# Harris v. McAlistor

> District Court, W.D. New York · September 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10366458

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10366458

## How later opinions describe it (automated extraction)

- noting that the Fourteenth Amendment incorporates the First Amendment’s protections

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSHUA G. HARRIS,

Plaintiff,
22-CV-75-LJV-JJM
v. DECISION & ORDER

TODD MCALISTOR, et al.,

Defendants.

On January 25, 2022, the pro se plaintiff, Joshua G. Harris, commenced this
action against the City of Buffalo; Erie County; several Buffalo, Erie County, and New
York State government employees; and a private security company and three of its
employees. Docket Item 2. A few months later, Harris filed an amended complaint.1
Docket Item 3. Harris’s amended complaint details a series of encounters with state
and local law enforcement, government officials, and private security guards over four
months during the spring and summer of 2019. See id.
As relevant here, Harris brings a number of constitutional claims related to two
incidents that took place in government buildings during July 2019. Both incidents
unfolded in similar ways: Harris entered a local government building while filming on his
phone; he was asked to stop filming but refused to do so; and he then was forcibly
removed from the building (first incident) or was arrested and charged with various
criminal offenses (second incident).

1 On April 19, 2022, this Court granted Harris’s motion to proceed in forma
pauperis and screened the amended complaint under 28 U.S.C. § 1915(e)(2). Docket
Item 4.
On June 1, 2022, defendants Erie County, Matthew Alabanese, Madonna
Bishop, Ryan Roetzer, and Jason Wahl (the “Erie County defendants”) moved to
dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6). Docket
Item 9. A little less than four months later, defendants Alexander Costa, Dan Deneka,
Rick Hewitt, John McEvoy, Robert Perry, James Schrier, Fred Schumacher,2 and Dan

Stark (the “New York State defendants”) also moved to dismiss the amended complaint
under Rule 12(b)(6). Docket Item 26. Harris responded to both motions, Docket Items
16 and 29, but neither the Erie County defendants nor the New York State defendants
replied, and the time to do so has expired. See Docket Items 11 and 27.
For the reasons stated below, the Erie County defendants’ and the New York
State defendants’ motions to dismiss are granted in part and denied in part. And within
45 days of the date of this order, Harris may amend his complaint to correct the
deficiencies noted below.

FACTUAL BACKGROUND3
I. JULY 8 INCIDENT

On July 8, 2019, Harris visited the Erie County office of the New York State
Department of Motor Vehicles (“Erie County DMV”) to get “assistance regarding the

2 The New York State defendants spell Schumacher’s name “Shumacher” in their
papers. See, e.g., Docket Item 26 at 1. The Court uses Harris’s spelling in this
decision.
3 Unless otherwise noted, the following facts are taken from the amended
complaint, Docket Item 3, and the charging instruments submitted by the defendants,
Docket Item 26-2. See, e.g., Boykins v. Lopez, 2022 WL 2307684, at *4 (S.D.N.Y. June
27, 2022) (“[C]ourts within the Second Circuit routinely take judicial notice of criminal
complaints, indictments, and other charging instruments.”). On a motion to dismiss
under Rule 12(b)(6), the court “accept[s] all factual allegations as true and draw[s] all
whereabouts of his record.” Docket Item 3 at ¶ 120. “The clerk couldn’t answer
[Harris’s] questions regarding the matter,” so “she then went to get her supervisor,”
Bishop. Id. at ¶ 121. “Bishop stood off in[] the distance,” so Harris “asked [her] to come
closer so [that he] could hear her.”4 Id. at ¶ 122. But Bishop told Harris that if he was

“going to record [her] then [they were] not going to talk” because Bishop did not “want to
be on Facebook” and did not “want to be audited or filmed.” Id. When Harris apparently
refused to stop filming, Bishop “called the deputies to remove [him]” from the Erie
County DMV. Id. at ¶ 123.
Wahl and Roetzer, two officers in the Erie County Sheriff’s Department, then
“arrived on [the] scene and huddled with Bishop.” Id. at ¶¶ 10, 124. “Moments later, []
Wahl informed [Harris] that the clerks were not going to take care of him.” Id. at ¶ 125.
When Harris protested that “he was still in need of service,” Wahl again said that the
clerks “are not going to help him” and told Harris “to ‘just stand there.’” Id.
Harris maintained that “he had questions for the clerks.” Id. at ¶ 126. But

“instead of getting the clerks[,] Roetzer proceeded [to] ask what questions [Harris] had

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension
Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).
The New York State defendants also have submitted a “copy of Facebook video
footage of the [July 17] incident,” which Harris apparently posted on Facebook. See
Docket Item 26-2. They say that this video is subject to judicial notice because it is
incorporated by reference in the amended complaint. See Docket Item 26-1 at 2.
Because Harris did not submit any video recordings or specifically cite any video in the
relevant sections of his amended complaint, the Court refers only to Harris’s amended
complaint for the factual background of the July 17 incident. In any event, the Court has
reviewed the video recording submitted by the New York State defendants and it does
not change the analysis below.
4 Unless otherwise noted, all capitalization has been removed from citations to
the amended complaint.
for the clerks.” Id. Harris “responded that it was none of [the officers’] business and
that they . . . were dismissed.” Id. at ¶ 127. Wahl then “informed” Harris “that he ha[d]
already seen [Harris’s] past videos and that he was not going to go away.” Id. at ¶ 128.
And Wahl said that he “was going to escalate the incident” by calling Alabanese,

another Erie County Sheriff’s Department officer, “to the scene.” Id.; see id. at ¶ 10.
Harris “asked [] Roetzer[] what law [] he broke.” Id. at ¶ 129. Roetzer “answered
‘nothing at this point’ or words to that effect.” Id. Harris then asked Roetzer if he “swore
to uphold and defend the Constitution.” Id. at ¶ 130. After Roetzer replied “yes,” Harris
asked Roetzer and Wahl “what the issue was [with] him being there.” Id. At first,
Roetzer said that “there [was] no issue”; he then said that “the issue is that [Harris is]
standing here, filming when they didn’t want [him] here.” Id. at ¶ 131.
Harris asked to “speak to the supervisor.” Id. at ¶ 132. Roetzer told Harris that
“the supervisor didn’t want to speak to [him]” and that “the supervisor” in fact “told
[Roetzer and Wahl] that [Harris]” must either “leave or be placed in [handcuffs].” Id.

Alabanese then “entered the scene” and “immediately asked [] Roetzer and Wahl
if [Harris] had business” at the Erie County DMV. Id. at ¶ 133. Harris “informed
Alabanese that he did.” Id. But Wahl “informed Alabanese that the supervisor” told
Wahl and Roetzer that Harris had to be removed or handcuffed. Id. at ¶ 134.
Alabanese then “gave [Harris] an ultimatum”: “leave by force or be arrested.” Id.
at ¶ 135. “Without a moment[’s] notice,” Alabanese “decided to go ‘hands on’ by
grabbing [Harris] by the shirt and physically shoving [him] through the lobby area
towards the doors.” Id. at ¶ 136. Wahl “assist[ed] Alabanese by opening the doors of
the entrance while Roetzer complacently followed Alabanese as he shoved [Harris]
through the lobby[,] . . . through the doorway, out of the building, and [on to] the
sidewalk.” Id. at ¶ 137.
Alabanese told Harris “not to come back again” to the Erie County DMV. Id. at ¶
138. Alabanese also “locked the entrance” to the Erie County DMV so that Harris could

not reenter the building. Id. at ¶ 139. But Alabanese would “open[] the doors when
other customers needed access” to the Erie County DMV. Id.
II. JULY 17 INCIDENT
About a week after that encounter at the Erie County DMV, Harris went to the
“Erie County Building to file a compl[aint] against the deputies and clerk involved [in] the
[July 8] incident.”5 Id. at ¶ 141. “[I]mmediately” after Harris “entered the lobby” of the

building, Deneka, an officer in the New York State Office of Court Administration, told
Harris “to stop recording.” Id. Harris asked Deneka to “identify himself multiple times,”
but Deneka “refused to do so” and instead “called for backup.” Id. at ¶ 142. Harris also
“repeatedly asked Deneka to articulate the law that” barred Harris from filming, but
Deneka “ignored [Harris] and [] continued to give the directive[] not to record in the
public hallway.” Id. at ¶ 143.
“Soon after, [Harris] was surrounded by [seven] officers.” Id. at ¶ 144. Harris
“had no idea who they were because all [of them] . . . refuse[d] to identify” themselves.
Id.

