Aghoghoubia v. Noel (Shield No. 1967)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ORTEGA AGHOGHOUBIA,

Plaintiff, MEMORANDUM & ORDER

17-CV-1927 (NGG) (SJB)

-against-

PAROLE OFFICER BRANDON NOEL, PAROLE

OFFICER JONATHAN MURDOCCO, and PA-

ROLE OFFICERS JOHN and/or JANE DOES 1,

2, 3, etc (S),

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Ortega Aghoghoubia brings this civil rights action pursu-

ant to 42 U.S.C. § 1983 against Defendants Brandon Noel and

Jonathan Murdocco, Parole Officers with the New York State De-

partment of Corrections and Community Supervision. (See

Compl. (Dkt. 1).) Now pending before the court is Defendants’

motion for summary judgment on Plaintiff’s false arrest, false im-

prisonment, and excessive force claims.1 (See Mot. for Summ. J.

(Dkt. 31).) For the reasons explained below, Defendants’ motion

is DENIED.

BACKGROUND

A. Facts

The court constructs the following statement of facts from the

parties’ Local Rule 56.1 Statements and the admissible evidence

they submitted. Except where otherwise noted, the following

facts are undisputed. Where the parties allege different facts, the

1 Defendants did not seek summary judgment on Plaintiff’s claims for fail-

ure to intervene and the lodging of false criminal charges. (See Mem. in

Supp. of Mot. for Summ. J. (“Mem.”) (Dkt. 32) at 20 (requesting summary

judgment on Plaintiff’s “false arrest and false imprisonment and excessive

force” claims).)

court notes the dispute and credits the Plaintiff’s version if it is

supported by evidence in the record. All evidence is construed in

the light most favorable to Plaintiff, as the non-moving party,

with all “reasonable inferences” drawn in his favor. ING Bank

N.V. v. M/V Temara, IMO No. 9333929, 892 F.3d 511, 518 (2d

Cir. 2018).2

On April 4, 2016, Plaintiff—who was on parole from a prior con-

viction—came to the Brooklyn Parole Office for an appointment

with his parole officer. 3 (Defs. R. 56.1 Statement (“Defs. 56.1”)

(Dkt. 33) ¶¶ 1-2, 19.) While Plaintiff was sitting in the waiting

area of the office, Defendant Noel walked by and noticed that

Plaintiff was wearing a hat. (Id. ¶ 16.) Defendants assert that

there is a Parole Office policy banning hats in the waiting area.

(See Decl. of Brandon Noel (Dkt. 35) ¶¶ 6, 9.) However, they do

not assert that this policy is posted in the waiting area, nor do

they submit evidence showing Plaintiff knew of this rule. (See

generally Defs. 56.1; see also Pl. R. 56.1 Statement (“Pl. 56.1”)

(Dkt. 39) ¶ 61.) Noel instructed Plaintiff to remove his hat. (Defs.

56.1 ¶ 20.) Defendants claim that Noel repeated the instruction

multiple times before Plaintiff removed his hat, but Plaintiff tes-

tified he removed his hat the first time he heard the instruction.

2 When quoting cases and unless otherwise noted, all citations and quota-

tion marks are omitted and all alterations are adopted.

3 Defendants’ brief begins its statement of facts with a two-page tangent

titled “Plaintiff’s History of Violence, Anger Issues[,] [a]nd Defiance of

Rules [a]nd Authority.” (See Mem. at 3-5.) Notably, Defendants make no

argument that their actions were motivated by their personal knowledge

of this history. (See Decl. of Brandon Noel (Dkt. 35); Decl. of Jonathon

Murdocco (Dkt. 36).) Of course, Plaintiff’s past interactions with law-en-

forcement are entirely irrelevant to the question of whether Defendants

violated Plaintiff’s constitutional rights on April 4, 2016. The court does

not appreciate Defendants’ implication that Plaintiff is less protected (or

that Defendants are less constrained) by the United States Constitution be-

cause of Plaintiff’s past. The court imagines a similar reaction should

Defendants attempt to admit irrelevant character evidence at trial.

(See id. ¶¶ 21-23; Tr. of July 30, 2018 Dep. of Ortega Ag-

hoghoubia (“Pl. Dep.”) (Dkt. 37-1) at 94:9-14.) It is undisputed

that Plaintiff removed his hat. (Defs. 56.1 ¶ 23.) The Parties do

dispute whether, after Plaintiff removed his hat, Noel directed

Plainitff to stand up and step forward. Defendants claim Plaintiff

ignored Noel’s directive, but Plaintiff testified that Noel did not

give any additional order before he left the waiting area. (Id. ¶¶

24-26; Pl. Dep. at 98:7-9.) Noel then left through a door at the

front of the waiting area. (Defs. 56.1 ¶ 27.)

