Maxwell

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

DAVID MAXWELL, :

:

Plaintiff, :

:

-v- : 23 Civ. 3563 (JPC) (OTW)

:

CITY OF NEW YORK, et al., : OPINION AND ORDER

: ADOPTING REPORT AND

Defendants. : RECOMMENDATION

:

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JOHN P. CRONAN, United States District Judge:

Plaintiff David Maxwell, proceeding pro se, brings this action under 42 U.S.C. § 1983 for

false arrest, deliberate indifference to his medical needs, and malicious prosecution stemming from

his arrest on May 4, 2021. On May 2, 2025, Defendants New York City Police Department

(“NYPD”) Sergeant Howard Roth, NYPD Officer Fatmir Vucetovik (with Sergeant Roth, the

“Officer Defendants”), New York City Fire Department (“FDNY”) Emergency Medical Services

technician Gerald Carr, and the City of New York moved for summary judgment on Plaintiff’s

claims. One month later, Plaintiff also moved for summary judgment. On February 19, 2026, the

Honorable Ona T. Wang, to whom this case has been referred for general supervision of pretrial

proceedings and to issue a Report and Recommendation on dispositive motions, recommended

that the undersigned grant summary judgment in Defendants’ favor and deny Plaintiff’s motion.

Dkt. 73 (“R&R”) at 21-22.

Plaintiff timely objected to the Report and Recommendation on March 5, 2026. For the

reasons below, this Court overrules Plaintiff’s objections and adopts the Report and

Recommendation in full. Defendants’ motion for summary judgment therefore is granted, and

Plaintiff’s motion is denied.

I. Background

A. Facts1

On May 4, 2021, Sergeant Roth, Officer Vucetovik, other non-defendant NYPD officers,

Carr, and a non-defendant FDNY medic responded to a 911 call reporting an altercation between

Plaintiff and his wife, Stacey Atkinson Maxwell (“Atkinson”), and seeking medical help. Defts.

56.1 Stmt. ¶¶ 1, 3; Pl. 56.1 Stmt. ¶ 6; see Maxwell Decl., Exh. D (“911 Call Recording”). Upon

arrival, Officer Vucetovik and a non-defendant officer entered the residence to speak to Atkinson

while Sergeant Roth and another non-defendant officer remained outside with Plaintiff. Vucetovik

BWC at 21:28:132; Roth BWC at 21:28:13.

Plaintiff told Sergeant Roth that after returning home from having “a few beers,” Roth

BWC at 21:28:18-19, he argued with Atkinson over a missing check and, during that argument,

Atkinson “flipped out,” id. at 21:29:41, and “threw hot oil” on his arm, id. at 21:28:24-21:29:20,

21:31:35-21:31:36. As Plaintiff was describing his argument with Atkinson, a non-defendant

1 The following facts are drawn primarily from the parties’ statements of undisputed

material facts under Local Civil Rule 56.1(a), Dkt. 50 (“Defts. 56.1 Stmt.”); Dkt. 57 (“Pl. 56.1

Stmt.”), and the declarations filed by the parties with attached exhibits, Dkt. 49 (“Forcier Decl.”);

Dkt. 56 (“Maxwell Decl.”). Unless otherwise noted, the Court cites only to a party’s statement of

undisputed material facts when the opposing party does not dispute the fact, has not offered

admissible evidence to refute it, or simply seeks to add its own “spin” on the fact or otherwise

disputes the inferences drawn from it. Among the exhibits filed by the parties are excerpts from

body-worn camera (“BWC”) footage for Officer Vucetovik, see Forcier Decl., Exh. A (“Vucetovik

BWC”), and for Sergeant Roth, see Forcier Decl., Exh. B (“Roth BWC”). The Court regards

footage from BWCs as “‘reliable objective evidence’ upon which the Court can rely and which

‘may speak for itself.’” Delgado v. City of New York, No. 19 Civ. 6320 (JHR), 2023 WL 6390134,

at *1 n.1 (S.D.N.Y. Oct. 2, 2023) (quoting Marcavage v. City of New York, 689 F.3d 98, 110 (2d

Cir. 2012)). The Court therefore considers facts that are clearly confirmed by that footage.

2 The Court cites to the times of the BWC recordings located at the top right of each video.

officer asked, “do you need an ambulance for anything?” Id. at 21:29:21-22. Plaintiff pointed at

his arm and responded, “I need this to be treated.” Id. at 21:29:23-21:29:25. Sergeant Roth then

asked Plaintiff, “how bad does [the arm] hurt?”, to which Plaintiff answered, “it ain’t bad,” and

explained that he did not want it to scab. Id. at 21:29:48-21:29:56.

