SHAWN RANDALL THOMAS v. CITY OF NEW YORK ET AL (2025)

REPORT AND RECOMMENDATION

To the Honorable Valerie E. Caproni, United States District Judge:

Plaintiff Shawn Randall Thomas (“Thomas” or “Plaintiff”), proceeding pro se and in forma pauperis, brings this action against New York City Police Department (“NYPD”) Officers Dyshawn Pitt, Michael Baroz, Tenzin Rigsang, Kevin Barcenas, Nicholas Azzolino, Andy Herrera, and Michael Dunigan (collectively, “Defendant Officers”), the City of New York (the “City”), Mayor Eric Adams, and former NYPD Commissioner Keechant Sewell. Plaintiff asserts claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution, intentional infliction of emotional distress, unlawful conditions of confinement while in police custody, and involuntary psychiatric evaluation.

Defendant Officers and the City moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ ECF No. 36. For the reasons described below, the motion for judgment on the pleadings should be partially converted to a motion for summary judgment as to the false arrest and malicious prosecution claims and should be GRANTED. The motion for judgment on the pleadings should be GRANTED with prejudice as to the intentional infliction of emotional distress claim, and GRANTED without prejudice as to the municipal liability claim. The motion for judgment on the pleadings should be DENIED as to the unconstitutional conditions of confinement and involuntary psychiatric evaluation claims.

I. BACKGROUND

A. Factual Background

The following facts are drawn from the Complaint, ECF No. 1 (“Compl.”), and Plaintiff's Response to Defendant's Motion to Dismiss, ECF No. 52 (“Opp.”).² Facts relevant to the false arrest and malicious prosecution claims are also derived from the submissions in support of Defendants’ motion, ECF Nos. 35–38, 56, 59, and Plaintiff's response thereto, ECF No. 52.³

1. The December 11, 2022 Altercation

Thomas, Lisa A. Watkins (“Watkins”) and their three minor children reside in two neighboring rooms at the Millennium Hotel in lower Manhattan. Compl. ¶ 12. On December 11, 2022, Thomas and Watkins had an altercation there resulting in intervention by hotel security and the NYPD. Thomas and Watkins provided slightly different accounts to the NYPD, which are each described below.⁴

a. Thomas's Version

At approximately 2:20 p.m., Thomas observed Watkins take his iPod and place it into her pants pocket. Compl. ¶¶ 12, 14. Thomas asked Watkins to return the iPod but she refused. Id. ¶ 14. Watkins then attempted to leave the room with the iPod, but Thomas blocked the exit and warned that he would not allow her to leave the room until she returned the iPod. Id. ¶¶ 14–15. Thomas says Watkins physically assaulted him while attempting to leave the room. Id. ¶ 16.

Thomas recorded the beginning of this altercation on his phone but stopped the recording to call the police. Id. While on the phone with police, Thomas again attempted to retrieve his iPod from Watkins's pocket and Watkins pulled Thomas to the floor on top of her. Id. ¶ 17. Watkins yelled for help while Thomas was on the phone with the police. Rigsang BWC I at 0:19:41–0:19:45.

Hotel security then arrived and Thomas and Watkins exited the room. Compl. ¶ 18. Thomas explained the cause of the incident to hotel security and Watkins removed the iPod from her pocket and threw it against the wall. Id. Thomas acknowledged that Watkins sustained injuries to her right hand, including an abrasion to her hand and a broken fingernail, in the altercation, but claims Watkins was the aggressor and that she assaulted him. Id. ¶ 19.

Thomas denied hitting Watkins and told police that if he hit Watkins he would “have to kill her.” Rigsang BWC I at 0:09:45–0:09:51, 0:20:40-0:20:51. Thomas also denied that he was injured. Id. at 0:09:56–0:10:02. The couple's younger daughter and son were present in the hotel room during this altercation. Id. at 0:10:39–0:10:41, 0:13:11–0:13:12.

b. Watkins's Version

On the morning of December 11, 2022, Thomas and Watkins had an argument during which Thomas said that if he were separated from his children, they would all end up “on the news.” Azzolino BWC at 0:02:26–0:02:48. Perceiving this remark as a threat, Watkins visited an NYPD precinct to obtain a protective order and to speak with Safe Horizons. Id. at 0:02:48–0:03:18.

When Watkins returned to the hotel, she took Thomas's iPod to watch and send herself a copy of a recording of their earlier argument because she feared that the confrontation would become violent. Id. at 0:02:26–0:06:21. Thomas returned to the hotel room and Watkins hid the iPod in her pocket. Thomas would not let Watkins leave the room and attempted to retrieve the iPod by throwing Watkins to the ground and pinning her down, injuring her hand. Id. at 0:04:49–0:06:21, 0:11:21–0:11:28. Watkins screamed for help until hotel security arrived. Id. at 0:06:01–0:06:04. One of the children was in the room during this altercation. Id. at 0:02:23–0:06:21.

2. The NYPD Arrives

At approximately 2:36 p.m., four NYPD officers—Defendant Officers Rigsang, Barcenas, Herrera, and Azzolino—arrived at the scene. Compl. ¶¶ 20–21. Officers Rigsang and Barcenas interviewed Thomas in his room while Officers Azzolino and Herrera interviewed Watkins in the hallway. Id. ¶ 21; Azzolino BWC at 0:02:23–0:11:48. Officer Herrera took photographs of Watkins's injured hand. Herrera BWC at 0:12:43–0:13:51; Azzolino BWC at 0:12:59–0:13:11. Emergency medical technicians also arrived to evaluate and treat Watkins's injuries. Azzolino BWC at 0:32:21–0:33:02.

Officers Pitt and Baroz arrived at approximately 2:48 p.m. Compl. ¶ 22. Officer Pitt spoke to the Officers already at the scene, Watkins and Thomas. Pitt BWC at 0:02:36–0:18:52. Thomas showed Officer Pitt his recording of the altercation up to the point when he called the police. Id. at 0:14:00–0:16:33. Officer Pitt also spoke to a Safe Horizons case manager who said this was the first physical altercation between the couple to her knowledge, but that she was at the hotel because she received a text message early that morning that Watkins feared for her and her children's safety due to Thomas's threats. Id. at 0:22:40–0:24:03.

At approximately 3:10 p.m., Officer Pitt directed Officer Rigsang to arrest Thomas for assault because Watkins had visible injuries from the altercation and reported that she feared for her life and safety. Compl. ¶ 22; Pitt BWC at 0:25:02–0:25:21.

After Thomas was arrested, Officer Rigsang spoke with Watkins to obtain her statement and contact information. Compl. ¶ 24; Rigsang BWC I at 0:38:36–0:40:36. Officer Rigsang reported to Officer Pitt that Watkins said Thomas did not hit her and that her hand injury resulted from the struggle over the iPod. Pitt BWC at 0:29:30–0:29:53. Officer Pitt spoke with Watkins again to see if anything had changed since he last spoke with her. Id. at 0:30:23–0:31:15. Watkins confirmed that the hand injury occurred during the struggle over the iPod and that she had reported Thomas's threats earlier that morning. Id.

Officer Pitt directed Officer Barcenas to transport Thomas to the police precinct for booking, but Officers Azzolino and Herrera actually transported Thomas to the precinct. Compl. ¶¶ 26–27.

