The opinion
UNITED STATES DISTRICT COURT ELECTRONICALLY FILED
DOC #: _________________
SOUTHERN DISTRICT OF NEW YORK
DATE FILED: 5/12/2026
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:
HILARY A. BEST, :
:
Plaintiff, : 1:21-cv-779-GHW
:
-v- : MEMORANDUM OPINION &
: ORDER
JAMES MERCHANT, et al., :
:
Defendants. :
:
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GREGORY H. WOODS, United States District Judge:
On May 19, 2012, Plaintiff Hilary Best—then a pretrial detainee at Rikers Island—threw a
container of soup at Defendant James Merchant, an officer with the New York City Department of
Corrections (“DOC”). Officer Merchant experienced pain, soreness, and marks on his skin
consistent with a burn. Mr. Best was charged with assault in the third degree and harassment in the
second degree.
On November 28, 2012, he appeared in court in connection with those charges. He was
ordered released on his own recognizance. Defendant DOC Captain Stephanie Negron took him
back to Rikers Island because Mr. Best was to be sent to a facility to undergo mental health
treatment pursuant to a different set of criminal charges. Accordingly, on December 4, 2012,
Defendant DOC Officer Steven Acosta transported him to a psychiatric facility. In October 2018,
the assault and harassment charges were dismissed.
In January 2021, Mr. Best, proceeding pro se, commenced this action, asserting violations of
his civil rights under 42 U.S.C. § 1983. In his operative complaint, he asserted a claim of malicious
prosecution against Defendants Negron, Acosta, and Merchant. Defendants moved for summary
judgment on that claim. Because Defendants Negron and Acosta were not personally involved in
the initiation of the relevant criminal prosecution and because Defendant Merchant had actual or
arguable probable cause to initiate that prosecution against Mr. Best, the Court GRANTS
Defendants summary judgment on the malicious prosecution claims.
I. BACKGROUND
A. Factual Background1
On May 19, 2012, Mr. Best was a pretrial detainee at Rikers Island. See Dkt. No. 230-1
(“Best Dep.”) 17:18–25. In the early afternoon, he was in the common area of his housing unit. Id..
He sought to use the law library and asked a corrections officer when he would be able to do so. See
id. 18:1–4. Displeased by that officer’s response, Mr. Best grew “frustrate[d]” and “agitated” with
her. Id. 34:3–20. Around this time, a group of approximately ten inmates began to move closer to
where he was standing in the common area. Id. 21:14–16. Mr. Best interpreted their advance as an
impending assault. Id. 24:3–8.
At around that time, Officer Merchant entered the common area. Dkt. No. 230-3
(“Merchant Dep.”) 19:7–21. While Officer Merchant stood about ten feet away, Mr. Best requested
assistance from him. Best Dep. 18:12–15; 25:4–7. Officer Merchant observed Mr. Best “yelling and
screaming” and acting belligerently. See Dkt. No. 230-4 (“B Form”). He directed Mr. Best to “calm
down” and “face the wall” Dkt. No. 230-2 (“Use of Force Report”). Mr. Best responded by saying
“f**k you, I don’t have to talk to you.” Id. Seconds later, Mr. Best threw a container of soup at
Officer Merchant. Id.; see also Best Dep. 18:16–19. The parties dispute if the soup was “hot,” see Use
of Force Report, or “warm,” Dkt. No. 232 (“Best Aff.”) ¶¶ 4–5. They do not dispute that the soup
struck Officer Merchant. See Use of Force Report. They also do not dispute that, in the immediate
aftermath of the incident, Officer Merchant experienced pain and noticed marks on his skin
consistent with a burn. See Merchant Dep. 20:22–25, 21:2–6; see also Use of Force Report.
1 The following facts are draw from Defendants’ Local Civil Rule 56.1 Statements and the record evidence submitted
alongside their motion. All facts are undisputed unless otherwise noted, and all factual inferences are drawn in Plaintiff’s
favor.
To subdue Mr. Best, who had just cursed at and hurt him, Officer Merchant dispersed a
chemical agent at Mr. Best. See B Form. Mr. Best “fell to the floor,” and Officer Merchant
restrained him. See id. Mr. Best was removed from the area. Best Dep. 40:10–13. There were no
further interactions between Mr. Best and Officer Merchant. Id. 42:10–15.
Mr. Best received a disciplinary infraction for the May 19, 2012 assault. Best Dep. 40:17–19.
He appealed his infraction to the superintendent of the facility. Id. 44:3–9. The superintendent
denied that appeal. Id. 44:10–15. He then brought an Article 78 proceeding in New York state
court. Id. 45:1–5. In June 2012, the court presiding over the Article 78 proceeding nullified his
infraction. Id. 46:12–20. Officer Merchant was not present at the hearing held in connection with
his application. Id. 48:3–4.
On August 21, 2012, Mr. Best was arrested for the assault on Officer Merchant. See Dk. No.
230-5 (“Arrest Report”). He was still incarcerated at Rikers Island for another offense at the time of
his arrest for the new assault. Id. He was charged with one count of assault in the third degree, in
violation of New York Penal Law § 120.00(1), and one count of harassment in the second degree, in
violation of New York Penal Law § 240.26(1) (collectively, the “Charges”). Dkt. No. 230-6
(“Fontenez Decl.”). In his supporting declaration, DOC Investigator Benjamin Fontenez affirmed
that Officer Merchant informed him of the conduct underlying the Charges. Id. Officer Merchant
informed Investigator Fontenez that Mr. Best “threw a bowl containing soup at [him ,] striking
[him] in the right hand and chest.” Id. He also informed Investigator Fontenez that, “as a result of
[Mr. Best’s] conduct, [he] suffered pain and soreness to his chest and right hand as well experienced
annoyance, alarm and fear for his physical safety.” Officer Merchant also separately filed supporting
materials. Merchant Dep. 33:10–25. Mr. Best was arraigned on the Charges on August 27, 2012.
