Santiago v. City of Rome

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

LARRY SANTIAGO,

Plaintiff, 6:24-cv-00704 (BKS/MJK)

v.

CITY OF ROME, CITY OF ROME POLICE

DEPARTMENT, CITY OF ROME POLICE OFFICER

JOSEPH LONGO (in his individual and official

capacities), CITY OF ROME POLICE OFFICER JOHN

DOES #1-10 (in their individual and official capacities),

Defendants.

Appearances:

Plaintiff:

Pablo A. Fernandez

Horn Wright, LLP

400 Garden City Plaza, Suite 500

Garden City, NY 11530

Defendants:

Daniel Cartwright

David H. Walsh, IV

Foti Henry PLLC

403 Main Street - Suite 225

Buffalo, NY 14203

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Larry Santiago brings this action under 42 U.S.C. § 1983 and New York law

against Defendants City of Rome, City of Rome Police Department, City of Rome Police Officer

Joseph Longo, in his individual and official capacities, and City of Rome Police Officer John

Does #1-10 (“PO Does”), in their individual and official capacities. (Dkt. No. 1). Plaintiff brings

seven causes of action under federal law: (1) excessive force; (2) false arrest and unlawful search

and seizure; (3) malicious prosecution; (4) abuse of process; (5) fabrication of evidence; (6)

failure to intervene; and (7) a Monell1 claim for municipal liability. Plaintiff also brings state law

claims for assault and battery, false arrest/imprisonment, malicious prosecution; and respondeat

superior. (Dkt. No. 1).2 Presently before the Court is Defendants’ motion to dismiss for failure to

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 13). The motion is

fully briefed. (See Dkt. Nos. 13-1, 20, 21). For the reasons that follow, Defendants’ motion is

granted in part and denied in part.

II. FACTS3

On the morning of February 24, 2023, Plaintiff was “lawfully driving his motor vehicle” in

the City of Rome, New York when Defendants Longo and/or the Police Officer Doe Defendants

pulled Plaintiff over. (Dkt. No. 1, ¶¶ 13-15). Plaintiff “asked Longo and/or PO Does for the

reason he was being pulled over,” but “Longo and/or PO Does refused to respond to [Plaintiff]

and/or provide a reason for the stop.” (Id. ¶¶ 16-17). Rather, Longo and/or PO Does demanded

that Plaintiff exit the vehicle. (Id. ¶ 17). Plaintiff “asked again why he was being pulled over[,]”

and Longo and/or PO Does again “refused to respond to [Plaintiff] and demanded that he exit

the vehicle.” (Id. ¶ 18).

Longo and/or PO Does then reached into Plaintiff’s vehicle, grabbed him by his shirt

collar, and “forcibly removed [Plaintiff] from his vehicle.” (Id. ¶ 19). Plaintiff “again

1 Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

2 Plaintiff withdrew his state law claims for negligence and for negligent hiring, improper supervision, and improper

retention. (Dkt. No. 1, at 21-23; Dkt. No. 20, at 27).

3 These facts are drawn from the Complaint. (Dkt. No. 1). The Court assumes the truth of, and draws reasonable

inferences from, the well-pleaded factual allegations, see Lynch v. City of N.Y., 952 F.3d 67, 74–75 (2d Cir. 2020),

but does not accept as true any legal conclusions asserted therein, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

protested[,]” and Longo and/or PO Does “searched [Plaintiff] by putting their hands into

[Plaintiff]’s pant pockets.” (Id. ¶ 20). Longo and/or PO Does “then pulled [Plaintiff]’s arms

behind him, causing [Plaintiff] severe pain,” and handcuffed him. (Id.).

Longo and/or PO Does “then took [Plaintiff] over to the police vehicle,” while Plaintiff

“was protesting and asking why he was being arrested.” (Id. ¶ 21). Longo and/or PO Does “then

lifted [Plaintiff]’s arms by the handcuffs and began to slam [Plaintiff]’s body and head onto the

police vehicle multiple times.” (Id.). Longo and/or PO Does “also began to punch” Plaintiff

“while outside the patrol vehicle[.]” (Id.). Longo and/or PO Does “proceeded to search

[Plaintiff]’s vehicle without his consent,” then “forcibly threw [Plaintiff] into the police vehicle

and turned up the heat to an extremely high and uncomfortable temperature.” (Id. ¶¶ 21-22).

Plaintiff “attempted to explain to Longo and/or PO Does that his arm was hurting, and

that he required medical attention.” (Id. ¶ 23). He also “requested that the heat be turned down as

he was having difficulty breathing.” (Id.). Longo and/or PO Does ignored Plaintiff’s “requests,

pleas for help and medical attention.” (Id.). Plaintiff was “then taken to the precinct and was

denied medical treatment.” (Id. ¶ 27). Plaintiff alleges he was “continuously assaulted throughout

his body,” (id. ¶ 26), and that the injuries he suffered “are permanent in nature.” (id. ¶ 40).

On June 8, 2023, Plaintiff “was arrested, processed, and charged by Longo and/or PO

Does” with violating NY VTL §§ 0512, 0511(1)(A), and 0509(1), as well as NY PL § 145.14.

(Id. ¶ 28). Plaintiff alleges Defendants “had no evidence to substantiate the charges,” (id. ¶ 29),

and that Defendants Longo and the PO Does “provided false and fabricated information which

was used by the District Attorney’s Office to prosecute Plaintiff[,]” (id. ¶ 55). “Defendants filed

[a] false criminal felony complaint against Plaintiff with an ulterior purpose/motive to subject

Plaintiff to punishment without just cause[,]” and “in an attempt to protect Defendants Longo

and the PO Does “and satisfy their personal goals of covering up their wrongdoing[.]” (Id. ¶ 72-

73).