3. Plaintiff Spends the Night at the First Precinct

Upon arrival at the precinct, Thomas's outerwear was removed and he was placed in a holding cell. Id. ¶ 28. Thomas alleges that the holding cell was unheated and uninsulated, that the temperature dropped below thirty degrees, and that he asked for his outerwear multiple times. Id. Thomas advised Officers Rigsang and Dunigan of the cold temperature and of his medical condition. Id. ¶ 29. Thomas claims he was held for approximately twenty-seven hours without food, water, or medication, and for approximately seventeen of those hours in freezing conditions without proper clothing. Id. ¶ 31.

Thomas refused to be photographed or fingerprinted. Id. ¶ 30. Officer Dunigan then directed that Thomas be transported to the hospital for a psychological evaluation. Id.

4. Criminal Charges and Prosecution

On December 12, 2022, Officer Rigsang swore out a criminal complaint and probable cause affidavit. Id. ¶ 32. Officer Rigsang affirmed that the factual basis for the charges were Watkins's statements that she observed Thomas “shove and pin her to the ground, causing abrasions, redness, and swelling to her right hand knuckle,” that two minor children were present at the time of the incident, and that Thomas and Watkins were arguing in the bedroom and Thomas prevented Watkins from leaving the room. Id. ¶ 36.

Thomas was then arraigned on six charges: (1) N.Y. Penal L. § 120.00(1), Assault in the Third Degree; (2) N.Y. Penal L. § 120.00(2), Assault in the Third Degree; (3) N.Y. Penal L. § 260.10(1), Endangering the Welfare of a Child; (4) N.Y. Penal L. § 135.05, Unlawful Imprisonment in the Second Degree; (5) N.Y. Penal L. §§ 110/120.00(1), Attempted Assault in the Third Degree; and (6) N.Y. Penal L. § 240.26(1), Harassment in the Second Degree. Id. ¶ 33.

On December 12, 2023, all charges were dismissed for insufficient evidence and sealed. Id. ¶ 34.

B. Procedural History

Thomas commenced this action on April 2, 2024, naming seven NYPD officers as defendants: Sergeant Dyshawn Pitt, Officer Michael Baroz, Officer Tenzin Rigsang, Officer Kevin Barcenas, Officer Nicholas Azzolino, Officer Andy Herrera, and Sergeant Michael Dunigan. Plaintiff also sued Mayor Eric Adams and former NYPD Commissioner Keechant Sewell in their official capacities. Additionally, Plaintiff named the City as a defendant. See generally Compl.⁵

Invoking the Court's federal question jurisdiction pursuant to 42 U.S.C. § 1983, Plaintiff asserts five causes of action:

• Claim 1, false arrest and false imprisonment against Defendant Officers Pitt, Baroz, Rigsang, and Barcenas;

• Claim 2, malicious prosecution against Defendant Officer Rigsang;

• Claim 3, intentional infliction of emotional distress (“IIED”) against Defendant Officers Pitt, Rigsang, and Dunigan;

• Claim 4, unconstitutional conditions of confinement due to deprivation of food, water, medication, and clothing against Defendant Officers Rigsang, Azzolino, Herrera, and Dunigan; and

• Claim 5, involuntary psychiatric evaluation against Defendant Officer Dunigan.

All defendants other than Sewell have been served. See ECF No. 13 (Adams), ECF No. 15 (City), ECF Nos. 21–26; 55 (Defendant Officers). On November 19, 2024, Mayor Adams moved to dismiss the claims against him under Rule 12(b)(6). ECF No. 17. The undersigned addressed this motion in a separate report and recommendation. See ECF No. 62.

On December 30, 2024, the City and Officers Herrera, Dunigan, Baroz, Rigsang, and Azzolino filed their answer to the Complaint, ECF No. 34, and a joint motion for judgment on the pleadings, ECF No. 35, supported by their memorandum of law, ECF No. 37, and the declaration of Joseph Zangrilli, ECF No. 36, which attaches eleven exhibits including the Defendant Officers’ body-worn camera (“BWC”) footage. ECF Nos. 36-3–36-11. The City also filed a Notice of Local Rule 12.1, advising Thomas that Defendants asked the Court to decide this case based on written materials and without a trial, and that the Court may treat Defendants’ motion as one for summary judgment under Rule 56. ECF No. 38.⁶

Plaintiff's response to this motion was due on February 13, 2025, but no opposition was filed by that date. In light of Plaintiff's pro se status, the Court sua sponte extended Plaintiff's deadline to file his opposition. ECF No. 51. On February 22, 2025, Plaintiff submitted opposition papers. ECF No. 52. On March 14, 2025, the City and Defendant Officers filed their reply memorandum of law in support of their motion for judgment on the pleadings. ECF No. 56 (“Reply”).

II. ANALYSIS

A. Legal Standards

1. Rule 12(c) Standard

“The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518 (2d Cir. 2006) (citing Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005)). To survive a motion to dismiss, a complaint must include “enough facts to state a claim that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

A court must accept as true all factual allegations in the complaint and draw all reasonable inferences in plaintiff's favor. Acticon AG v. China N.E. Petrol. Holdings Ltd., 692 F.3d 34, 37 (2d Cir. 2012). However, a court need not “accept as true legal conclusions couched as factual allegations.” Lafaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475–76 (2d Cir. 2009).

2. Converting a Rule 12 Motion to a Rule 56 Motion

In deciding a Rule 12 motion, “a district court generally must confine itself to the four corners of the complaint and look only to the allegations contained therein.” Drew v. City of New York, No. 18-cv-10714, 2019 WL 3714932, at *2 (S.D.N.Y. Aug. 6, 2019) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)).

Rule 12(d) states, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” A court may decide either to “exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under Fed. R. Civ. P. 56.” Girardi v. Ferrari Express, Inc., No. 20-cv-4298, 2023 WL 2744027, at *3 (S.D.N.Y. Mar. 31, 2023) (quoting Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000)) (cleaned up); Fed. R. Civ. P. 12(d).

“Where a court elects to consider materials outside the pleadings in regards to specific claims, the court may limit its conversion of the motion to those claims for which the outside materials will be considered.” Schwartz v. HSBC Bank USA, N.A., 160 F. Supp. 3d 666, 672 (S.D.N.Y. 2016) (citing Alex v. Gen. Elec. Co., No. 12-cv-1021, 2014 WL 2510561, at *4 (N.D.N.Y. June 4, 2014) (stating that a court may “partially convert a motion dismiss to a motion for summary judgment” (emphasis original)); Levy v. Aaron Faber, Inc., 148 F.R.D. 114, 117 (S.D.N.Y. 1993) (partially converting a Rule 12 motion to a Rule 56 motion, on the limited issue of the statute of limitations).

A motion to dismiss can be converted to a motion for summary judgment if the plaintiff had “unequivocal notice of the meaning and consequences of conversion.” Cuffee v. City of New York, No. 15-cv-8916, 2018 WL 1136923, at *5 (S.D.N.Y. Mar. 1, 2018) (cleaned up). In the case of pro se litigants, formal notice is “particularly important;” they “must have unequivocal notice of the meaning and consequences of conversion to summary judgment” because a pro se party “may be unaware of the consequences of his failure to offer evidence bearing on triable issues.” Hernandez v. Coffey, 582 F.3d 303, 307–08 (2d Cir. 2009) (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983)).

Here, moving defendants submit material from outside the pleadings, i.e., the BWC footage of Officers Rigsang, Pitt, Azzolino, Barcenas, Baroz, and Herrera, as well as a copy of the accusatory instrument signed by Officer Rigsang and the supporting deposition sworn by Watkins. See Rigsang BWC I; Pitt BWC; Azzolino BWC; Barcenas BWC; Baroz BWC; Herrera BWC; Rigsang BWC II; Ex. J, ECF No. 36-10 (“Accusatory Instrument”); Ex. K, ECF No. 36-11 (“Watkins Deposition”).