Inside, Officer Vucetovik heard a different description of the dispute from Atkinson.

According to her, the argument began in the living room, where Plaintiff choked her from the front.

Vucetovik BWC at 21:29:11-21:29:15. They kept arguing as she moved into the kitchen, where a

pot was already on the stove. Id. at 21:29:32-21:29:37. She resumed cooking, but then Plaintiff

came up behind her, put his hands around her neck, and pushed her into the stove, causing hot oil

to splatter onto both of them. Id. at 21:29:46-21:29:58. She demonstrated on herself how Plaintiff

placed his hands on her neck. Id. at 21:29:14-21:29:16, 21:29:53-21:29:54.

Sergeant Roth and Officer Vucetovik then conferred with each other and realized they had

received different information about who was the aggressor. Id. at 21:32:31-21:32:33. Officer

Vucetovik told Sergeant Roth that he credited Atkinson’s account, that he saw a burn on her, and

that she was accusing Plaintiff of criminal obstruction of breathing. Id. at 21:31:43-21:32:17.

Sergeant Roth recounted that Plaintiff told him that Atkinson poured oil on Plaintiff, and indicated

that, based on that account, he initially thought that Atkinson was at fault. Id. at 21:32:20-

21:32:23; 21:32:31-21:32:32. As Sergeant Roth and Officer Vucetovik conferred, Plaintiff can be

seen in the background doing pull-ups against the side of the house using both his arms. Roth

BWC at 21:32:20-21:32:33.

Sergeant Roth and Officer Vucetovik then switched, with Sergeant Roth going inside to

speak with Atkinson and Officer Vucetovik remaining outside to speak to Plaintiff. Id. at

21:32:36-21:32:48. Plaintiff told Officer Vucetovik, in substance, the same story he had told

Sergeant Roth, Vucetovik BWC at 21:32:46-21:35:11, though he added that Atkinson sustained

oil burns on her own arm because she had picked up the pan with the oil and swung it at him, id.

at 21:34:58-21:35:11. Meanwhile, Atkinson told Sergeant Roth, in substance, the same story that

she had told Officer Vucetovik. Roth BWC at 21:33:12-21:35:42. Sergeant Roth checked

Atkinson’s neck for bruises, id. at 21:35:43-21:35:48, and later told a medic that Atkinson did not

have any injuries to her neck, id. at 21:41:05-21:41:07. Atkinson stated that she did not lose

consciousness or get dizzy, and said Plaintiff “never really squeezed” when he put his hands around

her neck. Id. at 21:35:32-21:35:33, 21:35:49-21:35:52.

After speaking to Atkinson, Sergeant Roth told some of the non-defendant officers that

they would be arresting Plaintiff because Atkinson’s story “is making sense.” Id. at 21:37:06-

21:37:12. Sergeant Roth similarly informed Atkinson that Plaintiff was being placed under arrest,

but advised that if she did not want to press charges, she should talk to the District Attorney’s

office in the morning. Id. at 21:38:18-21:38:51. Moments later, Sergeant Roth told non-defendant

officers and a medic that he “believe[s] her more than [he] believe[s] him,” id. at 21:39:55-

21:39:57, and commented to one of the officers, “her story makes sense,” id. at 21:40:30-21:40:35.

Sergeant Roth then told the medics that Plaintiff was being arrested for choking Atkinson because

he “did place his hands around her neck.” Id. at 21:41:12-21:41:19.

While Sergeant Roth and Atkinson were inside the house, Carr and a second FDNY medic

arrived and began examining Plaintiff. Vucetovik BWC at 21:36:13. As they evaluated Plaintiff,

a non-defendant police officer said to Plaintiff, “we just want to make sure you to get treated,” and

Plaintiff shortly thereafter said, “I want to get treated.” Id. at 21:37:13-21:37:15; 21:37:29-

21:37:31. Less than a minute later, Plaintiff told the first responders, “I don’t want to go to the

hospital, I want treatment. . . . All you gotta give me is the ointment and I’m good.” Id. at

21:38:12-21:38:17. An officer then asked Plaintiff, “so you don’t want to go to the hospital?”, to

which Plaintiff responded, “no, I want treatment or you can leave.” Id. at 21:38:28-21:38:32.

Officer Vucetovik then arrested Plaintiff for criminal obstruction of breathing in violation of New

York Penal Law Section 121.11. Deft. 56.1 Counter Stmt. ¶ 10.

