Best v. Locy et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Ervin J. Best,
Plaintiff,
v. 	9:24-CV-1224
(ECC/MJK)
Sheriff Locy, et. al.1
Defendant.
_____________________________________________________________________
Ervin J. Best, Plaintiff pro se
Paul G. Lyons, Esq., for Defendants
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Elizabeth C. Coombe, U.S. District Court Judge:
ORDER & REPORT-RECOMMENDATION
United States District Court Judge Elizabeth C. Coombe referred
Defendants’ summary judgment motion to this Court under 28 U.S.C.
§ 636(b) and N.D.N.Y. Local Rule 72.3(c) for a report and
recommendation. In this pro se civil rights action, Best claims that
Defendants violated his constitutional rights while he was a pre-trial
detainee at the Jefferson County Correctional Facility (“J.C.C.F.”). The
1 Plaintiff incorrectly spelled Defendant Locy’s last name as “Losi.” The Clerk is
directed to amend the docket to reflect the proper spelling of Defendant Locy’s
name.
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For the reasons below, the Court recommends granting Locy’s motion
for summary judgment in part and denying it in part.
I. 	BACKGROUND
A. 	Facts
The facts of this case will be incorporated into the Court’s analysis
of the parties’ arguments.
B. Procedural History
Best commenced this action on October 7, 2024, by filing a
Complaint. (Dkt. 1). Chief United States District Court Judge Brenda
K. Sannes initially ordered administrative closure of this case because
Best did not pay the filing fee. (Dkt. 2). Best then moved for leave to
proceed in forma pauperis (“IFP”), and the case was reopened. (Dkts. 3,
5, 6). Upon initial review of the Complaint under 28 U.S.C. § 1915,
Chief Judge Sannes granted Best’s motion to proceed IFP, and allowed
only his Fourteenth Amendment claim for excessive force against Locy
and Laveane to proceed. See generally (Decision and Order, Dkt. 6, at
pgs. 10–11).2 On February 17, 2026, Locy moved for summary
2 The Court notes that Best has not filed proof of service upon Laveane, and
Laveane has not appeared in this action.
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judgment. (Dkt. 26). Best filed his response (Dkt. 29) to the motion
three days after the March 10, 2026, deadline (Dkt. 27). Locy filed a
reply. (Dkt. 33).
II. 	STANDARD OF REVIEW
Summary judgment is only appropriate where “there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Thermal Surgical, LLC v. Brown, 150
F.4th 115, 120 (2d Cir. 2025) (cleaned up). When ruling on a summary
judgment motion, the court must first “determine whether there is a
genuine dispute as to a material fact, raising an issue for trial.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)
(internal quotations and citations omitted).
When reviewing the record to determine whether there is a
genuine issue for trial, courts must “constru[e] the evidence in the light
most favorable to the non-moving party,” and “resolve all ambiguities,
and credit all factual inferences that could rationally be drawn, in favor
of the party opposing summary judgment.” Costello v. City of
Burlington, 632 F.3d 41, 45 (2d. Cir. 2011); see also Kessler v.
Westchester County Dep’t of Social Services, 461 F.3d 199, 206 (2d Cir.
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2006). Yet not all factual disputes bar summary judgment—“[w]here
the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.” Baez v.
JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v. Price
Waterhouse Coopers L.L.P., 735 F.3d 114, 123 (2d Cir. 2013) (cleaned
up). “When the moving party has carried its burden under Rule 56(c),
its opponent 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., Ltd., 475 U.S. 574, 586 (1986). And the
nonmoving party cannot “rely on mere conclusory allegations nor
speculation, but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145, 149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment . . ., the judge must ask [themself] not whether [they] think[]
the evidence unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the plaintiff on the evidence
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presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Summary judgment is proper only if no “reasonable jury could return a
verdict for the nonmoving party.” Id. at 248. “A court cannot credit a
plaintiff’s merely speculative or conclusory assertions.” DiStiso v. Cook,
691 F.3d 226, 230 (2d Cir. 2012).
III. 	DISCUSSION
The Court recommends denying Locy’s motion for summary
judgment in part and granting it in part. First, the Court recommends
not adopting Locy’s statement of material facts (“SOMF”) in its entirety
as true. Even though Best did not respond to Locy’s motion in the form
required by Local Rules 7.1(b) and 56.1(b), Locy’s SOMF is not fully
supported by the record. Second, there is a genuine issue of fact as
whether the force Locy used against Best in the shower room was
objectively reasonable. Third, because the Court recommends denying
granting summary judgment in part, it need not reach Locy’s qualified
immunity or punitive damages arguments.
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A. 	The Court recommends not adopting Locy’s SOMF in
its entirety as true under Local Rules 7.1(a) and 56.1.
The Court recommends not adopting Locy’s SOMF in its entirety.
Even though Best did not comply with Local Rules 7.1(b) and 56.1(b)
after having been warned of the consequences of failing to do so, Locy’s
SOMF is not fully supported by the record.
Best failed to respond to Defendants’ summary judgement motion
in the form required by Local Rules 7.1(b) and 56.1(b). Courts must
afford due deference to a plaintiff’s pro se status. See Liberati v.
Gravelle, No. 12-CV-00795 (MAD/DEP), 2013 WL 5372872, at * 6
(N.D.N.Y. Sept. 24, 2013) (explaining that pro se prisoners are “entitled
to some measure of forbearance when defending against summary
judgment motions.”) (cleaned up). But pro se status “does not relieve
plaintiff[s] of [their] duty to meet the requirements necessary to defeat
a motion for summary judgment.” Jackson v. Moore, No. 21-CV-1001
(GTS/ATB), 2023 WL 4710869, at *2 (N.D.N.Y. Apr. 14, 2023) (cleaned
up). “Where a party has failed to respond to the movant’s statement of
material facts as required by Local Rule 7.1(a)(3), the facts in the
movant’s statement will be accepted as true (1) to the extent they are
supported by evidence in the record, and (2) the non-movant, if
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proceeding pro se, has been specifically advised of the possible
consequences of failing to respond to the motion.” Id. (citing Champion
v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)). The same is true if the non-
movant fails to “file a Statement of Material Fact which mirrors the
movant’s statement in matching numbered paragraphs and which set
forth a specific reference to the record where the material fact is alleged
to arise.” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003).
When a party moves for summary judgment against a pro se
litigant, either the movant or the district court must provide the pro se
litigant with notice of the consequences of failing to respond. See
Fredricks v. Shaheen, No. 22-2480, 2025 WL 1949898, at *1 (2d. Cir.
2025) (summary order) (citing Vital v. Interfaith Med. Ctr., 168 F.3d
615, 620 (2d Cir. 1999)). When such notice is provided, but the pro se
plaintiff fails to respond to a motion for summary judgment, the court
may accept the defendant’s factual assertions as true to the extent that
they are supported by record evidence. See Jackson, 2023 WL 4710869,
at *2. Here, Best was served on February 17, 2026, with a Notification
of The Consequences of Failing to Respond to a Summary Judgment
Motion. (Dkts, 26-17, 26-18).
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Although Best’s failure to properly respond to the summary
judgment motion is grounds to adopt Locy’s SOMF, the record evidence
does not support adopting it in its entirety. As more fully discussed
below, there is a genuine issue of material fact as to whether the force
used by Locy in the shower room against Best was objectively
reasonable under the circumstances. The Court therefore recommends
that Locy’s SOMF not be adopted in its entirety.
B. 	The Court recommends denying Locy’s motion for
summary judgment because he cannot demonstrate
that the force he used against Best was objectively
reasonable.
The Court recommends denying Locy’s summary judgment motion
in part and denying it in part. Best’s deposition testimony creates an
issue of fact as to whether the force used against him by Locy in the
shower room was objectively reasonable. However, the record lacks any
evidence that Locy used any force against Best during the search of his
cell, in the hallway/booking area or in the holding cell after the
encounter in the shower room. The Court therefore recommends that
summary judgment be denied in part and granted in part.
“A pretrial detainee’s claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the Fourteenth
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Amendment, rather than the Cruel and Unusual Punishments Clause
of the Eight[h] Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244
(1983)). This is so because “[p]retrial detainees have not been convicted
of a crime and thus ‘may not be punished in any manner—neither
cruelly and unusually nor otherwise.’” Iqbal v. Hasty, 490 F.3d 143, 168
(2d Cir. 2007), rev’d on other grounds sub nom., Ashcroft v. Iqbal, 556
U.S. 662 (2009)). A pretrial detainee’s rights are “at least as great as
the Eighth Amendment protections available to a convicted prisoner.”
Revere, 463 U.S. at 244 (quotation omitted).
To sustain an excessive force claim, “a pretrial detainee must
show only that the force purposely or knowingly used against” them
“was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389,
396-97 (2015). This test is a “wholly objective standard.” McDaniel v.
City of New York, No. 19-CV-8735, 2022 WL 1446541, at *5 (S.D.N.Y.
Jan. 21, 2022) (cleaned up).
“[O]bjective reasonableness turns on the ‘facts and circumstances
of each particular case.’” Kingsley, 576 U.S. at 397 (quotation omitted).
A court must consider reasonableness “from the perspective of a
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reasonable officer on the scene, including what the officer knew at the
time.” Id. “A court must also account for the legitimate interests that
stem from the government’s need to manage the facility in which the
individual is detained, appropriately deferring to policies and practices
that in the judgment of jail officials are needed to preserve internal
order and discipline and to maintain institutional security.” Id. (cleaned
up).
To be actionable, the force used must be both unreasonable
considering the surrounding circumstances, and “more than de
minimis.” Antic v. City of New York, 273 F. Supp. 3d 445, 458 (S.D.N.Y.
2017), aff’d, 740 F. App’x 203 (2d Cir. 2018); see also, e.g., Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (“[A] de minimis use of force
will rarely suffice to state a constitutional claim.” (emphasis omitted)).
Indeed, a “de minimis injury can serve as conclusive evidence that de
minimis force was used.” Washpon v. Parr, 561 F. Supp. 2d 394, 407
(S.D.N.Y. 2008) (cleaned up). De minimis injuries “for purposes of
defeating excessive force claims include short-term pain, swelling, and
bruising, brief numbness from tight handcuffing, claims of minor
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discomfort from tight handcuffing.” Lemmo v. McKoy, No. 08-CV-4264,
2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011) (cleaned up).
1. Cell Search
The Court recommends that summary judgment be granted to the
extent that Best asserts a Fourteenth Amendment excessive force claim
against Locy related to the search of his cell. .
On May 14, 2023, Best was transferred from Rensselaer County
Correctional Facility to J.C.C.F. (SMOF, at ¶ 4, Locy Decl., Dkt. 26-15,
at ¶ 4, Best Depo., at pg. 45). That afternoon, officers, including Locy,
searched cells in Best’s unit. (SMOF, at ¶ 7, Locy Decl., Dkt. 26-15, at ¶
24). While searching Best’s cell, Locy found and confiscated multiple
items considered by J.C.C.F. to be contraband—a toothbrush, a pen, a
note pad, and clothing (including underwear). (SMOF, at ¶ 9, Locy
Decl., Dkt. 26-15, at ¶ 25, Best Depo., at pg. 45). Best became upset
during the search and exchanged expletives with Locy. (SMOF, at ¶ 16,
Locy Decl., Dkt. 26-15, at ¶ 26, Best Depo., at pg. 46). Locy ordered Best
to stop. (SMOF, at ¶ 17, Locy Decl., Dkt. 26-15, at ¶ 27). Best continued
and Locy removed Best from his cell, placing him in handcuffs. (SMOF,
at ¶ 19, Locy Decl., Dkt. 26-15, at ¶ 28); see also Mason v. Peters, 346 F.
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Supp. 2d 396, 397-98 (W.D.N.Y. 2004) (finding that reasonable force
and restraints were used to control plaintiff who was agitated over the
removal of his glasses). Best testified that Locy “didn’t strike [him] at
all” in connection with the cell search. (Best Depo., at pg. 46). Because
Best testified under oath that Locy did not strike Best in connection
with the cell search, Best does not have a Fourteenth Amendment
excessive force claim against Locy in connection with that encounter.
The Court therefore recommends that summary judgment be granted to
the extent that Best asserts a Fourteenth Amendment excessive force
claim against Locy arising from the search of his cell.
2. Main Hallway and Booking/Intake Area
After Best was placed in handcuffs, Locy escorted him towards the
shower area to perform a strip search. (SMOF, at ¶¶ 20–21, Locy Decl.,
Dkt. 26-15, at ¶ 27, Best Depo., at pgs. 46–47). Locy and Best continued
trading expletives. (Id.). At one point, Locy claims that Best turned
towards him, and Locy “redirected” Best towards the shower area by
guiding Best’s arms and shoulders. (SMOF, at ¶ 22, Locy Decl., Dkt. 26-
15, at ¶ 32). Officer Ossola joined Best and Locy and proceeded to the
shower room with them. (SMOF, at ¶ 24, Locy Decl., Dkt. 26-15, at ¶
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32). Although Best testified that Locy was “jumping” him on the way to
the shower room because “[Best] was still saying things to [Locy]”, Locy
“never beat [Best] in the hallway.” (Best Depo., at pgs. 47–48). Even
though Best claims that Locy was “jumping” him, there are no
allegations that Best sustained any injuries in the hallway. And
because Best did not sustain any injuries, the Court recommends that
summary judgment be granted to the extent Best asserts a Fourteenth
Amendment excessive force claim against Defendant Locy for
purportedly being “jumped” in the hallway leading to the shower room.
See Hicks v. Vill. of Ossining, No. 12-CV-6874, 2016 WL 345582, at *4
(S.D.N.Y. Jan. 27, 2016) (A plaintiff “generally must prove he sustained
some injury to prevail on an excessive force claim.”).
3. Shower Room
Upon entering the shower room, Locy alleges that he began
removing Best’s handcuffs to conduct a strip search. (Locy Decl., Dkt.
26-15, at ¶ 40, Bast Decl., Dkt. 26-11, at ¶ 7, Ossola Decl., Dkt. 26-8, at
¶¶ 6–7). Best then began moving “aggressively” towards Ossola, so Locy
“grounded” him. (Locy Decl., Dkt. 26-5, at ¶ 41, Bast Decl., Dkt. 26-11,
at ¶ 7, Ossola Decl., Dkt. 26-8, at ¶¶ 6–7). While on the ground, Locy
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alleges that Best bit him and, in response, Locy delivered “two defensive
hand strikes” to Best’s face. (Locy Decl., Dkt. 26-5, at ¶¶ 43–44).
Officers Locy, Bast, and Ossola were the only witnesses to Locy striking
Best. See generally, (Locy Decl., Dkt. 26-15, Bast Decl., Dkt. 26-11,
Ossola Decl., Dkt. 26-8).
Best has a different version of what transpired in the shower
room. According to Best, upon entering the shower room, Locy
“immediately slammed [his] head against the wall five times, and then
sucker punched [him] to the left side . . . .” (Best Depo., at pg. 47). Best
also claims that “Locy slammed [him] to the floor with the handcuffs on,
and power drived his knee inside [his] eye socket.” (Best Depo., at pg.
49). Best denied acting aggressively in the shower room and biting Locy.
(Best Depo., at pgs. 49–50). As a result of Locy’s alleged use of excessive
force, Best was “left [] in the cell brutally damaged from all the blood
clots . . . and blood that was very, very, profusely everywhere.” (Best
Depo., at pg. 47).
Best’s sworn version of what transpired creates a genuine issue of
material fact as to whether Locy’s use of force in the shower room was
objectively reasonable. The resolution of that material issue of fact is
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wholly dependent on “[a]ssessments of credibility and choices between
conflicting versions of the events,” which is a matter “for the jury, not
for the [C]ourt on summary judgment.” See Simpson v. City of New
York, 793 F.3d 259, 265 (2d Cir. 2015) (citation omitted); see also
Webster v. City of New York, 333 F. Supp. 2d 194, 198 (S.D.N.Y 2004)
(denying summary judgment on Fourteenth Amendment use of force
claim; “[u]nder [d]efendants’ analysis, it was both necessary and
appropriate for the police officers involved to prevent [plaintiff] from
interfering with the arrest of [her daughter]; . . . [plaintiffs] claim,
however, that those [d]efendants who threw [plaintiff] onto the police
vehicle face-first did so in retaliation for her comments questioning
what they were doing to [her daughter;] [i]n light of these varying
accounts surrounding [d]efendants’ use of force, genuine issues remain
[precluding summary judgment]”). Because the Court cannot reconcile
the conflicting versions of what transpired in the shower room, the
Court recommends that Defendant Locy’s motion for summary
judgment be denied.
Further, Locy’s argument that the “lack of any serious injury [as]
noted in the Court’s initial Decision and Order . . .” warrants granting
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summary judgment is rejected. (Dkt. 26-16, at pg. 13). The November
13, 2024, Decision and Order employed the term “serious medical
condition” in the context of Chief Judge Sannes’s evaluation of Best’s
Fourteenth Amendment deliberate medical indifference claim, not
Best’s Fourteenth Amendment excessive force claim. (Dkt. 8, at pg. 8).
Nowhere in the Court’s consideration of Best’s Fourteenth Amendment
excessive force claim did it address Best’s injuries.
Next, Locy’s argument that Best’s “documented lack of significant
medical treatment in his subsequent medical history” weighs in favor of
granting summary judgment is equally without merit. (Dkt. 26-16, at
pg. 13). Best argues that he suffered a “brutal beating” and a “brutal
lynching.” (Dkt. 29, at pgs. 3, 5). But medical records from shortly after
the incident show only a “swollen and bruised” left eye. (Nurse note,
Dkt. 26-14, at pg. 2); cf. Lemmo, 2011 WL 843974, at *5 (swelling and
bruising constitute de minimis injuries in excessive force claims). Best
also argues that he suffered internal bleeding. (Dkt. 29,at pg. 10).
However, medical records showed no other injuries after the incident.
(Nurse note, Dkt. 26-14, at pg. 2). Despite Defendants’ argument, “there
is no ‘de minimis injury’ exception to the excessive force doctrine.”
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Piatetsky v. Port Auth. of N.Y. & N.J., 2026 WL 1399468, at *12
(S.D.N.Y. May 19, 2026) (slip op.). “[The Second Circuit has] never held
that a court may grant summary judgment to officers on an excessive
force claim merely because the injuries were minor even where the force
was unreasonable.” Ketcham v. City of Mount Vernon, 992 F.3d 144, 150
(2d Cir. 2021); see also Sash v. United States, 674 F. Supp. 2d 531, 539–
40 (S.D.N.Y. 2009). A plaintiff's injuries “need not be serious in order to
give rise to a constitutional claim.” Ortiz v. Pearson, 88 F. Supp. 2d 151,
160 (S.D.N.Y. 2000). “It is the force used, not the injuries caused, which
must be determined to be de minimis as a matter of law.” Harding v.
Gould, No. 22-CV-6285, 2024 WL 3742688, at *6 (S.D.N.Y. Aug. 9,
2024) (cleaned up). Were it otherwise, such a rule “would grant a
windfall to officers who commit misconduct but could escape liability
based upon the hardiness of their victims.” Ketcham, 992 F.3d at 151.
Because there is an issue of fact as to what transpired in the
shower room between Locy and Best and whether the admitted use of
force was objectively reasonable, the Court recommends that summary
judgment be denied to the extent the Complaint alleges a Fourteenth
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Amendment excessive force claim arising from the shower room
encounter.
4. Holding Cell
It is undisputed that Best was placed in a holding cell after exiting
the shower room. (Best Depo., at pg. 54, Ossola Decl., Dkt. 26-8, at ¶ 16,
Dettmer Decl., Dkt. 26-13, at ¶ 12). Once in the holding cell, the
Complaint alleges that Best was “beat’n again by the Sgt. Lavean and
other[s] without the handcuffs but held down by two sheriffs and beat’n
with a special type [of] metal or plastic gloves on each finger . . .” (Dkt.
1, at pg. 5, Section V). At his deposition, Best testified that the “same
sheriffs that made [him] change [his] shirt came in with Lavean and 10
other sergeants” to the holding cell and “wanted [him] to sign []
documentation.” (Best Depo., at pg. 55). When Best refused:
Laveane put on the gloves, looked at [Best], and said do I need to
use these gloves?” And the gloves have plastic metal strips going
down. And they was some of the parts that caught [Best’s] face,
and did the damage to [Best’s] nose so bad that [Best] lost a piece
of [the] cartilage in [his] nose, and it’s still gone, and they beat
[Best] bad. They beat [Best] very bad.
(Best Depo., pg. 55).
Best also testified that he “remember[ed] Laveane, because his
jacket said Laveane, and [Best] had to watch him punch [Best] and beat
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[Best] bad inside the holding cell. (Best Depo., at pg. 48). While Best
has a recollection of Laveane purportedly using excessive force against
him in the holding cell, the record before the Court is devoid of any
proof suggesting that Locy was personally involved in whatever force
may have been used in the holding cell. “To establish a section 1983
claim, a plaintiff must establish a given defendant’s personal
involvement in the claimed violation in order to hold the defendant
liable in [their] individual capacity.” Warren v. Pataki, 823 F.3d 125,
136 (2d Cir. 2016) (internal quotation and citation omitted). In this
context, personal involvement is a defendant’s “direct participation, or
failure to remedy the alleged wrong after learning of it, or creation of a
policy or custom under which unconstitutional practices occurred or
gross negligence in managing subordinates.” Black v. Coughlin, 76 F.3d
72, 74 (2d Cir. 1996). To prove personal involvement, the plaintiff must
prove that the specific defendant, “through” “own individual actions,”
violated the Constitution. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020). Because Best cannot make any showing that Locy was
personally involved in whatever force may have been used in the
holding cell, the Court recommends that summary judgment be granted
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to the extent that the Complaint alleges a Fourteenth Amendment
excessive force claim against Locy arising out of the alleged incident in
the holding cell.
* * *
The District Court should deny Locy’s summary judgment motion
in part and grant it in part. Best has raised a genuine issue of fact as to
whether the force used by Locy in the shower room was objectively
reasonable. However, because Best admits under oath that Locy did not
use any force against him in his cell or in the hallway leading to the
shower room coupled with the fact that the record is bereft of any
evidence that Locy used any force against Best in the holding cell, the
Court recommends that the District Court grant summary judgment to
the extent that the Complaint alleges a Fourteenth Amendment claim
for excessive force in these specific areas of the J.C.C.F.
C. 	The District Court need not reach Locy’s qualified
immunity argument.
Locy argues that if the Court finds that his actions were
unconstitutional, he is still shielded from liability based on qualified
immunity. (Def. Memo of Law, Dkt. 26-16, at pgs. 6–7, 12). The Court
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recommends that the District Court need not reach Locy’s qualified
immunity argument at this juncture.
Because there are genuine issues of material fact regarding the
reasonableness of Locy’s use of force, summary judgment must also be
denied on qualified immunity grounds. See Scism v. City of
Schenectady, No. 18-CV-672 (TWD), 2021 WL 4458819, at *7 (N.D.N.Y.
Sept. 29, 2021) (citing Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d
756, 763; see also Gjenashaj v. City of New York, No. 19-CV- 4142, 2020
WL 7342723, at *4 (S.D.N.Y. Dec. 14, 2020) (denying summary
judgment on defendants’ qualified immunity claim because material
facts remain in dispute as to plaintiff’s excessive force claim); Bennett v.
Falcone, No. 05-CV-1358, 2009 WL 816830, at *6 (S.D.N.Y. Mar. 25,
2009) (“For the same reasons Plaintiff’s excessive force claim survives
summary judgment, the Court holds Defendants’ qualified immunity
claim insufficient.”).
D. 	The District Court need not reach Locy’s punitive
damages argument.
Locy also argues that the Court should dismiss Best’s request for
punitive damages. (Def. Memo of Law, Dkt. 26-16, at pgs. 12–13).
However, where, as here, a plaintiff “has provided sufficient evidence to
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22
overcome summary judgment [with respect to excessive force], the
Court cannot state as a matter of law that [the plaintiff] is not entitled
to punitive damages.” Lazaratos v. Ruiz, No. 00-CV-2221, 2003 WL
22283832, at *9 (S.D.N.Y. Sept. 30, 2003) (first alteration in original);
see also Woods v. City of Syracuse, No. 15-CV-027 (BKS/ATB), 2017 WL
11567919, at *14 (N.D.N.Y. Feb. 1, 2017); Lee v. Cty. of Onondaga, No.
13-CV-01285 (BKS/TWD), 2016 WL 9441472, at *10 (N.D.N.Y. Aug. 19,
2016). Accordingly, the Court recommends that Locy’s motion for
summary judgment on punitive damages be denied.
IV. 	CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that Locy’s motion for summary judgment
(Dkt. 26) be:
a. DENIED with respect to Best’s Fourteenth Amendment
claim for excessive force regarding the admitted use of
force in the shower room;
b. GRANTED to the extent the Complaint alleges a
Fourteenth Amendment excessive force claim for any
interaction between Best and Locy in the main hallway
and booking/intake area;
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c. 	GRANTED to the extent the Complaint alleges a
Fourteenth Amendment excessive force claim for any
interaction between Best and Locy in the holding cell;
d. DENIED as to Locy’s arguments that he shielded from
liability on the doctrine of qualified immunity; and
e. DENIED as to Best’s claim for punitive damages; and it
is further
RECOMMENDED, that the Complaint be DISMISSED against
Laveane WITH PREJUDICE; and it is further
ORDERED that the Clerk provide Best with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Under 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report. Such objections
shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN 14 DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)
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(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P.
72, 6(a).
Dated: June 11, 2026
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Aldo Contreras LIBERATI, Plaintiff,
v.
GRAVELLE, Sgt., Clinton County Jail, Defendant.
No. 9:12–CV–00795 (MAD/DEP).
|
Sept. 24, 2013.
Attorneys and Law Firms
Aldo Contreras Liberati, Philipsburg, PA, pro se.
Lemire, Johnson Law Firm, Gregg T. johnson, Esq, Mary E.
Kissane, Esq, of Counsel, Malta, NY, for Defendant.
ORDER
MAE A. D'AGOSTINO, District Judge.
*1 On May 14, 2012, Plaintiff commenced this civil rights
action pursuant to 42 U.S.C. § 1983, alleging that upon
arrival at Clinton County Correctional Facility, Defendant
used excessive force against Plaintiff, causing him injury.
See Dkt. No. 1. On December 28, 2012, Defendant moved
for summary judgment seeking dismissal of Plaintiff's claim
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
See Dkt. No. 22–7 at 5. Defendant argues that dismissal
is appropriate based on (1) plaintiff's failure to exhaust
the available administrative remedies at Clinton before
commencing suit; (2) the record evidence, from which no
reasonable factfinder could conclude that he used force
that violated Plaintiff's constitutional rights; and (3) his
entitlement to qualified immunity from suit. See generally
Dkt. No. 22–7. Plaintiff failed to oppose Defendant's motion
for summary judgment. See Dkt. No. 31 at 6.
In a Report–Recommendation and Order dated August 9,
2013, Magistrate Judge Peebles recommended that the Court
grant Defendant's motion for summary judgment and dismiss
Plaintiff's complaint. See Dkt. No. 31 at 2. Specifically,
although Magistrate Judge Peebles found that questions of
fact preclude granting the motion on exhaustion grounds, he
found that the motion should be granted on the merits because
no reasonable factfinder could conclude that Defendant
violated Plaintiff's Eighth Amendment rights. See id. at 21.
Neither party objected to Magistrate Judge Peebles Report–
Recommendation and Order.
On February 5, 2012, Plaintiff was transferred to Clinton
Correctional Facility (“Clinton”) located in Dannemora, New
York. See Dkt. No. 22–2 at 3. During the transfer, the
corrections officers escorting Plaintiff called Clinton to notify
them that Plaintiff was difficult and combative. See id. Upon
arrival, the staff at Clinton prepared Plaintiff for housing by
performing the routine intake and booking procedures. See id.
at 4. Part of the normal procedure was to conduct a patdown
search to detect any contraband that was not detected by the
“BOSS” chair. See id. at 3. During the pat-down, Plaintiff
disobeyed orders on at least two occasions when he refused
to face and keep his hands on the wall. See id. at 4.
When the Clinton officers realized that Plaintiff had a second
layer of pants underneath his jeans, they instructed him to
remove them in a private changeout room. See id. at 4. After
removal of the pants Plaintiff refused to remain on the wall, so
they attempted to physically restrain him. See id. at 5. Upon
hearing this commotion, Defendant entered the changeout
room to assist with the situation. See id. He observed Plaintiff
resisting the officers that were trying to restrain him. See id.
Defendant administered “a single, one second, application of
O.C. spray towards other officers to continue to gain control
over Plaintiff and secure his hands.” Id . After he administered
the spray, Defendant placed it back in his holster and retreated
to allow the other officers to gain control of Plaintiff. See id.
Although Defendant remained in the room, he used no further
force against him other than to place his feet near the Plaintiff
to prevent him from putting his hands under his body. See
id. at 5–6. When the Plaintiff was fully secured, Defendant
left the room. See id. at 6. Plaintiff was then escorted to a
holding cell to provide him an opportunity to calm down,
decontaminate his eyes with eye wash and see medical staff
at the facility. See id.
*2 Plaintiff's verified complaint alleges that Defendant
punched him in the head twice and that he did not file a
grievance regarding these allegations because the corrections
officers at Clinton refused to provide him with the necessary
form. See id. at 2.
When a party files specific objections to a magistrate judge's
report-recommendation, the district court makes a “de novo
determination of those portions of the report or specified
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proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1). However when a party
files “[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the
magistrate judge,” the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08–CV–322, 2011
WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and
footnote omitted). After the appropriate review, “the court
may accept, reject, or modify, in whole or in part, the findings
or recommendation made by the magistrate judge.” 28 U.S.C.
§ 636(b) (1).
A court may grant a motion for summary judgment only if
it determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the movant as a matter of law.
See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d
Cir.1994) (citations omitted). When analyzing a summary
judgment motion, the court “cannot try issues of fact; it can
only determine whether there are issues to be tried.” Id. at 36–
37 (quotation and other citation omitted). Morever, it is well-
settled that a party opposing a motion for summary judgment
may not simply rely on the assertions in its pleadings. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
Fed.R.Civ.P. 56(c)(e)).
In assessing the record to determine whether any such issues
of material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106
S.Ct. 2502, 2513–14, 91 L.Ed.2d 202 (1986)) (other citations
omitted). Where the non-movant either does not respond
to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving
party's Rule 56.1 statement; rather the court must be satisfied
that the citations to evidence in the record support the
movant's assertions. See Giannullo v. City of N.Y., 322 F.3d
139, 143 n. 5 (2d Cir.2003) (holding that not verifying in the
record the assertions in the motion for summary judgment
“would derogate the truth-finding functions of the judicial
process by substituting convenience for facts”).
“[I]n a pro se case, the court must view the submissions by a
more lenient standard than that accorded to ‘formal pleadings
drafted by lawyers.’ “Govan v. Campbell, 289 F.Supp.2d 289,
295 (N.D.N.Y.2007) (quoting Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (other citations
omitted). The Second Circuit has opined that the court is
obligated to “make reasonable allowances to protect pro se
litigants” from inadvertently forfeiting legal rights merely
because they lack a legal education. Govan v. Campbell, 289
F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir.1983)). However, this does not mean
that a pro se litigant is excused from following the procedural
requirements of summary judgment. See id. at 295 (citing
Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484,
*1 (S.D.N.Y. May 16, 2001)). Specifically, “a pro se party's
‘bald assertion,’ completely unsupported by evidenced” is
not sufficient to overcome a motion for summary judgment.”
Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (citing
Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)).
*3 Upon review of Magistrate Judge Peebles' Report–
Recommendation and Order, the Court finds that the report
correctly determined that Defendant's motion for summary
judgment should be granted. In support of the motion for
summary judgment, Defendant argues that he did not violate
Plaintiff's Eighth Amendment rights because there is no
record evidence that he punched Plaintiff in the head or used
excessive force. See Dkt. No. 22–7 at 8–11. To state a claim
for excessive force, a plaintiff must show defendant's acts
are “incompatible with ‘the evolving standards of decency
that mark the process of a maturing society,’ or involve[s]
the unnecessary and wanton infliction of pain[.]' “ Estelle v.
Gamble, 429 U.S. 97, 102–03 (1976) (quoting Trop v. Dulles,
356 U.S. 86, 100–01 (1958); Gregg v. Georgia, 428 U.S.
153, 169–73 (1976) (internal citations omitted)). Even though
the Eighth Amendment does not mandate that prisons be
comfortable, they must be sufficiently humane. See Farmer
v. Brennan, 511 U.S. 825, 832 (1994).
“A claim of cruel and unusual punishment in violation of
the Eighth Amendment has two componentsone subjective,
focusing on the defendant's motive for his conduct, and
the other objective, focusing on the conduct's effect.”
Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (citing
Hudson v. McMillian, 503 U.S. 1, 7–8 (1992); Blyden v.
Mancusi, 186 F.3d 252, 262 (2d Cir.1999)). The subjective
element is satisfied when plaintiff demonstrates that “the
defendant had the necessary level of culpability, shown by
actions characterized by wantonness in light of the particular
circumstances surrounding the alleged conduct.” Wright, 554
F.3d at 268 (internal quotation marks omitted). This inquiry
looks at “whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically
for the very purpose of causing harm.” Hudson, 503 U.S. at 6
(quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)).
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The objective element examines the harm inflicted in relation
to “contemporary standards of decency.” Wright, 554 F.3d at
268 (quoting Hudson, 503 U.S. at 8). Malicious or sadistic
harm caused by prison officials, notwithstanding the extent
of injury, always violates the “contemporary standards of
decency.” Wright, 554 F.3d at 268–69 (quoting Hudson, 503
U.S. at 9). The amount of force is examined in proportion to
the need reasonably perceived by prison officials and what,
if anything, did they do to limit such force. See Hudson, 503
U.S. at 7; Whitley, 475 U.S. at 321; Romano v. Howarth, 998
F.2d 101, 105 (2d Cir.1993).
In the present matter, no evidence in the record suggests that
Defendant, Gravelle used force maliciously or sadistically
against Plaintiff. The record reveals that action was initiated
against Plaintiff in response to his repeated failures to obey
orders to keep his hands on the wall during the pat-down
search. Defendant administered a single O.C. spray to assist
the corrections officers and then moved away from Plaintiff,
using no more force or spray than was necessary to control
Plaintiff. The undisputed material facts make clear that no
reasonable factfinder could conclude that Defendant used
malicious or sadistic force against Plaintiff because such
actions were taken in response to Plaintiff's failure to obey
orders and the need to restore order. Although Plaintiff's claim
that Defendant punched him in the head would constitute
malicious or sadistic force in violation of Plaintiff's Eighth
Amendment rights, there is no evidence in the record to
support such claim. Therefore, Plaintiff fails to state a claim
that Defendant violated his Eighth Amendment rights.
*4 After careful review of Magistrate Judge Peebles'
Report–Recommendation and Order, the parties' parties'
submissions and the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Magistrate Judge Peebles' August 9, 2013
Report–Recommendation and Order is ADOPTED in its
entirety; and the Court further
ORDERS that Defendant's motion for summary judgment
(Dkt. No. 22) is GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum–Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate Judge.
Pro se plaintiff Aldo Conteras Liberati has commenced this
action pursuant to 42 U.S.C. § 1983, alleging the deprivation
of his rights under the United States Constitution. In his
complaint, plaintiff alleges that, upon his arrival at the Clinton
County Correctional Facility (“Clinton”), he suffered injuries
arising from the use of excessive force by defendant Gravelle,
a sergeant corrections officer stationed at Clinton at the times
relevant to this action.
Currently pending before the court is defendant's motion for
summary judgment on the merits, and based also on plaintiff's
failure to exhaust the available administrative remedies and
defendant's assertion that he is entitled to qualified immunity
from suit. For the reasons set forth below, I recommend that
defendant's motion be granted, and plaintiff's complaint be
dismissed.
I. BACKGROUND 1
1 In light of the procedural posture of the case, the
following recitation is derived from the record now
before the court, with all inferences drawn and
ambiguities resolved in plaintiff's favor. Terry v.
Ashcroft, 336 F.3d 128, 137 (2d Cir.2003).
On February 5, 2012, plaintiff was transported to Clinton,
located in Dannemora, New York, by United States
immigration officers. Gravelle Decl. (Dkt. No. 22–2) at ¶ 8.
Prior to his arrival at Clinton, immigration officers called
Clinton to notify staff that, during the transport, plaintiff was
difficult and combative. Id. Upon arriving at Clinton, facility
staff began to prepare plaintiff for housing by subjecting him
to routine intake and booking procedures. Id. at ¶ 10. This
process included scanning plaintiff using a “BOSS” chair,
which is designed to detect any metal contraband, as well as
pat-searching him in a private room called the “changeout
room” for any contraband not detected by the BOSS chair. 2
Id. at ¶¶ 3, 10.
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2 A camera is installed in the changeout room. Id. at ¶
10. In support of his motion, defendant submitted,
as Exhibit A to his declaration, a copy of the
recording from plaintiff's intake during the pat-
search on February 5, 2012. Gravelle Decl. Exh. A
(traditionally filed).
During the pat-search, plaintiff was directed by Clinton
corrections officers to face and keep his hands on the wall.
Gravelle Decl. (Dkt. No. 22–2) at ¶ 11. On at least two
occasions, however, plaintiff disobeyed this order, and turned
toward the officer conducting the search. Gravelle Decl. Exh.
A (traditionally filed) at 0:33, 1:05. At some point during
the search, the officer performing the pat-down discovered
that plaintiff was wearing a second layer of pants underneath
his jeans. Gravelle Decl. (Dkt. No. 22–2) at ¶ 12. Plaintiff
was then directed to move into a more private part of the
changeout room and remove his jeans. Id. When plaintiff
refused to remain on the wall after he removed his jeans,
several Clinton corrections officers attempted to take physical
control of the plaintiff to restrain him. Id.; Gravelle Decl. Exh.
A (traditionally filed) at 1:11.
*5 Moments after the pat-search began, defendant Gravelle,
whose office is located nearby the changeout room, heard
the commotion arising from plaintiff's search, and went to
assist the other officers. Gravelle Decl. (Dkt. No. 22–2) at ¶
13; Gravelle Decl. Exh. A (traditionally filed) at 1:15. Upon
entering the changeout room, defendant observed plaintiff
resisting the officers attempting to restrain plaintiff. Gravelle
Decl. (Dkt. No. 22–2) at ¶ 13. Defendant immediately
administered one, single application of “O.C. spray” to regain
control of plaintiff. 3 Gravelle Decl. (Dkt. No. 22–2) at
¶¶ 13, 14; Gravelle Decl. Exh. A (traditionally filed) at
1:17. Defendant then moved back away from Liberati and
allowed the other corrections officers to secure plaintiff's
hands. Gravelle Decl. (Dkt. No. 22–2) at ¶ 13; Gravelle
Decl. Exh. A (traditionally filed) at 1:18. Although defendant
remained in the changeout room until plaintiff was secured,
he did not use any further force against him. Gravelle Exh. A
(traditionally filed) at 1:18–2:16. After plaintiff was secured,
Clinton corrections officers escorted him to a holding cell to
provide him opportunity to clam down, following which his
eyes were decontaminated with eye wash and he was seen by
medical staff at the facility. Gravelle Dec. (Dkt. No. 22–2) at
¶ 15.
3 The term “O.C. spray” is not defined in defendant's
motion papers. See, e.g., Gravelle Decl. (Dkt. No.
22–2); Def.'s L.R. 7 .1(a)(3) Statement (Dkt. No.
22–6).
In plaintiff's verified complaint, he alleges that defendant
punched him twice in the head. Compl. (Dkt. No. 1) at 8. He
also contends that he did not file a grievance regarding these
allegations due to the refusal of corrections officers at Clinton
to provide him with the necessary form. Id. at 2.
II. PROCEDURAL HISTORY:
Plaintiff commenced this action on May 14, 2012, by
the filing of a complaint, motion to stay deportation, and
application to proceed in forma pauperis (“IFP”). Dkt. Nos.
1–3. Plaintiff's complaint is comprised of eight claims, and
names six defendants, including defendant Gravelle. See
generally Compl. (Dkt. No. 1). On August 27, 2012, District
Judge Mae A. D'Agostino issued a decision and order granting
plaintiff's request to proceed IFP, denying his motion to stay
deportation, and dismissing all claims with the exception of
plaintiff's Eighth Amendment excessive force cause of action
asserted solely against defendant Gravelle. Dkt. No. 9.
Now that discovery in this matter is closed, the remaining
defendant, Sergeant Gravelle, has moved for the entry of
summary judgment, dismissing plaintiff's remaining claim,
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Dkt. No. 22. Defendant argues that dismissal is appropriate
based on (1) plaintiff's failure to exhaust the available
administrative remedies at Clinton before commencing suit;
(2) the record evidence, from which no reasonable factfinder
could conclude that he used force that violated plaintiff's
constitutional rights; and (3) his entitlement to qualified
immunity from suit. See generally Def.'s Memo. of Law (Dkt.
No. 22–7).
*6 Defendant's motion, which plaintiff has not opposed, is
now ripe for determination and has been referred to me for
the issuance of a report and recommendation, pursuant to 28
U.S.C. § 636(b)(1)(B) and Northern District of New York
Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Plaintiff's Failure to Oppose Defendant's Motion
The court's local rules require that a party seeking summary
judgment must submit a statement of material facts that it
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contends are undisputed by the record evidence. N.D.N.Y.
L.R. 7.1(a)(3). The local rules also instruct the non-moving
party to respond to the moving party's statement of material
facts by specifically admitting or denying each of the facts
listed in the moving party's statement. Id. The purpose
underlying this rule is to assist the court in framing the issues
and determining whether there exist any triable issues of
fact that would preclude the entry of summary judgment.
Anderson v. Dolgencorp of N.Y., Nos. 09–CV0360, 09–CV–
0363, 2011 WL 1770301, at *1 n. 2 (N.D.N.Y. May 9,
2011) (Sharpe, J.). 4 To meaningfully fulfill this purpose, it is
essential for the court to have the benefit of both the moving
party's statement and an opposition statement from the non-
moving party.
4 Copies of all unreported decisions cited have been
appended to this report for the convenience of
the pro se plaintiff. [Editor's Note: Attachments of
Westlaw case copies deleted for online display.]
In this instance, defendant Gravelle has complied with local
rule 7.1(a)(3), providing a statement setting forth twenty-
three facts as to which, he contends, there is no genuine
triable issue. Def.'s L.R. 7.1(a)(3) Statement (Dkt. No. 22–
6). Plaintiff, however, has failed to respond either to that
statement, or to defendant's motion generally. 5 See generally
Docket Sheet.
5 Plaintiff's response was due on January 22, 2013.
Notice to Plaintiff (Dkt. No. 24). On July 24, 2013,
the court received a letter from plaintiff requesting
leave to file a response in opposition to the pending
motion. Dkt. No. 29. Because plaintiff's request
was over six-months late, and he was adequately
put on notice previously of the consequences of
failing to respond to defendant's motion, and in
light of the unfair prejudice that defendant would
incur as a result of such a delayed response, I denied
that motion. Text Order Dated July 24, 2013.
By its terms, local rule 7.1 provides, in part, that “[t]he
Court shall deem admitted any properly supported facts set
forth in the Statement of Material Facts that the opposing
party does not specifically controvert.” N.D.N.Y. L.R. 7.1(a)
(3) (emphasis in original). Courts in this district have
routinely enforced this provision in cases where a non-
movant fails to properly respond. See, e.g., Elgamil v.
Syracuse Univ., No. 99–CV–0611, 2000 WL 1264122, at
*1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases).
Undeniably, pro se litigants are entitled to some measure
of forbearance when defending against summary judgment
motions. Jemzura v. Public Svc. Comm'n, 961 F.Supp. 406,
415 (N.D.N.Y.1997) (McAvoy, C.J.). The deference owed to
pro se litigants, however does not extend to relieving them of
the ramifications associated with the failure to comply with
the court's local rules. Robinson v. Delgado, No. 96–CV0169,
1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J.,
adopting report and recommendation by Hurd, M.J.). Stated
differently, “a pro se litigant is not relieved of his duty to meet
the requirements necessary to defeat a motion for summary
judgment.” Latouche v. Tompkins, No. 09–CV–0308, 2011
WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, C.J.).
*7 Here, because plaintiff was warned of the consequences
of failing to properly respond to defendant's rule 7.1(a)(3)
statement, Dkt. Nos. 22–1, 24–1, but has nonetheless failed
to do so, I have construed defendant's facts contained therein
as true to the extent they are supported by accurate record
citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see
also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). As to
any facts not contained in defendant's rule 7.1(a)(3) statement,
in light of the procedural posture of this case, the court is
“required to resolve all ambiguities and draw all permissible
factual inferences” in favor of plaintiff. Terry, 336 F.3d at 137.
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of
the Federal Rules of Civil Procedure. Under that provision,
the entry of summary judgment is warranted “if the movant
shows that there is no genuine dispute as to any material facts
and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir.2004). A fact
is “material” for purposes of this inquiry, if it “might affect
the outcome of the suit under the governing law.” Anderson,
477 U.S. at 248; see also Jeffreys v. City of New York, 426
F.3d 549, 553 (2d Cir.2005) (citing Anderson ). A material
fact is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden
of demonstrating that there is no genuine dispute of material
fact to be decided with respect to any essential element of the
claim in issue, and the failure to meet this burden warrants
denial of the motion. Anderson, 477 U.S. at 250 n. 4; Sec. Ins.
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Co., 391 F .3d at 83. In the event this initial burden is met, the
opposing party must show, through affidavits or otherwise,
that there is a material dispute of fact for trial. Fed.R.Civ.P.
56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must
resolve any ambiguities, and draw all inferences, in a light
most favorable to the nonmoving party. Jeffreys, 426 F.3d at
553; Wright v. Coughlin, 132 F.3d 133, 137–38 (2d Cir.1998).
The entry of summary judgment is justified only in the event
of a finding that no reasonable trier of fact could rule in
favor of the non-moving party. Bldg. Trades Employers' Educ.
Ass'n v. McGowan, 311 F.3d 501, 507–08 (2d Cir.2002); see
also Anderson, 477 U.S. at 250 (finding summary judgment
appropriate only when “there can be but one reasonable
conclusion as to the verdict”).
C. Exhaustion of Available Administrative Remedies
*8 In his motion, defendant Gravelle argues that, because
plaintiff did not file a grievance addressing the issues now
raised in this action before commencing suit and pursue that
grievance through the administrative grievance procedure
available at Clinton, he is procedurally barred from pursuing
this action. Def.'s Memo of Law (Dkt. No. 22–7) at 11–12.
The Prison Litigation Reform Act of 1996 (“PLRA”), Pub.L.
No. 104–134, 110 Stat. 1321 (1996), which imposes several
restrictions on the ability of prisoners to maintain federal
civil rights actions, expressly requires that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S.
81, 84 (2006) (“Exhaustion is ... mandatory. Prisoners must
now exhaust all ‘available’ remedies[.]”); Hargrove v. Riley,
No. 04–CV–4587, 2007 WL 389003, at *5–6 (E.D.N.Y.
Jan. 31, 2007) (“The exhaustion requirement is a mandatory
condition precedent to any suit challenging prison conditions,
including suits brought under Section 1983.”). “[T]he PLRA's
exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002).
The requirement that inmates exhaust administrative
remedies before filing a lawsuit, however, is not a
jurisdictional requirement. Richardson v. Goord, 347 F.3d
431, 434 (2d Cir.2003). Instead, failure to exhaust is an
affirmative defense under the PLRA, and “inmates are not
required to specifically plead or demonstrate exhaustion in
their complaints.” 6 Jones v. Bock, 549 U.S. 199, 216
(2007). In the event a defendant establishes that the inmate-
plaintiff failed to complete the administrative review process
prior to commencing the action, the plaintiff's complaint is
subject to dismissal. See Woodford, 548 U.S. at 93 (“[W]e
are persuaded that the PLRA exhaustion requirement requires
proper exhaustion.”). “Proper exhaustion” requires a plaintiff
to procedurally exhaust his claims by “compl[ying] with the
system's critical procedural rules.” Woodford, 548 U.S. at 95;
see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir.2007) (citing
Woodford ). 7
6 In this case, defendant Gravelle raised failure to
exhaust administrative remedies as a defense in his
answer to plaintiff's complaint. Dkt. No. 14 at ¶ 14.
7 While placing prison officials on notice of a
grievance through less formal channels may
constitute claim exhaustion “ ‘in a substantive
sense,’ “ an inmate plaintiff nonetheless must
meet the procedural requirement of exhausting
his available administrative remedies within the
appropriate grievance construct in order to satisfy
the PLRA. Macias, 495 F.3d at 43 (quoting
Johnson v. Testman, 380 F.3d 691, 697–98 (2d
Cir.2004) (emphasis omitted)).
There are grievance procedures in place and available to any
Clinton inmate who desires to complain regarding prison
conditions at the facility. Gravelle Decl. (Dkt. No. 22–2) at
¶ 17; Johnson Decl. Exh. B (Dkt. No. 22–5). In this case
plaintiff's complaint, which is signed under penalty of perjury,
and thus has the same force and effect as an affidavit, 8 alleges
that he requested a grievance form from Clinton corrections
officers but they refused to provide one to him. Compl. (Dkt.
No. 1) at 4, 8. In support of his motion, defendant Gravelle
avers that plaintiff did not file a grievance regarding the events
giving rise to this action while at Clinton. Gravelle Decl. (Dkt.
No. 22–2) at ¶ 17.
8 18 U.S.C. § 1746; see also Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir.1995) (“A verified complaint
is to be treated as an affidavit for summary
judgment purposes[.]”).
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*9 Although it is clear from the record that plaintiff failed to
avail himself of the administrative remedies available to him,
his failure to do so does not warrant dismissal of plaintiff's
complaint without further inquiry. In a series of decisions
rendered since enactment of the PLRA, the Second Circuit
has prescribed a three-part test for determining whether
dismissal of an inmate plaintiff's complaint is warranted for
failure to satisfy the PLRA's exhaustion requirement. See,
e.g., Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004);
see also Macias, 495 F.3d at 41. Those decisions instruct
that, before dismissing an action as a result of a plaintiff's
failure to exhaust, a court must first determine whether the
administrative remedies were available to the plaintiff at the
relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at
686. In the event of a finding that a remedy existed and was
available, the court must next examine whether the defendant
has forfeited the affirmative defense of non-exhaustion by
failing to properly raise or preserve it, or whether, through his
own actions preventing the exhaustion of plaintiff's remedies,
he should be estopped from asserting failure to exhaust as a
defense. Id. In the event the exhaustion defense survives these
first two levels of scrutiny, the court must examine whether
the plaintiff has plausibly alleged special circumstances to
justify his failure to comply with the applicable administrative
procedure requirements. Id.
In this instance, although there is no record evidence to
suggest that grievance procedures at Clinton were not fully
available to plaintiff while he was at the facility, plaintiff
does allege that corrections officers stationed at the facility
refused to provide him with a grievance form. Under ordinary
circumstances, this could justify a recommendation to the
assigned district judge that she hold a hearing to develop
plaintiff's allegation regarding special circumstances pursuant
to Messa v. Goord, 652 F.3d 305 (2d Cir.2011). However,
as is discussed more fully below, because I recommend that
defendant's motion be granted based on a finding that no
reasonable factfinder could conclude that defendant violated
plaintiff's rights, a determination of whether plaintiff should
be precluded from bringing this action based on a failure to
exhaust administrative remedies is not necessary.
D. Plaintiff's Excessive Force Claim
In support of defendant's motion, defendant Gravelle argues
that there is no record evidence to support the allegation that
he punched plaintiff, and that the record instead supports a
finding that defendant's use of force against plaintiff did not
violate his Eighth Amendment rights. Def.'s Memo. of Law
(Dkt. No. 22–7) at 8–11.
Plaintiff's excessive force claim is grounded in the
Eighth Amendment, which prohibits punishment that is
“incompatible with ‘the evolving standards of decency that
mark the progress of a maturing society,’ or ‘involve[s] the
unnecessary and wanton infliction of pain[.]’ “ Estelle v.
Gamble, 429 U.S. 97, 102–03 (1976) (quoting Trop v. Dulles,
356 U.S. 86, 100–01 (1958) and Gregg v. Georgia, 428
U.S. 153, 169–73 (1976) (internal citations omitted)). While
the Eighth Amendment “ ‘does not mandate comfortable
prisons,’ neither does it permit inhumane ones.” Farmer
v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v..
Chapman, 452 U.S. 337, 349 (1981)).
*10 A plaintiff's constitutional right against cruel and
unusual punishment is violated by an “unnecessary and
wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (internal quotation marks omitted); Griffin v. Crippen,
193 F.3d 89, 91 (2d Cir.1999). “A claim of cruel and unusual
punishment in violation of the Eighth Amendment has two
components—one subjective, focusing on the defendant's
motive for his conduct, and the other objective, focusing on
the conduct's effect.” Wright v. Goord, 554 F.3d 255, 268
(2d Cir.2009) (citing Hudson, 503 U.S. at 7–8 and Blyden
v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999)). To satisfy the
subjective requirement in an excessive force case, the plaintiff
must demonstrate that “the defendant had the necessary level
of culpability, shown by actions characterized by wantonness
in light of the particular circumstances surrounding the
challenged conduct.” Wright, 554 F.3d at 268 (internal
quotation marks omitted). This inquiry turns on “whether
force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose
of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6
(1992) (internal quotation marks omitted), accord, Blyden,
186 F.3d at 262. The Supreme Court has emphasized that
the nature of the force applied is the “core judicial inquiry”
in excessive force cases—not “whether a certain quantum
of injury was sustained.” Wilkins v. Gaddy, 559 U.S. 34,
37 (2010) (per curiam). Accordingly, when considering the
subjective element of the governing Eighth Amendment test,
a court must be mindful that the absence of serious injury,
though relevant, does not necessarily negate a finding of
wantonness. Wilkins, 559 U.S. at 37; Hudson, 503 U.S. at 9.
Additionally, courts must bear in mind that “[n]ot every
push or shove, even if it later may seem unnecessary
in the peace of a judge's chambers, violates a prisoner's
constitutional rights.' Romano v. Howarth, 998 F.2d 101, 105
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(2d Cir.1993) (internal quotation marks omitted); see also
Griffin, 193 F.3d at 91. “The Eighth Amendment's prohibition
of cruel and unusual punishments necessarily excludes from
constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the
conscience of mankind.' Hudson, 503 U.S. at 9–10 (internal
quotation marks omitted).
“The objective component [of the excessive force analysis] ...
focuses on the harm done, in light of ‘contemporary standards
of decency.” Wright, 554 F.3d at 268 (quoting Hudson,
503 U.S. at 8); see also Blyden, 186 F.3d at 263 (finding
the objective component “context specific, turning upon
‘contemporary standards of decency”). In assessing this
component, a court must ask whether the alleged wrongdoing
is objectively harmful enough to establish a constitutional
violation. Wilson v. Seiter, 501 U.S. 294, 303 (1991), accord
Hudson, 503 U.S. at 8; see also Wright, 554 F.3d at 268. “But
when prison officials use force to cause harm maliciously
and sadistically, ‘contemporary standards of decency always
are violated. This is true whether or not significant injury is
evident.” Wright, 554 F.3d at 268–69 (quoting Hudson, 503
U.S. (alterations omitted)). The extent of an inmate's injury is
but one of the factors to be considered in determining whether
a prison official's use of force was “unnecessary and wanton”
because “injury and force ... are imperfectly correlated[.]”
Wilkins, 559 U.S. at 38. In addition, courts consider the need
for force, whether the force was proportionate to the need,
the threat reasonably perceived by the officials, and what, if
anything, the officials did to limit their use of force. Hudson,
503 U.S. at 7; Whitley, 475 U.S. at 321; Romano, 998 F.2d
at 105.
*11 Finally, on a motion for summary judgment, where
the record evidence could reasonably permit a rational
factfinder to find that corrections officers used force
maliciously and sadistically, dismissal of an excessive
force claim is inappropriate. Wright, 554 F.3d at 269
(citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003)
(reversing summary dismissal the plaintiff's complaint,
though suggesting that prisoner's evidence of an Eighth
Amendment violation was “thin” as to his claim that a
corrections officer struck him in the head, neck, shoulder,
wrist, abdomen, and groin, where the “medical records after
the ... incident with [that officer] indicated only a slight
injury”)).
In this case, although plaintiff's complaint alleges that
defendant Gravelle punched him twice in the head, there is
no record evidence to support this claim. Compl. (Dkt. No.
1) at 8. Instead, the record reveals that defendant used O.C.
spray against plaintiff on one occasion during the course of
an altercation with corrections officers, while those officers
attempted to gain control over him. The video recording
submitted in support of defendant's motion shows defendant
coming into the changeout room after plaintiff was already
on the ground with several officers trying to restrain him.
Defendant quickly applied the O.C. spray to plaintiff's face,
and then moved away from plaintiff and the other officers.
According to defendant, corrections officers initiated the
use of force against plaintiff as a result of his failure to
obey orders to keep his hands on the wall during the pat-
search. Defendant's use of force lasted a matter of seconds,
and he sprayed plaintiff only to assist corrections officers
in restraining him. In addition, although defendant states
that plaintiff was seen by medical staff at Clinton following
the incident, nothing in the record, including plaintiff's
complaint, indicates that plaintiff suffered a physical injury
as a result of the incident. In light of all of this record
evidence, I find that no reasonable factfinder could conclude
that defendant used force against plaintiff maliciously or
sadistically, or for any other purpose than restoring order.
See Kopy v. Howard, No. 07–CV0417, 2010 WL 3808677,
at *3 (N.D.N.Y. Aug. 11, 2010) (Treece, M.J.), report and
recommendation adopted by 2010 WL 3807166 (N.D .N.Y.
Sept. 21, 2010) (Hurd, J.) (granting summary judgment where
the record evidence demonstrated that the defendants used
pepper spray on the plaintiff only once after plaintiff was
repeatedly ordered to return to his cell and plaintiff suffered
no injuries). Accordingly, I recommend that defendant's
motion be granted. 9
9 Because I recommend dismissal of plaintiff's
complaint based on the merits, I have
not considered defendant's qualified immunity
argument.
IV. SUMMARY AND RECOMMENDATION
In defendant's motion, he challenges the legal sufficiency of
plaintiff's excessive force claim. Because the record contains
a dispute of material fact as to whether plaintiff's failure to
exhaust available administrative remedies may be excused,
defendant is not entitled to dismissal on that basis. However,
after a careful review of the record evidence, including a video
recording of defendant's use of force, I find that no reasonable
factfinder could conclude that defendant violated plaintiff's
Eighth Amendment rights.
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*12 Based upon the foregoing, it is hereby respectfully
RECOMMENDED that defendant's motion for summary
judgment (Dkt. No. 22–7) be GRANTED, and that plaintiff's
complaint be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such
objections must be filed with the clerk of the court within
FOURTEEN days of service of this report. FAILURE
TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 86 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a
copy of this report and recommendation upon the parties in
accordance with this court's local rules.
All Citations
Not Reported in F.Supp.2d, 2013 WL 5372872
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Liberati v. Gravelle
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:12cv00795
LIBERATI v. CLINTON COUNTY ET AL
— N.D.N.Y. May 14, 2012 Docket
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Liberati v. Gravelle
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Liberati v. Gravelle
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 36 of 177

