Curtis v. Rockland County Drug Task Force

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CYRIL CURTIS,

Plaintiff,

MEMORANDUM OPINION

-against- AND ORDER

ROCKLAND COUNTY, OFFICER PHILLIP

21-CV-04294 (PMH)

FANTASIA, OFFICER JOHN CASEY, OFFICER

RAYMOND LUND, OFFICER MICHAEL

VIGILLETI, INVESTIGATOR JOE ALVAREZ,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Cyril Curtis (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action

pursuant to 42 U.S.C. § 1983 against Rockland County, Investigator Joe Alvarez (“Alvarez”),

Officer John Casey (“Casey”), Officer Phillip Fantasia (“Fantasia”), Officer Raymond Lund

(“Lund”), and Officer Michael Vigilleti (“Vigilleti” and collectively, “Defendants”). Plaintiff

alleges that Defendants violated his constitutional rights during the July 3, 2018 search of his

home, his six-hour pretrial detention on the same date, and his subsequent imprisonment. (Doc. 9,

“FAC”).

For the reasons set forth below, Defendants’ motions to dismiss are GRANTED.

BACKGROUND

A. Procedural Background

Plaintiff filed this action on May 10, 2021. (Doc. 2). The original Complaint named

Rockland County Drug Task Force, Rockland County Office of the Sherriff Department, Sherriff

Louis Falco III, Officer Phillip Fantasia, Officer John Casey, John Doe 1, John Doe 2, John Doe

3, and John Doe 4 as Defendants. (Id.). On June 14, 2021, the Court issued a Valentin Order which

dismissed Plaintiff’s claims against Rockland County Drug Task Force and Rockland County

Office of the Sherriff Department and added Rockland County as a Defendant. (Doc. 6).1 The

Court further ordered the Rockland County Law Department to identify the John Doe defendants.

(Id. at 3). On July 9, 2021, Plaintiff filed his First Amended Complaint (“FAC”), which dropped

Sherriff Louis Falco III as a Defendant.2 (Doc. 9). On August 12, 2021, Rockland County filed a

letter in response to the Court’s June 14, 2021 Valentin Order identifying John Doe 1 as Officer

Raymond Lund, John Doe 2 as Officer John Casey, John Doe 3 as Officer Michael Vigiletti, and

John Doe 4 as Investigator Joe Alvarez. (Doc. 13). On August 13, 2021, the Court ordered the

substitution of the individuals identified in Rockland County’s August 12, 2021 letter and

terminated Sherriff Louis Falco III as a defendant. (Doc. 14).

On August 31, 2021, Plaintiff filed an unauthorized Second Amended Complaint (“SAC”).

(Doc. 18).3 The caption of the SAC referred to four “John Doe” defendants that had already been

identified by Rockland County and substituted by the Court’s August 13, 2021 Order. (See Doc.

14). Accordingly, on September 16, 2021, the Court issued an Order once again terminating the

John Doe defendants as parties and restoring Officer Lund, Officer Vigilleti, and Investigator

Alvarez as parties. (Doc. 29). Accordingly, Plaintiff’s claims in the FAC, as modified by the

Court’s Orders as described above, are pressed against Rockland County, Lund, Fantasia, Casey,

Vigiletti, and Alvarez.

1 Rockland County Drug Task Force and Rockland County Office of the Sherriff Department were

dismissed as Defendants because neither entity qualified as a “person” within the meaning of 42 U.S.C.

1983. (Doc. 6 at 2).

2 Plaintiff’s First Amended Complaint was timely filed within 21 days of service of the original

Complaint pursuant to Fed. R. Civ. P. 15(a).

3 Plaintiff did not file a motion for leave to amend the FAC pursuant to Fed. R. Civ. P. 15(a)(2). The Court

therefore strikes Plaintiff’s SAC as untimely and unauthorized and construes the FAC as the operative

pleading for the purposes of Defendants’ motions to dismiss. See Ko v. JP Morgan Chase Bank, N.A., 730

F. App’x 62, 64 (2d Cir. 2018) (affirming the striking of an unauthorized amended complaint where plaintiff

did not seek leave to amend).

