Kukaj

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ISMET KUKAJ,

Plaintiff, OPINION & ORDER

-against- 24-CV-08942 (PMH)

TOWN OF EASTCHESTER, et al.,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Ismet Kukaj (“Plaintiff”), proceeding pro se, brings this action against the Town of

Eastchester, Sergeant Robert Krause, Sergeant Richard Biagi, Officer John Blume i/s/h/a Officer

Blume, Officer Brian Donovan, and Officer Michael Pascale i/s/h/a Officer M. Pascale

(collectively, “Defendants”), alleging violations of his constitutional rights and state law. (Doc. 23,

“Am. Compl.”).1 Plaintiff presses claims for: (1) negligent infliction of emotional distress; (2)

unlawful seizure of property; (3) right to record and retaliation in violation of the First Amendment

under 42 U.S.C. § 1983; (4) unlawful arrest in violation of the Fourth Amendment under 42 U.S.C.

§ 1983; (5) excessive force in violation of the Fourth and Fourteenth Amendments under 42 U.S.C.

§ 1983; (6) failure to intervene in violation of 18 U.S.C. § 242 and 42 U.S.C. § 1983; (7) malicious

prosecution in violation of the Fourth Amendment under 42 U.S.C. § 1983; and (8) Monell liability.

(See Am. Compl.).2

1 Citations to specific pages of the Amended Complaint and other filings on the docket correspond to the

pagination generated by ECF.

2 Plaintiff, in the Amended Complaint, states for each of his first seven claims for relief that Defendants

“deprived [him] of the rights and immunities guaranteed by the United States Constitution as well as the

Constitution of the State of New York.” (Am. Compl. ¶¶ 31, 37, 45, 48, 50, 57, 61). The Court, in the

Opinion & Order dismissing the original complaint, granted Plaintiff “leave to file an amended complaint

asserting only claims under 42 U.S.C. § 1983 for violations of the First Amendment, unlawful arrest,

excessive force, failure to intervene, malicious prosecution, and Monell liability; and state law claims for

negligent infliction of emotional distress and unlawful seizure of property.” (Doc. 22, “May 15, 2025

Opinion & Order” at 8). Consequently, to the extent Plaintiff attempts to assert claims inconsistent with the

Before the Court is Defendants’ motion to dismiss the Amended Complaint in its entirety

pursuant to Fed. R. Civ. P. 12(b)(6) filed on July 21, 2025. (See Doc. 26; Doc. 27; Doc. 28 (“Def.

Br.”)). Plaintiff filed his opposition on August 12, 2025 (Doc. 29, “Pl. Br.”), and the motion was

fully briefed with the filing of Defendants’ reply on August 29, 2025 (Doc. 34, “Reply”).

For the reasons set forth below, Defendants’ motion to dismiss is granted in part and denied

in part.

BACKGROUND

For the purposes of deciding the pending motion, the Court accepts as true all the well-pled

factual allegations in the Amended Complaint.3

Plaintiff, in the Amended Complaint, alleges that he was wrongfully detained and arrested

by Defendants while visiting the owner of an establishment in Eastchester, New York. (See Am.

Court’s May 15, 2025 Opinion & Order, such claims are dismissed. See Palm Beach Strategic Income, LP

v. Salzman, 457 F. App’x 40, 43 (2d Cir. 2012) (“District courts in this Circuit have routinely dismissed

claims in amended complaints where the court granted leave to amend for a limited purpose and the plaintiff

filed an amended complaint exceeding the scope of the permission granted.”).

3 Plaintiff attaches a number of documents to his opposition brief. (See Pl. Br. Exs. A-J). Namely, Plaintiff

attaches what he purports to be a certificate of disposition from Eastchester Town Court, correspondence

between Plaintiff and the Town of Eastchester regarding a freedom of information request submitted by

Plaintiff, a police report from Plaintiff’s January 26, 2023 arrest, and correspondence regarding a civilian

complaint submitted by Plaintiff to the Eastchester Police Department. (See id.). Plaintiff also asserts a host

of new factual allegations in his opposition related to these documents including that the Eastchester Police

Department has not responded to certain of Plaintiff’s letters and denied Plaintiff certain discovery. (See,

e.g., id. at 1-5). Given the liberality afforded pro se litigants, it is appropriate to consider new allegations in

a pro se plaintiff’s opposition to a motion to dismiss where they are consistent with the allegations contained

in the pleading. See Vail v. City of New York, 68 F. Supp. 3d 412, 427 (S.D.N.Y. 2014). However, the new

factual allegations contained in Plaintiff’s opposition are not consistent with the allegations in the Amended

Complaint, and the additional documents attached to Plaintiff’s opposition are not referred to in the

Amended Complaint, “integral” to the Amended Complaint, or otherwise helpful in deciding the present

motion. See Heckman v. Town of Hempstead, 568 F. App’x 41, 43 (2d Cir. 2014) (“[T]he Court is entitled

to consider facts alleged in the complaint and documents attached to it or incorporated in it by reference,

documents ‘integral’ to the complaint and relied upon in it, and facts of which judicial notice may properly

be taken under Rule 201 of the Federal Rules of Evidence.”). Accordingly, in deciding this motion, the

Court does not consider the new factual allegations raised in or the documents attached to Plaintiff’s

opposition.

Compl. ¶¶ 16-22). Specifically, Plaintiff alleges that on January 26, 2023, at approximately 1:30

a.m., he drove to Sea Flame Steakhouse in Eastchester to “meet with the owner of the

establishment.” (Id. ¶¶ 16-17). When Plaintiff arrived at Sea Flame Steakhouse, multiple police

vehicles were parked outside. (Id. ¶ 17). Plaintiff, upon exiting his vehicle, was approached by

Defendants Blume, Pascale, and a third, unidentified police officer. (Id.). These three officers

searched Plaintiff, and Plaintiff subsequently consented to a search of his car. (Id.). Defendant

Krause and another unidentified officer then arrived and Defendants Blume, Pascale, and the first

unidentified officer “became increasingly more aggressive” and got “in [Plaintiff’s] face.” (Id.).

