Hillman

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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DEVON HILLMAN,

Plaintiff,

-v- 5:24-CV-1448

THE CITY OF OSWEGO; OSWEGO

CITY POLICE DEPARTMENT;

SERGEANT TOM RUPERT;

INVESTIGATOR KEVIN

HADCOCK; OFFICER STEPHEN

WEBER; OFFICER JOSHUA MARTIN;

OFFICER JOHN DOE #1; SERGEANT

JOHN DOE #1; INVESTIGATOR JOHN

DOE #1; OFFICERS JOHN DOE #2-5;

DISPATCHER JOHN DOE,

Defendants.

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APPEARANCES: OF COUNSEL:

ANNE LABARERA PROFESSIONAL ANNE L. LABARBERA, ESQ.

CORPORATION

Attorneys for Plaintiff

405 Lexington Ave

9th Floor

New York, NY 10174

FOTI HENRY PLLC DANIEL CARTWRIGHT, ESQ.

Attorneys for Defendants DAVID H. WALSH IV, ESQ.

403 Main Street, Suite 225

Buffalo, NY 14203

DAVID N. HURD

United States District Judge

DECISION & ORDER

I. INTRODUCTION

On November 27, 2024, plaintiff Devon Hillman (“Hillman” or “plaintiff”)

filed this nine-count civil action against defendants the City of Oswego (the

“City”), Oswego City Police Department (“Oswego Police”), Sergeant Tom

Rupert (“Sgt. Rupert”), Investigator Kevin Hadcock (“Investigator Hadcock”),

Officer Stephen Weber (“Officer Weber”), Officer Joshua Martin (“Officer

Martin”), Officer John Doe #1, Sergeant John Doe #1, Investigator John Doe

#1, Officers John Doe #2-5, and Dispatcher John Doe (the “Dispatcher”)

(collectively the “defendants”) for violations of his civil rights that occurred

when he was arrested during a dispute that arose on December 1, 2023. Dkt.

No. 1.

On February 3, 2025, defendants moved to dismiss plaintiff’s complaint

pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Dkt. No. 13.

The motion has been fully briefed and will be considered on the basis of the

submissions and without oral argument. Dkt. Nos. 1, 13, 15, 18.

II. BACKGROUND

On or around December 1, 2023, Hillman was present at a garage located

in Oswego, NY (the “Garage”). Compl. ¶ 14. Hillman alleges the Garage was

a part of his deceased father’s estate, and that he was present that day to

remove certain personal effects for estate-related matters. Id. But when he

arrived at the Garage, Hillman found an unfamiliar lock installed on the door

that prevented his access. Id. ¶ 19. According to plaintiff, this was not the

first time this had occurred––there was one prior incident where plaintiff

arrived at the Garage to find an unfamiliar lock installed by a “then unknown

[s]uspect [(the “Suspect”)] attempting to take possession of and exercise

dominion over the assets of the estate of [p]laintiff’s deceased father.” Id. ¶

20. Plaintiff alleges the Suspect had an accomplice (the “Accomplice”) call the

Oswego Police to report plaintiff’s presence, who subsequently arrived on the

scene. Id. ¶ 21. The Accomplice is a woman who rented a home in Oswego,

New York from plaintiff’s father while his father maintained sole occupancy

of the nearby Garage, which served as his residence prior to his death. Id. ¶

25–27. Plaintiff contends that, after his father’s death, the Accomplice

perceived him as the de facto landlord while also engaging in a dispute with

the father’s estate due to a planned sale of the property she was renting.

When unspecified police officers from the Oswego Police responded to the

first incident at the Garage, plaintiff contends the officers ordered the

Accomplice “not to interfere with [p]laintiff’s access to the garage.”1 Id. ¶¶

21–22. Plaintiff also asserts the Suspect was also contacted by the Oswego

1 Making all inferences in favor of the plaintiff, and as best as can be discerned from the

complaint, the Garage was in close proximity to the residence the Accomplice leased from plaintiff’s

father. However, the backstory of the relationship between plaintiff and the Suspect, aside from his

alleged intentions as to Hillman’s father’s estate and allegedly having placed one or more “foreign

locks” on the garage, is entirely unclear.

Police and similarly directed not to impede plaintiff’s access to the Garage,

while plaintiff was instructed to contact the Oswego Police in the event that

it happened again. Id. ¶¶ 23–24.

But on December 1, 2023, when Hillman observed the second foreign lock

on the Garage, he became embroiled in a verbal dispute with the Accomplice

regarding his right to access the garage. Compl. ¶¶ 32, 35. Plaintiff alleges

he then proceeded to kick down the locked door to the access the Garage. Id.

¶ 33. Once he had kicked the door down, plaintiff feared the Accomplice

would lodge a second police report. Id. ¶ 38. As a result, plaintiff contacted

the Police to clarify what was happening and prevent further interference.

Id. ¶ 39. Plaintiff was instructed by an Oswego Police Dispatcher to go sit in

his car and wait for police to arrive, which he did. Id. ¶¶ 40–41.

A few minutes later, Officer Weber, Officer Martin, Officer John Doe #1,

and Investigator Hadcock (the “Officers”) arrived on the scene in police

vehicles with lights and sirens activated. Compl. ¶¶ 43, 45. According to

plaintiff, the Officers proceeded to surround plaintiff’s car, with their tasers

out and pointed towards him, demanding that he exit the vehicle, which he

did. Id. ¶¶ 46–47. Plaintiff alleges when he exited his vehicle, he began

recording the encounter with his cell phone out of concern that his civil rights

were being violated, informing the Officers of his intention to record the

encounter. Id. ¶¶ 50–51, 53–55. In addition, plaintiff contends that, upon

exiting his vehicle, he: (1) made no attempt to leave the scene; (2) repeatedly

informed the Officers he had called in the report to the Oswego Police seeking

assistance; (3) complied with every lawful request made by the Officers; (4)

informed them he waited in his vehicle as directed by dispatch; and (5)

requested the Officers contact dispatch to confirm this. Id. ¶¶ 56–61.

Thereafter, Investigator Hadcock requested that plaintiff move closer to him.

Id. ¶ 62.

When plaintiff complied and moved closer, Investigator Hadcock then

“gave an unlawful demand” that Hillman turn around and be “detained.”

Compl. ¶¶ 62–63. At some point thereafter, Hillman contends the Officers

“lunged towards him” and “assault[ed] him violently” before handcuffing

him.2 Id. ¶¶ 70–71. Specifically, plaintiff contends Officer Weber kicked

across his body, hitting Hillman’s right lower leg with enough force to throw

the leg into the air before swiftly moving behind plaintiff, placing his knee on

plaintiff’s Achilles tendon, and pinning plaintiff’s leg to the pavement. Id. ¶

73. Hillman’s right arm was restrained by Officer Martin as Officer Weber

kicked plaintiff’s right foot into the air who then pinned his left foot, all the

while holding plaintiff’s left arm. Id. ¶ 74.

