Pugh v. Casimir

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES PUGH,

Plaintiff, MEMORANDUM & ORDER

18-CV-7350(EK)(RLM)

-against-

RAMIL CASIMIR, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff James Pugh brings claims under 42 U.S.C.

§ 1983 and New York law against Officers Ramil Casimir and John

Sikora of the New York City Police Department, several unnamed

officers, and the City of New York. The amended complaint

alleges that around three o’clock in the morning on December 30,

2017, two NYPD officers — Casimir and an “unknown other officer”

— brutally assaulted him. Plaintiff also asserts that the

officers denied him medical care following the assault.

Defendants now move for summary judgment on all of

Plaintiff’s claims. Plaintiff opposes summary judgment and, in

the alternative, seeks leave to amend his complaint.

As discussed further below, Plaintiff initially

reported — in a number of settings — that his injuries resulted

from a car crash. After Plaintiff alleged that he was

assaulted, he gave conflicting testimony about the assault and

the events surrounding it. He refused to answer defense

counsel’s questions at his deposition (saying “I can’t recall”

several hundred times). In addition to those conflicts,

Plaintiff’s testimony is contradicted by extensive,

contemporaneous medical evidence from multiple sources, which

show no evidence of bruising consistent with the alleged

assault.

For these reasons and those that follow, the

Defendants’ motion is granted as to all federal claims, and I

decline to exercise supplemental jurisdiction over the state-law

claims. Plaintiff’s request to amend the complaint is denied.

I. Background1

A. The Vehicle Pursuit and Crash

Officers Casimir and Sikora were assigned to the

“anti-crime” unit in the NYPD’s 75th Precinct, serving the

eastern part of Brooklyn. Deposition of Officer Ramil Casimir

(“Casimir Dep.”) 41:11-17, ECF No. 61-10. In the early-morning

hours of December 30, 2017, the officers were on patrol in an

1 The facts in this order are drawn from the parties’ submissions in

connection with the motion for summary judgment, including Defendants’ Local

Rule 56.1 Statement (“Def. 56.1” (ECF No. 57)), and Plaintiff’s opposition to

this statement (“Pl. 56.1” (ECF No. 54)). The facts are viewed in the light

most favorable to Plaintiff. Citations to a party’s Rule 56.1 Statement

incorporate by reference the documents cited therein. For convenience,

Defendants’ supporting memorandum of law will be referred to as “Def. Br.”

(ECF No. 58) and Plaintiff’s opposition submission as “Pl. Opp.” (ECF No.

53).

unmarked NYPD vehicle (a black SUV). Id. at 69:3-21. Officer

Sikora was driving; Officer Casimir was the passenger. Id. at

71:10-11.

At 3:49 a.m., the officers received a report that a

late-model sedan had fled a car stop at Linden Boulevard and

Pennsylvania Avenue in Brooklyn. Id. at 76:13-80:25, 87:9-24.

Shortly thereafter, the officers encountered Pugh’s vehicle and

gave chase. Id. at 97:11-14. According to Casimir, Pugh’s

sedan was traveling at a high rate of speed, running several red

lights before merging onto Grand Central Parkway. Id. at 97:18-

23, 108:21-25. Plaintiff “does not concede” that he ran any red

lights or drove recklessly. See Pl. 56.1 ¶ 14 (noting that

Defendants produced “no red light cameras or corroborating

evidence” for the claim).

In a sworn declaration filed long after his

deposition,2 Plaintiff asserted that he “thought this was a

robbery” because the officers did not identify themselves as

police and the area in which the pursuit occurred, “East New

2 Pugh filed his sworn declaration more than a year after his

deposition, long after the close of discovery, and months after the

Defendants had submitted their summary judgment motion. See Declaration of

James Pugh (“Pugh Decl.”) ¶ 33, ECF No. 62. Through the declaration,

Plaintiff attempted to fill several gaps in his deposition testimony. This

factual recitation relates several of the declaration’s assertions for

context. I conclude below, however, the declaration’s contents should be

disregarded under Second Circuit precedent. See infra Part IV.A.2.a.

York, is known for late night robberies and car jackings.” Pugh

Decl. ¶¶ 12, 13.

Plaintiff’s vehicle then crashed into a guardrail and

light pole in the median strip of the parkway. Casimir Dep.

108:24-109:4 (describing the collision); Deposition of James

Pugh (“Pugh Dep.”) 100:16-17, ECF No. 61-12 (same); see also

Police Accident Report (“Accident Rep.”) at D001-D003, ECF No.

59-17. The air bags deployed. Prehospital Care Report

(“Prehospital Rep.”) at 3, ECF No. 59-7. The parties dispute

the cause of the crash.

1. The Alleged Ramming

Plaintiff’s account of the crash is internally

inconsistent, as discussed more fully below. Part — but by no

means all — of this inconsistency stems from intransigence: at

Plaintiff’s deposition, for example, he answered “I can’t

recall” in response to more than 500 questions, including such

basic questions as “Why were you driving on the Grand Central

Parkway,” see Pugh Dep. 92:8-10; and “You don’t recall anything

that happened on the Grand Central Parkway that night?” Id. at

94:20-22 (A. I can’t recall.). Pugh was not, apparently, happy

to be deposed. E.g., id. at 132:18-24 (Pugh responds to a

question with a question, as follows: Q. Is there a reason why

you cannot recall [whether Pugh was transported to a hospital]?

A: Is there a reason why you are asking me these dumbass

questions?). This behavior continued even after Pugh’s counsel

asked to go off the record for a time to speak with his client.

Id. at 94:22-25.3

In this vein, Plaintiff initially testified that he

had no recollection of anything that occurred that night on the

Grand Central Parkway. See id. at 94:17-95:7. He then

testified, however, that the unmarked police vehicle hit his

car: “Police ran me off the road.” Id. at 95:12. “They were

behind me and no flash, no lights . . . Got on the highway and

boom. They hit me from behind and I spun. Once I spun, I hit

the railing.” Id. at 95:14-21. Later in the deposition, he

testified again that he did not recall whether the officers’

vehicle came into contact with his. Id. at 98:5-7.

Pugh’s testimony was also inconsistent about the

manner in which the officers’ vehicle struck his car. He

initially testified that he did not remember where the officers’

vehicle was in relation to his car prior to impact. See id. at

96:23-24 (Q. What side of your vehicle was the driver [of the

officers’ SUV] on? A. I can’t recall.); id. 98:3-4 (Q. Do you

3 Asked how he got to Brookdale Hospital, Plaintiff answered (falsely):

“I flew there.” Pugh Dep. 133:16-17. At oral argument, Plaintiff’s counsel

said that this posture stemmed from Pugh’s anger about defense counsel having

giggled upon learning of the death of Pugh’s friend, Basheem Graham. See

Transcript of Oral Argument dated July 30, 2021 (“Oral Argument Tr.”) 19:25-

20:13, ECF No. 66. Defense counsel denied “giggling” about that subject

during the deposition. See Pugh Dep. 123:24-124:3. In any event, Pugh had

already answered “I can’t recall” more than 400 times before the colloquy

about Basheem’s death.

remember how your car was crashed? A. I can’t recall.). Pugh

then gave inconsistent answers about where on his car the impact

occurred. Compare id. at 99:24-100:1 (Q. What side of your

vehicle did the black car hit? A. Passenger side.) with 157:24-

158:2 (Q. It is your testimony after speaking to your attorney

that you were hit on the left side of your vehicle? A. Yes.).

Officers Sikora and Casimir, for their part, deny that

their vehicle made contact with Plaintiff’s car at all. Casimir

testified that he and Sikora followed Pugh at a distance and

caught up only after Pugh crashed into the median. Casimir Dep.

102:24-103:20. Casimir testified that he “saw a crash in the

distance,” id. at 120:7; only after he “pull[ed] up directly

behind” Pugh’s car did he see it had “crashed into a guardrail,”

causing a “light pole” to fall “onto an innocent motorist that

was traveling in the same direction.” Id. at 120:8-14.

