Batista v. New York Police Department et al

Filing 86

OPINION AND ORDER re: 74 MOTION for Summary Judgment filed by Carlos Pagan, John McSherry, Micheal Leclair, City of New York. For the reasons set forth above, Defendants' motion for summary judgment is GRANTED IN PART a nd DENIED IN PART. The Court grants summary judgment as to Defendants McSherry and Pagan, who are hereby terminated as parties to this matter. The Court denies summary judgment as to Defendant Leclair on the limited issue of whether or not he used excessive force in deploying the taser against Plaintiff. The parties are further ORDERED to appear for a pretrial conference on May 8, 2020, at 11:00 a.m. At the appointed date and time for the conference, the Warden or other official in charge of Great Meadow Correctional Center shall produce prisoner Shamir Batista, Identification No. 18A3248, at a suitable location within the Correctional Center equipped with a telephone, for the purpose of participating by telephone in the conference with the Court and defense counsel in the above referenced matter. At the appointed time, the parties shall call [phone] and enter access code 5123533. Please note, the phone conference line will not be available prior to 11:00 a.m. Coun sel for Defendants must (i) transmit this Order to the Warden forthwith; (ii) contact the Correctional Center forthwith to arrange the call and to determine the telephone number at which Plaintiff will be reachable at the above time and date; and (ii i) telephone the Court with Plaintiff on the line at the time and date of the conference. SO ORDERED. (John McSherry (Shield No. 2484) and Carlos Pagan (Shield No. 2218) terminated. Telephone Conference set for 5/8/2020 at 11:00 AM before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 4/3/2020) Copies Mailed By Chambers. (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAMIR BATISTA,
Plaintiff,
-v.CITY OF NEW YORK, DETECTIVE
MICHAEL LECLAIR, Shield No. 5045,
DETECTIVE JOHN MCSHERRY, Shield
No. 2484, DETECTIVE CARLOS
PAGAN, Shield No. 2218,

17 Civ. 1994 (KPF)
OPINION AND ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Shamir Batista, proceeding pro se, brought this action under 42
U.S.C. § 1983 against the City of New York 1 and New York City Police
Department (“NYPD”) Detectives Michael Leclair, John McSherry, and Carlos
Pagan (Leclair, McSherry, and Pagan, together, “Defendants”), alleging that

1

Plaintiff’s Complaint named the New York City Police Department (the “NYPD”), and not
the City of New York, as a defendant in this matter. (Complaint (“Compl.” (Dkt. #2))).
On March 21, 2017, this Court entered an Order substituting the City of New York in
place of the NYPD, because an agency of the City of New York is not an entity that can
be sued. See N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the
recovery of penalties for the violation of any law shall be brought in the name of the city
of New York and not in that of any agency, except where otherwise provided by law.”);
see Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson
v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally
prohibited from suing a municipal agency.”). Here, Plaintiff has presented no evidence
of a municipal policy supporting or condoning the use of excessive force. See Monell v.
Dep’t of Social Servs of the City of N.Y., 436 U.S. 658, 694 (1978) (“[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, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under
§ 1983.”); see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (noting that
municipalities can be held liable for “practices so persistent and widespread as to
practically have the force of law”); accord Allen v. Antal, 665 F. App’x 9, 14 (2d Cir.
2016) (summary order); Costello v. City of Burlington, 632 F.3d 41, 49 (2d Cir. 2011).
Accordingly, the Court grants summary judgment in favor of the City of New York.

Defendants used excessive force against him in the course of arresting him.
Before this Court is Defendants’ motion for summary judgment, in which
Defendants argue that: (i) neither McSherry nor Pagan was present at the time
of the arrest; (ii) Leclair’s use of force was not excessive; and (iii) even if
Leclair’s use of force were found to be excessive, he is protected from liability
under the doctrine of qualified immunity. For the reasons that follow, the
Court grants summary judgment in favor of McSherry and Pagan, because
there is no evidence that either was present when Plaintiff was arrested.
Construed in the light most favorable to Plaintiff, however, the record discloses
genuine disputes of material fact as to whether Leclair’s use of force was
excessive and whether Leclair is entitled to qualified immunity. Accordingly,
the Court denies summary judgment as to Leclair on this point.
BACKGROUND 2
A.

