# Best v. Merchant

> District Court, S.D. New York · December 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10347204

## Case

- **Court:** District Court, S.D. New York
- **Decided:** December 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
DOC #: _________________
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: 12/9/2022
--------------------------------------------------------------- X
:
HILARY A. BEST, :
Plaintiff, :
-against- : 1:21-cv-779-GHW
:
JAMES MERCHANT, New York City Correction : MEMORANDUM OPINION &
Officer, Shield #8237, et. al., : ORDER
:
Defendants. :
--------------------------------------------------------------- X

GREGORY H. WOODS, United States District Judge:

I. INTRODUCTION
Plaintiff Hilary Best alleges that, while he was incarcerated on Rikers Island in May 2012,
Defendant New York City Department of Correction Officer James Merchant allowed several
inmates to assault him in the common area. Out of desperation to prevent the assault, and hoping
that a response team would be summoned, Mr. Best threw warm soup onto Officer Merchant.
Though the fight was stopped, Officer Merchant responded by processing an infraction against Mr.
Best—which was subsequently nullified—and then by initiating a criminal proceeding. In August
2012, Defendant Investigator Benjamin Fontanez arrested Mr. Best for assault in the third degree
and harassment in the second degree. Mr. Best’s criminal case was dismissed in October 2018.
Plaintiff, proceeding pro se, brings this case under 42 U.S.C. § 1983 for false arrest, false
imprisonment, and malicious prosecution against Defendants Merchant and Fontanez (together, the
“Individual Defendants”), and against the City of New York for municipal liability. For the
following reasons, the Court grants Defendants’ motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) as to the claims against Defendant Fontanez and the City of New York, but
denies Defendants’ motion as to Plaintiff’s malicious prosecution claim against Defendant
Merchant.
II. BACKGROUND1
On or about May 19, 2012, while Plaintiff was incarcerated on Rikers Island, Plaintiff alleges
that Defendant Merchant stood by as a group of inmates assaulted Plaintiff in the common area of
Plaintiff’s housing unit. Dkt. No. 58 (“SAC”) at 4. In desperation, Plaintiff threw warm soup on
Merchant, hoping that action would trigger a response team to remove Plaintiff from the housing
unit. Id. The plan worked, and Plaintiff was removed. Id.

Merchant proceeded to “falsify” a complaint against Plaintiff related to the soup-throwing
incident. Id. Because of that complaint, Plaintiff was subjected to 30 days in “punitive segregation.”
Id. But that punishment that was subsequently nullified in a state-court Article 78 proceeding. Id.
In retaliation for the nullification, Plaintiff alleges that Merchant proceeded to “falsify a criminal
complaint against” him. Id. That complaint “failed to mention that the soup was thrown on
[Merchant] in response to [Merchant’s] malfeasance in failing to take appropriate action to secure
Plaintiff’s safety and wellbeing” at Rikers. Dkt. No. 78 (“Pl’s Opp.”) ¶ 7. Defendant Fontanez then
arrested Plaintiff pursuant to that criminal complaint, and Plaintiff was subsequently detained on
Rikers Island for several additional months. SAC at 4. Plaintiff contends that the charges in the
complaint were not supported by any evidence and that Officer Merchant never verified the
complaint under oath as required by law; as a result, he alleges, the criminal court never had
jurisdiction over him pursuant to the criminal complaint. Id. at 5.

Though “[e]very trick in the book was attempted” to convict Plaintiff of the criminal charge,
the Bronx County Criminal Court ordered Defendant New York City Department of Corrections

1 The facts are drawn primarily from Plaintiff’s Second Amended Complaint (“SAC”). Dkt. No. 58. Some allegations
are also drawn from Plaintiff’s “pro se opposition to the motion to dismiss,” Dkt. No. 78, “which we may consider in
resolving this” motion. Williams v. Corr. Officer Priatno, 829 F.3d 118, 120 n.1 (2d Cir. 2016). For this motion, the Court
must accept as true the facts alleged in the amended complaint. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2d Cir. 2002). But “the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
(the “DOC”) to release Plaintiff on his own recognizance on or about November 28, 2012. Id. at 4.
But the DOC “defied the release order” and detained Plaintiff until December 4, 2012. Id. At that
time, Plaintiff was taken from Rikers Island by Defendants Jane and John Does, who transferred
Plaintiff to Creedmoor Psychiatric Center pursuant to what Plaintiff labels a “fake transfer order.”
Id. At Creedmoor, Plaintiff was detained for three additional months until he was able to obtain a
release by court order. Id. at 4–5.