2. The Alleged Assault

Plaintiff testified that following the crash, two

police officers pulled him from his car, Pugh Dep. 101:13-22,

103:1-15, and brutally beat him: “they just came over to me with

a nightstick, and little black thing they whipped out and

started swinging [and] hitting and I covered up.” Id. at 108:9-

12. Plaintiff attributes the assault to the officers in the

black SUV, but he offers few specifics as to which officer

engaged in any particular conduct (either by name or by the

officers’ descriptions).4

Plaintiff testified that one officer — he did not

remember which beyond the officer’s orientation with respect to

Pugh’s car — punched him in the face. Id. at 110:2-7. He was

beaten on his “legs, my arm, my back. Once they hit me in the

knee, they heard it go crack and they still kept beating,

beating, beating.” Id. at 111:10-13. He testified that he was

struck “50 or 60 times . . . [over] [m]y whole body.” Id. at

112:1-5.

Plaintiff refused, however, to answer most follow-up

questions about the assault at his deposition. He professed (at

times) not to recall the following facts, among many others:

whether the officers wielded one weapon or more than one during

the beating,5 id. at 114:9-10; how he was positioned during the

4 Officer Casimir is black, see Casimir Dep. 11:14-15, and, according to

Plaintiff, Sikora is white. See Pugh Decl. ¶¶ 17-18. Plaintiff says that

after the accident, one officer came to the driver’s side of his car and one

to the passenger side, but he does not remember which officer was which (by

name or description), Pugh Dep. 106:8-107:10; and he could not remember which

officer pulled him out of the car, except that it was the (undescribed)

officer on the driver’s side. Id. at 106:22-107:10. He was also unable to

remember which officer punched him in the face, id. at 110:4-7, or which one

handcuffed him. Id. at 118:15-16.

5 The amended complaint (the “complaint” or “Compl.”) alleges that

Plaintiff “was . . . hit with a retractable metal bar” (singular). Compl.

¶ 16, ECF No. 19. In his deposition, Pugh first asserted that both of the

officers who assaulted him carried weapons. Pugh Dep. 111:7-9. He referred

to those devices alternatively as “a nightstick, and little black thing,” id.

at 108:10, and “the little black sticks.” Id. at 110:17. Then, later in the

deposition, asked whether “it was one or more than one [stick],” he replied

assault, id. at 114:16-21; whether he said anything during the

beating, id. at 114:22-23; whether the officers said anything,

id. at 114:24-25; how long the assault lasted, id. at 115:1-2;

whether and when other officers arrived at the scene, id. at

115:11-13; whether he was intoxicated, id. at 117:3-5; what

happened after the assault, id. at 120:19-21; whether he

complained about his injuries or requested medical care at any

point, id. at 121:3-10, 124:17-23; whether he resisted, id. at

125:11-16; whether he had any bruises as a result of the alleged

beating, id. at 120:5-7; whether he sustained any physical

injuries other than the knee injury, id. at 137:6-9; and whether

he told anyone at the hospital that he had been assaulted. Id.

at 141:18-20.

In his later-filed declaration, however, Plaintiff

professed to recall some of these same details, and he

contradicted other testimony. Most notably, in contrast to his

deposition testimony, Pugh’s declaration attempted to ascribe

particular conduct to one officer or the other with greater

specificity: “I was able to exit [Pugh’s] vehicle on my own and

stand up. Almost immediately after I had stood up both the

white male driver [of the SUV] and the black male passenger

“I can’t recall.” Id. at 114:6-10. Finally, in his later declaration, Pugh

again referred only to a single weapon (a baton): “I was kicked, punched,

kneed and hit with what I believe was a black metal baton . . . . I believe

Ramir [sic] Casimir was the officer who broke my leg with the baton.” Pugh

Decl. ¶ 33.

immediately started attacking me and knocked me to the ground.”

Pugh Decl. ¶¶ 31-32. The declaration named Casimir as the

officer who Plaintiff “believe[d]” “broke my leg with the

baton.” Id. ¶ 33.

Pugh also indicated, among other things, that: he

exited the vehicle on his own (rather than being pulled out),

id. ¶ 31; he was “kicked [and] kneed,” in addition to being

punched, id. ¶ 33; his leg fracture and facial laceration

resulted from the assault, not the crash, id. ¶ 34; he did not

resist the officers, id. ¶ 36; he told the officers he had

broken his leg, id. ¶ 38; an ambulance was on the scene “almost

immediately,” id. ¶ 39; he yelled to the ambulance for help, id.

¶ 40; and he told the officers — prior to being put in their

vehicle — that he could not stand because his leg was broken and

he was in pain. Id. ¶¶ 38, 42-45.

The two NYPD officers both deny that they assaulted

Pugh or that they witnessed any other officer do so. Casimir

Dep. 212:20-213:14; Declaration of Officer Sikora (“Sikora

Decl.”) ¶¶ 13-15, ECF No. 59-22. The officers also stated that,

being assigned to the anti-crime unit, they did not carry

nightsticks or batons. Casimir Dep. 61:10-63:4; Sikora Decl.

¶ 15. Casimir testified that he approached Plaintiff’s vehicle

after the accident, Casimir Dep. 124:15-16, and saw that it was

seriously damaged. Id. at 124:19-20. Plaintiff was attempting

to exit the vehicle from the passenger-side window. Id. at

127:8-128:16. Casimir testified that he “assisted [Plaintiff]

in exiting the vehicle” because Plaintiff was having

difficulties doing so on his own “[d]ue to the severe damage” to

Plaintiff’s car. Id. at 127:22-128:3.

Officer Sikora declared that he attended to the

occupants of another vehicle at the scene, which had been

damaged when the light pole that Pugh hit had fallen onto it.

Sikora Decl. ¶ 7 (“Upon exiting my vehicle, I went to assist the

individuals whose vehicle had the lamp post on top of it.”).

Sikora assisted the occupants of that vehicle while Casimir

assisted Plaintiff out of his vehicle. Id.; Casimir Dep. 129:2-

130:2.

At 3:58 a.m., Officer Casimir arrested Plaintiff for

driving with a suspended license. Casimir Dep. 132:2-4; Arrest

Report, ECF No. 59-21. The officers then transported him to the

75th Precinct. Casimir Dep. 132:2-4. According to Casimir, it

was on route to the precinct that Plaintiff complained for the

first time that his knee hurt. Id. at 145:14-19. Pugh and the

officers arrived at the precinct around ten minutes after they

left the scene of the accident. Id. at 196:11-13.

B. Plaintiff’s Medical Treatment

At approximately 4:17 a.m., the police called

Emergency Medical Services (EMS) to the 75th Precinct.

Prehospital Rep. at 1. At 4:38 a.m., Emergency Medical

Technicians Koehler and LaRocca examined Plaintiff there.

Deposition of EMT Larocca (“LaRocca Dep.”) 10:5-12, ECF No. 59-

8; Prehospital Rep. at 1 (patient contact). Plaintiff had a

“laceration on his face,” and a “deformed” knee. LaRocca Dep.

10:5-16, 58:19-59:8; see also Prehospital Rep. at 3.

LaRocca testified that Plaintiff told the EMTs he had

hurt his face and knee in a car accident. LaRocca Dep. 10:5-12.

LaRocca testified that Plaintiff said he “hit his face on the

steering wheel.” Id. at 13:22-25. The Prehospital Care Report

signed by EMT Koehler records this statement. Prehospital Rep.

at 3 (“ACCORDING TO NYPD PT [PATIENT] HIT LIGHT POLE WITH CAR. .

. . PT STS [STATES] HE HIT HIS FACE ON THE STEERING WHEEL.”).

At no point did Plaintiff tell Emergency Medical Services that

the police assaulted him. LaRocca Dep. 61:10-25; Deposition of

EMT Koehler (“Koehler Dep.”) 31:3-25, ECF NO. 59-9; Prehospital

Rep. at 3. Plaintiff was taken to Brookdale Hospital shortly

before 5:00 a.m. Prehospital Rep. at 1.

The “Inpatient Record” created at Brookdale Hospital

reports that “Per EMS, Pt. was intoxicated” and “slid on black

ice.” Brookdale Records at D249, ECF No. 59-10. Medical staff

detected alcohol, cannabinoid, and opioids in Plaintiff’s

blood. Id. at D0268. Doctor Phillip Harris, one of the

physicians who treated Plaintiff at Brookdale, reported that

Pugh’s “head hit [the] steering wheel and he lost consciousness

+ left knee and face pain.” Id. at D0315.6 Pugh’s tibia was

fractured. Id. at D0275. The record of Plaintiff’s treatment

at Brookdale contains no indication, however, of bruising or

other injuries, aside from the laceration on Pugh’s head and the

tibia fracture. See id. (“No other injuries identified.”).

