Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

2012 WL 4354763
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Frank DE MICHELE, Plaintiff,
v.
CITY OF NEW YORK, County of Westchester,
Timothy Bugge, Deodat Urprasad, Adam Mellusi,
Roger Dicarlo, Andrew Myberg, William T.
Mcguinness, Brian P. Tierney, George O. Ruiz,
Christian M Gutierrez, Mitchell B. Serlin,
Christopher M. Lieberman, Michael N. Brady,
Richard E. Pucillo, and Does 1–20, Defendants.
No. 09 Civ. 9334(PGG).

|

Sept. 24, 2012.

The City Defendants have moved for summary judgment
on Plaintiff's (1) false arrest claims, because his arrest
was supported by probable cause; (2) malicious prosecution
claims, because the prosecution was instituted with probable
cause; (3) claims against the individual City defendants, on
qualified immunity grounds; (4) claims against defendants
Bugge and Mellusi, because of a lack of evidence that they
were personally involved; and (5) claims against the City,
arguing that he has not established a basis for Monell liability.
(Dkt. No. 72)
The County Defendants have moved for summary judgment
on Plaintiff's excessive force, false arrest, assault, and battery
claims, and claim for punitive damages. (Dkt. No. 80)
For the reasons stated below, the City Defendants' and County
Defendants' motions will be granted in part and denied in part,
and Plaintiff's motion will be denied. 2

Opinion
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Frank DeMichele brings this action pursuant to
42 U.S.C. § 1983 and state law against Defendants City of
New York (the “City”), New York City Police Department
(“NYPD”) Deputy Inspector Timothy Bugge, NYPD Captain
Deodate Urprasad, NYPD Sergeant Adam Mellusi, NYPD
Officers Roger DiCarlo and Andrew Nyberg 1 (“the City
Defendants”), the County of Westchester (the “County”),
Westchester County Sergeant William McGuinness, and
Westchester County Police Officers Brian Tierney, George
Ruiz, Christian Gutierrez, Mitchell Serlin, Christopher
Lieberman, Michael Brady, and Richard Pucillo (together,
“County Defendants”), asserting claims related to his January
18, 2009 arrest. The Amended Complaint includes (1)
causes of action for excessive force, false arrest, malicious
prosecution, and deprivation of access to the courts under
Section 1983; (2) Monell claims against the County and
the City; and (3) state law causes of action for false arrest,
malicious prosecution, battery, and assault. (Am.Cmplt.)
Plaintiff has moved for summary judgment on his claims
against (1) Defendants Urprasad, Mellusi, and DiCarlo for
false arrest and malicious prosecution under Section 1983 and
state law; and (2) Defendant Ruiz for excessive force under
Section 1983. (Dkt. No. 77)

BACKGROUND
Plaintiff's claims arise out of his arrest in the early morning
hours of Sunday, January 18, 2009. County police arrested
Plaintiff for drag racing on the Hutchinson River Parkway,
while NYPD officers arrested him for armed robbery.
(County R. 56.1 Stmt. ¶¶ 64–69) 3

I. COUNTY POLICE CAR CHASE
At about 12:35 a.m on January 18, 2009, County Officer
Christian Gutierrez observed a white Mercedes Benz C63
racing with a gray Audi on the lower Hutchinson River
Parkway. (County R. 56.1 Stmt. ¶¶ 63–64) Officer Gutierrez
attempted to stop the two cars, but they accelerated and began
to recklessly weave in and out of traffic at high speed. (County
R. 56.1 Stmt. ¶ 65; Pltf. R. 56.1 Stmt. ¶ A)
Gutierrez contacted a County helicopter unit, which then
began tracking the two vehicles on the Parkway. (County R.
56.1 Stmt. ¶ 66; Jones Decl., Ex. H (Lieberman Dep.) at 29–
30; Pltf. R. 56.1 Stmt. ¶ B) The helicopter was staffed by
County Officer Christopher Lieberman, the pilot, by County
Officer Richard Pucillo, a tactical flight officer; and by
County Officer Michael Brady, a tactical flight officer in
training. (County R. 56.1 Stmt. ¶ 66) Officer Lieberman
observed the white Mercedes traveling at a high rate of speed
southbound on the Parkway, and followed it to a point where

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

it stopped in traffic on the highway shoulder. (County R. 56.1
Stmt. ¶ 67)
*2 Officer Lieberman observed a County police car—driven
by County Officer Brian Tierney—attempt to intercept the
vehicle. (County R. 56.1 Stmt. ¶ 68) Tierney drove his
patrol car onto the shoulder and positioned it immediately
in front of the white Mercedes; the front bumpers of the
two vehicles were facing each other, approximately three feet
apart. (County R.56.1 Stmt. ¶ 79; PX 13 (Tierney Dep.) at 17)
Tierney had his vehicle's headlights and police lights on, and
was able to observe that the white Mercedes's sole occupant
was a white man with short brown hair, between the ages of
18 and 22, wearing a Yankees baseball cap. (County R.56.1
Stmt. ¶ 80; Jones Decl., Ex. E (Tierney Dep.) at 20–22) The
driver of the white Mercedes put the car into reverse, and
then smashed into the front passenger side of Tierney's car.
(County R.56.1 Stmt. ¶ 81; Jones Decl., Ex. E (Tierney Dep.)
at 23) The bumper of Tierney's car was damaged (id.), and he
lost sight of the white Mercedes. (County R.56.1 Stmt. ¶ 82)
Officer Lieberman observed the white Mercedes drive at a
high rate of speed to 1164 Edison Avenue in the Bronx, where
the car's single occupant fled into that building. (County R.
56.1 Stmt. ¶ 69; Pltf. R. 56.1 Stmt. ¶ I) Lieberman transmitted
the location of the white Mercedes over the radio, and
Officer Tierney and other County police officers responded
to that location. (County R. 56.1 Stmt. ¶¶ 70, 82) At 1164
Edison Avenue, Tierney observed NYPD officers and other
County officers (County R.56.1 Stmt. ¶ 83), including County
Officers Serlin, Gutierrez, and Ruiz. (County R.56.1 Stmt. ¶
84) The County helicopter was positioned above the house,
with its spotlight trained on the ground. (County R.56.1 Stmt.
¶ 84)
Officer Tierney observed three NYPD officers, including a
captain, at the entrance to the basement apartment of the
building. (County R.56.1 Stmt. ¶ 85) County Officer Serlin
brought a police dog to the scene and had the dog sniff inside
the white Mercedes. Officer Serlin then directed the dog to
track the scent. (County R.56.1 Stmt. ¶ 56; PX 16 (Serlin
Dep.) at 12–15) The dog tracked the scent to the steps leading
down to Plaintiff's basement apartment. (Id.) NYPD officers
then knocked on the door to that apartment. (PX 16 (Serlin
Dep.) at 16)
Tierney was subsequently asked to view a suspect. From
about 10 to 15 feet away, Tierney identified DeMichele as the

individual who had been driving the white Mercedes. (County
R.56.1 Stmt. ¶¶ 86–87; PX 13 (Tierney Dep.) at 61–63)

II. NYPD ARMED ROBBERY ARREST
At some point before January 17, 2009, Robert Guerrerio, Jr.
arranged to sell Mercedes car parts to an individual over the
Internet. (City R.56.1 Stmt. ¶ 104) Late in the evening on
January 17, 2009, Guerrerio went to a golf course on Shore
Road in the Bronx, where he had agreed to sell the car parts.
(City R.56.1 Stmt. ¶ 105) At that location, Guerrerio observed
two men emerge from a customized, white Mercedes C63
automobile with a black roof. (City R. 56.1 Stmt. ¶ 106;
Nyugen Decl., Ex. B (Guerrerio Aff.) ¶ 5) One man threatened
to shoot Guerrerio, and both robbed him of his car parts and
cellular telephone. (City R. 56.1 Stmt. ¶ 106; Nyugen Decl.,
Ex. B (Guerrerio Aff.) ¶ 5) Guerrerio attempted to report the
robbery to New Rochelle police, but was instructed to report
the crime to officers at the 45th Precinct in the Bronx. (City R.
56.1 Stmt. ¶ 109; Nyugen Decl., Ex. B (Guerrerio Aff.) ¶¶ 7–
8) Guerrerio arrived at the 45th Precinct about one hour after
the robbery. (City R. 56.1 Stmt. ¶ 110; Nyugen Decl., Ex. B
(Guerrerio Aff.) ¶ 9; Pltf. R. 56.1 Stmt. ¶ FFF)
*3 While at the 45th Precinct, Guerrerio overheard a report
about a high speed car chase involving a white Mercedes C63
with a black roof. (City R. 56.1 Stmt. ¶ 111) An NYPD officer
brought Guerrerio to 1164 Edison Avenue in the Bronx,
where the car had stopped. Plaintiff resides in a basement
apartment at this location. (City R. 56.1 Stmt. ¶ 111; Pltf. R.
56.1 Stmt. ¶¶ III, KKK; see also PX 26 (Ferrer Dep) at 16–
17; County R. 56.1. Stmt. ¶ 1)
Guerrerio arrived at 1164 Edison Avenue two to three hours
after the robbery. (City R. 56.1 Stmt. ¶ 112) At that location,
Guerrerio observed a white Mercedes C63 and Plaintiff sitting
in the back of a County police car. Guerrerio told police
that the car appeared identical to the one used by the men
who had robbed him, and noted that the car was unique,
because it had been customized. (City R. 56.1. Stmt. ¶¶ 112–
13) Guerrerio also told police that Plaintiff “look[ed] like”
one of them men who had robbed him. (City R. 56.1 Stmt.
¶ 114) When Guerrerio made his identification, Plaintiff had
blood on his face, and was wearing only underwear and a tank
top. (Pltf. R. 56.1 Stmt. ¶ PPP) NYPD Defendants Urprasad
and McGuinness were present at the showup identification.
(Pltf. R. 56.1. Stmt. ¶ VVV; PX 32 (McGuinness Dep.) at 112)

