Rentas v. Ruffin 1

14-2475-cv (L)
Rentas v. Ruffin
1
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2015 4
5
(Argued: October 7, 2015 Decided: March 8, 2016) 6
7
Docket Nos. 14‐2475‐cv (Lead) 14‐2512‐cv (XAP) 8
9
10
_____________________________________ 11
12
Axel Rentas, 13
14
Plaintiff‐Appellant–Cross‐Appellee, 15
16
v. 17
18
Captain John Ruffin, 19
20
Defendant‐Appellee–Cross‐Appellant, 21
22
The City of New York, Correction Officer Diana Baker, Correction Officer 23
Kevin Parker, Correction Officer Mills Charles, Deputy Warden Elisio Perez, 24
Captain Sharon Clayton, Captain Darryll Lago, Correction Officer George 25
Ruppel, Deputy Warden Walter Nin, 26
27
Defendants‐Appellees, 28
29
Correction Officer Richard Serrano, Correction Officers John Doe, #1‐10, 30
31
Defendants.* 32
_____________________________________ 33
* The Clerk of the Court is respectfully directed to amend the official caption
as set forth above.

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14-2475-cv (L)
Rentas v. Ruffin
2
Before: PARKER, LOHIER, and CARNEY, Circuit Judges. 1
2
Axel Rentas appeals, and Captain John Ruffin cross‐appeals, from a 3
judgment of the District Court for the Southern District of New York 4
(Hellerstein, J.). Rentas, a former inmate on Rikers Island, claimed that the 5
Rikers staff used excessive force against him and then fabricated evidence, 6
leading to his prosecution and prolonged detention. The District Court 7
granted the defendants summary judgment on Rentas’s malicious 8
prosecution claim, but allowed his fair trial, excessive force, and intentional 9
infliction of emotional distress claims to proceed to trial. The jury found the 10
defendants liable for intentional infliction of emotional distress and Captain 11
Ruffin individually liable for violating Rentas’s right to a fair trial and for 12
using excessive force. On appeal, Rentas challenges the grant of summary 13
judgment on his malicious prosecution claim and argues that the District 14
Court erred at trial when it excluded certain allegedly false reports prepared 15
by the defendants. On cross‐appeal, Captain Ruffin argues that he was 16
entitled to judgment as a matter of law on Rentas’s claim of intentional 17
infliction of emotional distress. We AFFIRM in part (as to the claim of 18
intentional infliction of emotional distress), VACATE in part (as to the 19
malicious prosecution, fair trial, and excessive force claims), and REMAND 20
for further proceedings consistent with this opinion. 21
22
JOSHUA P. F ITCH , Cohen & Fitch LLP, 23
New York, NY, for Plaintiff‐Appellant– 24
Cross‐Appellee. 25
26
E LIZABETH S. NATRELLA (Pamela Seider 27
Dolgow, on the brief), for Zachary W. 28
Carter, Corporation Counsel of the City 29
of New York, New York, NY, for 30
Defendant‐Appellee–Cross‐Appellant and 31
Defendants‐Appellees. 32
33
LOHIER, Circuit Judge: 34
Axel Rentas appeals, and Captain John Ruffin cross‐appeals, from a 35
judgment of the United States District Court for the Southern District of New 36
York (Hellerstein, J.). Rentas, a former inmate on Rikers Island, sued several 37

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3
correction officers and prison officials along with the City of New York, 1
claiming that the officers used excessive force against him and then fabricated 2
evidence, leading to his prosecution and prolonged detention. Because we 3
conclude that the District Court committed a significant evidentiary error by 4
excluding certain reports prepared by the officers, we VACATE in part and 5
REMAND for further proceedings consistent with this opinion. As for 6
Captain Ruffin’s cross‐appeal, in which he argues that he was entitled to 7
judgment as a matter of law on Rentas’s claim for intentional infliction of 8
emotional distress, we AFFIRM. 9
BACKGROUND 10
This case arises from a July 12, 2007 altercation between Rentas, then an 11
inmate on Rikers Island, and several members of the correctional staff. 12
Rentas was serving a misdemeanor sentence and was scheduled to be 13
released in less than three weeks. Correction Officer Kevin Parker ordered 14
Rentas to move to a new bed, but Rentas refused, asking to speak with 15
Parker’s supervisor. A fight started when Officer Parker attempted to move 16
Rentas’s belongings from near his bed. Another officer called for backup. 17
The fight escalated when Captain Ruffin and other correctional staff arrived. 18

