Hanniford v. City of Poughkeepsie

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DEAN HANNIFORD,

MEMORANDUM OPINION

Plaintiff,

AND ORDER

-against-

21-CV-10359 (PMH)

CITY OF POUGHKEEPSIE, et al.,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Dean Hanniford (“Plaintiff”) brings this action against the City of Poughkeepsie (“City”),

City Sergeant Terrance Beam (“Beam”), and City Police Officer Edward Fenichel (“Fenichel,”

with Beam, the “Officer Defendants,” and collectively, “Defendants”). (Doc. 21, “FAC”). Plaintiff

asserts four claims for relief under 42 U.S.C. § 1983 (“§ 1983”) against the Officer Defendants for

malicious prosecution, false arrest, fabrication of evidence, excessive force; and a claim of

municipal liability against the City under Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658 (1978) (“Monell”) against the City. (See generally, FAC). Plaintiff originally pressed an

additional claim against the Officer Defendants under the New York State Constitution but has

since withdrawn that claim. (Doc. 30 at 12).

Defendants, in accordance with a briefing schedule set by the Court, served their motion

to dismiss under Federal Rule of Civil Procedure 12(b)(1) on May 3, 2022. (Doc. 24; Doc. 25,

“Posner Aff.”; Doc. 26, “Def. Br.”). Plaintiff’s opposition was served on May 15, 2022. (Doc. 30,

“Opp. Br.”). Defendants served their reply brief on June 13, 2022 (Doc. 31, “Reply”), and the

motion was fully submitted with the filing of all the foregoing motion papers that day.1

1 On May 20, 2022, Plaintiff filed his Amended Complaint as of right pursuant to Fed. R. Civ. P.

For the reasons set forth below, Defendants’ motion to dismiss is GRANTED IN PART.

BACKGROUND

Plaintiff’s claims arise from his arrest, effectuated by the Officer Defendants on May 15,

2022. (FAC at 1). The following facts are taken from the Amended Complaint as well as the

documents annexed to counsel’s declarations. (Posner Aff.; Doc. 29; “Konan Aff.”).2

15(a)(1)(B), adding the Monell claim against the City. (FAC). Defendants, apparently choosing to stand on

their extant motion rather than serve a new one, addressed Plaintiff’s newly-pled Monell claim only in their

Reply.

2 Defendant submits the following documents to the Court: (i) an Indictment of Plaintiff dated September

29, 2020 (Doc. 25-2); (ii) a guilty plea transcript dated July 19, 2021 (Doc. 25-3); (iii) a sentencing transcript

dated September 7, 2021 (Doc. 25-4); (iv) a proceeding transcript dated August 12, 2021 (Doc. 25-5); (v)

the Officer Defendants’ incident reports (Doc. 25-6); (vi) accusatory instruments against Plaintiff, dated

May 15, 2020 (Doc. 25-7). Plaintiff does not object to the use of any of these documents and, in fact, also

proffers through his own opposition various items above. (See generally, Konan Aff.).

“[T]he Court is entitled to consider facts alleged in the complaint and documents attached to it or

incorporated in it by reference, [as well as] documents ‘integral’ to the complaint and relied upon in it, and

facts of which judicial notice may properly be taken . . . .” Heckman v. Town of Hempstead, 568 F. App’x

41, 43 (2d Cir. 2014); Manley v. Utzinger, No. 10-CV-02210, 2011 WL 2947008, at *1 n.1 (S.D.N.Y. July

21, 2011) (explaining that a court may consider “statements or documents incorporated into the complaint

by reference, and documents possessed by or known to the plaintiff and upon which the plaintiff relied in

bringing the suit”). Even if a document is not incorporated by reference into the complaint, the Court may

consider a document “where the complaint ‘relies heavily upon its terms and effect,’ thereby rendering the

document ‘integral’ to the complaint.” DiFalco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

The Court may also take notice of documents in the public record. Fox v. City of New York, No. 18-CV-

09661, 2019 WL 3003993, at *4 (S.D.N.Y. July 10, 2019) (concluding that the extraneous arrest report was

integral to the pleading because it provided “crucial details” concerning the plaintiff’s false arrest claims

