Moore v. Town of Webster, New York

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CHRISTOPHER M. MOORE,

Plaintiff, DECISION AND ORDER

vs.

24-CV-6062-MAV

TOWN OF WEBSTER, NEW YORK;

DANIEL P. GITSIS; KOHL’S INC.,

KOHL’S DEPARTMENT & CLOTHING

STORE LOCATION 772;

KOHL’S NEW YORK, D.C., INC.;

and ALEXANDER M. MOSKAL,

Defendants.

Plaintiff Christopher M. Moore was arrested by the Webster Police

Department in February 2022 on charges that were later dismissed on the basis of

his being “wrongfully charged.” ECF No. 1-5 at 4. He now brings this action against

two sets of defendants. In his first and second causes of action, Moore claims that

Defendants the Town of Webster, New York and Officer Daniel P. Gitsis! of the

Webster Police Department (collectively, the “Webster Defendants”) are liable under

42. U.S.C. § 1983 for malicious prosecution in violation of his Fourth and Fourteenth

Amendment rights. ECF No. 1 at 103-26. In his third cause of action, Moore claims

that Kohl’s Inc., Kohl’s Department & Clothing Store Location 772, Kohl’s New York,

D.C., Inc., and Kohl’s loss prevention supervisor Alexander M. Moskal (collectively,

the “Kohl’s Defendants”) are liable for negligence. ECF No. 1 at {J 127-33.

1 Moore’s Complaint does not specify either in the caption or the body of the complaint whether his

claims are against Officer Gitsis in his official capacity, his individual capacity, or both. ECF No. 1.

The matter is presently before the Court on the Webster Defendants’ motion

to dismiss the first and second causes of action in Moore’s complaint for failure to

state a claim upon which relief may be granted, and in any event to dismiss the claims

against Officer Gitsis in his official capacity as redundant of claims against the Town.

ECF No. 9. For the reasons discussed below, the Webster Defendants’ motion [ECF

No. 9] is granted with respect to the claims against Officer Gitsis in his official

capacity and Moore’s Fourteenth Amendment malicious prosecution claim, but

denied with respect to Moore’s Fourth Amendment malicious prosecution claim.

Further, the Town of Webster is dismissed as a defendant in this action.

LEGAL STANDARD

At the outset, the Court notes that the purpose of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6) “is to test... the formal sufficiency of the

plaintiffs statement of a claim for relief without resolving a contest regarding its

substantive merits.” Global Network Commens, Inc. v. City of New York, 458 F.3d

150, 155 (2d Cir. 2006) (emphasis omitted). An action must be dismissed under Rule

12(b)(6) “when the allegations in a complaint, however true, could not raise a claim

of entitlement to relief... .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). To

survive a motion to dismiss under Rule 12(b)(6), on the other hand, “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 Twombly,

550 U.S. at 570).

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. Where a plaintiffs factual allegations are

“merely consistent with” a defendant’s liability, those allegations “stop[] short of the

line between possibility and plausibility of entitlement to relief.” Id. (quoting

Twombly, 550 U.S. at 557). Moreover, “[clonclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice to defeat a motion to dismiss.”

Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) (citation and internal

quotation marks omitted). “Determining whether a complaint states a plausible claim

for relief will... be a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Jgbal, 556 U.S. at 679.

BACKGROUND

The following facts are taken from Moore’s pleadings, which the Court accepts

as true for the purpose of ruling on the motion to dismiss. See Chambers v. Time

Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted).

Shortly after 9 AM on the morning of December 11, 2021, security cameras at

the Kohl’s in Webster, New York captured footage of two unknown white males

stealing five vacuum cleaners from the store. ECF No. 1 at § 20. After reviewing the

footage, Moskal — the store’s loss prevention supervisor — filed a report with the

Webster Police Department (““WPD”) on December 17, 2021. Id. at § 24. Although

Moskal included four color photos of the suspects extracted from the footage, the

WPD’s “field case report” drafted by Officer Gitsis described the suspects’ ages as

between 1 and 98, and did not record height, weight, hair color, eye color, or other

descriptors. Id. at § 23-24. WPD closed the case a couple of weeks later due to “lack

of solvability factors.” Id. at 25.

