Perez Bey v. NYC New York Police Department - 81 st Precinct

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MUHAMMED PEREZ BEY

Ex. Rel. Ernesto Williams,

Plaintiff,

v.

NYC NEW YORK POLICE DEPARTMENT –

MEMORANDUM AND ORDER

81ST PRECINCT, OFFICER JOB BELLEVUE,

OFFICER SAJJAD ASAR, OFFICER JOSEPH 23-cv-04911 (LDH) (JAM)

SFERRAZZA, OFFICER HENRIQUEZ

DENNIS, OFFICER MACERO RYAN,

OFFICER PENA KEVIN, OFFICER JUSTIN

THOMAS, JUDGE PHYLLIS CHU, and ERIC

GONZALEZ,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Muhammed Perez Bey1 (“Plaintiff”), proceeding pro se, commenced this action against

defendants New York Police Department (“NYPD”), NYPD Officers Job Bellevue, Sajjad Asar,

Joseph Sferrazza, Henriquez Dennis, Macero Ryan, Pena Kevin, and Justin Thomas (“NYPD

Defendants”), Kings County District Attorney Eric Gonzalez, and Kings County Supreme Court

Justice Phyllis Chu, asserting claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) for the

deprivation of his right to bear arms in violation of the Second Amendment, false arrest and

malicious prosecution in violation of the Fourth Amendment, and deprivation of due process in

violation of the Fifth Amendment. The NYPD Defendants, along with Defendant Gonzalez,

1 Plaintiff is formerly known as Ernesto Perez Williams. (See Compl. at 55–56, Order Granting Leave to Change

Name, dated Sept. 30, 2021, ECF No. 7.) This name is reflected in Plaintiff’s criminal proceedings.

move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss all claims asserted against

them in the complaint.2

BACKGROUND3

On April 18, 2022, Plaintiff and three other individuals stopped at a pizza shop on the

corner of Broadway and Lafayette Avenue in Brooklyn, New York. (Compl. at 12, ECF No. 7.)

At the time, Plaintiff was carrying an unconcealed firearm on his right hip. (See id.) As Plaintiff

exited the pizza shop, he was approached by Defendants Bellevue, Sferrazza, and Ryan. (Id. at

12, 14.)4 Defendant Bellevue asked Plaintiff who he was, to which Plaintiff responded that he

was a Public Minister and presented the officers with documents describing his position in the

Public Minister Law Administration, a private organization that purports to operate outside the

jurisdiction of the government.5 (Id. 14, 17, 19–21.) Defendant Bellevue then asked Plaintiff

2 On November 6, 2023, the Court directed Plaintiff to show cause why the claims against Justice Chu should not be

dismissed for lack of subject matter jurisdiction under the doctrine of judicial immunity. Plaintiff failed to do so. As

such, on February 5, 2025, the Court dismissed the claims against Justice Chu sua sponte. See Text Order dated Feb.

5, 2025 (citing Jones v. New York, No. 21-CV-3776, 2023 WL 2734793, at *5 (E.D.N.Y. Mar. 31, 2023) (dismissing

claims against state judge because “[j]udges are granted absolute immunity from liability for acts taken pursuant to

their judicial power and authority”) (quoting Caruso v. Zugibe, 646 F. App’x 101, 105 (2d Cir. 2016))).

3 The following facts taken from the complaint are assumed to be true for the purpose of this memorandum and

order, unless otherwise stated. Generally, a court may not consider matters outside the pleadings on a motion to

dismiss for failure to state a claim pursuant to Rule 12(b)(6). Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

However, documents attached to the complaint or incorporated therein by reference are deemed part of the pleading

and may be considered. Id. Moreover, “a document ‘upon which [the complaint] solely relies and which is integral

to the complaint may be considered’ by the court in ruling on such a motion.” Id. (quoting Cortec Indus., Inc. v. Sun

Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). Finally, matters of public record may be properly considered, see

Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, 369 F.3d 212, 217 (2d Cir. 2004), and

the Court is permitted to reject those allegations that are contradicted by matters of public record, see Fowlkes v.

Rodriguez, 584 F. Supp. 2d 561, 574–75 (E.D.N.Y. 2008).

4 Plaintiff attaches several documents to his complaint, including affidavits from two individuals with him at the

time of his arrest: Raquel Brabham El (see Compl. at 14–15) and Samuel Randolph Hall aka Prodigy X El (see

Compl. at 16–17), documents describing the Public Minister Law Administration (see Compl. at 18–24, 49–52),

court orders and transcripts (see Compl. at 40–48, 55–57), among others. For ease of reference, the Court refers to

the facts gleaned from these documents as allegations in the complaint.

