# Atkinson

> District Court, S.D. New York · June 29, 2026

URL: https://www.frixlaw.com/law-library/cases/11392352

## Case

- **Full name:** Daniel Atkinson v. City of Newburgh, et al.
- **Court:** District Court, S.D. New York
- **Decided:** June 29, 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
DANIEL ATKINSON,

Plaintiff,
-against-

CITY OF NEWBURGH, et al,
24-cv-6724 (NSR)
OPINION & ORDER

Defendants.

---------------------------------------------------------------------X
NELSON S. ROMÁN, United States District Judge:
Plaintiff Daniel Atkinson (“Plaintiff” or “Atkinson”), represented by counsel, brings this
action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the City of Newburgh, Police
Officers Kevin Jodice (“Jodice”), Mark Mountain (“Mountain”), and Terrance Peterson
(“Peterson”), and John and Jane Doe Defendants (collectively, “Defendants”), asserting claims for
excessive force, false arrest, failure to intervene, and malicious prosecution against the individual
Defendants, as well as a claim for municipal liability against the City of Newburgh under Monell
v. Department of Social Services, 436 U.S. 658 (1978).
Before Court is Defendants’ motion to dismiss Plaintiff’s First Amended Complaint
(“FAC”) under Federal Rules of Civil Procedure § 12(b)(6). (Mot., ECF No. 30.) For the reasons
that follow, Defendants’ motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
I. Factual Background
The following facts are drawn from the FAC and construed in the light most favorable to
the Plaintiff at this stage.
On June 6, 2023, just before 11:30 a.m., Plaintiff encountered an individual in the hallway
of 191 Broadway, Newburgh, New York, the building in which Plaintiff resides. (FAC ¶ 12.) The
individual appeared to be attempting to steal tools. (Id.) Plaintiff confronted the individual and
then followed him into the street. (Id. ¶ 13.) Defendant Officer Mountain observed Plaintiff on the

public street and asked him, in sum and substance, what the problem was. (Id. ¶ 14.) Plaintiff, who
was not engaged in any illegal activity, walked away from Defendant Mountain. (Id. ¶ 15.)
Defendant Mountain’s interaction with Plaintiff was observed by Defendants Peterson and Jodice.
(Id. ¶ 16.)
As Plaintiff was walking away, a defendant officer, believed by Plaintiff to be Peterson,
used force to detain and arrest Plaintiff by tackling him to the ground and fracturing his wrist. (Id.
¶ 17.) Once Plaintiff was on the ground, Defendants Mountain, Peterson, and Jodice participated
in handcuffing and arresting him. (Id. ¶ 18.) Defendants then transported Plaintiff to the police
precinct and subsequently to St. Luke’s Hospital. (Id. ¶ 19.)
Defendant Mountain issued Plaintiff a desk appearance ticket compelling his appearance

in Newburgh City Court to face charges of Obstruction of Governmental Administration. (Id. ¶
20.) Plaintiff alleges that the criminal proceeding was initiated without probable cause. Plaintiff
further alleges that he was compelled to return to court until October 6, 2023, at which time the
charges were adjourned in contemplation of dismissal (“ACD”). (Id. ¶ 22.) The charges were
ultimately dismissed and sealed on April 6, 2024. (Id. ¶ 22.)
As a result of the incident, Plaintiff sustained a displaced right distal radius fracture. (Id. ¶
23.) On June 20, 2023, Plaintiff underwent open reduction internal fixation surgery to repair the
fracture. (Id. ¶ 23.) The FAC alleges that Defendants Mountain, Peterson, Jodice, and John and
Jane Doe either directly participated in the acts described above or, in the alternative, failed to
intervene. (Id. ¶ 24.)
Plaintiff further alleges that the foregoing acts were carried out by Defendants in their
capacities as police officers and pursuant to the customs, usages, practices, procedures, and rules

of the City of Newburgh and the Newburgh Police Department. (Id. ¶ 28.) Plaintiff additionally
alleges that the incident was not isolated and that the City was aware, through lawsuits, the filings
of notices of claim, complaints, and media coverage, of ongoing issues concerning the use of force
by the Newburgh Police Department yet failed to take corrective action. (Id. ¶¶ 31-34.)
Furthermore, the FAC asserts that the City of Newburgh was aware that the individual defendants
lacked the objectivity, temperament, maturity, discretion, and disposition necessary to serve as
police officers, yet retained them and failed to adequately train and supervise them. (Id. ¶ 35.)
II. Procedural Background
Plaintiff commenced this action on September 4, 2024, by filing a Complaint against
Defendants City of Newburgh, Jodice, Mountain, Peterson, and John and Jane Doe Defendants,
asserting claims arising from an incident occurring on June 6, 2023. (ECF No. 1.) Plaintiff

subsequently filed the FAC on July 2, 2025. (See generally FAC, ECF No. 20.) On November 10,
2025, Defendants filed their motion to dismiss the FAC and corresponding memorandum of law
in support. (Mot., ECF No. 30; Mem., ECF No. 32.) Plaintiff filed his opposition that same day
(Opp., ECF No. 36) and Defendants filed a reply in further support of dismissal. (Reply, ECF No.
37.)
LEGAL STANDARD
I. Federal Rule of Civil Procedure 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss,
a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic recitation[s] of

the elements of a cause of action will not do”; rather, the complaint's “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In
applying these principles, the Court may consider facts alleged in the complaint and documents
attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53
(2d Cir. 2002) (internal quotation marks and citation omitted).
II. 42 U.S.C. Section 1983