The Court granted Defendants leave to file motions to dismiss during the pre-motion

conference on March 1, 2022, and ordered that Defendants file joint moving and reply briefs in

support of their motions. (Doc. 50). On March 29, 2022, Defendants filed their motions to dismiss

and joint moving brief. (Doc. 51; Doc. 52; Doc. 53; Doc. 54 (“Defs.’ Br.”); Doc. 55). Plaintiff filed

his opposition brief on May 3, 2022. (Doc. 56, “Opp. Br.”). Defendants filed their joint reply brief

on May 16, 2022. (Doc. 59, “Reply Br.”).

B. Factual Background

Plaintiff alleges that, on July 3, 2018, he was pulled over by Fantasia, Casey, and Lund.

(FAC ¶¶ 1-3). Fantasia, Casey, and Lund, during the stop, informed Plaintiff that they had a search

warrant for his person, vehicle, and home and provided Plaintiff with a copy of the warrant to

search for drugs and drug paraphernalia. (Id. ¶¶ 3-5). Plaintiff was handcuffed after Defendants

searched his vehicle and was transported to the police station in Haverstraw, New York. (Id. ¶ 8).

Upon arrival at the police station in Haverstraw, Alvarez and Vigilleti placed Plaintiff in a holding

cell “for 6 hours with no phone calls and nothing to eat or drink.” (Id. ¶ 9).

Plaintiff alleges that, while he was held at the Haverstraw police station, Fantasia, Casey,

and Lund provided his wife with a copy of the search warrant and searched Plaintiff’s home, but

did not find any drugs or drug paraphernalia. (Id. ¶¶ 10-13). During the search of Plaintiff’s home,

Fantasia, Casey, and Lund located and broke open a locked safe which contained an “unloaded

9MM [Smith & Wesson] handgun” and also found “the bullets for [that] handgun inside a case”

under Plaintiff’s bed. (Id. ¶¶ 14-15). After finding the handgun and ammunition, Fantasia and

Casey left Plaintiff’s home while Lund stayed behind. (Id. ¶ 15). Fantasia and Casey returned five

hours later with a new warrant, which allowed for search and seizure of “[f]irearms, handguns,

including 9mm handgun, bullets, ammunition, magazine, weapons, and marihuana.” (Id. ¶ 19, Ex.

B). Casey and Fantasia provided Plaintiff’s wife with a copy of the second warrant. (Id. ¶ 19).

Plaintiff alleges that Defendants Casey and Fantasia “forged a Judge[’s] signature” or otherwise

“[a]lter[ed] and tamper[ed]” with the second warrant. (Id. ¶ 22).

Following the search of his home, Plaintiff was charged, and subsequently convicted for

violation of New York Penal Code § 265.03, Criminal Possession of a Weapon in the Second

Degree.4 Plaintiff is currently serving out his sentence at Marcy Correctional Facility. (FAC at 2).

STANDARD OF REVIEW

A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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)). A claim is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

4 See New York Dep’t of Corr. and Cmty. Supervision (“DOCCS”) Incarcerated Lookup, available at

https://nysdoccslookup.doccs.ny.gov/ (information obtained for DIN# 19-A-0921). The Court may take

judicial notice of Plaintiff's DOCCS inmate lookup information. See Williams v. Novoa, No. 19-CV-

11545, 2022 WL 161479, at *1 (S.D.N.Y. Jan. 18, 2022) (taking judicial notice of plaintiff’s

DOCCS inmate lookup information); Johnson v. City of New York, No. 15-CV-8195, 2017 WL

2312924, at *2 n.3 (S.D.N.Y. May 26, 2017) (collecting cases). The corresponding conviction and

biographical information listed in DOCCS’s public records match the information provided by Plaintiff his

pleadings. (Doc. 9 at 2 (identifying Plaintiff’s DOCCS Department ID Number as 19-A-0921), ¶ 21

(alleging that Plaintiff was charged with “[c]riminal [p]ossession of a weapon in the second degree”).

The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration

in original)). Therefore, a plaintiff must provide “more than labels and conclusions” to show

entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to

less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97,

106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation marks

omitted)). The Court has a duty to interpret “the pleadings of a pro se plaintiff liberally and

interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe, 174

F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

“Even in a pro se case, although a court must accept as true all of the allegations contained

in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris, 572 F.3d at 72 (internal quotation

marks omitted)). Therefore, while the Court must “draw the most favorable inferences that [a

plaintiff’s] complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.”

Chappius, 618 F.3d at 170.

ANALYSIS

Plaintiff seeks relief under 42 U.S.C. § 1983. (FAC at 1). That statute provides, in pertinent

part, that “[e]very person who, under color of any statute . . . 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.