5 According to the complaint, the Public Minister Law Administration “are a group of private men and women who

have come together to form an unincorporated private membership association to educate, assist, protect and defend

the American people against foreign and domestic corporate crimes and police corruption.” (See Compl. at 19.)

whether he had a permit authorizing him to carry the firearm in his possession. (Id. at 12.)

Plaintiff replied that he did not have or need a permit to carry his firearm. (Id.) Defendant

Bellevue and the other officers then removed Plaintiff’s firearm and placed him under arrest.

(Id.)

On April 25, 2022, while in custody, Plaintiff sent a purported petition for a writ of

habeas corpus to the Kings County District Attorney’s Office (“KCDAO”). (See id. at 9.)

Plaintiff also filed several requests to Justice Chu, the justice presiding over his criminal

proceeding, to relieve the attorney that had been provided for him by the Legal Aid Society and

permit him to represent himself. (See id. at 10.) At a June 17, 2022 hearing, Justice Chu denied

Plaintiff’s requests to dismiss his attorney and to proceed pro se. (Id. at 44–48.) At that same

hearing, Justice Chu directed the KCDAO to return any documents that they received directly

from Plaintiff, unread and unopened, and to expunge those documents from their records. (Id. at

46–48.) When Plaintiff asked whether he was permitted to submit documents on his own behalf,

Justice Chu advised Plaintiff that he should submit any documents to his attorney for her review,

in order to protect Plaintiff’s rights. (Id.) On January 16, 2024, Plaintiff was tried before a jury

and convicted of Criminal Possession of a Weapon in the Second Degree. (Decl. John

Schemitsch (“Schemitsch Decl.”), Ex. B, ECF No. 46-2.)6 Plaintiff was sentenced to two and a

half to three years’ incarceration. (See Pl.’s Opp’n to Mot. Dismiss (“Pl.’s Opp’n”) at 8, ECF

No. 47.)

6 The Court may take judicial notice of matters of public record. Blue Tree, 369 F.3d at 217. The “prosecution of

[an individual] is a matter of public record, of which [a court] take[s] judicial notice.” Shmueli v. City of New York,

424 F.3d 231, 233 (2d Cir. 2005); Sanders v. Simonovic, No. 19-CV-5525, 2021 WL 707060, at *4 (S.D.N.Y. Feb.

23, 2021) (“[O]n motions to dismiss, courts have taken judicial notice of criminal court certificates of disposition, as

well as of other court filings, including guilty plea minutes, sentence and commitment forms, and true bills of

indictment, if their authenticity is not challenged.” (citations and quotations omitted)).

Prior to his criminal trial and sentencing, on June 29, 2023, 7 Plaintiff filed a complaint in

this court seeking (1) to be released from Rikers Island Correctional Facility, (2) the dismissal of

all charges against him,8 (3) the criminal prosecution of the Defendants pursuant to 18 U.S.C. §§

241 and 242,9 and (4) $21 million in damages for the alleged constitutional violations. (Compl.

at 6.)

STANDARD OF REVIEW

A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the alleged

facts allow the court to draw a “reasonable inference” of a defendant’s liability for the alleged

misconduct. Iqbal, 556 U.S. at 678. While this standard requires more than a “sheer possibility”

of a defendant’s liability, id., “[i]t is not the [c]ourt’s function to weigh the evidence that might

be presented at trial” on a motion to dismiss. Morris v. Northrop Grumman Corp., 37 F. Supp.

2d 556, 565 (E.D.N.Y. 1999). Instead, “the [c]ourt must merely determine whether the

7 Plaintiff filed a corrected complaint on July 5, 2023. (See ECF No. 7.)

8 By the time of the filing of the motion to dismiss on April 10, 2024, Plaintiff had already been tried, convicted, and

sentenced. (See Schemitsch Decl., Ex. B; Pl.’s Opp’n at 8.) As such, his requests to be released from pretrial

detention at Rikers Island Correctional Facility and for the charges against him to be dropped are moot. See Yung v.

Rikers Island Prison Warden of OBCC, No. 24-CV-5747, 2024 WL 4708709, at *1 (E.D.N.Y. Oct. 7, 2024)

(“Petitioner’s [] application seeking his immediate release from Rikers Island is moot as he is, by his own

admission, no longer detained on Rikers Island.”). Moreover, to the extent that Plaintiff seeks habeas relief, the

Court would not be able to grant such relief as “[a] petitioner seeking relief under 28 U.S.C. § 2241 must exhaust

available state court remedies,” and Plaintiff does not allege that he did so. See id. at *1 n.1 (quoting York v.