Section 1983 provides, in relevant part, that: “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section 1983
“is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and federal statutes that it describes.”
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.
2010). To state a claim under Section 1983, a plaintiff must allege two essential elements: “(1) that
the defendants deprived him of a right ‘secured by the Constitution or laws of the United States’;
and (2) that they did so ‘under color of state law.’” Giordano v. City of New York, 274 F.3d 740,
750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)).
DISCUSSION
Plaintiff asserts twelve causes of action. (See generally FAC.) The first five are federal
causes of action against Defendants under 42 U.S.C. Section 1983 for excessive force, false arrest,
malicious prosecution, failure to intervene, and municipal liability. (Id. ¶¶ 37–53.) Plaintiff also

raises multiple state-law claims. (Id. ¶¶ 64–103.) The Court addresses each claim in turn.
I. Federal Claims Against Individual Officers
A. Excessive Force
As a threshold matter, the Court dismisses the excessive force claims against Defendants
Mountain and Jodice. To survive a motion to dismiss, a complaint must contain sufficient factual
matter to state a claim that is plausible on its face: Ashcroft v. Iqbal, 556 U.S. at 678. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, are
insufficient. Id. In addition, where a Section 1983 claim is brought against individual defendants,
the plaintiff must allege the personal involvement of each defendant in the alleged constitutional
violation. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010).

Here, although Plaintiff alleges that Mountain and Jodice used excessive force, the FAC
does not allege how or when either defendant did so. According to Plaintiff, Mountain and Jodice
were merely present during Plaintiff’s arrest and participated in handcuffing him. (FAC ¶ 18.) It
does not allege that the handcuffing caused injury, was excessively tight, or otherwise violated
Plaintiff’s constitutional rights. Moreover, it does not identify any other alleged use of force by
Mountain or Jodice. (See Opp. at 5.) Accordingly, the excessive force claims against Defendants
Mountain and Jodice are dismissed.
The remaining issue is whether Plaintiff has plausibly stated that Peterson used excessive
force during his initial interaction with Plaintiff. Claims alleging that law enforcement officers
used excessive force during an arrest, investigatory stop, or other seizure are analyzed under the
Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 394
(1989). Under this standard, courts balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests” against the governmental interests at stake. Id. at 396

(quoting United States v. Place, 462 U.S. 696, 703 (1983)). This inquiry is fact-specific and
requires careful attention to the facts and circumstances of each case, including “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.; see
also Tennessee v. Garner, 471 U.S. 1, 8–9 (1985).
The pleadings reflect a single instance of excessive force against Plaintiff: that “as Plaintiff
was lawfully walking away… [Peterson] used unreasonable force to detain and arrest Plaintiff,
tackling Plaintiff to the ground without justification, fracturing Plaintiff’s wrist.” (FAC ¶ 17.)
Applying the Graham factors to these allegations, Plaintiff has plausibly stated an excessive force
claim against Peterson. The FAC does not allege facts suggesting that Plaintiff posed an immediate

threat to officer safety, actively resisted arrest, or attempted to flee in a manner that would justify
the degree of force allegedly used. According to Plaintiff, he was not engaged in illegal activity
and was walking away when Peterson allegedly tackled him. (FAC ¶¶ 15, 17.) The force alleged
was significant: Peterson tackled Plaintiff to the ground with enough force to fracture his wrist.
(FAC ¶ 17.) Although Plaintiff’s decision to walk away may have raised suspicion, such conduct
does not, at this stage, justify the degree of force allegedly used or the resulting injury. Accepting
these allegations as true and drawing all reasonable inferences in Plaintiff’s favor, Plaintiff
successfully states an excessive force claim against Peterson.
Accordingly, Plaintiff’s excessive force claim against Peterson survives Defendants’
motion to dismiss.
B. False Arrest
A claim for false arrest under Section 1983 is “substantially the same” as a claim for false
arrest under New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Ackerson v. City of