As Plaintiff was being placed under arrest, a medic remarked to Sergeant Roth that Plaintiff

was “not burnt too badly” and that he had only first-degree burns. Roth BWC at 21:40:12-

21:40:16. After Plaintiff was in handcuffs, Sergeant Roth asked Plaintiff how his arm was feeling,

and Plaintiff responded, “it stings,” but said it is fine. Id. at 21:41:40-21:41:43.

Later that evening, Atkinson signed a domestic incident report in which she described how

the events unfolded. See Forcier Decl., Exh. C at 2. The next day, Plaintiff was charged by a

criminal complaint filed in the Bronx County Criminal Court, in the case captioned The People of

the State of New York v. David Maxwell M/52, with criminal obstruction of breathing, assault in

the third degree, and harassment in the second degree (the “Criminal Action”). Defts. 56.1 Stmt.

¶¶ 15-16; Forcier Decl., Exh. F (“Criminal Complaint”). Atkinson was the deponent who signed

the Criminal Complaint. See Defts. 56.1 Stmt. ¶ 16; Criminal Complaint at 2. In May 2022, a jury

acquitted Plaintiff of all charges. Dkt. 58 (“Pl. Opp. to Defts. SJ Motion”), Exh. F at 107-08.

B. Procedural History

Plaintiff brought this action on April 27, 2023. Dkt. 1. He then filed the Amended

Complaint on July 18, 2023, stating that “[t]his cause of action is defined by the Fourteenth

Amendment.” Dkt. 10 (“Am. Compl.”) at 2. Like Judge Wang, the undersigned construes the

allegations in the Amended Complaint as pleading three causes of action under 42 U.S.C. § 1983:

false arrest, deliberate indifference to medical needs, and malicious prosecution. Id. at 5-6; see

R&R at 1.3 Following mediation and discovery, on May 2, 2025, Defendants moved for summary

judgment on all claims. Dkts. 48-52. On June 2, 2025, Plaintiff also moved for summary

judgment, Dkts. 54-57, and filed his brief in opposition of Defendants’ motion, Dkt. 58.

Defendants replied in support of their motion on June 23, 2025. Dkt. 60. Plaintiff filed a reply in

support of his motion on July 14, 2025. Dkt. 64.

On February 19, 2026, Judge Wang issued the Report and Recommendation, which advised

the undersigned to grant Defendants’ motion for summary judgment and deny Plaintiff’s motion.

R&R at 21-22. Plaintiff objected on March 5, 2026. Dkt. 77 (“Objections”). Defendants

responded to Plaintiff’s Objections on March 20, 2026. Dkt. 79.

II. Legal Standard

A district court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge” in a report and recommendation. 28 U.S.C.

§ 636(b)(1)(C). Within fourteen days after a party has been served with a copy of a magistrate

judge’s report and recommendation, the party “may serve and file specific written objections to

the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). If a party submits a timely

and otherwise proper objection to any part of the magistrate judge’s disposition, the district court

will conduct a de novo review of the contested section. Fed. R. Civ. P. 72(b)(3); see also United

States v. Male Juv., 121 F.3d 34, 38 (2d Cir. 1997). The district court reviews those portions of a

report and recommendation to which an improper objection was filed only for clear error. Lewis

v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008). “The objections of pro se parties are ‘generally

accorded leniency and should be construed to raise the strongest arguments that they suggest.’”

3 Though the Amended Complaint does not specify these claims, the parties appear in

agreement that they are the causes of action. See Dkt. 51 (“Defts. SJ Motion”) at 1; Pl. Opp. to

Defts. SJ Motion at 2-5.

Machicote v. Ercole, No. 06 Civ. 13320 (DAB) (JCF), 2011 WL 3809920, at *2 (S.D.N.Y. Aug.

25, 2011) (quoting Howell v. Port Chester Police Station, No. 09 Civ. 1651 (CS) (LMS), 2010

WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010)).

III. Discussion

In light of Plaintiff’s timely objections and his pro se status, the Court reviews the Report

and Recommendation de novo. The Court will grant summary judgment if “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriate ‘[w]here the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” Mhany

Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 620 (2d Cir. 2016) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “A genuine dispute exists where ‘the

evidence is such that a reasonable jury could return a verdict for the nonmoving party,’ while a

fact is material if it ‘might affect the outcome of the suit under the governing law.’” Chen v. 2425

Broadway Chao Rest., LLC, No. 16 Civ. 5735 (GHW), 2019 WL 1244291, at *4 (S.D.N.Y. Mar.