Factual Background
On November 1, 2016, the NYPD’s 34th Precinct issued a felony Active

Investigation Card (“I-Card”), identifying Shamir Batista as a suspect in an

2

The facts stated herein are drawn from Plaintiff’s Complaint, Defendants’ Rule 56.1
Statement of Material Facts Not in Dispute (“Def. 56.1” (Dkt. #76)), and Plaintiff’s
deposition testimony (“Pl. Dep.” (Dkt. #84). The Court also draws facts from certain
exhibits attached to Plaintiff’s Declaration in Opposition to Defendants’ Motion for
Summary Judgment (“Pl. Opp., Ex. [ ]” (Dkt. #79)), and the deposition transcript of nonparty witness Kiara Ortega (“Ortega Dep.” (Dkt. #85)). Citations to Defendants’ Rule
56.1 Statement incorporate by reference the documents and deposition testimony cited
therein. See Local Rule 56.1(d).
For ease of reference, Defendants’ Memorandum of Law in Support of Their Motion for
Summary Judgment is referred to as “Def. Br.” (Dkt. #78); Plaintiff’s Declaration in
Opposition to Defendants’ Motion for Summary Judgment as “Pl. Opp.” (Dkt. #79); and
Defendants’ Memorandum of Law in Further Support of Their Motion for Summary
Judgment as “Def. Reply” (Dkt. #82).

2

assault by slashing against one victim and a gunpoint robbery of a second
victim. (Def. 56.1 ¶ 1). On November 3, 2016, the 30th Precinct issued an ICard identifying Plaintiff as a suspect in the same two crimes. (Id.). These ICards warned that Plaintiff was armed and dangerous. (Id. at ¶ 2). Sometime
between November and December of 2016, Plaintiff became aware that the
NYPD was searching for him. (Id. at ¶ 3). In consequence, Plaintiff deliberately
avoided contact with police officers to avoid detection. (Id. at ¶ 4).
On January 12, 2017, Detective Leclair and two other officers were
searching for Plaintiff in the Washington Heights neighborhood of upper
Manhattan. (Def. 56.1 ¶ 5). At around 3:00 p.m. that day, Plaintiff and his
girlfriend were shopping in a shoe and clothing store in Washington Heights,
when they were approached by two plainclothes police officers. (Id. at ¶¶ 6, 7).
Plaintiff believed the two officers were going to cause him harm and took a
defensive stance. (Id. at ¶¶ 7, 8). According to Plaintiff and Ortega, the officers
did not identify themselves as policemen. (Pl. Dep. 59:21-60:1; Ortega
Dep. 21:10-12). The two officers, neither of whom was Leclair, attempted to
restrain Plaintiff in order to put him under arrest and, in the process, took
Plaintiff to the ground. (Def. 56.1 ¶ 9). Plaintiff described the officers as
having tackled him to the ground. (Pl. Dep. 37:17-24).
Once on the ground, a physical struggle ensued between Plaintiff and the
two officers. (Def. 56.1 ¶ 10). What occurred during that struggle is disputed:
Defendants claim that the officers attempted to place Plaintiff’s arms behind
his back to put handcuffs on him. (Id.). Plaintiff testified that one officer

3

began punching him in the face, and that he attempted to move his hands from
behind his back to shield his face from the blows. (Pl. Dep. 41:10-17, 42:2244:4, 49:9-18, 53:13-25). Plaintiff explained, further, that he was unable to
wrest his arms from behind his back because multiple officers were restraining
him. (Id. at 54:1-20). Ortega testified that, though she had an obstructed view
of the altercation, she also believed Plaintiff was being punched in the face,
based on the way the officers were moving their arms. (Ortega Dep. 26:14-23,
32:23-33:2). Plaintiff heard one of the officers order him to “stop resisting.”
(Def. 56.1 ¶ 12). But Plaintiff testified that he was being punched in the face
even as that order was issued. (Pl. Dep. 58:21-25). And after the punches to
his face had stopped, Plaintiff’s reaction was to try and shield his head from
further blows. (Id. at 53:15-25). Plaintiff cannot identify which officer punched
him in the head or which officer told him to stop resisting. (Id. at 46:7-17,
85:7-15).
Leclair, who Defendants assert was not yet present in the store, received
a radio call for backup assistance from an officer inside the store. (Def. 56.1
¶ 13). 3 Leclair rushed to the store; upon entering, he observed multiple officers
attempting to restrain Plaintiff as he was twisting his body, flailing his arms,
and kicking his legs, making it difficult for the officers to handcuff Plaintiff. (Id.
at ¶ 15). Ortega also testified that she saw Plaintiff “wiggling” his legs and feet,

3

Plaintiff does not concede that Leclair entered the store after he had been tackled to the
ground, nor does he concede that Leclair was not engaged in the physical struggle that
followed. But Plaintiff cannot affirmatively identify which officers were involved in the
struggle. (Pl. Dep. 46:1-17).