Defendant Krause proceeded to seize Plaintiff’s cell phone and, after Plaintiff threatened

to file a complaint against the officers, arrested Plaintiff. (Id. ¶¶ 18-22). Defendant Krause

informed Plaintiff that he was being recorded by the officers’ body cameras. (Id. ¶ 18). Plaintiff,

in response, took out his cell phone and informed the officers of his intent to record them. (Id.).

“Sergeant Krause immediately removed the phone from [Plaintiff’s] hands and confiscated it.”

(Id.). Plaintiff requested the return of his cell phone, but the officers refused. (Id.). Plaintiff then

stated that he planned to “file a complaint against them with the Attorney General and the

Westchester District Attorney’s Office.” (Id.). After Plaintiff made this statement, Defendant

Krause handcuffed and detained Plaintiff. (Id.). Defendant Krause placed Plaintiff in the back of a

police car where Plaintiff remained for one hour. (Id. ¶ 19). Defendant Krause stated that he was

“locking [Plaintiff] up for cursing out my police officers.” (Id. ¶ 21).

After an hour in the police car, Plaintiff was informed that he would be released. (Id. ¶ 22).

However, Plaintiff “demanded an apology,” or else he “would file the complaint with the Attorney

General and the Westchester District Attorney’s Office.” (Id.). The officers attempted “to coerce

[Plaintiff] to forego filing any complaints against them in exchange for them dropping the charges

against [him].” (Id.). Plaintiff did not agree to forego filing a complaint against the officers, and

Plaintiff was arrested and taken to the police station. (Id.). Plaintiff had not, up to that point, been

informed of the charges against him. (Id.).

At the police station, Plaintiff was finally informed of the charges against him: menacing

and disorderly conduct. (Id. ¶ 23). Plaintiff was also informed that the wife of the owner of Sea

Flame Steakhouse had made accusations against a guest. (Id. ¶ 24). Plaintiff alleges that Officer

Brian Donovan, “the original arresting officer,” filed a “report despite never interviewing the

alleged Complainant,” the Sea Flame Steakhouse owner’s wife. (Id.). Furthermore, “the

Complainant never identified [Plaintiff] as the guest she complained against.” (Id.). Plaintiff also

alleges that “the Complainant was intoxicated at the time she made the accusations.” (Id.). The

Complainant allegedly came to the police station to withdraw her complaint, while still intoxicated,

four hours after Plaintiff was arrested. (Id.). Plaintiff alleges that he was detained for over six

hours. (Id. ¶ 26). Plaintiff was ultimately charged with disorderly conduct but not menacing. (Id.

¶ 25).

Plaintiff further alleges that Defendant Pascale issued Plaintiff a parking ticket on March

15, 2023 at 2:31 a.m. for parking his car overnight outside his house despite there being no signs

in the vicinity indicating that overnight parking is not permitted. (Id. ¶ 28). Plaintiff alleges that,

as a result of these incidents, he has “sought medical advice from licensed doctors and [has] been

prescribed medication to manage and treat major depressive disorders such as depression, panic

disorder, post-traumatic stress disorder, and social anxiety disorder.” (Id. ¶ 29).

STANDARD OF REVIEW

A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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 claim is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). The factual allegations pled “must

be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences

are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53

(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and

‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556

U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and

conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to less

stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429 U.S. 97,

106 (1976). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading

requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency of a pro

se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v. U.S. Dep’t

of Just., 218 F. Supp. 2d 357, 371 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intell. Agency, 953

F.2d 26, 28 (2d Cir. 1991)). However, while “[p]ro se complaints are held to less stringent standards

than those drafted by lawyers, even following Twombly and Iqbal,” dismissal is “appropriate where

a plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v. Westchester

Cnty., No. 12-CV-06718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (citations omitted); see

also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a

court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable

to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” (internal quotation marks omitted)). Therefore, while

the Court must “draw the most favorable inferences that [a plaintiff's] complaint supports, [it]

cannot invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. The

Court does, however, have a duty to interpret “the pleadings of a pro se plaintiff liberally and

interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe, 174

F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).4

ANALYSIS

I. Plaintiff’s State Law Claims Against the Town of Eastchester

Defendants argue that Plaintiff’s state law claims for negligent infliction of emotional

distress and unlawful seizure of property against the Town of Eastchester must be dismissed as the

4 Defendants, in their moving brief, argue that the Amended Complaint should “not be afforded the special

solicitude afforded to pleadings prepared by pro se litigants as it appears to have been drafted with the

assistance of counsel.” (Def. Br. at 13). When pro se submissions are ghostwritten by an attorney, those

submissions are not afforded “the special consideration which the courts customarily grant to pro se

parties.” Spira v. J.P. Morgan Chase & Co., 446 F. App’x 20, 22 n.1 (2d Cir. 2012) (quoting Holtz v.

Rockefeller & Co, Inc., 258 F.3d 62, 82 n.4 (2d Cir. 2001)). However, the Court cannot conclusively

determine that the Amended Complaint was ghostwritten by an attorney and, thus, affords the Amended

Complaint the special solicitude afforded to pro se submissions. See West v. City of Hartford, No. 23-CV-

01020, 2024 WL 2113076, at *2 n.1 (D. Conn. May 10, 2024) (“While the quality of Plaintiff’s opposition

brief was better than the Court has received from other pro se litigants, it cannot conclude, on the record

before it, that it was necessarily drafted with the assistance of an attorney.”).