The moving defendants filed and served the Rule 12.1 Notice advising Plaintiff that he must oppose the motion by submitting evidence in support of his claim, otherwise the Court may accept their facts as true and enter judgment in the moving defendants’ favor without a trial. ECF No. 38. This notice alerted Thomas to the consequences of converting a motion to dismiss to one for summary judgment. In his opposition, Thomas submitted additional evidence: a copy of the Certificate of Disposition of the charges against him, ECF No. 52 at 23–24; a photograph of Watkins's injured hand, id. at 26; a copy of a subsequent supporting deposition signed by Watkins, id. at 33; a copy of the domestic incident report, id. at 35–39; a copy of the arrest and activity log for the period of his confinement at the NYPD precinct, id. at 41–43; a copy of the NYPD Patrol Guide procedure for arrest processing, id. at 45–49; and a copy of a form indicating that Thomas refused prints, id. at 51.

Further, Thomas did not dispute the authenticity or accuracy of any of the evidence presented by defendants, and did not raise any argument—under Rule 56(d) or otherwise—that the evidence presented is insufficient to resolve the motion. To the contrary, Thomas's opposition to the motion not only relied upon the evidence introduced by moving defendants, but affirmatively stated, “there was [sic] no relevant material differences between the narratives provided to police by Plaintiff and Ms. Watkins.” ECF No. 52 at 6. Additionally, the Complaint alleged “that the facts are not in dispute, that the incident of December 11th, 2022, were captured on the body worn cameras ․” Compl. ¶ 49.

The material outside the pleadings submitted in support of Defendants’ motion provides evidence regarding the events leading up to and immediately after Thomas's arrest, including his initial processing at the First Precinct. Exhibits C, D, F, and G contain BWC footage of only the events that occurred from the time the Defendant Officers arrived at the Millenium Hotel through the time Thomas was arrested and transported to the First Precinct. See Rigsang BWC I; Pitt BWC; Barcenas BWC; Baroz BWC. Exhibits E and H contain BWC footage of both the events that occurred from the time the Defendant Officers arrived at the Millenium Hotel through the time Thomas was initially booked at the First Precinct. See Azzolino BWC; Herrera BWC. Exhibit I contains BWC footage of only the time during which Defendant Officer Rigsang attempted to obtain additional information from Thomas for the purpose of processing his arrest at the First Precinct. See Rigsang BWC II. And Exhibits J and K provide documentary evidence of the stated reasons for Thomas's arrest and charges. See Accusatory Instrument; Watkins Deposition.

The materials described above do not provide a complete account of the events that took place before the Defendant Officers arrived at the Millenium Hotel, the majority of events occurring while Thomas was confined at the First Precinct,⁷ any events involving Officer Dunigan, or any events related to Thomas's psychiatric evaluation. Based on what is and what is not depicted in the BWC footage, the undersigned considers these materials only in connection with Thomas's false arrest and malicious prosecution claims, and the motion should therefore be converted to one for summary judgment as to those claims. The undersigned does not consider these materials in connection with Thomas's remaining claims because the footage captures only a small portion of the events relevant to those claims. Accordingly, the motion should remain one for judgment on the pleadings as to Plaintiff's remaining claims.

3. Rule 56 Standard

Rule 56 “allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts entitle the party to the judgment sought.” Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (citation omitted). To prevail on a motion for summary judgment, the movant must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

“A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” EIG Energy Fund XIV, L.P. v. Keppel Offshore & Marine Ltd., No. 18-cv-1047, 2024 WL 1195575, at *11 (S.D.N.Y. Mar. 20, 2024) (quoting Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)). To establish that there is no genuine issue of material fact, a moving party may either “submit[ ] evidence that negates an essential element of the non-moving party's claim, or ․ demonstrat[e] that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.’ ” Syville v. City of New York, No. 20-cv-4633, 2022 WL 16541162, at *5 (S.D.N.Y. Oct. 28, 2022) (quoting Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)).

“When considering a motion for summary judgment, the court is not to weigh the evidence but is instead ‘required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.’ ” Ramos v. Guaba Deli Grocery Corp., No. 20-cv-4904, 2021 WL 5563714, at *4 (S.D.N.Y. Nov. 29, 2021) (quoting Konteye v. N.Y.C. Dep't of Educ., No. 17-cv-2876, 2019 WL 3229068, at *2 (S.D.N.Y. July 18, 2019)).

The “mere existence of a scintilla of evidence supporting the non-movant's case is insufficient to defeat summary judgment,” Wentworth Grp. Inc. v. Evanston Ins. Co., No. 20-cv-671, 2021 WL 4479576, at *3 (S.D.N.Y. Sept. 30, 2021) (citing Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003)) (cleaned up), reconsideration denied, 2022 WL 943063 (Mar. 29, 2022), and “the non-moving party may not rely on unsupported assertions, conjecture or surmise.” Guerra v. Trece Corp., No. 18-cv-625, 2020 WL 7028955, at *2 (S.D.N.Y. Nov. 30, 2020) (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)). Rather the party opposing summary judgment “must produce admissible evidence that supports its pleadings.” Wentworth Grp., 2021 WL 4479576, at *3 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289–90 (1968)); see also Cuffee, No. 15-cv-8916, 2018 WL 1136923, at *4 (non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts ․ [it] must come forth with evidence sufficient to allow a reasonable jury to find in [its] favor” (cleaned up)).

4. Liability Under Section 1983

Plaintiff's claims are all based on 42 U.S.C. § 1983. Compl. ¶ 9. To state a claim under Section 1983, a plaintiff must allege that “(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

To establish individual liability under Section 1983, “a plaintiff must show ․ the defendant's personal involvement in the alleged constitutional deprivation.” Kravitz v. Purcell, 87 F.4th 111, 129 (2d Cir. 2023) (quoting Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)). To do so, “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own actions, has violated the Constitution.’ ” Id. (quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)). “The factors necessary to establish a § 1983 violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary.” Id.

B. Abandonment

Moving Defendants contend that because Thomas failed to address their arguments regarding the IIED, unconstitutional conditions of confinement, and municipal liability claims, these claims should be deemed abandoned and dismissed. Reply at 10. A court “may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.” Lipton v. County of Orange, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004); see also Robinson v. Fischer, No. 09-cv-8882, 2010 WL 5376204, at *10 (S.D.N.Y. Dec. 29, 2010) (collecting cases). Plaintiff's pro se status does not shield him from such a result. See, e.g., McNair v. Ponte, No. 16-cv-1722, 2019 WL 1428349, at **6, 21 (S.D.N.Y. Mar. 29, 2019) (“This Court has deemed claims abandoned even in cases where the plaintiff was proceeding pro se.”).

“Ultimately, the question of abandonment is one of intent.” Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998). Here, while Thomas's opposition to the motion does not specifically address his claims for IIED, unconstitutional conditions of confinement, and municipal liability, it does state that Thomas “otherwise objects to Defendants[’] Rule 12(c) Motion.” Opp. at 20. The undersigned is not convinced that Thomas intended to abandon these claims, particularly given the “special solicitude” courts provides pro se litigants before granting motions to dismiss. See Quadir v. New York State Dep't of Labor, 39 F. Supp. 3d 528, 536 (S.D.N.Y. 2014). Accordingly, these claims are addressed on the merits.

