# Opinion

> District Court, E.D. New York · February 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11320000

## Case

- **Full name:** Jennifer Garcia Jimenez, on behalf of her minor daughter “J.M.”, Franklin Campoverde, and Joan Manuel Jimenez v. County of Suffolk, Suffolk County Police Detective Solon Parker, Suffolk County Police Commissioner Rodney K. Harrison, Suffolk County District Attorney Raymond A. Tierney, Suffolk County Assistant District Attorney William C. Nash, Police Officer Daniel Lillis, Town of East Hampton, East Hampton Town Police Chief Michael D. Sa
- **Court:** District Court, E.D. New York
- **Decided:** February 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
:
JENNIFER GARCIA JIMENEZ, on behalf of her
minor daughter “J.M.”, FRANKLIN :
CAMPOVERDE, and JOAN MANUEL
: MEMORANDUM DECISION AND
JIMENEZ,
ORDER
Plaintiff, :
23-CV-9476 (AMD) (SIL)
:
– against – :

:
COUNTY OF SUFFOLK, SUFFOLK COUNTY
POLICE DETECTIVE SOLON PARKER, :
SUFFOLK COUNTY POLICE
COMMISSIONER RODNEY K. HARRISON, :
SUFFOLK COUNTY DISTRICT ATTORNEY :
RAYMOND A. TIERNEY, SUFFOLK
COUNTY ASSISTANT DISTRICT :
ATTORNEY WILLIAM C. NASH, POLICE
:
OFFICER DANIEL LILLIS, TOWN OF EAST
HAMPTON, EAST HAMPTON TOWN :
POLICE CHIEF MICHAEL D. SARLO, EAST
HAMPTON TOWN POLICE DETECTIVE :
RYAN HOGAN, EAST HAMPTON TOWN :
SUPERVISOR PETER VAN SCOYAC,
“STATE” “DOES” 1-20 and “FEDERAL” :
“ROES” 1-20,
:

Defendants. ::
--------------------------------------------------------------- X

ANN M. DONNELLY, United States District Judge:

The plaintiffs assert various claims pursuant to 42 U.S.C. § 1983 and state law, arising
out of the October 5, 2022 execution of a search warrant at their Montauk home. After the Court
dismissed most of the claims in the amended complaint, the plaintiffs moved to file a second
amended complaint on August 26, 2025. (ECF No. 93.) On January 12, 2026, Magistrate Judge
Steven I. Locke issued a report and recommendation in which he recommended that the Court
deny the plaintiffs’ motion. (ECF No. 108.) The plaintiffs filed objections to the report and
recommendation on January 23, 2026. (ECF No. 109.) The defendants oppose. (ECF Nos. 110,
112.) For the following reasons, the Court adopts the report and recommendation and denies the
plaintiffs’ motion to amend.

BACKGROUND
Familiarity with the facts is assumed. (See generally ECF No. 79 at 2–4 (detailing the
factual background of this case).) On December 26, 2023, the plaintiffs brought this action
asserting various claims under 42 U.S.C. § 1983, Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), and New York state law arising out of the execution of a search
warrant. (ECF No. 1.) The plaintiffs named as defendants Suffolk County, Suffolk County
Police Detective Solon Parker, Suffolk County Police Commissioner Rodney K. Harrison,
Suffolk County District Attorney Raymond A. Tierney, Suffolk County Assistant District
Attorney William C. Nash, Southold Police Officer Daniel Lillis, the Town of East Hampton,

East Hampton Police Chief Michael D. Sarlo, East Hampton Police Detective Ryan Hogan, and
East Hampton Town Supervisor Peter Van Scoyac, as well as state “Doe” defendants and federal
“Roe” defendants who they alleged were the unknown officers who executed the search warrant.
(Id.)
At a premotion conference on the defendants’ anticipated motion to dismiss the original
complaint, the Court detailed its many concerns about the complaint, which was over 80 pages
long, including that it did not give the defendants sufficient notice of the plaintiffs’ claims
against them. (See, e.g., ECF No. 53 at 10:7-16, 13:7-16.) On June 10, 2024, the plaintiffs filed