Shannon, No. 22-CV-2663, 2022 WL 16715291, at *1 (E.D.N.Y. Nov. 4, 2022)).

9 To the extent that Plaintiff’s complaint can be read to assert claims pursuant to 18. U.S.C. §§ 241–42, these claims

are dismissed because these criminal statutes do not provide for a private right of action. Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (holding that criminal statutes such as § 242 do not provide

private causes of action).

complaint itself is legally sufficient, and in doing so, it is well settled that the [c]ourt must accept

the factual allegations of the complaint as true.” Id. (internal citation omitted).

Moreover, where, as here, a plaintiff is proceeding pro se, his pleadings “must be

construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.

Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006)). A pro se complaint, “however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp,

521 F.3d 202, 213–14 (2d Cir. 2008) (quoting Erickson v. Pardus, 55 U.S. 89, 94 (2007) (per

curiam)). This is “particularly so when the pro se plaintiff alleges that [his] civil rights have

been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Still,

“even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless

their pleadings contain factual allegations sufficient to raise a ‘right to relief above the

speculative level.’” Jackson v. NYS Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010)

(quoting Twombly, 550 U.S. at 555)).

Nonetheless, a district court may dismiss a pro se action sua sponte, even if the plaintiff

has paid the Court’s filing fee, if it determines that the action is frivolous or that the Court lacks

subject matter jurisdiction. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d

362, 363-64 (2d Cir. 2000) (affirming sua sponte dismissal of frivolous pro se complaint where

pro se plaintiff had paid the required filing fee). An action is frivolous when “either (1) ‘the

factual contentions are clearly baseless, such as when allegations are the product of delusion or

fantasy;’ or (2) ‘the claim is based on an indisputably meritless legal theory.’” Livingston v.

Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (quoting Nance v. Kelly, 912 F.2d

605, 606 (2d Cir. 1990) (per curiam)). A finding of frivolousness is appropriate “when the facts

alleged rise to the level of the irrational or the wholly incredible, whether or not there are

judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33

(1992).

DISCUSSION

I. Claims Against District Attorney Gonzalez

Plaintiff brings Section 1983 claims against Defendant Gonzalez, Kings County District

Attorney, for unlawfully indicting him on “unconstitutional state laws,” prosecuting charges

against him that were “not supported by probable cause,” and adhering to an order by Justice

Chu not to respond to a purported writ of habeas corpus, or any other documents, sent by

Plaintiff directly to the KCDAO. (See Compl. at 25–26.) Plaintiff contends that these actions

amounted to malicious prosecution and a deprivation of due process. (See id.) Defendants argue

that, to the extent Plaintiff raises claims against Defendant Gonzalez in either his official or

individual capacity, Plaintiff’s Section 1983 claims against Defendant Gonzalez are barred by

both the Eleventh Amendment and the doctrine of prosecutorial immunity. (Defs.’ Mem. in

Supp. Mot. Dismiss (“Defs.’ Mem.”) at 9–11, ECF No. 46-1.) The Court agrees.

“[T]he capacities in which a state official is sued for damages under § 1983 establish

parallel lines of privileges.” Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.

1993). That is, whether a state official is sued in their official or individual capacity determines

which immunities the state official may invoke that would prohibit the claims brought against

them. Id. If a state official is sued for damages in his official capacity, “such a suit is deemed to

be a suit against the state, and the official is entitled to invoke the Eleventh Amendment

immunity belonging to the state.” Id. (citing Kentucky v. Graham, 473 U.S. 159 (1985)).

However, if the state official is sued for damages in his individual capacity, he may be entitled to

invoke absolute or qualified immunity. Id. Where the state official in question is a prosecutor,

as is the case here, a plaintiff’s Section 1983 claims may be barred by the doctrine of absolute

prosecutorial immunity. Id.

Because the Eleventh Amendment bars suits against a state, but not against a

municipality or local government, “[w]hen a defendant is sued in his official capacity, [courts]

treat the suit as one against the ‘entity of which an officer is an agent.’” D’Alessandro v. City of

New York, 713 F. App’x 1, 8 (2d Cir. 2017) (quoting Kentucky, 473 U.S. at 165–66). “[I]f a

district attorney or an assistant district attorney acts as a prosecutor, []he is an agent of the State,

and therefore immune from suit in [his] official capacity. Id. (citations omitted); Baez v.

Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989) (“When

prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial

capacity, represents the State not the county.”). Thus, where a plaintiff’s claims stem from a

district attorney’s “prosecutorial decisions over the course of the case,” the Eleventh Amendment

protects the prosecutor from liability for damages under Section 1983. D’Alessandro, 713 F.

App’x at 8.

Here, Plaintiff’s claims against Defendant Gonzalez arose from (1) the decision to indict

and prosecute Plaintiff for violating New York Penal Law by carrying a firearm without a license

and (2) the decision to adhere to a court order in a criminal proceeding directing the return of

Plaintiff’s purported habeas submissions. (Compl. at 9.) These decisions were made squarely

within Defendant Gonzalez’s capacity as a prosecutor in the course of Plaintiff’s case. See

D’Alessandro, 713 F. App’x at 8. As such, Defendant Gonzalez is immune from suit under the

Eleventh Amendment.

This case is not unlike D’Alessandro v. City of New York. In D’Alessandro, the Second

Circuit affirmed a district court’s holding that the Eleventh Amendment barred Section 1983

claims against prosecutors that were based on the prosecutors’ decisions to “prosecute plaintiff,

seek and obtain a superseding indictment, investigate the complainant’s claims, turn over grand

jury minutes, and make specific arguments to the trial court, and [the district attorney’s] decision

to train or not train assistant district attorneys about recent precedent.” 713 F. App’x 1. The

court found that these acts were prosecutorial decisions made in the course of the defendants’

capacities as prosecutors and, therefore, as agents of the state. D’Alessandro, 713 F. App’x at 8.

The same outcome is warranted here.

Plaintiff’s claims against Defendant Gonzalez fare no better if they were brought against

Defendant Gonzalez in his individual capacity. Prosecutors receive absolute immunity from

Section 1983 claims brought against them in their individual capacity “when they engage in

‘advocatory conduct that is intimately associated with the judicial phase of the criminal

process.’” D’Alessandro, 713 F. App’x at 5 (quoting Giraldo v. Kessler, 694 F.3d 161, 165 (2d

Cir. 2012)). A prosecutor undoubtedly engages in advocatory conduct when they initiate and

pursue a criminal prosecution and when they perform their litigation-related duties. Id. (“Under

our case law, a prosecutor unquestionably acts as an advocate—and therefore receives absolute

immunity—when she initiates and pursues a criminal prosecution.”); see also Shmueli v. City of

New York, 424 F.3d 231, 236 (2d Cir. 2005) (“It is by now well established that ‘a state

prosecuting attorney who acted within the scope of his duties in initiating and pursuing a

criminal prosecution . . . is immune from a civil suit for damages under § 1983’” (quoting Imbler

v. Pachtman, 424 U.S. 409, 410, 431 (1976))); Ying Jing Gan, 996 F. 2d at 530 (“[T]he

prosecutor’s decisions with regard to whether or not to institute a prosecution and his

performance of his litigation-related duties are given the shield of absolute immunity.”). A

prosecutor acts within the scope of their litigation-related duties even if they, for example,

“make[] false statements during judicial proceedings, knowingly use[] false testimony,

deliberately withhold[] exculpatory evidence, engage[] in malicious prosecution, or attempt[] to

intimidate an individual into accepting a guilty plea.” D’Alessandro, 713 F. App’x at 5 (internal

citations and quotations omitted). Against this legal backdrop, there can be no genuine dispute

that Defendant Gonzalez’s decisions to indict and prosecute Plaintiff, and to obey a court order

to return the documents sent by Plaintiff to the KCDAO, are shielded from suit. Of course, a

prosecutor is not shielded by prosecutorial immunity if they “proceed[] in the clear absence of all

jurisdiction” or “act[] without any colorable claim of authority.” Shmueli, 424 F.3d at 237

(quoting Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987)). However, to defeat Defendant

Gonzalez’s absolute immunity from suit, Plaintiff must plausibly allege that Defendant Gonzalez

was otherwise acting outside the scope of his jurisdiction. Plaintiff does not.10

For the forgoing reasons, Plaintiff’s claims against Defendant Gonzalez must be dismissed.