Then, on January 12, 2022, while Moskal was on duty at the Kohl’s Batavia

location, he observed two suspects — one of whom he recognized from the Webster

theft — enter the Batavia store and act suspiciously. Id. at {| 26. Moskal immediately

notified the Genesee County Sheriff's Office of a possible larceny in progress, and

Investigator Ryan M. DeLong was the responding officer. Id. Investigator DeLong

encountered and detained one of the suspects in the parking lot, and the suspect

admitted he had stolen from other Rochester area stores a couple of months before.

Id. at § 29. The suspect identified himself to Investigator DeLong as Christopher M.

Moore, and provided Moore’s actual birth date and phone number. Id. at 4 30.

Investigator DeLong captured an image of the suspect on his body cam, but he did

not arrest the suspect and there is no indication he otherwise sought to verify the

suspect’s identity. Id. at 4 32-33.

On January 13, 2022, Moskal contacted Officer Gitsis of the WPD to report

that the identity of the larceny suspect from the Webster Kohl’s in December was

Christopher M. Moore. Id. at § 36-87. Based on Investigator DeLong’s identification

of the Batavia Kohl’s suspect as Christopher M. Moore, and Moskal’s recognition of

the suspect from the Webster larceny, Moskal signed on January 20, 2022, a sworn

statement of fact affirmed under penalty of perjury, which concluded, “I want

Christopher M. Moore... charged and prosecuted to the fullest extent of the law for

stealing property from [the Webster] Kohl’s on 12/11/2021.” Id. at | 38-39. On

January 22, 2022, Officer Gitsis spoke with Investigator DeLong via phone “about

the incident that took place at the Kohl’s Batavia location .... [and] Investigator

DeLong advised how he was able to determine the suspect|’]s identity ....” ECF No.

1-2 at 3. On January 27, 2022 Officer Gitsis received a sworn deposition from

Investigator DeLong, also affirmed under penalty of perjury, as well as the image of

the suspect captured by Investigator DeLong’s body cam. Id.

Based on Moskal’s sworn statement and the sworn deposition provided by

Investigator DeLong, Officer Gitsis filed a criminal complaint accusing Moore of a

class E felony, Grand Larceny in the Fourth Degree, and requested a warrant from

Webster Town Justice Thomas DiSalvo for Moore’s arrest. ECF No. 1 at J 48-44,

47. Officer Gitsis’ “field case supplement report” listed Moore’s address and his date

of birth, and identified his race as white, his eye color as brown, and his height as

5°6”. ECF No. 1-2 at 2. The report did not include Moore’s weight or hair color, or

identify any distinguishing scars, marks, or tattoos. Id. Judge DiSalvo signed the

warrant on or about J anuary 31, 2022, authorizing Moore’s arrest and the issuance

of an appearance ticket. ECF No. 1 at § 47; ECF No. 1-2 at 15.

Moore, a middle school science teacher in the Pittsford Central School District

who claims he “had never run afoul of the law in his life,” was arrested on February

25, 2022, despite “vigorously” protesting his innocence. Jd. at {J 52, 55, 57. There is

no indication in either the Complaint or its exhibits that Officer Gitsis was present

at the arrest, or at Moore’s subsequent “booking” at the Webster police station.

Regardless, when Moore was booked at the station, the arresting officers did not

check Moore’s physical appearance against the images from the Kohl’s Webster

footage from December 2021, or the image captured by Investigator DeLong’s body

cam in January 2022. Id. at | 63.

Moore was issued an appearance ticket and released that same evening with

instruction to appear before the Webster Town Court on March 9, 2022. ECF No. 1-2

at 17. Soon thereafter, the New York State Education Department’s Office of School

Personnel Review and Accountability was notified of Moore’s arrest. [d. at 70. When

Moore notified the school district, he was placed on administrative leave, pending the

outcome of his case. Id. at J 70-78.

Moore’s defense counsel obtained discovery in March and April 2022, and

quickly realized that the footage and photos of the Kohl’s Webster and Kohl’s Batavia

suspect were not Moore. Jd. at {{| 77-79. After correspondence with Moore’s counsel,

the Monroe County District Attorney’s Office jomned Moore in requesting that all

charges against him be dismissed on the merits, which they were on May 4, 2022. Id.

at § 80.

Authorities eventually learned that the suspect’s real name was Christopher

Cole, an individual who attended high school with Moore. Id. at {| 93. Cole had used

Moore’s identity in several other jurisdictions, as well, eliciting a felony complaint

against Moore from Ontario County, New York, accusations of larceny against Moore

from the Greece Ridge Shopping Mall, and a warrant for Moore’s arrest from Cayuga

County. ECF Nos. 1 at 4[ 83-96, 1-5, 1-6. Like the Town of Webster, Ontario County

dismissed its case against Moore after determining that Cole was the real suspect.

