govinfo:USCOURTS-nynd-8_22-cv-00164-3

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
 
TIMOTHY LALONDE AND THERESA LALONDE, 
 
   Plaintiffs, 
 
-against-       8:22-CV-00164 (LEK/DJS) 
 
CITY OF OGDENSBURG, et al., 
       
   Defendants. 
       
 
MEMORANDUM-DECISION AND ORDER 
 
I. INTRODUCTION 
 On February 18, 2022, Plaintiffs Timothy Lalonde and Theresa Lalonde commenced this 
action by filing a complaint asserting claims under 42 U.S.C. §§ 1983, 1985, and 1986, the 
Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), as well as New York state 
law. See generally Dkt. No. 1 (“Complaint”). The Complaint named as Defendants the City of 
Ogendsburg, Saint Lawrence County, the City of Ogdesnburg Police Department, the Saint 
Lawrence County Sheriffs’ Department, Ogdensburg Police Department Chief Robert Wescott, 
the County of Saint Lawrence Sheriff Brooks Bigwarfe, Sheriff Matthew Merria, and Police 
Officers Charles Shaver, Danielle Pryce, Joshua Sirles, and Scott Wilson. Id. at 1.  
On February 4, 2025, Defendants Saint Lawrence County Sheriffs Department, Brooks 
Bigwarfe and Matthew Merria (“County Defendants and Merria”) filed a motion for judgment on 
the pleadings. Dkt. No. 73 (“Motion”). On September 29, 2025, the Court issued a 
Memorandum-Decision and Order, granting County Defendants and Merria’s Motion in its 
entirety, dismissing Plaintiffs’ state law claims against Deputy Merria and Section 1986 claims 
against the County Defendants as untimely. Dkt. No. 117 (“MDO”). On October 13, 2025, 
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Plaintiffs filed a motion for reconsideration. Dkt. No. 121. (“Motion for Reconsideration”). On 
March 31, 2026, the Court ruled against the Motion for Reconsideration. Dkt. No. 124 
(“Reconsideration”).  
On May 29, 2025, Defendant Matthew Merria filed a Motion for Summary Judgment. 
Dkt. No. 90 (“Merria MSJ”). Also on May 29, 2025, County Defendants filed a Motion for 
Summary Judgment. Dkt. No. 92 (“County MSJ”). That same day, the City of Ogdensburg, the 
City of Ogdensburg Police Department, Danielle Pryce, Charles Shaver, Joshua Sirles, Robert 
Wescott, and Scott Wilson (City Defendants) filed a Motion for Summary Judgment. Dkt. No. 94 
(“City MSJ”). On July 28, 2025, Plaintiffs filed a response to County Defendants, Dkt. No. 103 
(“Resp. to County”), to Defendant Merria, Dkt. No. 104 (“Resp. to Merria”), and City 
Defendants, Dkt. No. 105 (“Resp. to City”). On September 26, 2025, County Defendants, Dkt. 
No. 114 (“County Reply), and Defendant Merria, Dkt. No. 113 (“Merria Reply”), filed replies. 
On September 29, 2025, City Defendants also filed a reply. Dkt. No. 118 (“City Reply”).  
II. BACKGROUND 
The factual summary of the relevant events are taken from the parties’ statement of 
material facts and the attached exhibits.
1 Disputes of material fact in the record are noted.  
 
1 City Defendants move to strike Plaintiffs’ Statement of Material Facts. Dkt. No. 118 at 
2 fn. 1 (“City Resp. Pl. SMF”). County Defendants and Defendant Merria, similarly object to the 
Plaintiffs’ Statement of Material Facts. Dkt. No. 114 1–2 (“County Resp. Pl. SMF”); Dkt. No. 
113 at 1–2 (“Merria Resp. Pl. SMF”). Plaintiffs, conversely, move to strike City Defendants’ 
Statement of Material Fact. Dkt. No. 105-2 at 1–2 (“Pl. Resp. City SMF”) at 1–2.  
Defendants are correct that Plaintiffs’ document is not “short and concise” and is not 
limited to “assertions that are ‘in dispute.’” County Resp. Pl. SMF at 1–2; see Dkt. No. 103-1 
(“Pl. SMF”). Conversely, Plaintiffs are correct that City’s Statement of Material Facts is not 
“short and concise,” either. Pl. Resp. City SMF at at 1–2; see Dkt. No. 94-1 (“City SMF”).   
Given the factual complexities of this litigation, and the helpfulness of these documents 
in sorting through the competing factual allegations of what transpired the night of the incident, 
the Court exercises its discretion in striking neither document.  
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Following an attack by a necrotizing fasciitis and corresponding surgery, Mr. Timothy 
Lalonde became blind, with “exceedingly diminished us of his right side, right arm, and 
shoulder.” Pl. SMF ¶¶1–9. Mr. Lalonde had to use his left arm for basic tasks. Id. ¶¶12–18.  
The night of February 29, 2020, upon hearing complaints from his daughter, Mr. Lalonde 
confronted Mr. Randall Outlaw, her daughter’s then boyfriend. Id. ¶¶ 21–23, 44. Mr. Lalonde 
“express[ed] his concerns regarding Mr. Outlaw’s theft of money and shooting firearms on the 
property [owned by Mr. Lalonde], as well as on the street in front of the home.” Id. ¶44. Mr. 
Lalonde and Mr. Outlaw argued loudly, with each of them saying “fuck you” at the end of the 
argument. Id. ¶48, 53.  
At that point, now past midnight, Officer Charles Shaver arrived on scene. See id. ¶54. 
Much of what occurred after this point is disputed. First, Plaintiffs claim that “Mr. Lalonde was 
wearing dark sunglasses and holding a white cane in his hand.” Id. ¶57; Defendants dispute that 
Mr. Lalonde had his sunglasses and cane. City Resp. Pl. SMF” ¶57; County Resp. Pl. SMF ¶57. 
Mr. Shaver introduced himself to Mr. Lalonde as a police officer. Pl. SMF ¶60. Second, 
Plaintiffs claim that “[o]nce Officer Shaver identified himself, Mr. Lalonde stopped arguing with 
Mr. Outlaw and started to return home, using his cane. He said nothing to Officer Shaver. Mr. 
Lalonde did not yell at anyone after Officer Shaver identified himself.” Id. ¶70. Defendants 
dispute this, arguing that Mr. Lalonde yelled at Mr. Shaver and was generally confrontational. 
County Resp. Pl. SMF ¶70; City Resp. Pl. SMF ¶70 (“Mr. Lalonde continued to yell, scream and 
use profanity throughout his encounter with the officers present on scene.”).  
Subsequently, three additional officers—Pryce, Sirles, and Deput Merria— arrived on 
scene. Pl. SMF ¶64. Defendant Pryce told Mr. Lalonde “let me see your hands, let me see your 
hands.” Pl. SMF ¶71. Plaintiffs claim that Defendant Pryce was approaching him, and that as she 
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did so, “Mr. Lalonde turned his body in her direction and was not saying anything. Pl. SMF ¶71–
72. Defendants dispute this, claiming that Mr. Lalonde was continuing to yell, and that “before 
Officer Pryce grabbed Mr. Lalonde to arrest him, he clenched his fists and said ‘Fuck you.’” City 
Resp. Pl. SMF ¶72; see also County Resp. Pl. SMF ¶72. Plaintiffs claim that in response to 
Defendant Pryce’s command, “Mr. Lalonde, with his blind cane in hand . . . raised his arms 
slightly.” Pl. SMF ¶ 77. Defendants dispute that Mr. Lalonde had his cane and that he raised his 
arms, and alternatively suggest that Mr. Lalonde “flailed his arm at [Defendant Pryce] and 
pushed [her] arm away.” County Resp. Pl. SMF ¶77 (quoting Dkt. 92-38 at 95 (“Pryce 
Deposition”)); see also City Resp. Pl. SMF ¶77.  
Plaintiffs claim that the three officers then tackled Mr. Lalonde, bringing him to the 
ground, with a neighbor hearing the wind getting knocked out of him. Pl. SMF ¶78. Defendants 
dispute this, claiming that the officers and Mr. Lalonde “fell to the ground,” rather than being 
tackled. County Resp. Pl. SMF ¶78 (quoting Pryce Dep. at 109); see also City Resp. Pl. SMF 
¶78.  
The officers were then on top of Mr. Lalonde. See City SMF ¶ ¶ 286, 294–300.  Mr. 
Lalonde’s left arm was under his body, and in Plaintiffs’ account the officers struggled to get it 
out from under him. Pl. SMF ¶83. In Defendants’ telling, Mr. Lalonde was resisting giving his 
arm to be handcuffed. City SMF ¶401. Plaintiff claims that “the officers continued to yank on 
Mr. Lalonde’s left arm, doing so with such force that it tore his left rotator cuff [and] dislocated 
his elbow out of its socket. Pl. SMF ¶87. Defendants dispute this characterization but accept that 
these injuries occurred to Mr. Lalonde. See County Resp. PL. SMF ¶87. Defendants also claim 
that Mr. Lalonde tried to grab on to the officers, particularly Defendant Merria’s vest. City SMF 
at  ¶¶ 308, 309, 543. By contrast, Plaintiffs claim that “[a]t no point did Mr. Lalonde resist or 
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attempt to grab the officers.” Pl. SMF ¶88.  Officer Sirles used his taser on Mr. Lalonde’s leg, 
purportedly “[b]ecause . . . the other officers were having difficulty gaining control of Timothy’s 
arms.” City SMF ¶¶413–14.   
While Mr. Lalonde was lying on the ground, Defendant Pryce’s knee came into contact 
with his head. Pl. SMF ¶90. There is a dispute over how forceful this contact was. Compare Pl. 
SMF  ¶90 (“OPD officer Pryce forcefully drove her knee into Mr. Lalonde’s head and ear”) with 
City Resp. Pl. SMF ¶90; Cnty. Resp. Pl. SMF ¶90 (quoting Defendant Pryce saying she did not 
“strike [Mr. Lalonde] in the head with [her] knee.”). Mr. Lalonde’s ear bled, and he has suffered 
hearing loss following the incident. See Pl. SMF ¶90. 
After being handcuffed, Mr. Lalonde claims to have requested medical care, which 
Defendants dispute. See Pl. SMF ¶97; City Resp. Pl. SMF ¶97 (“Mr. Lalonde did not request 
medical attention and did not request an ambulance until he arrived at the OPD station.”) 
(citations omitted); County Resp. Pl. SMF ¶97. If there was a request for medical care, it was not 
immediately acceded to. See Pl. SMF ¶97. Mr. Lalonde was then placed in the police car; it is 
disputed how he entered the vehicle. Plaintiffs claim “after learning that Mr. Lalonde could not 
seat himself in the police car because of his disability, OPD Officer Shaver and Deputy Merria 
forcefully threw Mr. Lalonde headfirst into the vehicle without concern for Mr. Lalonde’s safety, 
and closed the back passenger door onto Mr. Lalonde’s head.” Pl. SMF ¶98. By contrast, 
Defendants claim that officers “escorted Mr. Lalonde to an OPD patrol vehicle and placed him in 
the back seat on the driver’s side. County SMF ¶25. While this was occurring, Defendant 
Wescott arrived on scene. Pl. SMF ¶100.  
Mr. Lalonde was transported to the Ogdensburg Police Department by Defendant Shaver. 
Pl. SMF ¶102; County SMF .¶27. It is disputed how Mr. Lalonde was handcuffed while in the 
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police car. Plaintiffs claim that “the officers handcuffed Mr. Lalonde’s previously disabled right 
arm and wrist to the ceiling of the patrol car, as Mr. Lalonde’s disability entailed the loss of 
muscles in his stomach and back prevented him from sitting upright.” Pl. SMF ¶102. Defendants 
dispute this, claiming “Deputy Merria did not handcuff one of Mr. Lalonde’s arms to the ceiling 
or any other part of the patrol vehicle.” County SMF ¶26. As City Defendants explain, “it was a 
physical impossibility to handcuff Mr. Lalonde’s right arm and wrist to the ceiling of the patrol 
car inasmuch as both of Mr. Lalonde’s wrists were handcuffed behind his back.” City Resp. Pl. 
SMF ¶ 102. Plaintiff claims that “[w]hile in the police car, Mr. Lalonde reaffirmed his urgent 
need to go to the hospital immediately.” Pl. SMF ¶103. City Defendants dispute that Mr. Lalonde 
requested medical attention at that time. City Resp. Pl. SMF ¶103.   
After arriving at the police station, Mr. Lalonde was removed from the vehicle. There is a 
dispute over how he was removed. Plaintiffs claim that Defendants Shaver and Wescott 
“attempted to pull Mr. Lalonde out of the patrol car by yanking on his feet while forgetting that 
his wrist was handcuffed to the car’s interior.” Pl. SMF ¶104. After removing the handcuff, 
Plaintiffs claim that the Defendants then successfully pulled Mr. Lalonde out of the car by his 
feet, making him fall on the ground. Pl. SMF ¶105. In Plaintiffs’ account, “The officers then 
pulled Mr. Lalonde off the ground by his belt and the back of his pants, with such force that his 
jeans ripped and his leather belt tore in half.” Pl. SMF ¶105. City Defendants dispute this, as they 
deny that Mr. Lalonde’s wrist was ever handcuffed to the car, and instead claim that “Officer 
Shaver and Lieutenant Wescott opened the door and eased Timothy out of the car. City Resp. Pl. 
SMF ¶¶104–05.   
Mr. Lalonde describes a series of humiliations while in the police station. See Pl. SMF 
¶¶106–08. This includes having Mr. Lalonde navigate the station without proper assistance, 
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despite Mr. Lalonde’s blindness. Id. City Defendants dispute Mr. Lalonde’s characterization. 
City Resp. Pl. SMF  ¶¶ 106–08. At one moment an officer “threatened to shoot Mr. Lalonde if he 
touched the officer again” after “accidentally brush[ing] up against [him]. Pl. SMF ¶107. City 
Defendants do not dispute this. See City Resp. Pl. SMF  ¶107.  
 In the station, the officers asked Mr. Lalonde about a concocted assault on Patterson 
Street. Pl. SMF ¶109. Plaintiff interprets this as the officers attempting to blame him for his own 
injuries. Id.   
 As this was ongoing, Mr. Lalonde asked for medical care. Pl. SMF ¶110. Eventually, 
“Mr. Lalonde was . . . provided an ambulance and transported to Claxton-Hepburn Hospital in 
Ogdensburg.” Pl. SMF ¶111; City Resp. Pl. SMF  ¶111. After receiving an x-ray and pain killers 
at Claxton-Hepburn, Mr. Lalonde was transferred to Upstate Medical. See Pl. SMF ¶117. “Upon 
arriving at Upstate, Mr. Lalonde was informed that he had a torn left rotator cuff, a chipped bone 
in his left wrist . . . [and] torn tendons.” Pl. SMF ¶118; see City Resp. Pl. SMF  ¶118 (arguing 
that Mr. Lalonde mischaracterizes the evidence); Dkt. No. 96-1 at 56–57 (describing what the 
Upstate doctors told Mr. Lalonde). The doctors at Upstate attempted unsuccessfully to relocate 
Mr. Lalonde’s elbow. See Pl. SMF ¶119.  
 Mr. Lalonde’s injuries have had a lasting effect on him. See Pl. SMF ¶¶120–24, 149–59. 
Mr. Lalonde required two surgeries on his elbow, and will need surgery on his wrist. Pl. SMF 
¶¶120–21. His “left wrist is rotationally compromised, with one of the bones detached.” Pl. SMF 
¶124. Mr. Lalonde believes he has experienced hearing loss, though the examining doctor could 
not definitively attribute that loss to the incident. Pl. SMF ¶¶123–24; City SMF ¶173. As a result 
of the incident, Mr. Lalonde is “unable to partake in any of the household chores, maintenance 
projects, etc., that he was able and willing to perform before March 1, 2020.”  Pl. SMF ¶149.  As 
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a result, “Mrs. Lalonde is now forced to bear the entirety of the [household tasks].” Pl. SMF 
¶151. The injuries and corresponding mental anguish have had significant psychological effects 
on Mr. Lalonde. Pl. SMF ¶155–59.   
  Mr. Lalonde claims that several of the statements made by Defendant officers in relation 
to the incident are fabricated. See Pl. SMF ¶¶125, 169. Defendants deny this. City Resp. Pl. SMF  
¶125; County Resp. Pl. SMF  ¶125.  
“Approximately one year after the March 1, 2020 [incident] and after receiving repeated . . 
. phone calls from the OPD . . . in April 2021 OPD officer Hollister, upon OPD Chief Wescott’s 
direction, arrived . . . at the Lalonde’s home and requested that Mr. Lalonde accompany Officer 
Hollister at the OPD stationhouse.” Pl. SMF ¶160; City Resp. Pl. SMF ¶160. In Plaintiffs’ 
account, Officer Hollister threatened Mr. Lalonde with arrest, if he refused to come to the 
station. See Pl. SMF ¶162. City Defendants deny this, claiming that “Officer Hollister did not tell 
Timothy that he would get a warrant for his arrest if he did not come in voluntarily . . . and 
instead explained to him that he would not be placed under arrest.” City Resp. Pl. SMF ¶162 
(emphasis in original). After discussing this with his lawyer, Mr. Lalonde went to the police 
station. Pl. SMF ¶¶163–64. Plaintiffs claim that while at the police station, “Officer Hollister 
began to question Mr. Lalonde about the location of the incident on March 1, 2020, in an attempt 
to resurrect the false narrative that the incident occurred on Patterson.” Pl. SMF ¶164. City 
Defendants deny this City Resp. Pl. SMF ¶164.  
III.  LEGAL STANDARD 
Rule 56 of the Federal Rules of Civil Procedure instruct courts to grant summary 
judgment if “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). A fact is “material” if it “might affect the 
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outcome of the suit under the governing law,” and a dispute is “‘genuine’ . . . if the evidence is 
such that a reasonable jury could return a verdict for the nonmoving part.” Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or 
unnecessary” will not preclude summary judgment, granting summary judgment is improper if 
there are genuinely disputed material facts. Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46 
(2d Cir. 1991) (“Only when no reasonable trier of facts could find in favor of the nonmoving 
party should summary judgment be granted.”). 
 