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4
The officers eventually subdued Rentas, handcuffed him, and carried him 1
away. 2
The parties disagree about who initiated the fight, the degree to which 3
Rentas resisted, and whether he was injured before or after the Rikers staff 4
placed him in handcuffs. According to Rentas, Officer Parker grabbed him 5
when he refused to change beds and then fell on purpose, feigning injury. 6
When Captain Ruffin arrived, he immediately placed Rentas in handcuffs. 7
Rentas claims that Captain Ruffin and other correction officers then 8
proceeded to punch, kick, and pepper spray him while he was handcuffed. 9
As they carried him away, they purposefully dropped him on his face. And 10
after arriving at intake, Deputy Wardens Walter Nin and Elisio Perez 11
allegedly joined in, beating Rentas while he remained in handcuffs. Rentas 12
suffered a fractured eye socket, bruises and abrasions all over his body, and 13
bleeding in his lungs. Several of the correction officers involved in the 14
incident also complained of injuries and received medical treatment. Later 15
that month, Rentas filed a notice of claim with the City alleging it was 16
responsible for violations of his civil rights and related claims. 17

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5
As part of an internal New York City Department of Corrections 1
investigation into the incident, several of the correctional staff — Captains 2
Ruffin, Darryll Lago, and Sharon Clayton, and Officers Diana Baker, Kevin 3
Parker, and George Ruppel — prepared reports of the incident, which were 4
ultimately transmitted to an Assistant District Attorney in Bronx County. 5
Shortly thereafter, Rentas was charged in Bronx County Criminal Court with 6
multiple counts of felony assault and detained for three years before being 7
acquitted at trial. 8
After his acquittal, Rentas sued the correctional staff involved in the 9
July 2007 altercation, along with the City of New York, claiming the 10
defendants were liable for the use of excessive force, assault and battery, 11
malicious prosecution, the denial of his right to a fair trial, intentional 12
infliction of emotional distress (“IIED”), and the failure to intercede to protect 13
him from the violation of his constitutional rights. On summary judgment, 14
Rentas claimed that the reports prepared by the correctional staff were false 15
and had prompted the prosecution. The District Court dismissed Rentas’s 16
malicious prosecution claim, reasoning that the Bronx County “prosecutors 17
[had] exercised an independent decision to prosecute based on . . . evidence of 18

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6
the officers’ injuries and the statements of other inmates who claimed that 1
[Rentas] started the altercation.” It refused to dismiss Rentas’s IIED claim, 2
however, explaining that his notice of claim satisfied the requirements of New 3
York’s General Municipal Law. The parties proceeded to trial on all of the 4
remaining claims. At trial, Rentas sought to admit the officers’ use‐of‐force 5
reports and other documents that the defendants prepared and later provided 6
to the Bronx District Attorney’s office. Although the District Court admitted 7
several of the reports, it excluded five of them as inadmissible hearsay. 8
During a jury charge conference, Rentas objected to the District Court’s 9
proposed instruction to the jury that it could award Rentas nominal damages 10
for his fair trial and excessive force claims; he also challenged the District 11
Court’s refusal to instruct the jury on assault and battery under New York 12
State law in connection with the excessive force claim. 13
The jury found Captain Ruffin individually liable for denying Rentas’s 14
right to a fair trial, subjecting him to excessive force, and failing to intercede, 15
and all the defendants liable for IIED. It awarded Rentas $67,500 in 16
compensatory damages for the IIED claim, but only nominal damages for the 17
fair trial, excessive force, and failure to intercede claims. 18

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7
This appeal followed. 1
DISCUSSION 2
On appeal, Rentas argues that the District Court erred by dismissing his 3
malicious prosecution claim on summary judgment and excluding the 4
officers’ reports from evidence. We agree and therefore vacate in part the 5
District Court’s judgment and remand for a new trial on the malicious 6
prosecution, excessive force, failure to intercede, and fair trial claims. Captain 7
Ruffin cross‐appeals, arguing that he was entitled to judgment as a matter of 8
law on Rentas’s IIED claim. We are not persuaded, however, that the jury’s 9
verdict on the IIED claim should be disturbed and therefore affirm the 10
District Court’s judgment as to that claim. 11
1. Malicious Prosecution 12
We turn first to the District Court’s dismissal of Rentas’s malicious 13
prosecution claim. We review the District Court’s grant of summary 14
judgment de novo, construing all evidence in the light most favorable to the 15
non‐moving party. Ruggiero v. County of Orange, 467 F.3d 170, 173 (2d Cir. 16
2006). Summary judgment should be affirmed only when there is no genuine 17

