Gardner v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANICE GARDNER, AARON GARDNER,

KENSHAWN FELTON, L.J., an infant under

the age of 18, by her mother and natural

guardian, Pamela Simpson,

Plaintiffs, OPINION & ORDER

- against - 16-CV-06476 (NG)(ST)

CITY OF NEW YORK, POLICE OFFICER

JARED DELANEY, POLICE OFFICER

MICHAEL YORK, POLICE OFFICER

JULIO RAMOS, POLICE OFFICER JOHN

AND JANE DOE 1–20, SERGEANT EMILE

PRATT, POLICE OFFICER NICHOLAS

SIERRA, SERGEANT BRIAN BEEGAN,

SERGEANT JESSICA GAVARS, POLICE

OFFICER MALOSHAQ “GALE,” POLICE

OFFICER MAXIM MALOSHAG,

Defendants.

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GERSHON, United States District Judge:

Plaintiff Aaron Gardner brings this action pursuant to 42 U.S.C. § 1983 alleging that

defendants—Police Officers Jared Delaney, Julio Ramos, and Maxim Maloshag of the New York

City Police Department—violated his civil rights when they arrested and prosecuted him. Plaintiff

brings claims for false arrest, malicious prosecution, malicious abuse of process, denial of the right

to a fair trial, excessive force, and failure to intervene against the individual defendants.1

Defendants have moved for summary judgment on each claim.

1 As the case has proceeded, plaintiff Janice Gardner settled her claims, and plaintiffs Kenshawn

Felton and L.J. (an infant under the age of 18, by her mother and guardian Pamela Simpson) were

dismissed from the suit for failure to prosecute. The § 1983 claims against the City of New York

and all claims against Police Officers John and Jane Doe 1–20, Police Officer Michael York, Police

Officer Nicholas Sierra, Sergeant Emile Pratt, Sergeant Brian Beegan, Sergeant Jessica Gavars,

I. Factual Background

Plaintiff’s claims arise from the circumstances surrounding his arrest on August 23, 2015

in Von King Park in Brooklyn. Plaintiff attended a family barbeque that day, along with his sister,

Janice Gardner (“Janice”), and cousin, Kenshawn Felton (“Kenshawn”). Although the parties

agree on some facts, they dispute the fundamental facts surrounding plaintiff’s arrest.

In brief summary, plaintiff’s version of events is that he began walking with Janice after

she was sexually harassed in the park. Upon noticing police officers arresting Kenshawn, plaintiff

saw Janice approach the officers. Janice testified that she approached them to explain that

Kenshawn was not her assailant, but an officer directed Janice to get away from the area. Plaintiff

then put his arm around Janice to walk to a different area. As they walked away, plaintiff was

pushed in his lower back by the officers, and, after he realized that they were police, plaintiff stood

still and attempted to speak with them. The officers held his arms, punched him, and knocked him

to the ground. Thereafter, he was arrested and taken into custody.

Defendants’ version is that they responded to NYPD calls for assistance near Von King

Park and observed “chaos,” York Dep. at 49:19, including men with stab wounds and a man

swinging a piece of wood over his head. After receiving a report from a complaining victim that

Kenshawn had hit him in the head with a cane, the officers arrested Kenshawn. Janice ran up to

the officers placing Kenshawn under arrest, engaged physically with them, and punched Officer

Delaney twice in the head. As the officers attempted to place Janice under arrest, plaintiff

approached the officers and by means of physical force attempted to interfere with Janice’s arrest.

and Police Officer Maloshaq “Gale” were voluntarily dismissed. At the October 17, 2019 pre-

motion conference, plaintiff withdrew claims for conspiracy, defamation, respondeat superior

liability against the City of New York, and state law claims for malicious prosecution and false

arrest. Later, with permission from the court, plaintiff substituted a federal excessive force claim

for his assault and battery claim.

Plaintiff was arraigned on charges of attempted assault, obstructing governmental

administration (“OGA”), resisting arrest, and harassment. Before the trial, the State dropped the

OGA and resisting arrest charges. Plaintiff was acquitted of the remaining counts (harassment and

attempted assault) at a bench trial before Judge Dineen Riviezzo of the Kings County Supreme

Court.

