Benny v. The City of Long Beach

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RICKY JOSHUA BENNY,

PLAINTIFF,

MEMORANDUM AND ORDER

-against-

20-CV-1908 (KAM)(ST)

THE CITY OF LONG BEACH, THE LONG

BEACH POLICE DEPARTMENT, POLICE

OFFICER JOSEPH WIEMANN, POLICE

OFFICER ROCCO WALSH and OFFICERS

JOHN DOES 1-10,

Defendants.

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MATSUMOTO, United States District Judge:

On April 24, 2020, Plaintiff Ricky Joshua Benny (“Mr.

Benny”) filed a complaint against the City of Long Beach

(“City”), the Long Beach Police Department (“LBPD”), and

individual Defendants Police Officer Joseph Wiemann, Police

Officer Rocco Walsh, and Officers John Does 1-10 (collectively,

“Defendants”) pursuant to 42 U.S.C. §§ 1981 and 1983, alleging

violations of the First, Fourth, Fifth, Sixth, and Fourteenth

Amendments, and New York law. (ECF No. 1, Complaint

(“Compl.”).) On September 23, 2021, this Court dismissed the

City of Long Beach and the Long Beach Police Department as

defendants, as well as the § 1981 claim. Mr. Benny’s claims of

false arrest, malicious prosecution, abuse of process,

fabrication of evidence, excessive force, failure to intervene,

racial discrimination, and a deprivation of his First Amendment

right to free speech remain. (See id. ¶¶ 15, 18, 23, 32, 36,

104.)

Defendants now seek summary judgment, asserting that

they are entitled to judgment on the remaining claims, and

alternatively, that they are entitled to qualified immunity for

acting as reasonable police officers when arresting and using

force against Mr. Benny, and allegedly causing physical

injuries. Mr. Benny counters that he should not have been

arrested, subjected to excessive force and ongoing abuses of

process, which he contends were due to his race and his video

recordings of Defendants on the night of his arrest. This Court

has reviewed three videos that Defendants and Mr. Benny have

submitted of the circumstances leading to, and during, Mr.

Benny’s arrest on December 8, 2018.

For the reasons set forth below, the Defendants’

motion for summary judgment is GRANTED in part and DENIED in

part.

BACKGROUND

I. FACTUAL BACKGROUND

A. The Parties’ Submissions

Defendants filed a statement of material facts that

purportedly are not in dispute, pursuant to Local Civil Rule

56.1. (ECF No. 44-7, Defs. Rule 56.1 Statement.) Defendants’

“statement of material facts . . . required to be served by the

moving party will be deemed to be admitted for the purposes of

the motion unless specifically controverted by a correspondingly

numbered paragraph in the statement required to be served by the

opposing party” pursuant to Local Civil Rule 56.1(c).

Defendants support their 56.1 Statement with admissible

evidence, but do not provide any affidavits or declarations from

the Defendant officers themselves. Mr. Benny filed the required

counter statement and declarations of himself and his counsel,

deposition excerpts and other exhibits in opposition to

Defendants’ motion for summary judgment. (ECF No. 45-1, Pl.

Rule 56.1 Counter Statement; ECF. No. 45-2, Pl. Decl. in Opp’n.)

In support of their summary judgment motion, along

with their Rule 56.1 Statement and exhibits, which this Court

recounts for completeness, the Defendants also provide three

video recordings which the parties agree depict the incident on

December 8, 2018, taken by others with Mr. Benny. (ECF No. 44-

3, Defs. Mot. for Summ. J., Exhibit A – C (individually “Exhibit

A”, “Exhibit B”, and “Exhibit C”).) Defendants’ counsel, Mr.

Howard Miller (“Mr. Miller”), filed an affirmation to which he

annexed three video exhibits, and designated the Exhibits as

follows: Exhibit A is “a copy of a video recording that was

provided to me by Mr. Benny’s counsel,” Exhibits B and C are

“two additional videos provided to me by the Corporation Counsel

of the City of Long Beach that show the incident recorded in

Exhibit ‘A’ from slightly different angles,” and Exhibit D

contains “exhibits of Mr. Benny’s examination pursuant to

Section 50-h of the General Municipal Law.” (ECF No. 44-2,

Affirmation of Howard Miller, Esq., ¶¶ 2-4 (“Miller Aff.”).)