2 Notably, plaintiff does not specify whether this involved every defendant who was present at

the scene or only certain of the defendants.

When plaintiff began to lose his balance, Officers Weber and Martin held

up his arms until seconds before he landed on the pavement, at which point

Hillman alleges that Investigator Hadcock grabbed his shoulder from his

from the front. Id. ¶¶ 75–76. Plaintiff contends this combination of actions

by the Officers was done to prevent him from using his arms to break his fall,

and that his right knee ultimately struck the pavement with sufficient force

to cause injury. Id. ¶¶ 76–78. The Officers then descended upon plaintiff,

pinning him down and handcuffing him. Id. ¶ 79. Once Hillman was

handcuffed, Officer Weber picked up plaintiff’s mobile device and stopped the

video recording. Id. ¶ 80.

Thereafter, the Officers conducted a custodial interrogation during which

plaintiff repeatedly stated both that he had called the Officers as instructed

after the first incident and that he had a legal right to enter the garage.

Compl. ¶ 81. But Hillman contends the Officers refused to remove his

handcuffs for approximately twenty-five minutes while also denying that he

was under arrest. Id. ¶¶ 82–83. Hillman further alleges the Officers refused

to confirm with Dispatcher John Doe that plaintiff ever called in a report. Id.

¶ 84.

Ten minutes into the encounter between Hillman and the Officers,

plaintiff alleges Sgt. Rupert arrived at the scene. Compl. ¶ 85. Thereafter,

plaintiff contends that Officer Weber asked Officer Martin and Officer John

Doe #1 to place Hillman into a squad car while Officer Weber followed Sgt.

Rupert into the property near the Garage where the Accomplice resided. Id.

¶ 87. Then, plaintiff alleges overhearing the following interaction between

Sgt. Rupert and Officer:

SGT. RUPERT: “Are they just getting him outta here?”

OFFICER WEBER: “We don’t know what we have yet

but he’s being a complaining asshole.”

Id. ¶ 88. Plaintiff contends he was the “him” and “he” being discussed, and

that this suggests that the Officers held him in custody for revenge rather

than on the basis of either probable cause or reasonable suspicion. Id. ¶ 89.

Over the next ten to fifteen minutes, plaintiff alleges the Officers and Sgt.

Rupert “worked together, at times with the active participation of the Suspect

and Accomplice, to manufacture a legal theory upon which [p]laintiff could

have been the perpetrator of a crime for entering the garage.” Id. ¶ 92.

Further, plaintiff alleges that “[a]t one point during this time [Sgt.] Rupert

made a phone call to an unknown person and appeared to be brainstorming

theories upon which [p]laintiff may have committed a crime.” Id. ¶ 93.

At this same time, the Accomplice, a female, detailed the ongoing civil

dispute between her, the Suspect, and Hillman at Investigator Hadcock’s

request. Compl. ¶ 94. After this, plaintiff contends that Investigator

Hadcock called the Suspect by phone and “engaged in a polite discussion” in

an attempt to “establish a legal theory upon which the Suspect could press

charges against [the p]laintiff.” Id. ¶¶ 95–96.

Plaintiff alleges that Investigator Hadcock discussed and theorized with

Accomplice what rights plaintiff might have in the Garage given his mother

was not married to his father at the time of his death. Compl. ¶ 103. Despite

plaintiff’s contention that the Accomplice admitted to the Officers that she

had previously given plaintiff permission to enter her property “for the

legitimate purpose of checking the [circuit] breakers,” he claims one of the

Officers suggested to Accomplice that plaintiff had no right to access her

apartment under any circumstances. Id. ¶ 104. Further, and unlike his own

experience, plaintiff alleges that at no point did the Police treat the

Accomplice as a suspect, point a taser at her, put her in handcuffs, detain

her, or arrest her –– even in light of her prior false report. Id. ¶ 105–108.

Plaintiff contends that, “in an attempt to manufacture a crime to justify

their unlawful treatment of [him], the [Officers] theorized that [plaintiff]

might have been stealing from [his father’s] estate to prevent his sister from

taking her part of the estate [. . .].” Compl. ¶ 109. But plaintiff alleges the

officers “[e]ventually ran out of outrageous theories upon which they could

justify their actions” and told the Accomplice that “[p]laintiff had done

nothing wrong.” Id. ¶ 110. Nevertheless, plaintiff contends that “the

Accomplice was not treated as a suspect” for her false reporting or for

assisting the Suspect in taking possession of plaintiff’s property in light of

prior police orders not to interfere with plaintiff’s right to it. Compl. ¶ 111.

Plaintiff was treated in an ambulance for the knee injury he suffered

while being handcuffed. Compl. ¶ 112. Police removed plaintiff’s handcuffs

approximately twenty-five to forty minutes after the initial encounter. Id. ¶

113. Around this time, plaintiff contends Officer Weber “communicated an

unsupportable belief” that plaintiff had illegally entered Accomplice’s home

despite Officer Weber knowing plaintif, as the de facto landlord of the

property, had been permitted to do so for the purpose of fixing “a breaker.”

Id. ¶ 114.

While plaintiff was handcuffed, he contends Officer Martin and Officer

John Doe #1, though insistent he was not under arrest but merely detained,

attempted to place him inside the back of a police cruiser against his will

while he was handcuffed. Compl. ¶¶ 116–17. At or around this time,

plaintiff alleges suffering from trauma symptoms stemming from both an

earlier arrest as a teenager and recently discovering his father died by

suicide during an encounter with police. Id. ¶ 118. Plaintiff contends he

repeatedly asked Officers to be released from the police cruiser on the basis of

his emotional distress before removing himself from the cruiser while

displaying apparent indicators of emotional distress. Id. ¶¶ 119–20.

Although Officer Martin and Officer John Doe #1 tried to stop plaintiff from

exiting the cruiser, Hillman nevertheless “extracted himself from” the cruiser

and stood outside of it. Id. ¶¶ 121–22. Only then was plaintiff questioned by

anyone about his trauma and distress. Id. ¶ 123. He also contends that

Officer Martin stated: “I don’t want to have to have to shove you in that car.”

Id. ¶ 124. Plaintiff reiterated he was the party who called the police for

assistance. Id. ¶ 125. At this point, plaintiff contends Officer Martin

admitted that the Accomplice had likely made a false report but “denied

police were responsible for acting, and continuing to act, on false

information.” Id. ¶ 126.