“[T]his language . . . creates a mechanism by which individuals can vindicate the violation of rights

secured elsewhere.” Linares v. Annucci, No. 19-CV-11120, 2021 WL 2689736, at *6 (S.D.N.Y.

June 30, 2021) (quoting Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y.

Jan. 8, 2021) (first alteration in original)). Reading the pleading broadly and interpreting the

allegations to raise the strongest arguments they suggest, Plaintiff asserts claims for relief pursuant

to 42 U.S.C. § 1983 for unlawful search and seizure, deliberate indifference to medial needs, and

unlawful denial of a telephone call.

I. Statute of Limitations

This action concerns Plaintiff’s arrest and the execution of search warrants at his vehicle

and home on July 3, 2018. The statute of limitations governing 42 U.S.C. § 1983 claims in New

York is three years. Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). Plaintiff’s

complaint was not amended to name Defendants Lund, Vigiletti, and Alvarez until August 13,

2021, more than three years after the events giving rise to his claims.

An otherwise untimely amendment will survive if it is deemed to “relate back” to the

original complaint. See Fed. R. Civ. P. 15(c)(1); see also Sutton v. Rodriguez, No. 18-CV-01042,

2021 WL 2894834, at *3 (S.D.N.Y. July 9, 2021). The federal standard for relation back when an

amendment to the pleadings adds a party to an action, set forth in Rule 15, provides, in relevant

part, that “[a]n amendment to a pleading relates back to the date of the original pleading when . . .

the amendment changes the party or the naming of the party against whom a claim is asserted . . .

.” Fed. R. Civ. P. 15(c)(1)(C). A lack of knowledge about a defendant’s identity, however, cannot

be characterized as a “mistake of identity” for purposes of Rule 15(c)(1)(C). Hogan v. Fischer,

738 F.3d 509, 517-18 (2d Cir. 2013); see also Cotto v. City of New York, 803 F. Appx. 500, 503

(2d Cir. 2020). As a result, Rule 15(c)(1)(C) “preclude[s] relation back” in cases like this one,

where a plaintiff names John Doe defendants because he does not know the identity of the

defendants until the statute of limitations has run. Id. (citing Tapia-Ortiz v. Doe, 171 F.3d 150, 152

(2d Cir. 1999)).

An amendment may also relate back, however, when “the law that provides the

applicable statute of limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A). A plaintiff

bringing a § 1983 claim can therefore rely on New York’s relation back rules to substitute a named

defendant for a John Doe defendant. See Hogan, 738 F.3d at 518–19; N.Y. CPLR § 1024. For the

amendment to relate back under New York law, a plaintiff must satisfy two requirements. Hogan,

738 F.3d at 519. First, the plaintiff must “exercise due diligence, prior to the running of

the statute of limitations, to identify the defendant by name” and second, “the party must describe

the John Doe party in such form as will fairly apprise the party that he is the intended

defendant.” Id. (citation omitted).

Here, Plaintiff cannot satisfy the first requirement. Despite the events giving rise to

Plaintiff’s claims occurring in 2018, “‘Plaintiff appears to have expended no efforts at all to

identify the Individual Defendants in the three years that followed,’ waiting until the statute of

limitations had nearly run to file his complaint.” JCG v. Ercole, No. 11-CV-06844, 2014 WL

1630815, at *14 (S.D.N.Y. Apr. 24, 2014) (quoting Williams v. United States, No. 07-CV-03018,

2010 WL 963474, at *12 (S.D.N.Y. Feb. 25, 2010), adopted by 2014 WL 2769120 (S.D.N.Y.

June 18, 2014). In that time, he could have served discovery demands upon the known parties,

sought disclosures pursuant to a Freedom of Information Law (“FOIL”) request, or written letters

to the Attorney General’s Office. Cf. Hogan, 738 F.3d at 519 (plaintiff met first requirement

under § 1024 in that he “diligently sought to identify the “John Doe defendants” by submitting

“multiple discovery requests to the Attorney General’s office”); Mabry v. New York City Dept. of

Corrections, No. 05-CV-08133, 2008 WL 619003, at *6 (S.D.N.Y. March 7, 2008) (allowing

relation-back where plaintiff’s first complaint was well within statute of limitations and she

“aggressively sought the identities of the defendants”). Filing suit weeks before the statute of

limitations expires, without more, is insufficient to show due diligence under § 1024.

