Scoma v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOHN SCOMA,

Plaintiff,

MEMORANDUM & ORDER

-against- 16-CV-6693 (KAM)(SJB)

CITY OF NEW YORK, AZEEM CHATHA,

FERNANDO CACHES, DAMIR VUKIC,

ARGLEY DELACRUZ, FRANCISCO

ALLENDE, SPENCER CRAVEN, GREGORY

MANNINO, MATTHEW BRANDER, EDWARD

WASZAK, JOSEPH HAYWARD,

Individually, and JOHN AND JANE

DOE 1 through 10,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff John Scoma commenced this action against the

City of New York (the “City”) Azeem Chatha, Fernando Caches,

Damir Vukic, Argely Delacruz, Francisco Allende, Spencer Craven,

Gregory Mannino, and Matthew Brander, (together with the City,

“defendants”) on December 2, 2016 pursuant to 42 U.S.C. § 1983

(“section 1983”) and New York law asserting excessive force,

assault and battery, and a violation of his state constitutional

rights, in connection with his arrest on September 19, 2015.1

1 On February 4, 2020, this Court granted the parties’ stipulation of

dismissal, dismissing plaintiff’s first, second, fourth, fifth, ninth, tenth,

thirteenth, fifteenth, sixteenth, seventeenth, and eighteenth causes of

action against all defendants with prejudice. (See ECF No. 75, Stipulation

and Order of Voluntary Partial Dismissal with Prejudice.) All claims against

defendants Joseph Hayward and Edward Waszak were dismissed with prejudice.

(Id.) Plaintiff also agreed that plaintiff’s Seventh and Eighth causes of

action would be limited to claims based on the alleged use of excessive

force. (Id.)

Presently before the court is defendants’ motion for

summary judgment as to all of plaintiff’s causes of action. In

support of their motion, defendants have submitted a memorandum

of law (ECF No. 80-2, “Def. Mem.”), a statement of undisputed

material facts pursuant to Local Rule 56.1 (ECF No. 80-3, “Def.

56.1”), and a declaration by Alan H. Scheiner, Esq., counsel for

defendants (ECF No. 80-4, “Scheiner Decl.”), together with

accompanying exhibits. (ECF Nos. 80-5 through 80-16.)

Defendants have also submitted a reply memorandum (ECF No. 85-1,

“Def. Reply”), and a reply to plaintiff’s opposing Memorandum of

Law and Local Rule 56.1 counter-statement of material facts.2

(ECF No. 85-2.)

In addition to his Local Rule 56.1 counter-statement

of material facts (ECF No. 82, “Pl. 56.1”), plaintiff has

submitted a memorandum in opposition to summary judgment. (ECF

No. 84, “Pl. Mem.”) Plaintiff also submitted a declaration by

Lissa Green-Stark, Esq., counsel for plaintiff (ECF No. 83,

“Green-Stark Decl.”), together with accompanying exhibits. (ECF

Nos. 83-1 through 83-25.) Finally, the parties have submitted a

Joint Deposition Appendix (ECF No. 85-7), consisting of excerpts

2 On July 1, 2020, with plaintiff’s consent, defendants filed a motion to

amend the submitted summary judgment papers to include Exhibit L to the

Declaration of Alan H. Scheiner. (ECF No. 86.) The Court grants defendants’

motion to amend the summary judgment papers to include Exhibit L, an excerpt

of Department of Justice CED (Conducted Energy Devices) Guidelines, which was

timely served on plaintiff with the original moving papers on March 3, 2020.

of eleven transcripts from plaintiff, defendant Officers, and

non-party witnesses.

For the reasons set forth below, defendants’ motion

for summary judgment is granted in part and denied in part.

BACKGROUND

I. Factual Background

The following facts are taken from the parties’ Local

Rule 56.1 statement, counter-statement, and reply statement, as

well as from documents and transcripts cited in the parties’

Local Rule 56.1 statements. Except as otherwise indicated, the

facts set forth below from the parties’ Local Rule 56.1

statements are undisputed. The court summarizes only those

facts that are relevant and material to the adjudication of the

instant motion.

On the evening of September 19, 2015, plaintiff

Scoma’s neighbor, Christina Cosares, called 911 and reported

that plaintiff was allegedly assaulting his then-wife Brielle

Scoma. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Ms. Scoma had come to

the Cosares’ house, crying and upset, and rang the doorbell.

(Def. 56.1 ¶ 2; Pl. 56.1 ¶ 4.) Ms. Cosares and her husband

observed Ms. Scoma visibly upset. (Def. 56.1 ¶ 3.) Plaintiff

walked over to the Cosares’ house and physically brought his

wife back to their home. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 8.) Ms.

Cosares called 911 and reported, in sum and substance, that a

male was assaulting his wife and that the same man had pulled

the wife from the Cosares’ home. (Def. 56.1 ¶ 5; Scheiner

Decl., Ex. D, Cosares Tr. at 26:5-27:8.) Ms. Cosares testified

to seeing plaintiff grab Ms. Scoma by the neck and drag her down

the steps towards plaintiff’s home. (Green-Stark Decl., Ex. 2,

Cosares Tr. at 17:5-12.) The 911 dispatcher reported the call

to police officers as: “Male beating his wife she is ringing on

bells . . . Perp[etrator] dragged fem[ale] aided down the block

when she was knocking on doors for help.” (Def. 56.1 ¶ 6;

Scheiner Decl., Ex. C, at NYC 105.)

At approximately 7:50 p.m., Police Officers Azeem

Chatha and Fernando Caches receive a radio call for an assault

in progress. (Def. 56.1 ¶ 7; Scheiner Decl., Ex. E, at NYC 216-

18; Ex. G, Chatha Tr. at 47:14-25.) Once Officers Chatha and

Caches arrived at Ms. Cosares’ home, she reported to them that

Ms. Scoma had come running to her house, rang the bell, asked

for help, and asked them to call 911. (Def. 56.1 ¶ 8; Scheiner

Decl., Ex. G at 40:24-41:9, 50:18-51:10.) Ms. Cosares also

reported to Officer Chatha that plaintiff had come over, grabbed

Ms. Scoma by the neck, and dragged her back to the house.3 (Def.

3 In her official statement prepared and signed on the date of the

incident, Ms. Cosares reported: “I was in my home when the doorbell rang and

my neighbor was screaming asking for help and when I opened the door the

husband came grabbed her by the neck and dragged her back home and I call the

police.” (Scheiner Decl., Ex. D, at 30:15-31:17; Ex. J, at NYC 14.)

56.1 ¶ 9; Scheiner Decl., Ex. G, at 40:24-41:19.) Plaintiff

disputes that Ms. Scoma requested help, denies grabbing Ms.

Scoma by the neck in front of the Cosares, and contends that no

assault was occurring when Ms. Cosares reported an emergency to

911. (Pl. 56.1 at 2-3, ¶¶ 12-14.)

Officer Chatha and Caches approached plaintiff’s house

and started knocking on the front door and all the windows,

yelling “open the door, police.” (Def. 56.1 ¶ 12.) Sergeant

Damir Vukic received the same radio call for an assault in

progress and proceeded to the scene of the incident together

with Officer Argely Delacruz. (Def. 56.1 ¶ 13.) Sergeant Vukic

arrived at plaintiff’s home at approximately 8:00 pm and was

informed by Officers Chatha and Caches of what Ms. Cosares had

reported to them.4 (Def. 56.1 ¶¶ 13-14.) After approaching the

back of plaintiff’s house and yelling “Police Department in

front, please come outside,” with no response, Sergeant Vukic

instructed Police Officer Craven to kick in the back door of

plaintiff’s house, which Officer Craven did. (Def. 56.1 ¶¶ 18-

20.) Once inside plaintiff’s home, an officer opened the front

door, allowing Officers Chatha and Caches to enter. (Def. 56.1

¶¶ 21-22.) When entering the home, the Officers yelled “Police”

4 Sergeant Vukic testified that he proceeded to discuss with Ms. Cosares,

who confirmed the sum and substance of what she had reported to Officers Chat

and Caches -- namely, that an assault was in progress and that Ms. Scoma had

requested assistance. Plaintiff disputes that Sergeant Vukic spoke with Ms.