Shortly thereafter, Noel returned to the waiting area, followed by

several other parole officers. (Id. ¶ 29.) The parties agree that

Noel approached Plaintiff and directed Plaintiff to stand up (id.

¶ 30), but Plaintiff asserts that it was impossible to comply with

this directive, because Noel immediately grabbed Plaintiff’s arms

and pulled him to his feet (Pl. 56.1 ¶ 30; Pl. Dep. at 108:20-21;

116:10-13). The parties characterize the following moments

quite differently. Defendants state that Plaintiff was resisting

Noel, ignoring repeated commands from Noel, and pushing back

against or wrestling Noel. (Defs. 56.1 ¶¶ 34-37.) Defendants also

point to Plaintiff’s testimony that he “tensed up” by “instinct,” and

that he “wasn’t going to let [Noel] just throw [him] down.” (Id.

¶¶ 38-39 (quoting Pl. Dep. at 122).) Plaintiff, however, claims

that he did not resist Noel and was never given a chance to com-

ply with Noel’s directives. (Pl. 56.1 ¶¶ 38-39.) Additionally,

Plaintiff points out that his testimony—when read in context and

not in short and single-word excerpts—shows that he was not

resisting Noel but was instead being held up against the wall by

Noel and was afraid of incurring a serious injury if he was thrown

to the ground. (Id.; Pl. Dep. at 122:8-9, 123:12-14.) During this

interaction, Defendant Murdocco struck Plaintiff twice on the

shin with a baton, causing Plaintiff to fall to the ground. (Defs.

56.1 ¶ 45.) At that point, Plaintiff was placed in handcuffs. (Id.

¶ 46.) Shortly after the incident, Plaintiff was taken to a hospital,

where his injuries were examined by a doctor and he was pre-

scribed Motrin for his pain. (Id. ¶ 49.) Plaintiff continued to feel

pain from the baton strikes for at least a week after the incident.

(Id. ¶ 51; Pl. 56.1 ¶ 51.)

Plaintiff submits two videos of the incident as part of his opposi-

tion to Defendants’ motion. The first video captures the incident

from the front right corner of the waiting area (see Front Video

(Dkt. 40-2)), and the second video shows the incident from the

rear left corner (see Rear Video (Dkt. 40-3)). The videos do not

have audio and neither video perfectly captures the entire inci-

dent. However, when viewed in tandem, the videos provide

valuable context to the conflicting testimony.

The Rear Video shows Noel walking into the waiting area and

proceeding directly toward Plaintiff. (Rear Video.) Noel is fol-

lowed immediately by one other officer; four additional officers

enter the waiting area as Noel arrives at where Plaintiff is sitting.

(Id.) In Noel’s last few steps, he begins to reach his arms out to-

ward Plaintiff. (Id.) At this point, Plaintiff is obscured by a

column in the waiting area (id.), but the Front Video shows what

happens next.

The Front Video shows Plaintiff holding his hat in his hand and

looking toward the ground. (Front Video.) This video does not

show the door through which Noel enters, but Plaintiff looks in

Noel’s direction a few seconds after the Rear Video shows Noel

entering. (Id.; Rear Video) When Noel arrives at Plaintiff, he im-

mediately grabs for Plaintiff’s arm. (Front Video.) Seconds later,

holding on to Plaintiff’s left arm with this left hand, Noel places

his right hand on Plaintiffs side and back area and pushes Plain-

tiff into the man seated to his right. (Id.) That man (and the man

to the right of him) eventually stand up and move out of the way,

and Noel pushes Plaintiff down against the bench. (Id.) Noel then

pulls Plaintiff off of the bench, and Noel and Plaintiff exit the

frame. (Id.)

Viewing again the rear video, Noel pulls Plaintiff off of the bench

and swings him around so Plaintiff’s back is toward the front wall

of the waiting area. (Rear Video.) Leaning forward like a football

player driving a blocking sled, Noel forces Plaintiff back into the

wall. (Id.) The other officers rush to join Noel, and Murdocco

strikes Plaintiff twice with his Baton. (Id.) Plaintiff collapses, with

officers landing on top of him, and the view of him is obstructed

by officers as he is placed into handcuffs. (Id.) About thirty sec-

onds later, Plaintiff is pulled up and Noel escorts Plaintiff through

the door in the front of waiting area. (Id.)

Plaintiff was charged with parole violations as a result of the in-

cident. (Defs. 56.1 ¶ 52.) A preliminary hearing for Plaintiff was

held on April 14, 2016. (Id. ¶ 53.) Noel and Murdocco testified

and Plaintiff did not. (Id.) The Hearing Officer considered one

charged violation: that Plaintiff “threatened the safety and well-

being of himself and others who were present in the waiting area

when he physically resisted being placed into custody by a parole

officer.” (Id. ¶ 54.) Explicitly relying on the testimony of Noel and

Murdocco, the hearing officer found probable cause for the vio-

lation and set a date for a final revocation hearing. (Id. ¶ 55; see

also Tr. of Apr. 14, 2016 Preliminary Hearing (“Preliminary Hear-

ing Tr.”) (Dkt. 34.-3).) At the final revocation hearing, the

Hearing Officer “found no violation of parole in any important

respect” and vacated the warrant against Plaintiff. (Id. ¶ 57.)