ECF No. 1 at 9§ 93-94.

Moore filed this action in January 2024, claiming malicious prosecution

against the Webster Defendants, and negligence against the Kohl’s Defendants. ECF

No. 1. Moore attached six exhibits to his complaint with a supporting declaration by

counsel: (1) the WPD December 2021 “field case report”, including images of the

Kohl’s Webster larceny suspects (ECF No. 1-1); (2) the WPD’s January 2022 “field

case supplement report” (ECF No. 1-2); (8) a letter from the State Education

Department informing Moore that the Pittsford Central School District had been

notified of his arrest (ECF No. 1-3); (4) Moore’s counsel’s post-arrest FOIL request

(ECF No. 1-4); (5) email exchanges between Moore’s counsel and the Monroe County

District Attorney’s office securing dismissal of the charges (ECF No. 1-5); (6) post-

arrest communications from JCPenney accusing Moore of shoplifting and a

consequent felony complaint from Ontario County (ECF No. 1-6). Under Rule 10(c) of

the Federal Rules of Civil Procedure, these six exhibits are considered “a part of the

pleading for all purposes.” See also Lynch v. City of New York, 952 F.3d 67, 79 2d

Cir. 2020) (“It is well established that a pleading is deemed to include any ‘written

instrument’ that is attached to it as ‘an exhibit’... .”).

The Webster Defendants filed a motion to dismiss for failure to state a claim

in March 2024. ECF No. 9. That motion is presently before the Court.

DISCUSSION

The Webster Defendants maintain that any claims against Officer Gitsis in his

official capacity should be dismissed as redundant of his claims against the Town of

Webster. Perhaps more significantly, the Webster Defendants further argue that

Moore’s first and second causes of action fail to state claims for malicious prosecution

against Officer Gitsis or the Town of Webster because the pleadings do not establish

either the absence of probable cause for Moore’s arrest or the existence of actual

malice.

I. Claims Against the Town and Officer Gitsis in His Official Capacity

The Webster Defendants argue that claims against Officer Gitsis in his official

capacity are redundant and should be dismissed. ECF No. 9-1 at 5. The Court agrees,

and finds that the Town of Webster should be dismissed as a defendant, too.

As the Second Circuit has stated, “[a] claim asserted against an individual in

. his official capacity ... 1s in effect a claim against the governmental entity itself,

rather than a suit against the individual personally ....” Lore v. City of Syracuse,

670 F.3d 127, 164 (2d Cir. 2012). Because the Town of Webster is also named as a

defendant in the instant case, any claims against Officer Gitsis in his official capacity

are redundant. Doyle v. City of Corning, No. 14-CV-6507-CJS-MWP, 2019 WL

360759, at *4 (W.D.N-Y. Jan. 29, 2019).

Further, even more significant than the issue of the claims against Officer

Gitsis in his official capacity are the shortcomings in Moore’s allegations against the

Town of Webster. “A municipality may not be held liable under § 1983 solely on the

basis of respondeat superior.” McGee v. Doe, 568 F. App’x 32, 41 (2d Cir. 2014), as

amended (July 2, 2014). Rather, “to establish municipal liability, ‘a plaintiff must

show that the violation of his constitutional rights resulted from a municipal custom

or policy.” Id. (quoting DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998)).

Here, Moore claims that the Town of Webster is liable for malicious

prosecution, but he fails to allege any basis for such finding. He does not plausibly

allege the existence of any Town “custom or policy” that caused Officer Gitsis’ conduct

or Moore’s arrest; he does not allege any deficiencies in Officer Gitsis’ training or

supervision; he does not allege deliberate indifference by the Town to people’s Fourth

Amendment rights; and he does not allege any facts connecting any Town officials

with final policymaking authority to the decision to arrest him. See, e.g., Pembaur v.

City of Cincinnati, 475 U.S. 469, 483 (1986) (holding that a plaintiff can establish that

his constitutional right was violated because of a single docision by a municipal

official who is “responsible for establishing final policy with respect to the subject

matter in question.”).