Dkt. No. 230-7 (“Nov. Tr.”) 3:20–22.
On November 28, 2012, Mr. Best appeared in Bronx County criminal court in connection
with the Charges. See Nov. Tr. The presiding judge, Justice Miram Best, ordered Mr. Best released
on his own recognizance. Id. 4:20.
But Mr. Best was not released from DOC custody on that day. At the time Justice Best
released him on his own recognizance for the crimes charged in the Charges, there were a different
set of criminal charges against him pending in New York County criminal court (the “Unrelated
Charges.”). See Dkt. No. 230-8 (“Final Order”). In connection with the Unrelated Charges, he had
undergone psychiatric testing pursuant to New York Criminal Procedure Law § 730 (the “730
Exam”). See Dkt. No. 230-12 (“Oct. 2018 Tr.”) 3:17–23. Based on the results of the 730 Exam, he
had been found unfit to stand trial on the Unrelated Charges. Id. Although the court in which the
Charges were pending had declined to adopt the findings of the 730 Exam, id., he remained subject
to a final order of observation (the “Final Order”) as a result of his serious mental health issues, see
Final Order. The Final Order required that Mr. Best be released to the care of a designated facility
to receive mental health treatment. Id. The Final Order was effective starting September 7, 2012.
Id. As a result, Mr. Best could not be released to the public on November 28, 2012. See id.
Accordingly, Captain Negron, who was the DOC holding supervisor on November 28,
2012, informed Mr. Best that he was to return to Rikers Island. Best Dep. 59:3–7. She returned him
to Rikers Island that same day. Id.
On December 4, 2012, corrections officers, including Officer Acosta, transported Mr. Best
to Creedmoor Psychiatric Center (“Creedmoor”). Dkt. No. 231-1 (“R56.1 Stmt.”) ¶ 15.; see also
Final Order (identifying Creedmoor as the facility to which Mr. Best was to be released). Upon his
transfer to Creedmoor, Mr. Best no longer in DOC custody. Dkt. No. 230-10.
On October 2, 2018, Mr. Best appeared in court on the Charges. Oct. 2018 Tr. The People
of the State of New York moved to dismiss the Charges in the interest of justice. Id. 3:14–16. The
People argued that several factors weighed in favor of dismissal, including the fact that six years had
elapsed since the Charges had been brought, the fact that Mr. Best had rejected offers to plead to a
noncriminal violation, judicial economy, and the court’s decision to not adopt the findings of the
730 Exam. Id. 3:17–25, 4:1–12. The People also argued that even if Mr. Best were to be found
guilty, the harshest punishment he could receive was time served. Id. 4:2–6. The presiding judge
granted the motion and dismissed the Charges. Id. 5:14–22.
B. Procedural History
On January 28, 2021, Mr. Best, proceeding pro se, initiated this action by filing his first
complaint. Dkt. No. 2. He also requested leave to proceed in forma pauperis. Dkt. No. 1. Then-
Chief Judge Coleen McMahon, to whom this case was assigned, granted that request. Dkt. No. 3.
In his initial complaint, Mr. Best asserted violations of his constitutional rights and brought claims
of false imprisonment, false arrest, and malicious prosecution under 42 U.S.C. § 1983 against various
defendants. See Dkt. No. 2. On June 16, 2022, Mr. Best filed a second amended complaint (the
“SAC”). Dkt. No. 58. On February 22, 2022, Defendants Fontenez and Merchant filed a motion to
dismiss the SAC. Dkt. No. 64.
On December 9, 2022, the Court granted Defendants’ motion to dismiss the SAC in part.
Dkt. No. 84 (“MTD Opp.”). The Court granted the motion as it related to Mr. Best’s claims of false
arrest and false imprisonment because it concluded that those claims were untimely. MTD Opp. at
5–6. The Court granted the motion to dismiss the malicious prosecution claim against Investigator
Fontenez. Id. at 14–15. However, the Court denied the motion to dismiss the malicious
prosecution claim against Officer Merchant. Id. at 7–14. The Court concluded that Mr. Best had
plausibly pleaded that Officer Merchant lacked probable cause to initiate the prosecution and that
the allegations in the complaint did not establish Officer Merchant’s invocation of the affirmative
defense of qualified immunity. Id. at 12–14. In particular, the Court concluded that Mr. Best had
adequately pleaded that Officer Merchant had consciously ignored the fact that Mr. Best had thrown
the soup so that Officer Merchant would intervene to prevent an in-progress assault. Id. at 12–13.
On April 22, 2024, Mr. Best filed his fifth amended complaint, which is the operative
complaint in this matter. Dkt. No. 159 (“FAC”). He asserted a malicious prosecution claim against
Officer Merchant, Officer Acosta, and Captain Negron.2 Id. at 5. He also reprised his claims of
unlawful detention and false arrest. Id. In particular, Mr. Best asserted a claim of false arrest and
unlawful detention against Captain Negron for transferring him back to Rikers Island and for
allowing him to remain there after Justice Best ordered him released on his own recognizance. Id.
He also raised claims of unlawful detention and false arrest against Officer Acosta for transporting
Mr. Best to Creedmoor on December 4, 2012. Id. at 6.
