Perkins

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DERRICK PERKINS,

Plaintiff, MEMORANDUM & ORDER

- against - No. 17-cv-3683 (KAM)(MMH)

DETECTIVE JOSEPH SOLOMON, et al.

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On June 15, 2017, Plaintiff Derrick Perkins (“Plaintiff”)

commenced this action pro se against Defendants Joseph Solomon,

Emanuel Vizzotti, Salvatore Taorimina, Charles Lovett, Kevin

Phelan, Joseph Manzella, Kevin Hammerschlog (the “Officer

Defendants”), Michelle Kaszuba, Crystal Igneri, Denise Tirino (the

“Queens Defendants,” together with the Officer Defendants, the

“City Defendants”), Matthew Levy, and Paul Kearon (the “Levy

Defendants”). Liberally construed, the Complaint alleges six

causes of action under 42 U.S.C. § 1983 for false arrest (Count

One), malicious prosecution (Count Two), excessive force (Count

Three), fabrication of evidence (Count Four),1 conspiracy to

fabricate evidence (Count Five), deprivation of medical care

1 Although Plaintiff claims that Defendants tampered with, destroyed, and did

not voucher evidence of a cellphone linked to a 911 call, (Compl. at 2),

Plaintiff does not explicitly claim that the Defendants fabricated evidence.

(Count Six), and one state law claim for intentional infliction of

emotional distress (Count Seven). (ECF No. 1, Complaint

(“Compl.”).)

Presently before the Court are two motions to dismiss the

Complaint on behalf of all Defendants pursuant to Federal Rule of

Civil Procedure 12(b)(6). (See ECF Nos. 114, 119.) Plaintiff did

not file responses to either of the motions to dismiss. (See June

25, 2025 Dkt. Order.)

BACKGROUND

Pursuant to Rule 12(b)(6), the Court accepts the following

allegations in the Complaint as true for the purpose of resolving

the motions. See Herrera v. Comme des Garcons, Ltd., 84 F.4th

110, 113 (2d Cir. 2023). In view of Plaintiff’s pro se status,

the Court will consider, along with the Complaint, the factual

allegations in Plaintiff’s letter opposing Defendants’ pre-motion

conference letter regarding their then-anticipated motions to

dismiss. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.

2013); (ECF No. 110, “Pl.’s Opp.”)

I. Factual Background

On July 7, 2016, the New York City Police Department (“NYPD”)

received a 911 call reporting the armed robbery of a cellphone.

(Compl. at 2.) Plainclothes NYPD officers investigating the

report--the Levy Defendants--approached Plaintiff’s vehicle, which

was parked seven blocks away from the site of the alleged robbery,

with their guns drawn. (Id. at 2-3.) Plaintiff drove away in

fear as the Levy Defendants pursued him in an unmarked vehicle.

(Id.) Although a supervising officer was in the process of calling

off the pursuit, the Levy Defendants rammed Plaintiff’s vehicle,

causing it to flip. (Id. at 2-3, 5-6.) The resulting collision

killed a motorist in a neighboring vehicle and injured a

pedestrian. (Id. at 3, 6.)

When the Levy Defendants extracted Plaintiff from his

vehicle, Plaintiff was drifting “in and out of consciousness.”

(Id. at 3.) The officers arrested Plaintiff, searched his car,

and took him to a “holding pen,” where he was held for more than

twenty-four hours without medical treatment. (Id.)

On July 8, 2016, the day after the collision, Plaintiff was

arraigned in Queens County Criminal Court on eleven felony charges,

including murder in the second degree, assault in the first degree,

and robbery in the first degree. (Id. at 4; see Compl. Ex. A.)

On July 12, 2016, Plaintiff received notice of a grand jury

summons. (Id. at 4.) As will be discussed further, the Court

takes judicial notice of Plaintiff’s eventual guilty plea for first

degree assault and second degree manslaughter in connection with

the collision.

Plaintiff also claims that members of the NYPD and Queens

District Attorney’s Office took pictures of a cellphone in

Plaintiff’s car. (Id. at 4-5.) The Complaint is vague about

whether this cellphone was Plaintiff’s or the one allegedly stolen

in the armed robbery. (See id. at 5.) Although vouchers for seized

evidence are typically given upon request, a voucher for that

cellphone was not made available for Plaintiff’s inspection. (Id.)

II. Procedural Background

Plaintiff commenced the instant action on June 15, 2017. On

August 7, 2017, the City Defendants moved to stay Plaintiff’s

action until his criminal proceedings in state court were resolved.

(ECF No. 11 at 2-3.) Magistrate Judge Lois Bloom granted the

motion to stay on October 5, 2017. (ECF No. 29.)

On January 14, 2020, Defendants asked Magistrate Judge Bloom

to lift the stay in this case after Plaintiff was convicted of

offenses arising from the July 7, 2016. (ECF No. 74.) Magistrate

Judge Bloom extended the stay on February 19, 2020 given

Plaintiff’s intention to move to vacate his plea. (ECF No. 77.)

Plaintiff was granted numerous stays in this case as he appealed

his convictions in New York’s appellate courts. (See Feb. 10,

2023, May 24, 2023, Nov. 28, 2023, Mar. 11, 2024, July 1, 2024

Dkt. Orders.) The stay was lifted on September 25, 2024 due to

“substantial delay . . . and uncertainties in . . . Plaintiff’s

appeal process.” (Sept. 25, 2024 Dkt. Order.)

On December 2, 2024, the City Defendants moved for a pre-

motion conference regarding their anticipated motion to dismiss.