The criminal complaint against Plaintiff was dismissed on October 2, 2018. Id. at 5; see Dkt.
No. 65 Ex. B (dismissal order).2 Plaintiff filed his first complaint in this case on January 28, 2021.
Dkt. No. 2. He amended that complaint on May 7, 2021, Dkt. No. 11, and did so again on June 16,
2022, Dkt. No. 58. Defendants filed a motion to dismiss Plaintiff’s SAC under Federal Rule of Civil
Procedure 12(b)(6) on July 29, 2022. Dkt. No. 64; Dkt. No. 67 (“Defs’ Mem.”). They construe
Plaintiff’s complaint to raise false arrest, false imprisonment, and malicious prosecution claims. See
generally Defs’ Mem; see also Pl’s Opp. ¶ 22 (clarifying that Plaintiff is bringing no state-law claims).
Defendants argue that Plaintiff’s false arrest and false imprisonment claims are barred by the
applicable statutes of limitations. Id. at 5–7, 12. They also contend that Plaintiff’s false arrest and
malicious prosecution claims should be dismissed because there was sufficient probable cause for
Plaintiff’s arrest, id. at 7–10, 17–18, and that Defendants Merchant and Fontanez are entitled to
qualified immunity with respect to those claims in any event, id. at 10–12, 18–19. Defendants

additionally argue that the DOC should be dismissed from the action as a non-suable entity. Id. at
20–21.

2 The Court takes judicial notice of the statements within this Dismissal Order, Dkt. No. 65 Ex. B, to establish the fact
of the dismissal. See Fed. R. Evid. 201 (b) (courts may judicially notice facts not subject to reasonable dispute because
their “accuracy cannot reasonably be questioned”); In re Olympia Off. LLC, 585 B.R. 661, 667 (E.D.N.Y. 2018) (“[A]
court may take judicial notice of a document filed in another court to establish the fact of such a document, but cannot
take judicial notice of the factual findings of another court [for their truth].”).
Plaintiff opposed Defendants’ motion to dismiss on October 25, 2022. See generally Pl’s Opp.
He argued that his claims are timely and that no probable cause existed for his prosecution by
Merchant and Fontanez. See id. ¶¶ 8, 15. Defendants filed their Reply on November 9, 2022. Dkt.
No. 81 (“Reply”).
III. LEGAL STANDARD

“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)). For a claim to be plausible, the
plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that
the defendant[s] [are] liable for the misconduct alleged.” Id. A complaint that offers “labels and
conclusions” or “naked assertion[s]” without “further factual enhancement” will not survive a
motion to dismiss. Id. at 678 (citing Twombly, 550 U.S. at 555).
Because Mr. Best is proceeding pro se, the Court must construe his submissions liberally and
interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006)); see also Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014). “The rule favoring liberal construction
of pro se submissions,” moreover, “is especially applicable to civil rights claims.” Williams v. Corr.
Officer Priatno, 829 F.3d 118, 120 (2d Cir. 2016) (quoting Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir.

2003)). That liberal standard notwithstanding, “pro se litigants generally are required to inform
themselves regarding procedural rules and to comply with them.” Caidor v. Onondaga Cnty., 517 F.3d
601, 605 (2d Cir. 2008) (quoting Edwards v. INS, 59 F.3d 5, 8 (2d Cir. 1995)); see also Rahman v. Schriro,
22 F. Supp. 3d 305, 310 (S.D.N.Y. 2014) (“[D]ismissal of a pro se complaint is nevertheless
appropriate where a plaintiff has clearly failed to meet minimum pleading requirements.”) (citing
Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).
IV. DISCUSSION

a. Mr. Best’s False Arrest and False Imprisonment Claims Are Untimely

Mr. Best’s false arrest and false imprisonment claims both must be dismissed because neither
was brought within the applicable statute of limitations. Plaintiff brings his claims under 42 U.S.C.
§ 1983, see Pl’s Opp. ¶ 20, which “provides a cause of action to individuals who have been deprived
by government officials acting under color of law ‘of any rights, privileges, or immunities secured by
the Constitution.’” Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002) (quoting 42 U.S.C § 1983).
Because section 1983 does not have its own statute of limitations, “courts apply the statute of
limitations for personal injury actions under state law.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir.
2013). As Mr. Best’s alleged claims arose in New York, the statute of limitations for his claims is
three years. See Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009); Pearl v. City of Long Beach,
296 F.3d 76, 79 (2d Cir. 2002).
The statute of limitations for both false imprisonment and false arrest claims begins to run
when the alleged victim is held pursuant to legal process. See Wallace v. Kato, 549 U.S. 384, 397
(2007) (finding that limitations “begin to run against an action for false imprisonment when the
alleged false imprisonment ends” and that “a false imprisonment ends once the victim becomes held
pursuant to [legal] process—when, for example, he is bound over by a magistrate or arraigned on
charges”); Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (“A cause of action for false arrest accrues
at the time of detention.”).3 Mr. Best was arrested for the offenses related his soup-throwing on
August 21, 2012. Defs’ Mem at 6. And legal proceedings concerning that arrest commenced shortly