White Plains, 702 F.3d 15, 19 (2d Cir. 2012). Under New York law, a plaintiff asserting false arrest
must establish that: “(1) the defendant intended to confine him, (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.” Broughton v. State, 37 N.Y.2d 451, 456 (1975). Probable cause
constitutes a complete defense to a false arrest claim under both New York law and Section 1983.
Weyant, 101 F.3d at 852; Ackerson, 702 F.3d at 19.
According to the FAC, Plaintiff alleges that Defendant Peterson used unreasonable force
to detain and arrest him by tackling him to the ground without justification. (FAC ¶ 17.) Plaintiff
further alleges that, once on the ground, Defendants Mountain, Peterson, and Jodice unnecessarily
and unreasonably handcuffed and arrested him despite knowing that Plaintiff had not committed a

crime. (Id. ¶ 18.) Construing these allegations in the light most favorable to Plaintiff, the FAC
sufficiently pleads the first three elements of a false arrest claim. Defendants intended to confine
Plaintiff using physical force and handcuffs, Plaintiff was conscious of the confinement, and
Plaintiff did not consent to the confinement.
Defendants principally dispute whether each officer was personally involved in the arrest
and whether the arrest was supported by probable cause. (Mem. at 5.) As to personal involvement,
although the allegations concerning Jodice are sparse, Plaintiff specifically alleges that Mountain,
Peterson, and Jodice participated in handcuffing and arresting him. (FAC ¶ 18.) While the FAC
does not delineate the specific actions undertaken by each officer during the arrest, Plaintiff's
allegation that all three officers participated in handcuffing and arresting him permits the
reasonable inference that each was personally involved in the challenged conduct. At the pleading
stage, these allegations are sufficient to plausibly allege each officer’s personal involvement in the
arrest.

The remaining issue is whether the confinement was privileged, namely, whether
Defendants had probable cause to arrest Plaintiff. In Maryland v. Pringle, the Supreme Court
emphasized that probable cause is assessed under the totality of the circumstances by considering
whether the historical facts, viewed from the standpoint of an objectively reasonable officer,
establish probable cause. Maryland v. Pringle, 540 U.S. 366, 371 (2003). An officer’s subjective
intent or reasoning is irrelevant so long as the objective facts known to the officer support probable
cause. Zellner v. Summerlin, 494 F.3d 344, 368–69 (2d Cir. 2007).
The FAC does not establish probable cause. Plaintiff alleges only that he was not engaged
in illegal activity and walked away from Defendant Mountain. (FAC ¶ 15.) Courts have recognized
that flight or refusal to cooperate, without additional indicia of criminal activity, is insufficient to

establish probable cause. See People v. Howard, 50 N.Y.2d 583, 592 (1980); see also United States
v.Goines, 604 F. Supp. 2d 533, 540 (E.D.N.Y. 2009) (finding that merely walking down the street,
even near individuals who appeared to be smoking marijuana, did not itself establish probable
cause). Thus, Plaintiff’s decision to walk away, standing alone, does not establish probable cause
for arrest.
Nor do the allegations in the FAC establish probable cause for Obstruction of
Governmental Administration, the criminal offense with which Plaintiff was charged. To establish
probable cause for that offense, Defendants must point to facts suggesting that Plaintiff
intentionally obstructed, impaired, or prevented or attempted to prevent a public servant from
performing an official function through intimidation, physical force, interference, or by means of
an independently unlawful act. See N.Y. Penal Law § 195.05; Lennon v. Miller, 66 F.3d 416, 424
(2d Cir. 1995).
The FAC alleges only that Plaintiff, who was not engaged in any illegal activity, walked

away from Defendant Mountain. (FAC ¶ 15.) It does not allege that Plaintiff physically interfered
with an officer, prevented an officer from performing an official function, or otherwise engaged
in independently unlawful conduct.
Defendants’ probable-cause argument relies on facts not alleged in the FAC, including that
Plaintiff and another man were running from officers or that the incident occurred in a chaotic
scene requiring immediate police intervention. (Mem. at 8.) At the motion-to-dismiss stage,
however, the Court is limited to the facts alleged in the FAC and must draw all reasonable
inferences in Plaintiff’s favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013).
Accepting those allegations as true, the Court concludes that Plaintiff has plausibly alleged that
Officers Mountain, Peterson, and Jodice lacked probable cause to arrest him. Because probable

cause constitutes the privilege that defeats a false arrest claim, and no such privilege has been
adequately established for purposes of this motion, Defendants’ motion to dismiss Plaintiff’s false
arrest claim must be denied.
C. Section 1983 Malicious Prosecution
To prevail on a Section 1983 malicious prosecution claim, a plaintiff must plausibly allege a
Fourth Amendment violation and the elements of malicious prosecution. See Guillen v. City of
New York, 625 F. Supp. 3d 139, 154–55 (S.D.N.Y. 2022). Under New York law, those elements
are: "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of
the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and
(4)actual malice as a motivation for the defendant's actions." Dettelis v. Sharbaugh, 919 F.3d 161,
163 (2d Cir. 2019) (quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). In their motion
papers, Defendants address only the first three elements of Plaintiff’s malicious prosecution claim.
(See generally Mem.)
As a threshold matter, Plaintiff appears to assert this claim only against Defendant

