Bonano v. Grant

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MICHAEL BONANO,

Plaintiff,

-against-

25-CV-2808 (LTS)

DARRION GRANT; CHELSEA ERET,

ASSISTANT DISTRICT ATTORNEY; ORDER OF DISMISSAL

OUSSEYMENOU DIOP; VARIOUS WITH LEAVE TO REPLEAD

UNDISCLOSED 30TH PRECINCT; NY

COUNTY DA’S OFFICE SUPERVISORS,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Michael Bonano is a pretrial detainee currently held at the North Infirmary Command on

Rikers Island. He sues New York City Police Department (NYPD) Officer Darrion Grant,

Assistant District Attorney Chelsea Eret, a private individual (Ousseymenou Diop), and various

unidentified supervisors from the NYPD’s 30th Precinct and the Manhattan District Attorney’s

Office. Plaintiff seeks leave to proceed in forma pauperis (“IFP”),1 that is, without prepayment

of fees, but there is a question as to whether he is barred, under 28 U.S.C. § 1915(g), from

proceeding IFP. For the reasons set forth below, the Court grants Plaintiff’s request to proceed

IFP and dismisses the complaint, with 30 days’ leave to replead.

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought

by prisoners who seek relief against a governmental entity or an officer or employee of a

governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s in forma

1 Prisoners are not exempt from paying the full filing fee even when they have been

granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).

pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d

636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject

matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

BACKGROUND

The following facts are drawn from the complaint.2 At approximately 6 a.m. on March

22, 2022, at the corner of West 112th Street and Lenox Avenue, Ousseymenou Diop attempted to

load into his S.U.V. Plaintiff’s rolling suitcase, which Plaintiff had stepped away from

momentarily. (ECF 1 at 5.) Plaintiff ran up to Mr. Diop and said, “That’s my shit!”, to which Mr.

Diop responded, “Oh, that’s your shit? What you wanna do?”

Plaintiff was then 56 years old and weighed 140 pounds, while Diop was in his mid-30’s

and “approximately 6’5” and 260 seemingly well-muscled pounds.” (Id.) Plaintiff “perceived

that [he] would have to make a show of imminent force to ward off [Diop’s] attempt to simply

take [his] property,” and he took a “kitchen knife from [his] waistband.” (Id. at 6.) Diop “ran to

the vestibule of his residential building between [West] 111th and 112th Streets on Lenox so he

could hide and call the police to make the completely false ‘emergency’ call that [Plaintiff] was

‘robbing’ him.” (Id.) Meanwhile, Plaintiff was attempting to locate his leather shoulder bag,

which contained his new clothes, in Diop’s S.U.V. Plaintiff had left his rolling suitcase and a box

with six pairs of shoes on the corner. Once NYPD officers had arrived and exited the patrol car,

Diop returned from across the street “to charge at and punch [Plaintiff] in the face – thus

2 The Court quotes from the complaint verbatim. All spelling, grammar, and punctuation

are as in the original unless noted otherwise.

prompting [him] to again withdraw [his] knife to defend” himself.” (Id. at 7.) Police

Officer Darrion Grant then pointed the gun at Plaintiff and ordered him to drop the knife, which

he did. (Id.)

Plaintiff made it clear that “Diop had tried to ‘strong-arm rob’ [him], and [that he had]

simply and solely displayed [his] knife to repel his robbery and retain [his] property.” (Id.)

Plaintiff was detained at the precinct for nearly 8 hours, which caused him to fail to appear for a

scheduled court hearing in another matter, where he was being considered for a judicial diversion

process and drug treatment program.3

Despite the fact that Diop allegedly was the “sole perpetrator,” who had admitted that he

actually “tried to rob” Plaintiff, only Plaintiff faced criminal charges. Plaintiff was “charge[d] by

the 32nd Precinct command and arresting officers, in consultation with N.Y. County A.D.A.

Chelsea Eret.” (Id. at 5.) The criminal charges against him (which he describes as the “phony

Menacing/4th CPW” March 22, 2022 case”) were dismissed “months later, with supervisors’

consent.” (Id. at 13.) Plaintiff contends that “P.O. Grant, A.D.A. Eret and supervisors contrived

the March 22, 2022 case in order to [cause Plaintiff to] accumulate more arrests and cases so as

to deprive [him] of Judicial Diversion.” (Id. at 13.)

