Jarvis

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Holly Jarvis,

Plaintiff,

-against- 5:25-CV-228 (LEK/MJK)

City of Syracuse Police Department, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On July 31, 2024, Plaintiff Holly Jarvis filed a civil action in the New York Supreme

Court County of Onondaga against the City of Syracuse Police Department, Derek Montressor,

Matthew Malinowski, Darrel West, Michael DaSilva, Montserrat Garcia, Officer Goldberg, PO

Jason Duel, and PO Philip Philbrick. Dkt. No. 1 at 1–2. All Defendants but Duel and Philbrick

(collectively, “Defendants”) removed the action to the Northern District of New York. Id. at 1.

On March 31, 2025, Plaintiff filed a second amended complaint, Dkt No. 16 (“Second Amended

Complaint” or “SAC”). The Second Amended Complaint did not name PO Jason Duel and PO

Philip Philbrick as Defendants, and they were terminated from the docket. Dkt. No. 20; see

generally SAC. Defendants then filed an answer to the Second Amended Complaint. Dkt. No.

21. Plaintiff filed a motion to proceed in forma pauperis, Dkt. No. 17 (“IFP Petition”), which

was granted by this Court, Dkt. No. 19.

Plaintiff brings six causes of action against Defendants: (1) Violation of Fourth and

Fourteenth Amendments (42 U.S.C. § 1983); (2) Use of Excessive Force; (3) Civil Conspiracy to

Deprive Rights; (4) Negligent and Malicious Misrepresentation; (5) Infliction of Emotional

Distress; (6) Failure to Intervene. SAC at 2.

On August 12, 2025, Defendants filed a motion for judgement on the pleadings. Dkt. No.

32 (“Motion”), to which Plaintiff filed a response. Dkt. No. 36 (“Response”). Defendants replied,

Dkt. No. 39 (“Reply”), and Plaintiff filed a Sur-Reply. Dkt. No. 41 (“Sur-Reply”).

Plaintiff also filed a Motion for Sanctions, Dkt. No. 37 (“Sanctions Motion”), and a

Motion for Leave to Amend, Dkt. No. 46. (“Motion to Amend”). For the sake of judicial

efficiency, the Court will address all three Motions together.

For the reasons that follow, Defendant’s Motion is granted, and Plaintiff’s Sanctions

Motion and Motion for Leave to Amend are denied.

II. BACKGROUND

The following facts are set forth as alleged in the Second Amended Complaint.

“On or about November 25, 2023, Plaintiff and her son William Kerr attended a show at

the Funny Bone Comedy Club located at Destiny USA in Syracuse, NY.” SAC ¶1. During or

following the show, security and then Syracuse Police interacted with Plaintiff and Kerr. See id.

¶2. “Officers followed Plaintiff and her son throughout the mall in an intimidating and hostile

manner before initiating police involvement.” Id. ¶7. Defendant officers “participated in

wrongful and unjustified actions that led to Plaintiff being physically injured and her son being

humiliated and traumatized.” Id. ¶3. Specifically, “Officer Derek Montressor physically took

Plaintiff down,” assisted by another unknown officer. Id ¶4–5. The other Defendant officers

“stood by and failed to intervene, despite witnessing Officer Montressor’s unjustified use of

force.” Id ¶6.

Montressor caused “injuries that required Plaintiff to be transported to the hospital for x-

rays and caused long-term physical pain.” Id. ¶4. “Although she did not continue treatment, she

suffered pain and limitations for several months.” Id. ¶6. Additionally, she “has suffered and

continues to suffer emotional distress, public humiliation, financial hardship, and long-term

damage to her reputation.” Id. ¶10. Plaintiff and Kerr “were issued a lifetime trespass ban from

Destiny USA.” Id. ¶8 .

Finally, Plaintiff alleges “Defendants failed to secure and preserve surveillance video

from Destiny USA and the Funny Bone, despite being aware that such video could prove

Plaintiff and her son’s innocence.” Id. ¶5. Plaintiff’s attorney requested video footage, but it was

never produced by the Syracuse Police Department. Id. ¶9 .