Defendants’ counsel, Mr. Richard Finkel (“Mr. Finkel”), also

filed an affirmation to which he annexed Exhibit “E,” described

as “a copy of the portion of Mr. Benny’s 50-h transcript cited

in Defendants’ Reply Memorandum of Law.” (ECF No. 46-2,

Affirmation of Richard Finkel, Esq. (“Finkel Aff.) at ¶¶ 2, 3.)

In opposition to Defendant’s motion, Mr. Benny’s

counsel, Mr. Frederick Brewington (“Mr. Brewington”) submitted a

declaration, identifying video Exhibit A1 as a video that Mr.

Benny provided to him, which Mr. Brewington then provided to

defense counsel. (ECF No. 45-3, Declaration of Frederick

Brewington, Esq. in Opposition to Defs. Mot. for Summ. J.

(“Brewington Decl. in Opp’n.”) at ¶ 3.) Mr. Brewington states

the Exhibit A video “contains the fullest depictions of the

events giving rise to Mr. Benny’s claims” and is a “true and

accurate recording of Mr. Benny’s arrest.” (Id. at ¶¶ 4-7.)

Mr. Brewington also submitted photos of Mr. Benny following his

release by the police, medical records pertaining to Mr. Benny’s

1 The videos identified as Exhibit A to the Brewington Declaration and as

Exhibit A to the Miller Affirmation are identical, though Mr. Brewington

labeled the actual video file, “File 1,” in Plaintiff’s submissions to the

Court. The Court will refer to the video as Exhibit A.

injuries and treatment rendered following his release, the

decision and order from the Hon. William Miller, Long Beach City

Court Judge, and the accusatory instruments Defendants filed

against Mr. Benny. (Id. at ¶¶ 7-11.)

In reviewing the parties’ Rule 56.1 statements, the

Court has considered and relies on the undisputed facts, and the

three video recordings which the parties agree depict the

December 8, 2018 incident giving rise to the action. Because

this Court relies on the video evidence in deciding Defendants’

instant motion, the Court will also recount the videos for

completeness, including portions that contradict the parties’

accounts of the night. Where facts, even with the available

video evidence, are in dispute, the Court considers the facts in

the light most favorable to Mr. Benny, the nonmoving party,

while resolving all reasonable inferences and ambiguities

against the moving party. See Flanigan v. Gen. Elec. Co., 242

F.3d 78, 83 (2d Cir. 2001). The Court also considers if the

disputed fact is supported by admissible evidence and is

material. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986).

B. The Incident of December 8, 2018

On December 8, 2018, at approximately 3:00 to 3:30

a.m., Mr. Benny, a 25-year-old African-American and Hispanic-

American male, was involved in an incident with the individual

LBPD Defendants outside an establishment known as Whale’s Tale

located in Long Beach, New York.2 Mr. Benny was with a group of

his friends outside of Whale’s Tale after employees instructed

all parties to leave the premises. (See Defs. Rule 56.1

Statement, ¶¶ 1-2; see also Pl. Rule 56.1 Statement, ¶¶ 1-2.)

The individual LBPD Defendants were at the scene because of a

fight. (See Defs. Rule 56.1 Statement, ¶ 3; see also Pl. Rule

56.1 Counter Statement, ¶ 2.) In Mr. Benny’s account of the

night, the disturbance reportedly involved “Caucasian persons”

who were fighting; Mr. Benny alleges that those Caucasian

persons were confronted by the police but were permitted to

leave without charges. (Pl. Rule 56.1 Counter Statement, ¶ 6.)

As Mr. Benny and his friends, including Cedric Coad

(“Mr. Coad”) and Rashawn Weed (“Mr. Weed”), also African-

American males, proceeded down the street and waited for their

ride-share car service, the three men and the officers engaged

with each other. (See Id. at ¶ 3; ECF. No. 45-2, Pl. Decl. in

Opp’n. at ¶¶ 2-5; see also Defs. Rule 56.1 Statement, ¶ 2-3.)

Mr. Benny states that he was approached by the officers as he,

2 Defendants’ Rule 56.1 Statement alleged Mr. Benny was 27 years old and that

the incident occurred on December 18, 2018. Mr. Benny’s Rule 56.1 Counter

Statement clarifies he was 27 years old at the time of the filing of his

Complaint—roughly a year and a half after the police encounter here—and that

the incident occurred on December 8, 2018, not December 18, 2018. Mr. Benny

also clarifies the establishment’s name was Whale’s Tale, and not Wales and

Tales. (Pl. Rule 56.1 Counter Statement, ¶¶ 1-2. These minor disputed facts

are not material for purposes of deciding Defendants’ motion for summary

judgment.