Plaintiff then inquired why the officers did not have names or badges.

Compl. ¶ 127. Officer John Doe #1 replied he was more comfortable without

these identifiers showing, while Officer Martin indicated it was now Oswego

Police Department policy that officers are not required to display their name

and badge. Id. ¶¶ 128–29. Martin then asked the plaintiff if he had any

suspects in mind who broke into the garage. Id. ¶ 130. Plaintiff contends

these events contributed to his emotional distress. Id. ¶ 131.

Further, plaintiff alleges the health care he received after the incident was

interfered with when Officer Martin omitted any discussion of his colleague

kicking plaintiff’s legs out from underneath him during the arrest. Compl. ¶

132. In support, plaintiff contends that, before the arrest, he was not walking

with a limp yet had a significant limp after the incident. Id. ¶ 133. While

plaintiff alleges this omission was not particularly impactful on the quality of

his medical treatment, he asserts “the [Police] did not make the ambulance

staff aware that they had violently assaulted [plaintiff].” Id. ¶ 134. Around

this same time, plaintiff contends that Sgt. Rupert informed his mother, who

was present on the scene, that his injury was the result of having kicked in

the Garage door. Id. ¶ 135. When plaintiff’s mother asked Sgt. Rupert

whether charges could be brought against the Suspect, plaintiff contends Sgt.

Rupert replied that they could not. Id. ¶ 136.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiff’s right to relief above the

level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

While legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).

IV. DISCUSSION

Plaintiff asserts that: (1) he was falsely arrested by the individual

defendants in violation of his Fourth and Fourteenth Amendment rights in

violation of 42 U.S.C. § 1983 (“§ 1983”); (2) all individual defendants

exercised the use of excessive force in violation of § 1983; (3) each individual

defendant failed to intervene or intercede as to the constitutional violations

plaintiff allegedly suffered in violation of § 1983; (4) each individual

defendant engaged in a conspiracy to deprive him of his constitutional rights

and engaged in overt acts to advance that conspiracy in violation of 42 U.S.C.

§ 1985 (“§ 1985”); (5) the individual defendants failed to prevent the alleged

conspiracy against his constitutional rights in violation of 42 U.S.C. § 1986

(“§ 1986”); (6) the individual defendants interfered with a recording device––

plaintiff’s phone––which he allegedly used to record his interaction with the

Officers immediately before the arrest in violation of New York Civil Rights

Law § 79-p; (7) defendants conduct resulted in plaintiff’s severe and ongoing

emotional distress in violation of New York law; (8) he was falsely detained,

arrested, and imprisoned in violation of New York law; and (9) all individual

defendants committed assault and battery during his arrest and detention in

violation of New York law. Compl. ¶¶ 148–228.

Defendants now move to dismiss plaintiff’s complaint pursuant to Rule

12(b)(6). Dkt. No. 13. In defendants’ view: (1) plaintiff’s official capacity

claims against both the City and the Oswego Police are redundant and must

be dismissed; (2) plaintiff’s claims against the named defendants and Doe

Defendants must be dismissed as the Officers had probable cause to arrest

defendant and because “it is undisputed that Officer Longo” and the other

Doe defendants acted in their official capacity when the incident occurred; (3)

plaintiff fails to state a plausible claim for false arrest; (4) plaintiff fails to

state a plausible excessive force claim; (5) plaintiff’s conspiracy claims should

be dismissed as conclusory; (6) in the event that plaintiff’s federal causes of

action are dismissed, the Court should decline to exercise supplemental

jurisdiction over plaintiff’s state law claims; (7) plaintiff’s New York Civil

Rights Law § 79-p claim should be dismissed because defendants’ had

probable cause––an affirmative defense––and, alternatively, plaintiff failed

to mention this claim in their notice of claim; (8) plaintiff’s intentional

infliction of emotional distress (“IIED”) claims should be dismissed because it

is duplicative and was not plausibly alleged; (9) plaintiff’s state law assault

and battery and false arrest claims should be dismissed “given that the

analyses for these claims mirror those of their federal counterparts”; and (10)

plaintiff’s punitive damages claim against the City and its officials be

dismissed because municipalities are immune from punitive damages under §

1983, and such damages cannot be recovered from government officials sued

in their official capacities. Defs’ Mem, Dkt. No. 13-1 at 8–21.3

A. Oswego Police

As an initial housekeeping matter, Hillman has named the Oswego Police

as a defendant. Defendants contends that the Oswego Police is merely an

administrative arm of the City and must be dismissed. Defs.’ Mem.13-1 at ,

Dkt. No.

Rule 17 governs the capacity of an individual or entity to sue or be sued in

federal court. FED. R. CIV. P. 17(b). Further, Rule 17(b) requires that an

entity have an independent legal existence. See Fund Liquidation Holdings

LLC v. Bank of Am. Corp., 991 F.3d 370, 382–83 (2d Cir. 2021) (citing Brown

v. Fifth Jud. Dist. Drug Task Force, 255 F.3d 475, 477 (8th Cir. 2001) (“Rule

17(b)(3)(A) permits courts to imbue unincorporated associations and

partnerships with the capacity to sue. But this power does not extend to

entities that lack legal existence.”).

The question of whether an entity has an independent legal existence is

resolved by reference to state law. FED. R. CIV. P. 17(b)(3). “Under New York

law, departments that are merely administrative arms of a municipality do

not have a legal identity separate and apart from the municipality and,

3 Pagination corresponds to CM/ECF headers.

therefore, cannot sue or be sued.” Rose v. Cnty. of Nassau, 904 F. Supp. 2d

244, 247 (E.D.N.Y. 2012) (citation omitted). Indeed, police departments are

an administrative arm of the municipal corporations they serve. See Faggins

v. McDole, 2025 WL 2933529 at *6 (N.D.N.Y. July 10, 2025) (citing Loria v.

Town of Irondequoit, 775 F.Supp. 599, 606 (W.D.N.Y. 1990). Given this, a

city’s police department does not stand “separate and apart from the

municipality” and cannot be sued separately. Faggins, 2025 WL 2933529 at

*6. Thus, plaintiff’s claims against defendant Oswego City Police

Department will be dismissed with prejudice.

B. Official Capacity Claims & Municipal Liability

Turning to the next issue, Hillman brings only a single § 1983 claim for

false arrest against the City while also bringing each of his § 1983 claims

against all individual defendants.4 Defendant contends that § 1983 claims

against officers in their official capacity are redundant because they

constitute a suit against the municipality and are redundant.5 Defs.’ Mem.,

Dkt. No. 13-1 at 8. This is incorrect.