Mountain, who allegedly issued the appearance ticket charging Plaintiff with Obstruction of
Governmental Administration. (FAC ¶ 20.) It is well established that, "[t]o establish a § 1983
claim, a plaintiff must show the defendants' personal involvement in the alleged constitutional
violation." Boley v. Durets, 687 F. App'x 40, 41 (2d Cir. 2017) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994)). Accordingly, to the extent the FAC can be construed to assert a malicious
prosecution claim against Defendants Peterson or Jodice, that claim must be dismissed because
the FAC contains no allegations plausibly suggesting their personal involvement in the initiation
or continuation of the prosecution. See Tarrant v. City of Mount Vernon, No. 20-CV-09004
(PMH), 2021 WL 5647820, at 9-10 (S.D.N.Y. Dec. 1, 2021)
In the Section 1983 context, a plaintiff must also demonstrate “a seizure or other perversion

of proper legal procedures implicating [his] personal liberty and privacy interests under the Fourth
Amendment.” Lanning v. City of Glens Falls, 908 F.3d 19, 24 (2d Cir. 2018), abrogated on other
grounds by Thompson v. Clark, 596 U.S. 36 (2022). Post-arraignment restrictions may constitute
such a seizure where, for example, a plaintiff is required to make repeated court appearances or is
subject to travel restrictions. See Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997). By contrast,
a pre-arraignment, non-felony summons requiring a later court appearance, without additional
restrictions, does not constitute a Fourth Amendment seizure. Burg v. Gosselin, 591 F.3d 95, 98
(2d Cir. 2010). Thus, to state a Section 1983 malicious prosecution claim, Plaintiff must plausibly
allege that the criminal proceeding caused a deprivation of liberty consistent with the Fourth
Amendment.
Here, Plaintiff alleges that he was issued a desk appearance ticket that compelled him to
appear in Newburgh City Court and required him to return to court on October 6, 2023. (FAC ¶¶

20, 22.) However, the FAC does not specify whether or when Plaintiff was arraigned, how many
mandatory court appearances he made, whether Plaintiff was subjected to any travel restrictions
or conditions of release, or whether any additional restraints were imposed on his liberty during
the pendency of the proceedings. Indeed, Plaintiff’s opposition acknowledges that the FAC does
not presently plead the number of court appearances or arraignment-related facts, although
Plaintiff contends those facts could be added by amendment. (Opp. at 8.)
Unlike in Murphy, Plaintiff does not allege multiple mandatory court appearances coupled with
significant restrictions on his liberty. Rather, the allegations are more closely aligned to those in
Burg, where the issuance of a summons requiring a future court appearance, without more, was
held insufficient to constitute a Fourth Amendment seizure. See Burg, 591 F.3d at 98. Thus, to the

extent Plaintiff alleges that the required court appearance or appearances constituted a deprivation
of liberty, those allegations are insufficient. On this basis, Plaintiff’s Section 1983 malicious
prosecution claim is dismissed without prejudice.
Because Plaintiff’s Section 1983 malicious prosecution claim fails for lack of a pleaded Fourth
Amendment seizure, the Court need not decide whether Plaintiff has adequately pleaded actual
malice. Nor does the Court dismiss the Section 1983 malicious prosecution claim based on
favorable termination. Under Thompson v. Clark, a plaintiff asserting a Fourth Amendment
malicious prosecution claim under Section 1983 need only show that the criminal prosecution
ended without a conviction. Thompson v. Clark, 596 U.S. 36, 49 (2022).1
0F
D. Failure to Intervene
The Second Circuit has long recognized that law enforcement officers have an affirmative
duty to intervene to prevent fellow officers from violating an individual’s constitutional rights
where they possess a realistic opportunity to do so. See Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994). An officer who fails to intervene may be held liable for the preventable harm caused
by another officer where the officer observes or has reason to know that: (1) excessive force is
being used, see O’Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir. 1988); (2) a citizen has been
unjustifiably arrested, see Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir. 1982); or (3) another
constitutional violation has been committed by a law enforcement official, see O’Neill, 839 F.2d
at 11. Liability attaches only where the officer had a realistic opportunity to intervene and prevent
the harm from occurring. Anderson, 17 F.3d at 557; O’Neill, 839 F.2d at 11–12. Whether an officer
had sufficient time or was otherwise capable of preventing the harm is generally a question of fact

for the jury, unless, viewing the evidence in the light most favorable to the plaintiff, no reasonable
jury could conclude that the officer had a realistic opportunity to intervene. Anderson, 17 F.3d at
557.
Here, Plaintiff fails to plausibly allege a failure-to-intervene claim based on Peterson’s
alleged use of force. To the extent the claim is asserted against Peterson, it is duplicative of the
excessive force claim because Peterson is the officer alleged to have used the force. As to