On October 6, 2025, Defendants Acosta, Merchant, and Negron filed a motion for summary
judgment on the claims raised in the operative complaint. See Dkt. No. 231 (“Mem.”); see also R56.1
Stmt.3 Defendants argued that Officer Merchant was entitled to summary judgment because there
was no genuine dispute of material fact that he had probable cause to bring each of the Charges.
Mem. at 5–8. Defendants also argued Captain Negron and Officer Acosta were entitled to summary
judgment because there was no dispute that neither was personally involved in any prosecution of
Mr. Best. Id. at 8–9. Defendants also argued that, in the alternative, Officer Merchant was entitled
to qualified immunity because there was no genuine dispute of material fact that there was at least
arguable probable cause for Mr. Best’s prosecution. Id. at 9–11. Next, Defendants argued that any
claims of false arrest and unlawful imprisonment were time-barred. Id. at 12–13. Defendants also
argued that Mr. Best’s unlawful detention claims failed on the merits because he lawfully remained in
2 Although he also asserted this claim against David Hayes, a retired corrections officer, Mr. Best did not serve Mr.
Hayes within the ninety days of filing the complaint as required by Federal Rule of Civil Procedure 4(m). Accordingly,
the Court dismissed all claims against Mr. Hayes on January 7, 2025. Dkt. No. 196.
3 Defendants did not file copies of the depositions of Mr. Best and Officer Merchant on the public docket. See Dkt.
Nos. 230-1, 230-3. Defendants submitted these documents only in hardcopy “due to file size.” Id. This does not
comport with counsel’s obligations under Local Civil Rule 56.1 As described below, Defendants are ordered to file
copies of those depositions on the public docket of this case.
DOC custody from November 28, 2012 to December 4, 2012 pursuant to the Final Order. Id. at
13–16.
On October 30, 2025, Plaintiff filed his opposition. Dkt. No. 233 (“Opp.”). Mr. Best
argued that Officer Merchant did not have probable cause to initiate a prosecution for assault
because Officer Merchant was not injured by the soup. Id. at 2. Mr. Best argued that malice may be
inferred from the absence of probable cause. Id. He also argued that Officer Merchant was not
entitled to qualified immunity because “[n]o reasonable officer could believe probable cause existed
for assault where no injury occurred.” Id. at 3. Mr. Best also raised a new claim of First
Amendment retaliation against Officer Merchant for the latter’s decision to bring criminal charges
after Mr. Best prevailed in an Article 78 proceeding. Id.
On December 19, 2025, Defendants filed a reply in support of their motion for summary
judgment. Dkt. No. 236 (“Reply”). Defendants first argued that the Court should deem the facts as
stated in their Local Rule 56.1 statement as admitted because Mr. Best did not controvert those facts
with citations to the record. Id. at 2–3. Next, Defendants argued that there was probable cause to
bring an assault charge because Officer Merchant’s injury met the standard for physical injury under
the applicable sections of New York Penal Law. Id. at 3–4. Next, Defendants argued that Plaintiff’s
retaliation claim was procedurally barred because it was not raised in the operative complaint. Id. at
5. They argued that the retaliation claim was also meritless because there was probable cause to
initiate the prosecution. Id. Defendants reprised their argument that even if actual probable cause
did not exist, Officer Merchant was entitled to summary judgment because the undisputed facts
demonstrated that it was objectively reasonable to arrest Mr. Best. Id. at 6–7. Finally, Defendants
argued that they were entitled to summary judgment on the claim of malicious prosecution as it
related to the harassment charge and on the claims of unlawful imprisonment and false arrest
because Mr. Best did not address those arguments in his opposition. Id. at 7–8.
The motion was fully submitted when Mr. Best filed a sur-reply on January 8, 2026. Dkt.
No. 237 (“Sur-reply”). First, Mr. Best argued that the Court should not deem the facts in
Defendants’ Rule 56.1 statement as admitted because Defendants must still meet their burden under
Rule 56 to support their factual assertions with citations to the record. Id. at 2–3. Mr. Best argued
that probable cause for assault was lacking because Officer Merchant’s injury did not meet the
standard for physical injury under relevant New York criminal statute. Id. at 3–4. He also argued
that “at a minimum,” whether Officer Merchant suffered physical injury was a “classic jury
question” for which summary judgment was inappropriate. Id. at 4. Next, he clarified that because,
he argued, Officer Merchant’s initiation of the prosecution was “retaliatory,” there at least “triable
issue” as to whether there was malice to support this malicious prosecution claim. Id. at 4–5. Mr.
Best then reprised his argument that Officer Merchant was not entitled to qualified immunity. Id. at
5. Finally, Mr. Best argued that his malicious prosecution claim had not been abandoned because it
had been “consistently pled, survived multiple motions to dismissed, and [was] squarely addressed in
the summary judgment record.” Id. at 5–6.
II. LEGAL STANDARD
Defendants are entitled to summary judgment on a claim if they can “show[] that there is no
genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is
proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))).
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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Id.
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.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.
2008) (citing Celotex, 477 U.S. at 323–24). To defeat a motion for summary judgment, the non-
movant “must come forward with ‘specific facts showing that there is a genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P.
56(e)). “[M]ere speculation or conjecture as to the true nature of the facts” will not suffice. Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.
1995)). A plaintiff “must do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita, 475 U.S. at 586, and “may not rely on conclusory allegations or
unsubstantiated speculation,” Fujitsu Ltd. v. Fed Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)
(quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).