In sum, because Moore’s claims against Officer Gitsis in his official capacity

are redundant with his claims against the Town of Webster, and because Moore failed

to allege a sufficient basis for finding that the Town may be held lable under § 1983

(i.e., that the violation of his constitutional rights resulted from a municipal custom

or policy), Moore’s claims against both Officer Gitsis in his official capacity and the

Town of Webster must be dismissed.

II. Moore’s Malicious Prosecution Claims under 42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “(1) the

violation of a right secured by the Constitution and laws of the United States, and (2)

the alleged deprivation was committed by a person acting under color of state law.”

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) Gnternal

citations and quotation marks omitted). Further, in order to establish lability under

§ 1983 against a municipality, “a plaintiff must show that the violation of his

constitutional rights resulted from a municipal custom or policy.” DeCarlo, 141 F.3d

at 61 (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir.

1991)).

Moore’s first and second causes of action allege that the Webster Defendants are

liable under § 1988 for violating his Fourth Amendment and Fourteenth Amendment

rights by subjecting him to a malicious prosecution. ECF No. 1 at § 103-26.

A. Malicious Prosecution in Violation of the Fourth Amendment

A plaintiff can prevail on a § 1983 claim against a state actor for malicious

prosecution if he can establish both a violation of his rights under the Fourth

Amendment, and the elements of a malicious prosecution claim under state law. See,

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e.g., Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010).

The Fourth Amendment protects individuals against “unreasonable searches

and seizures” by, among other things, “prohibiting government officials from

detaining a person in the absence of probable cause.” As the Supreme Court has

acknowledged, a plaintiff can demonstrate a Fourth Amendment violation not only

by showing the police held him “without any reason before the formal onset of a

criminal proceeding,” but also by showing that the legal process itself was wrong —

“when, for example, a judge’s probable cause determination is predicated solely on a

police officer’s false statements.” Manuel v. City of Joliet, Ill., 580 U.S. 357, 366-67

(2017). Even if a plaintiff was released pretrial, he can still demonstrate he was

“seized” in the constitutionally-relevant sense: “Such a defendant is scarcely at

liberty; he remains apprehended, arrested in his movements, indeed ‘seized’ for trial,

so long as he is bound to appear in court and answer the state’s charges.” Murphy v.

Lynn, 118 F.3d 938, 946 (2d Cir. 1997) Gnternal quotation marks and citation

omitted).

The New York common law “tort of malicious prosecution protects the personal

interest of freedom from unjustifiable litigation ... . [t]he essence of malicious

prosecution is the perversion of proper legal procedures.” Broughton v. State, 335

N.E.2d 310, 314 (N.Y. 1975) Gnternal citations omitted). To establish a malicious

prosecution claim under New York law, a plaintiff must prove (1) the commencement

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

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proceeding in plaintiffs favor; (8) lack of probable cause for commencing the

proceeding; and (4) actual malice as a motivation for the defendant’s actions. Id.

B. Moore’s Fourth Amendment Malicious Prosecution Claim

With respect to Moore’s malicious prosecution claim against Officer Gitsis in

his individual capacity, it is undisputed that Moore was “seized” for Fourth

Amendment purposes, and that the first two elements of a malicious prosecution

claim are met: a criminal proceeding was instituted against Moore, and that

proceeding terminated in his favor. See ECF Nos. 1-2 at 8 (the felony complaint), 1-5

at 4 (Judge DiSalvo’s order of dismissal on the basis of Moore being “wrongfully

charged”). After careful review of Moore’s pleadings and the parties’ motion papers,

the Court concludes that Moore has also plausibly alleged both the absence of

probable cause and actual malice sufficient to survive the motion to dismiss.

First, the Webster Defendants’ reliance on the proposition that “[w]here an

officer makes an arrest pursuant to a warrant it is presumed to be reasonable and

have been issued on probable cause” is misplaced. ECF No. 9-1 at 7-10 (discussing

Bah v. Apple Inc., 2021 WL 4084500, at *9 (S.D.N.Y. 2021)). While the general

principle is certainly true, under New York law “[t]hat rule is inapplicable | ] where

the warrant is issued by a judge on the basis of the sworn accusations of the defendant

in the malicious prosecution action.” Pritzker v. City of Hudson, 26 F. Supp. 2d 4338,

442 (N.D.N.Y. 1998) (quoting Russo v. State of New York, 672 F.2d 1014, 1018 (2d

Cir. 1982), modified on other grounds, 721 F.2d 410 (19838)). Here, Judge DiSalvo’s |

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warrant was based on the sworn felony complaint and supporting field reports

prepared and submitted by defendant Officer Gitsis. ECF No. 1-2 at 8. Therefore, a

presumption of probable cause would not be appropriate here.

