MEMORANDUM OPINION AND ORDER
Pro se plaintiff Jose Miguel Vasquez originally brought this action against five employees of the United States Customs Service in their individual capacities, alleging that they unlawfully assaulted him during an arrest on February 19, 2002. After the filing of the complaint, it became apparent that the five originally named defendants had not been present during plaintiff's arrest, and plaintiff was permitted to amend his complaint to name as defendants the six officers who had been present during his arrest. Subsequently, having maintained all along that only one of the six officers had assaulted him and believing that that he had identified the officer who had committed the assault by examining photographs of the six defendants, plaintiff voluntarily dismissed his claims against five of the six defendants with prejudice, leaving Tim Carey as the sole remaining defendant in the lawsuit. Carey then moved to dismiss the complaint or, alternatively, for summary judgment on the ground that he was not, in fact, the officer who assaulted plaintiff. Plaintiff concedes, upon review of Carey's motion, that Carey was not the officer who assaulted him and that his claims against Carey should be dismissed. However, plaintiff now cross-moves to reinstate his claims against defendant Fred Klie, contending that the evidence now makes clear that Klie was the officer who committed the alleged assault. For the reasons set forth below, the Court grants Carey's motion for summary judgment  and also grants plaintiff's cross-motion.
The facts of this case are set forth in greater detail in this Court's prior opinions, Vasquez v. Mill, No. 2003 Civ. 3905 (RJH), 2005 WL 1902913 (S.D.N.Y. Aug. 8, 2005) and Vasquez v. Mill, No. 2003 Civ. 3905 (RJH), 2006 WL 2789914 (S.D.N.Y. Sept. 25, 2006), familiarity with which is assumed.
On the night of February 19, 2002, plaintiff and an individual named Julio De La Cruz, who had been traveling together in a green car, were arrested in the Bronx in connection with a drug money laundering investigation. A total of six agents and officers were involved in the arrest in some capacity, among them special agent Carey and detective Klie. Plaintiff was taken into physical custody by Klie, who encountered plaintiff outside of the green car, turned him around so that his hands were on the roof of the car, frisked him and handcuffed him. (See Pantoja Decl. Ex. 4 (Transcript from the Trial of Julio de la Cruz) (hereinafter "De La Cruz Trial Tr.") at 264:20-266:5; Carey Decl. ¶17.) Plaintiff contends that after he was handcuffed, he was beaten by the officer who took him into custody. (See Amended Complaint; Pl. Cross-Motion ¶8.) During the arrest, Carey's attention was focused primarily on De La Cruz. (See Carey Decl. ¶¶ 10-16.)
Shortly after the arrest, plaintiff and De La Cruz were taken to a nearby police station. (Vasquez Decl. ¶ 17; De La Cruz Trial Tr. at 270:6-16.) Approximately three hours later, plaintiff and De La Cruz were transported to the Metropolitan Detention Center by Carey and special agent Shawn Meehan. (See Vasquez Decl. ¶ 19; Carey Decl. ¶21; May 12, 2008 Letter from Peter M. Skinner to Magistrate Judge Fox.) The following morning (February 20, 2002), two law enforcement officers transported plaintiff to court for his arraignment before a magistrate judge. (See Vasquez Decl. ¶ 23; Carey Decl. ¶ 25.) Prison records indicate that Klie was one of the two officers who transported plaintiff from the prison to court on the morning of February 20, 2002; however, the identity of the second transporting officer is unknown.*fn1 Carey was present in the courtroom during plaintiff's arraignment, but contends that he did not transport plaintiff from prison to court that day. (May 12, 2008 Letter from Peter M. Skinner to Magistrate Judge Fox.) Plaintiff later pled guilty to one count each of conspiracy to distribute narcotics, money laundering, and re-entry of a deported alien and was sentenced to 168 months in prison. (Pantoja Decl. Ex. 3. at 11.) He is currently incarcerated in a federal prison in Allenwood, Pennsylvania.
On May 29, 2003, plaintiff filed his original complaint in this action, naming P. Mill, C. Helay, G. Balderacchi, P. Goode, and M. Maura as defendants. On September 25, 2006, plaintiff voluntarily dismissed all claims against these defendants because they were not involved in his arrest and the alleged assault. Vasquez, 2006 WL 2789914, at *1, 3. However, the Court ordered the United States Attorney's Office ("USAO") to identify plaintiff's arresting officers and granted plaintiff leave to file an amended complaint against those officers. Id. at *6.
After the USAO identified Tim Carey, Ryan Hill, Shawn Meehan, Santiago Soto, Fred Klie and Edward Courtney as the officers in the vicinity of plaintiff's arrest, plaintiff filed an amended complaint on November 20, 2006 naming these six officers as defendants. Plaintiff contends that the officer who arrested him "beat and stumped him after he had been arrested" and that this constituted excessive force. (See Amended Complaint at 3.) Plaintiff maintains that the officer who beat him was also one of the two officers who picked him up from prison and transported him to court for his arraignment on February 20, 2002. (Vasquez Decl. ¶¶ 22-24; Jan 3, 2008 Conf. Tr. at 8:20-25, 11:9-12.) However, plaintiff was unable to identify that officer by name from among the six names provided to him by the USAO, and therefore, named all six officers in his amended complaint. (Jan 3, 2008 Conf. Tr. at 8:20-25 ("The person who laid his hands on me was the police officer who brought me to court on the following day who present me before the magistrate judge. That's the only police officer who laid hands on me. I don't know the name of that police officer, and that's why I put down all the names.")
