The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION & ORDER
The Complaint in this action alleges claims under (1) 42 U.S.C. § 1983 for violations of James Biggs' Fourth, Fifth, and Fourteenth Amendment rights; and (2) state law for assault and battery; negligent hiring, supervision, and retention; intentional infliction of emotional distress; and malicious prosecution. As a result of earlier rulings by then-District Judge Chin,*fn1 the only remaining claims are for (1) excessive force under the Fourth and Fourteenth Amendment against Police Officers Socrates Soto and Luis Rodriguez; (2) assault and battery as against Soto and the City of New York; (3) negligent hiring as against the City of New York; and (4) intentional infliction of emotional distress as against Soto and Rodriguez. Defendants have moved for summary judgment as to all of Plaintiff's remaining claims. For the reasons stated below, Defendants' motion will be GRANTED.
Defendants Socrates Soto and Luis Rodriguez are New York City police officers. (Def. R. 56.1 Stat. ¶¶ 3, 13)*fn2 At about 3:15 a.m. on September 21, 2007, Officer Rodriguez and his partner were on patrol in the area of East 224th Street in the Bronx. They were in uniform and in a marked police vehicle. At that time, they observed a vehicle being driven in an erratic manner. Biggs was seated in the front passenger seat of this vehicle. (Id. ¶¶ 2-3, 6, 11) NYPD Central Dispatch informed Rodriguez that the vehicle had been stolen at knifepoint on September 20, 2007, and that occupants of the vehicle should be considered armed and dangerous. (Id. ¶¶ 4, 5)
Rodriguez followed the vehicle for a few blocks until it came to a stop; he then put on his vehicle's siren and flashing lights. Rodriguez ordered the driver to turn off the engine, to put the keys on the roof of the vehicle, to put his hands outside his car window, to open the door from the outside, and to exit the vehicle and lie on the ground. The driver complied with all of these instructions. (Id. ¶¶ 6-10) Rodriguez then ordered Biggs to place his hands outside of the window and to exit the vehicle; Biggs did not comply with either demand. (Id. ¶¶ 11-12)
Officer Soto of the NYPD's Bronx Auto Larceny Unit heard a radio transmission stating that NYPD officers were following a stolen vehicle on East 224th Street. After responding to the scene, Officer Soto -- also in uniform -- observed Biggs sitting in the front seat with the passenger door open and his feet outside of the car on the ground. (Id. ¶¶ 13-14, 42; Soto Aff. ¶ 3) Soto and other officers repeatedly ordered Biggs to exit the vehicle and show his hands, but Biggs did not comply. (Def. R. 56.1 Stat. ¶¶ 15-16, 18)
As Rodriguez approached the vehicle, Biggs reached into his sleeve and pulled out an object with a black handle. (Id. ¶ 20) To distract Biggs, Rodriguez shattered the back window of the car with his baton. Biggs then stood up, pulled out the object with a black handle -- revealed to be a serrated knife approximately thirteen inches long -- and exited the vehicle. (Id. ¶¶ 21-26, 43) As Biggs exited the vehicle, he waved the knife over his head in an erratic manner.*fn3 (Id. ¶ 27) Officer Rodriguez then drew his firearm, backed up, and ordered Biggs to drop the knife. Biggs did not comply. Officer Rodriguez and other officers then repeatedly ordered Biggs to drop the knife, but Biggs continued to swing the knife over his head, staring at Rodriguez and the other officers. (Id. ¶ 28-32)
With the knife still over his head, Biggs then focused his attention on Rodriguez and Soto. (Id. ¶ 33) Officer Soto instructed Biggs, at least three additional times, to drop the knife. Biggs did not comply. (Id. ¶ 34) Soto also warned Biggs that he would shoot if Biggs did not drop the knife. (Dollin Decl., Ex. A (Biggs Tr.) at 84:9-17) By that time, Biggs was no more than seven or eight feet away from Soto, "within lunging distance."*fn4 (Def. R. 56.1 Stat. ¶¶ 37-38)*fn5 Soto feared that Biggs would stab him, and feared for his life as well as for the safety of Rodriguez and the other officers. (Id. ¶¶ 39-40) Accordingly, Soto fired two shots (id. ¶ 40); the first round struck a vehicle, but the second hit Biggs' right hip. (Dollin Decl., Ex. E ¶ 18)
As a result of this incident, Biggs was charged with, and pleaded guilty to, reckless endangerment in the first degree. The criminal information filed against Biggs charged that "under circumstances evincing a depraved indifference to human life, [he] recklessly engage[d] in conduct which created a grave risk of death to another person." (Id., Ex. I; Def. R. 56.1 Stat. ¶ 51) During his September 22, 2008 plea allocution, Biggs admitted that he had "created a grave risk of death" by "pointing and waving a knife in close proximity to Police Officer Soto." (Dollin Decl. Ex. B at 3-4; Def. R. 56.1 Stat. ¶ 52)
Summary judgment is warranted when the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "The movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
"A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). In deciding a summary judgment motion, the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. General Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). However, "a party may not 'rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.'" Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)).
I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S SECTION 1983 CLAIM
"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394 (1989) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). "Where, 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, which guarantees citizens the right 'to be secure in their persons . . . against unreasonable . . . seizures' of the person." Graham, 490 U.S. at 394. In cases where a citizen claims "that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other 'seizure' . . . [s]uch claims are properly analyzed under the Fourth Amendment's 'objective reasonableness standard. . . . "' Graham, 490 U.S. at 388; see also Tennessee v. Garner, 471 U.S. 1, 7 (1985).*fn6 "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 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). "The 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.
Where an officer has employed deadly force,*fn7 the test for objective reasonableness is well established:
In order for it to be objectively reasonable for an officer to use deadly force to apprehend a suspect, he must have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Tennessee v. Garner, 471 U.S. 1, 3, 11 (1985). The objective reasonableness test will not be met if, on an objective basis, it is obvious that no reasonably competent officer would have concluded in that moment that his use of deadly force was necessary. See Malley v. Briggs, 475 U.S. 335, 341 (1986).
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