In determining whether there exists a genuine dispute as to a material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Johnson v. Kilian, 680 F.3d 234, 236 (2d Cir. 2012)
(quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The Court’s job is not to “weigh the
evidence or resolve issues of fact.” Lucente v. IBM Corp., 310 F.3d 243, 254 (2d Cir. 2002); see also
Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“In applying th[e] [summary
judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”).
“Assessments of credibility and choices between conflicting versions of the events are matters for
the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553–54
(2d Cir. 2005) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Circ. 1996)). “[T]he judge must ask
. . . not whether . . . the evidence unmistakably favors one[] side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence presented.” Id. at 553 (quoting
Anderson, 477 U.S. at 252); see also Battino v. Cornial Fifth Ave., LLC, 861 F. Supp. 2d 392, 400
(S.D.N.Y. 2012) (“To avoid summary judgment, all that is required of the non-moving party is a
showing of sufficient evidence supporting the claimed factual dispute as to require a . . . jury’s
resolution of the parties’ differing versions of the truth.” (citing Kessler v. Westchester Cnty. Dep’t of Soc.
Servs., 461 F.3d 199, 206 (2d Cir. 2006))).
Where, as here, the party opposing summary judgment is proceeding pro se, the Court must
construe that party’s submissions “liberally and interpret them to raise the strongest arguments that
they suggest.” Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (internal quotation
marks and citations omitted). “It is well established that a court is ordinarily obligated to afford a
special solicitude to pro se litigants,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly
where motions for summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d
Cir. 2014); accord Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). Proceeding pro se, however, “does
not . . . relieve [a pro se party opposing summary judgment] from the usual requirements of”
opposing such a motion. Fitzpatrick v. N.Y. Cornell Hosp., No. 00-cv-8594, 2003 WL 102853 *5
(S.D.N.Y. Jan. 9, 2003).
“If the moving party seeks summary judgment against a pro se litigant, the moving party is
also required to notify the pro se litigant of the requirements of Rule 56 and Local Civil Rule 56.1.”
Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009); see Notice to Pro Se Litigant Who
Opposes a Motion for Summary Judgment Pursuant to Local Rule 56.2, Dkt. No. 229. “Pro se
litigants are then not excused from meeting the requirements of Local Rule 56.1.” Wali, 678 F. Supp
2d at 178 (citing Teddy Bear Co. v. 1–800–BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004)). Local
Rule 56.1(b) requires that “[t]he papers opposing a motion for summary judgment shall include a
correspondingly numbered paragraph responding to each numbered paragraph in the statement of
the moving party, and if necessary, additional paragraphs containing a separate, short and concise
statement of additional material facts as to which it is contended that there exists a genuine issue to
be tried.” Local Civ. R. 56.1(b). Additionally, each statement of fact in the non-moving party’s
response must “be followed by citation to evidence.” Local Civ. R. 56.1(c).
“[I]n determining whether the moving party has met this burden of showing the absence of
a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts
contained in the moving party’s Rule 56.1 statement. It must be satisfied that the citation to
evidence in the record supports the assertion.” Vt. Teddy Bear Co., 373 F.3d at 244. Thus, “if a
defendant asserts in his Rule 56.1 statement a material fact on which his summary judgment motion
depends but supports it with a wholly unsupportive record citation, a plaintiff's failure to controvert
the statement [does not] absolve[] the district court of even checking whether the citation supports
the assertion. Such an approach would derogate the truth-finding functions of the judicial process
by substituting convenience for facts.” Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir.
2003). “[W]here a pro se plaintiff fails to submit a proper Rule 56.1 statement in opposition to a
summary judgment motion, the Court retains some discretion to consider the substance of the
plaintiff’s arguments, where actually supported by evidentiary submissions.” Wali, 678 F. Supp. 2d
at 178 (citing Holtz v. Rockerfeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)). Considering Plaintiff’s pro se
status, the Court has independently reviewed the complete record determine if Plaintiff’s assertions
are substantiated by competent evidence.
III. DISCUSSION
A. Federal Malicious Prosecution Claim
All defendants must be granted summary judgment on Mr. Best’s malicious prosecution
claim. The undisputed facts in the record establish that Defendants Negron or Acosta were not
personally involved in the prosecution of the Charges. The “personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Victory v.
Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)
(quotation marks omitted)). A defendant may be “personally involved in a constitutional
deprivation within the meaning of 42 U.S.C. § 1983 in several ways.” Williams v. Smith, 781 F.2d 319,
323–324 (2d Cir. 1986) (citations omitted). A defendant may be found liable if they “directly
participated in the infraction . . . .” Id. If they were a “supervisory official,” they may also be found
liable if “after learning of the violation through a report or appeal, [they] may have failed to remedy
the wrong” or if “he or she created a policy or custom under which unconstitutional practices
occurred, or allowed such a policy or custom to continue.” Id.
Captain Negron and Officer Acosta were not involved in the prosecution of the Charges.
Captain Negron did interact with Mr. Best following his release on his own recognizance on those
charges. Best Dep. 59:3–7. However, the conduct of which Mr. Best complains—returning Mr.
Best to Rikers Island—was connected to the Unrelated Charges. See Final Order. Similarly, Officer
Acosta was not involved in the prosecution of the Charges. He transported Mr. Best to Creedmoor
pursuant to the Final Order, which also related to the Unrelated Charges.
