United States District Court, E.D. New York
MEMORANDUM OF DECISION AND ORDER
LaSHANN DeARCY HALL, United States District Judge
Joel John brings this action against Defendants the City of
New York (the “City”), the New York City Police
Department (the “NYPD”), Sergeant Clifford Louis,
and police officers John McManus, Antoine Gilkes, and
Nicholas Guele (the “Officer Defendants”)
(together “Defendants”), alleging violations of
his rights secured by state and federal laws in connection
with events that occurred on August 30, 2013, and September
8, 2013. Defendants move pursuant to Federal Rule of Civil
Procedure 56 to dismiss the complaint in its entirety.
night of August 30, 2013, Plaintiff hosted an outdoor event
at his home at 1935 Bedford Avenue, in Brooklyn, New York.
(Pl.’s 56.1 Statement ¶¶ 4, 6, 9, ECF No.
42.) There are two homes located on the lot at 1935 Bedford
Avenue, both of which are occupied by Plaintiff and his
family. (Id. ¶ 5; Braun Decl. Ex. C, at
23:21-24:14, ECF No. 40-3.) At approximately 11:43 p.m., a
311 complaint was received concerning loud music at
Plaintiffs home. (Pl.’s 56.1 Statement ¶ 1.) In
response to the complaint, officers were dispatched to
Plaintiffs address and informed him of the noise complaint.
(Id. ¶¶ 15-16.) Shortly after the officers
arrived, a verbal altercation ensued between Plaintiff and
the officers. (Id. ¶¶ 17-18.) Plaintiff
alleges - and Defendants dispute - that he was physically
assaulted by officers and sustained injuries to his arm, leg,
and face. (Id. ¶¶ 25-26; see also
Defs.’ Reply Br. 7-8, ECF No. 44.) Specifically,
Plaintiff testified that an officer twisted his hand and
shoved his face onto the hood of a car while another officer
punched him in the face. (Braun Decl. Ex. C, at 94:6-20, ECF
No. 40-4.) Plaintiff was subsequently arrested. (Pl.’s
56.1 Statement ¶ 21.) At some point prior to
his arrest, officers instructed Plaintiff to place his hands
behind his back. (Id. ¶ 19.) Plaintiff
initially did not comply with this request (id.
¶ 20), but was ultimately arrested in the driveway of
his property. (Id. ¶ 21.) Plaintiff testified
that he told the officers after he was arrested that he
wanted medical treatment for his injuries but did not receive
any such treatment. (Id. ¶ 26; see
also Braun Decl. Ex. C, 126:19-127:6.)
criminal court complaint dated August 31, 2013, Plaintiff was
charged with resisting arrest, unlawful possession of
marijuana, and prohibited noise. (Pl .’s 56.1 Statement
¶ 29; Braun Decl. Ex. G, ECF No. 40-8.) On December 9,
2014, Plaintiff accepted an adjournment in contemplation of
dismissal for those charges. (Pl.’s 56.1 Statement
¶ 30; Braun Decl. Ex. H, ECF No. 40-9.)
motion for summary judgment should be granted where
“the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A
“material fact” is one “that might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Thus, “the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.” Id. at 247-48. The
movant bears the initial burden of demonstrating the absence
of a genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the movant meets
that burden, the non-movant may defeat summary judgment only
by producing evidence of specific facts that raise a genuine
issue for trial. See Fed. R. Civ. P. 56(e); see
also Anderson, 477 U.S. at 248 (noting that party
opposing a properly supported motion for summary judgment
must set forth specific facts showing that there is a genuine
issue for trial); Davis v. New York, 316 F.3d 93,
100 (2d Cir. 2002) (non-moving party must “go beyond
the pleadings” to show that there is a genuine issue
for trial). To do so, non-movants must present concrete
evidence and rely on more than conclusory or speculative
claims. See Castro v. County of Nassau, 739
F.Supp.2d 153, 165 (E.D.N.Y. 2010) (“[T]he nonmoving
party may not rest upon mere conclusory allegations or
denials but must set forth ‘concrete particulars’
showing that a trial is needed.”) (citing R.G.
Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77
(2d Cir. 1984)). That is, although the court is to view the
facts presented in the light most favorable to the
non-movant, drawing all reasonable inferences in his favor,
Anderson, 477 U.S. at 255, the non-movant must still
do more than merely assert conclusions that are unsupported
by arguments or facts. See Castro, 739 F.Supp.2d at
165 (citing Bellsouth Telecomms., Inc. v. W.R. Grace
& Co., 77 F.3d 603, 615 (2d Cir. 1996)).
brings claims for excessive force, assault and battery, and
failure to intervene, pursuant to 42 U.S.C. § 1983, for
injuries he is alleged to have suffered as a result of the
events that occurred on August 30, 2013. (See Am.
Compl., ECF No. 11.)
move for summary judgment on Plaintiff’s excessive
force, assault and battery, and failure to intervene claims,
and also seek a determination that, as a matter of law, the
Officer Defendants are entitled to qualified immunity from
any liability that may arise from the events that occurred on
both August 30, and September 8, 2013.
Excessive Force and Assault and Battery Claims
Excessive Force Claim
long settled that the Fourth Amendment protects people from
the use of excessive force during an arrest. See Tracy v.
Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (noting that
use of force that is unreasonable is “therefore
excessive”); see also Lemmo v. McKoy, No.
08-cv-4264, 2011 WL 843974, at *4 (E.D.N.Y. Mar. 8, 2011)
(explaining that excessive force claim for conduct alleged to
have occurred during an arrest is governed by Fourth
Amendment standard). In assessing a claim brought for
excessive force, the question is whether the force was
objectively reasonable under the circumstances.
Lemmo, 2011 WL 843974, at *4 (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). Thus, “the
inquiry is necessarily case and fact specific and requires
balancing the nature and quality of the intrusion on the
plaintiff’s Fourth Amendment interests against the
countervailing governmental interests at stake.”
Freshwater, 623 F.3d at 96 (citing Amnesty Am.
v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir.
2004)); see also Brown v. City of New York, 798 F.3d
94, 100 (2d Cir. 2015) (citing Graham, 490 U.S. at
396). Among other things, courts consider the severity of the
crime, whether the suspect posed an immediate threat to those
around him, and whether the suspect was actively resisting
arrest. See Brown, 798 F.3d at 100 (listing factors
and quoting Graham, 490 U.S. at 396); Pooler v.
Hempstead Police Dep’t, 897 F.Supp.2d 12, 25
(E.D.N.Y. 2012) (citing same factors as part of court’s
“inquiry into the totality of the
argue that their motion should be granted in their favor
because Plaintiff failed to put forth evidence of significant
injuries and did not seek medical treatment. (Defs.’
Mot. 14, ECF No. 38.) The Court finds this position
unpersuasive. Courts in this Circuit routinely deny motions
for summary judgment on excessive force claims where
plaintiffs have alleged even lesser amounts of force and
similarly did not allege to have suffered severe injuries.
See Robison v. Via, 821 F.2d 913, 923-24 (2d Cir.
1987) (affirming denial of summary judgment where plaintiff
alleged officers “yanked” her from her car,
pushed her, and twisted her arm, and she did not seek medical
treatment for her injuries, because “[i]f the force
used was unreasonable and excessive, the plaintiff may
recover even if the injuries inflicted were not permanent or
severe”); Lemmo, 2011 WL 843974, at *7
(denying defendants’ motion for summary judgment on
claim that “cranking” of plaintiff’s thumbs
could have been excessive because it may have been
“entirely gratuitous”); Li v. Aponte,
No. 05-cv-6237, 2008 WL 4308127, at *6 (S.D.N.Y. Sept. 16,
2008) (denying summary judgment on assault and battery claim
under “parallel” Fourth Amendment standard where
plaintiff had evidence of bruising and finding that
“[e]ven setting aside the evidence of
[plaintiff’s] injuries, repeatedly pushing and pressing
an arrestee against a column is within the bounds of
actionable conduct”); Pierre-Antoine v. City of New
York, No. 04-cv-6987, 2006 WL 1292076, at *5 (S.D.N.Y.
May 9, 2006) (denying defendant’s motion for summary
judgment where medical evidence did not reveal severe injury
because the fact finder was entitled to weigh strength of
medical evidence against plaintiff’s testimony to
determine whether force was excessive); see also
Davenport v. County of Suffolk, No. 99-cv-3088, 2007 WL
608125, at *10-11 (E.D.N.Y. Feb. 23, ...