Cosares, but offers no evidence in support. (Pl. 56.1 at 3.)

and “Police. We are coming in. Police.” (Id.) Plaintiff did

not hear the Officers because he was upstairs in the bedroom

with his wife and the air conditioners were on. (Pl. 56.1 ¶

23.)

Once inside plaintiff’s home, the Officers reported

that Ms. Scoma came running downstairs from the upper level of

the house, screaming and crying. (Def. 56.1 ¶ 23; Scheiner

Decl. Ex. G, at 55:6-11, 63:19-64:7; Ex. H, at 66:17-20, 69:5-

10.) Plaintiff disputes the Officers’ account and claims that

Ms. Scoma came downstairs at the direction of the police with

her hands held up in the air before she was accompanied out of

the house by an officer. (Pl. 56.1 at 4; Green-Stark Decl., Ex.

1, Brielle Scoma Tr. at 48:21-52:2.) Plaintiff then exited the

room at the top of the stars and stood at the top of the stairs

where he appeared to the officers to be angry and agitated.

(Def. 56.1 ¶ 24; Ex. H, at 70:21-71:5.) Officers remained on

the first floor of the home and asked plaintiff to come

downstairs, but plaintiff came only halfway down the stars and

then stopped about six or seven steps above the Officers. (Def.

56.1 ¶ 25.) Plaintiff, standing at 6’1” and weighing

approximately 240 pounds, was shirtless and wearing only a pair

of shorts. (Def. 56.1 ¶ 25-26.) From the bottom of the stairs,

the Officers perceived plaintiff as large and very muscular.

(Def. 56.1 ¶ 28; Scheiner Decl., Ex. H, at 72:17-73:3; Ex. I, at

55:17-56:2.)

According to plaintiff, after telling the Officers

that he would come downstairs, he followed Ms. Scoma with his

hands in the air, and when he reached approximately the sixth

step, observed six police officers pointing guns at him. (Pl.

56.1 ¶ 37; Green-Stark Decl., Ex. 3, at 53:12-53:3.) The

Officers directed plaintiff to come downstairs and to sit on the

couch. (Pl. 56.1 ¶ 38; Green-Stark Decl., Ex. 3, at 53:12-

54:3.) Mr. Scoma did not comply, but responded that he would

sit on the steps of the stairs and, before sitting down, lowered

his shorts to show the Officers that he was unarmed. (Pl. 56.1

¶ 40-41; Green-Stark Decl., Ex. 3, at 54:2-10.) According to

defendants, Sergeant Vukic and Officer Chatha explained to

plaintiff that the Officers were responding to a 911 call and

attempted to persuade, and again directed, plaintiff to come

downstairs. (Def. 56.1 ¶ 29.) Plaintiff refused to come

downstairs and according to the Officers’ was yelling and

screaming at the Officers, telling them to “get the fuck out of

his house, [I’m] not going anywhere.” (Def. 56.1 ¶ 30; Scheiner

Decl., Ex. B, at 53:25-54:13.) According to plaintiff, he

walked downstairs with his hands up, stopped halfway and said to

the Officers: “what are you doing here,” “you got a warrant to

be in this house,” “get out of this house.” (Scheiner Decl.,

Ex. B, John Scoma Tr. at 53:25-54:3.)

It is undisputed that plaintiff told the Officers to

get out of his house, stopped halfway down the staircase, sat

down, and did not comply with the Officers’ directions to come

all the way downstairs to sit on the couch. At approximately

8:09 pm, Sergeant Vukic requested the assistance of the

Emergency Services Unit (“ESU”). (Def. 56.1 ¶ 31; Ex. E, at NYC

217.) In response, ESU Officers Francisco Allende and Detective

Brander arrived at plaintiff’s home.5 (Def. 56.1 ¶ 31-32;

Scheiner Decl., Ex. I, at 37:10-38:3, 39:3-9.) The ESU Officers

responded to a radio call and call from the Officers for a

domestic assault, and the dispatcher reported that a man was

“beating his wife.” (Def. 56.1 ¶ 33; Scheiner Decl., Ex. I, at

44:10-45:21.)

It is also undisputed that once inside the home, the

ESU Officers observed plaintiff sitting on the staircase. (Def.

56.1 ¶ 35.) According to defendants, the ESU Officers asked

Sergeant Vukic if plaintiff was “under [arrest]” and Sergeant

Vukic replied in the affirmative. (Def. 56.1 ¶ 36.) Plaintiff

5 The parties dispute the timing of the ESU Officers’ arrival to the

scene of the incident. According to defendants, the ESU Officers arrived

shortly after Sergeant Vukic’s call, approximately fifteen minutes after the

police first gained entry to plaintiff’s home. (Def. 56.1 ¶ 31.) According

to plaintiff, the ESU Officers arrived at approximately 8:30 pm, or

approximately 10 minutes after the first police Officers arrived at

plaintiff’s home. (Pl. Response ¶ 31; Pl. 56.1 ¶ 53.)

testified that as he sat on the stairs above the Officers, he

heard the Officers state that he was under arrest before the ESU

Officers arrived (Green-Stark Decl., Ex. 3, John Scoma Tr. at

64:5-21). Plaintiff also testified that he was never told he

was under arrest. (Green-Stark Decl., Ex. 3, John Scoma Tr. at

87:4-11.) Several officers testified that the ESU Officers and

others continued to instruct plaintiff to come downstairs, which

plaintiff refused to do. (Def 56.1 ¶ 37; Scheiner Decl., Ex. G,

at 55:16-56:6, 93:17-23; Ex. H, at 87:9-25, 88:1-89:2; Ex. I, at

60:2-12, 63:9-20, 66:3-14, 67:17-68:7, 77:2-13.) Throughout

this interaction, the Officers continued to perceive the

plaintiff as angry and agitated. (Def. 56.1 ¶ 38.) ESU Officer

Allende testified that he believed an attempt to physically

seize plaintiff would be dangerous, based on his understanding

of the criminal offense, his perception of plaintiff’s demeanor,

large physical size and strength, plaintiff’s refusal to descend

the stairs, plaintiff’s insistence in refusing arrest, and the

danger the narrow stairwell may pose to officers approaching the

plaintiff from below. (Scheiner Decl. Ex. I, at 143:2-144:4,

146:17-21, 159:7-160:3.) Accordingly, after speaking with

plaintiff for several minutes and unsuccessfully attempting to

deescalate the situation, Officer Allende deployed a taser at

plaintiff from below. (Def. 56.1 ¶¶ 44; Allende Dep. Tr., App’x

E, 72:23-73:5.) Plaintiff testified that after the first taser

hit him in his bicep, he stood up, and was then hit with another

taser in his forearm. (Scheiner Decl. Ex. B., at 54:14-17.)

Two laser darts lodged in plaintiff’s left arm. (Def. 56.1 ¶

45.)

Plaintiff disputes defendants’ characterization of the

events leading up to the deployment of the taser. Plaintiff

contends that upon entering his residence, an ESU Officer

immediately said, “you are under arrest.” (Pl. 56.1 ¶ 55.)