18, 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In conducting this

review, the Court “resolve[s] all ambiguities and draw[s] all reasonable inferences in favor of the

nonmoving party.” Mhany Mgmt., 819 F.3d at 620.

“The movant bears the initial burden of demonstrating ‘the absence of a genuine issue of

material fact,’ and, if satisfied, the burden then shifts to the non-movant to present ‘evidence

sufficient to satisfy every element of the claim.’” Chen, 2019 WL 1244291, at *4 (quoting

Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008)). The non-movant “may not rely on

conclusory allegations or unsubstantiated speculation,” and “must offer some hard evidence

showing that its version of the events is not wholly fanciful.” Jeffreys v. City of New York, 426

F.3d 549, 554 (2d Cir. 2005) (citation modified). The non-movant must present more than a

“scintilla of evidence” to survive summary judgment. Anderson, 477 U.S. at 252. “[A] complete

failure of proof concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Where no rational

finder of fact ‘could find in favor of the nonmoving party because the evidence to support its case

is so slight,’ summary judgment must be granted.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358

(2d Cir. 2011) (quoting F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)).

Generally, when parties cross-move for summary judgment, a court evaluates each motion

independently of the other, considering the facts in the light most favorable to the non-moving

party. Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001). But if a “motion and cross-

motion seek a determination of the same issues,” as is the case here, “the Court may consider them

together.” ExteNet Sys., Inc. v. Vill. of Pelham, 377 F. Supp. 3d 217, 223 (S.D.N.Y. 2019).

A. The False Arrest Claim

In the Report and Recommendation, Judge Wang recommended granting summary

judgment in Defendants’ favor as to the false arrest claim because the undisputed facts show that

the Officer Defendants had actual probable cause to arrest Plaintiff, and, alternatively, that the

Officer Defendants had at least arguable probable cause and are thus entitled to qualified

immunity. R&R at 10-14. Plaintiff objects on the ground that, in his view, there was no probable

cause. Objections at 1-2. Granting “special solicitude” to Plaintiff given his pro se status,

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (citation modified), the

Court construes this objection to apply to both of Judge Wang’s grounds for recommending

summary judgment in favor of Defendants on the false arrest claim. The Court overrules the

objection, grants Defendants’ motion for summary judgment on the false arrest claim, and denies

Plaintiff’s motion on that claim.

“A § 1983 claim for false arrest[] rest[s] on the Fourth Amendment right of an individual

to be free from unreasonable seizures, including arrest without probable cause.” Weyant v. Okst,

101 F.3d 845, 852 (2d Cir. 1996). Courts analyze Section 1983 claims for false arrest under “the

law of the state in which the arrest occurred.” Davis v. Rodriguez, 364 F.3d 424, 433 (2d Cir.

2004). A plaintiff alleging false arrest under New York law must plead facts that show that “(1) the

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

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

privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (citation modified).

The existence of probable cause to arrest “is a complete defense to an action for false

arrest.” Weyant, 101 F.3d at 852 (citation modified); accord Jaegly v. Couch, 439 F.3d 149, 152

(2d Cir. 2006) (“Under New York law, the existence of probable cause is an absolute defense to a

false arrest claim.”); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (“Because probable cause

to arrest constitutes justification, there can be no claim for false arrest where the arresting officer

had probable cause to arrest the plaintiff.”). “Probable cause to arrest exists when the officers have

knowledge of, or reasonably trustworthy information as to, facts and circumstances that are

sufficient to warrant a person of reasonable caution in the belief that an offense has been or is

being committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.

2007). This probable cause inquiry requires the Court look to “the totality of the

circumstances,” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010), and assess

what the officer objectively knew at the time of arrest, “considering those facts available to the

officer at the time of the arrest and immediately before it,” Scott v. City of New York, No. 19 Civ.

6289 (JPO), 2022 WL 846929, at *2 (S.D.N.Y. Mar. 22, 2022) (citation modified); see also

Celestin v. City of New York, 581 F. Supp. 2d 420, 430 (E.D.N.Y. 2008) (“Probable cause to arrest

depends on the totality of the circumstances and is an objective rather than subjective inquiry as

to the reasonable conclusion to be drawn from the facts known to the arresting officer at the time

of arrest.” (citation modified)). “[I]t is well-established that a law enforcement official has

probable cause to arrest if he received his information from some person, normally the putative

victim or eyewitness.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citation modified).

