The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
ORDER ADOPTING R&R 46th PRECINCT,
Pro se Plaintiff Jose Luis Rivera ("Rivera") brings this suit, pursuant to 42 U.S.C. § 1983, for false arrest, excessive use of force, and malicious prosecution, against Police Officer Eric Federlein ("Federlein").*fn1 Federlein moves for summary judgment.
The Court has reviewed Magistrate Judge Kevin N. Fox's Report and Recommendation ("R&R") dated September 19, 2011, as well as Rivera's objections filed on October 28, 2011. For the reasons that follow, the Court adopts Magistrate Judge Fox's R&R in its entirety; and grants Federlein's motion for summary judgment.
On September 5, 2007, at approximately 1:15 p.m., Officer Federlein and his partner, Officer Meza (collectively, the "Officers"), responded to a 911 call reporting an assault at 2024 Creston Avenue, Bronx, New York. Upon arriving at the scene, the Officers met Hilton, the tenant who made the 911 call. The Officers and Hilton entered the building and encountered Rivera on the second floor landing. Federlein questioned Rivera about Hilton's accusation of harassment. Rivera was uncooperative and argumentative.*fn3 Hilton explained to the Officers that he had a prior complaint against Rivera for menacing him with an axe. Federlein then attempted to place Rivera under arrest. Rivera resisted by, inter alia, walking away, refusing to allow both hands to be handcuffed, and turning away from Federlein. A struggle ensued. Federlein placed Rivera against a wall and, subsequently, took him to the ground. A building tenant told Rivera to "stop resisting, stop resisting." During the struggle, Rivera struck Federlein in the face and Federlein struck Rivera once in the forehead to gain compliance.*fn4 After force was applied, Rivera allowed Federlein to place handcuffs on both his hands.
Following Rivera's arrest, he was charged with two counts of assault, one count of resisting arrest, one count of obstructing governmental administration and one count of harassment relating to the these September 5, 2007 events. On June 18, 2009, after a bench trial, Rivera was convicted of second-degree harassment of Federlein. On November 23, 2010, the New York State Supreme Court, Appellate Division, First Department, affirmed Rivera's conviction.
On August 18, 2008, Rivera filed his 1983 Action against Federlein in this Court. On August 25, 2008, this Court referred the case to Magistrate Judge Fox for general pretrial and dispositive motions. (Dkt. No. 3). On March 3, 2010, the Court denied Federlein's motion to dismiss but held that Rivera would be precluded from offering eyewitness testimony at trial and permitting a jury to draw an adverse inference regarding Rivera's refusal to provide medical releases.
On April 4, 2011, Federlein moved for summary judgment. On September 19, 2011, Magistrate Judge Fox issued a R&R recommending that the Court grant Federlein's motion for summary judgment. On October 28, 2011, Rivera filed his objections to the R&R.
III. Magistrate Judge Fox's Report and Recommendation
Magistrate Judge Fox recommended that summary judgment be granted for Federlein on Rivera's false arrest, excessive force and malicious prosecution claims.
To establish a false arrest claim in New York, under Section 1983, a plaintiff must show that "the defendant intentionally confined him without his consent and without justification." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). "The existence of probable cause to arrest constitutes justification and 'is a complete defense to an action for false arrest.'" Id. (citation omitted). "In general, probable cause to arrest exists when the officers have knowledge . . . of facts and circumstances that are sufficient ...