5 Harris may be referring to Erie County Hall in Buffalo, New York, although he
refers to this building as the “Erie County Building” in his amended complaint. The
Court therefore refers to the building as the “Erie County Building” in this decision.
Schrier, one of the officers on the scene, “requested [that Harris] put down [his]
phone and stop recording in the building.” Id. Harris and the officers then engaged in a
“repeated back and forth.” Id. at ¶ 145. Harris continued to ask for the officers’ names
and to request that they “articulate the law” that barred filming in the building. Id. In

response, Schrier “repeat[ed] the policy of not recording in the area,” and Perry “stated
that [the officers] are enforcing policy and not actual law.” Id. McEvoy, on the other
hand, “stated that they were enforcing the law,” but when Harris “asked [him] to
articulate the law,” McEvoy “fail[ed] to articulate an actual law.” Id. at ¶ 146.
Schrier then “informed [Harris] that he was now trespassing.” Id. at ¶ 147. Harris
“asked Schrier to articulate [his] reasoning.” Id. Immediately “afterwards, McEvoy []
grabbed [Harris] without any warning.” Id. at ¶ 148. Harris “was taken into custody” and
was “shoved . . . into the elevator into lockup” by Deneka, Hewitt, Schumacher, Stark,
Costa, Perry, McEvoy, and Schrier. Id. at ¶ 149.
After he was taken into custody, Harris’s phone “was taken away from him

without a warrant” and he was “lock[ed] in[] a room in handcuffs for over an hour.” Id. at
¶ 150. The handcuffs “were so tight that [Harris] lost [] circulation.” Id. All the while,
“the [] officers were laughing” at Harris “and ridiculing [him] while taking pictures of [him]
on their tablet.” Id.
From there, Harris “was taken into the holding center of the Court Building for
booking.” Id. at ¶ 151. At that point, Buffalo police officers Hiba Khalil and Kayla Wise
“proceeded to help [] McEvoy and Schrier[] book [Harris].” Id. During the booking,
Harris “pleaded to . . . Khalil and Wise to help him.” Id. at ¶ 152. But “instead of []
helping [him],” Khalil and Wise “mocked [Harris for the] videos” that he had “posted on
his social media account in the past.” Id.
Harris was charged with trespassing, in violation of New York Penal Law §
140.05; disorderly conduct, in violation of New York Penal Law § 240.20; obstructing

governmental administration, in violation of New York Penal Law § 195.05; and resisting
arrest, in violation of New York Penal Law § 205.30. Id. at ¶ 155; Docket Item 26-2 at 2-
6. At some point during the resulting criminal case, Harris “asked [where] the search
warrant was” for his phone because the Buffalo police officers had received his phone
more than a month earlier. Docket Item 3 at ¶ 153. The prosecutors “stated to the
Court that [they were] working on” obtaining a warrant, and Khalil then “su[b]mitted a
warrant application for the phone and the footage within the phone.” Id. The judge
presiding over Harris’s case “granted that warrant application” despite a number of
inadequacies. Id. at ¶ 154.
Harris removed his criminal case to this Court in late 2019. See Harris v.

McEvoy, Case No. 19-cv-1595, Docket Item 1 (W.D.N.Y. Nov. 22, 2019); see also
Docket Item 3 at ¶ 156. This Court then remanded the case, see Harris, Case No. 19-
cv-1595, Docket Item 11 (W.D.N.Y. July 9, 2020), and on August 18, 2021, all charges
against Harris were dismissed, Docket Item 3 at ¶ 157.

LEGAL PRINCIPLES
“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 has facial plausibility 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). “[A]lthough ‘a

court must accept as true all of the allegations contained in a complaint,’ that tenet ‘is
inapplicable to legal conclusions,’ and ‘threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (alterations and internal quotation marks omitted) (quoting
Iqbal, 556 U.S. at 678).

DISCUSSION
I. THE ERIE COUNTY DEFENDANTS’ MOTION TO DISMISS
Harris alleges that Erie County and the individual Erie County defendants
violated his First and Fourth Amendment rights during the July 8 incident at the Erie
County DMV. Docket Item 3 at ¶¶ 159-74. He also brings claims against Erie County
arising out of the July 17 incident at the Erie County Building.6 Id. at ¶¶ 175-210. The

Erie County defendants have moved to dismiss Harris’s claims against them, arguing
that Harris’s constitutional claims are substantively deficient and barred by qualified
immunity.7 Docket Item 9-2.

6 Harris also brings claims against the New York State defendants, two Buffalo
police officers, and the City of Buffalo arising out of the July 17 incident. See Docket
Item 3 at ¶¶ 175-210. But he does not name any individual Erie County defendants in
those claims.
7 The Erie County defendants also have moved to dismiss any standalone claims
brought under 42 U.S.C. § 1983, arguing that section 1983 does not provide a basis for
an independent claim. Docket Item 9-2 at 13. Of course, “[s]ection 1983 itself creates
For the reasons stated below, Harris’s First Amendment claim against the
individual Erie County defendants, as well as his Fourth Amendment unreasonable
seizure and excessive force claims against Alabanese, Roetzer, and Wahl, may
proceed. Harris’s Fourth Amendment unreasonable seizure and excessive force claims

against Bishop are dismissed. Harris’s remaining claims against the Erie County
defendants are subject to dismissal, but he may amend those claims to correct the
deficiencies noted below.
A. Claims Against the Individual Erie County Defendants
1. First Amendment
Harris alleges that Alabanese, Bishop, Roetzer, and Wahl violated his First

Amendment rights by removing him from the Erie County DMV after he refused to stop
video recording. Docket Item 3 at ¶¶ 159-62. Because Harris’s First Amendment claim
relates to speech that occurred inside a government building, that claim “implicates [the]
‘forum[-]based’ approach for assessing restrictions that the government seeks to place
on the use of its property.” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018)
(quoting Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)).
The Supreme Court has “recognize[d] three types of government-controlled
spaces: traditional public forums, designated public forums, and nonpublic forums.” Id.

no substantive rights; it provides only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). But
Harris does not allege that his rights under section 1983 were violated; instead, he
alleges that the Erie County defendants violated his constitutional rights and brings
claims under section 1983 to challenge those violations. See generally Docket Item 3.
Because that is how a plaintiff raises a claim under section 1983, see, e.g., Whalen v.
County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997), the Court does not further address
any purported standalone claim under section 1983.
“[M]embers of the public retain strong free speech rights when they venture into”
traditional public forums, or spaces that “have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.” Pleasant

Grove City v. Summum, 555 U.S. 460, 469 (2009) (quoting Perry Educ. Ass’n v. Perry
Loc. Educators’ Ass’n, 460 U.S. 37, 45 (1983)); see also Minn. Voters All., 138 S. Ct. at
1885 (noting that traditional public forums include “parks, streets, sidewalks, and the
like”). In traditional public forums, “the government may impose reasonable time, place,
and manner restrictions on private speech, but restrictions based on content must
satisfy strict scrutiny, and those based on viewpoint are prohibited.” Minn. Voters All.,
138 S. Ct. at 1885. “The same standards apply in designated public forums—spaces
that have ‘not traditionally been regarded as a public forum’ but which the government
has ‘intentionally opened up for that purpose.’” Id. (quoting Pleasant Grove City, 555
U.S. at 469-70).