Plaintiff said in response, “for what? He’s telling me to sit on

the couch.” (Pl. 56.1 ¶ 56.) Plaintiff testified that the

Officers told him to come down the stairs and sit on the couch

but he remained on the stairs. (Scheiner Decl., Ex. B, at

53:22-54:3.) Then, without any further attempt at verbal

negotiation or other means of restraint, ESU Detective Brander

said, “hit him.” (Pl. 56.1 ¶ 57.) At that point, Officer

Allende discharged the taser for two, five-second cycles, with a

four second interval between the two discharges. (Pl. 56.1 ¶

60; Green-Stark Decl., Ex. 3, 54:13-18; Ex. 5 (taser report).)

Officer Allende testified that he believed that he pressed the

taser trigger once for approximately five seconds. (Scheiner

Decl., Ex. I, at 84:10-21), but the record indicates the taser

was deployed twice.

After Officer Allende deployed the taser, two ESU

Officers (including Detective Brander) ran up the stairs,

grabbed plaintiff, and together brought plaintiff down the

stairs. (Def. 56.1 ¶ 49; Scheiner Decl., Ex. H, at 91:22-25,

95:7-25.) It is undisputed that within approximately 30 seconds

of the taser being deployed, Officers brought plaintiff off the

stairs to the floor, handcuffed him, and walked him out of the

house. (Def. 56.1 ¶ 50.) According to plaintiff, the Officers

violently and roughly piled on plaintiff, one officer placed his

knee on plaintiff’s back, and plaintiff’s arm was forcefully

snapped while he was handcuffed, which fractured his elbow.

(Pl. 56.1 ¶ 74.) The Officers testified that plaintiff

struggled and resisted as they attempted to handcuff him. (See

Green-Stark Decl., Ex. 17, at 33:24-34:18.) The circumstances

and cause of plaintiff’s elbow fracture is in dispute.

Following his arrest, plaintiff was then transported

to Lutheran Medical Center Hospital. (Def. 56.1 ¶ 52.) While

at the hospital, plaintiff complained of sharp pain in his left

elbow. (Def. 56.1 ¶ 53; Scheiner Decl., Ex. K, at NYC 165.)

Hospital records reflect that plaintiff reported no chest pain,

shortness of breath, no abdominal pain or vomiting, no neck or

back pain, no cough or fever, and “[n]o other signs of trauma to

body.” (Scheiner Decl., Ex. K, at NYC 165.) An x-ray was taken

of plaintiff’s left elbow and he was diagnosed with a fracture

to his “coronoid process proximal ulna” and a “suspected

fracture” to his proximal radial head. (Def. 56.1 ¶ 55;

Scheiner Decl., Ex. K, at NYC 160, 169.) At the hospital,

doctors removed two laser barbs, one from plaintiff’s left bicep

and the other from plaintiff’s left forearm. (Def. 56.1 ¶ 56.)

Plaintiff was discharged from the hospital at 11:59 pm on

September 19, 2015, about two hours and forty-five minutes after

he was admitted. (Def. 56.1 ¶ 57.)

Plaintiff was ultimately charged with Resisting

Arrest, a class A misdemeanor, Attempted Assault in the Third

Degree, a class B misdemeanor, Menacing in the Third Degree, a

class B misdemeanor, Disorderly Conduct, a violation, and

Harassment in the Second Degree, a violation. (Pl. 56.1 ¶ 87;

Green-Stark Decl., Ex. 21, Crim. Ct. Compl. P. 56.) All charges

were dismissed and sealed on March 21, 2016. (Pl. 56.1 ¶ 88;

Green-Stark Decl., Ex. 25.)

II. Procedural History

Plaintiff commenced the instant action by filing a

complaint against defendants on December 2, 2016. (ECF No. 1.)

The parties proceeded to discovery under the supervision of the

Honorable Cheryl Pollak and Sanket J. Bulsara, United States

Magistrate Judges. (See, e.g., July 5, 2017 Minute Entry, ECF

No. 15; September 14, 2017 Docket Minute Entry.) Plaintiff

filed an amended complaint against defendants on December 19,

2017 (ECF No. 18), and a second amended complaint on July 26,

2018. (ECF No. 44, Second Amended Complaint (“SAC”).) On

January 23, 2020, the court granted defendants leave to file the

instant motion and set a briefing schedule (see January 23, 2020

Minute Entry), and as contemplated in that briefing schedule,

the motion was fully briefed and submitted on June 26, 2020.

LEGAL STANDARD

Defendants move for summary judgment pursuant to

Federal Rule of Civil Procedure 56, which provides that “[t]he

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).

I. Summary Judgment

“[T]he mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original). A fact is material if it “might affect the outcome

of the suit under the governing law,” and a dispute is genuine

“if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id. at 248. For a genuine

issue of material fact to exist, there must be “sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party. If the evidence is merely colorable, or

is not significantly probative, summary judgment may be

granted.” Id. at 249-50 (citations omitted).

In reviewing a motion for summary judgment, the court

“is not to weigh the evidence but is instead required to view

the evidence in the light most favorable to the party opposing

summary judgment, to draw all reasonable inferences in favor of

that party, and to eschew credibility assessments.” Amnesty Am.

v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004)

(quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996));

accord Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (“[I]n

ruling on a motion for summary judgment, ‘the evidence of the

nonmovant is to be believed, and all justifiable inferences are

to be drawn in his favor.’” (quoting Anderson, 477 U.S. at

255)).

The moving party has the burden of establishing the

absence of a genuine dispute as to any material fact, and in

opposing summary judgment, the nonmoving party “need only

present evidence from which a jury might return a verdict in his

favor” to defeat a motion for summary judgment. Anderson, 477

U.S. at 256-57. To meet this burden, however, a party opposing

summary judgment must “come forward with specific facts showing

that there is a genuine issue for trial,” not merely “show that

there is some metaphysical doubt as to the material facts.”

Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)

(emphasis in original) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

In opposing summary judgment, it is “not sufficient

merely to assert a conclusion without supplying supporting

arguments or facts,” and a party must instead set forth

“concrete particulars.” BellSouth Telecomm., Inc. v. W.R. Grace

& Co.-Conn., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotation

marks and citations omitted). Accordingly, “[t]he nonmoving

party must go beyond the pleadings, and by his or her own

affidavits, or by the depositions, answers to interrogatories,

and admissions on file, designate specific facts showing that

there is a genuine issue for trial.” Davis v. New York, 316

F.3d 93, 100 (2d Cir. 2002) (citations omitted); accord Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986).

DISCUSSION

Plaintiff’s SAC asserts eighteen causes of action,

including federal Section 1983 claims of excessive force and

failure to intervene, and supplemental state law claims of

assault and battery, and under the New York Constitution,

arising from an incident which occurred on September 19, 2015.

(See SAC ¶¶ 40-129.) By Stipulation and Order entered on

February 4, 2020 (ECF No. 75), the Court dismissed with

prejudice all claims not arising from alleged excessive force

and also dismissed with prejudice all claims against two

individual defendants, Deputy Inspector Joseph Hayward and

retired Police Officer Edward Waszak. Defendants seek summary

judgment as to plaintiff’s remaining claims. (See Def. Mem. at

3.) As an initial matter, in his opposition to defendants’

summary judgment motion, plaintiff “agrees to withdraw, or to

the Court otherwise dismissing, plaintiff’s federal municipal

liability claim.” (Pl. Mem. at 1 n.1.) Accordingly, defendants

are entitled to summary judgment dismissing plaintiff’s federal

municipal liability claim.

With respect to plaintiff’s remaining claims relating

to the alleged use of excessive force, as set forth below, the

Court concludes that defendants are entitled to summary judgment

dismissing plaintiff’s excessive force claim and assault and

battery claims with respect to Officer Allende’s use of the

taser, plaintiff’s municipal liability claim, and claim under

the New York Constitution. The Court further concludes that the

defendant Officers are entitled to qualified immunity with

respect to the use of the taser. The Court denies summary

judgment as to plaintiff’s excessive force claim with respect to

the Officers’ actions in the course of applying handcuffs, or

after plaintiff was handcuffed and similarly denies the related

assault and battery claims for the same reason.