Jackson v. Moore, Not Reported in Fed. Supp. (2023)
2023 WL 4710869
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4710869
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Dumar JACKSON, Plaintiff,
v.
N. MOORE, Defendant.
9:21-CV-1001 (GTS/ATB)
|
Signed April 14, 2023
Attorneys and Law Firms
DUMAR JACKSON, Plaintiff, pro se.
RACHAEL S. OUIMET, Assistant Attorney General, for
Defendant.
REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 In this pro se civil rights action, plaintiff alleges
that the defendant violated his Eighth Amendment rights
when he failed to protect plaintiff from another inmate.
Presently before the court is defendant Correctional Officer
(“C.O.”) Moore's motion for summary judgment. (Dkt. No.
16). This matter has been referred to me for Report and
Recommendation by United States District Judge Glenn T.
Suddaby, pursuant to 28 U.S.C. § 636(b) and Local Rule
N.D.N.Y. 72.3(c). For the reasons set forth below, this court
will recommend granting defendant's motion and dismissing
the complaint in its entirety.
I. Background
A. Procedural History
In this civil rights action, plaintiff alleges a constitutional
violation occurred while he was incarcerated at Clinton
Correctional Facility (“Clinton C.F.”), in the custody
of the New York State Department of Corrections and
Community Supervision (“DOCCS”). Plaintiff filed the
original complaint on September 10, 2021. (Dkt. No. 1). On
October 25, 2021, the court issued a Decision and Order
granting plaintiff's application to proceed in the action in
forma pauperis (“IFP”), and conditionally dismissing the
original complaint because it failed to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915 and
28 U.S.C. § 1915A. (Dkt. No. 4). The court granted plaintiff
leave to amend his complaint to “correct[ ] the pleading
defects” identified with his original complaint. (Id. at 10).
Plaintiff availed himself of the opportunity to amend, and
the court received plaintiff's amended pleading on or about
November 18, 2021. (Dkt. No. 6, “Am. Compl.”).
On February 9, 2022, I determined, pursuant to my initial
review of the complaint, that plaintiff's amended complaint
was accepted for filing and that the only active defendant was
C.O. Moore. (Dkt. No. 7 at 3). C.O. Moore filed an answer
to the amended complaint on April 14, 2022. (Dkt. No. 12).
On December 15, 2022, defendant filed this instant motion
for summary judgment (Dkt. No. 16), to which plaintiff
responded on February 16, 2023 (Dkt. No. 20).
B. Summary of Complaint
The complaint alleges that on September 6, 2018, while
plaintiff was confined in Clinton C.F., he was attacked by
another inmate when they were released from their keep-
lock cells at the same time. (Am. Comp. at 4). Although
facility policies and procedures prohibited C.O. Moore from
releasing the other inmate “until [plaintiff] was ... back in
general population,” C.O. Moore nevertheless released both
inmates simultaneously, knowing that plaintiff did not have
an escort at the time. Id. C.O. Moore also “knew there was a
race war going on in [Clinton C.F.] with the bloods and the
Spanish gangs and let [plaintiff] out of [his] cell with a known
gang member posed [sic] a substantial risk of serious harm
to [him].” Id. Although C.O. Moore observed the inmate run
into plaintiff's cell and attack him, C.O. Moore “did nothing
to prevent it from happening.” Plaintiff was returned to keep-
lock after the incident and remained there for an additional 70
days, until November 15, 2018. (Dkt. No. 16-3, Pl.’s Dep. at
18, 27, 79, 88, 95; Internal Movement History, Dkt. No. 20-1
at 31).
II. Summary Judgment
*2 Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272-73 (2d Cir. 2006). Rule 56(b) provides that a party may
file a motion for summary judgment “at any time until 30
days after the close of all discovery.” Fed. R. Civ. P. 56(b).
Thus, a party may move for summary judgment in lieu of
an answer. See, e.g., Anderson v. Rochester-Genesee Reg'l
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Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003); Crenshaw
v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010); Riehl v.
Martin, No. 9:13-CV-439 (GLS/TWD), 2014 WL 1289601,
at *1-2 (N.D.N.Y. Mar. 31, 2014).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is
a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at
273. In that context, 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). However, in determining
whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the
movant. See United States v. Diebold, Inc., 369 U.S. 654,
655 (1962); Salahuddin, 467 F.3d at 272. “Only disputes over
[‘material’] facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). It must be apparent that no rational finder of
fact could find in favor of the non-moving party for a court
to grant a motion for summary judgment. Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
While courts are required to give due deference to a plaintiff's
pro se status, that status “does not relieve plaintiff of his
duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003). Where a party has failed
to respond to the movant's statement of material facts as
required by Local Rule 7.1(a)(3), the facts in the movant's
statement will be accepted as true (1) to the extent they are
supported by evidence in the record, and (2) the non-movant,
if proceeding pro se, has been specifically advised of the
possible consequences of failing to respond to the motion.
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Although plaintiff received proper notice of his obligation
to respond to defendant's summary judgment motion in
accordance with Local Rules, the plaintiff did not file a
Statement of Material Facts that addressed many of the factual
allegations in defendant's Statement, as required by Local
Rule 7.1(a)(3). 1 Consequently, the court may accept the
properly supported facts contained in the defendants’ Rule
7.1 statement (Dkt. No. 16-2) as true for purposes of this
motion. See Govan v. Campbell, 289 F. Supp. 2d 289, 295-96
(N.D.N.Y. 2003).
1 Defense counsel specifically advised plaintiff of
the consequences of failing to respond to the
summary judgment motion. (Dkt. No. 16). Counsel
forwarded, to plaintiff, a copy of the court's form
Notification of the Consequences of Failing to
Respond to a Summary Judgment Motion, which
provided in pertinent part:
If you do not file a proper response to this
motion, the Court may grant the motion and
dismiss some or all of your claims. Under
Local Rules 7.1(b) and 56.1(b), to file a proper
response to this motion, you must submit the
following papers:
(1) A response to the defendants’ statement
of material facts that admits and/or denies
each of the defendants’ assertions in matching
numbered paragraphs, 1 and that supports
each denial with citations to record evidence.
* * *
WARNING: If you do not submit a proper
response to the defendants’ statement of material
facts, the Court may deem you to have admitted
the defendants’ factual statements.
(Dkt. No. 16 at 4).
III. Exhaustion of Administrative Remedies
A. Legal Standards
*3 The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil rights
action. The exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and regardless of the subject matter of
the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.
2004), (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)),
abrogated on other grounds, Ross v. Blake, 578 U.S. 632
(2016). Inmates must exhaust their administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
In order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review
process in accordance with the applicable state rules. Jones
v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford
v. Ngo, 548 U.S. 81 (2006)). In Woodford, the court
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held that “proper” exhaustion means that the inmate must
complete the administrative review process in accordance
with the applicable procedural rules, including deadlines, as
a prerequisite to bringing suit in federal court. Woodford, 548
U.S. at 90-103.
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the
Incarcerated 2 Grievance Resolution Committee (“IGRC”).
N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and
(b). An adverse decision of the IGRC may be appealed to
the Superintendent of the Facility. Id. § 701.5(c). Adverse
decisions at the Superintendent's level may be appealed
to the Central Office Review Committee (“CORC”). Id. §
701.5(d). The court also notes that the regulations governing
the Incarcerated 3 Grievance Program (“IGP”) encourage
the inmate to “resolve his/her complaints through the
guidance and counseling unit, the program area directly
affected, or other existing channels (informal or formal)
prior to submitting a grievance.” Id. § 701.3(a) (Inmate's
Responsibility). There is also a special section for complaints
of harassment. Id. § 701.8. Complaints of harassment are
handled by an expedited procedure which provides that such
grievances are forwarded directly to the Superintendent of
the facility, after which the inmate must appeal any negative
determination to the CORC. Id. §§ 701.8(h) and (I), 701.5.
2 This committee was formerly known as the
“Inmate Grievance Resolution Committee,” but
has recently been renamed.
3 The program was formerly known as the “Inmate
Grievance Program,” but has recently been
renamed.
Prior to Ross v. Blake, supra, the Second Circuit utilized
a three-part inquiry to determine whether an inmate had
properly exhausted his administrative remedies. See Brownell
v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing
Hemphill v. State of New York, 380 F.3d 680, 686 (2d
Cir. 2004)). The Hemphill inquiry asked (1) whether the
administrative remedies were available to the inmate; (2)
whether defendants’ own actions inhibiting exhaustion estops
them from raising the defense; and (3) whether “special
circumstances” justify the inmate's failure to comply with the
exhaustion requirement. Id.
In Ross, the Supreme Court made it clear that courts
may not excuse a prisoner's failure to exhaust because of
“special circumstances.” Ross v. Blake, 578 U.S. 632, 640
(2016). “[M]andatory exhaustion statutes like the PLRA
establish mandatory exhaustion regimes, foreclosing judicial
discretion.” Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir.
2016) (quoting Ross, 578 U.S. at 639). Although Ross has
eliminated the “special circumstances” exception, the other
two factors in Hemphill – availability and estoppel – are still
valid. The court in Ross referred to “availability” as a “textual
exception” to mandatory exhaustion, and “estoppel” has
become one of the three factors in determining availability.
Ross, 578 U.S. at 642. Courts evaluating whether an inmate
has exhausted his or her administrative remedies must also
consider whether those remedies were “available” to the
inmate. Id.; see also Riles, 2016 WL 4572321 at *2.
B. Analysis
*4 Defendant C.O. Moore argues that plaintiff's failure-to-
protect claim is subject to dismissal, for failure to exhaust
administrative remedies, because plaintiff did not file an
initial grievance prior to bringing suit, nor did he appeal
the denial of any grievance concerning this claim to CORC.
(Dkt. No. 16-1, Defendant's Memorandum of Law at 14).
In support of his position, defendant has attached to his
motion papers the sworn declarations of Rachael Seguin
(“Seguin Decl.”) (Dkt. No. 16-7), the Director of the IGP
for DOCCS, and Christine Gregory, the IGP Supervisor
at Clinton C.F. (“Gregory Decl.”) (Dkt. No. 16-6). These
declarations, and the evidence attached as exhibits thereto,
indicate that plaintiff neither filed an initial grievance related
to his claim that C.O. Moore failed to protect him from
another inmate on September 6, 2018, nor did plaintiff submit
an appeal to CORC. (See Gregory Decl. ¶¶ 16-20; Seguin
Decl. ¶¶ 12-14, Ex. A).
In opposition to defendant's motion, plaintiff alleges that,
while confined in his keep-lock cell, he attempted to file a
grievance relating to the incident with C.O. Moore by putting
a sealed letter on the gate for mail pickup. (Dkt. No. 20 at 2-3;
Pl.’s Dep. at 87-89). Plaintiff testified that he remembered the
grievance being picked up by an unnamed officer, but does
not remember the exact day he mailed the grievance. 4 (Dkt.
No. 16-3, Pl.’s Dep. at 87-89, 93). Plaintiff speculates that an
unnamed officer on duty threw his grievance away. (Dkt. No.
20 at 2-3; Pl.’s Dep. at 87-89)
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4 Plaintiff testified that he filed the grievance “it was
in like the same – I want to say around like the 22 nd
or so.” (Pl.’s Dep. at 87-88).
Plaintiff acknowledged that he never followed up with respect
to his grievance for the 70 days after the incident when he was
confined on keeplock; but he alleges that he asked sergeants,
officers, and counselors about the status of his grievance and
they told plaintiff “they'll get back to you.” (Pl.’s Dep. at
93-94). Plaintiff admitted that he did not retain any copies
of the purported grievances relative to his complaints against
C.O. Moore. (Id. at 88). 5
5 Plaintiff alleges that he was told “it was a code
49 and that it had to go to the superintendent
office.” (Dkt. No. 20 at 3).
Plaintiff further testified that he not only understood the
grievance process, but also that he participated in an
orientation program at Clinton C.F. about how the grievance
process works at the facility. (Id. at 85-86). He admitted that
he filed “a couple” of grievances after the incident concerning
other matters, while still residing at Clinton C.F. (Id. at 90).
The record before this court clearly established that the
defendant did not exhaust administrative remedies with
respect to the failure-to-protect claim against C.O. Moore.
Given that an initial grievance was never filed, nor was the
claim ever appealed to CORC, the question becomes whether
plaintiff's failure to exhaust should be excused.
The defendant has satisfied his initial burden of
“establishing ... that a grievance process exist[ed] and
applie[d] to the underlying dispute.” Hubbs v. Suffolk
County Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(citation omitted). 6 Thus, plaintiff assumes the burden
of producing evidence that one of the exceptions to the
administrative exhaustion requirement applies, excusing his
failure to exhaust and permitting his claim to survive
summary judgment. Id. (“If the defendants meet this
initial burden, administrative remedies may nonetheless be
deemed unavailable if the plaintiff can demonstrate that
other factors ... rendered a nominally available procedure
unavailable as a matter of fact.”) 7
6 IGP Supervisors Gregory and Seguin stated
Clinton C.F. had a fully functioning IGP program at
all times relevant to the complaint. (Gregory Decl.
¶ 16; Seguin Decl. ¶ 11). Plaintiff also testified that
he filed a grievance for an unrelated matter after the
incident and received an unfavorable decision and
appealed that decision. (Pl.’s Dep. 90-91).
7 I agree with Magistrate Judge Peebles’ cogent
analysis that, while the burden of production may
shift to a plaintiff with respect to certain aspects
of the exhaustion issue, “the ultimate burden
of proof with respect to the exhaustion defense
remains, at all times, with the defendant.” See,
e.g., Bailey v. Fortier, No. 9:09-CV-0742 (GLS/
DEP), 2012 WL 6935254, at *5-6 (N.D.N.Y. Oct. 4,
2012), report and recommendation adopted, 2013
WL 310306 (N.D.N.Y. Jan. 25, 2013); Nelson v.
Plumley, No. 9:12-CV-422 (TJM/DEP), 2015 WL
4326762, at *7-8 (N.D.N.Y. July 14, 2015), report
and recommendation adopted, 2013 WL 1305338
(N.D.N.Y. Mar. 18, 2013).
*5 Liberally construed, plaintiff appears to argue that
administrative remedies were unavailable to him as a result of
C.O. Moore trying “to cover his mistakes up”. (Dkt. No. 20
at 2-3). Plaintiff does not offer any support for his claim other
than his statement “officers talk like inmates talk. So knowing
the incident, knowing I put in a grievance, they wanted to be
nosey [sic], and they opened it and never let it get to where
it was supposed to go once it was read.” (Pl.’s Dep. at 89).
During his deposition, plaintiff specifically stated that C.O.
Moore was not the person who picked up the grievance. (Pl.’s
Dep. at 88-89). Furthermore, plaintiff testified the alleged
grievance was sealed, so the unnamed C.O. would have no
way of knowing what conduct the grievance was referring to
unless (s)he opened the envelope. (Pl.’s Dep. at 92).
As noted above, plaintiff was on keep-lock status when he
allegedly attempted to submit a grievance relating to the
claim in this action by leaving a sealed envelope for C.O.s
to deliver. “Keeplock is a form of disciplinary confinement
segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi,
46 F.3d 189, 192 (2d Cir. 1995); N.Y. Comp. Codes R.
& Regs. tit. 7, § 301.6. While “[k]eep-lock is similar to
serving time in a Special Housing Unit ... [with the inmate]
remain[ing] in their assigned cell” (Dkt. No. 16-5, Terry Allen
Declaration ¶ 7), plaintiff acknowledged that keep-lock status
is “not like if you were in the SHU” (Pl.’s Dep. at 35).
In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir.
2016), the Second Circuit considered whether administrative
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remedies had been “actually available” to an inmate plaintiff
under Ross, after the district court granted the defendants’
motion to dismiss for failure to exhaust. The plaintiff alleged
that, while housed in a SHU, he drafted a grievance that he
delivered to a correction officer to forward to the grievance
office on his behalf. Id. at 120-121. Approximately two weeks
later, the plaintiff was transferred to a different facility. Id.
at 121. He never received a response to his grievance, and
alleged that it was never filed by the officer to whom he had
given it. It was undisputed that plaintiff never appealed the
grievance. Id.
The defendants in Williams argued that even if the grievance
was never filed, the plaintiff was required to appeal it and
complete the grievance process. Id. at 124. The defendants
relied on a DOCCS regulation that provided that “an inmate
may appeal a grievance ‘to the next step’ if he does not
receive a timely response.” Id. (quoting N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.6(g)(2)). The Second Circuit rejected
this argument and held that, for an inmate in the plaintiff's
situation, the regulatory scheme was so “opaque” and
“confusing” as to be practically unavailable. Id. The Second
Circuit found that DOCCS regulations “only contemplate
appeals of grievances that [have been] actually filed ... [and]
give no guidance whatsoever to an inmate whose grievance
was never filed.” Id. Thus, Williams holds that “the process to
appeal an unfiled and unanswered grievance is prohibitively
opaque, such that no inmate could actually make use of it.”
Id. at 126. 8 See also Medina v. Napoli, 725 F. App'x 51,
53-54 (2d Cir. 2018) (following Williams in the context of a
summary judgment motion).
8 My summary of Williams tracks that of Magistrate
Judge Stewart in Berman v. Durkin, No. 9:13-
CV-136 (LEK/DJS), 2017 WL 1215814, at
*8 (N.D.N.Y. Mar. 10, 2017), report and
recommendation adopted, 2017 WL 1207834
(N.D.N.Y. Mar. 31, 2017).
Some district court cases in the Second Circuit suggest that
Williams should be limited to its particular facts, e.g., by
not applying its holding to plaintiffs who are not confined
in a SHU. 9 See, e.g., Shaw v. Ortiz, No. 15-CV-8964, 2016
WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (“the factual
scenario here is different from that in Williams where the
Second Circuit found that part of the IGP's regulatory scheme
was ‘so opaque and so confusing that ... no reasonable
prisoner c[ould] use’ it.”) (citing Mena v. City of New
York, No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y.
July 19, 2016) (finding that the Second Circuit's decision
in Williams “hinged on the ‘extraordinary circumstances’
specific to the case before it”)); Blake v. Porlier, No. 9:18-
CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y.
Oct. 4, 2019) (“Courts have taken an inmate's housing and
level of segregation from the general population into account
when determining the availability of grievance procedures.”)
(citing Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH),
2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (holding
that a plaintiff in keeplock was not entitled to an exhaustion
exception when he alleged that his grievance had not been
filed due to mail tampering, and subsequently never inquired
about it), report and recommendation adopted, 2017 WL
2790530 (N.D.N.Y. June 27, 2017)).
9 In Medina v. Napoli, 725 F. App'x at 53-54,
the Second Circuit followed Williams in a case
involving a SHU inmate, but absent the additional
circumstance of a transfer to a different facility,
which might have further complicated the inmate's
ability to file a grievance.
*6 In any event, unsupported assertions that a plaintiff
“filed a grievance but that it was somehow lost or destroyed”
have generally been found “insufficient to establish a genuine
issue of fact.” Blake v. Porlier, 2019 WL 7484052, at *5
(“Courts within the Second Circuit have continuously held
that ‘mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.’
”) (quoting Rodriguez v. Cross, 2017 WL 2791063, at *5);
Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL
11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding
the plaintiff's failure to exhaust was not excusable, in part,
because while the plaintiff “state[d] that some grievances
were destroyed ... he ha[d] not submitted any copies of
these grievances, nor d[id] he specify when he attempted
to file them”), report and recommendation adopted, 2017
WL 1076343 (N.D.N.Y. Mar. 22, 2017); Engles v. Jones,
No. 6:13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y.
Dec. 28, 2018) (“Plaintiff's unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact.”)
(citing Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555
(W.D.N.Y. 2018)).
Moreover, courts in this Circuit have granted summary
judgment for failure to exhaust administrative remedies, even
for a prisoner confined to a SHU whose ability to directly file
a grievance or make a copy may be limited, when the plaintiff
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provided no documentation or minimal corroborative details.
See, e.g., Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/
TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018)
(“Plaintiff's conclusory allegations that the DOCCS IGP
was unavailable to him [while confined to the SHU] were
insufficient to withstand summary judgment,” where the
plaintiff “provided no evidence that he actually did write
grievances; when they were written; the content of the
grievances ... the officers named in the grievance(s) ...; the
specific steps taken by Plaintiff to provide them to an officer
to send to the grievance office; and any specific follow up
with the grievance office[.]”), report and recommendation
adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018);
Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (in the absence of
any documentary evidence to corroborate plaintiff's alleged
attempt to file a grievance from the SHU, the court concludes
that plaintiff's completely unsupported, unclear, and vague
implication that the grievance was not properly processed
does not suffice to avoid summary judgment), report and
recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb.
4, 2022); Ozzborn v. Cornell, No. 9:17-CV-1039 (MAD/
ATB), 2021 WL 2227829, at *5 (N.D.N.Y. June 2, 2021)
(Plaintiff claimed that he filed a grievance from the SHU
by leaving a plain envelope addressed to the grievance
committee for the mail personnel to collect; but, because he
never received a response, he presumed that the grievance was
never submitted. Because plaintiff never followed up on his
grievance and successfully filed numerous other grievances
in the recent past, he has failed to demonstrate that his
administrative remedies were unavailable to him). 10
10 District Judge D'Agostino distinguished Williams
v. Priatno by noting the various ways in which the
plaintiff in Williams specified how he followed up
with respect to the grievance that he left for delivery
from the SHU, which was never filed with the IGP.
Id. at *4.
Here, the court does not merely rely on plaintiff's lack of direct
evidence, such as copies of the relevant grievances, in finding
that he has failed to establish a genuine issue of material fact
as to unavailability. Plaintiff in this case has done nothing
more than allege in conclusory fashion that he attempted to
file a grievance concerning a the September 6, 2018 incident.
Plaintiff's testimony about when he attempted to submit the
grievance was vague and he did not identify the officer who
allegedly collected it. Likewise, he has not supported his
claim that unnamed sergeants, officers, and counselors told
him “not to worry” with any documentary evidence. See, e.g.,
Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL
1776086, at *8 (N.D.N.Y. Feb. 12, 2013) (“Plaintiff's mere
threadbare allegations that his grievances were intercepted
and discarded, without evidence to support such allegation,
including any evidence that identifies which defendant, in
particular, is responsible for discarding the grievances, are
insufficient to excuse his failure to comply with the IGP
[process]”), report and recommendation adopted, 2013 WL
1291720 (N.D.N.Y. Mar. 27, 2013).
*7 For the above reasons, the court concludes that plaintiff's
completely unsupported and vague claim that a grievance
he attempted to file against C.O. Moore relative to the
September 6, 2018 incident was not properly processed does
not suffice to avoid summary judgment. Accordingly, the
court recommends that C.O. Moore be granted summary
judgment and the second amended complaint be dismissed
against him, on the ground that plaintiff failed to exhaust his
administrative remedies.
Dismissal with prejudice is appropriate where the plaintiff had
the opportunity to exhaust administrative remedies, failed to
do so, and is unable to cure his failure to exhaust. Berry v.
Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, plaintiff's time
to file the relevant grievance to CORC in accordance with
the rules and regulations has already passed, 11 rendering his
failure to exhaust his administrative remedies incurable at this
time. As a result, I recommend that plaintiff's complaint be
dismissed with prejudice as to these claims. See Livingston v.
Hoffnagle, No. 17-CV-1158 (MAD/DEP), 2019 WL 409366,
at *7 (N.D.N.Y. Feb. 1, 2019) (dismissing without leave to
amend, where the exhaustion error would not be cured by
permitting the plaintiff leave to amend).
11 “Ordinarily, an inmate must first submit ‘a
complaint,’ or grievance, to the facility's IGP clerk
within twenty-one days of the alleged occurrence
giving rise to his complaint. 7 N.Y.C.R.R. §
701.5(a). Relief from the twenty-one day time limit
may be granted by the IGP supervisor based upon
mitigating circumstances, provided, however, that
‘[a]n exception to the time limit may not be granted
if the request was made more than 45 days after an
alleged occurrence.’ ” Nelson v. Plumley, 2015 WL
4326762, at *2 (citing N.Y.C.R.R. § 701.6(g)(1)(i)
(a)).
IV. Eighth Amendment Failure to Protect Claim
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Defendant also seeks summary judgment on the merits of
plaintiff's failure to protect claim, arguing, among other
things, that plaintiff has failed to establish C.O. Moore
was acting with deliberate indifference to conditions that
posed a substantial risk of serious harm to plaintiff. For the
following reasons, the court agrees that summary judgment is
warranted, in the alternative, on the merits of plaintiff's Eighth
Amendment claim.
A. Legal Standards
In order to state an Eighth Amendment claim for failure
to protect an inmate, the plaintiff must show that he was
incarcerated under conditions posing a substantial risk of
serious harm, and prison officials acted with deliberate
indifference to that risk and the inmate's safety. Farmer v.
Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970 (1994). The
plaintiff must show that prison officials actually knew of and
disregarded an excessive risk of harm to the inmate's health
and safety. Id. at 837, 114 S. Ct. 1970. The defendant must be
aware of the facts from which the inference can be drawn that
a substantial risk of serious harm exists, and the defendant
must also draw that inference. Id.
The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by other inmates
may rise to the level of an Eighth Amendment violation. See
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) (citing
United States v. Bailey, 444 U.S. 394, 423 (1980)). “Reckless
disregard” of plaintiff's right to be free from attacks by other
inmates may be shown by the existence of a “pervasive risk of
harm to inmates from other prisoners and a failure by prison
officials to reasonably respond to that risk.” Knowles v. New
York City Dep't of Corr., 904 F. Supp. 217, 221-22 (S.D.N.Y.
1995) (citing Rucco v. Howard, No. 91 Civ. 6762, 1993 WL
299296, at *4 (S.D.N.Y. Aug. 4, 1993); Martin v. White, 742
F.2d 469, 474 (8th Cir. 1984)).
*8 An isolated omission by corrections officers generally
does not support a claim for deliberate indifference
absent circumstances involving evil intent, recklessness, or
deliberate indifference. Coronado v. Goord, No. 99 Civ.
1674, 2000 WL 1372834, at *4 (S.D.N.Y. Sept. 25, 2000)
(citing Ayers v. Coughlin, 780 F.2d at 209). Plaintiff may
allege a constitutional claim by alleging that the substantial
risk of inmate attacks was longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past,
and that the officials being sued were exposed to information
concerning the risk and thus, must have known about it. Id.
(citing Farmer, 511 U.S. at 842-43).
B. Analysis
With due regard for plaintiff's status as a pro se litigant,
plaintiff has failed to establish that C.O. Moore knew of a
particular risk to plaintiff's safety or that C.O. Moore was
deliberately indifferent for failing to protect plaintiff. Plaintiff
merely offers conclusory, general allegations that C.O. Moore
knew about an alleged gang and/or race war happening at
Clinton C.F. (Dkt. No. 20 at 2). However, C.O. Moore has, in
his sworn declaration, denied having any knowledge about a
race war at Clinton C.F. or having any access to information
regarding an inmate's gang status. (Moore Decl. ¶¶ 21, 23).
Even if C.O. Moore did have access to such records, plaintiff
testified that he is not a member of a gang. (Jackson Dep. at
19). Thus, there is nothing in the record other than plaintiff's
conclusory allegations establishing that C.O. Moore knew
plaintiff was at a substantial risk of harm because of an alleged
gang war.
Plaintiff's claim is further undermined by his sworn testimony
admitting that he had not had any prior interactions with
the inmate who attacked him before the underlying incident.
(Jackson Dep. at 19-20); Gillard v. Jarvis, No. 9:11-CV-1021
(LEK/ATB), 2012 WL 7037734, at *7 (N.D.N.Y. Nov.
6, 2012), report and recommendation adopted, 2013 WL
474384 (N.D.N.Y. Feb. 7, 2013) (“If plaintiff did not know the
inmate who assaulted him, he cannot claim that defendants
“knew” and disregarded the serious risk that plaintiff would
be assaulted at Clinton by this unknown individual.”).
Plaintiff has not alleged that he was threatened by the other
inmate, or any member of the other inmate's race or gang,
prior to this incident. Additionally, neither inmate was in
protective custody when they were released form their cells.
(Moore Decl. ¶ 14). Plaintiff also testified he never asked for
protective custody before or after the incident. (Jackson Dep.
at 73).
“Courts routinely deny deliberate indifference claims based
upon surprise attacks.” Zimmerman v. Macomber, No. 95 Civ.
0882, 2001 WL 946383, at *5 (S.D.N.Y. Aug. 21, 2001)
(granting summary judgment in favor of the defendants where
the plaintiff failed to carry his burden to establish that the
defendant had knowledge of a substantial risk to plaintiff's
health or safety from an inmate attacker). Here, plaintiff
has failed to allege defendants knew of a prior altercation
between the plaintiff and his attacker, or of any threats that
had been made against the plaintiff. Fernandez v. N.Y.C.
Dep't of Corr., No. 08 Civ. 4294, 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010); Clark v. Gardner, 256 F. Supp.3d
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154, 168 (N.D.N.Y. 2017). Because plaintiff has alleged no
facts suggesting that C.O. Moore knew of a particular risk to
the plaintiff's safety, he has failed to raise a material question
of fact as to whether C.O. Moore was deliberately indifferent,
and summary judgment is warranted. Parris v. New York State
Dep't Corr. Servs., 947 F. Supp.2d 354, 363 (S.D.N.Y. 2013).
*9 WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendant's motion for summary
judgment (Dkt. No. 16) be GRANTED, and the complaint be
DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2023 WL 4710869
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Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:21-CV-01001
Jackson v. New York State Department of Corrections et
al
— N.D.N.Y. Sep. 10, 2021 Docket
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Jackson v. Moore
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History (3)
Direct History (2)
1. Jackson v. Moore
2023 WL 4710869 , N.D.N.Y. , Apr. 14, 2023
Report and Recommendation Adopted by
2. Jackson v. Moore
2023 WL 4711091 , N.D.N.Y. , July 24, 2023
Related References (1)
3. Jackson v. Moore
2022 WL 22888891 , N.D.N.Y. , Feb. 09, 2022
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Fredricks v. Shaheen, Not Reported in Fed. Rptr. (2025)
2025 WL 1949898
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2025 WL 1949898
Only the Westlaw citation is currently available.
RULINGS BY SUMMARY ORDER DO NOT
HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT'S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY
ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Nigel FREDRICKS, Plaintiff-Appellant,
v.
Correction Officer John SHAHEEN, #5258, individually
and in their official capacities; Correction Officer
John Richards, #18595, individually and in their
official capacities; Andrew Henry, Correction
Officer; Alexis Parrilla, Assistant Deputy Warden;
Duayne John, Assistant Deputy Warden; Omar Smith,
Captain; Travis Richards, Defendants-Appellees,
Captain Officer John Doe, individually and in their
official capacities; Captain or Deputy John Doe;
Captain John Smith, #1651, individually and in
their official capacities; Correction Officer John
Doe, Post A, individually and in their official
capacities; Deputy Officer John Doe, individually
and in their official capacities, Defendants.
22-2480
|
July 16, 2025
Appeal from a judgment of the United States District Court
for the Southern District of New York (Torres, D.J.; Cott,
M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
September 13, 2022, judgment is VACATED and this matter
is REMANDED to the District Court for further proceedings.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Nigel Fredricks, pro se,
Romulus, NY.
FOR DEFENDANTS-APPELLEES: Jonathan A. Popolow,
of counsel, for Muriel Goode-Trufant, Acting Corporation
Counsel of the City of New York, New York, NY.
PRESENT: REENA RAGGI, STEVEN J. MENASHI,
SARAH A. L. MERRIAM, Circuit Judges.
SUMMARY ORDER
*1 Nigel Fredricks, an incarcerated person proceeding pro
se, brought this action pursuant to 42 U.S.C. § 1983 asserting
that defendants, all of whom are alleged to have been
employed as correctional workers at Rikers Island at the
relevant time, violated his First and Fourteenth Amendment
Rights. Specifically, Fredricks alleges that defendants incited
an attack on him by another inmate, failed to protect him
from that attack, and/or retaliated against him after he filed a
grievance and a lawsuit related to that attack.
Defendants moved for summary judgment, and the Magistrate
Judge issued a Report and Recommendation (“R&R”)
recommending that the motion be granted. Having received
no objections to the R&R, the District Judge reviewed it
only for clear error. See Miller v. Brightstar Asia, Ltd., 43
F.4th 112, 120 (2d Cir. 2022). The District Judge adopted that
recommendation 41 days later, granted summary judgment
for defendants, and closed the case. See Fredricks v. Parrilla,
1:20CV05738(AT)(JLC), 2022 WL 4227077 (S.D.N.Y. Sept.
13, 2022). Fredricks now appeals from that decision.
We review a grant of summary judgment de novo, construing
the evidence in the light most favorable to the party against
whom summary judgment was granted and drawing all
reasonable inferences in that party's favor. See Capitol Recs.,
LLC v. Vimeo, Inc., 125 F.4th 409, 418 (2d Cir. 2025). We
conclude that a confluence of factors here deprived Fredricks
of a meaningful opportunity to oppose summary judgment.
Specifically, he was not provided with notice regarding
the nature of summary judgment and his obligations in
responding to a summary judgment motion, as our precedent
requires. This error was further compounded by Fredricks's
failure to receive adequate notice pertaining to the R&R,
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apparently as a result of court confusion about his mailing
address.
We assume the parties’ familiarity with the remaining facts,
the procedural history, and the issues on appeal, which we
discuss only as necessary to explain our decision to vacate
and remand.
I. Notice Regarding Obligations in Responding to
Summary Judgment Motion
“It is well established that a court is ordinarily obligated to
afford a special solicitude to pro se litigants.” Rosa v. Doe,
86 F.4th 1001, 1007 (2d Cir. 2023) (citation and quotation
marks omitted). This is particularly true in the context of
summary judgment, where, as we have recognized, “it is not
obvious to a layman that when his opponent files a motion
for summary judgment supported by affidavits he must file
his own affidavits contradicting his opponent's if he wants to
preserve factual issues for trial.” Vital v. Interfaith Med. Ctr.,
168 F.3d 615, 620 (2d Cir. 1999) (citation and quotation marks
omitted). We therefore require district courts “to apprise pro
se litigants of the consequences of failing to respond to a
motion for summary judgment,” and failure to provide such
notice “is ordinarily grounds for reversal.” Id. (citation and
quotation marks omitted).
*2 To ensure that appropriate notice is given, the Southern
District of New York has adopted a Local Rule requiring:
“Any represented party moving for summary judgment
against a party proceeding pro se must serve and file as a
separate document, together with the papers in support of the
motion, [a] ‘Notice To Pro Se Litigant Who Opposes a Motion
For Summary Judgment’ with the full texts of Fed. R. Civ. P.
56 and Local Civil Rule 56.1 attached.” S.D.N.Y. Loc. Civ. R.
56.2. The required Notice is set forth, verbatim, in the Local
Rules. The version in effect in 2022, when the motion for
summary judgment was filed in this case, informed the pro se
opposing party of the nature of a summary judgment motion,
and warned, in relevant part:
THE CLAIMS YOU ASSERT IN YOUR COMPLAINT
MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO
NOT RESPOND TO THIS MOTION ON TIME by filing
sworn affidavits and/or other documents as required by
Rule 56(c) of the Federal Rules of Civil Procedure and by
Local Civil Rule 56.1.
...
In short, Rule 56 provides that you may NOT oppose
summary judgment simply by relying upon the allegations
in your complaint. Rather, you must submit evidence, such
as witness statements or documents, countering the facts
asserted by the defendant and raising specific facts that
support your claim. If you have proof of your claim, now is
the time to submit it. Any witness statements must be in the
form of affidavits. An affidavit is a sworn statement of fact
based on personal knowledge stating facts that would be
admissible in evidence at trial. You may submit your own
affidavit and/or the affidavits of others. You may submit
affidavits that were prepared specifically in response to
defendant's motion for summary judgment.
If you do not respond to the motion for summary judgment
on time with affidavits and/or documents contradicting
the material facts asserted by the defendant, the Court
may accept defendant's facts as true. Your case may be
dismissed and judgment may be entered in defendant's
favor without a trial.
S.D.N.Y. Loc. Civ. R. 56.2 (effective Oct. 15, 2021, through
July 1, 2024).
It is undisputed that defendants did not provide Fredricks
with the required notice. The R&R acknowledged that
failure, but rather than holding the motion in abeyance
until proper notice could be given, the Magistrate Judge
concluded “that Fredricks understood that he was required to
produce evidence opposing the motion” because “Fredricks
responded to Defendants’ Motion for Summary Judgment
with opposition briefing, a Rule 56.1 Statement, and
supporting exhibits.” Doc. 121 at 15. 1 It is correct that a
failure to provide the required notice to “a pro se litigant
as to the nature of summary judgment” does not constitute
reversible error if “the record otherwise makes clear that the
litigant understood the nature and consequences of summary
judgment.” McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir.
1999) (citation and quotation marks omitted). But the record
here is insufficient to make clear that Fredricks understood
his obligations under the relevant rules.
1 Documents filed on the Southern District of New
York docket in case number 1:20CV05738 are cited
herein as “Doc. [docket entry number] at [page
number].”
Notably, Fredricks did not file a document that was
specifically designated as being his response to the summary
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judgment motion. Rather, he filed several letters indicating
that he believed there was still discovery outstanding. See,
e.g., Docs. 98, 99, 101, 110, 111. While he filed a document
entitled “Notice of Motion for Summary Judgment in Reply to
Defendant's Counsel Pursuant to Rule 56 of Civil Procedure
Rules of Federal (S.D.N.Y.),” Doc. 105 (capitalization and
spelling altered), that one-page document made no argument
and attached no exhibits. He filed a document entitled a
motion for summary judgment, but that attached only a copy
of a prison grievance he filed, and again, no affidavit. See
Doc. 106. Fredricks did file a declaration suggesting that he
was providing evidence in opposition to summary judgment
but failed to attach the proposed exhibits to this declaration.
Compare Doc. 104 at 2 (stating that included exhibit is “true
and correct copy of plaintiff interrogatory”) with id. at 4–
8 (suggesting no such document included). In any event,
none of these submissions shows that Fredricks “understood
summary judgment in the way required by McPherson and
Vital.” Hernandez v. Coffey, 582 F.3d 303, 309 (2d Cir. 2009).
*3 Fredricks also filed a document entitled “Local Rule 56.1
Statement of Material Facts in Reply to the Opposite Motion
for Summary Judgment,” but it lists only nine statements,
none of which responds directly to any of the ninety-six
statements of fact asserted in the defendants’ Rule 56.1
Statement. Doc. 107 (capitalization and spelling altered);
see also Doc. 90. In the absence of the required notice, a
court could not conclude from such a defective submission
that Fredricks understood the scope of his obligation in
responding to defendants’ motion. “[T]he mere fact that
the pro se litigant has made some response to the motion
for summary judgment is not dispositive where neither
his response nor other parts of the record reveal that he
understood the nature of the summary judgment process.”
McPherson, 174 F.3d at 281 (citation and quotation marks
omitted). In sum, the record does not support a conclusion
that, despite failing to receive the required notice, Fredricks
“understood the nature of [defendants’] summary judgment
motion and the consequences of not properly opposing it.”
Sawyer v. Am. Fed'n of Gov't Emps., AFL-CIO, 180 F.3d
31, 35 (2d Cir. 1999). As we have stated, “in the absence
of explicit notice, the mere existence of a response does not
automatically give rise to the inference that a pro se litigant
understood the nature of a summary judgment motion.” Id.
Here, “the nature of the papers” Fredricks filed “and the
assertions made therein” do not demonstrate an understanding
of summary judgment. Vital, 168 F.3d at 621. Accordingly,
the lack of notice was not harmless, and this matter must be
remanded to permit Fredricks to oppose summary judgment
after receiving the required notice.
II. Fredricks's Opportunity to Object to the R&R
That conclusion is reinforced by further concerns about the
adequacy of the notice sent to Fredricks regarding events
leading to the entry of summary judgment. Throughout this
litigation, Fredricks regularly communicated with the District
Court, including by filing over a dozen separate notices of
change of address. See, e.g., Docs. 7, 20, 54, 56, 60, 64, 84,
87, 117. On April 19, 2022, Fredricks filed his final formal
address update in the District Court, indicating that he was
then incarcerated at a facility in Elmira. See Doc. 117. In June
2022, however, Fredricks submitted documents showing a
return address at a correctional facility in Auburn. The District
Court appears to have taken note because, on June 30, 2022,
the S.D.N.Y. Clerk's Office sent materials to Fredricks at the
Auburn address. See Doc. 120.
The R&R issued on August 3, 2022; however, the District
Court mailed it to Fredricks on Thursday, August 4, 2022, at
the Elmira address. 2 On August 16, 2022, the Clerk's Office
docketed a letter from Fredricks seeking an extension of time
to file objections to the R&R. See Doc. 122. That letter was
dated August 11 by Fredricks; postmarked (from Auburn)
August 12; and received by the Clerk's Office on August 15.
See id. On Thursday, August 18, 2022, the District Court
granted Fredricks an extension of time to object to the R&R
through and including August 25, 2022. See Doc. 123. That
order was mailed to Fredricks at the Elmira address on Friday,
August 19, 2022. Even if it had been mailed to the right
address (Auburn), it appears unlikely that Fredricks would
have received it and have been able to respond within only
six days.
2 The “Mailing Receipt,” docketed without a
number, appears between docket entries 121 and
122.
The District Judge's order adopting the R&R was issued on
September 13, 2022, and mailed to Fredricks at the Elmira
address on September 14, 2022; the Judgment was mailed
to Fredricks at the Elmira address on September 15, 2022.
Four days later – likely before either the R&R or judgment
arrived at Elmira, let alone reached Fredricks in Auburn –
Fredricks wrote a letter to the District Court dated September
19, 2022, requesting “a second extension of time on the
report-recommendation.” Doc. 126. This suggests that he was
unaware the R&R had been adopted and judgment issued.
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Indeed, in his Notice of Appeal filed September 28, 2022,
Fredricks stated that he had been “oblivious” that his first
request for an extension of time to object “was ever granted.”
Doc. 127.
This record suggests that Fredricks had reason to think that
the District Court had his correct mailing address (in Auburn)
as of June 2022, despite his failure to file a formal address
change. He failed to receive notice of significant court actions
after that time, however, because the Court mailed such
notices to Elmira. The lack of notice regarding the Court's
actions resulted in Fredricks's failure to file an objection to
the R&R, which was therefore adopted by the District Judge
without de novo review. This compounds the error arising out
of the failure to provide Fredricks with notice of the nature of
summary judgment. 3
3 On this record, we also reject defendants’ argument
that Fredricks waived appellate review by failing to
object to the R&R.
III. Conclusion
*4 We conclude from the totality of the circumstances
described that Fredricks was not afforded a meaningful
opportunity to oppose defendants’ motion for summary
judgment. The “opportunity to be heard plays an important
role in establishing the fairness and reliability of” court
orders, Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999),
and Fredricks was not afforded that opportunity here. We offer
no view on the merits of the summary judgment motion; it
may well be that on remand, Fredricks is unable to establish a
genuine dispute of material fact sufficient to permit this matter
to proceed to trial. But he is entitled to the opportunity to try.
Accordingly, we VACATE the judgment of the District
Court and REMAND this matter for further proceedings in
accordance with this Order.
All Citations
Not Reported in Fed. Rptr., 2025 WL 1949898
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 50 of 177

Fredricks v. Shaheen
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 22-2480
Fredricks v. Doe
— C.A.2 Oct. 05, 2022 Docket
2. Docket 1:20-CV-05738
Fredrick v. Doe et al
— S.D.N.Y. July 21, 2020 Docket
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 51 of 177

Fredricks v. Shaheen
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (8)
Direct History (3)
1. Fredricks v. Parrilla
2022 WL 4227077 , S.D.N.Y. , Sep. 13, 2022
Reconsideration Denied by
2. Fredricks v. Parrilla
2023 WL 8622620 , S.D.N.Y. , Dec. 13, 2023
AND Vacated and Remanded by
3. Fredricks v. Shaheen
2025 WL 1949898 , 2nd Cir.(N.Y.) , July 16, 2025
Related References (5)
4. Fredricks v. Doe
2020 WL 6866521 , S.D.N.Y. , Aug. 20, 2020
5. Nigel Fredricks v. Doe
2020 WL 8513505 , S.D.N.Y. , Dec. 02, 2020
6. Fredricks v. Shaheen
2021 WL 5835860 , S.D.N.Y. , Aug. 31, 2021
7. Fredricks v. Shaheen
2021 WL 4429409 , S.D.N.Y. , Sep. 27, 2021
8. Fredricks v. Parrilla
2022 WL 3053654 , S.D.N.Y. , Aug. 03, 2022
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 52 of 177

McDaniel v. City of New York, Not Reported in Fed. Supp. (2022)
2022 WL 1446541
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 1446541
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Curtis A. MCDANIEL, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
19-CV-8735 (KPF) (RWL)
|
Signed January 21, 2022
Attorneys and Law Firms
Curtis A. McDaniel, Malone, NY, Pro Se.
Carolyn Kay Depoian, Danielle Yolanda Clayton, New York
City Law Department, New York, NY, for Defendants The
City of New York, Manzo, Shirlonda Golden.
Danielle Yolanda Clayton, New York City Law Department,
New York, NY, for Defendant Irwin DeLeon.
REPORT AND RECOMMENDATION TO HON.
KATHERINE P. FAILLA SUMMARY JUDGMENT
ROBERT W. LEHRBURGER, United States Magistrate
Judge.
*1 Plaintiff Curtis McDaniel (“McDaniel”), proceeding
pro se, filed this lawsuit against the City of New York
(the “City”) and several Correction Officers: Captain Sonia
Manzo (“Manzo”) and Officers Shirlonda Golden (“Golden”)
and Irwin DeLeon (“DeLeon”) (collectively, “Defendants”)
pursuant to 42 U.S.C. § 1983. McDaniel alleges that while
he was incarcerated at Rikers Island, the Defendants were
negligent and deliberately indifferent to his safety and that
certain correction officers used excessive force against him.
Defendants have moved for summary judgment pursuant to
Rule 56 of the Federal Rules Of Civil Procedure. (Dkt. 63.)
For the following reasons, I recommend that Defendants’
motion be GRANTED and that judgment be entered in favor
of Defendants and against McDaniel.
FACTS 1
1 Unless otherwise noted, the facts are drawn
from Defendants’ Statement Of Undisputed Facts
Pursuant To Local Civil Rule 56.1 (“SOF”)
(Dkt. 67), to which McDaniel provided no
counterstatement, Defendants’ supporting exhibits
attached to the Declaration of Peter W. Brocker
(Dkt. 64), and the procedural docket. Additionally,
mindful of the duty to extend special solicitude
to pro se litigants, the Court has conducted
a thorough review of the available record
and considered McDaniel's admissible evidence.
The Court draws all reasonable inferences and
resolves all ambiguities in favor of McDaniel, the
nonmoving party. The consequences of McDaniel's
failure to file a Rule 56.1 statement are discussed
further below.
At all relevant times, McDaniel was a pretrial detainee housed
at the Anna M. Kross Correctional Facility (“AMKC”) at
Rikers Island operated by the New York City Department
Of Correction. (SOF ¶¶ 1-2.) When he entered AMKC on
March 9, 2019, McDaniel was initially housed in the W18LB
housing unit. (SOF ¶ 2.) Two weeks later, McDaniel was
transferred within AMKC to a housing unit called Dorm 2
Upper. (Compl. at 5; 2 SOF ¶ 8.)
2 “Compl.” refers to Plaintiff's Amended Complaint
at Dkt. 29.
On March 30, 2019, McDaniel had a physical altercation
with N.O., another pretrial detainee, while they were in an
area where phone calls could be made. 3 N.O. demanded that
McDaniel “sell” him his phone calls, which McDaniel refused
to do. (Compl. at 5; SOF ¶¶ 17-18.) N.O. followed McDaniel
from the calling area to McDaniel's bunk and continued to
“harass” and “threaten” him. (Compl. at 6; McDaniel Dep. at
91-92, 99. 4 ) N.O. insisted that the two go to the bathroom to
fight. (McDaniel Dep. at 91; SOF ¶ 19.) Initially McDaniel
refused, but he ultimately went to the bathroom and engaged
in some kind of altercation with N.O. 5 (Compl. at 6; SOF ¶¶
19-25; McDaniel Dep. at 104.) McDaniel left the bathroom
and walked into the dayroom followed by N.O., who “started
screaming and yelling.” (Compl. at 7; SOF ¶ 26; McDaniel
Dep. at 104.)
3 McDaniel does not name this individual in his
Complaint, and the Defendants refer to the
individual by his initials.
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4 “McDaniel Dep.” refers to the transcript of the
deposition of Curtis McDaniel conducted on March
24, 2021. (Dkt. 64, Ex. B.) The page numbers cited
by the Court refer to the internal pagination on the
transcript.
5 In the Amended Complaint, McDaniel alleges that
“as I went in the bathroom [N.O.] jumped in front
of me and cut me on the arm with some sharp
rock or something.” (Compl. at 6.) During his
deposition, McDaniel testified that N.O. “reached
in his waistband as if he was going to grab a weapon
or something, and I flinched at him, and I walked
out of the bathroom because I didn't know what he
had or what was going to happen.” (McDaniel Dep.
at 104.)
*2 Another unidentified correction officer intervened by
physically placing himself between McDaniel and N.O. 6
The correction officer attempted to restrain N.O. but was
unable to do so. N.O. lunged at McDaniel several times.
Although McDaniel successfully pushed N.O. away, N.O.
was able to grab McDaniel. The two began to fight, and N.O.
held McDaniel in a headlock. (Compl. at 3; SOF ¶¶ 27-34;
McDaniel Dep. at 104-05.) The unidentified correction officer
requested back up, and another correction officer entered the
area and attempted to break up the fight. The officer grabbed
McDaniel and pulled him away from N.O.; however, when
he realized that N.O. had McDaniel in headlock, he ordered
N.O. to release McDaniel, and N.O. complied. (Compl. at 3;
SOF ¶¶ 38-41; McDaniel Dep. at 106.) The two men were
separated, and McDaniel was removed from the dayroom.
(Compl. at 7; SOF ¶ 43; McDaniel Dep. at 106.)
6 McDaniel identified this correction officer as
Defendant DeLeon in the Amended Complaint but
testified as his deposition that he did not know
which officer intervened and ended the fight.
McDaniel claims that as a result of the incident he suffered a
pulled neck muscle and injuries to his arm, head, and tongue.
(Compl. at 8; McDaniel Dep. at 165.)
PROCEDURAL HISTORY
On September 20, 2019, McDaniel filed his original
complaint. (Dkt. 2.) McDaniel filed the operative Amended
Complaint on May 28, 2020, which additionally named
Defendants Golden and DeLeon. 7 (Dkt. 29.)
7 Correction Officer Gordon, previously named in
the first complaint, was not named in the Amended
Complaint. (Dkt. 29.)
The parties proceeded through discovery, which concluded
on March 25, 2021. (Dkt. 58.) On May 10, 2021, Defendants
filed the instant motion for summary judgment. (Dkt. 63.)
Defendants filed a declaration and a memorandum in support
of the motion as well as a statement of undisputed material
facts pursuant to the Southern District of New York's Local
Civil Rule 56.1. (Dkts. 64, 65, 67.) Along with the supporting
Declaration of Peter Brocker, Defendants submitted several
exhibits including: (1) the New York City Department of
Correction Inmate Movement History regarding McDaniel's
transfers within Rikers Island; (2) excerpts of McDaniel's
deposition, dated March 24, 2021; (3) the New York
City Department of Correction New Admission Screening
Report for McDaniel; (4) the New York City Department
of Correction Injury to Inmate Report for McDaniel, dated
March 30, 2019; and (5) a Notice of Personal Injury Claim
Form submitted by McDaniel on April 16, 2019.
On May 12, 2021, the case was referred to me for
report and recommendation on the Defendants’ motion for
summary judgment. (Dkt. 69.) McDaniel filed an opposition
to Defendants’ motion on July 9, 2021 (Dkt. 73), 8 and
Defendants filed their reply on August 28, 2021. (Dkt. 80.)
McDaniel did not submit a Rule 56.1 Statement of Undisputed
Facts.
8 McDaniel filed duplicate copies of his opposition
at Dkts. 73 and 76.
LEGAL STANDARDS
The Court sets forth the relevant legal standards regarding
summary judgment, review of pro se pleadings, and the
requirements for deliberate indifference and excessive force
claims under 42 U.S.C. § 1983.
A. Summary Judgment
“[A] court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
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R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986).
The Court's task is not to resolve contested issues of fact but
rather to determine whether there exists any disputed issue
of material fact. Donahue v. Windsor Locks Board Of Fire
Commissioners, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S.
Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986). “ ‘A fact
is material when it might affect the outcome of the suit under
governing law.’ ” Gorham-DiMaggio v. Countrywide Home
Loans, Inc., 421 F. App'x 97, 101 (2d Cir. 2011) (summary
order) (quoting McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 202 (2d Cir. 2007)). A dispute “is ‘genuine’ ... if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.
Ct. at 2510.
*3 “The moving party bears the initial burden of
demonstrating ‘the absence of a genuine issue of material
fact.’ ” Federal Deposit Insurance Corp. v. Great American
Insurance Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting
Celotex, 477 U.S. at 323, 106 S. Ct. at 2553). Once that burden
is met, “the opposing party must come forward with specific
evidence demonstrating the existence of a genuine dispute of
material fact.” Id. (citing Anderson, 477 U.S. at 249, 106 S.
Ct. at 2510).
“ ‘All evidence submitted on the motion is to be construed in
the manner most favorable to the nonmoving party.’ ” Okin
v. Village Of Cornwall-On-Hudson Police Department, 577
F.3d 415, 427 (2d Cir. 2009) (quoting Horvath v. Westport
Library Association, 362 F.3d 147, 151 (2d Cir. 2004)).
However, “[t]o defeat a summary judgment motion, the non-
moving party ‘must do more than simply show that there
is some metaphysical doubt as to the material facts,’ and
‘may not rely on conclusory allegations or unsubstantiated
speculation.’ ” Federal Deposit Insurance Corp., 607 F.3d
at 292 (first quoting Matsushita Electrical Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356
(1986), then quoting Scotto v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998)). While “disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment[,] [f]actual disputes
that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248, 106 S. Ct. 2510; see also Knight,
804 F.2d at 11-12 (“ ‘the mere existence of factual issues
– where those issues are not material to the claims before
the court – will not suffice to defeat a motion for summary
judgment’ ” (alteration omitted)) (quoting Quarles v. General
Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curium)).
Where, as here, a plaintiff is pro se, district courts must
read his or her pleadings “liberally and interpret them to
raise the strongest arguments that they suggest.” Jorgensen v.
Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal
quotation marks omitted). Courts “are less demanding of
[pro se] litigants generally, particularly where motions for
summary judgment are concerned.” Jackson v. Federal
Express, 766 F.3d 189, 195 (2d Cir. 2014). A pro se litigant
thus is given “special solicitude” in responding to a motion for
summary judgment. Tracy v. Freshwater, 623 F.3d 90, 101 (2d
Cir. 2010); see also Knowles v. New York City Department Of
Corrections, 904 F. Supp. 217, 220 (S.D.N.Y. 1995) (same).
This solicitude, however, “does not relieve [the pro se litigant]
of his duty to meet the requirements necessary to defeat a
motion for summary judgment.” Jorgensen, 351 F.3d at 50
(internal quotation marks omitted).
B. Consequences of McDaniel's Failure to Provide a
Rule 56.1 Statement
Pursuant to Rule 56(c) of the Federal Rules Of Civil
Procedure, a party asserting that a fact cannot be, or is,
genuinely disputed “must support the assertion by” either
“citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed.
R. Civ. P. 56(c)(1). The court need only consider the cited
materials, although it may consider other materials in the
record. Fed. R. Civ. P. 56(c)(3). The Southern District of New
York's local rules require the parties to submit enumerated
statements of undisputed and disputed material facts. Local
Civil Rule 56.1(a)-(b). Consistent with Rule 56(c) of the
Federal Rules of Civil Procedure, “[e]ach statement by the
movant or opponent ... including each statement controverting
any statement of material fact, must be followed by citation
to evidence which would be admissible.” Local Civil Rule
56.1(d).
*4 “Pro se litigants ... are not excused from meeting the
requirements of Local Civil Rule 56.1” when a party moving
for summary judgment provides notice to a pro se party
consistent with Local Civil Rule 56.2. Wali v. One Source Co.,
678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009); see also Berry
v. Marchinkowski, 137 F. Supp. 3d 495, 502 n.1 (S.D.N.Y.
2015) (“A pro se litigant is not excused from [Local Civil Rule
56.1]”). If the pro se party fails to file a Rule 56.1 statement,
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a court may deem all factual allegations of the moving
party as true or, in the alternative, may “opt to conduct an
assiduous review of the record.” Battle v. Day Care Council,
Local 205, DC 1707 Welfare Fund, No. 11-CV-4043, 2012
WL 3055574, at *1 n.1 (S.D.N.Y. July 26, 2012) (internal
quotation marks and citation omitted); see Brandever v. Port
Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774,
at *3 (S.D.N.Y. March 13, 2014) (concluding that because
the pro se plaintiff did not submit a Rule 56.1 statement in
response to the defendant's statement of facts, “there [were]
no material issues of fact”); see also Anand v. New York
State Division of Housing and Community Renewal, No. 11-
CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29, 2013)
(same).
While Defendants filed a Rule 56.1 statement, McDaniel
did not. Nor did McDaniel directly object to Defendants’
Rule 56.1 statement in whole or in part, despite the fact
that Defendants served McDaniel with the requisite Notice
To Pro Se Litigants. (Dkt. 66.) Instead, McDaniel submitted
only an opposition to Defendants’ motion, addressing only
two of Defendants’ arguments and containing few factual
contentions. The Court therefore accepts as true Defendants’
factual assertions in its Rule 56.1 statement, but also credits,
for purposes of this motion, McDaniel's factual assertions
to the extent they are based on personal knowledge and not
unduly speculative.
C. Section 1983 Claims
To state a cause of action under 42 U.S.C. § 1983, “ ‘a plaintiff
must allege that some person acting under color of state law
deprived him of a federal right.’ ” Ahlers v. Rabinowitz, 684
F.3d 53, 60-61 (2d Cir. 2012) (quoting Washington v. James,
782 F.2d 1134, 1138 (2d Cir. 1986)). Because § 1983 does
not provide its own substantive right, plaintiffs must identify
the federally protected right that was allegedly violated. See
Gonzaga University v. Doe, 536 U.S. 273, 285, 122 S. Ct.
2268, 2276 (2002) (plaintiffs cannot simply claim a violation
of § 1983, because § 1983 “ ‘by itself does not protect anyone
against anything’ ”) (quoting Chapman v. Houston Welfare
Rights Organization, 441 U.S. 600, 617, 99 S. Ct. 1905, 1916
(1979)). Accordingly, the plaintiff must show that (1) the
defendant acted under color of state law and that (2) as a result
of the defendant's actions, the plaintiff suffered a denial of
federal statutory rights or constitutional rights or privileges.
Annis v. County Of Westchester, 136 F.3d 239, 245 (2d Cir.
1998). Additionally, “in all § 1983 cases, the plaintiff must
prove that the defendant's action was a proximate cause of the
plaintiff's injury.” Gierlinger v. Gleason, 160 F.3d 858, 872
(2d Cir. 1998); see also White v. City Of New York, No. 16-
CV-6183, 2017 WL 3575700, at *5 (S.D.N.Y. Aug. 17, 2017).
Read liberally, the Amended Complaint asserts claims for
deliberate indifference to safety and excessive force. Because
he was a pre-trial detainee at the time the incident in
question occurred, McDaniel's 1983 claims arise under the
Fourteenth Amendment. See Darnell v. Pineiro, 849 F.3d 17,
29 (2d Cir. 2017) (“A pretrial detainee's claims are evaluated
under the Due Process Clause because[ ] [p]retrial detainees
have not been convicted of a crime and thus may not be
punished in any manner – neither cruelly and unusually nor
otherwise”) (internal quotation marks and citations omitted);
Barnes v. Harling, 368 F. Supp. 3d 573, 596 (W.D.N.Y.
2019) (“Under current Second Circuit law, when a pretrial
detainee plaintiff brings § 1983 claims alleging deliberate
indifference, including claims alleging failure to protect
or intervene,” a district court analyzes these claims under
the Fourteenth Amendment using the standard set forth in
Darnell); Graham v. Conner, 490 U.S. 386, 395 n.10, 109
S. Ct. 1865, 1871 n.10 (1989) (“the Due Process Clause [of
the Fourteenth Amendment] protects a pretrial detainee from
the use of excessive force that amounts to punishment”);
Edrei v. Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (“pretrial
detainees ... rely on the constitutional guarantee of ‘due
process’ ”).
1. Deliberate Indifference To Prisoner Safety - Failure
To Intervene
*5 To state a claim of deliberate indifference under
the Due Process Clause of the Fourteenth Amendment,
a plaintiff's allegations must satisfy a two-prong test
comprised of both objective and subjective standards. “[T]o
establish an objective deprivation, the inmate must show
that the conditions, either alone or in combination, pose
an unreasonable risk of serious damage to his health. ...
There is no static test to determine whether a deprivation
is sufficiently serious; instead, the conditions themselves
must be evaluated in light of contemporary standards of
decency.” Molina v. County of Westchester, No. 16-CV-3421,
2017 WL 1609021, at *2 (S.D.N.Y. Apr. 28, 2017) (internal
citations and quotation marks omitted). To satisfy the second,
subjective prong, “[a] pretrial detainee must prove that the
defendant-official acted intentionally ... or recklessly failed to
act with reasonable care to mitigate the risk ... even though the
defendant-official knew, or should have known, of the risk of
harm.” Id. at *3 (internal quotations marks omitted); see also
Darnell, 849 F.3d at 35 (same and referring to this subjective
prong as the “mens rea prong”).
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2. Excessive Force
A claim of excessive force under the Fourteenth Amendment
arises under the Due Process Clause. See United States
v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). To prevail on
a Fourteenth Amendment excessive force claim, a pretrial
detainee must show that “the force purposely or knowingly
used against him was objectively unreasonable.” Kingsley
v. Hendrickson, 576 U.S. 389, 396-97, 135 S. Ct. 2466,
2473 (2015). In contrast to both the subjective and objective
elements of the deliberate indifference claim, an excessive
force claim under the Fourteenth Amendment uses a wholly
objective standard. See id. at 397, 135 S. Ct. at 2473.
DISCUSSION
As discussed below, McDaniel's claims should be dismissed
on summary judgment. McDaniel's claims against the City
should be dismissed as there is no evidence of municipal
liability. The claims against officers Manzo and Golden
should be dismissed because there is no evidence by which
a reasonable juror could find Manzo and Golden were
personally involved in any actionable conduct or absence
of conduct. Further, there is no evidence to establish the
objective element of either Section 1983 claim or the
subjective element of the deliberate indifference claim.
A. No Evidence Of Municipal Liability
Municipalities cannot be vicariously liable under Section
1983 for their employees’ acts. Monell v. Department of
Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037
(1978). Municipalities are only liable under Section 1983
for constitutional deprivations resulting from a governmental
policy or custom. Id., 98 S. Ct. at 2037-8. A plaintiff
may demonstrate that such a policy or custom exists by
introducing evidence of one of the following: “(1) a formal
policy officially endorsed by the municipality; (2) actions
taken by government officials responsible for establishing the
municipal policies that caused the particular deprivation in
question; (3) a practice so consistent and widespread that,
although not expressly authorized, constitutes a custom or
usage of which a supervising policy-maker must have been
aware; or (4) a failure by policymakers to provide adequate
training or supervision to subordinates to such an extent that
it amounts to deliberate indifference to the rights of those who
come into contact with the municipal employees.” Jones v.
Westchester County, 182 F.Supp.3d 134, 158 (S.D.N.Y. 2016)
(quoting Brandon v. City of New York, 705 F.Supp.2d 261,
276–77 (S.D.N.Y. 2010)). To prevail on a Monell claim, a
plaintiff must also show that “there is a direct causal link
between [the] municipal policy or custom and the alleged
constitutional deprivation” he suffered. City of Canton, Ohio
v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 (1989).
The City is a municipality and therefore cannot be sued as
a defendant absent a viable Monell claim. McDaniel has not
provided any evidence, let alone particularized allegations,
of any policies or widespread practices or customs related
to the alleged action, or inaction, of the correction officers.
Nor has McDaniel provided any evidence, or even claimed,
that a need for better monitoring and training was otherwise
obvious. Rather, the facts as alleged and for which proof
has been presented concern a specific one-time incident
involving a physical altercation between McDaniel and
another inmate. Those allegations are not enough to indicate
a customary practice or existence of a particular policy. See
City Of Oklahoma City v. Tuttle, 471 U.S. 808, 841, 105
S. Ct. 2427, 2445 (1985) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof
that it was caused by an existing, unconstitutional municipal
policy, which can be attributed to a municipal policymaker”).
Despite naming the City as a defendant, the Amended
Complaint does not even address the City and contains
no allegations connecting policymaking officials with the
alleged misconduct or alleging failure to train or supervise.
Accordingly, the Complaint fails to state an actionable civil
rights claim against the City. Similarly, the record is devoid
of any evidence to support such a claim. Judgment should be
granted in favor of the City.
B. No Proof Of Personal Manzo Or Golden's Personal
Involvement
*6 “It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Johnson
v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d
Cir. 2001); see also Lloyd v. City of New York, 43 F. Supp.
3d 254, 266 (S.D.N.Y. 2014) (“Personal involvement is a
question of fact and must be satisfied as to each individual
defendant”). Personal involvement can be established by
showing that the individual “(1) directly participated in the
violation, (2) failed to remedy the violation after being
informed of it by report or appeal, (3) created a policy or
custom under which the violation occurred, (4) was grossly
negligent in supervising subordinates who committed the
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violation, or (5) was deliberately indifferent to the rights of
others by failing to act on information that constitutional
rights were being violated.” Rahman v. Fisher, 607 F. Supp.
2d 580, 585 (S.D.N.Y. 2009) (quoting Iqbal v. Hasty, 490 F.3d
143, 152–153 (2d Cir. 2007)). McDaniel has not presented
evidence by which a reasonable juror could find the requisite
personal involvement of either Manzo or Golden.
McDaniel testified that Manzo was not present for the
incident “until it was all over.” (McDaniel Dep. at 98-99.)
When asked whether Manzo had an opportunity to intervene
and stop the fight between him and N.O., McDaniel stated
that he was “not sure.” (McDaniel Dep. at 191.)
Similarly, Defendant Golden was not directly involved in the
altercation between McDaniel and N.O. Golden was stationed
in the “bubble” – the housing area's command center, which is
“[a]bout 25, 30 feet away” from where the incident occurred.
(McDaniel Dep. at 107.) McDaniel testified that he did not tell
Golden that he was going to fight with N.O. and that Golden
did not have an opportunity to stop the fight. (McDaniel
Dep. at 109, 191). McDaniel also indicated that Golden could
not “particularly see out of the bubble into the dorm per
se.” (McDaniel Dep. at 107.)
McDaniel has presented no evidence that either Defendant
Golden or Manzo directly participated in the incident, failed
to address a violation, developed or enforced a problematic
policy related to the violation, failed to supervise the
correction officers who allegedly committed the violation, or
were in any other way deliberately indifferent to McDaniel's
rights. McDaniel's conclusory allegations are not sustainable.
See Brown v. Doe, No. 13-CV-8409, 2014 WL 5461815, at *8
(S.D.N.Y. Oct. 28, 2014) (“Conclusory accusations regarding
a defendant's personal involvement in the alleged violation,
standing alone, are not sufficient”) (internal quotation marks
omitted). Without more, the claims against Manzo and
Golden cannot stand and should be dismissed.
C. No Deliberate Indifference Claim
“Prison officials have a duty ... to protect prisoners from
violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1976 (1994)
(internal quotation marks omitted). Therefore, in certain
circumstances, “[a]llowing an attack on an inmate to proceed
without intervening is a constitutional violation.” Rosen v.
City of New York, 667 F. Supp. 2d 355, 360 (S.D.N.Y. 2009)
(internal quotation marks omitted). However, “[n]ot every
injury that a prisoner suffers at the hands of another results
in constitutional liability for the officials responsible for
that prisoner's safety.” Taylor v. City Of New York, No. 16-
CV-7857, 2018 WL 1737626, at *11 (S.D.N.Y. March 27,
2018) (citing Farmer, 511 U.S. at 834, 114 S. Ct. 1970,
1977). McDaniel's deliberate indifference claims requires him
to demonstrate (1) that the alleged violation was “sufficiently
serious” and (2) that the Defendants knowingly disregarded
an excessive risk to his health or safety. Defendants argue that
McDaniel cannot establish either the objective or subjective
prong of his deliberate indifference claim. The Court agrees.
*7 As an initial matter, McDaniel concedes that an
unidentified Correction Officer, and later Defendant DeLeon,
did intervene during the altercation with N.O. (Compl.
at 7.) Presumably, McDaniel alleges that a Correction
Officer should have intervened earlier to prevent the fight.
Defendants argue that they were not on notice of the incident
prior to its occurrence and therefore could not have taken
steps to intervene before the fight began.
1. No Substantial Risk Of Serious Harm
To meet the objective prong for a claim based on failure
to protect, McDaniel must show that he was incarcerated
under conditions that posed a substantial risk of serious harm.
Although there is not litmus test for what is considered
“sufficiently serious” the Second Circuit has explained that
“prisoners may not be deprived of their basic human needs
—e.g., food, clothing, shelter, medical care, and reasonable
safety—and they may not be exposed to conditions that pose
an unreasonable risk of serious damage to their future health.”
Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (internal
brackets and quotation marks omitted). For a failure to
protect claim in the context of violence between incarcerated
individuals, “[a] substantial risk of serious harm can be
demonstrated where there is evidence of a previous altercation
between a plaintiff and an attacker, coupled with a complaint
by plaintiff regarding the altercation or a request by plaintiff
to be separated from the attacker.” Gilmore v. Rivera, No. 13–
CV–6955, 2014 WL 1998227, at *3 (S.D.N.Y. May 14, 2014).
McDaniel argues that moving him to the Dorm 2 Upper
exposed him to serious risk, of which Defendants were or
should have been aware. McDaniel alleges that Defendants
knew that members of a certain gang were targeting him and
that they purposely moved him to a housing unit in which
many members of that gang were also housed. (Compl. at
5.) McDaniel provides no details to support these allegations
and does not offer any evidence showing that on the day in
question, he was at substantial risk of harm.
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Upon his arrival to AMKC, McDaniel was asked if he knew of
any reason why he would be at risk or need special protection.
He indicated that he did not. (SOF ¶¶ 3-5; McDaniel Dep.
at 77.) McDaniel asserts that in the moments leading up the
altercation with N.O., he informed the Correction Officer
posted near the phone that “N.O. was angry, and that he
has some kind of psychological problem, and that he is
stalking me and he's threatening me” and that he told N.O.
in front of this officer that he did not want to engage in
a fight. (McDaniel Dep. at 84.) McDaniel does not know
which Correction Officer he spoke to because there were two
officers on the floor – the unidentified Defendant Doe and
Defendant DeLeon. (McDaniel Dep. at 85.) Without more,
McDaniel's claim cannot survive.
At no point either before or after his transfer to the new
housing unit did McDaniel report to Defendants that he was
afraid of or targeted by N.O. (SOF ¶¶ 12-13; McDaniel Dep.
at 85.) Moreover, McDaniel had interacted with N.O. a few
times before the March 30, 2019 altercation without any
threats of violence or cause for concern. (SOF ¶¶ 15-16;
McDaniel Dep. at 90.)
McDaniel has not established a previous altercation with
N.O. or that he complained about N.O. or made a request
to be separated from N.O. prior to the altercation. McDaniel
thus cannot meet the objective standard of establishing that
he was subject to a sufficiently serious risk of harm. See
e.g., Ewers v. City Of New York, No. 17-CV-1116, 2021 WL
2188128, at *6 (S.D.N.Y. May 28, 2021) (granting summary
judgment to defendants on the first prong of plaintiff's failure
to protect claims because “Plaintiff has not provided any
evidence that he and [the other inmate] engaged in prior
physical altercations that should have indicated to Officer
Haywood that there was an unreasonable risk of serious harm
to plaintiff, as is required for plaintiff to succeed on his
failure to protect claim”); Leckie v. City Of New York, No. 18-
CV-3917, 2021 WL 84234, at *5 (E.D.N.Y. Jan. 11, 2021)
(granting defendants’ summary judgment motion regarding
claims of deliberate indifference because plaintiff “does not
demonstrate that he was incarcerated in conditions that posed
a substantial risk of harm, because prior to this attack he
testified that he did not fear for his life or safety; further,
[plaintiff] had not complained about his attackers, raised
concerns about his safety in Housing Area 6B, or otherwise
provided notice to [defendants] that he was at a substantial
risk of harm”); Gilmore, 2014 WL 1998227 at *3 (dismissing
claim as a matter of law where “nothing suggests that [the
Department of Corrections] or the other Defendants would
have known [prior to the incident] that Plaintiff himself was at
risk”); Stewart v. Schiro, No. 13-CV3613, 2015 WL 1854198,
at *7 (E.D.N.Y. Apr. 22, 2015) (dismissing failure to protect
claim where plaintiff had never been involved in an attack
before and had no reason to suspect that he would be attacked
on the day of the incident).
2. No Deliberate Indifference
*8 For the same, and additional reasons, McDaniel
cannot establish the second requirement that Defendants
were deliberately indifferent. To assess the deliberate
indifference element, the question is whether an official
“acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the
risk that the condition posed to the pretrial detainee even
though the defendant-official knew, or should have known,
that the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35.
McDaniel has offered no evidence indicating that the
Defendants either intentionally or recklessly failed to act to
mitigate the risk. In the context of prisoner safety, a prison
official's failure to intervene violates a pretrial detainee's
Fourteenth Amendment rights only where the officer acted
with “deliberate indifference to a substantial risk of serious
harm” to the detainee. Farmer, 511 U.S. at 836, 114 S. Ct.
at 1978 (internal quotation marks omitted). “In the context
of a failure to intervene claim, an officer displays deliberate
indifference when he has adequate time to assess a serious
threat against an inmate and a fair opportunity to protect
the inmate without risk to himself, yet fails to intervene.”
Rosen, 667 F. Supp. 2d at 360 (internal quotation marks
omitted). Here, the undisputed facts show that Correction
Officers responded to the altercation by directly intervening
between McDaniel and N.O., attempting to restrain N.O.,
requesting back up assistance, and separating McDaniel from
N.O. Nothing in the record indicates that the Defendants
failed to intervene in the incident, let alone that they did
so with deliberate indifference. Accordingly, the Defendants
are entitled to summary judgment with respect to McDaniel's
deliberate indifference claims.
D. No Excessive Force Claim
To make a successful excessive force claim under the
Fourteenth Amendment, McDaniel must show that the used
against him was objectively unreasonable. Kingsley, 576 U.S.
at 396-97, 135 S. Ct. at 2472-73. Factors bearing on the
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objective reasonableness of the force include “the relationship
between the need for the use of force and the amount of
force used; the extent of the plaintiff's injury; any effort
made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.” Edrei, 892 F.3d at 534 (internal
quotation marks omitted).
The record here is devoid of any evidence of unreasonable use
of force. The parties agree that while McDaniel and N.O. were
engaged in a physical altercation, a correction officer pulled
McDaniel away from N.O. 9 Because N.O. had McDaniel
in a headlock, the correction officer pulling on McDaniel
gave N.O. a direct order to release McDaniel, which N.O.
complied with, and then the officer separated the two men.
(Compl. at 7; SOF ¶¶ 38-41; McDaniel Dep. at 105-06.)
Grabbing or pulling a detainee may constitute a significant
use of force and in certain cases may form the basis of a
constitutional violation. However, “if the force was applied
in a good-faith effort to maintain or restore discipline, it is
unlikely to be repugnant to the conscience of mankind, and
will not amount to excessive force under Second Circuit law.”
Quinones v. Rollison, No. 18-CV-1170, 2020 WL 6420181,
at *4 (S.D.N.Y. Nov. 1, 2020) (internal quotation marks
omitted).
9 It is unclear which Correction Officer allegedly
used excessive force against McDaniel. The
Amended Complaint states that Defendant DeLeon
pulled McDaniel away from N.O., but at his
deposition, McDaniel indicated that he was not
sure if it was Defendant DeLeon or another officer.
(Compl. at 7; McDaniel Dep. at 106.)
*9 McDaniel does not dispute that the sole purpose of the
officer's use of force was to end the fight between the two
detainees. In a prison setting, the use of force to restore order
can be reasonable. See e.g., Quinones, 2020 WL 6420181 at
*4 (granting summary judgment to Correction Officer who
used pepper spray to break up a fight between prisoners);
Dobbins v. Ponte, No. 15-CV-3091, 2017 WL 3309726, at
*5 (S.D.N.Y. Aug. 2, 2017) (granting summary judgment to
the defendants as to the plaintiff's Fourteenth Amendment
excessive use of force claim because the plaintiff “was
indisputably acting in a belligerent and defiant manner”);
Barnes v. Harling, 368 F. Supp. 3d 573, 593 (W.D.N.Y. 2019)
(finding that a correction officer's use of force to break up a
fight did not rise to the level of constitutional violation).
Defendants argue that given the circumstances, the officers’
actions were reasonable and no reasonable juror could find
otherwise. Noting the Court's duty to “take account of
the legitimate interests in managing a jail” and deferring
to “policies and practices needed to maintain order and
institutional security is appropriate,” the Court agrees that
the minimal force used to separate McDaniel from N.O.
was objectively reasonable. Frost v. New York City Police
Department, 980 F.3d 231, 252 (2d Cir. 2020) (quoting
Kingsley, 576 U.S. at 399-400, 135 S. Ct. at 2474).
Additionally, McDaniel has presented no evidence that his
injury was incurred while an officer was separating him from
N.O. as compared to when N.O. first put McDaniel in a
headlock. But even if he had, the injury alleged by McDaniel
is de minimis. McDaniel alleges that the officer's use of
force led him to suffer a pulled neck muscle. The Second
Circuit has clearly ruled, however, that “[n]ot every push or
shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates a prisoner's constitutional
rights.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997).
Rather, plaintiffs must “show that the harm incurred was more
than de minimis.” Berry v. City Of New York Department
Of Corrections., No. 12-CV-7819, 2014 WL 2158518, at *5
(S.D.N.Y. May 22, 2014), aff'd sub nom., 622 F. App'x 10 (2d
Cir. 2015); see also Lynch v. City Of New York, 952 F.3d 67, 77
(2d Cir. 2020) (“there is a de minimis level of imposition with
which the Constitution is not concerned”) (internal quotation
marks omitted); Lewis v. Huebner, No. 17-CV-8101, 2020
WL 1244254, at *5 (S.D.N.Y. Mar. 16, 2020) (“claims
for excessive force under the Fourteenth Amendment must
involve force that is either more than de minimis or repugnant
to the conscience of mankind”) (internal quotation marks
omitted).
Based on the foregoing, a reasonable juror could not conclude
that the officers used excessive force while intervening in
the altercation between McDaniel and N.O. Consequently,
McDaniel's excessive force claim cannot proceed.
E. Qualified Immunity
Defendants argue that if claims against Defendant DeLeon
survive summary judgment, he is nonetheless entitled
to qualified immunity. Defendants have established that
there is insufficient evidence to establish either deliberate
indifference or excessive force. They are entitled to summary
judgment on that basis. Accordingly, the Court need not
address the issue of qualified immunity.
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F. Negligence Claim
In addition to the Section 1983 claims, McDaniel asserts a
state law negligence claim; i.e., that Defendants neglected
their duty to protect him from N.O. (Compl. at 8-9.) This
claim too should be dismissed on the merits. 10
10 Where, as here, a federal court dismisses all
federal claims, the court may exercise its discretion
to decline supplemental jurisdiction and dismiss
remaining state law claims without prejudice.
See 28 U.S.C. § 1367(c)(3); see also Blackrock
Balanced Capital Portfolio v. HSBC Bank USA,
National Association, 95 F. Supp. 3d 703, 708-09
(S.D.N.Y. 2015) (district court “may decide to
refuse to exercise supplemental jurisdiction if ...
the district court has dismissed all other claims
over which it had federal jurisdiction....”); Rosario
v. International Auto Mall & Leasing Center,
Inc., No. 12-CV-4059, 2013 WL 1144893, at *4
(S.D.N.Y. March 19, 2013) (dismissing state claim
where the court “has no independent basis for
federal jurisdiction”). Conversely, the Court may
exercise its discretion to resolve the state court
claims. See Carlsbad Technology, Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639, 129 S. Ct. 1862, 1866
(2009) (“A district court's decision whether to
exercise that jurisdiction after dismissing every
claim over which it had original jurisdiction is
purely discretionary”). Given the lack of merit
to McDaniel's claims, and that the state law
negligence claim can be disposed of for some of
the same reasons as the § 1983 claims, the Court
recommends resolving the state law claim as set
forth above.
*10 Under New York law, plaintiffs alleging negligence
must establish “(1) the existence of a duty on defendant's part
as to plaintiff; (2) a breach of this duty; and (3) injury to the
plaintiff as a result thereof.” Sackin v. TransPerfect Global,
Inc., 278 F. Supp. 3d 739, 747 (S.D.N.Y. 2017) (quoting
Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 428 (2d
Cir. 2013)). “[I]t is well-established in New York that when
the State assumes physical custody of inmates or detainees,
who cannot protect and defend themselves in the same way
as those at liberty can, the State owes a duty of care to
safeguard those individuals from harm.” Maldonado v. Town
Of Greenburgh, 460 F. Supp. 3d 382, 400 (S.D.N.Y. 2020).
That duty extends to attacks from other incarcerated persons;
however, it does not “render the State an insurer of inmate
safety.” Sanchez v. State Of New York, 99 N.Y.2d 247, 252
784 N.E.2d 675, 678(N.Y. 2002). Rather, “the scope of the
State's duty to protect inmates is limited to risks of harm that
are reasonably foreseeable.” Id.
As discussed above in the context of McDaniel's § 1983
claims, Defendants were not on notice of any specific
threat or impending harm to McDaniel, and N.O's attack
was not reasonably foreseeable. Defendants thus did not
breach their duty with respect to McDaniel's safety, and
Defendants are entitled to summary judgment. 11 See Case
v. Anderson, No. 16-CV-983, 2017 WL 3701863, at *24
(S.D.N.Y. Aug. 25, 2017) (“Although a duty of care is
owed by prison authorities with respect to the health and
safety of their charges, the State's duty to prisoners does
not mandate unremitting surveillance in all circumstances”)
(internal citation and quotation marks omitted). Courts in this
district have dismissed negligence claims against prison staff
in similar circumstances. See, e.g., House v. City Of New York,
No. 18-CV-6693, 2020 WL 6891830, at *21 (S.D.N.Y. Nov.
24, 2020) (granting summary judgment in favor of defendants
and dismissing plaintiff's negligence claim where Plaintiff
failed to establish that his risk of harm was reasonably
foreseeable by prison staff); Kovalchik v. City Of New York,
No. 09-CV-4546, 2014 WL 4652478, at *9 (S.D.N.Y. Sept.
18, 2014) (granting Defendant's summary judgment motion
for section 1983 and negligence claims because “no jury
could find that reasonable care required the City to ... provide
greater supervision of [plaintiff]”).
11 Defendants also contend that McDaniel's
negligence claim is deficient for failure to comply
with the strict requirements to file and plead a
notice of claim against municipal entities or their
employees. See N.Y. Gen. Mun. Law § 50-i(1), 50-
e. McDaniel apparently did timely file a notice of
claim and described the manner in which the claim
arose and the injuries claimed. (See Dkt. 64, Ex.
E.) Although McDaniel did not allege filing of the
notice of claim in his complaint, the Court does not
recommend granting summary judgment on that
basis.
CONCLUSION
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McDaniel v. City of New York, Not Reported in Fed. Supp. (2022)
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For the foregoing reasons, I recommend that Defendants’
motion for summary judgment be GRANTED in its entirety
and that McDaniel's claims be dismissed in their entirety.
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and
6(d) of the Federal Rules of Civil Procedure, the parties
have fourteen (14) days to file written objections to this
Report and Recommendation. Such objections shall be filed
with the Clerk of Court, with extra copies delivered to
the Chambers of the Honorable Katherine P. Failla, United
States Courthouse, 40 Foley Square, New York, New York
10007, and to the Chambers of the undersigned, 500 Pearl
Street, New York, New York 1007. FAILURE TO FILE
TIMELY OBJECTIONS WILL RESULT IN WAIVER
OF OBJECTIONS AND PRECLUDE APPELLATE
REVIEW.
All Citations
Not Reported in Fed. Supp., 2022 WL 1446541
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 62 of 177