In addition, “[q]ualified immunity shields government officials from civil damages liability

unless the official violated a statutory or constitutional right that was clearly established at the time

of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). “The right to be free

from arrest without probable cause was a clearly established right at the time of [Plaintiff]’s

arrest[].” Delgado v. City of New York, No. 19 Civ. 6320 (JPC), 2021 WL 2473817, at *8

(S.D.N.Y. June 17, 2021). When a right is clearly established, the question is “whether it was

‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v.

City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). In the context of false arrest, an officer’s

probable cause determination is “objectively reasonable” if there was “‘arguable’ probable cause

at the time of the arrest—that is, if ‘officers of reasonable competence could disagree on whether

the probable cause test was met.’” Id. at 157 (quoting Jenkins v. City of New York, 478 F.3d 76,

87 (2d Cir. 2007)).

Plaintiff’s false arrest claim fails because the Officer Defendants had probable cause to

arrest him, or at a minimum, arguable probable cause, entitling them to qualified immunity. In

New York, a person is guilty of criminal obstruction of breathing when they “appl[y] pressure on

the throat or neck of [another] person.” N.Y. Penal L. § 121.11(a). Atkinson told each of Sergeant

Roth and Officer Vucetovik in two separate recorded conversations that Plaintiff placed his hands

around her neck. See Roth BWC at 21:33:12-21:35:42; Vucetovik BWC at 21:29:13-21:29:16.

She also demonstrated on herself for both Officer Defendants how Plaintiff did so. See Roth BWC

at 21:34:25-21:34:28; Vucetovik BWC at 21:29:14-21:29:16. While Atkinson acknowledged that

Plaintiff “never really squeezed” her neck or caused her to become dizzy or lose consciousness,

Roth BWC at 21:35:32-21:35:33, 21:35:49-21:35:52, and while she did not have any visible marks

on her neck, id. at 21:35:45-21:35:48, such a level of aggression or injury is not needed to

constitute “pressure on the throat or neck,” N.Y. Penal L. § 121.11(a). The Officers Defendants

discussed what Plaintiff and Atkinson each told them, see Roth BWC at 21:31:40-21:32:34,

decided to credit Atkinson’s version, id. at 21:41:15-21:41:18 (Sergeant Roth); id. at 21:32:07-

21:32:19 (Officer Vucetovik), and arrested Plaintiff for criminal obstruction of breathing.

Based on the information provided to the Officer Defendants from a putative victim-

witness shortly after the incident, and that witness’s consistent account the two times she recounted

what happened, the Court concludes that the Officer Defendants had probable cause to arrest

Plaintiff. Moreover, the Officer Defendants certainly had, at a minimum, arguable probable cause

to arrest Plaintiff, thus entitling them to qualified immunity. In his Objections, Plaintiff points to

evidence from his criminal trial that contradicts Atkinson’s account. See Objections at 2. But

neither that evidence nor Plaintiff’s acquittal implicates whether the Officer Defendants had

probable cause to arrest him on May 4, 2021. Cf. Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d

Cir. 2001) (“Before making an arrest, if the arresting officer has probable cause, he need not also

believe with certainty that the arrestee will be successfully prosecuted.” (citation modified)).

Plaintiff also contends that the officers should have believed him over Atkinson. See Objections

at 2 (arguing that Sergeant Roth and other officers “expressed their view that the allege[d] story

of . . . Atkinson . . . ‘doesn’t make sense’”). But this does not defeat summary judgment either.

After speaking separately with both Plaintiff and Atkinson, the Officer Defendants assessed

Atkinson’s version of the incident as more credible. Moreover, arresting officers are “not required

to explore and eliminate every theoretically plausible claim of innocence before making an arrest,”

nor do they need to “prove plaintiff’s version [of events] wrong before arresting him.” Curley,

268 F.3d at 70 (citation modified). “[W]hen the totality of evidence . . . establishes probable

cause . . .[,] some exculpatory evidence does not make an arrest illegal.” Stansbury v. Wertman,

721 F.3d 84, 94 (2d Cir. 2013).

Because there is no genuine dispute of material fact bearing on the Officer Defendants’

actual or arguable probable cause for arresting Plaintiff, the Court adopts Judge Wang’s

recommendation to grant summary judgment in Defendants’ favor on Plaintiff’s false arrest claim

and to deny Plaintiff’s motion on that claim.