Mr. Coad, and Mr. Weed proceeded down the street, whereas

Defendants assert that Mr. Benny first approached the officers

as they were in the process of arresting an individual. (See

Pl. Rule 56.1 Counter Statement, ¶ 3; see also Defs. Rule 56.1

Statement, ¶ 3.) Mr. Benny claims that the police had first

focused on Mr. Coad, because Mr. Coad had raised his hands as

protestors had done during the Black Lives Matter movement, and

this “seemed to enrage the officers,” who then “approached Mr.

Coad, grabbed him from behind, and forcefully body slammed [Mr.

Coad] to the ground.” (Pl. Rule 56.1 Counter Statement, ¶ 4;

Pl. Decl. in Opp’n. at ¶¶ 5-6.)

The Defendants began to place Mr. Coad under arrest,

with some of the officers surrounding Mr. Coad and others

keeping bystanders, like Mr. Benny and Mr. Weed, at a distance

from where Mr. Coad’s arrest was occurring. (Pl. Rule 56.1

Counter Statement, ¶ 4-5.) Mr. Coad made no effort to resist

the officers and remained on the ground as officers placed

handcuffs on him.3 (Pl. Decl. in Opp’n. at ¶¶ 6-8.) It is

undisputed that Mr. Benny repeatedly inquired of the officers

why they were arresting Mr. Coad and recorded the encounter on

his cellphone. (Pl. Rule 56.1 Counter Statement at ¶¶ 5-10.)

3 Mr. Benny’s sworn 50-h hearing testimony states that when he started

recording, the police “[told] everybody to give them space,” and “not to be

so close” to where the officers were arresting Mr. Coad. (Miller Aff.,

Exhibit D at 20-21.)

The officers did not respond to Mr. Benny’s inquiries regarding

Mr. Coad’s arrest. (Id.) Instead, they instructed Mr. Benny to

leave the area and “back up” across the street. (See Pl. Rule

56.1 Counter Statement, ¶ 6; see also Defs. Rule 56.1 Statement,

¶ 4.)

Mr. Benny declares that the officers told him to back

up and he complied, eventually standing on the sidewalk across

the street from Mr. Coad’s arrest. (Pl. Decl. in Opp’n. at ¶

7.) Mr. Benny asked the officers why he and his friends were

being treated differently from the people engaged in the fight,

as they “all grew up in the Long Beach community,” to which an

officer responded “yea, we all did, now back up.” (Id. at ¶ 8.)

Mr. Benny was directed to the opposite side of the street from

where Mr. Coad had been arrested and stood approximately twenty

feet away. (Id. at ¶ 9.) Mr. Benny declares that he was

“physically shoved backward by police” when he stepped off the

sidewalk, so he stepped back onto the sidewalk, but continued to

demand their names and badge numbers. (Id. at ¶¶ 10-11.)

Mr. Benny acknowledges that during this encounter, he

repeatedly yelled at the officers to request their badge numbers

and asked for an explanation for Mr. Coad’s arrest. (See Pl.

Rule 56.1 Counter Statement, ¶¶ 5,8,9; Pl. Decl. in Opp’n. at ¶

9; see also Defs. Rule 56.1 Statement, ¶ 5.) It is undisputed

that as Mr. Benny and other bystanders continued to inquire and

record with their cellphones, an officer gave Mr. Benny a “final

warning” to leave the area. (See Pl. Rule 56.1 Counter

Statement, ¶ 6; see also Defs. Rule 56.1 Statement, ¶ 6.) Mr.

Benny, however, denies that he refused to leave the area and

asserts that the “final warning” was “unlawful” because it

followed his repeated requests for identifying information from

the officers. (See Pl. Rule 56.1 Counter Statement, ¶ 6.) Mr.

Benny also denies disregarding any order including a “final

warning,” or that he refused to leave the area. (Pl. Rule 56.1

Counter Statement, ¶ 7.)