Second, the Webster Defendants point to several cases for the proposition that

“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.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). See ECF No.

9-1 at 7-12 (discussing also Wright v. Orleans Cnty., 2015 WL 5316410 (W.D.N.Y.

2015); Williams v. Carpenter, 214 F. Supp. 3d 197, 201 (W.D.N.Y. 2016)). As with the

proposition asserted above in Bah, the Court does not disagree with the general

proposition that the Webster Defendants are asserting with regard to mistaken

information. See, e.g., Hill v. California, 401 U.S. 797, 803 (1971) “But aliases and

false identifications are not uncommon.”). Nevertheless, because Moore has plausibly

alleged the absence of probable cause, his allegations are sufficient to defeat a motion

to dismiss.

“The probable cause standard in the malicious prosecution context is slightly

higher than the standard for false arrest cases... . [it requires] such facts and

circumstances as would lead a reasonably prudent person to believe the plaintiff

cuilty.” Stansbury v. Wertman, 721 F.8d 84, 95 (2d Cir. 2013) (citing Boyd v. City of

New York, 336 F.3d 72, 76 (2d Cir. 2003)). Probable cause is typically assessed in light

of the facts known or reasonably believed by the defendants at the initiation of the

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prosecution. Keyes v. City of New York, No. 21-2406-CV, 2023 WL 176956, at *4 (2d

Cir. Jan. 18, 2023). This is a mixed question of law and fact. See United States v.

Singletary, 798 F.3d 55, 59 (2d Cir. 2015). Questions of historical fact regarding the

defendant’s knowledge at the time of arrest or the commencement of a prosecution

are to be resolved by the jury. Dufort v. City of New York, 874 F.3d 338, 348 (2d Cir.

2017) (citing Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004)). On the

other hand, “where there 1s no dispute as to what facts were relied on to demonstrate

probable cause, the existence of probable cause is a question of law for the court.”

Walczyk v. Rio, 496 F.3d 1389, 157 (2d Cir. 2007).

Moore’s pleadings identify circumstances from which a jury might infer it was

unreasonable for Officer Gitsis to believe that Moore was guilty. For instance, Moore

alleges that Officer Gitsis based his felony complaint and warrant request on only

two sources of information, both of whom based their identification of Moore on a

single statement by an individual detained in the parking lot of a Kohl’s in which he

was suspected of attempting to commit a larceny. ECF No. 1 at § 43-44, 46-48.

Officer Gitsis’ “field case supplement report” indicates he spoke with Investigator

DeLong regarding “how he was able to determine the suspect|’]s identity,” (ECF No.

1-2 at 3), but the substance of that conversation is not known. Consequently, it

appears — as Moore alleges — that Officer Gitsis was left only with “the unverified

verbal identification of an admitted felon.” ECF No. 1 at { 44. Depending on the

substance of his conversation with Investigator DeLong, and any further

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investigation he may have conducted in the preparation of his felony complaint, a

jury could potentially find that this was an unreasonable basis upon which to believe

Moore guilty.

Similarly, the Court declines to adopt the Webster Defendants’ positition that

Moore has failed to plausibly allege actual malice. “Under New York law, malice does

not have to be actual spite or hatred[ | but means only ‘that the defendant must have

commenced the criminal proceeding due to a wrong or improper motive, something

other than a desire to see the ends of justice served.” Lowth v. Town of Cheektowaga,

82 F.3d 568, 573 (2d Cir. 1996) as amended (May 21, 1996) (quoting Nardelli v.

Stamberg, 377 N.E.2d 975, 976 (1978)). A plaintiff need not demonstrate the

defendant's intent to do him personal harm, “but need only show a reckless or grossly

negligent disregard for his or her rights.” Charlotten v. Heid, No. 1:09-CV-0891

LEK/RFT, 2011 WL 3423826, at *7 (N.D.N.Y. Aug. 4, 2011) (quoting Putnam v.