an amended complaint. (ECF No. 34.) Although the amended complaint was shorter than the
original complaint, there was “no relevant difference between the original and the amended
complaint.” (ECF No. 79 at 5.)
On March 28, 2025, the Court granted in part and denied in part the defendants’ motions
to dismiss the amended complaint. (Id.)1 The Court dismissed all of the plaintiffs’ claims except
for their claims for excessive force under § 1983 and assault and battery against the Doe
defendants, and their negligence claim against the Doe defendants related to the use of a

battering ram. (ECF No. 79 at 48.) The Court held that the plaintiffs had stated a claim for
excessive force against the Doe defendants based on their claim that the officers handcuffed
Jiminez and Campoverde too tightly, and used a battering ram on a door, injuring Jiminez’s foot
in the process. (Id. at 30–32.) The Court also found that the plaintiffs had stated a claim that
Doe officers saw and did not intervene when other officers used the battering ram, and
handcuffed the plaintiffs too tightly. (Id. at 36.) The Court denied the plaintiffs’ request to file a
second amended complaint, concluding that “granting further leave to amend would be futile
because there was no ‘indication that a valid claim might be stated’ as to those claims dismissed
under Rule 12(b)(6).” (Id. at 48 (quoting Thomas v. Amazon.com Servs. LLC, No. 23-CV-1271,
2025 WL 253276, at *14 (E.D.N.Y. Jan. 21, 2025).) However, the Court instructed the plaintiffs

to file a motion pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) to obtain identifying
information for the Doe defendants. (Id. at 48.)
On April 24, 2025, the plaintiffs filed a Valentin motion to compel the defendants to
identify the Suffolk County and Town of East Hampton employees involved in the execution of
the search warrant, and for leave to amend the amended complaint to include the identified
individuals as defendants. (ECF No. 80.) On May 13, 2025, Judge Locke directed the
defendants to “provide the names and badge numbers of the officers involved in the execution of

1 On September 3, 2024, Judge Locke denied the plaintiffs’ fourth motion for an extension of time to
serve the unnamed federal defendants and dismissed the claims against those defendants without
prejudice. (ECF Order dated Sept. 9, 2024.)
[the] search warrant at issue in this action or state that they do not possess responsive
information” but denied the plaintiffs’ motion to amend without prejudice because they did not
include a proposed second amended complaint. (ECF Order dated May 13, 2025.) On May 23,
2025, the defendants complied with Judge Locke’s Valentin order. (See ECF Nos. 84, 85.)

On August 26, 2025, the plaintiffs filed a motion to file a second amended complaint.
(ECF No. 93.) In the proposed second amended complaint, the plaintiffs assert claims under
Section 1983 for violations of their Fourth Amendment rights arising from the officers’ alleged
use of excessive force and failure to intervene to prevent the use of excessive force, as well as
claims under New York common law for assault, battery, and negligence, against Suffolk
County, Parker, Lillis, Town of East Hampton, Hogan, Southampton Police Officer Andrew
Blodorn, Southampton Police Officer Bryan Cobb, East Hampton Police Detective David
Orlando, East Hampton Police Officer Tyler Gilbride, East Hampton Police Detective Michael
Coleman, East Hampton Police Detective Luke McNamara, East Hampton Police Officer Juan
Buitrago, East Hampton Police Detective Arthur Scalzo, and East Hampton Police Officer

Katherine Izzo. (ECF No. 93-2.)
Defendants Suffolk County, Parker, Hogan, Sarlo, Town of East Hampton, Van Scoyac,
and Lillis — as well as proposed defendants Cobb and Blodorn — oppose the motion to amend
on the grounds that it is procedurally deficient and futile. (See ECF Nos. 94, 101, 103, 104.)2
In a January 12, 2026 report and recommendation, Judge Locke recommended that the
Court deny the plaintiffs’ motion to amend. (ECF No. 108.) The plaintiffs filed timely
objections to the report and recommendation. (ECF No. 109.) Defendants Suffolk County,

2 The plaintiffs do not name Sarlo and Van Scoyac as defendants in the proposed second amended
complaint (see ECF No. 93-2), and the Court previously dismissed all of the plaintiffs’ claims against
them (see ECF No. 79).
Parker, Hogan, Sarlo, Town of East Hampton, Van Scoyac, and Lillis oppose the plaintiffs’
objections. (See ECF Nos. 110, 112, 113.)