II. Procedural History

Plaintiff filed a Notice of Claim, through counsel,

with the New York City Comptroller in March 2018. See ECF No.

59-19. The Notice of Claim alleged that Pugh “was attacked by

New York City Police Officers” and “sustained severe injuries

from the attack.” Id. at 1. The notice made no mention,

however, of the accident, or any contact between the police

vehicle and Pugh’s car during the pursuit. Nor did it name

either Casimir or Sikora, at least explicitly; instead, it named

the NYPD and “Jane and John Does 1-10.” Id.

Pugh brought suit in this Court in December 2018. ECF

No. 1. The original complaint alleged that Officer Casimir and

6 The Brookdale records also show that Andrew Hayden, M.D., consulted

with Plaintiff on December 30, 2017 at 9:13 a.m. (about six hours after the

accident). Id. at D0307. Hayden’s notes appear to reflect his conversation

with Pugh personally, as they discuss a prior injury — a gunshot wound — that

Pugh suffered ten years earlier. See id. (“James Pugh is a 43 y.o. male . .

. . Reports GSW [gunshot wound] . . . 10+ yrs ago.”). Pugh did not,

apparently, mention the assault to Doctor Hayden, either: the only sources of

injury reflected are “MVA (motor vehicle accident)” and the “GSW” (the

previous gunshot wound). Id. A number of other doctors and medical

personnel met with Plaintiff; none of them indicated that Plaintiff ever

complained of being assaulted. See id. at D0287-D0306, D0309-D0315.

an unnamed officer perpetrated the assault. Id. ¶¶ 13-14. Like

the Notice of Claim, however, the initial complaint omitted any

allegation that the officers’ vehicle hit Plaintiff’s car. Id.

The initial complaint also did not name Sikora as a defendant or

contain any specific allegations about the SUV driver’s

participation in the assault. See id. ¶¶ 12-32.

Discovery got underway in April 2019. ECF No. 8. In

a scheduling order entered on April 23, 2019, Magistrate Judge

Roanne Mann gave the parties until June 7, 2019 to amend their

pleadings. See ECF No. 9.

On October 28, 2019 — almost five months after that

deadline — Plaintiff sought leave to amend his complaint to

(i) add Officer Sikora as a defendant; (ii) allege that the

officers’ vehicle hit Plaintiff’s car; (iii) name Sikora as one

of the two officers who assaulted him; and (iv) allege that

Sikora was “deliberately indifferent to Mr. Pugh’s injuries and

the denial of his medical services, or [at] the most, directly

involved in Mr. Pugh’s injuries.” ECF No. 13. Judge Mann

denied this application on the ground that Pugh had not shown

good cause for the delay in bringing it or reasonable diligence

under Rule 16 of the Federal Rules of Civil Procedure. ECF No.

16. She added, though, that Plaintiff could amend the complaint

to add Officer Sikora as a defendant if all defendants

consented, id., which they did. ECF No. 17.

Thus, Pugh filed an amended complaint — the complaint

that is currently operative — on November 8, 2019. ECF No. 19.

That complaint includes Sikora’s name in the caption; and as a

“Defendant,” Sikora is named in every count except for Counts

Eight and Nine, which allege supervisory and Monell liability

against the City. Beyond that, however, the complaint simply

names Sikora as a citizen of the United States, a resident of

New York State, and an NYPD officer (sued in his individual and

official capacities). It contains no specific allegations about

his conduct.

The complaint brings claims under 42 U.S.C. § 1983,

alleging excessive force, failure to intervene, deliberate

indifference to medical needs, and supervisory liability in

violation of the Fourth, Eighth, and Fourteenth Amendments.

Compl. ¶¶ 34-43, 67-69.7 The complaint also alleges claims

arising under New York State law, including excessive force in

violation of Article 1, Section 12 of the New York State

Constitution, as well as common-law claims for assault and

battery, intentional infliction of emotional distress,

“negligent retention of employment services,” and negligence.

7 Plaintiff also brings a claim under Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658 (1978). Id. at ¶¶ 70-71.

Id. ¶¶ 44-66. Plaintiff requests, among other things,

compensatory and punitive damages, as well as fees and costs.

Id. at 11-12.

Pugh was deposed on November 15, 2019. See ECF No.

61-12. Casimir was deposed twelve days later. ECF No. 61-10.

EMT LaRocca was deposed in December 2019, ECF No. 59-8, and EMT

Koehler in January 2020. ECF No. 59-9. Plaintiff did not

depose Officer Sikora, but Sikora submitted a timely

declaration. ECF No. 59-22.

In January 2020, just before the close of discovery,

Pugh moved for reconsideration of Judge Mann’s order denying his

application to supplement his complaint with additional facts.

ECF No. 35. Judge Mann denied this request in two subsequent,

written orders. ECF Nos. 36, 39.

Discovery closed on January 31, 2020. ECF No. 39.

Pugh’s declaration, which spans sixty-one paragraphs and makes

extensive new factual claims, did not appear for a long time

thereafter. It is dated January 7, 2021 — nearly a year after

discovery closed.8 ECF No. 62. The declaration’s date is also

approximately fourteen months after Pugh sat for his deposition,

and — importantly — more than four months after the date of

8 Pugh did not actually file the Declaration on ECF until June 30, 2021,

ECF No. 62, but it appears to have been shared with the Defendants in January

of that year.

Defendants’ summary judgment motion (September 1, 2020). ECF

No. 56.

Defendants now move for summary judgment. Id. They

argue: (1) the unnamed defendants should be dismissed based on

Plaintiff’s failure to identify and serve them; (2) Plaintiff’s

excessive force and assault claims against Officers Casimir and

Sikora should be dismissed because he has adduced insufficient

evidence that either was personally involved in the assault;

(3) putting aside who was involved, Plaintiff has not

established a genuine dispute of fact as to whether an assault

occurred at all; (4) Plaintiff failed to identify adequate

evidence that any defendant was deliberately indifferent to his

medical needs; (5) Defendants are entitled to qualified

immunity; (6) the City should be dismissed because Plaintiff did

not adequately establish that the City failed to discipline its

officers pursuant to Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658 (1978); and (7) Plaintiff’s state-law

claims must be dismissed based on his failure to sit for an

examination requested under New York General Municipal Law 50-h

— a condition precedent for the state claims — despite the

examination having been rescheduled five times. See Def. Br. at

1, 24.

III. Summary Judgment Standard

Summary judgment is appropriate if the record

demonstrates 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). “A fact is material for these

purposes if it might affect the outcome of the suit under the

governing law. An issue of fact is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263

F.3d 208, 212 (2d Cir. 2001).9

The movant has the burden of demonstrating the absence

of a question of material fact. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986). If the movant carries its

burden, “the nonmoving party must come forward with admissible

evidence sufficient to raise a genuine issue of fact for trial

in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser

Co., 536 F.3d 140, 145 (2d Cir. 2008). If the non-moving party

fails to do so, the claim must be dismissed. Entry of summary

judgment is appropriate “against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will

9 Unless otherwise noted, when quoting judicial decisions this order

omits all alterations, citations, footnotes, and internal quotation marks.

bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).

“A party may not rely on mere speculation or

conjecture as to the true nature of the facts to overcome a

motion for summary judgment.” Hicks v. Baines, 593 F.3d 159,

166 (2d Cir. 2010). Rather, the opposing party must establish

the dispute of fact by “citing to particular parts of materials

in the record.” Fed. R. Civ. P. 56(c)(1)(A). In doing so, the

nonmoving party “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Jeffreys v.

City of New York, 426 F.3d 549, 554 (2d Cir. 2005). Testimony

that is “wholly fanciful” cannot create an issue of fact.

D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).

IV. Discussion

A. Excessive Force

Police use of force violates the Fourth Amendment when

an officer’s conduct is “objectively unreasonable ‘in light of

the facts and circumstances confronting them, without regard to

their underlying intent or motivation.’” Cruz v. City of New

York, 232 F. Supp. 3d 438, 451 (S.D.N.Y. 2017) (quoting Maxwell

v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004)). “[T]he

right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham v. Connor, 490

U.S. 386, 396 (1989). But it is axiomatic that the gratuitous

use of force against an arrestee violates the Fourth Amendment.

Id. at 395.

And police officers who witness the excessive use of

force are duty-bound to intervene. Under Section 1983, officers

are liable when they breach their “affirmative duty to intercede

on the behalf of a citizen whose constitutional rights are being

violated in [their] presence by other officers.” O’Neill v.

Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988).

Plaintiff asserts two separate instances of excessive

force: first, that Officers Casimir and Sikora used excessive

force against him by “ramming” his car and forcing it off the

road, and second, that they assaulted him with metal batons and

a punch. I take these in turn.

1. The Alleged Collision with Plaintiff’s Car

Neither Plaintiff’s complaint nor his Notice of Claim

alleges that the police hit his vehicle while in motion or

otherwise forced him off the road. Instead, Plaintiff raised

this claim for the first time in a motion to amend (which Judge

Mann denied). See ECF Nos. 13, 14. He then raised this claim

in opposition to this motion for summary judgment. See Pl. Br.

at 2.

A plaintiff may not amend the complaint or alter his

theory of liability in a memorandum of law in opposition to

summary judgment. Lyman v. CSX Transp., Inc., 364 F. App’x 699,

701 (2d Cir. 2010) (“An opposition to a summary judgment motion

is not the place for a plaintiff to raise new claims.” (quoting

5 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND

PROCEDURE § 1183, at 23 n.9 (3d ed. 2004))); see also Greenidge v.

Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) (district

court properly declined to consider a new theory of liability

raised for the first time in opposition to summary judgment);

Porter v. New York Univ. Sch. of L., No. 99-CV-4693, 2003 WL

22004841, at *12 (S.D.N.Y. Aug. 25, 2003), aff’d, 392 F.3d 530

(2d Cir. 2004) (claims raised for the first time in opposition

to summary judgment should be “disregarded”); Heletsi v.

Lufthansa German Airlines, Inc., No. 99-CV-4793, 2001 WL

1646518, at *1 n.1 (E.D.N.Y. Dec. 18, 2001) (observing that “[a]

party cannot amend their complaint simply by alleging new facts

and theories in their memoranda opposing summary judgment”).

Therefore, Plaintiff may not proceed on this theory of

liability.

2. The Alleged Assault

Plaintiff’s remaining case for excessive force is

predicated on the alleged beating after the crash. As noted

above, the Defendants deny that any such assault occurred.

Plaintiff’s case rests entirely on his own deposition testimony

and his later-filed declaration.10

The declaration is not cognizable. “The rule is well-

settled in this circuit that a party may not, in order to defeat

a summary judgment motion, create a material issue of fact by

submitting an affidavit disputing his own prior sworn

testimony.” Trans-Orient Marine Corp. v. Star Trading & Marine,

Inc., 925 F.2d 566, 572 (2d Cir. 1991) (citing cases). This

rule is designed to protect the integrity of the discovery and

summary-judgment processes: “If a party who has been examined at

length on deposition could raise an issue of fact simply by

submitting an affidavit contradicting his own prior testimony,

this would greatly diminish the utility of summary judgment as a

procedure for screening out sham issues of fact.” Perma

Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.

1969); see also 10A Charles Alan Wright & Arthur R. Miller,

FEDERAL PRACTICE & PROCEDURE § 2726.1 (4th ed. 2021) (“An interested

witness who has given clear answers to unambiguous questions

cannot create a conflict and resist summary judgment with an

affidavit that is clearly contradictory, without providing a

satisfactory explanation of why the testimony is changed.”).

10 Plaintiff also cites to a report prepared by a physician opining as

to the cause of his injuries. For the reasons set out in Part IV.A.2.c, this

report is inadmissible.

The detailed recitation of events in Plaintiff’s

declaration directly contradicts his inability (or

unwillingness) to recall basic details of the incident at his

deposition. The declaration therefore cannot be the basis of a

dispute of material fact. See, e.g., Kennedy v. City of New

York, 570 F. App’x 83, 84—85 (2d Cir. 2014) (“We have applied

this principle to affirm a grant of summary judgment against a

party who testified in his deposition that he was unable to

remember a particular fact, and then, in response to a summary

judgment motion, submitted an affidavit claiming a recollection

of events that would have raised an issue for trial.”); Butler

v. Raytel Med. Corp., 150 F. App’x 44, 46 (2d Cir. 2005)

(affirming district court’s dismissal of claims, where later—

filed declaration contradicted plaintiff’s deposition testimony

that he could not remember having complained to anyone at his

company about discrimination); Medure v. Vindicator Printing

Co., 273 F. Supp. 2d 588, 639 (W.D. Pa. 2002) (defendant who

testified “I don’t recall” on issue of importance at deposition

could not meet her “burden on a motion for summary judgment by

submitting a declaration” that “contradicts her deposition

testimony”).

And Pugh has offered no satisfactory explanation for

the disparity. He said nothing at the time he submitted the

declaration following his memorandum in opposition. At oral

argument on the motion for summary judgment, Plaintiff’s counsel

noted that Pugh was upset at his deposition because he believed

that defense counsel had laughed upon hearing of the death of

Pugh’s friend (and passenger on the night in question), Basheem

Graham. See Oral Argument Tr. 19:25-20:13. This explanation is

unavailing, given that Pugh had already answered “I can’t

recall” hundreds of times before the subject of Graham’s death

came up. Indeed, Pugh began responding that he could not recall

very soon after the deposition began. See Pugh. Dep. 9:1-6

(first “I can’t recall” response); 123:17-18 (first reference to

Graham’s passing, more than 100 transcript pages later). And an

explanation from Plaintiff’s attorney would be insufficient,

even if it were credible. See, e.g., Beckel v. Wal-Mart

Assocs., Inc., 301 F.3d 621, 623–24 (7th Cir. 2002) (attorney’s

explanation for the inconsistency in plaintiff’s memory was

merely unsworn argument). The declaration must therefore be

disregarded.

a. Plaintiff’s Testimony About the Assault

Plaintiff’s remaining evidence consists entirely of

his deposition testimony. A plaintiff’s testimony may be enough

to survive summary judgment, even without corroboration, as long

as it is not “simply incredible,” “contradictory and

incomplete,” or “so replete with inconsistencies and

improbabilities that no reasonable juror could credit it.”

Adamson v. Miller, 808 F. App’x 14, 17 (2d Cir. 2020) (cleaned

up) (citing Bellamy v. City of New York, 914 F.3d 727, 746 (2d

Cir. 2019)); see also Jeffreys, 426 F.3d at 554.

As noted above, the Plaintiff did testify to the

assault at his deposition, despite his serial “I can’t recall”

answers. Asked what was the “next thing you recall after

someone gestured to you to pull over,” Plaintiff responded: “Me

getting my ass beat is what.” Pugh Dep. 97:25-98:2. Pugh went

on to testify that unnamed officers “whipped out” a “nightstick,

and little black thing,” after which they “started swinging

[and] hitting and I covered up.” Id. at 108:9-12. Pugh

testified that an officer punched him in the face. Id. at

110:2-3. He was beaten on his “legs, my arm, my back. Once

they hit me in the knee, they heard it go crack and they still

kept beating, beating, beating.” Id. at 111:10-13. He was hit

“50 or 60 times . . . [over] my whole body.” Id. at 111:23-

112:5.

These are gravely serious allegations. As set out

below, however, dismissal is warranted here because Plaintiff’s

account is both “replete with inconsistencies and

improbabilities,” Jeffreys, 426 F.3d at 555, and contradicted by

the medical record. See Davis v. Klein, No. 11-CV-4868, 2013 WL

5780475, at *4 (E.D.N.Y. Oct. 25, 2013).

First and foremost, Pugh has been inconsistent on the

subject of whether any assault occurred at all. His deposition

testimony on this score is contradicted, first, by his

statements to the emergency medical technicians who treated him

after his arrest: Pugh told the EMTs he was injured in the car

crash. EMT LaRocca testified that Pugh made this statement, and

LaRocca’s partner, EMT Koehler, recorded this statement in the

contemporaneous medical record, explicitly attributing it to

Pugh.11 At no point did Plaintiff tell EMS that the police

assaulted him. LaRocca Dep. 61:10-25; Koehler Dep. 31:3-

25; Prehospital Rep. at 3; see Jeffreys v. Rossi, 275 F. Supp.

2d 463, 475–76 (S.D.N.Y. 2003), aff’d sub nom. Jeffreys v. City

of New York, 426 F.3d 549 (2d Cir. 2005) (granting summary

judgment on excessive-force claim because, among other things,

“Jeffreys made no mention of the alleged beating to EMS workers,

doctors [or] nurses”).

Plaintiff attempted to explain the inconsistency

between these statements and his deposition testimony in his

late-filed Declaration, writing that he “didn’t speak to anyone

11 LaRocca testified: “We went to [Pugh], asked him what happened, and

he stated that he was in a car accident and that his knee hurt and then I

could also see that he had a laceration on his face.” LaRocca Dep. 10:8-12.

Asked, “So did anyone tell you how the laceration on his face happened?”

LaRocca testified: “The patient said he hit his face on the steering wheel.”

Id. 13:22-25. The EMTs’ “Prehospital Report” reflects this statement:

“ACCORDING TO NYPD PT [PATIENT] HIT LIGHT POLE WITH CAR. . . . PT STS

[Patient states] HE HIT HIS FACE ON THE STEERING WHEEL.” Prehospital Rep. at

3 (emphasis added).

once the EMTs arrived because I didn’t want to be taken from

help again.” Pugh Decl. ¶ 52. This statement, too, is

inconsistent with the EMTs’ testimony, insofar as the EMTs

testified that Pugh did speak to them.

b. Plaintiff’s Criminal Defense Attorney’s Admission

The record suggests that Pugh also told his own

lawyer, at a later date and in safer confines, that he was

injured in the car accident. Pugh was charged with several

crimes in New York State Supreme Court, Kings County, for his

reckless driving on the night of December 30th: aggravated

unlicensed operation of a motor vehicle; reckless driving;

reckless endangerment; and circumvention of an ignition

interlock device. See Certificate of Disposition, ECF No. 59-

20. He eventually pleaded guilty to aggravated unlicensed

operation in the second degree. Id.

Before Pugh’s conviction, however, Justice Raymond

Rodriguez held a “Dunaway / Huntley” hearing on May 10, 2018 —

more than four months after Pugh’s arrest. The purpose of the

hearing was to determine the admissibility of Pugh’s statements,

made in the aftermath of the accident, that he was in a rush to

get home and that he knew his license was suspended. Criminal

Court Transcript D0957:22-24, D0967:1-4, ECF No. 61-11.12

Officer Casimir testified for the prosecution and was cross-

examined by Pugh’s criminal defense counsel. The parties

discussed Pugh’s car crash at length; no one suggested that the

police had hit Pugh’s car while in motion.13 At the close of the

hearing, the judge referred to Pugh’s having been injured in “a

pretty horrendous car accident” for which he “had to go to the

hospital.” Id. at D0980:19-21. Pugh’s counsel then told the

court that Pugh injured his knee in a car accident: “My client

tells me that . . . he received an injury, he had knee

replacement surgery so he’s still going through physical therapy

as a result of this car accident.” Id. at D0981:9-14 (emphases

added).

This statement is attributable to Plaintiff and

admissible over a hearsay objection. Statements made by an

attorney concerning a matter within his employment are generally

admissible against the client. See United States v. Margiotta,

662 F.2d 131, 142-43 (2d Cir. 1981) (citing Fed. R. Evid.

801(d)). This is because attorneys have “prima facie speaking

12 Casimir testified: “At that point I asked the defendant, is there a

reason why you were driving in such a manner and he stated that he was going

home, in a rush to get home to his kids and that his license was suspended or

bad.” Id. at D0967:1-4.

13 Casimir testified that Pugh’s vehicle came to a stop “[a]fter

colliding with a guardrail and a light pole,” fifty to seventy-five feet in

front of Casimir’s vehicle. Id. at D0965:9-12.

authority to make relevant judicial admissions related to the

management of litigation.” Bensen v. Am. Ultramar Ltd., No. 92-

CV-4420, 1996 WL 422262, at *10 (S.D.N.Y. July 29, 1996).

Statements made by a party’s agent “do not implicate the rule

against hearsay, and are admissible subject to generally

applicable rules involving, e.g., relevance and potential for

unfair prejudice or confusion.” United States v. Demizio, No.

08-CR-336, 2009 WL 2163099, at *3 (E.D.N.Y. July 20, 2009). And

when a party makes a representation in one case that is

inconsistent with a position the same party takes in another,

the later court may consider such inconsistencies. E.g., United

States v McKeon, 738 F.2d 26, 31 (2d Cir. 1984).

The party offering an admission by a party’s agent

under F.R.E. 801(d)(2) must establish: (1) agency; (2) that the

statement was made during the course of the agency; and (3) that

the statement relates to a matter within the scope of the

agency. Pappas v. Middle Earth Condo. Ass’n, 963 F.2d 534, 537

(2d Cir. 1992). Still, the Second Circuit has opined that

admissibility under Rule 801(d)(2) “should be granted freely.”14

14 The directive to admit such statements “freely” applies in the civil

context but not to attorney statements sought to be introduced in criminal

cases. “[C]are must be exercised in the criminal context in determining

under what circumstances attorney statements may be used against a client,”

“because the routine use of attorney statements against a criminal defendant

risks impairment of the privilege against self-incrimination, the right to

counsel of one’s choice, and the right to the effective assistance of

counsel.” United States v. Valencia, 826 F.2d 169, 172 (2d Cir. 1987).

Id.; see also Wechsler v. Hunt Health Sys., Ltd., No. 94-CV-

8294, 2003 WL 22764545, at *2 (S.D.N.Y. Nov. 21, 2003)

(admitting attorney’s statement made in a discovery request

against his client).

An attorney’s statement may be admitted under this

rubric even if made in a relatively informal context. In Lopez

v. Ramirez, for example, after the plaintiff argued that certain

injuries resulted from a 2009 accident, the district court

allowed the defendant to introduce a letter sent by plaintiff’s

attorney to an administrative law judge in a disability

proceeding, wherein the attorney described plaintiff’s injuries

in an earlier — 2007 — accident. No. 11-CV-0474, 2019 WL

3779277, at *11 n.12 (S.D.N.Y. Aug. 12, 2019). In Bensen,

supra, 1996 WL 422262, at *6-14, the court admitted certain

attorneys’ statements — made in a memorandum summarizing an

“informal meeting” and elsewhere — as admissions of the client.

Id. at *10-11.15 If anything, the circumstances here favor

admission even more heavily than in those cases: Pugh’s criminal

attorney’s counsel made the statement on the record, with a

These Fifth and Sixth Amendment rights are not, of course, implicated in the

instant civil case. Moreover, even in the criminal context, “the trial judge

must be accorded considerable discretion in determining the application of

Rule 801(d)(2) to statements of an attorney offered by the prosecutor against

a criminal defendant.” Id. at 173.

15 The court later excluded certain of the statements contained in the

memorandum and documents “to the extent they contain[ed] lawyers’ opinions on

legal issues” under Rules 403 and 701 of the Federal Rules of Evidence. See

id. at *12-14.

court reporter present, in a criminal case, and in Pugh’s

presence. See id. at *11 (according weight to the fact that

client was present at meeting where attorney made the statement

sought to be introduced); cf. Valencia, 826 F.2d at 173 (facts

that statement was “not made in court” and not transcribed

weighed against admissibility in criminal case).16

Plaintiff’s statement to his criminal defense attorney

supports summary judgment. In Jeffreys v. Rossi, for example,

the court granted summary judgment to police-officer defendants

in an excessive force case, based in part on the fact that the

plaintiff had failed to mention the alleged beating in his

criminal case. 275 F. Supp. 2d at 470. Judge Scheindlin noted

that “the criminal record [was] devoid of any allegations of

police misconduct” and that while she could not “rule out the

possibility that Jeffreys told his defense counsel about the

alleged beating, I can think of no reason why, if he had,

[counsel] would not have used that information during the course

of the criminal proceedings.” Id. at 476.

c. Other Inconsistencies

Plaintiff contradicted his deposition testimony on

other subjects as well. These include the manner in which he

16 See supra note 14 (noting the different considerations that apply

when attorney statement is sought to be admitted against defendant in a

criminal case).

exited his car after the crash. At his deposition, Pugh was

adamant that the police officers dragged him out of his car:

“after the bump [i.e., the police SUV hitting his back bumper],

I crashed into the divider. When I crashed into the divider,

the police ran to the car and pulled us out of the car and beat

me.” Pugh Dep. 101:15-18 (emphasis added). Pugh testified that

he was wearing a seat belt and his body “stayed exactly where it

was” after the accident until “I was dragged out of the car.”

Id. at 102:15-22. Counsel asked: “when you say you were dragged

out of the car, who dragged you out of the car?” Pugh

responded: “The police.” Id. at 102:23-25. In his declaration,

though, Pugh contradicted this testimony (again without

explanation). He stated that after the car crash, “I was able

to exit the vehicle on my own and stand up.” Pugh Decl. ¶ 31.

Plaintiff also contradicted himself regarding the

number of weapons the officers wielded during the alleged

assault. See note 5, supra (complaint alleges one “retractable

metal bar”; in deposition testimony, Plaintiff first referred to

multiple weapons and then said he could not recall if it was one

or more; and in the later declaration, he referred again to a

single weapon).

d. Medical Records

Perhaps even more problematic, however, are the

medical records in this case. Given that they show no

indications of bruising, these records “directly and irrefutably

contradict” Pugh’s claim of excessive force. Davis, 2013 WL

5780475, at *4.

Although credibility determinations are generally not

appropriate on summary judgment, district courts may grant

summary judgment where medical records undercut a Plaintiff’s

testimony. Vega v. Rell, 611 F. App’x 22, 25–26 (2d Cir. 2015)

(affirming district court’s grant of summary judgment on

excessive-force claim where “uncontroverted medical records

undercut each” of plaintiff’s “counter-assertions of fact”);

Henry v. Brown, 406 F. Supp. 3d 211, 214 (E.D.N.Y. 2016)

(listing cases); Felder v. Diebel, No. 10-CV-343, 2012 WL

6690239, at *5 (W.D.N.Y. Dec. 21, 2012) (granting summary

judgment where plaintiff’s medical records “indicate no signs of

injuries consistent with his allegations”).

Davis v. Klein illustrates how medical records can

overcome a plaintiff’s testimony at summary judgment.

In Davis, the plaintiff claimed that police officers “threw him

up against a wall and kicked and punched him repeatedly in the

head, face and back.” 2013 WL 5780475, at *1. The plaintiff

received medical attention on the same night. Id. The court

reviewed the medical records from this treatment and concluded

that they were “wholly inconsistent with and offer[ed] no

support for the type of brutality that Davis allege[d].” Id.

Citing the Second Circuit’s holding in Jeffreys, 426 F.3d at

552, the court held:

the hospital records from the evening of Davis’s

arrest demonstrate that, at most, Davis had minor

soreness in his wrist. If officers had repeatedly

punched plaintiff during the arrest and booking

process, as he alleges, it is simply not believable

that the hospital records would indicate that Davis

had “no skin abrasions” and that his facial

appearance was “normocephalic and atraumatic.” These

medical records, bluntly, directly contradict the

version of facts plaintiff gave in his complaint as

well as in his deposition.

Id. at *4.

Other courts have granted summary judgment when no

reasonable jury could credit plaintiff’s account of excessive

force. See, e.g., Jenkins v. Town of Greenburgh, No. 13-CV-

8845, 2016 WL 205466, at *5 (S.D.N.Y. Jan. 14, 2016) (granting

defendants’ motion for summary judgment on excessive-force claim

where medical records made no mention of plaintiff’s alleged

thumb injury and where only evidence supportive of that claim

was plaintiff’s own deposition testimony); Jimenez v. City of

New York, No. 14-CV-2994, 2015 WL 5638041, at *6 (S.D.N.Y. Sept.

24, 2015); Bove v. City of New York, No. 98-CV-8080, 1999 WL

595620, at *6 (S.D.N.Y. 1999) (granting summary judgment where

the record contained no physicians’ affidavits or hospital

records “to substantiate that the plaintiff’s current ailments

exist, let alone that the alleged ‘beating’ by the NYPD was the

proximate cause of these injuries”).

Here, the treatment records render Plaintiff’s

testimony incredible. As in Davis, it is inconceivable that the

beating to which Plaintiff testified — fifty to sixty blows, all

over his body, with a metal baton (or multiple metal weapons) —

would leave no trace of bruising. But the medical record

reflects no such trace: the only injuries Plaintiff reported, or

medical personnel observed, were the laceration to his head and

the fractured knee. The EMTs’ Prehospital Care Report reflects

those two injuries, Prehospital Rep. at 2, and no others. On

the contrary, the EMTs’ report memorializes that Pugh’s “Skin

Color” and “Skin Condition” were both “Normal.” Id.; see also

id. at 3 (“SKIN CTC [color, temperature and condition] NORMAL”).

Likewise, the extensive medical records — nearly sixty

pages — compiled during Plaintiff’s week-long stay at Brookdale

Hospital reflect no bruising on Plaintiff’s body or cuts beyond

the laceration on Plaintiff’s forehead. The “ED Notes”

(emergency department notes) recorded by Sena Gong, M.D., at

intake state: “At present, Pt reports facial pain and left knee

pain.” Brookdale Records at D0250 (ED Provider notes dated

December 30, 2017). Notes taken by Muhammed Aman, M.D., a

trauma surgeon, on the morning of January 1, 2018 — less than

thirty-six hours after Pugh’s arrest — reflect the tibial

fracture, Plaintiff’s alcohol levels in the MVA (motor vehicle

accident), and multiple “retained foreign bodies” from a

previous gunshot wound, but state explicitly: “No other injuries

identified.” Id. at D0275. Likewise, the Physician Discharge

Summary dated January 7, 2018 reflects that Plaintiff initially

presented with “[s]mall bleeding coming from the forehead

lac[eration],” but that his head was “[n]ormocephalic” and

“atraumatic”; that his “[s]kin color, texture, [and] turgor”

were all “normal”; and that Plaintiff had “no . . . lesions.”

Id. at D0256-D0258. This total absence of corroboration

militates in favor of summary judgment. Jeffreys, 275 F. Supp.

2d at 475-78; see Davis, 2013 WL 5780475, at *4 (plaintiff’s

claim of brutal assault undermined by medical records indicating

he was normocephalic, atraumatic, and presented with no skin

abrasions); Bove, 1999 WL 595620, at *6 (granting summary

judgment where, “[a]lthough the plaintiff complained of having

been kicked in the shoulder and elsewhere, no bruises were

found”).

Plaintiff appears to suggest, in his summary judgment

brief in opposition and Local Rule 56.1 Statement, that the

medical personnel simply failed to document the results of the

beating — both the EMTs who triaged him and the doctors at

Brookdale Hospital. See Pl. Br. at 16;17 Pl. 56.1 ¶¶ 64-65

17 Plaintiff’s brief states: “As for the Defendants’ claims that the

medical records do not support Mr. Pugh’s version of events, the records are

fraught with inconsistencies themselves, outright fabrications . . . .” Id.

(Plaintiff “[d]oes not concede to the reliability of the medical

records”). But Plaintiff’s bald assertion that the medical

records are “fabrications” is insufficient to create an issue of

fact. See Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 469–70

(S.D.N.Y. 1998) (granting summary judgment where medical records

contained no indication of the injuries plaintiff claimed, and

“Plaintiff offers no reasonable basis for disbelieving his

medical records, but only asserts that his medical records are

inaccurate”) (citing Candelaria v. Coughlin, 787 F. Supp. 368,

374 (S.D.N.Y.), aff’d, 979 F.2d 845 (2d Cir. 1992)). Here, too,

Plaintiff offers no reasonable basis on which to conclude that

the medical records (two sets of them, produced by multiple,

unrelated parties — the EMTs and then the hospital personnel)

omitted such critical evidence.

These contradictions — both Plaintiff’s contradiction

of his own testimony, and the extrinsic contradictions in the

medical records and elsewhere — are a basis for dismissal. As

then-Judge Sotomayor wrote when granting summary judgment in

Shabazz, “when the facts alleged are so contradictory that doubt

is cast upon their plausibility, [the court may] pierce the veil

of the complaint’s factual allegations . . . and dismiss the

claim.” 994 F. Supp. at 470; see also, e.g., Juarbe v.

Plaintiff does not identify these alleged inconsistencies, however, and (more

importantly) has not adduced any evidence to suggest that the medical records

are the product of fabrication.

Carnegie, No. 15-CV-1485, 2018 WL 3121635, at *8 (N.D.N.Y. Feb.

16, 2018), report and recommendation adopted, No. 15-CV-1485,

2018 WL 1441331 (N.D.N.Y. Mar. 22, 2018) (granting summary

judgment where, “given plaintiff’s changing version of the

relevant events, his assault conviction, and particularly his

statement, shortly after the incident, to the effect he did not

remember what occurred, . . . the evidence supporting his claims

is too incredible to be believed by reasonable minds”) (cleaned

up); Schmidt v. Tremmel, No. 93-CV-8588, 1995 WL 6250, at *3

(S.D.N.Y. Jan. 6, 1995) (“No reasonable person would undertake

the suspension of disbelief necessary to give credit to the

allegations made in [the plaintiff’s Bivens] complaint or in her

subsequent missives to the court.”).

Plaintiff attempts to salvage the assault allegation

by proffering the expert report of Dr. Mark McMahon, addressed

to Plaintiff’s counsel and dated December 27, 2019. ECF No 61-

14 (“McMahon Rep.”). Dr. McMahon’s report describes Pugh’s

injuries from the night of December 30, 2017 (for example, Pugh

had an “episode of loss of consciousness due to his head

striking the steering wheel,” a “laceration on his left

forehead,” and a “displaced fracture involving the medial and

lateral tibial plateaus”). Id. at 1. He describes other

aspects of Pugh’s medical history (an “old fracture of the

patella with retained shrapnel”; “bullet fragments in the

pelvis”; “large traverse forehead laceration as a result of a

motorcycle accident 17 years ago”). Id. at 2-3. He describes

Pugh’s continuing symptoms (“ongoing pain” in the left knee that

“is worse with weather changes and worse with movement”). Id.

at 3. He reports the observations of an examination (extension

strength and flexion strength). Id. at 4. And then, without

any apparent analysis or description of method, he sets forth

his conclusion on “Causation”: “In all likelihood,” he says,

the knee fracture “occurred as a result of the car accident and

the blows to the knee.” Id. Dr. McMahon says nothing at all

about why the fracture might be more consistent with a car

accident, baton assault, or combination of the two, other than

to refer (in passing) to the “magnitude” of the injury. Id.

Dr. McMahon’s report and conclusion are inadmissible

under Rule 702 of the Federal Rules of Evidence and Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Those

authorities dictate that a trial court must evaluate an expert’s

opinions and methodology for reliability and relevancy. The

expert’s assertions must be grounded in the methods and

procedures of science and must amount to more than “subjective

belief or unsupported speculation.” Daubert, 509 U.S. at 590.

To be found reliable, expert testimony and the scientific

evidence on which it is based must have “a traceable, analytical

basis in objective fact.” Bragdon v. Abbott, 524 U.S. 624, 653

(1998); see Sweet v. Electronic Data Systems, Inc., 1996 WL

204471, at *6 (S.D.N.Y. Apr. 26, 1996) (expert’s conclusory

allegations, “absent a statement of the facts upon which they

are based, are as insignificant as the conclusory allegations of

a party, his attorney, or any other witness”). An expert must

explain “how and why he reached his conclusion,” Prohaska v.

Sofamor, S.N.C., 138 F. Supp. 2d 422, 437–38 (W.D.N.Y. 2001);

courts do not credit opinions “connected to existing data only

by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522

U.S. 136, 146 (1997). The burden is on the proponent of the

testimony to establish its admissibility by a preponderance of

proof. See Daubert, 509 U.S. at 592 n. 10; Reed Const. Data

Inc. v. McGraw-Hill Cos., 49 F. Supp. 3d 385, 398 (S.D.N.Y.

2014), aff’d, 638 F. App’x 43 (2d Cir. 2016) (“The burden is on

the proponent of the expert’s testimony to prove that it is

admissible.”).

Dr. McMahon provides nothing beyond his conclusory

statement of the cause of Plaintiff’s injury. To the extent he

is simply relying on his experience, he is obliged to “explain

how that experience leads to the conclusion reached, why that

experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.” Pension Comm. of

Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 691 F.

Supp. 2d 448, 473 n.148 (S.D.N.Y. 2010) (quoting Fed. R. Evid.

702 advisory committee’s note). “The trial court’s gatekeeping

function requires more than simply taking the expert’s word for

it.” Piepes v. NAI Ent. Holdings LLC, 394 F. Supp. 3d 315, 318

(E.D.N.Y. 2019) (quoting Fed. R. Evid. 702 advisory committee’s

note). For that reason, the Court is constrained to exclude Dr.

McMahon’s report. See id. (“An unexplained opinion — because it

makes it impossible to conduct any Daubert inquiry — is per se

inadmissible.”).

* * * * *

For all these reasons, this case implicates the

Supreme Court’s directive that “when opposing parties tell two

different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of

ruling on a motion for summary judgment.” Scott v. Harris, 550

U.S. 372, 380 (2007). Summary judgment is granted in favor of

Defendants on the excessive force and failure to intervene

claims.18

18 Plaintiff adduced insufficient admissible evidence that Officer

Sikora was present at the scene during the alleged assault, and therefore the

excessive force claim against him is dismissed on that ground as well. See

Corley v. Shahid, 89 F. Supp. 3d 518, 523 (E.D.N.Y. 2015) (police officer is

“personally involved” in the use of excessive force if he “(1) directly

participates in an assault; or (2) was present during the assault, but did

not intervene on behalf of the victim even though he had a reasonable

opportunity to do so”).

B. Deliberate Indifference to Medical Needs

Pugh contends that the officers demonstrated

“deliberate indifference” to his medical needs in the delay of

his medical treatment. Claims of delayed medical treatment made

by arrestees are addressed under the Due Process Clause of the

Fourteenth Amendment. Weyant v. Okst, 101 F.3d 845, 856 (2d

Cir. 1996); see also Goodwin v. Kennedy, No. 13-CV-1774, 2015 WL

1040663, at *7 (E.D.N.Y. Mar. 10, 2015) (applying the deliberate

indifference standard of the Due Process Clause of the

Fourteenth Amendment to arrestees’ denial of medical treatment

claims). Where a claim concerns a temporary delay in the

provision of medical treatment, the focus is on the “particular

risk of harm faced by a [detainee] due to the challenged

deprivation of care” rather than the detainee’s “underlying

medical condition, considered in the abstract.” Smith v.

Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (emphasis added);

Edmonds v. Cent. N.Y. Psychiatric Ctr., No. 10-CV-5810, 2011 WL

3809913, at *4 (S.D.N.Y. Aug. 25, 2011). In order to prevail, a

plaintiff must show that his condition actually worsened as a

result of the delay. See Smith, 316 F.3d at 186; Frith v. City

of New York, 203 F. Supp. 3d 386, 390 (S.D.N.Y. 2016) (denial of

medical treatment standard not met where plaintiff alleged a

one-day delay in treatment, but not “that the delay itself

caused or exacerbated [his] infection, caused him extreme pain,

or caused any permanent harm”); Rodriguez v. City of New York,

802 F. Supp. 2d 477, 482 (S.D.N.Y. 2011) (granting summary

judgment on deliberate-indifference claim where plaintiff

“present[ed] no evidence that his condition worsened as a result

of the three-day delay between his request and receipt of

medical attention”). In the alternative, a plaintiff may

recover for deliberate indifference if the delay is “very

likely” to result in future harm. Helling v. McKinney, 509 U.S.

25, 32-33 (1993).

Here, Plaintiff’s deposition testimony is muddled on

the question of when he raised medical concerns and what he told

the officers. It is uncontested, however, that Plaintiff

complained about his knee at some point during the drive from

the site of the accident to the precinct. See Casimir Dep.

145:14-146:3. Plaintiff appears to allege that the delay

between (a) the time the officers knew the severity of his

injuries and (b) the arrival of the EMTs at the police precinct

was the product of deliberate indifference to his medical needs.

See Compl. ¶¶ 20-22, 37; see also Pl. Br. at 17. The

uncontested record establishes that this delay lasted no longer

than one hour. Accident Rep. at D001 (accident occurred at

approximately 3:58 a.m.); Prehospital Rep. at 1 (EMS arrived at

4:33 a.m.)

Plaintiff has adduced no evidence whatsoever that his

condition actually worsened as a result of this delay. See

Smith, 316 F.3d at 186. (Dr. McMahon does not address the

question.) Nor does Plaintiff contend that he is “very likely”

to suffer as-yet undiscovered future harm. Helling, 509 U.S. at

33.

Plaintiff did testify that he complained about his

knee prior to the EMTs’ arrival, though he was inconsistent on

this topic as well. See Pugh Dep. 101:19-20 (“When they got me

in the patrol car, I explained about my knee and they told me to

shut up.”); but see id. at 108:14-16 (“They took me away to the

precinct [after the assault] and that is when I complained to

the sergeant and captain about my leg.”) (emphasis added);

121:3-5 (Q. Any point of time, did you make any complaints

regarding your knee? A. I can’t recall.). “Extreme” pain can

give rise to deliberate-indifference liability when it is left

untreated for a significant period of time or degeneration is

likely. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)

(plaintiff must show “that the alleged deprivation [is]

sufficiently serious in the sense that [it is] a condition of

urgency, one that may produce death, degeneration, or extreme

pain”); see Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.

1998) (six-month delay in treatment for a dental condition that

led to infection and extreme pain sufficiently serious).

Here, the only record evidence that Pugh reported the

severity of his pain concerns the time period after the EMTs’

arrival. Prehospital Rep. at 3 (“PT STS [PATIENT STATES] PAIN

IS 8 OUT OF 10”). Moreover, the record shows that the police

called an ambulance nineteen minutes after the accident. See

Accident Rep. at D001 (accident occurred at 3:58 a.m.);

Prehospital Rep. at 1 (EMS called at 4:17 a.m.); Pugh Dep.

101:19-20 (“When they got me in the patrol car [in between these

two events], I explained about my knee.”). The record reveals

no reason to believe that the officers could have acted

significantly sooner, especially in light of the uncontested

fact that Pugh’s crash resulted in damage to a third party’s

vehicle, as well. See Rodriguez v. Mercado, No. 00-CV-8588,

2002 WL 1997885, at *9 (S.D.N.Y. Aug. 28, 2002) (noting that

patients “seeking care for a non-life-threatening injury

generally experience[] some delay in receiving treatment” and

finding no constitutional violation based on an eight- or nine-

hour delay).

In sum, the facts here fall short of those in cases in

which courts have found an objectively serious injury. See,

e.g., Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir. 1990),

overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63

(2d Cir. 2009) (deliberate indifference liability generally

reserved for occasions where officials ignored a “life-

threatening and fast-degenerating” condition); cf. Villafane v.

Sposato, No. 16-CV-3674, 2017 WL 4179855, at *20 (E.D.N.Y. Aug.

22, 2017), report and recommendation adopted, No. 16-CV-3674,

2017 WL 4157220 (E.D.N.Y. Sept. 15, 2017) (deliberate

indifference found where the delay “forced [doctors] to rebreak

Plaintiff’s arm and install metal plates and screws”). This

claim is therefore dismissed. See Walker v. Kubicz, 996 F.

Supp. 336, 341 (S.D.N.Y. 1998) (prison doctors’ failure to treat

and diagnose prisoner’s pneumonia was not deliberate

indifference; plaintiff’s treatment was delayed by only one day

and he was given emergency care once aware his symptoms were

serious).

C. Monell and Supervisory Liability

The failure to establish any individual defendant’s

liability requires the dismissal of Plaintiff’s municipal and

supervisory claims. “[W]hen a plaintiff lacks any underlying

claim of a deprivation of a constitutional right, the claim of

municipal liability on the part of the municipal defendant must

be dismissed as well.” Lener v. Hempstead Public Schs., 55 F.

Supp. 3d 267, 283 n.14 (E.D.N.Y. 2014) (citing Segal v. City of

New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Because the

district court properly found no underlying constitutional

violation, its decision not to address the municipal defendants’

liability under Monell was entirely correct.”)); see also

Raspardo v. Carlone, 770 F.3d 97, 128 (2d Cir. 2014) (where

there is no underlying constitutional violation there can be no

supervisory liability); Stewart v. Schiro, No. 13-CV-3613, 2015

WL 1854198, at *16 (E.D.N.Y. Apr. 22, 2015) (“The court has

already determined that Plaintiff failed to demonstrate an

underlying constitutional violation . . . . Therefore, the

Monell claim necessarily fails.”); Elek v. Inc. Village of

Monroe, 815 F. Supp. 2d 801, 808 (S.D.N.Y. 2011) (“Absent an

underlying constitutional violation, there is no cognizable

claim for supervisor liability.”). Here, Plaintiff seeks to

hold the City liable for a failure to discipline the defendant

officers. Because the officers are entitled to summary judgment

as to their individual liability, the Monell and supervisory

liability claims are dismissed.

D. Leave to Amend

Finally, Plaintiff seeks to amend his complaint to add

facts related to Officer Sikora. Magistrate Judge Mann

previously denied this exact request twice. Plaintiff’s attempt

to challenge Judge Mann’s ruling through this renewed

application is, once again, denied because he has not shown good

cause for the delay in bringing it.

Plaintiff’s request to amend the complaint is governed

by Rules 15 and 16 of the Federal Rules of Civil Procedure. See

Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 243 (2d

Cir. 2007). The deadline to amend – June 7, 2019 – was set out

in the Court’s scheduling order of April 23, 2019. ECF No. 9.

Since Plaintiff’s request to amend comes long after the deadline

instituted, the Plaintiff must show good cause for his delay.

See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d

Cir. 2000). Judge Mann held that Plaintiff had not shown good

cause to modify her order then, see ECF Nos. 16 (minute entry

and order for proceedings held on November 4, 2019), 32

(transcript of proceedings held on November 4, 2019); nor has he

done so now.

Plaintiff previously contended that he did not know

that Officer Sikora was driving the vehicle that allegedly

struck him until the deposition of Officer Casimir on November

27, 2019, but that information was provided on April 23, 2019.

See Transcript of Proceedings held on November 4, 2019 5:2-

11:19, ECF No. 32. Judge Mann concluded that Defendants had

identified Officer Sikora as a witness with knowledge of the

incident as of April 2019 and Plaintiff simply failed to either

amend or to clarify Officer Sikora’s role in the incident. Id.

Furthermore, Plaintiff filed a letter with the Court on June 28,

2019, stating he was considering adding Sikora to the caption,

but then failed to file an actual motion to amend for four

additional months. Id. at 11:4-19; see Mathis v. United Homes,

LLC, 607 F. Supp. 2d 411, 437 (E.D.N.Y. 2009) (court “may deny a

motion to amend when the movant knew or should have known of the

facts upon which the amendment is based when the original

pleading was filed”). Accordingly, Judge Mann properly

concluded that Plaintiff had not shown good cause for his

failure to amend within the time allotted. Transcript of

Proceedings held on November 4, 2019.

There would be substantial prejudice to Defendants in

granting Plaintiff’s late request. See, e.g., Werking v.

Andrews, 526 F. App’x. 94, 96 (2d Cir. 2013) (“We are

particularly likely to find prejudice where the parties have

already completed discovery and the defendant has moved for

summary judgment.”); Ansam Assocs., Inc. v. Cola Petroleum,

Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (affirming denial of

motion to amend as “especially prejudicial given the fact that

discovery had already been completed and [the defendant] had

already filed a motion for summary judgment”). Plaintiff

initiated this action over two-and-a-half years ago and

discovery has long since concluded. To allow Plaintiff to amend

the complaint again now, after years of litigation, would work

substantial prejudice.

Finally, this proposed amendment would be futile, in

light of the contradictory evidence set forth above.19

V. Conclusion

For the foregoing reasons, Defendants’ motion for

summary judgment is granted as to each of the federal claims.

Plaintiff’s motion for leave to amend the complaint is denied.

The Court declines to exercise supplemental jurisdiction over

the state-law claims. The Clerk of Court is respectfully

directed to enter judgment and close this case.

SO ORDERED.

/s/ Eric Komitee_________________

ERIC KOMITEE

United States District Judge

Dated: September 29, 2021

Brooklyn, New York

19 Plaintiff’s claims against the John Doe defendants are also dismissed

because he has proffered insufficient evidence of a constitutional injury or

their personal involvement therein – an argument he appears to concede. See

Pl. Br. at 19; see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“It

is well settled in this Circuit that personal involvement of defendants in

alleged constitutional deprivations is a prerequisite to an award of damages

under § 1983.”). It is also well settled that when “discovery has closed”

and unnamed defendants remain unidentified, “the proper course is to dismiss

the John Doe Defendants.” Cox v. Village of Pleasantville, 271 F. Supp. 3d

591, 618 (S.D.N.Y. 2017). Here, given the Plaintiff’s failure of proof on

whether assault occurred at all, that dismissal must be with prejudice.