Opinion
7:15-cv-0631 (TWD)
03-29-2019
RICHARD H. LIVINGSTON, Plaintiff, v. SCOTT HENDERSON; SEAN RYAN; JEFFREY BALLAGH, CITY OF SYRACUSE, Defendants.
APPEARANCES: RICHARD H. LIVINGSTON Plaintiff, pro se 14-B-3634 Great Meadow Correctional Facility Comstock, New York 12821 CITY OF SYRACUSE CORPORATION COUNSEL Attorneys for Defendants 233 East Washington Street Syracuse, New York 13202 OF COUNSEL: KHALID BASHJAWISH, ESQ. Assistant Corporation Counsel
APPEARANCES: RICHARD H. LIVINGSTON
Plaintiff, pro se
14-B-3634
Great Meadow Correctional Facility
Comstock, New York 12821 CITY OF SYRACUSE CORPORATION COUNSEL
Attorneys for Defendants
233 East Washington Street
Syracuse, New York 13202 OF COUNSEL: KHALID BASHJAWISH, ESQ.
Assistant Corporation Counsel THÉRÈSE WILEY DANCKS, United States Magistrate Judge DECISION AND ORDER
This matter has been referred to the Court for all proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c), and consent of the parties. (Dkt. No. 33.)
I. INTRODUCTION
Pro se Plaintiff Richard H. Livingston, an inmate in custody of the New York State Department of Corrections and Community Supervision, brings this action, pursuant to 42 U.S.C. § 1983, against Defendants Scott Henderson, Sean Ryan, Jeffrey Ballagh, and the City of Syracuse alleging numerous violations of his rights secured by the United States Constitution and New York State law. (Dkt. No. 67.) His claims, which arise in connection with his arrest on October 22, 2014, sound in conspiracy, illegal search and seizure, false arrest, malicious prosecution, malicious abuse of process, denial of due process, intentional and negligent infliction of emotional distress, excessive force, assault and battery, and municipality liability. (See generally Dkt. No. 67.) Presently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 115.) Plaintiff opposes the motion. (Dkt. No. 124.) For the following reasons, Defendants' motion is granted as set forth below; the amended complaint is dismissed in its entirety; and the Court declines to exercise supplemental jurisdiction.
II. BACKGROUND
The following facts are undisputed unless otherwise noted. At the time of the events giving rise to this action, Plaintiff was enrolled in the Syracuse Community Treatment Court ("SCTC") Judicial Diversion Program pursuant to a guilty plea made as part of a plea agreement in Onondaga County Court on April 22, 2013, in connection with his possession of cocaine five months earlier. (Dkt. 115-2 at ¶¶ 1-6.) While enrolled in the SCTC, Plaintiff violated his contract repeatedly and produced two to three positive urine screens. Id. at ¶ 6. On July 17, 2014, Plaintiff missed a court appearance, prompting the Honorable James H. Cecile, Acting Onondaga County Court Judge, to issue a bench warrant for Plaintiff's arrest. Id. at ¶¶ 9-11.
In response to Defendants' Statement of Material Facts, Plaintiff indicates whether he admits or denies the alleged fact in each numbered paragraph. (Dkt. Nos. 115-2; 124-1.) However, Plaintiff fails to cite to specific evidence in the record supporting his denials, as required by Local Rule 7.1(a)(3). See id. In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). Therefore, his version of the factual allegations has been gleaned from his assertions elsewhere in the record.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless indicated, all text quoted from Plaintiff's amended complaint, depositions, and motion papers is unaltered.
On October 21, 2014, the Honorable Rory A. McMahon, Syracuse City Court Judge, signed search warrants authorizing the search of Plaintiff, his associations, vehicles, and residences for evidence related to the illegal sale of cocaine, including, inter alia, John Land, Tarnyonoh Karpeh, 1619 West Genesee Street, and 152 West Lynhurst Avenue. (Dkt. No. 115-2 at ¶ 17; see also Dkt. No. 115-14.) On October 22, 2014, Judge McMahon signed a search warrant for another property associated with Plaintiff, 1034 State Fair Boulevard. (Dkt. No. 115-7 at ¶¶ 15, 16.) These search warrants were based, in part, on Plaintiff's sale of cocaine to confidential informants working with Ballagh and the Syracuse Police Department. Id. at ¶¶ 1-16.
Plaintiff "denies that an investigation even existed because after an alleged 18-month investigation, Ballagh has failed to offer evidence to corroborate his findings. Moreover, this investigation entailed zero indictments. This investigation is only alleged." (Dkt. No. 124-1 at ¶ 12.) Plaintiff also denies selling crack cocaine. Id. at ¶ 13.
On October 22, 2014, members of the Syracuse Police Department searched: (1) 1619 West Genesee Street; (2) 152 West Lynhurst Avenue; and (3) 1034 State Fair Boulevard pursuant to the search warrants issued by Judge McMahon. (Dkt. No. 115-2 at ¶ 21.) On that date, Plaintiff was renting 1034 State Fair Boulevard and resided there with his girlfriend, Tarnyonoh Karpeh. (Dkt. No. 115-12 at 30.) Plaintiff also rented 1619 West Genesee Street, with his girlfriend, and 152 West Lyndhurst Avenue. Id. at 31. In turn, Plaintiff sublet 152 West Lynhurst Avenue to John Land. Id.