The party seeking summary judgment bears the burden of informing a court of the basis 
for the motion and identifying those portions of the record that the moving party claims 
will demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 
477 U.S. 317, 323 (1986). In attempting to defeat a motion for summary judgment after the 
moving party has met its initial burden, the nonmoving party “must do more than 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, 586 (1986).  
 
The nonmoving party may not rely on “mere conclusory allegations, speculation, or 
conjecture,” see Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020) (quoting Cifarelli v. Village 
of Babylon, 93 F.3d 47, 51 (2d Cir. 1996)), and must present more than a mere “scintilla of 
evidence” supporting its claims. Anderson, 477 U.S. at 252. At the same time, a court must 
resolve all ambiguities and “draw all reasonable inferences in favor of the nonmoving 
party,” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), and “eschew 
credibility assessments,” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) 
(quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Thus, a Court’s duty in reviewing a 
motion for summary judgment is “carefully limited” to “finding genuine disputes of fact,” “not 
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to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d 
Cir. 1994).   
IV. DISCUSSION  
This opinion proceeds claim by claim. The following claims are at issue in the MSJ; (1) 
State-law claims (including negligent infliction of emotional distress, intentional infliction of 
emotional distress, negligence, trespass, and loss of consortium); (2) Americans with Disabilities 
Act/Rehabilitation Act; (3) Section 1983 Municipal Liability; (4) Section 1983 Deliberate 
Indifference; (5) Section 1983 Fabricated Evidence; (6) Section 1983 Conspiracy; (7) Section 
1983 False Arrest/False Imprisonment; (8) Section 1983 Assault and Battery; (9) Section 1983 
Excessive Force;  (10) Section 1983 Failure to Intervene; (11) Section 1985(3) Conspiracy; (12) 
Section 1986 Failure to Prevent a Conspiracy.
2 
 
2 Plaintiffs concede that the City of Ogdensburg Police Department and Saint Lawrence 
County Sheriff’s Department are administrative arms of, respectively, the City of Ogdensburg 
and Saint Lawrence County, and therefore, are not amenable to be sued. See Resp. to City at 2, 
Resp. to Cnty. at 21. Therefore, Defendants City of Ogdensburg Police Department and St. 
Lawrence County Sheriff’s Department are hereby dismissed as Defendants.   
As Plaintiff failed to respond to Defendants’ argument for summary judgment regarding 
Plaintiff’s 42 U.S.C. ¶1985(3) conspiracy claim, 42 U.S.C. ¶1986 failure to prevent a conspiracy 
claim, 42 U.S.C. ¶1983 municipal liability failure to supervise theory, 42 U.S.C. ¶1983 
supervisory liability, and request for punitive damages, Plaintiff has abandoned these claims. See 
generally, Resp. to Cnty.; Resp. To City; see also Beers v. Gen. Motors Corp., No. 97-CV-
482(NPM/DNH), 1999 WL 325378, at *8 (N.D.N.Y. May 17, 1999) (“Moreover, plaintiff's 
failure to oppose [defendant’s] argument is deemed by the court as consent to summary 
judgment on th[ose] claims.”) Therefore, Plaintiff’s 42 U.S.C. ¶1985(3) conspiracy claim, 42 
U.S.C. ¶1986 failure to prevent a conspiracy claim, 42 U.S.C. ¶1983 municipal liability failure to 
supervise theory, and 42 U.S.C. ¶1983 supervisory liability claims are dismissed with prejudice, 
and the request for punitive damages is stricken.    
Plaintiffs concede their Section 1983 supervisory liability, Section 1985(3) conspiracy 
liability, and negligence claims against Defendant Bigwarfe. See Resp. to Cnty. at 21–22. 
Therefore, the ¶1983 supervisory liability, Section 1985(3) conspiracy liability, and negligence 
claims are dismissed with respect to Defendant Bigwarfe. As consortium claims are derivative on 
the presence of other claims, Plaintiffs’ consortium claim against Defendant Bigwarfe is also 
dismissed. See Hogan v. CVS Albany, LLC, No. 119CV1455GLSDJS, 2022 WL 4549224, at *3 
(N.D.N.Y. Sept. 29, 2022); Cnty. MSJ at 28.  
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A. State-Law Claims: Negligent Infliction of Emotional Distress, Intentional Infliction of 
Emotional Distress, Negligence, Trespass, and Consortium   
City Defendants argue that Plaintiffs have failed to comply with the pleading 
requirements of New York law, for their state-law claims. City MSJ at 42–47. They conclude 
that this necessitates dismissing all state-law claims against them. Id.  
“State claims brought under state law in federal court are subject to state procedural 
rules.” Coggins v. Cnty. of Nassau, 988 F. Supp. 2d 231, 250 (E.D.N.Y. 2013), aff’d in part, 
appeal dismissed in part sub nom. Coggins v. Buonora, 776 F.3d 108 (2d Cir. 2015). New York 
General Municipal Law (“GML ”) § 50-i sets out requirements for plaintiffs seeking to sue a 
“city [or] county . . . for personal injury . . . alleged to have been sustained by reason of the 
negligence or wrongful act of such city [or] county . . . or of any officer, agent, or employee 
thereof.” See GML. The notice-of-claim provision allows a city or county time to investigate a 
claim, and potentially the opportunity to settle outside of court. Hardy v. New York City Health 
& Hosp. Corp., 164 F.3d 789, 794 (2d Cir. 1999). “[P]ursuant to § 50-i, a plaintiff must plead 
that: (1) a notice of claim was served; (2) at least thirty days elapsed since the notice of claim 
was filed and before the complaint was filed; and (3) in that time, the defendant neglected to or 
refused to adjust or satisfy the claim.” Coggins, 988 F. Supp. 2d at 251. “[F]ederal courts 
entertaining state-law claims against [state] municipalities are [therefore] obligated to apply the 
notice-of-claim provision.” Felder v. Casey, 487 U.S. 131, 151 (1988). “[T]he plaintiff bears the 
burden of demonstrating compliance with the notice of claim requirement.” Chabot v. Cnty. of 
Rockland, New York, No. 18-CV-4109 (KMK), 2019 WL 3338319, at *9 (S.D.N.Y. July 25, 
2019). The Second Circuit has instructed courts to construe the notice-of-claim requirements 
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strictly. Hardy, 164 F.3d at 793. “Failure to comply with these requirements ordinarily requires a 
dismissal.” Id.  
When a plaintiff sues individual defendants and “the City has a duty to indemnify them,” 
the notice of claim requirement is applicable.  Dorsey v. City of Albany Police Dep't, No. 1:15-
CV-859, 2016 WL 11605138, at *2 (N.D.N.Y. Apr. 13, 2016); see also GML §50-j. Under New 
York law, a city is “liable for . . . any duly appointed police officer of such municipality . . . for 
any . . . tort, provided such police officer, at the time of . . . tort complained of, was acting in the 
performance of his duties and within the scope of his employment.” GML §50-j. Plaintiff 
concedes that Defendants Shaver, Pryce, Sirles, Wilson, and Merria were acting “within the 
course and scope of their employment. See Compl. ¶10. Plaintiff does not state whether the same 
is true for Chief Wescott, see Compl. ¶¶8–9, so the Court will decide whether he was “acting in 
the performance of his duties and within the scope of his employment,” so as to trigger the notice 
of claim requirement.  
“A police officer is deemed to be acting in the performance of his duties and within the 
scope of his employment ‘when engaged in the immediate and actual performance of a public 
duty imposed by law and such public duty performed was for the benefit of the citizens of the 
community wherein such public duty was performed.’” Dorsey, 2016 WL 11605138 at *2 
(quoting N.Y. Gen. Mun. Law § 50-j). Pursuant to this standard 
the court weighs the following factors: the connection between the time, place and 
occasion for the act; the history of the relationship between employer and employee as 
spelled out in actual practice; whether the act is one commonly done by such an 
employee; the extent of departure from normal methods of performance; and whether the 
specific act was one that the employer could reasonably have anticipated. 
 
Id. at *3 (quoting Pizzuto v. Cty. of Nassau, 239 F. Supp. 2d 301, 313 (E.D.N.Y. 2003)). 
Having weighed these factors, the Court concludes that any relevant acts committed by 
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Defendant Wescott were done in performance of his duties and within the scope of his 
employment. Defendant Wescott was on duty when he responded to the scene. See Wescott Dep. 
at 64–66. Actions such as meeting with fellow officers after an arrest, assisting with booking an 
arrestee, and securing fingerprints after an arrest, are those “commonly done by” a police officer. 
See City SMF 625–27, 652; Dkt. No. 96-9 at 20–27 (“Hollister Deposition”).  
Therefore, if Plaintiff has not met the pleading standards under the GML, all state claims 
must be dismissed. Plaintiffs’ complaint reads “Plaintiffs have complied with all conditions 
precedent, including filing of a Notice of Claim under General Municiapl Law 50-3 with 
Defendants’ City and County.” Compl. ¶15. City Defendants argue that because the Complaint 
does not allege “that (1) a notice of claim was served upon the city; (2) at least thirty days have 
elapsed since the Notice of Claim was served and before the complaint was filed; or (3) in that 
time the City has neglected to or refused to adjust or to satisfy the claim,” Plaintiffs have not 
plead compliance with the notice-of-claim requirements, and the state law claims against the City 
and its employees must be dismissed. See City MSJ at 43–47. Failing to meet the notice-of-claim 
requirement eliminates the Court’s subject matter jurisdiction. Rivera v. City of New York, No. 
1:20-CV-9968-GHW, 2022 WL 1523165, at *3 (S.D.N.Y. May 13, 2022). Therefore, the Court 
will also evaluate this argument as it relates to County Defendants as well, sua sponte. See  
Edwards v. Montgomery, No. 519CV0923BKSTWD, 2019 WL 4805380, at *4 (N.D.N.Y. Oct. 
1, 2019), report and recommendation adopted, No. 519CV0923BKSTWD, 2019 WL 7037617 
(N.D.N.Y. Dec. 20, 2019).  
Plaintiffs argue that pleading that they had “affirmatively ‘complied with all conditions 
precedent, including filing a Notice of Claim’” is sufficient to meet New York’s notice of claim 
requirements. Resp. to City at 50. This is incorrect. The statute at issue clearly states that a claim 
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covered by the GML must contain “as an allegation in the complaint or moving papers that at 
least thirty days have elapsed since the service of [a] notice [of claim] . . . and that adjustment or 
payment thereof has been neglected or refused.” GML. The Complaint does not so allege. See 
generally Compl. As these requirements are construed strictly, Hardy, 164 F.3d at 793, 
Plaintiff’s remaining state-law claims – negligent infliction of emotional distress, intentional 
infliction of emotional distress, negligence, trespass, and consortium – against all Defendants 
must be dismissed for lack of subject matter jurisdiction. The dismissal is without prejudice.  
Consequently, Mrs. Lalonde has no surviving claims, and she is hereby dismissed from 
this lawsuit. 
B. Americans with Disabilities Act 
Title II of the Americans with Disabilities Act (ADA) states that “no qualified 
individual with a disability shall, by reason of such disability, be excluded from participation in 
or be denied the benefits of the services, programs, or activities of a public entity, or be subjected 
to discrimination by any such entity.” 42 U.S.C. § 12132. The Rehabilitation Act (RA), likewise, 
prohibits discrimination on the basis of disability by programs receiving federal funding. 29 
U.S.C. § 794(a). Courts analyze claims under the Rehabilitation Act and Americans with 
Disabilities Act together, as the standards “are nearly identical.” McElwee v. Cnty. of Orange, 
700 F.3d 635, 640 (2d Cir. 2012). As this Court has previously explained, “it is well-settled that 
vicarious liability principles apply under the ADA.” MDO at 47 (citing Morales v. City of New 
York, No. 13-CV-7667 (RJS), 2016 WL 4718189, at *7 (S.D.N.Y. Sept. 7, 2016) (“[T]he law is 
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clear that municipalities may be held vicariously liable for violations of Title II of the ADA and 
Section 504 of the Rehabilitation Act committed by their agents.”)).3 
A plaintiff bringing suit under Title II of the ADA or section 504 of the RA must show:  
(1) he is a qualified individual with a disability;  
(2) the defendant is subject to one of the Acts; and  
(3) he was denied the opportunity to participate in or benefit from the defendant's 
services, programs, or activities, or was otherwise discriminated against by the defendant 
because of his disability. 
 
