Islam v. Tirelli

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------- X

S.M.N. ISLAM, on behalf of himself and his :

daughter, S.I., :

:

Plaintiff, : MEMORANDUM DECISION AND

: ORDER

-against- :

: 22-cv-812 (BMC)

POLICE OFFICER ANDREW TIRELLI, :

SGT. CHRISTIAN RODRIGUEZ, OFFICER :

JOHN DOES 1-4, and THE CITY OF NEW :

YORK, :

:

Defendants. :

:

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COGAN, District Judge.

The two defendant police officers and other police officers received radio runs as a result

of several 911 calls from witnesses about an ongoing struggle between a man and a girl or

woman on the street. When defendants and the other police officers arrived, which was

subsequent to the arrival of FDNY EMT ambulance workers, they received conflicting views

about what had happened. The victim, who turned out to be plaintiff’s runaway teenage

daughter, initially denied that plaintiff was her father, and witnesses at the scene told the police

that plaintiff had attacked her. After interviewing all of the witnesses, the victim-daughter, and

plaintiff, the police officers arrested plaintiff and charged him with endangering the welfare of a

child and harassment in the second degree. The entire police participation in the encounter was

recorded on six police officer bodycams, collectively totaling hours of footage. Plaintiff was

arrested, arraigned, and released, and based on the encounter, has brought false arrest and

malicious prosecution claims under 42 U.S.C. § 1983.

Plaintiff has also asserted a First Amendment claim under § 1983 because while plaintiff

was shackled at the hospital (having requested to be taken there), he was unable to wash his

hands and feet and therefore, he asserts, he was unable to perform his religious duty to pray. But

NYPD protocol requires officers to shackle arrestees while receiving medical treatment at

hospitals, and plaintiff had already demonstrated at the police precinct that he was permitted to

satisfy his religious obligation to pray without preceding it with ritual washing.

It is not clear why any plaintiff’s lawyer would bring this action. The Fourth Amendment

claim presents a classic case of officers having to make a call in the field about who to believe

and who not to believe. The overwhelming weight of the field evidence supported the officers’

call. The First Amendment claim is equally without substance as defendants had an obvious

legitimate penological objective in keeping plaintiff in shackles at the hospital. Whether plaintiff

thinks he is pursuing justice or compensation or both, he should have been talked out of bringing

this case because this unfortunate family has enough problems without having to assume the

additional burden of non-viable litigation.

BACKGROUND

I. The Arrest

About 6:00 one evening, the NYPD received several 911 calls from multiple witnesses

reporting an ongoing attempted kidnapping, assault, or harassment at the same location in

Queens. The calls described the assailant as a middle eastern or Indian male wearing a white or

beige robe and a girl “screaming for help” and “being forced” to go with the assailant.

Defendants, Sgt. Christian Rodriguez and Police Officer Andrew Tirelli, among other

police officers, responded to the calls. When they got there, they found an FDNY ambulance

with its doors open. Plaintiff was standing outside of the doors along with other civilians, two

FDNY EMTs, and non-party Police Officer Joseph Gauthier.

The bodycam footage shows that as Officer Gauthier approached the ambulance, plaintiff

was in an agitated state and was being urged by one of the unidentified civilians to move towards

or enter the ambulance where the victim was. Officer Gauthier told plaintiff multiple times to

“get back” while pointing away from the ambulance, but plaintiff continued to move towards the

open doors of the ambulance while yelling; Officer Gauthier placed him in handcuffs and moved

him away from the ambulance and ultimately to a police car. As plaintiff was approaching the

ambulance, one of the EMTs pointed at plaintiff and said, “this guy attacked her.”1

When Sgt. Rodriguez arrived at the scene, he spoke with two detectives already there and

a civilian witness who identified himself as Mr. Carolan. Mr. Carolan stated that plaintiff

assaulted a girl; was holding her by the throat; and that he (Mr. Carolan) had stepped in to help

the girl. Another EMT told the officers, “they’re saying the father over there was assaulting her”

and that Mr. Carolan “stepped in to help her out because the father was attacking.” (Mr. Carolan

was briefly handcuffed until other witnesses explained to police that he had been trying to

prevent plaintiff from assaulting the victim.)

Police officers on the scene spent about 30 minutes speaking with witnesses. One

witness stated that the victim had yelled “help me help me” while plaintiff was dragging her.