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8
dispute as to a material fact and the movant is entitled to judgment as a 1
matter of law. Fed. R. Civ. P. 56(a). 2
In order to prevail on his malicious prosecution claim, Rentas was 3
required to show the following: “(1) the defendant initiated a prosecution 4
against plaintiff, (2) without probable cause to believe the proceeding can 5
succeed, (3) the proceeding was begun with malice[,] and[] (4) the matter 6
terminated in plaintiff’s favor.” Cameron v. City of New York, 598 F.3d 50, 63 7
(2d Cir. 2010) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d 8
Cir. 1997)). Here, the defendants initiated a prosecution against Rentas and 9
the matter terminated in his favor. 10
But the District Court concluded that Rentas could not prove the 11
second element of the claim — namely, the absence of probable cause — and 12
granted summary judgment on that basis. In arriving at that conclusion, the 13
court relied on evidence that the Bronx District Attorney made a subsequent, 14
independent decision to prosecute Rentas that was supported by probable 15
cause and untainted by the officers’ allegedly false reports. “[A] grand jury 16
indictment gives rise to a presumption that probable cause exists and a claim 17
for malicious prosecution . . . thereby is defeated.” McClellan v. Smith, 439 18

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9
F.3d 137, 145 (2d Cir. 2006). “[T]he presumption may be rebutted by evidence 1
of . . . wrongful acts on the part of police,” including “fraud, perjury, [or] the 2
suppression of evidence.” Id. (quoting Colon v. City of New York, 60 N.Y.2d 3
78, 83 (1983)). For example, when an “officer provide[s] false information to a 4
prosecutor, what prosecutors do subsequently has no effect whatsoever on 5
the . . . officer’s initial, potentially tortious behavior.” Cameron, 598 F.3d at 6
63. But if the prosecution relied on independent, untainted information to 7
establish probable cause, a complaining official will not be responsible for the 8
prosecution that follows. See Townes v. City of New York, 176 F.3d 138, 147 9
(2d Cir. 1999). In that situation, “the chain of causation between a police 10
officer’s unlawful arrest and a subsequent conviction and incarceration 11
[would be] broken by the intervening exercise of [the prosecutor’s] 12
independent judgment.” Id. 13
In this case, Captain Ruffin argues that probable cause arose from 14
independent, untainted information in the form of testimony of other Rikers 15
inmates. As part of its investigation, the Department of Corrections 16
interviewed and obtained statements from inmates who witnessed the 17
altercation. Although the defendants suggest that these statements were 18

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10
themselves included in the package of documents provided to the District 1
Attorney’s office, our review of the record on summary judgment leads us to 2
conclude that the statements were merely quoted in an investigation report 3
prepared by one of the defendants. According to that report, one inmate 4
allegedly said that he “saw a fellow inmate and [Officer] Parker fighting 5
because [Officer] Baker told him to move to the front. He did not listen so 6
[Officer] Parker moved his stuff[,] and the inmate hit him with a punch.” 7
Joint App’x 317. A second inmate was reported to have stated that he “saw 8
the inmate throw many punches at [O]fficer Parker. The inmate assaulted 9
[O]fficer Parker.” Id. It is not clear to us that these statements constitute 10
independent, untainted information upon which a prosecution may rely to 11
break the chain of causation if they are contained in one of the allegedly false 12
reports prepared and supplied by the defendants. Our doubts are reinforced 13
by the eventual trial testimony of the Assistant District Attorney who drafted 14
the criminal complaint against Rentas, which suggests that she did not rely 15
directly on the statements of inmates before seeking to indict Rentas. The 16
District Court therefore erred in concluding, based on the summary judgment 17