(ECF No. 103.) Plaintiff responded in opposition to the City

Defendants’ pre-motion conference letter on December 15, 2024,

which was filed on January 8, 2025. (See Pl.’s Opp.)

On April 25, 2025, the City Defendants moved to dismiss the

Complaint (ECF No. 114; ECF No. 116, “City Mem.”), and the Levy

Defendants joined the City Defendants’ motion, (ECF No. 119).

Plaintiff did not file any responses, and the Court deemed the

Defendants’ motions unopposed. (June 25, 2025 Dkt. Order.) The

City Defendants submitted supplemental briefing regarding

Plaintiff’s excessive force claim on October 31, 2025. (ECF No.

127, “City Supp.”)

III. Extrinsic Evidence

In resolving a motion under Rule 12(b)(6), the Court must

limit its consideration to the facts as asserted within the four

corners of the Complaint, documents incorporated by reference into

the Complaint, documents integral to the Complaint, and matters

properly subject to judicial notice. Clark v. Hanley, 89 F.4th

78, 93 (2d Cir. 2023) (quoting Goel v. Bunge, Ltd., 820 F.3d 554,

559 (2d Cir. 2016)). As is relevant here, the Court may take

judicial notice of “public records, including arraignments, arrest

reports . . . and certificates of disposition,” in deciding a

motion to dismiss. Burris v. Nassau Cnty. Dist. Att'y, 2017 WL

9485714, at *3 (E.D.N.Y. Jan. 12, 2017) (internal quotations

omitted). Importantly, documents subject to judicial notice

cannot be used at the motion to dismiss stage for the “truth of

the matters asserted therein.” James v. Bradley, 808 Fed. App’x 1,

3 (2d Cir. 2020) (summary order); Glob. Network Commc’ns, Inc. v.

City of New York, 458 F.3d 150, 157 (2d Cir. 2006). Rather, those

documents may only be used to establish the fact that they, or the

proceedings they reflect, exist. See Glob. Network Commc’ns, Inc.,

458 F.3d at 157 (district court erred in using contents from

defendant-company CEO’s testimony in criminal proceeding as a

basis for its reasoning).

Pursuant to those principles, the Court takes judicial notice

of Plaintiff’s guilty pleas and convictions in state court for his

actions relating to his claims in this case. Plaintiff’s criminal

proceedings also form the basis of his § 1983 claims, so they are

both incorporated by and integral to the Complaint. See Matos v.

Discovery Commc’ns, LLC, 750 F. Supp. 3d 307, 312-13 (S.D.N.Y.

2024). For instance, Plaintiff’s falsification of evidence claim

directly pertains to the validity of evidence used in his criminal

proceedings. (See Compl. at 6-7.) Plaintiff also makes numerous

references to his criminal proceedings in the Complaint,

particularly in relation to the Queens Defendants presenting

evidence to a grand jury. (Id. at 11-12.)

As to what transpired in those state criminal proceedings,

Plaintiff pleaded guilty to and was convicted in state court for

first degree assault and second degree manslaughter. (See ECF No.

111-1 at 1.) On December 9, 2019, Plaintiff was sentenced to

incarceration and post-release parole for his convictions. (See

id.) The New York Supreme Court Appellate Division, Second

Department denied Plaintiff’s application for leave to appeal his

convictions on June 9, 2023, rendering them final. See People v.

Perkins, 2023 WL 3914881 (N.Y. App. Div. June 9, 2023).

In considering Defendants’ motions, the Court declines to

take judicial notice of or otherwise consider the surveillance

video of the collision referenced in the Levy Defendants’ pre-

motion conference letter filing. (See ECF No. 107.) To start,

the Complaint does not “attach[] . . . or incorporate[] by

reference” the video. Thomas v. Westchester Cnty. Health Care

Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002). Nor is the video

“integral” to the Complaint because Plaintiff does not “rel[y]

heavily upon” the video’s “effect.” Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002); Nat’l Acad. of Television Arts

& Scis., Inc. v. Multimedia Sys. Design, Inc., 551 F. Supp. 3d.

408, 418 n.2 (S.D.N.Y. 2021); Friedl v. City of New York, 210 F.3d

79, 83-84 (2d Cir. 2000) (“[A] district court errs when it

considers affidavits and exhibits submitted by defendants, or

relies on factual allegations contained in legal briefs or

memoranda in ruling on a 12(b)(6) motion to dismiss.” (citation

modified)). At this stage, the surveillance video of the collision

is not properly before the Court. The Court now considers the

applicable legal standard for Defendants’ motions to dismiss.

LEGAL STANDARD

Defendants move to dismiss the Complaint under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim. In this

posture, courts must accept all well-pleaded, nonconclusory

factual allegations in the complaint as true. Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009). To survive a motion to dismiss, a

complaint must plead sufficient facts to “state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. Courts, however, do

not need accept conclusory assertions as true. Id. at 678-79; see

Watson Lab’ys Inc. v. Forest Lab’ys, Inc., 101 F.4th 223, 235 n.5

(2d Cir. 2024).

As is relevant here, courts are “obliged to construe [a pro

se plaintiff’s] pleadings liberally, particularly when they allege

civil rights violations.” McEachin v. McGuinnis, 357 F.3d 197,

200 (2d Cir. 2004) (citing Weinstein v. Albright, 261 F.3d 127,

132 (2d Cir. 2001)). This obligation remains after Twombly.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Applying these

principles, the Court turns to Defendants’ arguments.