On October 22, 2012, at approximately 7:30 a.m., officers searched 152 West Lynhurst Avenue. (Dkt. No. 124-3 at 43.) John Land was arrested during the search and the following property was seized: (1) green brown plant like material; (2) two silver scales; (3) beige chunky substance; (4) small bag of white powder; (5) wallet; (6) cell phone; and (7) mail. (Dkt. No. 115-14 at 31.)
At approximately 11:50 a.m., officers searched 1034 State Fair Boulevard. (Dkt. No. 124-3 at 50.) Plaintiff and his girlfriend were present during the search and the following properly was seized: (1) glassine envelopes; (2) dagger, (3) U.S. Currency; (4) 5 white pills; (6) sandwich bags; (7) cell phones; and (8) a digital scale. Id. at 29.
Plaintiff was arrested on the bench warrant and for items recovered during the execution of the search warrant at 152 West Lynhurst Avenue, documented under DR # 14-503815. (Dkt. No. 124-3 at 45.) Plaintiff's girlfriend was arrested for the items recovered during the execution of the search warrant at 1034 State Fair Boulevard. Id. As discussed below, there are conflicting accounts at to what transpired during the search of 1034 State Fair Boulevard.
During Plaintiff's July 22, 2016, deposition, he testified that on the morning of October 22, 2014, he received multiple telephone calls from various neighbors informing him that police raided 152 West Lynhurst Avenue and 1619 West Genesee Street. (Dkt. No. 115-12 at 33-34.) By the time he put the phone down, "they was pulling up." Id. at 34-35. At approximately 11:50 a.m., Defendants Ryan and Henderson, and over fifteen other members of the Syracuse Police Department, busted down the doors of 1034 State Fair Boulevard and Plaintiff immediately put his hands up and complied with the officers' instructions. Id. at 36-37. Plaintiff was handcuffed without incident. Id. at 37. After he was restrained, Henderson began to strike Plaintiff in the face with an open palm, demanding to know the location of the drugs and guns. Id. Henderson then punched Plaintiff in the stomach. Id. When another officer commanded Henderson to "fall back," Henderson walked away and searched the residence. Id.; see also Dkt. No. 67 at ¶ 24. When questioned about the use of force, Plaintiff testified:
Plaintiff testified, "I saw them pulling up. . . . I saw them actually getting ready. They didn't know I saw them, so I saw them. They opened the vehicle, they had a bus, vehicles pulling up, they were getting ready again, I actually saw it, and I saw my girlfriend and I opened my door I won't -- she was walking to the front and I was running to the back there and before I could even get there or before my girl could even open the door it was too late, they had busted the door -- they busted the door. (Dkt. No. 115-12 at 36.) Plaintiff testified that he was in the kitchen, by the back door, "to welcome them in" because he "didn't do nothing wrong." Id. at 37.
Q: And exactly what force are you claiming that he used on you?Id. at 44-46.
A: That he smacked the shit out of me two times and he punched me in the stomach and he was demanding drugs and guns.
Q: How did he smack the shit out of you?
A: He smacked me once and I don't know -- he smacked me once and then I was just like, whoa, ain't no -- what are you talking about? I was -- I was basically -- because I didn't know what was going on, like how are you going to smack a man when he's restrained, you know? I was furious at him because like why did you wait until I'm restrained to do that?
Q: Which part of your body did he strike?
A: My face, my cheek -- my right cheek and my left cheek.
Q: What did he use to strike you?
A: His hand, open-hand style.
Q: And he punched you in the stomach?
A: He punched me in the mid-section, yes.
In his affidavit submitted in support of Defendants' motion, Henderson states that when they entered 1034 State Fair Boulevard to execute the search warrant, he observed Plaintiff in the rear of the kitchen. (Dkt. No. 115-6 at ¶ 4.) Henderson and other officers gave Plaintiff repeated commands to "get on the ground and to show his hands." Id. at ¶ 5. Instead, Plaintiff "turned and moved toward the rear of the kitchen as if he was fleeing the residence." Id. at ¶ 6. Henderson next explains:
I forced [Plaintiff] to the ground, but he was actively resisting by holding his hands underneath his body and was refusing commands to stop resisting and to put his hands behind his back. After seeing that he was actively resisting, I struck him twice with an open palm to shock him into releasing his hands. After the two open palm strikes, Plaintiff released his hands from underneath his body, and I was able to secure him in handcuffs.Id. at ¶¶ 7-9. Henderson also completed a "Narrative Supplement" shortly after the incident, under DR # 14-504226, in which he states that upon entering the residence, he observed a male, identified as Plaintiff, standing in the back of the kitchen:
Livingston refused repeated commands to "show his hands" and "get on the ground" instead remaining to stand then turning away from us. I took hold of Livingston's right arm/shoulder and forced him [to] the ground where he was instructed to place his hands behind his back and not to resist his arrest. Livingston failed to comply and held his hands beneath his chest. I delivered two open hand strikes to the right side of Livingston's face which proved successful as he then placed his hands behind his back where they were handcuffed. Livingston stated he was not injured as a result of the incident and no obvious injuries were observed. Livingston was later lodged at the Justice Center on multiple charges.(Dkt. No. 124-3 at 50.)