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11
record before it, that the inmates’ statements provided an independent basis 1
for probable cause separate from the allegedly false reports. 2
In dismissing the malicious prosecution claim, the District Court also 3
faulted Rentas for failing to produce independent evidence that the 4
defendants lied to prosecutors and for relying instead on his own deposition 5
testimony to contradict the defendants’ version of events. This was also error. 6
At summary judgment, Rentas was entitled to rely on his own testimony to 7
establish his malicious prosecution claim. See Rivera v. Rochester Genesee 8
Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (“[D]istrict courts should 9
not engage in searching, skeptical analyses of parties’ testimony in opposition 10
to summary judgment.” (quotation marks omitted)). In any event, Rentas did 11
offer evidence beyond his own testimony, including photographs of his 12
injuries following the incident, which did not appear to show any bruises or 13
abrasions on his hands despite the defendants’ claims that he repeatedly 14
punched members of the staff so violently that they required immediate 15
medical treatment. See Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 16
2003) (reversing summary judgment where the plaintiff offered a competing 17
account of the facts supported by only a single document). 18

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12
Lastly, Captain Ruffin argues that the District Court properly dismissed 1
the malicious prosecution claim because evidence of actual malice was 2
lacking. But actual malice can be inferred when a plaintiff is prosecuted 3
without probable cause. Manganiello v. City of New York, 612 F.3d 149, 163 4
(2d Cir. 2010); Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003) (“A 5
lack of probable cause generally creates an inference of malice.”). According 6
to Rentas’s sworn testimony, the defendants attacked him and later conspired 7
to hide the assault by initiating a prosecution without probable cause that 8
extended his remaining time in prison from three weeks to three years. A 9
reasonable jury could infer that the defendants acted with actual malice based 10
on these facts, thus precluding summary judgment. For these reasons, we 11
vacate the District Court’s dismissal of the malicious prosecution claim and 12
remand for further proceedings. 13
2. The Defendants’ Reports 14
Rentas also argues that the District Court should not have excluded the 15
defendants’ incident reports and supporting documentation as hearsay at trial 16
on the remaining claims. On appeal, the defendants do not defend the 17
District Court’s assertion that the reports were inadmissible hearsay. Nor 18

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13
could they, since Rentas did not offer the reports to prove the truth of the 1
matter asserted within them, but rather claimed that the reports were false. 2
See, e.g., United States v. Sliker, 751 F.2d 477, 489 (2d Cir. 1984); United States 3
v. Coven, 662 F.2d 162, 174 (2d Cir. 1981). Instead, the defendants argue that 4
the reports were needlessly cumulative of other direct testimony offered at 5
trial. See Fed. R. Evid. 403. For example, they point out, the District Court 6
excluded the use‐of‐force report prepared by Captain Darryll Lago because 7
Captain Lago himself testified at trial about the events he described in the 8
report. 9
This argument ignores the important purpose for which Rentas offered 10
the reports into evidence: to show that the defendants submitted false reports 11
in an effort to justify their use of force and deny Rentas a fair trial. Indeed, 12
the submission of false reports was the principal way in which Rentas could 13
show that the defendants interfered with his right to a fair trial given the jury 14
instruction that Rentas had the burden of proving that the defendants 15
“knowingly forwarded false information to prosecutors . . . that [was] likely 16
to influence a jury verdict to convict,” with the intent “to deprive a plaintiff of 17
his right to liberty and to a fair trial.” Joint App’x 3146‐47. Nor were these 18

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14
reports cumulative. They were central to Rentas’s fair trial, excessive force, 1
and failure to intercede claims, and the District Court’s decision to exclude 2
them was error.1 We also conclude that there is a substantial likelihood that 3
their erroneous exclusion affected the outcome of the trial. Indeed, during the 4
jury’s deliberations, the jurors asked to see a few of the reports that had been 5
excluded, obviously to no avail. “[W]e are especially loath to regard any 6
error as harmless in a close case” such as this one, Hester v. BIC Corp., 225 7
F.3d 178, 185 (2d Cir. 2000) (quotation marks omitted), where the jury appears 8
to have found that there was some unjustified use of force and interference 9
with Rentas’s fair trial rights. In response, the defendants point out that 10
Rentas had the opportunity to cross‐examine the witnesses based on 11
information contained in their reports. We are not persuaded that this 12
sufficiently addressed the prejudice caused by the exclusion of the reports. 13
Again, Rentas could have used the reports not only to impeach the 14
defendants,2 but more importantly to prove that the defendants submitted 15
1 We note, too, that on remand these reports may be relevant to Rentas’s
malicious prosecution claim.
2 For example, the record suggests there were some inconsistencies between
two of the reports and the relevant testimony at trial. Officer Baker prepared