DISCUSSION

I. Plaintiffs’ Claims Against Queens Defendants Are Barred By

Absolute Immunity

Because absolute prosecutorial immunity would be dispositive

of the claims against the Queens Defendants, the Court considers

its applicability as a threshold matter. Prosecutors enjoy

absolute immunity when they act as advocates, including when

“initiating a prosecution and . . . presenting the State’s case.”

Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Zahrey v. Coffey,

221 F.3d 342, 346-47 (2d Cir. 2000); Shmueli v. City of New York,

424 F.3d 231, 236-37 (2d Cir. 2005). This remains true even when

that evidence is alleged to have been fabricated by law enforcement

officers. Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir.

2004).

Conversely, prosecutors enjoy only qualified immunity when

they act as investigators. Though “[t]he line between a

prosecutor’s advocacy and investigating roles might sometimes be

difficult to draw,” Zahrey, 221 F.3d at 347, the question turns on

whether the challenged prosecutorial action took place before or

after prosecutors had probable cause to effect an arrest, see Hill

v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995). For example,

prosecutors were deemed to have acted in their investigatory roles

when they fabricated evidence well in advance of a defendant’s

indictment by a grand jury. Buckley v. Fitzsimmons, 509 U.S. 259,

275 (1993).

Here, the Complaint alleges that the Queens Defendants

introduced allegedly fabricated evidence to a grand jury, not that

they participated in the creation of that evidence. (See Compl.

at 11-12 (Queens Defendants “knowingly” participated in or allowed

the “introduction” of illegal evidence to a seated grand jury).)

Because prosecutors enjoy absolute immunity “for any misconduct in

the presentation of evidence to [] grand juries,” Bernard, 356

F.3d at 505, the Court grants the motion to dismiss federal claims

against the Queens Defendants with prejudice and also dismisses

the intentional infliction of emotional distress claim alleged

against them for the same reason, Collins v. City of New York, 923

F. Supp. 2d 462, 479 (E.D.N.Y. 2013) (“Prosecutors’ immunity under

state law is identical to their immunity under § 1983.”). The

Court next considers the viability of the claims alleged against

the Officer and Levy Defendants.

II. Plaintiff’s Federal Claims Against Officer and Levy

Defendants

A. Applicability of the Favorable Termination Rule

Plaintiff brings federal claims under 42 U.S.C. § 1983 against

the remaining Defendants for false arrest, malicious prosecution,

excessive force, fabrication of evidence and conspiracy thereto,

and deprivation of medical care. Because convictions were entered

against Plaintiff in state court in relation to some of the

underlying events, the favorable termination rule requires

dismissal of any § 1983 claims that imply the invalidity of those

convictions. Heck v. Humphrey, 512 U.S. 477, 487 (1994). The

“[a]pplication of these principles requires the [C]ourt to examine

the relationship between the criminal conviction[s] and each of

the plaintiff’s civil claims.” Jackson v. Suffolk Cnty. Homicide

Bureau, 135 F.3d 254, 256 (2d Cir. 1998).

1. Count One: False Arrest

Defendants correctly argue that Plaintiff’s false arrest

claim is barred by Heck. (City Mem. at 6.) Under New York law,

Plaintiff must allege the absence of probable cause to state a

claim for false arrest. Singer v. Fulton Cnty. Sheriff, 63 F.3d

110, 114, 118-19 (2d Cir.1995), cert. denied, 517 U.S. 1189 (1996);

Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). He is,

however, precluded from doing so because his convictions for

manslaughter and assault conclusively establish the existence of

probable cause. Cameron v. Fogarty, 806 F.2d 380, 388 (2d

Cir.1986), cert. denied, 481 U.S. 1016 (1987). The existence of

probable cause to arrest on any one charge forecloses false arrest

claims on all charges. Jaegly v. Couch, 439 F.3d 149, 152 (2d

Cir. 2006). Plaintiff’s false arrest claim would thus necessarily

imply the invalidity of his state criminal proceedings and is

dismissed with prejudice. Singer, 63 F.3d at 118-19; Jean-Laurent

v. Hennessy, 2008 WL 3049875, at *8-9 (E.D.N.Y. Aug. 1, 2008) (Heck

bars false arrest claim); Boston Ret. Sys. v. Telefonaktiebolaget

LM Ericsson, 2024 WL 4023842, at *6 (2d Cir. 2024) (summary order)

(“[F]urther amendments would have been futile given the inability

to cure the legal defects.”); Stegemann v. United States, 132 F.4th

206, 210 (2d Cir. 2025) (same).

2. Count Two: Malicious Prosecution

Unlike false arrest, claims for malicious prosecution proceed

on a charge-by-charge basis. Chiaverini v. City of Napoleon, Ohio,

602 U.S. 556, 562-63 (2024). In other words, Plaintiff could

successfully assert malicious prosecution as to one charge while

failing with respect to another. Id.; see also Posr v. Doherty,

944 F.2d 91, 100 (2d Cir. 1991). The Court finds that Plaintiff’s

malicious prosecution claim with respect to his manslaughter and

assault charges are Heck-barred, but that his claim with respect

to robbery is not.

“Malicious prosecution suits require, as an element of the

offense, ‘the termination of the proceeding in favor of the

accused.’” Poventud v. City of New York, 750 F.3d 121, 130 (2d

Cir. 2014) (quoting Smith-Hunter v. Harvey, 734 N.E.2d 750, 752

(N.Y. 2002)). Here, Plaintiff pleaded guilty to first degree

assault and second degree manslaughter, (see ECF No. 111-1 at 1),

and the state appellate court denied Plaintiff’s application to

appeal his convictions, see People v. Perkins, 2023 WL 3914881

(N.Y. App. Div. June 9, 2023). Success on his malicious

prosecution claims with respect to manslaughter and assault would

require those charges to have terminated in his favor, which they

did not. Plaintiff’s malicious prosecution claims as to

manslaughter and assault are thus barred by Heck and dismissed.