By contrast, “[p]ublic property which is not by tradition or designation a forum for
public communication is governed by different standards.” Perry Educ. Ass’n, 460 U.S.
at 46. In such a “nonpublic forum,” the government “has much more flexibility to craft
rules limiting speech.” Minn. Voters All., 138 S. Ct. at 1885. “The government may
reserve such a forum ‘for its intended purposes, communicative or otherwise, as long as
the regulation on speech is reasonable and not an effort to suppress expression merely
because public officials oppose the speaker’s view.’” Id. (quoting Perry Educ. Ass’n,
460 U.S. at 46).
The Erie County defendants say that the Erie County DMV is a nonpublic forum,
see Docket Item 9-2 at 8 (citing Harmon v. Bogart, 500 F. Supp. 3d 8, 19 (W.D.N.Y.
2020)), which this Court accepts as true for the purposes of this motion. The Erie
County defendants then argue that “[t]he decision to remove [Harris] from the [Erie

County] DMV lobby” therefore was lawful because “[a]t the time of his removal, [Harris]
was not conducting legitimate business” and instead “was creating a substan[tial]
interruption in the workplace.”8 Id.
Not surprisingly, Harris sees things differently: He alleges that he visited the Erie
County DMV because he “needed assistance regarding the whereabouts of his record,”
Docket Item 3 at ¶ 120, and he maintains that he was not disturbing anyone or anything
there, see Docket Item 16 at 13 (arguing that the Erie County defendants did not
“mention the reasoning of his alleged disruption other than recording public officials in
the course of their duties in a publicly accessible lobby”).
In other words, the parties dispute whether Harris was creating a disturbance

during his visit to the Erie County DMV and whether it therefore was lawful to remove
him from the building. And that sort of “factual dispute . . . c[annot] be[] resolved on a
motion to dismiss under Rule 12(b)(6).” Ray v. Weit, 708 F. App’x 719, 722 (2d Cir.
2017) (summary order) (citing Fin. Guar. Ins. Co. v. Putnam Advisory Co., 783 F.3d
395, 405 (2d Cir. 2015)); see also Kardovich v. Pfizer, Inc., 97 F. Supp. 3d 131, 140

8 This Court assumes that Harris’s filming was protected under the First
Amendment. See, e.g., Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1044
(9th Cir. 2018) (“The First Amendment protects the right to photograph and record
matters of public interest.”). Although the Erie County defendants argue in passing that
Harris’s “video recording was not constitutionally protected expression,” Docket Item 9-2
at 9, that argument appears to be based only on their contention that Harris’s speech
was lawfully restricted in a nonpublic forum.
(E.D.N.Y. 2015) (“[I]ssues of fact, credibility, and [] weight of the evidence are not
properly considered on a motion to dismiss.”).
What is more, the Erie County defendants do not point to any particular law or
regulation that authorized Harris’s removal from the Erie County DMV; they do not say,

for example, that Harris was present at the Erie County DMV when the public was not
welcome there or that video recording is prohibited in the Erie County DMV under some
or all circumstances.9 Instead, they simply say that Harris’s removal was “reasonable”
because he was “causing a disruption.” Docket Item 9-2 at 8-9. And whether that
conclusion is correct depends upon whether the fact upon which it is based is correct—
that is, whether Harris was causing a disruption.
“Although there is no requirement of narrow tailoring in a nonpublic forum, the
[government] must be able to articulate some sensible basis for distinguishing what may
come in from what must stay out.” Minn. Voters All., 138 S. Ct. at 1888; see also id. at
1891 (“It is ‘self-evident’ that an indeterminate prohibition carries with it ‘the opportunity

for abuse, especially where it has received a virtually open-ended interpretation.’”
(alterations omitted) (quoting Bd. of Airport Comm’rs of City of L.A. v. Jews for Jesus,
Inc., 482 U.S. 569, 576 (1987))). So apart from raising the sort of fact-bound questions
that are not amenable to resolution on a motion to dismiss, the Erie County defendants’
self-serving assertion that their conduct was reasonable simply begs the question. And
without some other basis to conclude that Harris’s removal from the Erie County DMV

9 For that reason, this Court does not now pass on whether any such restriction
would be permissible under the First Amendment.
was reasonable, this Court cannot dismiss Harris’s First Amendment claim against the
individual Erie County defendants at this stage.
For those reasons, Harris has pleaded a viable First Amendment claim against
Alabanese, Bishop, Roetzer, and Wahl.

2. Fourth Amendment10
a. Unreasonable Seizure
Harris alleges that Alabanese, Bishop, Wahl, and Roetzer violated the Fourth
Amendment by removing him from the Erie County DMV and then barring him from
reentering the building. Docket Item 3 at ¶¶ 167-74. The Erie County defendants argue
that “[t]hese actions do not equate to a Fourth Amendment” violation because “being

removed from [a] building does not constitute a Fourth Amendment violation.” Docket
Item 9-2 at 10. Although that is correct in certain circumstances, Harris has pleaded a
viable unreasonable seizure claim here.
“In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that a person is
seized ‘when an officer, by means of physical force or show of authority, in some way
restrains the liberty of a citizen.’” Salmon v. Blesser, 802 F.3d 249, 252 (2d Cir. 2015)
(alterations omitted) (quoting Terry, 392 U.S. at 19 n.16). “To explain when a sufficient

10 Harris brings three Fourth Amendment claims related to his removal from the
Erie County DMV: one for excessive force; one for “removing from free access to public
areas”; and one for “unlawful trespass/chill of movement” and “restriction to go back into
. . . public areas.” Docket Item 3 at ¶¶ 163-74. Because Harris is proceeding pro se,
the Court liberally construes those latter two claims as an unreasonable seizure claim.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(“[S]ubmissions of a pro se litigant must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” (citation and internal quotation marks
omitted)).
‘show of authority’ effects restraint, the Supreme Court has relied on a totality-of-the-
circumstances test, asking whether a reasonable person would believe that he was ‘not
free to leave.’”11 Id. (quoting INS v. Delgado, 466 U.S. 210, 215 (1984)).
Harris does not allege that he was not free to leave the Erie County DMV and

therefore end the encounter with the Erie County Sheriff’s Department officers. In fact,
leaving the building is exactly what the officers asked him to do. See Docket Item 3 at
¶¶ 132-34. In other words, Harris’s Fourth Amendment unreasonable seizure claim is
based on his being forced to leave the Erie County DMV, not his inability to do so. See
Docket Item 16 at 19.
“Police officers frequently order persons to leave public areas: crime scenes,
accident sites, dangerous construction venues, anticipated flood or fire paths, parade
routes, areas of public disorder, etc.” Salmon, 802 F.3d at 253. “A person may feel
obliged to obey such an order,” and the police “may take a person by the elbow or
employ comparable guiding force short of actual restraint to ensure obedience with a

departure order.” Id. But even if a person feels compelled to leave because of an
officer’s order—and is potentially helped along by an officer’s “guiding force”—that is not
necessarily a Fourth Amendment seizure because “the person is otherwise free to go
where he wishes.” Id.; see also Maxwell v. City of New York, 102 F.3d 664, 668 n.2 (2d

11 In other circumstances, where an individual’s “freedom of movement [is]
restricted by a factor independent of police conduct,” the “appropriate inquiry is whether
a reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991). Because Harris
does not allege that some independent factor restricted his movement, that standard
does not apply. See id. (finding “the ‘free to leave’ analysis . . . inapplicable” where the
individual’s “freedom of movement was restricted by a factor independent of police
conduct—i.e., by his being a passenger on a bus”).
Cir. 1996) (noting that refusing entrance to an area is not itself a Fourth Amendment
seizure); Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir. 1994) (fired law clerk was not
seized when he was “escorted out of the courthouse by court officers” because he was
“free to go anywhere else that he desired, with the exception of [the judge’s] chambers

and the court house” (internal quotation marks omitted)). So the mere fact that Harris
was not free to remain in or return to the Erie County DMV does not itself state a viable
Fourth Amendment claim.12
But Harris alleges that he was removed from the Erie County DMV with more
than just “guiding force.” In fact, he says that he was—without warning—“grab[bed] by
the shirt and physically shov[ed]” out of the building. Docket Item 3 at ¶ 136. And in
Salmon, the Second Circuit held that “an order to depart a public place” that “is
accompanied by the use of sufficient force intentionally to restrain a person and gain
control of his movements” can be a Fourth Amendment seizure. Id. at 255; see also id.
at 254 (“Whatever other actions might effect a Fourth Amendment seizure of a person

ordered to depart a public area, the intentional use of physical force to restrain the
person and control the movements of a compliant person certainly does.”). So Harris
has plausibly alleged that he was seized when he was forcibly removed from the Erie
County DMV.

12 Harris cites Bennett v. City of Eastpointe, 410 F.3d 810 (6th Cir. 2005), to
argue that “a person is seized not only when a reasonable person would not feel free to
leave an encounter with police, but also when a reasonable person would not feel free
to remain somewhere, by virtue of some official action.” Docket Item 16 at 19 (quoting
Bennett, 410 F.3d at 834). But in Salmon, the Second Circuit specifically declined to
follow Bennett. See Salmon, 802 F.3d at 253 n.4.
That does not necessarily mean that Harris’s removal was unreasonable. See id.
at 255 (“Whether such a . . . seizure is reasonable is of course another question.”). But
as noted above, deciding whether Harris’s removal was reasonable depends on
resolving the parties’ factual dispute about whether Harris was creating a disruption at

the Erie County DMV. And absent any additional argument about why Harris’s Fourth
Amendment unreasonable seizure claim fails, that claim may proceed against
Alabanese, Roetzer, and Wahl.
The Court, however, agrees with the Erie County defendants that Harris has not
alleged that Bishop was personally involved in any constitutionally impermissible
seizure.13 A defendant “must have been personally involved in a constitutional
deprivation to be held liable under [section] 1983.” Flannery v. City of Rochester, 640 F.
Supp. 3d 267, 279 (W.D.N.Y. 2022); see also Tangreti v. Bachmann, 983 F.3d 609, 618
(2d Cir. 2020) (“[A] plaintiff must plead and prove ‘that each [g]overnment-official
defendant, through the official’s own individual actions, has violated the Constitution.’”