Ryan also completed a "Narrative" documenting the execution of the search of 1034 State Fair Boulevard under DR # 14-504226. (Dkt. No. 124-3 at 45.) According to Ryan, at approximately 11:50 a.m., fifteen members of the Syracuse Police Department Special Investigations Division, Gang Task Force, and Crime Reduction Team executed search warrants on Plaintiff, and the residence of 1034 State Fair Boulevard. (Dkt. No. 124-3 at 45.) Two detectives from the Onondaga County Sheriff's Office ("OSCO") were also present. Id. Upon arrival, the front door of the residence was forced opened and Plaintiff was taken into custody in the kitchen area and Tarnyonoh Karpeh in the living room. Id. After a systematic search of the parties and the property, the following items were recovered and seized: (1) glassine envelopes; (2) dagger, (3) $367.00; (4) 5 white pills; (5) $29.00; (6) box of sandwich baggies; (7) $280.00; (8) cell phones; and (9) digital scale. Id.; see also (Dkt. No. 115-14 at 31.) Ryan described the dagger as a "double sided knife, thereby constituting it to be a dangerous knife." Id. He further stated:
With Livingston's extensive background in dealing narcotics he has no legitimate reason for possessing that knife in the residence other than to use it unlawfully against another to protect his drug business.Id. Ryan's narrative indicated Plaintiff had an "outstanding warrant for CPCS 3rd and he was booked by the OSCO detectives on this charge." Id. He further explains:
After a consultation with the DA's office no charges were filed against Livingston on today's date for the items that were located in the residence. However, he was charged with CPCS 3rd, 4th, and 7th for cocaine that was recovered at 152 Lynhurst Ave. that was documented under DR # 14-503815.Id.
On October 22, 2014, Ballagh filed a felony complaint accusing Plaintiff of knowingly and unlawfully possessing cocaine inside his home, located at 152 West Lynhurst Avenue, which was the subject of lawful search warrant signed by Judge McMahon on October 21, 2014. (Dkt. No. 124-3 at 46.) On October 23, 2014, Plaintiff was arraigned on the new felony charges. (Dkt. No. 67 at ¶ 25.) By letter dated October 23, 2014, Plaintiff was advised that the following charges were pending and would be submitted to the Grand Jury pursuant to CPL 190.50(5) in connection with the search of 152 West Lynhurst Avenue under DR # 14-503815: criminal possession of controlled substance in the third, fourth, and seventh (two counts) degrees, and criminal use of drug paraphernalia in the second degree. (Dkt. No. 124-3 at 44.) According to Plaintiff's criminal attorney, the October 22, 2012, charges were not presented for indictment. (Dkt. No. 115-8 at 8; see also Dkt. No. 67 at ¶ 26.)
On November 25, 2014, Plaintiff appeared before Judge Cecile in SCTC for sentencing based on his 2013 plea regarding Indictment 2013-0091-1. (Dkt. No. 115-8.) During the sentencing, Judge Cecile acknowledged that Plaintiff had asked for another chance to complete the judicial diversion program and requested an adjournment on the sentencing because "he's going to be able to beat the new charge - the new charges that he has been arrested on." Id. at 2-3. Judge Cecile continued:
However, the reason I -- one of the reasons I'm sentencing Mr. Livingston is not only because of the new charges; but also, I gave him the last chance warning on June 17th and -- of this year -- and not only did he get rearrested on new charges, but he tested positive on the screenings in September after that. So, that's why I intend to sentence him today.Id. at 3. Regarding the 2013 plea on Indictment 2013-0091-1, the Assistant District Attorney recommended a sentence between six and eight years and agreed that the sentence would satisfy also the new charges arising out of the October 22, 2014, search of 152 West Lynhurst Avenue stating:
And I did speak with Senior ADA Mike Ferrante this morning, whose case this was originally, and who has the new felony case. He's asking for a sentence of between six and eight years in state prison. And if Mr. Livingston does receive a sentence of six to eight years, he will satisfy the new felony charge.Id. at 7. Thereafter, with regard to Plaintiff's plea of guilty entered April 22, 2013, to criminal possession of a controlled substance in the third degree, Plaintiff was sentenced, as a second felony offender, to a determinate term of imprisonment for six years followed by three years of post-release supervision. Id. at 18-19; see also Dkt. No. 115-16 at 2-3. Judge Cecile indicated Plaintiff guilty plea would also satisfy the charges stemming from a June 3, 2014, arrest. (Dkt. No. 115-8 at 18.)
And he wanted the Court to know as well that Mr. Livingston was the target of that search warrant and investigation for the selling of cocaine. They found cocaine, scales, and packaging all at the residence.
It is undisputed that although Plaintiff was arrested on October 22, 2014, for, inter alia, criminal possession of a controlled substance in the third and seventh degree as well as possession of drug paraphernalia, these charges were dismissed in satisfaction of Plaintiff receiving six years as a predicate felon. (Dkt. No. 115-2 at ¶ 30; Dkt. No. 124-1 at ¶ 30; see also Dkt No. 115-12 at 46-47.)
Indeed, Plaintiff testified: "Q: So he asked the judge to sentence you to six to eight years and that would cover the charges incurred as a result of your October arrest? A: Absolutely. Q: Is that what happened? A: Sentenced me six years, three years post-release." (Dkt. No. 115-12 at 46-47. ) Plaintiff claims a detainer remained active and the charges were not formally dismissed on April 30, 2015. (Dkt. No. 67 at ¶ 31.) See also Dkt. No. 124-3 at 63 ("In response to your recent note, attached is the "Certificate of Disposition" received from Syracuse City Court. Your charges were covered and dismissed in satisfaction of your plea on another case (COVO) on 4/30/15.").