Although Officer Merchant was personally involved in the prosecution the Charges, he is
entitled to summary judgment on Mr. Best’s malicious prosecution claim because there is no genuine
dispute of material fact that he had probable cause—or least arguable probable cause—to initiate the
prosecution of those charges. “To prevail on a malicious prosecution claim under New York law, a
plaintiff must show ‘(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.’” Alexander v. City of
Syracuse, 132 F.4th 129, 158 (2d Cir. 2025) (quoting Kee v. City of New York, 12 F.4th 150, 161–62 (2d
Cir. 2021). “Section 1983 requires these same four elements, . . . but it also imposes an additional
one: ‘(5) a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment
rights.’” Id. (quoting Rohman v. New York City Transit Authority, 215 F.3d 208, 215 (2d Cir. 2000)).
“[A] claim for malicious prosecution can lie against an officer who ‘play[ed] an active role in the
prosecution, such as giving advice and encouragement or importuning the authorities to act.’” Id. at
158 n.21 (quoting Bermudez v. City of New York, 790 F.3d 368, 376 (2d Cir. 2015)). “[I]n the Fourth
Amendment malicious prosecution context, probable cause must support each charge brought by
the prosecution.” Id. at 158 (citing Chiaverini v. City of Napoleon, 602 U.S. 556, 562–63 (2024)).
“Actual probable cause is a complete defense to federal false arrest claims.” Sacaza v. City of
New York, 169 F.4th 363, 370 (2d Cir. 2026) (internal quotations omitted).4 “The same is true for
malicious prosecution claims, unless intervening facts discovered between the arrest and the
initiation of prosecution dissipate probable cause.” Id. (internal quotations and citations omitted).
“‘To determine whether probable cause existed, we consider the totality of the circumstances,
reviewing plainly exculpatory evidence alongside inculpatory evidence to ensure the court has a full
sense of the evidence that led the officer to believe that there was probable cause to make an
arrest.’” Id. (quoting Triolo v. Nassau Cnty., 24 F.4th 98, 106 (2d Cir. 2022)). The district court must
“focus [its] analysis on the ‘facts available to the officer at the time of arrest and immediately before
it.’ . . . ‘Law enforcement officers have probable cause to arrest when they have knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime.’” Id. (quoting Triolo, 24 F.4th at 106).
4 In his opposition, Mr. Best argues that Officer Merchant’s decision to initiate the prosecution was retaliation for his
exercise of his First Amendment rights. Opp. at 3. To the extent that this portion of his opposition can be construed as
a request to amend his complaint to include a First Amendment retaliation claim, that request is denied both because it is
untimely and because the claim would be futile. “The existence of probable cause . . . defeat[s] a First Amendment claim
that is premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to
silence [him].” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012).
“[U]nder some circumstances, a police officer’s awareness of the facts supporting a defense
can eliminate probable cause”—specifically, awareness of facts supporting “exculpatory defense[s]”
that “negate the existence of a crime.” Jocks, 316 F.3d at 135. While “an officer may not disregard
plainly exculpatory evidence,” “‘the fact that an innocent explanation may be consistent with the
facts alleged does not negate probable cause.’” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006)
(quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985)) (internal ellipses omitted).
“Probable cause does not require absolute certainty . . . . Courts should look to the ‘totality of the
circumstances’ and ‘must be aware that probable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a
neat set of legal rules.” Id. (quoting Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003), then
Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)) (internal citations omitted).
On the undisputed facts in the record, probable cause supported both Charges. “To
determine whether there was probable cause to prosecute the [two] charges . . . the Court must
consider the elements of each offense.” Smith v. City of New York, No. 1:18-CV-05079, 2021 WL
4267525, at *12 (S.D.N.Y. Sept. 20, 2021). Mr. Best was charged with assault in the third degree
under New York Penal Law § 120.00(1) and with harassment in the second degree under New York
Penal law § 240.26(1). “A person is guilty of assault in the third degree when . . . [w]ith intent to
cause physical injury to another person, he causes such injury to such person or to a third person
. . . .” N.Y. Penal Law § 120.00(1). Physical injury includes “impairment of physical condition or
substantial pain.” Id. § 10.00(9). “‘Substantial pain’ cannot be defined precisely, but it can be said
that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be
substantial.” People v. Chiddick, 8 N.Y.3d 445, 447 (2007). “In defining ‘physical injury’ as consisting
of ‘substantial pain,’ the Legislature intended to set a threshold of something more than a mere
technical battery.” People v. Henderson, 92 N.Y.2d 677, 680 (1999). Thus, “petty slaps, shoves, kicks
and the like delivered out of hostility, meanness and similar motives, are not within the definition of
the statute.” Id. (internal citations and quotations omitted).
As it relates to the second Charge, “[a] person is guilty of harassment in the second degree
when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks or
otherwise subjects such other person to physical contact . . . .” N.Y. Penal Law § 240.26(1). “The
crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened.” People
v. Bartkow, 96 N.Y.2d 770, 772 (2001).
Officer Merchant has met his burden to show that there is an absence of a genuine issue of
material fact that there was probable cause to charge Mr. Best with assault in the third degree.
Officer Merchant was injured as a result of the soup being thrown at him. R56.1 Stmt. ¶¶ 7–8. As
described in Officer Merchant’s deposition testimony and in the contemporaneous documentary
evidence, the injuries were painful and resulted in skin discoloration—consistent with his testimony
that he had been burned.5 Merchant Dep. ¶¶ 25:21–24; see also Use of Force Rep. at 2 (identifying
injuries as “[b]urn marks on [Officer Merchant’s] chest and hand along with irritated skin”). A law
enforcement officer of reasonable caution could believe that this type of physical injury rises above
“a mere technical battery” to constitute physical injury within the meaning of the assault statute.
Henderson, 92 N.Y.2d at 680.