McDaniel v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:19-CV-08735
McDaniel v. Department of Correction et al
— S.D.N.Y. Sep. 20, 2019 Docket
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 63 of 177

McDaniel v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. McDaniel v. City of New York
2022 WL 1446541 , S.D.N.Y. , Jan. 21, 2022
Report and Recommendation Adopted by
2. McDaniel v. City of New York
2022 WL 421122 , S.D.N.Y. , Feb. 11, 2022
Related References (1)
3. McDaniel v. Department of Correction
2019 WL 6251370 , S.D.N.Y. , Nov. 22, 2019
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Lemmo v. McKoy, Not Reported in F.Supp.2d (2011)
2011 WL 843974
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Burch v. City of New York, E.D.N.Y., April 22, 2016
2011 WL 843974
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Robert LEMMO, Plaintiff,
v.
Police Officer Kelvin McKOY, Police
Officer Bruce Tulloch, and New York
City Police Department, Defendants.
No. 08–CV4264 (RJD).
|
March 8, 2011.
Attorneys and Law Firms
Robert Lemmo, Flushing, NY, pro se.
Shlomit Aroubas, New York, NY, for Defendants.
MEMORANDUM & ORDER
DEARIE, Chief Judge.
*1 Pro se plaintiff Robert Lemmo brings this action pursuant
to 42 U . S.C. § 1983 alleging that his constitutional
rights were violated when certain officers subjected him to
excessive force following his arrest for disorderly conduct on
January 1, 2006. Liberally construed, the complaint raises two
distinct section 1983 claims, one for false arrest and the other
for excessive force. Before the Court is defendants' motion
for summary judgment. For the reasons set forth below, the
motion is granted in part and denied in part.
FACTUAL BACKGROUND 1
1 The Court writes here for the parties only, whose
familiarity with the facts is assumed.
On New Year's Eve 2005, plaintiff and several of his friends
went out to celebrate. Plaintiff admits that he had several
drinks and was intoxicated. At some point after leaving
the celebration, plaintiff was walking on the “L trestle”
of the subway near Roosevelt Avenue and 99th Street in
Queens when he was stopped by police. According to
plaintiff's deposition, he was asked by the police to provide
identification and not to smoke on the trestle and, when he
refused, an officer slapped the cigarette out of his mouth
and arrested him. Plaintiff was immediately handcuffed, and
according to even his own account, there was no physical
altercation at the time of arrest.
The police version differs somewhat. In his affidavit, arresting
officer Bruce Tulloch states that at a checkpoint set up by
members of the Queens North Task Force, at approximately
1:45 a.m., he observed plaintiff “using abusive language
toward officers and other persons in the area” and that plaintiff
“repeatedly disobeyed lawful orders to leave the checkpoint.”
Tulloch prepared the arrest paperwork and, in his report,
stated that he observed plaintiff “cursing profusely at people
causing them to leave to avoid [plaintiff]” and also observed
plaintiff “obstruct pedestrian traffic.” Plaintiff was charged
with two counts of disorderly conduct.
Once at the precinct (the 110th), plaintiff was placed in
a holding cell and eventually brought back out to be
fingerprinted. Apparently he was not handcuffed at this point.
Officer Tulloch, in his affidavit, states that he attempted to do
the fingerprinting, but plaintiff “became irate and combative
and refused to cooperate” and that “with the assistance of
other officers,” plaintiff was placed back in handcuffs and
returned to a holding cell. Plaintiff's account of the same
incident in his deposition differs in certain particulars but is
not irreconcilable with Officer Tulloch's account. According
to plaintiff, when he was brought out to be fingerprinted, he
began to get upset because he had believed he would merely
receive a ticket but instead realized he was “going through
the system.” Plaintiff admits that he resisted the effort to
fingerprint him, that the “discussion became a little louder,”
that he asked to see a captain, and that the encounter “turned
into a shouting match.” He further claims that he was thrown
on the floor and put in a headlock in order to be re-handcuffed.
*2 Only now does the story reach the point where plaintiff
claims he was the victim of excessive force: according to
plaintiff's deposition, once he was re-handcuffed, he was
escorted by two officers back to a cell (referred to throughout
his deposition as “a second cell”) and while en route, one
of the officers twisted his thumbs. Plaintiff claims that the
shouting match had just ended and that, being handcuffed, he
was not resisting the effort to escort him to the second cell. But
plaintiff also admits that, immediately upon being placed in
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the second cell, he shouted at the officers, essentially taunting
them by telling them not to open the cell again because he
was angry and ready to assault them. According to plaintiff,
instead of ignoring him, the officers opened and entered the
cell, went behind him, grabbed his thumbs and “both cranked
at [them] at the same time.” Plaintiff further claims that he
asked for medical attention and was spit on.
A topic of inquiry at plaintiff's deposition was whether he
could identify which particular officers allegedly twisted his
thumbs. Plaintiff stated that it was the same officers who
arrested him on the street, and that he was sure that Officer
Tulloch was one of them. As to the other defendant named in
this action, Officer Kevin McKoy, plaintiff admitted that he
“could never pinpoint Mc[K]oy.” He was sure that “there was
another white guy assisting Tulloch” but “whether his name
is Mc[K]oy or not [he] couldn't” say.
Pressed further, plaintiff insisted that he remembered Tulloch:
“I could point him out because it is four years ... Him I could
remember.” As for McKoy, plaintiff explained that his “name
is involved because under my assumptions the one that was
assisting Tulloch was Mc[K]oy.” Plaintiff further testified
that, “The one that was doing the prints and what do you call
it, twisted the right thumb, because I know Tulloch grabbed
the left ... that I know for a fact is the one that Tulloch twisted.
He opened the cell, came behind me, grabbed it, and they both
cranked it at the same time.”
On the question of identity, Officer Tulloch, as noted, stated
in his affidavit that it was he who attempted to fingerprint
plaintiff, but his affidavit does not address the ensuing events
other than by averring that “[a]t no point on January 1,
2006 did [Tulloch] use excessive force against plaintiff” or
“witness excessive force being used.”
Officer Kevin McKoy, by contrast, avers that that he was
not present at the 110th precinct on January 1, 2006 and did
not come into contact with plaintiff on that date. According
to his affidavit and supporting documentation, McKoy was
working in the Expedited Affidavit Program at the Queens
Court Section, located on Queens Boulevard, and was on the
receiving end of the arrest paperwork prepared and faxed by
Officer Tulloch.
Returning to the events on the night in question, plaintiff's
and defendants' account of what occurred after the incident
in the second cell are generally consistent. Emergency
Medical Services were called to transport plaintiff to Elmhurst
Hospital Center as an “emotionally disturbed person” or
“EDP,” to be assessed before arraignment. All the relevant
Elmhurst paperwork is part of the record: on the admission
form, the “reason for referral” section states that plaintiff
was, according to the NYPD, “acting bizarre” and was to be
evaluated as a possible “EDP.” The initial evaluation report
states, inter alia, that plaintiff “reported that he was beaten
up by NYPD” but also that upon initial approach by medical
personnel, plaintiff was “uncooperative,” “incoherent,” and
“irritable, with an angry affect.” This same report also states,
“unable to determine safety of patient at this time.”
*3 Additional notes document that plaintiff complained
of pain in the thumb of his left hand, and that it was
tender. Not all of the medical records contain times, but it
appears that plaintiff spent several hours at Elmhurst and was
eventually “psychiatrically cleared to go to arraignment.” It
was recommended that he receive additional psychiatric care
but not in an inpatient setting. Several additional pages in
the packet of Elmhurst records contain “assessment” sections.
One states that plaintiff “only complains of wrist and thumb
pain;” another, noting that plaintiff was “presently calm, quiet
and cooperative,” reports “both thumbs swollen” and “[l]eft
wrist swollen.” A separate report also states that plaintiff
was “now calm.” “Minor scratches on both wrists” were also
noted. In the “violence assessment” section of another report,
plaintiff is reported as having “denie[d]” having a history of
violence but also having “state[d] [that] he had fight with
NYPD last night.” When asked what makes him angry or
upset, plaintiff replied “low life cops.” Plaintiff also told
medical evaluators that he had been drinking.
Following his discharge from Elmhurst, plaintiff was
arraigned, after 11:00 p.m., and remanded into the custody of
Department of Corrections. According to the record of DOC's
medical screening, plaintiff's physical condition was “ok.”
According to defendants, plaintiff did not receive or request
medical treatment while in DOC custody (at Riker's Island).
In his deposition, however, plaintiff claims that he asked for
treatment but was told there was nothing that could be done.
On January 6, 2006, plaintiff pled guilty to disorderly conduct
and was sentenced to time served.
Plaintiff admits that he did not seek additional treatment
and was not diagnosed with thumb damage. But he states
nevertheless that the swelling in his thumb lasted for a week
and a half after his arrest, that the pain in his thumbs lasted
several weeks, and that during that time he could not button
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or zipper clothes, or hold a coffee cup or brush his teeth. He
further claims that his thumb joints have never been the same;
at the time of his deposition he was working in lumber, and
stated that if he went to grab for something his thumb still did
not flex in the right way.
DISCUSSION
The parties' familiarity with the well-established summary
judgment standards is assumed. See generally Fed.R.Civ.P.
56(c) (2); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex
Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009)
(record to be construed in the light most favorable to the
nonmoving party, all reasonable inferences must be drawn in
his favor, and all ambiguities resolved his way).
A. False Arrest
Plaintiff's § 1983 false arrest claim must be dismissed as a
matter of law because he pled guilty to the charges stemming
from the arrest he challenges and the conviction has not
been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486–
87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (section 1983
plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, or
called into question by issuance of writ of habeas corpus;
unless conviction so invalidated, claim for damages not
cognizable); Cameron v. Fogarty, 806 F.2d 380, 386–89 (2d
Cir.1986) (false arrest plaintiff “can under no circumstances
recover if he was convicted of the offense for which he was
arrested”), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95
L.Ed.2d 501 (1987); Simmons v. Kelly, 2009 WL 857410, *5
(S.D.N.Y. Mar.31, 2009) (“a guilty plea that is not overturned
on appeal provides conclusive evidence of probable cause
and, accordingly, bars a section 1983 claim for false arrest
or imprisonment stemming from the conviction at issue”).
Accordingly, defendants are entitled to summary judgment in
their favor on plaintiff's false arrest claim.
B. Excessive Force
*4 There are three standards for excessive force depending
on when the alleged violation occurred. If excessive force was
allegedly used before arraignment, the Fourth Amendment
standards govern. Graham v. Connor, 490 U.S. 386, 394,
109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[w]here, as here,
the excessive force claim arises in the context of an arrest
or investigatory stop of a free citizen, it is most properly
characterized as one invoking the protections of the Fourth
Amendment”); Sloan v. Kraus, 06 CV 5372, 2010 WL
3489397, *10 (S.D.N.Y. Sept.3, 2010). If the alleged violation
occurs after arraignment but before conviction, then the
Fourteenth Amendment applies. Nimkoff v. Dollhausen, 08
CV 2856, 2010 WL 4678711 (E.D.N.Y.2010). Allegations
of excessive force occurring after conviction are subject to
an Eighth Amendment analysis. Ingraham v. Wright, 430
U.S. 651, 671, n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).
The Second Circuit has held that the Fourteenth and Eighth
Amendment tests are essentially the same and apply to claims
brought by pre-trial detainees and sentenced convicts. United
States v. Walsh, 194 F.3d 37, 48 (2d Cir.1999).
Defendants argue that plaintiff's excessive force claim
is governed by the Fourteenth Amendment because the
alleged misconduct occurred at the police precinct, but it
is undisputed that plaintiff had not yet been arraigned, so
his claim is governed by the Fourth Amendment. Sloan,
2010 WL 3489397 at *10 (“Here, because plaintiff alleges
excessive force by a police officer prior to his arraignment, a
Fourth Amendment excessive force analysis applies,” citing
Graham ); Santiago v. City of New York, 2000 WL 1532950,
*4 (S.D.N.Y. Oct.17, 2000) (section 1983 plaintiff “was
under arrest and in custody ... but had not been arraigned or
convicted of any crime ... [as] neither a pre-trial detainee nor
a prisoner, but an arrestee in custody,” plaintiff “is protected
from excessive force by the Fourth Amendment's prohibition
on unreasonable seizures of the person,” citing Graham ).
The Fourth Amendment standard is said to be one of
“objective unreasonableness,” Graham, 490 U.S. at 396;
Nimely v. City of New York, 414 F.3d 381, 390 (2d Cir.2005).
Because the application of such a generalized standard to the
facts of particular cases can be challenging, it is useful to draw
liberally upon then Chief Justice Rehnquist's description of
the test in Graham:
Determining whether the force
used to effect a particular seizure
is “reasonable” under the Fourth
Amendment requires a careful
balancing of the nature and quality of
the intrusion on the individual's Fourth
Amendment interests against the
countervailing governmental interests
at stake ... Our Fourth Amendment
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jurisprudence has long recognized
that the right to make an arrest or
investigatory stop necessarily carries
with it the right to use some
degree of physical coercion or threat
thereof to effect it....Because the
test of reasonableness under the
Fourth Amendment is not capable
of precise definition or mechanical
application, however, its proper
application requires careful attention
to the facts and circumstances of each
particular case, including the severity
of the crime at issue, whether the
suspect poses an immediate threat to
the safety of the officers or others, and
whether he is actively resisting arrest
or attempting to evade arrest by flight.
*5 Id., 490 U.S. at 396 (internal quotations and citations
omitted).
Graham further teaches that “[t]he ‘reasonableness' of a
particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. The Court labels this a “standard of
reasonableness at the moment,” id., and explains that just as
“[t]he Fourth Amendment is not violated by an arrest based
on probable cause, even though the wrong person is arrested,
nor by the mistaken execution of a valid search warrant on the
wrong premises,” the “same standard” applies “[w]ith respect
to a claim of excessive force.” Id. (internal citations omitted).
Quoting earlier precedent, Graham reiterates that “[n]ot
every push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers, violates the Fourth
Amendment,” and that “[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Id.,
490 U.S. at 396–97 (internal quotation marks omitted).
Finally, in addition to requiring that account be taken of
the realities of police work, Graham underscores that the
test is objective, not subjective: “the question is whether
the officers' actions are ‘objectively reasonable’ in light
of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. at 397.
Stated bluntly, “[a]n officer's evil intentions will not make a
Fourth Amendment violation out of an objectively reasonable
use of force; nor will an officer's good intentions make an
objectively unreasonable use of force constitutional.” Id.
The Second Circuit applies the Graham test when assessing
whether force is excessive under the Fourth Amendment for
section 1983 purposes. See Nimely v. City of New York, 414
F.3d 381, 390 (2d Cir.2005). Borrowing from the “objective”
component of the Eighth Amendment test for excessiveness
and the Supreme Court's observation that “[n]ot every push
or shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates the Fourth Amendment,” the
Second Circuit and district courts in the Circuit recognize
the concept of “de minimis” injury and, when the injury
resulting from alleged excessive force falls into that category,
the excessive force claim is dismissed. See e.g., Smith v.
City of New York, 2010 WL 3397683, *10 (2010) (“Courts
in this Circuit have consistently held that an injury is de
minimis when it is temporary and/or minor in severity”)
(collecting cases). Injuries held to be de minimis for purposes
of defeating excessive force claims include short-term pain,
swelling, and bruising, Richardson v. New York City Health
and Hospitals Corp., 05 Civ. 6278, 2009 WL 804096, at
*10 (S.D.N.Y. Mar.25, 2009), brief numbness from tight
handcuffing, Hamlett v. Town of Greenburgh, 2007 WL
119291 (S.D.N.Y. Jan.17, 2007), claims of minor discomfort
from tight handcuffing, Vogeler v. Colbath, 04 CV 6071, 2005
WL 2482549 (S.D.N.Y. Oct.6, 2005), and two superficial
scratches with a cut inside the mouth. Warren v. Westchester
County Jail, 106 F.Supp.2d 559 (S.D.N.Y.2000) (an Eighth
Amendment case).
*6 On the other hand, courts have allowed plaintiffs to
recover, even though the injury caused was not permanent or
severe, where the force used was excessive. See, e.g., Robison
v. Via, 821 F.2d 913, 924 (2d Cir.1987). In Robison, the Circuit
held that the plaintiff's testimony that an officer “ ‘pushed’
her against the inside of the door of her car, ‘yanked’ her
out, ‘threw [her] up against the fender,’ and ‘twisted [her]
arm behind [her] back,’ and that “she suffered bruises lasting
a ‘couple weeks,’ was “sufficient to prevent the summary
dismissal of a § 1983 claim for excessive force.” 821 F.2d at
923–24. The Court further explained that, “[w]hile Robison
did not seek medical treatment for her injuries, and this fact
may ultimately weigh against her in the minds of the jury in
assessing whether the force used was excessive, this failure
is not fatal to her claim” because “[i]f the force used was
unreasonable and excessive, the plaintiff may recover even
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if the injuries inflicted were not permanent or severe.” Id. at
924. Although Robison pre-dates Graham, the Second Circuit
continues to cite the decision as an instructive example. See
Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004)
(“we have permitted a plaintiff's claim to survive summary
judgment on allegations that, during the course of an arrest, a
police officer twisted her arm, ‘yanked’ her, and threw her up
against a car, causing only bruising,” citing both Graham and
Robison ). Indeed, in Maxwell, the district court had granted
summary judgment for the defendants because “plaintiff's
claim that she allegedly scraped her head when being shoved
into the car is not sufficient for any reasonable jury to find
excessive force claim in this case—minor scrapes, bumps or
bruises potentially could occur, often unintended, during any
arrest, and an arresting officer cannot be held unremittingly
liable for every such incident.” Maxwell, 380 F.3d at 109
(quoting lower court decision). The Second Circuit reversed,
finding the claimed conduct and injury sufficiently jury-
worthy. Id. at 109–10.
Following Robison and Maxwell is the decision of Judge
Bianco in Davenport v. County of Suffolk, 99 CV 3088, 2007
WL 608125 (E.D.N.Y. Feb.23, 2007). While “recogniz[ing]
that there may be certain circumstances where the alleged
unconstitutional act and injury are so de minimis that it
cannot rise to a constitutional violation as a matter of law,”
Judge Bianco nevertheless allowed the plaintiff to amend her
complaint to add a claim for excessive force alleging that
an officer banged his head against the top of the police car
during the arrest. Davenport, 2007 WL 608125, *9–10. Judge
Bianco explained that, “[a]lthough the focus of Davenport's
proposed amendment pertains [only] to the alleged banging of
his head on the police car during the arrest and he proffers no
medical evidence of injury in connection with his motion to
amend, the Court cannot find that such a claim is necessarily
futile.” Id. at *10. Integral to the reasoning in Davenport
(and the reasoning of the numerous cases it collects) is the
apparent gratuitousness of the police conduct at issue; as
Judge Bianco explains, “In the instant case, Davenport may be
able to demonstrate that the officer intentionally hit his head
on the car during the arrest, causing an injury to his head, and
he could argue that this alleged gratuitous use of force by an
officer constituted an objectively unreasonable use of force.”
Id. In short, although the Graham test does not consider the
subjective intent of the officer(s) per se, Davenport and the
line of authorities on which it relies recognize that intentional,
gratuitous uses of force that are not required to subdue an
individual likely fail the Graham objective unreasonableness
test. See, e.g., Pierre–Antoine v. City of New York, No. 04–
CV–6987 (GEL), 2006 WL 1292076, at *4 (S.D.N.Y. May
9, 2006) (use of force against an already subdued individual
would constitute an objectively unreasonable use of force
under the Fourth Amendment); Graham v. Springer, No.
03–CV–6190 (CJS), 2005 WL 775901, at *6 (W.D.N.Y.
Apr.5, 2005) (summary judgment denied because plaintiff
was kicked while on the ground in handcuffs).
*7 Judge Bianco thus concluded that, “[a]lthough Davenport
has not alleged or proffered injuries as significant as those
in Maxwell and referred to his injury as a bump on the head
in oral argument, the Court cannot conclude as a matter
of law that any claim of this type ... would necessarily be
futile such that the Court should deny leave to amend. A
jury may consider the lack of serious injury as evidence that
the implemented force was not excessive, and may weigh
it against Davenport's testimony, but that does not mean
that there are no circumstances under which Davenport can
prevail.” Davenport, 2007 WL 608125, *11
Based on the reasoning and result in Robison, Maxwell, and
Davenport, I likewise deny summary judgment on plaintiff's
excessive force claim. To be sure, his injuries are not severe.
But they are not, on this record, imagined. Nor are they
materially less severe than those that have been held sufficient
to survive summary judgment in Maxwell and Robison. What
particularly gives me pause in this case is the fact that, if
plaintiff's testimony were credited, the cranking of his thumbs
by police officers was entirely gratuitous: granted, plaintiff
had been uncooperative when Officer Tulloch attempted to
fingerprint him, and by his own admission, hostilities had
escalated. But plaintiff does not target as excessive the force
that was used to subdue him at that point. What he complains
of is what occurred when he was already re-handcuffed and
re-secured in a holding cell. Granted, too, plaintiff appears to
have taunted the officers by shouting that they should not let
him out again because he was angry and might harm them,
but the officers could have, and should have, simply ignored
him. Despite plaintiff's verbal taunts, there is no indication
that he posed a serious threat, handcuffed and inside his cell,
to the officers outside. The cited authorities make it clear that
it should be for a jury, rather than this Court, to decide whether
it was objectively unreasonable under the circumstances
(including the relative non-severity of the charges plaintiff
faced) for the police officers to re-open the cell and “crank”
plaintiff's thumbs while they were handcuffed behind his
back. See Graham, 490 U.S. at 396 (factor to be considered
include “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
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or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight”). Additionally, the record
contains only a general denial by the officers with respect to
this episode rather than an actual conflicting account. The jury
can and should decide what actually occurred and what, if
any, compensation is due plaintiff. See Murray v. Williams,
No. 05–CV–9438 (NRB), 2007 WL 430419, at *7 (S.D.N.Y.
Feb.7, 2007) (laceration to lower lip, a bloody nose, pain and
suffering, and mental anguish held not to be de minimis);
Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d
Cir.1999) (“While the main purpose of a § 1983 damages
award is to compensate individuals for injuries caused by the
deprivation of constitutional rights, a litigant is entitled to an
award of nominal damages upon proof of a violation of a
substantive constitutional right even in the absence of actual
compensable injury”). Indeed, to this Court, it seems entirely
appropriate that a jury, citizens of this city, should decide
whether an officer or officers, sworn to protect and serve the
community, failed to deliver on their professional vow.
C. Qualified Immunity and the Proper Defendant(s)
1. Officer McKoy
*8 Plaintiff's papers offer nothing to refute Officer McKoy's
averment that he was not present at the 110th precinct on the
night of plaintiff's arrest and that he did not come into contact
with plaintiff at that time. Accordingly, defendant McKoy
is entitled to summary judgment on all claims against him.
Barratt v. Joie, 2002 WL 335014, *6 (S.D.N.Y. Mar.4, 2002)
(“Because § 1983 imposes liability only upon those who
actually cause a deprivation of rights, personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983”) (internal
quotation and citation omitted).
2. Officer Tulloch
Defendant Tulloch asserts qualified immunity as a defense to
plaintiff's claims. The doctrine of 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, ––––
129 S.Ct. 808, 815 (2009) (internal citation omitted). The
“ ‘driving force’ behind creation of the [ ] doctrine was a
desire to ensure that insubstantial claims against government
officials will be resolved prior to discovery.” Id. (internal
citations omitted).
In Fourth Amendment excessive force cases, however, the
qualified immunity and excessive force analyses “converge
on one question: [w]hether in the particular circumstances
faced by the officer, a reasonable officer would believe that
the force employed would be lawful.” Cowan v. Breen, 352
F.3d 756, 764 n. 7 (2d Cir.2003). See also Scott v. Henrich,
39 F.3d 912, 914 (9th Cir.1994) (“In Fourth Amendment
unreasonable force cases ... the qualified immunity inquiry is
the same as the inquiry made on the merits”).
Having determined that plaintiff's excessive force claim
presents triable issues of fact, I necessarily and likewise
conclude that defendant Tulloch is not entitled to summary
judgment on his defense of qualified immunity.
CONCLUSION
The motion for summary judgment is granted to the extent of
(i) dismissing plaintiff's false arrest claim; (ii) dismissing all
claims against Officer McKoy; and (iii) dismissing all claims
against the NYPD. The motion for summary judgment is in
all other respects denied. The case shall proceed to trial solely
on the excessive force branch of plaintiff's § 1983 claim. The
parties shall appear for a status conference on April 8 at 11:45
a.m. in Courtroom 10A.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 843974
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lemmo v. McKoy
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Title PDF Court Date Type
1. Docket 1:08-CV-04264
Lemmo v. McKoy et al
— E.D.N.Y. Oct. 28, 2008 Docket
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Lemmo v. McKoy
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Hicks v. Village of Ossining, Not Reported in Fed. Supp. (2016)
2016 WL 345582
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2016 WL 345582
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Robert HICKS, Plaintiff,
v.
VILLAGE OF OSSINING, Village of Ossining
Police Department, Aaron Zimmerman, Ossining
Police Officer #20896, Andrew J. Maiorana, Ossining
Police Officer #5949, Marvise Rennalls, Ossining
Police Officer #R1477, and William J. Gallagher,
Ossining Police Officer #G1055, Defendants.
12 CV 6874 (VB)
|
Signed 01/27/2016
Attorneys and Law Firms
Carolyn Verdine Minter, Law Offices of Carolyn V. Minter,
Ossining, NY, Thomas Martin Gambino, Law Office of
Thomas M. Gambino & Associates PC, Poughkeepsie, NY,
for Plaintiff.
John J. Walsh, II, Paul Edward Svensson, Hodges Walsh &
Messemer, LLP, White Plains, NY, for Defendant.
OPINION AND ORDER
Briccetti, J.
*1 Plaintiff Robert Hicks brings this Section 1983 civil
rights action, alleging an excessive force claim under the
Fourth Amendment. 1 Pending before the Court is defendants'
motion for summary judgment. (Doc. #67).
1 On March 3, 2015, the parties stipulated to a
dismissal of all of plaintiff’s other claims. (Doc.
#66).
For the following reasons, the motion is GRANTED as to
defendant Marvise Rennalls and DENIED as to the remaining
defendants.
The Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331.
BACKGROUND
The parties have submitted briefs, statements of facts,
declarations with supporting exhibits, and video evidence,
which reflect the following factual background.
On December 10, 2011, a woman filed a complaint stating
plaintiff held her against her will, straddled her on her bed,
and forcibly touched her. At approximately 6:20 p.m. on
December 12, 2011, plaintiff was standing on the sidewalk
outside the Ossining Village Court, adjacent to the Ossining
Police Department. 2 Officers Zimmerman, Maiorana, and
Gallagher approached plaintiff to arrest him on the woman’s
complaint.
2 Plaintiff was on his way to court in connection
with an unrelated assault charge for which he
had been released on his own recognizance. (Pl.’s
Deposition, at 18).
Video surveillance footage shows the arrest occurred in the
following manner. 3
3 Defendants submitted ten video clips from security
cameras in and around the police station. (Ex. L
to the Affirmation of Paul E. Svensson, hereinafter
“Ex. L”). In their filings, the parties refer to the
video clips by number in the order in which they
appear in the file. The Court adopts the same
numerical order to refer to these video clips. Only
the videos from inside the booking room of the
Ossining Police Department have audio.
The officers directed plaintiff to enter the police station.
Plaintiff walked with a cane towards the entrance of the
police station and stopped in front of the door. (Ex. L,
Clip #4, at 18:24:20). A fourth officer stepped outside and
joined Officers Zimmerman, Maiorana, and Gallagher. 4 (Id.
at 18:24:27). Officer Zimmerman touched plaintiff’s shoulder
with one hand. (Id. at 18:24:43). Officer Zimmerman’s hand
remained on plaintiff’s shoulder for approximately seven
seconds, at which point plaintiff took a step towards his
left, away from Officer Zimmerman. Plaintiff then turned
to his left, away from the police station door and towards
the street. (Id. at 18:24:56). About one second later, Officer
Zimmerman used both hands to take plaintiff’s shoulder and
pull him towards the door. Plaintiff took two steps towards the
door. Then, the other three officers stepped closer to plaintiff,
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while plaintiff bent his right knee and began lowering himself
towards the ground. (Id. at 18:25:01).
4 Neither plaintiff nor defendants definitively
identify the fourth officer assisting in the arrest.
Officer Gallagher believed it was Sergeant Burn
(Gallagher Dep. at 10), while Officer Rennalls
believed it was Officer Zoocardi (Rennalls Dep. at
20). In any event, the fourth officer was not named
as a defendant. During the arrest, Officer Rennalls
held the door to the police station open, talked to
plaintiff’s girlfriend, and did not come into contact
with plaintiff. (Rennalls Dep. at 18).
*2 All four officers held plaintiff up by his shoulders for
approximately four seconds, at which point plaintiff stretched
out his legs in front of him, and the officers lowered plaintiff
onto the ground. (Ex. L, Clip #4, at 18:25:05). Plaintiff was
sitting on the ground with his legs extended when Officer
Zimmerman took plaintiff’s cane. (Id. at 18:25:09). Plaintiff
then laid back onto the ground. (Id. at 18:25:11).
A few seconds later, Officer Zimmerman bent over plaintiff,
and plaintiff sat up at about a forty-five degree angle. (Ex.
L, Clip #4, at 18:25:17). Plaintiff laid back down with his
legs lifted slightly off the ground as Officer Zimmerman
remained bent over plaintiff. (Id. at 18:25:17-18:25:21). Then,
two officers bent down besides plaintiff’s head and left side 5
while Officer Zimmerman put his right knee on or near
the right side of plaintiff’s torso. (Id. at 18:25:24). Officer
Zimmerman’s knee did not move for approximately twelve
seconds, at which point the two other officers rolled plaintiff
onto his left side, then onto his stomach. (Id. at 18:25:36).
While the officers rolled plaintiff onto his left side, Officer
Zimmerman brandished his taser and held it in his right hand
for the remainder of the arrest. (Id. at 18:25:44).
5 Neither plaintiff nor defendants definitively
identify whether the officers near plaintiff’s head
and left side were Officer Maiorana, Officer
Gallagher, or the unidentified fourth officer. Along
with Officer Zimmerman, these two officers
assisted in handcuffing plaintiff.
Plaintiff lay face down on the sidewalk, with his feet
outstretched toward the doorway of the police station. The
two officers who had been bent over by plaintiff’s head and
left side moved his arms around his back to handcuff him.
Between 18:25:56 and 18:26:31, during the duration of the
handcuffing, one officer’s right knee was on or near the
plaintiff’s back.
Finally, two officers lifted plaintiff by his underarms, turned
him towards the entrance of the police station, and began
carrying him inside. (Ex. L, Clip #4, at 18:26:40). Plaintiff’s
legs were dragging on the ground, and Officer Zimmerman
picked them up, such that plaintiff was being carried by three
officers, approximately parallel to the ground, face down.
Once inside the police station booking room, the officers
laid plaintiff face down on the floor. (Ex. L, Clip #6, at
18:25:42). 6 Plaintiff cried for an ambulance or medical
assistance as officers took off his handcuffs. (Id. at 18:26:14).
Plaintiff remained prone with his arms resting next to his
sides. The officers instructed plaintiff to stand up and he
replied that he could not. (Id. at 18:27:36). The officers
searched plaintiff, during which time plaintiff cried out
repeatedly, “my ankle.” (Id. at 18:27:42-18:28:08). After the
search, the officers instructed plaintiff to roll over, and he
replied that he could not. (Id. at 18:28:13). One officer put his
hands on plaintiff’s shoulders while another pulled plaintiff’s
waist to roll plaintiff onto his back. (Id. at 18:28:20). After the
maneuver, plaintiff repeatedly cried out “ow” and “I want an
ambulance,” to which the officers replied, “you are going to
get one.” (Id. at 18:28:30-18:28:40). The officers continued
searching plaintiff. (Id. at 18:28:36). For approximately two
minutes, the officers talked to plaintiff while he lay supine
with his limbs outstretched.
6 The Court notes the time stamp on the security
cameras are incongruous because the time on the
booking room security camera when plaintiff enters
is approximately one minute before the time on the
outside security camera when plaintiff leaves the
sidewalk. Neither party has called into question the
accuracy of the security camera video; for clarity,
the Court will cite to the time reflected on each
video clip.
*3 The officers removed plaintiff’s jacket by first removing
the left sleeve, then the right sleeve, then by pulling the
jacket out from under plaintiff’s back. (Ex. L, Clip #7, at
18:31:27-18:32:12). During this forty-second time frame,
plaintiff cried out that the officers hurt his finger, his right
hand, his right wrist, his head, his neck, and his back. Plaintiff
told the officers he had previously injured his ankle and wrist,
and had been given casts. (Id. at 18:32:32). When the officers
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asked him why he was not wearing casts, he said, “because
I'm walking with a cane.” (Id. at 18:32:38). 7
7 In his deposition, plaintiff denied having any prior
injuries. (Pl.’s Dep. at 31) (“Q. Did you have any
injuries at all prior to the interaction with the police
that night? A. None.”).
Plaintiff remained lying down, talking to the officers for
approximately twelve minutes. The officers spoke to plaintiff
about the complaint alleging forcible touching, and discussed
whether plaintiff wanted to go to the hospital. Plaintiff told
the officers he was taking Vicodin for back pain. (Ex. L, Clip
#7, at 18:43:04). He also told Officer Zimmerman he was not
trying to be aggressive during the arrest outside the police
station. (Id. at 18:50:55).
Eventually, plaintiff asked for help to sit up. Two officers
lifted plaintiff’s torso up by his upper arms, and leaned him
against a wall with his legs outstretched in front of him. (Ex.
L, Clip #7, at 18:51:30). Plaintiff continued conversing with
the officers in that position for approximately seven minutes,
at which point two officers lifted plaintiff by his underarms
and seated him into a wheelchair. (Id. at 18:57:05).
After plaintiff was arraigned on the unrelated assault charge,
an ambulance took him to the hospital where he alleges an
MRI and x-rays revealed tendon damage to his right wrist and
a right ankle fracture. He also alleges he suffered “hip, back,
and neck pain.” (Third Amended Compl. at ¶ 39).
DISCUSSION
I. Legal Standard
The Court must grant a motion for summary judgment if
the pleadings, discovery materials before the Court, and any
affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp v. Catrett,
477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit
under the governing law .... Factual disputes that are irrelevant
or unnecessary” are not material and thus cannot preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
A dispute regarding a material fact is genuine if there is
sufficient evidence upon which a reasonable jury could return
a verdict for the non-moving party. See id. The Court “is not
to resolve disputed issues of fact but to assess whether there
are any factual issues to be tried.” Wilson v. Nw. Mut. Ins.
Co., 625 F.3d 54, 60 (2d Cir. 2010) (citation omitted). It is the
moving party’s burden to establish the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport Police
Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party has failed to make a sufficient
showing on an essential element of his case with respect to
which he has the burden of proof, then summary judgment
is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 323. If
the non-moving party submits evidence which is “merely
colorable,” summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50. The non-moving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and may not rely
on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
(internal citations omitted). The mere existence of a scintilla
of evidence in support of the non-moving party’s position
is likewise insufficient; there must be evidence on which
the jury could reasonably find for him. Dawson v. Cnty. of
Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
*4 On summary judgment, the Court resolves all
ambiguities and draws all permissible factual inferences in
favor of the non-moving party. Nagle v. Marron, 663 F.3d
100, 105 (2d Cir. 2011). If there is any evidence from which a
reasonable inference could be drawn in favor of the opposing
party on the issue on which summary judgment is sought,
summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.
2004).
While “it is undoubtedly the duty of district courts not to
weigh the credibility of the parties at the summary judgment
stage,” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d
Cir. 2005), the Supreme Court has instructed that “[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Therefore, district courts may make credibility assessments
at the summary judgment stage “where the plaintiff relies
almost exclusively on his own testimony, much of which is
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contradictory and incomplete, [because] it will be impossible
for a district court to determine whether the jury could
reasonably find for the plaintiff, and thus whether there are
any ‘genuine’ issues of material fact, without making some
assessment of the plaintiff’s account.” Jeffreys v. City of New
York, 426 F.3d at 554 (internal citation omitted).
II. Excessive Force Claim
Defendants contend they are entitled to summary judgment
on plaintiff’s excessive force claim, arguing the only piece
of evidence in the record that supports plaintiff’s allegations
of excessive force is plaintiff’s own contradictory and
incomplete testimony.
The Court disagrees.
“The Fourth Amendment prohibits the use of unreasonable
and therefore excessive force by a police officer.” Tracy v.
Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v.
Connor, 490 U.S. 386, 395 (1989)). “The Fourth Amendment
test of reasonableness ‘is one of objective reasonableness.’
” Bryant v. City of New York, 404 F.3d 128, 136 (2d
Cir. 2005) (quoting Graham v. Connor, 490 U.S. at 399).
Therefore, “the inquiry is necessarily case and fact specific
and requires balancing the nature and quality of the intrusion
on the plaintiff’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Tracy v.
Freshwater, 623 F.3d at 96. This assessment may include the
“severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. at 396.
Because police officers often must use some degree of force
when arresting or otherwise lawfully “seizing” an individual,
the Supreme Court has recognized that “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.” Graham
v. Connor, 490 U.S. at 396 (internal citation omitted). Thus,
a plaintiff generally must prove he sustained some injury to
prevail on an excessive force claim. McAllister v. N.Y.C.
Police Dep't, 49 F. Supp. 2d 688, 699 (S.D.N.Y. 1999); see
Landy v. Irizarry, 884 F. Supp. 788, 799 n. 14 (S.D.N.Y. 1995)
(“An arrestee must prove some injury, even if insignificant,
to prevail in an excessive force claim.”).
*5 It is typically the jury’s “unique task ... to determine the
amount of force used, the injuries suffered and the objective
reasonableness of the officer’s conduct.” Breen v. Garrison,
169 F.3d 152, 153 (2d Cir. 1999). Defendants nevertheless
contend this case is one of the rare circumstances when “the
plaintiff’s testimony is so replete with inconsistencies and
improbabilities that no reasonable juror would undertake the
suspension of disbelief necessary to credit the allegations
made in his complaint.” (Defs.' Br. at 7).
Although plaintiff did make several statements that were
either self-contradictory or were controverted by the video
evidence, 8 this is not a case in which “no reasonable person
would undertake the suspension of disbelief necessary to give
credit to the allegations made in the complaint.” Jeffreys
v. City of New York, 426 F.3d at 555 (quoting Schmidt v.
Tremmel, 1995 WL 6250, at *3 (S.D.N.Y. Jan. 6, 1995)).
Here, a reasonable juror could credit plaintiff’s statements
that are consistent with the video evidence – and those
statements may be enough to sustain an excessive force claim.
8 For example, to the extent plaintiff contends
defendants were “shoving, pushing, kicking” him
on the sidewalk, (Pl.’s Opp. at 5), or that defendants
“banged [plaintiff’s] head against the door” in the
booking room, (Pl.’s Rule 56.1 Counterstatement,
¶ 15), the Court does not credit those assertions,
as they are flatly contradicted by the video
evidence. See McKinney v. Dzurenda, 555 F.
App’x 110, 111-12 (2d Cir. 2014) (summary order)
(“[V]iewing the video footage together with the
other evidence, no reasonable fact-finder could
conclude that the defendants used force against
[plaintiff] maliciously or sadistically to cause
harm”); Kalfus v. N.Y. & Presbyterian Hosp., 476
F. App’x 877 (2d Cir. 2012) (summary order)
(affirming dismissal of plaintiff’s excessive force
claim where video “recordings demonstrate[d] that
[plaintiff] resisted arrest by refusing to stand up
or to permit himself to be handcuffed,” and “to
effect the arrest, officers turned [plaintiff] onto his
stomach, pulled his arms behind his back, placed
handcuffs on him, and lifted him onto his feet by
pulling on his upper arms, sweatshirt, and waste”).
First, plaintiff asserts he was not resisting arrest, and
defendants assert he was. Based on the video footage, it
is impossible to know what was said before and during
the altercation on the sidewalk, such as whether plaintiff
refused to comply with Officer Zimmerman’s, Officer
Maiorana’s, or Officer Gallagher’s orders. Moreover, the
video evidence does not unequivocally show plaintiff was
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resisting. Therefore, a reasonable juror could credit plaintiff’s
account that he obeyed the officers' instructions in a
nonresistant manner.
Second, plaintiff states he was kneed in the back. Defendants
argue “the video does not show the police striking the plaintiff
at all.” (Defs. Rule 56.1 Statement, ¶ 10). But the video
evidence is ambiguous as to how much force, if any, the
officers used with their knees on plaintiff. A reasonable juror
could credit plaintiff’s account that he was kneed in the back
with enough force to cause injuries.
Third, plaintiff states defendants' contact with his back caused
him back injuries. Plaintiff also contends the handcuffs were
applied too tightly, causing tendon damage. Defendants assert
plaintiff had prior injuries to his wrist, ankle, and back.
A reasonable juror could credit plaintiff’s account that his
injuries were caused by defendants, or that the force applied
by the officers' knees or the handcuffs exacerbated preexisting
injuries.
*6 Based on this evidence, a jury could infer that plaintiff –
compliant when instructed to walk towards the police station
and then prone on the ground – (i) did not pose a threat to
the safety of the officers, (ii) was not resisting arrest, (iii)
had knees pressed into his back with excessive force, (iv) had
handcuffs applied too tightly, and (v) was injured as a result.
That permissible inference cannot properly be rejected as a
matter of law. 9
9 However, the Court will grant summary judgment
as to Officer Marvise Rennalls. Plaintiff does not
dispute Officer Rennalls's account, supported by
video evidence, that she was not directly involved
in the arrest and had no contact with plaintiff.
(Rennalls Dep. at 22, 24). Although plaintiff
brought a failure to intervene claim that may
have applied to bystander officers such as Officer
Rennalls, the parties subsequently stipulated that
plaintiff’s only claim is for excessive force. (Doc.
#66).
Defendants cite several excessive force cases in which the
court held plaintiff’s testimony was not credible as a matter
of law, and urge the Court to do so here. But the excessive
force claim in each of these cases was undermined by
other evidence, such that a rational juror could not credit
the allegations. See, e.g., McKinney v. Dzurenda, 555 F.
App’x at 111-12 (summary order) (concluding defendants
“used necessary force in a good faith effort to maintain
order and security and re-gain control over” plaintiff when
video evidence showed plaintiff “assumed a boxing stance
and made clear his willingness to fight”); Kalfus v. N.Y.
& Presbyterian Hosp., 476 F. App’x at 880-81 (summary
order) (“[R]ecordings demonstrate that [plaintiff] resisted
arrest by refusing to stand up or to permit himself to be
handcuffed, and that the patrolmen used only reasonable force
to overcome [plaintiff’s] resistance.”); Jeffreys v. City of New
York, 426 F.3d at 554 (holding plaintiff’s testimony was
“largely unsubstantiated by any other direct evidence” and
“so replete with inconsistencies and improbabilities that no
reasonable juror would ... credit the allegations made in the
complaint”).
Of course, the jury is not compelled to find plaintiff did not
resist, or that the amount of force used by defendants actually
injured plaintiff. These are issues that remain in dispute. But
if plaintiff did not resist, and if defendants kneed plaintiff’s
back or applied the handcuffs too tightly, causing injuries, a
reasonable jury could find the force used was excessive. 10 At
this stage, the Court will not make credibility determinations
resolving the material factual issues of whether plaintiff
resisted arrest and whether Officers Zimmerman, Maiorana,
or Gallagher caused plaintiff injuries.
10 Officers' acts that are less punishing than kneeing
the back of a prone and compliant arrestee have
supported a Fourth Amendment claim of use of
excessive force. See, e.g., Maxwell v. City of
New York, 380 F.3d 106, 109 (2d Cir.) (reversing
summary judgment dismissal of an excessive force
claim when an officer shoved plaintiff into the
back of a police car and plaintiff’s head struck
a hard surface of the car, causing pain in her
arm and lower back); Robison v. Via, 821 F.2d
913, 924-25 (2d Cir.1987) (permitting an excessive
force claim to survive summary judgment on
allegations that a police officer twisted an arrestee’s
arm and threw her against a car, causing bruising).
Additionally, “[s]everal decisions have recognized
that excessively tight handcuffing that causes
injury can constitute excessive force.” Shamir v.
City of New York, 804 F.3d 553, 557 (2d Cir. 2015)
(collecting cases).
*7 In sum, although this is a close call, viewing the
record in the light most favorable to plaintiff, there are
material issues of fact as to whether Officers Zimmerman’s,
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Hicks v. Village of Ossining, Not Reported in Fed. Supp. (2016)
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Maiorana’s, or Gallagher’s use of force was reasonable under
the circumstances, and whether the officers caused any or
all of plaintiff’s injuries. Therefore, defendants' motion for
summary judgment on plaintiff’s excessive force claim is
denied as to Officers Zimmerman, Maiorana, or Gallagher.
CONCLUSION
Defendants' motion for summary judgment (Doc. #67) is
GRANTED as to Officer Rennalls and DENIED as Officers
Zimmerman, Maiorana, and Gallagher.
Counsel are directed to submit a Joint Pretrial Order in
accordance with the Court’s Individual Practices by February
26, 2016, and to appear for a pretrial conference on March 10,
2016, at 9:30 a.m.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2016 WL 345582
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 78 of 177