(quoting Iqbal, 556 U.S. at 676)). Harris alleges that Alabanese, Roetzer, and Wahl
were the only ones who used force to remove him from the Erie County DMV. See
Docket Item 3 at ¶¶ 136-39. And in his response to the Erie County defendants’ motion
to dismiss, Harris does not say that Bishop used any force against him or otherwise
show how Bishop might have violated the Fourth Amendment by “intentionally
restraining and controlling [his] movements.” Salmon, 802 F.3d at 254. Instead, he
generally maintains that Bishop “was the mastermind of the entire incident” because

13 Although the Erie County defendants say that Bishop was not personally
involved in Harris’s removal, see Docket Item 9-2 at 11-12, they do not differentiate
among Alabanese’s, Roetzer’s, and Wahl’s involvement.
she “escalat[ed] the incident to enforce her feelings” and that she “allow[ed] Wahl,
Roetzer, and Al[a]banese to lock the [Erie County DMV] doors during business hours.”
Docket Item 16 at 22. Because Harris does not allege that Bishop was personally
involved in any application of force, that claim is dismissed.

b. Excessive Force
Harris also alleges that Alabanese, Bishop, Wahl, and Roetzer violated the
Fourth Amendment by using excessive force in removing him from the Erie County
DMV office. Docket Item 3 at ¶¶ 163-66. “All claims that law enforcement officers have
used excessive force in the course of an arrest, investigatory stop, or other seizure of a
free citizen should be analyzed under the Fourth Amendment and its reasonableness
standard.” Ketcham v. City of Mount Vernon, 992 F.3d 144, 148 (2d Cir. 2021)
(alterations omitted) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Under that
standard, “[p]olice officers’ application of force is excessive, in violation of the Fourth
Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.’” Maxwell v.
City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham, 490 U.S. at 397).
The Erie County defendants say that Harris’s excessive force claim is not viable
because “the amount of force used in ‘shoving’ [Harris] was de minimis.” Docket Item 9-
2 at 11 (italicization added). And to be sure, “[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 (citation omitted). But Harris says that the
officers “grabb[ed him] by the shirt[,] physically shov[ed him] through the lobby area
towards the doors,” and then “shov[ed] him through the doorway, out of the building,
and [on to] the sidewalk.” Docket Item 3 at ¶¶ 136-37. Moreover, Harris says that he
suffered “pain” and “extreme emotional stress” as a result of those actions. Id. at ¶¶
165-66. At the motion to dismiss stage, where all of Harris’s allegations must be
accepted as true and all reasonable inferences drawn in his favor, this Court cannot
conclude that Harris’s excessive force claim involves force that was de minimis. See

Colon v. City of Rochester, 419 F. Supp. 3d 586, 600 (W.D.N.Y. 2019) (“Despite the
relatively modest level of force alleged, the Court cannot determine now, as a matter of
law, that the force used was de minimis, as would be required to support dismissal of
the[ excessive force] claims.”). Harris’s Fourth Amendment excessive force claim
therefore may proceed against Alabanese, Roetzer, and Wahl. For the reasons stated
above, however, Harris’s excessive force claim against Bishop is dismissed because
Harris does not allege that Bishop used any force against him, excessive or not.

3. Fourteenth Amendment
In addition to his First and Fourth Amendment claims, Harris also refers to the
Fourteenth Amendment in his amended complaint. See Docket Item 3 at ¶¶ 159-74.
The Erie County defendants argue that any Fourteenth Amendment claims must be
dismissed because Harris “merely cit[es] the Fourteenth Amendment as a ground for
relief without any factual allegations” showing that his rights under the Fourteenth
Amendment were violated. Docket Item 9-2 at 12.
But Harris does not bring any standalone Fourteenth Amendment claims in the

amended complaint; instead, he refers to the Fourteenth Amendment in tandem with the
First and Fourth Amendments. See Docket Item 3 at ¶¶ 159-74. And the Fourteenth
Amendment incorporates certain constitutional protections—including those in the First
and Fourth Amendments—against state action. See Zalewska v. County of Sullivan,
316 F.3d 314, 319 (2d Cir. 2003) (noting that the Fourteenth Amendment incorporates
the First Amendment’s protections); Tenenbaum v. Williams, 193 F.3d 581, 602 n.14
(2d Cir. 1999) (same for the Fourth Amendment). So there are not any independent
Fourteenth Amendment claims to dismiss. See, e.g., Morey v. Somers Cent. Sch. Dist.,

2007 WL 867203, at *13 (S.D.N.Y. Mar. 21, 2007) (declining to address motion to
dismiss Fourteenth Amendment claims where “[the p]laintiff’s reference to the
Fourteenth Amendment merely refers to the First Amendment’s application via its
incorporation under the Fourteenth Amendment[]”).
4. Qualified Immunity
The individual Erie County defendants also say that they are entitled to qualified

immunity. Docket Item 9-2 at 16-17. Officials “are entitled to qualified immunity under
[section] 1983 unless (1) they violated a federal statutory or constitutional right, and (2)
the unlawfulness of their conduct was clearly established at the time.” District of
Columbia v. Wesby, 583 U.S. 48, 62-63 (2018) (citation and internal quotation marks
omitted). Stated differently, “[a] defendant is entitled to qualified immunity if (1) the
defendant’s 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
the defendant to believe that [his or her] actions were lawful at the time of the
challenged act.” Brandon v. Kinter, 938 F.3d 21, 39 (2d Cir. 2019) (alterations, citation,

and internal quotation marks omitted). “Because, on a Rule 12(b)(6) or 12(c) motion,
‘the facts supporting the qualified immunity defense must appear on the face of the
complaint,’ asserting qualified immunity as a defense in the earliest stages of litigation,
before development of a relevant factual record, usually fails to result in dismissal of the
complaint.” Pourkavoos v. Town of Avon, 823 F. App’x 53, 59 (2d Cir. 2020) (summary
order) (alterations omitted) (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.
2004)); see also Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d Cir. 2020)
(“[A] qualified immunity defense presented on a Rule 12(b)(6) motion faces a formidable

hurdle and is usually not successful.” (alterations, citation, and internal quotation marks
omitted)).
Here, the individual Erie County defendants offer the conclusory assertion that
their conduct “was reasonable and did not violate any federally protected rights.”
Docket Item 9-2 at 16-17. But apart from generally maintaining that they “acted
reasonably in carrying out their professional duties,” id. at 17, the individual Erie County
defendants do not otherwise develop their qualified immunity argument. So the
individual Erie County defendants have not shown that they are entitled to qualified
immunity based on the “face of the complaint.” See McKenna, 386 F.3d at 436; see
also Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013) (“Qualified immunity[ is] an

affirmative defense on which the defendant officials bear the burden of proof . . . .”);
A.S. v. City Sch. Dist. Albany, 585 F. Supp. 3d 246, 280 (N.D.N.Y. 2022) (denying
motion to dismiss based on qualified immunity because “[t]he [d]efendants’ conclusory,
one-sentence argument fails to demonstrate how they are entitled to qualified immunity
at the pleadings stage”); Ziemba v. Lynch, 2013 WL 5232543, at *9 (D. Conn. Sept. 17,
2013) (denying motion to dismiss based on qualified immunity where the defendant
“only include[d] the legal standard for establishing qualified immunity and, in a
conclusory manner, state[d] that the claims against [her] are subject to dismissal based
on the law of qualified immunity”).
B. Claims Against Erie County
Harris also brings claims against Erie County in connection with the July 8 and
the July 17 incidents. See Docket Item 3 at ¶¶ 159-88, 208-10. A municipality cannot
be held liable under section 1983 unless the challenged action was undertaken
pursuant to a municipal policy, custom, or practice. See Monell v. Dep’t of Soc. Servs.