I. Plaintiff’s Excessive Force Claim

Plaintiff alleges an excessive force claim based on

Officer Allende’s use of a taser, and defendants use of force in

restraining him either during the application of handcuffs or

after plaintiff was handcuffed. (SAC ¶¶ 12, 16, 48-51; Scheiner

Decl., Ex. B, at 65:3-6, 69:2-10.) Defendants move for summary

judgment on plaintiff's excessive force claim, arguing that the

force used was objectively reasonable under the circumstances.

(Def. Mem. at 2, 8-15, 19-21.)

“The Fourth Amendment prohibits the use of

unreasonable and therefore excessive force by a police officer

in the course of effecting an arrest.” Tracy v. Freshwater, 623

F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor, 490 U.S.

386, 395 (1989)). “Because ‘[t]he Fourth Amendment test of

reasonableness “is one of objective reasonableness,’” ... the

inquiry is necessarily case and fact specific and requires

balancing the nature and quality of the intrusion on the

plaintiff's Fourth Amendment interests against the

countervailing governmental interests at stake.” Id. (quoting

Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir.

2004)) (internal citations omitted). In conducting that

balancing test, courts are to consider the following three

factors: “(1) the nature and severity of the crime leading to

the arrest, (2) whether the suspect poses an immediate threat to

the safety of the officer or others, and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by

flight.” Id. (citing Graham, 489 U.S. at 396; Jones v. Parmley,

465 F.3d 46, 61 (2d Cir. 2006)). In other words, “[a] court's

role in considering excessive force claims is to determine

whether a jury, instructed as to the relevant factors, could

reasonably find that the force used was excessive.” Brown v.

City of New York, 798 F.3d 94, 103 (2d Cir. 2015).

In balancing these factors, courts must be “careful to

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 Jones, 465 F.3d at

61 (quoting Graham, 390 U.S. at 396)). This court recognizes

that “police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving.” Graham, 490 U.S. at 396-97. As the Supreme

Court has emphasized, it is important to evaluate the record

“from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Id. at 396;

see also id. (“Not every push or shove, even if it may later

seem unnecessary in the peace of a judge's chambers, violates

the Fourth Amendment.” (quotation marks and citation omitted)).

“It is equally important that courts not isolate a particular

act of force by an officer if it was intertwined with other acts

of force in rapid succession where there was no reasonable

opportunity to re-assess.” Jones v. Treubig, 963 F.3d 214, 236

(2d Cir. 2020).

For purposes of defendants’ motion, the parties do not

appear to dispute plaintiff’s allegation that the taser was

deployed twice (SAC ¶ 16). Defendants contend that, based on

the undisputed facts, Officer Allende’s actions were objectively

reasonable under the circumstances as to both taser uses. In

evaluating defendants’ motion for summary judgment on

plaintiff’s excessive force claim, the court analyzes the two

taser deployments independently. See, e.g., Towsley v. Frank,

No. 09-cv-23 (CR), 2010 WL 5394837, at *7 (D. Vt. Dec. 28, 2010)

(evaluating two taser deployments independently). The court

also considers plaintiff’s excessive force claim based on

defendants’ use of force during the handcuffing or after

plaintiff was handcuffed.

A. First Taser Deployment

To determine if the Officers’ actions constituted

unconstitutional excessive force, the court applies a

reasonableness inquiry, which “requires careful attention to the

facts and circumstances of each particular case, including 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.” Graham, 490 U.S. at 396; see also Amnesty

America, 361 F.3d at 123 (explaining that whether use of force

is reasonable depends on “the totality of the circumstances

faced by the arresting officer.”).

At the summary judgment stage, once the court has

determined the relevant set of facts and drawn all inferences in

favor of the nonmoving party, the reasonableness of the

officer's actions is a pure question of law. See Scott v.

Harris, 550 U.S. 372, 381 n.8. (2007). The court now turns to

the three Graham factors (i.e., (1) the severity of the crime at

issue, (2) whether the suspect posed an immediate threat to the

safety of the officers or others, and (3) whether the suspect

actively resisted arrest or attempted to evade arrest by

flight). See Graham, 490 U.S. at 396. Having considered the

facts and circumstances in this case, including the Graham

factors discussed below, the court concludes that Officer

Allende’s use of the taser was objectively reasonable.

First, the court concludes that “the severity of the

crime at issue” here -- an alleged physical assault in a

domestic dispute -- constitutes a serious and dangerous crime

under the circumstances. Graham, 490 U.S. at 396; see, e.g.,

Hodge v. City of Long Beach, 425 F. App'x 33, 34 (2d Cir. 2011)

(summary order) (noting that “domestic disputes tend to be

combustible” and concluding that a 911 call reporting a domestic

dispute constituted a “potential severe domestic crime”

(internal quotation marks omitted)); Whitfield v. City of

Newburgh, No. 08-cv-8516 (RKE), 2015 WL 9275695, at *12

(S.D.N.Y. Dec. 17, 2015) (individual high on drugs and suspected

of domestic violence posed a danger to himself and the

officers). “[A]n officer’s use of force against a person

suspected of committing a dangerous crime is more likely to be

deemed reasonable than the use of force against a person

suspected of committing a minor offense.” Bryant v. Meriden

Police Dep't, No. 13-cv-449 (SRU), 2017 WL 1217090, at *7 (D.

Conn. Mar. 31, 2017). Here, probable cause existed to arrest

plaintiff for a dangerous domestic assault based on the

undisputed facts that Officers received the following

information: (1) the information relayed to the Officers from

the 911 dispatcher that plaintiff was beating his wife (Def.

56.1 ¶¶ 6, 7, 13, 33); (2) Ms. Cosares’s eyewitness report to

the Officers that Ms. Scoma had come to her house crying and

pleading for help before plaintiff grabbed her by the neck and

brought her back to plaintiff’s home (id. ¶¶ 8, 9, 11).6 Under

6 Defendants also contend that once the Officers entered plaintiff’s

house, Brielle Scoma came running downstairs from the upper level of the

house, screaming and crying. (Def. 56.1 at ¶ 23.) Sergeant Vukic, Officer

Craven and Officer Chatha also testified to hearing a woman from inside

plaintiff’s house yelling “Help. Help.” (Scheiner Decl., Ex. H, at 59:24-

60:25, 64:16-20, 59:24-60:25; Ex. G, at 51:14-18, 134:24-135:6.) Plaintiff

disputes these allegations and because the court must view the facts in favor

of the nonmoving party, the court does not consider these facts in assessing

the reasonableness of Officer Allende’s actions.

the collective knowledge doctrine and the fellow officer rule,

Officer Allende was entitled to reasonably rely on information

from his fellow officers in determining that probable cause

existed to arrest plaintiff for an ongoing domestic assault.

See Brown v. City of New York, 798 F.3d 94, 99 (2d Cir. 2015).

Accordingly, based on the undisputed facts, the Officers had

probable cause to arrest plaintiff for his alleged involvement

in a serious domestic assault. Plaintiff’s contention that he

was not engaged in an ongoing assault and was not ultimately

charged with domestic assault is of no consequence to the

probable cause determination. (Pl. Mem. at 10); see Krause v.

Bennett, 887 F.2d 362, 371 (2d Cir. 1989) (“[P]robable cause

does not require an officer to be certain that subsequent

prosecution of the arrestee will be successful.”). Thus, the

Officers’ understanding of the violent nature and severity of

the crime leading to plaintiff’s arrest weigh in favor of

Officer Allende’s use of the force.