McElwee, 700 F.3d at 640.  
The Court finds that the first two elements of an ADA/RA claim are met. Neither County 
Defendants nor City Defendants contest that Mr. Lalonde is a qualified individual with a 
disability under the terms of the statutes, and that they are each respectively covered by the 
ADA. See generally, Cnty. MSJ; City MSJ. Therefore, the viability of Plaintiff’s ADA/RA claim 
rests on whether he can demonstrate he was denied participation in, the ability to benefit from, or 
was otherwise discriminated against in, defendant County’s “services, programs, or activities.”    
1. Arrest as a “service, program, or activity”  
Defendant County argues that “Mr. LaLonde has never identified the service, program, or 
activity from which he was allegedly excluded.” Cnty. MSJ at 15. Plaintiffs, by contrast, claim, 
that “[p]olice officers ‘who are acting in an investigative or custodial capacity are performing 
 
3 Earlier in this case, this Court dismissed Plaintiffs’ ADA and RA claims against 
individual Defendants in their individual capacities but allowed Plaintiffs’ ADA and RA claims 
to proceed against individual defendants “in their official capacities.” Dkt. No. 22 at 43–44  
(“Motion to Dismiss MDO”). The individual defendants were sued, however, only in their 
individual capacities. See Comp. at ¶8–10. Plaintiffs “acknowledge[e] that there is no individual 
liability under Title II of the ADA,” and aver that they are bringing ADA claims only against the 
County and City. Resp. to Cnty. at 14; Resp. to City at 33.  Therefore, though County 
Defendants and Defendant Merria have sought to dismiss any surviving ADA/RA claims against 
the individual defendants, Merria MSJ at 19–20; County MSJ at 13–14, the Court finds that there 
are no surviving ADA/RA claims against the individual defendants for this Court to dismiss. 
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‘services, programs, or activities’ within the scope of Title II.” Resp. to Cnty. at 15 (quoting 
Williams v. City of New York, 121 F. Supp 3d 354, 368 (S.D.N.Y. 2015). The Court agrees with 
Plaintiff for the reasons stated below.  
Courts have interpreted “[t]he phrase ‘services, programs, or activities’ . . . to be ‘a catch-
all phrase that prohibits all discrimination by a public entity.” Noel v. New York City Taxi & 
Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (quoting Innovative Health Sys., Inc. v. City 
of White Plains, 931 F.Supp. 222, 232 (S.D.N.Y. 1996), aff'd in part, 117 F.3d 37 (2d Cir. 
1997), recognized as superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 
171 n.7 (2d Cir. 2001)). “As the Second Circuit has explained, the ADA should be ‘broadly 
construed to effectuate its purpose of providing a clear and comprehensive national mandate for 
the elimination of discrimination against individuals with disabilities.’” Williams v. City of New 
York, 121 F. Supp. 3d 354, 365 (S.D.N.Y. 2015) (quoting Noel, 687 F.3d at 68).  
District courts in this circuit have therefore consistently found that the ADA applies in 
the arrest context. See Morales, 2016 WL 4718189 *7 (“[N]umerous courts within this Circuit 
have in the context of arrests . . . recognized claims under the ADA and Rehabilitation Act where 
police . . . fail to reasonably accommodate a plaintiff’s disability during the . . . arrest.”) 
(collecting cases) (cleaned up). 
As the officers’ interaction with and arrest of Mr. Lalonde constitutes a “program, 
service, or activity” within the ADA, the analysis now turns to whether the officers discriminated 
against Mr. Lalonde in that interaction. There are three types of discrimination claims a plaintiff 
can bring under the ADA, Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009), two of which are at 
issue: intentional discrimination (disparate treatment) and failure to accommodate, see Cnty. 
MSJ at 14.  
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2. Intentional Discrimination (Disparate Treatment) 
“To prove intentional discrimination under [the ADA], ‘a plaintiff must allege facts 
showing that a policymaker acted with ill will or personal animosity toward him because of his 
disability or that the policy maker acted with deliberate indifference to his rights under the 
ADA.’” Johnson v. New York State Police, 659 F. Supp. 3d 237, 253 (N.D.N.Y. 2023) (quoting 
Vassenelli v. State Univ. of New York, No. 517CV00082MADATB, 2018 WL 1406629, at *3 
(N.D.N.Y. Mar. 19, 2018)). A plaintiff can meet his burden of demonstrating deliberate 
indifference under the ADA where “an official who at minimum has authority to address the 
alleged discrimination and to institute corrective measures on the recipient's behalf has actual 
knowledge of discrimination in the recipient's programs and fails adequately to respond.” Felix v. 
City of New York, 344 F. Supp. 3d 644, 665 (S.D.N.Y. 2018) (quoting Loeffler v. Staten Island 
Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)). To be actionable, “[d]eliberate indifference must 
be a ‘deliberate choice[,] rather than negligence or bureaucratic inaction.’ Blevins v. Town of 
Brighton, No. 24-CV-6080-MAV, 2025 WL 1906756, at *6 (W.D.N.Y. July 10, 2025) (quoting 
Loeffler, 582 F.3d at 276) (alteration in original).  
Plaintiffs argues that Defendant County engaged in deliberate indifference through its 
“complete absence of any specific policies, protocols, and trainings provided to its law 
enforcement personnel with respect to the accommodation of individuals with . . . disabilities 
whom the police department subjects to custodial detention, arrest and /or pre-arraignment 
detention.” Resp. to Cnty. at 18. 
Defendant County’s argues in rebuttal that the County has provide significant amounts of 
training to its officers, including regarding people with disabilities. See Cnty. Reply at 15. 
Plaintiff argues, by contrast that the County provides no “training whatsoever provided to its 
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Sheriff deputies . . . on the accommodations required when effectuating an arrest or detention of 
visually impaired, or physically or mentally disabled arrestees and detainees.” Resp. to Cnty. at 
18. This claim is plainly contradicted by the record. See Dkt. No. 92-10 (“Filiatrault 
Declaration”) ¶¶ 27–33 (describing how all Sheriff’s Office deputies go through a training course 
which “include[s] . . . training that equips individuals to identify individuals with disabilities and 
to interact with them in the most appropriate and effective manner); Dkt. No. 92-14 (“County 
Disabilities Curriculum”) (describing the six hours of content that Sheriffs are provided about 
how to interact with people with disabilities). As “a reasonable jury” could not find that the 
County Sheriff’s Office failed to provide training to its deputies regarding people with 
disabilities, this Court finds that the County did not possess “deliberate indifference” towards 
people with disabilities, and the intentional discrimination claim under the ADA fails.  
As with the County, Plaintiffs falsely claim that the City Police Department provides no 
training regarding people with disabilities. Compare Plaintiff’s City SMF 129–30; Resp. to City 
at 37 (claiming the City provides no “training whatsoever . . . to its OPD personnel . . . on the 
accommodations required when effectuating an arrest or detention of visually impaired, or 
physically or mentally disabled arrestees and detainees.”); with ECF Dkt. No. 105-17 (“Basic 
Course Section E”). Therefore, Plaintiffs’ ADA intentional discrimination claim against City 
fails as well.  
3. Reasonable Accommodation 
“Under Title II of the ADA, a defendant discriminates when [he/she] fails to make a  
reasonable accommodation that would permit a qualified disabled individual ‘to have access to 
and take a meaningful part in public services.’” Durr v. Slator, 558 F. Supp. 3d 1, 27 (N.D.N.Y. 
2021) (quoting Powell v. Nat’l Bd. Of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004), opinion 
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corrected on other grounds, at 511 F.3d 238 (2d Cir. 2004)). In the context of a lawful arrest, a 
reasonable accommodation claim is meritorious if “officers . . . fail to reasonably accommodate 
the person's disability in the course of investigation or arrest, causing the person to suffer greater 
injury or indignity in that process than other arrestees.’ Id. at 28.  
“A plaintiff alleging that he was denied a reasonable accommodation bears the burdens of 
both production and persuasion as to the existence of some accommodation that would allow him 
to meet the essential eligibility requirements of the service, program, or activity at issue.” 
McElwee, 700 F.3d at 642. “[A] reasonable accommodation must have a ‘demonstrated 
relationship’ to the disability.” Levine v. Project Renewal, No. 24-CV-0616 (LTS), 2024 WL 
773722, at *3 n.4 (S.D.N.Y. Feb. 26, 2024). If a plaintiff demonstrates the existence of “a 
‘plausible accommodation, the costs of which, facially, do not clearly exceed its benefits,’ the 
defendant bears the burden of proving that the requested accommodation is not reasonable.” Id. 
(quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). Defendant 
County argues that Plaintiff Mr. Lalonde has not met his burden, and has not “identif[ied] the 
specific accommodation that was reasonable, feasible, and would have effectively addressed Mr. 
Lalonde’s disability-related limitations.” Cnty. MSJ at 20.  
Plaintiff proposes the following accommodation: “where an arrestee expresses or presents 
a disability, de-escalation rather than a heightened use of force is a reasonable and required 
accommodation.” Resp. to Cnty. at 16. As a general rule, plaintiff’s contention fails. It cannot be 
the case that any disability always requires de-escalation. “De-escalation rather than a heightened 
use of force” is generally desirable in officer-civilian interactions, regardless of the person’s 
disability status. See id.; Stratakos v. Nassau Cnty., No. CV 15-7244 (GRB), 2021 WL 2587722, 
at *7 (E.D.N.Y. June 24, 2021)(“It is a best practice among police professionals to de-escalate 
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volatile situations and avoid and/or minimize the use of force where practicable.”). Sometimes, 
however, force must be used. Sometimes, force must be used against someone with a disability. 
If a mass-shooter happens to use a wheelchair, de-escalation is not “a reasonable and required 
accommodation.” Contra Reply to Cnty. at 16. Rather than a general rule that any disability 
uniformly requires de-escalation, the cases Plaintiffs cite support the notion that de-escalation 
can be a required accommodation, based on the specifics of the plaintiff’s disability. See Sage v. 
City of Winooski through Police Dep't, No. 2:16-CV-116, 2017 WL 1100882, at *4 (D. Vt. Mar. 
22, 2017) (“violent behavior could arguably have been avoided if the officers had acknowledged 
and accommodated [the plaintiff’s] mental illness. . . . by avoiding physical contact and calling a 
nearby mental health counselor”); Durr, 558 F. Supp. 3d at 33, citing Sheehan v. City & Cnty. of 
San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev'd in part, cert. dismissed in part sub 
nom. City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015) (holding that with 
respect to someone with mental illness, plaintiff had adequately pled that “the officers should 
have respected her comfort zone, engaged in non-threatening communications and used the 
passage of time to defuse the situation rather than precipitating a deadly confrontation”); O'Brien 
v. City of Syracuse, No. 5:22-CV-948 (MAD/TWD), 2025 WL 1519411, at *1, 15 (N.D.N.Y. 
May 27, 2025) (a plaintiff’s allegation that “officers ‘could have stepped back, created a 
perimeter around the house, and afforded [plaintiff] a cooling-off period,” when the plaintiff was 
as “an allegedly mentally disabled woman,” adequately stated a failure to accommodate claim).  
Plaintiffs have identified an accommodation, de-escalation, but have not demonstrated a 
relationship between the proposed accommodation and Mr. Lalonde’s disability, as required. See 
Levine, 2024 WL 773722, at *3 n.4. Plaintiffs do not discuss why Mr. Lalonde’s disabilities – 
blindness and limited use of certain muscles – require that the police deescalate an encounter. 
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See Resp. to Cnty. at 14, 16–17; Resp. to City at 34–36. As Plaintiffs have not met their burden 
of demonstrating a connection between the proposed accommodation and Mr. Lalonde’s 
disability, Plaintiffs’ reasonable accommodation theory fails. See Levine, 2024 WL 773722, at *3 
n.4. Defendants are thus granted summary judgment on Plaintiffs’ ADA/RA claims, which are 
hereby dismissed.  
C. Section 1983 
42 U.S.C. § 1983 allows for suit against a “every person,” who, under color of law, 
“subjects, or causes to be subjected . . . the deprivation of any rights, privileges, or immunities 
secured by the Constitution and laws.” 42 U.S.C. § 1983 (“Section 1983”). “[Section] 1983 
provides a vehicle by which to seek redress against state actors for a wide range of constitutional 
violations.” Reynolds v. Barrett, 741 F. Supp. 2d 416, 425 (W.D.N.Y. 2010), aff’d, 685 F.3d 193 
(2d Cir. 2012). Each of the claims Plaintiffs bring under Section 1983 are discussed in turn.  
1. Municipal Liability  
The Supreme Court has interpreted the word “person” in Section 1983 to include 
municipalities, and thus, “[l]ocal governing bodies
  . . . can be sued . . . under § 1983 for 
monetary, declaratory, or injunctive relief where . . . the action that is alleged to be 
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision 
officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City 
of New York, 436 U.S. 658, 690 (1978). This Monell liability “impose[s] civil liability on 
municipalities for their own illegal acts,” not the illegal acts of their employees. Pembaur v. City 
of Cincinnati, 475 U.S. 469, 479 (1986). The “injury [must be] caused by a municipal policy or 
custom.” Los Angeles Cnty., Cal. v. Humphries, 562 U.S. 29, 30–31 (2010).  
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There are four means by which a plaintiff can meet the policy or custom requirement: (1) 
“a formal policy exists subjecting the municipality to liability”; (2) “a policy-making official for 
the municipality caused a deprivation of [the plaintiff’s] constitutional rights”; (3) “a practice 
was so consistent and widespread that it constitutes a tacit custom that ‘is so widespread as to 
have the force of law’”; (4) “policymakers failed to provide adequate training or supervision to 
subordinates to such an extent that it amounts to deliberate indifference to the rights of those who 
interact with municipal employees.”  Dixon v. City of Syracuse, 493 F. Supp. 3d 30, 36 
(N.D.N.Y. 2020) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 
404–07 (1997)). “Monell's policy or custom requirement is satisfied where a local government is 
faced with a pattern of misconduct and does nothing, compelling the conclusion that the local 
government has acquiesced in or tacitly authorized its subordinates' unlawful actions.” Reynolds 
v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). 
Plaintiff argues that Monell liability attaches in two ways. First, that Defendants City and 
County failed to train its officers such that it exhibited “deliberate indifference,” and second, that 
Defendants City and County failed to screen veteran officers when hiring. See Resp. to Cnty. at 
5–13; Resp. to City at 40–48. This Court will consider both arguments in turn.  
a. Failure to Train 
The Second Circuit has established three requirements for a failure to train Monell  
claim: (1) A reasonable finder of fact must be able to “conclude that a policy-maker knows to a 
moral certainty that her employees will confront a given situation”; (2) “The situation either 
presents the employee with a difficult choice of the sort that training or supervision will make 
less difficult or that there is a history of employees mishandling the situation”; (3) “The wrong 
choice by the city employee will frequently cause the deprivation of a citizen’s constitutional 
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rights.” Green v. City of New York, 465 F.3d 65, 80–81 (2d Cir. 2006) (cleaned up). To survive 
summary judgment, there must be “a specific deficiency in the city’s training program . . . and 
the deficiency [must be] closely related to the ultimate injury, such that it actually caused the 
constitutional deprivation.” Id. at 81 (quoting Amnesty Am., 361 F.3d at 129. Indeed, as the 
Supreme Court has recognized, “[a] municipality's culpability for a deprivation of rights is at its 
most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 
(2011). 
As discussed with respect to the ADA, Plaintiffs’ are factually wrong in suggesting that 
the County’s and City’s officers received no training regarding how to respectfully interact with 
people with disabilities. See section IV(B).
4 As Plaintiffs have not described how this training is 
inadequate, see Resp. to Cnty. at 5–6; Resp. to City at 41–42 this Court finds that Plaintiffs have 
not met their burden of demonstrating any deficiency in the training provided. Green, 465 F.3d at 
81. Therefore, the Court grants summary judgment on the Plaintiffs’ Section 1983 municipal 
liability claim based on a failure to train  
b. Failure to Screen 
Plaintiffs briefed a theory of the County’s failure to screen, when responding to County 
and City Defendants’ summary judgment motion. Resp. to Cnty. at 11–13; Resp. to City at 46–
48. In reply, County Defendants argued that Plaintiffs “assert[ed] a new theory” that “was neither 
pleaded in the Complaint nor disclosed at any point during discovery.” County Rep. at 10.  
 