Court already dismissed these claims with prejudice. (Def. Br. at 14). Plaintiff’s claim for negligent

infliction of emotional distress is pressed against “all defendants”; Plaintiff’s claim for unlawful

seizure of property is pressed against the “individual defendants,” but the paragraphs

corresponding to this claim refer to Defendants collectively. (Am. Compl. at 7). Since the Court

already dismissed these claims against the Town of Eastchester with prejudice (see May 15, 2025

Opinion & Order at 5-6, 8), to the extent Plaintiff pleads claims against the Town of Eastchester

for negligent infliction of emotional distress and unlawful seizure of property, such claims are

dismissed.

II. Personal Involvement of Defendant Biagi

Defendants argue that Plaintiff fails to allege the personal involvement of Defendant Biagi

in any alleged constitutional violations and, thus, all claims against Defendant Biagi must be

dismissed. (Def. Br. at 17-18). The Court agrees.

“[A]s a threshold matter, ‘[t]o establish a § 1983 claim, a plaintiff must show the

defendants’ personal involvement in the alleged constitutional violation.’” Jackson v. Annucci, No.

20-CV-02008, 2021 WL 2581340, at *5 (S.D.N.Y. June 23, 2021) (second alteration in original)

(quoting Boley v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017)). “Failure to allege a defendant’s

personal involvement renders a ‘complaint . . . “fatally defective” on its face.’” Id. (alteration in

original) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987)). Moreover, “[i]t

is well-settled that ‘where the complaint names a defendant in the caption, but [contains] no

allegations indicating how the defendant violated the law or injured the plaintiff, a motion to

dismiss the complaint in regard to that defendant should be granted.’” Taylor v. City of New York,

953 F. Supp. 95, 98-99 (S.D.N.Y. 1997) (first alteration in original) (quoting Thomas v. Beth Israel

Hosp., Inc., 710 F. Supp. 935, 942 (S.D.N.Y. 1989)); see also Cipriani v. Buffardi, No. 06-CV-

00889, 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) (citing Gonzalez v. City of New York, No.

97-CV-02246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)) (“Dismissal is appropriate where

a defendant is listed in the caption, but the body of the complaint fails to indicate what the

defendant did to the plaintiff.”).

The Amended Complaint makes no allegations specific to Defendant Biagi. (See Am.

Compl.). Defendant Biagi is named in the caption of the Amended Complaint, and the Amended

Complaint states that Defendant Biagi is, “[u]pon information and belief . . . [a] resident[] of

Westchester County.” (Id. ¶ 13). This is insufficient to allege the personal involvement of

Defendant Biagi in any of Plaintiff’s claims. See Taylor, 953 F. Supp. at 99. Accordingly, all claims

against Defendant Biagi are dismissed.

III. First Claim for Relief: Negligent Infliction of Emotional Distress

Defendants, with respect to Plaintiff’s negligent infliction of emotional distress claim,

argue that Plaintiff fails to plead: (1) extreme and outrageous conduct; and (2) a duty owed to him

by Defendants, let alone a breach of any duty, which is required to plead a negligent infliction of

emotional distress claim under a direct duty theory. (Def. Br. at 15-16). The Court agrees.

To state a claim for negligent infliction of emotional distress under New York law, Plaintiff

must plead: “(1) extreme and outrageous conduct; (2) a causal connection between the conduct

and the injury; and (3) severe emotional distress.” Truman v. Brown, 434 F. Supp. 3d 100, 122

(S.D.N.Y. 2020) (quoting Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 297 (S.D.N.Y. 2015)).

In addition to satisfying those three elements, Plaintiff must also allege “facts making out one of

three ‘theories’: (1) a bystander theory, (2) a direct duty theory, or (3) a special circumstances

theory.” Id. at 122-23 (citing Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir. 2000)). The bystander

theory, premised on “witnessing the death or serious bodily injury of a member of [one’s]

immediate family,” id. at 123 (quoting Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996)),

does not apply here. The special circumstances theory, which has only been recognized in “limited

contexts,” such as a hospital “negligently informing an individual that her parent had died,” id.,

also does not apply here. The only theory which could apply to Plaintiff’s claim is the direct duty

theory, which requires Plaintiff to allege that he “suffer[ed] an emotional injury from defendant’s

breach of a duty which unreasonably endangered [his] own physical safety.” Id. (quoting Mortise,

102 F.3d at 696).

The conduct Plaintiff complains of—Defendants “continually being in his face,”

handcuffing him, placing him in a police vehicle, and arresting him—does not constitute

“outrageous conduct.” See Berrio v. City of New York, No. 15-CV-09570, 2017 WL 118024, at *6

(S.D.N.Y. Jan. 9, 2017) (“[C]ourts in this Circuit have dismissed claims based on unlawful arrests

as insufficiently ‘outrageous’ or ‘extreme.’”). Plaintiff, in the Amended Complaint, also does not

allege any duty owed to him by the Defendant officers to state a claim for negligent infliction of

emotional distress under a direct duty theory. See Green, 96 F. Supp. 3d at 299 (“Plaintiffs have

alleged no such duty that the Defendant Police Officers specifically owed them, and therefore they

fail to state a claim under the direct duty theory.”).

Accordingly, Plaintiff’s claim for negligent infliction of emotional distress is dismissed.

IV. Second Claim for Relief: Unlawful Seizure of Property

Defendants argue that Plaintiff’s unlawful seizure of property claim fails because Plaintiff:

(1) does not plead the personal involvement of Defendants Blume, Pascale, or Donovan; and (2)

Defendant Krause had probable cause or, in the alternative, qualified immunity to arrest Plaintiff.

(Def. Br. at 19-20). Defendant Krause argues that he was “locking [Plaintiff] up for cursing out

my police officers,” which constitutes disorderly conduct and, thus, Defendant was authorized to

seize Plaintiff’s cell phone incident to his arrest. (Id.at 21).