Plaintiff was required to appear multiple times in court, and “[i]nformation about the arrest

and/or prosecution was intentionally . . . released to the public, impugning [Plaintiff’s] reputation

and causing Plaintiff shame and humiliation.” (Id. ¶ 31). “Plaintiff was required and continued to

be required to appear in court after Defendants had incontrovertible evidence that Plaintiff was

not involved in the alleged crimes he was arrested and charged with,” and Plaintiff was required

to appear in court for arraignment. (Id. ¶¶ 32-33). “The prosecution of [Plaintiff] was terminated

favorably to him.” (Id. ¶ 34).

III. STANDARD

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a complaint

must provide ‘enough facts to state a claim to relief that is plausible on its face.’” Mayor & City

Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to

raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S. at 555). A

court must accept as true all factual allegations in the complaint and draw all reasonable

inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014)

(citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the

tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

IV. DISCUSSION

A. Materials Outside the Complaint

As a preliminary matter, Defendants seek to introduce “misdemeanor information sheets”

(Dkt. No. 13-3) and “body cam videos,” (Dkt. No. 13-1, at 7), or Body Worn Camera (“BWC”)

footage, (Dkt. Nos. 20, at 8; 21, at 5), for consideration in addition to the Complaint, (see Dkt.

No. 13-1, at 7-8). Defendants argue that “Plaintiff’s complaint relies heavily on the body cam

video contents and of [sic] the misdemeanor information sheets as he claims the officers

fabricated evidence and acted contrary to what is shown in the videos,” and these submissions

are therefore “integral to the complaint.” (Dkt. No. 13-1, at 8-9) (citing Manzi v. Goldfine, 2024

WL 2943876, at *4, 2024 U.S. Dist. LEXIS 104680, at *10-11 (S.D.N.Y. June 10, 2024)).

Defendants seek dismissal of Plaintiff’s section 1983 claims for excessive force, (Dkt. No. 13-1,

at 10-12), failure to intervene, (id. at 18), and state law claims for assault and battery, (id. at 23-

24), because Defendants assert that the BWC footage disproves Plaintiff’s allegations, (see, e.g.,

id. at 12). Defendants further argue that the misdemeanor information sheets, coupled with the

BWC footage, establish probable cause for Plaintiff’s arrest, and thereby defeat Plaintiff’s

section 1983 claims for false arrest and unlawful search and seizure, as well as Plaintiff’s state

law claims for false arrest and false imprisonment. (Id. at 12-13, 24). Defendants also assert that

Plaintiff’s 1983 claims for fabrication of evidence are “disproven” by the BWC footage and the

misdemeanor information sheets. (Id. at 17). Finally, Defendants claim that the BWC footage

“conclusively” shows “that the acts taken by the police officers were in good faith and supported

by a reasonable basis, thus warranting qualified immunity from the state law claims against

them.” (Id. at 23).

Plaintiff disagrees, urging the Court not to “look beyond ‘facts stated on the face of the

complaint[,] documents appended to the complaint or incorporated in the complaint by reference,

and [ ] matters of which judicial notice may be taken.” (Dkt. No. 20, at 12 (citing Concord

Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)). Plaintiff notes that “there is

absolutely no mention of BWC footage within the Complaint,” (id. at 11), arguing that

“Defendants fully ignore the standard of review for motions to dismiss” in their reliance on the

BWC footage to defeat Plaintiff’s claims, (see id. at 14). Plaintiff also argues that Defendants

impermissibly rely on “the very documents that Plaintiff alleges were prepared with false and/or

fabricated information” to defeat Plaintiff’s fabrication of evidence claim. (Id. at 21 (citing Dkt.

No. 1, ¶ 85)).

“Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to

consideration of the complaint itself.” Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

However, considering “materials outside the complaint is not entirely foreclosed on a 12(b)(6)

motion.” Id. A complaint “is deemed to include any written instrument attached to it as an exhibit

or any statements or documents incorporated in it by reference.” Nicosia v. Amazon.com, Inc.,

834 F.3d 220, 230 (2d Cir. 2016) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d

Cir. 2002)). “Where a document is not incorporated by reference, the court may nevertheless

consider it where the complaint relies heavily upon its terms and effect, thereby rendering the

document integral to the complaint.” Id. (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d

104, 111 (2d Cir. 2010) (internal quotation marks omitted)).

Even where a document is integral to the complaint, it must be “clear” that “no dispute

exists regarding the authenticity or accuracy of the document” and that “there exist no material

disputed issues of fact regarding the relevance of the document.” Id. at 231 (citation omitted).

“[T]he requirement that there be ‘no dispute’ about the authenticity of documents ‘integral’ to the

complaint ‘has been interpreted strictly: even implicit, conclusory, contradictory, or implausible

objections to the authenticity or accuracy of a document render consideration impermissible.’”