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

III. PLAINTIFF'S BACKGROUND AND ACTIVITIES
ON JANUARY 17–18, 2009
The building at 1164 Edison Avenue is owned by Marcy
Manfredonia (County R. 56.1. Stmt. ¶ 2) and contains four
apartments. (Id. ¶ 12) Manfredonia and her family, including
her son—Frank Desideri—live in a basement apartment in the
building. (Id. ¶ 4) Plaintiff and his mother, Margaret Bonura,
reside in another basement apartment in the building. (Id. ¶ 1)
Plaintiff's apartment has two entrances: a front door on Edison
Avenue, and a rear door that opens onto B Street. (Id. ¶ 14)
Only Plaintiff's apartment is accessible through the rear of the
building. (Id. ¶ 16)
Plaintiff was 19 years old at the time of his arrest, and was
“good friends” with Desideri (id. ¶ 6; PX 7 (DeMichele Dep.)
at 55; Pltf. Resp. to County R. 56.1 Stmt. ¶ 6), seeing him two
to three times per week. (Id.; PX 7 (DeMichele Dep.) at 56)
Plaintiff's girlfriend, Diana Brescia, and Desideri's girlfriend,
Christina Ruocco, were also friends. (Id. ¶ 11)
Plaintiff drove a 2008 white BMW. (Id. at ¶ 8) Desideri
drove a white Mercedes that was registered to Nationwide
Maintenance General Contracting, a company owned by his
mother. (Id. ¶ 9) Plaintiff did not drive the white Mercedes
on January 17–18, 2009. (Id. ¶ 10; Jones Decl., Ex. A
(DeMichele Dep.) at 57–58)
During the afternoon of Saturday, January 17, 2009, Plaintiff
and his girlfriend, and Desideri and his girlfriend, visited
with Tristano Reveccio, at Reveccio's home. (Id. ¶ 25) In
the evening, the group left Reveccio's house in separate cars,
and drove to the Crosstown Diner. (Id. ¶¶ 28–30) 4 Plaintiff
and Brescia drove in Plaintiff's white BMW from the diner
to Plaintiff's residence, where Plaintiff parked his car on B
Street. (Id. ¶ 34) Plaintiff and Brescia then went to Plaintiff's
bedroom to watch television. (Id. ¶ 36)
*4 Shortly thereafter, Desideri entered Plaintiff's apartment
through the B Street rear entrance. (Id. ¶ 38) Plaintiff was
aware that Desideri had entered the apartment. (Id. ¶ 47)

IV. PLAINTIFF'S ARREST
Minutes after Desideri entered the apartment, Plaintiff heard a
loud knock on the rear door. (Id. ¶¶ 41–42; Pltf. R. 56.1 Stmt.
¶ X) Plaintiff's mother answered the door and spoke with
police officers. (Id. ¶ 42) County Officer Tierney identified
Plaintiff as the man he had encountered earlier that evening

driving the white Mercedes. (Id. ¶¶ 46, 87; Jones Decl.,
Ex. E (Tierney Dep.) at 61–63; PX 7 (DeMichele Dep.) at
98) NYPD Captain Urprasad, along with County Officers
Gutierrez and Ruiz, removed Plaintiff from his home. (Pltf.
R. 56.1 Stmt. ¶¶ BB–DD)
Outside, in Plaintiff's backyard, County and NYPD officers
attempted to handcuff him. (County R. 56.1 Stmt. ¶¶ 51, 90;
Pltf. R. 56.1 Stmt. ¶ HH) While against a brick wall, Plaintiff
turned his head from side to side. (Id. ¶¶ 52, 90; Jones Decl.,
Ex E (Tierney Dep.) at 73) The parties dispute to what extent
Plaintiff resisted arrest: Officer Ruiz testified that Plaintiff
was flailing his arms and attempting to kick him and Gutierrez
(PX 11 (Ruiz Dep.) at 84–89), but Plaintiff denies that he
used force to resist. (PX 7 (DeMichele Dep.) at 143–44) The
parties likewise dispute what, if any, force was used against
Plaintiff. Officers Tierney and Ruiz testified that they used
“soft hand” techniques to force Plaintiff's hands behind his
back. (County R.56.1 Stmt. ¶¶ 90, 91) Ruiz also stated that
he used “cuff control”—which involves twisting handcuffs
at a pressure point on the wrists—in response to Plaintiff's
resistance. (Pltf. R. 56.1 Stmt. ¶ OO; PX 11 (Ruiz Dep.) at
84–89) Plaintiff sustained bruises on his wrist, a scrape on his
knee, a scrape and bruises on the back of his neck, and a cut
above his left eyebrow. 5 (County R.56.1 Stmt. ¶ 92) There
were about 20 to 25 officers at the Plaintiff's residence at the
time of his arrest. (Pltf. R. 56.1 Stmt. ¶ FF)

V. POST–ARREST EVENTS
DeMichele was charged in a criminal complaint with robbery
in the first, second and third degree, with grand and petit
larceny, with resisting arrest, and with criminal possession of
stolen property. (PX 36 (Criminal Complaint)) He was held in
NYPD custody from January 18, 2009 until January 20, 2009,
when he was arraigned and released on his own recognizance.
(Pltf. R. 56.1 Stmt. ¶¶ TTTT, VVVV) He was ordered to
return to Bronx County Supreme Court on March 26, 2009.
(Pltf. R. 56.1 Stmt. ¶ WWWW)
Plaintiff's mother filed a civilian complaint with the County.
Her complaint was investigated by County Detective Steven
Fumuso. (County R.56.1 Stmt. ¶ 93; Jones Decl., Ex. M
(Fumuso Aff. ¶ 4)) Fumuso's investigation revealed that 1164
Edison Avenue was owned by Marcy Manfredonia, Desideri's
mother (id. ¶ 95), and that the white Mercedes observed at
the rear of the building on January 18, 2009, and impounded
by County police, was also owned by Manfredonia. (Id. ¶ 94)
Fumuso's investigation also revealed that Christina Ruocco,

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

Desideri's girlfriend, had falsely reported to the New Rochelle
Police Department on January 18, 2009, that the Mercedes
had been stolen. (Id. ¶ 103; Jones Decl., Ex. M (Fumuso Aff.)
¶ 6)
*5 On January 20, 2008, Det. Fumuso interviewed
Guerrerio, who reported that “he was ‘not 100% sure’ about
the identification of DeMichele.” Guerrerio, however, “had
seen the suspect vehicle at the scene on Edison Avenue, and
was positive that it was the sa[me] one that ‘Frankie Dez’
arrived in earlier at 870 Shore Road.” (Pltf. R. 56.1. Stmt. ¶
QQQ; PX 1 (Fumuso Report) at 12)
Based on his investigation, Det. Fumuso determined that it
was Desideri, and not DeMichele, who had been driving the
white Mercedes on January 18, and the County did not bring
any charges against Plaintiff. (County R.56.1 Stmt. ¶ 97;
Jones Decl., Ex. M (Fumuso Aff.) ¶¶ 6, 9))
In late January 2009, Det. Fumuso told NYPD Detective John
Fennell that Plaintiff may have been misidentified on January
18, 2009. (City R. 56.1 Stmt. ¶ 116) In order to confirm the
misidentification, Det. Fennell arranged for Guerrerio to view
a photo array on February 2, 2009. (City R. 56.1 Stmt. ¶
117) At that time, Det. Fennell confirmed that Guerrerio had
misidentified Plaintiff as one of the robbers on January 18,
2009. (City R. 56.1 Stmt. ¶ 117)
When Plaintiff returned to Bronx County Supreme Court on
March 26, 2009, the People dismissed the charges against
him. (Pltf. R. 56.1 Stmt. ¶ CCCCC; PX 39) In dismissing
the charges, the assistant district attorney noted that “there
had been a mis-identification. The first individual who was
identified, Mr. DeMichele, had not actually been present
during the incident.” (Pltf. R. 56.1 Stmt. ¶¶ EEEEE, FFFFF;
PX 39)

by the Constitution or laws of the United States.’ “ Id.
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994)).

I. SUMMARY JUDGMENT STANDARD
Summary judgment is warranted when the moving party
shows that “there is no genuine dispute as to any material
fact” and that it “is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “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. Cnty. of Nassau, 524 F.3d 160, 163 (2d
Cir.2008). “ ‘[W]here the nonmoving party will bear the
burden of proof at trial, Rule 56 permits the moving party
to point to an absence of evidence to support an essential
element of the nonmoving party's claim.’ “ Lesavoy v. Lane,
No. 02 Civ. 10162, 2008 WL 2704393, at *7 (S.D .N.Y. July
10, 2008) (quoting Bay v. Times Mirror Magazines, Inc., 936
F.2d 112, 116 (2d Cir.1991)).
*6 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 .’ “ Spinelli v. City of New York, 579
F.3d 160, 166 (2d Cir.2009) (quoting Brown v. Henderson,
257 F.3d 246, 251 (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.... [M]ere conclusory allegations or denials ...
cannot by themselves create a genuine issue of material fact
where none would otherwise exist.’ “ Hicks v. Baines, 593
F.3d 159, 166 (2d Cir.2010) (alterations in original) (quoting
Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir.1995)).

DISCUSSION

II. FALSE ARREST
Plaintiff has moved for summary judgment on his false arrest
claims against Urprasad, Mellusi, and DiCarlo, while the City
and County Defendants have moved for summary judgment
on all of Plaintiff's false arrest claims.

A number of Plaintiff's claims are brought under Section
1983, which provides “ ‘a method for vindicating
federal rights elsewhere conferred,’ including under the
Constitution.” Cornejo v. Bell, 592 F.3d 121, 127 (2d
Cir.2010) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.
3 (1979)). In order to state a claim for relief under Section
1983, “[t]he conduct at issue ‘must have been committed by
a person acting under color of state law’ and ‘must have
deprived a person of rights, privileges, or immunities secured

“To establish a claim for false arrest under 42 U.S.C. §
1983, a plaintiff must show that ‘the defendant intentionally
confined him without his consent and without justification.’
“ Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); see also
Golphin v. City of New York, 09 Civ. 1015(BSJ), 2011 WL
4375679, at *1 (S.D.N .Y. Sept. 19, 2011) (“In order to state a
claim for false arrest [under New York law], a plaintiff must
prove four elements: (1) the defendant intended to confine the

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4

De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

plaintiff, (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged.”) (citing Savino
v. City of New York, 331 F.3d 63, 75 (2d Cir.2003)). 6 “The
Fourth Amendment protects against unreasonable searches
and seizures, including false arrests, by requiring probable
cause to support the execution of any search or seizure.”
Golphin, 2011 WL 4374679, at *1 (citing Jaegly v. Couch,
439 F.3d 149, 151 (2d Cir.2006)).