4 More specifically, the operative complaint indicates that the first § 1983 claim for false arrest

is asserted against all defendants while plaintiff’s four other federal claims are only brought against

“all individual defendants.” By contrast, plaintiff’s four state-law claims are also brought against the

Officers as well as the City under a respondeat superior theory of liability.

5 Defendant also requests certain individual capacity claims be dismissed because an “Officer

Longo” and certain Doe defendants acted solely in their official capacities. However, having

reviewed defendants’ motion papers, it is entirely unclear to this Court who Officer Longo is or what

role he played in this matter. Further, given defendants have not pointed to any law to support their

argument, that request will be denied.

To bring a § 1983 claim for municipal liability, i.e., a Monell claim, a

plaintiff “must plausibly allege” that “an official policy or custom” existed

which “caused him to be denied a constitutional right.” Thomas v. Town of

Lloyd, 711 F. Supp. 3d 122, 138 (N.D.N.Y. 2024) (cleaned up). In the context

of § 1983, municipalities are considered to be persons. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 (1978). Further, under § 1983, a municipality

cannot be held vicariously liable for the constitutional torts of their

employees nor liable under a theory of respondeat superior. Id. at 691

(emphasis added); see also Faggins v. McDole, 2025 WL 2933529 at *6

(N.D.N.Y. July 10, 2025).

It is instead “when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government as an entity is

responsible under § 1983.” Monell, 436 U.S. at 694. “[T]he Supreme Court

has recognized that Monell liability may be established through: (1) a policy

formally adopted and endorsed by the municipality; (2) actions taken by

policymaking officials that caused the particular deprivation alleged; (3)

practices by subordinate officials that are not expressly authorized but are so

widespread and consistent that policymakers must have been aware of them;

or (4) a failure by policymakers to train or supervise that amounts to

deliberate indifference to the rights of those who come into contact with the

inadequately trained or supervised municipal employees.” Thomas, 711 F.

Supp. 3d at 139 (quoting Crawley v. City of Syracuse, 496 F. Supp. 3d 718,

729 (N.D.N.Y 2020) (cleaned up)). “[B]oilerplate statements that county

employees were acting in accord with a municipal policy, with no facts to

support these statements, are not sufficient to support a Monell claim.” Id.

(quoting Forrest v. Cnty. of Greene, 676 F. Supp. 3d 69, 76 (N.D.N.Y. 2023).

While plaintiff need not “show that the municipality had an explicitly

stated rule or regulation, a single incident alleged in a complaint, especially if

it involved only actors below the policy-making level, does not suffice to show

a municipal policy.” Raymond v. Bunch, 136 F. Supp. 2d 71, 77 (N.D.N.Y.

2001) (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d

Cir.1991) (cleaned up). “‘The inference that a policy existed may, however, be

drawn from circumstantial proof, such as evidence that the municipality so

failed to train its employees as to display a deliberate indifference to the

constitutional rights of those within its jurisdiction, or evidence that the

municipality had notice of but repeatedly failed to make any meaningful

investigation into charges’ that its agents were violating citizens'

constitutional rights.” Raymond, 136 F. Supp. 2d at 77 (quoting DeCarlo v.

Fry, 141 F.3d 56, 61–62 (2d Cir.1998) (cleaned up)).

By contrast, “to establish individual liability in a § 1983 action, plaintiffs

must show that [an] official, acting under color of state law, caused the

deprivation of a federal right.” Coon v. Town of Springfield, Vt., 404 F.3d 683,

686 (2d Cir. 2005) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).6

Upon review, Hillman has failed to plausibly allege a Monell claim against

the City. Rather, plaintiff’s scant allegations against the City are limited to

boilerplate language. Compl. ¶¶ 149–50. First, plaintiff asserts that “[a]t all

times material to this complaint, [d]efendant [City] was acting through its

police department and through [d]efendants, had in effect actual and/or de

facto policies, practices, customs and usages which were a direct and

proximate cause of the unconstitutional conduct alleged herein.” Compl. ¶

149. Next, Hillman contends the City “had in effect and/or de facto policies,

customs, and usages of failing to properly train, screen, supervise, and

discipline employees and the individual defendants […] and of failing to

inform the Individual Defendants’ supervisors of the need to train, screen,

supervise and discipline said Defendants.” Compl. ¶ 150.

6 As stated supra, aside from plaintiff bringing a § 1983 false arrest claim against both the City

and all other individual defendants, each of plaintiff’s remaining claims based in federal law are

solely directed towards “all individual defendants.”

Hillman’s claims against the City set forth no factual allegations to satisfy

the requirements set forth in Monell.7 As stated supra, boilerplate

statements that the City’s employees acted in accordance with a municipal

policy, absent any supporting facts to describe the policy, are insufficient to

support a Monell claim. Forrest, 676 F. Supp. 3d at 76. The Court also finds

Hillman’s allegations as to the City to be entirely conclusory and devoid of

any specific facts from which a plausible allegation of municipal liability

under Monell could be found. Accordingly, defendants’ motion to dismiss

plaintiff’s § 1983 claim for false arrest as to the City will be granted.

C. Doe Defendants

As an initial matter, while plaintiff does bring certain allegations

regarding unnamed defendant Officer John Doe #1 as to the second incident

at the Garage, plaintiff’s complaint contains no allegations directed toward

defendants Sergeant John Doe #1, Investigator John Doe #1, Officers John

Doe #2-5, and Dispatcher John Doe (collectively the “Doe Defendants”).

Because plaintiff’s complaint fails to allege that the Doe Defendants were

“personally involved” in any actionable misconduct, those defendants must be

7 Although Hillman’s allegations include language that roughly aligns with certain of the Monell

requirements––i.e., asserting that a policy was in effect which led to unconstitutional conduct and/or

that there was a failure by policymakers to train or supervise employees 0which led to an

infringement of plaintiff’s constitutional rights––those allegations are still limited to bare

conclusions that are entirely unsupported by facts. Compl. ¶¶ 149–50

dismissed without prejudice. Darby v. Greenman, 14 F.4th 124, 130 (2d Cir.

2021).

D. § 1983 Claims

Next, Hillman asserts three claims under § 1983 against the Officers for

false arrest, use of excessive force, and failure to intervene. Defendants now

seek to dismiss each of these claims arguing plaintiff has failed to state a

plausible claim for which relief can be granted.