C. Official Capacity Claims Against the Defendant Officers Should Be Dismissed

Thomas sues each Defendant Officer in both his or her “individual and corporate capacity.” See Compl. at 14–18 (cause of action headings). To the extent Plaintiff sues the Defendant Officers in their official capacities, such claims fail because they are “merely duplicative of the claims against the City of New York, the ‘real party in interest.’ ” Vansertima v. Dep't of Corr., No. 10-cv-3214, 2012 WL 4503412, at *5 (E.D.N.Y. Sept. 28, 2012) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Thus, “a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.” Graham, 473 U.S. at 166. Courts in this Circuit consistently dismiss official capacity claims against municipal officials because they are duplicative of claims brought against the municipality itself. See In re New York City Policing During Summer 2020 Demonstrations, 548 F. Supp. 3d 383, 409 (S.D.N.Y. 2021); see also Phillips v. Cnty. of Orange, 894 F. Supp. 2d 345, 384 n.35 (S.D.N.Y. 2012) (collecting cases).

Here, Thomas names the City as a defendant, so any claims against the Defendant Officers in their official capacities should be dismissed as redundant. See Anemone v. Metro. Transp. Auth., 410 F. Supp. 2d 255, 264 n.2 (S.D.N.Y. 2006) (dismissing official capacity claims as redundant where municipal entity was also a defendant); Carmody v. Vill. of Rockville Ctr., 661 F. Supp. 2d 299, 329 (E.D.N.Y. 2009) (dismissing official capacity claims as redundant of the claim against the Village); Drees v. Cnty. of Suffolk, Case No. 06-cv-3298, 2007 WL 1875623, at *19 (E.D.N.Y. June 27, 2007) (dismissing official capacity claims as “duplicative” of the claim against the County).

D. Summary Judgment Should Be Granted on False Arrest and False Imprisonment Claims Against Defendant Officers Pitt, Baroz, Rigsang, and Barcenas

Thomas brings claims for false arrest and false imprisonment in violation of the Fourth and Fourteenth Amendments against Officers Pitt, Baroz, Rigsang, and Barcenas. As discussed above, the Court should convert the motion as to these claims to a motion for summary judgment. See Section II.C.2.

“A § 1983 claim for false arrest, rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Claims for false arrest under Section 1983 are “substantially the same” as state law claims for false arrest. Id. Under New York law, the common law tort of false arrest is a species of false imprisonment; to prevail, a plaintiff must show 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 to arrest is a complete defense to an action for false arrest.” Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir. 2021); see Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (“If probable cause existed ․ a police officer would be privileged to make an arrest.”). “Probable cause to arrest exists when the officers have knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). “[W]here law enforcement authorities are cooperating in an investigation ․ the knowledge of one is presumed shared by all.” Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983).

Additionally, “it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of the arrest.” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006). Thus, “Defendants prevail if there was probable cause to arrest Plaintiff[ ] for any single offense.” Marcavage v. City of New York, 689 F.3d 98, 109–10 (2d Cir. 2012). “The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers.” Weyant, 101 F.3d at 852.

It is well-established that, where the basis for an arrest is information from a victim or witness, police officers have probable cause to arrest unless the circumstances raise doubt as to the informant's veracity. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (citing Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000); Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)). “In assessing a putative victim's veracity, courts consider, inter alia, ‘the officer's observation of the putative victim's physical injuries,’ ‘the level of detail and consistency in the putative victim's description of events,’ and ‘incriminating statements by the plaintiff.’ ” Hughes v. City of New York, No. 18-cv-9380, 2021 WL 4295209, at *5 (S.D.N.Y. Sept. 21, 2021) (quoting Williams v. Schultz, No. 06-cv-1104, 2008 WL 4635383, at *9 & n.59 (N.D.N.Y. Oct. 16, 2008)). Generally, “the veracity of citizen complaints who are the victim of the very crime they report to the police is assumed.” Miloslavsky v. AES Eng'g Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992).

Even in the absence of probable cause, “[t]he doctrine of qualified immunity shields government employees acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their conduct violated clearly established rights of which an objectively reasonable official would have known.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 568–69 (2d Cir. 1996). The right to be free from arrest without probable cause is a clearly established right. See Delgado v. City of New York, No. 19-cv-6320, 2021 WL 2473817, at *8 (S.D.N.Y. June 17, 2021). When a right is clearly established, the question is “whether it was ‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). In the context of false arrest, an officer's probable cause determination is “objectively reasonable” if there was “ ‘arguable’ probable cause at the time of the arrest—that is, if ‘officers of reasonable competence could disagree on whether the probable cause test was met.’ ” Id. at 157 (quoting Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007)).

Here, there is no genuine dispute of material fact regarding “those facts available to [Defendant Officers] at the time of the arrest and immediately before it.” Lowth, 82 F.3d at 569. The participants’ respective accounts of the incident to the Defendant Officers, including Plaintiff's own statements, were captured on BWC. As described below, there is no genuine factual dispute that Defendant Officers had reasonably trustworthy information making it objectively reasonable to believe that there was probable cause to arrest Thomas for assault in the third degree.

Under New York law, “[a] person is guilty of assault in the third degree when ․ [h]e recklessly causes physical injury to another person.” N.Y. Penal Law § 120.00. Moreover,

[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation ․

Id. § 15.05.

Before arresting Thomas, the Defendant Officers interviewed both Thomas and Watkins about the incident. Compl. ¶ 21; Rigsang BWC I at 0:02:30–0:11:37; Pitt BWC at 0:02:36–0:18:52; Azzolino BWC at 0:02:23–0:11:48. While their accounts vary in certain respects, these discrepancies do not create disputed issue of material fact as to whether there was probable cause to arrest Thomas for third-degree assault.

Thomas provided his account of events to Officers Rigsang, Pitt, Barcenas, and Baroz. Rigsang BWC I at 0:02:30–0:11:37; Pitt BWC at 0:04:38–0:05:38, 0:14:00–0:18:48. According to his own statements, Thomas attempted to recover his iPod from Watkins by reaching into her pocket and by physically blocking her exit from the room. Thomas recorded the initial part of the altercation but ended the recording to call the police. Thomas reported that Watkins began screaming for help and pulled Thomas to the ground on top of her. Thomas also showed Officer Pitt the recording of the initial part of the altercation. Pitt BWC at 0:14:03–0:19:03.

Watkins provided her account to Officers Azzolino, Herrera, Pitt, and Rigsang. Azzolino BWC at 0:02:23–0:11:48; Herrera BWC at 0:02:19–0:11:50; Pitt BWC at 0:06:00–0:12:06; Rigsang BWC I at 0:38:57–0:41:04. Watkins took Thomas's iPod in an attempt to find a recording of an earlier argument. Thomas then attempted to retrieve his iPod from Watkins, blocking her exit from the hotel room and ultimately throwing her to the ground. As a result, Watkins's right hand and leg were injured. Watkins claimed to fear for her safety at the time.

The information available to the Defendant Officers collectively as they made the decision to arrest Thomas is not in dispute because it was captured in the BWC footage. Thomas does not dispute the authenticity or accuracy of this footage, and he affirmatively contends that the facts to decide the merits of his claims are not in dispute because they were captured by BWC footage. Compl. ¶¶ 38, 49, 57. In particular, the Defendant Officers had reasonably trustworthy information that Watkins had visible injuries to her right hand, that she feared for her safety, and that these injuries were caused in the physical struggle between Thomas and Watkins after he grabbed at her pocket and physically blocked her from leaving the room. Accordingly, the Defendant Officers had information sufficient to support a reasonable belief that Thomas had recklessly caused physical injuries to Watkins, or at least information that would allow officers of reasonable competence to disagree about whether there was probable cause to arrest Thomas for such offense.