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as multiple officers were on top of him. (Ortega Dep. 28:18-29:14). But Ortega
claimed that Plaintiff was not resisting arrest; the officers were hitting Plaintiff,
but he was not fighting back. (Id. at 32:12-22).
Leclair recalled warning Plaintiff that if he did not stop resisting arrest,
he would be tased. (Def. 56.1 ¶¶ 17, 18). Plaintiff continued to resist, causing
Leclair to deploy the taser. (Id.). Plaintiff, for his part, testified that when he
heard this warning, he shouted back that he had been punched in the face.
(Pl. Dep. 47:21-48:7). Plaintiff further recalled that his arms were already
behind his back when he was hit by the taser. (Id. at 54:1-20).
The record is unclear regarding whether the prongs of the taser
penetrated Plaintiff’s skin or merely latched on to Plaintiff’s jacket. (Compare
Def. 56.1 ¶ 19, with Pl. Opp., Ex. B). Aside from the deployment of the taser,
Leclair testified that he did not use any force against Plaintiff. (Def. 56.1 ¶ 20).
The officers were then able to place Plaintiff under arrest, during which they
recovered a knife from his person. (Id. at ¶ 24).
Once Plaintiff was in custody, he was taken to Columbia Presbyterian
Hospital. (Def. 56.1 ¶ 25). Plaintiff’s medical records note that his only injury
was an abrasion on his right cheek. (Id.). Plaintiff was prescribed Tylenol for
his injuries. (Id. at ¶ 26). Aside from temporary discomfort, Plaintiff was not
physically injured by the taser. (Id. at ¶ 27).
After Plaintiff was discharged from the hospital, he was taken to the 30th
Precinct for processing. (Def. 56.1 ¶ 28). En route, Plaintiff asked Leclair why
he had been assaulted by one of Leclair’s colleagues. (Id. at ¶ 22). According

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to Plaintiff, Leclair appeared “dumbfounded,” as if he had no idea that that had
occurred. (Id. at ¶ 23). Plaintiff’s first recollection of seeing Detectives Pagan
and McSherry on January 12, 2017, was at the 30th Precinct. (Id. at ¶ 28).
Neither Pagan nor McSherry was present when Plaintiff was arrested; they had
not started their tours of duty for the day at the time of the arrest. (Id. at ¶ 29).
Pagan and McSherry did not use any force against Plaintiff. (Id. at ¶ 30).
Plaintiff was arrested for: (i) robbery, stemming from an incident that
occurred on or about November 2, 2016; (ii) gang assault, stemming from an
incident that occurred on or about October 26, 2016; and (iii) resisting arrest
and obstruction of governmental administration stemming from the
January 12, 2017 arrest at issue in this case. (Def. 56.1 ¶ 31). The day after
Plaintiff’s arrest, he was taken into custody at Rikers Island, where the only
medical need for which he sought relief was withdrawal from narcotics. (Id. at
¶ 32).
On December 6, 2017, Plaintiff pleaded guilty to disorderly conduct in
satisfaction of criminal charges relating to the altercation on January 12, 2017.
(Def. 56.1 ¶ 33). Plaintiff separately pleaded guilty to the charges against him
for robbery and assault. (Id. at ¶ 34).
B.

Procedural Background
Plaintiff filed his Complaint in this action on March 17, 2017. (Dkt. #2).

On February 8, 2018, the Court stayed the case pending further developments
in Plaintiff’s underlying criminal case in state court. (Dkt. # 32). On August 1,
2018, after the criminal case had been resolved, the Court lifted the stay. (Dkt.

6

#38). On August 16, 2019, Defendants filed a letter motion seeking leave to file
a motion for summary judgment. (Dkt. #66). The Court granted Defendants’
letter motion on August 27, 2019, and set a briefing schedule for Defendants’
anticipated motion for summary judgment. (Dkt. #67). On October 18, 2019,
Defendants filed their motion for summary judgment and supporting papers,
including a Local Rule 56.1 Statement of Undisputed Facts. (Dkt. #74, 75, 76,
77, 78). On December 30, 2019, Plaintiff filed a declaration in opposition to
Defendants’ motion. (Dkt. #79). The motion became fully briefed when
Defendants filed their reply brief on January 30, 2020. (Dkt. #83).
DISCUSSION
A.

Applicable Law
1.