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15
false reports to the District Attorney that facilitated and tainted the decision 1
to prosecute him in violation of his right to a fair trial. Because the error was 2
not harmless, we vacate the judgment as to the fair trial, excessive force, and 3
failure to intercede claims and remand for a new trial. 3 4
3. Rentas’s Remaining Arguments 5
Because Rentas is entitled to a new trial on his excessive force, fair trial, 6
and failure to intercede claims, we need not consider his remaining 7
arguments.4 Nevertheless, we provide some guidance to the District Court in 8
connection with any further trial proceedings in this case, as certain issues are 9
a report that was unsigned and omitted observations about Captain Ruffin.
Officer Baker later rewrote the report and submitted an addendum about
Captain Ruffin. The District Court admitted the latter report, but not the
former. In addition, a report prepared by Captain Clayton but excluded from
the trial record suggested that there was a directive to move inmates from one
part of the dorm to another and that Rentas was told to move pursuant to that
directive. At trial, however, Clayton testified that she was not aware of that
directive.
3 Rentas urges this Court to assign his case to a different district court judge in
the interest of “preserving the appearance of fairness.” Plaintiff’s Br. 74. We
decline to do so.
4 For example, Rentas has argued that he was entitled to a jury instruction on
failure to intercede relating to his fair trial claim. Because we remand for a
new trial, we need not speculate on whether the evidence presented on
remand will warrant such an instruction.

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16
likely to recur at trial. In particular, we reject two arguments Rentas raised 1
about the District Court’s jury instructions: first, that the court erroneously 2
permitted the jury to award nominal damages for the excessive force and fair 3
trial claims, and second, that it failed to instruct the jury on assault and 4
battery. 5
A. Nominal Damages 6
“[W]hen a police officer creates false information likely to influence a 7
jury’s decision and forwards that information to prosecutors, he violates the 8
accused’s constitutional right to a fair trial.” Jocks v. Tavernier, 316 F.3d 128, 9
138 (2d Cir. 2003) (quoting Ricciuti, 124 F.3d at 130). Because Rentas was 10
detained for three years due to the defendants’ alleged misconduct, he argues 11
that the District Court was required to instruct the jury to award 12
compensatory, rather than nominal, damages if it found any defendant liable 13
for violating Rentas’s right to a fair trial. As support, Rentas cites Kerman v. 14
City of New York, 374 F.3d 93, 124 (2d Cir. 2004), in which we explained that 15
a “plaintiff is entitled to an award of compensatory damages as a matter of 16
law” when the jury has “found a constitutional violation and there is no 17
genuine dispute that the violation resulted in some injury to the plaintiff.” Id. 18

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17
But in Kerman we also noted that “[a] finding that the plaintiff has been 1
deprived of a constitutional right does not automatically entitle him to a 2
substantial award of damages.” Id. at 123. “[W]hen a defendant has 3
deprived the plaintiff of liberty[,] . . . but the . . . adverse action would have 4
been taken even” in the absence of the wrongful conduct, “the plaintiff . . . is 5
entitled only to nominal damages.” Id.; see also Carey v. Piphus, 435 U.S. 6
247, 266‐67 (1978) (holding that students that were suspended without a 7
proper hearing could be awarded nominal damages if the District Court 8
concluded their suspensions would have been justified even if they received a 9
hearing). 10
In Rentas’s case, the District Court instructed the jury that it could find 11
in his favor on the fair trial claim if it found that “a government official . . . 12
knowingly created false information” that was “likely to influence a jury 13
verdict to convict” and forwarded that information to prosecutors; that 14
Rentas’s “criminal prosecution cause[d] a reasonably foreseeable loss of 15
liberty”; and that the government official “specifically intend[ed] to deprive a 16
plaintiff of his right to liberty.” Joint App’x 3146‐47 (emphasis added). Two 17
aspects of this jury charge lead us to conclude that the District Court did not 18