Second, the court considers “whether the suspect poses

an immediate threat to the safety of the officers or others.”

Graham, 490 U.S. at 396. “Courts assessing the threat to

officer safety look both to the officers’ statements about their

perception of a threat and objective factors that would justify

such a fear.” Bryant, 2017 WL 1217090, at *8. Here, the

undisputed facts confirm that a reasonable officer could have

viewed plaintiff as a threat to the Officers’ safety. As noted

above, the undisputed facts confirm that before and upon their

arrival, the Officers were informed that plaintiff was

physically assaulting his wife and had forcefully removed his

wife from Ms. Cosares’s home. (Def. 56.1 ¶¶ 33-34.) Upon

arrival, after assessing the situation and observing plaintiff’s

refusal to comply with the Officers’ directions to descend the

stairs, Sergeant Vukic reasonably viewed the scene as

sufficiently volatile and dangerous that he radioed for

assistance from the ESU Officers. (Def. 56.1 ¶¶ 25-31.) The

undisputed facts also confirm that plaintiff, perceived by the

Officers as being of large and muscular physical stature and

agitated, continued to refuse to comply with the Officers’

request that he come downstairs from the narrow stairway where

he sat above the Officers. Furthermore, although plaintiff had

lowered his pants to show officers that he was unarmed (Pl. 56.1

¶ 41), the undisputed facts show that plaintiff was not

restrained and had access to the upstairs, thus potentially

permitting him access to unknown weapons or other items

upstairs. Based on this record, a reasonable officer could have

viewed the plaintiff’s continued refusals to come downstairs,

despite several directives from officers, coupled with the

reported violent crime and plaintiff’s unrestrained position on

the stairwell, as an immediate threat to the Officers’ safety.

Therefore, a reasonable officer could conclude that plaintiff,

who refused to comply with the Officers’ directions after

reportedly assaulting his wife, was reasonably perceived as an

individual who had engaged in violence and posed a danger not

only to himself, but to the Officers and others in the house.

In short, the undisputed record evidence makes clear, and no

reasonable juror could conclude otherwise, that at the time

Officer Allende deployed the first taser, he had reason to

believe that plaintiff posed an immediate threat to the Officers

and others.7 Moreover, plaintiff testified that after the first

taser was deployed, he stood up and a second taser was

subsequently discharged. (Scheiner Decl. Ex. B., at 54:14-17.)

Accordingly, the undisputed record evidence similarly weighs in

favor of Officer Allende’s use of force to subdue plaintiff with

a taser.

Third, the court turns to the final Graham factor,

under which it must determine whether plaintiff’s conduct

amounted to “actively resisting arrest” and thus establishes

7 “Courts recognize that domestic disputes not only place the physical

safety of victims at risk, but also often threaten the physical safety of

responding officers.” Bettis v. Bean, No. 14-cv-113, 2015 WL 5725625, at *10

(D. Vt. Sept. 29, 2015) (citing Mattos v. Agarano, 661 F.3d 433, 450 (9th

Cir. 2011) (“‘The volatility of situations involving domestic violence’ makes

them particularly dangerous.” (internal alteration omitted) (quoting United

States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005))). Accordingly,

“[w]hen officers respond to a domestic abuse call, they understand that

violence may be lurking and explode with little warning. Indeed, more

officers are killed or injured on domestic violence calls than on any other

type of call.” Mattos, 661 F.3d at 450 (quoting Martinez, 406 F.3d at 1164).

that Officer Allende’s first use of the taser was reasonable.

See Tracy, 623 F.3d at 96. Here, the undisputed facts show that

plaintiff was continually and actively non-compliant with the

Officers’ repeated requests that he come downstairs from where

he sat six or seven steps above the Officers. Although

plaintiff states that he was asking the Officers why he was

under arrest (Scheiner Decl., Ex. B, at 54:8-14), it is

undisputed that he refused to comply with the Officers’

directives to descend the stairs and that the Officers had

reasonable grounds to believe that the plaintiff committed a

violent crime based on the 911 dispatcher report and the

neighbor’s eyewitness statement. Although neither the Supreme

Court nor the Second Circuit has specifically defined “active

resistance,” the Second Circuit has upheld uses of force

involving tasers where the suspect was actively non-compliant

with the Officers’ directions. See, e.g., MacLeod v. Town of

Brattleboro, 548 F. App'x 6, 8 (2d Cir. 2013) (summary order)

(concluding that the use of a taser “to subdue an actively non-

compliant suspect . . . who posed a real and imminent threat to

the safety of the officers and any bystanders” was objectively

reasonable where the officers gave “repeated, clear commands

that [the plaintiff] return to the ground”); Crowell v.

Kirkpatrick, 400 F. App'x 592, 595 (2d Cir. 2010) (summary

order) (concluding that the use of a taser was reasonable where

protestors “were actively resisting their arrest” when they

chained themselves to a barrel drum). Indeed, plaintiff

testified that he told officers to “get out of this house” and

that he chose to sit down in the middle of the narrow stairway,

rather than come downstairs and sit on the couch as directed by

the Officers. (Scheiner Decl., Ex. B, at 54:1-4.) He also

acknowledges that he heard the Officers say that he was under

arrest, although he also denies he was told he was under arrest.

(Green-Stark Decl., Ex. 3, John Scoma Tr. at 64:5-21, 87:4-11.)

Plaintiff argues that his non-compliance with

Officers’ directives amounted to, “at most[,] arguably passive

resistance” not justifying the use of a taser. (Pl. Mem. at

13.) Plaintiff’s contentions are unpersuasive, however, because

unlike the cases cited by plaintiff where a suspect was already

restrained at the moment of the use of force, see Garcia v.

Dutchess Cty., 43 F. Supp. 3d 281, 293 (S.D.N.Y. 2014) (denying

summary judgment to the defendants where, by the time the taser

was used, the plaintiff had been taken to the floor and was

being restrained by multiple officers), or detained for a non-

serious, non-violent offense, see Savatxath v. Demer, No. 15-cv-

82, 2018 WL 8755515, at *16 (N.D.N.Y. Mar. 31, 2018) (denying

summary judgment to defendant where force was used on suspect

stopped for “an obstructed rear view mirror” on suspicion “that

he possessed drugs”), here, the undisputed facts establish that

plaintiff was unrestrained, uncooperative, and reportedly had

engaged in a violent domestic assault. See Towsley, 2010 WL

5394837, at *8 (concluding that officer’s use of a taser was

reasonable where confronted with a suspect with a history of

violence who was uncooperative and unrestrained). The

undisputed facts establish that the taser was deployed following

plaintiff’s active resistance to the Officers’ directions and

his arrest. Accordingly, the totality of the circumstances

supports the finding that Officer Allende’s conduct and use of

force was objectively reasonable.

Finally, the court concludes that the remaining

undisputed facts under the circumstances support Officer

Allende’s use of the taser to effectuate plaintiff’s arrest.

Plaintiff argues that because the Officers failed to issue a

warning prior to discharging the taser and fired upon plaintiff

when he was in an “elevated position,” such action was

excessive. (Pl. Mem. at 13-15.) Although the court notes that

some district courts in this Circuit have weighed the failure of

providing a warning and the defendant’s stance in an elevated

position as factors supporting a finding of excessive force, see

Negron v. City of New York, 976 F. Supp. 2d 360, 367 (E.D.N.Y.

2013) (weighing the failure to warn before tasing and

defendant’s placement in precarious position in favor of a

finding of excessive force); Whitfield, 2015 WL 9275695, at *16

(S.D.N.Y. Dec. 17, 2015) (weighing a failure to warn in favor of

excessive force (citing out-of-circuit cases)), the court notes

that the reasonableness inquiry under the Fourth Amendment

considers the totality of the circumstances and not a single

factor is dispositive. See Amnesty America, 361 F.3d at 123

(explaining that whether use of force is reasonable depends on

“the totality of the circumstances faced by the arresting

officer”). The Second Circuit has instructed that the three

Graham factors are “relevant to the required balancing of

governmental interest against the intrusion upon the

individual's interests,” but there “are no numerical weights to

be assigned, and the weighing metaphor has been criticized for

creating the illusion of precision.” Brown, 798 F.3d at 102.