Plaintiff brings claims for false arrest, malicious prosecution, conspiracy among the

defendants to fabricate criminal charges against him, and state law. Plaintiff seeks $2 million in

compensatory and punitive damages.

3 Plaintiff refers to charges for “Macy’s Grand Larceny,” that arose on March 13, 2022,

which may be a reference to the criminal proceedings that he was unable to attend.

DISCUSSION

A. Filing fees

Plaintiff seeks to proceed IFP in this action. The Prison Litigation Reform Act’s “three-

strikes” provision states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil

action or proceeding under this section if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action or

appeal in a court of the United States that was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

Two district courts have already concluded in the cases before them that Plaintiff was

barred under Section 1915(g) from proceeding IFP as a prisoner because he had at least three

prior dismissals that qualified as strikes. See Bonano v. Costello, No. 9:19-CV-0671 (GTS)

(CFH), 2019 WL 3081058, at *3 (N.D.N.Y. July 15, 2019); Bonano v. Tillinghast, No. 6:18-CV-

6405 (EAW), 2022 WL 17362422, at *3 (W.D.N.Y. Dec. 1, 2022) (“[B]ecause Plaintiff incurred

at least three prior strikes and failed to allege the imminent danger of serious physical harm, his

in forma pauperis status is hereby revoked”).

The Court therefore considers whether issue preclusion (also known as collateral

estoppel) prevents Plaintiff from relitigating whether his prior dismissals are strikes. See, e.g.,

Wallace v. All Pers. Liab. Carriers-Underwriters of Land, No. 22-CV-8022 (LTS), 2022 WL

17586330, at *1 (S.D.N.Y. Dec. 9, 2022) (holding that “[t]he three-strikes provision applies here,

as Wallace is barred from filing any new action IFP while he is a prisoner”) (citation omitted),

vacated and remanded sub nom., Hillis v. All Pers. Liab. Carriers-Underwriters of Land, No.

23-47, 2023 WL 4004488, at *1 (2d Cir. June 12, 2023) (directing that, on remand, among other

things, “the district court should consider whether the Fifth Circuit’s finding that Wallace had

three strikes precludes relitigation of Wallace’s three-strikes status under collateral estoppel”).

Collateral estoppel effect of prior Section 1915(g) bar orders

When determining the preclusive effect of a prior federal judgment, courts apply the

federal law on collateral estoppel. See Purdy v. Zeldes, 337 F.3d 253, 258 (2d Cir. 2003). Under

federal law, collateral estoppel applies when “(1) the identical issue was raised in a previous

proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the

party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was

necessary to support a valid and final judgment on the merits.” Id. Collateral estoppel “may be

inappropriate,” however, where “controlling facts or legal principles have changed significantly

since the initial decision.” Wyly v. Weiss, 697 F.3d 131, 143-44 (2d Cir. 2012) (quotation marks

omitted); see also Montana v. United States, 440 U.S. 147, 155 (1979).

The Second Circuit has not squarely addressed in a published opinion when collateral

estoppel precludes relitigation of a district court’s conclusion that a prisoner has three strikes.4

Some district courts in this and other circuits have held that collateral estoppel can apply. See,

e.g., Shepherd v. Keyser, No. 21-CV-2363 (LTS), 2021 WL 1842159, at *3 (S.D.N.Y. May 7,

2021) (concluding that “relitigation of whether Plaintiff has three strikes is barred by the doctrine

4 In Escalera v. Samaritan Vill., 938 F.3d 380, 381 (2d Cir. 2019), the Second Circuit did not

explicitly address the preclusive effect, if any, of an earlier Section 1915(g) order. Then-Chief

District Judge McMahon, citing another court’s order, had held that, “Plaintiff is barred from

filing any new action in forma pauperis while a prisoner.” Escalera v. Samaritan Vill., No. 17-

CV-4691 (CM) (S.D.N.Y. June 22, 2017) (citing Escalera v. Graham, No. 08 CV 412

(GLS GHL), 2008 WL 4181741 (N.D.N.Y. May 27, 2008)). On appeal, the Second Circuit did

not treat Judge McMahon’s decision as having given preclusive effect to the S‐ectio‐n 1915(g)

decisi)o(n in Graham, No. 08 CV 412; instead, it read Judge McMahon’s decision as concluding

that Escalera “had three strikes under the PLRA,” a conclusion that the Circuit reviewed de novo.