III. LEGAL STANDARD

The standard of review for a motion for judgment on the pleadings and that of a motion

to dismiss are indistinguishable. LaFaro v. N.Y. Cardiothoracic Grp. PLLC, 570 F.3d 471,

475(2d Cir. 2009) (citing DeMuria v. Hawkes, 328 F.3d 704, 706 n. 1 (2d Cir. 2003)). To survive

a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and therefore, a motion

for judgement on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), a “complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations contained in a

complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v. Okumus, 433 F.3d

248, 249–50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(c)only where it

appears that there are not “enough facts to state a claim to relief that is plausible on its face.” See

Twombly, 550 U.S. at 570. Plausibility requires “enough fact[s] to raise a reasonable expectation

that discovery will reveal evidence of [the alleged misconduct].” Id. at 556.

The plausibility standard “asks for more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Supreme Court

has stated that “the pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. (citing Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct,” the pleader has not

demonstrated that she is entitled to relief and the action is subject to dismissal. Id. at 679.

Where, as here, a plaintiff proceeds pro se, the court must “construe the complaint

broadly, and interpret it to raise the strongest arguments that it suggests.” Weixel v. Bd. of Educ.

of City of N.Y., 287 F.3d 138, 146 (2d Cir. 2002) (cleaned up). Nevertheless, “dismissal of a pro

se complaint is . . . appropriate where a plaintiff has clearly failed to meet the minimum pleading

requirements.” Rahman v. Schriro, 22 F.Supp.3d 305, 310 (S.D.N.Y. 2014) (citing Rodriguez v.

Weprin, 116 F.3d 62, 65 (2d Cir. 1997)). The Court’s “duty to liberally construe a plaintiff’s

complaint is not the equivalent of a duty to re-write it.” Geldzahler v. N.Y. Med. Coll., 663 F.

Supp. 2d 379, 387 (S.D.N.Y. 2009) (cleaned up).

When ruling on a Rule 12(c) motion, “a district court must confine its consideration to

facts stated on the face of the complaint, in documents appended to the complaint or incorporated

in the complaint by reference, and to matters of which judicial notice may be taken.” See

Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotations

omitted). However, for pro se plaintiffs, the Court may consider “materials outside the complaint

to the extent that they are consistent with the allegations in the complaint,” Alsaifullah v. Furco,

No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotations

omitted), including, “documents that a pro se litigant attaches to his opposition papers,” Agu v.

Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010), “factual

allegations made by a pro se party in his papers opposing the motion,” Walker v. Schult, 717

F.3d 119, 122 n.1 (2d Cir. 2013), and “documents that the plaintiff[ ] either possessed or knew

about and upon which [he or she] relied in bringing the suit,” Rothman v. Gregor, 220 F.3d 81,

88 (2d Cir. 2000). Finally, “the sufficiency of a complaint is a matter of law that the court is

capable of determining based on its own reading of the pleading and knowledge of the law.”

McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000).

IV. DISCUSSION

Defendant moves to dismiss each of Plaintiff’s claims. Mot. at 2. Each claim is discussed

in turn.

A. Federal Claims

1. Excessive Force - 42 U.S.C. § 1983

Plaintiffs bringing a claim under 42 U.S.C. § 1983 “must allege ‘(1) that some person has

deprived him of a federal right, and (2) that the person who deprived him of that right acted

under color of state . . . law.” Pflaum v. Town of Stuyvesant, 937 F. Supp. 2d 289, 301 (N.D.N.Y.

2013) (quoting Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)).

a. Fourth Amendment

Courts “review a plaintiff’s excessive force claim under the Fourth Amendment Standard

of objective reasonableness to assess whether an officer’s conduct was appropriate in light of the

facts and circumstances confronting him.” Cugini v. City of New York, 941 F.3d 604, 608 (2d

Cir. 2019) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). Doing so “requires

consideration of the specific facts in each case, including the severity of the crime at issue,

whether the suspect posed an immediate threat to the safety of others and whether he is actively

resisting arrest.” Sullivan v. Gagnier, 225 F.3d 161, 165 (2000).