Instead, “[a]ll that can realistically be expected is to make

some assessment as to the extent to which each relevant factor

is present and then somehow make an aggregate assessment of all

the factors.” Id. Thus, although the court acknowledges that

some factual disputes may exist with respect to the statements

exchanged between plaintiff and the Officers, the material,

undisputed facts show that the Officers were investigating an

alleged violent crime and were confronted with an uncooperative

and unrestrained suspect, resulting in the use of force. In

other words, the court concludes that an “aggregate assessment”

of the Graham factors and other relevant circumstances, shows

that no reasonable jury could conclude that Officer Allende’s

use of a taser was objectively unreasonable and therefore

excessive force.

B. Second Taser Deployment

Plaintiff also argues that the second deployment of

the taser was excessive force. (SAC ¶¶ 16, 48-51.) Officer

Allende testified that he believed that he pressed the taser

trigger only once for approximately five seconds. (Scheiner

Decl., Ex. I, at 84:10-21.) Even if Officer Allende fired the

taser twice, plaintiff’s excessive force claim cannot survive

because by plaintiff’s own account, he was not incapacitated

after the first taser. According to plaintiff, after Officer

Allende deployed the first taser, plaintiff “stood up” and said,

“What did you shoot me you [sic] with the taser for?” (Scheiner

Decl., Ex. B, 54:15-18, 55:5-6.) After plaintiff stood up,

Officer Allende fired a second charge before Officers subdued

plaintiff and arrested him. (Id. at 54:16-20.) Thus, according

to plaintiff’s own testimony, he was not incapacitated by the

first taser, stood up and had resisted the Officers’ directions

to come downstairs when the second taser was deployed. See

Treubig, 963 F.3d at 229 (second tasing may be excessive where

suspect was “subdued face down, arms spread” at the time of the

second tasing); Greenfield v. Tomaine, No. 09-cv-8102 (CS)(PED),

2011 WL 2714221, at *5 (S.D.N.Y. May 10, 2011) (second tasing

excessive where suspect was “shaking” from the first taser and

was “lying on the ground” at the time of the second tasing),

report and recommendation adopted, No. 09-cv-8102 (CS)(PED),

2011 WL 2714219 (S.D.N.Y. July 12, 2011).

When balancing the government interests at stake

against those of the individual as Graham requires,

reasonableness must be judged from the perspective of a

reasonable officer on the scene, and detached hindsight cannot

be used to correct judgments made in “circumstances that are

tense, uncertain, and rapidly evolving.” Graham, 490 U.S. at

396. In this case, viewing the totality of the circumstances,

Officer Allende confronted an individual suspected of a violent

crime who was uncooperative, unrestrained, and not incapacitated

by the first deployment of the taser. Accordingly, Officer

Allende’s second use of the taser after plaintiff stood up and

continued to resist arrest was not objectively unreasonable.

C. Use of Force While Attempting to Handcuff Plaintiff or

After Plaintiff was Handcuffed

Plaintiff contends that defendants used unlawful force

immediately after he was handcuffed. Specifically, plaintiff

testified that after he was tased and while he was on the ground

and immediately after being handcuffed, an unidentified officer

put his knee into plaintiff’s back and grabbed his left arm,

which “snapped.” (Scheiner Decl., Ex. B, at 65:3-6, 69:2-10.)

Although “[o]fficers may use reasonable force to

effect an arrest” Stratakos v. Nassau Cty., No. 15-cv-7244

(ADS)(ARL), 2019 WL 6699817, at *5 (E.D.N.Y. Dec. 9, 2019),

“[t]he force used by the officer must be reasonably related to

the nature of the resistance and the force used, threatened, or

reasonably perceived to be threatened, against the officer.”

Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). Courts

in this Circuit have concluded that “even a minor use of force”

is unreasonable when a suspect has already been restrained or

handcuffed. See, e.g., Adedeji v. Holder, 935 F. Supp. 2d 557,

568-69 (E.D.N.Y. 2013) (same) (collecting cases).

Courts in this Circuit have precluded summary

judgment, where, as here, a plaintiff alleges that he was

subject to unnecessary force such as “yanking” an arm after he

or she was restrained in handcuffs. See Maxwell v. City of New

York, 380 F.3d 106, 108 (2d Cir. 2004) (“[W]e have permitted a

plaintiff’s claim to survive summary judgment on allegations

that, during the course of an arrest, a police officer twisted

her arm, ‘yanked’ her, and threw her up against a car, causing

only bruising”); McClendon v. Cty. of Nassau, No. 11–cv–0190,

2012 WL 4849144, at *9 (E.D.N.Y. Oct. 11, 2012) (“Unnecessary

blows inflicted while an arrestee is in handcuffs may be

sufficient to sustain an excessive force claim.”).

Here, plaintiff testified that after he was tased

twice, while he was on the ground and immediately after being

handcuffed, an unidentified officer put his knee into

plaintiff’s back and grabbed his left arm, which “snapped.”

(Scheiner Decl., Ex. B, at 65:3-6, 69:2-10.) Medical records

submitted with the parties’ motion papers bear out the

allegation of injury. (See Def. 56.1 ¶ 53; Scheiner Decl., Ex.

K, at NYC 165, 169 (reporting elbow pain and fractures).)

Viewing the evidence in the light most favorable to

the plaintiff, the court finds that a genuine issue of material

fact remains surrounding the Officers’ actions and whether

plaintiff sustained the injury after he was tased and brought

down the stairs to the floor while Officers attempted to

handcuff him, or after the Officers succeeded in applying the

handcuffs. A reasonable jury could conclude that Officers used

excessive force when, after tasing the plaintiff twice and

restraining him with handcuffs, they allegedly yanked his arm

back resulting in the elbow injury.8 Alternatively, a jury could

8 (Compare Green-Stark Decl., Ex. 17, Gregory Mannino Tr. at 33:24-34:18

(“Next thing I remember is when [plaintiff] was on the ground multiple

officers still had to struggle to handcuff him, he was still putting up a

fight . . . From what I can recall I just remember when he was on the ground

he was moving around, he wasn't being just compliant in putting his hands

freely behind his back.”), with Green-Stark Decl., Ex. 3, John Scoma Tr. at

65:2-6 (“[T]hen [the officer] grabbed my arm and they took me down the stairs

and I just went down. And they all piled on me. So now once they handcuffed

me, then what he did was, you know, he probably put his knee in the back me

and he just snapped my arm.”).)

conclude that the injuries resulted after plaintiff was tased

and Officers grabbed his arm and brought him down the stairs and

continued his physical struggle while Officers attempted to

place him in handcuffs.9 Plaintiff has the burden to prove that

his elbow was injured by the Officers’ use of excessive force.

If a jury credits plaintiff’s account of the events, they may

conclude that the Officers’ conduct after plaintiff was in

handcuffs was excessive force. On the other hand, if the jury

credits the Officers’ account, that plaintiff was brought down

the stairs after being tasered and continued to struggle and

resist as the Officers attempted to place plaintiff in

handcuffs, then the Officers’ actions may be objectively

reasonable, even if plaintiff’s elbow was injured during the

Officers’ attempt to restrain him. For these reasons, the court

denies defendants’ motion for summary judgment on the issue of

excessive force with respect to the Officers’ use of force

either in an attempt to handcuff plaintiff or after plaintiff

was handcuffed.