(internal quotation marks omitted)); McClinton v. Henderson, No. 13-CV-03335, 2014 WL 2048389, at

*1-2 (E.D.N.Y. May 19, 2014) (Bianco, J.) (considering parole revocation hearing transcripts on a motion

to dismiss); Awelewa v. New York City, No. 11-CV-00778, 2012 WL 601119, at *2 (S.D.N.Y. Feb. 23,

2012) (“Judicial notice may be taken of public records, including arrest reports, criminal complaints,

indictments, and criminal disposition data.” (internal quotation marks omitted)).

Because each of the documents submitted by Defendants are either referenced in or integral to the

Amended Complaint, or part of the relevant public record, the Court will consider them. With respect to

the two transcripts submitted (items three and four listed above), however, the Court will not consider any

“excerpts of the . . . transcript reflecting piecemeal segments of colloquy between the court and counsel

[because] . . . an attorney’s statement or argument is not evidence.” Ventillo v. Falco, 19-CV-03664, 2020

WL 7496294, at *5 n.11 (S.D.N.Y. Dec. 18, 2020) (internal quotation removed).

In addition to re-submitting certain documents already proffered by Defendants’ counsel’s

declaration, Plaintiff submits additional court filings relating to the interest of justice dismissal of his

Plaintiff was on Garden Street in Poughkeepsie on May 15, 2020, when he was stopped by

Fenichel, who asked him about a robbery at a dollar store. (FAC ¶ 14). When Fenichel asked for

identification, Plaintiff “ignored” him. (Id.). Fenichel then “attempted to grab” Plaintiff, Plaintiff

pulled himself away, and Fenichel fell to the ground. (Id.). Fenichel called for backup, stating that

Plaintiff had assaulted him. (Id. ¶ 15). Beam apparently responded and assisted Fenichel in

effectuating Plaintiff’s arrest with the use of force. (Id. ¶ 16; ¶ 92). Plaintiff alleges that “there was

no robbery committed at any Family Dollar Store in Dutchess County on the day of May 15, 2020,”

and that he “did not use any force against Officer Fenichel.” (FAC ¶¶ 26-28). This account, of

course, differs drastically from those of the Officer Defendants, as reflected in their incident

reports. Fenichel admits that he “made up a story” about a dollar store robbery because he had

been contacted by Beam to assist in identifying the subject of an investigation. (Posner Aff. Ex.

F).3 Fenichel also reports that Plaintiff “pushed and punched [him] several times” before the two

wrestled for approximately 30 seconds and Plaintiff fled. (Id.). Beam reports that he and Fenichel

“were assisting the New York State Police in stopping the subject of a probable cause

investigation” and that Plaintiff “violently resisted by pushing and punching Officer Fenichel”

before fleeing. (Id.).

Plaintiff was charged with Resisting Arrest in violation of N.Y. Penal Law § 205.30,

Second Degree Assault in violation of N.Y. Penal Law § 120.05(3), and Physical Injury in

violation of N.Y. Penal Law § 120.00.02, each of which were dismissed in the interests of justice

charges. Defendants object to the submission of these materials. However, given the Court’s disposition

infra with respect to Plaintiff’s malicious prosecution claim, it need not rely on these documents. Citations

to the parties’ exhibits correspond to the pagination generated by ECF.

3 These incident reports are not only referenced in the Amended Complaint as part of Plaintiff’s fabrication

of evidence claim (FAC ¶ 15) but are “integral to the pleading because [they] provide[] crucial details

concerning the plaintiff’s false arrest claims.” Fox, 2019 WL 3003993, at *4 (internal quotation removed).

on August 13, 2021. (Posner Aff. Ex. E). No warrant was issued for Plaintiff’s arrest as of May

15, 2020. (FAC ¶ 76). Plaintiff, however, was indicted on September 29, 2020 in Dutchess County

Court of six counts of Possession and Sale of a Controlled Substance in violation of N.Y. Penal

Law § 220.39 for sales made on May 8, 2020, May 12, 2020, and May 15, 2020. (Posner Aff. Ex.