3 Plaintiff disputes this rule, arguing that because his arrest and arraignment were not themselves lawful, his false arrest
and imprisonment claims did not toll until his prior case’s dismissal on October 2, 2018. Pl’s Opp. ¶ 15. That is
inaccurate: The Supreme Court made clear in Wallace that false imprisonment and false arrest are characterized by
“detention without legal process” at all, whereas unlawful detention of the sort that Mr. Best alleges “forms part of the
damages of the ‘entirely distinct’ tort of malicious prosecution.” 549 U.S. at 389–90 (emphasis in original) (quoting W.
Keeton et al., Prosser & Keeton on Law of Torts § 119, 885–86 (5th ed. 1984)); see also Watson, 865 F.3d at 130–31
(describing this distinction). For that reason, Mr. Best’s malicious prosecution claim is not time-barred—but his false
arrest and false imprisonment claims are.
thereafter.4 Accordingly, the statute of limitations for Mr. Best’s false imprisonment and false arrest
claims expired on or around August 2015. He did not, however, bring this action including his false
imprisonment and false arrest claims until January 28, 2021—over five years after the statutes of
limitations for those claims had run. See Dkt. No. 2. Those claims are accordingly untimely.
Nor is Mr. Best entitled to equitable tolling of the statute of limitations.5 “Under the
doctrine of equitable tolling, a court may, under compelling circumstances, make narrow exceptions

to the statute of limitations in order to prevent inequity.” In re U.S. Lines, Inc., 318 F.3d 432, 436 (2d
Cir. 2003) (internal citation omitted). “Generally, a litigant seeking equitable tolling bears the burden
of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Smalls v. Collins, 10 F.4th 117, 145 (2d Cir. 2021)
(quoting Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017)). And while pro se filings are held to
more lenient standards, absent additional justification for equitable tolling, such tolling cannot “be
premised on [a plaintiff’s] lack of education, pro se status, or ignorance of the right to bring a claim.”
Watson, 865 F.3d at 133.

4 Defendants do not state the day that Mr. Best was arraigned. But many courts in this circuit have, in analogous
circumstances, “presume[d] that the date of accrual occurs within several days of the arrest.” Sherman v. Holecek, No.
3:16-cv-1342, 2018 WL 4119119, at *4 (N.D.N.Y. Aug. 29, 2018) (citing Walker v. Vill. of Freeport, No. 15-cv-4646, 2016
WL 4133137, at *11 (E.D.N.Y. June 13, 2016); Forbes v. City of New York, No. 15-cv-3458, 2016 WL 6269602, at *3
(S.D.N.Y. Oct. 26, 2016); Stewart v. City of New York, No. 06-cv-15490, 2008 WL 1699797, at *6 n.4 (S.D.N.Y. Apr. 9,
2008)). The Court, moreover, does not read Plaintiff’s complaint or opposition to assert that no arraignment occurred;
rather, the only reasonable inference that can be drawn from the record is that there was an arraignment but that
Plaintiff believes that it was unlawful. See Pl’s Opp. ¶ 15 (admitting that “a false arrest claim tolls at the time of process
or arraignment,” but disputing that there any lawful arraignment occurred); see also Dkt. No. 83 (stressing his position that
“legal process,” [n]ot illegal process,” starts the statute of limitations for section 1983 claims). Mr. Best’s complaint also
makes clear that other criminal proceedings related to this arrest were occurring in late 2012 and that the legal process
was underway in that case by that time, thereby initiating the statute of limitations. See SAC at 4 (describing legal
proceedings in November and December 2012 concerning this charge). Accordingly, the Court can safely conclude that
the legal process connected to Mr. Best’s prior criminal proceeding started well before January 2018, the earliest date
that would make Plaintiff’s false arrest and false imprisonment claims in this case timely.
5 Plaintiff does not directly make an equitable tolling argument. In light of Plaintiff’s pro se status, however, the Court
will nonetheless analyze the question of equitable tolling given the duty to construe Plaintiff’s submissions liberally and
interpret them “to raise the strongest arguments that they suggest.” Triestman, 470 F.3d at 474.
Here, even construed liberally and in the light most favorable to Mr. Best, the case’s record
does not reflect that he has been diligently pursuing his rights or that any extraordinary
circumstances caused him to assert his claims after the applicable statute of limitations expired. He
mentions no attempt to file these claims within the applicable limitations period, nor does he
mention obstacles that would have prevented such attempts. See generally SAC; Pl’s Opp. So Mr.
Best is not entitled to equitable tolling, he did not file his false arrest and false imprisonment claims