Escalera, 938 F.3d at 381 (“‐The‐ d0istrict court's decision that a certain type of dismissal

constitutes a ‘strike’ for purposes of § 1915(g) is an interpretation of a federal statute . . . which

this Court reviews de novo.”).

of issue preclusion”); Thomas v. Ellis, No. 12-CV-05563 (PR), 2015 WL 859071, at *2 (N.D.

Cal. Feb. 26, 2015) (“[C]ollateral estoppel bars Plaintiff from litigating whether the three cases

addressed in Sepulveda qualify as strikes under § 1915(g).”); Thomas v. Sepulveda, No. 14-CV-

1157, 2014 WL 5409064, at *2-3 (N.D. Cal., Oct. 23, 2014) (holding that the doctrine of

collateral estoppel barred plaintiff from relitigating whether he had accumulated three strikes).

Upon review, the Court concludes that the two prior district court orders finding Plaintiff

barred under Section 1915(g) do not have preclusive effect in this case. First, the district court

did not offer Plaintiff notice and an opportunity to respond in Costello, No. 9:19-CV-0671

(N.D.N.Y.), before holding that he had at least three prior dismissals that qualified as strikes, and

Plaintiff therefore did not have a full opportunity to litigate the issue. Second, in Tillinghast, No.

6:18-CV-6405 (W.D.N.Y.), resolution of Plaintiff’s three-strikes status was not “necessary to

support a valid and final judgment on the merits,” Purdy, 337 F.3d at 258, which is another

element of collateral estoppel. After the district court denied Plaintiff leave to proceed IFP in

Tillinghast, he then paid the filing fees and continued to litigate the matter, until it was

eventually dismissed for failure to prosecute; the denial of IFP thus was not necessary to the

judgment.5 These district court decisions therefore do not collaterally estop Plaintiff from

relitigating his three-strikes status.

Whether Plaintiff has three strikes

After reviewing the dismissals in Plaintiff’s prior civil actions, including those filed

under other names that he has used (Anthony Cusamano and Anthony Armatullo), the Court has

identified only two dismissals that qualify as strikes. See Bonano v. Shapiro, No. 18-2995 (2d

5 See Tillinghast, 2024 WL 1995235, at *2 (W.D.N.Y. May 6, 2024) (“[T]he Court

adopts the R&R (Dkt. 123) to the extent it recommended dismissal of Plaintiff's complaint with

prejudice for failure to prosecute pursuant to Rule 41(b)”).

Cir. May 7, 2019) (Plaintiff’s appeal, filed while he was incarcerated in Auburn Correctional

Facility, was dismissed because it “lacks an arguable basis either in law or in fact.” (citing

Neitzke v. Williams, 490 U.S. 319, 325 (1989))); Bonano v. Staniszewski, No. 17-4163 (2d Cir.

May 30, 2018) (Plaintiff’s appeal, filed while he was incarcerated in Southport Correctional

Facility, was dismissed because it “lacks an arguable basis either in law or in fact.”) (citing

Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Section 1915(g) lists frivolous dismissals as a

strike ground, and the dismissals of these appeals as frivolous qualify as strikes.

The district court in Tillinghast had identified two additional actions that it treated as

strikes: Armatullo v. Vasquez, 03-CV-8189 (S.D.N.Y.), and Bonano v. Alonso, No. 1:12-CV-

3646 (S.D.N.Y. filed June 8, 2012). Although the docket sheet in Vasquez, 03-CV-8189,

suggests that the action was resolved entirely on strike grounds, the dismissal order itself states

that some claims are dismissed based on sovereign immunity, which is not listed in Section

1915(g) as a strike ground.6 See Escalera, 938 F.3d at 382 (“[M]ixed dismissals are not strikes

under the PLRA”); Hillis, No. 23-47, 2023 WL 4004488, at *1 (citing Thompson v. DEA, 492

F.3d 428, 435–37 (D.C. Cir. 2007) (holding that dismissals for lack of subject matter jurisdiction

are not 28 U.S.C. § 1915(g) strikes and suggesting that sovereign immunity dismissals are

likewise not strikes)); see also Kelsey v. Kessel, No. 24-1105 (2d Cir. May 7, 2025) (summary

order) (“A defense of sovereign immunity implicates the court’s subject matter jurisdiction”).