Mr. Benny was placed under arrest and charged with

obstructing governmental administration, disorderly conduct, and

resisting arrest. (See Pl. Rule 56.1 Counter Statement, ¶ 9;

see also Defs. Rule 56.1 Statement, ¶¶ 8-9.) Defendants state

that after Mr. Benny disregarded a final warning, “the police

officers attempted to arrest him.” (Defs. Rule 56.1 Statement

at ¶ 8.) They characterize Mr. Benny's actions as resisting

arrest, as he “caus[ed] a brief struggle on the ground before

his arrest [sic].” (Id. at ¶ 9.)

Mr. Benny disputes the account of his arrest and says

that he was “told he was under arrest and ordered to turn

around” but “before [he] could comply,” he was “grabbed from

behind, picked up in a bear-hug and viciously slammed to the

ground” by an officer he cannot identify. (Pl. Decl. in Opp’n.

at ¶ 13; Pl. Rule 56.1 Counter Statement, ¶ 11.) Mr. Benny

contends that he was not given sufficient time to submit to the

arrest before the officer’s initial physical contact with him.

He declares that he did not know who grabbed him and that he

“reflexively attempted” to stand up and was immediately “body

slammed” again. (Pl. Decl. in Opp’n. at ¶ 13.) Although

Defendants contend that Mr. Benny resisted arrest, Mr. Benny

denies that he provided any resistance or “caus[ed] a brief

struggle on the ground before his arrest”; instead, Mr. Benny

declares that he was “knocked unconscious for brief period of

time.” (See Pl. Rule 56.1 Counter Statement, ¶ 11-12; see also

Defs. Rule 56.1 Statement, ¶ 9.) Mr. Benny also asserts that he

“never pushed, shoved or hit any police officer.” (Pl. Rule

56.1 Counter Statement at ¶ 12.)

Mr. Benny declares that, since, and because of, his

arrest by Defendants, he has experienced significant “mental and

physical injuries.” (Id. at ¶¶ 15-20; Pl. Decl. in Opp’n. at ¶¶

16-20.) Mr. Benny submitted photographs showing cuts and

abrasions on his head and face and medical records that he

allegedly sustained during the incident. (Brewington Decl. in

Opp’n., Exhibits B and C.) Mr. Benny further alleges his arrest

impacted his career as a musical artist by compelling him to

cancel a scheduled performance and rendering him “unable to make

music for over a year.” (Pl. Decl. in Opp’n. at ¶ 22.)

Mr. Benny states he wants the Defendants “to address the

clear difference in their treatment of [Mr. Benny and his

friends], who had done nothing wrong, and the White people who

were actually in the fight.” (Id. at ¶ 23.)

A. Video Exhibits

The parties agree that Exhibit A, which is

approximately three minutes and fifty-three seconds long, is

“the fullest depiction of the events giving rise to Mr. Benny’s

claims.” (Brewington Decl. in Opp’n. at ¶ 4; see generally

Exhibit A.) Exhibit B and Exhibit C, provided by Defendants’

counsel, “show the incident recorded in Exhibit ‘A’ from

slightly different angles.” (Miller Aff. at ¶ 2.) Exhibit B,

which is approximately two minutes and three seconds long, shows

a different angle of the physical interactions between Mr. Benny

and Defendants after he is told he is under arrest. (See

generally Exhibit B.) Exhibit C, which is approximately forty-

two seconds long, shows the multiple bystanders and officers at

the scene, the distance between where the Defendants are

effecting the arrest of Mr. Coad and the bystanders, and ends as

Mr. Benny reapproaches the officers. (See generally Exhibit C.)

The Court will primarily recount Exhibit A and portions of

Exhibit B for background on Mr. Benny’s arrest.

The first minute of Exhibit A shows that the

Defendants, to secure the area in which multiple bystanders had

gathered, repeatedly ask Mr. Benny and other bystanders to “back

up” and “clear the area.”4 (Exhibit A, 00:00-00:58.) Exhibit A

starts with a Defendant officer telling Mr. Benny and the

bystanders, including the individual recording Exhibit A, “He’s

under arrest and that’s it.”5 (Id. at 00:00-00:04.) The

individual recording video Exhibit A says, “For what? For what?

He didn’t do nothing. He was walking away.” (Id. at 00:04-

00:07.) At least one Defendant officer responds with “back up,

back up,” including, “back up across the street.” (Id. at

00:07-00:28.) The individual recording the video responds, “I’m

backing up, I’m backing up” while others, including Mr. Benny,

though it is not clear as Mr. Benny is off camera in the

recording at this time, also ask, “For what? For what?” (Id.)

