# Islam v. Tirelli

> District Court, E.D. New York · October 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10659691

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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. :
:
----------------------------------------------------------- X

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659691. Public record. Not legal advice.