of City of N.Y., 436 U.S. 658, 694 (1978). To state a claim under Monell, a plaintiff must
plead three elements: “(1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.” Zahra v. Town of Southold, 48 F.3d
674, 685 (2d Cir. 1995) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.
1983)). To satisfy the first element, a plaintiff may establish a policy or practice by
alleging
(1) a formal policy officially endorsed by the municipality; (2) actions taken
by government officials responsible for establishing the municipal policies
that caused the particular deprivation in question; (3) a practice so
consistent and widespread that, although not expressly authorized,
constitutes a custom or usage of which a supervising [policymaker] must
have been aware; or (4) a failure by policymakers to provide adequate
training or supervision to subordinates to such an extent that it amounts to
deliberate indifference to the rights of those who come into contact with the
municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010) (citations
omitted); see also Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 13 (2d Cir.
2015) (summary order) (“[A] plaintiff must allege the existence of a formal policy which
is officially endorsed by the municipality[;] or a practice so persistent and widespread
that it constitutes a custom or usage of which supervisory authorities must have been
aware[;] or that a municipal custom, policy, or usage can be inferred from evidence of
deliberate indifference of supervisory officials to such abuses.”); Roe v. City of
Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (“Where a plaintiff seeks to hold a
municipality liable for a single decision by a municipal policymaker, the plaintiff must
show that the official had final policymaking power [and] the challenged actions must be
within that official’s area of policymaking authority.” (alterations, citations, and internal
quotation marks omitted)).

1. July 8 Incident
Harris’s claims against Erie County related to the July 8 incident are subject to
dismissal. First, Harris has not alleged that any of the First or Fourth Amendment
violations at the DMV were undertaken pursuant to an official policy or a widespread
custom, and, as noted above, the Erie County defendants do not say that Harris was
barred from filming under any particular policy. Nor has Harris challenged any action

taken by a municipal policymaker “within that official’s area of policymaking authority.”
Roe, 542 F.3d at 37. Instead, Harris’s claims against Erie County in connection with the
July 8 incident are based solely on his interactions with employees at the Erie County
DMV and from the Erie County Sherriff’s Department. See Docket Item 3 at ¶¶ 159-74.
And that is not enough to plausibly allege that any unlawful conduct occurred because
of an “affirmative municipal policy.” See Missel v. County of Monroe, 351 F. App’x 543,
545 (2d Cir. 2009) (summary order); see also City of Oklahoma City v. Tuttle, 471 U.S.
808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the incident includes proof that it was

caused by an existing, unconstitutional municipal policy[ that] can be attributed to a
municipal policymaker.”).
Nor has Harris alleged that Erie County is liable for failing to train, supervise, or
discipline its employees. See Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007). “Where plaintiffs seek to hold a municipality liable under a theory of failure to
[train,] supervise[,] or discipline, . . . they must also show that the municipal policymaker
acted with deliberate indifference.” Pipitone v. City of New York, 57 F. Supp. 3d 173,
191 (E.D.N.Y. 2014) (citing City of Canton v. Harris, 489 U.S. 378, 388-89 (1989)).

“[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his [or her] action.” Connick v.
Thompson, 563 U.S. 51, 61 (2011) (citation and internal quotation marks omitted).
“To establish ‘deliberate indifference,’ a plaintiff must show that [1] a policymaker
knows to a moral certainty that [municipal] employees will confront a particular situation;
[2] the situation either presents the employee with a difficult choice of the sort that
training or supervision will make less difficult or there is a history of employees
mishandling the situation; and [3] the wrong choice by the [municipal] employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Wray, 490 F.3d at
195-96 (citation and internal quotation marks omitted). Alternatively, “deliberate

indifference may be inferred where the need for more or better supervision to protect
against constitutional violations was obvious, but the policymaker failed to make
meaningful efforts to address the risk of harm to [the] plaintiff[].” Cash v. County of Erie,
654 F.3d 324, 334 (2d Cir. 2011) (alterations, citations, and internal quotation marks
omitted). “While the Supreme Court has left open the possibility that a single incident
could give rise to liability for failure to train or supervise, the Court has cautioned that
only a ‘narrow range’ of circumstances would support such single-incident liability,
where the ‘unconstitutional consequences of failing to train were patently obvious.’”
Schnitter v. City of Rochester, 931 F. Supp. 2d 469, 475 (W.D.N.Y. 2013) (alterations
omitted) (quoting Connick, 563 U.S. at 63), aff’d, 556 F. App’x 5 (2d Cir. 2014).
Similarly, the Second Circuit has noted that a policy of acquiescing in or ratifying illegal
conduct “cannot be inferred from the failure of those in charge to discipline a single
police officer for a single incident of illegality; instead, there must be more evidence of

supervisory indifference, such as acquiescence in a prior pattern of conduct.” Lucente
v. County of Suffolk, 980 F.3d 284, 306 (2d Cir. 2020) (citation and internal quotation
marks omitted).
Harris has not alleged anything that would show how Erie County is liable for
failing to train, discipline, or supervise its employees. Indeed, Harris’s allegations about
his experience at the Erie County DMV relate only to the July 8 incident, not some
broader pattern of violations that might demonstrate a failure to train, discipline, or
supervise. See, e.g., D’Alessandro v. City of New York, 713 F. App’x 1, 10-11 (2d Cir.
2017) (summary order) (“To establish a ‘failure to train’ claim, a plaintiff must generally
demonstrate that there has been a ‘pattern of similar constitutional violations by

untrained employees.’” (quoting Connick, 563 U.S. at 62)); Vann v. City of New York, 72
F.3d 1040, 1049 (2d Cir. 1995) (“To prove[] deliberate indifference, the plaintiff must
show that the need for more or better supervision to protect against constitutional
violations was obvious,” such as through “proof of repeated complaints of civil rights
violations[] . . . followed by no meaningful attempt on the part of the municipality to
investigate or to forestall further incidents.”); Askew v. Lindsey, 2016 WL 4992641, at *5
(S.D.N.Y. Sept. 16, 2016) (collecting cases holding that a single failure to discipline
“cannot give rise to an inference of deliberate indifference without further evidence of a
municipal policy or practice”).
Nor does Harris’s Erie County DMV visit present the sort of “rare” circumstance
in which a municipality might be held liable for its failure to train based on a single
incident of alleged misconduct. See Connick, 563 U.S. at 64. In Connick, the Supreme
Court distinguished the “hypothetical example of a city that arms its police force with

firearms and deploys the armed officers into the public to capture fleeing felons without
training the officers in the constitutional limitation on the use of deadly force.” Id. at 63
(citing Canton, 489 U.S. at 390 n.10). In that scenario, “[g]iven the known frequency
with which police attempt to arrest fleeing felons and the ‘predictability that an officer
lacking specific tools to handle that situation will violate citizens’ rights,’” a municipality’s
failure to train its officers “could reflect the city’s deliberate indifference to the ‘highly
predictable consequence[s]’” of the untrained officers’ actions. Id. at 63-64 (quoting Bd.
of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)).
Here, by contrast, Harris’s claims arise in the particular circumstances of his
encounter with employees at the Erie County DMV. And those claims do not point to

any Erie County employee’s “utter lack of [] ability to cope with constitutional situations”
that would make it a “highly predictable consequence” that Erie County employees
would violate Harris’s constitutional rights. See id. at 64, 67. Harris therefore has not
alleged a viable Monell claim based on the single incident of his July 8 visit to the Erie
County DMV. Nevertheless, and in light of his pro se status, Harris may amend his
complaint to allege viable claims against Erie County based on that incident. See
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
2. July 17 Incident
For different reasons, Harris’s claims against Erie County related to the July 17
incident also are not viable. “Monell liability attaches only where an infringement of
constitutional rights is caused by a local government policy.” Bellamy v. City of New
York, 914 F.3d 727, 757 (2d Cir. 2019). In other words, whether a municipality can be

liable for constitutional violations depends on “which governmental entity (the state or
the municipality) is responsible for a given function.” Id. at 760.
Harris says that he was told to stop filming by New York State officers, not
anyone employed by Erie County. Docket Item 3 at ¶¶ 11, 141-49. And, as noted
below, he disputes that he was violating a particular New York State law that prohibits
filming in a courthouse. That is, Harris’s claims related to the July 17 incident take aim
at state officers’ enforcement of a state law prohibiting video recording in courthouses.
Those claims all relate to New York State officers’ enforcement of New York State law,
and Harris’s claims against Erie County for the July 17 incident therefore are subject to

dismissal.
Harris nevertheless maintains that the officers “were enforcing Erie County’s
[p]olic[y] of not recording in the lobbies of the building.” Docket Item 16 at 24-25. But “a
general and conclusory allegation of a municipal policy or custom fails to state a
plausible claim.”14 Green v. Dep’t of Educ. of City of N.Y., 16 F.4th 1070, 1077 (2d Cir.