within the governing statutes of limitations, and those claims will be dismissed.
b. Plaintiff Has Stated a Plausible Malicious Prosecution Claim Against Officer
Merchant But Not Against Offer Fontanez

i. Legal Standard

“To state a 42 U.S.C. § 1983 claim for malicious prosecution, a plaintiff must plead both ‘a
violation of his rights under the Fourth Amendment’ and ‘the elements of a malicious prosecution
claim under state law.’” Dettelis v. Sharbaugh, 919 F.3d 161, 163 (2d Cir. 2019) (quoting Manganiello v.
City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010)). “Under New York law, a malicious-
prosecution claim requires a plaintiff to [plead] ‘(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 the
defendant’s actions.’” Id. at 163–64 (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)).
“[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution.” Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020) (quoting Stansbury v.
Wertman, 721 F.3d 84, 94–95 (2d Cir. 2013)). “[P]robable cause to arrest exists when the officers
have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that the person to be arrested has committed
or is committing a crime.” Dufort v. City of New York, 874 F.3d 338, 348 (2d Cir. 2017) (internal
quotation omitted). The test for probable cause is an objective one and “depends upon the
reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007).
“Once officers possess facts sufficient to establish probable cause, they are neither required
nor allowed to sit as prosecutor, judge or jury,” as “[t]heir function is to apprehend those suspected
of wrongdoing, and not to finally determine guilt through a weighing of the evidence.” Krause v.
Bennett, 887 F.2d 362, 372 (2d Cir. 1989). “It is therefore of no consequence that a more thorough

or more probing investigation might have cast doubt upon the situation.” Fabrikant v. French, 691
F.3d 193, 214–15 (2d Cir. 2012) (quoting Krause, 887 at 371); accord Panetta v. Crowley, 460 F.3d 388,
395-96 (2d Cir. 2006) (“[T]he fact that an innocent explanation may be consistent with the facts
alleged . . . does not negate probable cause, and an officer’s failure to investigate an arrestee’s
protestations of innocence generally does not vitiate probable cause.”). An arresting officer thus
does not have a “duty . . . to investigate exculpatory defenses offered by the person being arrested or
to assess the credibility of unverified claims of justification before making an arrest.” Jocks v.
Tavernier, 316 F.3d 128, 135-36 (2d Cir. 2003).
At the same time, however, the Second Circuit has recognized that “the failure to make a
further inquiry when a reasonable person would have done so may be evidence of lack of probable
cause.” Manganiello, 612 F.3d at 161 (internal quotation marks omitted). Relatedly, “a police officer’s
awareness of the facts supporting a defense can eliminate probable cause,” and an officer may not

“deliberately disregard facts known to him which establish justification.” Washington v. Napolitano, 29
F.4th 93, 107 (2d Cir. 2022) (quoting Jocks, 316 F.3d at 135–36); see also Panetta, 460 F.3d at 395
(“[A]n officer may not disregard plainly exculpatory evidence.”).
“[E]ven where even when probable cause is lacking, a police officer is entitled to qualified
immunity if ‘(1) her conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known, or (2) it was objectively reasonable for her to believe
that her actions were lawful at the time of the challenged act.’” Cornelio v. Connecticut, 32 F.4th 160,
179 (2d Cir. 2022) (quoting Betts v. Shearman, 751 F.3d 78, 82-83 (2d Cir. 2014)). “In the context of a
malicious prosecution claim, an officer’s decision to initiate a prosecution ‘is objectively reasonable
. . . if officers of reasonable competence could disagree on whether the probable cause test was
met.’” Id. (quoting Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)).
But where defendants choose “to press their qualified immunity defense at the pleadings

stage,” they “must face the ‘more stringent standard applicable to this procedural route.’” Sabir v.
Williams, 52 F.4th 51, 63 (2d Cir. 2022) (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)).
As the Second Circuit has put it, when raising qualified immunity as a defense to support a motion
to dismiss,
the facts supporting the defense [must] appear on the face of the complaint,”
[McKenna, 386 F.3d at 436], or in its attachments and documents incorporated by
reference, DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). On a
motion to dismiss, the plaintiffs are “entitled to all reasonable inferences from the
facts alleged, not only those that support [their] claim, but also those that defeat the
immunity defense.” McKenna, 386 F.3d at 436.