4 Inexplicably, Plaintiffs’ Response to the County dispute whether the City provided 
training to its officers. See Resp to Cnty. at 5–6.  
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A party generally may not “assert a cause of action for the first time in response to a 
summary judgment motion,” LeBlanc v. United Parcel Serv., No. 11 CIV. 6983 KPF, 2014 WL 
1407706, at *17 (S.D.N.Y. Apr. 11, 2014). 
[C]laims that are related to or are mere variations of previously pleaded claims—that is, 
claims based on the same nucleus of operative facts and similar legal theories as the 
original claims—may be raised on a motion for summary judgment where the defenda nt 
was clearly on notice from the complaint and was not unfairly prejudiced.  
 
Henry v. Metro. Transp. Auth., No. 07 CIV. 3561 DAB, 2014 WL 4783014, at *10 
(S.D.N.Y. Sept. 25, 2014) (quoting Coudert v. Janney Montgomery Scott, LLC, No. 3:03 CV 324 
MRK, 2005 WL 1563325, at *2 (D. Conn. July 1, 2005), aff'd sub nom. Coudert v. Janney 
Montgomery Scott, LLC., 171 F. App'x 881 (2d Cir. 2006).  
Plaintiffs’ Complaint failed to put Defendants on notice of an intent to pursue a failure to 
screen claim. Plaintiffs’ Complaint alleged facts relating to Defendants City’s and County’s use 
of force policies, investigations, and training. See Compl. ¶108.  The Complaint did not make 
any allegations regarding hiring, except as follows: “Defendants’ [sic]  . . . failed to properly 
hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline Defendant Officers’ 
[sic], Chief Wescott . . . and other City and County personnel, with deliberate indifference to Mr. 
Lalonde’s Constitutional rights.” Compl. ¶ 109 (emphasis added). This mere invocation of the 
word “hire,” in a long list of verbs, without supporting allegations, provides little notice to 
Defendant of Plaintiffs’ intended claims. The Monell section of the Complaint clearly indicates 
an intent to bring failure to train and failure to supervise claims, and not a failure to hire, given 
that not one of Plaintiffs’ ten specific claims in the complaint relates to hiring. Complaint 
¶108(a–h). Thus, this Court will not consider Plaintiffs’ argument. See Zaniewska v. City of New 
York, No. 11-CV-2446 RRM VVP, 2013 WL 3990751, at *10 (E.D.N.Y. Aug. 5, 2013), aff’d, 
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569 F. App'x 39 (2d Cir. 2014) (refusing to consider alternative Monell theories that were raised 
only in response to summary judgment).  
As Plaintiffs have not provided a viable theory of Monell liability, and attempted to bring 
a new claim not brought before in their briefing, Defendants County and City are granted 
summary judgment on Plaintiff’s Section 1983 Monell claim. 
2. Deliberate Indifference  
“The Due Process Clause . . .  requires the responsible government or governmental  
agency to provide medical care to persons . . . who have been injured while being apprehended 
by the police.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). The 
standard for deliberate indifference to an arrestee’s medical condition is the same under the 
Fourteenth Amendment’s due process clause as it would be under the Eighth Amendment. Brock 
v. Logsdon, No. 19-CV-6082, 2022 WL 17488612, at *6 (W.D.N.Y. Dec. 7, 2022). A successful 
deliberate indifference claim must meet two requirements: (1) the objective requirement that “the 
alleged deprivation of adequate medical care . . . be sufficiently serious”; and (2) the subjective 
requirement that “the charged officials . . . be subjectively reckless in their denial of medical 
care.” Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) 
(internal citations omitted).  
To meet the objective requirement, there must be “a condition of urgency, one that may 
produce death, degeneration, or extreme pain.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 
2003). 
“When the basis for a [medical indifference] claim is a temporary delay or interruption in 
the provision of otherwise adequate medical treatment, it is appropriate to focus on the 
challenged delay or interruption in treatment rather than the prisoner's underlying 
medical condition alone in analyzing whether the alleged deprivation is, in “objective 
terms, sufficiently serious.”  
 
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Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Specifically, “[it is] 
the particular risk of harm faced by a [arrestee] due to the challenged deprivation of care, rather 
than the severity of the [arrestee’s] underlying medical condition, considered in the abstract, that 
is relevant.” Id. at 186. When the indifference at issue is a delay of care, “the relevant time 
period begins when a defendant becomes aware of facts from which he could, and does, infer 
that a substantial risk of serious harm exists.” Morrison v. New York City Dep't of Corr., No. 11 
CIV. 9109 DAB, 2013 WL 5308015, at *4 (S.D.N.Y. Sept. 20, 2013).  
Defendant Merria and City Defendants argue that the delay in calling for medical 
assistance (seven to sixteen minutes) was of an insufficient length to satisfy the objective 
requirement. Merria MSJ at 13–14; City MSJ at 15–16. Merria also relies on the fact that “[t]here 
is no allegation or evidence that any alleged delay in receiving medical treatment exacerbated 
Mr. Lalonde’s condition.” Merria MSJ at 13. Plaintiffs argue that the injuries to Mr. Lalonde 
were “sufficiently serious,” Resp. to Merria at 13–14, but, given the Second Circuit’s holding in 
Smith, the extent of the injuries are insufficient to meet the objective prong. 316 F.3d at 185.  
 Courts in this Circuit have held that a deprivation is not sufficiently serious unless there 
is a “significant delay in medical treatment.” Santiago v. City of New York, No. 98 CIV. 6543 
(RPP), 2000 WL 1532950, at *6 (S.D.N.Y. Oct. 17, 2000). Delays of less than two hours have 
not been held to be significant. See id. (holding that a delay was not sufficently serious when 
police called EMS twenty-six minutes after the plaintiff reported of pain, the EMS to arrived 
nine minutes later, and plaintiff reached the hospital the one hour and ten minutes after that); 
Rivera v. State of N. Y., No. 96 CIV. 7697 (RWS), 1999 WL 13240, at *6 (S.D.N.Y. Jan. 12, 
1999) (holding that it was not deliberate indifference when the plaintiff, who had been shot,  
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“was brought to the medical clinic less than one hour after his injury was reported and brought to 
the hospital less than two hours after the medical clinic referred him there.”).  
On these facts, the precedent clearly shows that “the particular risk of harm faced by [Mr. 
Lalonde] due to the challenged deprivation of care” was not sufficiently serious to qualify as 
deliberate indifference. To be clear, Mr. Lalonde was bleeding from his ear and was requesting 
medical care, and the fact that he needed to transfer hospitals, shows that his medical condition 
was serious. Pl. SMF ¶90, 178. But, if, in Rivera, a nearly two hour delay in bringing someone 
who was shot to the hospital was insufficiently serious, see 1999 WL 13240 at *6, then a 
similarly timed delay on these facts must be as well. The Court grants Defendants summary 
judgment on Plaintiffs’ deliberate indifference claim. 
3. Fabrication of Evidence  
“To succeed on a fabricated-evidence claim, a plaintiff must establish that ‘an (1)  
investigating official (2) fabricate[d] information (3) that is likely to influence a jury's verdict, 
(4) forward[ed] that information to prosecutors, and (5) the plaintiff suffer[red] a deprivation of 
life, liberty, or property as a result.’” Ashley v. City of New York, 992 F.3d 128, 139 (2d Cir. 
2021). “The mere fact that the parties present conflicting evidence does not mean that one side's 
evidence was fabricated.” Davis-Guider v. City of Troy, No. 23-589, 2024 WL 5199294, at *3 
(2d Cir. Dec. 23, 2024). [A] plaintiff must prove a defendant's fabrication was “made 
knowingly.” Id. (quoting Morse v. Fusto, 804 F.3d 538, 547 (2d Cir. 2015)). “Testimony that is 
incorrect or simply disputed should not be treated as fabricated merely because it turns out to 
have been wrong.” Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014).  
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As Defendant Meria and City Defendants make different arguments with respect to why 
they should be granted summary judgment on the fabrication of evidence claim, the Court 
discusses them separately.  
a. Defendant Merria  
Defendant Merria claims, and Plaintiffs do not dispute, that “the only information 
provided by Deputy Merria to OPD, and which presumably was included within the arrest file . . 
. sent to the District Attorney’s Office, is the information contained in Deputy Merria’s 
supporting deposition.” Merria MSJ at 15; See Resp. to Merria at 16–18; Dkt. No. 90-6 (“Merria 
Supporting Deposition”). As it is a requirement for a fabrication of evidence claim that the 
information be given to prosectors, see Ashley, 992 F.3d at 139, the Court will limit its inquiry to 
Merria’s Supporting Deposition. Plaintiffs argue that the following sections are fabricated:  
Upon my arrival a male subject was yelling at members of the Ogdensburg City Police at 
which time they advised him he was under arrest. The subject did resist arrest and was 
brought to the ground. . . . The subject did continue to resist arrest on the ground by 
pulling my police vest, refusing to let go and not following directions. 
Merria Supporting Dep; see Resp. to Merria at 18.  
In its reply to a contention interrogatory, when asked to “[i]dentify each and every action 
of Sheriff Merria you contend was unconstitutional,” Plaintiffs responded that Defendant Merria 
“fabricat[ed] inculpatory statements attributed to Mr. Lalonde.” Dkt. 90-20 (“Response 
to County Interrogatories”) at 4. This is the only allegation plausibly related to fabricating 
evidence. See id. at 4–5. Defendant argues that “Plaintiff’s responses to contention 
interrogatories show that the [fabrication of evidence] claim is based on allegedly fabricated 
inculpatory statements attributed to Mr. Lalonde,” but the only document that could be used to 
support a fabrication of evidence claim does not describe any statements allegedly made by Mr. 
Lalonde. Merria Reply at 8.  
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Interrogatories interposed under Rule 33(c), otherwise known as contention 
interrogatories, serve “to discover the theory of the responding party's case.” Salter v. I.C. Sys., 
Inc., No. 3:04 CV 1566(RNC), 2005 WL 3941662, at *1 (D. Conn. May 3, 2005). “The Second 
Circuit has not ruled on the issue of whether interrogatory responses are binding judicial 
admissions but several district courts have determined they are.” Hamelin v. Faxton-St. Luke's 
Healthcare, 274 F.R.D. 385, 390 (N.D.N.Y. 2011) (collecting cases). In order to pursue a theory 
of liability, a plaintiff’s answers to Contention Interrogatories must reflect the theory, its 
responses must be amended to reflect the theory, or plaintiff must “show[] that this omission was 
harmless or provide[] a justification for it.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. 
Liab. Litig., 117 F. Supp. 3d 276, 298 (S.D.N.Y. 2015). It is not necessary for the defendant to 
have been prejudiced for the failure to include and/or amend to preclude a theory of liability. See 
Bergin v. New York State Unified Ct. Sys., No. 22-CV-5264 (BMC), 2024 WL 4665266, at *3 
(E.D.N.Y. Nov. 4, 2024) (citing In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 
117 F. Supp. at *3). District courts have “broad discretion” in deciding whether an issue is 
precluded by a party’s response to contention interrogatories. See Int'l Cards Co., Ltd. v. 
MasterCard Int'l Inc., No. 13 CIV. 2576 (LGS), 2017 WL 1133425, at *4 n. 4 (S.D.N.Y. Mar. 
24, 2017), aff’d sub nom. Int'l Cards Co. Ltd. v. Mastercard Int'l Inc, 741 F. App'x 41 (2d Cir. 
2018).   
Plaintiffs have apparently changed his theory since the contention interrogatory. Plaintiffs 
now argue that Defendant Merria fabricated that “officers inform[ed] Mr. Lalonde that he was 
under arrest, what offense he had committed, [and] why he was under arrest,” that he “tr[ied] t 
affirmatively punch, kick, or grab hold and wrestle with . . . the responding officers,” and 
“resist[ed] or attempt[ed] to grab the officers.” Resp to Merria MSJ at 18. This is a different 
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theory from arguing that Merria “fabricat[ed] inculpatory statements,” Resp. to Cnty. 
Interrogatories at 4, and is thus impermissible. Therefore, Defendant Merria is granted summary 
judgment on Plaintiffs’ fabrication of evidence claim. 
a. City Defendants 
City Defendants argue that the claim that Defendants “fabricated any evidence . . . is . . . 
unsupported by the record evidence before this Court.” City MSJ at 22. The City observes that 
“there is simply no record evidence of any fabricated statements attributed to Timothy ‘that 
fallaciously attempted to shift the blame for his injuries away from the officers to Timothy 
himself and/or some imaginative gang of roving young men in Ogdensburg who assaulted 
disabled and blind men like Mr. Lalonde.’” City MSJ at 22 n. 6 (quoting Compl. ¶101) (cleaned 
up).  
Plaintiffs, conversely, argue that the disagreement over Mr. Lalonde’s behavior prior to 
and during his arrest demonstrate that there is a genuine dispute of material fact with respect to 
the fabrication of evidence. Resp. to City at 31–32.   
This Court finds that Plaintiffs have not met their burden at summary judgment. The 
Court acknowledges that there is a dispute over when Mr. Lalonde was yelling, who he yelled at, 
and whether he resisted arrest. See Resp. to City at 31–32. But even if Defendant Officers’ 
accounts turns out to have been wrong, it does not follow that they intentionally fabricated 
evidence. See Davis-Guider v. City of Troy, No. 1:17-CV-1290 (DJS), 2023 WL 2693438, at *7 
(N.D.N.Y. Mar. 29, 2023), aff’d, No. 23-589, 2024 WL 5199294 (2d Cir. Dec. 23, 2024) 
(“Courts across the country have recognized that ‘testimony that is incorrect or simply disputed 
should not be treated as fabricated merely because it turns out to have been wrong.’”) (quoting 
Halsey v. Pfeiffer, 750 at 295). Plaintiffs have presented no evidence of intentional fabrication 
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that would meet the scienter requirement of their claim. See Davis-Guider, 2024 WL 5199294 at 
*3. Given this absence of evidence, City Defendants are entitled to summary judgment on the 
fabrication of evidence claim. See Panagatos v. Petsmart, Inc., No. 18-CV-5032 (SJF) (AKT), 
2020 WL 7343409, at *5 (E.D.N.Y. Dec. 14, 2020) (“[T[he absence of evidence at the summary 
judgment stage redounds to the detriment of the plaintiff, not the defendant.”) (quoting Santora 
v. Costco Wholesale Corp., No. 17-CV-4415 (CS), 2018 WL 5886442, at *3 (S.D.N.Y. Nov. 8, 
2018)).  
4. Section 1983 Conspiracy 
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or 
more state actors or between a state actor and a private entity; (2) to act in concert to inflict an 
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” 
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “[T]o survive a motion for summary 
judgment, the non-moving party's evidence of a § 1983 conspiracy must, at least, reasonably lead 
to the inference that [the defendants] positively or tacitly came to a mutual understanding to try 
to accomplish a common and unlawful plan.” Ivery v. Baldauf, 284 F. Supp. 3d 426, 439 
(W.D.N.Y. 2018) (alteration in original).
5 That is, the “plaintiff ‘must provide some factual basis 
 