The Court takes judicial notice of the Certificate of Conviction/Disposition, that on April 30, 2015, the charges stemming from Plaintiff's October 22, 2014, arrest in connection with the search of 152 West Lynhurst Avenue (DR # 14-503815) were deemed "COVO" by 2013-0091-1. (Dkt. No. 42-8.)
According to the publicly available website maintained by the New York State Unified Court System, "COVO" is defined as "covered by disposition in another case." See https://iapps.courts.state.ny.us/webcrim_attorney/WebcriminalGlossary#CC (last visited Mar. 27, 2019).
The state prosecution of an individual is a matter of public record, of which a court may take judicial notice. Shmueli v. City of New York, 424 F.3d 231, 233 (2d Cir. 2005).
Plaintiff claims Defendants violated his constitutional rights and challenges the length of his current sentence, contending, inter alia, that his October 22, 2014, arrest and the charges were used to "enhance" his sentence on his conviction for criminal possession of a controlled substance in the third degree, based on his 2013 guilty plea. (See generally Dkt. No. 67.) Plaintiff explained:
Q: So why are you incarcerated today? Why are you here?(Dkt. No. 115-13 at 53.)
A: Drug court.
Q: And that was because you violated the provisions of the drug court?
A: New charges. . . . I don't dispute being convicted in drug court. What I'm disputing is the enhanced sentence that they gave me based on these charges.
Q: What was the enhanced sentence?
A: Six years.
Q: They gave you six years because you violated the drug court provisions?
A: Not because I violated the drug court, just because the new charges.
Q: What new charges?
A: June 3rd and October 22nd.
The Court takes judicial notice of the fact that Plaintiff is presently incarcerated at Great Meadow Correctional Facility in Comstock, New York, serving a term of six years for the crime of criminal possession of a controlled substance in the third degree, of which he was convicted.
See http://nysdoccslookup.doccs.ny.gov (DIN # 14-B-3634) (last visited Mar. 28, 2019).
III. APPLICABLE LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted); Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
IV. THE PARTIES' CONTENTIONS
Generally, Plaintiff claims that: (1) Ryan, Henderson, and Ballagh conspired to violate Plaintiff's constitutional rights by attempting to "cover up" defective search warrants and exaggerating evidence in order to "impact" Plaintiff's sentence at the SCTC and to avoid civil liability; (2) Ryan, Henderson, and Ballagh violated state and federal constitutional laws against unreasonable searches and seizures; (3) Ballagh is liable for false arrest; (4) Henderson engaged in extreme and outrageous conduct in executing the search warrant and subjected Plaintiff to excessive force, assault and battery, and an unlawful interrogation; (5) Ryan violated state and federal due process of law by exaggerating evidence in police reports and filed a false report to impact Plaintiff's drug court status and cover up Defendants' wrongdoings to avoid civil liability; (6) Ryan, Henderson, and Ballagh engaged in malicious abuse of process; (7) Ballagh participated in a malicious prosecution, offered false and exaggerated evidence in the search warrant applications, and offered a false instrument for filing; (8) Ryan is liable for negligent and intentional infliction of emotional distress; (9) Henderson and Ballagh are liable for intentional infliction of emotional distress; and (10) the City of Syracuse failed to adequately train, supervise, and discipline Ballagh, Ryan, and Henderson. (Dkt. No. 67 at ¶¶ 37-64.)
For a complete statement, reference is made to the amended complaint. (Dkt. No. 67.)
Generally, Defendants seek summary judgment and dismissal of the amended complaint in its entirety on the following grounds: (1) Plaintiff's § 1983 claims for false arrest, illegal search and seizure, malicious prosecution, and fabrication of evidence are barred under Heck v. Humphrey, 512 U.S. 477 (1994); (2) Plaintiff's §§ 1983 and 1985(3) and state law claims for conspiracy, malicious abuse of process, intentional and negligent infliction of emotional distress, excessive force, and assault and battery fail as a matter of law; and (3) Plaintiff's municipal liability claims fail as a matter of law. (Dkt. No. 115-3.) In his response, Plaintiff claims, inter alia, that (1) his constitutional rights were violated; (2) Defendants' misconstrue the nature of his § 1983 claims; and (3) a genuine issue of material fact precludes summary judgment. (Dkt. No. 124.) Plaintiff does, however, admit the following claims should be dismissed: (1) conspiracy claims against Ryan and Henderson; (2) illegal search and seizure claims against Ryan and Henderson; and (3) negligent infliction of emotion distress claim against Ryan. (Dkt. No. 124 at 6, 9, 24.)
V. ANALYSIS
To prevail on a claim under § 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and laws (2) by a person acting under the color of state law. See 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Duamutef v. Morris, 956 F. Supp. 1112, 1115 (S.D.N.Y. 1997) (citing Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)).
As detailed above, the gravamen of Plaintiff's amended complaint deals with the investigation, search warrants, search and seizure of property, false arrest, filing of false documents, malicious prosecution, malicious abuse of process, and conspiracy. The thrust of Plaintiff's allegation is that the "unfounded" charges stemming from his arrest on October 22, 2014, were used to "enhance" his sentence in the SCTC for criminal conviction of a controlled substance in the third degree. Although Plaintiff's only seeks monetary damages in this action, distilled to their core, and with exception of the excessive force claim, Plaintiff's § 1983 claims challenge his current prison sentence.