Mbody Minimally Invasive Surgery, P.C. v. United Healthcare Ins. Co., No. 14-cv-2495, 2016

WL 4382709, at *7 (S.D.N.Y. Aug. 16, 2016); see also Barberan v. Nationpoint, 706 F. Supp. 2d

408, 415 (S.D.N.Y. 2010) (“The Court will not consider those documents submitted by

Defendants that are not subject to judicial notice because there are disputes, even if of

questionable viability, regarding the authenticity of these documents.”). “[I]f material is not

integral to or otherwise incorporated in the complaint, it may not be considered unless the motion

to dismiss is converted to a motion for summary judgment and all parties are ‘given a reasonable

opportunity to present all the material that is pertinent to the motion.’” Nicosia, 834 F.3d at 231

(quoting Fed. R. Civ. P. 12(d)).

“Courts specifically may consider video footage at the motion to dismiss stage when the

footage is referenced in the complaint and “[k]ey allegations in the complaint rest[ ] on the ...

video.” Palm v. Brooks, No. 22-cv-9729, 2024 WL 1908388, at *2, 2024 U.S. Dist. LEXIS

80508, at *4-5 (S.D.N.Y. May 1, 2024) (quoting Norales v. Acevedo, No. 21-549, 2022 WL

17958450, at *2, 2022 U.S. App. LEXIS 35639, at *4 (2d Cir. Dec. 27, 2022)). Courts in the

Second Circuit have repeatedly refused to consider video evidence not attached to, referenced in,

or mentioned in the complaint in deciding a motion to dismiss. See O’brien v. City of Syracuse,

No. 22-cv-948, 2023 WL 6066036, at *6, 2023 U.S. Dist. LEXIS 164918, at *18-21 (N.D.N.Y.

Sep. 8, 2023) (collecting cases).

1. Body Worn Camera Footage

Defendants cite Manzi, 2024 WL 2943876, 2024 U.S. Dist. LEXIS 104680, in support of

their argument that the Court should consider the BWC footage on in deciding their motion.

(Dkt. No. 13-1, at 8-9). In Manzi, the complaint “specifically and repeatedly” referenced body

camera footage, and the defendants submitted videos from their body-worn cameras in support of

their motion to dismiss. 2024 WL 2943876, at *3-4, 2024 U.S. Dist. LEXIS 104680, at *9-10.

The court in Manzi held that it would “consider the body-worn footage in adjudicating the

motion to dismiss,” because the footage was “incorporated by reference and integral” to the

complaint. 2024 WL 2943876, at *4, 2024 U.S. Dist. LEXIS 104680, at *10-11. But here,

Plaintiff does not reference any BWC footage in his Complaint, nor is there any indication that

the allegations in the complaint rest on the video. See id. “[F]ar from being integral to the

[C]omplaint, the video footage is not even mentioned in it.” See O'Brien, 2023 WL 6066036, at

*6, 2023 U.S. Dist. LEXIS 164918, at *18-19. Therefore, the Court will not consider the body

camera footage in deciding Defendants’ motion to dismiss. See id. (declining to consider body

camera footage where the footage was “not attached to, referenced in, or mentioned in the

complaint”).4

2. Misdemeanor Information Sheets

Defendants also “seek to introduce [ ] the misdemeanor information sheets” related to the

charges brought against Plaintiff. Defendants argue that the Complaint “relies heavily” on the

misdemeanor information sheets, because Plaintiff “claims the officers fabricated evidence[.]”

4 In their Reply Memorandum, Defendants cite caselaw “to show how federal courts throughout the Country have

considered such [video] evidence” at the motion to dismiss stage. (Dkt. No. 21, at 5). However, Defendants cite only

district court cases in the Eastern District of Virginia and the Northern District of Illinois. (Id. at 6-8). And, even in

the case Defendants call “most analogous” to the case at bar, the court noted that the “plaintiff also refer[red] to” the

BWC footage. (See id. at 6-7) (citing Yousif v. Hailey, No. 23-cv-81, 2023 WL 7413328, at *1, U.S. Dist. LEXIS

202097, at *3 (E.D. Va. Nov. 9, 2023).

(Dkt. No. 13-1, at 9). Defendants argue that the fabrication of evidence claim is “conclusively

disproved by the misdemeanor reports and body cam footage” because the misdemeanor charge

of unlicensed operation of a motor vehicle “was deduced from a simple lookup of Plaintiff’s

driver’s license and registration status at the scene.” (Id. at 17-18).

The Complaint alleges that Defendants “created false and fabricated statements which

included the RPD Incident Reports, Narratives, and Charging Instruments,” and that Defendants

“invented and fabricated circumstances which were used to support the false charges in the

charging instrument” used to prosecute Plaintiff. (Dkt. No. 1, ¶¶ 74-75). Even if the

misdemeanor information sheets were the charging documents, Plaintiff clearly contests the

accuracy of the information in them. See id. In light of the dispute “regarding the authenticity or

accuracy” of the misdemeanor information sheets, the Court will not consider these documents.

See Nicosia v. Amazon.com, Inc., 834 F.3d at 23; see also Mbody Minimally Invasive Surgery,

P.C., 2016 WL 4382709, at *7, 2017 U.S. Dist. LEXIS 108598, at *20.

3. Claims Dependent on Materials Outside the Complaint

Defendants rely solely on the BWC footage to argue for dismissal of Plaintiff’s 1983

claims for excessive force (Count 1), failure to intervene (Count 6), and state law claim for

assault and battery (Count 8). (See Dkt. No. 13-1, at 10-12, 18, 23-24). Further, Defendants rely

solely on the contents of the misdemeanor information sheets and BWC footage to argue for

dismissal of Plaintiff’s 1983 claim for fabrication of evidence (Count 5). (See id. at 17-18).