9 In addition, there is some evidence in the record suggesting that

plaintiff had two ulna nerve transposition surgeries prior to September 19,

2015. (Def. 56.1 ¶¶ 58-60.) In response, plaintiff argues that the prior

surgeries are “immaterial to the acute traumatic injuries inflicted to

plaintiff’s left arm by defendants.” (Pl. Response ¶¶ 60.) As noted above,

a jury may conclude that plaintiff sustained an elbow injury while resisting

arrest, but also could conclude that the Officers used excessive force in

inflicting this injury after he was handcuffed. Thus, a factual issue

remains regarding when and how plaintiff sustained an injury to his elbow as

confirmed by the medical records. (Pl. 56.1 ¶ 86.)

D. Failure to Intervene

The Second Circuit has recognized that “all law

enforcement officials have an affirmative duty to intervene to

protect the constitutional rights of citizens from infringement

by other law enforcement officers in their presence.” Anderson

v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citations omitted).

Liability for failure to intercede will attach where the officer

in question observes or has reason to know of the underlying

wrongful conduct and had a “realistic opportunity to intervene

to prevent the harm from occurring” but failed to do so. Id.

According to plaintiff, the Officers violently and

roughly piled on plaintiff, placed their knees in plaintiff’s

back, and forcefully snapped plaintiff’s arm while he was

handcuffed, which fractured his elbow. (Pl. 56.1 ¶ 74.) Thus,

plaintiff asserts that defendants failed to intervene and

prevent the alleged constitutional violations. (Pl. Mem. at

20.) Defendants contend that plaintiff’s failure to intervene

claim must be dismissed because the Officers had no “realistic

opportunity” to intervene due to the quick succession of events

and because plaintiff failed to identify the officer who

allegedly kneeled on his back and snapped his arm. (Def. Mem.

at 19-21.)

The undisputed facts of this case establish that

Officers had no “realistic opportunity to intervene,” where the

alleged use of force occurred in rapid succession. As noted

above, plaintiff testified that his arm was “snapped” within

moments after he was handcuffed and that Officers brought him to

the floor, handcuffed him, and escorted him outside the house

within seconds. (Def. 56.1 ¶ 50; Pl. 56.1 Response ¶ 50.)

Indeed, plaintiff described the event as a “bang-bang play,”

where the Officers threw him down on the floor, handcuffed him,

and snapped his arm back in quick succession. (Scheiner Decl.,

Ex. B, John Scoma Tr. at 54:18-22 (“And when I was down, once

they handcuffed me, then they snapped my arm. And it was just

that fast. It was like a bang-bang play.”) (emphasis added));

see Johnson v. City of New York, No. 05-cv-7519, 2008 WL

4450270, at *6 (S.D.N.Y. Sept. 29, 2008) (“Here, there is no

evidence from which a reasonable jury could conclude that the

other officers had sufficient time to prevent the alleged use of

force which, by plaintiff's own account, lasted only for ‘a

couple of seconds.’” (citation omitted)); O'Neill v. Krzeminski,

839 F.2d 9, 11 (2d Cir.1988) (finding no realistic opportunity

to intercede in use of excessive force by officer where punches

occurred in rapid succession); Figueroa v. Mazza, No. 11-cv-

3160, 2014 WL 4853408, at *8 (E.D.N.Y. Sept. 30, 2014) (finding

that the blows occurred in such rapid succession that defendants

did not have a realistic opportunity to intervene). Thus,

because the Officers had no “realistic opportunity to

intervene,” the Court grants defendants summary judgment on

plaintiff’s failure to intervene claim.

II. Qualified Immunity

In addition to arguing that the plaintiff’s claims

fail on the merits, defendants also contend that the Officers

are, in any case, entitled to qualified immunity. (Def. Mem.

16-19.) Qualified immunity protects government officials from

civil damages liability “insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Pursuant to the two-step

framework set forth by the Supreme Court in Saucier v. Katz, 533

U.S. 194 (2001), when an official raises qualified immunity as a

defense, the court must consider whether: “(1) . . . the

official violated a statutory or constitutional right, and (2) .

. . the right was ‘clearly established’ at the time of the

challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d

Cir. 2016). “As it relates to the second step, the focus is

‘whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’” Treubig,

963 F.3d at 224 (quoting Saucier, 533 U.S. at 202). In deciding

whether a right is clearly established, “[o]nly Supreme Court

and Second Circuit precedent existing at the time of the alleged

violation is relevant.” Moore v. Vega, 371 F.3d 110, 114 (2d

Cir. 2004) (citing Townes v. City of New York, 176 F.3d 138, 144

(2d Cir. 1999)). Additionally, in determining objective

reasonableness, “the relevant question is whether a reasonable

offic[ial] could have believed the [challenged conduct] to be

lawful, in light of clearly established law and the information

the . . . offic[ial] possessed.” Id. at 115 (quoting Anderson

v. Creighton, 483 U.S. 635, 641 (1987)).

In the summary judgment phase of a proceeding,

dismissal will be granted on the basis of qualified immunity

only if “no reasonable jury, looking at the evidence in the

light most favorable to, and drawing all inferences most

favorable to, the plaintiff, could conclude that it was

objectively reasonable for the defendant to believe that he was

acting in a fashion that did not clearly violate an established

federally protected right.” Lennon v. Miller, 66 F.3d 416, 420

(2d Cir. 1995) (quoting Robison v. Via, 821 F.2d 913, 921 (2d

Cir. 1987)).

Here, plaintiff argues that the Officers are not

entitled to qualified immunity because as of the date of the

incident, it was clearly established law that it was

unreasonable to deploy a taser “at a misdemeanant who was

neither fleeing, actively resisting, nor presenting a threat to

the police or others.” (Pl. Mem. 15-16.) In response, the

defendants assert that the Officers are entitled to qualified

immunity because the actions, even viewed in the light most

favorable to plaintiff, did not violate “clearly established”

law. The operative question thus becomes whether it was clearly

impermissible on September 19, 2015, under the circumstances

presented, for a police officer to use the force that a jury

could find Officer Allende used, to twice deploy a taser on a

non-compliant and unrestrained suspect suspected of committing a

violent crime.

The Second Circuit recently explained that following

its decision in Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010),

“it was clearly established that an officer’s significant use of

force against an arrestee who was no longer resisting and who

posed no threat to the safety of officers or others -- whether

such force was by pepper spray, taser, or any other similar use

of significant force -- violates the Fourth Amendment.”

Treubig, 963 F.3d at 226. Since Tracy, the Circuit has

explained that “officers may not use a taser against a compliant

or non-threatening suspect.” Muschette on Behalf of A.M. v.

Gionfriddo, 910 F.3d 65, 69-70 (2d Cir. 2018) (citing Tracy, 623

F.3d at 96-98); see also Soto v. Gaudett, 862 F.3d 148, 158 (2d

Cir. 2017) (“Though the use of force may be reasonable against a

suspect who is fleeing, it may be objectively unreasonable

against that suspect when he has been stopped and no longer

poses a risk of flight.” (citing Tracy, 623 F.3d at 96-98)); see

also Garcia, 43 F. Supp. 3d at 297 (concluding that it is

clearly established in the Second Circuit that “it [is] a Fourth

Amendment violation to use ‘significant’ force against arrestees

who no longer actively resisted arrest or posed a threat to

officer safety”).