B. The Deliberate Indifference Claim

Judge Wang also recommended granting summary judgment in favor of Defendants as to

Plaintiff’s deliberate indifference claim because the undisputed facts show that Plaintiff’s injury

was not severe and the Officer Defendants were attentive to his injury, including by repeatedly

offering to take him to the hospital. R&R at 15-17. In his Objections, Plaintiff points to the

severity of his “defensive second degree burn.” Objections at 3. The Court overrules his objection,

grants summary judgment in favor of Defendants on the deliberate indifference claim, and denies

Plaintiff’s motion on that claim.

Constitutional protections as to the confinement conditions of pretrial detainees are

grounded in the Due Process Clause of the Fourteenth Amendment. See Darnell v. Pineiro, 849

F.3d 17, 29 (2d Cir. 2017). “To establish a claim for deliberate indifference to medical needs

under the Due Process Clause of the Fourteenth Amendment,” a plaintiff “must establish two

elements: (1) that the deprivation of medical care . . . was sufficiently serious, and (2) that the

defendant acted or failed to act with a sufficiently culpable state of mind.” Maldonado v. Town of

Greenburgh, 460 F. Supp. 3d 382, 395 (S.D.N.Y. 2020) (citation modified). The first element

assesses whether “the challenged conditions were sufficiently serious to constitute objective

deprivations of the right to due process,” while the second element, “a ‘mens rea prong’ or ‘mental

element prong,’” assesses whether “the officer acted with at least deliberate indifference to the

challenged conditions.” Darnell, 849 F.3d at 29. An objectively serious deprivation “pose[s] an

unreasonable risk of serious damage to [the plaintiff’s] health,” evaluated “in light of

contemporary standards of decency.” Id. at 30 (citation modified); see Charles v. Orange Cnty.,

925 F.3d 73, 86 (2d Cir. 2019) (“The serious medical needs standard contemplates a condition of

urgency such as one that may produce death, degeneration, or extreme pain.”). “Claims of lasting

physical injuries is evidence of a serious medical condition.” Hong v. Aigle, No. 18 Civ. 8110

(VSB), 2020 WL 2836309, at *3 (S.D.N.Y. June 1, 2020) (citation modified); see Charles, 925

F.3d at 86 (explaining that “[i]n most cases, the actual medical consequences that flow from the

denial of care are highly relevant in determining whether” the plaintiff was subjected to “a

significant risk of serious harm”).

It is undisputed that, in speaking with the Officer Defendants, Carr, and others at the scene,

Plaintiff downplayed the severity of the burns to his arm and repeatedly declined offers to be taken

to the hospital. Though Plaintiff requested treatment and was evaluated by a medic, Defts. 56.1

Stmt. ¶ 3; Pl. 56.1 Stmt. ¶ 8, he insisted on receiving only “ointment” for his burns, see Defts. 56.1

Stmt. ¶¶ 4-8; Forcier Decl., Exh. D (“Maxwell Dep. Tr.”) at 42:12-18, and at least twice turned

down offers to be taken to the hospital even though the on-scene medics could not provide the

ointment he was requesting, see, e.g., Vucetovik BWC at 21:38:10-21:38:17, 21:38:29-21:38:32.

Not only did Plaintiff say his arm “ain’t bad,” Roth BWC at 21:29:49-21:29:50, his arm was

healthy enough to allow him to do approximately ten pull-ups shortly after the injury, see id. at

21:32:20-21:32:34. And after Sergeant Roth asked Plaintiff how his arm felt after he was

handcuffed, Plaintiff responded only that “it stings” and still did not ask to go to the hospital. Id.

at 21:41:40-21:41:41. Plaintiff also fails to show any evidence of lasting injuries other than a

single, unauthenticated photo purportedly of his arm, see Maxwell Decl., Exh. B, and a conclusory

assertion that he suffered an “obvious second-degree burn,” Pl. 56.1 Stmt. ¶ 8; see Objections at

3, yet he evidently never sought medical treatment for that burn after his release from jail, see

Maxwell Dep. Tr. at 62:17-19. See Charles, 925 F.3d at 86; Hong, 2020 WL 2836309, at *3.

Plaintiff also has not presented evidence showing that the Officer Defendants and Carr

failed to act with reasonable care. On the contrary, the repeated offers to take Plaintiff to the

hospital indicate that Plaintiff received multiple opportunities to seek more treatment than the

FDNY medics could provide him on site. See Darnell, 849 F.3d at 35 (explaining that to establish

a claim for deliberate indifference, a plaintiff “must prove that the defendant-official acted

intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to

mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official

knew, or should have known, that the condition posed an excessive risk to health or safety”).