County of Steuben, 61 A.D.3d 1369, 1370-71 (N.Y. App. Div. 2009)). Thus, “[i]Jn most

cases, the lack of probable cause — while not dispositive — ‘tends to show that the

accuser did not believe in the guilt of the accused, and malice may be inferred from

the lack of probable cause.” Lowth, 82 F.3d at 573 (quoting Conkey v. State, 74 A.D.2d

998, 999 (4th Dep’t 1980)) (emphasis added). See also Johnson v. City of Rochester,

No. 21-CV-6683DGL, 2023 WL 8237560, at *8 (W.D.N.Y. Nov. 28, 2023).

Because the Court finds that Moore has adequately pled an absence of probable

cause, the Court declines to find as a matter of law at this stage of the proceedings

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that Officer Gitsis lacked actual malice. Sanders v. City of Saratoga Springs, 691 F.

Supp. 3d 548, 559 (N.D.N.Y. 2028) (declining to find an absence of malice where the

plaintiff had plausibly alleged that defendants lacked probable cause). While further

discovery may show that Officer Gitsis engaged in what is “no more than poor police

work” that is not actionable under § 1983 (ECF No. 9-1 at 12, quoting Williams, 214

F. Supp. 3d at 201), such a finding is not appropriate where Moore’s pleadings

sufficiently allege facts from which a jury could infer that belief in his guilt was

unreasonable. Varricchio v. Cnty. of Nassau, 702 F. Supp. 2d 40, 53 (H.D.N.Y. 2010)

(denying a motion to dismiss plaintiff's § 1983 malicious prosecution claim because

“the existence of probable cause remain[ed] in question, [and thus] the existence of

actual malice [did] as well”).

Accordingly, Moore’s first cause of action may proceed.

C. Moore’s Fourteenth Amendment Malicious Prosecution Claim

By contrast, Moore’s second cause of action must be dismissed because the

Fourteenth Amendment itselfis not a sufficient Constitutional ground for a malicious

prosecution claim.

The Supreme Court has stated that “if a constitutional claim is covered by a

specific constitutional provision, such as the Fourth or Eighth Amendment, the claim

must be analyzed under the standard appropriate to that specific provision, not under

the rubric of substantive due process [under the Fourteenth Amendment].” United

States v. Lanier, 520 U.S. 259, 272 n.7, (1997) (citations omitted). Indeed, after

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considering Supreme Court precedent, the Second Circuit determined more than

thirty years ago that “the Fourteenth Amendment right to substantive due process

will not support a federal claim for malicious prosecution.” Singer v. Fulton Cnty.

Sheriff, 63 F.3d 110, 114 (2d Cir. 1995) (discussing Albright v. Oliver, 510 U.S. 266

(1994)). Rather, “[i]f the complaint is that a form of legal process result[ed] in pretrial

detention unsupported by probable cause, then the right allegedly infringed lies in

the Fourth Amendment.” Manuel, 580 U.S. at 367.

Although neither party addresses this issue in their papers, the Court finds

sufficient consistency in the application of the Second Circuit’s holding over time to

warrant dismissal of Plaintiffs second cause of action on this basis. See, e.g.,

Macdonough v. Spaman, No. 615CV0643LEKTWD, 2016 WL 1298184, at *5

(N.D.N.Y. Mar. 31, 2016) (rejecting the plaintiffs attempt to ground his malicious

prosecution claim in the Fourteenth Amendment) (citing Swartz v. Insogna, 704 F.3d

105, 112 (2d Cir. 2013); Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010); Rohman v.

N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)). See also Towner v. Town of

Cohocton, No. 19-CV-6638 CJS, 2021 WL 1966799, at *9 (W.D.N.Y. May 17, 2021)

(“[I]t appears that the false arrest and malicious prosecution claims are properly

raised under the Fourth Amendment, not the Fourteenth Amendment’s Due Process

clause.”).

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss [ECF No. 9] is

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granted in part and denied in part. Specifically, it is hereby,

ORDERED that Moore’s claims against Officer Gitsis in his official capacity

and the Town of Webster be dismissed, and the Clerk of Court is directed to update

the docket to reflect the claims are against Officer Gitsis only in his individual

capacity; and it is further

ORDERED that Moore’s second cause of action, malicious prosecution in

violation of Moore’s Fourteenth Amendment rights, be dismissed; and it is further

ORDERED that the Webster Defendants answer Moore’s remaining claims, as

well as the Kohl’s Defendants’ cross-claim, within thirty (80) days from the date of

this order.

SO ORDERED.

Dated: May DR, 2025

Rochester, New York

ENTER:

United States District Judge

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