Hicks v. Village of Ossining
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:12cv06874
HICKS v. DOE ET AL
— S.D.N.Y. Sep. 10, 2012 Docket
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Hicks v. Village of Ossining
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
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Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
PETER PIATETSKY, Plaintiff,
v.
PORT AUTHORITY OF NEW YORK and
NEW JERSEY AND POLICE OFFICER
ANTHONY CAMACHO, Defendants.
Case No. 24-cv-9136 (CM)
|
Filed 05/19/2026
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
McMahon, J:
*1 On December 2, 2023, Peter Piatetsky (“Piatetsky” or
“Plaintiff”) rode an electric unicycle into the Holland Tunnel.
Unregistered vehicles are not permitted in the Tunnel, and a
unicycle is an unregistered vehicle. Defendant P.O. Anthony
Camacho, a member of the Port Authority Police Department,
tried to stop Piatetsky from entering the Tunnel, then stopped
New Jersey-bound traffic from entering the Tunnel in order to
effectuate Plaintiff's arrest. Plaintiff responded to the traffic
stoppage by turning his unicycle around in the New Jersey-
bound Tunnel and riding it back toward Manhattan (i.e.,
the wrong way) along the Tunnel's wall. When he emerged
from the Tunnel, he swerved his cycle away from where
Camacho was standing. So the officer tackled and arrested
him. Piatetsky spent ten hours in a holding cell in the Port
Authority Bus Terminal before being transferred to Central
Booking.
At his arraignment on the morning of December 3, 2023,
Piatetsky pleaded guilty to one non-criminal count of
disorderly conduct; he was sentenced to time served. All
other charges against him (resisting arrest, attempted assault,
trespass, and harassment), were dropped.
During the altercation with Camacho when he emerged from
the Tunnel, Plaintiff claims that his ankle was injured, causing
a temporary limp. He also alleges that he suffers from
post-concussive neurological symptoms, such as persistent
migraine headaches, photosensitivity, hyperacusis, insomnia
and anxiety, as a result of hitting his head on a concrete
barrier during the takedown. An initial CAT scan showed no
neurological abnormalities, but one doctor has opined that
Piatetsky suffered a traumatic brain injury as a result of the
incident.
Piatetsky filed this lawsuit on November 27, 2024. He asserts
claims under 42 U.S.C. § 1983 against Camacho for excessive
force and denial of the right to a fair trial because of the
purported fabrication of evidence. He also brought a Monell
failure to train claim and a state law negligent hiring/training
claim against the Port Authority. Piatetsky's claims under
New York City Administrative Code § 8-802 have been
dropped, as has his request for punitive damages. 1
1 Punitive damages are not a cause of action; they are
a remedy.
Following discovery, Defendants move for summary
judgment dismissing all Piatetsky's claims, either on the
merits or because Camacho is entitled to qualified immunity.
For the reasons below, Defendants’ motion is GRANTED in
part and DENIED in part.
Statement of Facts
On a motion for summary judgment, the court considers all
disputed facts in the light most favorable to the Plaintiff.
I. Holland Tunnel and the Port Authority Traffic
Rules and Regulations
The Port Authority is a governmental agency created by
compact between the states of New York and New Jersey.
N.Y. Consol. Laws § 6401, et seq., N.J.S.A. 32:1–163. The
Port Authority operates various water crossings, including
the Lincoln Tunnel, George Washington Bridge, Bayonne
Bridge, Goethals Bridge, Outerbridge Crossing, and the
Holland Tunnel (the “Tunnel”). Nazareno Decl. Ex. H, at 2.
*2 The events in this case occurred in and around one of
the New York entrances to the Holland Tunnel en route to
New Jersey. There are multiple entrances feeding into the
westbound tunnel in the Soho/Tribeca area (it appears that
there are as many as four), but once inside the tube itself,
there are two lanes of traffic moving westbound toward New
Jersey. At what I will call the North Freedom Place entrance
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to the New Jersey-bound Tunnel, a concrete barrier separates
the right traffic lane from a drop-off into a gated maintenance
area and ventilation shaft. Nazareno Decl. Ex. O at 00:00–
00:05.
Vehicles driving from New Jersey back into New York are in
a separate tube, so all cars entering the tunnel at issue in this
case are headed to New Jersey.
The Holland Tunnel is governed by the Port Authority Traffic
Rules and Regulations (“Traffic Rules and Regulations” or
“Traffic Rules”). On the date in question, December 2, 2023,
the rules in effect were those promulgated in a 2016 Revision.
Those rules provide, in general, that, “Nothing contained or
omitted [herein] shall be construed to relieve any person from
exercising all reasonable care to avoid or prevent injury or
damage to persons or property.” Dkt. No. 38-8, at 8.
Pursuant to the Traffic Rules that were in effect on the
date of the incident, pedestrians, cyclists, and other non-
motorized vehicles were prohibited from entering the Holland
Tunnel, absent permission from the Port Authority. Id. at
10–11. The Traffic Rules then in effect also provided that,
“No motor vehicle shall be permitted in or upon any part of
a vehicular crossing which is not registered in accordance
with the provisions of the law of the state in which such
part of the vehicular crossing is located.” See Nazareno
Decl. Ex. H at 11. The tunnels are “vehicular crossings.”
And while the Traffic Rules do not define “Motor Vehicle,”
an electric scooter is a vehicle that has a motor. (Dkt. #1
¶ 17) New York State did not then, and does not now,
require riders to register electric scooters, including electric
unicycles, before using them on New York streets. Dkt.
No. 45 ¶ 21; see N.Y. Vehicle & Traffic Law §§ 114-
e, 1282 (McKinney 2020) (Defining “electric scooter” and
regulating their operation); N.Y. Dep't of Motor Vehicles,
Electric Scooters and Bicycles and other Unregistered
Vehicles, https://dmv.ny.gov/registration/electric-scooters-
and-bicycles-and-omer-umegistered-vehicles. Therefore,
pursuant to the rule just discussed, electric unicycles were not
permitted in the Holland Tunnel under the Traffic Rules in
effect in 2016– although it was not until 2026 that the Rules
were amended to include such vehicles on a comprehensive
list all of the types of vehicles that fell within the restriction. 2
2 As of January 5, 2026, the Traffic Rules elaborate
that “Vehicles or devices prohibited by the laws
or regulations of New York or New Jersey
from traveling on highways with characteristics
similar to those of the Vehicular Crossing,” and
specifically prohibit “Pedestrians, Bicycles, other
velocipedes, Electric Bicycles, Light Scooters,
Electric Scooters, pushcarts, wheelbarrows, and all
other non-motorized vehicles and Devices” from
using Port Authority crossings. See Port Auth.
N.Y. & N.J., TB&T Traffic Rules and Regulations
(2026) (emphasis added). To the extent that some
of these vehicles or devices are not required to
be registered, they were always prohibited from
entering the Tunnel, but the amended rule (not
surprising, in light of the sudden profusion of such
vehicles on the streets of the city) clarifies any
possible misunderstanding on that score. I cannot
tell on the current record whether signage at the
entrance to the Tunnel has been updated to conform
to the Rule.
*3 At the time of the incident, there was signage posted
outside the Tunnel to warn at least some of the drivers/riders
who might be approaching that they and their vehicles are
not permitted in the Tunnel. Those signs expressly prohibited
“pedestrians” and “bicycles” from entering the Tunnel. Dkt.
No. 37 ¶ 18. “Bicycle” is a defined term under the Traffic
Rules: A “Bicycle [s]hall include a velocipede, tricycle or
other light vehicle propelled by the riders or rider.” Id. at 8.
“Pedestrian” is defined as “a person afoot.” Id. at 9. Although,
as explained above, other types of unregistered vehicles were
not allowed to enter the Tunnel, the signs at the entrance to
the Tunnel did not specifically mention them.
Finally, drivers must pay a toll to enter New York, but are not
required to pay a toll when leaving New York. Dkt. No. 38-8,
at 8.
The Traffic Rules and Regulations are enforced by the Port
Authority Police Department (“PAPD”). Dkt. No. 37 ¶ 16.
PAPD officers assigned to the Holland Tunnel are responsible
for overseeing traffic entering and exiting the crossing. Id.
II. The Events Underlying this Lawsuit
On the date of the incident, PAPD Officer Anthony Camacho
(“Camacho” or “Defendant”) was assigned to a foot post at
the North Freedom Place entrance to the westbound tube of
the Tunnel, where he had been working since his shift began
at 6:00 AM. Id. ¶ 13. Officer Ivan Lee was also overseeing
traffic on the New York side of the Tunnel. See Nazareno
Decl. Ex. P. Officers Kyle Reitan, Rhett Peppi, and Vincent
Sharkey were positioned at the Tunnel's exit in New Jersey.
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Dkt. No. 42, at 3; Nazareno Decl. Ex. Q at 16:00–16:20;
Warner Decl. Ex. 8. Officer Kevin Corea was stationed nearby
and arrived shortly after the collision. Nazareno Decl. Ex. P
at 31:00–33:35. Dispatch Officer James Leister monitored the
cameras in and around the Holland Tunnel. Dkt. No. 37 ¶ 9.
Lieutenant Reynaldo Mendez was the supervising officer on
duty who responded to the incident. Dkt. No. 37 ¶ 11.
PAPD officers, including Officer Camacho, receive training
from the Port Authority. Dkt. No. 37 ¶¶ 19–20; Nazareno
Decl. Ex. A, Camacho Tr. 36:21–25. Officers are trained to
know the Traffic Rules and Regulations, Dkt. No. 37 ¶ 20,
including what vehicles may and may not enter the Tunnel.
Nazareno Decl. Ex. A, Camacho Tr. at 36:21–25. Officers
also receive training on other police procedures, including
the requirements for probable cause and the authorized use
of reasonable force. Nazareno Decl. Ex. A, Camacho Tr. at
109:11–110:8, 115:4–16. While officers are taught that they
may stop individuals if there is probable cause to believe that
the driver has committed a crime or traffic infraction, the
training does not include specific guidance about whether,
when, and how force can be appropriately applied in order to
stop someone on a moving vehicle. Id. at 113:14–125:6; Dkt.
No. 42 at 5. Officer Camacho had previously been involved
in a collision with a motorcycle that failed to stop for his
commands following a traffic infraction. Id., Camacho Tr. at
125:7–15.
One of the primary responsibilities of PAPD officers stationed
at the Holland Tunnel is to monitor the roadway for vehicles
prohibited from entering the Tunnel and to ensure that they
do not enter. Dkt. No. 37 ¶ 16. PAPD officers are there to
ensure that “only registered vehicles enter[ ] the Holland
Tunnel.” Id. At his deposition, Camacho explained, “There's
multiple devices that are not allowed in the Holland Tunnel:
bicycles, unicycles, unregistered mopeds. [...] [W]hen a
vehicle or device is unregistered, it's not allowed to go into
the [T]unnel, so you have to stop it from going in the
[T]unnel.” Id., Camacho Tr. at 64:18–24. Prior to December 2,
2023, Camacho had stopped “a fair number” of people riding
electric scooters from entering the Tunnel, including people
riding electric unicycles. Nazareno Decl. Ex. A, Camacho Tr.
at 63:9–65:8, 125:7–15. Camacho testified that he learned
about this rule from his experience as an officer, rather than
from official training from the Port Authority. Nazareno Decl.
Ex. A, Camacho Tr. at 26:6–27:15, 63:3–64:15.
*4 On the afternoon of December 2, 2023, at around
2:10 PM, Peter Piatetsky rode his electric unicycle 3 into
the Freeman Plaza North entrance to the New Jersey-
bound Holland Tunnel. He was on his way to a friend's
housewarming party in New Jersey. Nazareno Decl. Ex. Q
at 17:45–18:40. He was wearing a wrap-around motorcycle
helmet with a face shield and a visor, as well as wrist pads.
Dkt. No. 37 ¶ 28.
3 An electric unicycle is a self-balancing, single-
wheeled, personal transporter that is powered by an
electric motor. Dkt. No. 1 ¶ 17.
It is undisputed that, as Piatetsky approached the Tunnel,
Officer Camacho – who was wearing a black PAPD
“baseball” style cap – rushed toward Plaintiff from the left
side of the roadway and tried to stop him from entering the
Tunnel. Warner Decl. Ex. 1, Piatetsky Tr. 115:4–121:6. The
parties offer differing accounts of exactly what occurred as
Piatetsky approached the Tunnel. Camacho says he waved his
hands, gestured for Plaintiff to stop and yelled, “Stop, police,
stop!”); he also says that Piatetsky swerved to evade him and
struck Camacho's left hand to push it to one side as he rode
into the Tunnel. Piatetsky claims to have seen no such gestures
and heard no such commands; he denies having touched the
officer at any time, saying only that he looked back at the
man in the baseball cap who had rushed toward him as he
was driving into the Tunnel. But both men agree that (1) a
man (Camacho) in a baseball cap (PAPD standard issue) ran
toward Piatetsky (who was in the rightmost of the two traffic
lanes) from the left as he approached the Tunnel's entrance;
(2) the man in the baseball cap tried to interfere with Piatetsky
in some way, by grabbing him or trying to push Plaintiff off
his cycle; (3) Piatetsky was able to evade this interference and
rode his unicycle into the Tunnel going toward New Jersey;
and (4) as Plaintiff rode into the tunnel on his unicycle, he
looked back at the person in the baseball cap. 4
4 Given their differing perspectives and the fact that
Piatesky was wearing a wrap around helmet it is
easy to explain and reconcile the two accounts, but
that exercise is neither necessary nor appropriate on
this motion.
The parties call the court's attention to videos of the incident
to reconcile their differences of opinion about exactly what
occurred when Piatetsky rode into the tunnel. The videos
are, frankly, inconclusive, at least about the things that
are disputed. Unfortunately, Camacho's body-worn camera
(“BWC”), which would have provided the best evidence
about exactly what occurred, was turned off at the precise
moment when Piatetsky approached and entered the Tunnel.
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Nazareno Decl. Ex. P at 00:00–00:30, 17:39–17:45. Two
traffic cameras captured portions of the incident. See Warner
Decl. Ex. 3; Nazareno Decl. Ex. O. The first, a fixed traffic
camera with a bird's-eye view of the Tunnel entrance, records
the initial interaction between Camacho and Piatetsky in its
entirety, but the footage is low resolution and some parts of
their interaction are partially obscured. Warner Decl. Ex. 3.
The second, a remotely controlled camera positioned closer
to the roadway, does not capture the beginning of their
encounter; Piatetsky appears only after passing Camacho, and
Camacho enters the frame only after Piatetsky has already
entered the Tunnel. Nazareno Decl. Ex. O at 00:06–00:15.
The bird's-eye footage confirms that Camacho moved toward
Piatetsky as Plaintiff merged into the rightmost westbound
lane; the second camera confirms that Piatetsky looked back
toward Camacho as he entered the Tunnel. Warner Decl. Ex.
3 at 00:13; Nazareno Decl. Ex. O at 00:00–00:10. Defendants
concede that “video surveillance does not capture Officer
Camacho's use of verbal commands or arm gestures,” Dkt.
No. 45 ¶ 55; for this point they rely entirely on Camacho's
testimony. The videos are not clear enough, and do not cover
enough of the scene, for this viewer to be able to conclude
one way or the other whether Piatetsky shook his head or
made any physical contact with the officer. 5 See Dkt. No. 37
¶ 29; Dkt. No. 39, at 7; Dkt. No. 42, at 12. In the end, the
cameras confirm only the facts that are described above as
“undisputed.” 6
5 In their 56.1 statement, Defendants say that
Camacho observed Piatetsky “swing his left hand
back, making physical contact” with Camacho's
left hand, citing Camacho's deposition transcript.
Dkt. No. 37 ¶ 32. Plaintiff denied this and stated
in his 56.1 counterstatement that he did not
“swing his left hand back and [make] contact
with Officer Camacho's left hand.” Dkt. No.
43-1 ¶ 32. Defendants filed a reply to Plaintiff's
56.1 counterstatement, see Dkt. No. 45, wherein
they respond to Plaintiff's denial by stating that
the remotely controlled footage shows Piatetsky
“swing his left hand, and then Camacho turn his
head toward” the Tunnel. Id. ¶ 32. In fact, the
footage shows Piatetsky with his left arm in front of
him as he looked over his left shoulder, dropping it
to his side one second later. Nazareno Decl. Ex. O at
00:05–00:06. Camacho is nowhere in frame when
this occurs. Id. The remotely controlled footage
does not show Piatetsky swing his arm backwards
or smacking Camacho's hand.
6 For purposes of the excessive force claim, any
disputed facts are not material. For purposes of
the right to a fair trial claim, the disputed facts
are material and cannot be resolved on the present
record.
*5 Once Piatetsky entered the Holland Tunnel, Dkt. No. 42,
at 2; Dkt. No. 37 ¶ 25, Camacho radioed the other officers
and told them that a man on an electric unicycle had just
entered the Tunnel. Nazareno Decl. Ex. A., Camacho Tr.
57:10–16. Camacho and other PAPD officers stationed on
the New York side of the Tunnel stopped all traffic from
entering the Holland Tunnel and traveling westbound into
New Jersey. Dkt. No. 37 ¶ 35. Camacho positioned his vehicle
in the roadway and placed traffic cones across both lanes,
which blocked anyone from entering the Tunnel bound for
New Jersey. Dkt. No. 37 ¶¶ 40–41; Nazareno Decl. Ex. O at
5:38–7:30. Camacho stood between the cones, in front of the
entrance to the Tunnel. Nazareno Decl. Ex. O at 7:00–7:30.
Cars began to queue behind Camacho's patrol car, waiting to
enter the Holland Tunnel. 7 Nazareno Decl. Ex. A, Camacho
Tr. at 61:20–22. Piatetsky, meanwhile, was riding his unicycle
toward New Jersey, on the yellow line that divided the two
westbound lanes of traffic. Dkt. No. 43-1 ¶ 39.
7 These events are captured on the remotely
controlled traffic camera. Nazareno Decl. Ex. O at
5:38–7:30.
Officer Lee, who was stationed by the New York entrance,
managed traffic congestion just out of frame; he later
explained that the closure caused significant traffic buildup at
the entrance. Nazareno Decl. Ex. Q at 20:40–21:30. Inside the
Tunnel, Officers Reitan and Peppi (the officers stationed at
the New jersey end of the Tunnel) stopped traffic by driving
towards Manhattan, parking their patrol vehicle across both
lanes to face oncoming cars, and activating their emergency
lights. Dkt. No. 37 ¶ 40. Obviously the officers’ response
to Piatetsky was creating a traffic logjam, which they were
doubtless eager to clear as quickly as possible.
When traffic ceased moving inside the Tunnel, Piatetsky was
stopped behind a box truck approximately twelve to fifteen
cars away from the two officers. Nazareno Decl. Ex. C, Peppi
Tr. at 22:10–11; Warner Decl. Ex. 1, Piatetsky Tr. 144:12–18.
Someone radioed that Piatetsky was “about a camera and a
half behind [Peppi]” and that he was “not moving.” Warner
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Decl. Ex. 8 at 2:20–2:35. Peppi instructed officers to “keep
it clear.” Id. at 2:35–2:39. Reitan said, “Peppi, find out how
far [he is], because I'll start running.” Nazareno Decl. Ex. Q
at 16:20–17:10.
Piatetsky was apparently unaware of all this police activity.
Dkt. No. 37 ¶ 42. He did not see any police officers in the
Tunnel, Warner Decl. Ex. 1, Piatetsky Tr. at 144:16–145:15,
and it does not appear that the officers gestured toward
Piatetsky or tried to get his attention. Nazareno Decl. Ex.
C, Peppi Tr. at 23:21–22. Plaintiff saw flashing lights, but
he certainly did not think those lights related to him or his
behavior. He testified that he thought there might have been
an accident, which he feared could delay traffic indefinitely.
Warner Decl. Ex. 1, Piatetsky Tr. 149:14–150:4.
Piatetsky worried that he might be stuck in the Tunnel for
a long time. He was concerned about the unicycle's battery
life, as well as about the possibility that he would be inhaling
exhaust fumes from stopped cars for an extended period. So
he decided he would get himself out of the Tunnel. Since
the way forward toward New Jersey was blocked, this meant
turning his unicycle around and returning to Manhattan –
going the wrong way (eastbound) in what was supposed to
be a New Jersey-bound (westbound) lane. Id., Piatetsky Tr.
at 144:16–145:15, 146:10–22, 148:4–16; 154:15–25. Plaintiff
rode along the wall back to the Manhattan entrance to the
Tunnel; he placed himself adjacent to the wall in the lane on
the right side of the road facing back toward Manhattan (not
the lane he has used to enter the Tunnel). Id., Piatetsky Tr. at
158:18–23. (I will call this the south lane, and the lane he had
used to enter the Tunnel the north lane). Piatetsky seems to
have been trying to ride on the “right (i.e., correct) side of the
road,” but both the north and the south lanes were one way
westbound and he was going east – so no matter which lane
he was riding in (or adjacent to), he was going the wrong way
on a one way “street.”
*6 When he learned that Piatetsky was heading back toward
the entrance to the Tunnel, Camacho positioned himself along
the shoulder of the roadway – a location from which he
was not visible to individuals inside the Tunnel. Nazareno
Decl. Ex. O at 7:30–8:00; Warner Decl. Ex. 4 at 8:55–9:05;
Nazareno Decl. Ex. A, Camacho Tr. 79:7–80:20; Nazareno
Decl. Ex. O at 7:30–9:30. And indeed, Piatetsky testified that
he did not see Camacho as he approached the New York
entrance going eastbound. Warner Decl. Ex. 1, Piatetsky Tr.
165:2–6.
The parties offer conflicting accounts of Camacho's conduct
as Piatetsky emerged from the Tunnel, but once again the
material facts are undisputed.
When he reached the entrance to the Tunnel (through which
he proposed to exit the Tunnel), Piatetsky crossed from the
south New Jersey lane into the north New Jersey bound lane
– the lane he had used to enter the Tunnel. Warner Decl. Ex.
4, at 8:55–9:05. Although Piatetsky denied changing lanes at
his deposition, the video, for once, is definitive; it shows him
changing lanes, and so establishes this fact as undisputed. See
Nazareno Decl. Ex. O at 9:00–9:05. See Scott v. Harris, 550
U.S. 372, 380–81 (2007).
When Piatetsky changed lanes, Camacho – thinking that
Plaintiff was trying to evade arrest – decided to “run after
[Plaintiff] and stop him.” 8 Id. at 88.
8 Whether Plaintiff was or was not trying to evade
arrest is not a material fact; what Camacho thought
was going on is, however, a material fact, as will
be seen.
Camacho ran toward Plaintiff and grabbed for Plaintiff to try
to stop him and get him off the cycle.
The force of this contact drove Piatetsky off his unicycle and
into the concrete barrier. Warner Decl. Ex. 4 at 8:55–9:05;
Nazareno Decl. Ex. Q at 9:00–9:23.
Piatetsky's head and body struck the barrier, and he fell to the
ground. Nazareno Decl. Ex. Oat 9:00–9:14.
Plaintiff's unicycle hit the barrier and rebounded into the
roadway, which caused Camacho to trip and fall to the ground
with Piatetsky. Id. at 9:04–07.
Piatetsky regained his footing with the aid of the concrete
barrier that separated the road from the gated maintenance
area. Id. at 9:07–9:14.
Camacho grabbed Piatetsky's leg, hoisted himself upright,
and shoved Plaintiff back against the barrier before bringing
him to the ground and cuffing him. Id. at 9:12–9:50; Nazareno
Decl. Ex. P at 00:00–00:30.
Those facts are undisputed. A number of additional facts
about their encounter are in dispute. For example, Camacho
claims that he again issued multiple verbal and physical
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commands to stop as Piatetsky emerged from the Tunnel;
however, as his BWC was off, anything Camacho might have
said cannot be heard. Piatetsky denies hearing any commands,
which of course does not mean that they did not happen;
as noted above, Plaintiff was wearing a wraparound helmet,
which could have impeded his hearing. Dkt. No. 37 ¶¶ 43–45.
Camacho also maintains that he was standing in the center
of the left lane, directly in front of Plaintiff, when he called
out to Plaintiff to stop. Nazareno Decl. Ex. A, Camacho Tr.
87:20–88:19, 90:5–91:11. However, the traffic cameras do
not show him in this position; Camacho attributed this to “an
overshadow,” and the fact that it is “dark once you enter that
area.” Id., Camacho Tr. at 87:9–88:7.
Finally, Camacho claimed that Piatetsky failed to comply with
his orders and tried to flee on foot before being placed in
handcuffs. Dkt. No. 37 ¶ 49. In their motion for summary
judgment, Defendants add that Piatetsky “[held] onto the
concrete barrier with his hands in front of him to avoid
being handcuffed with his hands behind his back.” Dkt. No.
37 ¶ 49. Piatesky testified that he was holding the barrier,
but only with one hand. Dkt. No. 43-1 ¶ 49. The officer
testified that he grabbed Piatetsky's leg after seeing Plaintiff
lift it as if to climb over the concrete barrier, Camacho Tr.
132:6–11. It is not possible to tell one way or the other
whether that is true by looking at the video, but Piatesky
denies trying to climb over the barrier. Id; Nazareno Decl.
Ex. A, Finally, Camacho reported that Piatetsky “remained
uncooperative and continuously attempted to flee the scene
after interception.” Nazareno Decl. Ex. I, at 5. Piatesky begs
to differ.
*7 I list these disputed facts because some of them were
later incorporated into the police report, which was written by
Officer Lee based on information he received from Camacho.
Id. That report is relevant to Piatetsky's claim for denial of his
right to a fair trial. Its contents are not material to the excessive
force claim.
Camacho finally activated his body-worn camera as he
placed Piatetsky in handcuffs; it began recording audio
approximately thirty seconds later. Nazareno Decl. Ex. P at
00:00–00:30. In the video, Piatetsky asked whether he was
under arrest, and Camacho responded, “Dude, yes, now you
are.” He told Piatetsky that he was not allowed to take an
electric unicycle into the Tunnel. Id. at 00:30–01:00.
Camacho can be heard saying to Piatetsky “You listen to me
the first time I told you not to go.” Id. Piatetsky responded
that he did not know Camacho and was confused by the
implication that the two had previously spoken or that any
warning had been given, saying, “Excuse me. Sir, I don't know
you.” Camacho responded, “What do you mean you don't
know me? I'm a police officer,” to which Piatetsky replied,
“You're saying this like you've talked to me before.” Id. Once
Piatetsky was placed in handcuffs, Camacho said, “You know
you pushed my hand away.” Id. at 2:20–2:30. Piatetsky denied
making contact with Camacho, stating, “Sir, I did not touch
you.” Id. at 2:20–2:30.
Officer Lee arrived shortly thereafter to help escort Piatetsky
to the patrol car. Id. at 1:40–2:20. Once at the car, Camacho
and Lee – joined by Officers Peppi, Reitan, Sharkey, and
Corea – searched Piatetsky and his belongings. Nazareno
Decl. Ex. P at 3:10–4:10. During the search, Camacho again
insisted that Piatetsky had failed to comply with commands,
stating, “You were not stopping or listening to my directions.
I told you to stop the first time,” and asserting that, if Plaintiff
had been cooperative, he “would have stopped the first time.”
Nazareno Decl. Ex. P at 5:00–5:10, 5:44–6:02. Piatetsky
responded that he did not know Camacho was a police officer,
had not heard or seen any commands, and had not touched
Camacho's hand. Id. at 5:44–6:02; Nazareno Decl. Ex. Q at
3:47–4:05.
Body-worn camera videos show Piatetsky as officers
removed his helmet, searched his person, and inspected his
bag. See Nazareno Decl. Ex. Q at 00:00–00:45, 2:07–6:58.
In those videos, Piatetsky complied with directions given by
the officers, Nazareno Decl. Ex. P at 00:00–00:45, 9:30–9:37,
and repeatedly denied having struck Camacho. Id. at 00:30–
00:58, 2:20–2:30, 5:44–5:55, 5:56–6:02; Nazareno Decl. Ex.
Q at 3:47–4:05, 18:29–31, 33:34–33:45.
After the search, officers placed Piatetsky in the patrol car,
where he remained in handcuffs. Nazareno Decl. Ex. P
at 9:30–9:37. The officers then conferred about what had
happened. Camacho said that he had signaled for Piatetsky
to stop, that Piatetsky shook his head “no,” and that he
struck Camacho's hand as he rode past the officer. Nazareno
Decl. Ex. P at 10:14–11:31. Lee asked, “So, are you hurt?”
Reitan responded that Camacho had scrapes on his hand, but
Camacho attributed those to the arrest, not the hand strike. Id.
Camacho told officers that he “had to grab him and kind
of like push him to get off” the unicycle when Plaintiff
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emerged from the Tunnel. Id. at 11:10–11:16. Reitan replied,
“You gave him a warning, he ignored the warning.” Id. at
11:30–11:33; Nazareno Decl. Ex. Q at 9:35–9:38. During this
exchange, Camacho said nothing about Piatetsky's lifting his
leg, trying to climb over the barrier, or otherwise attempting
to flee via the maintenance area.
*8 When Camacho said he wanted to explain to the
Lieutenant what had happened, Lee asked, “What are you
doing?” Nazareno Decl. Ex. P at 10:10–10:15. As Camacho
began to recount what happened again, Officer Sharkey points
to his BWC. Nazareno Decl. Ex. P at 15:39.
Lieutenant Mendez arrived shortly thereafter and spoke to
Camacho about the incident. Nazareno Decl. Ex. P at 17:30–
18:20; Nazareno Decl. Ex. Q at 15:00–15:10. Camacho
muted his BWC while he told the Lieutenant what transpired.
Nazareno Decl. Ex. P at 17:52–19:40.
The officers discussed what charges they might file against
Piatetsky. Reitan suggested criminal trespass, and Lee stated
that they were “going with trespass for now,” and that
Piatetsky would likely receive a desk ticket, noting that the
ultimate decision would be made by Lieutenant Mendez.
Nazareno Decl. Ex. Q at 11:00–12:36. Lee contacted dispatch
to run Piatetsky's information and confirmed that he had no
outstanding warrants. Id. at 11:00–12:54.
Lee approached the patrol car and told Piatetsky that electric
unicycles were not permitted in the Tunnel, and that the
supervising lieutenant would likely speak with him. Id. Lee
also stated that the officer at the Tunnel entrance had directed
Piatetsky to stop but added that Piatetsky “probably didn't
understand it” and that “you probably didn't hear because you
had the helmet [on].” Id. at 17:57–18:01.
Piatetsky responded that he had neither seen nor heard an
officer and that, as he exited the Tunnel, “all [he] saw was
somebody rushing toward [him] trying to push [him].” Id. at
17:45–17:50. He reiterated that he “was not aware that there
was an officer behind [him]” when he entered the Tunnel. Id.
at 18:29–18:31. Lee acknowledged these statements, telling
Piatetsky that it was “an honest mistake” and “it's not the end
of the world.” Id.
Lieutenant Mendez spoke with the other officers regarding
the incident. Nazareno Decl. Ex. Q at 18:56–19:30. Mendez
asked whether Piatetsky had reported any injuries and
whether any were visible. Id. None of the officers had asked
Piatetsky if he sustained any injuries, and Reitan responded
that Piatetsky had not mentioned any. Id.
Lee remarked that it “sounds like [Piatetsky] didn't know”
that he could not ride his electric unicycle into the Tunnel. Id.
Mendez responded, “That's not what Camacho is saying.” Id.
at 19:30–19:33. Mendez said that Camacho had told him that
he told Piatetsky to stop, that Piatetsky shook his head “no,”
and that Piatetsky “smacked his hand away” when Camacho
tried to stop him. Id. Mendez added, “That's not the same as
not knowing.” Id.
Mendez also asked officers whether Piatetsky had been
compliant when officers arrived at the scene. Id. at 20:30–
20:37. Reitan confirmed that Piatetsky was not resisting when
he arrived, although “he was already in cuffs already.” Id.
Camacho asked for medical assistance for his hand shortly
after the arrest, and emergency medical personnel were
dispatched. Nazareno Decl. Ex. P at 7:55–8:02. In the interim,
Camacho continued to move about the scene, driving his
patrol vehicle and using his hand. Id. at 11:50; Nazareno
Decl. Ex. Q at 13:02–13:31. When asked about his condition,
Camacho stated that his hand was “just hurting a little bit”
and declined an offered ice pack, indicating that he would
wait for the ambulance. Nazareno Decl. Ex. Q at 13:02–13:31;
Nazareno Decl. Ex. P 14:21–15:10. Emergency medical
personnel arrived shortly thereafter and treated scratches on
Camacho's hand. Nazareno Decl. Ex. P at 17:33.
*9 During his interaction with paramedics, Camacho
described the incident and stated that Piatetsky had “hit [his]
hand out of the way” when he attempted to stop him, and
that he was injured when he grabbed Piatetsky and fell to the
ground. Id. at 19:50–20:22. Camacho indicated that he wanted
to go to the hospital. Id. at 19:50–20:22. EMS offered to let
Camacho ride in the front seat of the ambulance, rather than
in the patient compartment, when he was ready to leave. Id.
at 27:40–27:48.
Camacho said that he and another officer would likely receive
overtime if he went to the hospital. Nazareno Decl. Ex. P
at 27:20–27:40; 13:34–14:43. Reitan responded that it would
“definitely” require overtime, noting that he was already over
that threshold. Id. Officer Corea said he was on overtime
too but wanted to know who would accompany Camacho
to the hospital. Nazareno Decl. Ex. Q at 27:15–32:00. Lee
answered that Lieutenant Mendez had not picked anyone yet,
and Corea quipped that the Lieutenant would decide by asking
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“which guy needs a collar?” Id. at 24:30–24:58. At that point,
Lee covered his camera and tells the officer “I'm still live,”
meaning that his BWC is still recording. Id.
As predicted, when the time came to bring Piatetsky to the bus
terminal for booking, Lieutenant Mendez asked officers about
their current assignments and hours, including whether they
were already extended or “maxed out.” Nazareno Decl. Ex. Q
at 27:00–27:40. Reitan confirmed that he was already maxed
out, while Sharkey indicated he was also working extended
hours. Id. Mendez directed that Reitan remain at the Tunnel
while Corea would accompany Camacho to the hospital. Id.
at 32:55–33:05. He told Sharkey and Lee to book Piatetsky
at the bus terminal. Id. As Sharkey and Lee prepared to leave
the scene, Lee asked whether they would receive overtime.
Id. at 41:00–41:10.
Camacho returned to the ambulance to coordinate his
transport with EMS and discuss when he would be ready
to leave. Nazareno Decl. Ex. P at 27:20–27:40. During
that interaction, Camacho indicated that Piatetsky would be
charged, not only with trespass, but also with “attempted
assault,” based on Camacho's insistence that Piatetsky had
struck his hand. Id. at 27:40–27:48. A paramedic responded,
“Nice.” Id. at 28:05. A moment later, the paramedic asked
whether Camacho's BWC was on; Camacho confirmed that
it was. Id.
Lieutenant Mendez briefly spoke with Piatetsky before he
was transported from the scene. Nazareno Decl. Ex. Q at
33:34–33:45. Piatetsky apologized for entering the Tunnel.
He said that he had not known electric unicycles were
prohibited and told Lieutenant Mendez that he had not been
given a stop signal or verbal warning. Id. Mendez responded,
“I think we're a little bit beyond that now, but I appreciate the
sentiment;” he also pointed out that there were signs posted
at the Tunnel entrance. Id. 9 Piatetsky continued to explain
that he had not received any warning; Mendez did not engage
further with his account. Id.
9 These are the signs that warn against entry by
pedestrians and bicycles. As noted above, it has
taken some time for the signage to catch up to the
many novel types of vehicles being ridden around
New York City these days. The rules, however,
plainly barred Plaintiff's unicycle from entering
the Tunnel. Like all drivers/riders, Plaintiff was
supposed to know the relevant traffic rules.
Officers Lee and Sharkey transported Piatetsky from the
scene to the Port Authority Bus Terminal. Nazareno Decl. Ex.
Q at 43:29–1:06:00. During the ride, Piatetsky asked what
would happen to him and whether he needed a lawyer. Id.
at 44:30–45:30, 52:40–54:00. Lee responded that criminal
trespass was “not that serious” and stated that Piatetsky would
likely receive a Desk Appearance Ticket (or “DAT”), which
meant that, in all likelihood, Piatetsky would be able to go
home without seeing a prosecutor. Id. Lee told Sharkey that
he believed Piatetsky would only receive a DAT, although
he did not yet know what the Lieutenant wanted to charge.
Id. at 48:30–49:45. Lee said four times during the drive that
he needed to consult with Lieutenant Mendez to learn what
charges would be filed. Id. at 45:30–46:00, 48:30–48:55,
49:30–49:45, 1:05:45–1:05:54.
*10 Upon arrival at the Bus Terminal, Piatetsky first
reported that his foot and ankle hurt; he appeared to be
limping. Id. at 1:06:05–1:06:55. Sharkey and Lee brought
him inside for processing while he remained handcuffed.
Id. at 1:06:00–1:07:00. Once inside, officers conducted an
additional search of his person and belongings, including his
pockets, jacket, and bag. Id. at 1:07:00–1:08:30. Piatetsky
was then placed in a holding cell. Nazareno Decl. Ex. Q at
1:08:30–1:09:00.
While in the holding cell at the bus terminal, Piatetsky asked
officers for Tylenol for a headache. Dkt. No. 42 at 5. The
officers told him that he would be released more quickly if he
refused medical attention. Id. He remained in the holding cell
until approximately 12:45 AM on December 3, at which point
he was transferred to central booking by Reitan and Sharkey.
Nazareno Decl. Ex. R.
During the transport, Reitan assisted Piatetsky, who was
walking with a limp and complained of a hand injury. Id. at
00:00–00:15, 18:30–40. Piatetsky arrived at central booking
after 1:20 AM. Id. at 38:00–44:30.
Officer Lee was Piatetsky's designated arresting officer. Dkt.
No. 37 ¶ 56. Camacho spoke with Lee during and after
the arrest to assist Lee with the arrest paperwork. Id. ¶
53, 56. Camacho told Lee that Piatetsky had assaulted him
while entering the Tunnel and resisted arrest by struggling
against him and attempting to flee “continuously” after being
arrested. Id.; Nazareno Decl. Ex. I. Based on what Camacho
had told Lee and the Lieutenant, Lee charged Piatetsky
with (1) Assault in the Second Degree, P.L. § 120.05(3);
(2) Reckless Endangerment in the Second Degree, P.L. §
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120.20; (3) Obstructing Governmental Administration in the
Second Degree, P.L. § 195.05; (4) Trespass, P.L. § 140.05;
(5) Reckless Driving, Vehicle & Traffic Law § 1212; (6)
Obedience to Police Officers and Flagpersons, Vehicle &
Traffic Law § 1102; and (7) Resisting Arrest, P.L. § 205.30.
Nazareno Decl. Ex. J. Lee forwarded the paperwork to the
New York County District Attorney's office. Warner Decl. Ex.
2, Camacho Tr. at 128:6–19, Nazareno Decl. Ex. K.
The top charge, assault in the second degree, is a class D
violent felony. P.L. § 120.05(3). When an officer makes a
lawful warrantless arrest, unless the top charge is a qualifying
felony or satisfies an enumerated exception, the officer must
issue a Desk Appearance Ticket. See Crim. Proc. Law §
150.20(1)(a), (b). However, if the offense is a class A, B, C,
or D felony, a defendant is generally transported to Central
Booking. That is what happened to Piatetsky; he was not
issued a DAT but was instead taken to One Police Plaza. Id.;
Nazareno Decl. Ex. R; Dkt. No. 42, at 12.
The New York District Attorney's Office charged Piatetsky
with (1) Resisting Arrest, P.L. § 205.30, (2) Attempted
Assault in the Third Degree, P.L. § 110/120.00, (3) Criminal
Trespass, PL. § 140.05, and (4) Harassment in the Second
Degree, P.L. § 240.26(1). Dkt. No. 37 ¶ 60; Nazareno Decl.
Ex. F.
On December 3, 2023, Piatetsky was arraigned on the
criminal complaint in New York County Criminal Court. At
his arraignment, Plaintiff pled guilty to disorderly conduct,
P.L. § 240.20, a non-criminal violation. All other charges
were dropped. Nazareno Decl. Ex. M. Piatetsky was released
from police custody after the arraignment. Warner Decl. Ex.
1, Piatetsky Tr. at 85:2–21.
III. Plaintiff's Alleged Injuries
Piatetsky first sought medical treatment on December 4,
2023, the day after he was released from custody. Id.,
Piatetsky Tr. at 198:6–201:14. He reported that he vomited
multiple times after arriving home on December 3 and was
struggling to sleep. Id., Piatetsky Tr. at 191:25–192:13. He
complained of pains in his head, wrist, and leg from the
incident. Id., Piatetsky Tr. at 198:6–201:14. He was treated for
his wrist injury and placed in a foot brace. Id., Piatetsky Tr. at
205:312–18. He had a CT scan and neurological assessment
at Lenox Hill Hospital. Id., Piatetsky Tr. at 205:3–206:9. The
initial imaging did not reveal any abnormalities, however,
Piatetsky was later evaluated by Dr. Kristen Dams-O'Connor,
Director of the Brain Injury Research Center of Mount
Sinai Hospital, who concluded that Piatetsky had suffered a
traumatic brain injury as a result of the incident. Warner Decl.
Ex. 6.
*11 Piatetsky avers that he continued to suffer from
migraine headaches, fatigue, and increased anxiety in the days
following the incident, and even to today. Id., Piatetsky Tr.
at 209:3–19; Warner Decl. Ex. 9. He reports that his coping
skills are not as strong as they once were, and that since the
incident, he finds it harder to manage his stress and regulate
his emotions. Warner Decl. Ex. 6, at 6. His heightened
anxiety manifests as racing thoughts, persistent worry, sleep
disturbance, and hypervigilance. Id. Piatetsky also complains
of stomach issues, sensitivity to light and noise, and difficulty
concentrating. Warner Decl. Ex. 1, Piatetsky Tr. at 217:13–
218:8. Dr. Dams-O'Connor stated that these symptoms are
common following a traumatic brain injury. Warner Decl. Ex.
6, at 6. To alleviate his symptoms, he consults a therapist,
wears noise-cancelling earmuffs, works in low light, and
wears an ice cap on his head. Dkt. No. 42, at 7; Warner Decl.
Ex 6, at 5–6.
Discussion
Summary judgment is appropriate only if the movant shows
there is no genuine dispute as to any material fact and the
movant is entitled to summary judgment as a matter of
law. Fed. R. Civ. P. 56(a). A genuine dispute exists where
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Issues such as “ ‘credibility
assessments, choices between conflicting versions of events,
and the weighing of evidence are matters for the jury, not for
the court on a motion for summary judgment.” Curry v. City
of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003).
The Court must “resolve all ambiguities and draw all
permissible inferences in favor” of the nonmovant. Terry
v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). The Court
views the record as a whole when determining a movant's
entitlement to summary judgment, but “it must disregard all
evidence favorable to the moving party that the jury is not
required to believe.” Zellner v. Summerlin, 494 F.3d 344, 370
(2d Cir. 2007).
We will first consider Piatetsky's claims against Officer
Camacho and then proceed to discuss his claims against the
Port Authority.
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I. Excessive Force: The First Cause of Action is
Dismissed On Qualified Immunity Grounds
A. There is No Basis to Dismiss the
First Cause of Action on the Merits
Plaintiff's first cause of action asserts a claim for excessive
force under 42 U.S.C. § 1983. Officer Camacho, the
Defendant on that claim, argues that this Court should dismiss
Piatetsky's excessive force claim as a matter of law because
Piatetsky's injuries were de minimis. Dkt. No. 39 at 5. He
argues that if injuries are de minimis injuries there is ipso
facto no constitutional violation. Id. Camacho does not make
any other argument about why the Court should dismiss
Piatetsky's excessive force claim on the merits.
Piatetsky argues that his injuries were not de minimis and
that, even if they were, his excessive force claim would
nevertheless be permitted under the Fourth Amendment as
per the Second Circuit's holding in Ketcham v. City of Mount
Vernon. 992 F.3d 144, 150 (2d Cir. 2021). Dkt. No. 42,
at 9. He argues that a reasonable jury could conclude that
Camacho's use of force was excessive whether his injuries
were de minimis or not.
The Court agrees with Piatetsky.
Claims that police officers used excessive force during an
arrest are “analyzed under the Fourth Amendment and its
reasonableness standard.” Graham v. Connor, 490 U.S. 386,
395 (1989). Examining the reasonableness of the force used
“requires careful attention to the facts and circumstances of
each particular case,” id. at 396, including “(1) the severity of
the crime at issue, (2) whether the suspect poses an immediate
threat to the safety of the officers or others, and (3) whether
[the suspect] is actively resisting arrest or attempting to evade
arrest by flight.” Ketcham v. City of Mount Vernon, 992 F.3d
144, 148–49 (2d Cir. 2021); see Graham, 490 U.S. 386.
*12 An “officer may not intrude on a person's Fourth
Amendment rights by employing a degree of force beyond
that which is warranted by the objective circumstances of an
arrest.” Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir.
2019). “[T]here are some circumstances in which no use of
force – even de minimis force – is reasonable because no force
at all is required.” Kistner v. City of Buffalo, No. 21-CV-526,
2023 WL 144915, at *10 (W.D.N.Y. Jan 10, 2023) (citing
Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d
Cir. 1999); Aghoghoubia v. Noel, 2020 WL 2489727, at *6-7
(E.D.N.Y. May 13, 2020); Weather v. City of Mount Vernon,
No. 17-CV-1927, 2011 WL 1046165, at *9 (S.D.N.Y. Mar.
22, 2011), aff'd, 474 Fed. App'x 821 (2d Cir. 2012); Sash v.
United States, 674 F. Supp. 2d 531, 539-40 (S.D.N.Y. 2009)).
“Consistent with 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 conclude that the officers’ conduct was
objectively unreasonable.’ ” Kirton v. Doe, No. 20-CV-10860
(KMK), 2025 WL 2696510, at *5 (S.D.N.Y. Sept. 22, 2025)
(quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
123 (2d Cir. 2004).
The only merits-based argument made by Camacho is that
the force he used could not have been excessive because
any injuries suffered by Piatetsky were de minimis. But there
is no “de minimis injury” exception to the excessive force
doctrine. “[The Second Circuit has] never held that a court
may grant summary judgment to officers on an excessive
force claim merely because the injuries were minor even
where the force was unreasonable.” Ketcham v. City of Mount
Vernon, 992 F.3d 114, 150 (2d Cir. 2021); see also Sash v.
United States, 674 F.Supp.2d 531, 539–40 (S.D.N.Y. 2009).
As my colleague The Hon. Kimba Wood held long ago in
Ortiz v. Pearson, 88 F. Supp. 2d 151, 160 (S.D.N.Y. 2000), a
plaintiff's injuries “need not be serious in order to give rise to
a constitutional claim.” In order to defeat an excessive force
claim, “It is the force used, not the injuries caused, which
must be determined to be de minimis as a matter of law.”
Harding v. Gould, 2024 WL 3742688, at *6 (S.D.N.Y. Aug.
9, 2024) (internal quotations and citations omitted). Were it
otherwise, such a rule “would grant a windfall to officers who
commit misconduct but could escape liability based upon the
hardiness of their victims.” Ketcham, 992 F.3d at 151.
Camacho has not argued that he used force that was de
minimis as a matter of law; he only argues that Piatetsky's
injuries were de minimis. Therefore, he is not entitled to
summary judgment dismissing the excessive force claim on
the merits. Whether the amount of force used was limited to
that which was necessary to get Piatetsky to stop and get off
his cycle, or was more than was necessary to accomplish that
result, presents a question for the jury to resolve – which is, no
doubt, why Camacho did not make the argument he needed
to make in order to prevail.
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Furthermore, Camacho's argument is predicated on an
erroneous interpretation of the record. Piatetsky offered
evidence that he suffered more than de minimis injury as a
result of being pushed off his unicycle into the wall. BWC
footage shows Piatetsky walking with a limp and complaining
of pain in his wrist – injuries for which he was treated
shortly after being released from custody. Nazareno Decl.
Ex. Q at 1:06:05–1:06:55; Nazareno Decl. Ex. R at 00:00–
00:15, 18:30–40; Warner Decl. Ex. 1, Piatetsky Tr. at 198:6–
201:14, 205:312–18. Despite wearing a helmet, Piatetsky
reported pain in his head after the incident. While in the
Bus Terminal holding cell, Piatetsky informed officers he
had a headache and requested Tylenol. Dkt. No. 42, at 5.
He reports that he has been experiencing migraine headaches
since the incident. Warner Decl. Ex. 6, at 5. Although his
initial CAT scan revealed no abnormalities, one physician has
opined that he suffers from traumatic brain injury and post-
concussive symptoms. Id. He claims to have trouble sleeping,
stomach pains, and increased anxiety, which have inhibited
his productivity and affected his coping skills. Id. at 6.
*13 The extent of these injuries “is certainly a matter that
the jury can consider in assessing both the reasonableness of
the force and potential damages from any misconduct, [but]
a district court should not grant summary judgment on this
basis alone.” Ketcham, 992 F.3d at 151.
B. The First Cause of Action Fails
Because of Qualified Immunity
So the question becomes whether Officer Camacho is entitled
to qualified immunity as a matter of law on Plaintiff's
excessive force claim. The answer is, yes, he is.
The defense of qualified immunity protects government
officials from suit “if their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’ ” Gonzalez v. City
of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982)). To
determine whether an officer is entitled to qualified immunity,
the Court considers (1) “whether the facts that a plaintiff
has ... shown ... make out a violation of a constitutional right,”
and (2) “whether the right at issue was ‘clearly established’
at the time of defendant's alleged misconduct.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)).
Careless lawyering by Defendants’ counsel nearly forfeited
this argument. In their moving brief, Defendants argue
qualified immunity with reference to the standard for false
arrest. But no false arrest claim was asserted in this lawsuit,
and there was unquestionably probable cause to arrest
Piatetsky. However, once Plaintiff's counsel pointed out his
opponent's obvious error, PAPD counsel shifted course and
argued in the reply brief that Camacho's use of force to
effectuate the arrest of Piatetsky was not actionable on
qualified immunity grounds. While courts ordinarily do not
consider arguments that are first raised in reply, see United
States v. Hill, 462 F. App'x 125, 127 n.2 (2d Cir. 2012), I
am inclined to overlook counsel's error, 10 and I will consider
the question of qualified immunity as it should have been
raised originally – that is, whether Camacho is entitled to
qualified immunity on Plaintiff's Fourth Amendment claim
of excessive force. Plaintiff will not be prejudiced by my
decision to consider the issue because his lawyers, having
noted the error, went on to brief the issue using the correct
standard in his brief in opposition. See Dkt. No. 42 at 15–18.
I am grateful to them for doing so.
10 I doubt this was a “ChatGPT” error, but rather was
a “cut and paste from an old brief” error. Either
way, arguing false arrest when the issue is excessive
force was a careless thing for PAPD counsel to do.
The question to be answered is “whether it would be clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Jones v. Treubig, 963 F.3d 214, 224
(2d Cir. 2020) (citation omitted). “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 v. City of New York, 862 F.3d 182, 190 (2d
Cir. 2017) (quoting Rivas-Villegas v. Cortesluna, 595 U.S.
1, 7 (2021)). Under this prong, the Court considers “clearly
established law and the information the officer[ ] possessed,
accounting for any reasonable mistakes of fact.” Matusak v.
Daminski, 165 F.4th 702, 712 (2d Cir. 2026). “Not every push
or shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates the Fourth Amendment.”
Graham v. Connor, 490 U.S. 386, 397 (1989) (internal
quotations and citation omitted).
*14 There is no question that an individual's Fourth
Amendment right to be free from the application of excessive
force was “clearly established” as a general principle at the
time of the incident. See Lennon v. Miller, 66 F.3d 416, 423
(2d Cir. 1995). But because the use of excessive force is an
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area of the law “in which the result depends very much on the
facts of each case,” officers are generally entitled to qualified
immunity unless existing precedent “squarely governs” the
specific facts at issue. Kisela v. Hughes, 584 U.S. 100, 104
(2018) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)).
The parties do not point to – and the Court is not aware of
– any “precedent squarely govern[ing] the specific facts at
issue.” Mullenix, 577 U.S. at 15, and it will come as not
surprise to learn that the court has not found such a case,
either. In their briefs, the parties focus on the frequency
with which the police encounter and try to stop unregistered
vehicles trying to enter the Tunnel (or some other public
highway on which they are not supposed to be). But in this
case, the allegedly excessive force was not applied when
the Plaintiff entered the Tunnel. From a Fourth Amendment
perspective, the issue is whether officers frequently encounter
people who have illegally entered a tunnel (which means they
have already committed a traffic infraction) and who are then
coming back out of said tunnel in an equally illegal manner
– going in the wrong direction -- and in a manner that, to
the police officers, could reasonably appear to be an effort
to evade capture (whether that be true or not). The fact that
neither the parties nor the Court has found a single case with
facts remotely similar to the facts at bar alone suggests that
qualified immunity attaches to Camacho's conduct.
But let us assume arguendo that there is a case out there
whose facts “clearly establish” that Plaintiff had the right to
be free from the application of excessive force in the precise
circumstances confronting Camacho. Camacho is nonetheless
entitled to qualified immunity because, on the undisputed
material facts – viewed most favorably to Piatetsky – it
was objectively reasonable for the officer to believe that
grabbing for the Plaintiff and pushing him off his unicycle
(the allegedly excessive force) – even if that resulted in
Plaintiff's being pushed into a concrete barrier -- did not
violate that right. See P.C. v. McLaughlin, 913 F.2d 1033,
1039 (2d Cir. 1990) (“Even when a plaintiff's federal rights are
clearly defined, qualified or good faith immunity might still
be available if it was objectively reasonable for [the public
official] to believe that his acts did not violate those rights”)
(internal quotations and citation omitted).
It is undisputed that Camacho observed Plaintiff riding an
unregistered electric unicycle on the approach toward the
Holland Tunnel.
It is undisputed that Camacho walked toward the point where
the lanes merged to enter into the Tunnel and that he did
something (exactly what id disputed) that caused Plaintiff to
conclude that a total stranger (whom he did not understand to
be a police officer) was trying to interfere with his forward
progress into the Tunnel.
It is undisputed that Piatetsky nonetheless rode his unicycle
into the Tunnel, which (because the unicycle was a
unregistered vehicle) was a violation of the PAPD Traffic
Rules and Regulations, and that he looked back at Camacho
as he did so, indicating that he was aware of the officer's
presence (even though he did not know Camacho was a police
officer).
*15 It is undisputed that Camacho and his colleagues tried
to stop Plaintiff while he was in the Tunnel, by stopping
westbound traffic and preventing other vehicles from entering
the Tunnel.
It is undisputed that Plaintiff made it approximately halfway
through the tunnel until he had to stop as a result of the police
activity ahead of him.
It is undisputed that Plaintiff, finding himself unable to
proceed, turned around and headed back east toward New
York City, going the wrong way on a westbound lane in the
New Jersey-bound Tunnel tube.
It is undisputed that Officer Peppi sent a radio transmission
that Plaintiff was riding his electric unicycle back toward the
New York entrance to the Tunnel.
It is undisputed that Camacho was positioned at the mouth of
the Tunnel entrance when Piatetsky reached the entrance to
(which for him was going to be the exit from) the Tunnel.
And it is undisputed – because the video establishes it beyond
peradventure – that as Plaintiff rode back out of the Tunnel
past Camacho, he changed lanes and swerved away from
where the officer was standing (whether Plaintiff could see
Camacho or not is of no moment).
On those undisputed facts, no reasonable factfinder could
conclude that Camacho's decision to grab for Plaintiff in order
to stop him – which pushed Plaintiff off his unicycle and
caused him to fall into the concrete barrier – was objectively
unreasonable.
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Camacho was confronted by someone whom he knew to be
illegally trespassing in the Tunnel – someone he had not been
able to prevent from entering the Tunnel in the first place.
He knew that the rider was coming back out of the Tunnel
in the wrong direction on a one-way road, and was thereby
evading the traffic stop that had been effectuated inside the
Tunnel. The fact that Piatetsky did not understand that he was
the reason traffic was stopped is irrelevant; to a reasonable
police officer, someone riding a unicycle the wrong way out
of the Holland Tunnel, after illegally entering the Tunnel in
the first place, could well look like a person who was trying
to evade the police.
Moreover, the video shows that Piatetsky did in fact change
lanes when he emerged from the Tunnel, Nazareno Decl.
Ex. O at 9:00–9:05, which meant he swerved away from the
officer. To a reasonable police officer, the lane change would
only reinforce the idea that the rider was trying to get away
from the police. Such an officer would have every incentive
to do whatever was necessary to stop the rider from getting
away. And it is hard for this Court to conceive of any way of
stopping a man who was riding on an electric unicycle, other
than grabbing for him – even if that pushed Plaintiff off his
cycle and into the barrier, causing him to hit his head on the
concrete.
On these undisputed facts, at least some reasonable police
officers in Camacho's position “could have believed that
[Camacho's conduct] was within the bounds of appropriate
police responses.” Saucier, 533 U.S. at 208.
The many issues of fact that Piatetsky raises to try to defeat
summary judgment are simply not material to the qualified
immunity analysis. For our purposes, it does not matter
whether Camacho did or did not stand in the middle of the
traffic lanes and signal the Plaintiff not to go into the Tunnel
in the first place. It does not matter whether he shouted
commands at Piatetsky, either as he entered into or exited
from the Tunnel, or whether Piatetsky heard those commands.
It does not matter whether Piatetsky knew or did not know
that Camacho was a police officer. It does not matter whether
Piatetsky understood that he was being warned and chose
to ignore those warnings. It does not matter why Camacho
decided to stop traffic. It does not matter whether Piatetsky
was trying to climb over the concrete barrier after he fell
from his unicycle. All of those facts may be disputed, but
none of them is material to the issue of whether Camacho is
entitled to qualified immunity for using force to get Piatetsky
off his unicycle and place him under arrest. The only facts
that are material to that issue are facts that are undisputed.
See McKinney v. City of Middletown, 49 F.4th 730, 740–41
(2d Cir. 2022). No one has to credit Camacho's version of the
matters in dispute in order to conclude that a reasonable police
officer in Camacho's position could readily have concluded
that force was needed to get the Plaintiff off his unicycle and
under arrest.
*16 Because I cannot conclude that only an officer who
is “plainly incompetent” or who “knowingly violate[s] the
law” would have acted as Camacho did when Piatetsky
emerged from the Holland Tunnel, I am constrained to
conclude that Camacho is entitled to qualified immunity
on Plaintiff's excessive force claim. Mullenix, 577 U.S. at
15. Therefore, Camacho's motion for summary judgment
dismissing Plaintiff's First Cause of Action is granted.
II. Denial of a Right to Fair Trial
Camacho also moves for summary judgment on Piatetsky's
claim that Camacho denied him the right to a fair trial
by fabricating evidence – namely, by falsely claiming that
Plaintiff struck Defendant's hand and resisted arrest. That
motion is DENIED. The fair trial claim will go to trial.
The Due Process Clause guarantees a criminal defendant's
right to a fair trial. Frost v. New York City Police Dep't, 980
F.3d 231, 244 (2d Cir. 2020). That right is violated when a
police officer “creates false information likely to influence a
jury's decision and forwards that information to prosecutors.”
Id. (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997)). Plaintiffs injured by such violations may seek
damages under 42 U.S.C. § 1983. Id.
A § 1983 plaintiff may assert a denial of fair trial claim
based on a police officer's fabrication of evidence “when
the information fabricated is the officer's own account of
his or her observations of alleged criminal activity, which
[the officer] then conveys to a prosecutor.” Barnes v. City
of New York, 68 F.4th 123, 129 (2d Cir. 2023) (quoting
Garnett v. Undercover Officer C0039, 838 F.3d 265, 268,
274 (S.D.N.Y. 2016)). To prevail, a plaintiff must show that
“an (1) investigating official (2) fabricated information (3)
that is likely to influence a jury's verdict, (4) forwarded that
information to prosecutors, and (5) the plaintiff suffered a
deprivation of life, liberty, or property as a result.” Id. at 128
(quoting Garnett, 838 F.3d at 279).
Unlike a malicious prosecution claim, a fair-trial claim based
on fabricated evidence is not defeated by the existence
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of probable cause. Ricciuti, 124 F.3d at 130; Frost, 980
F.3d at 250. That is because the two claims vindicate
different constitutional interests: fabricated evidence claims
arise under the Fifth and Fourteenth Amendments, whereas
malicious prosecution claims arise principally under the
Fourth Amendment. Barnes, 68 F.4th at 129 (citing Smalls
v. Collins, 10 F.4th 117, 132–33 (2d Cir. 2021)). Thus, “No
arrest, no matter how lawful or objectively reasonable, gives
an arresting officer ... license to deliberately manufacture
false evidence against an arrestee.” Ricciuti, 124 F.3d at 130.
Nor does such a claim require that there have been an
actual trial. In Frost, the Second Circuit explained that,
notwithstanding the claim's label, the fair-trial right protects
against deprivations of liberty caused when an officer
fabricates evidence and forwards it to prosecutors -- even
if the fabricated evidence is never introduced at trial and
even if no trial occurs at all. 980 F.3d 231, 248–51 (2d Cir.
2020). The constitutional injury inheres in the deprivation of
liberty caused by the fabrication and transmission of false
information, whether or not the evidence is presented to a jury.
See id.; Barnes v. City of New York, 68 F.4th 123, 130 (2d Cir.
2023). Accordingly, “where plaintiff never proceeded to trial,
the question is if the allegedly false information is material
such that it would ‘likely influence the jury if it arrived at
a jury.’ ” Case v. City of New York, 408 F. Supp. 3d 313,
323 (S.D.N.Y. 2019) (emphasis in original) (citing Garnett
v. Undercover Officer C0039, No. 13-CV-7083, 2015 WL
1539044, at *8 (S.D.N.Y. Apr. 6, 2015)).
*17 A fair-trial claim is not categorically barred by a guilty
plea. Under Heck v. Humphrey, a § 1983 fair trial claim
is barred only where success would “necessarily imply the
invalidity” of an extant conviction. 512 U.S. 477, 487 (1994).
Where the fabricated evidence claim challenges charges or
factual allegations that are distinct from those supporting the
guilty plea, the claim can be heard. See Poventud v. City of
New York, 750 F.3d 121, 137–38 (2d Cir. 2014); Beckwith
v. City of Syracuse, 642 F. Supp. 3d 283, 291–92 (N.D.N.Y.
2022); Wellner v. City of New York, 393 F. Supp. 3d 388, 397
(S.D.N.Y. 2019); Case v. City of New York, 233 F. Supp. 3d
372, 388 n.10 (S.D.N.Y. 2017) (citing Powers v. Coe, 728 F.2d
97, 102 (2d Cir. 1984)).
Here, Plaintiff challenges the alleged fabrication of evidence
related to the charges of attempted assault and resisting
arrest. He pleaded guilty to neither of those charges. As a
result, his success on this claim would not collaterally attack
or otherwise undermine the validity of his guilty plea to
disorderly conduct.
Liability for denial of a fair trial under § 1983 liability
“attaches for knowingly falsifying evidence even where there
simultaneously exists a lawful basis for the deprivation of
liberty that the plaintiff suffered.” Barnes v. City of New York,
68 F.4th 123, 130 (2d Cir. 2023) (citing Smalls, 10 F.4th
at 132). Applied to Piatetsky's claim, this means that, even
if the disorderly conduct charge for which Plaintiff pleaded
guilty “provided a lawful basis for some of the deprivations
he suffered, it would not sever the causal link between the
fabricated evidence and those same deprivations, as well as
others,” that Piatetsky suffered as a result of the attempted
assault and resisting arrest charges based on the allegedly
fabricated evidence. See id., at 131. In this case, Plaintiff
would have gotten a DAT if all he had been charged with
was disorderly conduct. It is the fact that he was charged with
assault that catapulted him into D felony land and caused him
to be held overnight.
Turning to Plaintiff's fair trial claim, four of the elements
are not in dispute. Camacho qualifies as an “investigating
official;” the allegedly fabricated information was likely to
influence a jury and was plainly material to the charges of
attempted assault, harassment, and resisting arrest; Camacho
understood that his allegations would be included in
the criminal complaint written by Lee and forwarded to
prosecutors; and as a result of that allegedly fabricated
information, Piatetsky was ineligible for a desk appearance
ticket and was instead held in custody overnight, constituting
a deprivation of liberty. See Dkt. No. 42, at 11–12; Dkt. No.
37 ¶¶ 4, 29–32, 43–44, 49–50, 53.
The issue is whether Plaintiff has offered sufficient evidence
that Camacho's allegations against Piatetsky were fabricated
to get to a jury. He has.
Defendants argue that “Plaintiff cannot cite any evidence
whatsoever supporting his claim that Defendants fabricated
false evidence and forwarded it to either the New York
County Criminal Court or the New York County District
Attorney's Office.” Dkt. No. 39 at 9. This is so, they argue,
because Officer Lee prepared the criminal complaint based
on “information he received from sworn PAPD officers on
scene, as well as his own observations when responding to
the incident.” Id. That argument fails on its face, because
Camacho gave Lee the information that Lee incorporated into
the criminal complaint (and that the District Attorney then
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incorporated into the formal charges). Since Lee is entitled to
rely on information given him by a fellow officer, he cannot
be charged with falsification – the officer who gave him the
information is the proper defendant. That officer is Camacho.
See Cook v. City of New York, 243 F. Supp. 3d 332, 353
(E.D.N.Y. 2017).
*18 Defendants argue that Lee prepared the arrest
paperwork with Camacho's assistance, and that the paperwork
also contained “information [Lee] received from sworn PAPD
officers on scene, as well as, his own observations when
responding to the incident.” Dkt. No. 37 ¶ 53; Dkt. No. 39,
at 9. Lee, however, did not witness the initial interaction or
takedown; he arrived on the scene, “as soon as Camacho
put [Piatetsky] on the floor.” Nazareno Decl. Ex. Q at
20:40–21:30. To describe parts of the encounter that he did
not observe, Lee relied on Camacho's allegations and his
discussion with Lieutenant Mendez – who also relied on
Camacho's allegations. Dkt. No. 37 ¶ 53; see, e.g., Nazareno
Decl. Ex. Q at 48:30–49:45. The ultimate source of all the
factual information contained in the criminal complaint was
Camacho. The fact that Lee prepared that document (because
he was designated as arresting officer) affords Camacho no
defense whatsoever.
Piatetsky, for his part, argues that his claim that Camacho
denied him the right to a fair trial is “well supported by the
evidence.” Dkt. No. 42, at 10–11. I agree that he has at least
raised a genuine issue of material fact on that score.
As discussed above, the footage does not resolve the issue
of whether Piatetsky “assaulted” Camacho by swatting away
his hand. It is one man's word against another's. Ordinarily
that would be enough to send us to trial. But Camacho argues
that Piatetsky has not offered any evidence that he, Camacho,
deliberately falsified evidence about the purported assault, as
opposed to made a mistake about what happened.
A fair trial claim based on fabricated evidence requires
a plaintiff to show that the defendant's use of inaccurate
information was “knowing, as opposed to mistaken.” Barnes,
68 F.4th at 129. Because “a mere difference in the testimony
of the plaintiff and the officers about what occurred on
the day of the arrest is not sufficient evidence to create a
genuine dispute of material fact as to whether [the officers]
intentionally falsified information or fabricated evidence,”
Lauderdale v. City of New York, 2018 WL 1413066, at *9
(S.D.N.Y. Mar. 19, 2018), a plaintiff must also put forth
evidence of scienter. See Davis-Guider v. City of Troy, 2024
WL 5199294, at *3 (2d Cir. Dec. 23, 2024) (summary order).
In this case there is at least some evidence that Camacho
made up the story about being “assaulted” – which, because
assault in the third degree is a D felony, is the charge that
led to Piatetsky's being held overnight and sent to Central
Booking, rather than being issued a DAT. That evidence
includes Camacho's indicating that he got the marks on his
hand during the arrest (not from the swat); the fact that
Camacho used his hand over the course of the afternoon
without indicating that he had suffered any injury; and the
extensive evidence suggesting that Camacho increased the
severity of his purported “injury” over the court of the
afternoon so that he could qualify for overtime by going to a
hospital. This may not be the strongest evidence that Camacho
was lying about the hand swat, but it is certainly enough to
get Piatetsky a trial on the matter.
Moreover, Camacho made various comments at the scene
from which a jury could conclude that he had an arguable
motive to fabricate evidence about an assault -- namely to
secure a more serious charge against Piatetsky and receive
overtime pay for the additional work required to process
the arrest and for Camacho to receive medical attention for
an insignificant wound that may not have been caused by
Plaintiff at all – and that did not impede Camacho's ability
to work the arrest scene. 11 Camacho stated on BWC video
that, in addition to a charge for criminal trespass, he intended
to pursue an attempted assault charge based on his account
that Piatetsky struck his hand, stating, “I'm going to talk
to Lieutenant first to see if he can make it a ‘16,’ too, for
smacking my hand out of the way.” Nazareno Decl. Ex. P at
13:34–14:15. Camacho's comment about “mak[ing] it a 16”
refers to Camacho's attempt to secure Lieutenant Mendez's
authorization for overtime – a 16-hour double shift – so
that Camacho could file the additional paperwork required
for a more serious charge against Piatetsky. Shortly after
making the statement above, Camacho said to Reitan, twice,
“Someone's going to have to take the 16 if I go to the
hospital, right?” Id. at 13:34–14:17. Reitan responded in the
affirmative, noting that he was “over 16 right now.” Id. At
the scene, Camacho repeatedly asks when the Lieutenant,
or “8-0”, will arrive so that Camacho can tell Mendez what
happened. See, e.g., id. 15:00–15:10, 15:29–15:40.
11 The practice of false arrests at the end of an officer's
shift in order to obtain overtime is colloquially
known as “collars for dollars.” See Cordero v.
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City of New York, 282 F. Supp. 3d 549, 556 n.2
(E.D.N.Y. 2017) (Weinstein, J.). Specifically, the
practice involves an officer attempting to “collar”
himself into a full double shift by upgrading the
charges – thereby necessitating more complex
administrative processing – to maximize overtime
pay. Id. at 555.
*19 That felony charges against Piatetsky would benefit
Camacho financially was apparent to others on the scene.
For example, after speaking with Mendez, Camacho returned
to the ambulance to update the on-scene paramedics. Id.
27:30–28:05. Camacho indicated that Piatetsky would also
be charged with attempted assault based on his account
to Mendez, and the paramedic enthusiastically responded
“Nice!” before quickly adding, “Your camera's not on, right?”
Id.
The existence of such motivation is not a product of hindsight.
Officer Lee contemporaneously expressed reservations about
Camacho's effort to pursue more serious charges. Almost as
soon as Camacho said he wanted to speak to the Lieutenant
about approving the attempted assault charge, Lee asks him,
“What are you doing?” Id. at 10:13–11:00. His concerns
are eventually dispelled, however, when he and Sharkey are
selected by Lieutenant Mendez to bring Piatetsky to the Bus
Terminal for processing, prompting Lee to cover his BWC
and ask Sharkey, “Can we get overtime for this?” Nazareno
Decl. Ex. Q at 41:00 – 41:10.
Taken together the record suggests that Camacho may well
have fabricated evidence about an assault. The issue goes to
the jury.
Camacho and Piatetsky also offer conflicting accounts of
whether Piatetsky resisted arrest or attempted to flee when
he emerged from the Tunnel. Compare Nazareno Decl. Ex.
I, at 5 (“The rider remained uncooperative and continuously
attempted to flee the scene after interception.”), and Nazareno
Decl. Ex. J, at 6 (“Upon arrest, the perp [sic] resisted arrest.”),
with Ex. P at 00:00–02:30, 3:50–4:10, 5:40–6:02 (footage
from Camacho's body-worn camera). Here the record strongly
supports Plaintiff. The video footage is unclear, but it does not
appear to show Piatetsky attempting to flee on foot, physically
struggle against the officers, or attempt to “jump over the
concrete barrier.” Dkt. No. 37 ¶ 49. Plaintiff's conduct after he
was taken down does not suggest that he was resisting arrest
– he seemed confused but compliant. Plaintiff first asked
Camacho whether he was under arrest. Nazareno Decl. Ex.
P at 00:30–01:00. Piatetsky then offered to remove his wrist
guards to allow Camacho to place him in handcuffs. Nazareno
Decl. Ex. P at 00:30–01:00. He later offered to help officers
remove his helmet and backpack. Id. at 3:58–6:02. Piatetsky
disagreed with statements Camacho made to him, but he did
so politely. Id. He did not swear at the officers, raise his
voice, or even use a disrespectful or defiant tone. Id. He fully
complied with all instructions, including by seating himself
in the patrol vehicle as directed, and waited for the officers
to inform him of the next steps and the specific charges to be
filed against him. Id. at 9:37–49. At no point did Piatetsky
attempt to flee on foot after being tackled by Camacho, and
he certainly does not attempt do so “continuously.” Finally,
the other officers did not see any indicia of attempted flight.
So Piatetsky is at the very least entitled to a trial on the issue
of whether Camacho made up the claim that he resisted arrest.
Frankly, if anyone were entitled to summary judgment on this
particular issue, it would be Plaintiff – not Camacho.
That Camacho's statements about the assault and resisting
arrest were material to what happened to Piatetsky cannot
be doubted. After hearing Camacho's version of events and
speaking with Piatetsky following the arrest, Lee questioned
whether Piatetsky should be charged at all. Nazareno Decl.
Ex. Q at 10:07–10:30. Lee later remarked that he believed
that Piatetsky could be charged with criminal trespass
or obstructing governmental administration (“OGA”) and
explicitly stated that Piatetsky should receive, at most, a
Desk Appearance Ticket (or “DAT”). Id. at 21:15–22:05.
While transporting Piatetsky to the Bus Terminal holding
cell, Lee reiterated his belief that Piatetsky would likely only
be charged with criminal trespass and receive a DAT. Id.
at 44:30–45:30, 48:30–55:30. Nevertheless, Lee included a
litany of additional charges in Piatetsky's arrest paperwork
only after speaking with Lieutenant Mendez – who knew only
what Camacho had told him. See id.; Dkt. No. 37 ¶ 53.
*20 Mendez, who was not present during the events at
issue, authorized the charges against Piatetsky, including
specifically the resisting arrest and assault charges, only
after hearing Camacho's account of the encounter. Id. at
18:55–19:35; Nazareno Decl. Ex. P at 17:30–18:40, 23:00–
27:25. Mendez did not speak to Piatetsky before concluding
what had occurred, and he did not reconsider his conclusion
when officers offered information contradicting Camacho's
account. Nazareno Decl. Ex. Q at 18:55–19:35. For example,
when Mendez asked officers if Piatetsky was compliant when
they arrived, Reitan confirmed that Piatetsky was compliant
after the arrest. Id. This could have been confirmed by
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reviewing Camacho or Lee's BWC footage, which shows
Piatetsky cooperating with officers and offers no evidence
of attempted flight. See, e.g., Nazareno Decl. Ex. P at 5:44–
6:02; Nazareno Decl. Ex. Q at 2:05–7:00. Piatetsky was
nevertheless charged with resisting arrest. Nazareno Decl. Ex.
I.
Despite what Defendant contends, Piatetsky does not
“merely” offer inconsistencies between his testimony and
Camacho's. He offers video evidence and statements from
other officers that can be interpreted to contradict Camacho's
testimony and support Plaintiff's version of events. See
Dkt. No. 39, at 9. Some of that evidence is suggestive of
falsification rather than mere mistake. It is significant that
Camacho's BWC was not on during much of the relevant time
period, which means that we are deprived of the ability to see
what was going on and hear what was being said.
In light of the above, the Court finds that Piatetsky has raised a
genuine issue of material fact about whether Officer Camacho
fabricated evidence by making false accusations against
Piatetsky, knowing that his claims would be transmitted to
prosecutors. Therefore, Plaintiff is entitled to a trial on Count
2, charging deprivation of his right to a fair trial based on the
falsification of evidence.
Camacho is not entitled to qualified immunity on this
particular claim. “Qualified immunity is unavailable on a
claim for denial of the right to a fair trial where that
claim is premised on proof that a defendant knowingly
fabricated evidence and where a reasonable jury could so
find.” Morse v. Fusto, 804 F.3d 538, 550 (2d Cir. 2015);
see also Jovanovic v. City of New York, 2006 WL 2411541,
at *13 (S.D.N.Y. Aug. 17, 2006) (“The right to a fair trial
free of fabricated evidence is basic to our Constitution and
was clearly established at the time that [the Defendant]
allegedly acted. Any reasonable officer would have known
that [p]laintiff's rights would be violated by ... making false
statements to prosecutors.” (citation omitted)).
Accordingly, Defendant's motion for summary judgment on
the denial of fair trial claim is DENIED.
We will schedule a trial on the remaining claim against Officer
Camacho for the fall of 2026.
III. Monell
The Port Authority moves for summary judgment dismissing
Piatetsky's federal Monell claim and related state law claim
for negligent hiring, training, and supervision. That motion is
GRANTED.
A municipality may be liable under 42 U.S.C. § 1983 for
constitutional violations committed by its employees if such
violations result from an official policy or custom. Monell
v. Dep't of Social Servs. of N.Y., 436 U.S. 658, 692–94
(1978). The same principle applies with equal force to the Port
Authority: A Monell claim lies where a plaintiff can establish
that a constitutional injury resulted from a custom or practice
of the Port Authority. See Raysor v. Port Authority, 768 F.2d
34, 39 (2d Cir. 1985).
To hold a municipality liable under § 1983, a plaintiff must
plead and prove (1) an official policy or custom (2) caused
(3) the deprivation of a constitutional right. Holden v. Port
Auth. of New York & New Jersey, 521 F. Supp. 3d 415,
427 (S.D.N.Y. 2021). A policy or custom may be shown
through, inter alia, a failure to train employees that amounts
to deliberate indifference to constitutional rights. Id. “To
prove such deliberate indifference, the plaintiff must show
that the need for more or better supervision to protect against
constitutional violations was obvious.” Vann v. City of New
York, 72 F.3d 1040, 1049 (2d Cir. 1995).
*21 Failure-to-train liability is available only in “limited
circumstances,” and deliberate indifference remains a
“stringent standard of fault.” Hernandez v. United States,
939 F.3d 191, 206–07 (2d Cir. 2019). A municipality
is deliberately indifferent only where it had “actual or
constructive notice” that a deficiency in its training program
was likely to cause constitutional violations, generally
through a “pattern of similar constitutional violations by
untrained employees,” but failed to act. Id. (citing Connick v.
Thompson, 563 U.S. 51, 61 (2011)). It is therefore not enough
for a plaintiff to argue, after the fact, that the incident might
have been avoided with “better or more training.” Id.
Nor is it enough to show that the particular officer
misunderstood, forgot, or failed to follow his training; the
relevant inquiry is the “adequacy of the training program in
relation to the tasks the particular officers must perform.” Id.
at 207. At summary judgment, the plaintiff must identify a
specific deficiency in the training program and show that the
deficiency is “closely related to the ultimate injury,” such that
it actually caused the constitutional deprivation. Tarasov v.
Port Auth. of N.Y. & N.J., 2026 WL 280464, at *13 (S.D.N.Y.
Feb. 3, 2026) (citing Green v. City of New York, 465 F.3d
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65, 81 (2d Cir. 2006); quoting Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 129 (2d Cir. 2004)).
Walker supplies the familiar three-part formulation for
deliberate indifference in the failure-to-train context. A
plaintiff must show that a policymaker knew “to a moral
certainty” that employees would confront the relevant
situation; that the situation either presented employees with
“a difficult choice of the sort that training or supervision
will make less difficult” or reflected “a history of employees
mishandling the situation”; and that “the wrong choice by
the city employee will frequently cause the deprivation of a
citizen's constitutional rights.” Walker v. City of New York,
974 F.2d 293, 297–98 (2d Cir. 1992).
Monell does not expose municipalities to respondeat superior
liability for “all misdeeds by municipal employees.” Id. at
296; see Connick, 563 U.S. at 60–62. Rather, municipal
liability attaches only when “the municipality itself commits
the misdeed.” Walker, 974 F.2d at 296 (citing Monell, 436
U.S. at 694). Thus, to establish Monell liability for inadequate
training, “plaintiffs must put forward some evidence that the
City itself has acted or consciously not acted.” Id.
In the failure-to-train context, municipal liability may arise
where a municipality's failure to train its employees in a
relevant respect amounts to “deliberate indifference to the
rights of persons with whom the untrained employees come
into contact.” Hernandez, 939 F.3d at 206–07. A plaintiff
ordinarily demonstrates deliberate indifference for purposes
of failure to train through a “pattern of similar constitutional
violations by untrained employees.” Connick, 563 U.S. at 62.
This is so because without notice that a course of training
is deficient in a particular respect, municipal policymakers
cannot be said to have “deliberately chosen a training program
that will cause violations of constitutional rights.” Id.
Canton demonstrates when such pattern evidence is not
required: in the rare case where the need for training is
so obvious that the unconstitutional consequences of failing
to train are a “highly predictable consequence” of the
omission, deliberate indifference may be inferred from a
single constitutional violation. Id. at 63–64; City of Canton,
Ohio v. Harris, 489 U.S. 378, 390 n.10 (1989). But even under
an “obviousness” theory, “It is not enough to show that a
situation will arise and that taking the wrong course in that
situation will result in injuries to citizens”; the plaintiff must
also show “a likelihood that the failure to train or supervise
will result in the officer making the wrong decision.” Walker,
974 F.2d at 299. Incidents that occur subsequent to the alleged
violation, that are too few to establish a pattern, or that are
insufficiently similar to the alleged constitutional violation do
not establish the requisite notice. See Greene v. City of New
York, 742 F. App'x 532, 536–37 (2d Cir. 2018).
*22 With that framework in mind, the threshold issue is how
to define the situation for which Plaintiff argues additional
training was required. Piatetsky argues that the Port Authority
“knew to a moral certainty that its employees would be
confronted with the situation of how to stop moving vehicles
at the Tunnel,” because Camacho “had stopped other EUCs
at the Tunnel and had been involved in other collisions at
the Tunnel.” Dkt. No. 42, at 14–15. But that framing defines
the relevant situation too broadly. The force at issue was not
used to prevent Piatetsky from entering the Tunnel; it was
used after he had entered the Tunnel, turned around, exited
against traffic, and (as shown on the video) changed lanes so
that it appeared that he might be trying to ride away from
Officer Camacho. Thus, the relevant question is whether the
Port Authority knew to a moral certainty that PAPD officers
would repeatedly confront that kind of situation, rendering the
need for specific use-of-force training was “obvious.” City of
Canton, 489 U.S. at 390 n.10. Without such notice, the failure
to provide more specific training for that situation cannot
amount to deliberate indifference.
The evidence concerning Camacho's job duties does not
bridge that gap. The record shows that his responsibilities
included monitoring traffic and preventing prohibited
vehicles from entering the Holland Tunnel. Dkt. No. 37 ¶
16. That evidence establishes that officers would “obviously”
encounter prohibited vehicles at or near the Tunnel entrance.
It does not, however, establish that PAPD had notice of a
need to train officers on how to respond when riders enter the
Tunnel on prohibited vehicles, traffic is stopped, and officers
need to physically apprehend those riders who attempt to
avoid the bottleneck by driving against traffic to exit using
a Tunnel entrance of by swerving away from an officer in a
manner that suggested he was trying to escape.
Nor does Plaintiff offer other evidence to support the
conclusion that the specific situation confronting Camacho
occurred with any frequency. Plaintiff identifies his own
experience, prior instances where Camacho encountered
electric scooter riders seeking entry into the Tunnel, and
one instance when Camacho collided with an unregistered
motorcycle as it entered the Tunnel. Dkt. No. 42, at 14–
15; Warner Decl. Ex. 2, Camacho Tr. at 63:25–65:9, 125:7–
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19. The record also includes BWC footage showing a rider
approaching the Tunnel on an electric unicycle, another
approaching on an e-bike, and three pedestrians attempting
to enter the Tunnel. Nazareno Decl. Ex. Q at 10:25–10:55,
22:03–22:49, 38:00–40:10. Those incidents highlight PAPD's
awareness that officers might encounter persons riding
vehicles illegally into tunnels or other forbidden roadways,
but apparently there are protocols for dealing with such
situations.
Here, however, the officer was confronted with someone who
had committed at least one crime (I count at least three –
trespass into the tunnel in violation of the Traffic Rules,
riding the wrong way on a one way street, and the possible
fare beat when Piatetsky turned around and re-entered New
York without paying a toll) in circumstances that reasonably
could have appeared to indicate an attempt to avoid an
encounter with law enforcement officers. The precise facts of
our situation may be unique – so unique that Plaintiff has not
shown that this specific situation was recurrent. But that is not
really the issue. In this case Camacho had probable cause to
believe that someone he was trying to arrest had committed
a crime and knew that this person was traveling on a moving
vehicle that was moving away from him. PAPD officers are
trained to use force if necessary to effectuate an arrest when
they have probable cause to believe that a crime has been
committed. That is precisely what Camacho did. Whether less
force, or no force at all, would have gotten Piatetsky off his
cycle and into handcuffs is not the issue for Monell purposes.
The issue is whether the PAPD trains its officers that they are
authorized to use reasonable force when they have probable
cause to believe that someone has committed a crime. All the
evidence is to the effect that the PAPD provides such training.
That is all the municipality is required to do. It is not an insurer
that every application of force will end happily.
*23 The record evidence concerning PAPD training
confirms that Plaintiff has not identified a specific deficiency
closely related to the injury alleged here. Port Authority
argues that Camacho's actions were “consistent with the
training he received from the PAPD,” Dkt. No. 39, at 11.
PAPD points to Camacho's testimony that he received bi-
annual training on the reasonable use of force, as well as
on-the-job training specific to the use of force by officers
assigned to the Holland Tunnel. Nazareno Decl. Ex. A,
Camacho Tr. at 109:11–110:8, 111:5–16, 123:4–125:23; Dkt.
No. 44, at 6. Port Authority further represents that PAPD
training includes instruction on how to stop people in moving
vehicles, including bicycles and similar devices. Id. There
is no evidence that Camacho did not receive the training
he was required to take. Plaintiff disputes the sufficiency
of that training, but he does not identify evidence of a
particular omitted instruction, recurring training gap, or prior
similar incident that would have put the Port Authority on
notice that its existing training was likely to cause officers
to use unconstitutional force against individuals whom they
had probable cause to believe had committed a crime in
circumstances where they needed to stop that individual in
order to effectuate an arrest. See Amnesty Am. v. Town of
W. Hartford, 361 F.3d 113, 129–30 (2d Cir. 2004); Connick,
563 U.S. at 62; Walker, 974 F.2d at 297–99. Without such
evidence, municipal liability cannot attach under Monell.
Nor can Piatetsky raise a genuine issue of fact on his
Monell claim by arguing that, whatever training he may have
received, Camacho was a poor student. See Hernandez, 939
F.3d at 207. At his deposition, Camacho testified that he
was trained in the principle that PAPD officers are permitted
to use reasonable force to stop someone for whom there is
probable cause to suspect has committed a crime. Nazareno
Decl. Ex. A, Camacho Tr. at 123:12–15. And here there was
indeed probable cause to believe that Piatetsky had committed
a crime – actually, multiple traffic violations, including the
possible fare beat. Significantly, Piatetsky does not contend
that there was no probable cause to arrest him; he has not
asserted a false arrest claim and has not argued that there was
no probable cause to support his arrest.
Nor does Camacho's inability to recall the precise PAPD
protocol for stopping a prohibited vehicle from entering the
Tunnel, or to describe every circumstance in which force is
permissible in that context, establish that PAPD failed to give
him appropriate training. Id., Camacho Tr. at 123:2–125:23.
To the contrary, the evidence shows that he did receive such
training. Moreover, that was not the context of the situation
he encountered.
Finally, the fact that Camacho had previously failed to stop,
and ultimately collided with, an unregistered motorcycle that
was entering the Tunnel illegally is not evidence of any
deficiency in training by the PAPD. Id., Camacho Tr. at
125:7–15. The facts of that incident are not recounted in the
record and there is no way to know whether anything that
happened during that incident reflected on the training that
PAPD officers admittedly receive.
Plaintiff's reliance on Fox v. Triborough Bridge & Tunnel
Authority, 462 F. Supp. 3d 241 (E.D.N.Y. 2020), does not alter
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that conclusion. Fox illustrates the kind of record that can
support failure-to-train liability. There, the evidence showed
that the defendant officer's assigned duties directly included
the recurring enforcement situation at issue: monitoring
bicyclists on the Marine Parkway Bridge, ensuring that they
dismounted on the pedestrian walkway, and issuing warnings
or summonses if they continued riding. Id. at 247. The
evidence also showed recurrence: the officer testified that
“dozens” of bicyclists rode across the bridge that day, and that
earlier the same day two bicyclists had ignored an order to
stop riding. Id. Critically, the officer himself testified that he
had not been trained how to stop a bicyclist riding downhill
by standing in the walkway and ordering him to stop, and that
specific training would have “assist[ed]” him, “helped,” and
allowed him to make “a better decision.” Id. at 247–48. On
that record, the court held that a reasonable jury could find the
need for training “obvious.” Id. at 248.
This record lacks comparable evidence. Although Camacho's
duties included monitoring traffic and preventing prohibited
vehicles from entering the Holland Tunnel, unlike the Fox
plaintiff, Piatetsky has not identified evidence that PAPD
officers repeatedly confronted the specific situation he faced
here. Nor has Plaintiff identified testimony, training materials,
prior incidents, or other record evidence comparable to the
proof in Fox showing that PAPD officers lacked training
for a specific recurring situation and that the absence of
such training made unconstitutional force likely. See Amnesty
Am., 361 F.3d at 129–30; Walker, 974 F.2d at 297–99.
Fox therefore underscores the defect in Plaintiff's Monell
claim: the record may show that PAPD officers occasionally
encounter prohibited vehicles at or near the Tunnel, but it does
not show that the Port Authority was on notice of a recurring,
specific use-of-force situation requiring additional training
that involved an illegal exit from the Tunnel in circumstances
like the most unusual ones in this case.
*24 Accordingly, Defendant Port Authority is entitled to
summary judgment on Plaintiff's Monell claim.
IV. New York Negligent Hiring, Retention, and
Supervision
The Port Authority argues that Piatetsky's negligent hiring,
retention, and supervision claim fails because “Plaintiff has
failed to allege any facts that show individual Defendant
(Officer Camacho);s [sic] prior conduct would have made
the Port Authority aware that they were [sic] not suitable
employees [sic].” Dkt. No. 39, at 12 (Defendants’ motion for
summary judgment).
Under New York law, a plaintiff can state a claim for negligent
hiring, training, and supervision by showing, “in addition to
the standard elements of negligence,”
(1) that the tortfeasor and the
defendant were in an employee-
employer relationship [...]; (2) that
the employer knew or should have
known of the employee's propensity
for the conduct which caused the
injury prior to [its] occurrence [...];
and (3) that the tort was committed
on the employer's premises or with the
employer's chattels.
Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.
2004). “A cause of action for negligent hiring or retention
requires allegations that the employer [...] failed to investigate
a prospective employee notwithstanding knowledge of facts
that would lead a reasonably prudent person to investigate that
prospective employee.” Bouchard v. N.Y. Archdiocese, 719
F.Supp.2d 255, 261 (S.D.N.Y. 2010).
Here, Piatetsky's negligent hiring and retention theory fails
because he offers no evidence that the Port Authority was
on notice of Officer Camacho's alleged propensity to use
excessive force. Bouchard, 719 F.Supp.2d at 261. Plaintiff
identifies no prior incidents or complaints against Camacho
that would have put Port Authority on notice of Camacho's
supposed propensity, instead relying on the evidence offered
in support of his Monell claim.
Relatedly, Piatetsky's negligent training and supervision
theory also fails because the record does not support finding
that the Port Authority knew or should have known of a
foreseeable risk of the type of harm at issue here. Specifically,
Piatetsky has not shown that his having been subjected to
potentially excessive force for riding a prohibited vehicle
into the Tunnel and then back out again was the reasonably
foreseeable consequence of the absence of a particular
training. Plaintiff attempts to frame the relevant risk at a
high level of generality – namely, officers’ interactions with
individuals riding moving vehicles – but the proper inquiry is
whether the Port Authority was on notice that its training was
deficient in a manner likely to result in the use of unreasonable
force in the specific circumstances presented.
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The record contains no such evidence. Although the Traffic
Rules do not clearly mention electric unicycles or scooters,
they apply to all unregistered vehicles. Furthermore, any
ambiguity in the 2016 Rules does not give rise to a foreseeable
risk that officers would respond to a violation with excessive
force, and Plaintiff identifies no prior incidents, complaints,
or statistical patterns suggesting otherwise. Bouchard v. N.Y.
Archdiocese, 719 F.Supp.2d 255, 261 (S.D.N.Y. 2010). Nor
does Officer Camacho's testimony establish a triable issue of
fact, as it reflects, at most, an individual misunderstanding of
the meaning of “force” rather than a systemic deficiency in
training. In the absence of evidence that the Port Authority
was on notice of a recurring or predictable risk of similar
conduct, no reasonable jury could find that it failed to exercise
reasonable care in training its officers.
*25 Port Authority is thus entitled to summary judgment on
Plaintiff's state law negligent hiring, retention, training and
supervision claim.
Conclusion
For the foregoing reasons, Defendants’ motion for summary
judgment dismissing the excessive force and fair trial claims
is DENIED, and the branch of Defendants’ motion dismissing
the Monell and state law negligent hiring, retention, training
and supervision claims is GRANTED.
The Clerk of Court is directed to remove the motion at Docket
# 36 from the court's list of open motions.
This is a written opinion resolving a summary judgment
motion.
BY ECF TO ALL COUNSEL
All Citations
Slip Copy, 2026 WL 1399468
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Harding v. Gould, Not Reported in Fed. Supp. (2024)
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2024 WL 3742688
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Cheyenne C. HARDING, Plaintiff,
v.
Investigator Timothy P. GOULD; Trooper Timothy
H. Finnegan; Investigator James Wollman;
and Other State Police Employees, in their
individual and official capacities, Defendants.
22 CV 6285 (VB)
|
Signed August 9, 2024
Attorneys and Law Firms
Cheyenne C. Harding, Farmington, NH, Pro Se.
Jeb Harben, Jennifer L. Goltche, New York State Office
of the Attorney General, New York, NY, for Defendants
Investigator Timothy P. Gould, Trooper Timothy H.
Finnegan, Investigator James Wollman.
OPINION AND ORDER
Briccetti, United States District Judge:
*1 Plaintiff Cheyenne C. Harding, proceeding pro se and
in forma pauperis, brings this Section 1983 action against
defendants Timothy P. Gould, Timothy H. Finnegan, and
James Wollman, all of whom are active or former New
York State police officers, in their individual and official
capacities. 1 Plaintiff alleges defendants violated her First,
Second, Fourth, and Fourteenth Amendment rights when they
allegedly assaulted and arrested her cousin in her presence,
touched plaintiff's breast while holding her back, illegally
searched her purse and belongings, and seized her firearm.
1 In addition to the individually named defendants,
plaintiff includes “other state police employees”
as defendants in the caption of her complaint.
However, the document itself contains no factual
allegations about, or even mention of, these other
state police employees. “It is well-settled that
dismissal is appropriate where a defendant is listed
in the caption, but the body of the complaint fails
to indicate what the defendant did to the plaintiff.”
Sharpstene v. Burcume, 2022 WL 20335678, at
*3 (N.D.N.Y. Feb. 18, 2022). Accordingly, to the
extent plaintiff intended to assert claims against
other unidentified state police employees, such
claims must be dismissed.
Unless otherwise indicated, case quotations omit
all internal citations, quotations, footnotes, and
alterations.
Plaintiff will be provided with copies of all
unpublished opinions cited in this decision. See
Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009)
(per curiam).
Now pending is defendants’ unopposed motion to dismiss the
complaint pursuant to Rules 12(b)(1) and Rule 12(b)(6). 2
(Doc. #19).
2 Plaintiff did not oppose the motion, despite having
been granted an extension of time to do so. (Doc.
#24).
For the reasons set forth below, the motion is GRANTED.
However, the Court grants plaintiff leave to replead certain of
her claims as discussed in Part V below.
The Court has subject matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367.
BACKGROUND
For the purpose of ruling on the motion to dismiss, the Court
accepts as true all well-pleaded factual allegations in the
complaint, and draws all reasonable inferences in plaintiff's
favor, as summarized below.
Plaintiff, a New Hampshire resident, alleges that on My 26,
2019, she, her cousin Joseph Brooks, and her aunt Wanda
Duryea visited the New York State police barracks in Somers,
New York, to obtain a signature on Brooks's parolee travel
form.
According to plaintiff, defendant Finnegan refused to sign the
form and hit Brooks. Plaintiff further claims she saw Brooks
being assaulted in the parking lot and pulled out of a car.
Plaintiff alleges defendant Wollman refused plaintiff access to
the barracks, telling her “You can't film in here,” as he touched
her left breast while holding her back. (Doc. #2 (“Compl.”)
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at 5). Plaintiff asserts she then listened as Brooks was further
assaulted in the barracks after he was “maliciously and falsely
arrested.” (Id.).
*2 Plaintiff claims her purse and belongings were illegally
searched, and her black powder pistol was illegally seized
and held until June 2022. Plaintiff alleges she was arrested
on firearms charges, which were later reduced to a disorderly
conduct charge and ultimately dismissed and sealed.
Plaintiff alleges that “[r]epeated court appearances and
complications” associated with the July 26 events caused
her “unwarranted stress, PTSD and IBS pain and
symptoms.” (Compl. at 6).
DISCUSSION
I. Standard of Review
A. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory authority or constitutional power to adjudicate
it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir.
2011). “[F]ederal courts are courts of limited jurisdiction
and lack the power to disregard such limits as have been
imposed by the Constitution or Congress.” Durant, Nichols,
Houston, Hodgson & Cortese-Costa, P.C. v. DuPont, 565 F.3d
56, 62 (2d Cir. 2009) (quoting Owen Equip. & Erection Co.
v. Kroger, 437 U.S. 365, 374 (1978)). The party invoking
the Court's jurisdiction bears the burden of establishing
jurisdiction exits. Conyers v. Rossides, 558 F.3d 137, 143 (2d
Cir. 2009).
In deciding a Rule 12(b)(1) motion at the pleading stage, the
court “must accept as true all material facts alleged in the
complaint and draw all reasonable inferences in the plaintiff's
favor,” except for “argumentative inferences favorable to the
party asserting jurisdiction.” Buday v. N.Y. Yankees P'ship,
486 F. App'x 894, 895 (2d Cir. 2012) (summary order).
To the extent a Rule 12(b)(1) motion places jurisdictional
facts in dispute, the district court may resolve the disputed
jurisdictional fact issues by referring to evidence outside the
pleadings. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d
140, 145 (2d Cir. 2011).
When a defendant moves to dismiss for lack of subject matter
jurisdiction and on other grounds, the court should consider
the Rule 12(b)(1) challenge first. Rhulen Agency. Inc. v. Ala.
Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
B. Rule 12(b)(6)
In deciding a Rule 12(b)(6) motion, the Court evaluates
the sufficiency of the operative complaint under “the two-
pronged approach” articulated by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, a plaintiff's
legal conclusions and “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,”
are not entitled to the assumption of truth and are thus
not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second,
“[w]hen there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v.
Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the
complaint must meet a standard of “plausibility.” Ashcroft
v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at
678. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. (quoting Bell Atl Corp.
v. Twombly, 550 U.S. at 556).
*3 The Court must liberally construe submissions of pro se
litigants and interpret them “to raise the strongest arguments
that they suggest.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (per curiam). Applying the
pleading rules permissively is particularly appropriate when,
as here, a pro se plaintiff alleges civil rights violations. Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). “Even in a pro se case, however, ... threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010). Nor may the Court “invent
factual allegations” a plaintiff has not pleaded. Id.
II. Official Capacity Claims
Defendants argue plaintiff's official-capacity claims must be
dismissed for lack of subject matter jurisdiction because these
claims are barred by the Eleventh Amendment.
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The Court agrees.
“[A]s a general rule, state governments may not be sued
in federal court unless they have waived their Eleventh
Amendment immunity, or unless Congress has abrogated
the states’ Eleventh Amendment immunity.” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “[T]he immunity
recognized by the Eleventh Amendment extends beyond the
states themselves to state agents and state instrumentalities
that are, effectively, arms of a state.” Id. This immunity
shields States from claims for money damages and other
prospective relief. See Green v. Mansour, 474 U.S. 64, 72–
74 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 101–02 (1984). If a plaintiff's claims are barred by
the Eleventh Amendment, they must be dismissed for lack of
subject matter jurisdiction. Close v. New York, 125 F.3d 31,
38–39 (2d Cir. 1997).
Congress did not abrogate the States’ immunity in enacting
Section 1983, see Dube v. State Univ. of N.Y., 900 F.2d
587, 594 (2d Cir. 1990), and New York has not waived its
immunity to suit in federal court, see Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). The
Eleventh Amendment therefore precludes plaintiff's claims
for damages under Section 1983 against defendants, who are
all New York State officials, in their official capacities. See,
e.g., Exxon Mobil Corp. v. Healey, 28 F.4th 383, 392 (2d Cir.
2022) (“[T]he Eleventh Amendment bars the award of money
damages against state officials in their official capacities.”).
Moreover, this Court lacks subject-matter jurisdiction to
consider plaintiff's claims against defendants in their official
capacities under state law; plaintiff may only pursue such
claims for damages in the New York Court of Claims. Bertoldi
v. State, 275 A.D.2d 227, 228 (1st Dep't 2000) (“It is well
settled that the [New York] Court of Claims has exclusive
jurisdiction over actions for money damages against the
State, State agencies, or State officials acting in their official
capacities in the exercise of governmental functions.”).
Accordingly, plaintiff's claims against defendants in their
official capacities must be dismissed.
III. Standing
Plaintiff alleges she suffered emotional distress watching
defendants purportedly assault her cousin. Construing her
allegations liberally, plaintiff asserts Section 1983 claims
under the Fourth and Fourteenth Amendments and a state law
negligence claim. Defendants challenge plaintiff's standing to
bring these claims.
In addition to the Article III “case or controversy”
requirements, federal courts must often consider certain
prudential limits on a plaintiff's standing to pursue the claims
she asserts. One such “prudential principle is that a plaintiff
may ordinarily assert only his own legal rights, not those of
third parties.” Am. Psychiatric Ass'n v. Anthem Health Plans,
Inc., 821 F.3d 352, 358 (2d Cir. 2016).
*4 The Court will separately address plaintiff's prudential
standing to assert the Section 1983 claims and her state law
negligence claim.
A. Section 1983 Claims
Defendants argue plaintiff lacks standing to assert Section
1983 claims concerning harm she suffered based on
witnessing the alleged assault on and false arrest of her cousin,
Brooks.
The Court agrees.
“[T]o prevail in an action brought under § 1983 a plaintiff
must show that he or she was deprived of a right, privilege or
immunity secured by the Constitution or laws of the United
States.” Morgan v. City of New York, 166 F. Supp. 2d 817,
819 (S.D.N.Y. 2001). “[O]nly the person toward whom the
state action was directed, and not those incidentally affected[,]
may maintain a § 1983 claim.” Id. For this reason, “a cause
of action may not be asserted pursuant to Section 1983
for emotional distress ... or any other consequent collateral
injuries allegedly suffered personally by a victim's family
members.” Love v. Riverhead Cent. Sch. Dist., 823 F. Supp.
2d 193, 199 (E.D.N.Y. 2011).
To the extent plaintiff asserts she was harmed by witnessing
the alleged assault and arrest of her cousin, she has not
alleged a violation of her constitutional rights. “A plaintiff
lacks standing to bring a § 1983 claim on their own behalf
based upon a deprivation of their loved ones’ rights,” Baez
v. Pinker, 2015 WL 3457277, at *4 (S.D.N.Y. June 1, 2015),
and “emotional distress does not constitute a violation of
a federally protected constitutional right” giving rise to a
Section 1983 claim, Horton ex rel. S.H. v. Bd. of Educ., 2016
WL 2354266, at *2 (N.D.N.Y. May 4, 2016).
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Accordingly, plaintiff's Section 1983 claims arising from her
cousin's alleged assault and arrest must be dismissed for lack
of standing.
B. Negligence Claim
To the extent plaintiff asserts a state law negligence claim
arising from the purported assault and battery of Brooks,
defendants argue plaintiff lacks standing because Brooks is
not plaintiff's immediate family member and plaintiff was not
within the requisite “zone of danger.”
The Court agrees.
Under New York law, a negligence claim for emotional
distress is limited to “damages for injuries suffered in
consequence of the observation of the serious injury or
death of a member of his or her immediate family.” Bovsun
v. Sanperi, 61 N.Y.2d 219, 231 (1984) (emphasis added).
Because Brooks is plaintiff's cousin, and not a member of her
immediate family, plaintiff cannot bring a negligence claim
for emotional distress purportedly suffered from witnessing
the alleged assault of Brooks. See, e.g., Jun Chi Guan v.
Tuscan Dairy Farms, 24 A.D.3d 725, 726–27 (2d Dep't 2005)
(finding “plaintiff's ‘immediate family’ does not include his
or her grandchild”).
In any event, a plaintiff may only bring a negligence action
for emotional distress when the plaintiff “herself is threatened
with bodily harm and she views the death or serious injury
of” her family member. See Morgan v. City of New York, 166
F. Supp. 2d at 819 (citing Bovsun v. Sanperi, 61 N.Y.2d at
228). Narrowly circumscribed, this exception applies when
the plaintiff herself was within the “zone of danger,” meaning
she was exposed to “an unreasonable risk of bodily injury or
death.” Bovsun v. Sanperi, 61 N.Y.2d at 230–31.
*5 Here, plaintiff alleges she saw and listened to her cousin
being “hit” and “assaulted.” (Compl. at 5). Although plaintiff
asserts defendant Wollman held her back, even construing this
allegation in the light most favorable to her, plaintiff has not
alleged she faced any threat of serious bodily harm. Thus, she
does not have standing to bring a claim for negligent infliction
of emotional distress based on defendants’ alleged treatment
of Brooks. See e.g., Zea v. Kolb, 204 A.D.2d 1019, 1019–20
(4th Dep't 1994) (plaintiff who was on the opposite side of
the street and twelve to fifteen feet from her daughter when
her daughter was struck by a car and died was not within the
zone of danger).
Accordingly, plaintiff's negligence claim must be dismissed.
IV. Failure to State a Claim
Liberally construed, the complaint asserts defendants violated
plaintiff's constitutional rights when they touched her breast
in holding her back from the barracks, searched her
belongings, and seized her firearm. None of these claims is
adequately pleaded.
A. Defendant Gould: Personal Involvement
As an initial matter, none of plaintiff's factual allegations in
the complaint involve defendant Gould.
To state a claim under Section 1983, a plaintiff must allege
facts showing a defendant's direct and personal involvement
in the alleged constitutional deprivation. See Spavone v.
N.Y.S. Dep't of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013)
(“It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”),
abrogated on other grounds by Darnell v. Pineiro, 849 F.3d
17 (2d Cir. 2017). Because plaintiff has made no allegations
against Gould, she has failed to plead Gould was personally
involved in any unconstitutional conduct.
Accordingly, all claims against Gould must be dismissed.
B. Excessive Force, Assault and Battery, and Bodily
Integrity Claims
Liberally construed, plaintiff's allegation that Wollman
touched her breast as he held her back from entering the
barracks suggests claims for excessive force under the Fourth
and Fourteenth Amendments, assault and battery under New
York law, and violation of the right to bodily integrity under
the Fourth Amendment.
The Court finds plaintiff has not adequately pleaded any of
these claims.
1. Legal Standard
“The essential elements of excessive force and state law
assault and battery claims are substantially identical.”
Humphrey v. Landers, 344 F. App'x 686, 688 (2d Cir. 2009)
(summary order). Excessive force claims asserted in the
non-seizure, non-prisoner context are analyzed under the
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Due Process Clause of the Fourteenth Amendment. Tierney
v. Davidson, 133 F.3d 189, 199 (2d Cir. 1998). Excessive
force claims related to an arrest, on the other hand, are
evaluated under the Fourth Amendment. Graham v. Connor,
490 U.S. 386, 392 (1989). To determine whether the Fourth
or Fourteenth Amendment governs an excessive force claim,
courts consider whether there has been a constitutionally
cognizable seizure. Medeiros v. O'Connell, 150 F.3d 164, 167
(2d Cir. 1998).
To plead an excessive force claim under the Fourteenth
Amendment, a plaintiff must allege that force was applied
“purposefully, knowingly, or (perhaps) recklessly” because
“accidental or negligent acts are not subject to Fourteenth
Amendment liability.” Edrei v. Maguire, 892 F.3d 525, 534
(2d Cir. 2018). A plaintiff must also allege facts suggesting
that the use of force was “objectively unreasonable.” Kingsley
v. Hendrickson, 567 U.S. 389, 397 (2015). To determine
whether the use of force was objectively unreasonable
under the Fourteenth Amendment, courts consider six non-
exhaustive considerations: (i) the relationship between the
need for the use of force and the amount of force used; (ii)
the extent of the plaintiff's injury; (iii) any effort made by
the officer to temper or to limit the amount of force; (iv)
the severity of the security problem at issue; (v) the threat
reasonably perceived by the officer; and (vi) whether the
plaintiff was actively resisting. Id.; see Edrei v. Maguire, 892
F.3d 525, 537 (2d Cir. 2018) (noting Kingsley’s six-factor test
is a “modest refinement” of the four-factor test long employed
by the Second Circuit). A plaintiff “must also allege that
the officers used more than de minimis force.” Feliciano v.
Thomann, 747 F. App'x 885, 887 (2d Cir. 2019) (summary
order).
*6 Courts also apply an “objective reasonableness” standard
to Fourth Amendment excessive force claims. Graham v.
Connor, 490 U.S. at 396. This standard requires “a careful
balancing of the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the
countervailing governmental interests at stake.” Id.
However, “not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates the
Fourth Amendment.” Graham v. Connor, 490 U.S. at 396–
97. Courts are thus “required to make allowance for the fact
that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Tracy v. Freshwater, 623 F.3d 90,
96 (2d Cir. 2010).
Although “a de minimis use of force will rarely suffice to
state a constitutional claim,” Romano v. Howarth, 998 F.2d
101, 105 (2d Cir. 1993), “it is the force used, not the injuries
caused, which must be determined to be de minimis as a
matter of law,” Campbell v. City of New York, 2010 WL
2720589, at *8 (S.D.N.Y. June 30, 2010). This is because the
absence of serious injury alone is not sufficient to preclude a
Fourth Amendment excessive force claim as a matter of law.
Ketcham v. City of Mount Vernon, 992 F.3d 144, 150–51 (2d
Cir. 2021).
It is typically the jury's “unique task ... to determine the
amount of force used, the injuries suffered and the objective
reasonableness of the officer's conduct.” Breen v. Garrison,
169 F.3d 152, 153 (2d Cir. 1999). Therefore, “[w]hen courts
grant motions to dismiss an excessive force claim, it is
because the force used was objectively reasonable as a matter
of law.” Phillips v. City of Middletown, 2018 WL 4572971,
at *3 (S.D.N.Y. Sept. 24, 2018).
Courts also recognize that “unreasonable, non-consensual,
inappropriate touching can constitute unreasonable intrusions
into a plaintiff's bodily integrity in violation of the Fourth
Amendment.” Scalpi v. Amorim, 2018 WL 1606002, at
*18 (S.D.N.Y. Mar. 29, 2018). However, “not every truthful
allegation of sexual bodily intrusion during an arrest is
actionable as a violation of the Fourth Amendment. Some
bodily intrusions may be provably accidental or de minimis
and thus constitutionally reasonable.” Id. (quoting Fontana v.
Haskin, 262 F.3d 871, 880 (9th Cir. 2001)).
2. Application
As an initial matter, it is unclear whether plaintiff's excessive
force claims are governed by the Fourth or Fourteenth
Amendment standard. Although the Court infers Wollman's
touch, made in connection with plaintiff attempting to enter
the barracks, occurred separately from plaintiff's arrest on
firearms charges, seemingly made after her pistol was seized,
and thus was not connected to a constitutionally cognizable
seizure, the timing in the complaint is unclear. However,
under either standard, plaintiff fails to plausibly state an
excessive force or assault and battery claim against Wollman.
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Although plaintiff has adequately alleged Wollman's use of
force was made knowingly under the Fourteenth Amendment,
she has not plausibly alleged the use of force was objectively
unreasonable. Plaintiff has not alleged any injury inflicted as
a result of the use of force, and her allegations suggest that
force “was applied in a good faith effort to maintain or restore
discipline.” Tierney v. Davidson, 133 F.3d at 199. Indeed,
courts have repeatedly held that similarly minimal uses of
force, such as a single slap, that result in no injury “constitutes
unactionable, de minimis force.” Lewis v. Huebner, 2020
WL 1244254, at *6 (S.D.N.Y. Mar. 16, 2020) (collecting
cases dismissing excessive force claims under both Fourth
and Fourteenth Amendments). Moreover, the allegation that
Wollman's use of force was related to the need to refuse
plaintiff access to the barracks suggests the use of force
was not unreasonable. Considering the Kingsley factors, the
Court finds plaintiff has not plausibly alleged facts from
which the Court could infer the use of force was objectively
unreasonable.
*7 The same is true as to plaintiff's Fourth Amendment
excessive force claim. Plaintiff alleges no facts from which
the Court can infer Wollman used “force beyond that which
was warranted by the objective circumstances” at issue.
Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir.
2019). The Court thus cannot “plausibly infer” the use of force
was objectively unreasonable. Lewis v. Westchester County,
2021 WL 3932626, at *4 (S.D.N.Y. Sept. 2, 2021) (dismissing
Fourth Amendment excessive force claim when plaintiff
alleged “no facts from which the Court could plausibly infer
the handcuffs were unreasonably tight” or the use of force was
otherwise unreasonable). Similarly, plaintiff's lone allegation
that Wollman touched her breast while holding her back is not
sufficient to establish a bodily integrity claim under the Fourth
Amendment. See Scalpi v. Amorim, 2018 WL 1606002, at
*18 (collecting cases holding an officer touching a plaintiff's
breasts and genital area over her clothes is insufficient to
violate the Fourth Amendment).
Accordingly, plaintiff's Fourth and Fourteenth Amendment
excessive force and bodily integrity claims and state law
assault and battery claims arising out of the alleged touch by
Wollman must be dismissed.
C. Search and Seizure Claims
The Court liberally construes plaintiff's allegations that her
purse and belongings were illegally searched and that her
pistol was illegally seized as suggesting defendants violated
her Fourth Amendment right to be free from unreasonable
search and seizure.
Defendants argue plaintiff has not adequately alleged an
unreasonable search or seizure.
The Court agrees.
The Fourth Amendment, which applies to the states through
the Fourteenth Amendment, prohibits “unreasonable searches
and seizures.” U.S. Const. amend. IV. “In any § 1983
claim predicated on the Fourth Amendment, the first step
is to determine whether there has been a constitutionally
cognizable search or seizure.” Velasquez v. City of New York,
2012 WL 5879484, at *4 (E.D.N.Y. Nov. 21, 2012) (citing
Medeiros v. O'Connell, 150 F.3d 164, 167 (2d Cir. 1998)).
A Fourth Amendment “search” occurs when an “individual
manifest[s] a subjective expectation of privacy in the object
of the challenged search, and society is willing to recognize
that expectation as reasonable.” Kyllo v. United States, 533
U.S. 27, 33 (2001). Warrantless searches and seizures “are
per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967).
“A seizure occurs when there is some meaningful interference
with an individual's possessory interest in his or her property.”
United States v. Jackson, 466 U.S. 109, 113 (1984). Notably,
the government's failure to return lawfully seized property is
not an unreasonable seizure under the Fourth Amendment.
Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d
177, 187 (2d Cir. 2004). In other words, the government's
continued retention of property does not constitute an
additional seizure or transform a lawful seizure into an
unlawful one. Malapanis v. Regan, 335 F. Supp. 2d 285, 291
(D. Conn. 2004) (citing Fox v. Van Oosterum, 176 F.3d 342,
351 (6th Cir. 1999)).
Plaintiff makes no non-conclusory allegations that her purse
or belongings were subjected to an unreasonable search.
Instead, plaintiff “merely alleges [defendants] conducted
an unreasonable search, but fails to support this assertion
with any supporting factual allegations.” Lautman v. Village
of Saugerties, 2014 WL 1653189, at *6 (N.D.N.Y. Apr.
23, 2014). (dismissing conclusory claims of constitutional
violation). Moreover, plaintiff does not name which
defendants, if any, searched her belongings. See Wilson v.
City of New York, 2016 WL 2858895, at *3 (S.D.N.Y. May
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16, 2016) (finding “bare allegation that [a defendant] ‘was
personally involved in the unlawful search and arrest’ is too
conclusory to sufficiently allege his personal involvement in
a constitutional violation”).
*8 Similarly, plaintiff's barebones allegation that her pistol
was “illegally seized,” without more, is insufficient to plead
an unreasonable seizure. Plaintiff has not alleged whether she
was legally permitted to possess the firearm in New York.
Moreover, plaintiff's assertion that she was later prosecuted
for “firearms charges” suggests her pistol was seized as
evidence of a crime. See United States v. Herron, 18 F.
Supp. 3d 214, 223 (E.D.N.Y. 2014) (“A police officer may
seize personal effects discovered during a search incident to
arrest if the officer finds that these are evidence of criminal
conduct, even if unrelated to that for which a suspect had been
arrested.”). Thus, plaintiff has failed to allege particularized
supporting facts needed to state a Fourth Amendment claim
for the seizure of her pistol.
Moreover, absent a well-pleaded claim that defendants
illegally seized the pistol, the continued retention of the
firearm is not actionable. Shaul v. Cherry Valley-Springfield
Cent. Sch. Dist., 363 F.3d at 186–87.
Accordingly, plaintiff's Fourth Amendment claim arising
from the search of her purse and belongings and the seizure
of her firearm must be dismissed.
D. Second Amendment Claim
To the extent plaintiff attempts to assert a claim under the
Second Amendment, she has failed to allege defendants
violated her constitutional right to bear arms.
The Second Amendment provides: “A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.” U.S.
Const, amend. II. The Supreme Court has held the Second
Amendment “codified a pre-existing right” that includes an
“individual right to possess and carry weapons in case of
confrontation.” District of Columbia v. Heller, 554 U.S. 570,
592 (2008). This right applies to the states through the Due
Process Clause of the Fourteenth Amendment. McDonald v.
City of Chicago, 561 U.S. 742, 766–67 (2010). However, the
Second Amendment's “right to bear arms is not a right to hold
some particular gun.” Garcha v. City of Beacon, 351 F. Supp.
2d 213, 217 (S.D.N.Y. 2005).
Here, plaintiff alleges her firearm was allegedly illegally
seized. But the “confiscation of a specific weapon does not
constitute a Second Amendment violation.” Dunkelberger v.
Dunkelberger, 2015 WL 5730605, at *20 (S.D.N.Y. Sept.
30, 2015). Moreover, because plaintiff has not alleged that
defendants prevented her “from acquiring another weapon,”
they “did not impede plaintiff's right to bear arms.” McGuire
v. Village of Tarrytown, 2011 WL 2623466, at *7 (S.D.N.Y.
June 22, 2011).
Accordingly, to the extent plaintiff attempted to bring a
Second Amendment claim, such claim must be dismissed.
E. False Arrest Claim
Liberally construed, plaintiff's allegations suggest she
attempts to bring a claim for false arrest under the Fourth
Amendment. Defendants argue such a claim should be
dismissed because plaintiff has not adequately alleged the
personal involvement of any defendant and, in any event,
plaintiff has not alleged her arrest was made without probable
cause or was improper.
The Court finds plaintiff has failed to adequately plead a false
arrest claim.
“A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from
unreasonable seizures, including arrest without probable
cause, is substantially the same as a claim for false arrest
under New York law.” Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996). To prevail on a claim of false arrest or
unlawful imprisonment, a plaintiff must prove that “(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.” Savino v. City of New York, 331 F.3d
63, 75 (2d Cir. 2003).
*9 As an initial matter, plaintiff does not allege the personal
involvement of any defendant. She alleges simply that she
was arrested and charged with firearms charges, but she does
not allege which defendant, if any, effectuated her arrest. See
Wilson v. City of New York, 2016 WL 2858895, at *3. In
any event, plaintiff's allegations do not suggest that she was
maliciously or falsely arrested. To the extent the complaint
could suggest the arrest was wrongful because the seizure
of plaintiff's firearm resulted from an unlawful search and
seizure, plaintiff has not adequately alleged the search and
seizure was unlawful (as discussed above, Part IV.C), and, in
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any event, such a “fruit of the poisonous tree” argument may
not be invoked to support a Section 1983 action. Townes v.
City of New York, 176 F.3d 138, 145 (2d Cir. 1999).
Accordingly, to the extent plaintiff attempted to bring a false
arrest claim, such claim must be dismissed.
F. First Amendment Claim
Although plaintiff lists the First Amendment as a source
of rights she alleges were violated (Compl. at 2), she
alleges no facts from which the Court could infer a First
Amendment claim, “Because the claims are conclusory and
lack any factual support for even an inference that defendants”
violated plaintiff's First Amendment rights, “plaintiff has
failed plausibly to allege a [First] Amendment violation.”
Hirsch v. City of New York, 751 Fed. App'x 111, 114 (2d
Cir. 2018) (summary order) (affirming dismissal of a Fourth
Amendment claim because the complaint did not mention the
Fourth Amendment other than in a heading).
Accordingly, any claim that defendants violated plaintiff's
First Amendment rights must be dismissed. 3
3 Because all claims are being dismissed, the Court
does not address defendants’ arguments concerning
qualified immunity.
V. Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure instructs
courts to “freely give leave” to amend a complaint “when
justice so requires.” Liberal application of Rule 15(a) is
warranted with respect to pro se litigants, who “should be
afforded every reasonable opportunity to demonstrate that
[they have] a valid claim.” Matima v. Celli, 228 F.3d 68, 81
(2d Cir. 2000). Thus, a district court ordinarily should not
dismiss a pro se complaint for failure to state a claim “without
granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be
stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
However, “a futile request to replead should be denied.” Id.
Here, reading the complaint liberally, no allegations suggest
plaintiff has a valid claim against defendants (i) in their
official capacity, (ii) arising out of watching defendants
purportedly assault Brooks, or (iii) for violations of her
First and Second Amendment rights, that she has merely
“inadequately or inartfully pleaded” and therefore should
be “given a chance to reframe.” Cuoco v. Moritsugu, 222
F.3d at 112. To the contrary, the Court finds that repleading
these claims would be futile, because the problems with these
causes of action are substantive, and supplementary and/
or improved pleading will not cure the deficiencies of the
complaint. Id.
However, to the extent plaintiff attempted to raise claims
for (i) excessive force under the Fourth or Fourteenth
Amendments or assault and battery under New York
law arising out of contact by defendant Wollman, (ii)
unreasonable search and seizure of plaintiff's belongings
under the Fourth Amendment, and (iii) false arrest under
the Fourth Amendment, the problems with these claims arise
largely from an absence of particularized supporting factual
allegations. Thus, in consideration of her pro se status, the
Court grants plaintiff leave to replead these claims.
*10 Accordingly, although she is not required to do so,
if plaintiff wishes to pursue such claims, she may file an
amended complaint. To the greatest extent possible, plaintiff's
amended complaint must address the deficiencies identified
in this Opinion and Order.
To be clear, the Court is permitting (but not requiring) plaintiff
to file an amended complaint, to pursue only claims arising
out of the touch by defendant Wollman, the search and
seizure of plaintiff's belongings, and her arrest. Plaintiff is not
granted leave to file an amended complaint containing claims
against defendants in their official capacity, or claims against
defendants arising out of watching defendants purportedly
assault Brooks, or claims for violations of her First and
Second Amendment rights.
The amended complaint will completely replace, not
supplement, the existing complaint. Therefore, plaintiff
must include in the amended complaint all information
necessary for these claims, including all relevant allegations
from her original complaint.
CONCLUSION
The motion to dismiss is GRANTED.
All of plaintiff's claims are dismissed.
However, plaintiff is granted leave, should she wish to do
so, to file an amended complaint, in accordance with the
instructions above, utilizing the amended complaint form
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attached hereto. By September 9, 2024, plaintiff shall file
her amended complaint. If plaintiff fails to file an amended
complaint by September 9, 2024, the Court will enter
judgment in defendants’ favor and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good
faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. Cf. Coppedge v. United States, 369 U.S.
438, 444–45 (1962).
Attachment A
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Harding v. Gould, Not Reported in Fed. Supp. (2024)
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Attachment B
All Citations
Not Reported in Fed. Supp., 2024 WL 3742688
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Harding v. Gould
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 7:22-CV-06285
Harding v. State of New York et al
— S.D.N.Y. July 24, 2022 Docket
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Harding v. Gould
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History (2)
Direct History (1)
1. Harding v. Gould
2024 WL 3742688 , S.D.N.Y. , Aug. 09, 2024
Related References (1)
2. Harding v. New York
2022 WL 3156414 , S.D.N.Y. , Aug. 08, 2022
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Harding v. Gould
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Scism v. City of Schenectady, Not Reported in Fed. Supp. (2021)
2021 WL 4458819
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2021 WL 4458819
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Chrystal SCISM, individually and as administratrix
of the Estate of Joshua Scism, Plaintiff,
v.
CITY OF SCHENECTADY, Detective Brett
Ferris, Detective Ryan Kent, Defendants.
1:18-CV-672 (TWD)
|
Signed 09/29/2021
Attorneys and Law Firms
OF COUNSEL: TREVOR W. HANNIGAN, ESQ., TREVOR
W. HANNIGAN, PLLC., Counsel for Plaintiff, 90 State
Street, Suite 1400, Albany, New York 12207.
OF COUNSEL: KENNETH B. FROMSON, ESQ.,
RONALD ROSENKRANZ, ESQ., FINKELSTEIN &
PARTNERS, LLP., Counsel for Plaintiff, 1279 Route 300,
Newburgh, New York 12550.
OF COUNSEL: LAWRENCE D. LISSAUER, ESQ.,
MARSHALL P. RICHER, ESQ., FINE, OLIN &
ANDERMAN, LLP, Counsel for Plaintiff, 1279 Route 300,
P.O. Box 1111, Newburgh, New York 12550.
OF COUNSEL: GREGG T. JOHNSON, ESQ., COREY A.
RUGGIERO, ESQ., JOHNSON LAWS, LLC, Counsel for
Defendants, 646 Plank Road, Suite 205, Clifton Park, New
York 12065.
MEMORANDUM DECISION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 On June 13, 2016, Joshua Scism (“Scism”) was shot
and killed during an interaction with Schenectady Police
Department (“SPD”) detectives Brett Ferris (“Ferris”) and
Ryan Kent (“Kent”). Scism's surviving spouse, Chrystal
Scism (“Plaintiff”), brought this action against Ferris,
Kent, and the City of Schenectady (“City”) (collectively,
“Defendants”) alleging that each officer's conduct violated
the United States Constitution. 1 Currently before the Court
is Defendants’ motion for summary judgment. (Dkt. No.
95.) As part of her response to Defendants’ motion, Plaintiff
moved to strike certain portions of Defendants’ statement
of material facts. (Dkt. No. 102.) Thereafter, Defendants
moved to strike portions of Plaintiff's attorney affidavit and
to preclude testimony from Plaintiff's proposed expert. (Dkt.
No. 118.) Finally, the parties have moved for a Court order to
seal certain documents. (Dkt. Nos. 91, 107.)
1 As Defendants point out, Plaintiff stipulated to the
dismissal of all her pleaded state law claims—
including her wrongful death claim. (Dkt. No. 19.)
Therefore, the only remaining claims in this action
are her 42 U.S.C. § 1983 claims against Kent,
Ferris, and the City.
After carefully considering the record, the Court: (1) grants
Defendants’ motion for summary judgment (Dkt. No. 95)
with respect to Plaintiff's claim against the City and against
Kent on qualified immunity grounds and denies the motion
(id.) with respect to Plaintiff's claim against Ferris; (2) denies
Plaintiff's motion to strike (Dkt. No. 102) as moot; (3) denies
Defendants’ motion to strike (Dkt. No. 118) as moot; (4)
denies Defendants’ motion to seal (Dkt. No. 91) with respect
to the audio/visual files but grants it with respect to personal
information related to the confidential informant; and (5)
denies Plaintiff's motion to seal (Dkt. No. 107) except as it
relates to personal information of the police officers or the
confidential informant.
I. BACKGROUND 2
2 The facts are drawn from Defendants’ statement
of material facts, (Dkt. No. 95-35), Plaintiff's
responses thereto (Dkt. No. 102-23), and the
attached affidavits, declarations, exhibits, and
depositions. The facts are taken in the light most
favorable to Plaintiff.
On June 13, 2016, at approximately 5:14 p.m., Scism
approached a van parked in front of his residence. (Dkt. No.
95-35 at ¶ 36.) In that van, Ferris sat in the driver seat, Kent
in the front passenger seat, Detective Pardi (“Pardi”) sat in
the middle seat, and a confidential informant (“CI”) sat in the
rear. (Dkt. No. 95-27 at ¶ 15.) The individuals in the van were
parked in that location to prepare the CI for an undercover
drug buy. Id. Scism approached the driver side window and
said something to the effect that he did not want the occupants
in the van to sell drugs on this street because there were
kids around. (Dkt. No. 102-23 at ¶ 37, (Plaintiff's response to
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Defendants’ statement of material facts describing what the
audio recorded).) Ferris responded to Scism and said, “alright
bro, alright.” Id. at ¶ 38. After this interaction, Scism started
to walk away from the van in the direction of the opposite side
of the street. (Dkt. No. 95-35 at ¶ 39.)
*2 As he was walking away, Ferris noticed a handgun
tucked in Scism's back waistband. Id. Ferris stated “He's got
a heater,” in reference to Scism's gun. Id. at ¶ 41. Ferris and
Kent then exited the vehicle. Id. at ¶ 42. Kent testified that
he pulled his badge from under his shirt, unholstered his gun,
and started moving around the front of the van near the car
in front. (Dkt. No. 95-32 at ¶ 21.) Ferris testified that he
lifted up his shirt to expose his badge and remove his gun
from its holster and as soon as he left the car he “drew [his]
firearm” on Scism. (Dkt. No. 95-27 at ¶ 23.) In an audio/video
recording of the incident, each officer individually yelled to
Scism to “get on the [fucking] ground.” (Dkt. No. 95-2 (the
audio/visual recording of the interaction, currently filed under
seal).) Within seconds, the audio recorded the sound of Ferris
firing six shots at Scism, one of which hit him in the back of
his head and caused his death. Id.
The above stated facts are undisputed with video/audio
evidence or uncontradicted deposition testimony. However,
there is contradictory evidence regarding Scism's final acts.
To that end, Kent testified that he saw Scism start to make
a move towards Ferris with his gun in his hand. (Dkt. No.
95-32 at ¶ 25.) Ferris, likewise, testified that he saw Scism
stop running, grab his handgun with his right hand, pull it
out of his waistband, and begin to turn towards him. (Dkt.
No. 95-27 at ¶ 27.) 3 The CI, on the other hand, testified that
he did not see Scism turn or make any movement towards
Ferris or Kent before he was shot. (Dkt. No. 102-7 at 11-14,
47, (the CI Deposition transcript, currently filed under seal).)
Furthermore, the medical evidence demonstrates Scism was
struck in the back of his head and the medical examiner
testified that it would be “extremely unlikely” that it would
have hit the back of his head if he had been facing Ferris
shortly before he was shot. (Dkt. No. 102-14 (deposition
excerpt from Zhongxue Hua, M.D., Ph.D.); Dkt. No. 95-13
(the autopsy report noting the entrance site is “along the right
posterior parietal scalp”).)
3 For his part, Pardi explained in a declaration that
he was in the process of exiting the van when the
shooting took place and did not see Scism or Ferris
the moments before the shooting. (Dkt. No. 95-31.)
II. DISCUSSION
A. Motions to Seal
Both parties have filed motions to seal certain exhibits
attached to their respective filings. (Dkt. Nos. 91, 107.)
To that end, Defendants seek to seal three audio/visual
files (the “AV files”) 4 from June 13, 2016, that recorded
the interaction between Kent, Ferris, Pardi, the CI, and
Scism. (Dkt. No. 91.) Defendants also seek to seal an
Affidavit from the CI and certain excerpts from the CI's
deposition. Id. For her part, Plaintiff seeks to seal the
entire deposition transcripts of the CI, Ferris, Kent, Pardi,
Assistant Police Chief Seber, Sergeant Detective Savoia,
and Lieutenant Sanders, along with Supporting Deposition
Statements from Kent, Ferris, and Detective Savoia, each
post-incident investigation statement from June 13, 2016, and
SPD training records. (Dkt. No. 107.) For the reasons stated
below, with some limited exceptions, both parties’ motions
are denied.
4 The three files include a full-unedited copy of the
audio/visual recording, an enhanced version, and a
copy with reduced speed.
There is a general presumption in favor of public access to
judicial documents. Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110, 119 (2d Cir. 2006). In Lugosch, the Second
Circuit described a three-step inquiry to be used by district
courts prior to permitting judicial documents to be withheld
from public view. The first step is to determine whether the
document in question is, in fact, a judicial document. Id.
“[T]he mere filing of a paper or document with the court is
insufficient to render that paper a judicial document subject to
the right of public access.... In order to be designated a judicial
document, the item filed must be relevant to the performance
of the judicial function and useful in the judicial process.”
Id. (citations and internal quotation marks omitted). However,
“documents submitted to a court for its consideration in a
summary judgment motion are—as a matter of law—judicial
documents to which a strong presumption of access attaches.”
Id. at 121.
*3 After the Court has determined the document in question
is a “judicial document,” the second step involves considering
“the role of the material at issue in the exercise of Article
III judicial power and the resultant value of such information
to those monitoring the federal courts. Generally, the
information will fall somewhere on a continuum from matters
that directly affect an adjudication to matters that come within
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a court's purview solely to insure their irrelevance.” Id. at
119 (citations and internal quotation marks omitted). Finally,
the Court must “balance competing considerations,” such as
the impairment of law enforcement methods or information
and the privacy interests of litigants. Id. at 120. The party
seeking to file a document under seal bears the burden of
demonstrating that sealing is warranted. DiRussa v. Dean
Witter Reynolds, Inc., 121 F.3d 818, 826 (2d Cir. 1997).
As noted above, Plaintiff and Defendants seek a sealing
order as to four main categories of documents: (1) deposition
transcripts and statements of SPD police officers (Plaintiff's
Exhibits 4-9, 11-14; Dkt. Nos. 102-8 through 102-13, 102-15
through 102-18); (2) the deposition transcript and statement
from the CI (Defendants’ Exhibit D; Dkt. No. 95-7; Plaintiff's
Exhibit 3; Dkt. No. 102-7); (3) AV files related to the
incident (Defendants’ Exhibits A-1 through A-3; Dkt. Nos.
95-2 through 95-4); and (4) SPD training records (Plaintiff's
Exhibit 16; Dkt. No. 102-20). The Court will consider each
in turn.
With respect to the deposition transcripts and statements of
SPD officers, Plaintiff argues the documents were produced
pursuant to a Protective Order agreed to by the parties
and should therefore remain confidential. (Dkt. No. 107.)
However, “that a document was produced in discovery
pursuant to a protective order has no bearing on the
presumption of access that attaches when it becomes a judicial
document.” Collado v. City of New York, 193 F. Supp. 3d
286, 289–90 (S.D.N.Y. 2016) (citing Raffaele v. City of New
York, No. 13–CV–4607, 2014 WL 2573464, at *2 (E.D.N.Y.
June 9, 2014)). Plainly, under the standards set forth above,
those documents are judicial documents subject to a strong
presumption of public access. The documents comprise a
significant portion of the factual record before the Court
and they pertain to matters that “directly affect” the Court's
adjudication of Defendants’ motion for summary judgment.
Indeed, it would be difficult for a member of the public to
get a full picture of the Court's reasoning without access
to those documents. Therefore, the Court denies Plaintiff's
motion to seal to the extent that it seeks to file Plaintiff's
Exhibits 4-9, 11-14; Dkt. Nos. 102-8 through 102-13, 102-15
through 102-18, under seal. The Court will, however, permit
Plaintiff to redact any irrelevant personal information from
these exhibits such as dates of birth, addresses or related
information. 5
5 Plaintiff could largely avoid the need for redactions
with respect to the deposition transcripts as she
does not need to file the entire transcript with the
Court but only the relevant excerpts that she uses
to support her arguments.
Similarly, Plaintiff and Defendants only suggest the CI's
deposition transcript and his statement should be sealed
pursuant to the protective order. However, as noted above,
the protective orders have no bearing on whether the Court
should seal these documents when they become a part of
the record at summary judgment. Nevertheless, the Court is
mindful of the safety interests regarding the identity of the
CI and concludes that the parties may redact any of the CI's
personal information in his affidavit and in his deposition
transcript that could lead to his identification.
With respect to AV files, Defendants argue these documents
are only “arguably” judicial and do not implicate the Court's
exercise of its Article III judicial power. (Defendants’ October
27, 2020, Letter, not filed on CM/ECF). The Court is
befuddled by Defendants’ position as the law in the Second
Circuit is quite clear that “documents submitted to a court
for its consideration in a summary judgment motion are—
as a matter of law—judicial documents to which a strong
presumption of access attaches, under both the common law
and the First Amendment.” Lugosch, 435 F.3d at 121. The
Court recognizes the important safety considerations related
to protecting the CI's personal information and, as stated
above, will permit redactions to protect his identity. However,
there is no such concern with respect to the AV files because
they do not identify the CI or show his face. Accordingly, the
Court finds the AV files cannot be filed under seal and denies
Defendants’ motion in this respect.
*4 Finally, Plaintiff offers no justification to file the training
records under seal beyond its putative confidentiality in the
protective order. However, as noted above, the existence of a
protective order has no bearing on whether a Court may order
a document sealed from public access under Lugosch.
In sum, the Court denies Plaintiff's and Defendants’ motions
to seal except as they relate to the name and personal
information of the CI and to personal information related to
each police officer. The parties are directed to—within ten
(10) days of this Order—file complete versions of the relevant
documents on CM/ECF with redactions as provided above.
B. Motions to Strike
At the time she filed her opposition to Defendants’ motion
for summary judgment, Plaintiff filed a motion to strike
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certain portions of Defendants’ Statement of Material Facts.
(Dkt. No. 102-2.) To that end, Plaintiff asserts that many
of the asserted facts in Defendants’ Statement of Material
facts are irrelevant to the motion for summary judgment
and should be disregarded. Id. at 2. Specifically, Plaintiff
asserts paragraphs 1-10, 12, 14-31, 33, 52, 57, 59, and 61-66
“pertain to information Defendants gathered after-the-fact of
Defendant Ferris's use of deadly force on Mr. Scism.” Id.
at 3. Here, the Court generally agrees with Plaintiff that
the cited facts alleged in Defendants’ Statement of Material
Facts are irrelevant to the pertinent issues to be considered
on this motion, namely whether Defendants’ use of force
against Scism on June 13, 2016, was objectively reasonable.
Nonetheless, because the Court can rule on the motion
without reference to these so-called “material” facts, it denies
Plaintiff's motion as moot.
Defendants, for their part, seek to preclude Plaintiff's expert,
Dr. Shane, from offering testimony in response to their motion
for summary judgment. (Dkt. No. 118.) Defendants also
seek to strike Plaintiff's attorney's affidavit filed with her
opposition to Defendants’ motion for summary judgment. Id.
With respect to the attorney affidavit, Defendants argue it
contains legal argument and, therefore, does not comply with
Local Rule 7.1(b)(2). 6 Id. at 30-32. Here, the Court agrees
that many of the statements within the affidavit include legal
argument and are therefore inappropriately included in an
attorney affidavit. However, the Court declines to strike the
attorney affidavit for the same reason it declines to strike
portions of Defendants’ statement of material facts. Namely,
the Court need not refer to, or consider, Plaintiff's attorney
affidavit to consider the motion for summary judgment.
6 That rule provides that, “[a]n affidavit must not
contain legal arguments but must contain factual
and procedural background that is relevant to the
motion the affidavit supports.” L.R. 7.1(b)(2).
With respect to Dr. Shane's report, Defendants contend
Plaintiff improperly uses Dr. Shane to present facts regarding
the June 13, 2016, incident and opine about the ultimate issue
of whether Defendants used excessive force. (Dkt. No. 118-2
at 9-12.) Defendants also assert Dr. Shane is not qualified
to offer an opinion regarding the use of deadly force. Id.
at 13-15. Furthermore, they argue his proffered testimony is
unreliable and would not aid the trier of fact. Id. at 15-25.
Additionally, they allege some of Dr. Shane's opinions must
be stricken as he lacks personal knowledge. Id. at 25-26.
Finally, Defendants contend Dr. Shane's opinions should be
disregarded as the danger of unfair prejudice outweighs their
probative value and they are irrelevant in any event. Id. at
26-29.
*5 Here, after carefully considering Defendants’ arguments,
the Court finds no reason at this stage of the litigation to make
a ruling on Dr. Shane's report or the use of his opinions as
evidence at trial. As discussed in more detail below, the facts
the Court finds that create a genuine dispute are supported by
other admissible evidence. Therefore, Defendants’ motion to
strike Dr. Shane's report is denied as moot and with leave to
renew before trial.
C. Motion for Summary Judgment
i. The Pending Motions
Defendants move for summary judgment with respect to all
of Plaintiff's claims. (Dkt. No. 95.) First, Defendants argue
Kent did not violate Scism's constitutional rights because
he indisputably did not fire his weapon. Defendants also
contend the undisputed facts reveal Ferris's decision to fire
his weapon at Scism was objectively reasonable. In any event,
Defendants argue they are entitled to qualified immunity.
Finally, Defendants contend Plaintiff has failed to adduce
sufficient evidence to raise a question of fact regarding the
City's putative liability.
ii. Standard of Review
Under Federal Rule of Civil Procedure 56(a), summary
judgment may be granted only if all the submissions taken
together “show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). The moving party bears the initial
burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material”
if it “might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of
New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
The movant may meet this burden by showing that the
nonmoving party has “fail[ed] to make a showing sufficient to
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establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
If the moving party meets this burden, the nonmoving party
must “set forth specific facts showing a genuine issue for
trial.” Anderson, 477 U.S. at 248, 250; see also Celotex,
477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d
Cir. 2009). “When ruling on a summary judgment motion,
the district court must construe the facts in the light most
favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d
775, 780 (2d Cir. 2003).
iii. Plaintiff's Fourth Amendment Claims 7
7 The parties appear to assume that the Fourth
Amendment—as opposed to the Fourteenth
Amendment—applies in this case as they concede
that Scism was seized as soon as two detectives
exited their vehicle with guns drawn and yelled at
him to get on the ground.
The core issue is whether Ferris's and Kent's engagement with
Scism was an unconstitutional exercise of force. As an initial
matter, Defendants argue Plaintiff's “excessive force claim is
premised upon the discrete act of firing upon [Scism] causing
him to suffer a single fatal injury.” (Dkt. No. 95-1 at 16.)
In other words, Defendants contend the only relevant inquiry
is whether Ferris's split-second decision to fire his weapon
at Scism was justified and the Court ought to disregard the
moments leading up to the shooting. In support of their
position, Defendants cite to Plaintiff's amended complaint and
suggest the only unconstitutional act alleged therein was the
shots fired at Scism. Id. (citing Dkt. No. 6 at 12-13, 21, 23,
28, 33).
*6 The record does not support Defendants’ myopic reading
of Plaintiff's amended complaint. Rather, the amended
complaint describes Scism's interaction with Ferris and
Kent and discusses the lead-up to the eventual shooting.
Specifically, the amended complaint alleges Scism “was not
a suspect in any crime, he had not engaged in criminal or
suspicious activity, he was not under arrest, and he was not
being detained.” (Dkt. No. 6 at ¶ 28.) Undoubtedly, Ferris's
split-second determination to fire upon Scism is one of the
claims. However, the Court construes Plaintiff's amended
complaint as asserting a separate claim that Defendants’
actions leading up to the shooting—including getting out of
an unmarked van with guns trained on Scism and yelling at
him to get on the ground—violated his constitutional rights.
See Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir. 1994)
(“[W]e carve up the incident into segments and judge each
on its own terms to see if the officer was reasonable at each
stage.”), cert. denied, 513 U.S. 820 (1994). 8
8 Defendants’ misunderstanding of the claims in
front of the Court animates one of their arguments
for summary judgment. Specifically, Defendants
assert the undisputed facts demonstrate Kent never
fired his weapon, so he was not involved in the use
of excessive force. However, the Court construes
the amended complaint as asserting Kent's decision
to draw his gun upon Scism and yell at him to get
on the ground violated his constitutional rights.
With this background understanding, the Court must consider
whether the undisputed facts, taken in light most favorable
to Plaintiff, could support a jury's verdict that Defendants
violated Scism's constitutional rights when: (1) they exited
the parked van with their weapons drawn and commanded
Scism to get on the ground without verbally announcing that
they were police; and/or (2) Ferris fired his weapon at Scism
ultimately causing his death. 9
9 The Court finds, contrary to Defendants’ position,
that Plaintiff does not invoke the so-called
“provocation rule.” Under that rule, “an officer's
otherwise reasonable (and lawful) defensive use
of force is unreasonable as a matter of law, if
(1) the officer intentionally or recklessly provoked
a violent response, and (2) that provocation is
an independent constitutional violation.” Cnty. of
Los Angeles v. Mendez, 137 S. Ct. 1539, 1545
(2017). In Mendez, two police officers entered a
shack in the rear of a residence without a search
warrant and without knocking or announcing their
presence. Id. at 1544–45. One of the plaintiffs,
who mistakenly believed the noise was made by
a fellow resident, reached for a BB gun to help
lift himself out of bed. The officers, seeing the BB
gun, mistook it for a rifle, and fired several rounds,
injuring the plaintiffs. The district court concluded,
and the Ninth Circuit affirmed, that, although the
officers’ shooting was otherwise reasonable under
the applicable standard for excessive force, the
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officers had engaged in excessive force under
the provocation rule due to the prior warrantless
entry. The Supreme Court reversed rejecting the
provocation rule. Specifically, the Court reasoned
that the provocation rule “mistakenly conflates
distinct Fourth Amendment claims.” Id. at 1547.
Here, therefore, rather than conflating two distinct
Fourth Amendment claims, the Court will treat
them separately in evaluating whether summary
judgment is appropriate.
1. Controlling Law
“The Fourth Amendment prohibits the use of excessive force
in making an arrest, and whether the force used is excessive
is to be analyzed under that Amendment's ‘reasonableness’
standard.” Brown v. City of New York, 798 F.3d 94, 100
(2d Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386,
395 (1989)). A police officer's use of force is “excessive”
in violation of the Fourth Amendment if it is objectively
unreasonable in light of the facts and circumstances known
to the officer. Lennon v. Miller, 66 F.3d 416, 425–26 (2d Cir.
1995). To determine whether the amount of force applied to
a plaintiff was unreasonable, courts consider “the severity of
the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether [the
suspect] is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396.
*7 “[E]ven if defendants’ actions were unreasonable under
current law, qualified immunity protects officers from the
sometimes-hazy border between excessive and acceptable
force.” Kerman v. City of New York, 261 F.3d 229, 239 (2d
Cir. 2001) (internal quotation marks, ellipsis, and citation
omitted). “If the officer's mistake as to what the law requires is
reasonable ... the officer is entitled to the immunity defense.”
Id. (citation omitted). However, “[g]iven 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 conclude that the officers’
conduct was objectively unreasonable.” Amnesty Am. v. Town
of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004); see also
Kayo v. Mertz, No. 19-Civ., 2021 WL 1226869, at *14-15
(S.D.N.Y. Mar. 31, 2021). Indeed, the Second Circuit has
consistently held that summary judgment is inappropriate if
“determination of [a constitutional violation] ‘turns on which
of two conflicting stories best captures what happened on
the street.’ ” Cowan ex rel. Estate of Cooper v. Breen, 352
F.3d 756, 763 (2d Cir. 2003) (quoting Saucier v. Katz, 533
U.S. 194, 216 (2001)); see also Thomas v. Roach, 165 F.3d
137, 144 (2d Cir. 1999) (“Because the district court could
not determine whether the officers reasonably believed that
their force was not excessive when several material facts were
still in dispute, summary judgment on the basis of qualified
immunity was precluded.”); Hemphill v. Schott, 141 F.3d
412, 416–18 (2d Cir. 1998) (holding that the district court
erred by entering summary judgment on qualified immunity
when there were disputes remaining about “material factual
issues”).
2. Defendants’ initial interaction with Plaintiff
Here, the facts establish Kent and Ferris exited an unmarked
vehicle with their guns drawn and yelled at Scism to
get on the ground. Undoubtedly, Garner establishes that
“apprehension by the use of deadly force is a seizure subject to
the reasonableness requirement of the Fourth Amendment.”
Tennessee v. Garner, 471 U.S. 1, 7 (1985). Here, when
considering the Graham factors, the Court finds—viewing
the evidence in light most favorable to Plaintiff—it weighs
in favor of finding that their conduct could have been
unreasonable. To that end, Scism was not a suspect of any
crime when Kent and Ferris engaged him with their guns
drawn. Indeed, by his own account, Ferris did not believe
Scism was involved in illegal activity when he exited the
car. (Dkt. No. 95-27 at ¶ 24 (Ferris stating he “did not have
time to analyze which crimes [Scism] had engaged in”);
Ferris Deposition at 77-79 (stating he “menaced everybody in
the vehicle” and maybe committed an “attempted assault.”).)
Indisputably, it is not per se illegal in New York to carry
a concealed firearm. Defendants do not claim they knew
Scism's firearm was unlicensed or that he was a felon and
prohibited from carrying a gun. Thus, at the moment they saw
the gun, there were no facts tending to show that Scism had
committed any crime, let alone a serious one.
Furthermore, there is at best contradictory evidence that
Scism was a threat at the time they first engaged him. To
wit, the CI testified that Scism merely told Ferris that they
should not be selling drugs in this area. (Dkt. No. 102-7, CI
Deposition at 25.) Furthermore, the AV recording leaves room
for a juror to interpret the interaction. Specifically, it is at
least arguable, as Plaintiff notes, that Scism said “If you're
meeting somebody don't be selling no drugs on my block, I've
got kids.” (Dkt. No. 102-23 at ¶ 37.) Indeed, Kent and Ferris
each testified that it was their opinions that Scism thought
they were dealing drugs. (Dkt. No. 102-9, Kent Deposition
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at 46; Dkt. No. 102-8, Ferris Deposition at 28.) The parties
offer starkly different interpretations of how to consider this
interaction, 10 but the Court finds it is the jury's role to review
the evidence and determine whether Scism approached the
vehicle in a threatening manner or whether he approached the
vehicle as a concerned citizen.
10 Specifically, Ferris testified that Scism was
“angry,” “tense,” and “agitated” when he
approached the car. (Dkt. No. 102-8, Ferris
Deposition at 29.)
The last factor, whether Scism was actively resisting arrest
or fleeing arrest, weighs in Scism's favor. It is not seriously
contested that Scism did not know Ferris and Kent were police
officers when he spoke with them at the car. As stated above,
Ferris testified he thought Scism believed he was there to sell
drugs. (Dkt. No. 102-8, Ferris Deposition at 28.) Ferris and
Kent each testified that their badges were covered until they
exited the vehicle, and the AV recording demonstrates they
did not announce that they were police when they yelled at
Scism to get on the ground. (Dkt. No. 95-2.) Therefore, a jury
could easily conclude that Scism's retreat from the car was not
an attempt to flee an arrest but was rather him simply walking
away.
*8 In sum, the Court finds a reasonable juror could find
Kent's and Ferris's decision to leave the van and engage Scism
with their guns drawn was an unreasonable use of force.
However, that is not the end of the inquiry as the Court
finds Kent and Ferris are entitled to qualified immunity for
their actions leading up to the shooting as most cases within
the Second Circuit hold that merely drawing weapons when
effectuating an arrest does not constitute excessive force as a
matter of law. See Cabral v. City of New York, No. 12–CV–
4659, 2014 WL 4636433, at *11 (S.D.N.Y. Sept. 17, 2014)
(“[The defendant's] approach with his gun drawn does not
constitute excessive force as a matter of law.”); Mittelman v.
Cnty. of Rockland, No. 07-CV-6382, 2013 WL 1248623, at
*13 (S.D.N.Y. Mar. 26, 2013) (“Likewise insufficient is [the]
[p]laintiff's assertion that the officers pointed guns at him. A
threat of force does not constitute excessive force.”); Askins
v. City of New York, No. 09–CV–10315, 2011 WL 1334838,
at *3 (S.D.N.Y. Mar. 25, 2011) (“While the Second Circuit
has noted that circuit law could very well support a claim that
a gunpoint death threat issued to a restrained and unresisting
arrestee represents excessive force, [the] plaintiff's assertion
that a gun was pointed at his head cannot be the basis
of a claim for excessive force.” (alterations and internal
quotation marks omitted)); Aderonmu v. Heavey, No. 00–
CV–9232, 2001 WL 77099, at *3 (S.D.N.Y. Jan. 26, 2001)
(dismissing excessive force claim based on an interrogation
at gunpoint because the plaintiff “fail[ed] to allege that any
physical force was used against him during his interrogation,
or that any injuries resulted from [the] defendants’ allegedly
unconstitutional conduct”); Shaheed v. City of New York, 287
F. Supp. 3d 438, 454 (S.D.N.Y. 2018), aff'd sub nom. Shaheed
v. Kroski, 833 F. App'x 868 (2d Cir. 2020) (holding that the
allegation that the officers pointed their rifles at the plaintiffs
did not constitute excessive force); but see DiSorbo v. Hoy,
343 F.3d 172, 184 (2d Cir. 2003) (stating that a jury could
reasonably find and award damages for psychological injuries
in an excessive force case, though finding the award excessive
in that case); Kerman, 261 F.3d at 232, 239–40 (finding
that officers’ name-calling and threat to “blow [arrestee's]
brains out” amounted to “verbal abuse [and] humiliation”
which “might well be objectively unreasonable and therefore
excessive”).
Therefore, the Court cannot say as a matter of law that
that Kent and Ferris's actions—even viewed in light most
favorable to Plaintiff—violated clearly established law before
Ferris fired his weapon. Accordingly, Plaintiff's excessive
force claim based on Ferris and Kent drawing their guns at
Scism is dismissed.
3. When Ferris Fired his Weapon at Scism 11
11 Though the Court finds Plaintiff did not plead
a failure to intervene claim in her amended
complaint, even if she had, it would be dismissed
against Kent. “It is widely recognized that all
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); see also
Snead v. City of New York, 463 F. Supp. 3d 386, 400
(S.D.N.Y. 2020) (“Law enforcement officers have
an affirmative duty to intervene to prevent fellow
officers from infringing on citizens’ constitutional
rights.” (citation omitted)). “Liability may attach
only when (1) the officer had a realistic opportunity
to intervene and prevent the harm; (2) a reasonable
person in the officer's position would know that the
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victim's constitutional rights were being violated;
and (3) the officer does not take reasonable steps to
intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp.
2d 501, 512 (S.D.N.Y. 2008) (citing O'Neill v.
Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988)), aff'd
sub nom. Jean-Laurent v. Wilkerson, 461 F. App'x
18 (2d Cir. 2012). Here, no reasonable juror could
conclude Kent had a “realistic opportunity” to
intervene before Ferris shot at Scism because there
simply was not enough time between when they
exited the vehicle and Ferris shot at Scism. (Dkt.
No. 95-2.) Therefore, even if a failure to intervene
claim had been pled, it would be dismissed.
*9 On the initial inquiry of whether a constitutional
violation occurred, an officer's decision to use deadly force is
objectively reasonable only if “the officer has probable cause
to believe that the suspect poses a significant threat of death
or serious physical injury to the officer or others.” O'Bert ex
rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003);
see Garner, 471 U.S. at 11 (“Where the suspect poses no
immediate threat to the officer and no threat to others, the
harm resulting from failing to apprehend him does not justify
the use of deadly force to do so.”). The reasonableness of the
officer's decision “depends only upon the officer's knowledge
of circumstances immediately prior to and at the moment
that he made the split-second decision to employ deadly
force.” Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996). In this
case, resolution of whether a constitutional violation occurred
centers on whether at the moment Ferris decided to fire at
Scism, he reasonably believed that Scism put his life or others
in danger. Ferris argues the undisputed facts demonstrate he
reasonably believed that his life was in danger; therefore, as a
matter of law, no constitutional violation occurred. (Dkt. No.
95-1 at 20-25.) However, to accept Ferris's argument that, as
a matter of law, his actions were objectively reasonable, one
would have to accept, as a matter of fact, that Scism posed an
immediate threat and was turning towards him with his gun
in his hand about to fire at Ferris. Such facts are in dispute.
Specifically, though Ferris and Kent both testified they saw
Scism grab his gun and turn towards Ferris before Ferris shot
at him, there is evidence that Scism was still retreating at the
time he was shot. Specifically, Scism was indisputably shot in
the back of his head—demonstrating that he was faced away
from Ferris when he was struck in the back of his head. (Dkt.
No 95-13.) Importantly, Plaintiff's medical expert testified
that it would be “extremely unlikely” that Scism could have
been facing Ferris with his gun drawn at one instance and then
had time to completely turn and be struck in the back of the
head. (Dkt. No. 102-14 at 5.) 12
12 Defendants argue Scism must have turned away
from the gun shots and that is the reason he was
not facing Ferris when he was shot. (Dkt. No. 95-1
at 24.) Though that is one permissible inference
to be drawn from the location of the entry wound,
the Court is required—at this stage—to view the
facts in a light most favorable to Plaintiff and it is
arguable that an entry wound on the rear of Scism's
head indicates he was retreating as Ferris fired at
him.
Furthermore, the CI testified that he never saw Scism stop
or turn towards Ferris before he was shot. (CI Deposition
at 11-14; 57.) Moreover, as discussed above, there is
contradictory evidence in the record regarding the initial
interaction with Scism and whether he was acting in a
threatening manner or if he was simply concerned that Ferris
and Kent were dealing drugs on his street. In sum, though
the jury may ultimately credit Ferris's and Kent's testimony
and find that shooting Scism was objectively reasonable, it
is at least possible, given the other record evidence, that a
jury could find Ferris shot Scism as he was retreating and
that Scism was not posing an immediate threat. Therefore, the
Court finds summary judgment is not appropriate with respect
to Plaintiff's excessive force claim against Ferris.
Relatedly, because there are genuine issues of material fact
regarding the reasonableness of Ferris's use of force, summary
judgment must also be denied on qualified immunity grounds.
See Cowan, 352 F.3d at 764-65 (denying summary judgment
on a qualified immunity claim after determining in the
excessive force analysis that there were genuine issues of
material fact regarding the reasonableness of the officers’
conduct); see also Gjenashaj v. City of New York, No. 19
Civ. 4142, 2020 WL 7342723, at *4 (S.D.N.Y. Dec. 14,
2020) (denying summary judgment on defendants’ qualified
immunity claim because material facts remain in dispute as
to plaintiff's excessive force claim); Bennett v. Falcone, No.
05 Civ. 1358, 2009 WL 816830, at *6 (S.D.N.Y. Mar. 25,
2009) (“For the same reasons Plaintiff's excessive force claim
survives summary judgment, the Court holds Defendants’
qualified immunity claim insufficient.”).
iv. Municipal Liability
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*10 “For the purpose of Section 1983, a municipality is
not vicariously liable for the acts of its employees,” Green
v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)), but
a municipality is liable when “execution of a government's
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury,” Monell, 436 U.S. at 694. “To hold
a municipality liable in such an action, ‘a plaintiff is required
to plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.’ ” Zahra v. Town of Southold,
48 F.3d 674, 685 (2d Cir. 1995) (quoting Batista v. Rodriguez,
702 F.2d 393, 397 (2d Cir. 1983)).
A municipal policy or custom may be established where the
facts show: (1) a formal policy, officially promulgated by the
municipality, Monell, 436 U.S. at 690; (2) action taken by
the official responsible for establishing policy with respect to
a particular issue, Pembaur v. City of Cincinnati, 475 U.S.
469, 483–84 (1986); (3) unlawful practices by subordinate
officials so permanent and widespread as to practically have
the force of law, City of St. Louis v. Praprotnik, 485 U.S.
112, 127–30 (1985); or (4) a failure to train or supervise that
amounts to “deliberate indifference” to the rights of those with
whom the municipality's employees interact, City of Canton v.
Harris, 489 U.S. 378, 388 (1989). “[A] municipal policy may
be inferred from the informal acts or omissions of supervisory
municipal officials.” Zahra, 48 F.3d at 685.
In this case, in response to Defendants’ motion for summary
judgment, Plaintiff asserts that sufficient evidence suggests
the City failed to train its employees to address how to
properly use deadly force. (Dkt. No. 102-24 at 11-17.)
However, as Defendant correctly points out, Plaintiff failed
to allege this theory of liability in her amended complaint.
Indeed, the amended complaint is completely devoid of any
allegations related to the City's training procedure and how
any deficiency therein caused the shooting at issue here.
Rather, Plaintiff generally argued that the City failed to
adequately address or punish misconduct and has therefore
“acquiesced to” misconduct. (Dkt. No. 6 at ¶ 39.) “Generally,
courts will not consider, on a motion for summary judgment,
allegations that were not pled in the complaint and raised
for the first time in opposition to a motion for summary
judgment.” Mahmud v. Kaufmann, 607 F. Supp. 2d 541, 555
(S.D.N.Y.), aff'd, 358 F. App'x 229 (2d Cir. 2009) (citing
Alali v. DeBara, 2008 WL 4700431, *3 n. 6 (S.D.N.Y.
Oct. 24, 2008)); Southwick Clothing LLC v. GFT (USA)
Corp., 2004 WL 2914093, at *6 (S.D.N.Y. Dec. 15, 2004)
(“A complaint cannot be amended merely by raising new
facts and theories in plaintiffs’ opposition papers, and hence
such new allegations and claims should not be considered
in resolving the motion.”). Thus, because Plaintiff has
seemingly abandoned the pleaded theory of Monell liability
she put forward in her amended complaint in favor of a failure
to train theory she never pled, the Court grants Defendants’
motion for summary judgment against the City.
In any event, even were the Court to look past Plaintiff's
failure to properly draft or amend her complaint, it would still
find that she failed to present evidence showing the City is
liable. To that end, Plaintiff's theory of municipal liability in
her opposition papers is that the City's failure to adequately
train their officers regarding the use of deadly force amounted
to deliberate indifference to the rights of those with whom
those officers would interact. (Dkt. No. 102-24 at 11-12.)
To demonstrate that a failure to train constitutes “deliberate
indifference,” a plaintiff must satisfy three elements: (1) that
a policymaker knows to a “moral certainty” that employees
will confront a given situation; (2) that 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; and (3)
that the wrong choice by the employee will frequently cause
the deprivation of a citizen's constitutional rights. Jenkins v.
City of New York, 478 F.3d 76, 94 (2d. Cir. 2007) (internal
quotation marks and citation omitted). “In addition, at the
summary judgment stage, plaintiffs must identify a specific
deficiency in the city's training program and establish that that
deficiency is closely related to the ultimate injury, such that
it actually caused the constitutional deprivation.” Green, 465
F.3d at 81 (internal quotation marks and citation omitted).
*11 Here, Plaintiff failed to identify any evidence
demonstrating “a specific deficiency in the city's training
program,” much less explain how that alleged deficiency “is
‘closely related to the ultimate injury,’ such that it ‘actually
caused’ the constitutional deprivation.” Amnesty Am., 361
F.3d at 129 (quoting City of Canton, 489 U.S. at 391). Rather,
Plaintiff's arguments amount to general and conclusory claims
that the City's training was insufficient. (See e.g., Dkt. No.
102-24 at 14 (alleging Defendants participated in training
“in which ‘review and understand use of deadly force
policy’ was one of eleven topics to be discussed”); id. at
15 (claiming “[t]he respective deposition testimonies of the
SPD witnesses demonstrate that any instruction or training
provided on the use of deadly force policy did not make
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learning the use of deadly force policy a priority, much less a
requirement”).) In sum, Plaintiff has failed to proffer evidence
that would allow a reasonable juror to conclude the City
was deliberately indifferent to Scism's constitutional rights
based on its training program related to the use of deadly
force. Accordingly, the Court grants Defendants’ motion for
summary judgment regarding any claims against the City.
III. CONCLUSION
For the reasons set forth above, the Court grants Defendants’
motion for summary judgment except as it relates to Plaintiff's
claim against Ferris for excessive force. The remaining claim
against Ferris will be scheduled for trial where the jury will
consider whether his conduct was objectively reasonable. The
Court further denies Plaintiff's and Defendants’ motions to
strike certain parts of the record as moot. Finally, the Court
denies Plaintiff's and Defendants’ motions to seal except as
noted herein and orders the parties to file these documents
on the Court's CM/ECF system (with redactions, where
necessary) within ten (10) days from this Order. The Court
will set a trial date in a separate Order.
ACCORDINGLY, it is hereby
ORDERED that Defendants’ motion to seal (Dkt. No. 91) is
DENIED in part and GRANTED in part as discussed herein
and Defendants will have ten (10) days from the date of this
Decision and Order to file complete versions of the relevant
documents (with redactions as necessary) with the Court; and
it is further
ORDERED that Plaintiff's motion to seal (Dkt. No. 107) is
DENIED in part and GRANTED in part as discussed herein
and Plaintiff will have ten (10) days from the date of this
Decision and Order to file complete versions of the relevant
documents (with redactions as necessary) with the Court; and
it is further
ORDERED that Plaintiff's motion to strike (Dkt. No. 102) is
DENIED as moot; and it is further
ORDERED that Defendants’ motion to strike (Dkt. No. 118)
is DENIED as moot; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 95) is DENIED in part and GRANTED in part as
discussed herein.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 4458819
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 126 of 177