See O’Neal v. Spota, 2017 WL 118044, at *3 (E.D.N.Y. Jan. 12,

2017).

In contrast, success on a malicious prosecution claim for the

charge of robbery in the first degree does not necessarily imply

the invalidity of Plaintiff’s state court convictions for other

crimes. To be sure, the malicious prosecution as to the robbery

charge is inartfully pleaded. But the Complaint, liberally

construed, does allege that Plaintiff’s vehicle was impounded by

events set forth by “an emergency 911 call stating that an

individual had been robbed at gunpoint for a cellphone” and also

argues that the failure to voucher the cellphone means it “cannot

be deemed evidence for . . . probable cause.” (Compl. at 1, 5);

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“[H]owever inartfully

pleaded,” a pro se claim should not be dismissed unless it “appears

beyond doubt that the plaintiff can prove no set of

facts . . . which would entitle him to relief” (citation

omitted)). Although the ultimate disposition of the robbery charge

is unclear from the pleadings, the “favorable termination” element

of malicious prosecution does not require the charge to have

resolved with an “affirmative indication of innocence,” and

instead merely requires that it “end[] without a conviction.”

Thompson v. Clark, 596 U.S. 36, 49 (2022). Plaintiff’s malicious

prosecution claim as to the first degree robbery charge is thus

not barred by Heck.

3. Count Three: Excessive Force

Plaintiff’s excessive force claim is not categorically Heck-

barred, though Plaintiff is precluded from pursuing certain

theories related to this claim. The usual presumption that an

“excessive force claim does not [] bear the requisite relationship

to the underlying conviction under Heck to require its dismissal”

is not straightforwardly applicable where, as here, Plaintiff’s

manslaughter conviction stems from the vehicular collision forming

the basis of his excessive force claims. Prioleau v. Caserta,

2012 WL 5389992, at *6 (E.D.N.Y. Sept. 12, 2012) (internal

quotations omitted). In particular, having pleaded guilty to

“recklessly caus[ing] the death of another person,” Plaintiff is

barred from arguing that the alleged ramming by police was the

sole cause of the bystander-motorist’s death. N.Y. Penal Law §

125.15(1); People v. Hussain, 221 N.Y.S.3d 746, 752 (N.Y. App.

Div. 2024) (a person “causes” the death of another when his conduct

is a “sufficiently direct cause” of that death). However, his

excessive force claim is not categorically Heck-barred because his

conviction does not require that his own reckless conduct be the

only cause of someone’s death. See Hussain, 221 N.Y.S.3d at 752.;

Hamlin v. McMahon, 2019 WL 6619342, at *5-7 (D. Conn. Dec. 5, 2019)

(“[A]lthough Heck bars many of the theories under which the

plaintiff asserts his excessive force claim, the Heck doctrine

does not foreclose a claim of excessive force in its entirety”

because “a finding that the defendant officers used excessive force

. . . [in] striking the plaintiff from behind . . . would not

invalidate his conviction” of “causing death by increasing the

speed of his motor vehicle to evade the police”). Plaintiff’s

plea allocution for manslaughter may contain statements about what

precisely caused the manslaughter and eventually reveal that his

excessive force claim is Heck-barred. But, at the motion to

dismiss stage, the Court may not yet consider the contents of the

plea allocution for “the truth of the matters asserted.” Glob.

Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d

Cir. 2006). Accordingly, Plaintiff’s excessive force claim

survives Heck.

4. Counts Four, Five, Six: Fabrication of Evidence,

Conspiracy to Fabricate Evidence, Deprivation of

Medical Care

Plaintiff’s fabrication of evidence, conspiracy to fabricate

evidence, and deprivation of medical care claims clearly do not

impugn the validity of his underlying convictions. First,

Plaintiff’s fabrication of evidence claims relate to the

unvouchered cellphone, which could have constituted evidence with

respect to the armed robbery but would have been irrelevant to his

manslaughter or assault conviction. The same is true for his

conspiracy to fabricate evidence claim. Accordingly, Plaintiff’s

fabrication of evidence claims are not Heck-barred, given that

there is no underlying state conviction for robbery.

Plaintiff’s deprivation of medical care claim is similarly

attenuated from his convictions. See Jackson v. Cuomo, 2022 WL

310154, at *9 (S.D.N.Y. Feb. 2, 2022) (Plaintiff’s procedural due

process claim under Fourteenth Amendment not barred by Heck);

Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014)

(“[M]any violations of constitutional rights, even during the

criminal process, may be remedied without impugning the validity

of a conviction.”) Plaintiff’s claims for malicious prosecution

for robbery, excessive force, fabrication of evidence, conspiracy

to fabricate evidence, and deprivation of medical care are not

barred by the favorable termination rule of Heck v. Humphrey.

B. Plaintiff’s Remaining Federal Claims

Although Counts Two through Six are not subject to Heck’s

favorable termination rule, all claims, except for excessive

force, must be dismissed for failure to state a plausible basis

for relief.

1. Count Two: Malicious Prosecution

To state a claim under § 1983 for malicious prosecution on

the robbery charge, Plaintiff must allege “(1) the initiation or

continuation of a criminal proceeding against plaintiff; (2)

termination of the proceeding in plaintiff’s favor; (3) lack of

probable cause for commencing the proceeding; and (4) actual malice

as a motivation for the defendant’s actions.” Dettelis v.