A. Heck v. Humphrey
A civil lawsuit may not be used to collaterally attack a criminal conviction. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.Id. at 486-87 (internal footnote omitted). This rule has come to be known as the "favorable termination" requirement. See McKithen v. Brown, 481 F.3d 89, 101 n.13 (2d Cir. 2007).
Under Heck and its progeny, a "§ 1983 action is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original). If a plaintiff whose success would necessarily demonstrate the invalidity of the confinement or its duration does not satisfy Heck's "favorable termination rule," he must seek relief through the federal habeas corpus statute rather than through § 1983. Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir. 2006) ("[T]he purpose of the Heck favorable termination requirement is to prevent prisoners from using § 1983 to vitiate collaterally a judicial or administrative decision that affected the overall length of confinement, and that punishments related to their term of imprisonment, or the procedures that led to them . . . must be attacked through a habeas petition."); see Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (habeas corpus relief is the "sole federal remedy" available to a state prisoner seeking to attack the fact or duration of his confinement).
The Court takes judicial notice of Plaintiff's petition for habeas corpus pursuant to 28 U.S.C. § 2254, filed July 9, 2018, in the Northern District of New York, entitled Richard Livingston v. Christopher Miller, 9:18-cv-0803. Plaintiff's habeas petition before the Honorable Brenda K. Sannes, U.S. District Judge, is the proper avenue by which Plaintiff may seek relief from his conviction or sentence.
The dispositive factor in the Heck inquiry is whether judgment in favor of the prisoner would "necessarily imply" the validity of the conviction or the sentence. Gastelu v. Breslin, No. 3-CV-1339, 2005 WL 2271933, at *2 (E.D.N.Y. Sept. 12, 2005) (citing Heck, 512 U.S. at 487). If so, the prisoner cannot bring a § 1983 action unless the conviction or sentence has already been invalidated. Id.; see also Praileau v. Fischer, 930 F. Supp. 2d 383, 396 (N.D.N.Y. 2013) (stating "[u]nless, and until, the conviction is challenged and adjudicated" in the plaintiff's favor, the plaintiff's § 1983 claims are barred under Heck). For purposes of Heck, a termination is not favorable to an accused if the charge is withdrawn or the prosecution abandoned the charge pursuant to a compromise with the accused. Rothstein v. Carriere, 373 F.3d 275, 286-87 (2d Cir. 2004). Conversely, where the § 1983 action "even if successful, will not demonstrate the invalidity of any outstanding criminal judgment . . . the action should be allowed to proceed." Heck, 512 U.S. at 487 (emphasis in original).
As pertinent here, it is "well established that an excessive force claim does not usually bear the requisite relationship under Heck to mandate its dismissal." McGrew v. Holt, No. 6:13-cv-792 (GLS/TWD), 2015 WL 736614, at *4 (N.D.N.Y. Feb. 20, 2015) (quoting Smith v. Fields, No. 95 CIV. 8374, 2002 WL 342620, at *4 (S.D.N.Y. Mar. 4, 2002)). Defendants' motion for summary judgment on the excessive force claim is addressed in Section V.B., infra.
Accordingly, courts routinely dismiss § 1983 claims that implicate the validity of the prisoner's conviction or sentence when he has failed to demonstrate that his conviction was favorably terminated. See Duamutef v. Morris, 956 F. Supp. 1112, 1115-18 (S.D.N.Y. 1997) (dismissing § 1983 claims of malicious prosecution, false arrest, perjury, retaliation, and civil rights conspiracy under Heck where the plaintiff's underlying conviction had not been overturned); Peay v. Ajello, 470 F.3d 65, 68 (2d Cir. 2006) ("Inasmuch as plaintiff has not shown that his conviction has been reversed or declared invalid, the District Court properly dismissed the claims against [defendant]."); Gibson v. City of New York, 182 F.3d 899, 899 (2d Cir. 1999) (affirming a Heck-based dismissal where the plaintiff had failed to establish that his conviction had been reversed); Houston v. City of New York, No. 06 CV 2094 (RJD)(LB), 2013 WL 1310554, at *4-5 (E.D.N.Y. Mar. 28, 2013) (applying Heck to bar § 1983 claims for malicious prosecution and malicious about of process); Younger v. City of New York, 480 F. Supp. 2d 723, 730 (S.D.N.Y. 2007) (holding that plaintiff's § 1983 claims for false arrest and malicious prosecution would, if successful, render plaintiff's conviction invalid, and, were therefore barred by the favorable termination doctrine articulated in Heck); Rivera v. City of Yonkers, 470 F .Supp. 2d 402, 408 (S.D.N.Y. 2007) (dismissing plaintiff's false imprisonment/arrest and malicious prosecution claims pursuant to § 1983 because under Heck, "a conviction for a crime cannot be considered a termination in favor of the accused"); McFadden v. New York, No. 10-CV-141 (RRM)(CLP), 2011 WL 6813194, at *4 (E.D.N.Y. Dec. 28, 2011) ("Claims for both false arrest and malicious prosecution both call into question the validity of a conviction, because false arrest requires a lack of probable cause and malicious prosecution requires probable cause and a termination of the proceedings in the defendant's favor."); see also Lane v. Papadimitrious, No. 6:10-CV-647, 2010 WL 2803468, at *1 (N.D.N.Y. July 14, 2010) ("Thus, plaintiff's claims in the nature of perjury, slander, evidence-tampering, conspiracy to bring unfounded criminal charges against him, and false imprisonment necessarily implicate the validity of his conviction and are thus barred under Heck v. Humphrey, [] until such time as the conviction may be vacated or otherwise invalidated."); Wallace v. Speiget, No. 04-CV-2821 (DGT), 2005 WL 1544811, at *1-2 (E.D.N.Y. July 1, 2005) (holding that Heck precluded plaintiff's § 1983 claims for malicious prosecution and slander).