“A ‘seizure’ of property occurs when there is some meaningful interference with an

individual’s possessory interest in that property.” McCrae v. Town of Brookhaven, 759 F. Supp. 3d

372, 390 (E.D.N.Y. 2024) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). However,

“a search incident to an arrest based on probable cause ‘is a reasonable intrusion under the Fourth

Amendment’ and ‘requires no additional justification.” Qing You Li v. City of New York, No. 16-

CV-00174, 2018 WL 6251339, at *4 (E.D.N.Y. Nov. 28, 2018) (quoting United States v. Koron,

101 F.3d 682, at *2 (2d Cir. 1996)). “An officer has probable cause to arrest when in possession of

facts sufficient to warrant a prudent person to believe that the suspect had committed or was

committing an offense.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (first

citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975); and then citing O’Neill v. Town of Babylon, 986

F.2d 646, 650 (2d Cir. 1993)).

Plaintiff does not plead any facts that show Defendants Blume, Pascale, or Donovan were

involved in the seizure of his cell phone. Plaintiff alleges that Defendants Blume and Pascale were

present when Plaintiff arrived at Sea Flame Steakhouse and were “in his face.” (Am. Compl. ¶ 17).

This is insufficient to allege these Defendants’ personal involvement in the seizure of his cell

phone. See, e.g., Snead v. City of New York, 463 F. Supp. 3d 386, 398 (S.D.N.Y. 2020) (“An

officer’s mere presence at the scene of a stop or arrest generally does not constitute sufficient

personal involvement . . . .”); Arbuckle v. City of New York, No. 14-CV-10248, 2016 WL 5793741,

at *13 (S.D.N.Y. Sept. 30, 2026) (“Simply being present at the scene of an arrest does not suffice

for personal involvement.”). Likewise, Plaintiff alleges that Defendant Donovan was “the original

arresting officer” and “filed the report,” (Am. Compl. ¶ 24), but does not allege anywhere in the

Amended Complaint that Defendant Donovan was actually present at the scene of his arrest.5 Thus,

Plaintiff’s unlawful seizure of property claim is dismissed as to Defendants Blume, Pascale, and

Donovan.

Defendants argue that Defendant Krause had probable cause to seize Plaintiff’s cell phone

incident to his arrest because, as alleged in the Amended Complaint, Defendant Krause stated that

he was “locking [Plaintiff] up for cursing out my police officers” which constitutes disorderly

conduct under New York law. (Def. Br. at 21-22). Plaintiff, however, does not allege that he

actually “cursed out” any officers nor that Defendant Krause actually believed his own statement

to be true. (See Am. Compl.). The Court also notes that Plaintiff alleges that Defendant Krause

seized Plaintiff’s cell phone prior to his arrest and Defendant Krause initiated Plaintiff’s arrest only

after Plaintiff threatened to file a complaint against the officers. (Id. ¶ 18). Accordingly, Defendant

Krause’s statement that he was arresting Plaintiff for “cursing out [his] police officers” does not

support a finding that Defendant Krause was “in possession of facts sufficient to warrant a prudent

person to believe that the suspect had committed or was committing an offense.” Ricciuti, 124 F.3d

at 128. Thus, Plaintiff’s unlawful seizure of property claim does not fail as against Defendant

Krause on the basis that Defendant Krause had probable cause to arrest Plaintiff.

Defendants further argue that Defendant Krause’s actions are protected by the doctrine of

qualified immunity. (Def. Br. at 20). While qualified immunity is ordinarily an affirmative defense

5 Plaintiff’s assertion that Defendant Donovan was the “original arresting officer” is inconsistent with the

more specific factual assertions in the Amended Complaint that Defendant Krause actually handcuffed and

arrested Plaintiff. (Compare id. ¶ 24, with id. ¶ 18). The Second Circuit “has recognized an exception to the

rule that a court must accept all factual assertions as true when attenuated allegations supporting the claim

are contradicted by more specific allegations in the Complaint or when a claim is based on wholly

conclusory and inconsistent allegations.” Grant v. Cnty. of Erie, 542 F. App’x 21, 23 (2d Cir. 2013).

Accordingly, the Court does not accept Plaintiff’s attenuated assertion that Defendant Donovan was “the

original arresting officer,” as it is contradicted by the more specific factual assertions in the Complaint that

Defendant Krause was the original arresting officer.

asserted in an answer, a defendant can properly raise a qualified immunity defense in a pre-answer

12(b)(6) motion to dismiss. McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). A 12(b)(6)

motion based on qualified immunity may be granted if “the facts supporting the defense appear on

the face of the complaint.” Hyman v. Abrams, 630 F. App’x 40, 42 (2d Cir. 2015) (quoting

McKenna, 386 F.3d at 435-36). A defendant bears the burden of establishing that he is entitled to

qualified immunity. Gardner v. Murphy, 613 F. App’x 40, 41 (2d Cir. 2015) (citing Vincent v.

Yelich, 718 F.3d 157, 166 (2d Cir. 2013)). Consequently, when a defendant raises a qualified

immunity defense in a 12(b)(6) motion to dismiss, the defendant must accept that “the plaintiff is

entitled to all reasonable inferences from the facts alleged, not only those that support his claim,

but also those that defeat the immunity defense.” Hyman, 630 F. App’x at 42 (quoting McKenna,

386 F.3d at 436). Thus, “[a]t the motion to dismiss stage, the qualified immunity defense ‘faces a

formidable hurdle . . . and is usually not successful’ because it is the defendant that must plead and

prove the defense.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (second alteration

in original) (quoting Estate of Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d Cir.

2020)).