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18
err in instructing the jury on nominal damages. First, the instructions 1
permitted the jury to find a defendant liable if the “criminal prosecution” 2
caused Rentas’s loss of liberty, even if the defendant did not cause the loss of 3
liberty directly. And second, the District Court was correct not to require 4
Rentas to prove that the criminal prosecution lacked probable cause, since 5
probable cause is not a defense to a fair trial claim. Ricciuti, 124 F.3d at 129‐ 6
30. Although, as we explained above, there was a genuine dispute at 7
summary judgment over whether the District Attorney’s office relied on 8
independent, untainted probable cause in prosecuting Rentas, the jury 9
reasonably could have resolved that dispute in the defendants’ favor after 10
trial.5 It follows, then, that even if Rentas suffered a loss of liberty due to the 11
“criminal prosecution,” the jury reasonably could have found that the loss of 12
liberty was not caused by the defendants’ alleged fabrication of evidence, but 13
rather by whatever independent, untainted evidence supported probable 14
5 As previously noted, on summary judgment as to Rentas’s malicious
prosecution claim, there was, in our view, sufficient evidence to conclude that
the Bronx County prosecutors lacked probable cause independent of and
untainted by information supplied by the defendants. A jury finding at any
retrial on remand that the prosecution was supported by independent,
untainted probable cause would defeat Rentas’s malicious prosecution claim,
but not his fair trial claim.

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19
cause. In this case, the jury found that some defendants fabricated evidence 1
while others did not. The jury could have also found that the submission of 2
the non‐fabricated evidence would have resulted in Rentas’s loss of liberty 3
even in the absence of the fabricated evidence. Given these circumstances, the 4
District Court did not err in instructing the jury that it was entitled to award 5
nominal rather than compensatory damages on Rentas’s fair trial claim.6 6
Rentas likewise argues the jury should have been compelled to award 7
him compensatory damages for his excessive force claim because there was 8
“undisputed evidence of compensable injuries in this case.” Plaintiff’s Br. 36‐ 9
37. According to Rentas, the jury had to accept either the defendants’ 10
portrayal of the events or his own. Under the defendants’ version, Rentas 11
attacked the correctional staff, including Captain Ruffin, and suffered injuries 12
to his head before being handcuffed. Under Rentas’s version, the defendants 13
punched, kicked, and pepper sprayed Rentas after Captain Ruffin first placed 14
him in handcuffs. Rentas suggests that the jury, which found Captain Ruffin 15
6 The parties disagree as to the nature of the right in question, and specifically
disagree as to how causation operates in this context. Whatever the correct
resolution of that issue, the jury instructions given here on the fair trial claim
allowed for a finding of nominal damages. Neither party objected to those
instructions, and, consequently, we are not now required to decide whether
they were proper.

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20
liable, must have credited his version of events. If that were so, he reasons, it 1
should have awarded him compensatory damages since he testified that he 2
was beaten while handcuffed. See Haywood v. Koehler, 78 F.3d 101, 105 n.2 3
(2d Cir. 1996) (“If . . . a handcuffed prisoner[] was assaulted in a cell . . . such 4
an assault would necessarily warrant some compensatory damages, at least 5
for pain and suffering, even if no lacerations or other observable injuries 6
resulted.”). But Rentas’s portrayal of the evidence is too rigid. We are less 7
certain that the nature and cause of Rentas’s injuries were undisputed, 8
particularly where, as here, both justified and excessive force was arguably 9
used. See Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994). As the defendants 10
note, the jury was permitted to “piece together its account of what 11
happened.” Defendants’ Br. 41. The jurors could “accept bits of testimony 12
from several witnesses and . . . make reasonable inferences from whatever 13
testimony they credited.” Haywood, 78 F.3d at 105. Thus, the District Court 14
did not err in instructing the jury on nominal damages. 15
B. Assault and Battery 16
Rentas also argues that the District Court should have instructed the 17
jury separately on assault and battery under New York State law, which uses 18

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21
the lower “objective reasonableness” standard commonly seen in Fourth 1
Amendment cases rather than the stricter Eighth Amendment standard that 2
governs his excessive force claim and requires a jury to find that force “was 3
applied . . . maliciously and sadistically to cause harm.” Hogan v. Fischer, 4
738 F.3d 509, 516 (2d Cir. 2013) (quotation marks omitted); see Graham v. 5
Connor, 490 U.S. 386, 397 (1989) (describing the objective reasonableness 6
standard under the Fourth Amendment). 7
Even assuming that Rentas is correct that the elements of an Eighth 8
Amendment excessive force claim differ from the elements of an assault and 9
battery claim in this context, Rentas was not entitled to a separate jury charge. 10
When pressed by the District Court on how the trial evidence would allow 11
the jury to find the defendants liable for assault and battery without also 12
finding them liable for the use of excessive force, Rentas did not point to 13
specific evidence, but argued only that “they are two different legal theories.” 14
Joint App’x 2989. Rentas also fails to acknowledge on appeal that the District 15
Court actually incorporated the lower “objective reasonableness” standard in 16
its jury charge on excessive force, instructing the jury that if it found “the 17
amount of force was greater than a reasonable corrections officer would have 18