6 Courts “may rely on the relevant docket sheets if they indicate with sufficient clarity

that the prior suits were dismissed on the grounds that they were frivolous, malicious, or failed to

state a claim upon which relief may be granted.” Harris v. City of New York, 607 F.3d 18, 23-24

(2d Cir. 2010).

Vasquez thus appears to be a “mixed dismissal” that does not qualify as a strike because the

entire action was not dismissed on Section 1915(g) grounds. See Escalera, 938 F.3d at 381-82.7

The dismissal of Alonso, 12-CV-3646, is also a mixed dismissal that does not qualify as a

strike. A petition for a writ of habeas corpus is not a “civil action” for purposes of Section

1915(g). Jones v. Smith, 720 F.3d 142 (2d Cir. 2013). The Alonso district court construed the

complaint, in part, as a petition for a writ of habeas corpus, and the Court of Appeals also treated

it as such, Bonano v. Alonso, No. 12-3412-pr (2d Cir. filed April 17, 2013).8 Thus, both the

district court’s order of dismissal and the appeal are mixed dismissals that are not strikes.

The Costello bar order also identified two additional potential strikes: Cusamano v.

Bullock, No. 1:08-CV-2737 (E.D.N.Y. filed Aug. 28, 2008), and Cusamano v. Carlsen, No.

9:08-CV-00422 (N.D.N.Y. Apr. 24, 2008). Although the docket sheets may be unclear, careful

review reflects that Plaintiff was not a prisoner, for purposes of 28 U.S.C. § 1915(h), when he

brought either action.9 See Gibson v. City Municipality of New York, 692 F.3d 198, 201 (2d Cir.

2012) (“[T]he relevant time at which a person must be “a prisoner” within the meaning of the

7 It has long been the majority view in this Circuit that mixed dismissals are not strikes.

See, e.g., Gillard v. Canfield, No. 12-CV-428S, 2013 WL 5276546, at *3 (W.D.N.Y. Sept. 17,

2013) (“[S]trikes should be imposed only when entire actions are dismissed for one of the stated

reasons within section 1915(g).”); Tafari v. Hues, 539 F. Supp. 2d 694 (S.D.N.Y. 2008)

(“[S]trike resulted only when entire action was dismissed for reasons stated in three-strikes

statute.”).

8 See Thompson v. Choinski, 525 F.3d 205, 210 (2d Cir. 2008) (“[T]he district court erred

in the belief that a claim for habeas corpus may not be joined in the same pleading with a civil

rights claim.”); see also Garrett v. Murphy, 17 F.4th 419, 432 (3d Cir. 2021) (where district court

expressly refused to construe detainee’s claim seeking immediate release as a habeas action,

dismissal order was not a “mixed dismissal”).

9 See Bullock,, ECF1:08-CV-2737, 1 (Complaint at 32 (“I was released from prison less

than five months ago. . . .”)); Cusamano v. Carlsen, No. 9:2008-CV-00422 (N.D.N.Y. Apr. 24,

2008) (ECF 3 at 2, n.2 (“Because he was released from prison [in February 2008, which was

before filing the action], the plaintiff may litigate this matter without complying with the fee

requirements imposed by the Prison Litigation Reform Act.”)).

PLRA in order for the Act’s restrictions to apply is ‘the moment the plaintiff files his

complaint.’”).