Another witness, who identified herself as Malia Leonard on the bodycam, confirmed this and

said that others had tried to pull the victim away from plaintiff. Ms. Leonard, very distraught at

1 Plaintiff purports to dispute this, but Officer Gauthier’s bodycam footage shows it clearly. He was firmly directing

plaintiff to “get back” while a civilian was urging plaintiff to continue trying to enter into the ambulance, and

plaintiff determined to follow the civilian’s direction instead of that from Officer Gauthier. It was at that point that

Officer Gauthier handcuffed plaintiff.

what she had observed of the exchange between plaintiff and the victim, told the police officers

that plaintiff had stated he (plaintiff) was “going to stone” the girl while he was dragging her and

that he had threatened to “kill her.”2 Crying, she stated that she couldn’t stand to see a woman

treated that way. Even plaintiff’s mother acknowledged that she and plaintiff were “trying to

restrain” the daughter and their daughter was yelling “let go of me, let go of me.”

Sgt. Rodriguez and an EMT spoke to the victim in the ambulance. She initially denied

that plaintiff was her father. She stated that plaintiff had choked her and dragged her by her

clothes, and that plaintiff had beaten her in the past. On the way to the hospital, she told Officer

Tirelli that plaintiff had grabbed her by the collar, dragged her, choked her, and would not let her

go.

At the hospital, Officer Tirelli re-interviewed the victim and took her sworn, handwritten

statement on a Domestic Incident Report form (DIR), essentially a criminal complaint, which she

then signed with a very distinctive signature. She wrote that plaintiff had trapped her inside of a

Dunkin’ Donuts and dragged her by her collar, that the victim had asked strangers for help, and

that plaintiff was “highly aggressive, loud, and abusive.”

II. The First Amendment Issue

As noted above, plaintiff was arrested for endangering the welfare of a child and

harassment in the second degree. He was transported to the 114th Precinct. He was brought into

a room and he asked to be allowed to pray. He testified at his deposition that the officers there

were “very helpful to me to take care of my religious [sic] and prayer,” and that he was

unshackled. He did not ask to wash his hands or feet before praying.

2 Plaintiff concedes the “stone her” remark but not the “kill her” remark. Not that it makes any difference, but again,

another one of the bodycams, this one from an Officer Moorish, records the witness relating the “kill her” threat,

right at the video location cited in defendants’ Rule 56.1 statement.

Plaintiff then complained of chest pain and was transported to the hospital. At the

hospital, he was placed in leg restraints. In this action, he claims that because of the leg

restraints, he could not wash his hands and feet and therefore he was unable to pray.

Plaintiff was arraigned, released, and made no post-arraignment appearances. The case

was not indicted and ultimately dismissed under New York’s speedy trial statute.

III. The Negligence Claim

A few weeks after the incident, plaintiff reported to the police that his 13 year old

daughter was having a sexual relationship with a 21 year old male. Two police officers came to

plaintiff’s house, but advised plaintiff that they could not take a report. The next day, the police

called plaintiff to inform him that they had located plaintiff’s daughter with the 21 year old male.

By the time plaintiff arrived to pick up his daughter, the police had released the 21 year old. The

21 year old continues to have a sexual relationship with plaintiff’s daughter. Plaintiff alleges that

the police were negligent in refusing to take a report and in releasing the 21 year old when they

found him with plaintiff’s daughter.

DISCUSSION

I. False Arrest under 42 U.S.C. § 1983

Probable cause is a complete defense both to an action for false arrest and malicious

prosecution. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted);

Manganiello v. City of New York, 612 F.3d 149, 161-62 (2d Cir. 2010) (quotation omitted).

There is a long line of cases stemming from the Second Circuit’s decision in Krause v. Bennett,

887 F.2d 362 (2d Cir. 1989), which recognize that when the police have probable cause to make

an arrest and are faced with conflicting versions of whether the suspect has a defense, the police

officer need not and should not “sit as prosecutor, judge, or jury,” even if the facts on which they

rely turn out to be wrong or mistaken. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir.

1994) (“probable cause can exist even where it is based on mistaken information, so long as the

arresting officer acted reasonably and in good faith in relying on that information”) (quotation

omitted)); Palacios v. City of New York, No. 15-cv-386, 2017 WL 4011349, at *9 (S.D.N.Y.

Sept. 11, 2017) (finding probable cause for arrest based on warrant that had been vacated

unbeknownst to arresting officer). The Supreme Court has held that the proper analysis on a

false arrest claim is “whether the facts known by the arresting officer at the time of the arrest

objectively provided probable cause to arrest.” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.

