Pierre v. The City of New York et al
MEMORANDUM AND ORDER: For the reasons set forth in the Court's March 31, 2021 Memorandum and Order, Defendants' motion for summary judgment 37 38 39 40 41 42 43 is GRANTED in part and DENIED in part. Plaintiff's claims pu rsuant to 42 U.S.C. § 1983 for false arrest and malicious prosecution are dismissed. Plaintiff's claim pursuant to 42 U.S.C. § 1983 for excessive force survives. See attached memorandum and order for details. The parties shall file a j oint pretrial order, in strict compliance with this Court's Individual Practices, by May 13, 2021. The Clerk of Court is respectfully directed to enter judgment on Plaintiff's false arrest and malicious prosecution claims and mail a copy of this memorandum and order to the pro se litigant. Ordered by Judge LaShann DeArcy Hall on 3/31/2021. (Williams, Erica)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK, POLICE OFFICER
JASON CHAMBERS, and POLICE OFFICER
MEMORANDUM AND ORDER
18-CV-618 (LDH) (LB)
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Lionel Pierre, proceeding pro se, brings the instant action against Defendants
New York City Police Department (“NYPD”) Officers Jason Chambers and James Melissinos
pursuant to 42 U.S.C. § 1983 alleging claims for false arrest, malicious prosecution, and
excessive force. Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure
for summary judgment to dismiss the amended complaint in its entirety.
UNDISPUTED FACTS 1
On February 20, 2015, Plaintiff was driving southbound on Springfield Boulevard in
Queens, New York. (Defs.’ Statement of Material Facts Pursuant to Local Civ. R. 56.1 (“Defs.’
56.1”) ¶ 1, ECF No. 40.) Plaintiff turned left onto Merrick Boulevard. (Id. ¶ 2.) According to
Defendants, Plaintiff failed to use a turn signal. (Id. ¶ 3.) Meanwhile, a pedestrian was walking
in the crosswalk. (Id. ¶ 4.) According to Defendants, Plaintiff made the turn at a “high rate [of]
speed,” and did not slow down, stop, or sound his horn for the pedestrian, but rather maintained
Unless otherwise noted, the following facts are taken from the parties’ statements of material facts pursuant to
Local Rule 56.1 and are undisputed. Facts that are not contradicted by citations to admissible evidence are deemed
admitted. See Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party . . . fails to
controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed admitted.”).
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the same speed and swerved around the pedestrian. (Id. ¶ 5; Feb. 3, 2020 Decl. Tristan
Montaque (“Montaque Decl.”) Ex. F ¶ 4, ECF No. 39-6.)
Officer Chambers, who was on patrol nearby with Officer Melissinos, observed Plaintiff
nearly strike the pedestrian. (Defs.’ 56.1 ¶ 7.) Afterwards, Defendants flashed their lights and
siren and pulled Plaintiff over on the southwest corner of 134 Road and 219 Street after Plaintiff
continued driving several blocks. (Id. ¶ 8.) Defendants exited their vehicle to approach Plaintiff.
(Id. ¶¶ 9–10.) As Defendants approached him, Plaintiff called 911 and reported there was a
conspiracy against him and that the NYPD “planted” the pedestrian in the crosswalk to frame
him. (Id. ¶¶ 10–11.) Defendants maintain that they did not have their guns drawn as they
approached Plaintiff. (See id. ¶ 9.)