The doctrine of qualified immunity protects officials from liability for civil damages when,

“(a) the defendant’s action did not violate clearly established law, or (b) it was objectively

reasonable for the defendant to believe that his action did not violate such law.” Garcia v. Does,

779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir.

2007)). “A Government official’s conduct violates clearly established law when, at the time of the

challenged conduct, the contours of a right are sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Almighty Supreme Born Allah v.

Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). If

an official’s belief that his or her action does not violate clearly established law is “objectively

reasonable,” he or she is shielded from liability by qualified immunity. Cooper v. City of New

Rochelle, 925 F. Supp. 2d 588, 608 (S.D.N.Y. 2013).

Defendants argue that Defendant Krause is entitled to qualified immunity because his

“conduct was reasonable . . . based upon [Plaintiff’s] conduct, cursing out the Officers, and the

report of the complaining witness . . . .” (Def. Br. at 23). However, the Amended Complaint does

not allege that Plaintiff in fact cursed out any officers. (See Am. Compl.). Nor does the Amended

Complaint sufficiently allege when Defendants became aware of the accusations made by the Sea

Flame Steakhouse owner’s wife or the nature of the accusations to allow the Court to determine

that it was “objectively reasonable” for Defendant Krause “to believe that his action did not

violate” clearly established law. Garcia, 779 F.3d at 92 (quoting Russo, 479 F.3d at 211). The

Amended Complaint alleges only that Plaintiff was made aware of these accusations upon arrival

at the police station, well after Defendant Krause seized his cell phone. (See Am. Compl. ¶ 24).

Thus, it is unclear, as alleged in the Amended Complaint, if Defendant Krause was aware that an

accusation had been made against a guest of Sea Flame Steakhouse or that Defendant Krause

reasonably believed that Plaintiff was that guest at the time he arrested Plaintiff. Accordingly, the

Court cannot find at this juncture that Defendant Krause is protected by qualified immunity.6

6 The Court notes that Plaintiff attaches as an exhibit to his opposition what appears to be police reports

from the incident which led to Plaintiff’s arrest. (See Def. Br. Ex. C). Defendant Krause, in these documents,

purportedly writes that he was responding to a 911 call and interviewed an eyewitness who stated that

Plaintiff was in a physical altercation and in possession of a firearm. (See id. at 28-29). These facts, if true,

would strongly support a finding of probable cause or, at a minimum, qualified immunity to arrest Plaintiff.

See Goldberg v. Town of Glastonbury, 453 F. App’x 40, 42 (2d Cir. 2011); Corsini v. Bloomberg, 26 F. Supp.

3d 230, 241 (S.D.N.Y. 2014). However, the Court is constrained from considering these documents on the

instant motion. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2d Cir. 1995) (stating that a plaintiff

does not necessarily “adopt as true the full contents of any document attached to a complaint or adopted by

reference.”).

V. Third Claim for Relief: First Amendment Right to Record and Retaliation

Defendants argue that Plaintiff fails to state a claim for violations of his First Amendment

rights because: (1) Plaintiff does not sufficiently allege the personal involvement of Defendants

Blume, Pascale, or Donovan; (2) Plaintiff’s First Amendment rights were not chilled; and (3)

Defendant Krause had probable cause or, at the very least, qualified immunity to seize Plaintiff’s

cell phone incident to his arrest. (Def. Br. at 18; Reply at 4-5).

“Neither the Supreme Court nor Second Circuit precedent has squarely established that an

individual who is the subject of police activity has the right to record police performing their

official duties.” Adamides v. Warren, No. 21-CV-06613, 2022 WL 2788435, at *10 (W.D.N.Y. July

15, 2022) (quoting Picardo v. Torneo, No. 16-CV-01564, 2019 WL 4931353, at *4 (D. Conn.

2019)). However, several circuit courts and many district courts in this district that have addressed

this issue “concluded that the First Amendment protects the right to record police officers

performing their duties in a public space, subject to reasonable time, place and manner

restrictions.” Id. (quoting Higginbotham v. City of New York, 105 F. Supp. 3d 369, 379 (S.D.N.Y.

2015)); see also Reyes v. City of New York, No. 23-CV-06369, 2023 WL 7212192, at *5 (S.D.N.Y.

Nov. 2, 2023) (“[R]ecording police performing their official duties in public is protected under the

First Amendment.”).

To state a claim for First Amendment retaliation, a plaintiff must allege that: “(1) he has an

interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially

caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of

his First Amendment right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (citing

Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998)). Additionally, “private citizens claiming

retaliation for their criticism of public officials have been required to show that they suffered an

‘actual chill’ in their speech as a result.” Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir. 2011)

(citing Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)).

The Court agrees with Defendants that Plaintiff does not sufficiently plead the involvement

of Defendants Blume, Pascale, or Donovan in any alleged First Amendment violations stemming

from Plaintiff’s arrest. Indeed, Plaintiff, in the Amended Complaint, alleges that Defendant Krause

seized his cell phone and arrested Plaintiff after he threatened to file a complaint against the

officers, (Am. Compl. ¶ 18), but makes no similar allegations regarding Defendants Blume,

Pascale, or Donovan. Plaintiff does allege that, roughly two months after his arrest, Defendant

Pascale, for seemingly no reason, issued him a parking ticket. (Id. ¶ 28). However, Plaintiff does

not explain how receiving a parking ticket actually chilled the exercise of his First Amendment

rights. Zherka, 634 F.3d at 645. Plaintiff does not plead any actions taken by Defendants Blume or

Donovan in relation to his First Amendment claim. See Snead, 463 F. Supp. 3d at 398. Accordingly,

Plaintiff’s First Amendment claim is dismissed as to Defendants Blume, Pascale, and Donovan.