A. Probable Cause
1. Applicable Standard
“Because probable cause to arrest constitutes justification,
there can be no claim for false arrest where the arresting
officer had probable cause to arrest the plaintiff.” Escalera,
361 F.3d at 743 (citing Weyant, 101 F.3d at 852 ).
See also Drummond v. Castro, 522 F.Supp.2d 667, 677
(S.D.N.Y.2007) ( “Regardless of whether the first three
prongs are satisfied, the claim for false arrest will fail
where defendants establish that probable cause existed, as the
existence of probable cause is a complete defense to an action
for false arrest.”). “In general, probable cause to arrest exists
when the officers have knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that
the person to be arrested has committed or is committing a
crime.” Weyant, 101 F.3d at 852. “The question of whether or
not probable cause existed may be determinable as a matter
of law if there is no dispute as to the pertinent events and the
knowledge of the officers.” Id. at 852.
*7 “ ‘[I]t is well-established that a law enforcement
official has probable cause to arrest if he received his
information from some person, normally the putative victim
or eyewitness.’ “ Martinez v. Simonetti, 202 F.3d 625, 634
(2d Cir.2000) (quoting Miloslavsky v. AES Eng'g Soc'y, 808
F.Supp. 351, 355 (S.D.N.Y.1992) aff'd, 993 F.2d 1534 (2d
Cir.1993)). Police officers, when making a probable cause
determination, are entitled to rely on the victim's allegations
that a crime has been committed, Martinez, 202 F.3d at
634 (citing Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119
(2d Cir.1995)), unless the circumstances raise doubt as to
the person's veracity. Singer, 63 F.3d at 119. They are also
entitled to rely on the allegations of fellow police officers.
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006) (citing
Bernard v. United States, 25 F.3d 98, 102–03 (2d Cir.1994)).
Under what is known as the “collective knowledge doctrine,”
all information known to one officer is imputed to all

other officers involved in the same investigation. Golphin,
2011 WL 4375679, at *2 (citing United States v. Colon,
250 F.3d 130, 135 (2d Cir.2001)). “[T]he determination of
probable cause does not turn on whether [the fellow officer's]
observations were accurate, but on whether [the arresting
officer] was reasonable in relying on those observations.”
Bernard, 25 F.3d at 103.
In order to determine whether an arrest was supported by
probable cause, courts must consider the “totality of the
circumstances” in light of the facts known to the arresting
officer at the time of the arrest. See Jenkins v. City of New
York, 478 F.3d 76, 90 (2d Cir.2007) (“[p]robable cause is,
of course, evaluated on the totality of the circumstances”);
Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.2007) (citing
Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“Whether
probable cause exists depends upon the reasonable conclusion
to be drawn from the facts known to the arresting officer
at the time of the arrest.”) It is, therefore, axiomatic that
subsequently discovered evidence cannot be used to cure an
arrest that was made without probable cause. Mejia v. City
of New York, 119 F.Supp.2d 232, 253 (E.D.N.Y.2000). The
eventual disposition of a criminal charge is irrelevant to the
probable cause determination for false arrest. Allen v. City of
New York, 480 F.Supp.2d 689, 711 (S.D.N.Y.2007); see also
Pierson v. Ray, 386 U.S. 547, 555 (1967).
A witness identification that later proves mistaken may
nonetheless provide a basis to find probable cause. Sanchez
v. Port Authority of New York and New Jersey, No. 08–CV–
1028 (RRM) (CLP), 2012 WL 1068078, at *5 (E.D.N.Y.
Mar. 29, 2012) (citing Hill v. California, 401 U.S. 797,
802–03 (1971) (holding that police officers had probable
cause to arrest an individual whose appearance was similar to
description in warrant). “If officers arrest an individual based
on a mistaken identification, that arrest is still constitutionally
valid if: (1) the police have probable cause to arrest the person
sought; and (2) the arresting officer reasonably believed that
the arrestee was that person.” Id.; Seitz v. DeQuarto, 777
F.Supp.2d 492, 504 (S.D.N.Y.2011).

2. Analysis
(a) County Defendants
*8 County police saw a white Mercedes drag racing on
the Hutchinson River Parkway. (County R. 56.1 Stmt. ¶ 64)
The driver of the car refused to stop for a marked police
car, intentionally rammed that police car, fled the scene,
was tracked by helicopter to 1164 Edison Avenue, and was

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

observed running from his car into the only back entrance
to 1164 Edison Avenue. (Id. ¶¶ 65–69) County officers had
ample cause to believe that a crime had been committed by
the driver of the white Mercedes. Manganiello v. City of New
York, 612 F.3d 149, 161–62 (2d Cir.2010) (quoting Zellner,
494 F.3d at 368) (“probable cause to arrest exists when the
officers have knowledge of ... facts and circumstances that
are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the
person to be arrested”).

*9 Furthermore, it is undisputed that Desideri was inside
Plaintiff's apartment when the police knocked on the door,
and that his uniquely customized white Mercedes with the
black roof—the car involved in the high speed chase—was
parked outside that apartment. (County R. 56.1 Stmt. ¶ 47;
Jones Decl., Ex A (DeMichele Dep.) at 163, 485–87; City R.
56.1 Stmt. ¶¶ 113–14) In sum, it is undisputed that County
police followed the right vehicle to the right location, and
knocked on the door to the apartment into which the suspect
had fled.

County police also had probable cause to believe that Plaintiff
was the driver of the white Mercedes. Officer Tierney saw the
driver through a car window at a distance of less than twenty
feet. (County R. 56.1 Stmt. ¶ 80) Indeed, at that time, the front
bumper of his patrol car was only three feet from the front
bumper of the white Mercedes. (Id. ¶ 79) The headlights and
emergency lights of Tierney's vehicle illuminated the scene.
(Id. ¶ 80) Tierney described the driver as a white male with
short brown hair between the ages of 18 and 22, a description
that matches Plaintiff. (Id.; Jones Decl., Ex. E (Tierney Dep.)
at 20–22)

Based on Officer Tierney's eyewitness identification, the
helicopter's observation of the path of the white Mercedes
and its driver's flight into the back entrance of 1164 Edison
Ave, and the presence of the customized Mercedes in back
of Plaintiff's apartment, the County Defendants had probable
cause to arrest Plaintiff. Accordingly, the County Defendants'
motion for summary judgment concerning Plaintiff's false
arrest claims will be granted.

As noted above, County police tracked the white Mercedes
from the air, following it from the Parkway to a parking spot
behind Plaintiff's apartment. (Id. ¶ 69) Officer Lieberman
then saw a figure run into the only back entrance to the
building, which led to Plaintiff's apartment. (Id. ¶¶ 16, 38, 70)
A police dog, after sniffing the interior of the white Mercedes,
tracked the scent to Plaintiff's apartment. (Id. ¶ 56; PX 16
(Serlin Dep.) at 12–15) When Officer Tierney saw DeMichele
outside the apartment, he immediately identified him as the
man who had been driving the Mercedes. (Id. ¶ 46; PX 13
(Tierney Dep.) at 63)
While Tierney was mistaken, it is undisputed that Plaintiff
closely resembles Desideri. Plaintiff testified that he and
Desideri look very much alike: “He basically looks like me
just with a different hair style, I guess. If we both had Yankee
hats on and wearing the same clothes, you wouldn't know
the difference that night, to be honest. Because my girlfriend
literally seen him places and used to think it was me....” (Jones
Decl., Ex. A (DeMichele Dep.) at 127–28); see also Ex. B
(DeMichele 50–H Hearing Tr.) at 47–48 (“He looks exactly
like me, just about two inches taller.”). Given the admittedly
close resemblance, and the surrounding circumstances, there
is no reason to question the bona fides of Officer Tierney's
identification. Sanchez, 2012 WL 1068078 at *5.

(b) City Defendants
Guerrerio told NYPD officers at the 45th Precinct that he had
met two men at a golf course in the Bronx for the purpose of
selling them car parts. When he arrived at the appointed time,
the two men—one of whom claimed to have a gun—robbed
him of the car parts and a cell phone. Guerrerio told police that
the two men drove away in a customized white Mercedes C63
with a black top. (Nyugen Decl., Ex. B (Guerrerio Aff.) ¶ 5;
PX 24 (Complaint Report)) In sum, the NYPD had probable
cause to believe that a crime had been committed. Martinez,
202 F.3d at 634.
While Guerrerio was at the 45th Precinct reporting the
robbery, officers heard about a high speed chase involving
a white Mercedes C63 with a black roof—the same car
Guerrerio had described. (Nyugen Decl., Ex. B (Guerrerio
Aff.) ¶ 10; PX 26 (Ferrer Dep.) at 14) Police brought
Guerrerio to 1164 Edison Avenue, where the white Mercedes
had been tracked by helicopter. (PX 26 (Ferrer Dep.) at 16)
At that location, Guerrerio identified Plaintiff as one of the
robbers, and the white customized Mercedes parked outside
Plaintiff's apartment as the car that they had driven. (Nyugen
Decl ., Ex. B (Guerrerio Aff.) ¶¶ 12–13) Accordingly,
the victim—who had been robbed only two-to-three hours
earlier in a face-to-face transaction—identified Plaintiff as the
perpetrator. (Nyugen Decl., Ex. B (Guerrerio Aff.) ¶¶ 4–6,
11–13)

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

While Guerrerio's identification, like Tierney's, was wrong,
that mistake is attributable to the close resemblance between
Plaintiff and Desideri. (Jones Decl., Ex. A (DeMichele Dep.)
at 127–28) Moreover, Guerrerio was undoubtedly influenced
by the presence of the unique customized white Mercedes he
had observed during the robbery outside Plaintiff's apartment.
(City R. 56.1 Stmt. ¶¶ 106, 113)
Where, as here, police arrest a suspect based on eyewitness
identification, there is probable cause for the arrest. See,
e.g., Wahhab v. City of New York, 386 F.Supp.2d 277, 287
(S.D.N.Y.2005) (finding that police had probable cause to
arrest a suspect in response to a 911 call from an eyewitness);
Russell v. Eighty Fourth Precinct, No. 03–CV–6179, 2004
WL 2504646, at *3 (E.D.N.Y. Nov. 8, 2004) (finding that
police had probable cause to arrest a suspect based on
eyewitness identification).
*10 Guerrerio's identification was also corroborated. The
unique vehicle he described the robbers having used
was found outside Plaintiff's apartment. Moreover, County
Officer Tierney—in the presence of one or more NYPD
officers—identified Plaintiff as the driver of that vehicle.
(County R. 56.1 Stmt. ¶ 46; PX 13 (Tierney Dep.) at 62–
63; Nyugen Decl., Ex. B (Guerrerio Aff.) ¶ 5) In light of
Guerrerio's identification of Plaintiff as his assailant, the
presence of the customized car outside Plaintiff's apartment,
and Tierney's identification of Plaintiff as the driver of that
car, no rational fact-finder could conclude that, under the
totality of the circumstances, the NYPD lacked probable
cause to arrest Plaintiff. 7
While Plaintiff argues that Sergeant Mellusi improperly
ignored his parents' claims that he was innocent, “once an
officer has probable cause to arrest a suspect, the officer
need not investigate ... claims of innocence prior to making
the arrest.” LaFontaine v. City of New York, No. 08 Civ.
1555(SHS), 2009 WL 3335362, at *5 (S.D.N.Y. Oct. 14,
2009) (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123,
128 (2d Cir.1997) (“Once a police officer has a reasonable
basis for believing there is probable cause, he is not required
to explore and eliminate every theoretically plausible claim
of innocence before making an arrest.”); Krause v. Bennett,
887 F.2d 362, 372 (2d Cir.1989) (noting that law enforcement
officers are tasked with “apprehend[ing] those suspected of
wrongdoing,” not engaging in “a weighing of the evidence”)).
Here, the officers had probable cause to arrest DeMichele on
the basis of Guerrerio's complaint and the identifications at