14 As noted below, however, this Court is not at this time deciding whether a
broad prohibition on filming inside the Erie County Building—including any policy that is
attributable to Erie County—is permissible under the First Amendment. And any such
prohibition may affect the viability of Harris’s claims related to the July 17 incident. See,
e.g., Rouzan v. Dorta, 2014 WL 1716094, at *4-13 (C.D. Cal. Mar. 12, 2014)
(recommending summary judgment be granted on First and Fourth Amendment claims
where the plaintiff violated prohibition on filming inside a courthouse), adopted, 2014
WL 1725783 (C.D. Cal. May 1, 2014). In other words, if Harris’s video recording was in
2021) (citation and internal quotation marks omitted). So Harris’s bald allegation of an
Erie County policy cannot salvage his claim.
Nevertheless, and in light of his pro se status, Harris may amend his complaint to
allege a viable claim against Erie County related to the July 17 incident. See Cuoco,

222 F.3d at 112.
II. THE NEW YORK STATE DEFENDANTS’ MOTION TO DISMISS
Harris brings claims against the New York State defendants for violating his First
and Fourth Amendment rights during the July 17 incident and as part of the ensuing
arrest and prosecution.15 Docket Item 3 at ¶¶ 175-207. The New York State
defendants argue that those claims should be dismissed because Harris violated a

prohibition on filming inside the Erie County Building and because he was lawfully
arrested and prosecuted for violating that prohibition. See Docket Item 26-1. And the
New York State defendants say that Harris’s claims suffer from a number of other
substantive deficiencies. See id. The New York State defendants do not, however,
raise a qualified immunity defense.16 See id.

fact barred by some Erie County policy, and if that policy is lawful, that may well bar
many or all of Harris’s claims arising out of the July 17 incident, including Harris’s
Monell claim against Erie County.
15 Harris also brings some of those claims against Khalil, Wise, the City of
Buffalo, and Erie County. See, e.g., Docket Item 3 at ¶¶ 178-80. For the reasons
stated above, Harris’s claims against Erie County, including any claims arising out of the
July 17 incident, are subject to dismissal. And because Khalil, Wise, and the City of
Buffalo have answered the amended complaint instead of moving to dismiss it, Docket
Item 15, this decision does not address whether Harris’s claims against those
defendants are viable.
16 The New York State defendants argue that sovereign immunity bars any
claims against them in their official capacity. See Docket Item 26-1 at 4-5. Harris does
For the reasons stated below, Harris’s official-capacity claims against the New
York State defendants and his “supervisory negligent liability” claim against McEvoy,
Perry, and Schumacher are dismissed. Harris’s malicious prosecution claim against
McEvoy, as well as his First Amendment claim, some of his Fourth Amendment claims,

and his false arrest claim against the New York State defendants, may proceed. His
remaining claims against the New York State defendants are subject to dismissal, but
he may amend those claims as noted below.
A. First Amendment
Harris’s First Amendment claim against the New York State defendants
essentially mirrors his First Amendment claim against the Erie County defendants. He

says that he entered the Erie County Building to “file a compl[aint]” related to the July 8
incident and was “immediately [] given [a] directive[] to stop recording.”17 Docket Item 3
at ¶ 141. And he says that when he refused to do so and instead asked the officers to
“articulate the law” that barred video recording, he was “informed . . . that he was now
trespassing,” was “grabbed . . . without any warning,” and was “taken into custody.” Id.
at ¶¶ 143, 147-49.
The New York State defendants say that Harris’s First Amendment claim lacks
merit because he violated a reasonable restriction on First Amendment activity in a
nonpublic forum. See Docket Item 26-1 at 14-16. More specifically, they note that New

not dispute this, Docket Item 29 at 6-7, and any official-capacity claims against the New
York State defendants therefore are dismissed.
17 For the reasons stated above, this Court assumes that Harris’s video recording
was protected by the First Amendment.
York State law prohibits “[t]aking photographs, films or videotapes, or audiotaping,
broadcasting or telecasting, in a courthouse including any courtroom, office or hallway
thereof, at any time or on any occasion, whether or not the court is in session” without
prior authorization. See id. at 15 (citing N.Y. Comp. Codes R. & Regs. tit. 22, § 29.1

(“Chief Judge Rule 29”)). Because Chief Judge Rule 29 is a reasonable, viewpoint-
neutral restriction of speech in a nonpublic forum, the New York State defendants say,
Harris does not have a viable First Amendment claim related to his inability to film inside
the Erie County Building. See id. at 14-17.
Again, Harris sees things differently. He “respectfully request[s] that the [Court]
take judicial notice . . . that [the] [July 17] incident did not take place in [a] ‘Courthouse.’”
Docket Item 29 at 8. Instead, he says, the Erie County Building houses “multiple
agencies giving different services to the public,” some of which “ha[ve] nothing to do
with any court function, particularly” in the area “where the incident took place”—“the
lobby outside of the tax office.” Id. In fact, Harris says, there are specific signs in the

building “indicating that the entry of the Erie County Court[house] [is] located on the
upper floors” of the building. Id.
So Harris raises a dispute about whether he actually violated Chief Judge Rule
29 by filming in the Erie County Building. For the same reasons already stated, that sort
of factual dispute is not amenable to resolution on a motion to dismiss. And the New
York State defendants did not take the opportunity to reply in further support of their
motion to dismiss and explain why Harris might be mistaken or otherwise might still
have violated Chief Judge Rule 29. Without some further indication of how Harris’s
conduct violated some reasonable restriction on his First Amendment rights, the Court
concludes that he has pleaded a viable First Amendment claim against the New York
State defendants.18 Cf. Enoch v. Hogan, 728 F. App’x 448, 456 (6th Cir. 2018)
(“accept[ing the plaintiffs’] allegation that they had violated no rule or law” in filming in
the courthouse hallway and affirming denial of qualified immunity on First Amendment

claim).
B. Fourth Amendment
1. False Arrest/False Imprisonment
Harris also brings a false arrest and false imprisonment claim against the New
York state defendants.19 Docket Item 3 at ¶¶ 175-77. “A [section] 1983 claim for false
arrest, resting on the Fourth Amendment right of an individual to be free from

unreasonable seizures, including arrest without probable cause, is substantially the
same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845,
852 (2d Cir. 1996) (citations omitted). “Under New York law, to prevail on a claim for
false arrest, a plaintiff must show that (1) the defendant intended to confine the plaintiff,
(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.” Ashley v. City of

18 The Court does not decide whether Harris violated Chief Judge Rule 29, and
the factual disputes that prevent dismissal of that claim now may well be resolved at a
later stage of this case. Nor does this Court address whether any other prohibition on
filming inside the Erie County Building is permissible under the First Amendment and
therefore whether Harris was lawfully arrested for violating any such prohibition.
19 Because “[f]alse arrest is simply false imprisonment accomplished by means of
an unlawful arrest,” see Jenkins v. City of New York, 478 F.3d 76, 88 n.10 (2d Cir.
2007), this Court refers to Harris’s “false arrest/false imprisonment” claim as a false
arrest claim.
New York, 992 F.3d 128, 136 (2d Cir. 2021) (alterations, citation, and internal quotation
marks omitted).
An arrest is privileged if it was made with probable cause. See id. (“Probable
cause to arrest is a complete defense to an action for false arrest.”). “Probable cause

exists when one has knowledge of, or reasonably trustworthy information as to, facts
and circumstances that are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the person to be arrested.”
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014).
The New York State defendants argue that they had probable cause to arrest
Harris for violating New York Penal Law § 140.05.20 Docket Item 26-1 at 10. New York
Penal Law § 140.05 provides that “[a] person is guilty of trespass when he knowingly
enters or remains unlawfully in or upon premises.” “A person ‘enters or remains
unlawfully’ in or upon premises when he is not licensed or privileged to do so.” N.Y.
Penal Law § 140.00(5). And “[a] person who[] . . . enters or remains in or upon

premises which are at the time open to the public does so with license and privilege
unless he defies a lawful order not to enter or remain, personally communicated to him
by the owner of such premises or other authorized person.” Id. “Accordingly, to
establish probable cause for arresting” Harris “for criminal trespass,” the New York
State defendants “must show that (1) there was a lawful order excluding [Harris] from
the property; (2) that the order was communicated to him by a person with authority to

20 The New York State defendants do not argue that there was probable cause to
arrest Harris for violating any other law.
give the order; and (3) that [he] defied the order.” Yorzinski v. City of New York, 175 F.
Supp. 3d 69, 77 (S.D.N.Y. 2016).
Harris says that he “entered the lobby within the publicly accessible area [of] the
Erie County Building” and was “immediately [] given directives to stop recording.”