Thomas argues that probable cause was lacking because he was the one who had called the police to report a theft by Watkins and was therefore the victim, not the perpetrator. Opp. at 6. While there might have been probable cause to arrest Watkins as well, this does not negate probable cause or arguable probable cause to arrest Thomas. “Whether Plaintiff was the initial aggressor in the altercation that day ․ is not relevant to the inquiry of whether probable cause existed for his arrest.” Manzi v. Goldfine, No. 23-cv-05176, 2024 WL 2943876, at *5 (S.D.N.Y. June 10, 2024).

Additionally, Thomas argues that the Defendant Officers were aware of information weighing against probable cause. Opp. at 9. In particular, Thomas points to his denial that he used physical force and his statements that Watkins injured her own hand by punching him. Compl. ¶ 51; Opp. at 8. Thomas also argues that, even if he used physical force, it was justified as self-defense in response to Watkins's aggression and was authorized to recover his property or in furtherance of a citizen arrest. Opp. at 7. But a plaintiff's “loud protestations of innocence” do not defeat probable cause. See Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 128 (2d Cir. 1997). “Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Id. “ ‘The fact that an innocent explanation may be consistent with the facts alleged ․ does not negate probable cause,’ and an officer's failure to investigate an arrestee's protestations of innocence generally does not vitiate probable cause.” Panetta, 460 F.3d at 395–96 (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985)).

Here, the evidence shows that Defendant Officers considered Plaintiff's protestations of innocence and potential justifications. Officer Pitt watched Thomas's recording of the initial part of the altercation, Pitt BWC 0:14:03–0:19:03, and thus did not “deliberately disregard facts known to him which establish” an exculpatory defense. Jocks, 316 F.3d at 136.

Thomas also points to Officer Rigsang's alleged expression of doubt as to whether there was probable cause to arrest him. Compl. ¶¶ 51–52. But the relevant question is what it was reasonable for the arresting officers to understand from the facts available to them collectively. Even assuming that one of the Defendant Officers disagreed as to whether there was probable cause, that would not negate arguable probable cause, which exists when reasonably competent officers can disagree as to whether there was probable cause for an arrest. Gonzalez, 728 F.3d at 157.

Finally, Officer Baroz argues that he was not personally involved in Thomas's arrest, but it is not necessary to decide this issue. Even assuming that Officer Baroz was personally involved in the arrest, there was probable cause or arguable probable for the arrest based on the Defendants Officers’ collective knowledge. The Court should therefore grant summary judgment on the false arrest claim in favor of Defendant Officers Pitt, Baroz, Rigsang, and Barcenas.

E. Summary Judgment Should Be Granted on Malicious Prosecution Claim Against Defendant Officer Rigsang

Thomas brings a claim for malicious prosecution in violation of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983 against Officer Rigsang. As discussed above, the Court should convert the motion as to this claim to one for summary judgment. See Section II.C.2.

1. Probable Cause or Arguable Probable Cause Existed for Defendant Officer Rigsang to Initiate Criminal Proceedings Against Plaintiff

“To prevail on a § 1983 claim against a state actor for malicious prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment,[ ] and must establish the elements of a malicious prosecution claim under state law[.]” Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010). Under New York law, to establish a malicious prosecution claim, a plaintiff must prove “(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 defendant's actions.” Id. at 161 (quoting Murphy v. Lynn, 118 F.3d at 938, 947 (2d Cir. 1997)). Further, plaintiff must show that there was “a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights.” Rohman v. N.Y.C. Transit Authority, 215 F.3d 208, 215 (2d Cir. 2000).

“The existence of probable cause is a complete defense to a claim of malicious prosecution in New York.” Manganiello, 612 F.3d at 161–62 (quoting Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)). In a malicious prosecution action, probable cause means “probable cause to believe that [the prosecution] could succeed.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003). “[W]hile a false arrest claim fails if there was probable cause to arrest the plaintiff for any offense, in the malicious prosecution context, there must be probable cause for the offenses charged.” Tompkins v. City of New York, 50 F. Supp. 3d 426, 435 (S.D.N.Y. 2014). It is irrelevant to a malicious prosecution claim that the charges were later dropped. See, e.g., Dorsey v. Gannon, No. 22-cv-2735, 2024 WL 1338772, at *2 (2d Cir. Mar. 29, 2024) (although the charges against plaintiff were later dismissed, defendant “cleared—by a good margin—the low bar needed to establish continuing probable cause and defeat [Plaintiff]’s claims for false arrest and malicious prosecution”).

Where “probable cause to arrest exist[s] ․ [and there are no] intervening facts between arrest and initiation of prosecution to undermine that probable cause, claims of malicious prosecution cannot survive.” Powell v. Murphy, 593 Fed. App'x 25, 28 (2d Cir. 2014). In addition to intervening facts or newly discovered evidence, an officer's “failure to make further inquiry when a reasonable person would have done so may be evidence of lack of probable cause.” Lowth, 82 F.3d at 571.

As with a false arrest claim, a malicious prosecution defendant is entitled to qualified immunity if there was “arguable probable cause to charge” the plaintiff. Richardson v. McMahon, No. 22-cv-582, 2023 WL 3102910, at *2 (2d Cir. Apr. 27, 2023). The arguable probable cause standard is the same in the malicious prosecution context as it is in the false arrest context. Id. at *1.

Here, it is undisputed that Officer Rigsang initiated the criminal proceeding against Thomas, see Accusatory Instrument, and that this proceeding was terminated in Plaintiff's favor, ECF No. 52 at 23–24. Therefore, the malicious prosecution claim depends on whether probable cause supported the criminal charges, whether defendants acted with malice, and whether Thomas's Fourth Amendment rights were implicated.

As described below, Officer Rigsang is entitled to summary judgment on the malicious prosecution claim because probable cause or arguable probable cause existed to initiate criminal proceedings against Thomas for each charge. It is therefore unnecessary to consider the remaining issues.

a. Assault in the Third Degree, N.Y. Penal L. § 100.20(1), (2) and Attempted Assault in the Third Degree, N.Y. Penal L. §§ 110/120.00(1)

As discussed above, Officer Rigsang had probable cause or arguable probable cause to charge Thomas with assault in the third degree based on Watkins's statements and visible injuries at the hotel and Thomas's admissions. See supra Section II.F.

Attempted Assault in the Third Degree occurs when, with intent to commit a crime, a person “engages in conduct which tends to effect the commission of such a crime.” N.Y. Penal L. § 110. Accordingly, Officer Rigsang also had probable cause or arguable probable cause to charge Thomas with the lesser included charge of attempted assault.

There is no genuine dispute as to what facts were known collectively to the Defendant Officers, and those facts supported probable cause or arguable probable cause to charge Thomas with Assault in the Third Degree and Attempted Assault in the Third Degree.

b. Endangering the Welfare of a Child, N.Y. Penal L. § 260.10(1)

“A person is guilty of endangering the welfare of a child when: He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” N.Y. Penal L. § 260.10(1). In New York, the conduct need not actually harm the child, “it is sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child.” People v. Johnson, 95 N.Y.2d 368, 371 (2000) (cleaned up). New York courts have found that even conduct not specifically directed children is sufficient to support a charge of Endangering the Welfare of a Child because of “the overwhelming evidence of harm to children exposed to domestic violence.” Id. at 373.