Scism v. City of Schenectady
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (21)
Title PDF Court Date Type
1. Reply Brief for Defendant-Appellant
Chrystal SCISM, Individually and as Administratrix of the
Estate of Joshua Scism, Plaintiff-Appellee, v. Detective
Brett FERRIS, Defendant-Appellant, City of Schenectady,
Schenectady Police Department, Detective Ryan Kent,
Defendants.
2022 WL 60529
C.A.2 Jan. 03, 2022 Brief
2. Brief for Plaintiff-Appellee
Chrystal SCISM, Individually and as Administratrix of the
Estate of Joshua Scism, Plaintiff-Appellee, v. Detective
Brett FERRIS, Defendant-Appellant, City of Schenectady,
Schenectady Police Department, Detective Ryan Kent,
Defendants.
2021 WL 6116605
C.A.2 Dec. 23, 2021 Brief
3. Brief and Special Appendix for Defendant-
Appellant
Chrystal SCISM, Individually and as Administratrix of the
Estate of Joshua Scism, Plaintiff-Appellee, v. Detective
Brett FERRIS, Defendant-Appellant, City of Schenectady,
Schenectady Police Department, Detective Ryan Kent,
Defendants.
2021 WL 5711584
C.A.2 Nov. 29, 2021 Brief
4. Brief in Opposition
Brett FERRIS, Petitioner, v. Chrystal SCISM, Individually
and as Administratrix of the Estate of Joshua Scism,
Respondent.
2022 WL 2068037
U.S. June 06, 2022 Petition
5. Motion for Leave to File and Brief of Amicus Curiae
National Police Association in Support of Petitioner
Brett FERRIS, Petitioner, v. Chrystal SCISM, Individually
and As Administratrix of the Estate of Joshua Scism,
Respondent.
2022 WL 2078143
U.S. June 06, 2022 Petition
6. Petition for a Writ of Certiorari
Detective Brett FERRIS, Petitioner, v. Chrystal SCISM,
Individually and as Administratrix of the Estate of Joshua
Scism, Respondent.
2022 WL 1432077
U.S. Apr. 29, 2022 Petition
7. Jury Trial Demanded
Chrystal SCISM, Individually and as Administratrix
of the Estate of Joshua Scism, Plaintiff, v. CITY OF
SCHENECTADY, Schenectady Police Department,
Detective Brett Ferris and Detective Ryan Kent,
Defendants.
2018 WL 11542608
— N.D.N.Y. June 07, 2018 Pleading
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 127 of 177