Further, conspiracy claims are routinely dismissed under Heck when such claims bear on the validity of the underlying conviction or sentence. Cruz v. Reilly, No. 08-CV-1245 (JFB)(AKT), 2009 WL 2567990, at *3 (E.D.N.Y. Aug. 18, 2009) (collecting cases); see also Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (holding that "Heck . . . applies with respect not only to [the] plaintiff's § 1983 claim but also to his §§ 1981, 1985(3) and 1986 claims" because the existence of a conspiracy would necessarily question the validity of plaintiff's conviction).
Here, excluding the excessive force claim, Plaintiff's §§ 1983 and 1985(3) claims fall squarely within the ambit of Heck because a decision in his favor would necessarily call into question the validity of his conviction or sentence. Plaintiff apparently concedes as much. Notably, after Defendants' motion for summary judgment was fully briefed, Plaintiff filed a motion to consolidate this action with his petition for a writ of habeas corpus. (Dkt. No. 126.) In support of his motion to consolidate, Plaintiff stated:
In so holding, the Court expresses no opinion as to the merits of Plaintiff's §§ 1983 and 1985(3) claims at this juncture nor the validity of his underlying conviction or sentence, which is before Judge Sannes.
The two actions are solely based on common questions of law and fact. In addition both actions are related and coincide with each other. The section 1983 in pertinent part and the events leading up the Federal Habeas Corpus Petition filed.Id. at 1. There, Plaintiff detailed the many ways in which he was "still held accountable" by the SCTC because the investigation, warrants, search and seizure, and arrest "were used at sentencing to negatively influence SCTC in imposing a lengthy prison term on Plaintiff." Id. at 2. Plaintiff further claimed that the District Attorney in attempt to cover up Defendants' errors, "fraudulently introduced elements" of the investigation to the SCTC "creating a strong presumption of Plaintiff being guilty." Id. Plaintiff explained that "the ploy" was "obvious" because Defendants used:
As a threshold matter the Habeas Corpus Petition must be heard and decided first and foremost as to not bar the [§] 1983 claims for the purpose of Heck v. Humphrey.
SCTC as a vehicle to cover up the Detective's constitutional errors in order to help the Detective avoid civil and criminal liability. Attempting to merge the new charges (felonies) and drug court plea together by satisfying (dismissing). As a result of six-eight years imposed. [T]his is a crafty cover up.Id. at 3.
By Decision & Order filed October 31, 2018, Plaintiff's motion to consolidate was denied. (Dkt. No. 128.) The Court takes judicial notice that Plaintiff filed the same motion in his habeas petition pending before Judge Sannes, which was also denied by Order filed October 31, 2018.
Clearly, were Plaintiff to succeed on any theory espoused above, he would necessarily call into question the validity of his current conviction or sentence. Thus, Plaintiff's §§ 1983 and 1985(3) claims for conspiracy, illegal search and seizure, false arrest, malicious prosecution, malicious abuse of process, and denial of due process, all of which would necessarily imply the invalidity of his current conviction or sentence are barred under Heck unless and until such time as Plaintiff's conviction is overturned or his sentenced invalidated. Therefore, these §§ 1983 and 1985(3) claims are not cognizable at this time.
"Disposition of the case on Heck grounds, however, warrants only dismissal without prejudice, because the suit may be reinstituted should plaintiff's conviction be 'expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.'" Amaker, 179 F.3d at 52 (quoting, inter alia, Heck, 512 U.S. at 487).
B. Fourth Amendment Excessive Force
Claims that law enforcement officers used excessive force in the course of an arrest are analyzed under the Fourth Amendment's reasonable standard. Graham v. Connor, 490 U.S. 386, 396 (1980). Application of this test is case specific and requires a balancing of the "nature and quality of the intrusion on the plaintiff's Fourth Amendment interest against countervailing governmental interests at stake." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). When performing a Fourth Amendment excessive force analysis, a court must consider (1) the nature and severity of the crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. See id.; see also Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015); Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006).
In making the excessive force inquiry, a court must evaluate the circumstances from the perspective of a reasonable officer at the time of the incident, rather than through the 20/20 lens of hindsight, taking into consideration that law enforcement officials are often forced to make split second judgments during the course of events that are rapidly evolving. Tracy, 623 F.3d at 96; Brown, 798 F.3d at 100. Since physical force is often necessary to take somebody into custody, "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. Graham, 490 U.S. at 396 (internal citation omitted). Indeed, a "de minimus use of force will rarely suffice to state a Constitutional claim." Romano v. Howarth, 998 F.2d 101 105 (2d Cir. 2005).
"Further, a plaintiff must allege that he sustained an injury to maintain an excessive force claim." Acosta v. City of New York, No. 11 Civ. 856(KBF), 2012 WL 1506954, at *10 (S.D.N.Y. Apr. 26, 2012) (dismissing excessive force claim where plaintiff alleged that he was punched in the chest and thrown to the ground but did not allege any injury). Such injury need not be severe, however. Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) ("If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe."). Still it is clear that some type of injury is required to prevail on a § 1983 excessive force claim. Castro v. Cty. Nassau, 739 F. Supp. 2d 153, 177 n.16 (E.D.N.Y. 2010).