Defendants also rely solely on the misdemeanor information sheets and BWC footage to argue

that there was probable cause for Plaintiff’s arrest, and to thereby seek dismissal of Plaintiff’s

section 1983 claims for false arrest and unlawful search and seizure (Count 2), as well as

Plaintiff’s state law claims for false arrest and false imprisonment (Count 9). (Id. at 12-13, 24).

Because Defendants’ argument for dismissal for each of these claims is based entirely upon the

BWC footage and the misdemeanor information sheets, and the Court has determined that it will

not consider these submissions at this time, Defendants’ motion to dismiss is denied with respect

to Counts 1, 2, 5, 6, 8, and 9. Further, because Defendants rely solely on the BWC footage to

argue that Officer Longo and the Doe Police Officers are entitled to qualified immunity, (id. at

23), the Court also will not grant dismissal based on the defense of qualified immunity. See

Gambino v. Vill. of Freeport, NY, No. 20-cv-3216, 2022 WL 138065, at *5, 2022 U.S. Dist.

LEXIS 12722, at *13 (E.D.N.Y. Jan. 14, 2022) (“[B]ecause the Court does not consider the

Agreement, which was the sole basis for [the defendant’s] motion to dismiss the Complaint, the

Court denies [defendant’s] motion to dismiss the Complaint.”).

B. Official Capacity Claims

Defendants argue that all official capacity claims against “city officials” should be

dismissed, “along with claims against the police department.” (Dkt. No. 13-1, at 9). Defendant

notes that “departments that are merely administrative arms of a municipality do not have a legal

identity separate and apart from the municipality and therefore, cannot sue or be sued.” (Id.

(quoting Zennamo v. Oneida Cnty., No. 21-cv-840, 2022 WL 4328346, at *3, 2022 U.S. Dist.

LEXIS 168229, at *9-10 (N.D.N.Y. Sept. 19, 2022)). Defendant also argues that “a suit against a

municipal officer in his or her official capacity is treated as an action against the municipality

itself,” and that therefore the official capacity claims against Officer Longo and the other city

officials should be dismissed. (Id. (citing Coon v. Town of Springfield, 404 F.3d 683, 687 (2d Cir.

2005)).

Plaintiff claims it is “unclear whether Defendants also seek to dismiss claims as to

Defendant City of Rome Police Department under the theory that it is merely an administrative

arm of Defendant City.” (Dkt. No. 20, at 12). Plaintiff “is willing to accept Defendants’

representations that Defendant City of Rome Police Department is merely an administrative arm

of Defendant City,” and “withdraws his claims solely against Defendant City of Rome Police

Department, provided that is in fact what Defendants argue[.]” (Id. at 12-13). Plaintiff does not,

however, address Defendants’ argument that the official capacity claims against the city officials

should be dismissed.

With respect to the City of Rome Police Department, Defendants are correct that “[u]nder

New York law, departments which are merely administrative arms of a municipality do not have

a legal identity separate and apart from the municipality and cannot sue or be sued.” Peterson v.

City of Syracuse Police Dep't, No. 09-cv-00106, 2010 WL 1235392, at *3, 2010 U.S. Dist.

LEXIS 31478, at *8 (N.D.N.Y. Mar. 31, 2010) (quoting Walker v. Waterbury Police Dep’t, No.

08-cv-0738, 2009 WL 2868231, at *5, 2009 U.S. Dist. LEXIS 7933, at *6 (E.D.N.Y. Feb. 4,

2009)) (dismissing complaint as against the City of Syracuse Police Department).

With respect to the official capacity claims against Officer Longo and the Doe

Defendants, “state officers in their official capacities are not amenable to suits for damages under

42 U.S.C. § 1983.” Peterson, 2010 WL 1235392, at *4, 2010 U.S. Dist. LEXIS 31478, at *10.

See also Tyson v. Willauer, 290 F. Supp. 2d 278, 287 (D. Conn. 2003) (“[P]laintiffs' claims

against the Police Chief and the individual officers in their official capacities must fail since any

claim against them in their official capacities is tantamount to a claim against the Town itself.”).

“A claim that state officials violated state law in carrying out their official responsibilities is a

claim against the State that is protected by the Eleventh Amendment[.]” Vega v. Semple, 963 F.3d

259, 284 (2d Cir. 2020) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121

(1984)). That principle applies equally to “state-law claims brought into federal court under

pendent jurisdiction.” Id. (quoting Pennhurst, 465 U.S. at 121). Therefore, Defendants’ motion is

granted with respect to the official capacity claims against Officer Longo and the Doe Police

Officers.

C. Individual Capacity Claims

Defendants argue that Plaintiff’s individual capacity claims against Officer Longo and the

Doe Police Officers must also be dismissed because Longo and the Doe officials were acting

within the scope of their employment when the incident occurred. (Dkt. No. 13-1, at 9-10). But

Defendants cite only New York State cases entirely unrelated to section 1983 claims, one

involving a state law precluding actions against corrections officers acting within the scope of

their employment, Gore v. Kuhlman, 630 N.Y.S.2d 141 (N.Y. App. Div. 1995) , and the other

involving a general rule under New York State law that a corporate officer cannot be held

personally liable for certain actions taken within the scope of their employment, Herndon-Brown

v. Riverdale Country School, Inc., No. 20790, 2006 WL 6822141, 2007 N.Y. Misc. LEXIS 3042

(N.Y. Sup. Ct. Apr. 12, 2006). Defendants do not explain how these cases are relevant to the case

at bar. Therefore, the Court will not dismiss the individual capacity claims. See Posr v. Ct.

Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999) (“The Eleventh Amendment [ ] bars

Posr's claims against the various named defendants in their official capacities as state officers.

The Eleventh Amendment does not, however, prevent Posr from suing those defendants in their

individual capacities. Accordingly, although the claims against these defendants in their official

capacities were properly dismissed, the claims against them in their individual capacities require

further discussion.” (citations omitted)).

D. Malicious Prosecution

Defendants argue that Plaintiff has failed to state a claim for malicious prosecution, both

under section 1983 (Count 3) and under New York State law (Count 10). (Dkt. No. 13-1, at 13,

24). First, Defendants argue that there was probable cause to arrest Plaintiff, based on the BWC

footage and misdemeanor information sheets. (Id. at 14). The Court has already dispensed with

this argument. See discussion supra Section IV.A. Separately, Defendants argue that Plaintiff’s

claim fails “because he did not sufficiently assert that the prosecution was terminated in his

favor.” (Dkt. No. 13-1, at 14).

Plaintiff disagrees, noting that Defendants ignore the Supreme Court’s holding in

Thompson v. Clark, 596 U.S. 36 (2022). (Dkt. No. 20, at 19). Indeed, Defendants cite only

Second Circuit caselaw preceding Thompson in support of their argument. (See Dkt. No. 13-1, at

14). Prior to Thompson, “favorable termination sufficient to support a § 1983 malicious

prosecution claim require[d] an affirmative indication of innocence.” Price v. Peress, No. 18-cv-

4393, 2022 WL 4638148, at *11, 2022 U.S. Dist. LEXIS 180001, at *33 (E.D.N.Y. Sept. 30,

2022). But in Thompson, the Supreme Court “rejected Second Circuit precedent on the

‘favorable termination’ element[.]” Gross v. Sanchez, No. 20-cv-4873, 2023 WL 5488000, at

*10, 2023 U.S. Dist. LEXIS 18799, at *25 (E.D.N.Y. Feb. 1, 2023). After Thompson, “a Fourth

Amendment claim under § 1983 for malicious prosecution does not require the plaintiff to show

that the criminal prosecution ended with some affirmative indication of innocence. A plaintiff

need only show that the criminal prosecution ended without a conviction.” 596 U.S. at 49.

Defendants are correct that Plaintiff has not alleged facts supporting his allegation that

the prosecution “was terminated favorably to him.” (Dkt. No. 1, ¶ 34). This allegation is wholly

conclusory and is therefore insufficient to support his malicious prosecution claim. See Adams v.

City of New York, No. 21-cv-3956, 2024 WL 3875772, at *6, 2024 U.S. Dist. LEXIS 147818, at

*17-18 (E.D.N.Y. Aug. 19, 2024) (finding plaintiff failed to allege favorable termination where

she alleged only that the criminal action against her “terminated in her favor”; “without factual

allegations suggesting plaintiff was prosecuted following her arrest or that such prosecution

ended in a favorable manner as a matter of law, the [proposed complaint] fail[ed] to state a claim

for malicious prosecution”); Cagan v. Rittenhouse, No. 22-cv-00260, 2024 WL 1345295, at *7,

2024 U.S. Dist. LEXIS 57832, at *20 (E.D.N.Y. Mar. 29, 2024) (finding plaintiff failed to allege

favorable termination where he stated “(in conclusory fashion) that his ‘prosecution terminated’

when he agreed to an ACD, but did not allege the “ensuing dismissal”). C.f. Boehner v. City of

Rochester, 609 F. Supp. 3d 220, 235 (W.D.N.Y. 2022) (declining to dismiss malicious

prosecution claim where plaintiffs alleged charges against them were dismissed for “facial

insufficiency”; this allegation “easily meet Thompson’s low bar”); Francis v. City of

Schenectady, No. 120-cv-00703, 2022 WL 4619326, at *7, 2022 U.S. Dist. LEXIS 179811, at

*21 (N.D.N.Y. Sept. 30, 2022) (favorable termination element met where plaintiff alleged

charges upon which his arrest was based “were dismissed and sealed”); Murphy v. City of

Elmira, No. 18-cv-6572, 2023 WL 5938777, at *9, 2023 U.S. Dist. LEXIS 161568, at *27

(W.D.N.Y. Sept. 12, 2023) (finding favorable termination where parties did not dispute the

plaintiff “was never convicted of any charges” and plaintiff’s charge “was not dismissed in

exchange for a guilty plea to any other charge”). Because Plaintiff has failed to allege facts from

which the Court could plausibly infer that her prosecution ended without a conviction, Plaintiff’s

claim for malicious prosecution under section 1983 must be dismissed.

Defendants also do not differentiate between malicious prosecution claims under section

1983 and New York state law claims for malicious prosecution. Instead, “Defendants incorporate

by reference their arguments pertaining to dismissal of the § 1983 malicious prosecution claim.”

(Dkt. No. 13-1, at 24). But Thompson “does not necessarily settle all the potential legal issues”

related to Plaintiff's state law malicious prosecution claim. See Maring v. City of Rochester, No.

21-cv-6720, 2022 WL 2356721, at *4, 2022 U.S. Dist. LEXIS 116344, at *11 (W.D.N.Y. June

30, 2022). “[W]hile it is obvious that Thompson bears materially on . . . a malicious prosecution

claim arising under federal law, it is unclear how Thompson bears on . . . a malicious prosecution

claim arising under state common law.” Id. (citing Zwick v. Town of Cheektowaga, No. 17-cv-

727, 2021 WL 4895106, at *3, 2021 U.S. Dist. LEXIS 202413, at *8-9 (W.D.N.Y. Oct. 20, 2021)

(“New York law and federal law diverge on the showing required to satisfy the ‘favorable

termination’ element.”)).