B). Plaintiff pled guilty to those narcotics charges on July 21, 2021 and was sentenced on

September 7, 2021. (Posner Aff. Ex. C; Ex. D).

This litigation followed.

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). The factual allegations pled “must

be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.

“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.

Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences

are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53

(2d Cir. 1996). 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.

ANALYSIS

Plaintiff brings each of his five claims for relief under § 1983, which 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.

“This language does not create substantive rights; rather, it creates a mechanism by which

individuals can vindicate the violation of rights secured elsewhere.” Santucci v. Levine, No. 17-

CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). Thus, to state a claim under § 1983,

Plaintiff must demonstrate “(1) a right secured by the Constitution or laws of the United States

was violated, and (2) the right was violated by a person acting under color of state law, or a state

actor.” Id.; see also Town & Country Adult Living, Inc. v. Vill./Town of Mount Kisco, No. 17-CV-

08586, 2019 WL 1368560, at *17 (S.D.N.Y. Mar. 26, 2019). The “first step in any [§ 1983] claim

is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266,

271 (1994). Defendants seek to dismiss each of Plaintiff’s claims for relief, except for the third

(excessive force) to the extent alleged against Fenichel.

I. First Claim for Relief: Malicious Prosecution

In order to establish a § 1983 claim for malicious prosecution, “a plaintiff must . . . establish

the elements of a malicious prosecution claim under state law.” Frost v. New York City Police

Dep’t, 980 F.3d 231, 242 (2d Cir. 2020) (quoting Manganiello v. City of New York, 612 F.3d 149,

160-61 (2d Cir. 2010)). Accordingly, under New York law, Plaintiff must allege: “(1) the initiation

or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in

plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice

as a motivation for defendant’s actions.” Id. (internal quotation marks omitted). When pressing a

malicious prosecution claim under § 1983, the plaintiff must show also “that there was (5) a

sufficient post-arraignment liberty restraint to implicate his Fourth Amendment rights.” Rohman

v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000).

Defendants’ argument with respect to malicious prosecution is two-fold: (i) they are

entitled to qualified immunity because, at the time of the incident, the law of this Circuit was

clearly established that an interest of justice dismissal could not satisfy the second element of a

malicious prosecution claim; and (ii) Defendants had probable cause to arrest, negating the third

element of a malicious prosecution claim.

a. Qualified Immunity

The affirmative defense of “qualified immunity protects government officials from liability

for civil damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the challenged

conduct.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (quoting McGowan v. United

States, 825 F.3d 118, 124 (2d Cir. 2016) (alteration added)). “A Government official’s conduct

violates clearly established law when, at the time of the challenged conduct, the contours of a right

are sufficiently clear that every reasonable official would have understood that what he is doing

violates that right.” Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 59 (2d Cir. 2017)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). If an official’s belief that his action does

not violate clearly established law is “objectively reasonable,” he or she is shielded from liability

by qualified immunity. Cooper v. City of New Rochelle, 925 F. Supp. 2d 588, 608 (S.D.N.Y. 2013)

(internal quotation marks omitted). Although qualified immunity may be raised on a motion to

dismiss, advancing such a defense as grounds for a motion to dismiss “is almost always a

procedural mismatch” as such a defense “faces a formidable hurdle and is usually not successful.”

Sabir v. Williams, 52 F.4th 51, 64 (2d Cir. 2022) (internal citations and quotation marks omitted).

The Supreme Court, in Thompson v. Clark, “h[e]ld that a Fourth Amendment claim under

§ 1983 for malicious prosecution does not require the plaintiff to show that the criminal

prosecution ended with some affirmative indication of innocence. A plaintiff need only show that

the criminal prosecution ended without a conviction.” 142 S. Ct. 1332, 1341 (2022). Under this

standard, the interest of justice dismissal of Plaintiff’s charges on August 21, 2021 satisfies the

favorable termination element of Plaintiff’s claim. Defendants’ argument, however, is that they

are entitled to qualified immunity because the law in this Circuit, prior to its abrogation by

Thompson, was that a plaintiff “must establish that the state prosecution terminated in his favor,

and that proceedings are terminated in favor of the accused only when their final disposition is

such as to indicate the accused is not guilty.” Lanning v. City of Glens Falls, 908 F.3d 19, 26 (2d

Cir. 2018) (internal quotations removed). Under the Lanning standard, which was the law at the

time of Plaintiff’s arrest and disposition of his charges, Plaintiff may have been unable to

demonstrate the favorable termination element of his claim.