Defendants argue that plaintiffs have not alleged facts demonstrating a plausible Fourth

Amendment violation. Mot. at 5. Plaintiff, in a conclusory fashion, refers to “wrongful and

unjustified actions that led to Plaintiff being physically injured,” though the only description of

the action that led to Plaintiff’s injury is that “Officer Derek Montressor physically took Plaintiff

down.” SAC at 1.1 Defendants argue that the Second Amended Complaint is bereft of specific

details that would allow the Court to infer that the takedown constituted excessive force. Mot. at

5. The Court agrees. A takedown down does not by itself necessarily constitute excessive force.

See Bongiorno v. Perilli, 537 F.Supp.3d 367, 377–78 (N.D.N.Y. 2021) (finding that a takedown

in which “[p]laintiff was slammed on his head” was not excessive). Therefore, a plaintiff would

have to allege sufficient facts that would make this particular takedown unreasonable, and

Plaintiff has not done so, since the Plaintiff has only included the fact of the takedown. See SAC

at 1. This “unadorned, the-defendant-unlawfully-harmed-me accusation” cannot survive a

motion to dismiss. Iqbal, 556 U.S. at 678. Plaintiff’s section 1983 claim as it relates to the Fourth

Amendment is therefore dismissed.

b. Fourteenth Amendment

1 Plaintiff adds additional facts about the arrest in her response and Sur-Reply. Resp. at 1; Sur-

Reply at 2. Parties are not permitted to plead new facts in response to a motion to dismiss, Levin

v. Sarah Lawrence Coll., 747 F. Supp. 3d 645, 657 (S.D.N.Y. 2024), and therefore, the Court

cannot credit these allegations.

Defendants argue that Plaintiff is required to bring her excessive force claims under the

Fourth, and not Fourteenth Amendment substantive due process, that she fails to state a

Fourteenth Amendment claim, and that “Defendants are entitled to qualified immunity.” Mot. at

6–7.

This Court finds that Plaintiff’s claims cannot be brought under the Fourteenth

Amendment. If a plaintiff has been arrested, excessive force claims must be brought under the

Fourth Amendment, not the Fourteenth. Harding v. Gould, 2024 WL 3742688, at * 5 (S.D.N.Y.

Aug. 9, 2024). Plaintiff’s Complaint does not specify that she was arrested. See generally, SAC.

Her Response, however, plainly states that “she was unlawfully seized” and was handcuffed.

Resp. at 1. Her Sur-Reply also refers plainly to an arrest. Sur-Reply at 2. Therefore, the Fourth,

not the Fourteenth, Amendment, governs these claims., and Plaintiff’s section 1983 claims as

they relate to the Fourteenth Amendment are thusly dismissed.

2. Civil Conspiracy to Deprive Rights

“In order to state a claim for conspiracy under Section 1983, a plaintiff must allege: (1)

an agreement between two or more actors (at least one a state actor); (2) to act in concert to

cause an unconstitutional injury; and (3) an overt act done in furtherance of that agreement,

causing damages.” Ocasio v. City of Canandaigua, 513 F. Supp. 3d 310, 323 (W.D.N.Y. 2021)

(citing Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002)). Defendants

argue that Plaintiff fails to plead an unconstitutional injury. Mot. at 13–14. After carefully

reviewing the parties’ filings, the Court finds that Defendants are correct. As discussed above,

plaintiff has not alleged an unconstitutional injury. See supra section IV(A)(1). Therefore, the

civil conspiracy claim, which relies on such an injury, is dismissed.