II. Standard of Review

A party is entitled to summary judgment if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of demonstrating

“the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. Once the moving

party has asserted facts showing that the non-movant’s claims cannot be sustained, the non-moving

party may not “rely on mere speculation or conjecture as to the true nature of the facts,” Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks omitted), or “rest upon the

mere allegations or denials” asserted in the pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256 (1986). Instead, “the nonmoving party must come forward with specific facts showing

that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). “The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

III. False Arrest

In analyzing a § 1983 false arrest claim, federal courts look to the law of the state in which

the arrest occurred. See Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.2013) (“A §

1983 claim for false arrest is substantially the same as a claim for false arrest under New York

law.”). To prevail on a § 1983 claim for false arrest, a plaintiff must show, inter alia, that

defendants confined him without consent or justification. Jocks v. Tavernier, 316 F.3d 128, 134–

35 (2d Cir. 2003).

The issue here is whether the arrest was privileged based on the existence of probable cause

for plaintiff’s arrest. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).2 The parties dispute

the factual circumstances surrounding plaintiff’s arrest. Although defendants recognize the factual

dispute with respect to the charges that were presented during trial, they nonetheless argue that, as

a matter of law, probable cause is established because Judge Riviezzo stated in dicta that plaintiff

would have been found guilty of OGA had that charge not been dropped before trial.3 Confusingly,

defendants argue claim preclusion in their initial memorandum and issue preclusion in their reply

memorandum.4 Neither doctrine applies here.

First, a claim is barred under the doctrine of claim preclusion where: “(1) the previous

action involved an adjudication on the merits; (2) the previous action involved the [same parties]

or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could

have been, raised in the prior action.” Monahan v. N.Y.C. Dep’t of Corrs., 214 F.3d 275, 285 (2d

2 Plaintiff also asserts that defendants lacked probable cause to arrest Janice. Because Janice pled

guilty to disorderly conduct following her arrest, however, her conviction is “conclusive evidence”

of probable cause. See, e.g., Timmins v. Toto, 91 F. App’x. 165, 166 (2d Cir. 2004). The existence

of probable cause for Janice’s arrest is not fatal to plaintiff’s claim, however, because plaintiff also

denies engaging in any behavior that would constitute interference with her arrest.

3 Judge Riviezzo found it “not credible” that Janice and plaintiff would have walked away while

Kenshawn was being arrested; stated that “it was proven beyond a reasonable doubt that Janice

Gardner attempted to interfere with her cousin’s arrest [and] Mr. Gardner unlawfully and

wrongfully interfered with his sister’s arrest”; and observed that “the People clearly would have

proved beyond a reasonable doubt” that plaintiff was guilty of OGA in the Second Degree.

4 Compare Def. Mem. at 8 (“[T]he doctrine of claim preclusion bars Plaintiff from claiming that

he did not interfere with his sister’s arrest[.]”) with Def. Reply at 3 (“Defendants are not arguing

claim preclusion, and plaintiff has provided no argument for why issue preclusion does not

apply.”). Defendants raised both affirmative defenses in their answer.

Cir. 2000). Here, however, the issue of probable cause on the OGA charge was not adjudicated

on the merits. That charge was dropped before the trial, and plaintiff defended himself only on

charges of attempted assault and harassment, which were decided in his favor. In addition,

defendants were not in privity with the State during the criminal proceeding. See Jenkins v. City

of New York, 478 F.3d 76, 85 (2d Cir. 2007).

Second, issue preclusion, or collateral estoppel, requires that: (1) “the identical issue

necessarily must have been decided in the prior action and be decisive of the present action,” and

(2) “the party to be precluded from relitigating the issue must have had a full and fair opportunity

to contest the prior determination.” Jenkins, 478 F.3d at 85 (quotation omitted). However, the

only issues necessarily decided at trial—whether plaintiff was guilty of attempted assault and

harassment—were resolved in his favor. And, even had OGA been addressed, plaintiff would not

have been given a “full and fair opportunity” to litigate it because the charge was dropped before

trial. Moreover, even if the state court had stated that probable cause existed to arrest plaintiff, he

could not have appealed that dicta because he was acquitted on all charges. See Johnson v.