Scism v. City of Schenectady
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
8. Defendant's Motion Inlimine - 2
Crystal SCISM, Individually and as Administratrix of
the Estate of Joshua Scism, Plaintiff, v. Detective Bret
FERRIS, Defendant.
2022 WL 4012366
— N.D.N.Y. July 05, 2022 Motion
9. Defendant's Motion Inlimine - 1
Crystal SCISM, Individually and as Administratrix of
the Estate of Joshua Scism, Plaintiff, v. Detective Bret
FERRIS, Defendant.
2022 WL 4012367
— N.D.N.Y. July 05, 2022 Motion
10. Plaintiff's Memorandum of Law in Support of
Motions in Limine
Chrystal SCISM, Individually and as Administratrix of
the Estate of Joshua Scism, Civil Case No.: Plaintiff, v.
Detective Brett FERRIS, Defendant.
2022 WL 4012369
— N.D.N.Y. July 05, 2022 Motion
11. Excerpted pages from the deposition of
Defendants' expert, Michael Ranalli
Chrystal SCISM, v. CITY OF SCHENECTADY, et al.
2020 WL 13540157
— N.D.N.Y. Nov. 30, 2020 Expert
Materials
12. Declaration of Jon Shane
Crystal SCISM, Individually and as Administratrix
of the Estate of Joshua Scism, Plaintiff, v. CITY OF
SCHENECTADY, Schenectady Police Department,
Detective Brett Ferris and Detective Ryan Kent,
Defendants.
2020 WL 13540156
— N.D.N.Y. Nov. 26, 2020 Expert
Materials
13. (Partial Testimony of Dr. Jon M. Shane, Ph.D.)
Chrystal SCISM, Individually and as Administratrix
of the Estate of Joshua Scism, Plaintiff, v. CITY OF
SCHENECTADY, Schenectady Police Department,
Detective Brett Ferris and Detective Ryan Kent,
Defendants.
2020 WL 13540158
— N.D.N.Y. Jan. 09, 2020 Expert
Materials
14. (Deposition of Dr. Zhongxue Hua, M.D., Ph.D.)
Crystal SCISM, Individually and as Administratrix
of the Estate of Joshua Scism, Plaintiff, v. CITY OF
SCHENECTADY, Schenectady Police Department,
Detective Brett Ferris and Detective Ryan Kent,
Defendants.
2019 WL 13213165
— N.D.N.Y. Dec. 23, 2019 Expert
Materials
15. Supplemental Expert Opinion Regarding Use
of Force By Schenectady (NY) Police Officers Brett
Ferris and Ryan Kent of the Schenectady, New York
Police Department of Dr. Jon M. Shane, Ph.D.
Chrystal SCISM, v. CITY OF SCHENECTADY, et al.
2019 WL 13213160
— N.D.N.Y. Dec. 11, 2019 Expert
Materials
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 128 of 177

Scism v. City of Schenectady
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
16. Analysis of the Economic Losses to the
Beneficiaries of Joshua Scism of Charles S. Amodio,
CPA, CFF, MAFF, MBA
Chrystal SCISM, v. CITY OF SCHENECTADY, et al.
2019 WL 13213163
— N.D.N.Y. Nov. 27, 2019 Expert
Materials
17. (Report or Affidavit of Michael D. Ranalli)
Chrystal SCISM, v. CITY OF SCHENECTADY, et al.
2019 WL 13213164
— N.D.N.Y. Nov. 25, 2019 Expert
Materials
18. Expert Opinion Regarding Use of Force By
Schenectady (NY) Police Officers Brett Ferrisand Ryan
Kent of the Schenectady, New York Police Department
of Dr. Jon M. Shane, Ph.D.
Chrystal SCISM, v. CITY OF SCHENECTADY, et al.
2019 WL 13213161
— N.D.N.Y. Aug. 12, 2019 Expert
Materials
19. (Report or Affidavit of Dr. Zhongxue Hua, M.D.,
Ph.D.)
Chrystal SCISM, v. CITY OF SCHENECTADY, et al.
2019 WL 13213162
— N.D.N.Y. Aug. 11, 2019 Expert
Materials
20. Docket 21-1422
BRETT FERRIS v. CHRYSTAL SCISM, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE ESTATE OF
JOSHUA SCISM
— U.S. May 05, 2022 Docket
21. Docket 1:18-CV-00672
Scism v. City of Schenectady et al
— N.D.N.Y. June 07, 2018 Docket
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 129 of 177

Scism v. City of Schenectady
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History (4)
Direct History (3)
1. Scism v. City of Schenectady
2021 WL 4458819 , N.D.N.Y. , Sep. 29, 2021
Affirmed by
2. Scism v. Ferris
2022 WL 289314 , 2nd Cir.(N.Y.) , Feb. 01, 2022
Certiorari Denied by
3. Ferris v. Scism
143 S.Ct. 273 , U.S. , Oct. 03, 2022
Related References (1)
4. Scism v. Ferris
2022 WL 2915745 , N.D.N.Y. , July 25, 2022
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Gjenashaj v. City of New York, Not Reported in Fed. Supp. (2020)
2020 WL 7342723
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 7342723
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lori GJENASHAJ, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
19cv4142
|
Signed 12/14/2020
Attorneys and Law Firms
Edward S. Stone, Joseph Irving Stone, New York, NY, for
Plaintiff.
Brachah Goykadosh, New York City Law Department, New
York, NY, for Defendants.
MEMORANDUM & ORDER
WILLIAM H. PAULEY III, Senior United States District
Judge:
*1 Plaintiff Lori Gjenashaj brings this federal civil rights
action for excessive force and failure to supervise against
the City of New York and two members of the New York
City Police Department (“NYPD”). Defendant Lieutenant
Matthew Harrison moves for summary judgment dismissing
the claims against him. For the reasons that follow, Lieutenant
Harrison's motion for summary judgment is granted in part
and denied in part.
BACKGROUND
The following facts are undisputed unless otherwise noted.
This action arises out of a chaotic sequence of events that
began when Gjenashaj fired two blank rounds from a starter
pistol at her daughter and mother-in-law inside the family's
Staten Island home. (Pl.’s Resp. to Def. Lt. Harrison's Rule
56.1 Statement of Undisputed Facts, ECF No. 99 (“Pl.’s
56.1”), ¶ 4.) As Gjenashaj ran out the front door, her husband
wrestled the pistol from her and followed her outside. (Decl.
of Brachah Goykadosh in Supp. of Def. Lieutenant Matthew
Harrison's Mot. for Summ. J., ECF No. 94 (“Goykadosh
Decl.”), Ex. L (“Pl.’s Dep.”), at 90:3–22.) Gjenashaj jumped
into the family SUV, and her husband got in the front
passenger side and placed the pistol under his seat. (Pl.’s Dep.,
at 90:3–91:21; Goykadosh Decl., Ex. J (“Q. Gjenashaj Dep.”),
at 79:20–82:11.) Hearing gunshots, a neighbor called 911.
(Decl. of Edward Stone in Opp'n to Def. Lieutenant Matthew
Harrison's Mot. for Summ. J., ECF No. 98 (“Stone Decl.”),
Ex. F, at 4.)
Responding to a radio alert, NYPD police officers attempted
to stop the SUV and apprehend Gjenashaj. (Pl.’s 56.1 ¶ 5.) She
pulled the SUV over and her husband exited the vehicle. (Q.
Gjenashaj Dep., at 92:3–12, 117:21–23.) However, Gjenashaj
refused to exit the SUV and once again fled. (Pl.’s 56.1 ¶ 5.)
Next, Gjenashaj drove to a friend's home and knocked on
the front door. (Pl.’s 56.1 ¶¶ 3, 8.) When no one answered,
she threw a brick at the door several times. (Pl.’s 56.1 ¶ 8.)
Thereafter, her friend's thirteen-year-old son opened the door
and told Gjenashaj that his mother was not home. (Pl.’s 56.1
¶¶ 8–12.) While wielding the pistol, Gjenashaj borrowed the
boy's cell phone and called her friend. (Pl.’s 56.1 ¶¶ 11–
13.) Threatened by Gjenashaj's words and tone, the friend
called 911 and reported a disturbance at her home. (Pl.’s 56.1
¶¶ 13–15.) Two NYPD officers responded to the incident,
spoke to Gjenashaj's friend, and viewed a cell phone video of
Gjenashaj holding the pistol. (Pl.’s 56.1 ¶¶ 16–17; Goykadosh
Decl., Ex. C (“Campanella-Rivera Grand Jury Test”), at 3:8–
24.) In a radio transmission, Lieutenant Harrison and Police
Officer Giancarlo Maratea were advised that Gjenashaj fled
the scene and had a gun. (Pl.’s 56.1 ¶¶ 18–19.)
The police located and surrounded Gjenashaj's SUV. (Pl.’s
56.1 ¶¶ 21–25.) Lieutenant Harrison and Officer Maratea
arrived on scene and approached the SUV with their firearms
drawn—Harrison on the passenger's side and Maratea on the
driver's side. (Pl.’s 56.1 ¶¶ 21–28.)
At this point, the parties’ versions of events diverge sharply.
According to Lieutenant Harrison, Gjenashaj turned up the
volume on the radio in her SUV, picked up the gun, and
pointed it at the passenger side window where he was
standing. (Def.’s Statement of Undisputed Facts Pursuant
to Local Rule 56.1, ECF No. 95 (“Def.’s 56.1”), ¶ 32.) In
fear for his life, Lieutenant Harrison shouted “Gun!” and
retreated from Gjenashaj's SUV to take cover. (Def.’s 56.1 ¶¶
34–41.) Both officers repeatedly ordered Gjenashaj to throw
the gun out of her vehicle, show them her hands, and exit
the SUV. (Def.’s 56.1 ¶¶ 42–43.) According to Lieutenant
Harrison, when Gjenashaj emerged from the SUV, she turned
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towards the officers and assumed a two-handed shooting
stance with the pistol. (Def.’s 56.1 ¶ 50.) Officer Maratea
testified that Gjenashaj raised her pistol and pointed it at him
and Lieutenant Harrison. (Def.’s 56.1 ¶¶ 44, 47–49.) When
Gjenashaj aimed at the police, Officer Maratea discharged
four rounds. (Def.’s 56.1 ¶¶ 55–56.) Hearing a “pop” sound,
Lieutenant Harrison fired a single shot. (Def.’s 56.1 ¶¶ 57–
59.)
*2 Gjenashaj presents a different narrative. She asserts she
never pointed her pistol at Lieutenant Harrison when he
was on the passenger side of the vehicle; never heard either
officer shout “Gun!” or anything else; and held her hands up
signaling surrender when she exited the vehicle. (Pl.’s Dep.,
113:9–14, 113:18–19, 119:9–21; Pl.’s 56.1 ¶ 52.) Importantly,
Gjenashaj claims that she exited the SUV without the pistol.
(Pl.’s Dep., 118:22–23.)
It is undisputed that Gjenashaj was shot twice and that she
then reentered her vehicle. Thereafter, Harrison and Maratea
ordered her multiple times to toss the pistol out of the SUV.
(Pl.’s 56.1 ¶¶ 60–61, 63.) Ultimately, she complied. (Pl.’s
56.1 ¶ 65.) When the officers approached to handcuff her,
Gjenashaj resisted arrest by kicking Lieutenant Harrison.
(Pl.’s 56.1 ¶¶ 69–70.) Gjenashaj was then removed from her
vehicle, brought to the ground, and handcuffed. (Pl.’s 56.1 ¶
72.)
A grand jury indicted Gjenashaj for multiple state crimes
and she ultimately pled guilty to menacing, possession of a
weapon, and fleeing the police. (Pl.’s 56.1 ¶¶ 74–75.)
DISCUSSION
I. Legal Standard
Summary judgment is proper only when “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). The
movant bears the burden to demonstrate “the absence of a
genuine issue of material fact.” Celotex v. Catrett, 477 U.S.
317, 323 (1986). There is no genuine issue for trial where
“the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party.” Scott v. Harris, 550
U.S. 372, 380 (2007) (quotation marks omitted). This Court
must “construe all evidence in the light most favorable to
the nonmoving party, drawing all inferences and resolving
all ambiguities in its favor.” Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010). After the movant makes an
initial showing that there is no material issue of fact, the
burden shifts to the non-movant to “set forth specific facts
showing that there is a genuine issue for trial” without relying
merely on allegations or denials in the pleadings. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); accord Wright
v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
II. Personal Involvement of Defendants in Use of Excessive
Force
Lieutenant Harrison contends that summary judgment is
warranted because he was not personally involved in the
alleged use of excessive force against Gjenashaj. “[P]ersonal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994);
accord Moffit v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir. 1991). “A police officer is personally involved in
the use of excessive force if the officer either: (1) directly
participates in an assault; or (2) is present during the assault,
and fails to intercede on behalf of the victim even though he
had a reasonable opportunity to do so.” Vesterhalt v. City of
New York, 667 F. Supp. 2d 292, 297 (S.D.N.Y. 2009) (citing
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir.
1997)).
Here, Lieutenant Harrison was present at the scene,
discharged his firearm, and effectuated Gjenashaj's arrest.
(Pl.’s 56.1 ¶¶ 23–60.) He was, in short, personally involved
in the alleged use of excessive force. Ricks v. O'Hanlon, 2010
WL 245550, at *4 (S.D.N.Y. Jan 19, 2010) (citing Williams
v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986)).
III. Excessive Force and Qualified Immunity
*3 Lieutenant Harrison argues that he is entitled to summary
judgment on the excessive force claim because he is
protected by qualified immunity. Qualified immunity shields
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 US. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
deciding a government official's qualified immunity claim on
summary judgment, the court must consider (1) “whether the
facts shown ‘make out a violation of a constitutional right’ ”;
and (2) “ ‘whether the right at issue was clearly established
at the time of defendant's alleged misconduct.’ ” Taravella
v. Town of Wolcott, 599 F.3d 129 (2d Cir. 2010) (quoting
Pearson, 555 U.S. 223 at 232).
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a. Violation of a Constitutional Right
Lieutenant Harrison avers that Gjenashaj fails to establish a
constitutional violation because his use of deadly force was
reasonable. When a plaintiff claims “that law enforcement
officials used excessive force in the course of making
an arrest, ... such claims are properly analyzed under the
Fourth Amendment's ‘objective reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 388 (1989). Under this
standard, granting summary judgment is appropriate only
when “no reasonable factfinder could conclude that the
officers’ conduct was objectively unreasonable.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004).
In particular, “an officer's decision to use deadly force is
objectively reasonable only if ‘the officer has probable cause
to believe that the suspect poses a significant threat of death or
serious injury to the officer or others.’ ” Cowan ex rel. Estate
of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003) (citing
O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 36 (2d
Cir. 2003)).
Here, “[t]he key determination of ‘reasonableness’ ... depends
on which version of events one credits.” Russo v. DiMilia, 894
F. Supp. 2d 391, 409 (S.D.N.Y. 2012). The parties dispute:
(1) whether Gjenashaj pointed the gun at Lieutenant Harrison
while she was inside the SUV; (2) whether Gjenashaj heard
either officer yell “Gun!” or any other command; (3) whether
Gjenashaj exited the vehicle with her hands up; (4) whether
Gjenashaj was holding the gun when she exited the vehicle;
and (5) whether Gjenashaj pointed the gun at the officers and
assumed a two-handed shooting stance. (Pl.’s 56.1 ¶¶ 32, 34–
42, 44, 47–49; Pl.’s Dep., 113:9–19, 118:22–119:21.)
Based on Gjenashaj's testimony, she exited the car without
the pistol and was shot by the officers while her hands
were up signaling surrender. Thus, “if [Gjenashaj's] version
[of events] is true ... a reasonable jury could find that
the use of deadly force was excessive.” Russo, 894 F.
Supp 2d at 410. Under these facts, a jury could find that
Lieutenant Harrison did not have probable cause to believe
that Gjenashaj “pose[d] a significant threat of death or serious
injury to the officer or others.” See Cowan, 352 F.3d at 762.
Indeed, the Second Circuit has consistently held that summary
judgment is inappropriate if “it is clear that determination of
[a constitutional violation] ‘turns on which of two conflicting
stories best captures what happened on the street.’ ” Cowan,
352 F.3d at 763 (quoting Saucier v. Katz, 533 U.S. 194,
216 (2001)); see, e.g., Thomas v. Roach, 165 F.3d 137,
144 (2d Cir. 1999) (“Because the district court could not
determine whether the officers reasonably believed that their
force was not excessive when several material facts were
still in dispute, summary judgment on the basis of qualified
immunity was precluded.”); Hemphill v. Schott, 141 F.3d
412, 416–18 (2d Cir. 1998) (holding that the district court
erred by entering summary judgment on qualified immunity
when there were disputes remaining about “material factual
issues”). Accordingly, the genuine disputes of material facts
present here preclude summary judgment on this issue.
b. Clearly Established Right at Issue
*4 Even assuming there was a violation of a constitutional
right, summary judgment is still inappropriate. Lieutenant
Harrison argues that because his conduct did not violate
a clearly established constitutional right, he is entitled
to summary judgment based on qualified immunity. “The
doctrine of 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, 555 U.S. at 231 (quotation marks omitted). “A
clearly established right is one that is ‘sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right.’ ” Mullenix v. Luna, 577 U.S. 7,
11 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)).
As previously discussed, there are genuine issues of material
fact regarding the reasonableness of Lieutenant Harrison's
conduct. Because these “disputes overlap both the excessive
force and qualified immunity issues, summary judgment must
be denied.” Cowan, 352 F.3d at 764 (denying summary
judgment on a qualified immunity claim after determining in
the excessive force analysis that there were genuine issues
of material fact regarding the reasonableness of the officers’
conduct); see also Bennett v. Falcone, 2009 WL 816830, at *6
(S.D.N.Y. Mar. 25, 2009) (“For the same reasons Plaintiff's
excessive force claim survives summary judgment, the Court
holds Defendants’ qualified immunity claim insufficient.”).
IV. Supervisory Liability
Gjenashaj claims that Lieutenant Harrison has supervisory
liability because he was the “highest ranking officer” on
the scene. (Mem. of Law in Opp'n to Def.’s Mot. for
Summ. J., ECF No. 97 (“Pl.’s Mem.”), at 14.) Specifically,
Gjenashaj avers that Harrison should have required Officer
Maratea to wear a body-worn camera; did not follow
proper NYPD procedures for dealing with emotionally
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Gjenashaj v. City of New York, Not Reported in Fed. Supp. (2020)
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disturbed individuals; and failed to follow a series of NYPD
guidelines. 1 (Pl.’s Mem., at 14.)
1 “In addition, Lieutenant Harrison failed to notify
the Precinct Commander, failed to establish a
proper command structure at the scene, failed to
require the deployment of protective shields and
failed to even attempt to use non-lethal devices to
ensure the safety of all those present as required
by the guidelines. Supervisors also failed to request
assistance from a medical expert and to seek
assistance from the subject's family or friends as
further required by the guidelines.” (Pl.’s Mem., at
14.)
But § 1983 “does not provide a remedy for violations of
best police practices.” Bah v. City of New York, 2017 WL
435823, at *6 (S.D.N.Y. Jan. 31, 2017). Indeed, “[a] violation
of the Patrol Guide or departmental policy does not, in and
of itself, amount to the violation of a right protected by
the Constitution or federal law.” Bah, 2017 WL 435823,
at *6 (citing United States v. Wilson, 699 F.3d 235, 243
(2d Cir. 2012)). Gjenashaj's claims amount to nothing more
than—perhaps valid—grievances that the officers should
have abided by proper NYPD procedures. Moreover, to
the extent that she claims the officers should have used
protective shields or non-lethal force, this is encompassed in
her excessive force claim. Therefore, the supervisory liability
claim is dismissed. See, e.g., Lopez v. City of New York, 186
F. Supp. 3d 304, 313 n.7 (S.D.N.Y. 2016) (“Section 1983 is
not a remedy for violations of the NYPD Patrol Guide.”); see
also Rizk v. City of New York, 462 F. Supp. 3d 203, 220
(E.D.N.Y. 2020) (“[A]n act or omission that violates police
policy but does not also violate constitutional rights is not
actionable under § 1983.”).
CONCLUSION
*5 For the foregoing reasons, Defendant's motion for
summary judgment is granted in part and denied in part.
Specifically, Defendant Lieutenant Harrison's motion for
summary judgment on the excessive force claim is denied.
His motion for summary judgment on the supervisory liability
claim is granted. The Clerk of Court is directed to terminate
the motion pending at ECF No. 93.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 7342723
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Gjenashaj v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:19-CV-04142
Gjenashaj et al v. City of New York et al
— S.D.N.Y. May 08, 2019 Docket
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Gjenashaj v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 136 of 177