§ 1983 itself is not a source of substantive federal rights, but rather a

statutory mechanism to sue state actors where they are personally involved

in deprivations of constitutional rights. Whitton v. Williams, 90 F. Supp. 2d

420, 427 (S.D.N.Y. 2000); see also Hulett v. City of Syracuse, 253 F. Supp. 3d

462, 489 (N.D.N.Y. 2017). “To establish a defendant's individual liability in a

suit brought under § 1983, a plaintiff must show ... the defendant's personal

involvement in the alleged constitutional deprivation.” Kravitz v. Purcell, 87

F.4th 111, 129 (2d Cir. 2023) (quotation omitted).

State actors are considered “personally involved” under § 1983 when they

either participate directly in or when they fail to intervene to prevent a

constitutional deprivation. See Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir.

2016); see also Martinez v. City of N.Y., 564 F. Supp. 3d 88, 106 (E.D.N.Y.

2021) (“Police officers have an affirmative duty to intervene to protect the

constitutional rights of citizens from infringement by other law enforcement

officers in their presence.”) (cleaned up).

Indeed, Hillman’s § 1983 claims are premised on theories of both direct

participation and a failure to intervene. Plaintiff brings claims against all

individual defendants for: (1) false arrest; (2) excessive force; and (3) failure

to intervene. Compl ¶ 148–170. Defendants maintain they were not

personally involved in, nor failed to intervene in order to prevent, any of the

purported constitutional violations. Defs.’ Mem. at 13–15.

1. False Arrest

Turning to plaintiff’s first § 1983 claim, it will be construed as a claim for

false arrest in violation of his Fourth Amendment right to be free from

unreasonable search and seizure against the Officers. Plaintiff contends that

the Officers lacked either probable cause or his consent when they arrested

him during the second encounter at the Garage. Rather, plaintiff alleges

that, upon their arrival, the Officers immediately surrounded his vehicle with

tasers in hand, that he was arrested by the Officers even though he contacted

the Oswego Police about this incident and was merely complying with a

dispatcher’s instructions––to sit in his car and await the Oswego Police’s

arrival. Compl. ¶¶ 24, 41–42, 46–47.

Defendants contend the false arrest claim must be dismissed because

plaintiff’s own complaint establishes the defendants’ probable cause. Defs.’

Mem. at 9–10. In support, defendants argue probable cause is found where

police respond to calls from home dwellers regarding “potential activity” on

their property, and that in such circumstances, police officers possess the

requisite reasonable belief of an offense to warrant finding probable cause.8

Id. Defendants claim the Accomplice, who was the tenant of a residence

proximate to the Garage, properly called the police on the plaintiff when he

entered the property.9 Id.

“A § 1983 false arrest claim is grounded in the Fourth Amendment right of

an individual to be free from unreasonable seizures.” LaFever v. Clarke, 525

F. Supp. 3d 305, 329 (N.D.N.Y. 2021) (quoting Weyant v. Okst, 101 F.3d 845,

852 (2d Cir. 1996)). “To establish a claim under § 1983 for false arrest 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.” LaFever, 525 F. Supp. 3d at 329 (cleaned up).

8 In advancing their argument that the Officers had probable cause when they detained Hillman

based on a reasonable belief that a burglary was being attempted, defendants notably rely on Henry

v. N.Y.C. 2003 WL 22077469 at **1–2 (S.D.N.Y. 22077469); see also Defs’ Mem., Dkt. No. 13-1 at 9–

10. But Henry resolved a motion for summary judgment and the Court’s reasoning relied heavily on

testimony, whereas this is a pre-answer motion.

9 As addressed infra, defendants also point to body cam footage accompanying their motion

where plaintiff admits to attempting to kick open the Garage door as further support that the police

had probable cause to arrest Hillman when they arrived on the scene. Id.

Confinement is considered “privileged” if the arresting officer had probable

cause or is otherwise protected under the doctrine of qualified immunity.

Simpson v. City of N.Y., 793 F.3d 259, 265 (2d Cir. 2015). Additionally, police

officers have probable cause to arrest where 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 or is committing a crime.” Hulett v. City

of Syracuse, 253 F. Supp. 3d 462, 494 (N.D.N.Y. 2017) (internal quotations

and citations omitted).

Upon review, plaintiff has plausibly alleged that the Officers directly

participated in in his arrest. Compl. ¶ 70–79. Hillman has alleged that

Officer Martin, Officer Weber, and Investigator Hadcock worked together to

hold plaintiff’s arms, remove him from his feet, and ultimately bring him to

the ground for the purpose of handcuffing him. Id. Plaintiff has also

plausibly alleged that, after being handcuffed, he was placed into a police

cruiser against his will by Officer Martin and Officer John Doe #1. Id. ¶ 87.

Further, after being handcuffed, plaintiff plausibly alleged that he remained

in handcuffs for at least twenty-five minutes while also being told by one or

more of the Officers that he was not under arrest. Id. ¶¶ 82–83.

Plaintiff has also plausibly alleged that the Officers did not have probable

cause. Hillman alleged that there was a prior incident at the Garage where

Oswego Police were called to the scene, where they instructed the Accomplice

for filing a false report and instructed plaintiff to contact them if there were

any further disputes. Id. ¶¶ 20–24. Plaintiff also plausibly alleges that,

when the second dispute at the Garage arose, he contacted the Oswego Police

as instructed, wherein he was advised to go sit in his vehicle and wait for the

police to arrive on the scene. Id. ¶¶ 39–41. Plaintiff further alleges that he

complied with that instruction, but that the Officers nevertheless surrounded

his vehicle with tasers drawn immediately upon arriving at the scene. Id. ¶¶

40–47.

Accordingly, plaintiff has plausibly alleged a § 1983 false arrest claim as

to the Officers, and defendants’ motion to dismiss this claim will be denied.

2. Excessive Force

Turning to plaintiff’s second claim, Hillman brings an excessive force

claim pursuant to § 1983 against the Officers. Compl. at ¶¶ 155–58. Plaintiff

contends his constitutional rights were violated where, during his arrest,

Officers Weber and Martin, acting under the color of state law, each held one

of his arms before Officer Weber kicked his right leg out from under him

causing him to fall and suffer a knee injury. Id. Defendants argue the

officers were acting in the scope of their employment and cannot be held

liable. Defs’ Mem., Dkt. No. 13-1 at 6–7. In addition, defendants ask the

Court to consider the body camera footage they have included with their

motion, arguing it conclusively disproves plaintiff’s excessive force claims.

Defs.’ Mem. at 11–12. In support, defendants cite a past decision where this

Court’s own review of video footage supported dismissal of the excessive force

claim. Id. at 12; see also LaFever, 525 F. Supp. 3d at 335.10

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

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

rest[ ] on the [...] video.” Santiago v. City of Rome, 2025 WL 553347, at *3

(N.D.N.Y. Feb. 19, 2025) (cleaned up). But courts in this Circuit have

repeatedly refused to consider video evidence not attached to, referenced in,

or mentioned in the complaint in deciding a motion to dismiss. Id. at *3

(citing O'Brien v. City of Syracuse, 2023 WL 6066036, at *6, (N.D.N.Y. Sep. 8,

2023)) (collecting cases).