LEGAL STANDARD
In reviewing a report and recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). A party may object to a magistrate judge’s report and recommendation
within 14 days. Fed. R. Civ. P. 72(b)(2). Objections are reviewed de novo when they are
“specific and clearly aimed at particular findings in the magistrate judge’s proposal.” Green v.
Dep’t of Educ. of City of N.Y., No. 18-CV-10817, 2020 WL 5814187, at *2 (S.D.N.Y. Sept. 30,
2020) (quoting McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009)). If a party
“makes only conclusory or general objections, or simply reiterates [their] original arguments, the
Court reviews the Report and Recommendation only for clear error.” Pall Corp. v. Entegris,

Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt v. Joie, No. 96-CV-324, 2002 WL
335014, at *1 (S.D.N.Y. Mar. 4, 2002)). The Court “may accept, reject, or modify the
recommended disposition.” Fed. R. Civ. P. 72(b)(3).
“[E]ven in a de novo review of a party’s specific objections, [however,] the court will not
consider ‘arguments, case law and/or evidentiary material which could have been, but were not,
presented to the magistrate judge in the first instance.’” Brown v. Smith, No. 09-CV-4522, 2012
WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012) (alterations omitted) (quoting Kennedy v. Adamo,
No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)). Moreover, “the district
court is ‘permitted to adopt those sections of a magistrate judge’s report to which no specific
objection is made, so long as those sections are not facially erroneous.’” Sasmor v. Powell, No.
11-CV-4645, 2015 WL 5458020, at *2 (E.D.N.Y. Sept. 17, 2015) (quoting Batista v. Walker,
No. 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)).

DISCUSSION
The Court has carefully reviewed the portions of Judge Locke’s report and
recommendation to which the plaintiffs did not object for clear error and finds none. The
plaintiffs raise two primary objections to Judge Locke’s report and recommendation.3 As
explained below, the Court denies the plaintiffs’ objections and adopts the report and
recommendation in its entirety.
Compliance with Local Rules
Judge Locke recommended that the Court deny the plaintiffs’ motion to amend because it
was “procedurally deficient” under two local civil rules, Local Civil Rule 15.1 and Local Civil

Rule 7.1. Local Civil Rule 15.1 requires that a motion to amend include “(1) a clean copy of the
proposed amended or supplemental pleading; and (2) a version of the proposed pleading that
shows—through redlining, underlining, strikeouts, or other similar typographic method—all
differences from the pleading that it is intended to amend or supplement.” Local Civ. R. 15.1(a).
Local Civil Rule 7.1 requires that all motions include a memorandum of law. Local Civ. R.
7.1(a)(2). Because the plaintiffs did not file a redlined copy of the proposed second amended
complaint and submitted a declaration with their motion, instead of a memorandum of law, Judge
Locke recommended that the Court deny the motion to amend. (ECF No. 108 at 8.)

3 The Court does not consider the plaintiffs’ claims that “the trajectory of the case was significantly
hampered by the Court’s failure to set any scheduling conference until August 2025 and therefore
preventing Plaintiffs’ rule-based usual course of discovering the names of the law enforcement officers
who were at the house and could have intervened (interceded) to prevent continuing civil rights
violations of excessive force which occurred in their presence,” (ECF No. 109 at 2), because the claim
has nothing to do with Judge Locke’s decision.
The plaintiffs argue that “a color-highlighted version of the proposed complaint showing
changes was sent to the opposing counsel of record to make the changes apparent” and “[t]hat
version was also sent to Chambers in hard copy.” (ECF No. 109 at 2.) In addition, the plaintiffs
say that “if the Court requested a more formal marked up copy of the [proposed second amended

complaint] to show the proposed changes, it could have been provided.” (Id. at 5.) Finally, they
claim that the declaration accompanying the motion explained the relevant differences. (Id.)4
Local Civil Rule 15.1 requires that a plaintiff seeking to amend her complaint “must also
include as an exhibit” a version of the proposed amended complaint that shows how the
proposed amended complaint differs from the previous version. Local Civ. R. 15.1(a). The
plaintiffs did not include a redlined version of the proposed second amended complaint as an
exhibit to their motion. (See ECF No. 93.) This failure to comply with Local Rule 15.1(a) “is a
sufficient basis upon which to deny [the plaintiffs’] motion, albeit without prejudice.” AlexSam,
Inc. v. Mastercard Int’l Inc., No. 15-CV-2799, 2025 WL 3451891, at *14 (E.D.N.Y. Aug. 15,
2025), report and recommendation adopted, No. 15-CV-2799 (ECF Order dated Sept. 18, 2025).