Sharbaugh, 919 F.3d 161, 163-64 (2d Cir. 2019) (internal quotations

omitted). In the Second Circuit, “initiation” means that the

defendant “play[ed] an active role in the prosecution, such as

giving advice and encouragement or importuning the authorities to

act.” Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir.

2010) (citing Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 217

(2d Cir. 2000)). A defendant does so when he “file[s] the charges”

or “prepare[s] an alleged false confession and forward[s] it to

prosecutors.” Manganiello, 612 F.3d at 163. The Complaint

adequately alleges that Defendant Joseph Solomon filed the felony

complaint, (Compl. at 4), but fails to allege any facts

demonstrating that any of the other remaining Defendants

“initiated” the prosecution. See McDaniel v. City of New York, 585

F. Supp. 3d 503, 517-18 (S.D.N.Y. 2022) (dismissing malicious

prosecution for failure to allege “initiation” of proceedings by

defendants), report and recommendation adopted, 2022 WL 874769

(S.D.N.Y. Mar. 24, 2022).

The claim for malicious prosecution must be dismissed for an

additional reason. Plaintiff fails to plead facts showing that

Defendants, including Defendant Solomon, both “lack[ed] . . .

probable cause for commencing the proceeding,” Dettelis, 919 F.3d

at 164, and acted with “actual malice,” Manganiello, 612 F.3d at

163-64. The latter deficiency is downstream of the former. In

the Second Circuit, a “lack of probable cause generally creates an

inference of malice.” See id. at 163 (citing Boyd v. City of New

York, 336 F.3d 72, 78 (2d Cir. 2003). “Probable cause, in the

context of malicious prosecution” requires “facts and

circumstances as would lead a reasonably prudent person to believe

the plaintiff guilty.” Boyd, 336 F.3d at 76 (citation omitted).

Conversely, a lack of probable cause can be shown through

allegations that defendants “became aware” of exculpatory evidence

or any “intervening facts” tending to contradict the probable cause

determination. Jackson v. Nassau Cnty., 552 F. Supp. 3d 350, 372-

73 (E.D.N.Y. 2021) (internal quotations omitted); Shabazz v.

Kailer, 201 F. Supp. 3d 386, 394 (S.D.N.Y. 2016).

The linchpin of Plaintiff’s malicious prosecution claim is

the alleged failure to voucher a cellphone. Notably, Plaintiff

does not allege that the cellphone was planted by any defendant to

manufacture probable cause for the robbery charge, or even that

the cellphone was his and, thus, not the stolen property giving

rise to the robbery investigation in the first instance. Instead,

the Complaint becomes exceedingly vague and unintelligible when

describing the unvouchered cellphone, or what exactly the

Defendants did or failed to do that states a constitutional

violation. Although the Court must give credit to the Plaintiff’s

well-pleaded factual allegations, there are no set of facts the

Court can cobble together to “nudge[]” the malicious prosecution

claim “across the line from conceivable to plausible.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, the

malicious prosecution claim is dismissed without prejudice.

2. Count Three: Excessive Force

As an initial matter, Plaintiff only alleges that the Levy

Defendants rammed into his vehicle, so he fails to plead an

excessive force claim with respect to the Officer Defendants.

Demosthene v. City of New York, 831 Fed. App’x 530, 535 (2d Cir.

2020) (summary order) (requiring allegations of personal

involvement to state a claim for excessive force); May v. Levy,

659 F. Supp. 3d 323, 337 (E.D.N.Y. 2023); (see Compl. at 3, 14;

Pl.’s Opp. at 1.) Those claims are thus dismissed without

prejudice.

As is well-established, “[t]he Fourth Amendment prohibits the

use of unreasonable and therefore excessive force by a police

officer in the course of effecting an arrest.” Tracy v.

Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citation omitted).

The officers’ conduct must be “objective[ly] reasonable,” the

assessment of which requires a “balancing [between] the nature and

quality of the intrusion on the plaintiff’s Fourth Amendment

interests against the countervailing governmental interests at

stake.” Id. (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d

113, 123 (2d Cir. 2004)). That balancing is guided by “at least

three factors: (1) the nature and severity of the crime leading to

the arrest, (2) whether the suspect poses an immediate threat to

the safety of the officer or others, and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by

flight.” Id. (citing Graham v. Connor, 490 U.S. 386, 395 (1989);

Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). This inquiry

is “intensely factual” and “generally best left for a jury to

decide.” Oakley v. Dolan, 980 F.3d 279, 284 (2d Cir. 2020); Ayers

v. Suffolk Cnty. Dist. Att'y Off., 2022 WL 4539580, at *4 (E.D.N.Y.

Sept. 28, 2022) (“Given the fact-specific nature of the inquiry on

an excessive force claim, such claims are often not amenable to

early resolution.” (internal quotations omitted)).

Defendants argue that the excessive force claims should be

dismissed because “Plaintiff’s own allegations establish that the

collision[] of the vehicles was objectively reasonable and

necessary in light of his admitted reckless driving.” (City Supp.

at 1.) But the Court finds no indication on the face of the

Complaint that Plaintiff was driving so recklessly that the alleged

ramming can only be found to be “objectively reasonable.” Graham,

490 U.S. at 399. Instead, the Complaint merely states that two

men in plainclothes approached him with their guns drawn, that he

subsequently drove away in fear, that the armed men continued to

follow him in an unmarked vehicle and then rammed into Plaintiff’s

car. (Compl. at 3.)