"[T]he Second Circuit and district courts in the Circuit recognize the concept of de minimis injury and, when the injury resulting from alleged excessive force falls into that category, the excessive force claim is dismissed." Jackson v. City of N.Y., 939 F. Supp. 2d 219, 231 (E.D.N.Y. 2013) (quotation marks and citation omitted). "[S]hort-term pain, swelling, and bruising, brief numbness from tight handcuffing, claims of minor discomfort from tight handcuffing, and two superficial scratches from a cut inside the mouth" have been held to be de minimis and, thus, unactionable. Id. (quoting Lemmo v. McKoy, No. 08-CV4264, 2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011)). However, "the fact that [the p]laintiff may not have sustained serious long lasting harm is not dispositive." Graham v. City of New York, 928 F. Supp. 2d 610, 618 (E.D.N.Y. 2013); see also Jennings v. Decker, 17-CV-0054, 2019 WL 251781, at *8 (N.D.N.Y. Jan. 17, 2019) (observing that at the summary judgment stage even minor injuries, including scrapes and bruises, can support an excessive force claim).
Defendants argue Plaintiff's excessive force claim should be dismissed because Henderson used reasonable force to arrest Plaintiff and the alleged injury, if any, was di minims. (Dkt. No. 115-3 at 15-16.) As detailed above, Defendants contend that upon entering 1034 State Fair Boulevard, Henderson observed Plaintiff moving towards the rear of the residence, as if he were trying to flee. (Dkt. No. 115-6 at ¶¶ 4, 5.) Plaintiff refused repeated commands and was actively resisting arrest. Id. at ¶¶ 5, 7. As a result, Henderson used two open palm strikes to shock Plaintiff into releasing his hands and was successful in securing Plaintiff's hands without further incident. Id. at ¶¶ 8, 9. Thus, according to Defendants, Henderson acted reasonably under the circumstances and the de minimis nature of Plaintiff's injury provides conclusive prove that the force used was de minimis. (Dkt. No. 115-3 at 16-17.)
In contrast, Plaintiff claims that he immediately put his hands up, complied with the officers' instructions, and was handcuffed without incident. Id. at 36-37. After he was restrained, however, Henderson struck Plaintiff in the face with an open palm, demanding to know the location of the drugs and guns, and punched him in the stomach. Id. at 37. Plaintiff also points out that he was not charged with resisting arrest on October 22, 2014, and suggests Henderson's statement that Plaintiff was "resisting arrest" was alleged after the fact "to justify the unreasonable force." (Dkt. No. 124-1 at 26.)
To be sure, resolution of such conflicting versions of the relevant events, including the severity of the plaintiff's resulting injuries, are generally a matter for the jury and not for the court on summary judgment. McGrew v. Holt, 2015 WL 736614, at *4. In this case, however, Plaintiff has alleged no injuries:
Q: Did you complain of any injuries after your arrest?(Dkt. No. 115-13 at 39.)
A: No, I wasn't injured.
Q: Did you talk to any supervisor about the force that was used on you?
A: No.
Q: Did you tell any officers you were injured?Id. at 41. Thus, Plaintiff's reliance on Maxwell v. City of New York, 380 F.3d 106 (2d Cir. 2004), is misplaced. (See Dkt. No. 124 at 25.) Moreover, it is undisputed that Plaintiff's medical records from the Onondaga County Justice Center and Great Meadow Correctional Facility show that Plaintiff did not receive treatment for his head or any other alleged area where Henderson struck Plaintiff. (Dkt. Nos. 115-2 at ¶¶ 31, 32; 124-1 at ¶¶ 31, 21.)
A: I didn't tell nobody I was injured. I wasn't injured off a smack in the face and a punch to the stomach.
In Maxwell, the plaintiff claimed she was unnecessarily swung and jerked around by the handcuffs while she was cuffed from behind, and alleged she was shoved head first into the police car, causing her to strike the metal partition between the front and back seats. 380 F.3d at 108. She alleged immediate pain was treated for pain in her lower back and left arm and for headache. Id. During the following weeks, she suffered from headaches, dizziness, nausea, and lethargy. Id. She obtained further medical treatment and was diagnosed with post-concussive syndrome. Id.
At summary judgment, Plaintiff now contends that his "injuries are mental, emotional and psychological. Henderson humiliated Plaintiff in the presence of his girlfriend Karpeh." (Dkt. No. 124 at 25.) However, a conclusory assertion of "emotional injuries" of the "garden variety—namely mental pain, suffering, humiliation, damage to reputation, and emotional anguish . . . [w]ithout more . . . is insufficient to sustain a claim for excessive force." Sullivan v. City of New York, No. 17 Civ. 3779 (KPF), 2018 WL 3368706, at *11 (S.D.N.Y. July 10, 2018) (citing Guerreror v. City of New York, No. 12 Civ. 2916 (RWS), 2013 WL 673872, at *5 (S.D.N.Y. Feb. 25, 2013) (holding that an allegation that plaintiff "suffered mental and emotional harm" unaccompanied by allegations of a specific or identifiable mental injury, is an insufficient basis for an excessive force claim)).