See, e.g., Vasconcellos v. City of New York, No. 12-CV-08445, 2014 WL 4961441, at *9 (S.D.N.Y.

Oct. 2, 2014) (declining to apply § 1024 because “Vasconcellos did nothing to exercise due

diligence prior to the running of the statute-or, for that matter, after it ran”); Jones v. City of New

York, 571 F. Supp. 3d 118, 131 (S.D.N.Y. 2021) (holding that an incarcerated pro se Plaintiff did

not exercise due diligence where he failed to take any actions “to uncover the John and Jane Doe

defendants’ identities prior to the expiration of the limitations period”); Liverpool v. Davis, 442 F.

Supp. 3d 714, 727 (S.D.N.Y. 2020) (same).

In light of Plaintiff’s failure to exhibit diligence in attempting to ascertain the identity of

the John Doe defendants, the claims against Defendants Lund, Vigiletti, and Alvarez do not relate

back to the original Complaint and are, therefore, barred by the statute of limitations. Accordingly,

Defendants Lund, Vigiletti, and Alvarez are dismissed from this action.

II. Unlawful Search and Seizure Claim

Plaintiff alleges that the July 3, 2018 search of his home and subsequent seizure of a firearm

was conducted pursuant to an invalid warrant in violation of his Fourth Amendment rights. (FAC

¶¶ 13-16). The Supreme Court’s decision in Heck “precludes the use of § 1983 suits for damages

that necessarily have the effect of challenging existing state or federal criminal convictions.”

Poventud v. City of New York, 750 F.3d 121, 124 (2d Cir. 2014) (citing Heck v. Humphrey, 512

U.S. 477 (1994)). Under Heck, if a judgment in a plaintiff’s favor would “necessarily imply the

invalidity of his conviction or sentence,” the complaint must be dismissed. 512 U.S. at 487. The

bar established in Heck applies regardless of whether a plaintiff seeks damages or injunctive relief.

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).

Plaintiff’s claim relates to the search and seizure of the weapon that is the subject of his

conviction and sentence. (FAC ¶ 21). To prevail on his search and seizure claim, Plaintiff would

have to establish that the firearm should not have been seized and his subsequent conviction was

therefore invalid. A judgment in Plaintiff’s favor on the unlawful search and seizure claim would

clearly imply the invalidity of his conviction, and the claim is therefore barred by Heck v.

Humphrey.

Plaintiff’s claim also fails under a separate ground articulated in Heck. “[W]hen seeking

compensatory damages for an allegedly unreasonable search while the underlying conviction still

stands, a plaintiff may only recover for an injury other than the harm caused by the conviction and

the imprisonment resulting therefrom.” Stegemann v. Rensselaer Cnty. Sheriff’s Off., No. 20-3316-

CV, 2021 WL 5492966, at *2 (2d Cir. Nov. 23, 2021) (citing Heck, 512 U.S. at 487 n.7). Here,

Plaintiff has not alleged any injury other than those related to his conviction and subsequent

imprisonment, which he asserts resulted from the purportedly invalid warrant. (FAC at 14). All

the damages sought by Plaintiff are directly related to the alleged harm caused by his conviction

and resulting imprisonment. (Id. at 14). For example, Plaintiff seeks damages for the “los[s] of

[his] pension and 401(k) plan,” for “the suffering and pain [caused by] being incarcerated for 3

years,” for “future pain and suffering” caused by not being able to find a job due to his

incarceration, for “mental anguish and mental pain over the years being incarcerated,” and finally

for “unlawful imprisonment.” (Id.). Each of these injuries for which Plaintiff seeks damages are a

direct result of his conviction and imprisonment. Thus, even if Plaintiff’s unlawful search and

seizure claim does not call his conviction into question—which it necessarily does—Plaintiff

cannot recover any damages for these injuries unless and until his conviction is overturned.

Plaintiff’s Fourth Amendment claim for unlawful search and seizure is, accordingly,

dismissed.

III. Deliberate Indifference to Medical Needs Claim

Plaintiff alleges that Defendants violated his Eighth Amendment rights by placing him in

a holding cell for 6 hours without any food or water. (FAC ¶¶ 9, 18). As an initial matter, “to

establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff must show

. . . the defendant’s personal involvement in the alleged constitutional deprivation.” Adams v.