2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). “[T]he arresting officer does not

have to prove plaintiff’s version wrong before arresting him.” Curley v. Vill. of Suffern, 268

F.3d 65, 70 (2d Cir. 2001) (citation omitted).

By my count, based on reviewing the bodycam footage, at least three and probably more

witnesses advised Sgt. Rodriguez and Officer Tirelli that plaintiff had attacked the victim. That

included a report by one witness that plaintiff had said he was going to stone and kill the victim.

It also included a report that the victim was yelling “help me help me” while she was being

dragged. It included a report by a bystander who said he attempted to pull plaintiff off of the

victim. The victim herself repeatedly told the officers both in the ambulance, on the way to the

hospital, and at the hospital that plaintiff had grabbed her, choked her, and refused to let her go.

The victim then signed a sworn statement to that effect. The bodycam footage also shows

Officer Gauthier telling plaintiff to move away from the ambulance and plaintiff continuing to

move towards the ambulance. It is hard to imagine a clearer case of probable cause.

Plaintiff’s efforts to rebut probable cause are insubstantial. First, plaintiff points to the

fact that the victim changed her story multiple times and asserts she should therefore not have

been credited by the officers. It is true that the victim changed her story multiple times and

presented as a confused teenager. That is immaterial. First of all, the first story that the victim

told the officers about being attacked was consistent with three or four other disinterested

witnesses, and she never changed that part of her story that plaintiff had attempted to drag her.

But more importantly, how common is it in a domestic violence situation for the victim to

change her story to absolve her attacker? Police officers are entitled to play it conservatively

because if they make a mistake and the victim’s first story proves to have been correct, and her

subsequent recantation or revision was made out of fear or change of heart, releasing the victim

to her assailant could have injurious or even more dire consequences. As this Court noted on

very similar facts in Torres v. City of New York, No. 20-cv-4077, 2022 WL 955152, at *4

(E.D.N.Y. March 30, 2022):

The courts in this Circuit, scientists, and commentators have repeatedly

recognized the pressure on domestic violence victims to recant and protest their

attackers’ innocence and the unreliability of those recantations. See e.g. United

States v. Carthen, 681 F.3d 94, 103 (2d Cir. 2012) (“[A] recantation is not unusual

in domestic violence cases [because v]ictims of this type of violence often are

protective of, and deny allegations against, their abusers.”); Haouari v. United

States, 510 F.3d 350, 353 (2d Cir. 2007) (a recantation from a victim of domestic

violence should be viewed “with the utmost suspicion.”); Lindsay C. Malloy et

al., Filial Dependency and Recantation of Child Sexual Abuse Allegations, 46 J.

Am. Acad. Child Adolesc. Psychiatry 2 (2007) (finding high rates of recantation

among substantiated cases of child abuse and recognizing the role of familial

pressures to recant); Lisa Marie DeSanctis, Bridging the Gap Between the Rules

of Evidence and Justice for Victims of Domestic Violence, 8 Yale J. L. &

Feminism, 359, 367-68 (1996) (finding that victims of domestic violence are

uncooperative in approximately 80% to 90% of criminal prosecutions).

That is why “[n]either an arrestee’s protestations of innocence nor a putative victim’s

inconsistent statements necessarily vitiate probable cause.” Fogelman v. Donato, 111 F. Supp.

3d 282, 285 (E.D.N.Y. 2015) (citation omitted).

Although maintaining that his daughter told the police a “barrage of lies” and so they

should not have believed anything she said, plaintiff has submitted an affidavit from his daughter

in opposition to defendants’ motion. There, she swears, referring to the sworn statement she

gave Officer Tirelli in the hospital, that she never saw Officer Tirelli in the hospital; that the

statement purporting to bear her signature is not her signature; that she gave him no statement;

and she has never seen it before in her life. Ironically, this affidavit, from a witness who plaintiff

says the defendants should not have believed, forms the main part of plaintiff’s effort to raise an

issue of fact on this motion.

But even for purposes of summary judgment, her affidavit has to be disregarded as

patently incredible because her highly distinctive signature on the affidavit precisely matches her

signature on the DIR that she signed at the hospital. How could Officer Tirelli have obtained and

then forged her signature under her handwritten portion of the DIR in which she described what

happened to her? To accept the affidavit plaintiff has submitted on this motion, a jury would

have to find that that Officer Tirelli somehow obtained plaintiff’s signature and added it to her

own handwritten statement in the DRI, even though the statement was consistent with at least

some of the versions she related on the bodycam.