Motions for Summary Judgment Under Federal Rule of Civil
Procedure 56

Under Federal Rule of Civil Procedure 56(a), a “court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 4
A fact is “material” if it “might affect the outcome of the suit under the
governing law,” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
4

The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary
judgment standard from a genuine “issue” of material fact to a genuine “dispute” of
material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting
that the amendment to “[s]ubdivision (a) … chang[es] only one word — genuine ‘issue’
becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment
determination.”). This Court uses the post-amendment standard, but continues to be
guided by pre-amendment Supreme Court and Second Circuit precedent that refer to
“genuine issues of material fact.”

7

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New
York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). In determining
whether there are genuine issues of material fact, courts are “required to
resolve all ambiguities and draw all permissible factual inferences in favor of
the party against whom summary judgment is sought.” Terry v. Ashcroft, 336
F.3d 128, 137 (2d Cir. 2003) (quotation omitted).
“The moving party bears the initial burden of showing that there is no
genuine dispute as to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse
Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (internal quotation marks and
alteration omitted). But where “the burden of proof at trial would fall on the
nonmoving party,” the moving party can shift the initial burden by “point[ing]
to a lack of evidence to go to the trier of fact on an essential element of the
nonmovant’s claim.” Simsbury-Avon Pres. Soc’y, LLC v. Metacon Gun Club, Inc.,
575 F.3d 199, 204 (2d Cir. 2009). If the movant has met its burden, “its
opponent must do more than simply show that there is some metaphysical
doubt as to the material facts” and, toward that end, “must come forward with
specific facts showing that there is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal citations
and quotation marks omitted). The nonmoving party may not rely on “mere
speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d
Cir. 1986).

8

In deciding a motion for summary judgment, “a district court generally
‘should not weigh evidence or assess the credibility of witnesses.’” Rojas v.
Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting
Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)). But to that
general rule, the Second Circuit has recognized an exception:
in the rare circumstance where the plaintiff relies
almost exclusively on his own testimony, much of which
is contradictory and incomplete, it will be impossible for
a district court to determine whether “the jury could
reasonably find for the plaintiff,” and thus whether
there are any “genuine” issues of material fact, without
making some assessment of the plaintiff’s account.
Jeffreys, 426 F.3d at 554 (internal citation omitted) (quoting Anderson, 477
U.S. at 252). In this rare setting, a court considering a summary judgment
motion may make credibility determinations. See SEC v. Jankovic, No. 15 Civ.
1248 (KPF), 2017 WL 1067788, at *8 (S.D.N.Y. Mar. 21, 2017). Even then, the
Second Circuit has cautioned that, “[i]f there is a plausible explanation for
discrepancies in a party’s testimony, the court considering a summary
judgment motion should not disregard the later testimony because of an earlier
account that was ambiguous, confusing, or simply incomplete.” Jeffreys, 426
F.3d at 555 n.2 (emphasis and citation omitted). Instead, such credibility
assessments are to be reserved for “extraordinary cases, where the facts alleged
are so contradictory that doubt is cast upon their plausibility.” Rojas, 660 F.3d
at 106 (citation and quotation marks omitted). A district court “must ask not
whether the evidence unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the [nonmoving party] on the

9

evidence presented.” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir.
2015).
2.

Motions for Summary Judgment in Pro Se Cases

In a pro se case, the court must take an additional step and liberally
construe the pro se party’s pleadings “to raise the strongest arguments that
they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
This task has been complicated by Plaintiff’s imperfect compliance with
Local Rule 56.1. Under that rule, a movant is required to identify admissible
evidence in support of each factual assertion in his or her Rule 56.1 statement.
See S.D.N.Y. Local Rule 56.1(d) (“Each statement by the movant … pursuant to
Rule 56.1(a) … must be followed by citation to evidence which would be
admissible, set forth as required by Fed. R. Civ. P. 56(c).”). Conversely, a
nonmovant seeking to controvert these factual assertions must also cite to
admissible evidence, and where properly supported facts in a Local Rule 56.1
statement are denied with only conclusory assertions, the court will find such
facts to be true. See id.; id. at 56.1(c) (“Each numbered paragraph in the
statement of material facts set forth in the statement required to be served by
the moving party will be deemed to be admitted for purposes of the motion
unless specifically controverted by a correspondingly numbered paragraph in
the statement required to be served by the opposing party.”).
Plaintiff has not filed specific objections or admissions in response to
Defendants’ 56.1 Statement. He has submitted only an eight-paragraph