First, the Officer Defendants attempt to suggest that Plaintiff’s drug arrest is the factual

predicate for his malicious prosecution claim; and that Thompson, in effect, has no bearing on the

Officer Defendants’ qualified immunity defense to malicious prosecution. The factual predicate is

belied by the allegations in the first claim for relief. (See FAC at 4-8). Second, Defendants do not

identify a single case in which the defense of qualified immunity is established by the unfavorable

termination of criminal proceedings against a plaintiff. The reason for this is simple: favorable

termination is an element of a malicious prosecution claim, not an element of a qualified immunity

defense. Defendants, in a situation where a favorable termination is lacking, will move to dismiss

for failure to state a claim for malicious prosecution, and not for an affirmative finding that the

affirmative defense of qualified immunity has been met by a reading of the four corners of the

complaint. Such a deficiency would be fatal to a plaintiff’s claim for relief but almost certainly

irrelevant to a defendant’s defense of qualified immunity. Defendants posit, however, that “[t]he

change in the law does not change the result required here, i.e., dismissal of the malicious

prosecution claim, just the rational for that dismissal.” (Def. Br. at 11). This Court is unwilling to

make such a finding.

Moreover, qualified immunity is determined at the time of the official’s conduct and does

not depend on a later determination on a plaintiff’s charges. See, e.g. Almighty Supreme Born

Allah, 876 F.3d at 597 (“[a] Government official’s conduct violates clearly established law when,

at the time of the challenged conduct the contours of a right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”) (emphasis

added and internal quotation omitted). The purpose of qualified immunity is to protect officials

who have an objectively reasonable belief that their conduct is not violative of a person’s rights.

Cooper, 925 F. Supp. 2d at 608. Finding that Defendants were retroactively bestowed qualified

immunity by the disposition of Plaintiff’s charges more than a year after the time of their conduct

is entirely inconsistent with the affirmative defense and would further cloud the already murky

area of judging qualified immunity issues at the time of a motion to dismiss.

b. Probable Cause

Defendants’ next argument against Plaintiff’s malicious prosecution claim is that, because

there was probable cause to arrest Plaintiff, the claim fails at the third element. “Probable cause to

arrest . . . exists when the officer has 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.” Wierzbic v. Howard, 836 F.

App’x 31, 34-35 (2d Cir. 2020) (internal quotation marks omitted). This standard is an objective

one and evaluates “the reasonable conclusion to be drawn from the facts known to the officer at

the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). A court must consider “the

totality of the circumstances and . . . be aware that probable cause is a fluid concept—turning on

the assessment of probabilities in particular factual contexts—not readily, or even usefully,

reduced to a neat set of legal rules.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal

quotation marks omitted). “Probable cause, in the context of malicious prosecution, has also been

described as such facts and circumstances as would lead a reasonably prudent person to believe

the plaintiff guilty.” Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013).

“The 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.” Tompkins v. City of New York, 50 F. Supp. 3d 426, 433 (S.D.N.Y. 2014).

Rather, probable cause “to arrest the suspect of any crime” will suffice. Coleman v. City of New

York, No. 03-CV-04921, 2009 WL 705539, at *3 (E.D.N.Y. Mar. 16, 2009); see also Butler v.

Brito, No. 15-CV-09718, 2017 WL 2116687, at *3 (S.D.N.Y. May 15, 2017). If there is reason to

doubt a witness’ credibility, corroborating evidence can support probable cause. See Brodie v.