For this reason, we have explained that “advancing qualified immunity as grounds
for a motion to dismiss is almost always a procedural mismatch.” Chamberlain [v. City
of White Plains], 960 F.3d [100,] 111 [(2d Cir. 2020)]. Although it is possible for a
qualified immunity defense to succeed on a motion to dismiss, see Liberian Cmty. Ass’n
of Connecticut v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020), such a defense “faces a
formidable hurdle . . . and is usually not successful,” Field Day, LLC v. County of
Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006) (internal quotation marks omitted); see
also Chamberlain, 960 F.3d at 110 (“[A]s a general rule, the defense of qualified
immunity cannot support the grant of a [Rule] 12(b)(6) motion.”).

Sabir, 52 F.4th at 63–64 (all alterations except for second, fourth, fifth, and sixth in original).

Finally, actual “malice may be shown by proving that the prosecution complained of was
undertaken from improper or wrongful motives, or in reckless disregard of the rights of the
plaintiff.” Manganiello, 612 F.3d at 163 (quoting Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996)).
Lack of probable cause and actual malice are related because a “lack of probable cause generally
creates an inference of malice.” Id. (quoting Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003)).
ii. Application

Plaintiff has plausibly stated each of the requisite elements of a malicious prosecution claim
against Officer Merchant, and so his malicious prosecution claim may proceed against him. But
because the facts pleaded in Plaintiff’s complaint and opposition indicate that Defendant Fontanez
had probable cause to arrest Plaintiff, Plaintiff’s malicious prosecution claim against Officer
Fontanez will be dismissed.
To state malicious prosecution claim based on events in New York under section 1983, a
plaintiff must plead (1) a violation of his Fourth Amendment rights, (2) the initiation or continuation
of a criminal proceeding against him, (3) the termination of that proceeding in his favor, (4) lack of
probable cause for commencing the proceeding, and (5) actual malice as a motivation for the
defendants’ actions. Dettelis, 919 F.3d at 163–64. Plaintiff has sufficiently (and undisputedly)
pleaded several of these necessary elements against both Defendants Fontanez and Merchant.
Specifically, he has (1) pleaded the initiation of a criminal proceeding, (2) that terminated in his
favor, and (3) pursuant to which his Fourth Amendment rights were violated. See SAC at 4 (alleging
that Defendants Merchant and Fontanez initiated a criminal proceeding against him that led to his
detention for several months and further detention later, but that the criminal proceeding was later
dismissed); see also Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022) (“To demonstrate a favorable
termination of a criminal prosecution for purposes of the Fourth Amendment claim under § 1983

for malicious prosecution, a plaintiff need only show that his prosecution ended without a
conviction.”).
That leaves only the issues of probable cause and actual malice. Both officers argue that
they had at least arguable probable cause to commence the underlying criminal proceeding against
Plaintiff, and that Plaintiff has not satisfactorily pleaded actual malice. Defs’ Mem. at 17–19. The
Court disagrees with Defendant Merchant but agrees with Defendant Fontanez; accordingly, the
malicious prosecution claim may proceed as to the former but not as to the latter.
1. Defendant Merchant

Plaintiff has sufficiently pleaded that Defendant Merchant lacked probable cause and acted
with actual malice when he initiated criminal proceedings against Plaintiff. “[P]robable cause to
arrest exists when the officers have knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime.” Dufort, 874 F.3d at 348. Here, as
pleaded, Defendant Merchant “attempted to stand by and allow several inmates to group assault
[Plaintiff]” in a housing common area on Rikers. SAC at 4. In “desperation to prevent the assault,”
Plaintiff threw warm soup on Defendant Merchant. Id. Some time later, Defendant Merchant
“falsified a criminal complaint” against Plaintiff that described the soup throwing, id., but “failed to
mention that the soup was thrown on him in response to his malfeasance in failing to take
appropriate action to secure Plaintiff’s safety and wellbeing,” Pl’s Opp. ¶ 7.6
From these facts, Plaintiff has plausibly alleged that Defendant Merchant lacked probable
cause to file the criminal complaint against him. Defendants rightly note that “so long as there was
probable cause for any offense, Plaintiff’s . . . claim is foreclosed,” regardless of whether Plaintiff
was actually charged with or arrested for any specific offense. Defs’ Mem. at 9–10 (citing Devenpeck

v. Alford, 543 U.S. 146, 153 (2004)). Defendants cite four crimes that Defendants Merchant and
Fontanez could have had probable cause to believe Plaintiff had committed: (1) assault in the third
degree, N.Y. Penal Law § 120.00, (2) harassment in the second degree, id. § 240.26, (3) attempted