10

declaration, along with seven exhibits that might, if liberally construed, express
disagreement with a few of Defendants’ proffered facts. (See Pl. Opp.). In
response to the Court’s requests, Defendants submitted the full transcripts of
Plaintiff’s deposition and Ortega’s deposition. (See Pl. Dep.; Ortega Dep.). The
testimony contained in these transcripts establishes that Plaintiff disagrees in
certain key respects with the facts as laid out in Defendants’ Rule 561.
Statement.
“Pro se litigants are … not excused from meeting the requirements of
Local Rule 56.1.” Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y.
2009) (citing Vt. Teddy Bear, 373 F.3d at 246). Nevertheless, even where there
is incomplete compliance with the Local Rules, a court retains discretion “to
consider the substance of the plaintiff’s arguments.” Id. (citing Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a court is not
required to consider what the parties fail to point out in their Local Rule 56.1
Statements, it may in its discretion opt to conduct an assiduous review of the
record even where one of the parties has failed to file such a statement.”
(internal quotation marks omitted))); see also Hayes v. Cty. of Sullivan, 853 F.
Supp. 2d 400, 406 n.1 (S.D.N.Y. 2012) (“In light of Plaintiff’s pro se status, the
Court overlooks his failure to file a Local Rule 56.1 Statement and conducts its
own independent review of the record.”). To be fair to all parties, the Court will
rely principally on its own assiduous review of the record.

11

3.

Excessive Force in the Fourth Amendment Context

“Claims that law enforcement officers have used excessive force ... should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard[.]”
Graham v. Connor, 490 U.S. 386, 395 (1989). A use of force violates the Fourth
Amendment if the police officer’s conduct is “objectively unreasonable ‘in light
of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.’” Cruz v. City of New York, No. 15 Civ. 2265
(PAE), 2017 WL 544588, at *7 (S.D.N.Y. Feb. 8, 2017) (quoting Maxwell v. City
of New York, 380 F.3d 106, 108 (2d Cir. 2004) (internal quotation omitted)).
“[A] de minimis use of force will rarely suffice to state a Constitutional
claim.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). “The calculus
of reasonableness must embody 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.” Graham, 490 U.S. at 396-97. “[T]he
reasonableness question is whether the officers’ actions were ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Mickle v. Morin, 297 F.3d 114,
120 (2d Cir. 2002) (quoting Graham, 490 U.S. at 397). To aid in this inquiry,
courts are directed to consider “at least three factors,” known as the Graham
factors: “[i] the nature and severity of the crime leading to the arrest,
[ii] whether the suspect pose[d] an immediate threat to the safety of the officer
or others, and [iii] whether the suspect was actively resisting arrest or

12

attempting to evade arrest by flight.” See Tracy v. Freshwater, 623 F.3d 90, 96
(2d Cir. 2010) (citing Graham, 490 U.S. at 396). The analysis involves “a
careful balancing of the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing government interests
at stake.” Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting
Graham, 490 U.S. at 396 (internal quotation marks omitted)).
In sum, for an officer to be “grant[ed] summary judgment against a
plaintiff on an excessive force claim ... no reasonable factfinder could conclude
that the officers’ conduct was objectively unreasonable.” Amnesty Am. v. Town
of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004) (citing O’Bert v. Vargo, 331
F.3d 29, 37 (2d Cir. 2003)). In other words, for an officer to prevail at the
summary judgment stage on a claim of excessive force, the evidence must
demonstrate that “no rational jury could have found that the force used was so
excessive that no reasonable officer would have made the same choice.”
Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995).
4.

Qualified Immunity

Qualified immunity protects officials sued for action taken in the course
of their official duties from liability for civil damages “unless [the] plaintiff
pleads facts showing [i] that the official violated a statutory or constitutional
right, and [ii] that the right was ‘clearly established’ at the time of the
challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The Supreme Court
has “lately emphasized the breadth of qualified immunity protection,”

13

particularly with regard to the clearly established prong. Francis v. Fiacco, 942
F.3d 126, 145-46 (2d Cir. 2019) (citing City of Escondido v. Emmons, — U.S. —,
139 S. Ct. 500, 503 (2019) (per curiam)). While the Supreme Court “does not
require a case directly on point for a right to be clearly established, existing
precedent must have placed the statutory or constitutional question beyond
debate.” White v. Pauly, — U.S. —, 137 S. Ct. 548, 551 (2017) (per curiam)
(internal quotation marks, citation, and brackets omitted). That precedent
“must be clear enough that every reasonable official would interpret it to
establish the particular rule the plaintiff seeks to apply.” District of Columbia v.
Wesby, — U.S. —, 138 S. Ct. 577, 590 (2018). At the summary judgment
stage, a claim may be dismissed on qualified immunity grounds only when a
court finds that an official has met his or her burden of demonstrating that no
rational jury could find these two prongs to be satisfied. Coollick v. Hughes,
699 F.3d 211, 219 (2d Cir. 2012).
B.