Accordingly, the plaintiffs’ objections on this basis are denied.
Futility
Alternatively, Judge Locke recommended that the Court deny the motion because
amendment would be futile. The only specific objections the plaintiffs raise to this portion of

4 The plaintiffs cite a paragraph in the declaration they filed in reply to the defendants’ oppositions to the
motion to amend. In this declaration, the plaintiffs stated that “[t]his Rule 15 motion was addressed to
the District Judge and the Reply is in a declaration format, not a declaration plus memorandum of law
because the facts and law are intertwined here. If Magistrate Judge Locke determines the Rule 15
motion and a separate memorandum of law with tables is required, I request an opportunity to comply
with his rules.” (ECF No. 102 at 10.) The plaintiffs did not include this language in the declaration they
submitted with their motion to amend, and they did not address their failure to comply with Local Civil
Rule 15. (See ECF No. 93-1.)
Judge Locke’s report and recommendation are related to their failure to intervene claims. Much
of the plaintiffs’ discussion of these objections simply excerpts portions of the reply declaration
they filed in support of the motion to amend. (See, e.g., ECF No. 109 at 7 (quoting ECF No.
102).) “Merely referring the court to previously filed papers or arguments does not constitute an

adequate objection under . . . Fed. R. Civ. P. 72(b).” Benitez v. Parmer, 654 Fed. App’x. 502,
503 (2d Cir. 2016) (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)).
“An objection which merely refers to previously filed papers or arguments . . . does not require
de novo review.” O’Garro v. Ercole, No. 06-CV-3887, 2007 WL 401194, at *2 (S.D.N.Y. Feb.
5, 2007) (citation modified). Therefore, the Court reviews de novo only the plaintiffs’ specific
objections to the portions of Judge Locke’s report and recommendation regarding the futility of
amending their excessive force claims, and does not review de novo the arguments they recycled
from their reply declaration.
Under Rule 15 of the Federal Rules of Civil Procedure, a party seeking to amend its
pleading beyond the time period allowed for an amendment as a matter of course “may amend its

pleading only with the opposing party’s written consent.” Fed. R. Civ. P. 15(a)(2). If the
opposing party does not consent, the party seeking to amend must obtain leave of the court. Id.
The court should “freely give leave when justice so requires” but should deny leave to amend
“for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing
party.” Id.; McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200–01 (2d Cir. 2007.) The
opposing party bears the burden of demonstrating a good reason for denial. Speedfit, LLC v.
Woodway USA, Inc., No 13-CV-1276, 2015 WL 6143697, at *3 (E.D.N.Y. Oct. 19, 2015).
Futility is established where “the proposed amended complaint would fail to state a claim
on which relief could be granted.” Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F.
Supp. 2d 453, 459 (S.D.N.Y. 2012). “An amendment to a pleading is futile if the proposed claim
could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l
Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). Therefore, a proposed amendment is
futile if it does not “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009.) To determine whether the proposed amendment meets this test, courts
accept all facts alleged by the party moving to amend the complaint as true, and construe any
ambiguities in favor of the moving party. Konrad v. Epley, No. 12-CV-4021, 2013 WL
6200009, at *20 (E.D.N.Y. Nov. 25, 2013).
Judge Locke recommended that the Court deny the motion to amend because the
proposed second amended complaint did not allege that the defendants “played any part” in the
alleged excessive force, assault and battery, or negligence. The plaintiffs “object to the R&R
conclusion that excessive force cannot be attributed to an officer if there is no statement that the
officer ‘played [a] part’ in the use of the excessive force.” (ECF No. 109 at 5 (quoting ECF No.
108 at 10).) They argue that “[n]o affirmative action is required to make out a claim for