Watkins, 101 F.3d 792, 793 (2d Cir. 1996).

Finally, defendants argue that they should be granted qualified immunity because Judge

Riviezzo’s opinion in dicta demonstrates that a reasonable officer could have reached the same

conclusion as the officers in this case. “In a false arrest case, an arresting officer [is] entitled to

qualified immunity from a suit for damages if he can establish that there was arguable probable

cause to arrest.” Guerrero v. Scarazzini, 274 F. App’x. 11, 12 (2d Cir. 2008). “Arguable probable

cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause

existed, or (b) officers of reasonable competence could disagree on whether the probable cause

test was met.” Id. Judge Riviezzo found that plaintiff would have been convicted of OGA because

it was “simply not credible” that he and Janice would have “calmly walked away” while their

cousin was being arrested, Ex. O at 368, but “the credibility of witnesses is not to be assessed by

the court on a motion for summary judgment.” Anderson v. City of New York, 817 F. Supp. 2d 77,

89 (E.D.N.Y. 2011). Defendants also offer no support for the premise underlying their argument—

that the existence of Judge Riviezzo’s credibility determination precludes a federal jury from

making a different determination at trial. Because the facts surrounding the arrest are “sharply

disputed,” the court has no basis to resolve the issue of the officers’ qualified immunity as a matter

of law. Weyant, 101 F.3d at 858. In sum, because the issue of probable cause is disputed and

defendants are not entitled to qualified immunity, defendants’ motion for summary judgment on

plaintiff’s false arrest claim is denied.

IV. Malicious Prosecution

To prevail on a claim of malicious prosecution, a plaintiff must show that (1) the defendant

initiated a prosecution against the plaintiff; (2) the defendant lacked probable cause to believe the

proceeding could succeed; (3) the defendant acted with malice; (4) the prosecution was terminated

in the plaintiff’s favor; and (5) there was a post-arraignment deprivation of liberty. Rohman v.

New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000). For purposes of their summary

judgment motion, defendants challenge the fourth and fifth elements. They argue that plaintiff

cannot establish that the termination of his criminal proceedings affirmatively indicated his

innocence or that there was a post-arraignment deprivation of liberty. Neither argument is

persuasive.

First, within the Second Circuit, “a plaintiff asserting a malicious prosecution claim under

§ 1983 must [ ] show that the underlying criminal proceeding ended in a manner that affirmatively

indicates his innocence.” Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018). The

standard articulated in Lanning requires that “the prosecution terminated in some manner

indicating that the person was not guilty of the offense charged,” based on the merits of the case,

as opposed to “any number of procedural or jurisdictional grounds.” Id. at 26, 28 (quotation

omitted). The prosecution in this case resulted in an acquittal: “the most obvious example of a

favorable termination.” Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995); see also Black v.

Petitinato, 761 F. App’x 18, 23 (2d Cir. 2019) (“Where the prosecution did not result in an

acquittal, it is deemed to have ended in favor of the accused, for these purposes, only when its final

disposition is such as to indicate the innocence of the accused.”) That Judge Riviezzo stated, in

dicta, that plaintiff would have been found guilty of a separate offense that was never argued before

her does not negate the acquittal for purposes of the malicious prosecution claim.5

Indeed, “courts have held that an acquittal satisfies the favorable termination requirement

even when there has been a conviction on a related charge, or one arising from the same incident

or event.” Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989). In Ostroski v. Town of Southold,

the Honorable Joseph F. Bianco, then District, now Circuit Judge, declined to read Janetka

narrowly. 443 F. Supp. 2d 325, 336 (E.D.N.Y. 2006). The plaintiff in Ostroski, who was acquitted

on an OGA charge but convicted of harassment and criminal mischief, was permitted to bring a

malicious prosecution claim on the basis that the charges had differing elements. Id. at 337–38.