A law enforcement officer of reasonable caution could also believe that Mr. Best intended to
cause injury. Mr. Best was “frustrate[d]” with a different corrections officer and generally “agitated”
in the moments before he threw the soup. Best Dep. 34:12–20. Officer Merchant entered the
situation and concluded that Mr. Best was an agitated and erratic inmate who was angry at prison
5 Mr. Best argues that Officer Merchant has not met his burden because has not produced medical documentation of his
injury. See Opp. at 2. The New York Court of Appeals has not required such specific proof to sustain a prosecution for
third degree assault. See Chiddick, 8 N.Y.3d at 447 (describing the medical treatment as one of several “factual aspects of
a case that can be examined to decide whether enough pain was shown to support a finding of substantiality”).
staff. See Use of Force Report. That initial evaluation was supported by Mr. Best’s offensive use of
foul language in response to Officer Merchant’s order to calm down. Id. Mr. Best threw the
injurious soup at Officer Merchant seconds after his response. See id. That the soup was thrown at
a corrections officer after Mr. Best was observed directing his ire towards two corrections officers
supports a belief that Mr. Best intended to cause injury.
For similar reasons, there is no genuine dispute of material fact that there was probable
cause to prosecute Mr. Best for second degree harassment. Mr. Best subjected Officer Merchant to
physical contact; Mr. Best threw soup at him, and the soup struck him. And, for the same reason
that as there was probable cause to believe that Mr. Best had an intent to injure, an officer of
reasonable caution could believe that the throwing of soup was done with an “intent to harass,
annoy or alarm.” N.Y. Penal Law § 240.26(1).
Mr. Best has not come forward with facts that show that there is a genuine dispute as to the
existence of probable cause for the Charges. Mr. Best argues that there was no probable cause to
charge him with third degree assault for three reasons: first, because Officer Merchant was not
injured; second, because Officer Merchant ignored exculpatory evidence; and third, because Officer
Merchant initiated the prosecution despite being aware that Mr. Best had prevailed at the Article 78
proceeding. The Court addresses these arguments in turn.
Mr. Best has not presented evidence that would create a genuine dispute of material fact as
to whether Officer Merchant’s injury supported probable cause. A fact is material if it “might affect
the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. Here, the fact that
would affect the outcome of the malicious prosecution claim is whether Officer Merchant’s injury
was sufficiently serious such that an officer of reasonable caution would be warranted in the belief
that there was probable cause to initiate a prosecution for third-degree assault. In his attempt to
create a dispute about this fact, Mr. Best affirms that the container of soup was “warm, not hot” and
opines that it could not have burned Officer Merchant. Best. Aff. ¶¶ 4–5. But he does not present
facts that would rebut the objective evidence Defendants proffer to describe Officer Merchant’s
injury. Defendants proffered contemporaneous documentary evidence that—immediately following
the assault—Officer Merchant experienced skin irritation and observed marks consistent with a
burn “on [his] chest and hand . . . .” See Use of Force Report at 2. And Officer Merchant informed
Investigator Fontenez that he “suffered pain and soreness to his chest and right hand.” See
Fontenez Decl. Mr. Best does not dispute the facts supported by this evidence; he only offers his
opinion about the temperature of the soup. These undisputed facts establish that Officer Merchant
was reasonable in his belief that the type of injury he suffered was sufficient to establish probable
cause to initiate a prosecution for third degree assault. Mr. Best’s evaluation of the soup’s inability
to cause a burn amounts to “unsubstantiated speculation,” insufficient to defeat a motion for
summary judgment in the face of concrete facts. Fujitsu Ltd., 247 F.3d at 428.
Mr. Best also does not come forward with specific facts sufficient to show there is a genuine
dispute as to whether Officer Merchant ignored plainly exculpatory evidence at the time of arrest.
“Under New York law, defenses are either exculpatory (eliminating culpability) or mitigating
(reducing culpability).” Jocks, 316 F.3d at 135 (citing People v. Valles, 62 N.Y.2d 36, 38–39 (1984)).
“Justification, including both emergency measures and self-defense, is an exculpatory defense.” Id.
(citing Valles, 62 N.Y.2d at 38–39). “[C]onduct which would otherwise constitute an offense is
justifiable and not criminal when . . . [s]uch conduct is necessary as an emergency measure to avoid
an imminent public or private injury which is about to occur by reason of a situation occasioned or
developed through no fault of the actor, and which is of such gravity that, according to ordinary
standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly
outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the
offense in issue.” N.Y. Penal Law § 35.05(2).
On this record, the Court cannot conclude that a trial is necessary to resolve whether Officer
Merchant disregarded plainly exculpatory evidence that the throwing of the soup was necessary to
avoid an imminent injury. Before Mr. Best threw the soup, he observed several inmates were
moving toward him. Best Dep. 24:6–8. He interpreted that as an imminent assault. Id. Mr. Best
then asked Officer Merchant to “call for assistance.” Id. 25:10–11. At the moment Mr. Best called
for assistance, the room was not very loud, and Officer Merchant stood approximately ten feet away,
and another corrections officer was nearby. Id. 25:3–15. In context, these facts do not evince the
existence of “plainly exculpatory” evidence. No reasonable jury would find justification in these
facts to excuse Mr. Best’s assault on a corrections officer. While Mr. Best, whose mental health was
poor at this time, perceived a threat, two corrections officers were in the vicinity. And fear of an
imminent threat from an inmate does not justify an assault on an officer who was not himself a
threat. See People v. Craig, 78 N.Y.2d 616, 623 (1991) (holding that Section 35.05 does not justify
“conduct for which there is a reasonable, legal alternative course of action”); see also Best Dep. 26:8–
20 (testimony that Mr. Best did not consider “run[ning] towards” Officer Merchant before deciding
to throw the soup). “[T]he totality of the circumstances” warrant a law enforcement officer of
reasonable caution in the belief that Mr. Best’s threw the soup to cause injury to corrections officers
rather than to seek their assistance. Panetta, 460 F.3d at 395; see also Thomas v. Genova, No. 23-7452,