Defendants argue, with respect to Defendant Krause, that Defendant Krause had probable

cause to seize Plaintiff’s cell phone incident to his arrest and alternatively that Defendant Krause

is protected by the doctrine of qualified immunity. (Def. Br. at 20). Defendants also argue that

Plaintiff does not properly allege that Defendant Krause’s actions “chilled the exercise of his First

Amendment rights.” (Reply at 9). Generally, probable cause will defeat a First Amendment

retaliation claim. See Higginbotham v. Sylvester, 741 F. App’x 28, 31 (2d Cir. 2018); but see

Lozman v. City of Riviera Beach, 585 U.S. 87, 101 (2018) (“[Plaintiff] need not prove the absence

of probable cause to maintain a claim of retaliatory arrest against the City.”). However, probable

cause and qualified immunity do not warrant dismissal of Plaintiff’s First Amendment claim for

the same reasons that probable cause and qualified immunity do not warrant dismissal of Plaintiff’s

unlawful seizure of property claim. Accord Novak v. City of New York, No. 25-CV-03734, 2026

U.S. Dist. LEXIS 21521, at *28-30 (S.D.N.Y. Feb. 2, 2026) (denying motion to dismiss First

Amendment retaliation claim where Defendants did “not establish[] that they had probable cause

to arrest” and had “not even established that they had arguable probable cause to arrest.”).

Moreover, Plaintiff does plausibly allege that Defendant Krause chilled the exercise of his First

Amendment right to record by seizing his cell phone, preventing Plaintiff from recording the

officers in violation of Plaintiff’s “right to record police performing their official duties.”

Adamides, 2022 WL 2788435, at *10.

Accordingly, Plaintiff’s First Amendment claim is dismissed as to Defendants Blume,

Pascale, and Donovan, but will proceed against Defendant Krause.

VI. Fourth Claim for Relief: False Arrest

Defendants argue that Plaintiff’s false arrest claim fails because: (1) Plaintiff does not

sufficiently allege the personal involvement of Defendants Blume, Pascale, or Donovan; and (2)

Defendant Krause had probable cause or, in the alternative, qualified immunity to arrest Plaintiff.

(Def. Br. at 12-14).

To plead a claim for false arrest, a Plaintiff must allege sufficient facts to establish that:

“(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not

otherwise privileged.” Barkai v. Mendez, 629 F. Supp. 3d 166, 190 (S.D.N.Y. 2022) (quoting

Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)). “A confinement is privileged if

probable cause existed at the time of the arrest. Thus, a claim for false arrest must fail if probable

cause to arrest existed.” Id. (quoting Martinetti v. Town of New Hartford Police Dep’t, 112 F. Supp.

2d 251, 252 (N.D.N.Y. 2000)).

The Court agrees that Plaintiff does not sufficiently plead the personal involvement of

Defendants Blume, Pascale, and Donovan to state a claim for false arrest. While Defendants Blume

and Pascale were present for Plaintiff’s arrest, Plaintiff does not plead any involvement by these

defendants in the arrest. See, e.g., Rodriguez v. City of New York, 291 F. Supp. 3d 396, 410 (“There

is no evidence in the record that [defendant] identified Plaintiff; ordered his arrest; assisted others

in his arrest; touched, searched, or spoke to Plaintiff; processed any of his arrest paperwork; or had

any involvement whatsoever in – beyond physical proximity to – Plaintiff’s arrest.”). Plaintiff does

not even allege that Defendant Donovan was present at Sea Flame Steakhouse when Plaintiff was

arrested. (See Am. Compl.); see also Drayton v. City of New York, No. 17-CV-07091, 2020 WL

2615930, at *5 (E.D.N.Y. May 20, 2020) (dismissing false arrest claim where the defendant “was

absent from the scene when [Plaintiff] was arrested and apart from [the defendant’s] signature on

[Plaintiff’s] arrest paperwork, [the defendant] was uninvolved in [Plaintiff’s] arrest.”).

However, Plaintiff does plausibly plead a false arrest claim against Defendants Krause.

Defendants admit that Plaintiff satisfies the first three elements necessary for a false arrest claim

but argue that Plaintiff does not sufficiently plead his “confinement was not otherwise privileged.”

(Def. Br. at 21). Having already rejected Defendants’ argument that Defendant Krause had

probable cause to arrest Plaintiff, the Court cannot say that Plaintiff’s confinement was not

otherwise privileged or that Defendants Krause is entitled to qualified immunity at this stage.

Thus, Plaintiff’s false arrest claim is dismissed as to Defendants Blume, Pascale, and

Donovan, but will proceed against Defendant Krause.

VII. Fifth Claim for Relief: Excessive Force

Defendants next argue that Plaintiff’s excessive force claim should be dismissed because:

(1) Plaintiff fails to allege that Defendants Blume, Pascale, or Donovan used any force against

him; and (2) Plaintiff alleges only a de minimis use of force by Officer Krause. (Def. Br. at 23-24).

The Court agrees.

Plaintiff’s excessive force claim is “analyzed under the reasonableness standard of the

Fourth Amendment.” Basora v. City of Poughkeepsie, No. 22-CV-03300, 2025 WL 50322, at *3

(S.D.N.Y. Jan. 8, 2025) (citing Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019)).

Under that standard, “[p]olice officers’ application of force is excessive, in violation of the Fourth

Amendment, if it is objectively unreasonable ‘in light of the facts and circumstances confronting

them, without regard to the officers’ underlying intent or motive.’” Id. (quoting Maxwell v. City of

New York, 380 F.3d 106, 108 (2d Cir. 2004)). “[A] de minimis use of force will rarely suffice to

state a constitutional claim.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Hudson

v. McMillian, 503 U.S. 1, 10 (1992)).