Thomas argues that “Watkins did not provide a single statement to Defendant Rigsang pertaining to the children.” Compl. ¶ 42. But, as discussed above, the knowledge of all police officers working collectively on an investigation is presumed shared by all, Andreas, 463 U.S. at 771 n.5. Thus, this alleged absence of knowledge by Officer Rigsang cannot negate probable cause. Thomas does not and cannot dispute that his children were present for the incident. The BWC footage shows that Thomas and Watkins each advised Defendants Officers that their ten-year-old daughter was present. Rigsang BWC I at 0:10:39–0:10:42; Azzolino BWC 0:03:30–0:4:48. Further, Thomas told Defendant Officers that his daughter was afraid after the altercation. Rigsang BWC I at 0:18:29–0:18:37.

Thus, there is no genuine dispute of material fact that Defendant Officers had reliable information that a minor child was present during the altercation, supporting probable cause or arguable probable cause to charge Thomas with Endangering the Welfare of a Child.

c. Unlawful Imprisonment in the Second Degree, N.Y. Penal L. § 135.05

Unlawful Imprisonment in the Second Degree occurs when a person “restrains another person.” N.Y. Penal L. § 135.05. The Penal Law defines “restrain” as “to restrict a person's movements intentionally and unlawfully ․ as to interfere substantially with his liberty by ․ confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful.” Id. § 135.00(1). “A person is so moved or confined without consent when such is accomplished by ․ physical force, intimidation or deception.” Id.

The evidence provides a sufficient basis for the Defendant Officers to believe that Thomas “restrained” Watkins in the hotel room. Thomas admits that he “blocked Ms. Watkins[’s] exit by continuing to stand in front of her as she walked towards the door to exit the hotel room” and “would not allow her to leave the hotel room,” Compl. ¶ 15, and that he was “backed to the door of the hotel room ․ blocking her exit,” id. ¶ 16. He further states that he “continued to block the path of Ms. Watkins as she attempted to flee Thomas's hotel room” and “refused to allow Ms. Watkins to exit the hotel room.” Opp. at 4. The BWC footage corroborates these statements: Thomas said he prevented Watkins from leaving the room, and Watkins said Thomas blocked the door and would not let her leave the room. Rigsang BWC I at 0:17:21–0:17:27, 0:39:15–0:39:48; Azzolino BWC at 0:05:07–0:05:10, 0:06:06–0:06:19. Statements in the Accusatory Instrument that Thomas “prevented [Watkins] from leaving the bedroom for several minutes” by “holding the door and pinning her to the ground,” Compl. ¶ 36, are consistent with the information known by Defendant Officers at the time Thomas was charged.

Thomas's argument that he acted to effect a citizen's arrest of Watkins could be construed as a claim that he did not act “with knowledge that the restriction is unlawful” and believed he was acting lawfully. New York Penal Law § 35.30(4) provides that “a private person ․ may use physical force ․ to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who has in fact committed such offense.” However, an officer is “entitled to rely on the implications of the information known to him” in assessing a suspect's knowledge. Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989) (finding that the evidence supported an inference of knowledge and thus of probable cause). Here, Thomas's admissions that he physically blocked Watkins from leaving the room supported a reasonable inference that Thomas knew his restriction of Watkins's movements was unlawful. Further, the facts shared with the Defendant Officers did not suggest that Thomas reasonably believed he needed to use physical force to effect an arrest or to prevent Watkins from escaping. Watkins lived in the room next door and Thomas knew her well. All Thomas needed to do to effect an arrest was to call the police, which he did.

Accordingly, there is no genuine dispute that Officer Rigsang had probable cause or arguable probable cause to charge Thomas with Unlawful Imprisonment in the Second Degree.

d. Harassment in the Second Degree, N.Y. Penal L. § 240.26(1)

A person is guilty of Harassment in the Second Degree when “he or she strikes, shoves, kicks, or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” N.Y. Penal L. § 240.26(1). Based on Watkins's statement that “she observed [Plaintiff] shove and pin her onto the ground, causing abrasions, redness, and swelling to her right hand knuckle,” Compl. ¶ 36, Defendant Rigsang had probable cause or arguable probable cause to charge Thomas with Harassment in the Second Degree because Watkins was at least subjected to physical contact.

Thomas cannot dispute that he attempted to subject Watkins to physical contact because he admitted that he “attempted to reach into the pockets of Ms. Watkins to retrieve the stolen mobile electronic device.” Id. ¶ 17.

As such, there is no genuine dispute that Officer Rigsang had sufficient information to support probable cause or arguable probable cause to charge Thomas with Harassment in the Second Degree.

2. Thomas Identifies No New Information Undermining Probable Cause

Thomas does not argue that any new information came to light after his arrest that would make apparent “the groundless nature of the charges.” Brandon v. Khan, No. 23-cv-1168, 2024 WL 4100520, at *2 (2d Cir. Sept. 6, 2024). Instead, Thomas argues that he “denied using physical force against Watkins,” that Watkins initiated the use of physical force, that he acted in self-defense to recover his stolen property from Watkins, and that he was justified in using physical force to effect an arrest of Watkins under N.Y. Penal L. § 35.30 and N.Y. Crim. P.L. § 140.30. See Opp at 7–8, 18.

However, Thomas admits that this information was already known to Defendant Officers at the time of the arrest, see Opp. at 7–8, 15, and Thomas does not argue that any additional information came to light after his arrest that would undermine probable cause.

3. There Is No Evidence of Fabrication

Thomas argues that Officer Rigsang fabricated probable cause because “[n]ot a single statement attributed to Ms. Watkins by Defendant Rigsang was captured on the BWC interview of Ms. Watkins by Defendant Rigsang.” Compl. ¶ 39. However, this argument ignores what the Defendant Officers knew collectively and is undermined by the BWC footage, the authenticity of which is not in dispute.

Officer Rigsang incorporated into the accusatory instrument Watkins's statements that “she observed [Plaintiff] shove and pin her onto the ground, causing abrasions, redness, and swelling to her right hand knuckle.” Id. ¶ 36. Thomas concedes that “Ms. Watkins sustained minor injuries to her right hand” including an “abrasion” and a “broken fingernail.” Id. ¶ 19; Opp. at 26. It is also apparent in the BWC footage that there were visible injuries to Watkins's hand. Azzolino BWC at 0:12:45–0:13:20; Herrera BWC 0:12:43–0:13:51; Pitt BWC at 0:09:42–0:09:58. Thomas also admitted to being involved in a physical altercation with Watkins in which he “attempted to reach into the pockets of Ms. Watkins,” Compl. ¶ 17, and during which Watkins was injured. This evidence is consistent with the information Officer Rigsang incorporated into the accusatory instrument, such that any suggestion of fabrication fails.

F. Intentional Infliction of Emotional Distress Claims Against Defendant Officers Dunigan, Rigsang, and Pitt Should Be Dismissed

Thomas brings claims for IIED under Section 1983 against Officers Dunigan, Rigsang, and Pitt. “Federal courts in the Second Circuit agree that no IIED claim will lie where the conduct underlying the claim falls within the ambit of traditional tort liability.” Pateman v. City of White Plains, No. 17-cv-6156, 2020 WL 1497054, at *25 (S.D.N.Y. Mar. 25, 2020) (cleaned up). Thus, “courts have not hesitated to dismiss IIED claims where ‘the alleged conduct fits well within the traditional tort theories of false arrest, malicious prosecution, and assault and battery.’ ” Id. (quoting Zhao v. City of New York, 656 F. Supp. 2d 375, 405 (S.D.N.Y. 2009)). Thomas's IIED claim is based on the same alleged conduct that forms the basis for his other tort claims, and Thomas does not allege any other basis for his IIED claim.