Docket Item 3 at ¶ 141. Harris apparently refused to do so and instead “repeatedly
asked” the officers “to articulate the law” that barred his recording. Id. at ¶¶ 143, 146.
After Harris was “informed . . . that he was now trespassing,” he then was “grabbed . . .
without any warning” and arrested. Id. at ¶¶ 147-49. Based on all that, the New York
State defendants argue that the officers had probable cause to arrest Harris because he
violated Chief Judge Rule 29, was therefore asked to leave the premises, and refused
to do so. See Docket Item 26-1 at 10-11.
But as mentioned above, there is a factual dispute as to whether Harris violated
Chief Judge Rule 29. And again, the New York State defendants have not taken the
opportunity to reply in support of their motion to dismiss and explain why that dispute

would not affect any probable cause analysis. For those reasons, this Court cannot
conclude at this stage that Harris refused a lawful order to leave the Erie County
Building and that his arrest therefore was supported by probable cause. See
Gerskovich v. Iocco, 2017 WL 3236445, at *4 (S.D.N.Y. July 17, 2017) (denying
summary judgment on false arrest claim because “[t]here is a sharp dispute as to where
[the p]laintiff was standing, the nature of [his] conduct, and whether there was probable
cause to arrest [the p]laintiff for trespass and/or disorderly conduct” (citation and internal
quotation marks omitted)); Yorzinski, 175 F. Supp. 3d at 77-78 (denying summary
judgment on false arrest claim where “[the d]efendants have not established that [the
plaintiff’s] removal from Yankee Stadium constituted a lawful order to leave all Yankees-
owned property[] . . . such that [the officer] had probable cause to arrest [the plaintiff] for
criminal trespass”); see also Enoch, 728 F. App’x at 453-55 (accepting the plaintiffs’
allegations that they did not violate rule prohibiting filming inside courthouse and

affirming denial of qualified immunity on Fourth Amendment claims). For those
reasons, Harris’s false arrest claim against the New York State defendants may
proceed.
2. Malicious Prosecution
Harris also brings a malicious prosecution claim against the New York State
defendants. Docket Item 3 at ¶¶ 178-80. “To prevail on a malicious prosecution claim

under New York law and federal law, a plaintiff must show: (1) the commencement or
continuation of a criminal proceeding by the defendant against the plaintiff, (2) the
termination of the proceeding in favor of the accused, (3) the absence of probable
cause for the criminal proceeding[,] and (4) actual malice.” Kee v. City of New York, 12
F.4th 150, 161-62 (2d Cir. 2021) (citation and internal quotation marks omitted). “For a
malicious prosecution claim under [s]ection 1983, a plaintiff also must demonstrate a
‘sufficient post-arraignment liberty restraint.’” Id. (quoting Rohman v. N.Y.C. Transit
Auth., 215 F.3d 208, 215 (2d Cir. 2000)).
The New York State defendants first argue that “there are no factual allegations

that plausibly suggest that [they] acted with malice in filing criminal charges.” Docket
Item 26-1 at 12. But “[a] lack of probable cause generally creates an inference of
malice” for a malicious prosecution claim. See Boyd v. City of New York, 336 F.3d 72,
78 (2d Cir. 2003). For the same reasons that this Court found that the New York State
defendants have not established probable cause to arrest Harris, see supra at 30-33,
the Court finds that they have not met their burden of establishing probable cause to
charge and prosecute him.21 See Kee, 12 F.4th at 166 (“Probable cause, in the context
of malicious prosecution, has been described as such facts and circumstances as would

lead a reasonably prudent person to believe the plaintiff guilty.” (alterations omitted)).
And because there is a question of fact as to probable cause, there is also a question of
fact as to actual malice.
But Harris has not alleged a viable malicious prosecution claim against every
New York State defendant. “While police officers do not generally ‘commence or
continue’ criminal proceedings against defendants, a claim for malicious prosecution
can still be maintained against a police officer if the officer is found to ‘play an active
role in the prosecution, such as giving advice and encouragement or importuning the
authorities to act.’” Bermudez v. City of New York, 790 F.3d 368, 377 (2d Cir. 2015)
(alterations omitted) (quoting Manganiello v. City of New York, 612 F.3d 149, 163 (2d

Cir. 2010)). A plaintiff also may show that an officer commenced or continued criminal
proceedings “by showing that [the] officer[] brought formal charges and had the person
arraigned, or filled out complaining and corroborating affidavits, or swore to and signed
a felony complaint.” Rodriguez v. City of New York, 590 F. Supp. 3d 518, 534 (E.D.N.Y.

21 What is more, the New York State defendants address only whether there was
probable cause to charge Harris with trespassing. See Docket Item 26-1 at 11-12.
“Although probable cause to prosecute is a complete defense to a claim of malicious
prosecution, such probable cause must be shown as to each crime charged in the
underlying criminal action.” Kee, 12 F.4th at 166 (citations omitted). So even if there
were probable cause to charge Harris with trespassing, the New York State defendants
have not shown that there was probable cause to charge Harris with the other offenses
with which he was charged.
2022) (quoting Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 382-83
(S.D.N.Y. 2005)); see also Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010)
(“Under New York law, police officers can ‘initiate’ prosecution by filing charges or other
accusatory instruments.”). “In addition, a police officer may be held liable for malicious

prosecution when he creates false information likely to influence a jury’s decision and
forwards that information to prosecutors.” Maldonado v. City of New York, 2014 WL
787814, at *6 (S.D.N.Y. Feb. 26, 2014) (citation and internal quotation marks omitted).
McEvoy signed a charging instrument, and he therefore can be held liable for
malicious prosecution. See Docket Item 26-2 at 3-6 (four criminal complaints signed by
McEvoy). But Harris does not explain how the other New York State defendants—all
officers who allegedly were involved in Harris’s arrest—played some role in Harris’s
prosecution that might subject them to liability for malicious prosecution.22 For that
reason, Harris’s malicious prosecution claims against Costa, Deneka, Hewitt, Perry,
Schumacher, Schrier, and Stark are subject to dismissal. See, e.g., Pierre v. Rocco,

2021 WL 950021, at *3 (E.D.N.Y. Mar. 12, 2021) (“It has long been settled that
participation in the arrest, without more, is insufficient to establish the requisite initiation
[of criminal proceedings].”). Nevertheless, in light of his pro se status, Harris may

22 Harris does allege that some defendants “maliciously and callously falsified
official documents in order to add more charges to . . . prolong [the] unreasonable
prosecution.” Docket Item 3 at ¶ 179. Because Harris brings a malicious prosecution
claim against the New York State defendants, two Buffalo police officers, the City of
Buffalo, and Erie County, Docket Item 3 at ¶¶ 178-80, it is unclear which defendant or
defendants allegedly falsified documents. Nor is it clear exactly what the allegedly
falsified documents are or what was false about them. Harris may amend his complaint
to explain what those falsified documents are and how those falsified documents might
show that certain defendants might be liable for malicious prosecution.
amend his complaint to allege how the remaining New York State defendants could be
liable for malicious prosecution here. See Cuoco, 222 F.3d at 112.