excessive force against an officer as a ‘tacit collaborator’ or the continuation of the use of that
excessive force,” and that “[t]he whole premise of a failure to intercede is that no part was ever
played to correct[,] . . . [which] was alleged.” (Id. at 5–6.) According to the plaintiffs, the
proposed second amended complaint does “more that [sic] simply state that the law enforcement
officers . . . were ‘physically present’ at the small house because it alleges that they saw and
knew of the extreme physical discomfort of [the plaintiffs] (being forced to stand against a wall
with excessively tight handcuffs behind their backs for over 3 hours) and the law enforcement
officers had enough time to cause that excessive force to cease and yet did nothing to prevent its
continuation.” (Id.)5
“It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
“An officer who fails to intercede is liable for the preventable harm caused by the actions of the
other officers where that officer observes or has reason to know” that other officers have
committed a constitutional violation, provided the officer has “a realistic opportunity to intervene
to prevent the harm from occurring.” Id. Therefore, “[l]iability may attach only when (1) the
officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in
the officer’s position would know that the victim’s constitutional rights were being violated; and
(3) the officer does not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F.
Supp. 2d 501, 512 (S.D.N.Y. 2008), aff’d sub nom. Jean-Laurent v. Wilkerson, 461 F. App’x 18
(2d Cir. 2012) (summary order). “The plaintiff must plead facts showing that these elements are

satisfied as to each defendant who allegedly failed to intervene.” Alba v. City of New York, No.
23-CV-8619, 2025 WL 2420969, at *29 (S.D.N.Y. July 18, 2025), report and recommendation
adopted, No. 23-CV-8619, 2025 WL 2419573 (S.D.N.Y. Aug. 21, 2025). Therefore, a court will

5 The plaintiffs also object that the report and recommendation “does not recognize that the District
Court’s earlier order did not . . . affirmatively divest [the Court] from jurisdiction to consider any
amended complaint against Solon Parker, Daniel Lillis or Ryan Hogan once there was confirmation of
their physical presence at the Montauk house so as to factually allege claims for their failure to intervene
(intercede) to prevents [sic] the continuing use of excessive force against Plaintiffs.” (ECF No. 109 at
3.) The Court does not consider this objection because Judge Locke never said anything remotely
suggesting that the Court was “divested of jurisdiction” to consider claims against a particular
defendant. What he did say was that the plaintiffs “fail to allege additional facts that would support a
finding of liability against Lillis,” (ECF No. 108 at 6 n.3), which the Court addresses below.
dismiss failure to intervene claims that are “reliant upon impermissible group pleading.” Spence
v. City of New York, 2022 WL 4537946, at *6 (S.D.N.Y. Sept. 28, 2022).
The plaintiffs have not stated a claim because the proposed second amended complaint
does not plead facts establishing the elements of a failure to intervene claim against each

individual defendant. In the proposed second amended complaint, the plaintiffs allege that “[t]he
law enforcement officers inside and outside the small one-story house would have been able to
intercede (intervene) to prevent the continuing wrongful use of excessive force but all of them
failed to do so,” and that “all Defendants observed the manner in which [Jimenez] and
[Campoverde] were being held.” (ECF No. 93-2 ¶ 70.) This is not sufficient to state a claim.
See Ulerio v. City of New York, No. 18-CV-2155, 2018 WL 7082155, at *7 (S.D.N.Y. Dec. 20,
2018) (“Because Plaintiff’s failure to intercede claim does not distinguish between the Officer
Defendants, Plaintiff has failed to state a viable claim against any of them.”); see also Spence,
2022 WL 4537946, at *6 (dismissing excessive force claims because the plaintiff “fail[ed] to
plead with specificity sufficient to ‘give each defendant fair notice of what the plaintiff’s claim is