5 The parties appear to express disagreement over the appropriate standard of review for a 
motion for summary judgment regarding a Section 1983 conspiracy claim. See Resp. to Merria at 
19; Merria Reply at 8. As with any other motion for summary judgment, when the burden at trial 
would be on the plaintiff, the moving defendant “may satisfy his burden . . . in either of two 
ways: (1) by submitting evidence that negates an essential element of the non-moving party’s 
claim, or (2) by demonstrating that the non-moving party’s evidence is insufficient to establish 
an essential element of the non-moving party’s claim.” Farid v. Smith, 850 F.2d 917, 924 (2d 
Cir. 1988). Applying that rule to this case, the moving party, Defendant Merria, must show that 
Plaintiffs’ evidence of a conspiracy is insufficient. “[T]he moving party need not make any 
affirmative prima fascine showing on a motion for summary judgment,” and need only “point[t] 
to an absence of evidence” support Plaintiffs. Panagatos, 2020 WL 7343409, at *5 (E.D.N.Y. 
Dec. 14, 2020) (quoting Lyman v. PetSmart, Inc., No. 16 CIV. 04627 (JCM), 2018 WL 4538908, 
at *3 (S.D.N.Y. Sept. 21, 2018)). “[T[he absence of evidence at the summary judgment stage 
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supporting a meeting of the minds.’” Ivery, 284 F. Supp. at 439 (quoting Webb v. Goord, 340 
F.3d 105, 110–11 (2d Cir. 2003)).  
In response to Defendants' Motion, Plaintiffs limit their conspiracy claim to alleging that 
“City Defendants and Deputy Merria had an agreement to fabricate and falsify evidence as the 
means by which to cover up their excessive force.” See Resp. to Merria at 20, Resp to City at 22. 
The second element of conspiracy requires that there be an “underlying constitutional 
violation.” Mitchell v. Cnty. of Nassau, 786 F. Supp. 2d 545, 564 (E.D.N.Y. 2011). In the 
absence of such a violation, the count must be dismissed. See id. As this Court has granted 
summary judgment for Defendants on Plaintiffs’ fabrication of evidence claim, see section 
IV(C)(3), the corollary Section 1983 Conspiracy claim also fails. Defendants are therefore 
granted summary judgment on the Section 1983 Conspiracy claim. 
5. False Arrest / False Imprisonment  
Defendant Merria and City Defendants move for summary judgment on Plaintiffs’ false 
arrest claim, arguing that the Defendant officers had probable cause to arrest Plaintiff Mr. 
Lalonde. City MSJ at 8–10; Merria MSJ at 4–6. Defendant Merria argues that he reasonably 
relied on the OPD officers who decided to arrest Mr. Lalonde. Merria MSJ at 6–7. In the 
alternative, City Defendants and Defendant Merria argues that qualified immunity applies to the 
false arrest claim. City MSJ at 11–12; Merria MSJ at 7–8.  
“False arrest and false imprisonment . . . are two names for the same tort.” Blanco v. 
Success Acad. Charter Schs., Inc., 722 F. Supp. 3d 187, 209 (S.D.N.Y. 2024) (quoting Davis v. 
Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). Therefore, these claims are analyzed together.   
 