Fuhrman, No. 07-CV-04212, 2010 WL 1189347, at *5-6 (E.D.N.Y. Mar. 29, 2010). Finally, “[a]

false arrest claim is defeated by the plaintiff’s conviction for the offense for which he was

arrested.” Phelan v. Sullivan, 541 F. App’x 21, 23 (2d Cir. 2013). Separately, under the imputed

knowledge doctrine, an arrest is permissible where the actual arresting officer lacks the specific

information to form the basis for probable cause but “sufficient information to justify the arrest or

search was known by other law enforcement officials initiating or involved with the investigation.”

United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001) (citing United States v. Hensley, 469 U.S.

221, 230-33 (1985)); United States v. Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir. 1972). This rule

exists because, “in light of the complexity of modern police work, the arresting officer cannot

always be aware of every aspect of an investigation” and “sometimes his authority to arrest a

suspect is based on facts known only to his superiors or associates.” Colon, 250 F.3d at 135 (citing

United States v. Valez, 796 F.2d 24, 28 (2d Cir. 1986)).

Defendants’ syllogism is put thusly: (i) probable cause for any offense is sufficient to

support an arrest; (ii) Plaintiff’s later guilty plea for drug charges establishes probable cause for

that offense; and (iii) Defendants were therefore justified in arresting Plaintiff. This logic misses

an important step. Probable cause “is an objective [inquiry] that focuses on the facts available to

the arresting officer at the time of the arrest.” Finigan v. Marshall, 574 F.3d 57, 61-62 (2d Cir.

2009) (emphasis added). The Court is unable to ascertain, without the benefit of discovery, what

if anything Beam and Fenichel knew about the drug investigation into Plaintiff at the time of arrest.

Although “[t]he 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,” Tompkins, 50 F. Supp. 3d at 433, the officer still needs to have known

about, at a minimum, the circumstances establishing probable cause for that other offense. Even

considering the imputed knowledge doctrine, it is unclear at this stage in the litigation whether any

officer had sufficient knowledge to support probable cause that could then be imputed to the

Officer Defendants.

Defendants cannot plausibly argue that if they had no information about the drug

investigation and only arrested Plaintiff for no reason other than resisting arrest, that a stroke of

luck would vindicate them by retroactively creating probable cause once Plaintiff was indicted for

a drug offense occurring on the day of his arrest. The extent of Defendants’ and other officers’

contemporaneous knowledge of the drug investigation into Plaintiff is still unknown to the Court

at this stage. Ultimately, Defendants very well may have had probable cause to arrest Plaintiff.

Nothing in this Memorandum Opinion should be read to preclude that argument at a later stage in

this litigation. But dismissal is, at this stage, inappropriate.

Defendants’ motion is, therefore, denied to the extent it seeks to dismiss Plaintiff’s first

claim for relief.

II. Second Claim for Relief: False Arrest

As with malicious prosecution, “[a] false arrest claim under Section 1983 ‘incorporates

the elements of the state law where the arrest took place’—here, New York.” Johnson v. City of

New York, No. 18-CV-06256, 2020 WL 2732068, at *3 (S.D.N.Y. May 26, 2020) (quoting

Youngblood v. City of New York, No. 15-CV-03541, 2019 WL 6216498, at *5 (S.D.N.Y. Nov. 21,

2019)). Accordingly, to state a claim for false arrest under § 1983, Plaintiff must plead “that (1)

the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the

plaintiff did not consent to the confinement[,] and (4) the confinement was not otherwise

privileged.” Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003) (internal quotation marks

omitted).

Like in the malicious prosecution context, “probable cause is an absolute defense to a false

arrest claim.” Stansbury, 721 F.3d at 89 (quoting Torraco v. Port Auth. of New York & New Jersey,

615 F.3d 129, 139 (2d Cir. 2010)); see also Kilburn v. Vill. of Saranac Lake, 413 F. App’x 362,

363 (2d Cir. 2011); McClenic v. Shmettan, No. 15-CV-00705, 2016 WL 3920219, at *4 (E.D.N.Y.