and the ground upon which it rests’” (quoting Atuahene v. City of Hartford, 10 F. App’x 33, 33
(2d Cir. 2001)). The only officers the plaintiffs name are Officer Gilbrede, who “was stationed
outside the house for traffic control but could observe [Campoverde] through the window inside
[the] house,” (ECF No. 93-2 ¶ 70,) and Lillis, who “was physically present at the house and
observed [Campoverde] and [Jiminez] being handcuffed wearing behind-the-back handcuffs and
being ordered to stand against the wall in the living room for hours.” (Id. ¶ 38.) However, the
plaintiffs do not allege that these officers had a realistic opportunity to intervene and did not take
reasonable steps to do so. Therefore, the plaintiffs have not stated a claim against Officers Lillis
or Gilbrede. See Wilkinson, 540 F. Supp. 2d at 512; Alba, 2025 WL 2420969, at *29.6
Accordingly, allowing the plaintiffs to amend their complaint to allege failure to intervene claims
against the individual defendants based on the allegedly unconstitutional handcuffing would be
futile.

Second, the plaintiffs object that the report and recommendation “does not even address
the issue of denial of sanitation access for over 3 hours.” (ECF No. 109 at 8.) The plaintiffs
assert that “another type of the use of excessive force is the denial of sanitation access, which is
the denial of use of a toilet facility, which is a type of the use of excessive force of which
Jennifer Jimenez Garcia and her daughter ‘J.M.’ alleged since the beginning of the case.” (Id.)
They argue that the proposed second amended complaint states a claim that the defendants
“could have intervened (interceded) to prevent that continuing use of excessive force but they did
nothing.” (Id.)
The Court dismissed the plaintiffs’ claims that they had been unlawfully detained while
the warrant was executed, as well as “any failure to intercede [claims] connected to dismissed

claims.” (ECF No. 79 at 26–27, 36.) The Court also denied the plaintiffs’ request for leave to
amend those claims. (See id. at 47–48.) Accordingly, the plaintiffs cannot amend their failure to
intervene claims based on the defendants’ alleged “denial of sanitation access.” (ECF No. 109 at
8.) In any event, “there can be no failure to intervene where there was no constitutional

6 The proposed second amended complaint also alleges that Blodorn, Cobb, Hogan, Orlando, Coleman,
McNamara, Buitrago, Scalzo, and Izzo were “physically present at the physical location of Plaintiffs’
house.” (ECF No. 93-2 ¶ 29.) However, the plaintiffs do not allege that each of these defendants
observed the allegedly excessive handcuffing and failed to intervene. Therefore, allowing the plaintiffs
to amend their failure to intervene claims against these defendants would be futile. See Dean v. New
York City, No. 15-CV-8825, 2017 WL 3670036, at *4 (S.D.N.Y. July 6, 2017) (holding that a plaintiff’s
proposed failure to intervene claim was futile where it was “devoid of any factual allegations against
[the officer] with respect to the failure to intervene claim, such as, for example, where [the officer] was
located and what she was doing” when the alleged excessive force occurred).
violation.” Foy v. City of New York, No. 03-CV-7318, 2004 WL 2033074, at *3 (S.D.N.Y. Sept.
10, 2004). “The temporary deprivation of the right to use the toilet, in the absence of serious
physical harm or a serious risk of contamination, does not rise to the level of an objective
constitutional violation.” Mateo v. Alexander, No. 10-CV-8427, 2012 WL 864805, at *5

(S.D.N.Y. Mar. 14, 2012).
Aside from their objections concerning the failure to intervene claims, the plaintiffs do
not object to the portions of Judge Locke’s report and recommendation finding that the proposed
second amended complaint did not state a claim against any defendants for excessive force,
assault and battery, or negligence. (See ECF No. 108 at 10.) Nor do they object to Judge
Locke’s conclusion that the proposed second amended complaint failed to state a claim against
Suffolk County or the Town of East Hampton. (See id. at 11.) Accordingly, as noted above, the
Court has reviewed these portions of the report and recommendation for clear error and finds
none.

CONCLUSION
For these reasons, the Court adopts Judge Locke’s thorough and well-reasoned report and
recommendation. The plaintiff’s motion for leave to amend is denied.

SO ORDERED.
s/Ann M. Donnelly
___________________________
ANN M. DONNELLY
United States District Judge

Dated: Brooklyn, New York
February 17, 2026

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11320000. Public record. Not legal advice.