redounds to the detriment of the plaintiff, not the defendant.” Id. at *5 (E.D.N.Y. Dec. 14, 2020) 
(quoting Santora, 2018 WL 5886442, at *3. 
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“In analyzing § 1983 claims for unconstitutional false arrest, [courts] have generally 
looked to the law of the state in which the arrest occurred.” Jaegly v. Couch, 439 F.3d 149, 151 
(2d Cir. 2006) (quoting Davis, 364 F.3d at 433). “Under New York law, the elements of a false 
arrest and false imprisonment claim are: ‘(1) the defendant intended to confine the plaintiff, (2) 
the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the 
confinement and (4) the confinement was not otherwise privileged.’” Hernandez v. United 
States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United States, 825 F.3d 118, 126 
(2d Cir. 2016) (per curiam)).    
“The existence of probable cause to arrest constitutes justification and ‘is a complete 
defense to an action for false arrest.’” Weyant, 101 F.3d at 852 (quoting Bernard v. United 
States, 25 F.3d 98, 102 (2d Cir. 1994)). “[P]robable cause to arrest exists when the officers have 
knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to 
warrant a person of reasonable caution in the belief that the person to be arrested has committed 
or is committing a crime.” Id. To determine whether probable cause is present, “a court considers 
only the facts ‘available to the officer at the time of the arrest and immediately before it.’” 
Ashley, 992 F.3d at 136 (quoting Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013)).  
Defendants argues that there was probable cause to arrest Mr. Lalonde for disorderly 
conduct. Merria MSJ at 5; City MSJ at 8–9. Under New York law, a person commits disorderly 
conduct “when, with intent to cause public inconvenience, annoyance, or alarm, or recklessly 
creating a risk thereof,” an individual (as is relevant here) “makes unreasonable noise . . . or [in] 
a public place, . . . uses abusive or obscene language, or makes an obscene gesture.” N.Y. Penal 
Law §240.20(2), (3). “The New York disorderly conduct statute punishes ‘disruptive behavior . . 
. of public rather than individual dimension.’” Provost v. City of Newburgh, 262 F.3d 146, 157 
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(2d Cir. 2001) (quoting People v. Munafo, 406 N.E.2d 780, 783 (N.Y. 1980) (alterations in 
original). “The clear aim was to reserve the disorderly conduct statute for situations that carr[y] 
beyond the concern of individual disputants to a point where they . . . become a potential or 
immediate public problem.” Id. (quoting Munafo, 406 N.E.2d at 783) (alterations in original); see 
also People v. Baker, 984 N.E.2d 902, 906 (N.Y. 2013) (requiring “proof of public harm” or 
recklessness or intent to create such harm).  
In assessing whether mens rea is present, courts consider “many factors, including ‘the 
time and place of the episode under scrutiny; the nature and character of the conduct; the number 
of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature 
and number of those attracted; and any other relevant circumstances.’” Baker, 984 N.E.2d at 906 
(quoting People v. Weaver, 944 N.E.2d 634, 636 (N.Y. 2011)). “[B]ecause ‘the practical 
restraints on police in the field are greater with respect to ascertaining intent[,] . . . the latitude 
accorded to officers considering the probable cause issue in the context of mens rea crimes must 
be correspondingly great.’” Zalaski v. City of Hartford, 723 F.3d 382, 393 (2d Cir. 2013) 
(quoting Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004)) (alterations in original).  
a. Officers Merria and Sirles  
Defendants Merria and Sirles had several pieces of information that could be used to infer 
that Mr. Lalonde had violated the act requirement of the statute. The OPD had received a call 
regarding an allegedly “intoxicated man who was yelling on the street of Pleasant Avenue.” Dkt. 
No. 90-1 (“Merria SMF”) ¶1. Defendant Merria “heard OPD radio traffic regarding the 
[allegedly] intoxicated male who was yelling on Pleasant Avenue in the City of Ogdensburg.” Id. 
¶2. Defendant Sirles was informed of a “general disturbance, disorderly conduct-type situation.” 
City SMF ¶359 After Defendant Shaver had arrived on scene, Defendants Merria and Sirles 
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heard a male shout “fuck you” on Defendant Shaver’s radio transmission. Id. ¶361; Merria SMF 
¶5. Though he could not have known with certainty that the person responsible for the disorderly 
conduct was Plaintiff Timothy Lalonde, it was reasonable for Defendants Merria and Sirles to 
infer that this was the case, since Defendant Shaver was near Mr. Lalonde when those 
Defendants arrived. Dkt. No. 92-41 at 75–82 (“Merria Deposition”); City SMF ¶365.   
Defendants Merria and Sirles had probable cause to believe that the mens rea requirement 
for the disorderly conduct state had been met. Specifically, Defendant Merria and Sirles could 
reasonably believe that Plaintiff Timothy Lalonde had recklessly created the risk of “public 
inconvenience, annoyance, or alarm.” N.Y. Penal Law §240.20(2). The initial call to the police 
was made after midnight, regarding a man yelling on the street. Merria SMF ¶1; Dkt. No. 94-11 
(“Redacted Incident Report”). Not only would this predictably lead to public disruption, but a 
neighbor was sufficiently bothered by the yelling to call the police. See Redacted Incident 
Report. As our sister court reasoned, “the fact that Plaintiff's use of obscenities attracted the 
attention of at least one neighbor made it objectively reasonable to believe that the conduct went 
beyond an ‘individual dimension’ and that Plaintiff had the requisite intent for disorderly 
conduct.” Smith v. City of New York, No. 1:18-CV-05079-MKV, 2021 WL 4267525, at *10 
(S.D.N.Y. Sept. 20, 2021) 
Plaintiffs argue that Mr. Lalonde had “calmed down” by the time Defendant Merria 
arrived, defeating Defendant’s probable cause argument. See Resp. to Merria at 6–7. This 
argument is unavailing, as probable cause is present when there is sufficient reason to belief that 
an individual has committed an offense, even if the criminal activity has ceased. See Bernard, 25 
F.3d at 102. What Defendants Merria and Sirles directly observed is relevant, however, for 
ascertaining the “facts available to the officer at the time of the arrest.”  Panetta v. Crowley, 460 
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F.3d 388, 395 (2d Cir. 2006) (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) 
(emphasis in original). As Defendants Merria and Sirles was not the first officer on the scene, 
they would have reasonably expected other officers to have gathered additional facts regarding 
the presence of probable cause and the appropriateness of arrest. “Absent significant indications 
to the contrary, an officer is entitled to rely on his fellow officer's determination that an arrest 
was lawful.” Id. at 395 (quoting Loria v. Gorman, 306 F.3d 1271, 1288 (2d Cir. 2002). It was 
thus reasonable for Defendants Merria and Sirles to rely on the determination of another officer 
that Mr. Lalonde should be arrested. Merria SMF ¶14; City SMF ¶379. The false arrest claims 
against Defendants Merria and Sirles are therefore dismissed.  
b. Officer Pryce  
Defendant Pryce is unable to rely on the fact that another officer made the determination 
to make an arrest, since she was the one who began the arrest. See City SMF ¶ 272. Nonetheless, 
Defendant Pryce, like Defendant Merria, had multiple pieces of information supporting the 
conclusion that Plaintiff Mr. Lalonde had violated the act requirement for disorderly conduct. 
She “had been dispatched by the OPD dispatcher to an annoying noise complaint near Jay Street 
concerning a male walking down the street yelling or being loud.” City SMF ¶247. En route, she 
heard on the radio “[Defendant] Shaver and a male subject yelling in the background of the radio 
frequency.” Id ¶251. Shaver and Mr. Lalonde were the only two men present, other than 
Defendants Merria and Sirles, who arrived simultaneously, when Defendant Pryce reached the 
scene. Id ¶¶253–54, 256, 264. Defendant Pryce could have inferred from this that it was Mr. 
Lalonde who she had heard yelling on the radio. Office Pryce could have reasonably assumed 
that Defendant Shaver had not instigated an argument or otherwise engage in conduct that would 
have led Mr. Lalonde to engage heatedly with Defendant Shaver. Alternatively, Defendant Pryce 
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could have inferred that the loud male, Mr. Lalonde, referred to on the dispatch call had 
continued to be disorderly when approached by Defendant Shaver. There was therefore sufficient 
evidence that the act requirement of the disorderly conduct statute had been met. See N.Y. Penal 
Law §240.20(2), (3) (with the appropriate conduct, disorderly conduct occurs when an individual 
“makes unreasonable noise . . . or [in] a public place,  . . . uses abusive or obscene language, or 
makes an obscene gesture.”). As the Court’s analysis of the mens rea requirement with respect to 
Defendant Merria applies in full to Defendant Pryce, Defendant Pryce had probable cause to 
arrest Mr. Lalonde.    
c. Officer Shaver  
Defendant Shaver, unlike the other Defendants, is unable to rely on the inference that Mr. 
Lalonde’s voice was heard on the radio, as he was the one on scene. See City SMF ¶466. 
Additionally, as Defendant Shaver was the first officer on the scene, See City SMF ¶¶ 467–68, it 
would have made little sense for him to rely on the determination of Defendant Pryce, who came 
later and thus had no additional information not available to him.  
Plaintiffs dispute whether Mr. Lalonde yelled at Defendant Shaver. Pl. Resp. City SMF 
¶¶ 481, 492. Plaintiffs’ story is questionable. Since it is undisputed that Defendants Pryce, 
Merria, and Sirles, heard yelling and/or obscenities on Shaver’s radio, see Pl. Resp. City SMF 
¶¶251, 361 it is unclear who those officers would have heard other than Mr. Lalonde. Even if 
Defendant Shaver did not hear Mr. Lalonde shout “fuck you” at him, but instead, heard Mr. 
Lalonde shout “fuck you” at Mr. Outlaw so loudly that it was captured on his radio, see Pl. SMF 
¶¶ 48, 53, this too would support a finding of probable cause for disorderly conduct since it 
would have been a disruptive obscene noise. 
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d. Chief Wescott  
As Defendant Wescott was not present on scene at the time of the arrest, see Dkt. No. 96-
11 at 77–78 (“Wescott Deposition”), the Section 1983 false arrest and excessive force claims are 
dismissed against him. See Keyes v. Venettozzi, No. 918CV0372GTSDJS, 2022 WL 991402, at 
*6 (N.D.N.Y. Mar. 31, 2022) (“With respect to how to establish the personal involvement of 
supervisory officials, ‘a plaintiff asserting a Section 1983 claim against a supervisory official in 
his individual capacity must allege that the supervisor was personally involved in the alleged 
constitutional deprivation.’”) (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 
254 (2d Cir. 2001)). 
As all Defendants have met their burden on for the claims of false arrest and false 
imprisonment, the claims are hereby dismissed. As there was probable cause to arrest Mr. 
Lalonde, the Court does not reach the Defendants’ argument regarding qualified immunity.  
6. Assault and Battery 
City Defendants argue that Plaintiffs’ Section 1983 assault and battery claims must be 
dismissed, as they are duplicative with Plaintiffs’ Section 1983 excessive force claim. City MSJ 
at 3. Plaintiffs note that this Court found “that the civil assault and the ‘civil battery claim[s] will 
be allowed to proceed’ under New York State law.” MDO at 16; Resp. to City at 3. City 
Defendants respond that “Plaintiffs have not asserted a state law assault or battery claim (but 
rather, a federal assault and battery claim). . . . [I]t is respectfully submitted that Plaintiffs’ 
federal assault and battery claim asserted pursuant to [Section] 1983 must be dismissed as 
duplicative of their excessive force claim.” City Reply at 3 (emphasis in original). For the 
reasons that follow, this Court agrees with City Defendants, and the assault and battery claims 
are dismissed.  
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 Plaintiffs’ Complaint clearly states that they intend to bring assault and battery claims 
under 42 U.S.C. §1983. Compl. at 12. Plaintiffs’ “State Claims” section does not mention assault 
and battery. See id. at 31–36. Therefore, Plaintiffs did not bring a state assault or state battery 
claims, and there are no such claims to dismiss. With respect to the federal Section 1983 assault 
and battery claims, they are dismissed as duplicative of the excessive force claim. See Johnston 
v. City of Syracuse, No. 5:20-CV-1497, 2021 WL 3930703, at *5 (N.D.N.Y. Sept. 2, 2021) 
(dismissing the plaintiff’s “§ 1983 assault and battery claim as duplicative of his excessive force 
claim”); Boyler v. City of Lackawanna, 287 F. Supp. 3d 308, 323 (W.D.N.Y. 2018), aff’d, 765 F. 
App'x 493 (2d Cir. 2019) (“Plaintiff’s . . . causes of action[] alleging an assault and battery under 
§1983 . . . are properly formulated as excessive force claims”); Henderson v. Williams, No. 3:10-
CV-1621 JCH, 2013 WL 1984545, at *3 (D. Conn. May 13, 2013) (“[T]here is no federal 
common law claim for assault or battery.”). 
7. Excessive Force  
City Defendants argue that they should be granted summary judgment on the excessive 
force claim because the force used was objectively reasonable. City MSJ at 51–56. In the 
alternative, they argue that they are entitled to qualified immunity on the excessive force claim. 
Id. at 58–60. The Court addresses each argument in turn.  
A. Objective Reasonableness  
Fourth Amendment excessive force claims are reviewed under the standard 
of objective “reasonableness.” Graham v. Connor, 490 U.S. 386, 395 (1989). Reasonableness is 
understood by analyzing “the ‘totality of the circumstances,’” not just merely the moment force 
is used. Barnes v. Felix, 605 U.S. 73, 80 (2025) (quoting Graham, 490 U.S. at 427–28). To 
determine whether the force applied was unreasonable, courts analyze “the severity of the 
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crime,” “whether the suspect pose[d] an immediate threat to the safety of the officers or others,” 
and “whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 
U.S. at 396. The balancing of these factors is imprecise, and “[a]ll that can realistically be 
expected [of a reviewing court] is to make some assessment as to the extent to which each 
relevant factor is present and then somehow make an aggregate assessment of all the factors.” 
Brown v. City of New York, 798 F.3d 94, 102 (2d Cir. 2015). Under Graham, the officers’ 
“underlying intent or motivation” is irrelevant to the reasonableness inquiry. See Graham, 490 
U.S. at 397.  
 
Moreover, the extent of the injury is also relevant for courts’ consideration of an 
excessive force claim. Abreu v. Nicholls, 368 Fed.App’x. 191, 193 (2d Cir. 2010) (“[T]he extent 
of injury is a relevant factor.”). On one end of the spectrum, “[r]easonable force does not become 
unconstitutional merely because it caused the plaintiff serious injury.” Walker v. Thibault, No. 
5:22-CV-1088 (MAD/ATB), 2023 WL 7701726, at *4 (N.D.N.Y. Nov. 14, 2023), aff’d, No. 23-
7896, 2025 WL 294507 (2d Cir. Jan. 24, 2025) (quoting Otero v. Town of Southampton, 194 F. 
Supp. 2d 167, 180 (E.D.N.Y. 2002), aff’d, 59 F. App'x 409 (2d Cir. 2003)). On the other end of 
the spectrum, courts in this Circuit sometimes impose a de minimis requirement on the injury 
caused by the use of force. See Lemmo v. McKoy, No. 08-CV-4264 RJD, 2011 WL 843974, at *5 
(E.D.N.Y. Mar. 8, 2011) (arguing that injuries cannot merely be de minimis, if a Fourth 
Amendment excessive force claim is to succeed);  Barcomb v. Kraeger, No. 3:14CV1159 (JBA), 
2016 WL 2644885, at *4 (D. Conn. May 5, 2016) (rejecting such a requirement).  
 
“Given the fact-specific nature of the inquiry, granting summary judgment against a 
plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could 
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conclude that the officers’ conduct was objectively unreasonable.” Amnesty Am., 361 F.3d at 
123.    
“Courts in this circuit have found officers’ use of force to effectuate an arrest justified 
when a suspect is resisting arrest by contorting their body or otherwise making it difficult to 
handcuff them.” Gutierrez v. New York, No. 18-CV-3621 (MKB), 2021 WL 681238, at *15 
(E.D.N.Y. Feb. 22, 2021) (collecting cases). “In addition, tackling or shoving a plaintiff down to 
the ground can be an objectively reasonable response to a plaintiff resisting arrest.” Id.  
City Defendants argue that on these facts, the factors weigh in favor of Defendants:  
[W]here, as here, Timothy, a large male, presented with a hostile, combative demeanor 
and displayed aggressive pre-fight indicators which were perceived (and it is respectfully 
submitted, would have been perceived by any reasonable officer in the situation 
confronting the OPD Officer Defendants) as posing an immediate threat to the safety of 
the office[r]s on scene, the forced used by each of the individually named OPD Officer 
Defendants against Timothy as he both actively and passively resisted the officers 
attempts to arrest him was objectively reasonable under the circumstances.  
 