Defendants urge the Court to consider the “sworn criminal

complaint, attached to the pleadings” which “reveals that police

pursued Plaintiff with their lights and sirens activated” and that

Plaintiff was driving over “twenty-five miles per hour over the

posted speed limit.” (City Supp. at 4-5.) But documents, even

those attached to the Complaint, may only be used “to determine

what [they] state” and “not to prove the truth of their contents.”

Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (emphasis

omitted). “A plaintiff does not necessarily ‘adopt as true the

full contents of any document attached to a complaint or adopted

by reference.’” Pearson v. Gesner, 125 F.4th 400, 406-08 (2d Cir.

2025) (emphasis in original) (citing Gant v. Wallingford Bd. of

Edu., 69 F.3d 669, 674 (2d Cir. 1995). This is especially true

when such a document was “prepared by or for the defendant,”

because they may reflect “defendant’s version of contested

events . . . that are unlikely to have been adopted by the

plaintiff.” Id. (internal quotations omitted). The Court may

consider the contents of the criminal complaint only when the

Plaintiff makes allegations about “what” the criminal complaint

does or does not say. Roth, 489 F.3d at 510 (documents may only

be considered when plaintiffs “allege[] that the document

contains, or does not contain, certain statements”). Plaintiff

has not done so here, so the Court declines to consider the

contents of the criminal complaint for the “truth of the matters

asserted.” Id. at 509.2

The Court also declines to deem Plaintiff’s guilty plea for

second degree manslaughter--meaning “recklessly caus[ing] the

death of another person”--as dispositive to dismiss the excessive

force claim. N.Y. Penal Law § 125.15(1). The existence of

reckless conduct does not afford officers carte blanche to employ

any amount of force, and the Fourth Amendment still requires facts

showing that the force be “objectively reasonable.” See Graham,

490 U.S. at 399.

The Levy Defendants secondarily argue that they are entitled

to qualified immunity, which “shields officers from civil

liability so long as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” City of Tahlequah, Okla. v.

Bond, 595 U.S. 9, 12 (2021) (internal quotations omitted); (see

City Supp. at 708). In support, the Levy Defendants cite Scott v.

Harris, a Supreme Court case they argue is “nearly[] identical” to

the ramming here, given that police had “activated their lights

and sirens” while pursuing a suspect who “dr[ove] over twenty-five

miles over the speed limit.” (City Supp. at 8.) Defendants are

2 The Court similarly declines to consider the descriptions of Plaintiff’s

driving in Exhibit E of the Complaint. Staehr v. Hartford Fin. Servs. Grp.,

Inc., 547 F.3d 406, 425 (2d Cir. 2008) (courts may consider “fact that press

coverage . . . contained certain information, without regard to the truth of

their contents”(emphasis in original)).

correct that the pursuit at the center of Scott v. Harris featured

“blue lights flashing and sirens blaring” and a suspect who

“intentionally placed himself and the public in danger by

unlawfully engaging in the reckless, high-speed flight,” but such

facts have not yet been established in the instant case. 550 U.S.

372, 384 (2007) (considering the issue of qualified immunity on

summary judgment). The allegations on the face of the Complaint

are sufficient to state a claim for excessive force and dismissal

prior to further factual discovery would be premature. See Shamir

v. City of New York, 804 F.3d 553, 556-57 (2d Cir. 2015) (arrestee

adequately stated claim for use of excessive force where he alleged

that officer “intentionally tightened [zip-tie handcuffs]

excessively, causing injury to [arrestee’s] lower arms”); Ayers,

2022 WL 4539580, at *4. Accordingly, the Court denies the Levy

Defendants’ motion to dismiss the excessive force claim.

3. Counts Four, Five: Fabrication of Evidence and

Conspiracy to Fabricate Evidence

A plaintiff “may sue for denial of the right to a fair trial

based on a police officer's fabrication of information . . . when

the information fabricated is the officer’s own account of his or

her observations of alleged criminal activity, which he or she

then conveys to a prosecutor.” Garnett v. Undercover Officer C0039,

838 F.3d 265, 274 (2d Cir. 2016). As is relevant here, a claim

for fabrication of evidence with respect to one charge could be

sustained even if Plaintiff was “charged, detained, tried, and

convicted for a separate offense.” Barnes v. City of New York, 68

F.4th 123, 129-30 (2d Cir. 2023). When pleading a fabrication of

evidence claim, “a plaintiff must establish that ‘an (1)

investigating official (2) fabricate[d] information (3) that is

likely to influence a jury's verdict, (4) forward[ed] that

information to prosecutors, and (5) the plaintiff suffer[ed] a

deprivation of life, liberty, or property as a result.’”

Carruthers v. Colton, 153 F.4th 169, 189 (2d Cir. 2025) (quoting

Garnett, 838 F.3d at 279). “The fabrication element requires only

that the defendant knowingly make a false statement or omission.”

Id. (quoting Ashley v. City of N.Y., 992 F.3d 128, 143 (2d Cir.

2021)).

The Complaint falls short of the pleading requirements for

fabrication of evidence. Fatally, the complaint does not allege

that the Officer and Levy defendants fabricated evidence likely to

influence a jury’s verdict, or even that they manufactured the

evidence at all. Instead, Plaintiff alleges only that Defendants

failed to voucher the allegedly robbed cell phone, and that they

tampered with or destroyed unspecified physical evidence

concerning that phone. (See e.g., Compl. at 5-8 (alleging

Defendant Phelan conspired to “tamper[] with and destroy” evidence

“concerning an [unvouchered] cell phone which had been described

as being found in [vouchered] vehicle”).) Accordingly,

Plaintiff’s fabricated evidence claim is dismissed without

prejudice. The conspiracy to fabricate evidence claim is likewise

dismissed without prejudice for lack of a predicate constitutional

violation. Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d

Cir. 1995).