1 Under Thompson v. Clark, a Section 1983 malicious prosecution plaintiff need only show that the underlying
criminal prosecution ended without a conviction; he need not show that the termination affirmatively indicated
innocence. 596 U.S. 36, 49 (2022). Accordingly, although an ACD may not constitute favorable termination for
purposes of a New York malicious prosecution claim, the ACD does not, by itself, defeat the favorable-termination
element of Plaintiff’s Fourth Amendment malicious prosecution claim under Section 1983.
Defendants Mountain and Jodice, the FAC does not plead facts establishing that either officer had
a realistic opportunity to intervene before the alleged tackle occurred. Plaintiff alleges only that
Defendants “participated in needlessly and otherwise unreasonably handcuffing plaintiff” (FAC ¶
18)but does not plead facts establishing where Mountain or Jodice were positioned, whether they

observed Peterson’s alleged tackle, how rapidly the incident unfolded, or whether either officer
had sufficient time to prevent the alleged use of force before it occurred.
Even assuming Mountain or Jodice were present, Plaintiff alleges only a single tackle, not
a prolonged use of force or a series of acts that would have afforded another officer time to
intervene. The FAC contains no allegations suggesting that the alleged tackle was prolonged or
that the force continued for a sufficient duration such that another officer could realistically
intervene. See O’Neill, 839 F.2d at 11–12 (holding that officers lacked a realistic opportunity to
intervene where the use of force occurred in “rapid succession”). Rather, the allegations suggest a
single, rapidly unfolding use of force occurring during Plaintiff’s attempted detention, followed
by an immediate handcuffing.

Because Plaintiff fails to plausibly allege that Mountain or Jodice had sufficient time or
ability to prevent Peterson’s alleged tackle, the failure-to-intervene claim must be dismissed to the
extent it is predicated on excessive force. To the extent Plaintiff predicates the claim on the alleged
false arrest, the claim is duplicative because Plaintiff alleges that the individual officers directly
participated in the arrest rather than merely failing to stop another officer’s conduct. Accordingly,
Plaintiff’s failure-to-intervene claim is dismissed without prejudice.
II. The Monell Claim
Under Monell v. Department of Social Services, a municipality may be held liable under
Section 1983 where a plaintiff demonstrates that the deprivation of a constitutional right was
caused by an official municipal policy, custom, or practice. 436 U.S. 658, 690–91 (1978).
However, a municipality may not be held liable solely on a theory of respondeat superior for the
unconstitutional acts of its employees. Id. at 691. To state a Monell claim, a plaintiff must plausibly
allege “(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) (internal

quotation marks omitted).
As the Supreme Court later clarified, municipal liability under Monell carries a stringent
causation requirement; the municipal policy or custom must be the “moving force” behind the
alleged constitutional injury. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997). Accordingly, failure-to-train or failure-to-supervise claims generally require factual
allegations showing a pattern of similar constitutional violations demonstrating deliberate
indifference by the municipality. Connick v. Thompson, 563 U.S. 51, 61–62 (2011). A single
incident of unconstitutional conduct is ordinarily insufficient to impose Monell liability absent
facts showing that the conduct was caused by an existing unconstitutional municipal policy. City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). Moreover, a plaintiff must plausibly

allege an “affirmative link” between the alleged training deficiencies and the specific
constitutional violation at issue, such that the municipal policy was the “moving force” behind the
injury. Clarke v. Antonini, No. 21 CIV. 1877 (NSR), 2022 WL 4387357, at *6 (S.D.N.Y. Sept. 22,
2022).
Plaintiff alleges that Defendants’ conduct was carried out pursuant to a “custom, usage,
practice, procedure, or rule” prohibited by the United States Constitution. (FAC ¶ 29.) The FAC
further alleges that the incident at issue “was not an isolated incident,” and that the City was aware,
“from lawsuits, notices of claim, and complaints filed with the Newburgh Police Department,” that
its officers, including the named Defendants, were insufficiently trained regarding the use of force.
(Id. ¶ 31.)
The FAC identifies four lawsuits alleging that officers of the Newburgh Police Department
used excessive force while effectuating arrests and taking individuals into custody. (Id. ¶ 32.)

Plaintiff also references media coverage allegedly documenting ongoing and systemic issues
concerning the use of force within the Newburgh Police Department. (Id. ¶ 33.) The FAC further
alleges that the City was aware that the individual officers lacked the “objectivity, temperament,
maturity, discretion, and disposition” necessary to serve as police officers. (Id. ¶ 35.) Despite this
alleged awareness of the officers’ disposition and the recurring systemic issues within the
department, Plaintiff contends that the City nevertheless “failed to take corrective action.” (Id. ¶
34.)
These general allegations, lacking in any specificity, are insufficient to state a plausible
Monell claim. Although Plaintiff references prior lawsuits and media reports concerning alleged
excessive force by Newburgh police officers, the FAC does not plead facts describing the