the time of arrest. 8 Indeed, the police had no reason to doubt
that Plaintiff had committed the robbery. 9
Plaintiff argues, however, that the showup identifications
prevent a finding of probable cause. Plaintiff argues too much
time had passed between the crime and the identifications;
that the distance from the scene of the robbery was too great;
that Guerrerio's identification was unreliable because Plaintiff
was in the back of a police car, in handcuffs, in his underwear,
with blood on his face; and that officers urged Guerrerio to
identify Plaintiff as the robber.
Showup identification procedures are generally disfavored
by the courts, Stovall v. Denno, 388 U.S. 293, 301 (1967),
but may be justified by extenuating circumstances. United
States v. Concepcion, 983 F.2d 369, 377–78 (2d Cir.1992);
United States v.. Bautista, 23 F.3d 726, 730 (2d Cir.1994)
(The Second Circuit “has instructed law enforcement officials
that where an officer has or should have doubts whether a
detained suspect is in fact the person sought, the officer must
make immediate reasonable efforts to confirm the suspect's
identity.”) (internal quotation marks omitted)). The Second
Circuit has noted that “ ‘it is now settled law that prompt onthe-scene confrontation is ‘consistent with good police work’
and does not offend the principles established in United States
v. Wade.” James v. Marshall, No. CV–05–1982 (BMC),
2007 WL 3232513, at *10 (E.D.N.Y. Oct. 31, 2007) (quoting
United States ex rel. Cummings v. Zelker, 455 F.2d 714
(1972)). Promptly conducted, on-the-scene showups make it
possible for the police to have “reasonable assurances that
they have arrested or detained the right person.” People v.
Duuvon, 77 N.Y.2d 541, 545 (1991); see also United States
v. Brown, No. (S1) 94 Cr. 631(AGS), 1995 WL 464956, at
*4 (S.D.N.Y. Aug. 7, 1995); Styles v. Van Zandt, No. 94
Civ. 1863(MGC), 1995 WL 326445, at *4 (S.D.N.Y. May
31, 1995)). Appropriate factors to consider in determining if
a particular showup is unduly suggestive include proximity
in time and location to the point of arrest, as well as the
“uncertain, emergent realities and varieties of these street
situations.” Duuvon, 77 N.Y.2d at 545; see also People v.
Hicks, 68 N.Y.2d 234 (1986); People v. Brnja, 50 N.Y.2d 366
(1980). An unduly suggestive showup has not, in itself, been
held to be a constitutional violation. Wray v. City of New York,
490 F.3d 189, 193 (2d Cir.2007).
*11 In the context of a Section 1983 case, “the relevant
inquiry for purposes of probable cause is whether the flaws
in the [identification] procedures increased the risk of a
misidentification to an extent that the resulting identification

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

no longer supports the requisite probability that the suspect
has perpetrated a crime.” See Williams v. City of New
York, No. 10–CV–2676 (JG)(LB), 2012 WL 511533, at
*7 (E.D.N.Y. Feb. 15, 2012) (factors used to determine
admissibility of identification at trial need not be applied
where the issue is probable cause). Since the probable cause
standard requires much less certainty than that necessary for
a conviction, the evidence required need not be as reliable.
Williams, 2012 WL 511533 at *7. “Concerns about reliance
on tainted evidence to convict a defendant at trial do not apply
with nearly the same force when such evidence is used to
establish probable cause.” Id.
Here, the procedures used did not “ ‘render [the
identifications] so defective that probable cause could not
reasonably be based upon [them].’ “ Id. (quoting Jenkins v.
City of New York, 478 F.3d 76, 93 (2d Cir.2007)). Guerrerio
identified Plaintiff two to three hours after the robbery, at a
location approximately four miles away. The identification
was thus not distant either in time or place. (Nguyen Decl.,
Ex. D; Ex. B (Guerrerio Aff.) ¶ 11) In the habeas context,
courts have upheld showup identifications that took place
two hours after the incident. See, e.g., Dixon v. Miller, No.
03–cv–1611, 2005 WL 3240482, at *8 (E.D.N.Y. Nov. 30,
2005) (admission of showup identification that took place one
to two hours after the crime, when a witness was brought
to the scene of petitioner's arrest, was not “unreasonable in
light of precedent”); McBride v. Senkowski, No. 98 CIV.
8663(MBM), 2002 WL 523275, at *5–6 (S.D.N.Y. Apr. 8,
2002) (showup identification two hours after crime, where the
victim was brought to a location two blocks from the crime
scene to identify suspects, found not unduly suggestive).
The fact that Plaintiff was shown to Guerrerio in handcuffs,
and in the back of a police car, does not mean that the
circumstances surrounding the showup identification were
unduly suggestive. See Charlemagne v. Goord, No. 05 Civ.
9890(DAB)(HBP), 2008 WL 2971768, at * 12 (S.D.N.Y.
June 30, 2008) (citing cases holding that showup procedures,
in which suspects were shown in handcuffs and surrounded by
police officers, were not unduly suggestive); see also Jamison
v. Grier, No. 01 CIV 6678(AGS)(AJP), 2002 WL 100642,
at *20–21 (S.D.N.Y. Jan. 25, 2002) (showup procedures
found not unduly suggestive where defendant was shown to
eyewitness in handcuffs) (citing United States v. Ortiz, 99 Cr.
532, 2000 WL 37998 at *1 (S.D.N.Y. Jan. 18, 2000) (showup
identification procedures not unduly suggestive where
“defendants [were] in handcuffs, standing beside a marked
police car, and accompanied by uniformed police officers”));

Jones v. Strack, No. 99 Civ. 1270(AJP)(LA), 1999 WL
983871, at *11 (S.D.N.Y.1999) (showup identification after
street crime not unduly suggestive where defendant was
“surrounded by police, with lights flashing, within a few
blocks of the incident”); United States v. Butler, 970 F.2d
1017, 1021 (2d Cir.1992) (identification found proper where
suspects were brought to robbery victim who was sitting
in a police car); United States v. Nelson, 931 F.Supp. 194,
197, 199–200 (W .D.N.Y.1996) (showup identification in
which single suspect was taken in handcuffs to eyewitnesses
after hot pursuit not unnecessarily suggestive)). These cases
reason that handcuffs are often “necessary incidents of an
on-the-scene identification” and do not “render the pre-trial
identification procedure unnecessarily suggestive.” Ortiz,
2000 WL 37998 at *1.
*12 Plaintiff also complains that officers suggested to
Guerrerio that Plaintiff was the robber, by saying, in sum or
substance, “this is him,” “this is the person,” and “we have his
car over there.” (Pltf. R. 56.1 Stmt. ¶ SSS; PX 7 (DeMichele
Dep.) at 175–76)
Assuming that these statements were made, the Court finds
—under the totality of circumstances—that they did not
“increase[ ] the risk of a misidentification to [such] an
extent that the resulting identification no longer supports
the requisite probability that the suspect has perpetrated a
crime.” Williams, 2012 WL 511533, at *7. Even absent these
statements, it would have been obvious to Guerrerio that the
police believed that Plaintiff was the perpetrator; this is an
inherent factor in most showup identifications. Guerrerio's
identification was based on much more than police suspicion,
however. He had had a face-to-face encounter two to three
hours earlier with a man who had robbed him of car parts
and his cell phone. (Jones Decl., Ex. D (Guerrerio Aff.) ¶
5) It is obvious that he not only had every motive to be
paying attention, but that he did pay attention: he accurately
described the uniquely customized vehicle that the perpetrator
was driving. And the probable cause determination here did
not rest exclusively on Guerrerio's identification of Plaintiff.
It was bolstered by, inter alia, (1) Guerrerio's statement to the
police that the car parked outside Plaintiff's apartment “was
identical to the car that was involved in [the] robbery” (Jones
Decl., Ex. D (Guerrerio Aff.) ¶ 12); (2) the fact that police had
tracked the robber's uniquely customized vehicle to a location
immediately outside Plaintiff's home; (3) the fact that a police
dog had then tracked the scent inside the vehicle directly to
Plaintiff's apartment; and (4) Officer Tierney's identification
of Plaintiff as the driver of that vehicle.

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

Probable cause requires only a probability, and not “hard
certainties” or even a prima facie showing of criminal
activity. Walczyk v. Rio, 496 F.3d 139, 156–57 (2d Cir.2007);
see also Illinois v. Gates, 462 U.S. 213, 231–32, 235 (1983).
That standard was met here. Because NYPD officers had
probable cause to arrest Plaintiff, the City Defendants' motion
for summary judgment on Plaintiff's false arrest claims will
be granted, and Plaintiff's motion for summary judgment on
his false arrest claims will be denied.

III. EXCESSIVE FORCE 10
Plaintiff has moved for summary judgment on his excessive
force claims against Officer Ruiz, while the County and
County Defendants Tierney, Ruiz, and Gutierrez, and
City Defendant Bugge, seek summary judgment dismissing
Plaintiff's excessive force claims against them. Plaintiff
argues that Ruiz's liability has been established as a matter of
law, while the County argues that (1) “any force used by the
County Defendants while placing Plaintiff under arrest was
de minimis, conformed to standardized techniques provided
by New York State and [was] not violative of Plaintiff's
Constitutional rights”; and (2) Plaintiff has not demonstrated
that Tierney, Ruiz, and Gutierrez were personally involved
in the use of excessive force. (County Sum. J. Br. 6)
City Defendant Bugge likewise argues that Plaintiff has not
demonstrated that he was personally involved in the use of
excessive force. (City Sum. J. Br. 17–18) The County also
contends that its officers are entitled to summary judgment
on qualified immunity grounds. (County Sum. J. Br. 7)
The Court concludes that material issues of fact concerning
Plaintiff's excessive force claims preclude a ruling as a matter
of law.

A. Legal Standard
*13 An excessive force claim that arises in the context of
an arrest invokes the protections of the Fourth Amendment,
which guarantees citizens the right “to be secure in their
person ... against unreasonable ... seizures.” Graham v.
Connor, 490 U.S. 386, 394 (1989). In order to establish that an
officer used excessive force, the plaintiff must demonstrate,
“in light of the totality of the circumstances faced by
the arresting officer, [that] the amount of force used was
objectively [un]reasonable at the time.” Amnesty Am. v. Town
of West Hartford, 361 F.3d 113, 123 (2d Cir.2004) (citing
Graham, 490 U.S. at 397). See also Batson–Kirk v. City
of New York, No. 07–CV–1950, 2009 WL 1505707(KAM)