Simply put, even crediting Plaintiff's version of the use of force and viewing the evidence in the light most favorable to Plaintiff as the non-moving party, Plaintiff has not attributed any specific physical injury to the alleged use of force and Plaintiff's conclusory assertion of mental and emotional injury is insufficient to sustain a claim for excessive force. See Kaid v. Rudnikc, No. 15-CV-548-A, 2018 WL 3850828, at *6 (W.D.N.Y. June 26, 2018) (granting summary judgment on excessive force claim where, inter alia, despite the plaintiff alleging that after he was handcuffed, he was "punched several times in the stomach, side and back area," and then thrown to the ground and "kicked numerous times in the stomach and finally in the groin area" where his only claimed injury was "soreness"); Brown v. City of New York, No. 14 Civ. 2700 (BMC), 2015 WL 427942, at *5 (E.D.N.Y. Feb. 2, 2015) (granting summary judgment dismissing excessive force claims after the plaintiffs conceded that they suffered no physical injuries); Acosta, 2012 WL 1506954, at *11 (dismissing complaint where plaintiff claimed to have been punched, thrown to the ground, and forcibly handcuffed, but alleged no specific or identifiable physical harm beyond conclusory assertions); Lyman v. City of Albany, 536 F. Supp. 2d 242, 249 (N.D.N.Y. 2008) (dismissing excessive force claim where plaintiff alleged that he was "injured and subjected to physical and mental pain and suffering, emotional distress, embarrassment, humiliation and fear").
For these reasons, the Court finds Plaintiff's claim of excessive force fails as a matter of law.
C. Municipality Liability
Plaintiff claims the City of Syracuse failed to adequately train and supervise Ballagh, Ryan, and Henderson. (Dkt. No. 67 at ¶¶ 60, 61,62.) By way of example, he argues the City of Syracuse "should have trained" Ballagh "not to commit to perjury," "how to appropriate apply for search warrants," and "to not maliciously prosecute without probable cause." Id. at 60. Similarly, Plaintiff contends the City of Syracuse failed to adequately train Ryan "not to exaggerate police reports in order to obtain a collateral objective." Id. He claims Ryan and Henderson should have been trained not to execute a warrant "that was not appropriately applied for" and was "facially insufficient" or "deficient." Id. at. ¶¶ 61, 62. Lastly, Plaintiff argues the City of Syracuse failed to adequately train Henderson how to execute a search warrant and arrest without using excessive force and "unlawful interrogation" tactics. Id. at ¶¶ 62, 63.
In order to sustain a § 1983 claim for municipal liability, a plaintiff must show he suffered a constitutional violation, and that the violation resulted from an identified municipal policy or custom. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694-95 (1978). It is well established that a Monell claim cannot lie in the absence of an underlying constitutional violation. See Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) ("Monell does not provide a separate cause of action . . . it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.") (emphasis in original); Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *6 (S.D.N.Y. July 3, 2013) ("Absent an underlying constitutional violation, a Monell claim cannot lie.").
Here, for the reasons set forth above, inasmuch as the Court finds Plaintiff's underlying constitutional claims are barred by Heck and fail as a matter of law, there is no basis for extending liability to the City of Syracuse. Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) ("Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell was entirely correct."). Therefore, the Monell claims are dismissed consistent with the foregoing.
D. Supplemental Jurisdiction
Defendants seek summary judgment on Plaintiff's state law claims. (Dkt. No. 115-3 at 13-14, 17.) However, where a district court has dismissed all claims over which it has original jurisdiction, the court may decline to exercise supplemental jurisdiction over remaining state law claims. 28 U.S.C. § 1367(c)(3). The decision is a discretionary one, and its justification "lies in considerations of judicial economy, convenience and fairness to litigants[.]" United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) ("Once a district court's discretion is triggered under § 1367(c)(3), it balances the traditional 'values of judicial economy, convenience, fairness, and comity,' in deciding whether to exercise jurisdiction.") (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
The Second Circuit has instructed "if [all] federal claims are dismissed before trial . . . the state claims should be dismissed as well." Castellano v. Bd. of Tr., 937 F.2d 752, 758 (2d Cir. 1991) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)); see also Carnegie-Mellon, 484 U.S.at 350 & n.7 ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims."). "The Court notes that it may sua sponte render this determination." Terrill v. Windham-Ashland-Jewett Central School Dist., 176 F. Supp. 3d 101, 112 (N.D.N.Y. 2016) (collecting cases).
Therefore, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims and these claims are dismissed without prejudice to refiling in state court.
ACCORDINGLY, it is hereby
ORDERED that Defendants' motion for summary judgment (Dkt. No. 115) is GRANTED as follows:
(1) Plaintiff's § 1983 claims excessive force claims against Defendants Henderson and the City of Syracuse are DISMISSED as a matter of law for failure to state a claim upon which relief may be granted;
(2) Plaintiff's remaining §§ 1983 and 1985(3) claims against Defendants Henderson, Ryan, Ballagh, and the City of Syracuse are DISMISSED WITHOUT PREJUDICE as barred by Heck v. Humphrey; 512 U.S. 477 (1994); and
(3) the Court declines to exercise supplemental jurisdiction and Plaintiff's state law claims are DISMISSED WITHOUT PREJUDICE and subject to refiling in state court; and it is further
ORDERED that Plaintiff's amended complaint (Dkt. No. 67) is DISMISSED IN ITS ENTIRETY; and it is further
ORDERED that the Clerk shall provide Plaintiff with a copy of this Decision and Order, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam); and it is further
ORDERED that the Clerk of the Court shall entered judgment in Defendants' favor and close this case.
SO ORDERED. Dated: March 29, 2019
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge