Freistat v. NYPD

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KYLE FREISTAT,

Plaintiff,

MEMORANDUM AND ORDER

-against- 17-CV-5870 (RPK) (LB)

DANIEL GASPERETTI and ANTHONY

ARLISTICO,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Plaintiff Joel Burnett, proceeding pro se under the name Kyle Freistat, sues Detective

Daniel Gasperetti and Police Officer Anthony Arlistico of the New York Police Department under

42 U.S.C. § 1983. Read liberally, the complaint asserts a claim for excessive force. Defendants

move for summary judgment. Defendants’ motion is granted in part and denied in part.

Defendants are entitled to summary judgment on plaintiff’s allegations that defendants used

excessive force before plaintiff was handcuffed. Summary judgment is denied as to allegations

that defendants used excessive force after plaintiff was handcuffed.

BACKGROUND

The following background comes from defendants’ Rule 56.1 statements of facts and

attached documents, depositions, and declarations. See Fed. R. Civ. P. 56(c)(1); Local Rule 56.1.

Plaintiff has not disputed defendants’ Rule 56.1 statement or filed a counterstatement. Local Rule

56.1 deems admitted each “numbered paragraph in [a] statement of material facts . . . unless

specifically controverted by a correspondingly numbered paragraph” in an opposing statement.

“Pro se litigants are . . . not excused from meeting the requirements of Local Rule 56.1.” Liverpool

v. Davis, 442 F. Supp. 3d 714, 723 (S.D.N.Y. 2020) (internal quotations omitted). Accordingly,

plaintiff’s “failure to respond to a Rule 56.1 statement permits the court to conclude that the facts

asserted in the statement are uncontested and admissible.” T.Y. v. New York City Dep’t of Educ.,

584 F.3d 412, 418 (2d Cir. 2009).

A. Factual Background

1. The Investigative Stop and Arrest

On July 26, 2017, Mr. Freistat was driving alone in Jamaica, New York, when he was

pulled over by Detective Gasperetti and Officer Arlistico. See Defs.’ Statement Pursuant to Local

Civil Rule 56.1 ¶¶ 1-2 (Dkt. #101) (“Defs.’ Statement”); Dep. of Joel Burnett a/k/a Kyle Freistat

37:14-15, 69:7-12 (Dkt. #102-3) (“Freistat Dep.”). Detective Gasperetti approached the driver’s

side of the vehicle and Officer Arlistico approached the passenger’s side. See Defs.’ Statement ¶

4; Freistat Dep. 76:18-20. The officers informed Mr. Freistat that they pulled him over because

he had run a stop sign and because his taillight was out. See Defs.’ Statement ¶ 8; Freistat Dep.

86:2-8.

When Detective Gasperetti asked for Mr. Freistat’s license, Mr. Freistat handed him a

forged license from the Virgin Islands under the name DeAndre Buchonan. See Defs.’ Statement

¶ 10; Freistat Dep. 88:11-89:3. Mr. Freistat also handed him a card containing a social security

number under the name DeAndre Buchonan. See Defs.’ Statement ¶ 14; Freistat Dep. 91:2-6.

After running the license and social security number, Detective Gasperetti informed Mr. Freistat

that he had an outstanding warrant. See Defs.’ Statement ¶¶ 16-17; Freistat Dep. 95:11-96:2.

The officers asked Mr. Freistat to get out of the vehicle approximately four times, but

plaintiff refused. See Defs.’ Statement ¶ 23; Freistat Dep. 116:13-18. After the fourth refusal,

Detective Gasperetti started pulling on plaintiff’s upper left arm with both hands to remove him

from the vehicle. See Defs.’ Statement ¶ 24; Freistat Dep. 116:19-117:11. In response, plaintiff

planted his feet and held his body in the car to prevent Detective Gasperetti from removing him.

See Defs.’ Statement ¶ 25; Freistat Dep. 119:18-22.

Mr. Freistat then put the vehicle in drive and started to accelerate. See Defs.’ Statement

¶ 26; Freistat Dep. 118:9-25. At this time, Officer Arlistico was not inside of the vehicle, see

Defs.’ Statement ¶ 28; Freistat Dep. 118:19-24, but Detective Gasperetti was on top of Mr. Freistat

with the driver’s side door still open, see Defs.’ Statement ¶ 29; Freistat Dep. 122:19-25. As the

vehicle reached four to ten miles per hour, see Defs.’ Statement ¶ 27; Freistat Dep. 137:8-13,

Detective Gasperetti wrapped his left arm around Mr. Freistat’s neck to get Mr. Freistat to stop the

vehicle, see Defs.’ Statement ¶ 29; Freistat Dep. 124:1-7, 128:25-129:5. Plaintiff testified that,

during this time, Detective Gasperetti punched Mr. Freistat on the left side of his face

approximately three times. See Defs.’ Statement ¶ 30; Freistat Dep. 130:3-23.

Mr. Freistat drove the vehicle ten to fifteen feet forward and then crashed into a parked car.

See Defs.’ Statement ¶ 32; Freistat Dep. 138:1-5, 119:11-16. Detective Gasperetti then stepped

out of the car and again attempted to pull Mr. Freistat from the vehicle. See Defs.’ Statement ¶

33; Freistat Dep. 139:19-25. He also struck Mr. Freistat on the left side of his face approximately

two more times. See Defs.’ Statement ¶ 34; Freistat Dep. 148:1-25.

Mr. Freistat then put the vehicle in reverse and began to back up. See Defs.’ Statement ¶

35; Freistat Dep. 140:3-5. In response, Detective Gasperetti again placed two feet in the vehicle

and held Mr. Freistat. See Defs.’ Statement ¶ 35; Freistat Dep. 140:3-5. Mr. Freistat then put the

vehicle in drive and began to accelerate. See Defs.’ Statement ¶ 37; Freistat Dep. 149:21-150:7.

As the vehicle reached twenty to thirty miles per hour, Detective Gasperetti—still in the car—

managed to close the driver’s side door. See Defs.’ Statement ¶ 37; Freistat Dep. 149:21-150:7.

Inside the vehicle, Detective Gasperetti ordered Mr. Freistat to stop the vehicle, but Mr.

Freistat did not do so. See Defs.’ Statement ¶¶ 39-40; Freistat Dep. 151:14-17. According to Mr.

Freistat, Detective Gasperetti hit him in the face with his police radio approximately a dozen times.

See Defs.’ Statement ¶ 45; Freistat Dep. 152:25-153:6. Mr. Freistat stated that he let go of the

steering wheel with his right arm and held Detective Gasperetti tightly so that the officer could not

get his gun out of his holster. See Defs.’ Statement ¶ 40; Freistat Dep. 152:6-17.

As the vehicle reached forty to forty-five miles per hour, see Defs.’ Statement ¶ 42; Freistat

Dep. 158:19-25, Mr. Freistat clipped a Sport Utility Vehicle, see Defs.’ Statement ¶ 41; Freistat

Dep. 157:8-11. Plaintiff alleges that Detective Gasperetti then rendered him unconscious by

striking him in the head with his radio. See Defs.’ Statement ¶ 46; Freistat Dep. 159:6-11.

The vehicle crashed a second time. See Defs.’ Statement ¶ 50; Freistat Dep. 207:2-8. When

Mr. Freistat regained consciousness, he was still seated in the driver’s seat. See Defs.’ Statement

¶ 47; Freistat Dep. 164:13-14. He was bleeding from his face and forehead. See Defs.’ Statement

¶ 48; Freistat Dep. 167:4-12. He observed Detective Gasperetti bent over, standing with his hands

on his knees approximately two feet away from the crashed vehicle. See Defs.’ Statement ¶ 52;

Freistat Dep. 168:16-169:14.

Mr. Freistat pushed the driver’s door open and started to run. See Defs.’ Statement ¶ 54;

Freistat Dep. 169:24-170:25. But he only made it two feet before he tripped and fell. See Defs.’

Statement ¶ 55; Freistat Dep. 173:11-174:24. Mr. Freistat testified that, at the same time, Officer

Arlistico arrived at the scene of the crash. See Defs.’ Statement ¶ 56; Freistat Dep. 173:15-174:2.

He further testified that, as he attempted to get up, Officer Arlistico jumped on top of him. See

Defs.’ Statement ¶¶ 57-58; Freistat Dep. 174:1-2, 178:19-20. Detective Gasperetti then jumped

on top of him as well. See Defs.’ Statement ¶ 59; Freistat Dep. 178:19-25. As a result, Mr. Freistat

testified that he was not able to breathe. See Defs.’ Statement ¶ 60; Freistat Dep. 179:13-22.

Mr. Freistat was handcuffed. See Defs.’ Statement ¶ 61; Freistat Dep. 179:13-22. Mr.

Freistat testified that defendants then started to beat him again. See Defs.’ Statement ¶ 62; Freistat

Dep. 179:23-180:15, 217:18-24. He testified that at this time, Officer Arlistico beat him with his

police-issued radio, and Detective Gasperetti hit him with closed-fist punches. See Defs.’

Statement ¶¶ 63-64; Freistat Dep. 179:23-180:15. Mr. Freistat testified that, as a result, he was

knocked unconscious again. See Defs.’ Statement ¶ 65; Freistat Dep. 223:3-12. Other police

officers then arrived on the scene. See Defs.’ Statement ¶ 66; Freistat Dep. 227:25-228:12.

Mr. Freistat was taken to Jamaica Hospital in an ambulance. See Defs.’ Statement ¶ 72;

Freistat Dep. 240:23-241:5. Detective Gasperetti and Officer Arlistico were taken to Jamaica

Hospital in another ambulance. See Def.’s Statement ¶ 69; Freistat Dep. 232:16-17. Hospital

records reflect that Mr. Freistat was diagnosed as having multiple abrasions to his face and right

upper extremity as well as a sprain to his right hand and ankle, see Defs.’ Statement ¶ 80; Decl. of

Morgan McKinney (“McKinney Decl.”), Ex. G, at D193 (Dkt. #102-7), but his scans came back

negative for fractures or dislocations, see McKinney Decl., Ex. G, at D195, D205-D214. Hospital

records reflect that Detective Gasperetti was ultimately diagnosed as having a fractured kneecap,

ruptured patella tendon, and serious chest contusion, along with severe pain limiting the range of

motion in his knee. See Def.’s Statement ¶ 86; McKinney Decl., Ex. H, at D1406-1453 (Dkt.

#102-8).

2. State Proceedings

Mr. Freistat was indicted for attempted murder in the first degree, assault in the first degree,

resisting arrest, failing to stop for a stop sign, and other violations. See Def.’s Statement ¶ 87;

McKinney Decl., Ex. B, at D7-D18 (Dkt. #102-2); McKinney Decl. Ex. E, at D5 (Dkt. #102-5).

Mr. Freistat pleaded guilty to assault in the first degree, resisting arrest, and identity theft in the

second degree. See Def.’s Statement ¶ 88; McKinney Decl., Ex. D, at D153-D176 (Dkt. #102-4);

McKinney Decl., Ex. E. For those crimes, Mr. Freistat was sentenced to thirteen and a half years

in jail with five years of post-release supervision. See Def.’s Statement ¶ 91; McKinney Decl.,

Ex. D, at D153-D176; McKinney Decl., Ex. E.

B. Procedural History

Mr. Freistat brought this action under 42 U.S.C. § 1983. See Compl. at 2 (Dkt. #2). He

also applied for in forma pauperis status. See IFP Mem. & Order at 1 (Dkt. #7).

Judge Roslynn R. Mauskopf, the then-assigned district judge, construed Mr. Freistat’s

complaint as alleging that Detective Gasperetti and Officer Arlistico used excessive force against

Mr. Freistat. Ibid. She determined that the excessive-force claim against those officers could

proceed. Ibid. She dismissed plaintiff’s additional claims against the New York City Police

Department, New York Department of Correction, and Department of Justice. Ibid.

Defendants have now moved for summary judgment. See Defs.’ Notice to Pro Se Litigant

1 (Dkt. #100); Defs.’ Mem. of L. in Supp. of Mot. for Summ. J. 3 (Dkt. #104).

STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of

fact is genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Frost v. New York City Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020) (quoting

SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). “A fact is material if

it might affect the outcome of the suit under governing law.” Ibid. In assessing the record, I

consider cited “depositions, documents, electronically stored information, affidavits or

declarations, stipulations[,] . . . admissions, [and] interrogatory answers[.]” Fed. R. Civ. P.

56(c)(1)(A). I view “the evidence in the light most favorable to the nonmoving party and draw all

reasonable inferences in that party’s favor.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010).

Plaintiff proceeds pro se. A court “is ordinarily obligated to afford a special solicitude to

pro se litigants . . . particularly where motions for summary judgment are concerned.” Harris v.

Miller, 818 F.3d 49, 57 (2d Cir. 2016) (quotation marks and citations omitted). A court must

“liberally construe” documents “submitted by pro se litigants, reading such submissions to raise

the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156

(2d Cir. 2017).

DISCUSSION

Like Judge Mauskopf, I construe plaintiff’s complaint as pleading a claim of excessive

force against Detective Gasperetti and Officer Arlistico. The complaint mentions other

constitutional provisions, but even on a liberal reading, it does not contain non-conclusory

allegations to support claims beyond excessive force. See Compl. at 4 (stating that plaintiff’s

“constitutional rights were violated ranging from the 4th to 14th amendments[,] from illegal search

and seizure to due process amendments” but not providing additional detail). As to that excessive-

force claim, defendants’ motion for summary judgment is granted in part and denied in part.

Defendants are entitled to summary judgment on plaintiff’s allegations that defendants used

excessive force before plaintiff was handcuffed. Summary judgment is denied as to allegations

that defendants used excessive force after plaintiff was handcuffed. Cf. Tracy, 623 F.3d at 95-99

(considering whether officers used excessive force in sequential portions of encounter).

I. Defendants are entitled to summary judgment on plaintiff’s allegations that

defendants used excessive force before he was handcuffed.

Defendants are entitled to summary judgment on plaintiff’s claim that officers used

excessive force insofar as it relates to the officers’ alleged conduct before plaintiff was handcuffed.

In his deposition, plaintiff alleges that during that period, Detective Gasperetti (i) pulled on

plaintiff’s upper left arm with both hands to remove him from his vehicle; (ii) jumped on top of

plaintiff and wrapped his arm around plaintiff’s neck; (iii) punched plaintiff three times before

plaintiff’s car crashed for the first time; and (iv) hit plaintiff with his police radio approximately a

dozen times before plaintiff’s car crashed a second time. Plaintiff also alleges that after the second

crash, plaintiff testified that Detective Gasperetti and Officer Arlistico (v) jumped on plaintiff until

he was handcuffed. On the undisputed facts in this case, these uses of force were reasonable, and

officers would be shielded by qualified immunity regardless.

A. Defendants used reasonable force before plaintiff was handcuffed.

Even assuming Mr. Freistat’s account to be true, no reasonable jury could conclude that

defendants’ force against plaintiff was objectively unreasonable before he was handcuffed.

Whether officers used excessive force depends on whether their use of force was

“‘objectively reasonable’ in light of the facts and circumstances confronting” them. Graham v.

Connor, 490 U.S. 386, 397 (1989) (quoting Scott v. United States, 436 U.S. 128, 137-39 (1978)).

This test balances “the nature and quality of the intrusion” against “the countervailing

governmental interests at stake.” Id. at 396 (internal quotations omitted). Relevant factors include

“the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by

flight.” Ibid. The record is assessed “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Ibid. Given “the fact-specific nature of the inquiry

on an excessive force claim, granting summary judgment against a plaintiff . . . is not appropriate

unless no reasonable factfinder could conclude that the officers’ conduct was objectively

unreasonable.” Lennox v. Miller, 968 F.3d 150, 155 (2d Cir. 2020) (quoting Rogoz v. City of

Hartford, 796 F.3d 236, 246 (2d Cir. 2015)).

No reasonable factfinder could conclude that the use of force Mr. Freistat alleges occurred

before he was handcuffed was objectively unreasonable. First, the officers were attempting to

subdue someone who was repeatedly failing to comply with their instructions. Plaintiff concedes

that officers asked him to get out of the vehicle four times, but he refused. See Defs.’ Statement

¶ 23; Freistat Dep. 116:13-18. He concedes that he resisted Detective Gasperetti’s attempts to

remove him from his car. See Defs.’ Statement ¶ 25; Freistat Dep. 119:18-22. He concedes that

once he started to drive off, Detective Gasperetti ordered him to stop the vehicle, but he did not.

See Defs. Statement ¶¶ 39-40; Freistat Dep. 151:14-17. Indeed, he acknowledges that he pleaded

guilty to resisting arrest. See Def.’s Statement ¶ 88; McKinney Decl., Ex. D, at D153-D176;

Rolkiewicz v. City of New York, 442 F. Supp. 3d 627, 639-40 (S.D.N.Y. 2020). In repeatedly

refusing to comply with the officers’ orders, Mr. Freistat “exacerbated a ‘tense, uncertain, and

rapidly evolving’ situation that threatened the lives of officers, bystanders, and [Mr. Freistat]

himself.” MacLeod v. Town of Brattleboro, 548 F. App’x 6, 8 (2d Cir. 2013) (quoting Graham,

490 U.S. at 397).

Second, the officers were attempting to subdue someone who was “attempting to evade

arrest by flight.” Graham, 490 U.S. at 396; cf. Tracy, 623 F.3d at 97-98 (granting summary

judgment to an officer who jumped on a fleeing suspect). Plaintiff concedes that after refusing to

exit his vehicle, he started to drive off. See Defs.’ Statement ¶ 26; Freistat Dep. 118:9-25. And

he concedes that once his car crashed, he tried to run away from the officers. See Defs.’ Statement

¶ 54; Freistat Dep. 169:24-170:25.

Third, the officers were attempting to subdue someone who posed “an immediate threat to

the safety of the officers.” Graham, 490 U.S. at 396. Plaintiff concedes that as he initially

accelerated, he was locked in a struggle with Detective Gasperetti with the driver’s door still open.

See Defs.’ Statement ¶ 29; Freistat Dep. 122:19-25. Plaintiff concedes that he crashed his vehicle

with Detective Gasperetti in the car. See Defs.’ Statement ¶ 32; Freistat Dep. 138:1-5, 119:11-16.

Plaintiff concedes that he accelerated to a greater speed after the first crash, still locked in a struggle

with Detective Gasperetti. See Defs.’ Statement ¶ 37; Freistat Dep. 149:21-150:7. And plaintiff

concedes that he reached up to forty-five miles per hour and crashed the car again. See Defs.’

Statement ¶ 42; Freistat Dep. 158:19-25. Plaintiff’s actions repeatedly placed Detective Gasperetti

in great danger. “The more precarious a particular situation, the more substantial the force that

can be used.” Johnson v. City of New York, No. 05-CV-2357 (SHS), 2006 WL 2354815 (E.D.N.Y.

Aug. 14, 2006). Taking into account all the circumstances here, a reasonable jury could not find

that defendants acted unreasonably in using the force they used to subdue plaintiff. Cf. Plumhoff

v. Rickard, 572 U.S. 765, 776-77 (2014) (holding that even deadly force was not unreasonable

where “outrageously reckless driving posed a grave public safety risk”); Scott v. Harris, 550 U.S.

372, 386 (2007) (holding that officers’ “attempt to terminate [a car] chase by forcing [plaintiff] off

the road was reasonable” because the car chase “posed a substantial and immediate risk of serious

physical injury to others”).

B. Qualified immunity shields the officers for the force used before plaintiff was

handcuffed.

At minimum, qualified immunity would shield the defendants from liability for their

alleged uses of force to subdue Mr. Freistat before he was handcuffed.

Qualified immunity shields officers from liability unless their conduct violated “clearly

established statutory or constitutional rights of which a reasonable person should have known.”

Chamberlain Estate of Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome qualified immunity,

“[t]he contours of the right must be sufficiently clear” at the time of the violation “that a reasonable

official would understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). Because “[u]se of excessive force is an area of the law in which the result

depends very much on the facts of each case . . . officers are entitled to qualified immunity unless

existing precedent squarely governs the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (internal quotations omitted).

The parties point to no precedent that would have informed Detective Gasperetti and

Officer Arlistico in July 2017 that they could not use the force they used to subdue plaintiff here

under the circumstances. To the contrary, existing precedent counseled that similar or greater use

of force was reasonable when “the risk posed to officer safety appeared to be both real and

imminent,” Tracy, 623 F.3d at 97, and “outrageously reckless driving posed a grave public safety

risk,” Plumhoff, 572 U.S. at 776-77. At minimum, defendants would therefore be entitled to

qualified immunity with respect to allegations that they used excessive force to subdue plaintiff

before he was handcuffed.

II. Defendants are not entitled to summary judgment on plaintiff’s allegations that

defendants used excessive force after he was handcuffed.

Defendants are not entitled to summary judgment on plaintiff’s claim that defendants used

excessive force after he was handcuffed. Plaintiff has raised a genuine issue of material fact

concerning that allegation through his testimony, and it is clearly established that such force would

be unreasonable.

A. A jury could find that defendants beat plaintiff after he was handcuffed.

Defendants argue that summary judgment is appropriate concerning plaintiff’s allegations

of violence after plaintiff was handcuffed because no reasonable jury could credit plaintiff’s

testimony on that point. But the record reflects a genuine dispute of fact. Plaintiff testified that

after the officers “finally [got] the handcuffs on him,” he was “trying to ease up still,” and the

officers were “easing [him] down.” Freistat Dep. 179:13-25. Plaintiff testified that Officer

Arlistico then “beat[] [him] with the radio,” and Detective Gasperetti “us[ed] closed fists out of

anger and frustration.” Id. at 180:4-9. And he testified that “all of this took place after [he] was

handcuffed.” Id. at 217:18-24. That “testimony alone” is ordinarily “independently sufficient to

raise a genuine issue of material fact.” Bellamy v. City of New York, 914 F.3d 727, 746 (2d Cir.

2019).

Defendants principally argue that plaintiff’s testimony should be discredited as

inconsistent. It is true that where a “plaintiff relies almost exclusively on his own testimony,” a

district court may discount his testimony at summary judgment where it is “so replete with

inconsistencies and improbabilities that no reasonable juror would undertake the suspension of

disbelief necessary to credit” the testimony. Jeffreys v. City of New York, 426 F.3d 549, 555 (2d

Cir. 2005) (internal quotations omitted). But insofar as plaintiff contradicted himself regarding

whether defendants assaulted him after he was handcuffed, jurors could reasonably find that

plaintiff simply misspoke. Plaintiff did at one point state that “the second round of beating” took

place when he was “on the ground, uncuffed,” but he did so when emphasizing that Officer

Arlistico used a radio to beat him on the ground while Detective Gasperetti had used a radio to

beat him in the car. Freistat Dep. 180:1-8. When asked about the timing directly, plaintiff

unequivocally stated that the beating “took place after [he] was handcuffed,” and he rejected any

suggestion that he intended to say differently. See Freistat Dep. 217:18-24. “If there is a plausible

explanation for discrepancies in a party’s testimony, the court considering a summary judgment

motion should not disregard the later testimony because of an earlier account that was ambiguous,

confusing, or simply incomplete.” Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106,

112 (2d Cir. 1998).

Defendants further argue that Mr. Freistat’s medical records, which reflect only abrasions

and a sprain, would foreclose a reasonable jury from finding that officers beat him after he was

handcuffed. See Defs.’ Mem. of L. J. 20-21. But “the seriousness of a plaintiff’s injury . . . is not

determinative of an excessive force claim.” Sims v. Artuz, 103 F. App’x 434, 437 (2d Cir. Jul. 6,

2004). “While the absence of serious injury is certainly a matter that the jury can consider in

assessing both the reasonableness of the force and potential damages from any misconduct, a

district court should not grant summary judgment on this basis alone.” Ketcham v. City of Mount

Vernon, 992 F.3d 144, 150 (2d Cir. 2021). And while the tension between the medical records

and plaintiff’s own account of the extent of his injuries would surely provide “ammunition for

cross-examination,” the questions surrounding plaintiff’s credibility are for the jury to resolve.

Galberth v. Durkin, No. 14-CV-115 (BKS) (ATB), 2017 WL 4325774, at *8 (N.D.N.Y. Aug. 31,

2017) (declining to grant summary judgment for defendants on plaintiff’s excessive force claims

although those claims were “either inconsistent with or unsupported by medical records,” id. at

*7), report and recommendation adopted, No. 14-CV-115 (BKS) (ATB), 2017 WL 4326076

(N.D.N.Y. Sept. 27, 2017). It remains “for the fact-finder to assess whether and to what extent the

medical evidence strips” plaintiff’s testimony regarding excessive force “of its credibility.”

Pierre-Antoine v. City of New York, No. 4-CV-6987 (GEL), 2006 WL 1292076, at *5 (S.D.N.Y.

May 9, 2006).

B. It is clearly established that officers may not beat a restrained arrestee who is

not resisting.

Taking plaintiff’s account of officers’ conduct as true, defendants are not entitled to

summary judgment as to excessive force after plaintiff was handcuffed. It has long been “well

established . . . that the use of entirely gratuitous force is unreasonable and therefore excessive,”

Tracy, 623 F.3d at 99 n.5, and that “it is impermissible to use significant force against a restrained

arrestee who is not actively resisting,” Lennox v. Miller, 968 F.3d 150, 157 (2d Cir. 2020); see

Ketcham v. City of Mount Vernon, 992 F.3d 144, 152 n.2 (2d Cir. 2021); see also, e.g., Scott v.

City of New York, No. 16-CV-834 (NGG) (ST), 2020 WL 208915, at *9 (E.D.N.Y. Jan. 14, 2020).

Once an arrestee is cuffed and no longer resisting, “even a minor use of force may be found to

have been unreasonable.” Adedeji v. Hoder, 935 F. Supp. 2d 557, 568 (E.D.N.Y. 2013) (internal

quotations omitted). That is so even if officers were justified in using force to subdue plaintiff

before he was handcuffed. See Tracy, 623 F.3d at 96-97 & n.5. Accordingly, a genuine dispute

of material fact exists as to whether officers violated clearly established law through excessive

force after plaintiff was handcuffed. Summary judgment is denied on plaintiff’s claim that officers

used excessive force after handcuffing him.

CONCLUSION

Defendants’ motion for summary judgment is granted in part and denied in part.

Defendants are entitled to summary judgment on plaintiff’s allegations that defendants used

excessive force before he was handcuffed. Summary judgment is denied as to allegations that

defendants used excessive force after he was handcuffed.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: September 30, 2021

Brooklyn, New York