Second, “a post-arraignment defendant who is ‘obligated to appear in court in connection

with [criminal] charges whenever his attendance [i]s required’ suffers a Fourth Amendment

5 Indeed, “courts have held that an acquittal satisfies the favorable termination requirement even

when there has been a conviction on a related charge, or one arising from the same incident or

event.” Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989). In Ostroski v. Town of Southold, the

Honorable Joseph F. Bianco, then District, now Circuit Judge, declined to read Janetka narrowly.

443 F. Supp. 2d 325, 336 (E.D.N.Y. 2006). The plaintiff in Ostroski, who was acquitted on an

OGA charge but convicted of harassment and criminal mischief, was permitted to bring a

malicious prosecution claim on the basis that the charges had differing elements. Id. at 337–38.

deprivation of liberty.” Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013). Plaintiff attended

several court appearances in connection with his trial. Defendants contend that plaintiff did not

experience a separate deprivation for the attempted assault and harassment prosecution because

“[t]hose charges would have been subsumed by a trial for the higher level [OGA] offense, which

the DA was entitled to bring, though chose not to, and which the Judge ruled had been proven.”

Def. Mem. at 12.

This argument is meritless. While it is correct that an independent deprivation of liberty

must be shown, see Coleman v. City of New York, 688 F. App’x 56, 58 (2d Cir. 2017), here, in

contrast to Coleman, defendants have not established that plaintiff, in the absence of his attempted

assault and harassment charges, would have been required to attend court appearances for a

separate charge which was supported by probable cause. The OGA charge was dropped before

trial, and as explained above, there is an issue of fact as to whether probable cause existed to arrest

him for OGA or any other charge.

V. Malicious Abuse of Process

Defendants contend that no reasonable factfinder could determine that plaintiff’s arrest and

prosecution was motivated by anything other than the officers’ good faith belief that they had

probable cause for the arrest. Because plaintiff did not address this argument in his opposition

brief, he has abandoned this claim, and defendants are entitled to summary judgment on it. See,

e.g., Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003). Dismissal on the basis of

abandonment is particularly appropriate where, as here, plaintiff has merely alleged in his

complaint, but has not identified any evidence that suggests, that defendants “aimed to achieve a

collateral purpose beyond or in addition to his criminal prosecution.” Savino v. City of New York,

331 F.3d 63, 77 (2d Cir. 2003).

VI. Denial of the Right to a Fair Trial6

To establish a violation of the right to a fair trial based on fabrication of evidence, a plaintiff

must demonstrate that “an (1) investigating official (2) fabricat[ed] information (3) that is likely

to influence a jury’s verdict, (4) forwards that information to prosecutors, and (5) the plaintiff

suffers a deprivation of life, liberty, or property as a result.” Ganek v. Leibowitz, 874 F.3d 73, 90

(2d Cir. 2017) (citation omitted). Defendants argue that this claim must be dismissed because the

criminal proceedings against plaintiff did not terminate in his favor, and the alleged fabrication by

the officers—that plaintiff was the aggressor—was not material to the case. They also argue that

none of the 28 facts identified by plaintiff in his opposition brief as allegedly fabricated by

defendants should be considered in the context of this claim. I disagree.

First, defendants’ favorable termination argument is derived from McDonough v. Smith, a

recent Supreme Court case, addressing the accrual date for § 1983 fair trial claims based upon

fabricated evidence. 588 U.S. ___, 139 S. Ct. 2149, 2156 (2019). It held that such a claim does

not accrue until the “the underlying criminal proceedings have resolved in the plaintiff’s favor.”

Id. In McDonough, the Supreme Court observed that the “most analogous common-law tort” to a

fair trial claim is malicious prosecution, and, because the plaintiff’s acquittal was “unquestionably

a favorable termination,” the Court left open the question of the “broader range of ways a criminal

prosecution (as opposed to a conviction) might end favorably to the accused.” Id. at 2156, 2160

n.10. Recently, the Second Circuit found that “McDonough’s accrual rule does not import

malicious prosecution’s favorable-termination requirement onto section 1983 fair-trial claims.”