Under New York law, “any termination of a criminal prosecution such that the criminal

charges may not be brought again, qualifies as a favorable termination, so long as the

circumstances surrounding the termination are not inconsistent with the innocence of the

accused.” Cantalino v. Danner, 96 N.Y. 2d 391, 395 (2001). While Defendants do not brief this

issue, Plaintiff’s conclusory allegation that the prosecution “was terminated favorably to him,”

(Dkt. No. 1, at ¶ 24), is clearly insufficient to meet the New York standard. See Facci-Brahler v.

Montgomery Cnty., No. 18-cv-0941, 2020 WL 360873, at *7, 2020 U.S. Dist. LEXIS 10292, at

*19 (N.D.N.Y. Jan. 22, 2020) (holding plaintiff failed to allege favorable termination under New

York standard where plaintiff made a “conclusory allegation that ‘[t]he dismissal of the charge’

for promoting prison contraband in the second degree ‘was a favorable termination’”). Therefore,

Plaintiff has also failed to plausibly allege a state law malicious prosecution claim. Defendants’

motion to dismiss is granted with respect to both Plaintiff’s federal and state malicious

prosecution claims.

E. Abuse of Process

Defendants seek dismissal of Plaintiff’s section 1983 abuse of process claim (Count 4),

arguing that Plaintiff “has failed to sufficiently assert a collateral objective for the alleged abuse

of process[.]” (Dkt. No. 13-1, at 15). Plaintiff disagrees, arguing that the Complaint “adequately

alleges that the purpose behind Defendants’ actions was to protect Defendant Officers, and to

harass, intimidate, coerce, silence, and punish Plaintiff. (Dkt. No. 20, at 20 (citing Dkt. No. 1 ¶¶

69-81)).

A § 1983 claim for malicious abuse of process “lies against a defendant who (1) employs

regularly issued legal process to compel performance or forbearance of some act (2) with intent

to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is

outside the legitimate ends of the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.

2003) (quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)).

With respect to the third element, a collateral objective “must exist beyond or in addition

to [the] criminal prosecution, but it is usually characterized by personal animus.” Simmons v.

Ferrigno, No. 17-cv-06176, 2019 WL 12361880, at *6, 2019 U.S. Dist. LEXIS 238423, at *17

(W.D.N.Y. Aug. 5, 2019) (quoting Folk v. City of N.Y., 243 F. Supp. 3d 363, 375 (E.D.N.Y.

2017)). Such objectives “have included economic harm, extortion, blackmail, and retribution.”

Macdonough v. Spaman, No. 15-cv-0643, 2016 WL 1298134, at *10, 2016 U.S. Dist. LEXIS

43206, at *32 (N.D.N.Y. Mar. 31, 2016) (quoting Ketchuck v. Boyer, No. 10-cv-0870, 2011 WL

5080404, at *7, 2011 U.S. Dist. LEXIS 123144, at *22 (N.D.N.Y. Oct. 25, 2011)). “In other

words, [a]buse of process resembles a form of extortion, by which the defendant invokes legal

process to coerce the plaintiff into doing something other than what the process necessitates.”

Simmons, 2019 WL 12361880, at *6, 2019 U.S. Dist. LEXIS 238423, at *17 (quoting Folk, 243

F. Supp. 3d at 375).

A collateral objective “is not the same as a malicious motive[,]” id., and an improper

motive is not actionable, see Dotson v. Farrugia, No. 11-cv-1126, 2012 WL 996997, at *8, 2012

U.S. Dist. LEXIS 41195, at *21-22 (S.D.N.Y. Mar. 26, 2012). Allegations of an attempted

“cover-up” suggest an improper motive, and do not satisfy the collateral objective element. See

id. (finding plaintiff did not satisfy collateral objective element where he alleged that defendants

made false allegations “to retaliate against the Plaintiff for his perceived affront, and to attempt

to cover up the wrongdoing of the Court Officers in having arrested plaintiff”; these allegations

alleged “only an improper motive”); Brandon v. City of New York, 705 F. Supp. 2d 261, 275

(S.D.N.Y. 2010) (finding collateral objective element not met where the plaintiff did not allege

that the defendants “engaged in the legal process to compel performance or forbearance of some

act”); Gilliard v. City of New York, No. 10-cv-5187, 2013 WL 521529, at *14, 2013 U.S. Dist.

LEXIS 18180, at *48 (E.D.N.Y. Feb. 11, 2013) (dismissing abuse of process claim on motion for

summary judgment where, “[a]t most, [defendants] issued the summons with the improver

motive of “cover[ing] up their abuse of authority in arresting plaintiff”).

Here, Plaintiff alleges that Defendants filed a false criminal felony complaint against

Plaintiff “with an ulterior purpose/motive to subject Plaintiff to punishment without just cause

and in order to protect Defendant Longo” and the Police Officer Does. (Dkt. No. 1, ¶ 72).