Thus, no reasonable juror could find that Defendants were deliberately indifferent to

Plaintiff’s burn injury. Accordingly, the Court adopts Judge Wang’s recommendation to grant

summary judgment in Defendants’ favor on the deliberate indifference claim and to deny

Plaintiff’s motion on that claim.

C. The Malicious Prosecution Claim

Lastly, Judge Wang recommended granting summary judgment in Defendants’ favor as to

the malicious prosecution claim because no reasonable juror could find that the Officer Defendants

initiated the criminal charges against Plaintiff, that they either lacked probable cause to arrest

Plaintiff or that the probable cause “dissipated” between arrest and prosecution, and that the

criminal proceedings were motivated by malice. R&R at 17-20 (quoting Barua v. City of New

York, No. 14 Civ. 584 (NRB), 2016 WL 7494875, at *10 (S.D.N.Y. Dec. 29, 2016)). The Court

overrules Plaintiff’s objection, grants summary judgment in Defendants’ favor on the malicious

prosecution claim, and denies Plaintiff’s motion on that claim.

The elements of a malicious prosecution claim under Section 1983 are:

(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, (4) actual malice,

and (5) a sufficient post-arraignment liberty restraint to implicate the plaintiff’s

Fourth Amendment rights.

Carruthers v. Colton, 153 F.4th 169, 181 (2d Cir. 2025) (citation modified).

Probable cause is a complete defense to a malicious prosecution claim. Id. In that context,

probable cause “has been described as such facts and circumstances as would lead a reasonably

prudent person to believe the plaintiff guilty.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir.

2003). Unlike a false arrest claim, which “fails if there was probable cause to arrest the plaintiff

for any offense, in the malicious prosecution context, there must be probable cause for the

offenses charged.” Tompkins v. City of New York, 50 F. Supp. 3d 426, 435 (S.D.N.Y. 2014)

(citation modified); see Chiaverini v. City of Napoleon, Ohio, 602 U.S. 556, 562, 564 (2024)

(holding that “courts should evaluate [malicious prosecution claims] charge by charge,” as “[o]ne

bad charge, even if joined with good ones, [i]s enough to satisfy the malicious-prosecution tort’s

‘without probable cause’ element”). Moreover, while “probable cause in the malicious

prosecution context requires the police officer or prosecutor to believe that a criminal defendant

‘could be successfully prosecuted,’ . . . it is not necessary for the officer to be certain that the

prosecution will be successful.” Williams v. City of New York, No. 10 Civ. 9594 (CM), 2012 WL

547508, at *6 (S.D.N.Y. Feb. 17, 2012).

As discussed above, see supra III.A, the undisputed facts reveal that the Officer Defendants

had probable cause to arrest Plaintiff for criminal obstruction of breathing.4 Plaintiff argues that

even if there had been probable cause upon his arrest, “evidence surfaced” later that “eliminate[d]”

it. Objections at 4. But the pieces of evidence he cites—a photograph showing Atkinson’s neck,

Pl. Opp. to Defts. SJ Motion, Exh. A, and a medical record of Atkinson’s that was read to the jury

during the Criminal Action, Pl. Opp. to Defts. SJ Motion, Exh. G—fail to indicate that the probable

cause “dissipated” as a result of “the discovery of some intervening fact.” Barua, 2016 WL

7494875, at *10 (citation modified); see Objections at 4. While that evidence might have

undermined the prosecution’s argument at trial, “acquittal after trial establishe[s] the absence of

proof beyond a reasonable doubt, not the absence of probable cause.” Saunders v. Cavada, No.

19 Civ. 3279 (RPK) (JAM), 2024 WL 681228, at *8 (E.D.N.Y. Feb. 20, 2024) (citation modified),

report and recommendation adopted by, 750 F. Supp. 3d 1 (E.D.N.Y. 2024). As “the existence of

probable cause is a complete defense to a claim of malicious prosecution in New York,” Savino,

331 F.3d at 72, the analysis could stop here.

Nevertheless, no reasonable juror could find in Plaintiff’s favor on his malicious

prosecution claim on two other, independent grounds. First, no evidence has been presented

4 Plaintiff was also charged with assault in the third degree and harassment in the second

degree, see Criminal Complaint at 1, but he does not argue that probable cause was lacking to

prosecute him for those crimes. See Objections at 3-4.

suggesting that either Officer Defendant, or Carr for that matter, initiated the prosecution,

notwithstanding Plaintiff’s contention that “the charges . . . were based on Officer Vucetovik[’s]

report and statements given to the prosecution.” Objections at 4. “There is a presumption that

police officers do not initiate criminal proceedings because prosecutors use their independent

judgment in making such decisions.” Saunders-Hall v. Sullivan, No. 17 Civ. 1269 (PAC), 2018

WL 3038492, at *4 (S.D.N.Y. June 19, 2018). Plaintiff cites Fiedler v. Incandela for the

proposition that “[a] police officer initiates criminal proceedings for purposes of a malicious

prosecution claim by having the plaintiff arraigned, filling out complaining or corroborating

affidavits, or signing a felony complaint.” Objections at 4 (citing Fiedler v. Incandela, 222 F.