If plaintiff is offering this affidavit to show that his daughter’s story on the bodycam gave

rise to doubt about her story that plaintiff attacked her, that is fine, but it does not avoid the fact

that other witnesses corroborated that story. If plaintiff, on the other hand, submitted the

affidavit to raise an issue of fact as to whether she signed the DRI, no reasonable jury could find

in his favor. All the affidavit really does is confirm that this is a broken family in need of

counseling.

Plaintiff next argues that there was a prelude to his attempt to restrain the officers and

that Sgt. Rodriguez and Officer Tirelli should have weighed that in the balance. According to

the verified complaint and plaintiff’s deposition testimony, when plaintiff learned that his wife

had scheduled a meeting with his daughter, plaintiff called a caseworker from the Administration

for Child Services, who instructed plaintiff to go to the police and ask them to meet plaintiff, his

wife, and daughter at the agreed meeting location. Plaintiff states that he went to the 114th

precinct to request this help. He avers that the police told him to go to the meeting location, and

call 911 when he got there. He further avers that he did that, but the police didn’t show up until

later when bystanders began to call, so that when his daughter began to leave, he had no choice

but to restrain her.

Despite discovery, plaintiff has produced no records that he made any such 911 calls, but

assuming that he did for purposes of this motion, it is again immaterial. Plaintiff has failed to

produce any evidence that Sgt. Rodriguez or Officer Tirelli received radio runs about those calls

or even knew of those calls other than plaintiff alleging at the scene that he made them. And in

determining probable cause to arrest, it is the information in these officers’ possession that

matters, not information that they might be able to retrieve through an exhaustive investigation

after the fact. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (“Once a

police officer has a reasonable basis for believing there is probable cause, he is not required to

explore and eliminate every theoretically plausible claim of innocence before making an arrest.”

(citations omitted)). Moreover, even if the officers had received knowledge of such calls, it

would have merely added to the mix of conflicting information upon which they had to make the

judgment call of either releasing the alleged victim to her alleged assailant or detaining her

alleged assailant. They made the latter; it was within their discretion to do so.

Finally, plaintiff has submitted an affidavit in opposition from a witness on the scene.

The identity of the witness was disclosed to defendants on the eve of the close of discovery, so

they had no chance to issue a subpoena and take her deposition. More importantly, the affidavit

is almost entirely inadmissible, full of hearsay, argument, opinion, and conclusions to which no

witness could testify at trial. To the extent I can glean anything admissible from it, it is that the

witness was at the scene before the police arrived; that she observed that the victim was resisting

plaintiff’s efforts to get her to come home; that this witness joined her father’s entreaties to

persuade her; that the witness did not see plaintiff choke her, grab her, drag her, or threaten her;

and that plaintiff remained “remarkably calm.” The witness says she told unidentified police

officers that plaintiff was simply trying to retrieve his runaway daughter.

The witness does not state that she spoke to Officer Tirelli or Sgt. Rodriguez. But even if

she did, and assuming the truth of the admissible portions of this affidavit, all it does, again, is

add to the mix of conflicting information through which the officers had to sort. It does not

dissipate probable cause from other witnesses who told them a contrary version.

No reasonable jury could watch these bodycams and conclude anything other than that in

the midst of a heated street confrontation, the police were acting professionally, demonstrating

restraint, doing their best to figure out what happened, and protect the victim from the risk of

violence. Defendants’ decision to arrest plaintiff was well supported by probable cause.3

II. Malicious Prosecution

To establish a claim of malicious prosecution, a plaintiff must prove: “(1) the initiation or

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

3 Plaintiff asserts that there is an affirmative defense to endangering the welfare of a child when the child is being

restrained by a parent, citing N.Y. Penal Law § 35.10(1). But it is well-settled that officers need not exclude the

existence of affirmative defenses in determining the existence of probable cause. See Ricciuti, 124 F.3d at 128

(citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979)).

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

malice as a motivation for defendant’s actions.” Manganiello, 612 F.3d at 161 (internal

quotation marks omitted). “[T]he existence of probable cause is a complete defense to a claim of

malicious prosecution.” Id. at 161-62 (citation omitted).

