# Maxwell

> District Court, S.D. New York · March 30, 2026

URL: https://www.frixlaw.com/law-library/cases/11387259

## Case

- **Full name:** David Maxwell v. City of New York, et al.
- **Court:** District Court, S.D. New York
- **Decided:** March 30, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
DAVID MAXWELL, :
:
Plaintiff, :
:
-v- : 23 Civ. 3563 (JPC) (OTW)
:
CITY OF NEW YORK, et al., : OPINION AND ORDER
: ADOPTING REPORT AND
Defendants. : RECOMMENDATION
:
---------------------------------------------------------------------- X

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11387259. Public record. Not legal advice.