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22
employed under the circumstances, the plaintiff will have proved by a 1
preponderance of the evidence that he was deprived of . . . [his Eighth 2
Amendment] right.”7 Joint App’x 3145. Since these instructions were just as 3
favorable to Rentas as those he requested on assault and battery, we conclude 4
that the District Court did not err in declining to separately instruct the jury 5
on assault and battery. 6
4. The Cross‐Appeal 7
Following the jury’s verdict in Rentas’s favor, all of the defendants 8
moved under Rule 50 to dismiss Rentas’s IIED claim as a matter of law. The 9
District Court denied the motion but for unexplained reasons entered 10
judgment against only Captain Ruffin. On appeal, Captain Ruffin challenges 11
the denial of the motion for judgment as a matter of law but does not 12
separately attack the jury’s verdict.8 His challenge rests on four main 13
7 The defendants do not challenge the District Court’s jury instructions on
excessive force. We therefore need not consider whether the District Court
erred in instructing the jury that it could find the defendants liable for the use
of excessive force based only on a finding that the defendants used force that
was objectively unreasonable.
8 The District Court entered judgment on the IIED claim against only Captain
Ruffin, even though the jury found in Rentas’s favor on his IIED claim
“against defendants.” Joint App’x 3211, 3312. At trial, Rentas maintained

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23
grounds: (1) the IIED claim is barred because the New York statute of 1
limitations expired by the time Rentas filed his complaint; (2) Rentas failed to 2
file a sufficiently detailed notice of claim as required by Section 50‐e of the 3
New York General Municipal Law; (3) the evidence was legally insufficient to 4
find Captain Ruffin liable for IIED; and (4) the IIED claim fell within the 5
ambit of the other claims Rentas asserted against the defendants. We briefly 6
address each of these grounds in turn. 7
that New York City should be vicariously liable for any damages the jury
awarded him for his IIED claim and proposed that the District Court instruct
the jury to determine only whether he had proven his IIED claim against any
of the defendants. The District Court agreed and assured Rentas that it
would entertain a post‐verdict motion to enter judgment against the City if
Rentas prevailed on his state‐law claims. After the verdict, Rentas filed a
motion for a new trial on damages, which included a request that the District
Court enter judgment against the City for assault and battery (but not for
IIED). The District Court denied the motion without addressing the City’s
liability and entered judgment against Ruffin only. In a footnote in his brief
on appeal, Rentas purports to challenge the omission of the City as a
defendant, Plaintiff’s Br. 1 n.1, but does not otherwise make any arguments in
support of that challenge. We exercise our discretion not to consider
arguments raised only in a footnote. New York Psychiatric Ass’n, Inc. v.
UnitedHealth Grp., 798 F.3d 125, 128 n.3 (2d Cir. 2015); Dow Jones & Co. v.
Int’l Sec. Exch., Inc., 451 F.3d 295, 301 n.7 (2d Cir. 2006). Because Rentas is
entitled to a new trial, we need not now determine whether the District Court
erred in failing to enter judgment against the City, and we leave it to the
District Court on remand to determine whether to reinstate the City as a
named defendant on the caption.

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A. Statute of Limitations 1
Rentas filed his complaint on August 18, 2010. In New York, an IIED 2
claim must be brought within one year of the injury. N.Y. C.P.L.R. 215(3). 3
But when, as in this case, a plaintiff sues the City (or an individual whom the 4
City must indemnify), a one‐year‐and‐90‐day statute of limitations applies. 5
See N.Y. Gen. Mun. Law § 50–i; Ruggiero v. Phillips, 739 N.Y.S.2d 797, 799‐ 6
800 (4th Dep’t 2002). Because the altercation between Rentas and the Rikers 7
staff occurred on July 12, 2007, the defendants argue Rentas should have filed 8
his complaint by October 12, 2008. 9
We disagree. The IIED claim involved continuous tortious conduct and 10
injury that spanned the criminal proceedings against Rentas and ended only 11
when the criminal charges were dismissed on August 2, 2010. Under New 12
York law, the statute of limitations on an IIED claim involving a continuous 13
injury does not begin to run until the conduct ceases. See, e.g., Shannon v. 14
MTA Metro‐North R.R., 704 N.Y.S.2d 208, 209 (1st Dep’t 2000); Ain v. Glazer, 15
683 N.Y.S.2d 241, 242 (1st Dep’t 1999); Drury v. Tucker, 621 N.Y.S.2d 822, 823 16
(4th Dep’t 1994); cf. Dumas v. Levitsky, 738 N.Y.S.2d 402, 408 (3d Dep’t 2002). 17
Rentas’s claim therefore was not time‐barred. 18