July 15, 2016) (explaining that “probable cause is a complete defense to a false arrest claim, even

where the plaintiff was ultimately acquitted of the criminal charges”) (internal quotation marks

omitted)). For the reasons discussed supra in the malicious prosecution context, the Court is unable

to conclude at this stage in the proceedings that probable cause existed to arrest Plaintiff. The Court

recognizes that “[t]he Second Circuit has established that the probable cause standard in the

malicious prosecution context is slightly higher than the standard for false arrest cases because in

the malicious prosecution context the facts and circumstances must be such that a reasonably

prudent person would believe the plaintiff guilty.” Wheeler v. Kolek, No. 16-CV-07441, 2020 WL

6726947, at *9 (S.D.N.Y. Nov. 16, 2020) (internal quotations removed). Nevertheless, “[f]inely

tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence

have no place in the probable-cause decision.” Id. at *4 (alterations removed). As such, whether

considered in connection with malicious prosecution or false arrest, the Court is unable to

determine that probable cause existed at this stage in this proceeding.

Defendants’ motion is, therefore, denied to the extent it seeks to dismiss Plaintiff’s second

claim for relief.

III. Third Claim for Relief: Excessive Force

“The Fourth Amendment prohibits the use of excessive force in making an arrest, and

whether the force used is excessive is to be analyzed under that Amendment’s ‘reasonableness

standard.’” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham v.

Connor, 490 U.S. 386, 395 (1989)). To determine whether an officer’s force is objectively

reasonable, the Court must balance “the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental interests at stake.” Id.

(quoting Graham, 490 U.S. at 396). The “‘reasonableness’ of a particular use of force must be

judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. (citing Graham, 490 U.S. at 396). Where a Plaintiff resists arrest, the “force used

by the officer must be reasonably related to the nature of the resistance and the force used,

threatened, or reasonably perceived to be threatened, against the officer.” McMillan v. City of New

York, No. 10-CV-02296, 2011 WL 6129627, at *5 (S.D.N.Y. Dec. 9, 2011) (quoting Sullivan v.

Gagnier, 225 F.3d 161, 166 (2d Cir. 2000)). The Court is mindful that “[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment.” Graham, 490 U.S. at 396 (internal citations and quotations omitted).

Defendants argue that Plaintiff uses impermissible “group pleading” with respect to his

excessive force claim and seek dismissal of Plaintiff’s third claim for relief to the extent alleged

against Beam. (Def. Br. at 8 (citing Swinson v. City of New York, 19-CV-11919, 2022 WL 142407

at *4-5. (S.D.N.Y. Jan. 14, 2022))). Defendants aver that there is no allegation that force was used

when Plaintiff was later apprehended, and because “logic dictates [Beam] arrived as backup,” he

would not have been involved in the earlier force. (Id. at 7-8). However, Plaintiff states specifically

that the “Officer Defendants used force to take Plaintiff to the ground thereby causing severe

physical injuries to Plaintiff’s leg.” (FAC ¶ 94).4 Whether “logic dictates” that Beam was present

4 Just because Plaintiff uses the plural term “Officer Defendants” rather than stating their individual names

does not make this impermissible “group pleading.” In Swinson, for example, the plaintiff had alleged five

claims for relief against seven different defendants without identifying which were liable for each claim.

Here, on the other hand, there are only two Defendants and Plaintiff’s allegation makes clear that he means

to allege that both took him to the ground and used excessive force.

or not is insufficient on a motion to dismiss, where the Court is required to weigh every inference

in Plaintiff’s favor. Whether Beam was present at the scene when force was used is a fact issue to

be decided at a later stage in this litigation.

Defendants’ motion is, therefore, denied to the extent it seeks to dismiss Plaintiff’s third

claim for relief.

IV. Fourth Claim for Relief: Fabrication of Evidence

Plaintiff’s fourth claim for relief is styled as one for fabrication of evidence but is more

properly considered as a claim for denial of a fair trial. Ventillo, 2020 WL 7496294, at *12. To

establish such a claim, a plaintiff must show that “an (1) investigating official (2) fabricates

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

prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result.” Ganek

v. Leibowitz, 874 F.3d 73, 90 (2d Cir. 2017). “To satisfy the third element, the fabricated evidence

need not actually reach a jury.” Boykins v. Lopez, No. 21-CV-02831, 2022 WL 2307684, at *9

(S.D.N.Y. June 27, 2022) (internal quotation removed). Finally, “[p]robable cause is not a defense”

to this claim. Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012).

