# Hanniford v. City of Poughkeepsie

> District Court, S.D. New York · November 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10346357

## Case

- **Court:** District Court, S.D. New York
- **Decided:** November 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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since withdrawn that claim.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10346357. Public record. Not legal advice.