Analysis
Plaintiff’s Complaint alleges that Defendants violated his Fourth

Amendment right to be free from excessive force during the course of an arrest.
(See generally Compl.). And while the Complaint alleges that Leclair struck
Plaintiff in the face multiple times during the course of the arrest, it includes
no specific allegations against McSherry and Pagan. (Id.). The evidence
exchanged during discovery reveals conduct by Leclair (the specifics of which
are disputed), but no conduct by McSherry and Pagan. As such, Defendants
have moved for summary judgment on the bases that: (i) no evidence suggests

14

that McSherry and Pagan were present at the time of the arrest or that they
used any force against Plaintiff; (ii) Leclair’s use of force was not excessive; and
(iii) even if Leclair’s use of force were found to be excessive, he is protected from
liability through qualified immunity.
At the outset, it is worth noting that Plaintiff’s submission fails to
address many arguments raised by Defendants in their Rule 56.1 Statement
and opening brief. However, because Plaintiff is proceeding pro se, the Court
does not consider Plaintiff’s silence to constitute a concession to any of
Defendants’ arguments or an abandonment of any claims Plaintiff made in his
Complaint or during his deposition. See Jackson v. Fed. Exp., 766 F.3d 189,
197-98 (2d Cir. 2014). Rather, the Court will “examine every claim or defense
with a view to determining whether summary judgment is legally and factually
appropriate.” Id.
The Court first addresses Defendants’ arguments concerning whether a
reasonable jury could find that McSherry and Pagan used excessive force
against Plaintiff. It determines that Plaintiff’s claim against McSherry and
Pagan must fail on the record before it. Second, the Court considers Plaintiff’s
excessive force claim against Leclair, and finds that a genuine dispute of
material fact exists that precludes it from granting summary judgment in favor
of Leclair.
1.

The Court Grants Summary Judgment in Favor of Defendants
McSherry and Pagan

“[T]he ‘personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.’” Victory
15

v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (quoting Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006)). Here, the Complaint does not allege that either
McSherry or Pagan used excessive force against Plaintiff, or that they were even
present at the time of his arrest. (See generally Compl.). The only evidence
submitted to the Court concerning McSherry or Pagan establishes that they
were, in fact, not present at the time of the alleged use of excessive force, and
that they did not use any force against Plaintiff. (Def. 56.1 ¶¶ 29, 30). Plaintiff
has failed to contest this evidence or to introduce any evidence of his own to
suggest that there is a genuine dispute of material fact as to whether McSherry
or Pagan used excessive force against him. (See generally Pl. Opp.; Pl. Dep.).
Indeed, Plaintiff testified that he did not know if Pagan or McSherry used any
force against him. (Pl. Dep. 85:7-15).
Defendants have “point[ed] to evidence that negates [their] opponent’s
claims,” and Plaintiff cannot point to any “record evidence creating a genuine
issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).
On this record, no reasonable jury could return a verdict against McSherry and
Pagan. See Anderson, 477 U.S. at 248 (a fact is in genuine dispute only “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party”). Thus, summary judgment is granted in favor of McSherry
and Pagan.
2.

The Court Denies Summary Judgment as to Defendant Leclair

In the Complaint, Plaintiff claimed that Leclair hit him in the face several
times during the course of the arrest, and that Leclair’s partner tasered him.

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(Compl. 4). Since that time, Plaintiff has acknowledged that he does not know
which officer hit him in the face and has instead argued that Leclair was the
officer who used the taser. (Pl. Opp., Ex. F; Def. 56.1 ¶ 21). Leclair has
submitted an affidavit in which he denies having hit Plaintiff in the face, but
admits that he was the officer who deployed the taser during the course of
Plaintiff’s arrest. (Def. 56.1 ¶¶ 19, 20). Because the evidence before the Court
suggests that Leclair did not hit Plaintiff in the face, and because Plaintiff has
acknowledged that he is unable to offer any countervailing evidence, the Court
concludes that there is no genuine dispute of material fact on this point. (Id. at
¶ 21). To the extent that Plaintiff maintains a claim that Leclair violated his
Fourth Amendment rights by hitting him in the face, summary judgment is
granted in favor of Leclair. 5
Whether Plaintiff’s claim concerning Leclair’s deployment of the taser
survives the pending motion for summary judgment requires further analysis.
The law is clear that a law enforcement officer may not deploy a taser against a
suspect that is compliant or non-threatening. Muschette on Behalf of A.M. v.
Gionfriddo, 910 F.3d 65, 71 (2d Cir. 2018) (citing Tracy, 623 F.3d at 96-98).
Conversely, a taser may be used in the course of an arrest against a suspect
who is actively resisting arrest, after a warning has been given. Penree by