underlying incidents, the officers involved, the disposition of those matters, whether the City
admitted wrongdoing or was found liable, or how those incidents plausibly placed the City on
notice of the particular training or supervisory deficiencies alleged here. Nor does the FAC allege
facts connecting any municipal policy, custom, or failure to train to the constitutional injuries
Plaintiff allegedly suffered.
Indeed, in Tieman v. City of Newburgh, the court rejected similar allegations against the
same Defendant, holding that references to other lawsuits, standing alone, were insufficient to
plausibly allege a widespread municipal custom or policy for purposes of Monell liability. Tieman
v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26,
2015). The same deficiency is present here. Plaintiff relies principally on generalized assertions
and references to unrelated incidents but alleges no facts plausibly demonstrating a persistent and
widespread municipal practice, deliberate indifference on the part of municipal policymakers, or
a direct causal connection between any municipal policy or custom and the constitutional

violations alleged. Accordingly, Plaintiff has failed to plausibly allege that a municipal policy or
custom was the moving force behind the alleged constitutional injuries. Defendants' motion to
dismiss Plaintiff's Monell claim is therefore granted, and the claim is dismissed without prejudice.
III. Qualified Immunity
The doctrine of qualified immunity shields individual government officials from civil
liability unless their conduct violates “clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right
is clearly established only where its contours are sufficiently definite so that a reasonable official
would understand that his conduct violates that right. Kisela v. Hughes, 584 U.S. 100, 104 (2018).
Typically, the defense of qualified immunity will “rest on an evidentiary showing of what
the defendant did and why.” Lamzot v. Phillips, No. 04-CV-6719 (LAK), 2006 WL 686578, at *8

(S.D.N.Y. Mar. 16, 2006) (citing Curry v. City of Syracuse, 316 F.3d 324, 334 (2d Cir. 2003)). On
a Rule 12(b)(6) motion, however, “the facts supporting the defense [must] appear on the face of
the complaint.” Id. (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998)).
Accordingly, dismissal on qualified-immunity grounds is appropriate only where the defendants'
entitlement to the defense is established as a matter of law. Id. (quoting Citibank, N.A. v. K-H
Corp., 968 F.2d 1489, 1494 (2d Cir. 1992)). Because only Plaintiff’s excessive force claim against
Peterson and false arrest claims against Mountain, Peterson, and Jodice survive Defendants’
motion to dismiss, the Court considers whether the individual Defendants are nevertheless entitled
to qualified immunity on those surviving federal claims.
A. Excessive Force
According to Plaintiff, Peterson tackled him to the ground with enough force to fracture
his wrist, even though Plaintiff was not engaged in illegal activity, did not pose an immediate
threat, and was walking away. (FAC ¶¶ 15, 17.) Accepting those allegations as true and drawing
all reasonable inferences in Plaintiff's favor, the Court cannot conclude from the face of the FAC

that Peterson's alleged use of force was objectively reasonable as a matter of law. Nor can the
Court conclude, at this stage, that Peterson is entitled to qualified immunity. Viewing the
allegations in the light most favorable to Plaintiff, a reasonable officer would have understood that
tackling a non-threatening, non-resisting individual with sufficient force to fracture his wrist,
absent any apparent justification, violated the Fourth Amendment. Accordingly, Peterson is not
entitled to qualified immunity at this stage.
B. False Arrest
In the false arrest context, an officer is entitled to qualified immunity if there was “arguable
probable cause” to arrest, meaning that “officers of reasonable competence could disagree on
whether the probable cause test was met.” Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir.

2013). Here, the FAC alleges that Plaintiff was not engaged in illegal activity, that Defendants
knew Plaintiff had not committed a crime, and that Defendants nevertheless handcuffed and
arrested him. (FAC ¶¶ 15, 18.) The FAC further alleges no facts showing that Plaintiff physically
interfered with an officer, prevented an official function, or engaged in independently unlawful
conduct that would establish arguable probable cause for Obstruction of Governmental
Administration.
Taking the allegations in the FAC as true, the Court cannot conclude, as a matter of law,
that officers of reasonable competence could disagree regarding the existence of probable cause
where Plaintiff was allegedly not engaged in any illegal activity and where the FAC does not
otherwise establish arguable probable cause for the charged offense. Accordingly, Defendants
Mountain, Peterson, and Jodice are not entitled to qualified immunity on Plaintiff’s false arrest
claim at the motion to dismiss stage.
IV.State Law Claims
A. Notice of Claim
In their motion to dismiss, Defendants argue that “in federal court, state notice-of-claim
statutes apply to state-law claims.” See Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793