2025 WL 583182, at *2 (2d Cir. Feb. 24, 2025) (summary order).
Finally, Mr. Best does not proffer any evidence that Officer Merchant became aware of facts
between the time of Mr. Best’s arrest and the initiation of the prosecution that would dissipate
probable cause for the Charges. “Under New York law, even when probable cause is present at the
time of arrest, evidence could later surface which would eliminate that probable cause.” Lowth v.
Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996), as amended (May 21, 1996) (citation and internal
quotations omitted). “In order for probable cause to dissipate, the groundless nature of the charges
must be made apparent by the discovery of some intervening fact.” Id. (citing Callan v. State, 73
N.Y.2d 731 (1988)). “[T]he failure to make a further inquiry when a reasonable person would have
done so may be evidence of lack of probable cause.” Colon v. City of New York, 60 N.Y.2d 78, 82
(1983). Mr. Best argues that Officer Merchant did not have probable cause to initiate a prosecution
because his infraction had been previously nullified in an Article 78 proceeding. Best Aff. ¶ 9.
Mr. Best does not proffer any evidence that Officer Merchant was aware that Mr. Best had
even initiated an Article 78 proceeding, much less that it had concluded in Mr. Best’s favor. The
only evidence in the record suggests that Officer Merchant was not aware of the proceeding or its
result. Officer Merchant was not present at a hearing held in connection with the proceeding. Best
Dep. 48:3–4. And there were no interactions between Officer Merchant and Mr. Best in the time
between the Article 78 decision and the initiation of the prosecution. Id. 48:12–20.6 Thus, even
drawing all factual inferences in Mr. Best’s favor, Mr. Best has not established that there is genuine
dispute of fact that Officer Merchant became aware of facts after the arrest that would have vitiated
probable cause. Accordingly, Officer Merchant is entitled to summary judgment because he had
probable cause to initiate a prosecution on the Charges.
Even if Officer Merchant did not have actual probable cause to initiate the prosecution, he is
entitled summary judgment on the malicious prosecution claim for the separate reason that he is
entitled to qualified immunity. “In certain circumstances, qualified immunity shields government
actors . . . from liability for actions taken in their official capacity—providing ‘ample protection to all
but the plainly incompetent or those who knowingly violate the law.’” Sacaza, 169 F.4th at 369 (2d
Cir. 2026) (quoting Dufort v. City of New York, 874 F.3d 338, 354 (2d Cir. 2017)). “To determine
whether a police officer is entitled to qualified immunity, courts consider: (1) whether the facts
6 Nor is there evidence of the basis for the decision in the Article 78 proceeding. The decision may not have rested
upon a substantive evaluation of the merits of the disciplinary sanction.
evince that the police officer violated a statutory or constitutional right; and (2) whether the right
was clearly established at the time of the challenged conduct.” Id. at 369–70 (internal quotations
omitted). In the context of malicious prosecution, “qualified immunity applies where it was
objectively reasonable to believe there was probable cause to make the arrest, or there was arguable
probable cause—that is, where reasonable . . . officers could disagree as to the existence of probable
cause.” Id. at 370. “Therefore, it follows that to dissipate arguable probable cause, the
circumstances or facts . . . need to be such that no reasonable police officer could find that probable
cause existed.” See id (citing Triolo, 24 F.4th at 108). “The party asserting a qualified immunity
defense bears the burden of showing actual probable cause or arguable probable cause.” Id. at 370.
Even if Officer Merchant did not have actual probable cause to initiate the prosecution, he
had arguable probable cause. Based on the undisputed facts in the record, a reasonable officer could
find that probable cause existed to initiate the prosecution for the Charges. Officer Merchant
entered a room and observed an agitated inmate who was “yelling and screaming.” B Form. Mr.
Best tried to get his assistance. Officer Merchant—seeking to de-escalate the situation—ordered
Mr. Best to calm down. Mr. Best’s verbal response evinced both his continued agitation and
antagonism towards corrections officers. Seconds later, Officer Merchant was hit with soup and
suffered a painful injury. Even if another officer in Officer Merchant’s position might have
interpreted Mr. Best’s agitated conduct as a sign that Mr. Best needed assistance, it was objectively
reasonable for Officer Merchant—having just been hurt by Mr. Best—to instead interpret it as
evidence of Mr. Best’s desire to harm the facility’s staff. Therefore, even assuming that Officer
Merchant did not have probable cause to arrest him, he is entitled to qualified immunity because
reasonable officers could disagree about the existence of probable cause. Accordingly, the Court
must grant Officer Merchant summary judgment on Mr. Best’s claim of malicious prosecution.
B. False Arrest and False Imprisonment
To the extent that Mr. Best’s fifth amended complaint may be construed to raise a claims
false arrest and false imprisonment, the Court does not address those claims here. The Court
dismissed those claims because the statute of limitations had run. MTD Op. at 17. The Court
concluded that Mr. Best was not entitled the equitable tolling. Id. Because repleading would have
been futile, the Court denied Mr. Best leave to amend those claims. Id. Because the false arrest and
false imprisonment claims are no longer part of this action, the Court does not address the parties’
arguments raised in connection with Defendants’ motion for summary judgment.