6 Plaintiff styles the fifth count of his complaint “Due Process / Denial of Constitutional Right to

Fair Trial.” Because plaintiff does not present any argument for a due process violation separate

from the denial of the right to a fair trial in his opposition papers, I assume that this claim relates

solely to the right to a fair trial.

Smalls v. Collins, 2021 WL 3700194, at *13 (2d Cir. Aug. 20, 2021). Rather, “all that is required

is that the underlying criminal proceeding be terminated in such a manner that the lawsuit does not

impugn an ongoing prosecution or outstanding conviction.” Id. (emphasis in original). Plaintiffs

whose criminal convictions have been invalidated or whose prosecutions have been terminated in

their favor satisfy this requirement “because, in such circumstances, there is no risk that a section

1983 plaintiff’s claim will impugn an existing conviction or the basis for an ongoing prosecution.”

Id. The Court reasoned that, unlike a malicious prosecution claim, which is grounded in the Fourth

Amendment, a § 1983 fair trial claim “focuses on the constitutionality of the process” in addressing

the “deprivation of life, liberty, or property due to corruption of due process by official

misconduct.” Id. at *12.

Here, plaintiff was acquitted of the charges brought to trial. Similar to the plaintiffs-

appellants in Smalls and Daniel, whose “criminal proceedings terminated without an extant

criminal conviction or any remaining pending charges,” id. at *1, plaintiff has no outstanding

criminal judgment, and his lawsuit does not impugn any ongoing prosecution or existing

conviction. Thus, his underlying criminal proceeding terminated in his favor, his fair trial claim

has accrued, and it is triable.

Second, defendants misconstrue the materiality of the alleged fabrication through an overly

narrow interpretation of the claim. Plaintiff alleges that defendants “manufactur[ed] false evidence

through their account that Plaintiff was the aggressor.” Am. Compl. ¶ 54. Defendants argue that,

because the criminal complaint does not describe plaintiff as an aggressor, and neither of the two

charges brought to trial—attempted assault in the third degree and harassment—requires that the

accused was the first to act, any alleged fabrication that plaintiff was “the aggressor” is immaterial.

According to defendants, the only possible interpretation of the alleged fabrication is that plaintiff

was the initial aggressor, and such evidence is material only if being the first to act is an element

of the crime. However, defendants offer no support for not considering fabrications material if

they are relevant to the crime charged, and not just an element of the crime itself. Because

aggressive conduct is relevant to both charges, fabricated evidence concerning such conduct likely

would influence a jury’s decision.

Finally, defendants argue that the 28 facts plaintiff identifies in his opposition brief as

alleged fabrications should be disregarded because they were offered for the first time during

motion practice and they are not material. But the facts raised in plaintiff’s opposition do not

introduce new claims or contradict any of his previous statements, and they are drawn directly

from the criminal complaint and defendants’ depositions. Any facts that constitute defendants’

accounts of plaintiff’s aggression, for example the facts allegedly fabricated by defendant Ramos

numbered 1–8 and 10–13 and defendant Maloshag numbered 4–10 are clearly relevant and will be

considered. Pl. Opp. 5–7. The materiality of the other facts will be addressed by the court during

final pre-trial proceedings.

VII. Excessive Force and Failure to Intervene Claims7

Defendants argue that plaintiff’s excessive force claim should be dismissed because it is

refuted by contemporaneous medical records. If the claim is not dismissed entirely, they contend

that it should be dismissed against Officer Delaney, whose personal involvement has not been

established. Defendants also assert that plaintiff’s failure to intervene claim should be dismissed

7 I address plaintiff’s excessive force and failure to intervene claims together because a “police

officer is personally involved in the use of excessive force if he either: (1) directly participates in

an assault; or (2) was present during the assault, yet failed to intercede on behalf of the victim even

though he had a reasonable opportunity to do so.” Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474

(S.D.N.Y. 2003) (citation omitted), aff’d sub nom. Jeffreys v. City of New York, 426 F.3d 549 (2d

Cir. 2005).

because there was nothing unconstitutional in which to intervene, and, even if there were, there

was no time for an officer to intervene. As described below, questions of fact preclude summary

judgment on these claims. Among other facts, the parties dispute the events leading up to the use

of force, the level of force used, the extent, if any, to which plaintiff resisted arrest, and whether

the incident lasted long enough to allow any defendant time to intervene.