The only force alleged in the Amended Complaint is that Defendant Krause handcuffed

Plaintiff. (See Am. Compl. ¶ 18). Defendant Krause simply placing handcuffs on Plaintiff, as

alleged in the Amended Complaint, is a de minimis use of force insufficient to support a claim for

excessive force especially given that Plaintiff does not even allege a resultant injury. See DiDonna

v. Maas, No. 22-CV-05417, 2024 WL 5202239, at *8 (S.D.N.Y. Dec. 23, 2024) (“In order to be

actionable, the injuries [from handcuffs] must be more than de minimis.” (citing Morgan v. City of

New York, No. 17-CV-06454, 2021 WL 2207002, at *5 (E.D.N.Y. Mar. 25, 2021)). Plaintiff also

alleges verbal harassment by Defendants Pascale and Blume. (See Am. Compl. ¶ 17). However,

“verbal harassment, absent ‘any appreciable injury,’ cannot support an excessive force claim.”

Gerard v. City of New York, 843 F. App’x 380, 382 (2d Cir. 2021) (citing Purcell v. Coughlin, 790

F.2d 263, 265 (2d Cir. 1986)).

Accordingly, Plaintiff’s excessive force claim is dismissed against all Defendants.

VIII. Sixth Claim for Relief: Failure to Intervene

Defendants argue that: (1) Plaintiff’s failure to intervene claim “is pled in a vague and

conclusory fashion and must be dismissed against all Defendants”; and (2) because Plaintiff fails

to plead any underlying constitutional violations, his failure to intervene claim should be

dismissed. (Def. Br. at 25-28).

“An officer may be liable for failure to intervene under Section 1983 where (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.” Werkheiser v. Cnty. of Broome, 655 F.

Supp. 3d 88, 108 (N.D.N.Y. 2023) (quoting Gerasimou v. Cillis, No. 15-CV-06892, 2022 WL

118748, at *5 (E.D.N.Y. Jan 12, 2022)) (citation modified). Moreover, a “failure to intervene claim

is contingent upon the disposition of the primary claims underlying the failure to intervene claim.”

Matthews v. City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012). A defendant “cannot

be liable for both the underlying constitutional deprivation and a failure to intervene to stop

themselves from committing that violation.” Buari v. City of New York, 530 F. Supp. 3d 356, 392

(S.D.N.Y. 2021).

Having already dismissed Plaintiff’s excessive force claim, Plaintiff does not state a claim

on a failure-to-intervene theory of liability against any Defendants. Matthews, 889 F. Supp. 2d at

443-44. As to the remaining extant claims against Defendant Krause, Plaintiff’s unlawful seizure

of property, First Amendment, and false arrest claims are, however, proceeding. Accordingly,

Plaintiff cannot assert these claims against Defendant Krause premised on a failure-to-intervene

theory of liability because, as alleged in the Amended Complaint, Defendant Krause participated

directly in the constitutional deprivations. Buari, 530 F. Supp. 3d at 392.

Defendants also argue that Plaintiff’s failure to intervene claim suffers from group

pleading. (Def. Br. at 27-28). The Court agrees. Plaintiff does not allege any actions taken, or that

should have been taken, by any specific Defendant when Defendant Krause took Plaintiff’s phone

and subsequently arrested him. Instead, “Plaintiff resorts to conclusory generalized allegations

asserting [his] failure to intervene claim against every single Defendant and refers to the numerous

defendants collectively. Such conclusory and generalized allegations do not give any of the

Defendants ‘fair notice of what [Plaintiff’s] claim is and the grounds upon which it rests.’” Ying Li

v. City of New York, 246 F. Supp. 3d 578, 619 (E.D.N.Y. 2017) (second alteration in original)

(quoting Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 212 (N.D.N.Y. 2008)); (see also, e.g.,

Am. Compl. ¶ 18 (“[N]either Sergeant Krause nor any of the other officers present restored the

cell phone to my possession.”)).

Accordingly, Plaintiff’s failure to intervene claim is dismissed.

IX. Seventh Claim for Relief: Malicious Prosecution

Defendants argue that Plaintiff’s malicious prosecution claim should be dismissed because:

(1) Plaintiff fails to allege any role by Defendants Blume or Pascale in his prosecution; and (2)

Plaintiff alleges that Defendants Krause and Donovan arrested him, but does not allege that they

“continued a criminal proceeding against him nor that they did so with malice.” (Def. Br. at 28-

29).

To state a claim for malicious prosecution, a Plaintiff must plead: (1) “the commencement

or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination

of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal

proceeding and (4) actual malice.” Kee v. City of New York, 12 F.4th 150, 161 (2d Cir. 2021)

(quoting Smith-Hunter v. Harvey, 734 N.E.2d 750, 752 (N.Y. 2000)).

Here, Plaintiff fails to allege in the Amended Complaint that any of the Defendants initiated

and continued a criminal proceeding against him. “While police officers do not generally

‘commence or continue’ criminal proceedings against defendants, a claim for malicious

prosecution can still be maintained against a police officer if the officer is found to ‘play[] an active

role in the prosecution, such as giving advice and encouragement or importuning the authorities to

act.’” Bermudez v. City of New York, 790 F.3d 368, 377 (2d Cir. 2015) (alteration in original)

(quoting Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir. 2010)). Plaintiff alleges that

Defendants Krause arrested him, (Am. Compl. ¶ 18), but Plaintiff does not allege that Defendant

Krause was involved in any manner in the criminal proceedings against him. Accord Thomsen v.

City of New York, No. 15-CV-02668, 2016 WL 590235, at *8 (S.D.N.Y. Feb. 11, 2016)

(“[Defendant’s] conduct in arresting [Plaintiff] . . . does not rise to the level of an ‘active role’ in

the prosecution.”). Plaintiff also alleges that Defendant Donovan “filed the report,” (Am. Compl.