The Court has also reviewed actions not specified in the bar orders and has not located

other dismissals that qualify as strikes. Plaintiff’s other actions include habeas corpus petitions

not covered by Section 1915(g), 10 actions that went to trial or where summary judgment was

granted for insufficient evidence,11 and actions that were dismissed on administrative or other

non-strike grounds.12 Because the Court has not identified a third strike that issued before this

action was filed, the Court grants, by separate order, Plaintiff’s request to proceed IFP. Plaintiff

has brought dozens of actions under multiple names; if it later appears that Plaintiff had

previously brought an action as a prisoner that was dismissed on strike grounds, qualifying as his

10 Bonano v. Thompson, No. 6:19-CV-6203 (W.D.N.Y. Apr. 23, 2019) (habeas corpus

petition); Bonano v. Thompson, No. 6:19-CV-06385 (W.D.N.Y. Nov. 21, 2019) (same);

Cusamano v. Donelli, No. 06-CV-6047 (S.D.N.Y. July 7, 2010) (habeas corpus petition), appeal

dismissed, 10-04878 (2d Cir. Apr. 27, 2011); Armatullo v. Taylor, No. 04-CV-5357 (S.D.N.Y.

Jan. 17, 2007) (habeas corpus petition); Armatullo v. Taylor, No. 04-CV-7821 (S.D.N.Y. Oct. 1,

2004) (same).

11 Bonano v. Staniszewski, No. 12-CV-0879 (E.D.N.Y. Sept. 22, 2017) (“[A]s there is no

genuine issue of material fact, Defendants’ motion for summary judgment is granted.”);

Cusamano v. Alexander, No. 08-CV-0781 (N.D.N.Y. Feb. 9, 2011) (granting summary judgment

because “there is no evidence that the defendant violated any constitutional rights of the plaintiff

by imposing a special condition of parole”); Bonano v. Carlsen, No. 08-CV-00755 (N.D.N.Y.

Sept. 3, 2013) (ECF 108 at 9 (granting summary judgment on remaining claim because “Plaintiff

has failed to raise a triable issue of fact as to whether Defendant Carlsen exposed him to brown,

polluted water in violation of the Eighth Amendment.”); Cusamano v. Sobek, No. 06-CV-0623

(N.D.N.Y. Nov. 17, 2011) (jury verdict for defendants).

12 Bonano v. Crego, No. 20-CV-6897 (W.D.N.Y.) (dismissed for failure to prosecute);

Bonano v. Hickey, No. 20-CV-06141 (W.D.N.Y.) (inadequate IFP application); Bonano v.

Hughes, No. 20-CV-6251 (W.D.N.Y.) (same); Bonano v. Shapiro, No. 16-CV-0844 (N.D.N.Y.

Sept. 26, 2018) (dismissed as sanction for Plaintiff’s failure to sit for deposition).

third strike, IFP may be revoked, and Plaintiff would at that point be required to prepay any

remaining unpaid fees.

B. False Arrest

A claim for false arrest under Section 1983 looks to state law as a starting point to

determine the elements of a claim for false arrest. See Manuel v. City of Joliet, Ill., 580 U.S. 357,

378 (2017) (“[T]o flesh out the elements of this constitutional tort, we must look for ‘tort

analogies.’”). To establish a false arrest claim under New York law, a plaintiff must show that:

“(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not

otherwise privileged.” Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012). An arrest is

privileged if it is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir.

2007) (“The existence of probable cause to arrest constitutes justification and is a complete

defense to an action for false arrest.”) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.

1996)) (internal quotation marks omitted).

Where “an arrest is not made pursuant to a judicial warrant, the defendant in a false arrest

case bears the burden of proving probable cause as an affirmative defense.” Mitchell v. City of

New York, 841 F.3d 72, 77 (2d Cir. 2016) (citing Dickerson v. Napolitano, 604 F.3d 732, 751 (2d

Cir. 2010)). A plaintiff generally is not required to plead facts negating an affirmative defense.

Abbas, 480 F.3d at 640. A false arrest claim can be dismissed based on probable cause,

however, if the facts alleged in the plaintiff’s complaint show that the officers had probable

cause. See Silver v. Kuehbeck, 217 F. App’x 18, 22 (2d Cir. 2007).