A. Excessive Force

To succeed on a Fourth Amendment excessive force claim, a plaintiff must demonstrate

that the actions of the arresting officers were not “‘objectively reasonable’ in light of the facts and

circumstances as presented to [the officers] at the time of the [p]laintiff’s arrest.” Graham v.

Connor, 490 U.S. 386, 397 (1989) (citation omitted). The reasonableness of the officers’ actions

is a fact-intensive inquiry, and summary judgment on an excessive force claim is inappropriate

when material facts as to reasonableness are in dispute. Kerman v. City of New York, 261 F.3d

229, 240 (2d Cir. 2001). Although the force used “must generally be more than de minimis for a

claim to be actionable,” Antic v. City of New York, 273 F. Supp. 3d 445, 458 (S.D.N.Y. 2017),

aff’d, 740 F. App’x 203 (2d Cir. 2018), an injury need not be severe or permanent to maintain a

claim that the force used was objectively unreasonable. See, e.g., Maxwell v. City of New York,

380 F.3d 106, 108 (2d Cir. 2004).

The facts surrounding the reasonableness of the officers’ actions here are in dispute. Sworn

deposition testimony from plaintiff and Janice contradict testimony from Officer Ramos that he

and Officer Maloshag each struck plaintiff once. Plaintiff testified that he was walking away from

the police officers, in accordance with their orders, when he was pushed by the officers; he turned

around and was struck several times in the head by the officers and later slammed on the ground.

During this time, he asserts that he was merely speaking with the officers to determine the cause

of the arrest. Whether the officers struck plaintiff once or several times, the reasonableness of the

use of force is in dispute if plaintiff’s version of events is credited.

Moreover, contrary to defendants’ arguments, the medical records do not “completely

refute” plaintiff’s version of events. An EMT was dispatched to treat plaintiff at the precinct for

an injury pursuant to a fight or brawl, and, although plaintiff said, “I’m OK,” he also stated that he

was punched multiple times and the EMT recorded signs of bleeding. Ex. K at 1–2. At the

emergency room the day after plaintiff’s release, he reported symptoms of back and neck pain, his

skin showed signs of color change and wound with multiple abrasions to his face and hands, and

he received a diagnosis of assault by bodily force by multiple persons unknown to the victim and

a headache. Ex. L at 4–5, 9. Plaintiff also submitted a photograph that shows a laceration above

his eye. Ex. 3. This is therefore not a case in which the evidence conclusively show that plaintiff’s

injuries were de minimis or that the force used was reasonable.

Because there is a genuine dispute as to the material facts concerning the use of force,

defendants are not entitled to summary judgment on this claim.

B. Personal Involvement of Officer Delaney

In the alternative, defendants argue that the excessive force claim should be dismissed as

against Officer Delaney because his personal involvement cannot be established. Although it is

“axiomatic that claims under § 1983 for use of excessive force or failure to intervene require

personal involvement to trigger liability,” Demosthene v. City of New York, 2020 WL 5988518, at

*4 (2d Cir. Oct. 9, 2020), on summary judgment, a plaintiff need not identify who among several

defendants used unreasonable force and who failed to intervene. John v. City of New York, 406 F.

Supp. 3d 240, 245 (E.D.N.Y. 2017). Rather, to establish liability, a plaintiff must establish that an

officer had “a realistic opportunity to intervene to prevent the harm from occurring.” Anderson v.

Branen, 17 F.3d 552, 557 (2d Cir. 1994); see also, e.g., Ricks v. O’Hanlon, 2010 WL 245550, at

*4 (S.D.N.Y. Jan. 19, 2010) (finding sufficient evidence of an officer’s personal involvement to

survive summary judgment on excessive force claim, despite plaintiff inability to identify who

assaulted him, where the officer was present during the attack and had a realistic opportunity to

intervene). Whether an officer was capable of preventing the harm and had sufficient time to

intercede “is an issue of fact for the jury unless, considering all the evidence, a reasonable jury

could not possibly conclude otherwise.” Branen, 17 F.3d at 557.