Sometime in late 2007, defense counsel informed the Court that defendants were interested in moving for summary judgment. After the Court expressed concern that plaintiff might need discovery to determine which of the six defendants had allegedly used excessive force against him on the night of his arrest, defendants consented to limited discovery sufficient to permit plaintiff to identify the individual he believed to have violated his constitutional rights. (See Pantoja Reply Decl. Ex. 3.) By Order dated March 11, 2008, the Court directed such limited discovery to be undertaken under the supervision of Magistrate Judge Fox. (Pantoja Reply. Decl. Ex. 4.)
On May 13, 2008, Judge Fox held a telephonic status conference with the parties. The parties discussed the difficulty of identifying the officer who plaintiff alleges to have beaten him because although plaintiff had consistently maintained that the officer who assaulted him had also transported him to his arraignment on Feburary 20, 2002, the record indicated that there were two officers (Klie and an unknown officer) who transported plaintiff from prison to court for his arraignment and a third officer (Carey) was also present in the courtroom during that proceeding. After some discussion regarding possible procedures that would enable plaintiff to identify the proper defendant, Judge Fox ordered defense counsel to gather photographs of all six defendants and to show them to plaintiff to see if he could identify the officer who allegedly assaulted him. (See Pantoja Reply Decl. Ex. 5.)
While the government was in the process of gathering photographs of the six defendants, plaintiff sent a letter to the USAO dated June 26, 2008 requesting discovery pursuant to Federal Rule of Civil Procedure 56(f). Among other things, plaintiff requested "[c]opies of the arresting agency's reports dealing with the investigation of that day and resulting surveillance; to include the actual arrest," and all "reports of the subsequent criminal prosecution and [the] involvement in that process [of any agencies involved]." (Pantoja Reply Decl. Ex. 5.) By letter to Magistrate Judge Fox dated July 14, 2008, the government opposed this request to the extent that the Rule 56(f) motion was not the appropriate vehicle for discovery, there being no summary judgment motion pending at that time. (See id.) The government's letter also informed Judge Fox that the government had been able to gather photographs of five of the six defendants, and was still working to obtain a photograph of Courtney. (Id.)
On July 28, 2008, Judge Fox held another status conference. Judge Fox denied plaintiff's request for discovery under Rule 56 as either premature or misplaced, there being no summary judgment motion pending at that time. Judge Fox stated that he believed it was still best to proceed by having plaintiff attempt to identify the proper defendant through review of the officers' photographs, and that additional discovery would only be necessary if plaintiff was unable to identify his attackers from the photographs. The day after the conference, Judge Fox issued an order directing defendants to attempt to secure a photograph of Courtney via subpoena, to disclose all relevant photos of the six defendants to plaintiff on or before August 29, 2008, and to advise the Court in writing by September 5, 2008 whether, after reviewing the photographs, the plaintiff was able to identify the officer whom he alleges assaulted him. (Docket Entry 53.)
On August 27, 2008, defense counsel deposed plaintiff and showed him photographs of the five defendants whose photographs had been located as of that date. (See generally, Pantoja Decl. Ex. 8.) Plaintiff was informed at the start of the deposition that counsel did not yet have a photograph of Courtney. (Id. at 4:1-10.) Plaintiff was then handed five photographs. (See id. at 4:25-5:1.) Plaintiff reviewed the photographs and stated that four of the five photographs-those of Klie, Meehan, Soto and Hill-were not the officer who assaulted him. (See id. at 5:2-9.) That left one photograph, of defendant Carey, for plaintiff to review. Plaintiff remarked that the photograph of Carey was out of focus and not very clear, but noted that "it does look like him." (Id. at 6:8-14.)
The testimony that followed is somewhat unclear, but plaintiff appeared to suggest that the officer who injured him was smaller than Carey appeared from the photo. (See id. at 6:13-7:18.) Plaintiff testified that the officer who assaulted him was shorter than he was-plaintiff is 5'8-and was probably about 5'5 or 5'6 in height and about 160 pounds. (See id. at 6:13-21.) Ultimately, plaintiff did not provide a definitive identification at his August 27, 2008 deposition because he wanted to be able to compare the photograph of Carey that he had singled out to the missing photograph of Courtney before making an identification. (See id. at 6:2-4, 7:16-18, 8:2-3.) He also requested that he be provided with a clearer photograph of Carey for the next deposition. (See id. at 8:25-9:1.)
Meanwhile, plaintiff continued his efforts to obtain broader discovery from defendants. Sometime between July 28, 2008 and September 5, 2008, plaintiff requested that his June 26, 2008 application for discovery under Rule 56, which Judge Fox had rejected as premature and procedurally improper, be deemed an application for discovery under Rule 26 and/or 37 of the Federal Rules of Civil Procedure. By Order dated September 5, 2008, Judge Fox again denied that request as premature, noting that the Court had permitted only limited discovery to enable plaintiff to identify the law enforcement officer whom he alleges violated his rights. (Docket Entry 54.) Judge Fox noted ...