(JMA), at *11 (E.D.N.Y. May 28, 2009); Mickle v. Morin,
297 F.3d 114, 120 (2d Cir.2002).
Because “[t]he Fourth Amendment test of reasonableness ‘is
one of objective reasonableness,’ “ Bryant v. City of New
York, 404 F.3d 128, 136 (2d Cir.2005) (quoting Graham, 490
U.S. at 399), 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. Amnesty Am.,
361 F.3d at 123. In balancing these interests, a court must
consider, inter alia, “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. (quoting
Graham, 490 U.S. at 396); see also Jones v. Parmley,
465 F.3d 46, 61 (2d Cir.2006). A court must consider the
evidence “ ‘from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.’
“ Tracey v. Freshwater, 623 F.3d 90, 96 (2d Cir.2010)
(quoting Jones, 465 F.3d at 61). Moreover, courts must “make
‘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.
(quoting Graham, 490 U.S. at 397). Nonetheless, the Second
Circuit has cautioned that, “[g]iven the fact-specific nature
of the inquiry, granting summary judgment against a plaintiff
on an excessive force claim is not appropriate unless no
reasonable factfinder could conclude that the officers' conduct
was objectively unreasonable.” Amnesty Am., 361 F.3d at 123
(citing O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir.2003)).
“ ‘Frequently, a reasonable arrest involves handcuffing the
suspect, and to be effective handcuffs must be tight enough
to prevent the arrestee's hands from slipping out.’ “ Castro
v. Cnty. of Nassau, 739 F.Supp.2d 153, 176 (E.D.N.Y.2010)
(quoting Esmont v. City of New York, 371 F.Supp.2d 202,
214 (E.D.N.Y.2005)). Placing handcuffs on an arrestee tight
enough to cause nerve damage may, however, constitute
excessive force in violation of the Fourth Amendment.
Warren v. Williams, No. Civ.A. 304CV537 (JCH) 2006 WL
860998, at *36 (D.Conn. Mar. 31, 2006) (citing Kopec v. Tate,
361 F.3d 772, 777 (3d Cir.2004); Lucky v. City of New York,
03 Civ.1983, 2004 WL 2088557, at *7 (S.D.N.Y. Sept. 20,
2004)). To determine whether the handcuffing of an arrestee
was reasonable, the handcuffing must be viewed “in light of
the minimal amount of force necessary to maintain custody
of [the arrestee].” Esmont, 371 F.Supp.2d at 215. “[I]n

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

evaluating the reasonableness of handcuffing, a Court is to
consider evidence that: (1) the handcuffs were unreasonably
tight; (2) the defendants ignored the arrestee's pleas that the
handcuffs were too tight; and (3) the degree of injury to the
wrists.” Id. (citing Burchett v. Kiefer, 310 F.3d 937, 944–45
(6th Cir.2002) (additional citation omitted)).
*14 Applying these standards here, the Court cannot find as
a matter of law either that the use of force was justified or
that it was excessive. There is conflicting evidence as to, inter
alia, the nature of the force that was used, who employed that
use of force, and the degree to which Plaintiff was resisting
arrest.

B. Resistance Offered and Force Used
Beginning with the three factors cited in Amnesty America,
361 F.3d at 123—“the severity of the crime ..., whether
the suspect poses an immediate threat to the safety of the
officer or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight”—the crime at issue—
armed robbery—was extremely serious. Given that the victim
reported that the suspect had threatened to shoot him (Jones
Decl., Ex. D (Guerrerio Aff.) ¶ 5), the officers had good cause
to fear for their safety. The suspect had also fled from police;
indeed, the suspect had led the police on a high-speed car
chase from the Hutchinson River Parkway in Westchester
County to a location in the Bronx, smashing his car into a
police cruiser along the way in order to evade capture.
It is undisputed that Gutierrez—with the help of other officers
—placed handcuffs on Plaintiff, and that he was then led out
of the back yard of 1164 Edison Avenue. (County R. 56.1
Stmt. ¶ 54; Pltf. R. 56.1 Stmt. ¶¶ II–LL; PX 7 (DeMichele
Dep.) at 148) It is likewise undisputed that Ruiz used “cuff
control” 11 “to gain [Plaintiff's] compliance.” (PX 11 (Ruiz
Dep.) at 84) The remaining facts about this incident are very
much in dispute.
Plaintiff admits that while up against the brick wall, he turned
his head from side to side (County R.56.1 Stmt. ¶¶ 52, 90;
see also Jones Decl., Ex. E (Tierney Dep.) at 81), but denies
that he resisted arrest in any other way. (PX 7 (DeMichele
Dep.) at 143–44) Brescia also testified that Plaintiff was not
resisting arrest, and would not have been able to resist arrest,
because the officers “had him.” (Jones Decl., Ex. C (Brescia
Dep.) at 166)

According to Plaintiff, however, he was pushed into a wall,
the police repeatedly “stomped” on his bare feet, his head
was repeatedly driven into the brick wall, he was repeatedly
punched in the ribs, he was “thrown down onto the floor
in the backyard” “face forward,” and then picked up by the
handcuffs attached to his wrists. 12 (PX 7 (DeMichele Dep.)
144–48, 153, 155–58) Plaintiff claims that the blows were
severe enough to cause bleeding on his feet, from his head,
and in his mouth, and Plaintiff “felt like [he] was going to
pass out.” (Id. at 146, 148) As Plaintiff was led out through
the backyard of 1164 Edison, a police officer told him to “say
good-bye to [his] pretty Mercedes.” (Id. at 161) After Plaintiff
replied, “that's not my car,” the officer punched him in the
face, and he fell to the ground. (Id. at 161, 166)
Plaintiff asserts that the handcuffs were tight enough to cause
bruising to his wrists (id. at 143), and there is evidence that
he sustained bruising on his wrists, neck and the back of
his head, a gash to his knee, and a cut above his left eye.
(PX 20, 21; Jones Decl., Ex. J (Ruiz Dep.) at 93–94) Officer
Serlin testified that he observed “blood near the bridge of
[DeMichele's] nose.” (Pltf. R. 56.1 Stmt. ¶ VV; PX 16 (Serlin
Dep.) at 31) DeMichele testified that he sought medical
treatment after his release on bail, because he was feeling pain
throughout his body, including his head, neck, back, arms,
wrists, knees, and feet. (PX 7 (DeMichele Dep.) at 251; see
also Pltf. Resp. to County R. 56.1. Stmt., Ex. 5 (letter from
treating physician))
*15 The police officers tell a very different story. Officer
Serlin testified that the Plaintiff began “to flail his arms and
struggle with the NYPD Officers” before starting to walk
up the stairs from his basement apartment. (PX 16 (Serlin
Dep.) at 18–19) Serlin stated that the NYPD officers “had
their hands on him. They were trying to subdue him but he
was not allowing them to.” (Id.) “[Plaintiff] continued to fight
and kick, throw his arms around, disregard, I guess, their
commands. I could hear them yelling at him at that point,
‘Stop resisting,’ which he didn't.” (Id. at 20)
Officer Tierney also testified that Plaintiff resisted arrest by
failing to comply with police orders to put his hands behind
his back, flailing his arms, and not cooperating with the
officers. (Jones Decl., Ex E (Tierney Dep) at 73) Tierney
testified that DeMichele kept pulling his arms away, and
turning his head from side to side, but eventually he was
pushed up against a brick wall and placed in handcuffs. (Id.
at 81–82).

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

Officer Ruiz likewise testified that Plaintiff resisted arrest,
flailed his arms, attempted to kick him and Officer Gutierrez,
and at one point broke free from their grasp while in the rear
yard. (PX 11 (Ruiz Dep.) at 44, 47, 84) Officer Gutierrez
also testified that Plaintiff refused to walk while the officers
were escorting him to the police car. (PX 10 (Gutierrez Dep.)
at 175–79) Urprasad denies having punched DeMichele or
seeing any other officer striking him. (PX 30 (Urprasad Dep.)
at 65–66, 70). Officer Gutierrez also testified that no police
officer struck Plaintiff. (PX 10 (Gutierrez Dep.) at 175–79)
In sum, there are material issues of fact concerning both the
extent to which Plaintiff resisted arrest and the degree of
force that was used in effecting Plaintiff's arrest. “Plaintiff['s]
allegations are sufficient to create issues of fact as to the
objective reasonableness of the degree of force used by the
police officers. Plaintiff[ ] aver[s] that [his] resistance to
arrest was purely passive, and that the police used more force
than was necessary to [effect the arrest]. [The Second Circuit
has] previously held that allegations involving comparable
amounts of force used during the arrest of a nonviolent
suspect are sufficient to allow a reasonable factfinder to
conclude that the force used was excessive.” Amnesty Am.,
361 F.3d at 123–24 (plaintiffs thrown to ground, dragged on
the ground face down, and had head slammed into a wall)
(citing Robison v. Via, 821 F.2d 913, 923–24 (2d Cir.1987)
(evidence that police yanked arrestee out of a car, threw her
against it, and pinned her arm behind her back were sufficient
to withstand summary judgment in excessive force case). 13
Plaintiff's motion for summary judgment on his excessive
force claim against Officer Ruiz will be denied. The County
Defendants' summary judgment motion concerning Plaintiff's
excessive force claim will likewise be denied to the extent
that it is premised on the argument that “any force used by the
County Defendants while placing Plaintiff under arrest was
de minimis, conformed to standardized techniques provided
by New York State and [was] not violative of Plaintiff's
Constitutional rights.” (County Sum. J. Br. 6)

C. Personal Involvement
*16 County Defendants Tierney, Gutierrez, and Ruiz, and
City Defendant Bugge, contend that DeMichele's excessive
force claim against them must be dismissed because he has
not demonstrated their personal involvement.
“ ‘In this Circuit, personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an

award of damages under § 1983.’ “ Smith v. New York
City Police Dept, No. 06 Cov. 15436(JSR)(KNF), 2010 WL
423039, at *4 (S.D.N.Y. Feb. 4, 2010) (quoting McKinnon
v. Patterson, 568 F.2d 930, 934 (2d Cir.1977). “To survive a
motion for summary judgment, there must be some evidence
of the personal involvement of each defendant in the alleged
constitutional deprivation.” Ricks v. O'Hanlon, No. 07 Civ.
9849(WHP), 2010 WL 245550, at *4 (S.D.N.Y. Jan. 19,
2010) (citing Williams v. Smith, 781 F.2d 319, 323 (2d
Cir.1986); Universal Calvary Church v. City of New York,
No. 96 Civ. 4606(RPP), 2000 WL 1538019, at *16 (S.D.N.Y.
Oct. 17, 2000). “ ‘Personal involvement’ is a question of fact,
governed by the general rule that summary judgment may be
granted only if no issues of material fact exist.” Shankle v.
Andreone, No. 06–CV–487 (NG)(LB), 2009 WL 3111761, at
*5 (E.D.N.Y. Sept. 25, 2009) (citing Williams, 781 F.2d at
323). “A police officer is personally involved in the use of
excessive force if the officer either: (1) directly participates
in an assault; or (2) is present during the assault, and fails
to intercede on behalf of the victim even though he had a
reasonable opportunity to do so.” Vesterhalt v. City of New
York, No. 07 Civ. 2142(MGC), 2009 WL 3424122, at *3
(S.D.N.Y. Oct. 26, 2009) (citing Ricciuti v. New York City
Transit Auth., 124 F.3d 123, 129 (2d Cir.1997)); see also
Shankle, 2009 WL 3111761, at *5 (“personal involvement
may ... be proved by, among other things, a defendant's
failure to remedy an alleged constitutional violation after
learning of it or a defendant's gross negligence in managing
subordinates” (citing Patterson v. Cnty. of Oneida, N.Y.,
375 F.3d 206, 229 (2d Cir.2004); Lehman v. Kornblau, 134
F.Supp.2d 281, 288 (E.D.N.Y.2001)).
“[A]n arrestee's ‘inability to positively identify those who
allegedly violated his rights is not per se fatal to his claims.’
“ Shankle, 2009 WL 3111761, at *5 (quoting Davis v.
Callaway, No. 3:05CV00127, 2007 WL 1079988, at *8
(D. Conn. April 9, 2007) and citing Munoz v. Martinez,
No. 03 CV 0828(LAK), 2005 WL 1355094 (S.D.N.Y.
June 8, 2005) (“A plaintiff need not establish who, among
a group of officers, directly participated in the attack
and who failed to intervene.”)) “This is especially true
where the acts complained of ... if true ... are likely to
have prevented plaintiff from identifying which [officers]
specifically engaged in the bad acts.” Shankle, 2009 WL
3111761, at *5 (citing Davis, 2007 WL 1079988, at *9); see
Shankle, 2009 WL 3111761, at *5–6 (summary judgment
denied even though plaintiff was “unable to identify the
particular officers who subjected him to excessive force”);
Munoz v. Martinez, No. 03 Civ. 0828(LAK), 2005 WL