3. Unreasonable Seizure
Harris also brings a Fourth Amendment claim against the New York State
defendants for “preventing free access to public areas.” Docket Item 3 at ¶¶ 185-88.
The New York State defendants argue that this claim is not cognizable under the Fourth
Amendment. Docket Item 26-1 at 14. For the reasons stated above, this Court
construes that claim as an unreasonable seizure claim. See supra at 13 n.10. And for
reasons similar to those outlined above, Harris has plausibly alleged that he was seized
under the Fourth Amendment: He says that he was forcibly “grabbed” and “shoved”

while he was removed from the Erie County building lobby. Docket Item 3 at ¶¶ 148-49.
Absent any other argument about why Harris’s unreasonable seizure claim is not viable,
that claim may proceed against the New York State defendants.23
4. Unreasonable Search of Harris and Seizure of Phone
Harris also says that after he was arrested, the New York State defendants

unlawfully searched him and seized his phone. Docket Item 3 at ¶¶ 189-93. The Fourth
Amendment provides that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be

23 The Court recognizes that this claim shares many similarities with Harris’s
false arrest claim, especially because false arrest “rest[s] on the Fourth Amendment
right of an individual to be free from unreasonable seizures.” Weyant, 101 F.3d at 852.
But Harris may plead claims in the alternative, see Fed. R. Civ. P. 8(a), and he has
alleged a viable false arrest claim for the reasons stated above. So while those two
claims ultimately may rise and fall together, they both may proceed at this time.
violated.” U.S. Const. amend. IV. “When the police undertake a search ‘to discover
evidence of criminal wrongdoing, reasonableness generally requires the obtaining of a
judicial warrant.’” United States v. Jones, 43 F.4th 94, 108 (2d Cir. 2022) (quoting Riley
v. California, 573 U.S. 373, 382 (2014)). But “it [is] well accepted” that a “search

incident to a lawful arrest” is “an exception to the warrant requirement.” Riley, 573 U.S.
at 382.
Here, the New York State defendants say that Harris’s unreasonable search and
seizure claim challenging the seizure of his phone should be dismissed because he was
searched incident to a lawful arrest. But for the reasons stated above, this Court
concludes that Harris has adequately alleged that he was not lawfully arrested. For that
reason, and because the New York State defendants offer no further argument other
than the fact that he was purportedly searched incident to a valid arrest, Harris’s
unreasonable search and seizure claim challenging the seizure of his phone may
proceed against the New York State defendants. See, e.g., Josie v. City of New York,

2023 WL 3765063, at *7 (E.D.N.Y. June 1, 2023) (denying motion to dismiss
unreasonable search and seizure claim where the plaintiff “allege[d] that the defendants
lacked probable cause for all three arrests . . . supporting a plausible inference that
those searches were not performed incident to a lawful arrest”).

5. Unreasonable Search of Phone
Harris also brings two other unreasonable search and seizure claims against the
New York State defendants, challenging the delay in obtaining a warrant for the search
of his phone and the search of his phone. Docket Item 3 at ¶¶ 194-204. In some
circumstances, “the Fourth Amendment allows the police to seize or secure [] property
without a warrant provided that they follow up by applying to a judge for a warrant to
search the property’s contents.” United States v. Smith, 967 F.3d 198, 205 (2d Cir.
2020). But “even a seizure based on probable cause is unconstitutional if police act
with unreasonable delay in securing a warrant.” Id. (quoting United States v. Martin,

157 F.3d 46, 54 (2d Cir. 1998)).
Harris says that after he was arrested, his “phone was taken away from him
without a warrant.” Docket Item 3 at ¶ 150. And he says that Buffalo police officers
Khalil and Wise then “received [Harris’s] phone from [] McEvoy and Schrier through
[the] chain of custody.” Id. at ¶ 153. About forty days after the Buffalo police officers
received the phone, Harris “asked w[here] the search warrant was” during an
appearance in his case; in response, “the prosecutors stated to the Court that[] [they
were] working on that.” Id. “[S]ome time after” that, Khalil “su[b]mitted a warrant
application for the phone and the footage within the phone.” Id.
So Harris says that after he was arrested, his phone was turned over to Buffalo

police officers and that those officers waited about forty days before Khalil ultimately
sought a warrant to search the phone. Based on all that, it is unclear how any of the
New York State defendants who first encountered Harris at the Erie County Building
were personally involved in the allegedly unconstitutional delay in obtaining a search
warrant and the resulting unconstitutional search of his phone.24 See, e.g., Dos Santos

24 Harris appears to argue that all New York State defendants are liable for the
unconstitutional search because he was prosecuted for violating New York State law.
See Docket Item 29 at 27-28. But as noted above, the fact that an officer participated in
an arrest does not necessarily make that officer liable for the resulting prosecution. See
Bermudez, 790 F.3d at 377. And as currently pleaded, Harris’s amended complaint
states a viable malicious prosecution claim only against McEvoy.
v. Syracuse Police Dep’t, 2022 WL 16949542, at *4 (N.D.N.Y. Nov. 15, 2022) (finding
unreasonable search claim inadequately pleaded where the plaintiff “name[d], as
defendants, every officer who appear[ed] to have been involved in the search[] without
pleading any facts indicating that the officers other than [one defendant] were personally

involved in the alleged constitutional violations relating to the search”), adopted, 2023
WL 3612842 (N.D.N.Y. May 24, 2023).
For that reason, Harris’s Fourth Amendment claims against the New York State
defendants challenging the delay in obtaining a search warrant and the resulting search
of his phone are subject to dismissal. In light of his pro se status, however, Harris may
amend his complaint to allege how the New York State defendants were personally
involved in any unconstitutional search. See Cuoco, 222 F.3d at 112.

C. Fourteenth Amendment
Like his claims against the Erie County defendants, Harris also refers to the
Fourteenth Amendment in his claims against the New York State defendants. Docket
Item 3 at ¶¶ 175-204. The New York State defendants have moved to dismiss any
Fourteenth Amendment claims. Docket Item 26-1 at 16-17. Again, because it is not
clear that Harris brings standalone Fourteenth Amendment claims, there are no such
claims to dismiss.

D. Negligent Supervision
Finally, Harris brings a claim against Schumacher, McEvoy, and Perry for
“supervisory negligent liability under Monell.” Docket Item 3 at ¶¶ 205-07 (italicization
added). But Monell applies to local governments only; it does not extend to the states.
See, e.g., Quern v. Jordan, 440 U.S. 332, 338 (1979) (“This Court’s holding in Monell
was ‘limited to local government units which are not considered part of the State for
Eleventh Amendment purposes’ . . . .” (quoting Monell, 436 U.S. at 690 n.54)). And
negligent supervision is not sufficient to establish an individual supervisor’s liability for
an underlying constitutional violation. See, e.g., Tangreti, 983 F.3d at 620 (“[I]t is not

enough for [a plaintiff] to show that [a defendant] was negligent, or even grossly
negligent, in [the defendant’s] supervision of the” lower-level “officers or in failing to act
on the information [the defendant] had.”); Braxton v. Bruen, 2021 WL 4950257, at *5 n.8
(N.D.N.Y. Oct. 25, 2021) (“Although negligent supervision was one of the ways [to]
establish[] personal involvement in a constitutional violation under [section] 1983, after
Tangreti, [a p]laintiff must prove that the individual [d]efendants themselves” committed
the constitutional violation.). For those reasons, Harris’s “supervisory negligent liability”
claim is dismissed without leave to amend. See Cuoco, 222 F.3d at 112.

CONCLUSION
For the reasons stated above, the Erie County defendants’ motion to dismiss,
Docket Item 9, and the New York State defendants’ motion to dismiss, Docket Item 26,

are GRANTED in part and DENIED in part. Harris’s Fourth Amendment excessive force
and unreasonable seizure claims against Bishop; his “supervisory negligent liability
under Monell” claim against Schumacher, McEvoy, and Perry; and any official-capacity
claims against the New York State defendants are dismissed. The following claims may
proceed: (1) Harris’s First Amendment claim against Alabanese, Bishop, Roetzer, and
Wahl; (2) his Fourth Amendment unreasonable seizure claim against Alabanese,
Roetzer, and Wahl; (3) his Fourth Amendment excessive force claim against
Alabanese, Roetzer, and Wahl; (4) his First Amendment claim against the New York
State defendants; (5) his false arrest claim against the New York State defendants; (6)
his Fourth Amendment unreasonable seizure claim against the New York State
defendants; (7) his malicious prosecution claim against McEvoy; and (8) his Fourth
Amendment unreasonable search and seizure claim against the New York State

defendants related to the seizure of his phone. Harris’s remaining claims against the
Erie County defendants and the New York State defendants are subject to dismissal,
but he may amend his complaint within 45 days of the date of this order to correct the
deficiencies noted above.
If Harris does not amend his complaint within 45 days of the date of this order,
those remaining claims against the Erie County defendants and the New York State
defendants will be dismissed without further order, and the Clerk of the Court shall
terminate Erie County as a defendant. No later than 30 days after any second
amended complaint is filed, the Erie County defendants and New York State defendants
may answer, move against, or otherwise respond to the second amended complaint. If

Harris does not amend his complaint within 45 days of the date of this order, the
remaining Erie County defendants and the New York State defendants shall answer the
amended complaint within 60 days of the date of this order.

SO ORDERED.

Dated: September 8, 2023
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366458. Public record. Not legal advice.