The Defendant officer continues to instruct the bystanders to

move back while saying, “let’s go, gentlemen,” and “sir, back up

across the street” and then, “thank you, thank you,” because the

men appear to be moving backward. (Id.)

Mr. Benny, then, clearly appears in the video to

reapproach the Defendants and says, “we all grew up over here…”

to which an individual Defendant officer responds, “we all did.”

(Id. at 00:27-00:33.) Mr. Benny responds, “Exactly, exactly—so

4 In Exhibit A, various individual Defendants direct Mr. Benny and others to

“back up” at least ten times before Mr. Benny ultimately is told he is under

arrest. (Exhibit A, 00:00-00:58.)

5 The officers are presumably talking about Mr. Coad.

why-then why you feel differently?”6 (Id.) Mr. Benny again

walks into the street toward the officers, where the Defendants

had just asked everyone to “back up,” and walks directly up to a

Defendant officer. (Id. at 00:33-00:40.) Mr. Benny says to the

Defendant officer, who continues to instruct him to move back,

“you’re touching me, I’m not touching you,” and the Defendant

officer responds, “I can touch you,” as he walks away. (Id. at

00:40-00:42). Mr. Benny then reapproaches the Defendant

officer, once again, and says, “Exactly, you’re touching me.”

(Id.) At this point, the Defendant officer uses his hand to

push Mr. Benny back and another officer swiftly approaches Mr.

Benny and yells, “Stay on the sidewalk.” (Id. at 00:42-00:46).

Mr. Benny, then, increases the volume of his voice, and the

verbal exchange between Mr. Benny and the Defendants begin to

overlap.

Defendants stand in front of Mr. Benny and direct the

onlookers, including Mr. Benny, to “clear the area right now” no

less than seven times with Mr. Benny repeatedly refusing and

responding, “no, I have the right.” (Id. at 00:46-01:06.)

During this time, one of Mr. Benny’s friends tells Mr. Benny

“come on” in an apparent attempt to get Mr. Benny to comply and

step away, and Mr. Benny also responds “no” to his companion.

6 In their motion papers, the parties do not identify who any of the

individuals are in the Exhibits. The Court will presume that Mr. Benny is

the individual in the green toned jacket.

(Id.) When Defendants thereafter state, at least three times,

that this is the “last warning” to “clear the area” and that Mr.

Benny is “acting disorderly,” Mr. Benny responds with several

“no”s and “I’m not, though.” (Id. at 01:06-01:10.) It is

during this last moment of Mr. Benny’s noncompliance with

Defendants’ orders that Defendants advise Mr. Benny that he is

under arrest. (Id. at 01:13.) Exhibit B and Exhibit C also

show that Mr. Benny defied repeated orders to step back and

clear the area while continuing to yell at the Defendants who

were attempting to effect an arrest and control the crowd.

(Exhibit B, 00:01-00:13; Exhibit C, 00:12-00:25.)

The actions of Mr. Benny and the Defendant officers in

the seconds leading up to Mr. Benny’s actual arrest are not

clearly discernable in video Exhibits A through C. The camera

in Exhibit A is pointed at a Defendant officer who informs Mr.

Benny that he is under arrest and directs him to turn around.

(Exhibit at 01:14-01:15.) The camera does not show Mr. Benny,

so it is unclear what Mr. Benny was doing in response, or how

close Mr. Benny was to the officer. (Id.) Approximately one

second after the Defendant officer informed Mr. Benny he was

under arrest and directed him to turn around, the camera shows

that either the same officer or another officer (it is not clear

in any of the videos) wraps his arms around Mr. Benny and

attempts to physically place him under arrest. (Id. at 01:15-

01:16.) In Exhibit B, the video recording also does not capture

what happens between the time when a Defendant officer tells Mr.

Benny he is under arrest and when an officer physically attempts

to arrest him. (Exhibit B, 00:13-00:19.)

When the camera in Exhibit A’s video is pointed at Mr.