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

1355094, at *5 (S.D.N.Y. June 8, 2005) (arrestee “must
submit some sort of evidence that [officer] was present at the
scene of the alleged assault” to survive summary judgment on
personal involvement).
*17 Here, it is undisputed that all four officers—Tierney,
Gutierrez, Ruiz, and Bugge—were present at DeMichele's
arrest at the time of the alleged use of excessive force
(PX 2 (SUI Report) at P226–P230; County Resp. to Pltf.
R. 56.1 Stmt. ¶¶ HH–OO; PX 29 (Bugge Dep.) at 28–
31, 36–41), and that Ruiz, Gutierrez, and Tierney were all
involved in handcuffing Plaintiff. (PX 13 (Tierney Dep.)
at 76; PX 10 (Gutierrez Dep.) at 35; PX 11 (Ruiz Dep.)
at 83–85) Moreover, DeMichele testified that there were
multiple officers around him when he suffered the blows
described above, and that, for part of the time he was beaten,
his face was up against a brick wall (PX 7 (DeMichele
Dep.) at 141), preventing him for seeing which officers were
taking what actions. Although DeMichele cannot say for
certain which officers allegedly assaulted him and in what
way, Plaintiff “need not establish who, among a group of
officers, directly participated in the attack and who failed
to intervene,” Jeffreys v. Rossi, 275 F.Supp.2d 463, 474
(S.D.N.Y.2003) (citing Skorupslki v. Cnty of Suffolk, 652
F.Supp. 690, 694 (E.D.N.Y.1987)), as long as “there [was]
a realistic opportunity to intervene to prevent the harm
from occurring.” Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir.1994) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d
Cir.1988)); Husbands ex rel. Forde v. City of New York, No.
05 Civ. 9252(NRB), 2007 WL 2454106, at *11 (S.D.N.Y.
Aug. 16, 2007). Given that Tierney, Gutierrez, Ruiz, and
Bugge were concededly all present when the alleged, repeated
acts of abuse took place, they had an opportunity to intervene.
Accordingly, the County Defendants' motion for summary
judgment on Plaintiff's excessive force claim willo-as to
Officers Tierney, Gutierrez, Ruiz—be denied. Defendant
Bugge's motion for summary judgment on the excessive
force claim will likewise be denied. See Ricks, 2010 WL
245550, at *5 (citing Younger v. City of N.Y., 480 F.Supp.2d
723, 731–33 (S.D.N.Y.2007) (summary judgment denied on
personal involvement grounds where arrestee alleged officers'
presence and a police report listed them as present at the
scene).

D. Qualified Immunity
The County argues that Plaintiff's excessive force claim
against the County officers must be dismissed on qualified
immunity grounds. 14 (County Sum. J. Br. 7) As a general

matter, police officers who violate a plaintiff's constitutional
rights are nevertheless entitled to qualified immunity if their
“conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir.2003). It
is well established that “use of force is contrary to the Fourth
Amendment if it is excessive under objective standards of
reasonableness.” Saucier v. Katz, 533 U.S. 194, 201–02
(2001), overruled in part on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2001) (citing Graham v. Connor,
490 U.S. 386 (1989)). However, identifying the generalized
constitutional protection is not enough; the law must be
“clearly established in a more particularized sense,” Kerman
v. City of New York, 261 F.3d 229, 236 (2d Cir.2001) (citing
Anderson v. Creighton, 488 U.S. 635, 640 (1986)), that is,
“in ... the specific context of the case.” Saucier, 533 U.S.
at 201. The Supreme Court has made clear that officers
who have used excessive force may be entitled—under the
qualified immunity doctrine—to an extra layer of protection
“from the sometimes hazy border between excessive and
acceptable force.” Id. at 206. The relevant inquiry “is whether
it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id. at 202; see
Loria v. Gorman, 306 F.3d 1271, 1286 (2d Cir.2002) (“Said
differently, ... we analyze the objective reasonableness of the
officer's belief in the lawfulness of his actions.”).
*18 As to the County officers named as defendants in
Plaintiff's excessive force claim, there are material issues
of fact that preclude summary judgment on their qualified
immunity defense. If, as Plaintiff and other witnesses have
testified, Plaintiff was not resisting arrest but was nonetheless
beaten, the officers could not have reasonably believed that
their actions were lawful. Resolution of Plaintiff's excessive
force claim and Defendants' qualified immunity defense
requires credibility determinations that are the province of a
jury. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d
Cir.1994).
To the extent that the County Defendants' motion for
summary judgment on Plaintiff's excessive force claim is
predicated on qualified immunity, it will be denied.

IV. MALICIOUS PROSECUTION
Plaintiff and the City Defendants have cross-moved for
summary judgment on Plaintiff's Section 1983 and state law
claims for malicious prosecution against the City and NYPD
officers Urprasad, Mellusi, and DiCarlo.

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

A. Legal Standard
“To state a claim for malicious prosecution [under New York
law], a plaintiff must show (1) the initiation or continuation
of a criminal proceeding against the plaintiff; (2) termination
of the proceeding in the plaintiff's favor; (3) lack of probable
cause for commencing the proceeding; and (4) actual malice
as a motivation for defendant's actions.” Drummond v.
Castro, 522 F.Supp.2d 667, 677 (S.D.N.Y.2007) (citing
Russel v. Smith, 68 F.3d 33, 36 (2d Cir.1995). To prevail on
a Section 1983 malicious prosecution claim, a plaintiff must
establish these four elements and also show that “his Fourth
Amendment rights were violated after legal proceedings were
initiated.” Douglas v. City of New York, 595 F.Supp.2d
333, 341 (S.D.N.Y.2009) (citing Fulton v. Robinson, 289
F.3d 188, 195 (2d Cir.2002) (citations omitted). To satisfy
the constitutional element, plaintiff must show a seizure or
other “perversion of proper legal procedures” implicating
plaintiff's personal liberty and privacy interests under the
Fourth Amendment. Washington v. Cnty. of Rockland, 373
F.3d 310, 316 (2d Cir.2004).
Courts considering a malicious prosecution claim must
determine whether, at the time a prosecution was commenced,
“there was probable cause to believe the criminal proceeding
could succeed and, hence, should be commenced.” Coakley
v. 42nd Pct. Case 458, No. 08 Civ. 6206(JSR), 2009 WL
3095529, at *6 (S.D.N.Y. Sept. 28, 2009) (quoting Mejia
v. City of New York, 119 F.Supp.2d at 254). “As with
a false arrest claim, the presence of probable cause is a
complete defense to an action for malicious prosecution.”
Drummond, 522 F.Supp.2d at 677 (citing Graebe v. Falcetta,
726 F.Supp. 36, 38 (E.D.N.Y.1989), aff'd, 946 F.2d 883 (2d
Cir.1991)). For purposes of a malicious prosecution claim,
“the determination of probable cause is assessed in light of the
facts known or reasonably believed at the time the prosecution
was initiated, as opposed to at the time of arrest.” Id. at 678–
79. “ ‘[E]ven when probable cause is present at the time of
arrest, evidence could later surface which would eliminate
that probable cause.’ In order for probable cause to dissipate,
the groundless nature of the charges must be made apparent
by the discovery of some intervening fact.” Lowth v. Town of
Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996) (quoting Cox
v. Cnty. of Suffolk, 780 F.Supp. 103, 108 (E . D.N.Y.1991)).

B. Analysis
*19 Given the Court's finding that Plaintiff's arrest was
supported by probable cause, Plaintiff must demonstrate that
evidence uncovered after his arrest, but before the Criminal

Complaint was filed, vitiated probable cause. Drummond,
522 F.Supp.2d at 678.
There is no such evidence. A criminal complaint—signed by
Officer DiCarlo—was filed against DeMichele on January
18, 2009. (PX 36) He was arraigned on January 20, 2009,
and released on his own recognizance. (Pltf. R. 56.1 Stmt. ¶¶
TTTT, VVVV) He was ordered to return to Bronx County
Supreme Court on March 26, 2009. (Pltf. R. 56.1 Stmt. ¶
WWWW)
The record shows that County Detective Fumuso thereafter
commenced an investigation that led him to believe that
Plaintiff had been wrongly accused. (Ptlf. R. 56.1 Stmt. ¶
XXXX; Jones Decl., Ex. M (Fumuso Aff.)) In late January
2009, Fumuso shared his concerns with NYPD Detective
Fennel. (City R.56.1. Stmt. ¶ 116) On February 2, 2009, Det.
Fennel arranged for Guerrerio to look at a photo array, and
Guerrerio identified Desideri as the man who had robbed him.
(PX 28 (Fennel Dep.) at 57–58) Fennel notified the Bronx
County District Attorney's Office of this development that
same day. (Pltf. R. 56.1 Stmt. ¶ AAAAA) When Plaintiff
returned to Bronx County Supreme Court on March 26, 2009,
the People dismissed the charges against him. (Pltf. R. 56.1
Stmt. ¶ CCCCC; PX 39)
Plaintiff has made no showing that Officer DiCarlo, or
Sergeant Mellusi and Captain Urprasad—who allegedly had
supervisory responsibility for the filing of the complaint (Pltf.
Opp. City Br. 11–14)—had any reason to doubt that there
was probable cause to begin a prosecution. The Court has
already found that the City Defendants had probable cause
to arrest Plaintiff. Plaintiff has made no showing that that
probable cause dissipated between the arrest and the filing of
the criminal complaint. See Lowth, 82 F.3d at 571.
The City Defendants' motion for summary judgment on
Plaintiff's malicious prosecution claims will be granted, and
Plaintiff's motion for summary judgment on these claims will
be denied.