As an initial matter, plaintiff has made no allegations of excessive force as

to any defendants aside from the Officers.11 Turning to plaintiff’s claims as to

Officer Weber, Officer Martin, and Investigator Hadcock, Hillman contends

that prior to being detained and handcuffed, the Officers “lunged towards

him” and “assault[ed] him violently.” Compl. ¶ 70. Specifically, plaintiff

10 Notably, however, the matter defendants point to did not involve the resolution of a pre-

answer motion as is the case here. See generally LaFever, 525 F.Supp.3d 305.

11 Further, while plaintiff did not make in specific allegations regarding Officer John Doe #1 in

the context of his excessive force allegations, he has plausibly alleged that this defendant was

present at the scene before, during, and after his arrest. However, in making all inferences in favor

of plaintiff, the Court will not dismiss plaintiff’s claims against Officer John Doe #1 at this juncture.

contends that Officer Weber kicked across plaintiff’s body, hitting Hillman’s

right lower leg with force sufficient to throw his right leg into the air before

swiftly moving behind plaintiff and place his knee on plaintiff’s Achilles

tendon and pinning it to the pavement. Compl. ¶ 73. Thereafter, Hillman’s

right arm was restrained by Officer Martin as Weber kicked plaintiff’s right

foot into the air and pinned his left foot, simultaneously holding onto to

plaintiff’s left arm. Compl. ¶ 74.

When plaintiff started to lose his balance and fall, Officers Weber and

Martin allegedly held his arms until seconds before landing on the pavement,

at which point Investigator Hadcock allegedly grabbed plaintiff’s shoulder

from the front. Compl. ¶¶ 75, 76. Plaintiff contends this was all done to

prevent the use of his arms to break a fall, and that his right knee ultimately

struck the pavement with enough force to injure him. Compl. ¶¶ 76–78.

Plaintiff alleges the Officers then descended upon plaintiff, pinning him down

and handcuffing him. Compl ¶ 79. Plaintiff contends he injured his knee and

was later walking with a limp as a result. Compl. ¶¶ 76–78, 133. He

received medical attention after his arrest while remaining handcuffed.

Compl. ¶¶ 112.

Defendants request the Court consider the body camera video footage they

have included with their motion. However, no mention of body camera

footage or video evidence is either attached to, referenced in, or mentioned in

plaintiff’s complaint. Thus, defendants’ request that this Court consider it at

this stage will be denied.

Plaintiff has plausibly alleged an excessive force claim pursuant to § 1983

against the Officers. Specifically, Hillman contends that the Officers: (1)

grabbed him and kicked his leg out from under him; (2) injured his knee

during the handcuffing when his leg hit the ground; (3) caused an injury that

resulted in him walking with a limp; and (4) injured him despite his

compliance with their commands and absent any resistance. Compl. ¶¶ 70–

78, 133. Accordingly, defendants’ motion to dismiss plaintiff’s § 1983

excessive force claim will be denied as to the Officers but granted without

prejudice as to all other defendants.

3. Failure to Intervene

Plaintiff also brings § 1983 claims against the Officers for their failure to

intervene as to both false arrest and excessive force, arguing that defendants

had opportunities to intervene but failed to do so. Compl. ¶¶ 159–164.

Defendants did not squarely address this claim, instead focusing on why

plaintiff failed to make out plausible § 1983 claims for false arrest and

excessive force. Defs.’ Mem. at 9–15.

Nevertheless, to bring a failure to intervene claim, a plaintiff must

plausibly allege: “(1) the defendant had a realistic opportunity to intervene

and prevent the harm; (2) a reasonable person in the defendant's position

would have known that the plaintiff's constitutional rights were being

violated; and (3) the defendant did not take reasonable steps to

intervene.” Cornell v. Vill. of Clayton, 691 F. Supp. 3d 608, 620 (N.D.N.Y.

Sept. 13, 2023).

Hillman has successfully pleaded a failure to intervene claim as to false

arrest. He has alleged that the Officers were present both prior to and

during his arrest. Supra. In sum, plaintiff’s allegations support a finding

that the Officers should have known that his rights were being violated

because he was being arrested without probable cause, and his complaint

does not contain any allegations that any Officer made any attempt to

intervene on plaintiff’s behalf, particularly in light of his allegation that he

remained in handcuffs for at least twenty-five minutes. Id.

Similarly, with respect to plaintiff’s failure to intervene as to excessive

force claim, plaintiff has plausibly alleged a constitutional violation when he

sustained an injury while being arrested by the officers. Supra. And he has

alleged that the Officers were present before and during the arrest but does

not allege that any of the Officers took any steps to intervene. Id. To the

contrary, Hillman alleges sustaining an injury during the arrest that

ultimately required medical attention. Compl. ¶¶ 132–33. Accordingly,

defendants’ motion to dismiss plaintiff’s § 1983 failure to intervene claim as

to false arrest will be denied. Supra.

D. Conspiracy Claims

Plaintiff’s fourth and fifth causes of action allege a civil rights conspiracy

against all individual defendants pursuant to § 1985 and a failure to prevent

a civil rights conspiracy pursuant to § 1986. Compl. ¶¶ 165–175. Defendants

contend both claims should be dismissed because plaintiff has offered nothing

beyond bare conclusions that defendants entered into an agreement to

conspire against him.

1. § 1985 Civil Rights Conspiracy

First, Hillman contends that defendants acted in concert to deprive him of

his civil rights and either engaged in or facilitated numerous overt acts such

as false arrest, emotional distress, excessive force, and submitting false

evidence to do so. Compl. ¶¶ 165–170.

To bring a conspiracy claim under § 1985(3), a plaintiff must allege: “1)

a conspiracy; 2) for the purpose of depriving ... any person ... of the equal

protection of the laws[;] ... and 3) an act in furtherance of the conspiracy; 4)

whereby a person is either injured in his person or property or deprived of

any right or privilege of a citizen of the United States.” Cooper v. N.Y., 2020

WL 1140500, at *5 (N.D.N.Y. Mar. 9, 2020) (quoting Britt v. Garcia, 457 F.3d

264, 269 n.4 (2d Cir. 2006)). In addition, “[v]ague and conclusory allegations

that defendants entered into an unlawful agreement will not suffice to state

a conspiracy claim under either § 1983 or § 1985(3).” Trombley v. O’Neill, 929

F. Supp. 2d 81, 97 (N.D.N.Y. 2013) (citing Kiryas Joel All. v. Vill. of Kiryas

Joel, 495 F. App’x 183, 190–91 (2d Cir. 2012) (internal citations omitted).