5

At best, any allegation that Leclair was the officer who punched Plaintiff in the face
would be based on mere speculation or conjecture, because Plaintiff himself cannot
identify Leclair as that officer. This is insufficient to survive a motion for summary
judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). Summary
judgment is appropriate “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

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Penree v. City of Utica, 694 F. App’x 30, 33 (2d Cir. 2017) (summary order) (“[I]t
is not excessive force to deploy tasers, after a warning, against arrestees who
are dangerous or resisting arrest.”); see Muschette, 910 F.3d at 71 (“We have
repeatedly concluded in summary orders that it is not unreasonable for an
officer to use a taser in analogous circumstances.”); see also MacLeod v. Town
of Brattleboro, 548 F. App’x 6, 7-8 (2d Cir. 2013) (summary order) (same);
Crowell v. Kirkpatrick, 400 F. App’x 592, 595-96 (2d Cir. 2010) (summary
order) (same). Accordingly, if Leclair used the taser on Plaintiff while Plaintiff
was neither resisting arrest nor posing a threat, he would have used excessive
force in violation of the Fourth Amendment and, further, would have violated a
clearly established right in doing so. Whether Plaintiff was resisting arrest
when the taser was deployed is thus a quintessentially material fact.
After conducting an exacting review of the record, the Court concludes
that this material fact is the subject of a genuine dispute between the parties.
According to Defendants, Plaintiff was resisting arrest when Leclair arrived at
the scene: Plaintiff was on the floor, twisting and flailing, as multiple officers
attempted to restrain him. (Def. 56.1 ¶ 15). Leclair warned Plaintiff that if he
did not stop resisting, he would be tased. (Id. at ¶ 17). Plaintiff continued to
arrest, and Leclair deployed the taser. (Id. at ¶¶ 18, 19). The taser came in
contact with Plaintiff’s neck and back (Pl. Opp., Ex. B), but did not cause
Plaintiff any injury aside from temporary discomfort (Def. 56.1 ¶ 27). 6

6

As noted, the parties disagree whether the prongs of the taser penetrated Plaintiff’s skin
or latched on to Plaintiff’s jacket. (Compare Def. 56.1 ¶ 19, with Pl. Opp., Ex. B). At
this stage in the proceeding, the Court is required to draw all inferences in Plaintiff’s

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Plaintiff’s and Ortega’s deposition testimonies paint a considerably
different picture. Plaintiff testified that he was first tackled to the ground by
two officers, after which several other officers arrived on the scene and held
him down. (Pl. Dep. 54:24-55:2, 57:5-8). The officers were immediately able to
put Plaintiff’s hands behind his back. (Id. at 54:23-55:2, 55:23-56:3). After he
was tackled to the ground, Plaintiff was repeatedly punched in the face by an
officer. (Id. at 41:10-17, 42:22-44:4, 49:9-18, 53:13-25). Any supposed
“resistance” to the officers was, according to Plaintiff, merely an effort to shield
his head from those blows. (Id. at 55:7-17). Ultimately, Plaintiff’s efforts were
unsuccessful: The officers had overwhelming numbers, and were easily able to
keep Plaintiff’s hands behind his back throughout the altercation. (Id. at 54:120). Ortega corroborated portions of Plaintiff’s account; she believed that
Plaintiff was punched in the face, even though he was not resisting. (Ortega
Dep. 26:14-23, 32:23-33:2).
To be sure, Plaintiff did not testify with complete precision as to whether
he was being punched in the head in the seconds before the taser was
deployed. (Pl. Dep. 53:6-25). But Plaintiff did claim that, after he was warned
that he might be tased, he shouted that he had been punched in the face. (Id.
at 47:21-48:7). Plaintiff further claimed that before the taser was deployed, his
hands were behind his back and he had multiple officers on top of him. (Id. at
54:1-23).

favor, Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004),
and thus assumes that the prongs did penetrate Plaintiff’s skin.