Testimony from Officers Ramos and Delaney, as well as Janice’s criminal court complaint,

acknowledge that Officer Delaney was present at the scene and ordered Janice to disperse.

Defendants do not dispute that he was present and in the vicinity of Janice and plaintiff around the

time of their arrests. Plaintiff also testified that several officers were involved in the attack, and,

under his version of the facts, he would have been prevented from seeing each officer involved, as

at least one was behind him holding his arms while the others struck his face. See De Michele v.

City of New York, 2012 WL 4354763, at *16–17 (S.D.N.Y. Sept. 24, 2012) (denying summary

judgment on excessive force claim where it was undisputed that officers were present, even though

plaintiff was prevented from seeing which officers took what actions). Thus, plaintiff has put forth

sufficient evidence to create a genuine issue of material fact as to whether Officer Delaney was

present during or participated in the alleged unlawful conduct.

C. Failure to Intervene

Finally, defendants assert that the failure to intervene claim should be dismissed because

there was nothing unconstitutional in which to intervene, and, even if there were, there was no

time for an officer to intervene. The first argument fails in light of the unresolved factual disputes

on the excessive force claim. The second argument fails because there is a factual dispute as to

the length of time the alleged excessive force was used.

“Whether an officer had sufficient time to intercede or was capable of preventing the harm

being caused by another officer is an issue of fact for the jury unless, considering all the evidence,

a reasonable jury could not possibly conclude otherwise.” Anderson, 17 F.3d at 557. Contrary to

defendants’ arguments, the undisputed evidence does not show that the alleged conduct happened

in a matter of seconds. Although Officer Maloshag stated that plaintiff’s apprehension happened

“very quickly,” Maloshag Dep. at 115:20–21, Officer Ramos testified that it took “maybe a minute

or so, maybe longer” to place him into handcuffs. Ramos Dep. at 119:7. Plaintiff testified that,

although he did not know how long the incident lasted, he was trying to explain to the officers that

he worked for the City and asked them questions as they struck him. Pl. Dep. at 97:6–9. This

dialogue would suggest a timeline closer to a minute or longer, as Officer Ramos testified. Plaintiff

also testified that, after striking him, the officers slammed him on the ground and kneed him in the

head and back. Id. at 107:2–109:19. Whether any defendant had an opportunity to intervene

therefore depends on whose testimony is credited, particularly if the blows plaintiff sustained while

standing are viewed as a separate incident of abuse from those he experienced after being slammed

to the ground. See, e.g., Figueroa v. Mazza, 825 F.3d 89, 106–07 (2d Cir. 2016) (district court

erred in concluding that defendants did not have sufficient time to intercede where assault could

have consisted of anywhere from five to twelve punches and could have lasted from twenty

seconds to two minutes); Gonzalez, 199 F. Supp. 3d at 623 (“When a victim is subject to multiple

incidents of abuse, however, the likelihood that an officer would be able to intervene is greater.”).

Finally, it is true, as defendants argue, that, where particular defendants are the direct

participants in the allegedly excessive use of force, “the failure to intervene theory of liability is

inapplicable.” Arminio v. Holder, 2019 WL 176804, at *5 (S.D.N.Y. Jan. 11, 2019). However,

although the evidence places each defendant at the scene of the incident, plaintiff does not specify

which defendants allegedly struck him and which were present but failed to intervene. Whether

the particular defendants are liable for use of excessive force, failure to intervene, or none of the

above are triable questions of fact for the jury.

VIII. Conclusion

For the foregoing reasons, the motion for summary judgment is granted as to plaintiff’s

malicious abuse of process claim on the grounds of abandonment. The motion for summary

judgment is otherwise denied. With respect to the 28 facts plaintiff identifies in his fair trial claim,

those that constitute defendants’ accounts of plaintiff’s aggression will be considered; the

materiality of the other facts will be addressed by the court during final pre-trial proceedings.

SO ORDERED.

___/_s_/_________________

NINA GERSHON

United States District Judge

August 27, 2021

Brooklyn, New York