Lazaratos v. Ruiz, Not Reported in Fed. Supp. (2003)
2003 WL 22283832
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2003 WL 22283832
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Antonio LAZARATOS, Plaintiff,
v.
Rafael RUIZ (shield no. 712), Individually and as a Port
Authority police officer; and John Does (shield nos.
unknown) individually and as Port Authority police
officers, Richard Roes (shield nos. unknown) as City
of New York police officers and Port Authority of
New York and New Jersey, as a Municipal Corp., and
City of New York, as a Municipal Corp. Defendants.
No. 00 Civ. 2221(BSJ)
|
Sept. 30, 2003.
Synopsis
Claimant sued police officers, port authority, and
municipality, alleging violation of his federal constitutional
rights in connection with his arrest and prosecution for
disorderly conduct and public urination. Port authority moved
for partial summary judgment. The District Court, Jones,
J., held that: (1) there were fact issues whether police used
excessive force, or committed assault or battery; (2) there was
no false arrest; (3) there was no malicious prosecution; (4)
there was no abuse of process; (5) there was no municipal
liability; (6) there was no conspiracy to deprive claimant of
his civil rights; and (7) there was basis for punitive damages
claim.
Motion granted in part, denied in part.
West Headnotes (9)
[1] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Law enforcement
activities
Material issues of fact, as to appropriateness of
force used in arresting claimant for disorderly
conduct, and public urination, precluded
summary judgment liability in § 1983 action
claiming excessive use of force, assault and
battery. U.S.C.A. Const.Amend. 4; 42 U.S.C.A.
§ 1983.
1 Case that cites this headnote
[2] Civil Rights Arrest and detention
Port authority police officer had probable cause
to arrest claimant for disorderly conduct and
public urination, precluding § 1983 claim of
false arrest in violation of Fourth Amendment,
when officer observed claimant relieving himself
on sidewalk in front of bus depot. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. § 1983.
[3] Civil Rights Criminal prosecutions
Malicious Prosecution Acts and conduct
of accused evidence of probable cause in
general
Malicious Prosecution Necessity
Port authority police did not maliciously
prosecute claimant, under New York law, in
violation of his Fourth Amendment rights, when
criminal proceeding was instituted charging
disorderly conduct, public urination and resisting
arrest; there was probable cause to institute
charges for disorderly conduct and public
urination, and there was no proof that
resisting arrest charge ended with determination
of innocence. U.S.C.A. Const.Amend. 4; 42
U.S.C.A. § 1983.
4 Cases that cite this headnote
[4] Civil Rights Sheriffs, police, and other
peace officers
Police officers did not have qualified immunity
from claim that they assaulted victim in course of
arresting him for disorderly conduct and public
urination; assault in course of arrest clearly
violated established statutory and constitutional
rights of which officer was or should have been
aware. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. §
1983.
[5] Process Particular cases
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Lazaratos v. Ruiz, Not Reported in Fed. Supp. (2003)
2003 WL 22283832
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There was no abuse of process, under New York
law, when police officer instituted proceedings
for disorderly conduct and public urination
against claimant; necessary showing of ulterior
motive or collateral advantage, or unusual
detriment to claimant, was not made. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. § 1983.
[6] Civil Rights Criminal law enforcement;
prisons
Civil Rights Criminal law enforcement;
prisons
Claimant alleging violation of his Fourth
Amendment rights, in connection with his arrest
and prosecution for disorderly conduct and
public urination, failed to establish basis for
municipal liability; there was no official policy or
custom condoning improper arrest conduct, nor
was there evidence of failure to train regarding
appropriate use of force in effecting arrests.
U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[7] Conspiracy Civil rights conspiracies
Failure to make showing that he was deprived
of equal protection and thereby injured in his
person or property or deprived of constitutional
right precluded claim that arrest and prosecution
for disorderly conduct and public urination was
part of conspiracy to deprive claimant of his civil
rights. 42 U.S.C.A. § 1985.
[8] Municipal, County, and Local
Government Negligence and duty of care
in general
Public Employment Law enforcement
personnel
Claimant could not maintain state law claims of
negligence against police officers, in connection
with his arrest and prosecution for disorderly
conduct, public urination, and resisting arrest,
when all wrongful conduct alleged against
officers was intentional.
[9] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Law enforcement
activities
Existence of fact issues, as to whether police
used excessive force in arresting claimant
for disorderly conduct and public urination,
precluded summary judgment that punitive
damages were not available in his civil rights
action against officers.
6 Cases that cite this headnote
Opinion
JONES, J.
*1 Plaintiff Antonio Lazaratos filed the instant action on
March 23, 2000 against the defendants, which include Police
Officer Rafael Ruiz and the Port Authority of New York and
New Jersey (collectively referred to as the “Port Authority
defendants”). 1 Lazaratos claims that Officer Ruiz and several
unnamed officers approached him and without just cause,
provocation, warning, or consent, physically assaulted him,
breaking his ribs and inflicting other physical injuries,
and causing him physical pain and emotional trauma. He
brings federal claims pursuant to the First, Fourth, Fifth and
Fourteenth Amendments of the United States Constitution
and 42 U.S.C. §§ 1983 and 1985 for, inter alia, violation
of due process, excessive use of force, unlawful search
and seizure, malicious prosecution, abuse of process, and
failure to train and unconstitutional policies or customs.
He also brings state law claims against the Port Authority
defendants for assault, battery, malicious prosecution, abuse
of process, negligence and gross negligence. The Port
Authority defendants have moved for partial summary
judgment pursuant to Fed.R.Civ.P. 56(c), claiming that all the
claims in the Complaint, except Lazaratos' claim for the use
of excessive force under federal law and state law claims
of assault and battery, should be dismissed. Lazaratos has
opposed this motion for partial summary judgment.
1 Originally, Lazaratos also sued unnamed New York
City police officers as well as the City of New York;
however, no New York City police officers were
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ever named and the City has been released as a
defendant in this case.
I. Summary Judgment Standard
Summary judgment may not be granted unless
the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment
as a matter of law.
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo
v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d
1219, 1223 (2d Cir.1994). In determining whether summary
judgment is appropriate, a court must resolve the ambiguities
and draw all reasonable inferences against the moving party.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655,
82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). Summary judgment
is improper if there is any evidence in the record from any
source from which a reasonable inference could be drawn in
favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). Nonetheless, “the
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986).
II. Factual Background
The facts in this case involve Officer Ruiz's arrest of
Lazaratos and they are in serious dispute. On December
28, 1998 between approximately 10:00 a.m. and 11:00
a.m, Officer Rafael Ruiz, while on duty, observed Antonio
Lazaratos, then 76 years old, urinate on a New York
City public street, specifically on 41 st Street between
8 th and 9 th Avenues, adjacent to the Port Authority Bus
Terminal. Lazaratos concedes these facts. When Officer
Ruiz approached Lazaratos and attempted to arrest him for
urinating in public, a struggle ensued. According to Lazaratos,
Officer Ruiz did not identify himself as a police officer when
he approached Lazaratos, thereby causing him to “fear for
his life.” Lazaratos maintains that Officer Ruiz, along with
several other unnamed officers, used excessive force when
arresting him, throwing him onto the ground. (Lazaratos Dep.
at 64–72). He claims that he landed face down, his chin,
chest, knees and ankles all hitting the ground. (Lazaratos Dep.
at 80, 81). He also asserts that the officers ripped the coat
he was wearing. (Larazatos Dep. at 81). He testified that
during this alleged assault he called out “help” and asked “for
what reason?”. (Lazaratos Dep. at 87). Officer Ruiz, however,
claims that he identified himself as a police officer before
approaching Lazaratos and that he only used that force which
was necessary to restrain Lazaratos. (Ruiz Dep. at 44). He
says that it was Lazaratos who pushed off the wall and sent
both he and Lazaratos to the ground. (Ruiz Dep. at 49–50). He
further explains that a bystander, Diego Lorenzo, assisted him
in restraining Lazaratos, who continued to resist arrest while
on the ground. (Ruiz Dep. at 56). Diego Lorenzo testified to
the same effect.
*2 Subsequent to the altercation, Lazaratos was arrested for
public urination, disorderly conduct and resisting arrest. All
three charges were subsequently dropped.
II. Discussion
[1] Because of the material facts in dispute with regard to the
arrest, summary judgment with respect to the excessive use
of force, assault, and battery claims would be inappropriate.
However, the Port Authority defendants have moved for
summary judgment against the other claims in the Complaint.
The Court will address each one of their arguments in turn.
A. 42 U.S.C. § 1983 Claims
To maintain a successful § 1983 action, “the conduct
complained of must have been committed by a person acting
under color of state law and must deprive a person of rights,
privileges or immunities secured by the Constitution or laws
of the United States.” Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir.1994). The parties agree that at all relevant times,
Officer Ruiz was acting under color of state law and within
the scope of his employment as a Port Authority police
officer. Thus, the issue to be resolved is whether Officer Ruiz
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deprived Lazaratos of his constitutional rights, privileges or
immunities.
i. False Arrest
[2] A § 1983 claim to be free from unreasonable seizure
is “substantially the same as [a] claim[ ] for false arrest ...
under state law,” and, therefore, courts apply the relevant
state law to such claims. Jocks v. Tavernier, 316 F.3d 128,
134 (2d Cir.2003). “Under New York state law, to prevail
on a claim of false arrest a plaintiff must show that ‘(1)
the defendant intended to confine him, (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise
privileged.” ’ Jocks, 316 F.3d at 134–35 (quoting Broughton
v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d
310 (1975)).
To that end, there can be no federal civil rights claim for
false arrest where the arresting officer had probable cause
to arrest the plaintiff. See Bernard v. United States, 25 F.3d
98, 102 (2d Cir.1994); Veras v. Truth Verification Corp., 451
N.Y.S.2d 761, 87 A.D.2d 381 (1st Dep't 1982). Probable cause
is established “when the arresting officer has knowledge or
reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense has
been committed by a person to be arrested.” O'Neill v. Town of
Babylon, 986 F.2d 646, 650 (2d Cir.1993) (quoting Calamia
v. City of New York, 879 F.2d 1025, 1032 (2d Cir.1989)).
In this case, the facts leading up to the arrest of Lazaratos are
undisputed: Lazaratos urinated in a public street, specifically
on 41 st Street between 8 th and 9 th Avenues and was
observed doing so by Officer Ruiz. Based on his observation
of this conduct, Officer Ruiz had probable cause to effectuate
an arrest for a violation of the New York Penal Code and
the New York City Administrative Code regarding disorderly
conduct and public urination, respectively. See New York
Penal Law § 240.20(7); New York City Admin. Code § 16–
118(6); People v. Cooke, 152 Misc.2d 311, 578 N.Y.S.2d
76 (J. Ct.1991) (public urination may qualify as disorderly
conduct). Accordingly, Lazaratos' claims for false arrest and
unreasonable search and seizure are dismissed. 2
2 There is an issue of fact as to whether Officer
Ruiz had probable cause to arrest Lazaratos for
resisting arrest; however, since it is clear that he
had two causes to arrest Lazaratos—namely, public
urination and disorderly conduct—the Court need
not consider this dispute.
ii. Malicious Prosecution
*3 [3] Lazaratos also brings a § 1983 claim for malicious
prosecution, 3 and, as with false arrest, courts turn to the
underlying state law in determining liability. Jocks, 316 F.3d
at 134. Under New York law, in order to sustain a claim for
malicious prosecution, a plaintiff must demonstrate: “1) that
the defendant started a criminal proceeding against [plaintiff];
2) that the proceeding terminated in the plaintiff's favor; 3)
that there was no probable cause for the proceeding; and
4) that the proceeding was instituted with malice.” Lowth
v. Town of Cheektoawaga, 82 F.3d 563, 571 (2d Cir.1996)
(citing Colon v. City of New York, 60 N.Y.2d 78, 82, 468
N.Y.S.2d 453, 455 N.E.2d 1248 (1983)). “Additionally, there
must be a post-arraignment seizure for a § 1983 malicious
prosecution claim.” Jocks, 316 F.3d at 136.
3 In addition to his claim for malicious prosecution,
Lazaratos also states in his Complaint that he
should not have been subject to “false charges
lodged against him by police officers acting under
color of law.” (Compl. at ¶ 20(e)). This claim is
equivalent to a malicious prosecution claim and,
therefore, the Court simultaneously addresses it in
this section of its Opinion.
In this case, the undisputed facts demonstrate that there
was probable cause to institute charges for public urination
and disorderly conduct. However, the facts are in dispute
as to whether Officer Ruiz had probable cause to initiate
proceedings against Lazaratos for resisting arrest. Officer
Ruiz recounts that he identified himself as a police officer and
asked Lazaratos to place his hands against the wall. According
to Officer Ruiz, Lazaratos refused to stand against the wall,
pushed off the wall, threw his elbow at him, and knocked him
to the ground. (Ruiz Dep. at 49). For his part, Lazaratos claims
that Officer Ruiz did not identify himself and that Officer
Ruiz along with other persons assaulted him. (Compl. at ¶ 13;
Lazaratos Dep. at 52). Therefore, this Court cannot determine
on summary judgment that Officer Ruiz had probable cause
to prosecute for resisting arrest.
Still, the Court must dismiss the malicious prosecution claim
with regard to the resisting arrest charges as Lazaratos
has failed to demonstrate favorable termination of the
proceedings against him. It is the plaintiff's burden to
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demonstrate that charges against him were terminated
favorably. Where, as here,
the prosecution did not result in an acquittal, it is deemed
to have ended in favor of the accused, for these purposes,
only when its final disposition is such as to indicate
the innocence of the accused.... The answer to whether
termination is indicative of innocence depends on the
nature and circumstances of the termination; the dispositive
inquiry is whether the failure to proceed “impl[ies] a lack
of reasonable grounds for prosecution.”
Murphy v. Lynn, 118 F.3d at 948 (citing Loeb v. Teitelbaum, 77
A.D.2d 92, 432 N.Y.S.2d 487, 494 (2d Dep't 1980), modified
on other grounds, 80 A.D.2d 838, 439 N.Y.S.2d 300 (2d
Dep't 1981)) (emphasis added). In other words, the fact that
a prosecution was terminated does not necessarily mean that
such termination was favorable.
Here, Lazaratos claims only that the resisting arrest charges
were “dropped.” (Lazaratos Rule 56.1 statement at ¶ 8).
He has submitted no evidence whatsoever to show that the
charges were terminated favorably. Accordingly, Lazaratos'
malicious prosecution claim is dismissed.
*4 [4] The Court will allow Lazaratos leave to amend his
Complaint to include a claim for malicious prosecution if
he procures the necessary certified records to demonstrate a
favorable termination or can otherwise substantiate his claim
of favorable termination. Such amendment must be made
by October 21, 2003 or the claim for malicious prosecution
will be dismissed with prejudice. If Lazaratos can show a
favorable termination, his malicious prosecution claim will
be allowed to proceed with respect to the resisting arrest
charge. 4
4 The Court notes that, contrary to the Port Authority
defendants' request, the doctrine of qualified
immunity does not dispose of the matter. If a jury
were to believe Lazaratos' account of the facts—
that Officer Ruiz assaulted him—such behavior
would clearly violate established statutory and
constitutional rights and, as such, Officer Ruiz
would not be immune from liability. The Court
recognizes that the Port Authority defendants have
reserved their right to bring future motions based
on a claim of qualified immunity with respect to the
excessive force claims after a trial on the merits.
(Port Auth. Reply at 6).
iii. Abuse of Process
[5] With respect to an abuse of process claim made pursuant
to § 1983, courts also draw from the applicable state law.
Cook v. Sheedon, 41 F.3d 73, 79–80 (2d Cir.1994) (citing
Martin v. City of Albany, 42 N.Y.2d 13, 396 N.Y.S.2d 612,
614, 364 N.E.2d 1304 (N.Y.1977)). The Second Circuit has
explained that for a plaintiff to establish an abuse of process
claim pursuant to § 1983 or state law, he must establish the
following:
(1) regularly issued process
compelling the performance or
forbearance of some prescribed act,
(2) the person activating the process
must have been motivated to do
harm without economic or social
excuse or justification, and (3) the
person activating the process must
be seeking some collateral advantage
or corresponding detriment to the
plaintiff which is outside the legitimate
ends of process.
Bernard v. United States, 25 F.3d 98, 104 (2d Cir.1994) (citing
Hornstein v. Wolf, 109 A.D.2d 129, 491 N.Y.S.2d 183, 187
(Dep't 1985), aff'd, 67 N.Y.2d 721, 499 N.Y.S.2d 938, 490
N.E.2d 857 (1986)). Nevertheless, Lazaratos has failed to
allege or offer factual support to satisfy any of the elements of
this cause of action. He has offered no facts to show that there
was an ulterior motive that prompted Officer Ruiz to make
the arrest nor has he offered facts to show or even suggest
that Officer Ruiz sought some other collateral advantage or
corresponding detriment to Lazaratos outside of the legitimate
ends of process. Lazaratos' abuse of process claim is therefore
dismissed.
iv. Municipal Liability
[6] Pursuant to § 1983, Lazaratos seeks to hold the Port
Authority liable for its policies or customs to allegedly:
1) punish summarily persons who
appear not to be responsive to police
directions or who appear to challenge
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police authority ...; 2) provide false
information, testify falsely, and falsify
official records; 3) use unnecessary
force ...; 4) cover up any illegal
and improper conduct committed by
another police officer in accordance
with the custom not to “blow the
whistle” on a fellow officer....
(Compl. at ¶ 21). He also claims that the Port Authority
defendants failed to properly train and supervise individual
officers. (Compl. at ¶¶ 22, 23). 5
5 Lazaratos only made these claims as part of his
federal claim. These allegations were not made
under state law. Accordingly, they are addressed
solely under § 1983.
In order for a plaintiff to sufficiently allege employer liability
pursuant to § 1983, he must prove that the acts complained of
are a result of the official custom and policy of the defendant
governmental agency. Pembaur v. City of Cincinnati, 475
U.S. 469, 478–479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986);
Monell v. Dep't of Social Servs., 436 U.S. 568, 694 (1978).
Indeed, where a plaintiff claims that the governmental agency
has not directly inflicted an injury, but nonetheless has caused
an employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the governmental
agency is not held liable solely for its employee's actions.
Bryan County v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382,
137 L.Ed.2d 626, rehearing denied, 520 U.S. 1283, 117
S.Ct. 2472, 138 L.Ed.2d 227 (1997) (citing City of Canton v.
Harris, 489 U.S. 378, 391–92, 109 S.Ct. 1197, 103 L.Ed.2d
412 (1989)).
*5 Consequently, to establish municipal liability, a plaintiff
must demonstrate (i) the existence of a municipal policy or
custom and (ii) the existence of a causal connection between
said policy or custom and the deprivation of the plaintiff's
constitutional rights. Sarus v. Rotundo, 831 F.2d 397, 400
(2d Cir.1987) (citations omitted). Alternatively, a plaintiff can
support a claim for municipal liability for a failure to train if
he can show that:
1) a policymaker 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;
and (3) the wrong choice by the city
employee will frequently cause the
deprivation of a citizen's constitutional
rights.
Walker v. City of New York, 974 F.2d 293, 297 (2d Cir.1992)
(citations omitted).
Lazaratos has failed to produce evidence of either kind. He
points to no official policy or custom that Ruiz followed to
the detriment of his rights. And, with respect to his claim of
failure to train, Lazaratos relies on an expert opinion and the
deposition testimony of Officer Ruiz. Neither is sufficient to
support Lazaratos' claim. The expert opinion is that Officer
Ruiz did not properly arrest Lazaratos; it does not speak to
larger issues of employee training. (Lazaratos Ex. 4).
As for the deposition testimony of Officer Ruiz, Lazaratos
places great weight on the fact that, among other things,
Officer Ruiz did not recall being trained with regard to
courteous treatments of civilians. (Ruiz Dep. at 24–26).
However, the fact that an officer has not been trained with
respect to courteous treatment of civilians is not evidence
that Officer Ruiz was not trained with regard to use of
force. Accordingly, Lazaratos' § 1983 claims against the Port
Authority are dismissed in their entirety.
B. 42 U.S.C. § 1985 Claims
[7] Section 1985 prohibits conspiracies to interfere with
a person's civil rights. Griffen v. Breckenridge, 402 U.S.
88, 102–04 (1971). A valid claim must set forth the
facts and circumstances of the alleged conspiracy. Mass
v. McClenahan, 893 F.Supp. 225, 231 (S.D.N.Y.1995). A
plaintiff must also show that he was deprived of equal
protection of the laws and thereby injured in his person or
property or deprived of a constitutional right. United Bd.
of Carpenters v. Scott, 463 U.S. 825, 829–30, 103 S.Ct.
3352, 77 L.Ed.2d 1049 (1983). Lazaratos cannot meet these
requirements. This section was not intended to apply to all
interferences with rights of others, but only to those which
are founded upon some class-based or racially invidious
discriminatory intent. Clearly, Lazaratos has not alleged nor
can he prove such a claim. This claim is therefore dismissed.
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C. First, Fourteenth, and Fifth Amendment and other
Claims
Lazaratos has alleged a First, Fourteenth and Fifth
Amendment violation of his rights. To establish a First
Amendment claim, a plaintiff must demonstrate (1) that he
had an interest protected by the First Amendment, (2) that
the defendant's actions were motivated by or substantially
caused by the plaintiff's exercise of that right, and (3) that
defendant's action chilled the plaintiff's exercise of his first
amendment rights. Connell v. Signoracci, 153 F.3d 74, 79
(2d Cir.1998). Here, Lazaratos states in his opposition papers
that Officer Ruiz “preemptively retaliated against [him] for
potentially exercising his First Amendment rights to express
himself and petition for redress of a grievance.” (Lazaratos
Opp. at pt. VI). However, he has offered no evidence of any
speech or otherwise protected activity in which he engaged
or sought to engage, which Officer Ruiz or any of the other
defendants attempted to thwart. In his deposition, he did state
that he called for help during the alleged attack, but there is
no indication that this speech or any other speech was chilled
by the Port Authority defendants. As a result, Lazaratos' First
Amendment claim must be dismissed.
*6 Lazaratos' Complaint also includes a claim that he was
“deprived of liberty without due process.” (Compl. at ¶ 20(a)).
It is unclear whether this claim is meant to be made under the
Fourteenth Amendment, but, to the extent that it is, it may not
go forward because there is no substantive due process right
which arises from the facts as he has alleged them. Indeed,
“if the liberty interest claimed by [plaintiff] is his right to be
free from criminal prosecution except upon probable cause,
then [the Supreme Court decision] Albright directs that the
violation be tested under standards of the Fourth Amendment,
because the conduct complained of was undertaken within the
context of the criminal investigation.” Micalizzi v. Ciamarra,
206 F.Supp.2d 564, 580 (S.D.N.Y.2002) (citing Albright v.
Oliver, 510 U.S. 266, 270, 114 S.Ct. 807, 127 L.Ed.2d 114
(1994)). Accordingly, Lazaratos' due process claim must be
dismissed. 6
6 Of course, the Court considers Lazaratos' claims
of unlawful search and seizure and prosecution
pursuant to the Fourth Amendment as part of its
consideration of his § 1983 claims.
Similarly, Lazaratos has failed to present any factual support
or to cite any case for his claim that his Fifth Amendment
right, the right against self incrimination, was violated. This
claim is also, therefore, dismissed.
Finally, Lazaratos alleges in his Complaint that his right “not
to have summary punishment imposed upon him by police
officers acting under color of law” was violated as was his
right to have “access to the courts to petition for redress of
grievances.” (Compl. at ¶ 20(c) & (h)). Except to the extent
that by summary punishment Lazaratos is alleging abuse of
force, these allegations do not state a cognizable claim under
the law and are accordingly dismissed.
D. State Law Claims
[8] As noted above, Lazaratos has brought state law claims
for assault, battery, malicious prosecution, negligence and
gross negligence, and abuse of process against the Port
Authority defendants. The Port Authority defendants seek
summary judgment against all these claims except those for
assault and battery. The Court first turns to a consideration
Lazaratos' claims for negligence and gross negligence. To the
extent that these negligence claims relate to Lazaratos' alleged
false arrest and malicious prosecution, they are barred. False
arrest and malicious prosecution “are not acts of negligence,
and plaintiff cannot recover for them under general principles
of negligence law.” Sarnicola v. County of Westchester, 229
F.Supp.2d 259, 277 (S.D.N.Y.2002); Shea v.. County of Erie,
202 A.D.2d 1028, 609 N.Y.S.2d 473, 474 (4th Dep't 1994)
(“Although plaintiff's cause of action sounds in negligence, he
‘may not recover under broad general principles of negligence
but must proceed by way of the traditional remedies of
false arrest and imprisonment.” ’) (citing Boose v. City of
Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740 (4th Dep't 1979)).
Accordingly, Lazaratos' negligence claims with respect to
his arrest are actually for the intentional torts of false
imprisonment and malicious prosecution and will be treated
as such.
To the extent that Lazaratos' negligence claims regard the
alleged assault, these claims are similarly barred. “New
York does not recognize negligent battery.... Accordingly,
‘once intentional offensive contact has been established,
the actor is liable for ... [battery] and not negligence.” ’
Sawyer, 196 F.Supp.2d at 228 (quoting Schetzen v. Robotis,
273 A.D.2d 220, 709 N.Y.S.2d 193, 194 (2d Dep't 2000)
(quoting Wetzberger v. City of New York, 254 A.D.2d 352,
680 N.Y.S.2d 260, 261 (2d Dep't 1998) (internal quotations
omitted)). Here, all the claims that Lazaratos has made
against Officer Ruiz and the other defendants have involved
accusations that they purposefully assaulted him. Under New
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York law, this is considered an intentional tort. See Wilson
v. The Diocese of New York of the Episcopal Church, Civ.A.
No.96–2400, 1998 WL 82921, at *6 (S.D.N.Y. Feb.26, 1998)
(stating that New York law rejects attempts by plaintiffs to
“transmogrify intentional torts into ‘negligence” ’) (quoting
Schmidt v. Bishop, 779 F.Supp. 321, 324–35 (S.D.N.Y.1999)).
Thus, Lazaratos' negligence claims are dismissed.
*7 The next issue for the Court is, therefore, whether the
state law claims for false arrest, malicious prosecution, and
abuse of process can proceed as against the Port Authority
defendants. For the reasons explained above, Lazaratos'
claims for false arrest and abuse of process are dismissed
under both federal and state law. Also as explained earlier,
Lazaratos' malicious prosecution claim must be dismissed
—although he may replead—insofar as he has offered no
evidence of favorable termination.
E. Punitive Damages
[9] In his Complaint, Lazaratos demands punitive damages,
and Officer Ruiz has objected based on his contention that
his conduct does not warrant the imposition of punitive
damages. Punitive damages may be awarded against an
individual defendant for violations of federal law where
a defendant acts with “reckless or callous disregard for
plaintiff's rights and intentionally violates federal law.” Smith
v. Wade, 461 U.S. 30, 45, 51, 103 S.Ct. 1625, 75 L.Ed.2d
632 (1983). The plaintiff must prove the defendant acted
wantonly or willfully or was motivated by ill will or malice.
Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898,
909 (2d Cir.1993) (citations omitted). “However, because
[Lazaratos] has provided sufficient evidence to overcome
summary judgment [with respect to excessive use of force],
the Court cannot state as a matter of law that [Lazaratos] is
not entitled to punitive damages. For this reason, defendants'
motion must be denied with respect to punitive damages.”
Emblen v. Port Authority of New York/New Jersey, Civ.A.
No.00–8877, 2002 WL 498634, at *12 (S.D.N.Y. Mar.29,
2002); Housing Works, Inc. v. Turner, 179 F.Supp. 177, 209
(S.D.N.Y.2001).
Conclusion
Based on the foregoing, the Port Authority defendants motion
for partial summary judgment is granted in part and denied
in part. The claims that remain and will go to trial are,
therefore, those for excessive use of force and assault and
battery as against Officer Ruiz and the Port Authority.
Lazaratos is granted leave to amend his Complaint to include
a claim for malicious prosecution, pursuant to both § 1983
and state law, on or before October 21, 2003, if he can
demonstrate favorable termination either by a certified copy
of the disposition of the charges or other verifiable evidence.
As established at the most recent pretrial conference, the trial
in this case is scheduled for November 17, 2003. Proposed
voir dire and jury instructions as well as motions in limine
are due November 10, 2003. Additionally, a final pretrial
conference will be held on November 12, 2003 at 4:30 p.m.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2003 WL 22283832
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Lazaratos v. Ruiz
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Filings (1)
Title PDF Court Date Type
1. Docket 1:00cv02221
LAZARATOS v. RUIZ, ET AL
— S.D.N.Y. Mar. 23, 2000 Docket
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 145 of 177

Lazaratos v. Ruiz
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Woods v. City of Syracuse, Not Reported in Fed. Supp. (2017)
2017 WL 11567919
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2017 WL 11567919
Only the Westlaw citation is currently
available.
United States District Court, N.D. New York.
Clifford L. WOODS, Jr.,
Plaintiff,
v.
CITY OF SYRACUSE, Chief
of Police Frank Fowler, in
His Official Capacity, Sgt.
Llukaci and Police Officer
Szakacs, Individually and
in their official capacity as
Police Officers for the City
of Syracuse; jointly and
severally, Defendants.
5:15-CV-027-BKS-ATB
| Signed 02/01/2017
Attorneys and Law Firms
For Plaintiff: John W. Sharon, Esq., 109
South Warren Street, Suite 314, Syracuse,
New York 13202
For Defendants: Robert P. Stamey,
Corporation Counsel of the City of Syracuse,
John A. Sickinger, Senior Assistant
Corporation Counsel, 300 City Hall,
Syracuse, New York 13202
MEMORANDUM-DECISION AND ORDER
Hon. Brenda K. Sannes, United States
District Court Judge:
I. INTRODUCTION
*1 Plaintiff Clifford L. Woods Jr. brings this
action against Defendants under 42 U.S.C.
§ 1983 and New York State law asserting
claims arising out of his arrest on January
14, 2014 in Syracuse, New York. (Dkt. No.
1). Defendants move for summary judgment.
(Dkt. No. 25). Plaintiff opposes the motion
and also cross-moves for summary judgment.
(Dkt. No. 29). Defendants oppose Plaintiff's
cross-motion. (Dkt. No. 30). For the reasons
that follow, Defendants’ motion is granted in
part and denied in part, and Plaintiff's motion
is denied.
II. BACKGROUND1
1The facts stated herein are drawn from
the parties’ submissions, including
Defendants’ Statement of Material Facts,
Dkt. No. 25-1; Plaintiff's Response to
Defendants’ Statements of Material Facts,
Dkt. No. 29, pp. 6-8; and the exhibits the
parties have submitted, to the extent that
they are admissible as evidence. Where
facts stated in a party's L.R. 7.1(a)(3)
Statement are supported by testimonial
or documentary evidence, and denied
with only a conclusory statement by the
other party, the Court has found such
facts to be true. See N.D.N.Y. L.R. 7.1(a)
(3); Fed. R. Civ. P. 56(e). The Court has
included certain statements from Plaintiff's
deposition testimony, even though they
were not identified by Plaintiff's counsel
in his L.R. 7.1(a)(3) Statement. The Court
expects that counsel's future filings will
comply with the Local Rules.
On January 14, 2014, at approximately 10:13
p.m., an anonymous person called 911 and
reported observing three black males on
the corner of Park Street and Mary Street,
one of which pulled out a black handgun.
(Dkt. No. 25-1, ¶ 1). The caller reported that
the black male with a gun appeared to be
in his 30s, approximately 6#1#, heavy-set,
and wearing a black jacket and blue jeans.
(Id., ¶ 2). The caller told the 911 operator
to “hurry up” because it appeared that the
black males were “about to do something”
and that “it could be the people that shot over
here before.” (Id., ¶ 3). Defendant Officer
Joseph Szakacs responded to the scene at
approximately 10:14 p.m. (Id., ¶ 4). Officer
Szakacs, a nineteen year veteran of the
Syracuse Police Department, recognized
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this area as a “tough neighborhood” that has
experienced “quite a few problems there
with drug dealings, robberies, everything like
that.” (Id., ¶ 5).
Upon arrival on the scene, Officer Szakacs
observed a male, later identified as Plaintiff,
who matched the description provided by
the 911 caller of the man with a gun. (Id.,
¶ 7). Officer Szakacs also observed two
other males with Plaintiff, consistent with the
911 caller's information. (Id., ¶ 8). Officer
Szakacs testified that when Plaintiff saw his
marked police vehicle arriving on scene,
Plaintiff began to walk away from the other
two males. (Dkt. No. 25-16, p. 18). Officer
Szakacs then exited his vehicle, drew his
department-issued gun, and ordered Plaintiff
to the ground. (Dkt. No. 25-1, ¶ 10).
According to Officer Szakacs, Plaintiff did
not comply with his order and instead stood
his ground. (Dkt. No. 25-16, p. 22). Officer
Szakacs testified that at this point, after he
had ordered Plaintiff to get on the ground, he
observed what appeared to be the butt-end of
a gun in Plaintiff's right pants pocket. (Id., pp.
20-21). Officer Szakacs testified that he gave
Plaintiff several more commands to get down
on the ground, but Plaintiff did not comply
and instead turned away so that both his right
hand and the gun were not visible. (Id., p.
26). Defendant Sergeant Alp Llukaci,2 who
had arrived on the scene separately, was
approximately twenty yards away from Officer
Szakacs. (Dkt. No. 25-1, ¶ 16). Sergeant
Llukaci stated that he observed Officer
Szakacs shouting commands to Plaintiff to
get on the ground, but Plaintiff did not comply
with the commands. (Dkt. No. 25-15, pp. 25,
31).
2Sergeant Llukaci also testified that there
had been numerous shots-fired calls in the
area. (Dkt. No. 25-15, p. 27).
*2 Officer Szakacs moved towards Plaintiff
and gave additional orders to get on the
ground. (Dkt. No. 25-1, ¶ 19). Officer
Szakacs testified that he used his left hand
to grab onto Plaintiff and attempted to pull
him to the ground, while ordering him to get
on the ground. (Dkt. No. 25-16, pp. 28-29).
Officer Szakacs further testified that Plaintiff
attempted to pull away in the opposite
direction. (Id., p. 30). At this point, Officer
Szakacs struck Plaintiff on the top of his
head with his right hand, in which he (Officer
Szakacs) was holding his department-issued
gun. (Dkt. No. 25-1, ¶ 22). Officer Szakacs
testified that he struck Plaintiff for several
reasons:
He was not complying with my
commands to lay on the ground. He
had turned his body away from me.
He was not following instructions. At
that time I felt he was armed with a
handgun. At the time I did not know
it was a BB gun, and when I tried to
physically force him onto the ground
by grabbing him on the shoulder, he
began moving his way back away
from me by trying to stay on his feet.
(Dkt. No. 25-16, pp. 14-15). Officer Szakacs
testified that he did not see Plaintiff making
a move for the gun in his pocket, and at
no point was the gun in Plaintiff's hand or
leveled at Officer Szakacs. (Id., pp. 24,
32). Plaintiff did not attempt to assault or
strike Officer Szakacs. (Id., p. 30). Sergeant
Llukaci testified that he saw Officer Szakacs
approach Plaintiff, grab him, and then a
struggle ensued and they both went down to
the ground. (Dkt. No. 25-15, pp. 32-33).
According to Plaintiff, right before the incident
he found a pellet gun outside a store and
put it in his pocket. (Dkt. No. 25-14, p. 22).
Plaintiff testified that he saw an officer pull
up, get out of his car, and draw his weapon,
and that the officer then ordered him to get
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on the ground. (Id.). Plaintiff testified that he
did not walk away from the other two males
when the police car arrived. (Dkt. No. 25-13,
p. 25). Plaintiff further testified that he went
down to the ground, on his hands and knees,
and then the officer came over and struck
Plaintiff with his weapon. (Dkt. No. 25-14, pp.
22, 28, 30, 35). Plaintiff testified that he did
not walk away when the officer ordered him
to the ground. (Id., p. 29).
Sergeant Llukaci testified that he rushed over
to their location and assisted Officer Szakacs
with handcuffing Plaintiff. (Dkt. 25-15, pp.
46, 52). While Plaintiff was on the ground, a
black daisy BB gun fell out of Plaintiff's front
right pocket. (Dkt. No. 21-5, ¶ 27). The BB
gun had the appearance of a Beretta 9mm
handgun. (Id., ¶ 28; see also Dkt. No. 25-12).
According to Officer Szakacs's police report,
Plaintiff locked his hands under his body and
refused orders to put his hands behind his
back. (Dkt. No. 25-11, p. 7). Officer Szakacs
took control of Plaintiff's left arm and forced
it behind his back into handcuffs. (Dkt. No.
25-1, ¶ 29). Plaintiff testified that he did
not resist arrest. (Dkt. No. 25-14, p. 47).
According to the police report, upon lifting
Plaintiff up, Officer Szakacs observed on
the ground “a clear plastic bag containing a
green/brown plantlike material, consistent
with the appearance of marihuana.” (Dkt. No.
25-11, p. 7).
According to Officer Szakacs, he did not
intentionally strike Plaintiff on the head
with his gun but rather his reaction was to
strike Plaintiff and his “handgun happened
to be there.” (Dkt. 25-16, p. 15). Officer
Szakacs further testified that, in general, “the
standard is use the minimum amount of force
necessary to [e]ffect the lawful arrest.” (Id.,
p. 14). Officer Szakacs testified he received
training in the use of force, and that officers
are trained to “do whatever needs to be done
if you're facing a possibly deadly physical
force scenario,” including using deadly force.
(Id., p. 35). He also testified that a handgun
strike to the head would qualify as deadly
force, and that in the situation he faced,
deadly force was warranted. (Id., pp. 36-38).
Plaintiff testified that he lost consciousness
as a result of being struck in the head. (Dkt.
No. 25-14, p. 36). According to the police
report, paramedics were called to the scene
to treat “an approximate [one inch] laceration
to the right side of Woods’ head,” and Plaintiff
was taken to the hospital for treatment. (Dkt.
No. 25-11, p. 7).
*3 Plaintiff was later charged with Obstructing
Governmental Administration in the Second
Degree (New York Penal Law 195.05),
Resisting Arrest (New York Penal Law
205.30), and Unlawful Possession of
Marijuana (New York Penal Law 221.05).
(Dkt. No. 25-1, ¶ 30). Plaintiff admitted that,
on the night of his arrest, he had marijuana
in his possession and had a warrant out for
his arrest pertaining to a Family Court matter.
(Dkt. No. 25-1, ¶¶ 31-32).
Plaintiff's charges were later dismissed by
Syracuse City Court Judge Karen Uplinger
on July 23, 2014. (Dkt. No. 25-1, ¶ 33). In
that case, Plaintiff successfully “moved to
suppress physical evidence (marihuana)
seized from his person on grounds that the
seizure resulted from an unconstitutional
search and to dismiss the remaining charges
of obstructing governmental administration
in the second degree and resisting arrest
on the grounds that defendant was seized
and detained and subsequently arrested
unlawfully.” (Dkt. No. 29, pp. 268-74).
In granting the motion, Judge Uplinger
concluded, inter alia, that “Officer Szakacs
did not have a reasonable suspicion to justify
a seizure of defendant,” and moreover, that
Officer Szakacs did not have probable cause
to arrest him. (Id., pp. 272-73).
III. STANDARD OF REVIEW
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Under Federal Rule of Civil Procedure 56(a),
summary judgment may be granted only if all
the submissions taken together “show that
there is no genuine issue as to any material
fact and that the moving party is entitled
to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). The moving party bears the initial
burden of demonstrating “the absence of
a genuine issue of material fact.” Celotex,
477 U.S. at 323, 106 S.Ct. 2548. A fact is
“material” if it “might affect the outcome of
the suit under the governing law,” and is
genuinely in dispute “if the evidence is such
that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S.
at 248, 106 S.Ct. 2505; see also Jeffreys
v. City of New York, 426 F.3d 549, 553 (2d
Cir. 2005) (citing Anderson). The movant
may meet this burden by showing that the
nonmoving party has “fail[ed] to make a
showing sufficient to establish the existence
of an element essential to that party's case,
and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322,
106 S.Ct. 2548; see also Selevan v. N.Y.
Thruway Auth., 711 F.3d 253, 256 (2d Cir.
2013) (summary judgment appropriate where
the non-moving party fails to “come forth with
evidence sufficient to permit a reasonable
juror to return a verdict in his or her favor on
an essential element of a claim”) (internal
quotation marks omitted).
If the moving party meets this burden, the
nonmoving party must “set out specific
facts showing a genuine issue for trial.”
Anderson, 477 U.S. at 248, 250, 106 S.Ct.
2505; see also Celotex, 477 U.S. at 323-24,
106 S.Ct. 2548; Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009). “When ruling on
a summary judgment motion, the district
court must construe the facts in the light
most favorable to the non-moving party and
must resolve all ambiguities and draw all
reasonable inferences against the movant.”
Dallas Aerospace, Inc. v. CIS Air Corp.,
352 F.3d 775, 780 (2d Cir. 2003). Still, 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, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986), and cannot rely on “mere speculation
or conjecture as to the true nature of the
facts to overcome a motion for summary
judgment.” Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v.
Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory
allegations or denials cannot by themselves
create a genuine issue of material fact where
none would otherwise exist.” Hicks v. Baines,
593 F.3d 159, 166 (2d Cir. 2010) (quoting
Fletcher v. Atex, Inc., 68 F.3d 1451, 1456
(2d Cir. 1995) (internal quotation marks and
citations omitted)). Upon cross-motions for
summary judgment, the Court must “in each
case constru[e] the evidence in the light most
favorable to the non-moving party.” Krauss
v. Oxford Health Plans, Inc., 517 F.3d 614,
621-22 (2d Cir. 2008); see also Heublein, Inc.
v. United States, 996 F.2d 1455, 1461 (2d
Cir. 1993).
IV. DISCUSSION
*4 The Complaint appears to allege
the following claims under § 1983: 1)
excessive force; 2) false arrest; 3) malicious
prosecution; 4) unreasonable search and
seizure; 5) violation of the Fourteenth
Amendment right to due process; 6) violation
of the Eighth Amendment; and 7) municipal
liability pursuant to Monell v. Dep't of Social
Servs., 436 U.S. 658, 694-95, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). (Dkt. No. 1). In
addition, the Complaint alleges the following
claims under New York State law: 1) assault
and battery; 2) false imprisonment; 3) abuse
of process; 4) malicious prosecution; and
5) intentional infliction of emotional distress
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(“IIED”). (Id.). Plaintiff requests compensatory
and punitive damages. In his opposition
papers, Plaintiff has withdrawn his excessive
force claim against Sergeant Llukaci, any
failure to intervene claim against Sergeant
Llukaci, and all claims based on the Eighth
Amendment. (Dkt. No. 29, pp. 18, 23).
A. Issue Preclusion
As an initial matter, Plaintiff argues that
Judge Uplinger's findings in the criminal
proceeding, that Officer Szakacs did
not have a reasonable suspicion to stop
and search Plaintiff or probable cause to
arrest him, should preclude Defendants
from arguing to the contrary in defense
of Plaintiff's claims. (Dkt. No. 29, p. 20).
Further, Plaintiff contends that he is entitled
to summary judgment on certain claims
since “[t]here is no genuine issue of fact
as to the unlawful nature of the arrest and
imprisonment pursuant to the decision of
the Honorable Karen Uplinger.” (Id., p. 13).
Defendants respond that “conclusions of
law established during criminal proceedings
have no collateral estoppel effect in
subsequent civil cases against municipal
police departments,” (Dkt. No. 30, pp. 5, 8),
citing the Second Circuit's decision in Jenkins
v. City of New York, 478 F.3d 76, 85 (2d Cir.
2007).
In general, a federal court “must give to a
state-court judgment the same preclusive
effect as would be given that judgment under
the law of the state in which the judgment
was rendered.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81, 104
S.Ct. 892, 79 L.Ed.2d 56 (1984). In Jenkins,
the Second Circuit explained that under
New York law, collateral estoppel has two
essential elements: “First, the identical
issue necessarily must have been decided
in the prior action and be decisive of the
present action, and second, the party to
be precluded from relitigating the issue
must have had a full and fair opportunity
to contest the prior determination.” 478
F.3d at 85 (quoting Juan C. v. Cortines, 89
N.Y.2d 659, 667, 657 N.Y.S.2d 581, 679
N.E.2d 1061 (1997)). Thus, “a nonparty to the
prior litigation may be collaterally estopped
by a determination in that litigation only if
he has ‘a relationship with a party to the
prior litigation such that his own rights or
obligations in the subsequent proceeding
are conditioned in one way or another on,
or derivative of, the rights of the party to the
prior litigation.’ ” Id. (quoting D'Arata v. New
York Cent. Mut. Fire Ins. Co., 76 N.Y.2d
659, 664, 563 N.Y.S.2d 24, 564 N.E.2d
634 (1990)). The Jenkins case addressed a
similar situation to the one presented here:
the plaintiff had been arrested on various
criminal charges, but after a state trial judge
granted the plaintiff's motion to suppress, the
charges were dismissed. Id. at 82-84. The
plaintiff brought claims including false arrest
and malicious prosecution under Section
1983 against the City of New York and the
detectives involved in his arrest. Id. at 81.
The Second Circuit held that it was error for
the district court to give preclusive effect to
the state court's finding that the police did not
have probable cause to arrest the plaintiff;
since the detectives and the City were not
parties to the plaintiff's prior criminal case
and were not in privity with the State of New
York, the party which brought the criminal
charges against the plaintiff, they could
not be precluded from asserting that they
had probable cause to arrest the plaintiff.
Id. at 85-86. Following Jenkins, courts in
this District have repeatedly rejected issue
preclusion of the sort sought by Plaintiff. See,
e.g., Workman v. City of Syracuse, No. 12
Civ. 00382, 2015 WL 300435, at *3, 2015
U.S. Dist. LEXIS 6982, at *8 (N.D.N.Y. Jan.
22, 2015) (“none of the Defendants may
be precluded by the doctrine of collateral
estoppel from litigating any issue decided in
the suppression hearing”); Fowler v. Kingston
City Police Dept., No. 07 Civ. 873, 2009
WL 3064775, at *6, 2009 U.S. Dist. LEXIS
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86541, at *16 (N.D.N.Y. Sept. 22, 2009)
(“Defendants did not have a full and fair
opportunity during Fowler's criminal case
to litigate the issue of whether they had
probable cause to arrest him.”); Williams
v. Schultz, No. 06 Civ. 1104, 2008 WL
4635383, at *4, 2008 U.S. Dist. LEXIS
112729, at *13-14 (N.D.N.Y. Oct. 16, 2008)
(“Defendant is correct that he cannot be
bound by [the state court decision], because
Defendant was not a party to that action and
did not have a full and fair opportunity to
contest the prior determination.”).
*5 Here, Plaintiff's criminal case was brought
by the State of New York, and none of the
Defendants were parties to the criminal
prosecution, nor are they in privity with
the State. (See Dkt. No. 29, pp. 268-74).
Accordingly, since Defendants did not
have a full and fair opportunity during
Plaintiff's criminal case to litigate the issues
of reasonable suspicion and probable
cause, the doctrine of issue preclusion is not
applicable in this case, and the Court will turn
to the merits of Plaintiff's claims.
B. Section 1983 Claims3
3It should be noted that personal
involvement of an individual defendant
“in alleged constitutional deprivations is
a prerequisite to an award of damages
under § 1983.” Provost v. City of
Newburgh, 262 F.3d 146, 154 (2d Cir.
2001) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994)). Based on the
record before the Court, it is not clear what
personal involvement, if any, Defendant
Sergeant Llukaci had in the alleged
constitutional deprivations. However,
aside from the excessive force claim,
Defendants have not moved for summary
judgment on this basis.
1) Excessive Force
Defendants argue that Plaintiff's excessive
force claim against Officer Szakacs must
be dismissed because Officer Szakacs's
actions were objectively reasonable under
the circumstances. (Dkt. No. 25-19, p.
11). The Supreme Court has held that “all
claims that law enforcement officers have
used excessive force—deadly or not—
in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth
Amendment and its ‘reasonableness’
standard.” Graham v. Connor, 490 U.S.
386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989). A determination of reasonableness
under the Fourth Amendment “requires
a careful balancing of the nature and
quality of the intrusion on the individual's
Fourth Amendment interests against the
countervailing governmental interests at
stake.” Id. at 396, 109 S.Ct. 1865 (internal
quotation marks omitted). Thus, an excessive
force claim “is subject to an objective test
of reasonableness under the totality of the
circumstances, which requires consideration
of the specific facts in each case, including
the severity of the crime at issue, whether
the suspect posed an immediate threat to the
safety of others and whether he is actively
resisting arrest.” Sullivan v. Gagnier, 225
F.3d 161, 165 (2d Cir. 2000) (citing Graham,
490 U.S. at 395-96, 109 S.Ct. 1865). “The
‘reasonableness’ of a particular use of force
must be judged from the perspective of
a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396, 109 S.Ct. 1865.
Moreover, “[t]he calculus of reasonableness
must embody allowance for the fact that
police officers are often forced to make split-
second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in
a particular situation.” Id. at 396-97, 109 S.Ct.
1865.
Here, Plaintiff has raised an issue of fact as
to whether Officer Szakacs used excessive
force in striking Plaintiff in the head with his
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gun. Although Defendants have adduced
evidence that Plaintiff refused to comply
with police commands to get on the ground
and then physically struggled with Officer
Szakacs, Plaintiff testified that he complied
with the commands and went down to the
ground, and was on his hands and knees
when Officer Szakacs struck him. (Dkt. No.
25-14, pp. 22, 28, 30, 35). Moreover, it is
undisputed that Plaintiff did not point the BB
gun at Officer Szakacs or make a move to
take it out of his pocket. Accordingly, viewing
the evidence in the light most favorable
to Plaintiff, he has raised a material issue
of fact as to whether he resisted arrest or
presented a threat to Officer Szakacs, and
therefore, whether the force used by Officer
Szakacs was objectively reasonable. See
Brown v. City of New York, 798 F.3d 94, 103
(2d Cir. 2015) (concluding that “a jury will
have to decide whether Fourth Amendment
reasonableness was exceeded” when the
plaintiff was taken to the ground by police
officers); Picciano v. McLoughlin, 723 F.
Supp. 2d 491, 505 (N.D.N.Y. 2010) (denying
summary judgment on excessive force
claim where “admissible record evidence
exists from which a rational factfinder could
conclude that Defendant's application of force
was objectively unreasonable in light of the
facts and circumstances confronting him”).
a. Qualified Immunity
*6 Defendants also argue that even if
Plaintiff could establish a Fourth Amendment
violation, Officer Szakacs is protected by
the doctrine of qualified immunity. (Dkt.
No. 25-19, pp. 12-14). “Qualified immunity
protects public officials from liability for civil
damages when one of two conditions is
satisfied: (a) the defendant's action did not
violate clearly established law, or (b) it was
objectively reasonable for the defendant to
believe that his action did not violate such
law.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir.
2015) (quoting Russo v. City of Bridgeport,
479 F.3d 196, 211 (2d Cir. 2007)); see also
generally Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Defendants bear the burden of establishing
qualified immunity. Vincent v. Yelich, 718
F.3d 157, 166 (2d Cir. 2013) cert. denied sub
nom. Annucci v. Vincent, 574 U.S. 1074, 135
S. Ct. 948, 190 L.Ed.2d 830 (2015).
The Second Circuit has recognized that “[t]he
right of an individual not to be subjected
to excessive force has long been clearly
established.” Calamia v. City of New York,
879 F.2d 1025, 1036 (2d Cir. 1989). As
discussed above, Plaintiff has adduced
evidence that the actions of Officer Szakacs
violated his right to be free from excessive
force. Thus, the relevant inquiry is whether
it was objectively reasonable for Officer
Szakacs to believe that his actions did not
violate that right. Because there are material
issues of fact in dispute regarding whether
Plaintiff complied with police commands,
struggled with Officer Szakacs, or resisted
arrest, the Court cannot conclude that it was
objectively reasonable for Officer Szakacs to
believe that his actions were lawful in striking
Plaintiff after he was already on the ground.
See Stephenson v. Doe, 332 F.3d 68, 77
(2d Cir. 2003) (“[B]ecause there is a factual
dispute regarding whether Barboza's use
of force was objectively unreasonable, the
Court rejects defendant Barboza's claim that
she is entitled to qualified immunity.”); see
also Picciano, 723 F. Supp. 2d at 505 (“[I]t is
impossible to ‘determine whether [Defendant]
reasonably believed that [his] force was not
excessive when several material facts [are]
still in dispute, [and therefore,] summary
judgment on the basis of qualified immunity
[is] precluded.’ ”) (quoting Thomas v. Roach,
165 F.3d 137, 144 (2d Cir. 1999)).
2) False Arrest
Defendants argue that Plaintiff's claim for
false arrest must be dismissed because
there was probable cause to arrest him.
(Dkt. No. 25-19, pp. 17-18). Claims for false
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arrest under Section 1983 are analyzed
under the law of the state in which the
arrest occurred. Jaegly v. Couch, 439 F.3d
149, 151-52 (2d Cir. 2006). The elements
of false arrest under New York law 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.” Ackerson v.
City of White Plains, 702 F.3d 15, 19 (2d
Cir. 2012) (citation omitted). “The existence
of probable cause to arrest constitutes
justification and is a complete defense to
an action for false arrest.” Gonzalez v. City
of Schenectady, 728 F.3d 149, 155 (2d Cir.
2013) (quoting Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996)). Under New York
law, defendants bear the burden of proving
the affirmative defense of probable cause.
Stinson v. City of New York, No. 10 Civ. 4228
(RWS), 2014 WL 4742231, at *8, 2014 U.S.
Dist. LEXIS 133741, at *21 (S.D.N.Y. Sept.
22, 2014).
“An officer has probable cause to arrest
when he or she has 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.” Jaegly, 439 F.3d
at 152 (internal quotations and citation
omitted). The court “must consider [only]
those facts available to the officer at the
time of the arrest and immediately before
it.” Stansbury v. Wertman, 721 F.3d 84,
89 (2d Cir. 2013) (citation omitted). Thus,
“the eventual disposition of the criminal
charges is irrelevant to the probable cause
determination.” Hahn v. County of Otsego,
820 F. Supp. 54, 58 (N.D.N.Y. 1993) aff'd,
52 F.3d 310 (2d Cir. 1995) (citing Pierson v.
Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18
L.Ed.2d 288 (1967)). Moreover, “a claim for
false arrest turns only on whether probable
cause existed to arrest a defendant, and ...
it is not relevant whether probable cause
existed with respect to each individual
charge, or, indeed, any charge actually
invoked by the arresting officer at the time of
arrest.” Jaegly, 439 F.3d at 154.
*7 Here, Defendants first contend that, based
on the facts available at the time of the
arrest, Officer Szakacs had reason to believe
that Plaintiff had committed the offenses of
Obstructing Governmental Administration in
the Second Degree (“OGA”) and Resisting
Arrest because Plaintiff interfered with
Officer Szakacs's investigation by refusing to
comply with orders to get down on the ground
and then struggled with Officer Szakacs in
the course of the arrest. (Dkt. No. 25-19,
pp. 17-18). However, Plaintiff's testimony
directly refutes these facts, as discussed
above. Thus, there is a material issue of
fact regarding whether Officer Szakacs had
probable cause to arrest Plaintiff for OGA and
Resisting Arrest.
Second, Defendants contend that there
was probable cause to arrest Plaintiff based
on the undisputed fact that Plaintiff had
marijuana in his possession. (Dkt. No.
25-19, p. 18). However, the discovery of the
marijuana came after Plaintiff was handcuffed
and under arrest for purposes of the Fourth
Amendment, and thus does not defeat a false
arrest claim. See Edwards v. City of New
York, No. 08 Civ. 2199, 2010 WL 3257667,
at *3, 2010 U.S. Dist. LEXIS 83406, at *7
(E.D.N.Y. Aug. 16, 2010) (“It is undisputed
that marijuana was found on plaintiff when
he was searched at the police station, but
it has not been established that Wright or
any other police officer found marijuana on
plaintiff before he was arrested, which is the
only time period relevant for the purposes
of a false arrest claim.”). Likewise, the later
discovery of an arrest warrant for Plaintiff
does not defeat a false arrest claim, although
it may shorten the period of unprivileged
confinement and thus reduce any damages.
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See Urena v. City of New York, 8 N.Y.S.3d
75, 76, 127 A.D.3d 538 (N.Y. App. Div. 1st
Dept. 2015) (“Since the police were unaware
of the warrant when they arrested plaintiff,
the arrest cannot be found to have been
based on the warrant. We hold that the
privilege to arrest afforded by the warrant
arose when the police learned of its existence
during the warrant check.”); cf. Martinez v.
City of New York, 340 F. App'x 700, 701 (2d
Cir. 2009) (“The officers in this case had
probable cause to arrest and detain plaintiff.
At the time of the arrest, the officers knew of
an outstanding warrant for an individual with
the same name and birth date as plaintiff.”)
(emphasis added).
Accordingly, at this juncture, Defendants
have not met their burden of proving probable
cause to defeat Plaintiff's false arrest claim.4
Furthermore, contrary to Plaintiff's argument
(Dkt. No. 29, pp. 20-21), Judge Uplinger's
finding that Officer Szakacs did not have
probable cause is not entitled to preclusive
effect, as discussed above. Given the same
noted issues of fact, Plaintiff is not entitled to
summary judgment on his false arrest claim.
4Defendants have not provided any
evidence or argument that Officer Szakacs
had probable cause to arrest Plaintiff for
a criminal offense related to the nature of
the 911 call and his observation of what
appeared to be a handgun in Plaintiff's
possession.
a. Qualified Immunity
Defendants also argue that even if probable
cause to arrest was lacking, they are still
entitled to summary judgment on the basis
of qualified immunity. (Dkt. No. 25-19, pp.
18-19). An officer accused of false arrest
is entitled to qualified immunity if he can
establish that he had “arguable probable
cause” to arrest the plaintiff. Garcia, 779 F.3d
at 92. An officer has arguable probable cause
“if either (a) it was objectively reasonable
for the officer to believe that probable
cause existed, or (b) officers of reasonable
competence could disagree on whether
the probable cause test was met.” Id. In
determining whether an officer's conduct was
objectively reasonable, the court considers
“the information possessed by the officer at
the time of the arrest,” but not the officer's
“subjective intent, motives, or beliefs.” Id.
*8 Here, given the key facts informing
probable cause which remain in dispute,
including whether Plaintiff complied with
police commands and went to the ground or
refused, resisted, and struggled with Officer
Szakacs, the Court cannot determine as
a matter of law whether it was objectively
reasonable for Officer Szakacs to believe
that probable cause existed or whether
reasonable officers could disagree on
whether the probable cause test was met.
Accordingly, Defendants are not entitled to
qualified immunity at this time. See Ortiz
v. City of New York, 15 Civ. 2206, 2016
WL 7009059, at *2, 2016 U.S. Dist. LEXIS
165219, at *5 (S.D.N.Y. Nov. 30, 2016) (“the
same disputes of fact that prevent summary
judgment on the false arrest claim prevent a
finding of qualified immunity”); Edwards, 2010
WL 3257667, at *3, 2010 U.S. Dist. LEXIS
83406, at *8 (“A determination as to whether
a reasonable officer could have believed
probable cause existed under the specific
circumstances of this case cannot be made
based on the record currently before the
Court, as there are disputes as to genuine
issues of material fact.”).
3) Malicious Prosecution
To prevail on a claim for malicious
prosecution under § 1983, a plaintiff must
establish a state law claim for malicious
prosecution and also prove that there was a
post-arraignment seizure. Swartz v. Insogna,
704 F.3d 105, 112-13 (2d Cir. 2013). The
elements of malicious prosecution under
New York law are: “(1) commencement of a
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criminal proceeding, (2) favorable termination
of the proceeding, (3) lack of probable cause,
and (4) institution of the proceeding with
actual malice.” Id. Here, Defendants only
challenge elements three and four.
As to probable cause, there are material
issues of fact, and Judge Uplinger's finding
that probable cause was lacking is not
entitled to preclusive effect. As to malice,
“[a] lack of probable cause generally
creates an inference of malice.” Boyd v.
City of New York, 336 F.3d 72, 78 (2d
Cir. 2003). “[M]alice does not have to be
actual spite or hatred, but means only that
the defendant must have commenced
the criminal proceeding due to a wrong or
improper motive, something other than a
desire to see the ends of justice served.”
Lowth v. Town of Cheektowaga, 82 F.3d 563,
573 (2d Cir. 1996) (internal quotations and
citation omitted). “New York courts recognize
that actual malice can rarely be established
through direct evidence and thus may be
proven though circumstantial evidence.”
Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir.
1994).
Defendants argue that “Plaintiff cannot
demonstrate sufficient evidence from which a
reasonable juror could infer that Defendants
acted with any improper motive or reckless
disregard of Plaintiff's rights in arresting
him.” (Dkt. No. 25-19, p. 20). However,
crediting Plaintiff's testimony that Officer
Szakacs arrested him without probable
cause, struck him without reason, and then
filed false charges against him, a reasonable
jury could conclude that Officer Szakacs
acted with actual malice. See Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 131
(2d Cir. 1997) (“In the present case, as
we have just noted, a jury could find that
probable cause for the charges against the
plaintiffs was lacking, and that finding alone
would support an inference of malice.”);
Ahern v. City of Syracuse, 411 F. Supp.
2d 132, 151 (N.D.N.Y. 2006) (“Here, a jury
could infer malice from a lack of probable
cause as to the resisting arrest charge,
which is sufficiently in dispute to survive
summary judgment.”). Moreover, Defendants
are not entitled to qualified immunity on
Plaintiff's malicious prosecution claim, for
the same reasons discussed above with
respect to Plaintiff's false arrest claim. See
Betts v. Shearman, 751 F.3d 78, 83 (2d Cir.
2014) (qualified immunity for false arrest
and malicious prosecution claims turns on
whether arresting officers had “arguable”
probable cause).
4) Unreasonable Search & Seizure
*9 Defendants argue that Plaintiff's
unreasonable search and seizure claim
should be dismissed because Officer
Szakacs had reasonable suspicion to stop
and frisk Plaintiff. (Dkt. No. 25-19, pp. 23-26)
(citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968)). Again, Plaintiff
incorrectly contends that Judge Uplinger's
finding is entitled to preclusive effective
for purposes of this claim. (Dkt. No. 29, p.
23). The Fourth Amendment guarantees
citizens the right to be secure in their persons
against unreasonable seizures. U.S. Const.
Amend. IV. “Its touchstone of reasonableness
imposes limits on the Government's seizure
powers to ‘prevent arbitrary and oppressive
interference by enforcement officials with the
privacy and personal security of individuals.’
” Dancy v. McGinley, 843 F.3d 93, 105-06
(2d Cir. 2016) (quoting United States v.
Martinez–Fuerte, 428 U.S. 543, 554, 96 S.Ct.
3074, 49 L.Ed.2d 1116 (1976)).
Under Terry v. Ohio, “police may briefly
detain an individual for questioning if
they have a reasonable suspicion that
criminal activity is afoot, and may frisk him
if they reasonably believe he is armed and
dangerous.” United States v. Elmore, 482
F.3d 172, 178 (2d Cir. 2007) (citing Terry,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).
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“A Terry stop represents an intermediate
response allowing police to pursue a limited
investigation when they lack the precise
level of information necessary for probable
cause to arrest.” Id. “Police ‘must be able
to point to specific and articulable facts
which, taken together with rational inferences
from those facts, reasonably warrant [the]
intrusion [on a citizen's liberty interest].’ ”
Id. at 178-79 (quoting Terry, 392 U.S. at
21, 88 S.Ct. 1868). “Like probable cause,
reasonable suspicion is determined based
on the totality of the circumstances but ‘the
likelihood of criminal activity need not rise
to the level required for probable cause,
and it falls considerably short of satisfying a
preponderance of the evidence standard.’ ”
Id. at 179 (quoting United States v. Arvizu,
534 U.S. 266, 273-74, 122 S.Ct. 744, 151
L.Ed.2d 740 (2002)). In addition, “where
an officer has a reasonable basis to think
that the person stopped poses a present
physical threat to the officer or others, the
Fourth Amendment permits the officer to
take ‘necessary measures ... to neutralize
the threat’ without converting a reasonable
stop into a de facto arrest.” United States
v. Newton, 369 F.3d 659, 674 (2d Cir.
2004) (quoting Terry, 392 U.S. at 24, 88
S.Ct. 1868); see also Oliveira v. Mayer, 23
F.3d 642, 646 (2d Cir. 1994) (describing
various factors that may transform a Terry
stop into an arrest, including police officers
approaching with guns drawn and ordering
plaintiffs out of their vehicle).
In this case, Officer Szakacs got out of
his marked police car, drew his gun, and
ordered Plaintiff to the ground at gun-point.
Defendants contend that Officer Szakacs's
conduct was reasonable based on the
following facts: 1) a 911 caller had reported
a suspicious black male with a gun in his
30s, approximately 6#1#, heavy-set, wearing
a black jacket and blue jeans; 2) Plaintiff
perfectly matched the description; 3) upon
observing Officer Szakacs's marked police
vehicle arriving on scene, Plaintiff began
to walk away from the two males he was
with; 4) Officer Szakacs recognized the
scene as a high crime area; and 5) Officer
Szakacs observed what appeared to be a
handgun protruding from Plaintiff's pocket.
(Dkt. No. 25-19, pp. 25-26). However, Plaintiff
testified that he did not walk away from
the other two males or walk away when
Officer Szakacs ordered him to the ground.
(Dkt. No. 25-13, p. 25; Dkt. No. 25-14, p.
29). Thus, there is question as to whether
Plaintiff engaged in “evasive conduct,” a
crucial fact in determining whether there was
reasonable suspicion of criminal activity. See
United States v. Muhammad, 463 F.3d 115,
123 (2d Cir. 2006) (“The officers’ personal
observation of Muhammad's evasive conduct
was the additional factor ... that corroborated
the anonymous tip and provided the objective
manifestation that criminal activity was
afoot.”); see also Illinois v. Wardlow, 528
U.S. 119, 119, 120 S.Ct. 673, 145 L.Ed.2d
570 (2000) (“Nervous, evasive behavior
is another pertinent factor in determining
reasonable suspicion.”). Further, Officer
Szakacs did not observe what appeared to
be a gun in Plaintiff's pocket until after he had
ordered Plaintiff to get down on the ground.
(Dkt. No. 25-16, pp. 20-21).
*10 In light of Plaintiff's testimony that he
did not attempt to flee, and the nature of the
stop, Plaintiff has raised a material issue
of fact regarding whether the seizure was
reasonable. Accordingly, neither side is
entitled to summary judgment on this claim.
5) Due Process
In the Complaint, Plaintiff alleges that
Defendants deprived him of his right to
due process of law, citing the Fourteenth
Amendment. (Dkt. No. 1, ¶ 28). Defendants
argue that Plaintiff's due process claim
must be dismissed because Plaintiff “is
simply reiterating his false arrest and
malicious prosecution causes of action by
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alleging he was arrested without probable
cause and deprived of his liberty once
incarcerated.” (Dkt. No. 25-19, p. 27). The
Due Process Clause of the Fourteenth
Amendment states that no state actor
shall “deprive any person of life, liberty, or
property, without due process of law.” U.S.
Const. Amend. XIV. Plaintiff appears to
assert a substantive due process claim, but
without any explanation of the basis, beyond
the allegations pled to support his other
claims.5
5The Due Process Clause of the
Fourteenth Amendment contains both a
procedural component and a substantive
component. Zinermon v. Burch, 494 U.S.
113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100
(1990). The substantive component “bars
certain arbitrary, wrongful government
actions regardless of the fairness of the
procedures used to implement them.” Id.
(internal quotation and citation omitted).
The procedural component bars the
deprivation by government action of a
constitutionally protected interest without
sufficient procedural safeguards, such as
a hearing. Id.
The Supreme Court has held that “if a
constitutional claim is covered by a specific
constitutional provision, such as the Fourth
or Eighth Amendment, the claim must be
analyzed under the standard appropriate
to that specific provision, not under the
rubric of substantive due process.” United
States v. Lanier, 520 U.S. 259, 272 n.7,
117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)
(citing Graham, 490 U.S. at 394, 109 S.Ct.
1865). Since the Fourth Amendment covers
Plaintiff's substantive Section 1983 claims,
his unspecified due process claim must be
dismissed as duplicative.6 See Bulanov v.
Town of Lumberland Constable Meehan,
No. 00 Civ. 4292, 2002 WL 181365, at *6,
2002 U.S. Dist. LEXIS 1715, at *19 (S.D.N.Y.
Feb. 6, 2002) (“Because plaintiff's false arrest
claim is covered by the Fourth Amendment,
a substantive due process claim is both
duplicative and unnecessary and is therefore
dismissed.”); Snow v. Village of Chatham,
84 F. Supp. 2d 322, 327 (N.D.N.Y. 2000)
(dismissing Fourteenth Amendment due
process claim “since the Fourth Amendment,
and not some generalized concept of
substantive due process, provides the
constitutional foundation for false arrest
claims”).
6Moreover, since Plaintiff has failed to
respond to Defendants’ arguments
seeking to dismiss his due process
claim, this claim may also be deemed
abandoned. See Haining Zhang v.
Schlatter, 557 F. App'x 9, 13 (2d Cir.
2014) (deeming claims abandoned where
the “plaintiffs have failed meaningfully to
challenge the dismissal of their claims”);
Brandon v. City of New York, 705 F. Supp.
2d 261, 268 (S.D.N.Y. 2010) (dismissing
claims as abandoned where the plaintiff
“did not raise any arguments opposing
Defendants’ motion regarding these ...
claims”) (citing cases).
6) Municipal Liability
*11 Defendants argue that Plaintiff's
Monell claim against Defendant City of
Syracuse must be dismissed for a variety
of reasons. (Dkt. No. 25-19, pp. 28-31). In
the Complaint, Plaintiff alleges that “[t]he
City of Syracuse and Chief Frank Fowler
failed to promulgate and enforce policies and
procedures and provide for the appropriate
hiring of City Police Officers, and/or the
training and supervision of City Police
Officers in the Use of Force. Further, that by
doing so, they have allowed a pattern and
practice of unreasonable force to be used
against African American Citizens in this
community.” (Dkt. No. 1, ¶ 30).
It is well-established that a municipality may
not be held liable under § 1983 on the basis
of respondeat superior. Monell v. Dep't of
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Social Servs., 436 U.S. 658, 694-95, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather,
municipalities are responsible only for “their
own illegal acts,” Pembaur v. Cincinnati, 475
U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d
452 (1986), and are not vicariously liable
for civil rights violations perpetrated by their
employees. See Monell, 436 U.S. at 691, 98
S.Ct. 2018. In order to sustain a § 1983 claim
for municipal liability, a plaintiff must show
that he suffered a constitutional violation, and
that the violation resulted from an identified
municipal policy or custom. Monell, 436
U.S. at 694-95, 98 S.Ct. 2018. A municipal
policy or custom may be established where
the facts show either: 1) a formal policy,
officially promulgated by the municipality,
id. at 690, 98 S.Ct. 2018; 2) action taken by
the official responsible for establishing policy
with respect to a particular issue, Pembaur,
475 U.S. at 483-84, 106 S.Ct. 1292; 3)
unlawful practices by subordinate officials so
permanent and widespread as to practically
have the force of law, City of St. Louis v.
Praprotnik, 485 U.S. 112, 127-30, 108 S.Ct.
915, 99 L.Ed.2d 107 (1985); or 4) a failure to
train or supervise that amounts to “deliberate
indifference” to the rights of those with whom
the municipality's employees interact. City
of Canton v. Harris, 489 U.S. 378, 388, 109
S.Ct. 1197, 103 L.Ed.2d 412 (1989).
Here, Plaintiff appears to take the fourth
route.7 Thus, Plaintiff must “identify a
specific deficiency” in the training that is
“closely related to the ultimate injury,” such
that it “actually caused” the constitutional
deprivation. Ambrose v. City of New York,
623 F. Supp. 2d 454, 465 (S.D.N.Y. 2009)
(citing City of Canton, 489 U.S. at 391,
109 S.Ct. 1197). To prove “deliberate
indifference” based on inadequate training,
Plaintiff must show: (1) “that a policymaker
knows to a moral certainty that [his or] 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”; and (3) “the wrong
choice by the [municipality] employee will
frequently cause the deprivation of a citizen's
constitutional rights.” Walker v. City of New
York, 974 F.2d 293, 297-98 (2d Cir. 1992)
(internal quotations and citations omitted). “A
pattern of similar constitutional violations by
untrained employees is ordinarily necessary
to demonstrate deliberate indifference for
purposes of failure to train.” Connick v.
Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350,
179 L.Ed.2d 417 (2011). “Without notice
that a course of training is deficient in a
particular respect, decision-makers can
hardly be said to have deliberately chosen a
training program that will cause violations of
constitutional rights.” Id.
7To the extent Plaintiff argues that
Sergeant Llukaci was a policymaker for
purposes of municipal liability, Plaintiff
has failed to adduce any evidence to
support a finding that Sergeant Llukaci
was “responsible for establishing final
government policy.” See Pembaur, 475
U.S. at 483, 106 S.Ct. 1292. Plaintiff also
argues that there is a “pattern and practice
of use of excessive use of force” in the
Syracuse Police Department. (Dkt. No.
29, pp. 24-25, 30). However, Plaintiff has
failed to adduce sufficient evidence for a
reasonable jury to conclude that the use
of excessive force was so “persistent and
widespread ... [and] so permanent and
well settled as to constitute a custom or
usage with the force of law, and thereby
generate municipal liability.” Sorlucco v.
New York City Police Dept., 971 F.2d 864,
870–71 (2d Cir. 1992) (internal quotations
and citation omitted).
*12 Except in very rare cases, a “custom
or policy cannot be shown by pointing to a
single instance of unconstitutional conduct
by a mere employee of the municipality.”
Newton v. City of New York, 566 F. Supp. 2d
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256, 271 (S.D.N.Y. 2008); see also Brogdon
v. City of New Rochelle, 200 F. Supp. 2d 411,
427 (S.D.N.Y. 2002) (“A single incident by
itself is generally insufficient to establish the
affirmative link between the municipal policy
or custom and the alleged unconstitutional
violation.”). A municipality can only be found
to be deliberately indifferent based on a
single constitutional violation where “the
unconstitutional consequences of failing
to train [are] so patently obvious that a
city should be liable under § 1983 without
proof of a pre-existing pattern of violations.”
Connick, 563 U.S. at 64, 131 S.Ct. 1350.
In other words, the municipality must put
their employees in a situation with “an utter
lack of an ability to cope with constitutional
situations.” Id. at 67, 131 S.Ct. 1350.
In this case, Plaintiff has failed to identify a
specific deficiency in the training provided
by Defendant City of Syracuse that is closely
related to the alleged excessive force
used by Officer Szakacs. Rather, Plaintiff
offers only a conclusory theory that “there
is a culture of excessive force use in the
Syracuse City Police Department,” which
“can only be the result of inadequate training
and supervision and a failure to provide
adequate policies.” (Dkt. No. 29, p. 25).
While Plaintiff has submitted a document that
appears to a written policy regarding the “Use
of Physical Force” by the City of Syracuse
Police (Dkt. No. 29, pp. 163-67), Plaintiff
does not point to any deficiency in the policy
itself.8 Moreover, it is undisputed that Officer
Szakacs received training in the use of force.
(See Dkt. No. 25-16, pp. 12, 35).
8Plaintiff appears to argue that Officer
Szakacs's training was deficient because
he should have been instructed, as
the Syracuse Citizen Review Board
recommended in 2015, that the use of an
“impact weapon” such as a handgun to
“intentionally strike a subject's head or
neck is prohibited except where deadly
force is authorized by this policy and
may only be used to confront aggravated
aggressive resistance.” (See Dkt. No. 29,
p. 29, 241). However, Officer Szakacs
testified that he received almost identical
training in the use of deadly force. (Dkt.
No. 25-16, pp. 35-38).
Plaintiff appears to argue that Officer
Szakacs must have received inadequate
training because he testified that deadly force
was appropriate in the incident at issue. (Dkt.
No. 29, p. 26). Plaintiff describes the situation
as one “where there was no crime, no
aggressive behavior by plaintiff either verbal
or physical, no fighting posture, no display of
a weapon and no attempt to escape.” (Id.).
However, Officer Szakacs's testimony related
to his observation of the situation where:
Plaintiff possessed a gun, refused to comply
with orders to get on the ground, turned away
from Officer Szakacs—hiding his hand and
the gun, and then physically struggled with
Officer Szakacs. (Dkt. No. 25-16, pp. 21,
22, 26, 30). Officer Szakacs testified that in
this sort of “deadly physical force scenario,”
he was trained to “do whatever needs to be
done,” up to and including using deadly force.
(Id., pp. 35-38). Thus, this testimony does
not permit a rational finding that there was
a specific deficiency in training by the City
of Syracuse that led to excessive force by
Officer Szakacs.9
9Officer Szakacs's testimony that he would
have been justified in shooting Plaintiff
in a different hypothetical situation (see
Dkt. No. 25-16, p. 38), likewise does not
support a finding that there was a specific
deficiency in training, much less one
closely related to the actual use of force,
i.e., striking Plaintiff on the head with a
gun.
*13 Moreover, Plaintiff has failed to adduce
evidence of a pre-existing pattern of similar
incidents of excessive force. Plaintiff
has submitted several reports from the
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Syracuse Citizen Review Board (“CRB”),
an organization that reviews grievances
involving members of the Syracuse Police
Department. (Dkt. No. 29, pp. 185-257).
Plaintiff only cites one specific incident in
these reports which predates his arrest,
wherein sometime in 2013, a person reported
that a police officer struck him on the head
with a service weapon in the course of an
arrest. (Id., p. 189). According to the report,
the CRB panel “sustained the allegation
of excessive force” and “made specific
disciplinary recommendations to the Chief of
Police.” (Id.). However, this single incident
does not permit a rational finding that the City
of Syracuse was on notice that its training
of police officers in the use of force was
deficient. Nor is this a case where there was
such a glaring failure to train that a custom or
policy can be shown without proof of a pre-
existing pattern of violations. Again, there
is no dispute that Officer Szakacs received
training in the use of force, and under that
training the deadly force he used in striking
Plaintiff on the head was reasonable when
threatened with the same level of force. The
key dispute in this case, as discussed above,
is whether or not Plaintiff presented such a
threat.
Accordingly, viewing the evidence in the light
most favorable to Plaintiff, no reasonable
jury could conclude that a policy or custom
on the part of the City of Syracuse caused
the alleged constitutional violation in this
case, and therefore, Plaintiff's Monell claim
must be dismissed. See Jenkins, 478 F.3d at
95 (“The mere fact that Jenkins was falsely
arrested, without more, does not show that
the City's training program is inadequate. A
training program is not inadequate merely
because a few of its graduates deviate from
what they were taught.”); Green v. City of
New York, 465 F.3d 65, 81 (2d Cir. 2006)
(affirming dismissal of Monell claim where
“a reasonable jury could not find for plaintiffs
on a failure to train theory”); Ahern, 411 F.
Supp. 2d at 145 (granting summary judgment
where the plaintiff “offers no evidence to
demonstrate that the City's training program,
or lack thereof, amounted to a deliberate
indifference to his rights”).
C. New York State Law Claims
1) Assault & Battery
Defendants argue that Plaintiff's state
law assault and battery claim fails for the
same reason as his § 1983 excessive force
claim. (Dkt. No. 25-19, p. 9 n. 1). “[E]xcept
for § 1983’s requirement that the tort be
committed under color of state law, the
essential elements of [excessive force and
state law assault and battery claims are]
substantially identical.” Humphrey v. Landers,
344 F. App'x 686, 688 (2d Cir. 2009) (quoting
Posr v. Doherty, 944 F.2d 91, 94-95 (2d
Cir. 1991)); see also Marcano v. City of
Schenectady, 38 F. Supp. 3d 238, 263
(N.D.N.Y. 2014) (“Essentially, the Fourth
Amendment excessive force standard applies
to assault and battery claims against a police
officer under New York law.”). Accordingly,
since there is an issue of fact as to whether
Officer Szakacs used excessive force,
Plaintiff's state law assault and battery claim
may also proceed.
2) False Imprisonment
Since false imprisonment is “synonymous”
with false arrest under New York law, Liranzo
v. United States, 690 F.3d 78, 91 n.13 (2d
Cir. 2012), Plaintiff's false imprisonment claim
under New York law may proceed for the
same reasons discussed above with respect
to his false arrest claim under Section 1983.
3) Malicious Prosecution
To the extent Plaintiff alleges a separate
state law claim for malicious prosecution,
it may proceed for the same reasons
discussed above with respect to his malicious
prosecution claim under Section 1983. See
Boyd, 336 F.3d at 75 (“The elements of false
arrest and malicious prosecution under §
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1983 are ‘substantially the same’ as the
elements under New York law.”) (citing Hygh
v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992)).
4) Abuse of Process
Defendants argue that Plaintiff's abuse of
process claim must be dismissed because he
“has not identified any evidence supporting
any collateral purpose beyond or in addition
to his criminal prosecution.” (Dkt. No. 25-19,
p. 21) (quotation marks omitted). “In New
York, ‘a malicious abuse-of-process claim
lies against a defendant who (1) employs
regularly issued legal process to compel
performance or forbearance of some act
(2) with intent to do harm without excuse
of justification, and (3) in order to obtain
a collateral objective that is outside the
legitimate ends of the process.’ ” Savino v.
City of New York, 331 F.3d 63, 76 (2d Cir.
2003) (quoting Cook v. Sheldon, 41 F.3d 73,
80 (2d Cir. 1994)). In other words, a plaintiff
must show that the defendant “aimed to
achieve a collateral purpose beyond or in
addition to his criminal prosecution.” Id. at 77.
“The difference between the torts of abuse
of process and malicious prosecution is that
in a malicious prosecution claim the process
is issued in bad faith and without probable
cause, but the defendant intends to bring
about the ordinary result of the process, while
in an abuse of process claim, the issuance of
process may be regular, valid, and lawful, but
the person using the process is interested in
only accomplishing some improper purpose
that is collateral to the object of the process
and which offends the spirit of the legal
proceeding itself.” 14 N.Y. Prac., New York
Law of Torts § 1:86.
*14 Here, in opposing summary judgment on
his abuse of process claim, Plaintiff simply
refers to the arguments made in support of
his malicious prosecution claim, i.e., that
there was no probable cause to arrest. (Dkt.
No. 29, p. 23). However, separate from the
probable cause issue, Plaintiff must adduce
evidence of a collateral objective to sustain
an abuse of process claim. See Savino, 331
F.3d 63, 77. While Plaintiff alleges in the
Complaint that Defendants accused him of
crimes to “to cover up their unlawful arrest
and beating,” (Dkt. No. 1, ¶ 8), he has failed
to adduce evidence from which a reasonable
jury could find a collateral objective beyond
or in addition to his criminal prosecution.
Accordingly, Plaintiff's abuse of process claim
must be dismissed. See Marcano, 38 F.
Supp. 3d at 261 (granting summary judgment
on abuse of process claim where the plaintiff
“has presented no evidence upon which a
reasonable fact finder could conclude that
[the defendants] issued criminal complaints
against Plaintiff to obtain a collateral objective
outside the legitimate ends of the process”);
Crews v. Cnty. of Nassau, No. 06 Civ. 2610,
2007 WL 4591325, at *12, 2007 U.S. Dist.
LEXIS 94597, at *40 (E.D.N.Y. Dec. 27,
2007) (“Because plaintiffs have merely
alleged that defendants were motivated by
their desire to cover up their misdeeds, but
not that defendants had a purpose other than
to prosecute Crews, the abuse of process
claim fails.”).
5) Intentional Infliction of Emotional
Distress
Defendants argue that Plaintiff's claim for
intentional infliction of emotional distress
must be dismissed “since Plaintiff has
already asserted a claim for false arrest
and excessive force based on the same
conduct he complains of as the basis for
his IIED claim.” (Dkt. No. 25-19, pp. 22-23).
Plaintiff has not responded to this argument.
Under New York law, to establish a claim for
intentional infliction of emotional distress,
a plaintiff must show “(1) extreme and
outrageous conduct; (2) intent to cause
severe emotional distress; (3) a causal
connection between the conduct and injury;
and (4) severe emotional distress.” Bender v.
City of New York, 78 F.3d 787, 790 (2d Cir.
1996). Here, the Complaint does not specify
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the basis for Plaintiff's IIED claim, other than
the allegations supporting his other state
law claims. Accordingly, Plaintiff's IIED must
be dismissed because it is duplicative of
Plaintiff's other state law claims, i.e., assault
and battery and false imprisonment, which
encompass the same conduct.10 See Crews
v. Cnty. of Nassau, 996 F. Supp. 2d 186,
214 (E.D.N.Y. 2014) (granting summary
judgment on intentional and negligent
infliction of emotional distress claims where
they encompassed the same conduct as
the plaintiff's claims for assault and battery
and malicious prosecution); Jackson v.
City of New York, 29 F. Supp. 3d 161, 183
(E.D.N.Y. 2014) (“Plaintiff's IIED claim must
be dismissed because it overlaps with his
claims of assault, battery, and false arrest.”).
10	Given Plaintiff's failure to respond to
Defendants’ arguments, his IIED claim
may also be deemed abandoned.
Moreover, the Court need not address
Defendants’ argument that Plaintiff's
failure to plead IIED in his Notice of Claim
is yet another reason to dismiss the claim.
(See Dkt. No. 25-19, p. 22).
D. Punitive Damages
Finally, Defendants argue that Plaintiff's
request for punitive damages should be
dismissed because “there is no possible view
of the conduct of either of these officers that
approached the degree of reprehensibility
necessary to merit an award of punitive
damages.” (Dkt. No. 25-19, p. 32). “Punitive
damages may be awarded when the plaintiff
has shown that defendant's conduct was
motivated by evil motive or intent, or when
it involves callous indifference to federally
protected rights of others.” Picciano, 723
F. Supp. 2d at 506 (internal quotations and
citations omitted). “Generally, the issue of
whether to award punitive damages is an
issue for the jury to decide based on an
evaluation of the plaintiff's proof of sufficiently
serious misconduct.” Id. (internal quotations
and citations omitted). “Where the plaintiff
has provided sufficient evidence to overcome
summary judgment with respect to excessive
force, the Court cannot state as a matter
of law that the [plaintiff] is not entitled to
punitive damages.” Id. (internal quotations
and citation omitted). In this case, material
facts remain in dispute regarding whether
Plaintiff complied with police commands or
resisted arrest and struggled with Officer
Szakacs, and thus whether Officer Szakacs
used reasonable force in striking Plaintiff.
Therefore, the Court denies Defendants’
motion for summary judgment on the issue of
Plaintiff's entitlement to punitive damages.
V. CONCLUSION
*15 For these reasons, it is
ORDERED that Defendants’ motion
for summary judgment (Dkt. No. 25), is
GRANTED in part and DENIED in part; and
it is further
ORDERED that Plaintiff's claims against
Defendants under Section 1983 for
violation of the due process clause of the
Fourteenth Amendment, violation of the
Eighth Amendment, and municipal liability,
and under New York State law for abuse of
process and intentional infliction of emotional
distress are DISMISSED with prejudice; and
it is further
ORDERED that Plaintiff's claims against
Defendant Llukaci under Section 1983 for
excessive force and failure to intervene, and
under New York State law for assault and
battery are DISMISSED with prejudice; and it
is further
ORDERED that Defendants’ motion for
summary judgment (Dkt. No. 25) is otherwise
DENIED; and it is further
ORDERED that Plaintiff's cross-motion for
summary judgment (Dkt. No. 29) is DENIED.
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Woods v. City of Syracuse, Not Reported in Fed. Supp. (2017)
2017 WL 11567919
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18
IT IS SO ORDERED. All Citations
Not Reported in Fed. Supp., 2017 WL
11567919
End of Document © 2026 Thomson Reuters. No claim to original
U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 164 of 177