Further, any such claim must allege a deprivation of a constitutional right that occurred under color of state law. Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1081 (2d Cir. 1990). The tort of IIED is a state law claim that does not inherently involve constitutional rights, and thus is not actionable under Section 1983. See Schisler v. City of Rome, No. 17-cv-312, 2017 WL 1418296, at *4 (N.D.N.Y. Mar. 22, 2017), report and recommendation adopted, 2017 WL 1411533 (N.D.N.Y. Apr. 20, 2017) (“There is no recognized claim for intentional infliction of emotional distress under section 1983.”).

Accordingly, the Court should dismiss the intentional infliction of emotional distress claims against Defendant Officers Dunigan, Rigsang, and Pitt.

G. Unconstitutional Conditions of Confinement Claims Against Defendant Officers Dunigan, Herrera, Azzolino, and Rigsang Should Not be Dismissed

Thomas brings claims for unconstitutional conditions of confinement in violation of the Eighth and Fourteenth Amendments under 42 U.S.C. § 1983 against Officers Dunigan, Herrera, Azzolino, and Rigsang. Specifically, Thomas alleges that he was deprived of food, water, medication, and clothing.

Because Thomas was a pretrial detainee at the time he was held at the precinct, this claim is governed by the Due Process Clause of the Fourteenth Amendment, and not the Cruel and Unusual Punishments Clause of the Eight Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Pretrial detainees “may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the officers acted with deliberate indifference to the challenged conditions.” Id. Plaintiff must satisfy both (1) “an ‘objective prong’ showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process,” and (2) “a “subjective prong” ․ showing that the officer acted with at least deliberate indifference to the challenged conditions.” Id. Though the “subjective prong” is labeled as such because it refers to the defendant's state of mind, the Second Circuit has expressed that it is “perhaps better classified as a ‘mens rea prong’ or ‘mental element prong’ ” because “the Supreme Court has instructed that ‘deliberate indifference’ roughly means ‘recklessness,’ but ‘recklessness’ can be defined subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known).” Id.

Under the first prong, “the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health,” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013), which includes the risk of serious damage to “physical and mental soundness,” LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972). “There is no static test to determine whether a deprivation is sufficiently serious; the conditions themselves must be evaluated in light of contemporary standards of decency.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (cleaned up). Some conditions of confinement may constitute a violation when considered in combination and “when severe enough or sustained over a long enough period of time.” Walker v. Schriro, No. 11-cv-9299, 2013 WL 1234930, at *13 (S.D.N.Y. Mar. 26, 2013).

Thomas complains of freezing conditions and lack of sufficient clothing in light of the temperature, lack of medication to address his pre-existing health conditions, and lack of food or water during his confinement. Specifically, Thomas alleges he was confined at the First Precinct “for approximately twenty-seven hours,” with approximately seventeen of those hours “in freezing conditions.” Compl. ¶¶ 56, 58, 83. Thomas alleges that he was held “in a t-shirt, in an uninsulated; unheated area where the temperature dropped below thirty degrees Fahrenheit.” Id. ¶ 28, 56. Further, Thomas alleges that he was not provided food, water, or medication. Id. ¶¶ 29, 31, 58, 83. Thomas alleges that as a result of these conditions, he suffered “mental and emotional injury and pain, mental anguish, suffering, humiliation and embarrassment,” id. ¶ 85, but does not allege any physical injury. However, Thomas does allege that he is diabetic and has a small brain aneurysm. Id. ¶ 2.

Defendants argue that any constitutional claim is precluded because Thomas was confined for only twenty-seven hours. Mot. at 17. While “Defendants cite to cases when temporary deprivations did not create constitutional deprivations[, those] citations are not articulating a general rule; indeed, the length of the deprivation is not in itself dispositive ․ To the extent defendants argue that the temporary nature of the deprivation by itself warrants dismissal of [Thomas's] complaint, without looking into what was deprived, they are incorrect.” Townsend v. Clemons, No. 12-cv-03434, 2013 WL 818662, at *6 (S.D.N.Y. Jan. 30, 2013), report and recommendation adopted, 2013 WL 868605 (S.D.N.Y. Mar. 4, 2013).

Construing the Complaint liberally, Thomas adequately alleges that the conditions of his confinement posed a risk of serious damage to his health. The alleged combination of freezing conditions, lack of adequate clothing, lack of food and water, and lack of medication put Plaintiff at risk of serious damage to his physical and mental soundness. The Second Circuit has held that exposure to extreme temperatures without proper ventilation is one of several conditions that can be found to objectively deprive detainees of basic human needs and violation due process. See Schult, 717 F.3d at 126–29. Furthermore, depriving an incarcerated individual the ability “to eat, drink, or use the bathroom” for several hours is sufficient to state a claim for deliberate indifference. See Boadi v. City of New York, No. 12-cv-2456, 2012 WL 3062063, at *4 (E.D.N.Y. July 26, 2012).

Under the second prong, a pretrial detainee must allege that the defendant acted with “more than mere negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). Deliberate indifference requires that “[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety.” Jabbar, 683 F.3d at 57. “Evidence that a risk was ‘obvious or otherwise must have been known to a defendant’ may be sufficient for a fact finder to conclude that the defendant was actually aware of the risk.” Schult, 717 F.3d at 125 (quoting Brock v. Wright, 315 F.3d 158, 164 (2d Cir.2003)). However, “an official's failure to alleviate a significant risk that he should have perceived but did not ․ cannot under [the] cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.

Thomas's complaint adequately alleges that Defendants knew of and disregarded risks to his health. Thomas alleges that he “asked multiple times for [his] outer clothing” and that he “loudly complained that [the holding area] was painfully cold” to Defendant Officers Azzolino and Herrera. Id. ¶ 28. Further, Thomas alleges that he “complained to Defendant Rigsang, while Defendant Dunigan was present, of the freezing conditions, and Plaintiff's medical condition” and that Defendant Officers “did nothing to address those conditions,” id. ¶ 29. Additionally, Thomas alleges that he was not “provided food; water; or medication.” Id. ¶ 30. These allegations are sufficient to plead that the Defendant Officers had actual knowledge of the conditions. Further, Thomas's allegations that the Defendant Officers did not do anything to address the conditions is sufficient at this stage to allege their deliberate indifference. See Schult, 717 F.3d at 130 (plaintiff's allegations that he directly spoke to defendants about conditions and that certain defendants directly witnessed conditions were sufficient to satisfy deliberate indifference on motion to dismiss). The Defendant Officers cite to BWC footage to demonstrate otherwise but, as discussed above, the motion has not been converted to a summary judgment motion for this claim because much of the twenty-seven hour period of detention was not captured in this footage.

Because Thomas has adequately alleged that the confinement “posed an unreasonable risk of serious damage to his health,” Schult, 717 F.3d at 125, and that defendants “knew of and disregarded” those risks, id. at 129, the Court should deny the motion as to the unconstitutional conditions of confinement claims against Defendant Officers Dunigan, Herrera, Azzolino, and Rigsang.

H. Involuntary Psychiatric Evaluation Claims Against Defendant Officer Dunigan Should Not Be Dismissed

Thomas brings claims for involuntary psychiatric evaluation in violation of the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983. Compl. ¶¶ 87–90. He alleges he was taken to a hospital for an evaluation due to his refusal to be photographed and fingerprinted, and for the purpose of compelling him to submit to be photographed and fingerprinted. Compl. ¶¶ 30, 59. Thomas asserts that this involuntary evaluation constituted an unreasonable seizure for which probable cause—cause to believe that the person poses a danger to himself or others—is required under the Fourth Amendment. Id. ¶ 88.