B. Procedural History

Plaintiff filed his complaint on April 4, 2017. (Compl.) On March

15, 2018, Defendants moved to dismiss all of Plaintiff’s claims

except for his excessive force claim. (See Mot. to Dismiss (Dkt.

19); Mem. in Support of Mot. to Dismiss (Dkt. 20).) On January

11, 2019, the court issued a memorandum and order granting

the motion as to Plaintiff’s state law and procedural due process

claims, and denying the motion as to Plaintiff’s other claims. See

Aghoghoubia v. Noel, No. 17-CV-1927 (NGG), 2019 WL 181309,

at *5 (E.D.N.Y. Jan. 11, 2019). Defendants answered the com-

plaint on January 25, 2019. (Answer (Dkt. 29).) On May 23,

2019, Defendants filed their fully briefed motion for summary

judgment. (See Defs. Mot. for Summ. J.; Mem.; Mem. in Opp. to

Mot. for Summ. J. (“Opp.”) (Dkt. 38); Reply (Dkt. 41).)

LEGAL STANDARD

A court must grant summary judgment when “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.

Pro. 56(a). “A ‘material’ fact is one capable of influencing the

case’s outcome under governing substantive law, and a ‘genuine’

dispute is one as to which the evidence would permit a reasona-

ble juror to find for the party opposing the motion.” Figueroa v.

Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). The movant may dis-

charge its initial burden by demonstrating that the non-movant

“has ‘failed to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.’” Lantheus Med. Imag-

ing, Inc. v. Zurich Am. Ins. Co., 255 F. Supp. 3d 443, 451 (S.D.N.Y.

2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-323

(1986) (alteration adopted).

“To determine whether an issue is genuine, ‘[t]he inferences to

be drawn from the underlying affidavits, exhibits, interrogatory

answers, and depositions must be viewed in the light most favor-

able to the party opposing the motion.’” Mikhaylov v. Y & B Trans.

Co., No. 15-CV-7109 (DLI), 2019 WL 1492907, at *3 (E.D.N.Y.

Mar. 31, 2019) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d

196, 202 (2d Cir. 1995)). While the court must draw all infer-

ences in favor of the non-movant, the non-movant “may not rely

on mere speculation or conjecture as to the true nature of the

facts to overcome a motion for summary judgment.” Fletcher v.

Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995).

DISCUSSION

A. False Arrest and False Imprisonment

Claims for false arrest or false imprisonment4 “brought under

§ 1983 to vindicate the Fourth and Fourteenth Amendment right

to be free from unreasonable seizures, are substantially the same

as claims for false arrest . . . under state law.” Jocks v. Tavernier,

316 F.3d 128, 134 (2d Cir. 2003); see also Boyd v. City of New

York, 336 F.3d 72, 75 (2d Cir. 2003) (“The elements of false ar-

rest . . . under § 1983 are ‘substantially the same’ as the elements

under New York law. Therefore, the analysis of the state and the

federal claims is identical.”). To prevail, the plaintiff must show

that “(1) the defendant intended to confine the plaintiff; (2) that

the plaintiff was conscious of the confinement; (3) the plaintiff

did not consent to the confinement; and (4) the confinement was

not otherwise privileged.” Savino v. City of New York, 331 F.3d

63, 75 (2d Cir. 2003).

Here, Defendants primarily argue that Plaintiff’s confinement

was privileged because the Defendant officers had probable

cause. (See Mem. at 11-16.) “The existence of probable cause to

arrest constitutes justification and is a complete defense to an ac-

tion for false arrest, whether that action is brought under state

law or under § 1983.” Gonzalez v. City of Schenectady, 728 F.3d

149, 155 (2d Cir. 2013); see also Singer v. Fulton County Sher-

iff, 63 F.3d 110, 118 (2d Cir. 1995) (“There can be no federal

civil rights claim for false arrest where the arresting officer had

probable cause.”). “In general, probable cause to arrest exists

when the officers have knowledge or reasonably trustworthy in-

formation of facts and circumstances that are sufficient to

4 New York draws no distinction between false arrest and false imprison-

ment. See, e.g., Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991) (“In New

York, the tort of false arrest is synonymous with that of false imprison-

ment.”) (citing Jacques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 473

(1972)).

warrant a person of reasonable caution in the belief that the per-

son to be arrested has committed or is committing a crime.”

Gonzalez, 728 F.3d at 155. “When a parolee is involved, the lower

‘reasonable cause’ standard is in place.” Felix v. New York State

Dep't of Corr. & Cmty. Supervision, No. 16-CV-7978 (CS), 2018

WL 3542859, at *7 (S.D.N.Y. July 23, 2018). “New York's parole

regulations state that . . . [r]easonable cause exists when evi-

dence or information which appears reliable discloses facts or

circumstances that would convince a person of ordinary intelli-

gence, judgment and experience that it is reasonably likely that

a releasee has committed the acts in question.” Alvarado v. City

of New York, 482 F. Supp. 2d 332, 337 (S.D.N.Y. 2007). Still,

“[t]he inquiry is limited to whether the facts known by the arrest-

ing officer at the time of the arrest objectively provided probable

cause to arrest.” Gonzalez, 728 F.3d at 155.

1. Initial probable cause for failure to comply

The Hearing Officer at the preliminary revocation hearing found

probable cause that Plaintiff violated his parole when he alleg-

edly “physically resisted being placed into custody by a parole

officer.” (Defs. 56.1 ¶ 54.) However, Defendants cannot show

that Noel had probable cause to arrest Plaintiff based on his pur-

ported resistance, without more. This is because “[u]nder New

York law, an essential element of the offense of resisting arrest is

that the arrest allegedly resisted was ‘authorized.’ To be ‘author-

ized’ . . ., an arrest must either have been made pursuant to a

warrant or have been based on probable cause.” 5 Weyant v. Okst,

101 F.3d 845, 855 (2d Cir. 1996); see also Curry v. City of Syra-

cuse, 316 F.3d 324, 336 (2d Cir. 2003) (“There are . . . at least

5 The court is not aware of any authority that makes an exception to this

requirement for a parole officer arresting a parolee. Moreover, that De-

fendants dedicate a portion of their briefing to discussing Plaintiff’s alleged

failure to comply indicates that Defendants agree that there is no such ex-

ception.

two essential elements of a charge for resisting arrest under New

York law: (1) the person charged must have intentionally at-

tempted to prevent the arrest of himself or someone else, and (2)

the arrest he attempted to prevent must itself have been sup-

ported by a warrant or by probable cause.”). Therefore, in order

to show that Noel had probable cause based on Plaintiff resisting

arrest, Defendants must show Noel had probable cause to arrest

Plaintiff in the first place.

To meet this requirement, Defendants assert that Noel had prob-

able cause to arrest Plaintiff because Plaintiff refused to comply

with Noel’s order to stand. (See Reply at 5 (“Not complying with

Defendant Noel’s order . . . constituted a clear and unrebutted

violation of the rules, a sufficient basis for probable cause to ar-

rest.”).) Plaintiff admits that Noel ordered him to stand when

Noel returned to the waiting area6 (Pl. 56.1 ¶ 30), but argues that

it was impossible for him to comply because Noel immediately

began using force against Plaintiff. (See Opp. at 10; Pl. 56.1

¶¶ 30-31.) In response, Defendants claim that whether Plaintiff

had time to comply with Noel’s order is irrelevant and that any

noncompliance is sufficient to create probable cause to arrest for

failure to comply. (See Reply at 4 (“[Plaintiff’s] reason for not

complying is not relevant here, where the question is whether an

officer has reasonable cause to believe that a parolee has com-

mitted a violation.”).)

Defendant’s assertion cannot bear the weight of its implications.

Law enforcement officers may not manufacture noncompliance

6 To the extent that Defendants claim that Noel had probable cause to ar-

rest based on Plaintiff’s failure to comply with Noel’s earlier order to stand

up and step forward, Plaintiff testified that Noel never gave that order. (See

Defs. 56.1 ¶¶ 24-26; Pl. Dep. at 98:7-9.) This dispute of material fact pre-

vents the court from concluding as a matter of law that probable cause to

arrest existed based on Plaintiff’s alleged failure to comply with that order.

by assigning impossible tasks. See, e.g., Greene v. Shegan, 123 F.

Supp. 3d 88, 91 (D.D.C. 2015) (“[Plaintiff’s] version that it was

factually impossible to comply with [Defendant’s] order . . . could

negate probable cause for arresting [Plaintiff] for failure to com-

ply.”). Defendants surely would not argue that Noel would have

probable cause to arrest Plaintiff if Plaintiff failed to comply with

an order to slay the Lernaean Hydra,7 nor could Defendants

claim that probable cause would arise if Plaintiff defied an order

to leap a tall building in a single bound.8 Just so, Noel would not

have probable cause to arrest Plaintiff for failing to comply with

Noel’s order to stand if the order was given contemporaneously

with Noel grabbing Plaintiff’s arms and pushing Plaintiff against

the bench where Plaintiff was sitting. Because the conflicting tes-

timony and the videos of the incident raise a material question

as to whether Plaintiff’s compliance with Noel’s order was factu-

ally possible, the court cannot, on a motion for summary

judgment, find that Noel had probable cause to arrest Plaintiff

for failure to comply with his order to stand.

Because there is a genuine dispute of material fact as to whether

Noel had probable cause to arrest Plaintiff for failure to comply,

there is necessarily also a dispute as to whether Noel had proba-

ble cause to arrest Plaintiff for resisting arrest. Curry, 316 F.3d at

336.

2. The preliminary hearing

Defendants sole remaining argument relies on the Hearing Of-

ficer’s finding of probable cause at the preliminary revocation

hearing. As a threshold matter, it is not clear whether Defendants

intend to argue that the Hearing Officer’s finding of probable

7 See Apollodorus, The Library, Vol. II, at 187-89 (Sir James George Frazier,

Ed. 1921) (available at http://www.perseus.tufts.edu/hop-

per/text.jsp?doc=Apollod.+2.5.2&fromdoc=Perseus%3Atext%3A1999.0

1.0022) (last visited May 13, 2020).

8 See generally Adventures of Superman (1952-58).

cause is binding on this court as a matter of issue preclusion. De-

fendants assert that Plaintiff’s false arrest claim is “precluded” by

the Hearing Officer’s finding of probable cause and that Plaintiff

“has no basis to relitigate” that finding. (See Mem. at 14, 16; Re-

ply at 7.) However, because Defendants do not so much as cite

the legal standard for issue preclusion in their papers, the court

assumes they are not asserting it here.9

Instead, the court considers whether the Hearing Officer’s finding

of probable cause at the preliminary revocation hearing creates

an unrebutted presumption of probable cause that dooms Plain-

tiff’s false arrest and false imprisonment claims. When a § 1983

Plaintiff “has been indicted by a grand jury, New York law creates

a presumption of probable cause that can only be overcome by

evidence that the indictment was the product of fraud, perjury,

the suppression of evidence by the police, or other police conduct

undertaken in bad faith.” Simon v. City of New York, No. 16-CV-

1017 (NGG), 2020 WL 1323114, at *4 (E.D.N.Y. Mar. 19, 2020)

(quoting Bermudez v. City of New York, 790 F.3d 368, 377 (2d

Cir. 2015)). It is reasonable to consider whether a similar pre-

sumption would extend to probable cause determinations made

at preliminary parole revocation hearings. See, e.g., Aghoghoubia,

2019 WL 181309, at *5 (“[T]he fact that the preliminary hearing

officer found probable cause for Plaintiff’s arrest would ordinarily

9 The court notes, however, that Defendants would be unlikely to succeed

on a theory of issue preclusion. Issue preclusion requires, in part, the Plain-

tiff having “a full and fair opportunity to litigate the issue” in the

preliminary hearing. Zapata v. HSBC Holdings PLC, 414 F. Supp. 3d 342,

348 (E.D.N.Y. 2019). In determining whether a plaintiff had a “full and

fair opportunity to litigate her claims, courts in New York consider,” inter

alia, “the availability of new evidence.” James v. Am. Airlines, Inc., 247 F.

Supp. 3d 297, 302-03 (E.D.N.Y. 2017). Here, the availability of the video

of the incident, which was not shown at the preliminary revocation hear-

ing, would almost certainly compel the conclusion that the Hearing

Officer’s finding of probable cause would not have preclusive effect in this

proceeding.

be entitled to weight.”). However, the presumption of probable

cause “is rebuttable, and may be overcome by evidence establish-

ing that the police witnesses have not made a complete and full

statement of facts[,] that they have misrepresented or falsified

evidence[,] or otherwise acted in bad faith.” McClellan v. Smith,

439 F.3d 137, 146 (2d Cir. 2006); see also Smalls v. City of New

York, 181 F. Supp. 3d 178, 186-87 (E.D.N.Y. 2016) (same).

Noel testified at the preliminary hearing that, when he reentered

the waiting area, he:

went to [Plainitff] and I told [Plaintiff] why don’t you stand

up and put your hands behind your back. He said no. So

when he said no I went to grab hold of his wrist and he

started flailing and I grabbed his wrist. When I went to grab

his wrist, [Plainitff] pulled away from me, I’m trying to pull

him back to me. At one point he stands up and he pushed

me. So then I – we’re wrestling back and forth. I somehow

pushed [Plainitff] into the wall of the seating area and a cou-

ple of other officers helped me get – put [Plaintiff] on the

floor. Placed some handcuffs and went back to the back

room. So that’s what happened.

(Preliminary Hearing Tr. at 7:13-25.) Similarly, Murdocco testi-

fied:

[A]t approximately 5:15 PM I was called into the waiting

room by my coworker, [Noel]. At that time [Plaintiff] was

demonstrating noncompliance. [Noel] asked me to come

and assist him, at which time [Noel] directed the subject to

stand up and put his hands behind his back. The subject ver-

bally said he wasn’t doing so and persisted to attack [Noel],

physically pushing him.

(Id. 18:23-19:4.) Further, it is clear that the Hearing Officer re-

lied on Defendants’ testimony in finding probable cause to arrest:

“When the Parole Officer came back . . . and told you to stand up

and put your hands behind your back, that’s what you should

have done, okay. . . . You can’t go into the Parole Office . . . and

cause a disturbance.” (Id. at 30:12-21.)

At the very least, the videos of the incident raise serious questions

about the veracity of Defendants’ testimony. There is no indica-

tion in either video that Plaintiff, at any time, flailed his arms or

pushed or attacked Noel. (See Front Video; Rear Video.) Further,

the mere seconds that passed between Noel reentering the wait-

ing area and him placing his hands on Plaintiff casts serious

doubt on Defendants’ testimony that Plaintiff verbally refused to

comply with Noel’s directive. (See Front Video; Rear Video.) The

videos produced by Plaintiff constitute evidence that the Prelim-

inary Hearing Officer’s probable cause determination was

predicated on false or misleading testimony from Noel and Mur-

docco. Therefore, Plaintiff is able to rebut any presumption of

probable cause that arises from the preliminary revocation hear-

ing.

Based on the above, Defendants have not shown a lack of a dis-

pute of material fact on Plaintiff’s false arrest and false

imprisonment claims and therefore are not entitled to judgment

as a matter of law at this time.

B. Excessive Force

“[A]ll claims that law enforcement officers have used excessive

force . . . in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard.” Graham v. Con-

nor, 490 U.S. 386, 395 (1989). Force is excessive “if it is

objectively unreasonable ‘in light of the facts and circumstances

confronting [the officer], without regard to [his] underlying in-

tent or motivation.’” Maxwell v. City of New York, 380 F.3d 106,

108 (2d Cir. 2004) (quoting Graham, 490 U.S. at 397). When

evaluating an excessive force claim, courts in this Circuit “con-

sider 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 ar-

rest by flight.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir.

2014). The reasonableness determination is an objective one that

must be made with reference to the perspective of a reasonable

officer at the scene; in other words, “not every push or shove,

even if it may later seem unnecessary in the peace of a judge’s

chambers, violates the Fourth Amendment.” Graham, 490 U.S.

at 396. At the same time, however, “in some circumstances, no

use of force is reasonable because none is required.” Esperanza v.

City of New York, 325 F. Supp. 3d 288, 303 (E.D.N.Y. 2018).

Because the reasonableness inquiry is so fact intensive, “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. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004);

see also Scott v. City of New York, No. 16-CV-834 (NGG), 2020

WL 208915, at *8 (E.D.N.Y. Jan. 14, 2020); Duryea v. Cty. of Liv-

ingston, No. 06-CV-6436 (MAT), 2012 WL 162407, at *4

(W.D.N.Y. Jan. 19, 2012) (whether force used was reasonable “is

a fact intensive inquiry, and is best left for a jury to decide”).

“Nevertheless, summary judgment in an excessive force case is

not precluded if the evidence, viewed in a light most favorable to

the plaintiff, would support a directed verdict for the defend-

ants.” Landy v. Irizzary, 884 F. Supp. 788, 798 (S.D.N.Y. 1995).

The evidence here does not support a directed verdict for Defend-

ants. According to Plaintiff’s version of the facts, Noel grabbed

Plaintiff, pushed Plaintiff down on the bench, and pulled Plaintiff

off the bench and drove him into the wall without first giving

Plaintiff a reasonable—or any—opportunity to comply with the

directive to stand up. Moreover, Defendants have adduced no ev-

idence showing that Plaintiff was a risk to his own safety or the

safety of others at that time that Noel began to apply force to

Plaintiff. Video of the incident shows Plaintiff sitting quietly on a

bench in the waiting area when Noel began to use force. Plaintiff

was not, prior to Noel grabbing him, “an immediate threat to the

safety of the officers or others, . . . actively resisting arrest[,] or

attempting to evade arrest by flight.” Terebesi, 764 F.3d at 231.10

Next, again crediting Plaintiff’s version of the incident, Noel held

Plaintiff against the wall while Murdocco struck Plaintiff twice

with his baton. As a result of the incident, Plaintiff visited the

hospital and experienced ongoing pain for at least a week.

Defendants argue that Noel and Murdocco used only de minimis

force and that Plaintiff likewise only suffered de minimis injury.

(See Mem. at 16-18; Reply at 7-8.) They claim that “[a] de mini-

mis use of force does not rise to the level of a constitutional

violation.” (Mem. at 16.) This misstates the law and misunder-

stands the Fourth Amendment excessive force inquiry. While true

that “a de minimis use of force will rarely suffice to state a consti-

tutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.

1993), “rare” does not mean “never.” The “Fourth Amendment

excessive force analysis is a contextual one that . . . does not look

solely to the magnitude of the force exerted but requires close

examination of the totality of the circumstances in each particu-

lar case.” Adedeji v. Hoder, 935 F. Supp. 2d 557, 566 (E.D.N.Y.

2013). Indeed, sometimes “no use of force is reasonable because

none is required.” Esperanza, 325 F. Supp. 3d at 303.

The Second Circuit held that an excessive force claim may survive

summary judgment based on “allegations that, during the course

of an arrest, a police officer twisted [the plaintiff’s] arm, ‘yanked’

her, and threw her up against a car, causing only bruising.” Max-

well, 380 F.3d at 108 (citing Robison v. Via, 821 F.2d 913, 924-

10 Defendants argue that Noel was “duty bound to bring Plaintiff into com-

pliance” (Reply at 8), but this duty does not include needlessly escalating

the situation by immediately using force without giving Plaintiff an oppor-

tunity to comply.

25 (2d Cir. 1987)). Maxwell itself reversed a district court’s grant

of summary judgment on an excessive force claim based on com-

paratively minor injuries. Id. at 110. There, the plaintiff alleged

that the officer “violently and unnecessarily swung and jerked

her around by the handcuffs while she was cuffed from be-

hind” and that the officer “shoved her head first into his police

car, causing her head to strike the metal partition between the

front and back seats.” Id. at 108. As a result, she suffered “im-

mediate pain . . . [and] was taken to a hospital . . . where she was

treated for pain in her lower back and left arm and for headache.”

Id. She later “suffered from headaches, dizziness, nausea, and

lethargy . . . and was diagnosed with post-concussive syndrome.”

Id.

Here, Plaintiff was taken to the hospital to receive treatment for

his injuries and continued to feel pain for at least a week after

the incident. Based on controlling case law, Plaintiff’s asserted

injuries are substantial enough to preclude summary judgment.11

See Adedeji, 935 F. Supp. 2d at 567 (“[A]s a general rule, the issue

of whether excessive force was used is for the jury to decide, even

though the amount of force used and the extent of injury asserted

may be minimal”); Felmine v. City of New York, No. 09–CV–3768

(CBA), 2011 WL 4543268, at *19 (E.D.N.Y. Sept. 29, 2011)

(“The law of this circuit . . . does not appear to place a demanding

requirement on excessive force plaintiffs to demonstrate in-

jury.”). Therefore, Defendants have failed to show that they are

11 Plaintiff’s injuries distinguish this case from the court’s prior decisions in

Scott, where the court granted summary judgment on an excessive force

claim where the plaintiff “did not suffer any physical injur[y]” except for

temporary “displeasure to his neck,” Scott, 2020 WL 208915, at *2, and

Greene v. City of New York, where the court held that the “[d]efendants

[were] entitled to summary judgment” on an excessive force claim for

which there was not “even a de minimis assertion of injury or use of force,”

No. 15-CV-6436 (NGG) 2019 WL 3606739, at *12 (E.D.N.Y. Aug. 6,

2019).

entitled to judgment as a matter of law on Plaintiff’s excessive

force claim.

C. Qualified Immunity

The court next addresses Defendants’ final argument: that Noel

and Murdocco are protected from liability by qualified immunity.

“Qualified immunity protects public officials from liability for

civil damages when one of two conditions is satisfied: (a) the de-

fendant’s action did not violate clearly established law, or (b) it

was objectively reasonable for the defendant to believe that his

action did not violate such law.” Garcia v. Does, 779 F.3d 84, 92

(2d Cir. 2015); see also Hunter v. Bryant, 502 U.S. 224, 229

(1991) (“The qualified immunity standard gives ample room for

mistaken judgments by protecting all but the plainly incompetent

or those who knowingly violate the law.”). Defendants bear the

burden of establishing qualified immunity. Vincent v. Yelich, 718

F.3d 157, 166 (2d Cir. 2013). Finally, when considering qualified

immunity—like all determinations at the summary judgment

stage—the court is “required to view the facts and draw reason-

able inferences in the light most favorable to the party opposing

the summary judgment motion.” Scott v. Harris, 550 U.S. 372,

378 (2007). “In qualified immunity cases, this usually means

adopting . . . the plaintiff’s version of the facts.” Id.

1. False Arrest

The right to not be arrested without probable cause is clearly es-

tablished, Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d

Cir. 1997), and so an officer will be shielded from damages for a

false arrest claim only if “(1) it was objectively reasonable for the

officer to believe that there was probable cause for the arrest, or

(2) reasonably competent police officers could disagree as to

whether there was probable cause for the arrest.” Campbell v. City

of New York, No. 16-CV-7201 (NGG), 2019 WL 569768, at *9

(E.D.N.Y. Feb. 11, 2019); see also Golino v. City of New Haven,

950 F.2d 864, 870 (2d Cir. 1991). “In deciding whether an of-

ficer’s conduct was objectively reasonable . . . , we look to the

information possessed by the officer at the time of the arrest, but

we do not consider the subjective intent, motives, or beliefs of

the officer.”12 Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.

2010).

As the court noted in its prior opinion on this issue, it is “objec-

tively unreasonable for Defendants to believe they had probable

cause to arrest Plaintiff if they themselves fabricated the ground

for arrest.” Aghoghoubia, 2019 WL 181309, at *10 (citing Scotto

v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998)); see also Walker v.

Mendoza, No. 00-CV-93 (JG), 2000 WL 915070, at *7 (E.D.N.Y.

June 27, 2000) (“Because no reasonable officer could conclude

that there is probable cause to arrest based on entirely fabricated

charges, [Defendants] [are] not entitled to qualified immunity at

this stage in the proceedings.”). As explained above, there are

questions of fact as to: (1) whether Noel actually ordered Plaintiff

to stand up and step forward before Noel left the waiting area to

seek assistance from other parole offices, and (2) whether it was

factually possible for Plaintiff to comply with Noel’s order to

stand up and put his hands behind his back. No reasonable officer

could conclude that probable cause to arrest arises from the fail-

ure to comply with an impossible order. Therefore, Defendants

12 The court notes that Defendants’ reliance on the finding of probable

cause at the preliminary revocation hearing is misplaced in a qualified im-

munity analysis, where the question turns on what an officer knew at the

time of the arrest. Neither Noel nor Murdocco knew at the time of arrest

that the preliminary hearing officer would make a finding that they had

probable cause to arrest. The Hearing Officer’s finding of probable cause

also does not show that “reasonably competent police officers could disa-

gree as to whether there was probable cause” to arrest Plaintiff, Campbell,

2019 WL 569768, at *9, because the finding was based at least in part on

Defendants’ false testimony at the hearing.

are not entitled to qualified immunity on Plaintiff’s false arrest

claim.

2. Excessive Force

“Use of excessive force is an area of the law in which the result

depends very much on the facts of each case, and thus police of-

ficers are entitled to qualified immunity unless existing precedent

squarely governs the specific facts at issue.” Kisela v. Hughes, 138

S. Ct. 1148, 1153 (2018). Though Kisela creates a high bar for

showing that the law is clearly established for the purposes of

denying qualified immunity for an excessive force claim, the bar

is met here.

At the time of the incident in 2016, it was clearly established in

the Second Circuit that it is “unreasonable under the Fourth

Amendment for an officer to use substantial force against an ar-

restee suspected of a minor offense who” fails to comply with an

order but “does not physically attack an officer, attempt to flee,

or make any threatening gesture.” Cox v. Fischer, 248 F. Supp. 3d

471, 482 (S.D.N.Y. 2017). In Brown v. City of New York, the Sec-

ond Circuit held that it was unreasonable for officers to bring a

woman to the ground and deploy pepper spray on her when she

refused to comply with an order to place her hands behind her

back but did not otherwise resist arrest. 798 F.3d 94, 101-02 (2d

Cir. 2015). Similarly, the Second Circuit found in O’Hara v. City

of New York that it was unreasonable for an officer, “in effectuat-

ing [plaintiff’s] arrest for a relatively minor matter,” to “punch[]

[Plaintiff] in the face without provocation.” 570 F. App’x 21, 23

(2d Cir. 2014).

Like the officers in Brown and O’Hara, Noel and Murdocco would

not be entitled to qualified immunity if a jury were to conclude

that Noel and Murdocco pounced on Plaintiff (who was sitting

peacefully on the bench in the waiting area and not resisting or

attempting to flee), threw him into the wall, and struck him twice

with a baton in the course of arresting him for an imaginary vio-

lation.

Whether this happened is in dispute, and “summary judgment on

qualified immunity grounds is not appropriate when there are

facts in dispute that are material to a determination of reasona-

bleness.” Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir.

2001). Therefore, the court finds that Noel and Murdocco are not

entitled to qualified immunity on Plaintiff’s excessive force claim

at this time. Defendants may, of course, renew their immunity

argument for all of Plaintiff’s claims after trial, if necessary.

CONCLUSION

For the reasons explained above Defendants’ (Dkt. 31) motion

for summary judgment is DENIED. The parties are DIRECTED to

confer and contact the chambers of Magistrate Judge Sanket J.

Bulsara to discuss next steps in the case.

SO ORDERED.

Dated: Brooklyn, New York

May 13, 2020

_/s/ Nicholas G. Garaufis__

NICHOLAS G. GARAUFIS

United States District Judge