V. MONELL CLAIMS
The City and County argue that they are entitled to summary
judgment on all of Plaintiff's claims because he has not
demonstrated a basis for Monell liability. See Monell v. Dep't.
of Social Servs. of City of New York, 436 U.S. 658, 694 (1978).
Plaintiff names the City as a defendant in his excessive force,
false arrest, malicious prosecution, and assault and battery
claims; the County is named as a defendant in Plaintiff's

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

excessive force, false arrest, and assault and battery claims.
(Am.Cmplt.)
As an initial matter, based on the rulings made earlier in
this opinion, the City and County are entitled to summary
judgment on Plaintiff's Monell claims to the extent that
they are predicated on false arrest and malicious prosecution
causes of action, because those claims have been dismissed.
A prerequisite to municipal liability under Monell is an
underlying constitutional violation by a state actor. “Monell
does not provide a separate cause of action for the failure by
the government to train its employees; it extends liability to
a municipal organization where that organization's failure to
train, or the policies or customs that it has sanctioned, led to
an independent constitutional violation.” Segal v. City of New
York, 459 F.3d 207, 219 (2d Cir.2006). Municipal liability
under Section 1983 thus requires proof that a particular
constitutional or statutory violation was the result of an
official policy; “a local government may not be sued under §
1983 for an injury inflicted solely by its employees or agents.
Instead, it is when execution of a government's policy or
custom ... inflicts the injury that the government as an entity
is responsible under § 1983.” Monell, 436 U.S. at 694. The
Second Circuit has explained that a plaintiff “must first prove
the existence of a municipal policy or custom in order to
show that the municipality took some action that caused his
injuries beyond merely employing the misbehaving officer.
Second, the plaintiff must establish a causal connection—an
‘affirmative link’—between the policy and the deprivation
of his constitutional rights.” Vippolis v. Vill. of Haverstraw,
768 F.2d 40, 44 (2d Cir.1985). To establish liability under
Monell, a plaintiff must show that the municipality bore some
responsibility for violations of his constitutional rights. See,
e.g., City of Canton v. Harris, 489 U.S. 378, 385 (1989).
*20 A plaintiff may demonstrate the existence of a policy or
practice in a variety of ways. First, he may provide evidence
of a formal policy officially adopted by the municipality.
Monell, 436 U.S. at 690. Second, a single unconstitutional
act or decision, when taken by an authorized decision-maker,
may be considered policy and thus subject a municipality to
liability. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520
U.S. 397, 405–06 (1997). Third, a policy may be established
by showing that the acts of the municipal agent were part of a
widespread practice that, although not expressly authorized,
constitutes a custom or usage of which a supervising policymaker must have been aware. See City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988); Monell, 436 U.S. at

690–91. “ ‘The policy or custom used to anchor liability
need not be contained in any explicitly adopted rule or
regulation,’ “ but must be “ ‘persistent and widespread.’
“ Morpurgo v. Inc. Vill. of Sag Harbor, 697 F.Supp.2d
309, 325 (E.D.N.Y.2010) (quoting Sorlucco v. New York
Police Dep't, 971 F.2d 864, 870–71 (2d Cir.1992). Fourth,
where a municipality's failure to provide adequate training
or supervision of its agents rises to the level of deliberate
indifference, Section 1983 liability may lie against the
municipality. See, e.g., Brown, 520 U.S. at 407–08; see
generally City of Canton, 489 U.S. at 388–89.
“[A] single incident alleged in a complaint, especially if it
involved only actors below the policy-making level, does
not suffice to show a municipal policy.” DeCarlo v. Fry,
141 F.3d 56, 61 (2d Cir.1998) (quoting Ricciuti v. New York
City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). Monell
liability may spring from a single violation only where the
conduct causing the violation was undertaken pursuant to a
municipality-wide custom, practice, or procedure. Sforza v.
City of New York, No. 07 Civ. 6122(DLC), 2009 WL 857496,
at *11 (S.D.N.Y. Mar. 31, 2009) (citing DiSorbo v. Hoy, 343
F.3d 172, 180–81 (2d Cir.2003)).
In order to prove that a municipality's inaction amounts
to deliberate indifference to the rights of its citizens, a
plaintiff must show that: (1) a policymaker knows “to a moral
certainty” that employees will confront a given situation; (2)
the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
difficult, or that there is a history of employees mishandling
the situation; (3) the wrong choice by the city employee will
frequently cause the deprivation of a citizen's constitutional
rights. City of Canton, 489 U.S. at 390. City of Canton
requires a plaintiff to establish not only that the officials'
purported failure to train occurred under circumstances that
could constitute deliberate indifference, but also that a
specific deficiency in the city's training program is “closely
related to the ultimate injury,” such that it “actually caused”
the constitutional deprivation. Ambrose v. City of New York,
623 F.Supp.2d 454, 465 (S.D.N.Y.2009) (citing City of
Canton, 489 U.S. at 391). Where a plaintiff has shown only
misbehaving officers, but has not offered proof of an official
policy that led to the constitutional or statutory violation, his
Monell claim under Section 1983 must fail. See, e.g., Turpin
v. Mailet, 619 F.2d 196, 203 (1980) (reversing jury verdict
against municipality in Section 1983 action where plaintiff
failed to show that unlawful arrest “was made pursuant to any
official policy of the City of West Haven”).

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A. City of New York
*21 In opposing the City's motion for summary judgment
concerning his Monell claim, Plaintiff argues that “either
a lack of training and/or an institutional culture led to the
beating, and arrest and criminal charges, without probable
cause.” (Pltf. Opp. City Br. at 21) As noted above, because
the City Defendants are entitled to summary judgment on
Plaintiff's false arrest and malicious prosecution claims,
Monell liability cannot be predicated on these claims. Claudio
v. Sawyer, 675 F.Supp.2d 403, 409–10 (S.D.N.Y.2009) (Once
a “district court properly [finds] no underlying constitutional
violation, its decision not to address the municipal defendant's
liability under Monell [i]s entirely correct.”) (quoting Segal,
459 F.3d at 219); see also Costello v. City of Burlington,
632 F.3d 41, 49 (2d Cir.2011) (to prevail on a Monell claim,
plaintiff must show that there was a constitutional violation
and that a specific policy or custom of the municipality
caused the violation); Khan v. Ryan, 145 F.Supp.2d 280,
285 (E.D.N.Y.2001) (“If there is no underlying constitutional
violation by a municipal official, the municipality is not
liable.”)
As to Plaintiff's excessive force claim, he has not pointed
to any formal policy, officially promulgated or adopted by
the City, that led to the alleged constitutional deprivation.
Monell, 436 U.S. at 691. To the contrary, Plaintiff argues
that a number of NYPD policies were violated during
his arrest. 15 (Pltf. Opp. City Br. at 21–22) Plaintiff has
likewise not offered any evidence that the excessive force
allegedly exercised here was “part of a widespread practice”
constituting “a custom or usage of which the supervisor
must have been aware.” City of St. Louis, 485 U.S. at 130.
Similarly, Plaintiff has not offered evidence that any of the
named defendants were authorized to set policy for the City
or the NYPD. Cf. Brown, 520 U.S. 397.
Indeed, Plaintiff's sole statement concerning Monell liability
premised on excessive force is that “either a lack of training
and/or an institutional culture led to ... [p]articipation by
high-ranking NYPD officers in improper police practices, and
observation of subordinate officers acting improperly, and
failing to take action to stop it.” (Pltf. Opp. City Br. at 21–22)
This assertion is not sufficient to defeat summary judgment.
Plaintiff has offered no evidence regarding the training—or
lack thereof—given to NYPD officers, nor has he offered any
proof demonstrating that the City is deliberately indifferent

to the use of excessive force. Chiaro v. Cnty. of Nassau
State of New York, No. CV 09–3702(SJF)(AKT), 2011 WL
3701804, at *6 (E.D.N.Y. July 11, 2011) (granting summary
judgment to County where the record contained no evidence
of the County's failure to train its police officers, or any
failure that amounted to “deliberate indifference”) (citing
City of Canton, 489 U.S. at 388)). Plaintiff cites to a
report prepared by his expert, Walter Signorelli (Carlino
Aff., Ex.D (Signorelli Report)), asserting that a number of
violations of police procedures and practices took place in
connection with Plaintiff's arrest. This report does not address
the training actually provided to NYPD officers, however,
and accordingly does not support Plaintiff's Monell claim.
Hickey v. City of New York, No. 01 Civ. 6506(GEL), 2004
WL 2724079, at *20 (S.D.N.Y. Nov. 29, 2004). “[I]t is
impossible to prevail on a claim that the [municipality's]
training program was inadequate without any evidence as
to ... how the training was conducted, how better or different
training could have prevented the challenged conduct, or how
a hypothetically well-trained officer would have acted under
the circumstances.” Amnesty Am., 361 F.3d at 130 (quotation
omitted).
*22 At best, Plaintiff has shown only misbehaving officers.
Because he has not offered evidence of an official policy that
led to the alleged excessive force, the City of New York is
entitled to summary judgment on his Monell claim.

B. Westchester County
In support of his Monell claim against the County, Plaintiff
relies exclusively on (1) testimony from Officer Ruiz
and Sergeant McGuinness indicating that they believe that
“cuff control” is an “authorized police practice”; and (2)
Westchester County Department of Public Safety General
Orders stating that handcuffs should not be used to cause
pain or injury, and that any force used by police must be
reasonable under the circumstances. (Pltf. Opp. County Br.
at 22 (citing Carlino Decl., Ex. D (Signorelli Report) at
14; PX 14 (Westchester General Order § 41.01); PX 15
(Westchester General Order § 1.02)). Plaintiff argues that
the County officers' alleged use of excessive force was the
product of the County's “failure to train and/or supervise” and
“the organizational culture.” (Id. at 23)
Plaintiff's Monell claim against the County based on
excessive force fails for the same reasons that his Monell
claim against the City fails. Plaintiff has not pointed to
any formal policy, officially promulgated or adopted by the
County that led to the alleged constitutional deprivation.