Benny again, it shows Mr. Benny’s hands and knees momentarily

make contact with the ground after the Defendant officer’s

initial attempt to physically arrest him. (Exhibit A, 01:17-

01:18.) Mr. Benny then to spins and breaks free of the

officer’s grasp. (Id.) Then Mr. Benny quickly stands and at

least two officers scuffle with Mr. Benny before they attempt

and successfully bring Mr. Benny’s body onto the ground. (Id.

at 01:19-01:26.) The amount of force used to bring Mr. Benny to

the ground is not clear from the video in Exhibit A.

In Exhibit B, the video recording’s camera angle

confirms that Mr. Benny spins and breaks free of the Defendant

officer’s initial attempt to effect Mr. Benny’s arrest before

Mr. Benny’s knees momentarily make contact with the ground and

he stands up. (Exhibit B, 00:17-00:21.) At this time, other

voices can be heard saying “chill,” although it is not clear who

the statements are directed to and who is making the statements.

(Id. at 00:21-00:28.) Exhibit B also shows that Mr. Benny and

the officers scuffle for seconds as they push one another, until

the officers bring Mr. Benny to the ground face down. (Id.)

Once Mr. Benny is on the ground, at least two officers

are holding him down, while his hands are placed behind his

back, while the officers attempt to handcuff him. (Exhibit A,

01:26-01:48.) While Mr. Benny’s face and body are fully on the

sidewalk, a Defendant officer has his knee on Mr. Benny’s left

cheek for approximately twenty seconds, but the amount of weight

applied by the officer to Mr. Benny’s cheek is not clear.7 (Id.)

For approximately twenty seconds, while the officers attempt to

handcuff Mr. Benny, other bystanders ask “why are you on his

face” until a Defendant officer moves his knee to Mr. Benny’s

back. (Id.) Another Defendant officer asks the individual

recording the video to “back up” while the individual yells that

the Defendants should not have had a knee on Mr. Benny’s face.

(Id. at 01:48-02:18.)

The rest of the Exhibit A video, after the Defendants

have placed Mr. Benny in handcuffs, is not clear. The

individual recording the Exhibit A video backs away from the

Defendants effecting Mr. Benny’s arrest as a Defendant officer

directs his flashlight in the direction of the individual. (Id.

at 02:20-02:29.) The individual recording the video asks Mr.

Benny for his phone code, and Mr. Benny intermittently responds

from the ground. (Id. at 02:21—03:20.) As Mr. Benny is taken

7 It is unclear to the Court from the video which officer has his knee on Mr.

Benny's cheek and whether it is the same officer who initially attempted to

restrain Mr. Benny with his arms.

to the police car, another bystander is heard saying, “he didn’t

do nothing” and “please” to the Defendants as another voice,

apparently from Mr. Benny’s direction, urges this person to

“relax.” (Id. at 03:21—03:53.)

II. PROCEDURAL BACKGROUND

Mr. Benny commenced this action on April 24, 2020 and

filed proof of service on the Defendants. (See generally, ECF

No. 1, Compl.; ECF Nos. 8, 10.) On July 10, 2020, Defendants’

counsel filed a letter with the Court seeking a pre-motion

conference to file a motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6) and the Court’s individual motion

practices. (ECF No. 13, Defs. Letter.)

On September 4, 2020, Defendants served a motion to

dismiss pursuant to Rule 12(b)(6). Defendants moved to dismiss

on the following bases: (1) the Long Beach Police Department is

not a proper defendant, (2) Mr. Benny’s Section 1981 claim is

subsumed by his Section 1983 claims, (3) the Complaint fails to

adequately plead a Monell claim, (4) the Complaint fails to

state a claim for excessive force and failure to intervene, (5)

the Complaint fails to state claims for false arrest, malicious

prosecution, and abuse of process claims, (6) the race

discrimination claim should be dismissed for failure to state a

claim, (7) the Complaint fails to state a claim under the First

Amendment, and (8) Mr. Benny’s requests for punitive damages

against the city are not viable. (ECF No. 24, Defs. Mot. to

Dismiss.) In Defendants’ moving submission for their motion to

dismiss, Mr. Miller filed, an affirmation, identical to the

affirmation he filed for the instant summary judgment, to which

he annexed three video Exhibits and represented each as follows:

Exhibit A is “a copy of a video recording that was provided to

me by Mr. Benny’s counsel that is referenced in paragraph ‘31’

of the Complaint,” and Exhibits B and C are “two additional

videos provided to me by the Corporation Counsel of the City of

Long Beach that show the incident recorded in Exhibit ‘A’ from

slightly different angles.” (ECF No. 23, Affirmation of Howard

Miller for Defs. Mot. to Dismiss, at ¶¶ 2, 3.)