City MSJ at 55–56. Plaintiffs, alternatively argue that disputed issues of material fact 
preclude summary judgment. Most importantly, they argue that they “have presented evidence 
that while holding his blind cane, after Mr. Lalonde raised his arms slightly in response to 
Defendant Pryce’s command, the other three officers tackled him from behind.” Resp. to City at 
55.  
As a preliminary matter, it is necessary to establish which facts are disputed, and which 
are undisputed. See Anderson, 477 U.S. at 248 (holding that summary judgment is inappropriate 
if there are genuine disputes of material fact). Plaintiffs assert that “[Defendant] Pryce . . . 
aggressively approached Mr. Lalonde, screaming, ‘let me see your hands, let me see your hands’ 
while standing two feet in front of him.” Pl. City SMF ¶71. Defendants dispute this, but 
acknowledge that “the cited materials . . . purport to show . . . that a female officer uttered ‘let 
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me see your hands, let me see your hands,’” and that “Mrs. LaLonde heard a female officer 
screaming, [though] ‘she couldn’t understand what she was screaming.’” City Resp. Pl. SMF ¶71 
(quoting Dkt. No. 96-2 at 49 (Theresa Lalonde Deposition”)). Plaintiffs claim that “Mr. Lalonde 
. . . in response to Sgt. Pryce’s command raised his arms slightly.” Pl. SMF ¶77. Defendants 
acknowledges that the “cited materials purport to show that Mr. LaLonde raised his hands 
‘halfway’ upon the female officer yelling ‘let me see your hands’ at him three times.” City Resp.  
Pl. SMF ¶77 (quoting Timothy Lalonde Second Dep. at 130). Per Mr. Lalonde’s testimony, “then 
the other three officers hit me in the back and plow[ed] me to the ground.” Timothy Lalonde 
Second Dep. at 131. Defendants acknowledge that the “cited materials . . . purport to show that 
[witness Mr. Ashley] saw the officers tackle Timothy from behind . . . and there was an audible 
sound of the wind getting knocked out of Timothy’s body.” City Resp. Pl. SMF ¶81 (quoting 
Ashley Decl. ¶16). Defendants present an alternative account, see City MSJ ¶¶515–29, but given 
the conflicting evidence, this Court finds that a reasonable jury could find for Plaintiffs.  
Defendants importantly note that the alleged “tackle” “had not been alleged to have 
resulted in any injury to Mr. LaLonde.” City Reply at 56. Plaintiffs claim that “While Mr. 
Lalonde was face down on the pavement, the officers screamed ‘give me your arm’ while 
struggling to wrench his left arm out from under his body.” .” Pl. SMF ¶83. City Defendants 
dispute this, pointing to other evidence in the record, but the rules of summary judgment are 
clear that the Court should not weigh conflicting evidence. McClellan v. Smith, 439 F.3d 137, 
144 (2d Cir. 2006). Defendants acknowledge that the “cited materials . . . purport to show  . . . 
that Mrs. Lalonde had no recollection of Mr. Lalonde grabbing any officers and that Mrs. 
Lalonde, neither saw, nor heard, Mr. Lalonde disobey a command that was given by a police 
officer.” City Resp. Pl. SMF ¶88 (citations omitted).   
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After being tackled, Mr. Lalonde’s left arm was trapped underneath his body. Timothy 
Lalonde Second Dep. at 133–34. In trying to handcuff Mr. Lalonde’s left arm, Defendant officers 
pulled on it such that “the arm popped.” Id. at 134. Defendants concede that evidence “purport[s] 
to show . . . that ‘the officers] had fractured [Mr. LaLonde’s] wrist and tore his rotator cuff by 
pulling on [his] arm.” City Resp. Pl. SMF ¶87 (quoting Timothy Lalonde Second Dep.).  
However, City Defendants note that there is no evidence that they (as opposed to Defendant 
Merria) had contact with Mr. Lalonde’s left arm. City MSJ at 55 n. 27; see also City MSJ at 543 
“Merria was over on Timothy’s left arm.”). Meanwhile, Mr. Lalonde was tased twice. City Resp. 
Pl. SMF ¶89.  
Subsequently, an eyewitness reports seeing “the female officer jump down with what 
looked like her knee landing onto Timothy’s skull.” Ashley Decl. ¶18. As Mr. Lalonde describes, 
“then the lady officer jumped on my head causing 10 stitches in my ear.” Timothy Lalonde 
Second Dep. at 135. City Defendants dispute this account, see City MSJ at 55 n. 57, but on 
Summary Judgment, the Court makes all reasonable inferences in favor of the non-moving party, 
Reeves, 530 U.S. at 150, the Plaintiffs, which means inferring that the eyewitness accounts 
supporting Plaintiffs’ account are correct.  
Mr. Lalonde’s injuries from the arrest included, as diagnosed, a dislocated left elbow, a 
torn rotator cuff on his left shoulder, a fractured left wrist, and laceration of his right ear. Dkt. 
No. 105-10 at 2 (“Hospital Statement”); Dkt. No. 105-2 at 1 (“Setter Statement”). Mr. Lalonde 
required surgery on his elbow, first to reinsert the elbow, and then to stabilize it. See Pl. SMF at 
119–20. Mr. Lalonde has also suffered hearing loss following the incident, though the doctor 
could not identify the source of the loss. Timothy Lalonde Deposition Dkt. No. 96-3 at 65–67.  
Mr. Lalonde has also been diagnosed with PTSD, anxiety, and depression, following the 
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incident. Id. at 71. Per Mr. Lalonde’s neighbor, Mr. Lalonde “is no longer able to use his left 
arm, which prior to [the incident], he relied upon to do many of his outside chores.” Ashley Decl. 
¶23.  
For the reasons explained below, when all reasonable inferences are made in favor of 
Plaintiffs, Reeves, 530 U.S. at 150, all of the factors weigh in their favor. Defendants are 
therefore not entitled to summary judgment with respect to objective reasonableness in their use 
of force.  
First, City Defendants concede that the crime for which Mr. Lalonde was arrested,  
disorderly conduct, is “not severe in nature.” City MSJ at 55. 
Second, at no point did Mr. Lalonde “pose an immediate threat to the safety of the 
officers or others.” Graham, 490 U.S. at 396. When Mr. Lalonde allegedly raised his hands after 
being asked to do so, Pl. SMF ¶77, any perceived threat to the officers should have been 
demonstrated to be negligible. Per the neighbor witness, “Upon arriving, the officers 
instantaneously surrounded and tackled Timothy with his blind cane in hand and as such, there 
was nothing that I observed or heard that would have placed the officers in fear that Timothy 
could physically harm them.” Ashely Decl. ¶23. Defendants present an alternative account, in 
which Mr. Lalonde “displayed pre-fight indicators, including making fists” and acting “like a 
boxer or UFC fighter right before the fight begins.” City SMF  ¶¶ 507–08. However, as these 
claims are disputed, see Pl. Resp. City SMF ¶¶507–08, the Court will disregard them in ruling on 
summary judgment, see Anderson, 477 U.S. at 248.  
City Defendants and Plaintiffs have presented conflicting accounts of what happened 
when Mr. Lalonde was on the ground. See generally, Pl. SMF; City SMF. The City describes Mr. 
Lalonde as “kicking and still being combative on the ground.” City SMF ¶ 286; City SMF ¶299. 
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Defendants claim that “Whenever [Defendant Pryce] would try to place [Mr. Lalonde’s] right 
arm behind his back, Timothy would grab ahold of her pant legs and push her leg from 
underneath her.” City SMF ¶301. “Anytime DP could get her leg back underneath him and try to 
pull his arm back, Timothy would then pull his arm away from her and flail it.” Id. ¶303. It is 
disputed whether Mr. Lalonde grabbed Defendant Merria. See Pl. Resp. City SMF ¶308; see also 
Dkt. No. 96-1 at 38 (“Timothy Lalonde First Deposition”) (showing that Mr. Lalonde testified 
that he did not grab any officers). In the tussle, “[Defendant Pryce] suffered a torn labrum, 
rotator cuff and bicep tendon, which required her to undergo surgery.” City SMF ¶ 312. 
Purportedly because the officers “were having difficulty gaining control of [Mr. Lalonde’s 
arms],” Defendant Sirles tazed Mr. Lalonde. City SMF ¶413. Plaintiffs deny that Mr. Lalonde 
resisted at all. See Pl. Resp. City SMF ¶532;  Timothy Lalonde First Dep. at 38 (“[D]id you 
resist? Never once.”); Theresa Lalonde Dep. at 21–22 (claiming that Mr. Lalonde was “[l]aying 
there . . . [s]till” when the officers were on top of him). Weighing the morass of evidence and 
conflicting claims is beyond the role of this Court in deciding a motion for summary judgment; 
rather, this Court must make all reasonable inferences in favor of the Plaintiffs. See McClellan, 
439 F.3d at 144; Reeves, 530 U.S. at 150. In doing so, it finds that there are disputed facts 
regarding whether Mr. Lalonde presented any significant threat to the safety of the officers while 
lying on the ground.
6 The second factor therefore could weigh in favor of Plaintiffs.    
 
6 The fact that most powerfully points in the direction of believing Defendants’ account is 
that Defendant Pryce suffered significant injury to her arm. See  City SMF¶312. However, the 
injury does not speak for itself with respect to what caused it. Mr. Lalonde’s right arm was 
significantly injured due to flesh-eating bacteria and surgery that “remov[ed] . . . muscles 
extending from [his] right shoulder, chest, down this spine,” and elsewhere. Pl. SMF ¶7. This 
caus[ed] an exceedingly diminished use of his right side, right arm, and shoulder.” Id. ¶9. 
Defendant Pryce claims to have hurt her arm while trying to secure Mr. Lalonde’s injured right 
arm. Pryce Dep. at 19–20. Though Ms. Pryce claims that Mr. Lalonde “attempt[ed] to push me, 
like, away with his right arm,” Id. it is not clear Mr. Lalonde’s right arm would have been 
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With respect to the third factor, “whether [Mr. Lalonde] [was] actively resisting arrest or 
attempting to evade arrest by flight,” the Court again observes that the accounts from the parties 
conflicts significantly. As with the question of whether Mr. Lalonde posed a threat, Plaintiffs 
have presented two party witnesses who claim that Mr. Lalonde was not resisting arrest, see Dkt. 
96-1; Theresa Lalonde Dep. at 21–22, while Defendant officers claim that Mr. Lalonde was 
resisting arrest. See e.g., Dkt. No. 96-8 at 132–48 (“Shaver Deposition”); Pryce Dep. at 96, 102–
22.  Summary judgment requires that the Court not make credibility assessments or weigh 
conflicting evidence in determining which party’s plausible account is correct. See McClellan, 
439 F.3d at 144; Amnesty Am., 361 F.3d at 122. As there is a genuine dispute of material fact as 
to whether Mr. Lalonde was resisting arrest, all three factors could weigh in favor of the 
Plaintiffs. Thus, the Court finds that Defendants have not met their burden at summary judgment 
of showing that the use of force was objectively reasonable.  
Defendants argue that the injury to Mr. Lalonde is de minimis. City MSJ at 55 n. 27. 
Insofar as a de minimis requirement applies, see Barcomb v. Kraeger, 2016 WL 2644885 at *4 
(holding that no such requirement exists), this argument is unavailing. Mr. Lalonde’s injuries are 
greater than those that have been to sufficient to state a claim. See e.g., Jackson v. City of New 
York, 939 F.Supp. 2d 235, 254 (E.D.N.Y. 2013) (finding that a plaintiff who experienced 
“contusions to [her] back, tenderness on [her] abdomen, and swelling around [her] wrists,” had 
been sufficiently injured); Maxwell v. City of New York, 380 F.3d 106, 109 (2d Cir.), 
supplemented, 108 F. App'x 10 (2d Cir. 2004) (finding that force that “sen[t] pain into [the 
plaintiff’s] arm and lower back and [left] her with a post-concussive syndrome” had caused 
 
capable of injuring Pryce. Again, sorting out these conflicting accounts is the role of a finder of 
fact, not a Court on a motion for summary judgment.  
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sufficient injury to support an excessive force claim); Davenport v. Cnty. of Suffolk, No. 99-CV-
3088 JFB, 2007 WL 608125, at *10–11 (E.D.N.Y. Feb. 23, 2007) (finding that a “bump on [the 
plaintiff’s] head” that received no medical treatment was sufficiently serious to meet the de 
minimis requirement). Therefore, Mr. Lalonde’s injuries, which include a torn-rotator cuff, a 
fractured wrist, a lacerated ear, diminished use of his arm, and hearing loss, are clearly more than 
de minimis. See Hospital Statement at 2; Setter Statement at 1; Pl. SMF at 119–20; Timothy 
Lalonde Deposition Dkt. No. 96-3 at 65–67, 71; Ashley Decl. ¶23.  
B. Qualified Immunity 
Qualified immunity “protects government officials from liability for civil damages 
insofar as their conduct does not violate clearly established statutory or constitutional rights of 
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) 
(internal quotations omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To 
determine whether a defendant is entitled to qualified immunity, courts ask whether the facts 
shown ‘make out a violation of a constitutional right’ and ‘whether the right at issue was “clearly 
established” at the time of defendant's alleged misconduct.’” Estate of Devine, 676 F. App’x 61, 
62 (2d Cir. 2017) (summary order) (quoting Pearson, 555 U.S. at 232). “To be clearly 
established, a right must be sufficiently clear that every reasonable official would [have 
understood] that what he is doing violates that right.” Brown, 862 F.3d at 190 (quoting Reichle v. 
Howards, 566 U.S. 658 (2012)). “Controlling authority serves to put officials on notice of what 
is unlawful; however, ‘existing precedent must have placed the statutory or constitutional 
question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The 
Supreme Court has instructed courts “not to define clearly established law at a high level of 
generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting al-Kidd, 563 U.S. at 742). In 
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evaluating a qualified immunity defense for an excessive force claim, “it is ‘especially 
important’ that the law be clearly established with a high degree of ‘specificity’ because ‘[i]t is 
sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to 
the factual situation the officer confronts.’” Collins v. City of New York, 295 F. Supp. 3d 350, 
369 (S.D.N.Y. 2018) (quoting Mullenix, 577 U.S. at 12).  
 “Moreover, if ‘officers of reasonable competence could disagree on the legality of the 
action at issue in its particular factual context,’ the officer is entitled to qualified immunity.” 
Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (quoting Walczyk v. Rio, 496 F.3d 139, 154 
(2d Cir. 2007)). “But, if ‘it is obvious that no reasonably competent officer’ would have taken 
such action, that officer will not be immune.” Id. (citing Malley v. Briggs, 475 U.S. 335, 341 
(1986)). Ultimately, “qualified immunity protects ‘all but the plainly incompetent or those who 
knowingly violate the law.’” Id. (quoting Mullenix, 577 U.S. at 12).  
Defendants rely heavily on a case from the Southern District, which found that, as of 
September 2020, “there [was] no clearly established law that the use of significant force against a 
non-compliant but non-threatening arrestee amounts to constitutionally excessive force.” Harris 
v. Leon, No. 20 CIV. 10864 (LGS), 2023 WL 2051171, at *7 (S.D.N.Y. Feb. 16, 2023); City 
MSJ at 59; City Reply at 59.
7 Additionally, “there is no clearly established precedent . . . that 
prohibits the use of significant force by an officer against an individual who is resisting arrest 
 