Woods v. City of Syracuse
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (7)
Title PDF Court Date Type
1. Verified Complaint
Clifford L. WOODS, Jr, Plaintiff, v. CITY OF SYRACUSE,
Chief of Police Frank Fowler in his official capacity, Sgt.
Llukaci and Police Officer Szakacs, Individually and in
their official capacity as Police Officers for the City of
Syracuse; jointly and severally, Defendants.
2015 WL 13528947
— N.D.N.Y. Jan. 09, 2015 Pleading
2. Memoramdum of law in Support of Defendants'
Motion In Limine
Clifford L. WOODS, Jr., Plaintiff, v. CITY OF SYRACUSE,
CHIEF OF POLICE FRANK FOWLER, in his official
capacity, Sgt. Llukaci and Police Officer Szakacs,
Individually and in their official capacity as Police Officers
for the City of Syracuse; jointly and severally, Defendants.
2017 WL 2842466
— N.D.N.Y. May 12, 2017 Motion
3. Reply Memorandum of Law in Further Support of
Defendants' Motion for Summary Judgment and in
Opposition to Plaintiff's Cross-Motion for Summary
Judgment
Clifford WOODS, Jr., Plaintiff, v. CITY OF SYRACUSE,
CHIEF OF POLICE FRANK FOWLER, in his official
capacity, Sgt. Llukaci and Police Officer Szakacs,
Individually and in their official capacity as Police Officers
for the City of Syracuse; jointly and severally, Defendants.
2016 WL 9241679
— N.D.N.Y. May 09, 2016 Motion
4. Memorandum of Law in Opposition to Defendants'
Motion for Summary Judgment and in Support of
Plaintiff's Cross Motion for Summary Judgment
Clifford WOODS, Jr., Plaintiff, v. CITY OF SYRACUSE,
Chief of Police Frank Fowler, in his official capacity, Sgt.
Llukaci and Police Officer Szakacs, Individually and in
their official capacity as Police Officers for the City of
Syracuse; jointly and severally. Defendants.
2016 WL 9241676
— N.D.N.Y. May 02, 2016 Motion
5. 2017 WL 3712509
WOODS v. POLICE OFFICER SZAKACS
2017 WL 3712509
— N.D.N.Y. June 15, 2017 Jury Verdict
6. Judgment in a Civil Case
Clifford L. WOODS, Jr., Plaintiff, v. POLICE OFFICER
SZAKACS, Defendant.
2017 WL 2842328
— N.D.N.Y. June 15, 2017 Jury Verdict
7. Verdict Form
Clifford L. WOODS, JR., Plaintiff, v. POLICE OFFICER
SZAKACS, Defendant.
2017 WL 2842332
— N.D.N.Y. June 15, 2017 Jury Verdict
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 165 of 177

Woods v. City of Syracuse
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (1)
1. Woods v. City of Syracuse
2017 WL 11567919 , N.D.N.Y. , Feb. 01, 2017
Related References (2)
2. Woods v. Szakacs
2017 WL 11567918 , N.D.N.Y. , May 25, 2017
3. Woods v. Szakacs
2017 WL 11567920 , N.D.N.Y. , Aug. 04, 2017
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 166 of 177

Lee v. County of Onondaga, Not Reported in Fed. Supp. (2016)
2016 WL 9441472
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 9441472
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Ronald LEE, Plaintiff,
v.
COUNTY OF ONONDAGA, Onondaga County
Sheriff’s Department Sergeant Kevin Murphy,
individually and in his official capacity, Onondaga
County Sheriff’s Deputy Jayuan Willis, individually and
in his official capacity, and City of Syracuse, Defendants.
5:13–CV–01285–BKS–TWD
|
Signed 08/19/2016
Attorneys and Law Firms
For Plaintiff: Jarrod W. Smith, Esq., Office of Jarrod W.
Smith, 11 South Main Street, P.O. Box 173, Jordan, NY 13080
For Defendant City of Syracuse: Robert P. Stamey, Esq.,
Corporation Counsel of the City of Syracuse, By Aimee M.
Paquette, Esq., 300 City Hall Syracuse, NY 13202
For Defendants County of Onondaga, Onondaga County
Sheriff’s Department Sergeant Kevin Murphy, And
Onondaga County Sheriff’s Deputy Jayuan Willis: Robert A.
Durr, Esq., County Attorney, By Karen A. Bleskoski, Esq.,
10 th Floor Civic Center, 421 Montgomery Street, Syracuse,
NY 13202
MEMORANDUM–DECISION AND ORDER
Brenda K. Sannes, U.S. District Judge
I. INTRODUCTION
*1 Plaintiff Ronald Lee brings this action against
Defendants under 42 U.S.C. §§ 1983, 1988 and New York
State law asserting claims arising out of an incident involving
the alleged use of excessive force against him by law
enforcement officials on October 18, 2012. (Dkt. No. 1).
Defendant City of Syracuse moves for summary judgment
on all claims against it. 1 (Dkt. No. 76). Defendants County
of Onondaga, Onondaga County Sheriff’s Department
Sergeant Kevin Murphy (“Sergeant Murphy”), and Onondaga
County Sheriff’s Deputy Jayuan Willis (“Deputy Willis”)
(collectively the “County Defendants”) separately move for
summary judgment on all claims against them. (Dkt. No. 78).
Plaintiff opposes both motions. (Dkt. Nos. 89–93). For the
reasons that follow, Defendant City of Syracuse’s motion is
granted, and the County Defendants’ motion is granted in part
and denied in part.
1 Plaintiff originally named as an individual
defendant Syracuse Police Officer Mamoun
Abraham, however, the parties subsequently
stipulated to dismiss Officer Abraham from this
action. (Dkt. Nos. 74–75).
II. BACKGROUND 2
2 The facts stated herein are drawn from the
parties’ submissions, including Defendant City
of Syracuse’s Statement of Material Facts, Dkt.
No. 76–16; the County Defendants’ Statement of
Material Facts, Dkt. No. 78–4; Plaintiff’s Response
to Defendants’ Statements of Facts, Dkt. No. 91;
Plaintiff’s deposition testimony, Dkt. No. 76–10;
Plaintiff’s Affidavit, Dkt. No. 90; and the exhibits
the parties have submitted, to the extent that they
are admissible as evidence. Where facts stated in a
party’s L.R. 7.1(a)(3) Statement are supported by
testimonial or documentary evidence, and denied
with only a conclusory statement by the other party,
the Court has found such facts to be true. See
N.D.N.Y. L.R. 7.1(a)(3); Fed. R. Civ. P. 56(e).
On October 18, 2012, Syracuse Police Officers Mamoum
Abraham and Seth Baker responded to a reported domestic
dispute at 311 West Newell Street in Syracuse, New York.
(Dkt. No. 76–16, ¶¶ 1–2; Dkt. No. 78–4, ¶ 1). Upon
detaining Plaintiff, Officer Abraham detected an odor of
alcohol on Plaintiff’s breath and observed that Plaintiff
seemed somewhat incoherent. (Dkt. No. 78–4, ¶ 1). Plaintiff
testified that, earlier in the day, he drank “a few shots or two
of cognac,” and took Xanax prescribed to his girlfriend. (Dkt.
No. 76–10, pp. 16–17, 126). After questioning the girlfriend,
who had called 911, and learning that she had a temporary
order of protection against Plaintiff, Officer Abraham arrested
Plaintiff for Criminal Contempt in the First Degree and
Harassment in the Second Degree. (Dkt. No. 76–16, ¶¶ 1–3,
7; Dkt. No. 78–4, ¶ 2).
Thereafter, Plaintiff was handcuffed and transported to the
Onondaga County Justice Center to be booked and processed.
(Dkt. No. 76–16, ¶ 8; Dkt. No. 78–4, ¶ 2). Plaintiff was
in an agitated state when he arrived at the Justice Center,
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and Sergeant Murphy and Deputy Willis responded to the
garage area to assist in bringing Plaintiff into booking. (Dkt.
No. 78–4, ¶¶ 4–5). The officers spoke with Plaintiff, and
he voluntarily got out of Officer Abraham’s vehicle. (Id.).
At this point, events in the garage area were captured by a
video camera, and the video recording has been submitted to
the Court. (See Dkt. No. 79, referring to DVD as “Exhibit
P” in Dkt. No. 78) (hereafter the “Video”). Deputy Willis
and Sergeant Murphy attempted to escort Plaintiff, who still
had his hands cuffed behind his back, into booking. (Video;
Dkt. No. 78–4, ¶ 6). Almost immediately, Plaintiff began
struggling with the officers and shouting at them. (Video).
As a result, Deputy Willis used an “arm bar” to restrain
Plaintiff’s left arm and Sergeant Murphy did the same to
restrain Plaintiff’s right arm. (Id.). They continued to escort
Plaintiff into booking, and Plaintiff continued to resist. (Id.).
*2 Once inside the door to booking, Plaintiff is no longer
visible on camera. (Video). According to Sergeant Murphy
and Deputy Willis, Plaintiff struggled and resisted inside the
booking area. (Dkt. No. 78–16, p. 33; Dkt. No. 78–18, p. 31).
Sergeant Murphy testified that he ordered Deputy Willis to
“take [Plaintiff] down,” and then Plaintiff lunged forward.
(Dkt. No. 78–16, p. 35; see also Dkt. No. 78–18, p. 31). As a
result, all three men fell down. (Dkt. No. 78–16, p. 42). The
audio portion of the video recording indicates that the incident
escalated inside the booking area, as increasing shouts and
scuffling sounds are heard. (Video). Plaintiff denies resisting
or lunging and testified that Sergeant Murphy and Deputy
Willis were “trying to hurt” him: “they pick me up, I believe
by my waistband and slam me face first into the concrete,
in handcuffs and two full arm bars.” (Dkt. No. 76–10, pp.
42–43). Plaintiff further states in his affidavit that: “I am not
the one that threw myself on the floor at the Justice Center.
I was aggressively, without notice, and with no aggression
on my part injured by the Defendant Onondaga County
Sheriffs.” (Dkt. No. 90, ¶ 9).
Plaintiff testified that after being slammed to the ground,
he was “in and out of consciousness.” (Dkt. No. 76–10,
p. 43). The officers noticed that Plaintiff had swelling and
bleeding from above his left eye and summoned a nurse.
(Dkt. No. 78–4, ¶ 9). The nurse observed Plaintiff and ordered
that he be sent to the emergency room. (Dkt. No. 76–16,
¶ 13, Dkt. No. 78–4, ¶ 10). Sergeant Murphy and Deputy
Willis then escorted Plaintiff back to the garage area to
await transport to the hospital. (Dkt. No. 78–4, ¶ 10; Video).
Plaintiff was returned to the custody of the Syracuse Police,
who transported him to the hospital. (Dkt. No. 76–16, ¶ 14;
Dkt. No. 78–4, ¶ 12). Plaintiff claims that he was unconscious
during this trip. (Dkt. No. 76–16, ¶ 16). However, Plaintiff
states in his affidavit that, on the way to the hospital, at least
one unidentified member of the Syracuse Police Department
struck his back area with a baton which caused a “lumbar
spine injury.” (Dkt. No. 90, ¶ 10).
Plaintiff was treated at the hospital and returned to the Justice
Center. (Dkt. No. 76–16, ¶ 17). Plaintiff’s medical records
from October 18, 2012 show that he received six sutures for
a two-centimeter laceration to his face. (Dkt. No. 76–4, pp.
19–20). Plaintiff’s records indicate that other than injuries to
his face, “he has not sustained any other significant injuries
during the altercation.” (Dkt. No. 76–16, ¶ 19; Dkt. No. 76–4,
p. 18). Plaintiff claims that he also suffered “severe bruising
and baton marks on my back, and knee, eye, contusion of left
eye, and severely blackened eye, ... a kidney injury resulting
[in] blood in my urine for proximally [sic] four to five days, ...
a concussion, neurological damage resulting in continuing
headaches, blurred vision, disorientation, and psychological
injuries.” (Dkt. No. 90, ¶ 11). Plaintiff was released from
law enforcement custody on October 22, 2012 (Dkt. No.
76–4, p. 8), and on October 27th, Plaintiff returned to the
hospital complaining of headaches and memory loss, and he
was diagnosed with a possible concussion. (Dkt. No. 90–9).
Plaintiff subsequently pled guilty to Criminal Contempt in
the Second Degree as a result of his October 18, 2012 arrest.
(Dkt. No. 76–16, ¶ 24). Both Sergeant Murphy and Deputy
Willis completed use of force reports regarding the incident
and were cleared by the Onondaga County Sheriff’s Office
Custody Department Use of Force Committee. (Dkt. No. 78–
4, ¶ 13). Deputy Willis has participated in regular training
involving the use of force. (Id., ¶ 14). Sergeant Murphy
testified that the Onondaga County Sheriff’s Department has
yearly training on the use of force. (Dkt. No. 78–16, pp. 12–
13). He testified that the official “use of force policy” was not
handed out at training and he could not recall the last time he
reviewed it, but that he had received the use of force policy
and followed it. (Id., pp. 22–23).
III. STANDARD OF REVIEW
*3 Under Federal Rule of Civil Procedure 56(a), summary
judgment may be granted only if all the submissions taken
together “show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). The moving party bears the initial
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burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material”
if it “might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of
New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
The movant may meet this burden by showing that the
nonmoving party has “fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y.
Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary
judgment appropriate where the non-moving party fails to
“come forth with evidence sufficient to permit a reasonable
juror to return a verdict in his or her favor on an essential
element of a claim”) (internal quotation marks omitted).
If the moving party meets this burden, the nonmoving party
must “set out specific facts showing a genuine issue for trial.”
Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at
323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
“When ruling on a summary judgment motion, the district
court must construe the facts in the light most favorable to
the nonmoving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.” Dallas
Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d
Cir. 2003). Still, 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), and cannot rely
on “mere speculation or conjecture as to the true nature of
the facts to overcome a motion for summary judgment.”
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)
(quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840
(2d Cir. 1985)). Furthermore, “[m]ere conclusory allegations
or denials cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher
v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (internal
quotation marks and citations omitted)).
IV. DISCUSSION
The Complaint alleges the following claims under § 1983:
1) excessive force against all Defendants; and 2) municipal
liability against the City of Syracuse and Onondaga County.
(Dkt. No. 1). In addition, the Complaint alleges the following
claims under New York State law: 1) assault and battery
against Defendants Sergeant Murphy and Deputy Willis;
2) intentional and negligent infliction of emotional distress
against all Defendants; 3) negligence against all Defendants;
4) negligent hiring, screening, retention, supervision, and
training against the City of Syracuse and Onondaga County;
and 5) respondeat superior liability against the City of
Syracuse and Onondaga County. (Id.).
A. Section 1983 Claims 3
3 Plaintiff’s federal civil rights claims are properly
brought under Section 1983 and not Section 1988
since “Section 1988 does not create an independent
federal cause of action.” Redcross v. Rensselaer
Cnty., 511 F. Supp. 364, 374 (N.D.N.Y. 1981)
(citing Moor v. Alameda Cnty., 411 U.S. 693
(1973)).
1) Excessive Force
The County Defendants argue that Sergeant Murphy and
Deputy Willis did not use excessive force against Plaintiff on
October 18, 2012:
The amount of force used
was reasonable in light of the
circumstances facing the deputies at
the time of the attempted detention.
Plaintiff clearly posed a risk to himself
and others, and continued his attempts
to break free from the deputies. All
actions taken by the deputies were in
response to Plaintiff’s actions and only
taken in an effort to remediate the
threat he posed to himself and others,
and to gain control of the situation.
*4 (Dkt. No. 78–26, p. 15). In response, Plaintiff contends
that the evidence shows that Sergeant Murphy and Deputy
Willis used excessive force and violated his constitutional
rights when they “took him to the ground for no apparent
reason.” (Dkt. No. 93, p. 10).
The Supreme Court has held that “all claims that law
enforcement officers have used excessive force—deadly
or not—in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed
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under the Fourth Amendment and its ‘reasonableness’
standard.” Graham v. Connor, 490 U.S. 386, 395 (1989).
Thus, the Court will analyze Plaintiff’s excessive force
claim under the Fourth Amendment, not the Fourteenth
Amendment. 4 A determination of reasonableness under
the Fourth Amendment “requires a careful balancing of
the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. at 396 (internal quotation
marks omitted). Thus, an excessive force claim “is subject to
an objective test of reasonableness under the totality of the
circumstances, which requires consideration of the specific
facts in each case, including the severity of the crime at
issue, whether the suspect posed an immediate threat to the
safety of others and whether he is actively resisting arrest.”
Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000) (citing
Graham, 490 U.S. at 395–396). “The ‘reasonableness’ of a
particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396. Moreover,
“[t]he calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” Id. at 396–97.
4 Plaintiff alleges violations of his constitutional
rights under the First, Fourth, Fifth, and Fourteenth
Amendments. (Dkt. No. 1, ¶ 1). However, to the
extent Plaintiff alleges claims under the First, Fifth,
and Fourteenth Amendments, such claims must fail
because Plaintiff has not adduced any supporting
evidence and has not responded to the County
Defendants’ arguments seeking their dismissal.
(See Dkt. No. 78–26, p. 26).
Here, Plaintiff has raised an issue of fact as to whether
Defendants Sergeant Murphy and Deputy Willis used
excessive force in taking him to the ground. Although
Defendants testified that Plaintiff struggled and resisted as
they escorted him into booking and then lunged forward,
taking them all to the ground, Plaintiff testified that he did
not struggle, resist, or lunge, but that Defendants picked
him up and slammed him face-first into the concrete floor
for no reason. Moreover, there is no dispute that Plaintiff
was handcuffed at the time. Finally, the video recording
did not capture the alleged use of force so as to clarify
the disputed facts. Accordingly, viewing the evidence in
the light most favorable to Plaintiff, a rational factfinder
could conclude that the force used by Sergeant Murphy and
Deputy Willis was not objectively reasonable. See Brown
v. City of New York, 798 F.3d 94, 103 (2d Cir. 2015)
(concluding that “a jury will have to decide whether Fourth
Amendment reasonableness was exceeded” when the plaintiff
was taken to the ground by police officers); Picciano v.
McLoughlin, 723 F. Supp. 2d 491, 505 (N.D.N.Y. 2010)
(denying summary judgment on excessive force claim where
“admissible record evidence exists from which a rational
factfinder could conclude that Defendant’s application of
force was objectively unreasonable in light of the facts and
circumstances confronting him”).
*5 The County Defendants also argue that, even if Plaintiff
could establish a Fourth Amendment violation, Sergeant
Murphy and Deputy Willis are protected by the doctrine of
qualified immunity because it would not have been clear to
them that their actions were unconstitutional. (Dkt. No. 78–
6, pp. 17–20). “Qualified immunity protects public officials
from liability for civil damages when one of two conditions
is satisfied: (a) the defendant’s action did not violate clearly
established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such law.”
Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo
v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007));
see also generally Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Defendants bear the burden of establishing qualified
immunity. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013)
cert. denied sub nom. Annucci v. Vincent, ––– U.S. ––––, 135
S. Ct. 948 (2015).
The Second Circuit has recognized that “[t]he right of an
individual not to be subjected to excessive force has long
been clearly established.” Calamia v. City of New York, 879
F.2d 1025, 1036 (2d Cir. 1989). As discussed above, Plaintiff
has adduced evidence that the actions of Sergeant Murphy
and Deputy Will violated his right to be free from excessive
force. Thus, the relevant inquiry is whether it was objectively
reasonable for the officers to believe that their actions did
not violate that right. Considering the evidence in the light
most favorable to Plaintiff, and crediting his testimony that
he did not resist, struggle, or lunge during the incident, the
Court cannot conclude that it was objectively reasonable for
Sergeant Murphy and Deputy Willis to believe that their
actions were lawful. See Stephenson v. Doe, 332 F.3d 68, 77
(2d Cir. 2003) (“[B]ecause there is a factual dispute regarding
whether Barboza’s use of force was objectively unreasonable,
the Court rejects defendant Barboza’s claim that she is entitled
to qualified immunity.”); see also Picciano, 723 F. Supp. 2d
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at 505 (“[I]t is impossible to ‘determine whether [Defendant]
reasonably believed that [his] force was not excessive when
several material facts [are] still in dispute, [and therefore,]
summary judgment on the basis of qualified immunity [is]
precluded.’ ”) (quoting Thomas v. Roach, 165 F.3d 137, 144
(2d Cir. 1999)).
Finally, the City of Syracuse argues that Plaintiff’s excessive
force claim should be dismissed because he has failed to
show personal involvement of any Syracuse Police Officer.
(Dkt. No. 76–17, p. 12). Personal involvement of an
individual defendant “in alleged constitutional deprivations
is a prerequisite to an award of damages under § 1983.”
Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001)
(quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Here, the only Syracuse Police Officer named as a defendant,
Officer Abraham, was previously dismissed from the case. 5
(Dkt. Nos.74–75). Plaintiff now speculates that an “Officer
Harrington” hit him with a baton in the back when he was
transported to the hospital on October 18, 2012. (Dkt. No. 93,
p. 14). However, Plaintiff never identified Officer Harrington
during discovery or amended the Complaint to add this
individual as a defendant. 6 Therefore, Plaintiff’s excessive
force claim must be dismissed. See Mendoza v. McGinnis, No.
9:05 Civ. 1124(TJM/DEP), 2008 WL 4239760, at *4 n.12,
2008 U.S. Dist. LEXIS 110057, at *14 n.12 (N.D.N.Y. Sept.
11, 2008) (“Plaintiff cannot properly now, at the summary
judgment stage, interject additional legal arguments or new
defendants into the action.”).
5 It is undisputed that Officer Abraham did not use
any force against Plaintiff. (Dkt. No. 76–16, ¶ 23).
6 Officer Abraham testified at his October 14, 2014
deposition that Officer Harrington drove Plaintiff
to the hospital on October 18, 2012. (Dkt. No. 76–
12, pp. 49–50). Thus, Plaintiff had ample time to
amend the Complaint.
2) Municipal Liability
*6 The Onondaga County Defendants argue that,
“[a]ssuming arguendo that a constitutional deprivation
existed, Plaintiff would then be required to establish a causal
link between the injury and a municipal policy,” and “Plaintiff
cannot establish any facts to support such a link.” (Dkt. No.
78–26, p. 7). In response, Plaintiff contends that there is
evidence that Onondaga County “failed to train its employees
and displayed a deliberate indifference to the constitutional
rights of the Plaintiff by failing to train Sgt. Murphy and
Deputy Willis.” (Dkt. No. 93, p. 9). Plaintiff further argues
that “their lack of training is causally related to the injuries
that Plaintiff suffered do [sic] to them failing to abide by
the use of force policy that is provided to them through the
Onondaga County Sheriff’s Department.” (Id.).
It is well-established that a municipality may not be held
liable under § 1983 on the basis of respondeat superior.
Monell v. Dep’t of Social Servs., 436 U.S. 658, 694–95
(1978). Rather, municipalities are responsible only for “their
own illegal acts,” Pembaur v. Cincinnati, 475 U.S. 469,
479 (1986), and are not vicariously liable for civil rights
violations perpetrated by their employees. See Monell, 436
U.S. at 691. In order to sustain a § 1983 claim for municipal
liability, a plaintiff must show that he suffered a constitutional
violation, and that the violation resulted from an identified
municipal policy or custom. Monell, 436 U.S. at 694–695.
A municipal policy or custom may be established where the
facts show either: 1) a formal policy, officially promulgated
by the municipality, id. at 690; 2) action taken by the official
responsible for establishing policy with respect to a particular
issue, Pembaur, 475 U.S. at 483–84; 3) unlawful practices
by subordinate officials so permanent and widespread as
to practically have the force of law, City of St. Louis v.
Praprotnik, 485 U.S. 112, 127–30 (1985); or 4) a failure to
train or supervise that amounts to “deliberate indifference” to
the rights of those with whom the municipality’s employees
interact. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
Here, Plaintiff has elected the fourth route. Thus, Plaintiff
must “identify a specific deficiency” in the training that is
“closely related to the ultimate injury,” such that it “actually
caused” the constitutional deprivation. Ambrose v. City of
New York, 623 F. Supp. 2d 454, 465 (S.D.N.Y. 2009) (citing
City of Canton, 489 U.S. at 391). In order for a specific
deficiency to constitute deliberate indifference, Plaintiff must
show: “(1) a policymaker knows to a moral certainty that
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
rights.” City of Canton, 489 U.S. at 390. A similar pattern
of misconduct resulting from allegedly inadequate training
is also “ordinarily necessary to demonstrate deliberate
indifference for purposes of failure to train.” Connick v.
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Thompson, 563 U.S. 51, 62 (2011). “Without notice that a
course of training is deficient in a particular respect, decision-
makers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional
rights.” Id.
Except in very rare cases, a “custom or policy cannot be
shown by pointing to a single instance of unconstitutional
conduct by a mere employee of the municipality.” Newton
v. City of New York, 566 F. Supp. 2d 256, 271 (S.D.N.Y.
2008); see also Brogdon v. City of New Rochelle, 200 F.
Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by
itself is generally insufficient to establish the affirmative
link between the municipal policy or custom and the
alleged unconstitutional violation.”). A municipality can
only be found to be deliberately indifferent based on a
single constitutional violation where “the unconstitutional
consequences of failing to train [are] so patently obvious
that a city should be liable under § 1983 without proof of a
pre-existing pattern of violations.” Connick, 563 U.S. at 64.
In other words, the municipality must put their employees
in a situation with “an utter lack of an ability to cope with
constitutional situations.” Id. at 67.
*7 In this case, Plaintiff has failed to identify a specific
deficiency in the training provided by Onondaga County
that is closely related to the alleged excessive force used by
Sergeant Murphy and Deputy Willis. Rather, Plaintiff asserts
that “considering Sgt. Murphy had not reviewed the use of
force policy for some time and could not remember per his
deposition testimony, it is established that the municipality
failed to train its employees and displayed a deliberate
indifference to the constitutional rights of Plaintiff by failing
to train Sgt. Murphy and Deputy Willis.” (Dkt. No. 93, p.
9). However, there is no dispute that Sergeant Murphy and
Deputy Willis received regular training on the use of force.
(Dkt. No. 78–4, ¶ 14; Dkt. No. 78–16, pp. 12–13). While
Sergeant Murphy testified that the use of force policy was not
handed out during training, and that he could not recall the
last time he had reviewed it, he also testified that he had in
fact received the use of force policy and followed it. (Dkt.
No. 78–16, pp. 22–23). Plaintiff has submitted a copy of the
Onondaga County Sheriff’s Office “Written Directive” on
use of force (Dkt. No. 90–16), but Plaintiff does not point
to any deficiency in the policy itself. Thus, Plaintiff’s only
evidence of inadequate training is that Onondaga County did
not distribute the use of force policy during training. This
fact alone is insufficient to permit a rational finding that there
was a specific deficiency in training by Onondaga County
that led to excessive force by Sergeant Murphy and Deputy
Willis. Moreover, Plaintiff has failed to adduce evidence of a
similar pattern of excessive force resulting from inadequate
training. Nor is this a case where there was such a glaring
failure to train that a custom or policy can be shown by
evidence of a single incident. Again, there is no dispute that
Sergeant Murphy and Deputy Willis received training on the
use of force and that Sergeant Murphy received the use of
force policy. Accordingly, viewing the evidence in the light
most favorable to Plaintiff, a rational factfinder could not
conclude that a policy or custom on the part of Onondaga
County caused the alleged constitutional violation in this case,
and therefore, Plaintiff’s Monell claim must be dismissed.
See Jenkins v. City of New York, 478 F.3d 76, 95 (2d Cir.
2007) (“The mere fact that Jenkins was falsely arrested,
without more, does not show that the City’s training program
is inadequate. A training program is not inadequate merely
because a few of its graduates deviate from what they were
taught.”); Green v. City of New York, 465 F.3d 65, 81 (2d
Cir. 2006) (affirming dismissal of Monell claim where “a
reasonable jury could not find for plaintiffs on a failure to
train theory”); Ahern v. City of Syracuse, 411 F. Supp. 2d 132,
145 (N.D.N.Y. 2006) (granting summary judgment where the
plaintiff “offers no evidence to demonstrate that the City’s
training program, or lack thereof, amounted to a deliberate
indifference to his rights”).
Defendant City of Syracuse further argues that Plaintiff’s
Monell claim must fail because it is derivative of his claims
against Officer Abraham, who has been dismissed as a
defendant. (Dkt. No. 76–17, p. 20). It is well-established
that absent an underlying constitutional violation, there can
be no claim for municipal liability. See Monell, 446 U.S.
at 694–695. Accordingly, Plaintiff’s claim for municipal
liability must be dismissed since there is no evidence of a
constitutional violation by an individual defendant employed
by the City of Syracuse. 7 See Segal v. City of New York,
459 F.3d 207, 219 (2d Cir. 2006) (“Monell does not provide
a separate cause of action for the failure by the government
to train its employees; it extends liability to a municipal
organization where that organization’s failure to train, or
the policies or customs that it has sanctioned, led to an
independent constitutional violation.”); Curley v. Vill. of
Suffern, 268 F.3d 65, 71 (2d Cir. 2001) (“we have recognized
that a municipality cannot be liable for inadequate training or
supervision when the officers involved in making an arrest
did not violate the plaintiff’s constitutional rights”).
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7 Moreover, even if Plaintiff could make out a Monell
claim without alleging a constitutional violation by
an individual defendant, Plaintiff’s claim against
the City of Syracuse would fail for the same reason
as his claim against Onondaga County – Plaintiff
has failed to identify a specific deficiency in the
City of Syracuse’s training, much less one closely
related to his alleged injuries.
B. New York State Law Claims
1) Assault & Battery
The Onondaga County Defendants argue that Plaintiff’s state
law assault and battery claim against Sergeant Murphy and
Deputy Willis fails for the same reason as his § 1983 excessive
force claim. (Dkt. No. 78–26, pp. 10–16). “[E]xcept for §
1983’s requirement that the tort be committed under color of
state law, the essential elements of [excessive force and state
law assault and battery claims are] substantially identical.”
Humphrey v. Landers, 344 Fed.Appx. 686, 688 (2d Cir. 2009)
(quoting Posr v. Doherty, 944 F.2d 91, 94–95 (2d Cir. 1991));
see also Marcano v. City of Schenectady, 38 F. Supp. 3d 238,
263 (N.D.N.Y. 2014) (“Essentially, the Fourth Amendment
excessive force standard applies to assault and battery claims
against a police officer under New York law.”). Accordingly,
since there is an issue of fact as to whether Defendants
Sergeant Murphy and Deputy Willis used excessive force,
Plaintiff’s state law assault and battery claim may also
proceed.
2) Intentional and Negligent
Infliction of Emotional Distress
Under New York law, to established a claim for intentional
infliction of emotional distress, a plaintiff must show “(1)
extreme and outrageous conduct; (2) intent to cause severe
emotional distress; (3) a causal connection between the
conduct and injury; and (4) severe emotional distress.”
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.
1996). Negligent infliction of emotional distress, on the other
hand, requires a showing of: “(1) breach of a duty owed
to plaintiff, which breach either unreasonably endangered
plaintiff’s physical safety or caused plaintiff to fear for his
physical safety; (2) extreme and outrageous conduct; (3) a
causal connection between the conduct and the injury; and (4)
severe emotional distress.” Shearon v. Comfort Tech Mech.
Co., 936 F. Supp. 2d 143, 156 (E.D.N.Y. 2013).
*8 As an initial matter, the City of Syracuse and the
County Defendants accurately point out that claims against
a governmental entity for intentional infliction of emotional
distress are barred by public policy. (Dkt. No. 76–17, p. 25;
Dkt. No. 78–26, p. 21). See Green v. City of Mt. Vernon,
96 F. Supp. 3d 263, 299–300 (S.D.N.Y. 2015); Fera v.
City of Albany, 568 F. Supp. 2d 248, 260 (N.D.N.Y. 2008).
Moreover, Plaintiff’s claims against Defendants Sergeant
Murphy and Deputy Willis for intentional and negligent
infliction of emotional distress must be dismissed because
they are duplicative of Plaintiff’s state law claim for assault
and battery, which encompasses the very same conduct.
See Crews v. Cnty. of Nassau, 996 F. Supp. 2d 186, 214
(E.D.N.Y. 2014) (granting summary judgment on intentional
and negligent infliction of emotional distress claim where
they encompassed the same conduct as the plaintiff’s claims
for assault and battery and malicious prosecution); Jackson
v. City of New York, 29 F. Supp. 3d 161, 183 (E.D.N.Y.
2014) (“Plaintiff’s IIED claim must be dismissed because
it overlaps with his claims of assault, battery, and false
arrest.”). Likewise, Plaintiff’s claim for negligent infliction of
emotional distress against the City of Syracuse and Onondaga
County must be dismissed as duplicative because Plaintiff has
failed to identify any alleged negligence by these Defendants
not encompassed by his state law claim for negligent hiring,
training, supervision, and retention. 8
8 Moreover, since Plaintiff has failed to respond
to Defendants’ arguments seeking to dismiss his
intentional and negligent infliction of emotional
distress claims against the City of Syracuse
and Onondaga County, these claims may be
properly deemed abandoned. See Haining Zhang
v. Schlatter, 557 Fed.Appx. 9, 13 (2d Cir. 2014)
(deeming claims abandoned where the “plaintiffs
have failed meaningfully to challenge the dismissal
of their claims”); Brandon v. City of New York, 705
F. Supp. 2d 261, 268 (S.D.N.Y. 2010) (dismissing
claims as abandoned where the plaintiff “did not
raise any arguments opposing Defendants’ motion
regarding these ... claims”) (citing cases).
3) Negligence
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Defendants argue that Plaintiff’s negligence claim must
fail because it is based on allegedly intentional conduct.
(Dkt. No. 76–17, p. 27; Dkt. No. 78, p. 24). Plaintiff has
not responded to this argument, and therefore, his claim
may be deemed abandoned. Moreover, at all times Plaintiff
has alleged that Sergeant Murphy and Deputy Willis acted
intentionally, i.e. he testified that they were trying to hurt
him. (Dkt. No. 76–10, pp. 42–43). There is no dispute that
Sergeant Murphy and Deputy Willis intended to take Plaintiff
down to the ground. Therefore, Plaintiff’s negligence claim
must be dismissed for this alternative reason as well. 9 See
Naccarato v. Scarselli, 124 F. Supp. 2d 36, 45 (N.D.N.Y.
2000) (“When a plaintiff brings excessive force and assault
claims which are premised upon a defendant’s allegedly
intentional conduct, a negligence claim with respect to the
same conduct will not lie.”); Hansel v. Sheridan, 991 F.
Supp. 69, 76 (N.D.N.Y. 1998) (“Because plaintiff has brought
excessive force and assault and battery claims addressing
defendants allegedly unlawful use of force, the negligence
claim must be dismissed.”); Mazzaferro v. Albany Motel
Enters., Inc., 515 N.Y.S.2d 631, 632–33 (N.Y. App. Div.
3d Dept. 1987) (“New York has adopted the prevailing
modern view that, once intentional offensive contact has been
established, the actor is liable for assault and not negligence,
even when the physical injuries may have been inflicted
inadvertently.”).
9 To the extent Plaintiff alleges a negligence claim
against the City of Syracuse and Onondaga County,
such a claim must be dismissed as duplicative of
his state law claim for negligent hiring, training,
supervision, and retention. See Bouche v. City of
Mt. Vernon, No. 11 Civ. 5246 SAS, 2012 WL
987592, at *9, 2012 U.S. Dist. LEXIS 40246,
at *31 (S.D.N.Y. Mar. 23, 2012) (“With regard
to plaintiff’s negligence claim against the City,
it is duplicative of claims twelve and thirteen
for negligent hiring, retention, supervision and
training. Therefore, claim fourteen is dismissed.”).
4) Negligent Hiring, Training,
Supervision, and Retention
*9 The County Defendants argue that “claims may not
proceed against an employer for negligent hiring, retention,
supervision or training when the employer will be held
liable under the theory of respondeat superior for the
torts of an employee acting within the scope of his/her
employment.” (Dkt. No. 78–26, p. 25). Defendant City of
Syracuse argues that this claim fails as matter of law because
Plaintiff stipulated to the dismissal of Officer Abraham – the
only Syracuse Police officer alleged to have been negligently
hired, trained, supervised, or trained. (Dkt. No. 76–17, p. 30).
Plaintiff does not respond directly to these arguments. Since
it is undisputed that Sergeant Murphy and Deputy Willis
were acting within the scope of their employment, Plaintiff’s
claim against Onondaga County for negligent hiring, training,
supervision, and retention must fail. See Ben v. United
States, No. 5:14 Civ. 370 (CJS), ––– F.Supp.3d––––, 2016
WL 447713, at *11, 2016 U.S. Dist. LEXIS 13195, at *37
(N.D.N.Y. Feb. 4, 2016) (dismissing “superfluous” negligent
training and supervision claims where the defendants were
acting within the scope of their employment) (citing cases).
Moreover, the Court agrees that Plaintiff’s claim against the
City of Syracuse must be dismissed because Plaintiff has
not adduced any evidence of an employee that the City of
Syracuse negligently hired, trained, supervised, or trained. 10
10 In addition, Plaintiff’s claim for negligent hiring,
training, supervision, and retention also fails for the
same reasons explained with regard to Plaintiff’s
Monell claim. See Baez v. JetBlue Airways, 745
F. Supp. 2d 214, 225 (E.D.N.Y. 2010) (“To
assert a claim for negligent training, a plaintiff
must demonstrate deficiencies in the training of
employees that, if corrected, could have avoided
the alleged harm.”) (internal quotation and citation
omitted).
5) Respondeat Superior
Defendant City of Syracuse argues that Plaintiff’s respondeat
superior claim fails because there is no surviving underlying
theory of liability. (Dkt. No. 76–17, p. 32). “Respondeat
superior is not an independent cause of action, but a theory
that must attach to an underlying claim.” Alexander v.
Westbury Union Free Sch. Dist., 829 F. Supp. 2d 89, 112
(E.D.N.Y. 2011); see also Biswas v. City of New York, 973
F. Supp. 2d 504, 540 (S.D.N.Y. 2013). Thus, to the extent
Plaintiff alleges a stand-alone claim for respondeat superior
against the City of Syracuse, the claim must be dismissed
since there is no surviving underlying claim. Plaintiff may
still, however, seek to hold Onondaga County vicariously
liable for the alleged assault and battery committed by
Sergeant Murphy and Deputy Willis. See Dean v. City of
Buffalo, 579 F. Supp. 2d 391, 410–11 (W.D.N.Y. 2008) (“an
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employer may be vicariously liable for an intentional tort
committed by an employee if the employee was acting within
the scope of employment at the time the tort was committed”).
C. Official Capacity Claims
The County Defendants also argue that all claims against
Sergeant Murphy and Deputy Willis in their official
capacities should be dismissed. (Dkt. No. 78–26, pp. 5–
6). Plaintiff has not responded to this argument. “Personal–
capacity suits seek to impose personal liability upon a
government official for actions he takes under color of
state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985).
“Official–capacity suits, in contrast, ‘generally represent only
another way of pleading an action against an entity of which
an officer is an agent.’ ” Id. (quoting Monell, 436 U.S. at
690 n. 55). “It is not a suit against the official personally, for
the real party in interest is the entity.” Id. Therefore, since
Plaintiff alleges municipal liability and vicarious liability
claims against Onondaga County, his federal and state law
claims against Sergeant Murphy and Deputy Willis in their
official capacities must be dismissed as duplicative. See
Kennedy v. City of Albany, No. 1:15 Civ. 491(MAD), 2015
WL 6394513, at *5, 2015 U.S. Dist. LEXIS 143568, at *12
(N.D.N.Y. Oct. 22, 2015) (dismissing official capacity claims
and noting that “[a] claim against officers in their official
capacity is essentially a claim against the city”).
D. Punitive Damages
*10 Finally, the County Defendants argue that Plaintiff’s
request for punitive damages against Sergeant Murphy and
Deputy Willis should be dismissed because “none of the
conduct attributed to Sgt. Murphy or Deputy Willis herein
rises to the level of ‘outrageous’, nor could it be considered
motivated by evil intent, reckless or callously indifferent
to Plaintiffs rights.” (Dkt. No. 78–26, p. 27). “Punitive
damages may be awarded when the plaintiff has shown that
defendant’s conduct was motivated by evil motive or intent,
or when it involves callous indifference to federally protected
rights of others.” Picciano, 723 F. Supp. 2d at 506 (internal
quotations and citations omitted). “Generally, the issue of
whether to award punitive damages is an issue for the jury
to decide based on an evaluation of the plaintiff’s proof
of sufficiently serious misconduct.” Id. (internal quotations
and citations omitted). “Where the plaintiff has provided
sufficient evidence to overcome summary judgment with
respect to excessive force, the Court cannot state as a
matter of law that the [plaintiff] is not entitled to punitive
damages.” Id. (internal quotations and citation omitted). In
this case, material facts remain in dispute regarding whether
Plaintiff resisted, struggled, or lunged while being escorted
into the booking area, and whether Sergeant Murphy and
Deputy Willis took him to the ground using reasonable force.
Therefore, the Court denies the County Defendants’ motion
for summary judgment on the issue of Plaintiff’s entitlement
to punitive damages.
V. CONCLUSION
For these reasons, it is
ORDERED that Defendant City of Syracuse’s motion for
summary judgment (Dkt. No. 76), is GRANTED; and it is
further
ORDERED that Defendant City of Syracuse is DISMISSED
from this action; and it is further
ORDERED that the County Defendants’ motion for
summary judgment (Dkt. No. 78) is GRANTED in part and
DENIED in part; and it is further
ORDERED that Plaintiff’s claims against the County
Defendants under Section 1983 for municipal liability, and
under New York State law for intentional and negligent
infliction of emotional distress, negligence, and negligent
hiring, training, supervision, and retention are DISMISSED
with prejudice; and it is further
ORDERED that Plaintiff’s official capacity claims against
Defendants Sergeant Murphy and Deputy Willis are
DISMISSED with prejudice; and it is further
ORDERED that the County Defendants’ motion for
summary judgment (Dkt. No. 78) is otherwise DENIED.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 9441472
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 175 of 177

Lee v. County of Onondaga
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (7)
Title PDF Court Date Type
1. Complaint
Ronald LEE, Plaintiff, v. COUNTY OF ONONDAGA,
Onondaga County Sheriff's Department Sargent Kevin
Murphy, individually and in his official capacity, Onondaga
County Sheriff's Deputy Jayuan Willis, individually and
in his official capacity, and City of Syracuse, Syracuse
Police Officer Mamoum Abraham, individually and in his
representative capacity.
2013 WL 12177205
— N.D.N.Y. Oct. 17, 2013 Pleading
2. Defendants' Trial Brief
Ronald LEE, Plaintiff, v. COUNTY OF ONONDAGA,
Onondaga County Sheriff's Department Sergeant Kevin
Murphy, individually and in his official capacity, Onondaga
County Sheriff's Deputy Jayuan Willis, individually and
in his official capacity, and City of Syracuse, Syracuse
Police Officer Mamoun Abraham, individually and in his
representative capacity, Defendants.
2016 WL 7040612
— N.D.N.Y. Oct. 18, 2016 Motion
3. Plaintiff's Trial Brief
Ronald LEE, Plaintiff, v. COUNTY OF ONONDAGA, et.
al., Defendants.
2016 WL 7040615
— N.D.N.Y. Oct. 18, 2016 Motion
4. 2016 WL 8114448
LEE v. COUNTY OF ONONDAGA; POLICE SERGEANT
MURPHY; SHERIFF'S DEPUTY WILLIS
2016 WL 8114448
— N.D.N.Y. Nov. 03, 2016 Jury Verdict
5. Verdict Form
Ronald LEE, Plaintiff, v. COUNTY OF ONONDAGA,
Onondaga County Sheriff's Department Sergeant Kevin
Murphy, and Onondaga County Sheriff's Deputy Jayuan
Willis, Defendants.
2016 WL 7047934
— N.D.N.Y. Nov. 03, 2016 Jury Verdict
6. Judgment in A civil Case
Ronald LEE, Plaintiff, v. COUNTY OF ONONDAGA;
Onondaga County Sheriff's Department Sergeant Kevin
Murphy and Onondaga County Sheriff's Department
Deputy Jayuan Willis, Defendants.
2016 WL 7047941
— N.D.N.Y. Nov. 03, 2016 Jury Verdict
7. Docket 5:13-CV-01285
Lee v. County of Onondaga et al
— N.D.N.Y. Oct. 17, 2013 Docket
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 176 of 177

Lee v. County of Onondaga
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Lee v. County of Onondaga
2016 WL 9441472 , N.D.N.Y. , Aug. 19, 2016
Related References (1)
2. Lee v. County of Onondaga
2016 WL 9441028 , N.D.N.Y. , Oct. 26, 2016
Case 9:24-cv-01224-ECC-MJK Document 35 Filed 06/11/26 Page 177 of 177