Defendants assert that at some point, Plaintiff began yelling and screaming in view of the
public. (Id. ¶ 12.) Ultimately, Plaintiff was removed from his vehicle, after which Officer
Chambers attempted to place Plaintiff in handcuffs. (Id. ¶ 13; Montaque Decl., Ex. D at 65:22–
24.) Defendants assert that as Officer Chambers attempted to handcuff him, Plaintiff began
twisting and flailing his arms in an attempt to resist arrest. (See Defs.’ 56.1 ¶ 13.) Eventually,
Plaintiff was handcuffed, though he does not remember by whom. (Id. ¶¶ 13–14; Montaque
Decl. Ex. D at 70:3–5.) Plaintiff maintains that he suffered injury to his wrist and shoulder as a
result of being tightly handcuffed. (Defs.’ 56.1 ¶ 17.) Plaintiff informed one of the officers that
his handcuffs were too tight, but he does not recall who. (See id. ¶ 16; Montaque Decl. Ex. D at
Plaintiff disputes Defendants’ versions of events. Specifically, Plaintiff disputes that he
failed to use a turn signal when turning left onto Merrick Boulevard, (Pl.’s Counterstatement of
Material Facts (“Pl.’s Counter 56.1”) ¶ 2, ECF No. 35); asserts he made the turn at “normal
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speed,” (Pl.’s Opp’n Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”) 2–3, ECF No. 35); asserts Defendants
approached his vehicle with their guns drawn at him, (Pl.’s Counter 56.1 ¶ 14); disputes that he
began yelling and screaming in view of the public, (Id. ¶ 12); and disputes that he resisted arrest,
(Id. ¶ 13.)
Following his February 20, 2015 arrest, Plaintiff was arraigned on the following
misdemeanor charges: (1) reckless endangerment in the second degree in violation of N.Y.
Penal Law § 120.20, (2) resisting arrest in violation of N.Y. Penal Law § 205.30, (3) reckless
driving in violation of N.Y. Vehicle and Traffic Law § 1212, (4) failing to exercise due care in
violation of N.Y. Vehicle and Traffic Law § 1146, and (5) failing to signal in violation of N.Y.
Vehicle and Traffic Law § 1163. (Defs.’ 56.1 ¶ 24.) On September 22, 2015, the reckless
endangerment and reckless driving charges were dismissed for facial insufficiency. (Id. ¶ 25.)
On March 8, 2016, Plaintiff accepted an adjournment in contemplation of dismissal as to the
remaining charges. (Id. ¶ 26.) On September 7, 2016, all charges against Plaintiff were
dismissed. (Id. ¶ 27.)
STANDARD OF REVIEW
Summary judgment must be granted when there is “no genuine dispute as to any material
fact and the movant[s] [are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The movants bear the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Feingold v. New York, 366 F.3d 138,
148 (2d Cir. 2004). Where the non-movant bears the burden of proof at trial, the movants’ initial
burden at summary judgment can be met by pointing to a lack of evidence supporting the non-
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movant’s claim. Celotex Corp., 477 U.S. at 325. Once the movants meet their initial burden, the
non-movant may defeat summary judgment only by adducing evidence of specific facts that raise
a genuine issue for trial. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250; Davis v. New
York, 316 F.3d 93, 100 (2d Cir. 2002). The Court is to believe the evidence of the non-movant
and draw all justifiable inferences in his favor, Anderson, 477 U.S. at 255, but the non-movant
must still do more than merely assert conclusions that are unsupported by arguments or facts,
BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).
“It is well established that the submissions of a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and emphasis omitted),
including when facing a summary judgment motion, Jorgensen v. Epic/Sony Records, 351 F.3d
46, 50 (2d Cir. 2003). Nevertheless, the “application of this different standard does not relieve
plaintiff of his duty to meet the requirements necessary to defeat a motion for summary
judgment.” Id. at 50 (internal quotation marks omitted).
Defendants argue that Plaintiff’s claim for false arrest fails because they had
probable cause to arrest him. (Defs.’ Mem. L. Supp. Summ. J. (“Defs.’ Mem.”) 4–6,
ECF No. 41.) The Court agrees.
It is well-settled that “[p]robable cause is a complete defense to an action for
false arrest brought under New York law or § 1983.” Ackerson v. City of White Plains,
702 F.3d 15, 19 (2d Cir. 2012) (internal citation and quotation marks omitted). An
officer has probable cause when he has “reasonably trustworthy information as to  facts
and circumstances that are sufficient to warrant a person of reasonable caution in the
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belief that an offense has been . . . committed by the person to be arrested.” Id.
(alterations in original) (quoting Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)).
Of particular relevance here, the Supreme Court has held that “warrantless arrests for
crimes committed in the presence of an arresting officer are reasonable under the
Constitution . . . .” Virginia v. Moore, 553 U.S. 164, 167, 176 (2008) (finding a
warrantless arrest for misdemeanor traffic violation constitutional).