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B. The Notice of Claim 1
Nor are we persuaded that Rentas failed to comply with the 2
requirements of New York’s Municipal Law by omitting his IIED claim from 3
his notice of claim. Under New York law, a plaintiff must file a notice of 4
claim before suing municipal defendants in a personal injury action. See 5
Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999). 6
Although the notice must set forth “the nature of the claim,” N.Y. Gen. Mun. 7
Law § 50‐e, it need not “state a precise cause of action in haec verba,” 8
DeLeonibus v. Scognamillo, 583 N.Y.S.2d 285, 286 (2d Dep’t 1992). In this 9
case, Rentas’s notice of claim alleged “[v]iolation of civil rights; battery; denial 10
of medical care; and negligent screening, hiring, training, supervising and 11
retaining of police officers.” Joint App’x 346. This description adequately 12
notified the municipal defendants that Rentas might bring an IIED claim 13
against them. 14
C. Sufficiency of the Evidence 15
We also reject Captain Ruffin’s argument that the trial evidence of IIED 16
was insufficient. In order to establish liability for IIED, a plaintiff must prove 17
that the defendants exhibited “(1) extreme and outrageous conduct” with the 18

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“(2) intent to cause severe emotional distress,” that there was “(3) a causal 1
connection between the conduct and the injury,” and that “(4) severe 2
emotional distress” resulted. Bender v. City of New York, 78 F.3d 787, 790 3
(2d Cir. 1996). The defendants argue that Rentas’s IIED claim fails because 4
there was no medical evidence that he suffered emotional injuries. Even 5
assuming that medical evidence is required in order to prevail on an IIED 6
claim, there was sufficient evidence in the record to sustain the jury’s verdict. 7
Rentas’s hospital records reflected that he complained of anxiety, stress, 8
depression, and post‐traumatic stress disorder and was receiving mental 9
health treatment. Rentas also testified at trial that he suffered “mental health 10
problems” and “emotional injuries” arising from the July 2007 altercation. 11
Joint App’x 2656, 2659. The medical records and testimony sufficed for the 12
jury to find in Rentas’s favor on the IIED claim. 13
D. Duplication of Other Claims 14
Finally, the defendants argue that Rentas’s IIED claim fell within the 15
ambit of his other tort claims. In Fischer v. Maloney, 43 N.Y.2d 553, 557‐58 16
(1978), the New York Court of Appeals suggested that “it may be questioned 17
whether . . . [IIED] should be applicable where the conduct complained of 18

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27
falls well within the ambit of other traditional tort liability.” But the Court of 1
Appeals did not hold that liability for IIED is never appropriate when the 2
underlying conduct may overlap with other torts. See Bender, 78 F.3d at 792 3
(2d Cir. 1996) (“[T]he initiation of a false charge, with sadistic intent and for 4
the purpose of subjecting Bender to the prosecution system, could be found to 5
involve additional elements not necessarily comprehended by the torts of 6
false arrest or malicious prosecution.”). In any event, here the District Court 7
was careful to instruct the jury specifically that any damages it awarded 8
Rentas for the IIED claim must be separate from the emotional damages it 9
awarded him for other claims. Any error that may have occurred from the 10
potential overlap of these claims was therefore harmless. 11
For these reasons, we affirm the District Court’s denial of the 12
defendants’ Rule 50 motion. 13
CONCLUSION 14
For the foregoing reasons, we AFFIRM the District Court’s judgment as 15
to the claim of intentional infliction of emotional distress, VACATE the 16
District Court’s judgment as to the malicious prosecution, excessive force, fair 17

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28
trial, and failure to intercede claims, and REMAND for further proceedings 1
consistent with this opinion. 2

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