Defendants argue that Plaintiff’s right to fair trial claim fails at the second and fifth

elements. (Reply at 7-8). With respect to the second element, Defendants argue that the specific

allegations in the Amended Complaint concerning the falsity of the incident report filed by

Defendants are inconsistent – i.e. Plaintiff claims that Defendants’ report falsely accuses him of

punching Fenichel in the head (Def. Br. at 6-7) whereas the report actually only says that Plaintiff

punched Fenichel generally (Posner Aff. Ex. F). Nevertheless, accepting Plaintiff’s factual

allegations as true as the Court must at this stage, whether the alleged falsity entails a punch to the

face or not is inconsequential. Plaintiff’s allegation that he never punched Fenichel at all is

sufficient to support the second element of a right to trial claim where Fenichel’s incident report

states that punching occurred.

Defendants’ next argument is similarly unavailing. With respect to the fifth element of this

claim, Defendants argue that Plaintiff did not suffer a loss of liberty because of his parallel drug

investigation and prosecution. However, as Defendants acknowledge, Plaintiff “spent from mid-

May to mid-September 2020 in custody prior to his felony drug indictment.” (Id. at 8). The four-

month span of incarceration attributable to the May 15, 2020 arrest is more than sufficient to

establish a loss of liberty for purposes of the fifth element of this claim.

Defendants’ motion is, therefore, denied to the extent it seeks to dismiss Plaintiff’s fourth

claim for relief.

V. Fifth Claim for Relief: Monell Liability

Plaintiff’s fifth claim for relief is brought under Monell against the City. Under Monell and

its progeny, a municipality may be held liable where a plaintiff’s constitutional rights are violated

because of a municipal policy or custom. See Jimenez v. City of New York, No. 18-CV-07273,

2020 WL 1467371, at *3 (S.D.N.Y. Mar. 26, 2020) (“Plaintiff must plead allegations that ‘the

government body itself subjects a person to a deprivation of rights or causes a person to be

subjected to such deprivation.’” (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis

in original)). “[T]o prevail on a claim against a municipality under section 1983 based on acts of

a public official, a plaintiff is required to prove: (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.” Triano v. Town of Harrison, New York, 895 F. Supp.

2d 526, 531 (S.D.N.Y. 2012) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)).

Such a claim “cannot lie in the absence of an underlying constitutional violation.” Galgano v. Cty.

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)).

Plaintiff’s Monell claim fails because the Amended Complaint lacks facts supporting the

existence of a municipal policy or practice. Plaintiff only alleges facts relating to his own claim.

See, e.g., Smith v. Westchester Cty., 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”). That Plaintiff couches the allegations about his own experience as having

happened to multiple people does not save his claim. Such boilerplate allegations, without more,

are insufficient to support a Monell claim. Williams v. Lohard, No. 20-CV-10571, 2022 WL

269164 (S.D.N.Y. Jan. 28, 2022).5

Plaintiff’s fifth claim for relief is, therefore, dismissed.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

Plaintiff’s fifth claim for relief is DISMISSED with prejudice. As Plaintiff’s fifth claim for relief

was the only claim raised against the City, the City is dismissed as a Defendant in this case with

prejudice.

5 Because of the procedural posture discussed supra, Plaintiff’s Monell claim was first raised in the

Amended Complaint and, therefore, could not have been addressed in Defendants’ opening memorandum

of law for this motion. Defendants, instead, addressed the Monell claim only in their reply. Although

Plaintiff did not respond to those arguments, because of the deficiencies identified supra, no response would

save the claim. Moreover, as Plaintiff is represented by counsel, he reasonably could have requested a sur-

reply on Defendants’ Monell arguments.

The Clerk of the Court is respectfully directed to terminate the motion sequence pending

at Doc. 24 and terminate the City of Poughkeepsie as a Defendant in this case.

SO ORDERED:

Dated: White Plains, New York

November 29, 2022

PHILIP M. HALPERN

United States District Judge