Supp. 3d 141, 162 (E.D.N.Y. 2016)). Yet he offers no evidence that any Defendant did that here.

On the contrary, Sergeant Roth told Atkinson that she should talk to the District Attorney’s office

if she wanted the charges against Plaintiff dropped, Roth BWC at 21:38:45-21:38:51, and

Atkinson, not any Defendant, signed the Criminal Complaint, see Defts. 56.1 Stmt. ¶ 16; Criminal

Complaint at 2. Plaintiff thus has not provided any evidence permitting a reasonable juror to

overcome the presumption that police officers did not initiate his prosecution.

Plaintiff also fails to put forward any evidence indicating malice. There is no evidence that

the Officer Defendants or Carr had any personal animus toward Plaintiff or that they were

motivated by “something other than a desire to see the ends of justice served.” Lowth v. Town of

Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (citation modified). Indeed, Plaintiff does not

present any evidence indicating actual malice on the part of anyone involved in the Criminal

Action. Though he asserts in his Objections that he faced “a prosecution not [based] on evidence

and facts but on Plaintiff[’s] conviction from 20 years ago,” Objections at 4, he does not point to

evidence supporting that accusation. His Objections cite only Exhibit D of Docket Number 54,

but that is an audio recording of the 911 call he placed on May 4, 2021, with no connection to the

two-decade-old conviction. See generally 911 Call Recording.5

Accordingly, the Court adopts Judge Wang’s recommendation to grant summary judgment

in Defendants’ favor as to the malicious prosecution claim and to deny Plaintiff’s motion on that

claim.

IV. Conclusion

The Court adopts the Report and Recommendation in full.6 Defendants’ motion for

summary judgment is granted, and Plaintiff’s motion for summary judgment is denied.

5 Given his pro se status, the Court reviewed other aspects of the record for evidence

tending to support Plaintiff’s assertion about his prior conviction, and found nothing. Plaintiff

might have intended to cite Exhibit D of Docket Number 58, which is a transcript excerpt from his

trial reflecting that his attorney objected to the prosecution’s cross-examination of Plaintiff about

aliases he had used in the past. Pl. Opp. to Defts. SJ Motion, Exh. D at 21:13-24:8. After

permitting the questioning, the trial court informed the parties that it thought, in retrospect, that

the prosecution should have given notice to the defense that it planned to ask about those aliases.

Pl. Opp. to Defts. SJ Motion, Exh. E at 85:9-13. The trial court offered to cure the error with an

instruction, but the defense declined. Id. at 86:12-87:19. Even construing Plaintiff’s filings to

raise the strongest argument they suggest, see Machicote, 2011 WL 3809920, at *2, that

evidentiary dispute at trial falls far short of showing actual malice on the part of anyone involved

in the Criminal Action, let alone any Defendant.

6 Plaintiff also names the City of New York as a Defendant in his Amended Complaint,

Am. Compl. at 4, but articulates no argument for the City’s liability, see generally id.; Pl. Opp. to

Defts. SJ Motion. In any event, Plaintiff plainly has not presented a basis for Monell liability

against the City. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690-91 (1978).

“To hold a municipality liable under § 1983 for the unconstitutional actions of its employees, a

plaintiff is required to plead and prove three elements: (1) an official policy or custom that

(2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Lucente v. Cnty.

of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (citation modified). Thus, without “[a]n underlying

constitutional violation,” a municipality cannot be held liable under Section 1983. Nardoni v. City

of New York, 331 F. Supp. 3d 116, 125 (S.D.N.Y. 2018). As discussed above, the undisputed

evidence establishes that Plaintiff did not suffer a violation of his constitutional rights by the

Officer Defendants or Carr, so Monell liability cannot exist based on their conduct. Thus, any

claims against the City also must be dismissed.

The Clerk of Court is respectfully directed to enter judgment in Defendants’ favor and to

terminate the case.

SO ORDERED. Whar

Dated: March 30, 2026 of CB

New York, New York JOHN P. CRONAN

United States District Judge

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