6 The filing of a criminal complaint that leads to an arrest and prosecution qualifies as an initiation of a criminal
proceeding for purposes of a malicious prosecution claim. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.
1997); Stampf v. Long Island R. Co., 761 F.3d 192, 198–99 (2d Cir. 2014).
assault in the third degree, id. § 110/120.00, and (4) assaulting an individual while incarcerated in a
correctional facility, id. § 120.05.7
The parties dispute whether Defendant Merchant had probable cause to believe that each
element of any of these offenses was satisfied. Compare, e.g., Defs’ Mem. at 9 (arguing that the act of
throwing soup provided probable cause), with Pl’s Opp. ¶¶ 9–10 (Plaintiff disputing the soup’s
temperature and arguing that he did not have the requisite intent to injure or harass Defendant

Merchant when he threw the soup). But as the complaint is pleaded, the primary problem for
Officer Merchant is not establishing the elements of any offense but rather his failure to consider
applicable defenses. As the Second Circuit has held, “under some circumstances, a police officer’s
awareness of the facts supporting a defense can eliminate probable cause”—specifically, awareness
of facts supporting “exculpatory defense[s]” that “negate the existence of a crime.” Jocks, 316 F.3d
at 135.
Here, according to Plaintiff, Defendant Merchant intentionally stood by watching Plaintiff
get assaulted by other inmates when, out of “desperation” to get Defendant Merchant to do
something, Plaintiff threw warm soup on him. SAC at 4. If this is true—as, at this stage, the Court
must assume—then Plaintiff’s decision to throw the soup was supported by the exculpatory defense
of justification. See N.Y. Penal Law § 35.05 (“[C]onduct which would otherwise constitute an
offense is justifiable and not criminal when . . . [s]uch conduct is necessary as an emergency measure

to avoid an imminent public or private injury which is about to occur by reason of a situation
occasioned or developed through no fault of the actor, and which is of such gravity that, according
to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such
injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute
defining the offense in issue.”); see Jocks, 316 F.3d at 135 (“Justification, including both emergency

7 Plaintiff was charged with and arrested for purported commission of the first two of these offenses. See Pl’s Opp. at 9.
measures and self-defense, is an exculpatory defense.”). Defendant Merchant was not entitled to
ignore the facts in support of that defense that Plaintiff alleges he was aware of—namely, that
Plaintiff was being beaten while Officer Merchant intentionally stood by. SAC at 4; see Panetta, 460
F.3d at 395 (“[A]n officer may not disregard plainly exculpatory evidence.”). So Plaintiff has pleaded
that Defendant Merchant did not have probable cause to charge him with any crime.
Defendant Merchant’s invocation of qualified immunity does not alter this conclusion. An

officer is entitled to qualified immunity if “it was objectively reasonable for [him] to believe that her
actions were lawful at the time of the challenged act.” Cornelio, 32 F.4th at 179 (internal citation
omitted). “In the context of a malicious prosecution claim, an officer’s decision to initiate a
prosecution ‘is objectively reasonable . . . if officers of reasonable competence could disagree on
whether the probable cause test was met.’” Id. (quoting Jenkins, 478 F.3d at 87). But Plaintiff has
plausibly pleaded that Defendant Merchant has failed to meet even that reduced probable cause
standard. That is because on a motion to dismiss, a plaintiff is “entitled to all reasonable inferences
from the facts alleged, not only those that support [his] claim, but also those that defeat the
[qualified] immunity defense.” Sabir, 52 F.4th at 63 (quoting McKenna, 386 F.3d at 436). As pleaded,
and making inferences in his favor, Plaintiff has alleged that Defendant Merchant knew that Plaintiff
was being beaten, made the conscious choice not to intervene, and that Plaintiff had no other option
to get intervention other than throwing soup on Defendant Merchant. See SAC at 4. On those

facts, no reasonable officer could conclude that Plaintiff’s actions were not justified, and so no
reasonable officer could conclude that there was probable cause to charge Plaintiff with a crime. See
N.Y. Penal Law § 35.05. And as Defendant Merchant cannot submit competing facts at this stage
of the proceedings, his qualified immunity defense cannot succeed. See also Chamberlain, 960 F.3d at
111 (“[A]dvancing qualified immunity as grounds for a motion to dismiss is almost always a
procedural mismatch.”).
Finally, for substantially the same reasons that Plaintiff has plausibly pleaded that Defendant
Merchant lacked probable cause to initiate proceedings against him, Plaintiff has plausibly pleaded
actual malice. As the Second Circuit has noted, a “lack of probable cause generally creates an
inference of malice.” Manganiello, 612 F.3d at 163 (internal citation omitted). Plaintiff has directly
alleged, moreover, that Defendant Merchant initiated criminal proceedings against him not because
he had probable cause to believe that a crime had been committed, but rather as retaliation after