4. Count Six: Deprivation of Medical Care

The Due Process Clause of the Fourteenth Amendment

“require[s] the responsible government or governmental agency to

provide medical care to persons . . . who have been injured while

being apprehended by the police.” City of Revere v. Mass. Gen.

Hosp., 463 U.S. 239, 244 (1983).3 To state a claim for “deprivation

of adequate medical care,” Plaintiff must allege that the

deprivation was “sufficiently serious” and that the defendant

acted with a “sufficiently culpable state of mind.” Davis v.

McCready, 284 F. Supp. 3d. 108, 116 (S.D.N.Y. 2017).

Plaintiff alleges that he was “in and out of consciousness”

at the time of his arrest and that, post-arrest, he was held

“without medical treatment” for more than twenty-four hours.

(Compl. at 3-4.) Although the allegations clearly show that the

collision was catastrophic, Plaintiff fails to allege facts

3 “A pretrial detainee’s claim for deliberate indifference is evaluated under

the Due Process Clause of the Fourteenth Amendment rather than the Eighth

Amendment, as ‘pretrial detainees have not been convicted of a crime and thus

may not be punished in any manner—neither cruelly and unusually nor otherwise.’”

Davis v. McCready, 283 F. Supp. 3d 108, 116 (S.D.N.Y. 2017) (citing Darnell v.

Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)).

showing that the deprivation of medical care was “sufficiently

serious” and that he was inflicted by “a condition of urgency that

may result in degeneration or extreme pain.” Chance v. Armstrong,

143 F.3d 698, 702 (2d Cir. 1998) (citation omitted) (describing

standard for Eighth Amendment deprivation of medical care claim);

Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (claims for

deprivation of medical care arising under Eighth and Fourteenth

Amendments are evaluated using the same standard). Nor does

Plaintiff allege that the Officer or Levy Defendants “recklessly

failed to act with reasonable care . . . even though the

defendant . . . knew, or should have known, that the condition

posed an excessive risk to health or safety.” Maldonado v. Town

of Greenburgh, 460 F. Supp. 3d 382, 396 (S.D.N.Y. 2020) (citing

Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). Plaintiff’s

deprivation of medical care claim is dismissed without prejudice.

III. Plaintiff’s State Law Claim Against Officer and Levy

Defendants

The Court next turns to Plaintiff’s intentional infliction of

emotional distress claim. “Where state law claims are joined with

another claim over which federal courts have subject matter

jurisdiction and the state law claims arise out of a common nucleus

of operative fact, the district court has jurisdiction to hear the

state law claims.” Khan v. Costco Wholesale, Inc., 2001 WL

1602168, at *9 (E.D.N.Y. Dec. 13, 2001) (citing Robison v. Via,

821 F.2d 913, 925 (2d Cir. 1987)). Notably, the Court’s ability

to exercise its supplemental jurisdiction over all defendants

remains even though only the excessive force claim against the

Levy Defendants survives. Ciambriello v. Cnty. of Nassau, 292

F.3d 307, 325 (2d Cir. 2002); Briarpatch Ltd., L.P. v. Phoenix

Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004). In the instant

case, the facts underlying both Plaintiff’s federal claims and

intentional infliction of emotional distress claim are one and the

same. As such, the Court will exercise its supplemental

jurisdiction to consider Plaintiff’s state law claim. See Stapon

v. Riverhead Cent. Sch. Dist., 2021 WL 12319295, at *8 (E.D.N.Y.

Apr. 5, 2021).

1. Failure to File a Notice of Claim

As an initial matter, the Court notes that Plaintiff has

failed to plead that he served a timely Notice of Claim, which is

generally required when asserting claims against a municipal

entity or its employees. N.Y. Gen. Mun. Law § 50-e, 50-I; King v.

City of New York, 2019 WL 5653856, at *4-5 (E.D.N.Y. Mar. 28,

2019); see Hardy v. NYC Health & Hosp. Corp., 164 F.3d 789, 793

(2d Cir. 1999) (“[I]n a federal court, state notice-of-claim

statutes apply to state-law claims.” (emphasis omitted)).

Plaintiff’s failure to plead his adherence with § 50-e and 50-i

bars claims against the Defendants in their official capacities

outright, as well as in their individual capacities if the City is

required to indemnify them for their losses. Johnson v. Cnty. of

Nassau, 2014 WL 4700025, at *24 (E.D.N.Y. Sept. 22, 2014)

(requirements of § 50-e and 50-I are “not conditions precedent to

the commencement of an action against a [city employee] unless the

[city] is required to indemnify such person” (citations omitted)).

General Municipal Law § 50-k(3) mandates the City’s

indemnification when its employee’s liability (1) “arose from

conduct within the scope of his employment and in the discharge of

his duties,” as long as (2) “the employee was not in violation of

any rule or regulation of his agency” and (3) “the injury did not

result from intentional wrongdoing or recklessness on the part of

the employee.” Kavazanjian v. Rice, 2008 WL 5340988, at *6

(E.D.N.Y. Dec. 22, 2008) (citation omitted).

