# Bonano v. Grant

> District Court, S.D. New York · August 11, 2025

URL: https://www.frixlaw.com/law-library/cases/11118665

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 11, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11118665

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11118665. Public record. Not legal advice.