First, plaintiff has produced no evidence that Sgt. Rodriguez initiated or continued the

criminal prosecution of plaintiff. Plaintiff cites to Officer Tirelli’s deposition for a contrary

conclusion, but his testimony simply does not say that. It merely says that the two defendants

conferred and because the victim ultimately disclaimed having been strangled – just dragged by

her collar – a charge of criminal obstruction of breathing should not be included. And it was not.

Indeed, based on Mr. Carolan’s witness statement that plaintiff grabbed the victim around the

throat (in which he demonstrated a stranglehold with two hands), there might well have been

probable cause to include an obstruction of breathing charge.

Similarly, plaintiff mischaracterizes Officer’s Tirelli’s testimony as stating that Sgt.

Rodriguez “processed” plaintiff's arrest (whatever that means), but Officer Tirelli didn’t testify to

that either. The question to him was: “At some point, did Sgt. Rodriguez approve of the arrest

either in writing or verbal[ly] to you?”, to which Officer Tirelli answered, “I believe so, I don’t

believe specifically.” This refers to the arrest, not the prosecution. No reasonable jury could

find based on that statement that Sgt. Rodriguez initiated or continued the criminal prosecution

of plaintiff or had any role in it at all.

As to Officer Tirelli, who apparently did cause the DIR to be forwarded to the District

Attorney for arraignment, plaintiff relies on the victim’s affidavit submitted in this motion stating

that the DIR is a forgery, i.e., not her statement. As noted above, one need not even look at the

bodycams to see the implausibility of this affidavit – the identity of her signature on the DIR and

the affidavit she submits here are enough. But when one adds in the bodycams that are largely

consistent with the DIR, plaintiff’s argument becomes absurd. Nor was there any erosion of

probable cause from Officer Tirelli’s failure to disclose conflicting statements made by

eyewitnesses at the scene. See Savino v. City of New York, 331 F.3d 63, 74-75 (2d Cir. 2003)

(dismissing malicious prosecution claim based on allegation that police officer did not report all

potentially mitigating circumstances to the Assistant District Attorney); Richards v. City of New

York, No. 97-cv-7990, 2003 WL 21036365, at *17 (S.D.N.Y. May 7, 2003) (conflicting

eyewitness testimony not sufficient to undermine probable cause). Just as there was probable

cause to arrest, there was probable cause to prosecute.

III. First Amendment Claim

Plaintiff contends that by not removing his shackles in the hospital, a non-party police

officer, Officer Chaz Morrish, deprived him of his First Amendment right to practice his religion

by washing before praying. “To assess a free exercise claim, a court must determine (1) whether

the practice asserted is religious in the person’s scheme of beliefs, and whether the belief is

sincerely held; (2) whether the challenged practice of the [police officers] infringes upon the

religious belief; and (3) whether the challenged practice of the [police officers] furthers

legitimate penological objectives.” Kravitz v. Purcell, 87 F.4th 111, 128 (2d Cir. 2023) (quoting

Farid v. Smith, 850 F.2d 917, 926 (2d Cir. 1988)) (cleaned up). There are several problems with

plaintiff’s First Amendment argument.

First, as mentioned, Officer Morrish is not a party, and plaintiff’s request in opposition to

defendants’ motion to substitute him for a “John Doe” defendant is not properly interposed. It is

clear from plaintiff’s deposition that he thought the officer’s name was “Officer Morris.”

Defendants had made it clear early in discovery that the correct name was Officer Chaz Morrish;

indeed, they even provided the bodycam footage so plaintiff would have no problem recognizing

him. Plaintiff made no effort to make the John Doe substitution until six months after the

disclosure of Officer Morrish’s correct name and the bodycam, and one month after the close of

discovery.

Even then, plaintiff never requested leave to file a motion to substitute. Rather, in

responding to defendants’ premotion conference letter requesting leave to move for summary

judgment because plaintiff had failed to identify the officer allegedly responsible for refusing to

remove the shackles, plaintiff merely “request[ed] this court grant leave to amend the caption to

replace John Doe with Officer Chaz Moorish.” Plaintiff repeats that request in opposing

defendants’ summary judgment motion but, again, there has never been a cross-motion to amend.

The cases are clear that this kind of post-discovery, lackadaisical effort to add defendants

who could have been added far earlier is rarely accommodated. See Carlberg v. Loschiavo, No.