C. Possible State Law Claims
The Court grants Defendants summary judgment on any state law claim of malicious
prosecution the fifth amended complaint may be read to suggest and declines to exercise
supplemental jurisdiction over any other state law claim the fifth amended complaint may be read to
suggest. The liberal construction afforded to submissions by pro se litigants requires consideration of
potential state law claims, even if the plaintiff does not specifically assert state law claims. See
McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156–57 (2d Cir. 2017). Though Mr. Best only raised
a federal malicious prosecution claim, the Court also evaluates the motion for summary judgment on
a state law malicious prosecution claim.
Defendants entitled to summary judgment on Mr. Best’s state law claim of malicious
prosecution. Just as for the federal claims, Defendants Negron and Agosta are entitled to summary
judgment because the undisputed facts in the record do not demonstrate that they “commenced or
continued the underlying criminal proceeding.” De Lourdes Torres v. Jones, 26 N.Y.3d 742, 760–61
(2016). As it relates to Officer Merchant, claims of malicious prosecution arising under New York
state law require that the plaintiff show “the absence of probable cause for the criminal
proceeding.’” Alexander, 132 F.4th at 158. The “probable cause” standard is the same under New
York state and federal law. See Boyd, 336 F.3d at 76 (“Probable cause, in the context of malicious
prosecution, has also been described as such facts and circumstances as would lead a reasonably
prudent person to believe the plaintiff guilty.” (citing Colon, 60 N.Y.2d at 82)); see also Raysor v. Port
Auth. of New York & New Jersey, 768 F.2d 34, 39–40 (2d Cir. 1985) (describing the “reasonable cause”
standard in the context of a lawful warrantless arrest under New York Criminal Procedure Law
§ 140.10 as “the equivalent of probable cause”). Thus, for the same reason that Officer Merchant is
entitled to the probable cause defense to Mr. Best’s Section 1983 claim, he is also entitled to that
defense on the equivalent state law claim.
Just as Officer Merchant is entitled to summary judgment on Mr. Best’s Section 1983 claim
because he is entitled to qualified immunity, he is entitled to summary judgment on the state law
claim under the equivalent New York common-law doctrine. See Jenkins v. City of New York, 478
F.3d 76, 86 & n.8 (2d Cir. 2007) (“‘Qualified immunity’ protects an official from liability under
federal causes of action but is not generally understood to protect officials from claims based on
state law. Nevertheless, a similar doctrine exists under New York common-law.”). Accordingly, the
Court grants Defendants summary judgment on Mr. Best’s state law claim of malicious prosecution.
The Court declines to exercise supplemental jurisdiction over any other state law claims that
the fifth amended complaint may be read to suggest. The decision to exercise supplemental
jurisdiction over a state law claim is by nature discretionary. See City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156, 173 (1997). Where claims satisfy the “same case or controversy” test under 28 U.S.C.
§ 1367(a), however, “the discretion to decline supplemental jurisdiction is available only if founded
upon an enumerated category of subsection 1367(c).” Shahriar v. Smith & Wollensky Rest. Grp., Inc.,
659 F.3d 234, 245 (2d Cir. 2011) (quoting Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d
442, 448 (2d Cir. 1998)). Subsection 1367(c) permits a court to decline to exercise supplemental
jurisdiction if:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially
predominates over the claim or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c). Here, subsection (3) applies because the Court has dismissed all of the claims
over which it had original jurisdiction. Therefore, the Court may exercise its discretion to decline
supplemental jurisdiction over any remaining state law claims.
Both the Second Circuit and the Supreme Court have “held that when the federal claims are
dismissed the ‘state claims should be dismissed as well.’” In re Merrill Lynch Ltd. Partnerships Litig.,
154 F.3d 56, 61 (2d Cir. 1998) (quoting Gibbs, 383 U.S. at 726). Even “where at least one of the
subsection 1367(c) factors is applicable, a district court should not decline to exercise supplemental
jurisdiction unless it also determines that doing so would not promote the values articulated in Gibbs
. . . : economy, convenience, fairness, and comity.” Jones v. Ford Motor Credit Co., 358 F.3d 205, 214
(2d Cir. 2004). However, “the Supreme Court has stated that ‘in the usual case in which all federal-
law claims are eliminated before trial, the balance of factors to be considered under the pendant
jurisdiction doctrine— judicial economy, convenience, fairness and comity—will point toward
declining jurisdiction over the remaining state-law claims.’” In re Merrill Lynch, 154 F.3d at 61
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
This is the usual case. The Court has evaluated the values articulated in Gibbs in the context
of this case and has concluded that they weigh in favor of the Court declining supplemental
jurisdiction. Thus, the Court declines to exercise supplemental jurisdiction over any other state law
claims that Mr. Best’s fifth amended complaint may be read to suggest. Accordingly, the Court
dismisses those state law claims without prejudice.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED.
Defendants are ordered to file electronic copies of the depositions of Mr. Best and Officer Merchant
on the docket of this case no later than one week following the date of this order. ‘The Court
requests that counsel for Defendants provide Plaintiff with copies of unpublished cases cited in this
decision pursuant to Local Rule of the United States District Courts for the Southern and Eastern
Districts of New York 7.2.
The Court certifies, pursuant to 20 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
‘The Clerk of the Court is directed to mail a copy of this order to Plaintiff, to terminate all
pending motions, to enter judgment in favor of Defendants, and to close this case.
SO ORDERED.
Dated: May 12, 2026
New York, New York JA A (.9,, A .
soa . WOODS
United States District Judge
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