Mr. Benny filed a memorandum in opposition to the

motion to dismiss on October 19, 2020, along with a declaration

from Mr. Brewington. (See ECF No. 25, Brewington Decl. in

Opp’n. to Mot. to Dismiss); see also ECF No. 26, Pl. Opp’n. to

Mot. to Dismiss.) Mr. Brewington’s declaration stated that Mr.

Benny agreed: (1) the Long Beach Police Department was not a

proper defendant, (2) that all Mr. Benny’s Section 1981 claims

were subsumed by his section 1983 claims, and (3) punitive

damages are unavailable against the City.8 (Brewington Decl. in

Opp’n. to Mot. to Dismiss, ¶ 8.)

Given Mr. Benny’s agreement that certain of his claims

were not viable, the Court considered those claims withdrawn,

and accordingly 1) dismissed the Long Beach Police Department as

a defendant, 2) dismissed Mr. Benny’s Section 1981 claims, and

3) to the extent Mr. Benny sought punitive damages against the

City of Long Beach, the requested relief was denied and

stricken. (See Defs. Mot. to Dismiss; see also ECF No. 38,

Memorandum and Order on Defs. Mot. to Dismiss at 13.) The Court

considered only Mr. Benny’s remaining claims. (Id.)

The Court granted in part and denied in part

Defendants’ motion to dismiss. (Memorandum and Order on Defs.

Mot. to Dismiss at 32-33.) The Court dismissed Mr. Benny’s

Fifth Count, the claim for municipal liability against the City

of Long Beach pursuant to Section 1983, for failure to state a

claim. (Id.) The Court denied without prejudice Defendants’

motion to dismiss Mr. Benny’s excessive force, failure to

intervene, false arrest, malicious prosecution, abuse of

8 The Court notes that in Mr. Benny’s motion to dismiss briefing, Mr. Benny

did not defend against, and instead conceded, Defendants’ arguments regarding

his claims against the LBPD, claims pursuant to § 1981, and any claim for

punitive damages against the City, and thus the Court considered those claims

to be abandoned and dismissed them. (ECF No. 38); see e.g., Jennings v. Hunt

Companies, 367 F. Supp. 3d 66, 69 (S.D.N.Y. 2019) (dismissing claims where

plaintiff acknowledged the issues could not survive and mounted no defense of

them).

process, race discrimination, and First Amendment claims, with

leave to file a motion for summary judgment. (Id.)

The Court’s opinion deciding Defendants’ motion to

dismiss described the unproductive and drawn-out process in

which Mr. Benny’s counsel and Mr. Benny failed to clarify which

video Mr. Brewington relied on in drafting his complaint and

noted that consequently the video evidence could not be

considered in a motion pursuant to Rule 12(b)(6). Because the

Court further noted that any “available, uncontested video

evidence of the events that gave rise to the action” could be

considered in a motion for summary judgment (id. at 31), the

Court granted leave to the parties to move for summary judgment

pursuant to Federal Rules of Civil Procedure 56 on the

remaining, undismissed claims. (Id.) In considering a motion

for summary judgment, the Court stated it would review the video

evidence previously submitted by the parties, along with any

other relevant, admissible evidence either party submitted into

the record. (Id. at 32.) The Court notes that no new video was

ever provided by Mr. Brewington, but the parties have

nonetheless consented to the Court considering the three videos

designated Exhibits A through C in support of the Defendants’

motion for summary judgment and the evidence in their respective

filings in support of, or in opposition to, summary judgment.