Here, Defendants maintain that they observed Plaintiff make a left turn at a “high
rate [of] speed,” without using a turn signal, nearly striking a pedestrian in the crosswalk.
(Defs.’ 56.1 ¶¶ 3–5; Montaque Decl., Ex. F ¶ 4.) And, according to Defendants, Plaintiff
did not slow down, stop, or sound his horn for the pedestrian but maintained the same
speed, swerving around the pedestrian. (Defs.’ 56.1 ¶ 5.) Plaintiff disputes Defendants’
version of events. However, dash cam footage from Plaintiff’s vehicle shows Plaintiff
making a left turn while failing to stop or slow down for a pedestrian in the crosswalk,
nearly striking the pedestrian, and failing to use his horn to alert the pedestrian. 2 (See
Montaque Decl. Ex. A.) 3
Plaintiff was subsequently arrested for, among other things, reckless driving in
violation of V.T.L. § 1212 and failing to exercise due care in violation of V.T.L. § 1146.
The Court is unable to determine from the video how fast Plaintiff was driving and whether Plaintiff used a turn
On July 7, 2020, Defendants provided the Court Defendants’ Exhibit A (ECF No. 39-2.), a non-text exhibit, on a
compact disk, in accordance with this Court’s Individual Practices. By order dated Mach 10, 2021, the Court
directed Defendants to provide the Court with Exhibit A in an electronic format viewable for the Court on or before
March 16, 2021. Defendants provided the video footage to the Court via an electronic file share, accordingly. The
Court may rely upon video evidence to resolve questions of fact on a motion for summary judgment. Scott v.
Harris, 550 U.S. 372, 379–80 (2007) (considering deputy’s motion for summary judgment, the court should view
the facts in the light depicted by videotape which captured events underlying excessive force claim); Fabrikant v.
French, 691 F.3d 193, 215 n.6 (2d Cir. 2012) (affirming grant of summary judgment based on probable cause and
qualified immunity in part relying on video evidence where plaintiff did not dispute accuracy of video, but
“dispute[d] only how to characterize that evidence”).
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(Defs.’ 56.1 ¶ 24.) Reckless driving is driving in a manner which “unreasonably
interferes with the free and proper use of the public highway, or unreasonably endangers
users of the public highway.” V.T.L. § 1212. A driver fails to exercise due care when he
fails to attempt to “avoid colliding with any . . . pedestrian . . . upon any roadway and
shall give warning by sounding the horn when necessary.” Id. § 1146(a). On these facts,
Defendants had probable cause to arrest Plaintiff for traffic violations committed in their
presence. There is no genuine issue of material fact, and Defendants are entitled to
judgment as a matter of law on Plaintiff’s false arrest claim.
To establish a claim for malicious prosecution under New York law, a plaintiff must
prove “(1) the initiation or continuation of a criminal proceeding against [him]; (2) termination
of the proceeding in [his] favor; (3) lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for [defendants’] actions.” Manganiello v. City of New York,
612 F.3d 149, 161 (2d Cir. 2010) (quotations omitted). Defendants argue that Plaintiff cannot
prove any element of his claim. (Defs.’ Mem. 6–8.) The Court agrees.
First, Plaintiff fails to prove that Defendants’ initiated or continued any criminal
proceeding against him. To satisfy this element, “it must be shown that the defendant[s] played
an active role in the prosecution, such as giving advice and encouragement or importuning the
authorities to act.” Mitchell v. Victoria Home, 434 F. Supp. 2d 219, 227 (S.D.N.Y. 2006)
(quoting DeFilippo v. County of Nassau, 583 N.Y.S.2d 283, 284 (2d Dept. 1992)). Here, the
record is devoid of any evidence that Defendants did more than participate in Plaintiff’s arrest.
However, an arrest without more is insufficient to establish the requisite initiation. See Weiner v.