Officers have probable cause to arrest when they have “knowledge or reasonably

trustworthy information of facts and circumstances that are sufficient to warrant a person of

reasonable caution in the belief that the person to be arrested has committed . . . a crime.” Jaegly

v. Couch, 439 F.3d 149, 152 (2d Cir. 2006).13 “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 (1994); Curley v. Vill. of

Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (holding that a police officer is “not required to explore

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

information is received from a putative victim or an eyewitness, probable cause exists unless the

circumstances raise doubt as to the person’s veracity. Singer v. Fulton County Sheriff, 63 F.3d

110, 119 (2d Cir. 1995). Moreover, “an officer’s failure to investigate an arrestee’s protestations

of innocence generally does not vitiate probable cause.” Tuccillo v. Cnty. of Nassau, 723 F.

App’x 81, 82 (2d Cir. 2018) (citing Panetta v. Crowley, 460 F.3d 388, 395-96 (2d Cir. 2006)).

“[T]he eventual disposition of the criminal charges is irrelevant to the probable cause

determination.” Hahn v. Cnty. of Otsego, 820 F. Supp. 54, 55 (N.D.N.Y. 1993), aff’d, 52 F.3d

310 (2d Cir. 1995)).

Here, Plaintiff alleges that, when he drew his knife on Diop in the presence of officers,

he was arrested on charges of menacing and fourth degree criminal possession of a weapon,

“even after Mr. Diop admitted that he [had] actually tried to rob” Plaintiff. (ECF 1 at 13.) The

facts alleged in Plaintiff’s complaint show that the officers had probable cause to believe that

Plaintiff had committed a crime; this is so whether or not Diop was also subject to arrest, and

notwithstanding any protestations of innocence that Plaintiff may have made. Because Plaintiff’s

13 “The existence of probable cause depends on the totality of the circumstances,”

Washington v. Napolitano, 29 F.4th 93, 105 (2d Cir. 2022), and courts consider only the facts

“available to the officer[s] at the time of the arrest and immediately before it,” Ashley v. City of

New York, 992 F.3d 128, 136 (2d Cir. 2021) (internal quotation marks and citation omitted).

allegations show that officers had probable cause to arrest him, the allegations fail to state a

Section 1983 claim for false arrest.

Plaintiff’s allegations that he was arrested and criminally charged but that Diop was not

charged for attempted robbery might be liberally construed as an effort to bring a claim for

selective enforcement. To prevail on a selective enforcement claim, a plaintiff must show that

(1) “compared with others similarly situated, [he] was selectively treated, and (2) the selective

treatment was motivated by an intention to discriminate on the basis of impermissible

considerations.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019) (quoting Zahra v. Town

of Southold, 48 F.3d 674, 683 (2d Cir. 1995)). Because the allegations do not include any facts

suggesting that Plaintiff was selectively treated based on impermissible considerations, such as

race or religion, Plaintiff also fails to state a claim for selective enforcement. The Court therefore

dismisses Plaintiff’s Section 1983 claims for false arrest and selective enforcement for failure to

state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

C. Malicious Prosecution

The tort of malicious prosecution “remedies detention accompanied, not by absence of

legal process, but by wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 389-

90 (2007). To state a claim for malicious prosecution, a plaintiff must allege facts showing:

(1) that the defendant initiated or continued a prosecution against the plaintiff; (2) that the

defendant lacked probable cause to commence the proceeding or believe the proceeding could

succeed; (3) that the defendant acted with malice; and (4) that the prosecution was terminated in

the plaintiff’s favor. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Such a claim

does not accrue until there is a favorable termination of the plaintiff’s criminal proceedings. See

Heck v. Humphrey, 512 U.S. 477, 489-90 (1994). “To demonstrate a favorable termination of a

criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious

prosecution, a plaintiff need only show that his prosecution ended without a conviction.”

Thompson v. Clark, 596 U.S. 36, 39 (2022).

Here, Plaintiff’s allegations may suffice to allege favorable termination of his criminal

proceedings, given that he alleges that his prosecution ended without a conviction. As with

Plaintiff’s false arrest claim, however, he has pleaded facts establishing that Defendants had

probable cause to charge him. See Rothstein v. Carriere, 373 F.3d 275, 292 (2d Cir. 2004) (“The

existence . . . of probable cause in a malicious prosecution suit is . . . determined . . . as of the

time prosecution is commenced.”); Stansbury v. Wertman, 721 F.3d 84, 95 (2d Cir. 2013) (“The

probable cause standard in the malicious prosecution context is slightly higher than the standard

for false arrest cases.”). Because Plaintiff has pleaded facts establishing that Defendants had

probable cause to charge him with a crime, Plaintiff’s Section 1983 claim for malicious

prosecution must be dismissed for failure to state a claim on which relief can be granted.