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Monell, 436 U.S. at 691. To the contrary, Plaintiff argues
that Officer Ruiz violated Westchester Department of Public
Safety general orders. 16 (Pltf. Opp. County Br. at 22)
Plaintiff has likewise not offered any evidence that the
excessive force allegedly exercised by the County Defendants
was “part of a widespread practice” constituting “a custom or
usage of which a supervisor must have been aware.” City of
St. Louis, 485 U.S. at 130. Similarly, Plaintiff has not offered
evidence that any of the named defendants were authorized
to set policy for the County. Cf. Brown, 520 U.S. 397.
As with the City, Plaintiff has offered no evidence regarding
the training—or lack thereof—given to County police
officers, nor has he offered any proof demonstrating that
the County is deliberately indifferent to the use of excessive
force. As discussed in connection with Plaintiff's Monell
claim against the City, these and the other evidentiary
deficiencies cited above are fatal to Plaintiff's Monell claim.
See Jenkins, 478 F.3d at 95; Amnesty Am., 361 F.3d at 130;
Chiaro, 2011 WL 3701804, at *6.
The County's motion for summary judgment on Plaintiff's
Monell claim will be granted. 17

VI. PUNITIVE DAMAGES
The County Defendants have moved for summary judgment
on Plaintiff's claim for punitive damages under Section 1983
and state law. (County Sum. J. Br. 15–17)
Although a municipality is immune from a claim for punitive
damages, see City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 258–68 (1981), that immunity does not extend to
a municipal official sued in his individual capacity. See, e.g.,
Smith v. Wade, 461 U.S. 30, 55–56 (1983). Punitive damages
may be awarded in a Section 1983 action where a plaintiff
demonstrates that “ ‘the defendant's conduct is ... motivated
by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of
others,’ or, in other words, when a plaintiff has produced
evidence of ‘a positive element of conscious wrongdoing’ or
‘malice.’ “ Cameron v. City of New York, 598 F.3d 50, 69
(2d Cir.2010) (quoting New Windsor Volunteer Ambulance
Corps., Inc. v. Meyers, 442 F.3d 101, 121–22 (2d Cir.2006).
The Second Circuit has sustained punitive damage awards
in Section 1983 excessive force cases involving conduct and
injuries comparable to those alleged here. Compare Pltf.
Resp. to County R. 56.1. Stmt. ¶ 168 and Appx., Ex. 5
with Ismail v. Cohen, 899 F.2d. 183, 185 (2d Cir.1990)

(upholding $150,000 punitive damage award in Section 1983
action where arrestee suffered two displaced vertebrae, a
cracked rib, and serious head trauma); O'Neill v. Krzeminski,
839 F.2d 9, 13 (2d Cir.1988) (upholding $185,000 punitive
damage award where plaintiff suffered fractured nose and
lacerations to head and face). The County Defendants' motion
for summary judgment as to Plaintiff's Section 1983 punitive
damages claim will be granted as to the County Defendants
in their official capacities, but will otherwise be denied.
*23 Plaintiff also seeks punitive damages on his state law
claims of assault and battery. As an initial matter, any claim
against the County, or against the County Defendants in their
official capacities, for punitive damages based on assault
and battery is barred. See, e.g., Karoon v. New York City
Transit Authority, 241 A.D.2d 323, 324 (1st Dept.1997)
(“The [New York] Court of Appeals has clearly held that
the State and its political subdivisions ... are not subject to
punitive damages.” (citing Sharapata v. Town of Islip, 56
N.Y.2d 332, 334 (1982)); Clark–Fitzpatrick, Inc. v. Long
Island R.R. Co., 70 N.Y.2d 382, 386 (1987) (citing Sharapata,
56 N.Y.2d at 338).
As to the County Defendants in their individual capacities,
a plaintiff seeking punitive damages under New York law
must show evidence of wrongdoing that is “ ‘ “ ‘intentional
and deliberate, and has the character of outrage frequently
associated with crime.’ “ ‘ “ Freeman v. The Port Authority
of New York and New Jersey, 243 A.D.2d 409, 410 (1st
Dept.1997) (quoting Liberman v.. Riverside Mem. Chapel,
225 A.D.2d 283, 291 (1st Dept.1996) (quoting Prozeralik
v. Capital Cities Commc'ns., 82 N.Y.2d 466, 479 (1993)
(quoting Prosser and Keeton, Torts § 2 at 9 (5th ed.1984)))).
New York courts have permitted punitive damages claims
to proceed based on conduct not dissimilar to that alleged
here. See, e.g., Freeman, 243 A.D.2d at 411. The County
Defendants' summary judgment motion on punitive damages
will be denied to the extent that it addresses Plaintiff's state
law assault and battery claims against the County Defendants
in their individual capacities.

CONCLUSION
Plaintiff's motion for summary judgment (Dkt. No. 77) is
denied in its entirety.
The City Defendants' motion for summary judgment (Dkt.
No. 72) is granted as to (1) all Section 1983 claims against

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

the City of New York; (2) Plaintiff's claims against NYPD
Officer Nyberg; (3) Plaintiff's Section 1983 and state law
claims for false arrest; (4) Plaintiff's Section 1983 and state
law claims based on malicious prosecution; and is otherwise
denied.
The County Defendants' motion for summary judgment (Dkt.
No. 80) is granted as to (1) all Section 1983 claims against
the County of Westchester; (2) Plaintiff's Section 1983
claim against County Officers Lieberman, Brady, and Pucillo
for denial of access to the courts; (3) Plaintiff's state law
assault and battery claims against County Officer Serlin; (4)
Plaintiff's Section 1983 and state law claims for false arrest;
(5) Plaintiff's Section 1983 punitive damages claims against
the County and the individual County defendants in their
official capacities; and (6) Plaintiff's punitive damages claim
based on assault and battery, to the extent that claim is made

against the County and the individual County defendants in
their official capacities; and is otherwise denied.
The Clerk of the Court is directed to terminate the motions
(Dkt.Nos.72, 77, 80).
*24 The parties are directed to comply with this Court's
Individual Rules concerning the preparation of a pre-trial
order. The joint pre-trial order will be filed on October
19,2012. Motions in limine, voir dire requests, and requests
to charge are due on October 19, 2012. Responsive papers, if
any, are due on October 26, 2012.
Trial will commence on November 13, 2012, at 9:00 a.m.
SO ORDERED.

Footnotes

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4
5

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7

8

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Nyberg is incorrectly named in the caption as Myberg.
Plaintiff consents to the dismissal of (1) his claims against Officer Nyberg (Pltf. Opp. City Br. at 24); his Section 1983 claim for
denial of access to the courts as against Officers Lieberman, Brady, and Pucillo (Pltf. Opp. County Br. at 24–25); and his state law
assault and battery claims against Officer Serlin. (Id.) Accordingly, these claims will be dismissed.
To the extent that this Court relies on facts drawn from the parties' Local Rule 56.1 statements, it has done so because the opposing
party has either not disputed those facts or has not done so with citations to admissible evidence. See Giannullo v. City of New York,
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.”) (citations omitted).
Brescia testified that, while at the diner, Desideri told the group about how, earlier that evening, he and Reveccio had robbed a person
named Rob, taking a car part from him. (Id. at ¶ 32; Jones Decl., Ex. C (Brescia Dep.) at 28, 128–29) Plaintiff does not recall this
conversation. (PX 7 (DeMichele Dep) at 75)
Plaintiff claims that he suffered “serious and permanent injuries” to his shoulder, wrist and spine. (Pltf. Resp. to County R. 56.1 Stmt.
¶ 168) He underwent surgery in July 2010 to repair damage to his left shoulder. Plaintiff's physician has opined that his shoulder
injury, and other injuries to his neck, back, and wrist, resulted from the January 18, 2009 incident, and that the defendant will continue
to suffer a “permanent loss of movement, permanent weakness, and permanent recurrent pain.” (Id., Appx., Ex. 5)
“[L]iability for false arrest [under New York law] also gives rise to liability under 42 U.S.C. § 1983.” Savino, 331 F.3d at 75.
In arguing that the City Defendants did not have probable cause to arrest him, Plaintiff relies on Guerrerio's statements in the days
after the arrest. (See, e.g., Ptlf. R. 56.1 Stmt. ¶ QQQ) These statements are not relevant to whether there was probable cause at the
time of the arrest, however. See Mejia, 119 F.Supp.2d at 253 (probable cause determination is based on the information possessed
or reasonably available to an officer at the time of the arrest).
Plaintiff mistakenly argues that DiCarlo and Urprasad did not have probable cause to arrest him, because they relied on information
provided by other officers. (Pltf. Sum. J. Br. at 17) Police officers are entitled to rely on information provided by other officers,
however, and each individual officer need not have probable cause to arrest. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006)
(police officers are entitled to rely on information provided by fellow officers)
Plaintiff did not tell police that Desideri had run into his apartment and was hiding inside, even though he suspected that the police
were looking for Desideri. (Jones Decl., Ex. A (DeMichele Dep.) at 487).
Plaintiff's Section 1983 excessive force claim is brought against the City, the County, NYPD Deputy Inspector Bugge, NYPD Captain
Urprasad, and County Officers Tierney, Ruiz, and Gutierrez. (Am. Cmplt., First Cause of Action)
Ruiz explains that “cuff control” is “when handcuffs are placed on the suspect, you twist the hands at a pressure point on the wrists ...
basically using pressure points to gain compliance.” (PX 11 (Ruiz Dep.) at 85–86) “It is not tightening the handcuffs. Maneuvering
either back or forth.” (Id. at 91)

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De Michele v. City of New York, Not Reported in F.Supp.2d (2012)

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DeMichele testified that it was Defendant Urprasad who punched him in the ribs, “stomped” onto his bare feet, and lifted him from
the ground by his handcuffs. ((Pltf. R. 56.1 Stmt. ¶¶ RR, SS, TT; PX 8 (DeMichele Dep.) at 435–36)
While a plaintiff who suffers only de minimis injuries may not be able to survive summary judgment on an excessive force claim, the
injuries here are sufficient to trigger potential liability for excessive force. See, e.g., Robison, 821 F.2d at 923–24 (summary judgment
denied where officer twisted plaintiff's arm and she suffered a bruise of unspecified extent and degree; no evidence that bruise
persisted or required medical treatment); Mickle v. Morin, 297 F.3d 114, 120–21 (2d Cir.2002) (citing cases) (reversing judgment
as a matter of law where plaintiff alleged injury from the use of handcuffs that were allegedly too tight); Davis v. City of New York,
No. 04–CV–3299 (JFB)(RLM), 2007 WL 755190, at *12–13 (E.D.N.Y. Feb. 15, 2007) (denying summary judgment where plaintiff
alleged redness and soreness in shoulder after officer kicked her); see also Blair v. City of New York, No. 03 CV 1485(SLT)(CLP),
2009 WL 959547, at *10–11 (E.D.N.Y. Mar. 31, 2009) (rejecting need to show continuing or long-term injury or medical treatment);
Sforza v. City of N.Y., No. 07 Civ. 6122(DLC), 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009) (“[P]laintiff need not demonstrate
serious injury to prevail in an excessive force claim; bruising and other nonpermanent injuries are sufficient.”).
To the extent that the City Defendants and the County Defendants argue that they are entitled to summary judgment on Plaintiff's
false arrest claims on qualified immunity grounds (City Sum. J. Br. 16; County Sum. J. Br. 7), their motions are denied as moot.
In the event that a defendant NYPD officer violated the NYPD Patrol Guide, that may be evidence of excessive force, but such
proof does not demonstrate that the City was indifferent to the use of excessive force. Flemming v. City of New York, No. 02 Civ.
4113(PKC), 2008 WL 80746, at *3 (S.D.N.Y. Jan. 2, 2008) (“While plaintiff's own testimony is evidence that the Patrol Guide—
a City policy—was not followed, that evidence does not equate to evidence that the City was deliberately indifferent to whether its
police officers followed the policy or used excessive force.”).
In the event that Officer Ruiz violated the general orders, that may be evidence of excessive force, but does not demonstrate that the
County was indifferent to the use of excessive force. See Flemming, 2008 WL 80746, at *3.
Because the Court has granted summary judgment to the County as to all of Plaintiff's claims, it does not address Plaintiff's claim
for punitive damages against the County under Section 1983. The Court notes, however, that punitive damages are not available
as against municipalities in Section 1983 actions. Nimkoff v. Dollhausen, 751 F.Supp.2d 455, 468 (E.D.N.Y.2010) (citing City of
Newport v. Fact Concerts, 453 U.S. 247, 267 (1981)).

End of Document

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