Plaintiff succeeded in nullifying an allegedly falsified infraction report concerning the soup-throwing
incident. SAC at 4. Again taking Plaintiff’s complaint as true, Plaintiff has thus pleaded that “the
prosecution complained of was undertaken from improper and wrongful motives.” Manganiello, 612
F.3d at 163. Accordingly, Plaintiff has properly stated all elements of a malicious prosecution claim
against Defendant Merchant, and his claim may proceed against that defendant.
2. Defendant Fontanez

By contrast, Plaintiff has failed to plausibly state that Defendant Fontanez lacked probable
cause when he arrested Plaintiff. In making probable cause determinations, police officers are
“entitled to rely on the allegations of fellow police officers.” Martinez v. Simonetti, 202 F.3d 625, 634
(2d Cir. 2000); see also Dufort, 874 F.3d at 348. Here, Plaintiff alleges Defendant Merchant’s “falsified
. . . criminal complaint” caused Defendant Fontanez to arrest him. SAC at 4; see also Pl’s Opp. ¶ 14
(alleging that “Defendant Fontanez arrested Plaintiff . . . solely upon the allegations of his co-
worker, Defendant Merchant.”). And Defendant Merchant’s complaint, on Plaintiff’s telling,
described Plaintiff as having thrown soup on Defendant Merchant but “failed to mention that the
soup was thrown on him in response to his malfeasance in failing to take appropriate action to
secure Plaintiff’s safety and wellbeing.” Pl’s Opp. ¶ 7; see SAC at 4 (Plaintiff alleging that he only
threw the soup to try to get Defendant Merchant’s attention while Merchant stood by and allowed
inmates to assault Plaintiff).
In other words, as pleaded, Plaintiff’s complaint alleges that Defendant Fontanez knew that
Plaintiff had intentionally thrown soup on Defendant Merchant but did not know about a possible
justification defense. On those facts, a reasonable officer would have had probable cause to arrest
Plaintiff for the commission of several crimes. See, e.g., N.Y. Penal Law § 120.00 (assault in the third
degree, under which a person is guilty when “(1) with intent to cause physical injury to another
person, he causes such injury to such person . . .”); id. § 240.26 (harassment in the second degree,

under which a person is guilty “when, with intent to harass, annoy, or alarm another person: (1) he
or she strikes, shoves, kicks or otherwise subjects such other person to physical contact . . .”).
Once Defendant Fontanez had probable cause based on a source on which he was entitled
to rely—Defendant Merchant’s allegations—he was not required to further investigate the
complaint. “When determining whether probable cause exists courts must consider those facts
available to the officer at the time of the arrest and immediately before it, as probable cause does not
require absolute certainty.” Fabrikant, 691 F.3d at 214 (quoting Panetta, 460 F.3d at 395). And a
valid probable cause determination based on facts known to the officer is not invalidated because
“more thorough or more probing investigation might have cast doubt upon the situation.” Id. at
214–15 (quoting Krause, 887 F.2d at 371). Nor can the Court presume, pursuant to the “collective
knowledge doctrine,” that facts known to Defendant Merchant were known to Defendant Fontanez.
That doctrine, which presumes that facts probative of probable cause known by one officer are

known by all, “has traditionally been applied to assist officers in establishing probable cause” and
“cannot be used to impute to an officer facts known to some [other] members of the police force
which exonerate an arrestee.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (emphasis in
original and internal quotation marks omitted). And as discussed, Plaintiff’s pleadings do not allege
that Defendant Merchant told Defendant Fontanez about the exonerating circumstances in which
Plaintiff threw the soup—instead, they appear to allege the opposite. See Pl’s Opp. ¶ 14.
“[T]he existence of probable cause is a complete defense to a claim of malicious
prosecution.” Frost, 980 F.3d at 242 (quoting Stansbury, 721 F.3d at 94–95). Because Defendant
Fontanez had probable cause to arrest Plaintiff, Plaintiff’s malicious prosecution claim may not
proceed against as against Defendant Fontanez.
c. Plaintiff’s Other Allegations are Insufficiently Pleaded