Plaintiff further alleges Defendants falsely prosecuted Plaintiff “in an attempt to protect

Defendants Longo and PO Does and satisfy their personal goals of covering up their

wrongdoing, and to further their own purposes of exercising their privilege for their own warped

sense of power.” (Id. ¶ 73). These allegations of a “cover-up” do not satisfy the collateral

objective element. See Dotson, 2012 WL 996997, at *8, 2012 U.S. Dist. LEXIS 41195, at *21-

22. Therefore, Plaintiff has failed to state a claim under section 1983 claim for abuse of process.

See also Brandon, 705 F. Supp. 2d at 275 (“If [one] uses the process of the court for its proper

purpose, though there is malice in his heart, there is no abuse of process.” (quoting Hauser v.

Bartow, 273 N.Y. 370, 374, 7 N.E.2d 268 (1937)).

F. Monell Claim

Defendants move to dismiss Plaintiff’s Monell claim against the City (Count 7), on the

grounds that Plaintiff has failed to make “any specific factual allegations to plausibly support

such a claim.” (Dkt. No. 13-1, at 19). Plaintiff disagrees, arguing his claim is “based on a series

of acts which constitute a de facto municipal policy in direct defiance of the relevant civil rights

laws,” and that he has adequately pled claims based on the City’s “failure to train and retrain,

hiring and retaining of incompetent officers, failure to establish and implement meaningful

procedures to discipline or re-train officers who have engaged in misconduct, and failure to

implement adequate disciplinary policies.” (Dkt. No. 20, at 22-23). Plaintiff argues that this

“series of deliberately indifferent acts can be considered a municipal policy[.]” (Id. at 23).

“To establish liability under Monell, a plaintiff must show that he suffered the denial of a

constitutional right that was caused by an official municipal policy or custom.” Bellamy v. City of

New York, 914 F.3d 727, 756 (2d Cir. 2019). A municipality “may not be sued under § 1983 for

an injury inflicted solely by its employees or agents,” and is liable only when it actually deprives,

through the execution of its policies, an individual of their constitutional rights. Monell, 436 U.S.

at 694.

A municipal policy or custom may be established where the facts show either: (1) a

formal policy, officially promulgated by the municipality, id. at 690; (2) action taken by the

official responsible for establishing policy with respect to a particular issue, Pembaur v.

Cincinnati, 475 U.S. 469, 483–84 (1986); (3) unlawful practices by subordinate officials so

permanent and widespread as to practically have the force of law, City of St. Louis v. Praprotnik,

485 U.S. 112, 127–30 (1985); or (4) a failure to train or supervise that amounts to “deliberate

indifference” to the rights of those with whom the municipality's employees interact. City of

Canton v. Harris, 489 U.S. 378, 388 (1989); see Wray v. City of New York, 490 F.3d 189, 195 (2d

Cir. 2007). To prevail on a municipal liability claim a plaintiff must show “a direct causal link

between a municipal policy or custom and the alleged constitutional deprivation.” Outlaw v. City

of Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (quoting City of Canton, 489 U.S. at 385).

To establish a claim based upon a widespread practice, a plaintiff must show that the

practice is “so manifest as to imply the constructive acquiescence of senior policy-making

officials.” Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (quoting Sorlucco v. N.Y.

City Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992)); see also Buari v. City of New York, 530 F.

Supp. 3d 356, 398 (S.D.N.Y. 2021) (“To demonstrate a de facto policy or custom through a

widespread practice, a plaintiff must ‘show that the policymaker was aware of a subordinate's

unconstitutional actions, and consciously chose to ignore them, effectively ratifying the

actions.’” (quoting Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir.

2004)). “A plaintiff may also plead the existence of de facto customs or policies ‘by citing to

complaints in other cases that contain similar allegations.’” Id. at 398-99 (quoting Gaston v. Ruiz,

No. 17-cv-1252, 2018 WL 3336448, at *6, 2018 U.S. Dist. LEXIS 112695, at *17 (E.D.N.Y. July

6, 2018). “Such complaints must involve factually similar misconduct, be contemporaneous to

the misconduct at issue in the plaintiff's case, and result in an adjudication of liability.” Id.

For a claim based on inadequate training, a plaintiff must “identify a specific deficiency”

in the training that is “closely related to the ultimate injury,” such that it “actually caused” the

constitutional deprivation. Ambrose v. City of New York, 623 F. Supp. 2d 454, 465 (S.D.N.Y.

2009) (citing Amnesty Am., 361 F.3d at 129)). In order for a specific deficiency to constitute

deliberate indifference, Plaintiff must show: “(1) a policymaker knows ‘to a moral certainty’ that

employees will confront a given situation; (2) the situation either presents the employee with a

difficult choice of the sort that training or supervision will make less difficult, or that there is a

history of employees mishandling the situation; (3) the wrong choice by the city employee will

frequently cause the deprivation of a citizen's constitutional rights.” De Michele v. City of New

York, No. 09-cv-9334, 2012 WL 4354763, at *20, 2012 U.S. Dist. LEXIS 136460, at *64

(S.D.N.Y. Sept. 24, 2012) (citing City of Canton, 489 U.S. at 390). A similar pattern of

misconduct resulting from allegedly inadequate training is also “ordinarily necessary to

demonstrate deliberate indifference” for purposes of failure to train. Connick v. Thompson, 563

U.S. 51, 62 (2011) (internal quotation and citation omitted). “Without notice that a course of

training is deficient, decision-makers can hardly be said to have deliberately chosen a training

program that will cause violations of constitutional rights.” Id.