(2d Cir. 1999). Under New York General Municipal Law § 50-e(1)(a), a plaintiff asserting state-
law tort claims against a municipality or its employees acting within the scope of their employment
must serve a notice of claim “within ninety days after the claim arises.” N.Y. Gen. Mun. Law §
50-e(1)(a). Plaintiff’s state-law claims arising from the arrest and alleged use of force accrued no
earlier than June 6, 2023, the date of the underlying incident. Plaintiff’s malicious prosecution
claim, by contrast, accrued on April 6, 2024, when the criminal charges were dismissed and sealed.
(FAC ¶¶ 12, 22.)
Defendants contend that Plaintiff failed to timely serve a notice of claim and that Plaintiff’s
state-law claims must therefore be dismissed (Mem. at 16), but dismissal is not warranted at this
stage. The exhibits submitted with Plaintiff’s opposition show that Plaintiff’s Notice of Claim was

dated August 31, 2023, and mailed via United States Postal Service certified mail on September
1, 2023. (See Ex. B, ECF No. 31-2.) Under N.Y. Gen. Mun. Law § 50-e(3)(a), service by certified
mail is complete upon deposit in the mail, not upon receipt by the municipality. Because the arrest
and alleged use of force occurred on June 6, 2023, Plaintiff's September 1, 2023, mailing fell within
ninety days of the accrual of those claims. Accordingly, Plaintiff's notice of claim was timely. To
the extent Defendants seek dismissal of Plaintiff's state-law malicious prosecution claim on notice-
of-claim grounds, dismissal is likewise unwarranted. The FAC alleges that the claim accrued on
April 6, 2024, and that Plaintiff served a supplemental notice of claim within ninety days of that
date. (FAC ¶ 22.) At this stage, those allegations are sufficient to plausibly allege compliance with
New York's notice-of-claim requirements. Accordingly, Defendants' motion to dismiss on that
ground is denied.

B. Remaining State-Law Claims and Supplemental Jurisdiction
Under 28 U.S.C. § 1367(a), federal district courts may exercise supplemental jurisdiction
over state-law claims that are so related to claims within the court’s original jurisdiction that they
form part of the same case or controversy under Article III of the Constitution. 28 U.S.C. § 1367(a).
In United Mine Workers v. Gibbs, the Supreme Court held that federal courts may exercise
jurisdiction over state-law claims when those claims derive from a “common nucleus of operative
fact” with the federal claims such that a plaintiff would ordinarily be expected to try them all in
one judicial proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Here, Plaintiff’s state-law claims arise from the same June 6, 2023, incident underlying the
surviving federal claims and involve the same parties, arrest, alleged use of force, handcuffing,
criminal charge, and subsequent prosecution. (See generally FAC.) Accordingly, the state and

federal claims derive from a common nucleus of operative fact and form part of the same case or
controversy under Article III. Because federal claims remain in this action, the Court exercises
supplemental jurisdiction over Plaintiff’s state-law claims pursuant to 28 U.S.C. § 1367. To the
extent Defendants seek dismissal of Plaintiff’s state-law false arrest claim on the same probable-
cause grounds as Plaintiff’s federal false arrest claim, Defendants’ motion is denied for the reasons
previously stated. See De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759 (2016).
Plaintiff’s state-law assault and battery claims also survive at this stage. Under New York
law, a battery requires intentional bodily contact that is harmful or offensive in nature. Doe v.
Alsaud, 224 F. Supp. 3d 286, 294 (S.D.N.Y. 2016). An assault requires an intentional act placing
another person in reasonable apprehension of imminent harmful or offensive contact. Farash v.
Cont'l Airlines, Inc., 574 F. Supp. 2d 356, 368 (S.D.N.Y. 2008), aff'd, 337 F. App'x 7 (2d Cir.
2009).
Here, Plaintiff alleges that Peterson tackled him with sufficient force to fracture his wrist

and that Defendants thereafter handcuffed and arrested him without probable cause. These
allegations arise from the same conduct underlying Plaintiff's excessive force and false arrest
claims. Because the Court concludes that Plaintiff has plausibly alleged that Peterson used
excessive force and that the arrest was unsupported by probable cause, Defendants have not
established, at this stage, that the challenged physical contact was privileged. Accordingly,
Plaintiff's state-law assault and battery claims survive.
Plaintiff's state-law malicious prosecution claim, however, must be dismissed. Unlike a
Fourth Amendment malicious prosecution claim under § 1983, New York law continues to require
that the underlying criminal proceeding terminate in a manner indicative of the accused's
innocence. Loeb v. Teitelbaum, 77 A.D.2d 92, 98 (2d Dep't 1980), amended, 80 A.D.2d 838 (2d