Plaintiff has also failed to state a claim against any city entity. His complaint lists the “New
York City Department of Correction” as a named defendant. SAC at 1. But the DOC is a non-
suable entity. See Wray v. City of New York, 340 F. Supp. 2d 291, 303 (E.D.N.Y. 2004) (“All actions
and proceedings for the recovery of penalties for the violation of any law shall be brought in the
name of the city of New York and not in that of any agency, except where otherwise provided by
law” (quoting N.Y.C. Charter § 396)). The Court accordingly grants Plaintiff’s request to substitute
the City of New York for the DOC as a defendant. Pl’s Opp. ¶ 30; see, e.g., Bey v. Adams, No. 22-cv-
2593, 2022 WL 1091620, at *2 (S.D.N.Y. Apr. 8, 2022) (doing the same); Fed. R. Civ. P. 21.
But Plaintiff has failed to state any plausible claim against the City. Under 42 U.S.C. § 1983,
municipalities are “not vicariously liable . . . for their employees’ actions.” Connick v. Thompson, 563
U.S. 51, 60 (2011). Plaintiffs seeking to hold a municipality liable under § 1983 must plead “(1) an
official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional
right.” Rodriguez v. Winski, 973 F. Supp. 2d 411, 425 (S.D.N.Y. 2013) (quoting Wray v. City of New

York, 490 F.3d 189, 195 (2d Cir. 2007)); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91
(1978).
Here, Plaintiff merely alleges that the DOC “practices an unwritten policy of allowing its
employees to commit and facilitate unlawful acts against detainees, such as assault and homicide,
including illegal transfers . . . to state mental facilities.” Pl’s Opp. ¶ 23. These boilerplate,
conclusory allegations, without any factual enhancement, do not satisfy the standard for pleading a
municipal liability claim. See, e.g., Cuevas v. City of New York, No. 07-cv-4169, 2009 WL 4773033, at *3
(“Plaintiff’s boilerplate allegations against the City of New York satisfy neither the elements [for
municipal liability], nor the pleading requirements set forth in Iqbal.”). Accordingly, Plaintiff’s
complaint against the City of New York is dismissed.
V. LEAVE TO AMEND
“It is the usual practice upon granting a motion to dismiss to allow leave to replead.” Cortec

Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The
court should freely give leave [to amend] when justice so requires.”). However, leave to amend may
be denied “for good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (internal citation
omitted).
Here, granting Plaintiff leave to amend his false arrest and false imprisonment claims would
be futile because the three-year statute of limitations on those claims has run. See, e.g., Ellis v.
Wilkinson, 81 F. Supp. 3d 229, 239 (E.D.N.Y. 2015) (“Amendment would likely be futile if, for
example, the claims the plaintiff sought to add would be barred by the applicable statute of
limitations.” (quoting Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000))); Vargas v. Ciarletta, No. 09-
cv-8981, 2010 WL 4447636, at *1 (S.D.N.Y. Nov. 4, 2010) (“[I]f the claims the plaintiff seeks to add
would be barred by the applicable statute of limitations, amendment would be futile and leave to

amend should be denied.”). Accordingly, Plaintiff may not amend his complaint to include those
claims.
The Court grants Plaintiff leave, however, to replead (a) his malicious prosecution claim
against Defendant Fontanez and (b) his municipal liability claim against the City of New York. The
Court cannot conclude that Plaintiff could not amend those claims in a manner sufficient to
withstand a motion to dismiss. See Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir.
2002) (noting that amendment is futile if “the proposed claim could not withstand a motion to
dismiss under Fed. R. Civ. P. 12(b)(6)”). And while Plaintiff has twice amended his claim before, he
has not yet had the opportunity to amend the complaint with the benefit of a ruling from the Court.
“Without the benefit of a ruling, many a plaintiff will not see the necessity of amendment or be ina
position to weigh the practicality and possible means of curing specific deficiencies.” Loreley Fin.
(Jersey) No. 3 Lid. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015).
Should Plaintiff choose to file an amended complaint, he must do so no later than twenty-
one days from the date of this order. Plaintiffis advised that any amended complaint must comply
with the Court’s guidance in this section of the order.
VI. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART.
Plaintiff is granted leave to amend his complaint consistent with the Court’s instructions no later
than twenty-one days from the date of this order.
The Clerk of Court is directed to amend the caption of this action to substitute the New
York City Department of Correction with the City of New York, to terminate the motion pending at
Dkt. No. 64, and to mail a copy of this order to Plaintiff.
SO ORDERED.
Dated: December 9, 2022
New York, New York KGS H. WOODS
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10347204. Public record. Not legal advice.