3. Failure to Intervene

With respect to a claim that defendants failed to intervene when other officers used

excessive force, “a plaintiff must demonstrate that: (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. 2023). Plaintiff must also establish the presence of an “underlying constitutional

violation.” Kayo v. Mertz, 531 F.Supp.3d 774, 799 (S.D.N.Y. 2021). Defendants argue that

Plaintiff has not pled a constitutional violation. Mot. at 20–22. The Court agrees. As discussed

above, plaintiff has not pled facts establishing a constitutional violation. See supra section

IV(A)(1). Thus, her failure to intervene claim is dismissed.

B. State Claims

As the Court has dismissed all federal claims, it exercises its discretion in dismissing the

remaining state claims for want of subject matter jurisdiction. See U.S.C. §1367 (stating that a

district court “may decline to exercise supplemental jurisdiction over a claim . . . if . . . [it] has

dismissed all claims over which it has original jurisdiction.”). The Court is mindful that “in the

usual case in which all federal-law claims are eliminated before trial,” dismissal of claims for

lack of subject matter jurisdiction is appropriate. See Kolari v. New York-Presbyterian Hosp.,

455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350

n. 7 (1988)).

V. SANCTIONS

On August 26, 2025, Plaintiff filed a Motion for Sanctions against Defendants for

spoilation of evidence. Sanctions Mot. The Court has reviewed the Sanctions Motion and finds

no need for a response from Defendants. Jefferson v. Taft Fridays 50, No. 18CIV1578ATRWL,

2018 WL 2939034, at *3 (S.D.N.Y. Mar. 14, 2018) (a “[c]ourt d[oes] not need to wait for

Defendant to respond to deny Plaintiff's motion for sanctions against Defendant.”).

“Rule 37 governs situations where a party to a civil action fails to cooperate in discovery,

and provides for the Court to issue sanctions against such a party.” Xstrata Canada Corp. v.

Advanced Recycling Technology, Inc., No. 08-CV-1366, 2010 WL 1539722, at *2 (N.D.N.Y.

Apr. 19, 2010) (citing Fed. R. Civ. P. 37). “However, the Second Circuit has consistently

recognized that Rule 37 sanctions are applicable in extreme circumstances, where a party fails to

comply with the court's discovery orders willfully, in bad faith, or through fault.” Kesick v.

Ulloa, No. 10-CV-1248, 2012 WL 2873364, at *10 (N.D.N.Y. Jul. 12, 2012) (citing Robertson v.

Dowbenko, 443 F. App'x. 659, 660 (2d Cir. 2011)) (internal quotation marks omitted). Dismissal

may be imposed “only in extreme circumstances,” and “usually after consideration of alternative,

less drastic sanctions.” John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172,

1176 (2d Cir. 1988) (upholding dismissal of complaint after failure “to provide any meaningful

discovery concerning a core trial issue despite three clear court orders, which included two

warnings that dismissal would follow if [the plaintiff] failed to provide adequate responses to

[the defendant's] request”); see also Matthews v. Sweeney, No. 17-CV-503, 2024 WL 1558603,

at *3 (N.D.N.Y. Apr. 10, 2024) (“This high bar is set because dismissal is considered a ‘drastic

remedy that should be imposed only in extreme circumstances.’”) (citing, inter alia, Hull, 845

F.2d at 1176).

Plaintiff argues that Defendants have failed to comply with Rule 37(e) of the Federal

Rules of Civil Procedure, for their failure to retain video footage of the incident. Sanctions Mot.

at 1. Under recent Second Circuit precedent, “to impose sanctions pursuant to Rule 37(e)(2), a

district court or a jury must find, by a preponderance of the evidence, that a party acted with an

‘intent to deprive’ another party of the lost information.” Hoffer v. Tellone, 128 F.4th 433, 435

(2d Cir. 2025). Plaintiff has not demonstrated an “intent to deprive,” as Plaintiff has not shown

that the footage ever existed, was ever in the possession of the Defendants, or was intentionally

destroyed or lost by Defendants. See generally, Sanctions Mot. Particularly relevant is the fact

that the security footage in question, if it exists, would likely have been possessed by the Funny

Bone Comedy Club or Destiny USA, see SAC at 1–2. But the defendants in this case are police

officers and the Syracuse Police Department. See id. Plaintiff has therefore fallen short of her

burden of demonstrating that defendants intended to deprive plaintiff of information in their

possession. The motion for sanctions is therefore denied.