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At this stage in the litigation, the Court must accept Plaintiff’s version of
events. Tracy, 623 F.3d at 98. And if a jury were to accept this version — that
Plaintiff had been punched in the face, was attempting to shield his head from
further blows, and had both hands behind his back with multiple officers
restraining him immediately prior to administration of the taser — it might well
conclude that Plaintiff was not actively resisting arrest to warrant the use of a
taser. See Garcia v. Dutchess County, 43 F. Supp. 3d 281, 293 (S.D.N.Y. 2014)
(denying summary judgment to defendants due to a genuine dispute of
material fact as to whether the use of a taser was excessive where, by the time
the taser was used, plaintiff had been taken to the floor, was being restrained
by multiple officers on the floor, and plaintiff’s resistance had reduced to a
more passive resistance of keeping his arms underneath his body to make it
more challenging for the officers to handcuff him); see also Tracy, 623 F.3d at
98 (“[W]e conclude that a reasonable juror could find that the use of pepper
spray deployed mere inches away from the face of a defendant already in
handcuffs and offering no further active resistance constituted an
unreasonable use of force.”); Hamell v. City of Utica, No. 16 Civ. 991 (GTS)
(ATB), 2019 WL 1933938, at *14 (N.D.N.Y. May 1, 2019) (denying summary
judgment to defendants due to genuine dispute of material fact as to whether
the use of taser was excessive where plaintiff was lying face-down on the
ground, held down by two officers, and may have been unable to move his
hands out from under his stomach to be placed in handcuffs). On the present
record, a reasonable factfinder could conclude that any effort Plaintiff made to

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remove his hands from behind his back was not an attempt to resist arrest, but
rather was a purely defensive maneuver intended to protect himself from being
punched in the head.
The Court recognizes that, in determining whether Leclair is entitled to
qualified immunity, it must evaluate the record “from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Tracy, 623 F.3d at 96 (quoting Graham, 490 U.S. at 396).
Moreover, it is required to “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).
But Plaintiff’s testimony permits an inference that, before Leclair deployed the
taser, he was aware that Plaintiff was being restrained by multiple officers, had
both hands behind his back, had been punched in the head, and was
attempting to shield his head from further blows. 7 Thus, a jury could find that
Leclair was aware that Plaintiff was not actively resisting arrest when the taser
was deployed.

7

To review, a district court deciding a motion for summary judgment may only make
credibility determinations in the rare instance where a plaintiff relies almost exclusively
on his own testimony, and that testimony is full of internal inconsistencies or
contradictions. See Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).
Here, Plaintiff’s testimony was consistent concerning the key facts: that he was
repeatedly punched in the head by at least one officer after he had been restrained on
the ground, and that he made unsuccessful attempts to shield his head from further
blows. Plaintiff’s testimony is further supported by Ortega’s testimony. Thus, this is
not one of the rare instances in which credibility determinations are appropriate in
resolving a motion for summary judgment.

21

The Court concludes that a genuine dispute of material fact exists as to
whether Leclair employed excessive force when he deployed the taser against
Plaintiff. Moreover, Plaintiff’s right to be free from the use of excessive force
was, then and now, a clearly established right, such that the factual disputes
identified by the Court preclude qualified immunity as a matter of law. See
Coollick, 699 F.3d at 219. Summary judgment is therefore denied as to the
issue of whether Leclair’s use of the taser against Plaintiff constituted excessive
force.
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary
judgment is GRANTED IN PART and DENIED IN PART. The Court grants
summary judgment as to Defendants McSherry and Pagan, who are hereby
terminated as parties to this matter. The Court denies summary judgment as
to Defendant Leclair on the limited issue of whether or not he used excessive
force in deploying the taser against Plaintiff.
The parties are further ORDERED to appear for a pretrial conference on
May 8, 2020, at 11:00 a.m. At the appointed date and time for the
conference, the Warden or other official in charge of Great Meadow Correctional
Center shall produce prisoner Shamir Batista, Identification No. 18A3248, at a
suitable location within the Correctional Center equipped with a telephone, for
the purpose of participating by telephone in the conference with the Court and
defense counsel in the above referenced matter. At the appointed time, the
parties shall call [phone] and enter access code 5123533. Please

22

note, the phone conference line will not be available prior to 11:00 a.m.
Counsel for Defendants must (i) transmit this Order to the Warden forthwith;
(ii) contact the Correctional Center forthwith to arrange the call and to
determine the telephone number at which Plaintiff will be reachable at the
above time and date; and (iii) telephone the Court with Plaintiff on the line at
the time and date of the conference.
SO ORDERED.
Dated:

April 3, 2020
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Sent by first class mail to:
Shamir Batista
#18A3248
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821

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