The Fourth Amendment permits an involuntary hospitalization if it is “based upon probable cause, meaning that there are reasonable grounds for believing that the person seized is dangerous to himself or others.” Fisk v. Letterman, 501 F. Supp. 2d 505, 526 (S.D.N.Y. 2007) (cleaned up). The Fourth Amendment requires only a “probability or substantial chance of dangerous behavior, not an actual showing of such behavior.” Vallen v. Connelly, No. 99-cv-9947, 2004 WL 555698, at *8 (S.D.N.Y. Mar. 19, 2004) (citing Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983)). However, due process requires “that the decision to order an involuntary emergency commitment be made in accordance with a standard that promises some reasonable degree of accuracy.” Rodriguez v. City of New York, 72 F.3d 1051, 1062 (2d Cir. 1995).

Officer Dunigan argues there was probable cause to subject Thomas to a psychiatric evaluation because he acted erratically and irrationally, refused to cooperate with police to be photographed and fingerprinted, and had been arrested in connection with a domestic violence incident, all of which provided reasonable grounds to believe Thomas was a danger to himself or others. Mot. at 23–24.⁸ Officer Dunigan also argues that he is entitled to qualified immunity on this issue. Id. at 24–25.

On the face of the Complaint, Thomas plausibly alleges that he was subjected to an evaluation without probable cause and without procedural due process. None of the cases cited on this point supports dismissal of this claim on a Rule 12 motion. In Lurch v. Chaput, the court granted summary judgment for defendants where plaintiff was involuntary hospitalized after police responded to a call that the plaintiff was violent and destructive in a restaurant and refused to leave when police instructed him to do so, and plaintiff remained agitated upon arrival at the hospital. No. 16-cv-2517, 2022 WL 889259 (S.D.N.Y. Mar. 25, 2022). In Drozdik v. City of New York, the court granted defendants summary judgment on an involuntary commitment claim because two doctors evaluated plaintiff and made medical judgments that he posed a danger to himself or others. No. 01-cv-3300, 2003 WL 366639, at *3–*5 (S.D.N.Y. Feb. 20, 2003). These cases involved very different circumstances and were decided on summary judgment. A court addressing a Rule 12 motion considers whether plaintiff states a claim for involuntary hospitalization on the face of the complaint. Because there are no factual allegations in the Complaint that would support a finding that Thomas was a danger to himself or others, Thomas plausibly alleges that he was involuntarily hospitalized in violation of his Fourth and Fourteenth Amendment rights.

Additionally, Officer Dunigan has not demonstrated that he is entitled to qualified immunity on the face of the Complaint. A defendant asserting a qualified immunity defense on a motion to dismiss “faces a formidable hurdle ․ and is usually not successful.” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006). The defense will succeed only where entitlement to qualified immunity can be established “based [solely] on facts appearing on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). For these reasons, a motion to dismiss “is a mismatch for immunity and almost always a bad ground of dismissal.” Barnett v. Mount Vernon Police Dep't, 523 Fed. App'x. 811, 813 (2d Cir. 2013). Here, Officer Dunigan has failed to show “on the face of the complaint” that probable cause or arguable probable cause existed to involuntarily hospitalize Thomas. See McKenna, 386 F.3d at 436.

The Court should therefore deny the motion for judgment on the pleadings as to the involuntary commitment claim against Defendant Officer Dunigan.

I. Claims Against the City Should Be Dismissed

None of Plaintiff's five causes of action states that it is asserted against the City per se. See generally Compl. ¶¶ 66–90 (pleading causes of action against named individual defendants). Additionally, the only specific allegations made against the City are that Thomas is owed compensation for compelled performance. Compl. ¶¶ 45, 65. But Thomas does assert claims against the Defendant Officers in their official capacities, which the Court construes as asserting claims against the City as the real party in interest. See, supra, Section II.E; Vansertima, 2012 WL 4503412, at *5; In re New York City Policing During Summer 2020 Demonstrations, 548 F. Supp. 3d at 409.

A municipality bears Section 1983 liability when it has promulgated a custom or policy that violates federal law and, pursuant to that policy, a municipal actor has tortiously injured the plaintiff. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006); see also Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 690–91(1978); Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012). Here, Thomas fails to allege the existence of any municipal policy, custom, or practice, let alone one that caused his alleged deprivations. Accordingly, Thomas's claims against the City should be dismissed. However, such dismissal should be without prejudice to allow Thomas the opportunity to address this deficiency through amendment.

III. CONCLUSION

For the reasons discussed above, the undersigned respectfully RECOMMENDS that summary judgment be GRANTED in favor of the City of New York and Defendant Officers Barcenas, Rigsang, Baroz, and Pitt as to Thomas's claims for false arrest and malicious prosecution; that Thomas's claim for intentional infliction of emotional distress against the City of New York and Defendant Officers Dunigan, Rigsang, and Pitt be DISMISSED with prejudice; that Thomas's claim for municipal liability against the City of New York be DISMISSED without prejudice; and that the motion for judgment on the pleadings as to Thomas's unconstitutional conditions of confinement and involuntary psychiatric evaluation against Defendant Officers Dunigan, Herrera, Azzolino, and Rigsang be DENIED.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed. R. Civ. P. 6(a), (b), (d). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 500 Pearl Street, New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Caproni.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   This motion was filed by the City, Officers Rigsang, Baroz, Azzolino, Herrera and Dunigan, and was later joined by Officer Pitt. This action is stayed against Officer Barcenas due to his active military duty. See ECF No. 45. To the extent claims against other Defendant Officers are dismissed, they should be dismissed against Officer Barcenas for the same reasons.

2.   While this document is linked on the docket to Mayor Adams’ motion to dismiss, ECF No. 17, upon review of this submission, Plaintiff's filing actually addresses the instant motion and is considered an opposition thereto.

3.   References to Defendant Officers’ body worn camera footage are to Exhibits C–I to Defendants’ motion. See Ex. C, ECF No. 36-3 (“Rigsang BWC I”); Ex. D, ECF No. 36-4 (“Pitt BWC”); Ex. E, ECF No. 36-5 (“Azzolino BWC”); Ex. F, ECF No. 36-6 (“Barcenas BWC”); Ex. G, ECF No. 36-7 (“Baroz BWC”); Ex. H, ECF No. 36-8 (“Herrera BWC”); Ex. I, ECF No. 36-9 (“Rigsang BWC II”).

4.   Thomas states “there were no relevant material differences in what Ms. Watkins and Plaintiff both told the police with regards to the December 11th, 2022 incident which resulted in police being called to the scene.” Opp. at 6.

5.   On September 10, 2024, this action was referred to the undersigned for general pretrial supervision and a report and recommendation on any dispositive motion. ECF No. 7.

6.   Officer Pitt, who was served after the motion was filed, filed an answer, ECF No. 58, and a letter motion seeking leave to join the already fully briefed Motion for Judgment on the Pleadings, ECF No. 59. The Court granted this motion. ECF No. 61.

7.   As noted above, the materials do contain limited BWC footage of Plaintiff's arrival and initial processing at the First Precinct, and one interaction with Officer Rigsang. See Azzolino BWC; Herrera BWC; Rigsang BWC II.

8.   Defendants’ reply brief asserts that Thomas “was not subjected to involuntary hospitalization, only a psychological evaluation,” Reply at 10, but their moving brief did not advance an argument based on such a distinction. The Court does not consider this new argument made on reply and therefore assumes, without deciding, that an involuntary psychiatric evaluation conducted at a hospital constitutes an involuntary hospitalization under the Fourth Amendment.

Henry J. Ricardo United States Magistrate Judge