Simone, 759 F. App’x 82, 84 (2d Cir. 2019) (citing Grullon v. City of New Haven, 720 F.3d 133,

138 (2d Cir. 2013)). Here, Plaintiff alleges that only Vigiletti and Alvarez were present during his

pretrial detention. (FAC ¶¶ 8-9). Given that Plaintiff does not allege that Fantasia, Casey, and Lund

were involved in Plaintiff’s pretrial detention, or any of the alleged constitutional deprivations that

occurred during that detention, Plaintiff’s claims stemming from the six-hour pretrial detention are

dismissed as to Fantasia, Casey, and Lund.5

Although Plaintiff alleges that this deprivation violated his Eighth Amendment rights, a

pretrial detainee’s § 1983 claim of unconstitutional conditions of confinement is analyzed under

the Due Process Clause of the Fourteenth Amendment. Darnell v. Pineiro, 849 F.3d 17, 29 (2d

Cir. 2017). “To state a deliberate indifference claim under the Fourteenth Amendment, plaintiff’s

allegations must satisfy two prongs: an objective prong and a mens rea prong.” King v. Falco, No.

5 Plaintiff also fails to allege that Defendants Vigiletti and Alvarez were personally involved in the search

of Plaintiff’s home and fails to allege that Defendant Lund was personally involved in Plaintiff’s pretrial

detention. Even if the claims against Defendants Vigiletti, Alvarez, and Lund were not dismissed on statute

of limitations grounds, the Court would dismiss Plaintiff’s unlawful search and seizure claim as to

Defendants Vigiletti and Alvarez and the deliberate indifference claims as to Defendant Lund for failure to

allege personal involvement.

16-CV-06315, 2018 WL 6510809, at *7 (S.D.N.Y. Dec. 11, 2018). Under the first prong, the

detainee’s medical needs must be objectively “serious.” See Flemming v. Velardi, No. 02-CV-

04133, 2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003) (citing Wilson v. Seiter, 501 U.S. 294,

298 (1991)). To determine whether a detainee’s medical needs are sufficiently serious, courts

consider “the existence of an injury that a reasonable doctor or patient would find important and

worthy of comment or treatment; the presence of a medical condition that significantly affects an

individual’s daily activities; or the existence of chronic and substantial pain.” Chance v.

Armstrong, 143 F.3d 698, 701-02 (2d Cir. 1998) (internal quotations omitted).

Under the second prong, “the facts must give rise to an inference that the persons charged

with providing medical care knew of those serious medical needs and intentionally disregarded

them.” Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000). A plaintiff can demonstrate

deliberate indifference by alleging facts that demonstrate that a defendant “kn[e]w of and

disregard[ed] an excessive risk to inmate health or safety.” Chance, 143 F.3d at 702 (citing Farmer

v. Brennan, 511 U.S. 825, 837 (1994)).

Plaintiff’s deliberate indifference claim fails at the first prong. The allegations in Plaintiff’s

pleading demonstrate that Plaintiff did not suffer a sufficiently serious injury to trigger

constitutional protection. Although he alleges that he was placed in a holding cell for 6 hours

without any food or water, Plaintiff makes no allegation that he had any need for food or drink and

no allegation that the lack of those accommodations for several hours had any untoward

consequences whatsoever. Even if Plaintiff had alleged as much, “there is ‘a de minimis level of

imposition with which the Constitution is not concerned.’” Lynch v. City of New York, 952 F.3d

67, 77 (2d Cir. 2020) (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.1 (1979)) (holding that a

protestor who was detained for five hours and punitively denied food, drink, and access to a

bathroom failed to state a Fourteenth Amendment claim); see also Rivera v. Connolly, No. 18-CV-

03958, 2022 WL 1785313, at *5 (S.D.N.Y. June 1, 2022) (“Nothing about Defendant’s conduct,

even in Plaintiff’s version of the story, is ‘repugnant to the conscience of mankind’ or rises to the

dignity of an Eighth Amendment violation.”); Simmons v. Kelly, No. 06-CV-06183, 2009 WL

857410, at *7 (S.D.N.Y. Mar. 31, 2009) (“Courts in this jurisdiction have held that a deprivation

of food and water during detention that only lasted a few hours did not rise to the level of a

constitutional violation.”); Dzwonczyk v. Syracuse City Police Dep’t, 710 F. Supp. 2d 248, 269

(N.D.N.Y. 2008) (holding that lack of food and water overnight was not a constitutional violation);

Webster v. City of New York, 333 F. Supp. 2d 184, 200 (S.D.N.Y. 2004) (holding that failure to

provide a detainee with food and water “for the few hours” that they were held is “insufficient as

a matter of law” to support a deliberate indifference claim). Plaintiff’s allegation that he did not

receive food and water during his 6-hour detention, without more, does not rise to the level of a

constitutional violation and, as such, his deliberate indifference claim is dismissed.

IV. Unlawful Denial of a Telephone Call

Plaintiff alleges that Defendants violated his constitutional rights by depriving him access

to a telephone call during his 6-hour detention. (FAC ¶ 18). However, Plaintiff does not have a

constitutional right to a phone call. Hodge v. Ruperto, 739 F. Supp. 873, 876 (S.D.N.Y. 1990)

(holding that there is “no constitutional requirement that a detainee be permitted a telephone call

upon completion of booking formalities”); see also Marcus v. Bush, No. 11-CV-04049, 2013 WL

2154786, at *4 (E.D.N.Y. May 17, 2013) (holding that denying a detainee “permission to call his

counsel . . . for a one hour period” did not amount to a constitutional violation). Therefore, the

alleged denial of a telephone call during Plaintiff’s 6-hour detention cannot serve as the basis for

a § 1983 claim. This claim for relief is, therefore, dismissed.

V. Monell Claim

By proceeding against Rockland County under 42 U.S.C. § 1983, the Court construes

Plaintiff’s Complaint to press a Monell claim. Such a claim requires that Plaintiff plead: “(1)

actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation;

(4) damages; and (5) that an official policy of the municipality caused the injury.” Lockett v. City

of Middletown, No. 19-CV-08255, 2021 WL 1092357, at *5 (S.D.N.Y. Mar. 22, 2021)

(quoting Triano v. Town of Harrison, New York, 895 F. Supp. 2d 526, 531 (S.D.N.Y. 2012)). A

Monell claim, however, “cannot lie in the absence of an underlying constitutional

violation.” Galgano v. Cnty. of Putnam, No. 16-CV-03572, 2020 WL 3618512, at *9 (S.D.N.Y.

July 2, 2020) (quoting DeRaffele v. City of New Rochelle, No. 15-CV-00282, 2017 WL 2560008,

at *6 (S.D.N.Y. June 13, 2017)). Notwithstanding any other pleading deficiency in this case, this

claim must be dismissed because Plaintiff has not pled an underlying constitutional violation. See,

e.g., Schultz v. Inc. Vill. of Bellport, 479 F. App’x 358, 360 (2d Cir. 2012); Segal v. City of New

York, 459 F.3d 207, 219 (2d Cir. 2006).

Even if Plaintiff sufficiently pled a constitutional violation, his Monell claim would

nevertheless fail “for lack of facts supporting the existence of a municipal policy or practice,

because Plaintiff only alleges facts relating to his own claim.” Toussaint v. Cnty. of Westchester,

No. 21-CV-03817, 2022 WL 2834108, at *9 (S.D.N.Y. July 20, 2022); see also Smith v.

Westchester Cnty., No. 19-CV-01283, 2019 WL 5816120, at *5 (S.D.N.Y. Nov. 7, 2019)

(dismissing Monell claim where plaintiff “describe[d] only his own experiences”); Oriental v. Vill.

of Westbury, No. 18-CV-03878, 2019 WL 4861413, at *4 (E.D.N.Y. Oct. 2, 2019) (dismissing

Monell claim where “the complaint contain[ed] only a detailed account of plaintiffs’ own

experiences”). Plaintiff’s Monell claim is, accordingly, dismissed.

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss are GRANTED.6

While “[d]istrict courts should frequently provide leave to amend before dismissing a pro

se complaint . . . leave to amend is not necessary when it would be futile.” Reed v. Friedman Mgmt.

Corp., 541 F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

2000)). Here, the FAC is dismissed with prejudice because any amendment would be futile.

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

Opinion and Order would not be taken in good faith, and in forma pauperis status is denied for the

purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that

an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

The Clerk of the Court is respectfully directed to: (i) terminate the motion sequences

pending at Docs. 51, 53, and 55; (ii) mail a copy of this Memorandum Opinion and Order to

Plaintiff; and (iii) close this case.

SO ORDERED:

Dated: White Plains, New York

October 28, 2022

PHILIP M. HALPERN

United States District Judge

6 Given the conclusions reached herein, the Court need not and does not address Defendants’ arguments

regarding qualified immunity. (Defs.’ Br. at 9).