II. Second Amendment Claim

The Second Amendment of the U.S. Constitution provides that “[a] well regulated

Militia, being necessary to the security of a free State, the right of the people to keep and bear

Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court recognized that the

Second Amendment establishes an individual right to “keep and bear arms,” however, it also

made clear that this right “is not unlimited.” D.C. v. Heller, 554 U.S. 570, 626 (2008). Indeed,

10 To determine whether a prosecutor was acting outside the scope of their jurisdiction, as a matter of law, courts

evaluate “whether the pertinent statutes may have authorized prosecution for the charged conduct.” Shmueli, 424

F.3d at 237. Pursuant to New York Penal Law § 265.03(3), an individual may be charged with criminal possession

of a weapon in the second degree if the individual possesses any loaded firearm outside of the individual’s home or

place of business. Plaintiff was charged with this very conduct, thus authorizing prosecution for said conduct. As

such, Defendant Gonzalez acted within his jurisdiction in deciding to indict and prosecute Plaintiff for the offense

and is, therefore, immune from Plaintiff’s Section 1983 claim. See Shmueli, 424 F.3d at 237.

the right to keep and bear arms “[is] not a right to keep and carry any weapon whatsoever in any

manner whatsoever and for whatever purpose.” Id. Therefore, while broad prohibitions on the

possession of firearms by law-abiding citizens are unconstitutional, states may still “establish

restrictions and regulations on who, how, and where firearms can be possessed and carried.”

Goldstein v. Hochul, 680 F. Supp. 3d 370, 390 (S.D.N.Y. 2023) (citing New York State Rifle &

Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)).

New York law permits the possession of a firearm where an individual applies for and

acquires the requisite license to do so. N.Y. Penal Law § 400.00 (establishing a licensing

scheme for firearm possession), § 265.20 (exempting individuals who have been issued licenses

pursuant to § 400.00 from certain restrictions on firearm possession). Carrying a firearm without

a valid license is a violation of New York Penal Law. See, e.g., N.Y. Penal Law §§ 265.01(1),

265.01-b, 265.02, 265.03, 265.04. Defendants argue that Plaintiff fails to state a claim for

violation of his Second Amendment right because New York’s licensing and regulatory laws

restricting gun possession are consistent with the Second Amendment and the NYPD Defendants

had probable cause to disarm and arrest Plaintiff for violating that law. The Court agrees.

Plaintiff alleges that the NYPD Defendants violated his Second Amendment right when

they disarmed him and arrested him for possessing a firearm in public without a license.

(Compl. at 12.) According to his own allegations, Plaintiff was carrying an unconcealed firearm

on his hip when he encountered the officers outside of the pizza shop. (See id.) When asked by

Defendant Bellevue whether he had a permit to carry the firearm in his possession, he responded

that he did not have or need one. (Id.) The officers then proceeded to disarm Plaintiff and place

him under arrest. (Id.) Because carrying a firearm without a license is a violation of New York

law, Plaintiff’s admission to the officers that he was carrying an unconcealed firearm in public

without a license provided the NYPD Defendants with sufficient probable cause to disarm and

arrest Plaintiff for violating that law.11

Plaintiff contends that the New York law restricting the possession and carrying of

firearms without a license is unconstitutional under the Second Amendment. (See Pl.’s Opp’n at

4.) Not so. Although the Supreme Court has found that certain requirements to obtain a license

to possession or carry a firearm may be unconstitutional, it has made clear that it “does not

prohibit States from imposing licensing requirements for carrying a handgun for self-defense”

and that licensing regimes are “constitutionally permissible.” New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1, 79–80 (2022) (Kavanaugh, J. concurring). As such, restrictions

on the possession and carrying of a firearm without any license under New York law do not

violate the Second Amendment.

For the forgoing reasons, Plaintiff’s Second Amendment claim must be dismissed.

III. False Arrest and Malicious Prosecution Claims

To sustain a claim for either false arrest or malicious prosecution, a plaintiff must

sufficiently allege that the defendants lacked probable cause to arrest or prosecute him. Jenkins

v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (holding that probable cause is a “complete

11 To the extent that Plaintiff argues that the removal of his firearm in connection with his arrest violated his Second

Amendment right, this argument also fails. “[C]ase law within this circuit indicates that ‘the right to bear arms is not

a right to hold some particular gun.’” Perros v. Cnty. of Nassau, 238 F. Supp. 3d 395, 401 (E.D.N.Y. 2017) (quoting

Garcha v. City of Beacon, 351 F. Supp. 2d 213, 217 (S.D.N.Y. 2005)). Because the removal of his unlawfully

carried firearm did not otherwise impact his ability to lawfully acquire firearms, it cannot serve as a basis for a claim

that his Second Amendment rights were violated. See, e.g., Torcivia v. Suffolk Cnty., New York, 409 F. Supp. 3d 19,