McKeefery, 90 F. Supp. 3d 17, 33, n.4 (E.D.N.Y. 2015) (recognizing that a police sergeant’s
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signature on a civilian arrest form is insufficient to constitute an initiation of a criminal
prosecution for purposes of a malicious prosecution claim).
Second, Plaintiff fails to establish that any of the charges terminated in his favor. The
charges lodged against Plaintiff for reckless endangerment and reckless driving were each
dismissed for facial insufficiency. (Defs.’ 56.1 ¶ 25.) The Second Circuit has held that dismissal
for facial insufficiency is “not a [favorable] decision on the merits,” which is an “essential
element of a cause of action for malicious prosecution.” Breen v. Garrison, 169 F.3d 152, 153
(2d Cir. 1999) (affirming district court’s dismissal of a malicious prosecution claim, on summary
judgment, where the charges underlying the claim were dismissed for facial insufficiency). The
charges for resisting arrest, failing to exercise due care, and failing to signal were each adjourned
in contemplation of dismissal. (Defs.’ 56.1 ¶ 26.) An adjournment in contemplation of dismissal
is “a conditional dismissal that becomes final 6–12 months thereafter if the court has not in the
interim, on motion of the prosecutor, restored the case to the calendar upon determining that the
dismissal ‘would not be in furtherance of justice[.]’” 4 Fulton v. Robinson, 289 F.3d 188, 196 (2d
Cir. 2002) (quoting N.Y. Crim. Proc. Law § 170.55(2)). For the purposes of a malicious
prosecution claim, therefore, an adjournment in contemplation of dismissal is not deemed a
favorable determination “because it leaves open the question of the accused’s guilt.” Fulton, 289
F.3d at 196.
Third, Plaintiff has not established a lack of probable cause. As discussed above, the
Court has already determined that there was probable cause for the arrest. Where probable cause
to arrest existed, a plaintiff must show that the defendants learned of some “intervening facts”
undermining probable cause “between arrest and initiation of prosecution, [or the] claim of
On September 27, 2016, all charges against Plaintiff were dismissed. (Defs.’ 56.1 ¶ 27.)
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malicious prosecution cannot survive.” Thomas v. City of New York, 562 F. App’x 58, 60 (2d
Cir. 2014); see also Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d. Cir. 1996) (“In order
for probable cause to dissipate [between arrest and prosecution], the groundless nature of the
charges must be made apparent by the discovery of some intervening fact.”). Plaintiff has
adduced no evidence of any intervening facts that might serve to undermine the probable cause
established at the time of his arrest. See Soto v. City of New York, 132 F. Supp. 3d 424, 453
(E.D.N.Y. 2015) (granting summary judgment for defendants where plaintiff produced no
evidence that law enforcement officers became aware of exculpatory evidence that could
undermine probable cause after arrest); Leogrande v. Suffolk Cty., No. 08-CV-3088, 2016 WL
889737, at *4 (E.D.N.Y. Mar. 9, 2016) (granting summary judgment to defendant officers where
plaintiff adduced no post-arrest facts that would alter the initial finding of probable cause).
There is no genuine issue of material fact, and Defendants are entitled to judgment as a matter of
law on Plaintiff’s malicious prosecution claim.
Police officers are prohibited from using “unreasonable and therefore excessive force . . .
in the course of effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). That
said, “[o]fficers are entitled to use some degree of force when restraining a suspect during an
arrest.” Faruki v. City of New York, 517 F. App’x 1, 2 (2d Cir. 2013). In assessing the
reasonableness of the force used by an officer, courts must conduct a “case and fact specific”
inquiry that balances “the nature and quality of the intrusion on the plaintiff’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Tracy, 623
F.3d at 96. Defendants maintain that none of Plaintiff’s complained of conduct constitutes
excessive of force as a matter of law. (Defs.’ Mem. 9–11.) The Court agrees, in part.
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Plaintiff asserts that Defendants approached his vehicle with their guns drawn. (Pl.’s
Counter 56.1 ¶ 14.) Defendants dispute this contention. (See Defs’ 56.1 ¶ 9.) Whether true or
not, this fact cannot support Plaintiff’s claim. Notably, Plaintiff has not contended that any
officer used a gun to exact force against him. (See generally Pl.’s Counter 56.1) Therefore,
Plaintiff’s complaint in this regard is best characterized as premised upon the threat of force. As
courts in this circuit have invariably held, threats of force, including the drawing of a gun, cannot
constitute excessive force as a matter of law. See Cabral v. City of New York, No. 12-CV-4659,
2014 WL 4636433, at *11 (S.D.N.Y. Sept. 17, 2014) (collecting cases and dismissing claim
based on drawing of gun), aff’d, 662 F. App’x 11 (2d Cir. 2016); see also Just. v. McGovern, No.
11-CV-5076, 2013 WL 1809634, at *2 (E.D.N.Y. Apr. 29, 2013) (collecting cases).
Plaintiff’s complaint concerning the use of handcuffs warrants a different conclusion.
Specifically, Plaintiff asserts that the handcuffs used during his arrest were too tight causing
injury to his wrists and shoulder. (Defs.’ 56.1 ¶ 17.) In evaluating the reasonableness of
handcuffing, courts in this circuit consider evidence that: “1) the handcuffs were unreasonably
tight; 2) the defendant ignored the [plaintiff’s] pleas that the handcuffs were too tight; and 3)
the degree of injury to the wrists.” See Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.
Supp. 2d 459, 468 (S.D.N.Y. 2008) (quoting Esmont v. City of New York, 371 F.Supp.2d 202,
215 (E.D.N.Y. 2005)). That said, the Second Circuit has cautioned that while these factors
“may, indeed, prove useful,” the test of reasonableness “is not limited to a factual checklist” and
must carefully balance the nature of the intrusion and the countervailing governmental interests
under the circumstances. Cugini v. City of New York, 941 F.3d 604, 613 (2d Cir. 2019). Thus, a
Fourth Amendment claim can lie where “an officer’s use of force in handcuffing is plainly
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unreasonable under the circumstances or where a plaintiff manifests clear signs of [his]
distress—verbally or otherwise[.]” Id. at 613 (emphasis in original).
The Second Circuit’s decision in Horace v. Gibbs is instructive. There, the court
reversed the district court’s dismissal of an excessive force claim, holding, among other things,
that “there was room for doubt as to whether [the plaintiff] posed a safety threat, immediate or
otherwise, to the [arresting] officers such that tight handcuffing [which resulted in minor injury]
was necessary.” Horace v. Gibbs, 802 F. App’x 11, 13, 16 (2d Cir. 2020). In making its finding,
the Horace court highlighted that the plaintiff was arrested for relatively minor parole
violations—driving a car, having extramarital affairs, and using “an herbal supplement . . . which
he was prohibited from using.” Id. at 16. It further noted, that, among other things, “there was
no indication that during the arrest giving rise to this claim [the plaintiff] resisted arrest or
attempted to evade arrest by flight.” Id.
This case presents similar, though not identical, circumstances. Here, Defendants do not
dispute that the handcuffs were tight or that Plaintiff was arrested for misdemeanor traffic
violations. And, though there is a dispute as to whether Plaintiff initially resisted arrest, there is
no evidence that he posed a physical threat to Defendants or was a flight risk. Defendants devote
the entirety of their argument to highlighting the lack of evidence demonstrating serious injury to
Plaintiff. (See Defs.’ Mem. 9–11.) Indeed, Plaintiff complains only of some injury to his wrist
and shoulder. (Defs.’ 56.1 ¶ 17.) However, the Second Circuit made clear in Horce that it
would be legal error for the district court to “treat one factor—the absence of serious injury—
as dispositive [on motion for summary judgment] without considering other factors such as the
reasonableness of the tight handcuffs under the circumstances and whether the defendants
ignored the plaintiff’s complaints.” Horce, 802 F. App’x at 15–16. The Court therefore rejects
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the argument that summary judgment is warranted simply because Plaintiff did not suffer serious
injury. 5 Upon consideration of whether, here, the handcuffs were unreasonably tight, whether
Defendants ignored Plaintiff’s pleas that his handcuffs were too tight, the degree of injury, the
intrusion, and the governmental interests, the Court concludes that a reasonable juror could find
the use of tight handcuffing objectively unreasonable in this case.