VI. MOTION TO AMEND

Plaintiff has asked the Court’s permission to amend her complaint for a second time.

Mot. to Amend at 1. Beyond the first amendment, a “court should freely give leave [to amend]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Notwithstanding the liberality of the general

rule, ‘it is within the sound discretion of the court whether to grant leave to amend.’” Brawer v.

Egan-Jones Ratings Co., 347 F.R.D. 650, 653 (S.D.N.Y. 2024) (quoting John Hancock Mutual

Life Insurance Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994)).

Acceptable reasons for denying leave to amend include “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or]

futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).

The Court observes that Plaintiff and her son have brought multiple lawsuits regarding

the same underlying set of facts. See Jarvis v. Funny Bone Comedy Club, No. 5:25-CV-645

(LEK/MJK), 2025 WL 1532695, at *2 (N.D.N.Y. May 28, 2025), report and recommendation

adopted, No. 5:25-CV-645 (LEK/MJK), 2025 WL 3653544 (N.D.N.Y. Dec. 17, 2025); Kerr v.

Syracuse Police Dep't, No. 5:25-CV-1647 (LEK/MJK), 2025 WL 3704437, at *1–2 (N.D.N.Y.

Dec. 19, 2025); Kerr v. Funny Bone Comedy Club, No. 25-CV-01648 (N.D.N.Y. filed Nov. 24,

2025). The plaintiff has also filed multiple other lawsuits regarding the Syracuse Police

Department. See, e.g., Jarvis v. Wagner, No. 5:25-CV-647 (BKS/PJE), 2026 WL 206050, at *3

(N.D.N.Y. Jan. 27, 2026), report and recommendation adopted in part, rejected in part, No.

5:25-CV-00647 (BKS/PJE), 2026 WL 440524 (N.D.N.Y. Feb. 17, 2026); Jarvis v. Knapp, No.

5:25-CV-1167 (MAD/MJK), 2025 WL 2926959, at *1 (N.D.N.Y. Oct. 15, 2025), report and

recommendation adopted, No. 5:25-CV-1167 (MAD/MJK), 2025 WL 3525789 (N.D.N.Y. Dec.

9, 2025); Jarvis v. Citizen Rev. Bd. of the City of Syracuse, No. 5:25-CV-1169 (AMN/PJE), 2026

WL 249404, at *3 (N.D.N.Y. Jan. 30, 2026), report and recommendation adopted sub nom.,

Jarvis v. Citizen Rev. Bd. of City of Syracuse, No. 5:25-CV-01169 (AMN/PJE), 2026 WL

488535 (N.D.N.Y. Feb. 20, 2026). The Second Circuit has held that a party having “a history of

vexatious litigation” is grounds to deny leave to amend. Baiul v. NBC Sports, a division of

NBCUniversal Media LLC, 708 F. App’x 710, 714 (2d Cir. 2017). Given the vexatiousness with

which Plaintiff has litigated this incident, and others, and the likely futility of any amendments

she will make, the Court declines to grant leave to amend. See Mot. to Amend at 1 (noting that

the Amended Complaint “merely corrects and consolidates existing allegations.”).

VII. CONCLUSION

Accordingly, it is hereby:

ORDERED, that Defendants’ motion to dismiss, Dkt. No. 32, is GRANTED; and it is

further

ORDERED, that Plaintiff's claims against defendants are DISMISSED without

prejudice; and it is further

ORDERED, that Plaintiff's motion for sanctions, Dkt. No. 37, is DENIED; and it is

further

ORDERED, that Plaintiff's motion to amend, Dkt. No. 46, is DENIED; and it is further

ORDERED, that the Clerk close this action; and it is further

ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all

parties in accordance with the Local Rules.

IT IS SO ORDERED.

DATED: March 31, 2026

Albany, New York

LAW CE E. KAHN

United States District Judge

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