Dep't 1981); Hollender v. Trump Vill. Coop., Inc., 58 N.Y.2d 420, 425–26 (1983). An adjournment
in contemplation of dismissal ("ACD"), because it is not a disposition on the merits, does not
constitute a favorable termination for purposes of a New York malicious prosecution
claim. Hollender, 58 N.Y.2d at 425–26; Rothstein v. Carriere, 373 F.3d 275, 286–87 (2d Cir.
2004).
Here, Plaintiff alleges that the underlying criminal proceeding was resolved by an ACD.
(FAC ¶ 22.) Because such a disposition does not satisfy New York's favorable termination
requirement, Plaintiff fails to plausibly allege a state-law malicious prosecution claim.
Accordingly, that claim is dismissed with prejudice.
Plaintiff's standalone negligence claim is also dismissed without prejudice. Under New
York law, "[t]he elements of a cause of action alleging common-law negligence are a duty owed
by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty
constituted a proximate cause of the injury." Gutkina v. Max Media & Art, LLC, 227 A.D.3d 961,

963 (2d Dep't 2024) (quoting Roberson v. Wyckoff Hgts. Med. Ctr., 123 A.D.3d 791, 792 (2d Dep't
2014)). Here, Plaintiff's negligence claim is based on the same operative facts and alleged
misconduct underlying his intentional tort claims for false arrest, assault, and battery. Because the
claim does not allege any independent negligent conduct distinct from the intentional acts giving
rise to those claims, it is duplicative and must be dismissed.
Plaintiff's negligent screening, hiring, retention, training, and supervision claims against
the city are dismissed without prejudice. Under New York law, to state a claim for negligent hiring,
retention, training, or supervision, a plaintiff must plausibly allege the elements of common-law
negligence, as well as: (1) the existence of an employer-employee relationship; (2) that the
employer knew or should have known of the employee's propensity for the conduct that caused

the plaintiff's injury; and (3) a nexus between the employer's alleged negligence in hiring,
retaining, training, or supervising the employee and the plaintiff's injuries. See Sokola v. Weinstein,
78 Misc. 3d 842, 846–47, 187 N.Y.S.3d 493, 500 (N.Y. Sup. Ct. 2023) (citing Kenneth R. v. Roman
Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 (2d Dep’t 1997); Roe v.
Domestic & Foreign Missionary Soc’y of the Protestant Episcopal Church, 198 A.D.3d 698, 701
(2d Dep’t 2021)).
Here, Plaintiff expressly alleges that the individual officers were acting within the scope of
their employment during the events at issue. (FAC ¶ 28.) Under New York law, where an employer
concedes—or the plaintiff alleges—that the employee was acting within the scope of his or her
employment, claims for negligent hiring, retention, training, and supervision are generally
unavailable because the employer's liability, if any, arises under the doctrine of respondeat
superior. See Karoon v. N.Y.C. Transit Auth., 241 A.D.2d 323, 324 (1st Dep't 1997) (citing Eifert
v. Bush, 27 A.D.2d 950 (2d Dep't 1967), aff'd, 22 N.Y.2d 681 (1968)). Accordingly, Plaintiff’s

negligent screening, hiring, retention, training, and supervision claims are dismissed without
prejudice.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED IN PART and
DENIED IN PART. Defendants' motion is denied as to Plaintiff's excessive force claim against
Defendant Peterson, Plaintiff's false arrest claims against Defendants Mountain, Peterson, and
Jodice, and Plaintiff's state-law false arrest, assault, and battery claims.
Defendants' motion is granted as to Plaintiff's excessive force claims against Defendants
Mountain and Jodice, Plaintiff's Section 1983 and state-law malicious prosecution claims,
Plaintiff's failure-to-intervene claim, Plaintiff's Monell claim against the City of Newburgh,

Plaintiff's negligent screening, hiring, retention, training, and supervision claims, and Plaintiff's
standalone negligence claim. Plaintiff's Section 1983 malicious prosecution claim is dismissed
without prejudice. Plaintiff's state-law malicious prosecution claim is dismissed with prejudice.
The remaining claims on which Defendants' motion is granted are dismissed without prejudice.
The Court further concludes that Defendants Mountain, Peterson, and Jodice are not
entitled to qualified immunity at this stage with respect to Plaintiff's surviving false arrest claims,
and that Defendant Peterson is not entitled to qualified immunity at this stage with respect to
Plaintiff's surviving excessive force claim.
Plaintiff is granted leave to file a Second Amended Complaint as to the claims dismissed
without prejudice. Plaintiff shall have until July 31, 2026, to do so consistent with this Opinion
and Order. Plaintiff is advised that any Second Amended Complaint will replace, not supplement,
the First Amended Complaint, and therefore must include all claims and factual

allegations Plaintiff wishes to pursue against any Defendant. If Plaintiff files a Second
Amended Complaint, Defendants shall answer or otherwise respond to the Second Amended
Complaint within twenty-one days of its filing. If Plaintiff does not file a Second Amended
Complaint by July 31, 2026, Defendants shall answer the First Amended Complaint as to the
surviving claims within twenty-one days after that deadline.
The Clerk of Court is respectfully directed to terminate the motion at ECF No. 30
Dated: June 29, 2026 SO ORDERED:
White Plains, New York
______________________________
NELSON S. ROMÁN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11392352. Public record. Not legal advice.