As to the first requirement, the Court finds that the Officer

and Levy Defendants were plainly acting within the scope of their

employment. In considering this question, the Court weighs factors

including “whether the act is one commonly done by such an

employee; the extent of departure from normal methods of

performance; and whether the specific act was one that the employer

could reasonably have anticipated.” Pizzuto v. City of Nassau,

239 F. Supp. 2d 301, 313 (E.D.N.Y. 2003) (internal quotations

omitted). Plaintiff alleges that Defendants’ misconduct arose

from their performance of official duties, including making

arrests and gathering evidence. See Dorsey v. City of Albany

Police Dep’t, 2016 WL 11605138, at *2-3 (N.D.N.Y. Apr. 13, 2016)

(defendant would be indemnified for conduct alleged to have

constituted excessive force because he was “on duty, making an

arrest with other police officers, and driving a police vehicle”).

However, the Court finds it premature to decide at this stage

whether the Defendants “w[ere] not in violation of any rule or

regulation of [their] agency” or that “the injury or damage” did

not result “from intentional wrongdoing or recklessness.” Gen.

Municipal Law § 50-k(3); Kavazanjian , 2008 WL 5340988, at *6.

Indeed, Plaintiff has alleged that a supervising officer at the

NYPD was in the process of calling off the pursuit and that the

ramming of his vehicle may have violated internal NYPD guidelines.

(Compl. at 5-6; see also Pl.’s Opp.). Furthermore, the tort, if

proven, “would, by definition,” reflect conduct “constitut[ing]

intentional wrongdoing.” Kavazanjian, 2008 WL 5340988, at *6

(citation omitted) (declining to dismiss intentional tort claims,

including intentional infliction of emotional distress, as

procedurally barred by plaintiff’s failure to file a Notice of

Claim); Jean-Laurent v. Hennessy, 2008 WL 3049875, at *19 (E.D.N.Y.

Aug. 1, 2008) (collecting cases). But see Perez v. Cnty of Nassau,

294 F. Supp. 2d 386, 391 (E.D.N.Y. 2003) (dismissing state law

claims for false arrest, malicious prosecution, assault, and

battery for failure to plead the filing of the notice of claim).

Accordingly, the Court finds that Plaintiff’s failure to file a

notice of claim does not procedurally bar his intentional

infliction of emotional distress claim.

2. Intentional Infliction of Emotional Distress

Defendants incorrectly argue that Plaintiff’s claim for

intentional infliction of emotional distress is duplicative of

other causes of action in his complaint and should be dismissed.

(City Mem. at 19.) Plaintiff brings no other state law tort

claims, so his claim cannot be duplicative of them. Moore v. City

of New York, 219 F. Supp. 2d 335, 339 (E.D.N.Y. 2002) (“The New

York Court of Appeals has strongly cautioned against allowing

emotional distress claims to be brought where other tort remedies

are available.” (emphasis added) (citing Fischer v. Maloney, 373

N.E.2d 1215 (1978))).

“Under New York law, a claim for intentional infliction of

emotional distress requires a showing of (1) extreme and outrageous

conduct; (2) intent to cause, or reckless disregard of a

substantial probability of causing, severe emotional distress, (3)

a causal connection between the conduct and the injury; and (4)

severe emotional distress.” Stuto v. Fleishman, 164 F.3d 820, 827

(2d Cir. 1999). Plaintiff has failed to allege sufficient facts

regarding each of these elements, including that the misconduct

was “so outrageous . . . as to go beyond all possible bounds of

decency . . . and utterly intolerable in a civilized society” or

that Defendants intended to cause him severe emotional distress.

Id. Accordingly, Plaintiff’s intentional infliction of emotional

distress claim is dismissed without prejudice.

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss are

GRANTED IN PART and DENIED IN PART as follows.

(1) Counts One through Seven are DISMISSED WITH PREJUDICE as

to Defendants Michelle Kaszuba, Crystal Igneri, Denise

Tirino;

(2) Count One (False Arrest) is DISMISSED WITH PREJUDICE as

to Defendants Joseph Solomon, Emanuel Vizzotti, Salvatore

Taorimina, Charles Lovett, Kevin Phelan, Joseph Manzella,

Kevin Hammerschlog, Matthew Levy, and Paul Kearon;

(3) Counts Two (Malicious Prosecution), Four (Fabrication of

Evidence), Five (Conspiracy to Fabricate Evidence), Six

(Deprivation of Medical Care), and Seven (Intentional

Infliction of Emotional Distress) are DISMISSED WITHOUT

PREJUDICE as to Defendants Joseph Solomon, Emanuel Vizzotti,

Salvatore Taorimina, Charles Lovett, Kevin Phelan, Joseph

Manzella, Kevin Hammerschlog, Matthew Levy, and Paul Kearon;

(4) Count Three (Excessive Force) is DISMISSED WITHOUT

PREJUDICE as to Defendants Joseph Solomon, Emanuel Vizzotti,

Salvatore Taorimina, Charles Lovett, Kevin Phelan, Joseph

Manzella, Kevin Hammerschlog;

(5) Count Three (Excessive Force) proceeds as to Defendants

Matthew Levy and Paul Kearon.

Defendants are ordered to serve Plaintiff and note service on

the docket by close of business on February 26, 2026. On or before

March 27, 2026, Plaintiff may file an amended complaint addressing

the deficiencies identified herein with respect to any claims

dismissed without prejudice, consistent with this Opinion.

Failure to file an amended complaint by that date will result in

dismissal of those claims with prejudice and without further leave

to amend.

So ordered.

Dated: February 25, 2026

Brooklyn, New York b “4 _

Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

32