberate indifference fatal to the familial

association claim of an inmate whose wife filed for divorce after receiving an inaccurate letter
notifying her that her husband was HIV positive).
Here, Plaintiffs fail to allege how Trooper Jackson’s interference with their familial
association was “conscience-shocking”; much less, how such interference could even be
considered misconduct because Trooper Jackson was investigating a car accident involving a
compromised or inebriated driver, which is a violation of New York Vehicle and Traffic Law. See,
e.g., People v. DeJesus, 845 N.Y.S.2d 517, 518 (3d Dep’t 2007) (“It is now well established that
the police are not required to provide a defendant access to a family member who is present at
police headquarters during interrogation.” (citations omitted)).
Accordingly, the Court dismisses all of Plaintiffs’ claims against Trooper Jackson for
interference with their familial association without prejudice. The Court also dismisses those same
claims against Jane Doe 1, who Plaintiffs once again fail to allege how she was personally involved
in the event.

D. Plaintiffs’ claims under §§ 1981 and 1986 fail
Lastly, Plaintiffs’ Complaint purports to assert claims under §§ 1981 and 1986. (See
Compl. ¶ 1.) But with respect to their § 1981 claims, none of Plaintiffs’ allegations invoke a claim
under that statute. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003) (noting that § 1981 “was
meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts
against, or in favor of, any race.” (internal quotation marks and citations omitted)). And as the
Court concluded above that Plaintiffs’ § 1985 claims fail, then their claims under § 1986 must also
fail because “a § 1986 claim must be predicated upon a valid § 1985 claim.” Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (citations omitted).
In sum, as all of Plaintiffs’ federal claims against Defendants fail, the Court need not

address Defendants’ arguments on qualified immunity. And on that same basis, the Court also
declines to exercise supplemental jurisdiction over Plaintiffs’ state law claims because there
remains no independent jurisdictional basis. “The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Carnegie–Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims”). Additionally, where the federal claims
are dismissed at an early stage in the litigation, the Second Circuit has generally held that it is
inappropriate for the district court to exercise supplemental jurisdiction. See, e.g., Giordano, 274
F.3d at 754; Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998); Castellano v. Bd. of Trs. of
Police Officers’ Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir. 1991).
Therefore, the Court dismisses the entirety of Plaintiff’s Complaint.7

7 As noted above, Plaintiffs also filed a notice of motion to amend or correct their complaint that
failed to comply with Rule 3(A)(ii) of this Court’s Individual Practices. (ECF No. 24.) While the Court
denies the motion to amend as procedurally deficient, the Court nonetheless grants Plaintiffs’ leave to file
an amended complaint. See Cotiviti, Inc. v. Deagle, No. 20-CV-02730, 2020 WL 6806434, at *13 (S.D.N.Y.
Nov. 19, 2020) (explaining that sua sponte leave to amend is appropriate “when justice so requires” (quoting
Fed. R. Civ. P. 15(a)(2))).
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss (ECF No.
21) and DISMISSES Plaintiffs’ Complaint. Specifically, the Court DISMISSES Plaintiffs’ federal
and state law claims against New York State, the New York State Police, and all individual
defendants in their official capacities with prejudice, and all other remaining federal and state law
claims against the individual defendants in their individual capacities without prejudice. Plaintiffs
are granted leave to file an Amended Complaint as to those claims that were dismissed without
prejudice. If Plaintiffs choose to do so, they will have until May 20, 2022, to file an Amended
Complaint. Defendants are then directed to answer or otherwise respond by June 20, 2022. If
Plaintiffs fail to file an Amended Complaint within the time allowed, and they cannot show good
cause to excuse such failure, any claims dismissed without prejudice by this opinion and order
may be deemed dismissed with prejudice. The Clerk of Court is directed to terminate the motions
at ECF Nos. 21 and 24.
Dated: March 24, 2022 50 ORDERED:
White Plains, NY si sige wet

NELSON S, ROMAN
United States District Judge

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10339749. Public record. Not legal advice.