Defendants maintain that they are nonetheless entitled to qualified immunity on
Plaintiff’s excessive force based on tight handcuffs. (Defs.’ Mem. 12.) The Court disagrees.
“The doctrine of qualified immunity shields officials from civil liability so long as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quotations omitted). As the
Second Circuit has noted, “[t]his doctrine is said to be justified in part by the risk that the ‘fear of
personal monetary liability and harassing litigation will unduly inhibit officials in the discharge
of their duties.’” McClellan v. Smith, 439 F.3d 137, 147 (2d Cir. 2006) (quoting Thomas v.
Roach, 165 F.3d 137, 147 (2d Cir. 1999)). In assessing whether an officer is entitled to qualified
immunity, a court must consider: “(1) whether plaintiff has shown facts making out [a] violation
of a constitutional right; (2) if so, whether that right was ‘clearly established’; and (3) even if the
right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the officer to believe
the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013) (quoting Taravella v. Town of Wolcott, 599 F.3d 129, 133–34 (2d Cir. 2010)). “Even if
the force is objectively unreasonable, an officer may still be eligible for qualified immunity if it
Plaintiff alleges for the first time in opposition to summary judgment that at some point, Defendants also kicked
his legs. (Pl.’s Opp’n 3.) A plaintiff, even when proceeding pro se, may not raise new allegations for the first time
in opposition to summary judgment. See Avillan v. Donahoe, 483 F. App’x 637, 639 (2d Cir. 2012) (“The district
court did not err in disregarding allegations [pro se plaintiff] raised for the first time in response to [defendant]’s
summary judgment motion.”).
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was objectively reasonable for the officer to believe that her action[s] did not violate clearly
established law.” Keene v. Schneider, 350 F. Appx. 595, 596 (2d Cir. 2009) (emphasis in
Defendants maintain that Plaintiff conceded that he does not remember whether he ever
informed either officer of any pain due to tight handcuffs. (Defs.’ Mem. 14 (citing Defs.’ 56.1 ¶
16 (citing Montaque Decl., Ex. D at 71:12–21).)) On this basis, Defendants argue they are
entitled to qualified immunity because in February 2015, when this incident occurred, it was not
clearly established that an officer had to loosen handcuffs for an arrestee where the arrestee did
not make a specific, verbal complaint that the handcuffs were too tight and causing injury.
(Defs.’ Mem. 14.) Defendants mischaracterize the record. Plaintiff did not concede that he does
not remember whether he informed any officer that his handcuffs were too tight. (See Montaque
Decl. Ex. D at 71:12–27.) To the contrary, Plaintiff testified at his deposition that he told at least
one of the officers that his handcuffs were too tight. (See, e.g., id. at 71:1–20.) Indeed, the only
concession Plaintiff made is that he does not remember who he told. For example:
Who did you tell - I don’t recall.
(Continuing) that the handcuffs were too tight?
I don’t recall. It was the other guy, the white shit guy, who was there. It’s
got to be the boss who was there, somebody with the white shirt.
So it’s your testimony that you told the individual in the white shirt that the
handcuffs were too tight, correct?
Yes, I believe I told him my phone was on the floor too and I said could
they pick up the phone.
(Id. at 70:16–71:1.) Defendants’ only argument that they are entitled to qualified immunity is
therefore defeated by the facts. 6
The only case cited by Defendants in support of their argument is Cugini v. City of New York. In light of
Defendants’ mischaracterization of the record, Defendants’ reliance on Cugini is misplaced. In Cugini, the plaintiff
did not verbally communicate her distress from the handcuffs. See 941 F.3d at 617. Such is not the case here.
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For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in
part. Plaintiff’s claims pursuant to 42 U.S.C. § 1983 for false arrest and malicious prosecution
are dismissed. Plaintiff’s claim pursuant to 42 U.S.C. § 1983 for excessive force based on the
use of tight handcuffs survives.
Dated: Brooklyn, New York
March 31, 2021
LASHANN DEARCY HALL
United States District Judge
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