Rather, plaintiffs “must provide some factual basis supporting a meeting of

the minds, such that defendants entered into an agreement, express or tacit,

to achieve the unlawful end.” Trombley, 929 F.Supp.2d. at 97 (quoting Kiryas

Joel All., 495 F. App’x. at 190) (cleaned up).

Plaintiff’s complaint contains no allegations, either express or tacit, that

defendants entered into an agreement to conspire to violate plaintiff’s civil

rights. Although plaintiff makes certain conclusory statements that specific

defendants appeared to be colluding with or conspiring with the Accomplice

and Suspect to manufacture a claim against him, plaintiff has not brought

any specific allegations to support a finding that a purported conspiracy,

aimed at interfering plaintiff’s civil rights, existed. To the contrary,

plaintiff’s vague and conclusory assertions that defendants collaborated with

the Accomplice and/or the Suspect to manufacture a claim against him are

insufficient. Accordingly, plaintiff’s § 1985 claims against the individual

defendants will be denied without prejudice.

2. § 1986 Failure to Prevent Civil Rights Conspiracy

Plaintiff also brings a claim pursuant to § 1986 alleging defendants failed

to prevent a civil rights conspiracy where they knew acts which violated

plaintiff’s constitutional rights were about to take place and had the power to

prevent them but refused to do so. Compl. ¶¶ 171–175.

§ 1986 claims may proceed only where there is “a viable conspiracy claim

under [§] 1985.” Feacher v. Intercontinental Hotels Grp., 563 F. Supp. 2d 389,

401 (N.D.N.Y. 2008) (quoting Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194

(2d Cir.1994)). As plaintiff’s § 1985(3) were dismissed supra, their § 1986

claims necessarily must also be dismissed.

E. Plaintiff’s State-Law Claims

Plaintiff also brings four state-law claims against the City and the Officers

for: 1) unlawful interference with recording law enforcement activity in

violation New York Civil Rights Law § 79-P; 2) IIED; 3) false arrest; and 4)

assault and battery. Compl. ¶¶ 176–200.

As a threshold matter, given that plaintiff’s excessive force and failure to

intervene as to excessive force claims survive at this pre-answer stage, the

Court retains subject matter jurisdiction over these claims at this stage. 28

U.S.C. § 1367(a). These claims will be addressed in turn.

1. Unlawful Interference with Recording Law Enforcement

First, defendants move to dismiss plaintiff’s state-law claim pursuant to

New York Civil Rights Law § 79-p against the City and the Officers. Defs.’

Mem. at 16–18. Plaintiff alleges that the Officers and the City violated his

right to record police activity pursuant to New York's Right to Monitor Act,

Civil Rights Law § 79-p. Compl. ¶¶ 176–203. Defendants argue they had

probable cause to arrest plaintiff in order to investigate a potential burglary.

Defs.’ Mem. at 18. In the alternative, plaintiff argues that the Notice of

Claim, which they have attached as an exhibit to their motion, Dkt. No. 13-2,

failed to plead this claim or facts to support their claim.

The Right to Monitor Act provides that “[a] person not under arrest or in

the custody of a law enforcement official has the right to record law

enforcement activity.” N.Y. Civ. Rts. L. § 79-p(2). It also gives rise to a

private cause of action for “unlawful interference with recording a law

enforcement activity” when: (1) “a person demonstrates that he or she

exercised or attempted to exercise the right established in subdivision two”

and (2) “an officer acted to interfere with that person's recording of a law

enforcement activity.” Id. at (3). An officer acts to interfere with the right to

where they “intentionally prevent[s] or attempt[s] to prevent that person

from recording law enforcement activity.” Id. at (3)(i).

Plaintiff has plausibly alleged that, when the police arrived and ordered

him to exit his vehicle, he exited and began recording the incident with his

cellular phone. Compl. ¶¶ 55, 64, 176–183. Plaintiff also contends that it

was only after he began to record the incident that an Officer stated they

were going to detain him. Id. ¶ 182. Plaintiff alleges the Officers proceeded

to seize him, bring him to the ground, handcuff him, and stop the recording.

Dkt. No. 13–2. Thus, plaintiff has plausibly alleged that an officer acted to

interfere with his recording of law enforcement activity.

Even further, a review of plaintiff’s Notice of Claim, included with

defendants’ motion as an exhibit, suggests that defendants’ contention is in

error. Notice of Claim, Dkt. No. 13-2. A review of this exhibit clearly shows

factual allegations that “one of the officers found a device on the ground

belonging to claimant [who] was filming the incident. Id. at 3. The officer

then took possession of the device without permission or authority and

stopped the recording just after it recorded an officer admitted that his

actions were motivated by answers obtained from the custodial

interrogation.” Id. at 3. The Notice of Claim also states “the [c]laimant will

assert all other damages allowed by New York State laws and statutes as a

result of the conduct of the Respondents, their detectives, police officers,

supervisors, and employees[.]” Id. at 4.

Accordingly, the Court finds plaintiff has plausibly alleged that his

recording of the incident was interfered with by law enforcement, and that

proper notice was provided to defendants in the Notice of Claim. Accordingly,

defendants’ motion to dismiss this claim will be denied.

2. IIED Claim

Next, defendants move to dismiss plaintiff’s IIED claims against the City

and the Officers. Defs.’ Mem. at 18. Defendants contend that well-settled

public policy dictates that IIED claims against government entities are

barred and that Hillman’s IIED claims against the Officers should fail since

they are duplicative of his false arrest claims and

The state-law tort of IIED has four elements: (1) extreme and outrageous

conduct; (2) intent to cause severe emotional distress; (3) a causal connection

between the conduct and the injury; and (4) severe emotional distress.

Bender v. City of N.Y., 78 F.3d 787, 790 (2d Cir. 1996) (citing Howell v. N.Y.

Post Co., 81 N.Y.2d 115, 121 (1993)). Under New York law, the bar is high

for alleging conduct that is “extreme and outrageous” enough to constitute

IIED. Id. (citing Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303

(1983)) ((“‘so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized [society]’”).12 Finally, under New York law, it

is well-settled public policy that IIED claims against government entities are

barred. Endemann v. City of Oneida, 2020 WL 1674255 at *7, n. 2 (N.D.N.Y.

Apr. 6, 2020) (quoting Frederique v. Cnt. of Nassau, 168 F. Supp. 3d 455, 483

(E.D.N.Y. 2016)).