37 (E.D.N.Y. 2019), aff’d, 17 F.4th 342 (2d Cir. 2021) (dismissing Second Amendment claim where “Plaintiff

currently lawfully possesses two firearms” and thus could not plausibly claim that his Second Amendment right was

burdened.); Vaher v. Town of Orangetown, 916 F. Supp. 2d 404, 430 (S.D.N.Y. 2013) (dismissing Second

Amendment claims where “there is no allegation that Defendants’ actions have affected Plaintiff’s ability to retain or

acquire other firearms.”); McGuire v. Village of Tarrytown, No. 8-cv-2049, 2011 WL 2623466, at *7 (S.D.N.Y. June

22, 2011) (holding that because “defendants did not prevent [plaintiff] from acquiring another weapon, they did not

impede plaintiff’s ‘right to bear arms’”).

defense” to false arrest claims); Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (“The

existence of probable cause is a complete defense to a claim of malicious prosecution in New

York.”). Probable cause exists when an officer has “knowledge or reasonably trustworthy

information sufficient to warrant a person of reasonable caution in the belief that an offense has

been committed by the person to be arrested.” Fabrikant v. French, 691 F.3d 193, 217 (2d Cir.

2012) (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)). A plaintiff’s conviction

of the offense for which he was arrested or prosecuted serves as evidence that probable cause

existed and, therefore, defeats a false arrest or malicious prosecution claim. See Heck v.

Humphrey, 512 U.S. 477, 484 (1994) (“One element that must be alleged and proved in a

malicious prosecution action is termination of the prior criminal proceeding in favor of the

accused.”); Cameron v. Fogarty, 806 F.2d 380, 388 (2d Cir. 1986) (“Where the civil rights

plaintiff has been convicted of the offense for which he was arrested, we have in effect accepted

the fact of that conviction as conclusive evidence of the good faith and reasonableness of the

officer’s belief in the lawfulness of the arrest.”). Defendants argue that Plaintiff’s claims for

false arrest and malicious prosecution fail because Plaintiff fails to allege that there was a lack of

probable cause and because Plaintiff’s conviction for criminal possession of a firearm precludes

these claims. The Court agrees.

Plaintiff alleges that he was carrying a firearm without a permit in a public place, that the

firearm was unconcealed, and that he directly informed the officers just before they arrested him

that he did not have or require a permit for the firearm in his possession. (Compl. at 12.)

Because New York Penal law prohibits the possession and carrying of a firearm without a

license, Plaintiff’s own admission to the officers that he was carrying a firearm and did not have

a license to do so warranted the officers in their belief that Plaintiff had committed an offense.

See Fabrikant, 691 F.3d 193, 21. Moreover, Plaintiff’s ultimate conviction of criminal

possession of a weapon in the second degree defeats his claim for false arrest or malicious

prosecution with respect to this charge. See Heck, 512 U.S. at 484; Cameron, 806 F.2d at 388.

For the forgoing reasons, Plaintiff’s false arrest and malicious prosecution claims must be

dismissed.

IV. Due Process Claim

Plaintiff contends that Defendants Gonzalez and Chu violated his Fifth Amendment right

to due process when Justice Chu denied his request to fire his attorney and represent himself, and

when Defendant Gonzalez adhered to Justice Chu’s order to return documents sent by Plaintiff

without responding to them. (Compl. at 9.) As the Court notes above, Plaintiff’s claims against

Defendants Gonzalez and Chu are barred by the Eleventh Amendment, as well as judicial and

prosecutorial immunity.

For the forgoing reasons, Plaintiff’s Fifth Amendment due process claims must be

dismissed.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss is GRANTED and Plaintiff’s

complaint is DISMISSED.

Generally, a court should not dismiss a pro se complaint “without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)). But a court has

inherent power to dismiss without leave to amend or replead “where . . . the substance of the

claim pleaded is frivolous on its face,” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988)

(citation omitted), or where amendment would otherwise be futile, Hill v. Curcione, 657 F. 3d

116, 123-24 (2d Cir. 2011). Because the Court concludes that Plaintiff’s claims are frivolous,

and that leave to amend would be futile, the Court declines to grant Plaintiff leave to amend his

complaint.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

Memorandum and Order would not be taken in good faith and in forma pauperis status is

therefore denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438,

444-45 (1962). The Clerk of Court is respectfully directed to enter judgment, mark this action

closed, and mail a copy of this order to the pro se Plaintiff.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

March 28, 2025 LASHANN DEARCY HALL

United States District Judge