7 In the alternative, City Defendants argue that Plaintiffs “have consented to [their] 
argument and/or abandoned their excessive force claim,” as Plaintiffs’ Response brief did not 
respond to the rule statement from Harris. City Reply at 60. Though Plaintiffs’ Response would 
not win any awards for legal writing, it identifies that the identifying the level of specificity is 
crucial in a qualified immunity analysis, and argues that Defendants have identified the wrong 
level of specificity. Resp. to City at 58. Therefore, Defendant’ argument that Plaintiffs have 
consented to Defendants argument or have abandoned their claim is unavailing.  
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and is reasonably believed to pose a threat to the officer's safety.” Matusak v. Daminski, 755 F. 
Supp. 3d 325, 337 (W.D.N.Y. 2024), aff’d, 165 F.4th 702 (2d Cir. 2026) (collecting cases).  
However, it is essential in qualified immunity cases that the legal rule at issue be stated 
with sufficient specificity. See Collins, 295 F. Supp. at 369. “[T]aking an arrestee to the ground 
who is not violent, resisting, or posing a threat to officers or the public violates clearly 
established law.” Meli v. City of Burlington, Vermont, 585 F. Supp. 3d 615, 631–32 (D. Vt. 
2022) (collecting cases). Plaintiffs have presented evidence that Mr. Lalonde was “not violent, 
resisting, or posing a threat to officers or the public” when he was taken down by the defendant 
officers. See id.; see also Pl. SMF ¶77 (Mr. Lalonde raised his hands before being tackled); 
Ashely Decl. ¶23 (witness did not observe Mr. Lalonde being threatening). Therefore, making all 
reasonable inferences in favor of the Plaintiffs, Reeves, 530 U.S. at 150, the alleged tackling of 
Mr. Lalonde may have violated a clearly established right, and City Defendants have not 
established that they are entitled to qualified immunity.  
Additionally, it is clearly established that hitting a suspect in the head who is not 
“actively resisting” constitutes excessive force. Bryant v. Hartford, No. 3:17-CV-01374 (VAB), 
2021 WL 4477311, at *13 (D. Conn. Sept. 30, 2021) (“If [the defendant] . . . was no longer on 
the run or fighting the officers when he was struck on the head and hit on the back of his thigh, 
then the officers are not entitled to qualified immunity. . . . If [the defendant] was actively 
resisting . . .  however, then the . . . Defendants may be entitled to qualified immunity.”); see also 
Wong v. Yoo, 649 F. Supp. 2d 34, 58 (E.D.N.Y. 2009) (finding that hitting a suspect in the head, 
when the defendant officer “had no reason to fear that plaintiff posed a risk of death or serious 
injury to him or to others,” violated clearly established law). As discussed above, it is disputed 
whether Mr. Lalonde was resisting arrest when he was allegedly hit in the head by Defendant 
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Pryce’s knee. see Dkt. 96-1; Theresa Lalonde Dep. at 21–22. Thus, a reasonable jury could find 
that the knee strike, if it occurred, violated clearly established law. And “[b]ecause a jury could 
reasonably conclude that the officer violated clearly established law at some point in the 
encounter, the defendants’ motion for summary judgment on the qualified immunity defense is 
denied.” Dasrath v. City of New York, No. 15CV766AMDRLM, 2018 WL 10501877, at *7 
(E.D.N.Y. Sept. 25, 2018). This genuine dispute of mateiral fact precludes summary judgement.  
8. Failure to Intervene  
“Police officers have an affirmative duty to intervene to protect the constitutional rights 
of citizens from infringement by other law enforcement officers in their presence.” Cornell v. 
Vill. of Clayton, 691 F. Supp. 3d 608, 620 (N.D.N.Y. 2023) (quoting Martinez v. City of New 
York, 564 F. Supp. 3d 88, 106 (E.D.N.Y. 2021) (internal quotations omitted). “To succeed on a 
failure to intervene claim, a plaintiff must demonstrate that: (1) the defendant had a realistic 
opportunity to intervene and prevent the harm; (2) a reasonable person in the defendant's position 
would have known that the plaintiff's constitutional rights were being violated; and (3) the 
defendant did not take reasonable steps to intervene.” Id. (quoting Wagner v. Hyra, 662 F. Supp. 
3d 274, 285–86 (N.D.N.Y. 2023)). “Whether the officer had a ‘realistic opportunity’ to intervene 
is normally a question for the jury, unless, considering all the evidence, a reasonable jury could 
not possibly conclude otherwise.” Pajazetovic v. City of Utica, New York, No. 
618CV1496TJMATB, 2021 WL 4440473, at *9 (N.D.N.Y. Sept. 27, 2021) (quoting Sloley v. 
VanBramer, 945 F.3d 30, 47 (2d Cir. 2019)). “To determine whether the defendant had a realistic 
chance to intervene, courts in this Circuit consider a number of factors, including ‘(1) the number 
of police officers present; (2) the officers’ relative placement; (3) the environment in which the 
officers acted; [and] (4) the nature of the assault.’” Bovee v. Auburn Police Dep't, No. 5:24-CV-
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1138 (DNH/MJK), 2024 WL 4600030, at *2 (N.D.N.Y. Oct. 29, 2024), report and 
recommendation adopted, No. 5:24-CV-1138, 2024 WL 4834214 (N.D.N.Y. Nov. 20, 2024) 
(quoting Johnson v. City of New York, No. 15-CV-6915 (ER), 2019 WL 294796, at *9 (S.D.N.Y. 
Jan. 23, 2019)).  
“Failure to intervene claims are ‘contingent upon the disposition of the primary claims 
underlying the failure to intervene claim.’ Usavage v. Port Auth. of New York & New Jersey, 932 
F. Supp. 2d 575, 599 (S.D.N.Y. 2013) (quoting Matthews v. City of New York, 889 F. Supp. 2d 
418, 443–44 (E.D.N.Y. 2012)). “A plaintiff cannot succeed on a claim for failure to intervene 
under § 1983 when there is no underlying constitutional violation.” Kayo v. Mertz, 531 F. Supp. 
3d 774, 799 (S.D.N.Y. 2021).  
As this Court is granting summary judgment to defendants on Plaintiffs’ false arrest, 
fabrication of evidence, and deliberate indifference claims, the associated failure to intervene 
claims also fail. See id. Thus, this Court proceeds in its analysis only with respect to the claim 
that Defendants failed to intervene in the use of excessive force.  
“[A]ll law enforcement officials have an affirmative duty to intervene to protect the 
constitutional rights of citizens from infringement by other law enforcement officers in their 
presence. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). “Liability may attach where an 
officer observes or has reason to know: (1) ‘that excessive force is being used’; (2) ‘that a citizen 
has been unjustifiably arrested’; or (3) ‘that any constitutional violation has been committed by a 
law enforcement official.’” Jones v. City of Mount Vernon, No. 22-CV-414 (NSR), 2023 WL 
2118026, at *5 (S.D.N.Y. Feb. 17, 2023) (quoting Anderson, 17 F.3d at 557). “If [an] officer was 
a direct participant in the excessive force violation, the failure to intervene theory will be 
inapplicable.” Sanabria v. Detective Shawn Tezlof, No. 11-CV-6578 (NSR), 2016 WL 4371750, 
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at *6 (S.D.N.Y. Aug. 12, 2016). However, a plaintiff may plead in the alternative, where a 
reasonable factfinder could find that a particular defendant did not use excessive force, but failed 
to prevent another defendant from doing so. See Buchy v. City of White Plains, No. 14 CV 1806 
(VB), 2015 WL 8207492, at *3 (S.D.N.Y. Dec. 7, 2015); see also Cumberbatch v. Port Auth. of 
New York & New Jersey, No. 03 CIV. 749 (BSJ), 2006 WL 3543670, at *11 (S.D.N.Y. Dec. 5, 
2006).  
As the officers are differently situated, the Court analyzes Defendant Pryce, Defendants 
Shaver, Sirles, and Merria, and Defendant Wescott, separately.  
a. Defendant Pryce  
Plaintiffs claim that Defendant Pryce did not partake in the alleged initial tackle of Mr. 
Lalonde. See Timothy Lalonde Second Dep. at 131. In Plaintiffs’ account, at the moment of the 
tackle, she had just ordered Mr. Lalonde to show his hands, and was standing nearby. Id. at 130–
31. The Court acknowledges that there is conflicting evidence over whether a tackle took place, 
and whether Defendant Pryce partook in the initial contact with Mr. Lalonde. See e.g., Dkt. No. 
92-39 at 78–81 (“Sirles Deposition”). City Defendants argue that there is no evidence that 
Defendant Pryce “had any realistic opportunity to intervene to stop [the use of force], as [she 
was] actively attempting to gain Timothy’s compliance.” City MSJ at 58 n. 29. However, when 
Mr. Lalonde fell to the ground, there is a genuine dispute of fact regarding City Defendant’s 
description. A reasonable factfinder could conclude that Defendant Pryce could see any use of 
excessive force and could have prevented it, but did not. Therefore, Defendant Pryce is not 
entitled to summary judgment on the excessive force claim.  
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b. Defendants Shaver, Sirles, and Merria 
As Defendants Shaver, Sirles, and Merria partook in the alleged tackle, see Timothy 
Lalonde Second Dep. at 131, they cannot be found liable for failing to intervene in that tackle. 
See Sanabria, 2016 WL 4371750 at *6. While Mr. Lalonde was on the ground, Defendants Sirles 
Shaver, and Merria were on top of him, attempting to handcuff him. See City SMF at 393–401, 
529–34; Merria MSJ at 20.  Plaintiffs have not alleged facts indicating that Defendants Shaver, 
Sirles, and Merria would have been in a position to intervene prior to her allegedly kneeing Mr. 
Lalonde in the head. See Pl. SMF 87–90. Rather, Plaintiffs make a conclusory argument that 
Defendant Shaver “permitted Officers Pryce, Sirles, and Deputy Merria . . . to participate in 
deploying a quantum of force incommensurate with Mr. Lalonde’s actions.” City MSJ at 29. 
This is not enough for Plaintiffs to meet their burden at summary judgement of presenting 
sufficient evidence for a reasonable jury to conclude that Defendant Shaver or other Defendants 
had a “realistic opportunity” to prevent other officers’ excessive use of force, specifically 
Defendant Pryce’s alleged knee to the head. See Pajazetovic, 2021 WL 4440473, at *9. As 
Defendants Shaver, Sirles, and Merria are entitled to summary judgment, the failure to intervene 
claims against Defendants Shaver, Sirles, and Merria, are therefore dismissed.  
c. Defendant Wescott 
Defendant Wescott was not on the scene when excessive force was allegedly used against 
Mr. Lalonde. See Dkt. No. 96-11 at 77–78 (“Wescott Deposition”) Therefore, he could not 
possibly have intervened. Plaintiffs’ failure to intervene claim against Defendant Wescott is thus 
dismissed. 
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D. Section 1985(3) Class-based Conspiracy  
Plaintiffs claim that Defendant officers engaged in a conspiracy to deprive Plaintiff Mr. 
Lalonde of his rights, based on his status as a disabled person. Compl. ¶¶138–46. City 
Defendants and Defendant Merria move for summary judgment. Merria MSJ at 20–23; City MSJ 
at 22–25.  
[T]o state a civil rights conspiracy under § 1985(3), a plaintiff must allege: 1) a 
conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or 
class of persons of the equal protection of the laws, or of equal privileges and immunities 
under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is 
either injured in his person or property or deprived of any right or privilege of a citizen of 
the United States 
 
MDO at 29–30 (quoting Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006)). A 
“Section 1985 conspiracy claim require[s] a showing of an underlying constitutional violation.” 
Edwards v. Horn, No. 10 CIV. 6194 RJS JLC, 2012 WL 473481, at *19 (S.D.N.Y. Feb. 14, 
2012), report and recommendation adopted, No. 10 CIV. 6194 RJS JLC, 2012 WL 760172 
(S.D.N.Y. Mar. 8, 2012). “The conspiracy must also be ‘motivated by some racial or perhaps 
otherwise class-based, invidious discriminatory animus.’” Dolan v. Connolly, 794 F.3d 290, 296 
(2d Cir. 2015) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007)). 
Mere membership in a protected class is insufficient to show animus. Posr v. Ct. Officer Shield 
No. 207, 180 F.3d 409, 419 (2d Cir. 1999).   
To demonstrate that a conspiracy was formed, “a plaintiff ‘must provide some factual 
basis supporting a meeting of the minds, such that defendants entered into an agreement, express 
or tacit, to achieve the unlawful end.’” Webb, 340 at 110 (quoting Romer v. Morgenthau, 119 
F.Supp. 2d 346, 363 (S.D.N.Y. 2000)). “Conspiracy claims under § 1985(3) must contain 
specific factual allegations, and a complaint consisting of nothing more than conclusory or vague 
allegations of conspiracy is insufficient to survive a motion to dismiss.” Oquendo v. Dep't of 
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Correction, No. 3:16-CV-1709 (MPS), 2018 WL 1069577, at *4 (D. Conn. Feb. 27, 2018) 
(quoting Doe v. Mastoloni, No. 3:14-CV-00718 (CSH), 2016 WL 593439, at *16 (D. Conn. Feb. 
12, 2016)). Defendants argue that Plaintiffs have not presented sufficient evidence that any 
conspiracy was motivated by animus directed at Mr. Lalonde’s disability. Merria MSJ at 21; City 
MSJ at 20. Plaintiffs argue, by contrast, that “the unprovoked, forcecful arrest of Mr. Lalonde 
while adjacent to his residence, wearing darkened sunglasses and holding a blind cane in his 
hand, allows for a reasonable inference that Mr. Lalonde’s disability was an animating cause for 
the officers’ decision[s].” Resp. to City at 27. On this point, the Court agrees with Defendant. 
The mere fact of Mr. Lalonde’s disability is insufficient to demonstrate that the Defendants’ 
actions were motivated by animus towards that disability. See Posr, 80 F.3d at 419. 
Plaintiffs present additional evidence of animus, but from events after the alleged 
constitutional violation. For instance, in the police station, an officer threatened to shoot Mr. 
Lalonde if he (accidentally) touched one of them again. Pl. SMF ¶107. Throwing Mr. Lalonde 
headfirst into the police car, after learning that he could not sit up properly in the police car, may 
also be evidence of anti-disability animus. See Pl. SMF ¶98. Pulling the disabled Mr. Lalonde 
out of the police car by his feet, such that he fell to the ground, and then pulling him off the 
ground by his belt and pants such that they ripped, might also be evidence of anti-disability 
animus. See Pl. SMF ¶¶104–05. However, these instances took place after the alleged underlying 
constitutional violation at issue: the use of force against Mr. Lalonde. See generally, Pl. SMF. 
None of these potential indications of animus are sufficient to establish that there was a 
conspiracy motivated by said animus. Dolan, 794 F.3d at 296.  Insofar as Defendants formed a 
conspiracy to brutalize Mr. Lalonde, Plaintiffs present no evidence that they agreed to do so 
because Mr. Lalonde is disabled. Therefore, Defendants are entitled to summary judgment on the 
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Section 1985(3) conspiracy claim, which is hereby dismissed.  
E. Section 1986 Neglect to Prevent a Conspiracy  
“Section 1986 ‘provides a cause of action against anyone who having knowledge that any 
of the wrongs conspired to be done and mentioned in section 1985 are about to be committed and 
having power to prevent or aid, neglects to do so.’” Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 
1999) (quoting Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 
1993)); see also 42 U.S.C. § 1986. “A claim under section 1986 . . . lies only if there is a viable 
conspiracy claim under section 1985.” Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 
1994). As this Court has granted Defendants summary judgment on Plaintiffs’ Section 1985(3) 
conspiracy claim, see supra section IV(D), it also dismisses Plaintiffs’ Section 1986 claims, see 
Gagliardi, 18 F. 3d at 194. 
V. CONCLUSION 
Defendant Merria’s Motion has been granted in full. However, as he did not move on the  
excessive force claim, the excessive force claim against Defendant Merria survives. County 
Defendants’ Motion is granted in full, and all claims against County Defendants have been 
dismissed. City Defendants Motion has been granted in part, and denied in part. The excessive 
force claim against Defendants Pryce, Shaver, and Sirles, and the failure to intervene claim 
against Defendant Pryce, survive. All other claims against City Defendants have been dismissed.   
Accordingly, it is hereby: 
ORDERED, that Defendant Merria’s Motion, Dkt. No. 90 is GRANTED; and it is 
further 
ORDERED, that County Defendants’ Motion, Dkt. No. 92 is GRANTED; and it is 
further 
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ORDERED, that City Defendants’ Motion, Dkt. No. 94 is GRANTED in part and 
DENIED in part; and it is further  
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all 
parties in accordance with the Local Rules.  
IT IS SO ORDERED. 
 
 
DATED: March 31, 2026 
 Albany, New York 
            
      LAWRENCE E. KAHN 
United States District Judge 
Case 8:22-cv-00164-LEK-DJS     Document 125     Filed 03/31/26     Page 57 of 57

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