¶ 24), but he does not specify what this report was or if it was in any way related to his prosecution.

Accordingly, Plaintiff’s claim for malicious prosecution is dismissed.

X. Eighth Claim for Relief: Monell Liability

Defendants argue that Plaintiff’s Monell claim should be dismissed because Plaintiff “does

not allege an underlying constitutional violation, and his allegations are entirely conclusory.” (Def.

Br. at 29).

“It is well established that a municipality may not be held liable under Section 1983 for

alleged unconstitutional actions by its employees below the policy-making level solely upon the

basis of respondeat superior.” Ukeje v. N.Y.C. Health & Hosps. Corp., 821 F. Supp. 2d 662, 669

(S.D.N.Y. 2011) (citing Monell v. Dep’t of Soc. Services of City of N.Y., 436 U.S. 658 (1978)).

Rather, to prevail on a Monell claim against a municipality “the plaintiff must plead and prove that

the violation of constitutional rights resulted from a municipal custom or policy.” Id. at 670 (citing

Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83 (1986)). Thus, to assert a Monell claim against

a municipality a plaintiff must plausibly allege and ultimately prove three things: “(1) an official

policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional

right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v. Rodriguez,

702 F.2d 393, 397 (2d Cir. 1983)). Proof of the existence of a municipal policy or custom is

required because a plaintiff must demonstrate that “the municipality took some action beyond

merely employing the [allegedly] misbehaving officers.” Chamberlain v. City of White Plains, 986

F. Supp. 2d 363, 390 (S.D.N.Y. 2013) (quoting Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d

Cir. 1985)).

Plaintiff pleads his Monell claim against “all defendants.” (Am. Compl. at 13). However,

“a Monell claim cannot be pleaded against an individual. . . . And a Monell claim asserted against

an individual defendant acting in her official capacity is treated as a suit against the municipality.”

Barrera v. N.Y.C. Dep’t of Educ., No. 24-CV-07194, 2025 WL 3211802, at *8 (S.D.N.Y. Nov. 17,

2025) (first citing Hafer v. Melo, 502 U.S. 21, 25 (1991); and then citing Perez v. Annucci, No. 18-

CV-00147, 2019 WL 1227801, at *4 (S.D.N.Y. Mar. 15, 2019)). Therefore, to the extent Plaintiff

attempts to plead a Monell claim against the individual defendants, such claim is dismissed.

Regardless, Plaintiff alleges no facts to establish a custom, pattern, practice, or procedure

on the part of any of the Defendants in “hiring and/or retaining police officers whom they know to

have committed acts of violence, including crimes, and/or have a propensity to do so.” (Am.

Compl. ¶ 63). Plaintiff alleges that he was arrested and later issued a parking ticket by one of the

same officers who was present for his arrest. (Am. Compl. ¶¶ 22-23, 28). This is not sufficient to

state a claim under Monell. See, e.g., Riccio v. Town of Old Saybrook, No. 21-CV-00821, 2022 WL

4585650, at *3 (D. Conn. Sept. 29, 2022) (“Courts in this Circuit have regularly found that such

conclusory allegations fail to allege a Monell claim.”); Gerardi v. Huntington Union Free Sch.,

124 F. Supp. 3d 206, 226 (E.D.N.Y. 2015) (“Plaintiff’s allegation that the District had a

‘widespread or persistent’ policy of gender discrimination in its hiring process [is] conclusory and

unsupported by the record and, therefore, insufficient to establish Monell liability.”).

Accordingly, Plaintiff’s Monell claim is dismissed.

XI. Punitive Damages

Defendants argue that Plaintiff fails to allege the “evil motive or intent” or “reckless and

callous indifference” necessary to recover punitive damages against the individual defendants.

(Def. Br. at 31). “[R]eckless or callous disregard for [a] plaintiff’s rights, as well intentional

violations of federal law,” are “sufficient to trigger a jury’s consideration of the appropriateness of

punitive damages.” Smith v. Wade, 461 U.S. 30, 51 (1983). Here, Plaintiff alleges that Defendant

Krause intentionally disregarded his First Amendment rights and falsely arrested him. (See Am.

Compl.). Since Plaintiff plausibly alleges claims for unlawful seizure of property, First

Amendment violations, and false arrest against Defendant Krause, it is premature to dismiss his

request for punitive damages at this stage. See, e.g., Kinnel v. Barton, No. 24-CV-01701, 2025 WL

2694859, at *7 (D. Conn. Sept. 22, 2025) (“Since Plaintiff may proceed on his Eighth Amendment

excessive force claim against [the defendant], it is premature to dismiss his request for punitive

damages on that claim.”).

CONCLUSION

For the reasons stated in this Opinion & Order, Defendants’ motion to dismiss is granted

in part and denied in part. Plaintiff’s First, Fifth, Sixth, Seventh, and Eighth claims for relief are

dismissed against all Defendants. Plaintiff’s Second, Third, and Fourth claims for relief are

dismissed as against Defendants Biagi, Pascale, Blume, and Donovan, but will proceed against

Defendant Krause.

Accordingly, Defendants Blume, Biagi, Pascale, Donovan, and the Town of Eastchester are

dismissed from this action. Plaintiff’s case may proceed against Defendant Krause on his claims

for unlawful search and seizure, First Amendment right to record and retaliation, and false arrest.

Defendant Krause shall file an answer to the Amended Complaint on or before February

24, 2026.

The Clerk of Court is respectfully directed to terminate the motion pending at Doc. 26 and

to terminate the Town of Eastchester, Sergeant Richard Biagi, Officer Blume, Officer Brian

Donovan, and Officer M. Pascale as defendants herein.

SO ORDERED.

Dated: White Plains, New York

February 10, 2026 ( /

PHILIP M. HALPERN

United States District Judge

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