The plaintiff has pointed to no authority, and this

Court has not located any, that holds that as of September 19,

2015, it was constitutionally impermissible to use a taser on an

unrestrained individual actively resisting arrest for domestic

violence, where the officers reasonably believed that such

individual was dangerous. To the contrary, courts have granted

qualified immunity to officers when they used pepper spray

against an arrestee who was actively resisting arrest or posed a

threat to officers. See, e.g., Brown v. City of New York, 862

F.3d 182, 189–92 (2d Cir. 2017) (qualified immunity granted when

arrestee refused to comply with instructions to place her hands

behind her back for handcuffing and officers warned her prior to

each application of pepper spray); McKnight v. Vasile, No. 11-

cv-6328P, 2017 WL 1176051, at *28 (W.D.N.Y. Mar. 30, 2017)

(“[W]here an individual is actively resisting arrest and

refusing orders, and the scene presents a risk to officer safety

-- courts have granted judgment to the officers on the grounds

that the use of pepper spray was not excessive or that the

officers were entitled to qualified immunity.” (collecting

cases)). The use of a pepper spray, like a taser, constitutes

“significant force” and similarly violates the Fourth Amendment

if used on an “an arrestee who was no longer resisting and who

posed no threat to the safety of officers or others.” Treubig,

963 F.3d at 226. An officer is entitled to qualified immunity

if “any reasonable officer, out of the wide range of reasonable

people who enforce the laws in this country, could have

determined that the challenged action was lawful.” Figueroa v.

Mazza, 825 F.3d 89, 100 (2d Cir. 2016).

Applying these standards, the court concludes that the

Officers are entitled to qualified immunity because although

clearly established law prohibits an officer from tasing an

arrestee who is “compliant or a non-threatening suspect,”

Muschette, 910 F.3d at 69-70, here, the undisputed facts show

that plaintiff was unrestrained, non-compliant, and reasonably

perceived as threatening to a reasonable officer on the scene,

as discussed above. Accordingly, this court cannot conclude

that every reasonable police officer would view the taser used

by Officer Allende, in the circumstances in which that force was

applied, as excessive according to clearly established law.

Because Officer Allende did not violate a clearly established

right, he is entitled to qualified immunity on plaintiff's

excessive force claim with respect to the taser.

As previously discussed, however, there are genuine

issues of material fact regarding the reasonableness of the

Officers’ conduct while attempting to handcuff plaintiff or

after plaintiff was handcuffed. There also remains a genuine

issue of material fact as to whether plaintiff was injured

during or after the handcuffs were applied. Because these

“disputes overlap both the excessive force and qualified

immunity issues, summary judgment must be denied.” Cowan ex

rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 (2d Cir. 2003)

(denying summary judgment on a qualified immunity claim after

determining in the excessive force analysis that there were

genuine issues of material fact regarding the reasonableness of

the officers’ conduct); see also Bennett v. Falcone, 2009 WL

816830, at *6 (S.D.N.Y. Mar. 25, 2009) (“For the same reasons

Plaintiff's excessive force claim survives summary judgment, the

Court holds Defendants’ qualified immunity claim

insufficient.”). If the jury finds that plaintiff’s elbow was

injured while Officers attempted to restrain and apply

handcuffs, defendants may renew their qualified immunity

defense.

III. Plaintiff’s Municipal Liability Claim

Defendants are entitled to summary judgment on

plaintiff’s municipal liability claim. 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.” Lucente v. Cty. of Suffolk, 980 F.3d

284, 297 (2d Cir. 2020) (quoting Wray v. City of New York, 490

F.3d 189, 195 (2d Cir. 2007)). Plaintiff “agrees to withdraw,

or to the Court otherwise dismissing, plaintiff’s federal

municipal liability claim.” (Pl. Mem. at 1 n.1.) Accordingly,

the Court grants summary judgment in favor of defendants on

plaintiff’s municipal liability claim and dismisses the claim

with prejudice.

IV. Plaintiff’s State-law Claims

Plaintiff also brings a number of state law claims

including civil assault and battery and a violation of the New

York Constitution.

A. Assault and Battery

Defendants assert that they are entitled to summary

judgment on plaintiff’s state law assault and battery claims for

the same reasons that plaintiff’s excessive force claims fail.

Federal excessive force claims and state law assault and battery

claims against police officers are nearly identical. See

Humphrey v. Landers, 344 Fed. App’x 686, 688 (2d Cir. 2009)

(summary order) (“[E]xcept for § 1983's requirement that the

tort be committed under color of state law, the essential

elements of [excessive force and state law assault and battery

claims are] substantially identical.” (alteration in original)

(quoting Posr v. Doherty, 944 F.2d 91, 94–95 (2d Cir. 1991))).

For the same reasons that defendants are entitled to summary

judgment on plaintiff’s excessive force claim with respect to

the use of a taser, defendants are also entitled to summary

judgment on plaintiff’s assault and battery claim related to the

taser.

Because there are genuine issues of material fact that

preclude summary judgment on the excessive force claim with

respect to the Officers’ conduct either while attempting to

apply handcuffs or after plaintiff was handcuffed, however, the

defendants’ motion for summary judgment on the assault and

battery claim with respect to these actions is denied. See

Dasrath v. City of New York, No. 15-cv-766 (AMD)(RLM), 2018 WL

10501877, at *8 (E.D.N.Y. Sept. 25, 2018) (denying summary

judgment to excessive force and state law claims); Bah v. City

of New York, No. 13-cv-6690 (PKC), 2017 WL 435823, at *4

(S.D.N.Y. Jan. 31, 2017) (same).

B. Violation of the New York Constitution

Plaintiff’s complaint asserts in his Eighteenth Cause

of Action that all Defendants violated his rights under Article

I, Section 12 of the New York State Constitution. (SAC ¶¶ 127-

29.) Defendants seek summary judgment with respect to this

claim because it is duplicative of federal claims already

asserted by plaintiff in this action. (Def. Mem. 25-26.)

As defendants correctly point out, there is no private

right of action under the New York State Constitution where a

plaintiff has an alternative remedy under other federal and

state laws. See Vilkhu v. City of New York, No. 06-cv-2095

(CPS)(JO), 2008 WL 1991099, at *8 (E.D.N.Y. May 5, 2008). Here,

plaintiff has a viable claim for excessive force under Section

1983, rendering his claim for violation of Article I, Section 12

of the New York State Constitution –- which applies to

unreasonable searches and seizures –- baseless because “any

violation of plaintiff’s right to be free from unreasonable

searches or seizures can be vindicated through [his] viable

Fourth Amendment claim.” Vilkhu, 2008 WL 1991099, at *8 (citing

Coakley v. Jaffe, 49 F.Supp.2d 615, 628-29 (S.D.N.Y. 1999)).

Accordingly, this Court finds that plaintiff’s claim for a

violation of the New York State Constitution fails as a matter

of law and grants defendants’ motion for summary judgment to

this claim.

CONCLUSION

For the foregoing reasons, defendants’ motion for

summary judgment is GRANTED in part and DENIED in part as

follows:

(1) Defendants’ motion is GRANTED with respect to

plaintiff’s claims for excessive force as to Officer

Allende’s use of the taser under section 1983, and is

DENIED with respect to plaintiff’s claim for excessive

force as to the Officer’ actions during attempts to

handcuff plaintiff or after plaintiff was handcuffed;

and

(2) Defendants’ motion is GRANTED as to plaintiff’s

municipal liability claim; and

(3) Defendants’ motion is GRANTED with respect to

plaintiff’s state claim for assault and battery as to

Officer Allende’s use of the taser under section 1983,

and is DENIED with respect to plaintiff’s state claim

for assault and battery as to the Officers’ actions

while applying handcuffs or after plaintiff was

handcuffed; and

(4) Defendants’ motion is GRANTED as to plaintiff’s claim

under Section 12 of the New York Constitution.

The parties are respectfully directed to submit a

joint letter no later than February 12, 2021, advising the court

as to how they intend to proceed. The court encourages that

parties to engage in good faith settlement discussions.

SO ORDERED.

Dated: Brooklyn, New York

January 22, 2021

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York