D. Abuse of process

“While malicious prosecution concerns the improper issuance of process, ‘[t]he gist of

abuse of process is the improper use of process after it is regularly issued.’” Cook v. Sheldon, 41

F.3d 73, 80 (2d Cir. 1994) (alteration in original). To state a claim of abuse of process under

section 1983, a plaintiff must allege facts showing that a defendant: “(1) employ[ed] 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.” Id.

Plaintiff alleges that Defendants prosecuted him in order to impede his acceptance into a

judicial diversion process and drug treatment program and to perpetuate his criminal conduct. He

states:

On March 22, 2022, A.D.A. Fret guided and participated in that day’s ultimate

false charges (even if misdemeanor) in order to thwart and/or impede my

progression in regard to gaining acceptance and entrance to the Judicial Diversion

program and drug treatment in the hope that I would continue to shoplift, incur

more arrests, and ultimately either deprive me of alternative, no further jail/prison

resolution and drug treatment participation and surmounting of my decades-long

crack-addiction.

(ECF 1 at 13.) These allegations of a collateral objective are wholly conclusory. Rule 8 of the

Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for

relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw

the inference that the defendant is liable for the alleged misconduct. Although the Court must

accept all well-pleaded factual allegations as true, Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009), it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of

action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. Plaintiff’s

allegations that Defendants had a collateral objective to deprive him of a judicial diversion

program do not include any facts about anything Defendants did, said, or failed to do, that would

make these allegations plausible. Plaintiff thus has not alleged facts sufficient to state a plausible

Section 1983 abuse of process claim.

E. Conspiracy

Plaintiff’s allegations that Defendants “contrived the March 22, 2022 case in order to

perpetuate crack and criminal conduct in the hope of seeing Plaintiff accumulate more arrests”

could be construed as a claim of conspiracy arising under Section 1983.14 To state a claim of

14 A conspiracy claim under 42 U.S.C. § 1985(3) must “be motivated by some racial or

perhaps otherwise class-based, invidious discriminatory animus behind the conspirators’ action.”

Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). Because Plaintiff makes no allegations of

class-based animus, the Court does not construe the allegations as a Section 1985(3) claim.

conspiracy under Section 1983, a plaintiff must show “(1) an agreement between two or more

state actors or between a state actor and a private entity; (2) to act in concert to inflict an

unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”

Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).

Vague and unsupported assertions of a claim of conspiracy are insufficient to state a

claim upon which relief can be granted. See, e.g., Stoner v. Young Concert Artists, Inc., 626 F.

App’x 293, 296 (2d Cir. 2015) (summary order); Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir.

2003). Plaintiff’s conspiracy claim is wholly unsupported by any factual allegations, and his

Section 1983 conspiracy claim must therefore be dismissed for failure to state a claim on which

relief can be granted.

F. State Law Claims

A district court may decline to exercise supplemental jurisdiction of state law claims

when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and

only state-law claims remain, the federal court should decline the exercise of jurisdiction.”

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

Having dismissed the federal claims of which the Court has original jurisdiction, the

Court declines to exercise its supplemental jurisdiction of any state law claims Plaintiff may be

asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by

enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).

G. Leave to Amend

Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.

2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because Plaintiff may be able to

allege additional facts to state a valid federal claim, the Court grants Plaintiff 30 days’ leave to

amend his complaint to detail his claims.

If Plaintiff does not file an amended complaint within the time allowed, the Court will

direct the Clerk of Court to enter judgment in this action.

CONCLUSION

The Court dismisses Plaintiff’s Section 1983 claims, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), and declines supplemental jurisdiction of the state law claims, 28 U.S.C.

§ 1367(c)(3), with 30 days’ leave to replead.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Court directs the Clerk of Court to hold this matter open on the docket until a civil

judgment is entered.

SO ORDERED.

Dated: August 11, 2025

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge