# Young v. Cabrera

> District Court, E.D. New York · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10305307

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305307

## How later opinions describe it (automated extraction)

- affirming summary judgment when officers forced to the ground an arrestee who had “previously been convicted of crimes involving weapons”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------x

SHAUN YOUNG,

Plaintiff,

-against- MEMORANDUM AND ORDER
18-cv-3028 (RPK) (ST)
ERIC CABRERA, SHAWN JOHNSTON,
KEITH DI PRESSO, NEIL CASEY, JOHN
DOE 1, JOHN DOE 2, and THE CITY OF
NEW YORK,

Defendants.
----------------------------------------------------x

RACHEL P. KOVNER, United States District Judge:
Plaintiff Shaun Young brings an action under 42 U.S.C. § 1983 against Officers Keith
DiPresso, Shawn Johnston, and Eric Cabrera of the New York Police Department (“NYPD”). He
also sues Sergeant Neil Casey, two unnamed police officers, and the City of New York. Mr. Young
alleges that defendants violated his constitutional rights by using excessive force and fabricating
evidence. He further alleges that the City of New York is liable for these constitutional violations
under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Defendants have
moved for summary judgment on all claims.
Defendants’ motion for summary judgment is granted in part and denied in part. I grant
summary judgment to defendants on the excessive force claim with respect to allegations that
Officers Dipresso, Johnston, and Cabrera threw Mr. Young to the ground. But I deny summary
judgment with respect to allegations that Officers DiPresso, Johnston, and Cabrera kicked and
stomped Mr. Young before and after he was handcuffed. I also deny summary judgment to
Sergeant Casey with respect to allegations that he failed to intervene.
Further, I grant summary judgment to defendants on the claim that defendants fabricated
evidence as well as the claim that the City is liable here. Finally, I grant summary judgment to
defendants on any claims relating to unnamed officers. Accordingly, the Clerk of Court is directed
to dismiss the City of New York and any unnamed officers.

BACKGROUND
A. Factual Background
On this the parties agree: At approximately 12:40 a.m. on May 23, 2015, Roland Chateau
was robbed of four dollars at knifepoint in front of a store in Rockaway Beach, Queens. See Defs.’
Local Civil Rule 56.1 Statement of Facts ¶ 1 (Dkt. #42) (“Defs.’ Statement”); Pl.’s Local Rule
56.1 Counter Statement of Facts ¶ 1 (Dkt. #48) (“Pl.’s Statement”); Decl. of Angharad K. Wilson
Ex. B. at 2 (Dkt. #43-2) (“Complaint Report”). Mr. Chateau called 911, and when two officers
drove up, he told them what happened: A man had threatened him with a knife, taken several
dollars, and then fled toward a nearby housing complex. See Defs.’ Statement ¶¶ 2, 4; Pl.’s
Statement ¶¶ 2, 4; Wilson Decl. Ex. D ¶¶ 4-6 (“DiPresso Decl.”).
Mr. Chateau accompanied the officers to the housing complex. See Defs.’ Statement ¶ 6;

Pl.’s Statement ¶ 6; DiPresso Decl. ¶¶ 8-9; Wilson Decl. Ex. E ¶¶ 8, 10 (“Johnston Decl.”). There,
from the back seat of the police car, he identified Shaun Young as the man who had robbed him.
See Defs.’ Statement ¶ 8; Pl.’s Statement ¶ 8; DiPresso Decl. ¶ 10; Johnston Decl. ¶ 11. The
officers exited, joining two more officers who had since arrived. See Defs.’ Statement ¶¶ 10-11;
DiPresso Decl. ¶ 11; Johnston Decl. ¶ 12. Soon after, officers Keith DiPresso, Shawn Johnston,
and Eric Cabrera approached Mr. Young, along with a supervising officer, Sergeant Neil Casey.
See Defs.’ Statement ¶ 11; DiPresso Decl. ¶¶ 12-13; Johnston Decl. ¶ 13.
From there, the parties’ accounts diverge. As the officers tell it, when they approached Mr.
Young, they identified themselves as police officers. See DiPresso Decl. ¶ 14; Johnston Decl.
¶ 14. They then told Mr. Young that he had been identified as the perpetrator of a robbery, see
Defs.’ Statement ¶ 11, and told him to put his hands behind his back, see id. ¶ 12; DiPresso Decl.
¶ 14; Johnston Decl. ¶ 13, but Mr. Young refused, see Defs.’ Statement ¶ 12; DiPresso Decl. ¶ 14;
Johnston Decl. ¶ 14.

Because Mr. Young would not be handcuffed, Officers DiPresso and Johnston grabbed his
arms. See Defs.’ Statement ¶ 13; DiPresso Decl. ¶14; Johnston Decl. ¶ 14. As Mr. Young
struggled to break free, Officers DiPresso, Johnston, and Cabrera wrestled him to the ground. See
Defs.’ Statement ¶ 14; DiPresso Decl. ¶ 16; Johnston Decl. ¶¶ 15-16. Mr. Young kept moving his
arms and kicking his legs, see Defs.’ Statement ¶ 16; DiPresso Decl. ¶ 16; Johnston Decl. ¶ 16,
but once Officer Cabrera held down his legs, Officers DiPresso and Johnston were able to handcuff
him, see Defs.’ Statement ¶ 17; DiPresso Decl. ¶ 17; Johnston Decl. ¶ 17. At that point, Mr. Young
stopped resisting. See DiPresso Decl. ¶ 17; Johnston Decl. ¶ 17. The officers then retrieved a
folding knife and four dollars from his pocket. See Defs.’ Statement ¶¶ 20-21; Pl.’s Statement ¶
20; DiPresso Decl. ¶ 20; Complaint Report at D00005-8. The officers denied ever kicking or

stomping Mr. Young. See Defs.’ Statement ¶¶ 18-19; DiPresso Decl. ¶ 19; Johnston Decl. ¶ 18.
Mr. Young gives a different account. As he tells it, the officers did identify themselves,
see Shaun Young Dep. 90:13-15 (Dkt. #46-3) (“Young Dep.”), and they did tell him that someone
had identified him as the perpetrator of a robbery, see Young Dep. 87:11-14. But when he told
them he did not commit the robbery, see ibid., two or three officers “rushed” him, “picked [him]
up off the ground,” and then “threw [him] to the floor,” Young Dep. 94:12-13, 100:21-24.
Once on the ground, the officers “started kicking [him] [and] stomping [him]” for about
fifteen seconds until they were able to handcuff him. See Young Dep. 98:15-16, 98:19-20, 102:11-
13, 105:14-16. Even after Mr. Young was handcuffed, the officers kept kicking and stomping him
for another fifteen seconds. See Young Dep. 102:13-14, 105:8-10. At some point after the officers
lifted him up, Mr. Young lost consciousness. See Young Dep. 110:1-5. Mr. Young denied ever
resisting arrest. See Young Dep. 94:14-16, 164:11-12.
Several of Mr. Young’s neighbors have submitted declarations that provide some

corroboration for Mr. Young’s account. Tanisha Nock and her daughter Latiqua Blockwood said
that they “saw at least four [p]olice beating” Shaun Young “while he was sitting on the ground.”
Decl. of Witness Tanisha Nock ¶ 6 (Dkt. #46-10) (“Nock Decl.”); Decl. of Latiqua Blockwood ¶
6 (Dkt. #46-11) (“Blockwood Decl”). Specifically, they saw the officers “beating him, kicking
him and poking him with their night sticks.” Nock Decl. ¶ 6; Blockwood Decl. ¶ 6. Mr. Young’s
mother Danielle Maness-Williams also recalled that Ms. Nock and Ms. Blockwood told her at the
time of the arrest that the police “were kicking Shaun while he was on the ground, and they were
poking him with their nightsticks.” Aff. of Witness Danielle Maness-Williams ¶ 11 (Dkt. #46-6)
(“Maness-Williams Aff.”).
After the officers arrested Mr. Young, they took him to the police precinct. Defs.’

Statement ¶ 24; see Wilson Decl. Ex. I at D 0707. Police records indicate that there, Mr. Young
complained that he felt knee and chest pains and told officers that he had a history of seizures, see
ibid., so the officers called an ambulance, see Defs.’ Statement ¶ 25; Wilson Decl. Ex. J. at D
0653-55. Prehospital records indicate that, in the ambulance, Mr. Young repeated that he felt pain
in his ribs and knees, see Defs.’ Statement ¶ 26; Wilson Decl. Ex. J. at D 0653-655, but the medical
professionals were not able to do a full assessment, because Mr. Young was uncooperative, see
Wilson Decl. Ex. J. at D 0654. Hospital records indicate that, at the emergency department, Mr.
Young complained that he felt pain in his ribs and knees, and he was given a diagnosis code of
abdominal pain. See Wilson Decl. Ex. K. at D 0640, D 0641, D 0643, D 0645. Hours later, he
told the emergency physician that the pain had resolved itself. See Defs.’ Statement ¶ 27; Wilson
Decl. Ex. K. at D 0643, 0649. Records from the emergency physician indicate that he received a
physical exam, which found no apparent distress beyond abdominal pain of an “unknown
etiology.” Wilson Decl. Ex. K. at D 0651-52.

In his deposition, Mr. Young stated that he did not regain consciousness until he woke up
in the hospital. See Young Dep. 110:1-5. He said that when he woke up, his head, ribs, and knees
were all hurting. See Young Dep. 111:4-11. He said some skin on his shoulder had “peeled off”
and scabbed up.” See Young Dep. 103:13-19. He also recalled that his knees and his shoulder
had “busted open,” and both were bleeding. See Young Dep. 113:1-9.
B. Procedural Background
Three years after his arrest, Mr. Young filed this suit under 42 U.S.C. § 1983 against
Officer DiPresso, Officer Johnston, Officer Cabrera, Sergeant Casey, two John Doe NYPD
Officers, and the City of New York. Compl. ¶¶ 7-11 (Dkt. #1). Mr. Young alleged that defendants
violated his constitutional rights by using excessive force and fabricating evidence. See id. ¶¶ 28,
31. Further, he alleged that the City of New York was liable because it had “failed to properly

train, screen, supervise, or discipline its employees and police officers.” Id. ¶¶ 36-40.
After a pre-motion conference, the Court granted leave for defendants to file a motion for
summary judgment. Dkt. Entry (Dec. 2, 2019). This motion followed. Defs.’ Notice of Mot.
(Feb. 28, 2020) (Dkt. #40).
STANDARD OF REVIEW
Summary judgment is appropriate when “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). “An issue of
fact is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Frost v. New York City Police Dep’t, No. 19-1163, --- F.3d ----, 2020 WL
6603609, at *5 (2d Cir. Nov. 12, 2020) (quoting SCR Joint Venture L.P. v. Warshawsky, 559 F.3d
133, 137 (2d Cir. 2009)). “A fact is material if it might affect the outcome of the suit under
governing law.” Ibid. In assessing the record, I view “the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in that party’s favor.” Tracy v.

Freshwater, 623 F.3d 90, 95 (2d Cir. 2010).
DISCUSSION
Defendants have moved for summary judgment on all claims. Mr. Young alleges that
defendants used excessive force while arresting Mr. Young and fabricated evidence against Mr.
Young. Further, he alleges that the City of New York is liable because it failed to adequately train,
screen, supervise, and discipline its officers. Defendants have moved for summary judgment on
all claims. On the excessive force claim, I grant summary judgment to defendants in part and deny
it in part. I grant summary judgment to defendants in full on the claims of fabrication of evidence
and municipal liability.
I. Summary Judgment is Appropriate in Part on the Excessive Force Claim.
In his first three causes of action, Mr. Young alleges that defendants used excessive force

during his arrest in violation of the Fourth, Eighth, and Fourteenth Amendments. See Compl. ¶¶
28, 31, 34. In his deposition, Mr. Young testified that officers (i) threw him to the ground, see
Young Dep. 98:13-14, 99:15-19, 100:9-24, where they started (ii) kicking and stomping him for
about fifteen seconds before he was handcuffed, see Young Dep. 98:15-16, 98:19-20, 105:14-16,
and then continued (iii) kicking and stomping him for another fifteen seconds after he was
handcuffed, see Young Dep. 102:13-14, 105:8-10. Following the parties, I analyze each of these
actions in turn. See Tracy, 623 F.3d at 96-97. I grant summary judgment to defendants as to
assertions that officers threw Mr. Young to the ground but deny summary judgment to defendants
as to assertions that officers kicked and stomped Mr. Young.1
A. The Fourth Amendment Governs Claims of Excessive Force During an Arrest.
As an initial matter, insofar as plaintiff alleges that defendants violated the Eighth
Amendment or the substantive due process component of the Fourteenth Amendment through use

of excessive force, defendants are entitled to summary judgment on those claims. The Fourth
Amendment guarantees the right of citizens to be secure against unreasonable seizures, and an
excessive force claim must “be judged by reference to the specific constitutional standard which
governs that right.” Graham v. Connor, 490 U.S. 386, 394-95 (1989). Accordingly, “all claims
that law enforcement officers have used excessive force . . . in the course of an arrest” are “analyzed
under the Fourth Amendment and its ‘reasonableness’ standard,” ibid., rather than the Eighth
Amendment, see Edrei v. Maguire, 892 F.3d 525, 533 (2d Cir. 2018), or the Fourteenth
Amendment, see Graham, 490 U.S. at 395.
Whether officers used excessive force in violation of the Fourth Amendment depends on
whether their use of force was “‘objectively reasonable’ in light of the facts and circumstances

confronting” them. Id. at 397 (quoting Scott v. United States, 436 U.S. 128, 137-39 (1978)). This
test balances “the nature and quality of the intrusion” against “the countervailing governmental
interests at stake.” Id. at 396. Relevant factors include “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.” Ibid. The record is assessed “from

1 To the extent that plaintiff’s first cause of action might be read to present a false-arrest claim, plaintiff has
explained that he does not bring a claim “for unreasonable seizure of his person arising from a false arrest.” Pl.’s
Mem. in Opp’n at 13 (Dkt. #47). And though plaintiff’s third cause of action might be read to present a separate
assault claim, that claim is “duplicative” of the excessive force claim. Higginbotham v. City of New York, 105 F.
Supp. 3d 369, 377 (S.D.N.Y. 2015); Pl.’s Mem. in Opp’n at 22 (“Plaintiff does not dispute that his separate cause
of action for assault and battery . . . may be consolidated into his claim . . . for excessive force.”).
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Ibid. Given “the fact-specific nature of the inquiry on an excessive force claim, granting summary
judgment against a plaintiff . . . is not appropriate unless no reasonable factfinder could conclude
that the officers’ conduct was objectively unreasonable.” Lennox v. Miller, 968 F.3d 150, 155 (2d

Cir. 2020) (quoting Rogoz v. City of Hartford, 786 F.3d 236, 246 (2d Cir. 2015)).
B. Defendants Are Entitled to Summary Judgment on the Claim that Officers
Used Excessive Force by Throwing Mr. Young to the Ground.
1. The Officers Acted Reasonably Under the Circumstances When They
Tackled Mr. Young.
I grant summary judgment to defendants as to plaintiff’s claim that officers used excessive
force when they threw Mr. Young to the ground. Specifically, according to Mr. Young, one officer
grabbed his legs, another officer grabbed his arms, the officers picked him off the ground, and then
the officers threw him to the ground. See Young Dep. 100:9-24. Even assuming Mr. Young’s
account to be true, no reasonable jury could conclude that this conduct was objectively
unreasonable given all of the circumstances.
First, the officers were attempting to arrest someone who had been identified as the
perpetrator of a serious crime. “[T]he right to make an arrest . . . necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it,” and the degree depends
in part on “the severity of the crime at issue.” Graham, 490 U.S. at 396. It is undisputed here that
Mr. Young had been identified to the officers as someone who had just committed a robbery at
knifepoint. Defs.’ Statement ¶¶ 1, 8; Pl.’s Statement ¶¶ 1, 8. That act qualifies as robbery in the
first degree under New York law, see N.Y. Penal Law § 160.15(3); People v. Ford, 903 N.E.2d
256, 258 (N.Y. 2008), a felony punishable up to twenty-five years in prison, see N.Y. Penal Law
§§ 160.15, 70.02(a), 70.02(3)(a). Courts in this circuit have held comparable force to be reasonable
in arresting individuals suspected of less serious crimes. See, e.g., Blackwood v. Omorvan, No.
16-CV-644, 2019 WL 4600662, at *6 (S.D.N.Y. Sept. 23, 2019) (granting summary judgment to
officers who tackled a suspect who “had been disruptive at a hospital”); Flanigan v. Town of
Colchester, 171 F. Supp. 2d 361, 365 (D. Vt. 2001) (granting summary judgment to officer who
knocked feet out from under arrestee who had threatened neighbor with a BB gun); cf. Kalfus v.

New York & Presbyterian Hosp., 476 F. App’x 877, 879 (2d Cir. 2012) (affirming grant of
summary judgment in favor of patrolmen who pushed trespasser onto his stomach in order to
handcuff him).
Second, the officers were attempting to arrest someone who likely possessed a weapon.
The reasonableness of force varies with the threat posed by the arrestee. See Graham, 490 U.S. at
396; Johnson v. City of New York, No. 05-CV-2357, 2006 WL 2354815, at *4 (S.D.N.Y. Aug. 14,
2006) (“The more precarious a particular situation, the more substantial the force that can be
used.”). Mr. Young emphasizes that “his physical condition does not suggest that he would pose
a threat” because “[h]e is slightly built, has cerebral palsy, walks with a limp, had kidney problems
and suffers from seizures.” Pl.’s Mem. in Opp’n at 15-16. But there is no dispute that Mr. Young

had been identified to officers as someone who had just threatened another man with a knife.
Defs.’ Statement ¶¶ 1, 8; Pl.’s Statement ¶¶ 1, 8. Nor is there any dispute that Mr. Young was not
handcuffed when apprehended. See Pl.’s Statement ¶ 15; Defs.’ Statement ¶ 13. Courts in this
circuit have held that officers did not violate the Fourth Amendment by taking an arrestee to the
ground when officers had far less information to suggest that an arrestee possessed a weapon. See,
e.g., Massaro v. Jones, 323 F. App’x 68, 70 (2d Cir. 2009) (affirming summary judgment when
officers forced to the ground an arrestee who had “previously been convicted of crimes involving
weapons”); Flanigan, 171 F. Supp. 2d at 365 (granting summary judgment when officer knocked
feet out from an arrestee whose BB gun was in his house); cf. Hardy v. Plante, No. 06-CV-687,
2009 WL 249787, at *6 (N.D.N.Y. Feb. 3, 2009) (granting summary judgment where officer
punched and tased arrestee who “matched the description of a suspect in a stabbing”).
In opposition, Mr. Young argues that the officers did not act reasonably in throwing him
to the ground because he did not resist arrest. See Pl.’s Mem. in Opp’n at 21. Instead, according

to Mr. Young, he was yelling at officers and telling them “I didn’t do it” when he was tackled. See
Young Dep. 98: 23-25. But whether an arrestee “is actively resisting arrest” is only one factor
bearing on whether officers acted reasonably in using force. Graham, 490 U.S. at 396. Taking
into account all the circumstances here, a reasonable jury could not find that defendants acted
unreasonably in tackling a suspect whom they understood to be carrying a knife and to have just
threatened to stab another person, when the suspect had not yet been restrained and was shouting
at officers.
2. Qualified Immunity Would Shield the Officers from Liability for
Tackling Mr. Young to the Ground.
Even if tackling Mr. Young amounted to excessive force under these circumstances,
qualified immunity would shield the officers from liability. Qualified immunity shields officers
from liability unless their conduct violated “clearly established statutory or constitutional rights of
which a reasonable person would have known.” Chamberlain Estate of Chamberlain v. City of
White Plains, 960 F.3d 100, 110 (2d Cir. 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). To overcome qualified immunity, “[t]he contours of the right must be sufficiently clear”
at the time of the violation “that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). Because “[u]se of excessive
force is an area of the law in which the result depends very much on the facts of each case . . .
officers are entitled to qualified immunity unless existing precedent squarely governs the specific
facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quotations omitted).
The parties point to no precedent that would have informed Officers DiPresso, Johnston,
and Cabrera in May 2015 that they could not tackle an arrestee to the ground under circumstances
like those presented here. Indeed, there appears to be no precedent that forbade taking to the
ground an arrestee suspected of committing a crime with a knife and who likely possessed a knife.

To the contrary, existing precedent held force to be reasonable when “the risk posed to officer
safety appeared to be both real and imminent,” Tracy, 623 F.3d at 97, such as when officers had
reason to believe that the arrestee possessed a weapon, Massaro, 323 F. App’x at 70 (declaring
force to be reasonable when arrestee had “previously been convicted of crimes involving
weapons”).
In contending that it was clearly established at the time of Mr. Young’s arrest that the
officers’ conduct reflected an unreasonable use of force, Mr. Young relies on Outlaw v. City of
Hartford, 884 F.3d 351 (2d Cir. 2018). But that case is inapposite. In Outlaw, the court of appeals
held that qualified immunity did not bar liability where an officer “repeatedly beat[] an unresisting,
supine, jaywalking suspect with a stick,” thereby “bloodying his head in several places and

breaking his knee.” Id. at 356-57, 367. The opinion obviously does not concern just tackling an
arrestee. Moreover, the arrestee in Outlaw was suspected of a far less serious crime that did not
involve a weapon. Accordingly, Outlaw would not have informed the officers here that tackling
Mr. Young to the ground would qualify as excessive force. Defendants are therefore entitled to
qualified immunity with respect to their alleged tackling of Mr. Young.
C. Summary Judgment is Not Appropriate on the Claims that Officers Kicked
and Stomped Mr. Young.
I deny summary judgment as to claims that officers used excessive force by kicking and
stomping Mr. Young before and after he was handcuffed.
1. The Parties’ Evidentiary Objections are Denied.
Before assessing the merits of this issue, I consider evidentiary objections bearing on the
summary judgment record for these claims. See Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir.
2013). Plaintiff has submitted declarations from his neighbors Tanisha Nock and Latiqua
Blockwood, and defendants argue that these declarations should be precluded or deemed
inadmissible. See Defs.’ Reply Mem. at 3-4 (Dkt. #44).2 Defendants submit medical records, and

plaintiff argues that these records are inadmissible. See Pl.’s Mem. in Opp’n at 24. Neither
objection succeeds.
Defendants first argue that Tanisha Nock and Latiqua Blockwood’s declarations should be
precluded because these witnesses were not properly disclosed under Federal Rule of Civil
Procedure 26(a)(1)(A). See Defs.’ Reply Mem. at 3. That rule requires that “a party must, without
awaiting a discovery request, provide other parties . . . the name and, if known, the address and
telephone number of each individual likely to have discoverable information . . . that the disclosing
party may use to support its claim or defenses.” Defendants represent that “plaintiff never served
any initial or supplemental disclosures in this case.” Defs’ Reply Mem. at 3.

Even so, preclusion does not follow. “[U]nder Rule 37, it is within the court’s discretion
to preclude evidence submitted in violation of Rule 26(a) from use on a motion,” Chen v. New
Trend Apparel, Inc., 8 F. Supp. 3d 406, 434 (S.D.N.Y. 2014) (citing Haas v. Delaware & Hudson
Ry. Co., 282 F. App’x. 84, 85 (2d Cir. 2008)), but “[p]reclusion is a harsh remedy that should be
imposed only in rare situations,” New World Sols., Inc. v. NameMedia Inc., 150 F. Supp. 3d 287,

2 Plaintiff also submits a declaration from Danielle Maness-Williams, who is Mr. Young’s mother. See Maness-
Williams Aff. (Dkt. #46-6). Because this declaration is largely duplicative of the declarations submitted by
Tanisha Nock and Latiqua Blockwood, and because other evidence in the record is sufficient to establish that
there is a genuine dispute of material fact as to whether Mr. Young was kicked and stomped, I need not resolve
whether the affidavit from Ms. Maness-Williams contains admissible evidence.
304 (S.D.N.Y. 2015) (quotations omitted). To determine whether preclusion is warranted, a court
considers “(1) the party’s explanation for the failure to comply with the [disclosure requirement];
(2) the importance of the testimony of the precluded witness[es]; (3) the prejudice suffered by the
opposing party as a result of having to prepare to meet the new [evidence]; and (4) the possibility

of a continuance.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006) (quoting
Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006)).
Taken together, these factors counsel against preclusion here. Plaintiff has not explained
the initial nondisclosure. But the declarations from Ms. Nock and Ms. Blockwood are important
as accounts from contemporaneous witnesses. And the prejudice to defendants is minimal because
in responses to interrogatories, plaintiff identified Ms. Blockwood and Ms. Nock to defendants as
“individuals who had witnesse[d] his [b]eating by members of the City of New York Police
Department.” Pl.’s Response to Defs.’ First Demand for Interrogatories (Dkt. #46-2). Defendants
suffered little prejudice from plaintiff’s failure to identify those witnesses in initial disclosures
given that the witnesses were identified in interrogatory responses with ample time for defendants

to depose them. Nor do I find a continuance warranted, because defendants have given no
indication that they would like additional time to depose these witnesses before the summary
judgment motion is resolved.
Defendants also argue that these declarations should be precluded because they only
“contain hearsay that does not fall within any exception and/or are not relevant to the issues at
hand.” Defs.’ Reply Mem. at 4. But the declarations mostly relay what Ms. Nock and Ms.
Blockwood observed on the night in question. Such declarations “submitted to defeat summary
judgment” need not be admissible themselves so long as they “contain evidence that will be
presented in an admissible form at trial.” Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001)
(per curiam). Defendants offer no reason to believe that plaintiff will be unable to call Ms. Nock
and Ms. Blockwood at trial to testify as to what they observed.
For his part, plaintiff argues that defendants may not rely on any medical or hospital records
in support of their summary judgment motion because these records are not certified, so they are

not admissible as business records under Fed. R. Evid. 803(6). See Pl.’s Mem. at 24. For similar
reasons, this objection fails as well. “It is well-established that even inadmissible evidence may
properly be considered on summary judgment if it may reasonably be reduced to admissible form
at trial.” Perpall v. Pavetek Corp., No. 12-CV-0336, 2017 WL 1155764, at *9 (E.D.N.Y. Mar. 27,
2017) (quotations omitted). There is no reason here to think that defendants will not be able to
provide certification or an authenticating witness at trial. To the contrary, “[a] review of the
medical records submitted by [d]efendants in this case reveals nothing that would indicate a lack
of trustworthiness.” Id. at *8. “Their appearance, contents, and substance are what one would
expect of such records and support [defendants’] claim that they are what they appear to be.” Ibid.
2. A Reasonable Jury Could Find that Officers DiPresso, Johnston, and
Cabrera Kicked and Stomped Mr. Young.
Defendants first argue that summary judgment is appropriate because no reasonable jury
could find that officers kicked and stomped Mr. Young. See Defs.’ Mem. at 14-17 (Dkt. #41).
But to the contrary, the record reflects a genuine dispute on that question. Mr. Young testified that
three officers “started kicking [him] [and] stomping [him]” for about fifteen seconds until they
were able to handcuff him. See Young Dep. 98:15-16, 98:19-20, 102:11-13, 105:14-16. He then

testified that after he was handcuffed, the officers kept kicking and stomping him for another
fifteen seconds. See Young Dep. 102:13-14, 105:8-10. This “testimony alone” is ordinarily
“independently sufficient to raise a genuine issue of material fact.” Bellamy v. City of New York,
914 F.3d 727, 746 (2d Cir. 2019). And Mr. Young’s statements are corroborated by declarations
from his neighbors, Tanisha Nock and her daughter Latiqua Blockwood, in which they say that
they saw officers “beating him, kicking him, and poking them with their night sticks” while “he
was sitting on the ground.” Nock Decl. ¶ 6; Blockwood Decl. ¶ 6. Mr. Young’s testimony,
coupled with the declarations, raises a genuine dispute of material fact as to whether officers

engaged in the conduct that Mr. Young claims.
Defendants principally argue that Mr. Young’s medical records would foreclose a
reasonable jury from finding that officers kicked and stomped Mr. Young. See Defs.’ Mem. at 14,
16. However, a court “may not make credibility determinations or weigh the evidence” on a
motion for summary judgment, Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015)
(quotation omitted), unless a litigant’s account is “so utterly discredited by the record that no
reasonable jury” could believe it, see Scott v. Harris, 550 U.S. 372, 380-81 (2007). This is not
such a case. To be sure, the medical records undercut plaintiff’s testimony regarding the extent of
his injuries. For example, plaintiff testified that he was bleeding, and the medical records do not
reflect that harm. But as to plaintiff’s testimony about whether the officers kicked and stomped

him, the records at most provide “ammunition for cross-examination,” not grounds for summary
judgment. Galberth v. Durkin, No. 14-CV-115, 2017 WL 4325774, at *8 (N.D.N.Y. Aug. 31,
2017), report and recommendation adopted, No. 14-CV-115, 2017 WL 4326076 (N.D.N.Y. Sept.
27, 2017). It remains “for the fact-finder to assess whether and to what extent the medical evidence
strips that testimony of its credibility.” Pierre-Antoine v. City of New York, No. 04-CV-6987, 2006
WL 1292076, at *5 (S.D.N.Y. May 9, 2006).
3. A Reasonable Jury Could Find that the Named Officers were
Personally Involved in the Alleged Use of Force.
Defendants further argue that they are entitled to summary judgment on plaintiffs’
excessive force claim because plaintiff “has failed to identify which officers purportedly kicked
and stomped him.” Defs.’ Mem. at 18. “An individual may be held liable under . . . [Section]
1983 only if that individual is personally involved in the alleged deprivation.” Littlejohn v. City
of New York, 795 F.3d 297, 314 (2d Cir. 2015). But evidence of “direct physical participation . . .
in the constitutional violation” by those who “ha[d] knowledge of the facts that rendered the

conduct illegal” ordinarily suffices, see Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.
2001), and this issue is a question of fact treated like all others on summary judgment, see Williams
v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Here, a reasonable jury could readily find that Officers
DiPresso, Johnston, and Cabrera were the officers who used excessive force against Mr. Young
during his arrest. Mr. Young testified that he was kicked and stomped by three officers, see Young
Dep. 103:6-10, and there is no dispute that Officers DiPresso, Johnston, and Cabrera were the three
officers who arrested him, see Defs.’ Statement ¶ 14; Johnston Decl. ¶ 16.
Further, because there is a genuine dispute as to whether Officers DiPresso, Johnston, and
Cabrera kicked and stomped Mr. Young, there is also a genuine dispute as to whether Sergeant
Casey is liable for failing to intercede. “A police officer is under a duty to intercede and prevent

fellow officers from subjecting a citizen to excessive force, and may be held liable for his failure
to do so if he observes the use of force and has sufficient time to act to prevent it.” Figueroa v.
Mazza, 825 F.3d 89, 106 (2d Cir. 2016). There is no dispute that while Mr. Young was being
arrested, Sergeant Casey was present on the scene. See Defs.’ Statement ¶ 11; DiPresso Decl.
¶¶ 12-13; Johnston Decl. ¶ 13. Crediting Mr. Young’s testimony that the arrest took at least fifteen
to thirty seconds, see Young Dep. 105:8-16, a reasonable jury could also find that Sergeant Casey
had enough time to intervene, see Figueroa, 825 F.3d at 107-08 (concluding that jury must decide
failure-to-intervene claim even “assuming that the assault lasted less than twenty seconds”).
However, a reasonable jury could not find based on the record in this case that any
additional unnamed officers used excessive force against Mr. Young. Plaintiff’s evidence
indicates that at most four officers were on the scene, see Nock Decl. ¶ 6; Blockwood Decl. ¶ 6,
and defendants’ evidence shows the same, see Defs.’ Statement ¶ 11; DiPresso Decl. ¶¶ 12-13;

Johnston Decl. ¶ 13. Those four officers have been identified, and there is nothing to indicate that
additional officers played any role in the alleged constitutional violations. In any event, “[i]t is
well settled that where . . . discovery has closed, the proper course is to dismiss the John Doe
Defendants without prejudice.” Cox v. Vill. of Pleasantville, 271 F. Supp. 3d 591, 618 (S.D.N.Y.
2017); see Sachs v. Cantwell, No. 10-CV-1663, 2012 WL 3822220, at *10 (S.D.N.Y. Sept. 4,
2012). The unnamed defendants are therefore dismissed from the case.
4. A Reasonable Jury Could Find that Mr. Young Suffered a Cognizable
Injury.
Lastly, defendants argue that they are entitled to judgment as a matter of law because Mr.
Young at most suffered de minimis injuries. As an initial matter, at least four circuits have rejected
the premise of this argument—concluding that a plaintiff may bring an excessive force claim even
if he suffered only de minimis injury. Rizk v. City of New York, 462 F. Supp. 3d 203, 223 (E.D.N.Y.
2020) (collecting cases); see Smith v. Murphy, 634 F. App’x 914, 917 (4th Cir. 2015) (per curiam)
(“[We] [f]ind[] no support for Defendants’ contention that suffering only de minimis injuries bars
one from asserting a Fourth Amendment excessive force claim.”); Chambers v. Pennycook, 641
F.3d 898, 906 (8th Cir. 2011) (“We are not convinced . . . that evidence of only de minimis injury

necessarily forecloses a claim of excessive force under the Fourth Amendment.”); United States
v. Rodella, 804 F.3d 1317, 1328-29 (10th Cir. 2015) (“[W]e reject the . . . premise . . . that there is
a de minimis injury requirement for Fourth Amendment excessive force claims in cases which
involve more than handcuffing.”); Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir. 2014) (“[A]
plaintiff claiming excessive force under the Fourth Amendment can seek nominal damages if he
does not have compensable injuries.”).
While the Second Circuit has not squarely addressed whether a plaintiff who suffered truly
de minimis harm may bring an excessive force claim, it has made clear that, at minimum, “the

absence of significant injury . . . is not dispositive under a Fourth Amendment analysis.” Jones v.
Treubig, 963 F.3d 214, 239 (2d Cir. 2020). And Mr. Young has alleged here that he suffered rib,
knee, and abdominal pain for hours after being kicked and stomped. See Wilson Decl. Ex. J. at D
0653-55; Wilson Decl. Ex. K. at D 0640, D 0641, D 0645. Even assuming arguendo that some
category of de minimis harms do not give rise to a Fourth Amendment claim, I decline to hold that
an arrestee who suffered hours of pain after being kicked and stomped by police officers falls into
such a category. Indeed, the injuries he claims are at least as serious as injuries found sufficient
for a Fourth Amendment claim in this circuit in recent years. See Jones, 963 F.3d at 239 (reversing
summary judgment where plaintiff testified that “he felt numb for 30 to 40 minutes after being
tased”); Sash v. United States, 674 F. Supp. 2d 531, 540 (S.D.N.Y. 2009) (denying summary

judgment where plaintiff only “insist[ed] that the incident caused pain in his neck and back” and
“reported tightening in his chest one hour after the arrest”). I therefore decline to grant summary
judgment to defendants based on the extent of plaintiff’s injuries.
Separately, defendants argue that plaintiff’s injuries are “demonstrative of the de minimis
nature of the force used to subdue and handcuff him.” Defs.’ Mem at 17. It is true that “[n]ot
every push or shove . . . violates the Fourth Amendment,” Graham, 490 U.S. at 398, because there
is some “physical contact common to virtually every custodial arrest,” Figueroa, 825 F.3d at
105-06. But “kicking and stomping” an arrestee is more than de minimis force, and that is the
conduct testified to here. See Johnson, 2006 WL 2354815, at *5 (denying summary judgment
when officers kicked and stomped person during search); Davis v. City of New York, No. 04-CV-
3299, 2007 WL 755190, at *12 (E.D.N.Y. Feb. 15, 2007) (denying summary judgment when
arrestee was “intentionally kicked . . . while handcuffed on the floor”). To the extent that
defendants argue that plaintiff’s injuries show that officers did not kick and stomp Mr. Young, that

argument is rejected for the reasons it was rejected before: plaintiff’s own deposition testimony
and the declarations submitted at the summary judgment stage create a genuine issue of material
fact, even if plaintiff only suffered slight injuries. Summary judgment is therefore denied as to
these allegations.
II. Summary Judgment is Appropriate on the Fabrication of Evidence Claim.
Defendants also seek summary judgment on plaintiff’s fabrication of evidence claim. I
grant summary judgment to defendants on that claim, because plaintiffs have not presented any
evidence that any officer fabricated information or forwarded that information to a prosecutor. To
make out a fabrication of evidence claim, a plaintiff must at least show that “a police officer
create[d] false information likely to influence a jury’s decision and forward[ed] that information
to prosecutors.” Bellamy v. City of New York, 914 F.3d 727, 745 (2d Cir. 2019) (quoting Ricciuti

v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)). The complaint’s first cause of action
indeed includes a one-line allegation that defendants violated plaintiff’s right to be “free[] from
having [p]olice fabricate evidence.” Compl. ¶ 28. But the complaint has no factual allegations to
support this claim, and plaintiff has never presented any evidence that defendants fabricated
evidence. Indeed, even after defendants identified this absence, plaintiff did not defend this
fabrication of evidence claim in his opposition to defendants’ motion for summary judgment. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (permitting judgment “against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case”).
Even viewing the evidence in the light most favorable to the plaintiff, a jury could not find that
any defendant created false information or forwarded that information to a prosecutor.
III. Summary Judgment is Appropriate on the Municipal Liability Claim.
Finally, defendants are entitled to summary judgment on plaintiff’s municipal liability
claim. Although there are genuine disputes of material fact as to whether certain officers violated

plaintiff’s constitutional rights, a municipality is not liable under Section 1983 merely “by
application of the doctrine of respondeat superior.” Lucente v. Cty of Suffolk, No. 19-347, --- F.3d
----, 2020 WL 6733477, at *8 (2d Cir. Nov. 17, 2020) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 478 (1986)). Rather, to demonstrate municipal liability under Section 1983, “a plaintiff
is required to plead and prove three elements: (1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) a denial of a constitutional right.” Ibid. (quoting Wray v. City of
New York, 490 F.3d 189, 195 (2d Cir. 2007)).
Defendants are entitled to judgment as a matter of law because plaintiff has not sufficiently
established any relevant official policy or custom that caused the purported violation of his rights.
Ordinarily, “[o]fficial municipal policy includes the decisions of a government’s lawmakers, the

acts of its policymaking officials, and practices so persistent and widespread as to practically have
the force of law.” Hernandez v. United States, 939 F.3d 191, 206 (2d Cir. 2019) (quoting Connick
v. Thompson, 563 U.S. 51, 60 (2011)). Plaintiff’s fourth cause of action alleges only that the City
“failed to properly train, screen, supervise or discipline its employees and police officers,” Compl.
¶ 38, and that under the umbrella of failure of supervision, the City “had defacto policies . . .
including but not limited to the improper and inadequate supervision of the Street Crimes Units
and Anti Crime Units operating in plainclothes in the County of Queens,” id. ¶ 37. Plaintiff further
alleges that these actions “were a direct and proximate cause of the unconstitutional conduct”
suffered by Mr. Young, id. ¶ 39. But such “conclusory statements, conjecture, [and] speculation
by the party resisting the motion will not defeat summary judgment.” Flores v. United States, 885
F.3d 119, 122 (2d Cir. 2018) (quoting Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996)).
Aside from these allegations, plaintiff has provided no evidence tending to show that the
City had any policies reflecting a failure to train, screen, supervise, or discipline its officers. Even

on a motion to dismiss, a “mere assertion” that “a municipality has . . . a custom or policy is
insufficient in the absence of allegations of fact tending to support, at least circumstantially, such
an inference.” Montero v. City of Yonkers, 890 F.3d 386, 403-04 (2d Cir. 2018). Nor can the
disputed constitutional conduct by the officers here make up the difference. Even if true, the single
incident of unconstitutional activity disputed in this case cannot suffice to demonstrate a consistent
practice that constitutes a de facto policy or custom. See Hu v. City of New York, 927 F.3d 81, 106
(2d Cir. 2019) (four instances). Such isolated acts “by non-policymaking municipal employees
are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify
municipal liability,” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012), and do not alone
show that “the alleged practice [was] so manifest as to imply the constructive acquiescence of

senior policymaking officials,” Hu, F.3d at 106. Summary judgment to defendants is therefore
appropriate on plaintiff’s municipal liability claim.
CONCLUSION
Defendants’ motion for summary judgment is granted in part and denied in part. The
motion is granted on allegations that defendants used excessive force in throwing Mr. Young to
the ground. The motion is also granted with respect to allegations that defendants used excessive
force in violation of the Eighth and Fourteenth Amendments. Further, the motion is granted with
respect to any allegations as to any unnamed defendants.
Additionally, defendants’ motion for summary judgment is granted on allegations that
defendants fabricated evidence. And the motion is granted with respect to allegations that the City
of New York is liable for any purported constitutional violations. Accordingly, the Clerk of Court
is directed to dismiss the City of New York and any unnamed officers at this time.
Defendants’ motion for summary judgment is denied as to allegations that Officers
DiPresso, Johnston, and Cabrera used excessive force in kicking and stomping Mr. Young before

and after he was handcuffed. The motion is also denied as to allegations that Sergeant Casey failed
to intervene while other officers used excessive force. Because genuine disputes of material fact
remain as to these allegations, litigation may continue as to those claims.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge

Dated: November 30, 2020
Brooklyn, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305307. Public record. Not legal advice.