12-cv-00887, 2014 WL 5858153, at *3 (D. Conn. Nov. 12, 2014); cf. Watkins v. Doe, No. 04-

cv-0138, 2006 WL 648022, at *3 (S.D.N.Y. Mar. 14, 2006) (dismissing without prejudice claims

against “John Doe” defendants where “despite having the full opportunity to conduct discovery,

plaintiff has not yet identified and served [those] defendants . . . within 120 days of filing the

complaint . . . [and] has not sought an extension of the time allowed”). We should not have to

reopen discovery at this late stage and Officer Moorish should not have to start defending

himself now over an incident that occurred four years ago when plaintiff has had reason to know

of his involvement for years. Moreover, because plaintiff never formally moved, nor even

sought to move to amend to add Officer Moorish as a defendant in place of a John Doe defendant

– instead just making a “request to amend the caption” – in a response to defendants’ premotion

conference letter – his addition at this point would raise a substantial statute of limitations issue.

This is because Rule 15’s “relation back” provision only applies to a newly discovered

defendant, not the discovery of the name of a defendant who was already present as a John Doe.

See Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995), modified, 74 F.3d

1366 (2d Cir. 1996) (per curiam); In re Vitamin C Antitrust Litig., 995 F. Supp. 2d 125, 128-131

(E.D.N.Y. 2014).

In any event, even if I were to add Officer Moorish in the absence of a motion and at this

late stage, defendants had a legitimate penological reason for refusing to remove plaintiff’s leg

restraints. Arrestees, when taken off police premises, have to be placed in restraints. The NYPD

manual requires it, see NYPD Patrol Guide Procedure No. 210-01 at 5 (“Leg restraints MUST be

used . . . for ALL prisoners being transported to a hospital for medical treatment.”); NYD Patrol

Guide Procedure No. 210-04 ¶ 21 (“Do not remove handcuffs or leg restraints, unless requested

by attending physician.” (emphasis in original)), and the legitimate reasons are obvious.

There is also substantial doubt as to whether the shackles burdened plaintiff’s ability to

pray as he had prayed at the precinct without washing his hands and feet. He now contends that

he needed to wash at the hospital because hospitals have water and precincts don’t, but of course,

precincts have water too.

Plaintiff’s First Amendment claim is without merit.

IV. Qualified Immunity

A public official is immune from suit unless, inter alia, the plaintiff’s rights were “clearly

established,” and it was “objectively unreasonable” for the public official to believe his actions

did not violate those rights. Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013).

A right is clearly established when it is “sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11

(2015) (quotation omitted). To be clearly established, the right must be the subject of Supreme

Court, or, in this case, Second Circuit, or New York Court of Appeals decisions that bear some

factual analogy to the facts of the instant case, so that the public officials are deemed on at least

constructive notice of the parameters of permissible conduct.

If I were not dismissing plaintiff’s claims on the merits, I would dismiss them on

qualified immunity grounds. Plaintiff’s false arrest and malicious prosecution claims devolve

into an argument that defendants mis-weighed the evidence of the witnesses on the scene. His

defense of his First Amendment claim cites no case holding that a prisoner in a brief detention,

hospital or not, must be given water for washing before praying. See White v. Pauly, 580 U.S.

73, 79 (2017) (“While this Court’s case law do[es] not require a case directly on point for a right

to be clearly established, existing precedent must have placed the statutory or constitutional

question beyond debate.” (quotation marks and quotation omitted)).

V. Negligence

The dismissal of plaintiff’s § 1983 claims means that there are no longer any pending

federal claims in this action. In that circumstance, when dismissal of federal claims occurs on

summary judgment, the “default rule” is that any state law claims should be dismissed without

prejudice to refiling in state court. As the Second Circuit has stated, “we have repeatedly said

that ‘if a plaintiff's federal claims are dismissed before trial, the state law claims should be

dismissed as well.’” Oneida Indian Nation of New York v. Madison Cnty., 665 F.3d 408, 437

(2d Cir. 2011) (quoting Brzak v. United Nations, 597 F.3d 107, 113-14 (2d Cir. 2010)).

Plaintiff has not responded to defendants’ argument that this Court should decline to

exercise supplemental jurisdiction over his negligence claim. I see no reason that to exercise

jurisdiction.

CONCLUSION

Defendants’ motion for summary judgment is granted and the complaint is dismissed,

except for the negligence claim, which is dismissed without prejudice.

SO ORDERED.

Brean VW, Cogan

U.S.D.J.

Dated: Brooklyn, New York

October 10, 2024

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