“[A] single incident alleged in a complaint, especially if it involved only actors below the

policy-making level, does not suffice to show a municipal policy.” De Michele, 2012 WL

4354763, at *20, 2012 U.S. Dist. LEXIS 136460, at *63 (S.D.N.Y. Sept. 24, 2012) (quoting

DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998)); see also Smith v. City of Syracuse, No. 19-cv-

00997, 2020 WL 1937411, at *3, 2020 U.S. Dist. LEXIS 69672, at *6 (N.D.N.Y. Apr. 21, 2020)

(“Except in very rare cases, a ‘custom or policy cannot be shown by pointing to a single instance

of unconstitutional conduct by a mere employee of the municipality.’” (quoting Newton v. City of

New York, 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008))). A municipality can only be found to be

deliberately indifferent based on a single constitutional violation where “the unconstitutional

consequences of failing to train [are] so patently obvious that a city could be liable under § 1983

without proof of a pre-existing pattern of violations.” Connick, 563 U.S. at 64.

Here, Plaintiff’s conclusory allegations about failure to train “regarding the proper use of

force, probable cause, and investigation” and tolerance of “excessive force, probable cause, and

investigation by its police officers despite a plethora of complaints from citizens of being

subjected to Constitutional violations by police officers” are insufficient to plausibly allege a

Monell claim (Dkt. No. 1, ¶ 101). Plaintiff has only alleged one incident and does not identify

any details about the “plethora of complaints from citizens” regarding police officer conduct.

(See id. ¶ 101). Plaintiff has failed to plausibly allege that “the unconstitutional consequences” of

the City’s alleged failure to train are “so patently obvious” that the city could be liable “without

proof of a pre-existing pattern of violations[.]” See Smith, 2020 WL 193741, at *3, 2020 U.S.

Dist. LEXIS 69672, at *6.

For the first time in his Memorandum in Opposition, Plaintiff points to four other civil

actions filed against the City of Rome in support of his allegation that “this is not a single

occurrence of alleged civil rights violations by Defendant City.” (Dkt. No. 20, at 24 (citing

Parsons v. Lamarco, No. 24-cv-00870 (N.D.N.Y. filed July 11, 2024); Ruiz v. City of Rome, No.

06-cv-00024 (N.D.N.Y. filed Jan. 6, 2006); Williams v. City of Rome, No. 08-cv-00014 (N.D.N.Y.

Filed Jan. 04, 2008); Mettot v. City of Rome, No. 09-cv-01389 (N.D.N.Y. Filed Dec. 14, 2009)).

The Court does not consider these assertions which are outside the complaint.5 Accordingly,

5 The Court notes that, as Defendants point out, three of these cases are over fifteen years old, (see Dkt. No. 21, at

11), and the Court further notes that Plaintiff does not elaborate on the nature of these actions, nor the allegations

contained within.

Defendants’ motion to dismiss Plaintiff’s Monell claim against Defendant City of Rome is

granted.6

V. LEAVE TO AMEND

Plaintiff seeks leave to amend his complaint, specifically with respect to his Monell

claims. (See Dkt. No. 20, at 25). Defendants oppose amendment, arguing that it would be futile

because “the BWC footage conclusively disproves Plaintiff’s claims.” (Dkt. No. 21, at 14).

Under Federal Rule of Civil Procedure 15(a), absent certain circumstances not at play

here, a party may amend its pleading only with the opposing party's written consent or the court's

leave. See Fed. R. Civ. P. 15(a)(1)–(2). Rule 15(a)(2) requires that a court “freely give leave

when justice so requires.” See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007). But a court may, in its discretion, deny leave to amend “for good reason, including futility,

bad faith, undue delay, or undue prejudice to the opposing party.” MSP Recovery Claims, Series

LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023) (quoting Bensch v. Est. of Umar, 2 F.4th

70, 81 (2d Cir. 2021). A request to amend is futile where the problem with the claim is

“substantive” and “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir. 2000).

Here, Defendants argue that amendment would be futile solely because of the BWC

footage. However, as discussed above, the Court will not consider the BWC footage at this stage

in the litigation. See discussion supra Section IV.A.1. Because the Complaint's deficiencies may

be fixed with better pleading, and because Plaintiff may wish to amend the complaint in light of

6 Defendants also argue that Plaintiff’s cause of action based on a theory of respondeat superior (Count 13) against

the City must be dismissed, “assuming that there are no underlying claims for which respondeat superior to [sic]

attach[.]” (Dkt. No. 13-1, at 30). However, the Court has not dismissed all of Plaintiff’s claims. Therefore, the Court

will not dismiss Plaintiff’s claims based on a theory of respondeat superior.

the BWC evidence submitted by Defendants, the Court grants Plaintiff's request for leave to

amend.

VI. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendants’ motion to dismiss (Dkt. No. 13) is GRANTED in part and

DENIED in part; and it is further

ORDERED that the following claims are DISMISSED without prejudice and with

leave to amend: the § 1983 malicious prosecution claim (Count 3), the § 1983 abuse of process

claim (Count 4), the Monell claim (Count 7) and the state law malicious prosecution claim

(Count 10); and it is further

ORDERED that any amended complaint must be filed within thirty days of the date of

this decision; and it is further

ORDERED that if no amendment is made, the original complaint shall proceed as to all

but the § 1983 malicious prosecution claim (Count 3), the § 1983 abuse of process claim (Count

4), the Monell claim (Count 7) and the state law malicious prosecution claim (Count 10).

IT IS SO ORDERED.

Dated: February 19, 2025

Syracuse, New York

rans ha. (Canes

Brenda K. Sannes

Chief U.S. District Judge

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