The opinion of the court was delivered by: Trager, J.
Plaintiff Marco Fidel Castellar ("plaintiff") brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against federal agents Michael Caporale ("Caporale"), John McCallum ("McCallum"), John Svinos ("Svinos"), Ronald Ubaldo ("Ubaldo"), Jhovany Gomez ("Gomez"), Michael Romani ("Romani"), Louis Zeppetelli ("Zeppetelli") and "other unknown persons" (collectively "defendants").*fn1 Plaintiff alleges that defendants violated his civil rights during and immediately after his arrest on May 19, 2004. Specifically, plaintiff claims that defendants: (1) used excessive force against him while arresting him at his home on Skillman Avenue in Woodside, New York; (2) illegally searched his home and seized his property after the arrest;*fn2 and (3) assaulted him once he was in custody at 500 Pearl Street in Manhattan, New York.*fn3
Defendants Caporale, Zeppetelli and McCallum move for summary judgment on plaintiff's Skillman Avenue excessive force claim. Additionally, defendants collectively move for summary judgment on plaintiff's 500 Pearl excessive force claim.*fn4 Both parties move for summary judgment on plaintiff's search and seizure claim.*fn5 For the reasons stated below: (1) defendants' Caporale, Zeppetelli and McCallum's motion for summary judgment on plaintiff's Skillman Avenue excessive force claim is granted; (2) defendants Ubaldo, Gomez, Romani and Zeppetelli's motion for summary judgment on plaintiff's 500 Pearl excessive force claim is granted; (3) defendants Svinos, Caporale and McCallum's motion for summary judgment on plaintiff's 500 Pearl excessive force claim is denied; (4) plaintiff's motion for summary judgment on the search and seizure claim is denied; and (5) defendants' motion for summary judgment on the search and seizure claim is granted.
(1) The Underlying Criminal Case Against Plaintiff
The initial events leading up to plaintiff's arrest on May 19, 2004 are not in dispute. On July 22, 2003, plaintiff was charged in the Southern District of New York with thirty-eight counts of filing fraudulent income tax returns, obstruction of justice and witness tampering. Defs.' Ex. B. On or about May 13, 2004, while plaintiff's criminal proceeding was pending, plaintiff told his girlfriend Miriam Torres ("Torres") that if federal officers came to his house, he would "blow their brains out." Pl.'s Dep. at 11:19-24; see also United States v. Castellar, No. 03-CR-891, 2004 WL 1872293, at *1 (E.D.N.Y. Aug. 19, 2004). Torres then reported this statement to the prosecutor trying plaintiff's case. Pl.'s Dep. at 9:19-21. On May 14, 2004, the Honorable Jed S. Rakoff ("Judge Rakoff") of the United States District Court for the Southern District of New York issued a warrant for plaintiff's arrest on charges of threatened violence to law enforcement officers, obstruction of justice and witness tampering while released on bail. Defs.' Ex. E. Pursuant to this warrant, plaintiff was arrested on May 19, 2004, which is the event at issue in the instant action.*fn6 Pl.'s Dep. at 10:18--21. On August 10, 2004,*fn7 plaintiff filed this action, claiming that his civil rights were violated during and immediately after his May 19, 2004 arrest.
(2) Plaintiff's Arrest at Skillman Avenue
Construing the record in the light most favorable to plaintiff, the facts pertaining to plaintiff's arrest are as follows. At approximately 7:30 A.M. on May 19, 2004, defendants forced open the front door of plaintiff's residence, located at 5015 Skillman Avenue in Woodside, New York. Pl.'s Dep. at 10:18-21. Plaintiff was sleeping in his bedroom, located on the second floor of his home, when he was awakened to: "Mr. Castellar, your bail has been revoked." Id. at 14:4-11. Ubaldo, a Deputy United States Marshall ("DUSM") for the United States Marshals Service, entered plaintiff's bedroom, followed by DUSMs Gomez, Svinos and Romani. Id. at 17:21-24.
After they entered his bedroom, plaintiff remained in his bed and placed his hands on his head. Id. at 14:12-14. According to plaintiff, Ubaldo then slammed his shield against plaintiff's "whole body," including his face, chest and legs.*fn8
Id. at 19:21, 20:5-13. While Ubaldo's shield was pressed against plaintiff, Svinos kicked him.*fn9 Id. at 21:13-15; 27:6-9. At some point, plaintiff fell off the bed and onto the floor, and was kicked on both sides of his body, near his kidneys.*fn10 Id. at 29:
3-9. Plaintiff claims that although the officers instructed him to place his hands behind his back, they continued to press against his body, which prevented him from complying with their instructions. Id. at 29:18-21. Plaintiff further claims that he asked repeatedly: "Why are you hurting me? Why are you hitting me?" and began to cry from pain in his left shoulder and left eye. Id. at 30:1-3, 11-12, 14-15. According to plaintiff, the officers then "forcefully handcuffed" him. Id. at 30:5. After he was handcuffed, Svinos told Ubaldo to "[t]ake off [plaintiff's] ring" and to "[c]ut his finger off." Id. at 23:6-12. Plaintiff states that although Svinos was joking about cutting his finger off, Id. at 38:10, he still forced the ring off of plaintiff's hand. Id. at 23:6-12. Defendants then took plaintiff downstairs to the kitchen, where he waited until he was placed into a police car. Id. at 34:14-25.
According to plaintiff, while he was waiting in the kitchen, defendants searched plaintiff's house without his consent.*fn11
Pl.'s Dep. at 32:7, 34:23-24. Plaintiff states that he did not actually witness this alleged search, but heard about it later from Deborah Vasallo, who lived in plaintiff's house.*fn12 Pl.'s Dep. at 32:12-17, 33:22; Pl.'s Ex. Y. Plaintiff claims that defendants "wrecked" his bedroom, removed $3,000 from plaintiff's safe and took his camera and ring. Pl.'s Dep. at 51:1, 5, 7; Pl.'s Exs. W and Z. Plaintiff states that although the $3,000 was returned to him, Pl.'s Dep. at 34:4-8, he did not get back his ring and camera. Id. at 51:4-16. However, plaintiff admits that he did not return to his home following his arrest, and thus never saw the alleged damage to his bedroom and only learned from his niece that his camera was missing. Id. at 33:7-14; 51:10-14.
Defendants' account of the events surrounding the arrest is quite different from plaintiff's version. Defendants claim that when they entered the bedroom, plaintiff remained in bed with his hands underneath a blanket and refused to show his hands when instructed to do so. Svinos Dep. at 24:3-9, 26:16-20.*fn13
According to defendants, plaintiff "actively resist[ed]" arrest, "wrestling with the marshals" and "physically struggling to inhibit them from putting the handcuffs on him." Caporale Dep. at 33:5-14; see also Testimony of Caporale from Plaintiff's Bail Revocation Hearing Before Judge Rakoff on June 23, 2004, annexed to Pl.'s First Amended Complaint, Ex. 2 ("Caporale Bail Revocation Testimony") at 68:1-25 (stating that plaintiff "was very argumentative and resistant" during the arrest and that "it took three or four... U.S. Marshals to physically subdue him"). Defendants admit that, in an attempt to restrain plaintiff, Svinos "grabbed [plaintiff's] arm and put it behind his back." Svinos Dep. at 30:8-9.
Defendants deny that anything was seized from plaintiff's residence. Caporale Dep. at 36:17--20, 38:2--8. Additionally, defendants claim that they did not search plaintiff's bedroom, but that Vasallo, plaintiff's roommate, consented to a search of her bedroom and the living ...