Argued: March 10, 2017
of judgment for defendants entered by the U.S. District Court
for the Southern District of New York (Forrest,
Judge) in an action claiming false arrest,
unnecessary use of force, and First Amendment retaliation.
Because the District Court did not err in granting
defendants' motion for summary judgment on the ground of
qualified immunity, the judgment is AFFIRMED.
S. Moskovitz, Beldock Levine & Hoffman LLP, New York, NY,
for Plaintiff- Appellant.
Slack (Richard Dearing and Julie Steiner, on the brief),
Zachary W. Carter for Corporation Counsel of the City of New
York, for Defendants-Appellees.
Before: Jacobs and Droney, Circuit Judges, and Stanceu,
Imani Brown appeals an April 21, 2016 judgment of the United
States District Court for the Southern District of New York
("District Court") (Forrest, Judge) in
favor of defendants Justin Naimoli and Theodore Plevritis,
New York City police officers, on her federal and state law
claims of excessive force stemming from her arrest on
November 15, 2011. The District Court granted defendants'
motion for summary judgment on the federal claims on the
ground of qualified immunity and dismissed the state law
claims. We affirm the judgment of the District Court.
brought this action on February 13, 2013 in the District
Court against the City of New York, and against defendants
Naimoli and Plevritis in their individual capacities,
following her arrest near Zuccotti Park in lower Manhattan.
She asserted Fourth Amendment claims for false arrest and
excessive use of force, and a First Amendment retaliation
claim, under 42 U.S.C. § 1983 and also brought parallel
claims under New York state law. In its first dispositive
decision, the District Court granted summary judgment for
defendants on all of Brown's § 1983 claims and
dismissed the state law claims on jurisdictional grounds.
Brown v. City of New York, No. 13-cv-1018, 2014 WL
2767232 (S.D.N.Y. June 18, 2014) ("Brown
I"). On Brown's first appeal, this Court
vacated the judgment entered by the District Court as to the
excessive force claims and affirmed the judgment as to all
other claims before it. Brown v. City of New York,
798 F.3d 94 (2d Cir. 2015) ("Brown II").
Brown did not appeal the District Court's judgment with
respect to any of her claims against the City of New York.
Id. at 95. On remand, the District Court awarded
summary judgment to defendants Naimoli and Plevritis on the
§ 1983 excessive force claims, holding that qualified
immunity insulated these officers from liability, and
dismissed the remaining state law claims. Brown v. City
of New York, 13-cv-1018, 2016 WL 1611502 (S.D.N.Y. Apr.
20, 2016) ("Brown III").
this Court affirmed the District Court's disposition of
all of Brown's claims except the excessive force claims,
as to which the judgment of the District Court was vacated,
see Brown II, 798 F.3d at 95, the only claims
remaining in this litigation are the excessive force claims
brought under 42 U.S.C. § 1983 and under state law.
Further, because Brown did not appeal the District
Court's final decision on any of her claims against the
City of New York, id., the only claims remaining are
the excessive force claims brought against Officers Naimoli
and Plevritis in their individual capacities.
raises three arguments on appeal. Pointing to language in
this Court's opinion in Brown II remanding the
case "for trial, " she argues, first, that under
this Court's mandate the District Court was required to
hold a trial and, therefore, lacked discretion on remand to
grant summary judgment. Second, she argues that the two
defendant police officers waived any defense of qualified
immunity. Finally, she argues that the District Court erred
on the merits in holding that qualified immunity shielded the
officers from liability.
determine de novo the meaning of a previous mandate
of this Court. Carroll v. Blinken, 42 F.3d 122, 126
(2d Cir. 1994). In doing so, we reject Brown's first
argument, i.e., that the mandate required the District Court
to preside over a trial rather than resolve the excessive
force claims on a second summary judgment motion.
argument relies on language in the opinion in Brown
II stating that Brown's claim against the officers
"for use of excessive force must be remanded for trial,
" Brown II, 798 F.3d at 95, that "[t]he
assessment of a jury is needed in this case, " and that
"a jury will have to decide whether Fourth Amendment
reasonableness was exceeded . . ., " id. at
103. Brown interprets this language as a directive to the
District Court to conduct an actual trial, but this
interpretation fails to construe the references to a
"trial" and a "jury" in the context of
the issue this Court was deciding. That issue was whether the
District Court erred in granting summary judgment to
defendants on the ground that the force used in arresting
Brown was not excessive. In considering the issue of whether
excessive force was used, this Court applied the
"objective reasonableness" standard as explicated
in Graham v. Connor, 490 U.S. 386, 392 (1989). The
references to "trial" and "a jury" in the
opinion are properly understood in the context of the
requirements a movant must meet to obtain summary judgment.
See Fed. R. Civ. P. 56(a) (requiring movant to show
absence of a genuine issue of material fact and entitlement
to judgment as a matter of law). On the record before ...