12 In the alternative, plaintiff’s IIED claim against the City must be dismissed as it is well-

settled under New York Law that public policy bars IIIED claims against governmental entities.

Endemann v. City of Oneida, 2020 WL 1674255 at *7, n.2 (N.D.N.Y. Apr. 6, 2020) (citing Frederique

v. Cnt. of Nassau, 168 F. Supp. 3d 455, 483 (E.D.N.Y. 2016)).

Upon review, the Court finds that plaintiff has failed to plausibly allege

any of the requisite elements of an IIED claim as to any of the Officers. See

generally Compl. Namely, the complaint is devoid of any allegations of

conduct that would be considered “extreme or outrageous.” Lastly, plaintiff’s

IIED claim against the city is barred as a matter of well-established public

policy. Accordingly, defendants’ motion to dismiss plaintiff’s IIED claims

against the Officers and the City will be granted.

3. False Arrest & Assault and Battery

Finally, defendants move to dismiss plaintiff’s state-law claims for false

arrest and assault and battery. Defs.’ Mem. at 20–21. As to both claims,

defendants’ sole contention is that the New York legal standard for both

claims under are effectively the same as their analogs under § 1983, i.e., false

arrest and excessive force, respectively.

“Under New York law, a plaintiff claiming false arrest must show, inter

alia, that [defendants] intentionally confined him without his consent and

without justification.” Weyant, 101 F.3d at 852 (collecting cases). A § 1983

claim for false arrest, resting on the Fourth Amendment right of an

individual to be free from unreasonable seizures, including arrest without

probable cause […] is substantially the same as a claim for false arrest under

New York law. Id.

Similarly, federal excessive force claims [under § 1983] and state-law

assault and battery claims against police officers are nearly identical.

Graham v. City of N.Y., 928 F. Supp. 610, 624 (citing Humphrey v. Landers,

344 F.App’x. 686, 688 (2d Cir. 2009)) (“[E]xcept for § 1983's requirement that

the tort be committed under color of state law, the essential elements of

[excessive force and state law assault and battery claims are] substantially

identical.”) (cleaned up).

Finally, employers, including the State, can be held vicariously liable for

torts, including intentional torts, committed by employees acting within the

scope of their employment. Rivera v. State, 34 N.Y.3d 383, 389 (2019)

(collecting cases).

Given plaintiff has plausibly alleged § 1983 claims for false arrest and

excessive force claim for the reasons stated supra, his state-law false arrest

and assault and battery claims must survive at this pre-answer stage.

Accordingly, defendants’ motion to dismiss will be denied as to Hillman’s

state-law false arrest and assault and battery claims.

F. Punitive Damages against the City

Defendant next argues that plaintiff cannot bring punitive damages

claims against the City. Defs.’ Mem. at 21. Plaintiff did not address this

argument in their reply brief. See Pl’s. Reply, Dkt. No. 18. Defendant is

correct. § 1983 does not permit the recovery of punitive damages against a

municipality. Downing v. Town of Cicero, 2025 WL 641570 at *17 (N.D.N.Y.

Feb 27, 2025) (citing Gilead Cmty Servs., Inc. v. Town of Cromwell, 112 F.4th

93, 103 (2d Cir. 2024) (cleaned up). New York Courts similarly disallow such

recovery, instead finding municipalities immune from punitive damages. See

Carney v. City of Utica, 148 A.D.2d 927 (1989) (collecting cases); see also City

of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (“[W]e find that

considerations of history and policy do not support exposing a municipality to

punitive damages for the bad-faith actions of its officials.”) Accordingly,

insofar as plaintiff requests punitive damages from the City, that request will

be rejected.

V. CONCLUSION

In sum, plaintiff has plausibly alleged § 1983 claims against the Officers

for false arrest, excessive force, and failure to intervene as to both false arrest

and excessive force. In addition, Hillman has plausibly alleged state-law

claims against the Officers for unlawful interference with recording law

enforcement, false arrest, and assault and battery. However, plaintiff has

failed to plausibly allege §§ 1985 and 1986 conspiracy claims or a state-law

IIED claim against the Officers.

As to the City, plaintiff has failed to plausibly allege a § 1983 claim for

municipal liability. However, plaintiff has plausibly alleged a theory of

respondeat superior against the City for the state-law claims against the

Officers. Plaintiff’s request for punitive damages from the City will be

rejected. All other defendants will be dismissed from this matter for the

reasons stated supra.

Therefore, it is

ORDERED that

1. Defendants’ motion to dismiss plaintiff’s complaint (Dkt. No. 1) is

GRANTED in part and DENIED in part.

2. Defendants’ motion to dismiss plaintiff’s claims against the Oswego

Police is GRANTED;

3. Defendants Sergeant John Doe #1, Investigator John Doe #1, Officers

John Doe #2-5, and Dispatcher John Doe are sua sponte dismissed without

prejudice;

4. Defendants’ motion to dismiss plaintiff’s § 1983 false arrest claim

against the City is GRANTED;

5. Defendants’ motion to dismiss plaintiff’s § 1983 false arrest claim

against the Officers is DENIED;

6. Defendants’ motion to dismiss plaintiff’s § 1983 failure to intervene as

to false arrest claim against the Officers is DENIED;

7. Defendants’ motion to dismiss plaintiff’s § 1983 excessive force claim

against the Officers is DENIED;

8. Defendants’ motion to dismiss plaintiff’s § 1983 failure to intervene as

to excessive force claim against the Officers is DENIED;

9. Defendants’ motion to dismiss plaintiff’s § 1985 conspiracy against

civil rights claim against the Officers is GRANTED;

10. Defendants’ motion to dismiss plaintiff’s § 1986 failure to prevent

conspiracy against civil rights claim against the Officers is GRANTED;

11. Defendants’ motion to dismiss plaintiff’s New York Civil Rights Law §

79-p claim against the City and the Officers for unlawful interference with

recording law enforcement is DENIED;

12. Defendants’ motion to dismiss plaintiff’s IIED claims against the City

and the Officers is GRANTED;

13. Defendants’ motion to dismiss plaintiffs’ state-law false arrest claims

against the City and the Officers is DENIED;

14. Defendants’ motion to dismiss plaintiffs’ state law assault and battery

claims against the City and the Officers is DENIED;

15. Plaintiff’s request for punitive damages from the City is DENIED;

16. The City and the Officers are ordered to file an answer to plaintiff’s

remaining claims on or before January 20, 2026.

The Clerk of the Court is further directed to terminate the pending motion

and set deadlines accordingly.

IT IS SO ORDERED.

David N fHurd

U.S. Disfrict Judge

Dated: January 6, 2026

Utica, New York.

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