On November 9, 2021, pursuant to Federal Rules of

Civil Procedure 56, Defendants filed a motion for summary

judgment to dismiss Mr. Benny’s remaining claims. (See

generally, ECF No. 44-1, Defs. Mot. for Summ. J.) Defendants

move for summary judgment on the following bases: (1) the

undisputed evidence demonstrates there was no excessive force or

failure to intervene, and if the excessive force claim survives

summary judgment, Defendants are entitled to qualified immunity

(Counts III and VI); (2) the false arrest, malicious

prosecution, and abuse of process claims should be dismissed

because the video evidence establishes the existence of probable

cause to arrest and prosecute Mr. Benny (Count III and IV); (3)

the Equal Protection claim based on race discrimination should

be dismissed because the evidence is insufficient for a jury to

find that officers acted with racial animus (Count II); and (4)

the First Amendment claims should also be dismissed because the

video evidence establishes no infringement of Plaintiff’s

exercise of free speech (Count II). (Id.) In Defendants’

moving submission for their motion for summary judgment,

Defendants’ counsel, Mr. Miller, filed an affirmation to which

he annexed three video exhibits (Exhibits A-C) which were the

original exhibits submitted with the Defendants’ motion to

dismiss. (Miller Aff., Exhibits A-C.) Mr. Miller also filed an

affidavit to which he annexed Exhibit “D” as excerpts from “Mr.

Benny’s examination pursuant to Section 50-h of the General

Municipal Law.” (ECF No. 44-6, Miller Aff. at ¶ 4.) Mr. Benny’s

sworn testimony in the Exhibit D excerpt describes Mr. Benny’s

view of the officers approaching him and his friends, the abrupt

arrest of Mr. Coad, and the officers’ instructions to the crowd

to move back to provide space to effect Mr. Coad’s arrest.

(Miller Aff., Exh. D at 19-21.) Defendants also filed the

required statement of undisputed material facts pursuant to

Local Civil Rule 56.1 of this Court. (See generally Defs. Rule

56.1 Statement.)

On November 19, 2021, Mr. Benny filed the required

Local Civil Rule 56.1 response and counter-statement, responding

to the Defendants’ statement of undisputed facts including

separate and concise paragraphs of disputed material facts. Mr.

Benny’s 56.1 Statement cites to his declaration and the

allegations in his complaint. (See generally Pl. Rule 56.1

Statement; Pl. Decl. in Opp’n.)

Mr. Benny’s counsel, Mr. Brewington, also submitted a

declaration in opposition to Defendants’ motion for summary

judgment, providing information regarding the video submission

by plaintiff’s counsel (also marked as, and identical to,

Defendants’ Exhibit A) and identifying the foregoing Exhibit A

as “contain[ing] the fullest depictions of the events giving

rise to Mr. Benny’s claims” and representing Exhibit A as a

“true and accurate recording of Mr. Benny’s arrest.” (See

generally Brewington Decl. in Opp’n.) Mr. Brewington confirms

Exhibit A (the longest of the three videos Defendants also

submitted in their exhibits) is a “true and accurate copy of the

video recording of Plaintiff’s arrest. (Id. at ¶ 7.) He also

submits “true and accurate” copies photos of Mr. Benny’s

injuries that were taken following his release by the police and

medical records pertaining to Mr. Benny’s injuries and treatment

rendered after his release. (Id. at ¶¶ 8-9.) Mr. Brewington

also identifies Exhibit D as a “true and accurate copy of the

Decision and Order of Hon. William Miller” “dismissing all three

accusatory instruments and all charges” against Mr. Benny, and

Exhibit E as a “true and accurate copy of the criminal

complaints in the form of Misdemeanor Informations and a

Violation Information,” signed by Officer Joseph Wiemann on

December 8, 2018. (Id. at ¶¶ 10-11.)

Mr. Benny also filed an opposing memorandum of law.

(See generally ECF No. 45, Pl. Mem. in Opp’n.) Mr. Benny first

contends that Defendants are not entitled to an adverse

inference regarding the still unidentified and unproduced video

upon which Mr. Benny’s counsel relied in drafting the complaint.

(Pl. Mem. in Opp’n, 5-7.) Mr. Benny also argues that a jury

could find that Mr. Benny was unlawfully arrested, subjected to

excessive force, maliciously prosecuted, and that other officers

failed to intervene and are not entitled to qualified immunity.

(Id. at 7-20.) Mr. Benny also asserts that Defendants did not

move for summary judgment on Mr. Benny’s fabrication of evidence

claim, and that he sufficiently establishes the claim of

fabrication of evidence. (Id. at 12-13.) Mr. Benny alleges

that his Equal Protection and First Amendment claims are

supported by his declarations and the video evidence. (Id. at

21-24.)

Defendants filed a reply memorandum in further support

of their motion for summary judgment. (ECF. No 46, Defs. Reply

Br.) Defendants’ reply contends that: (1) the evidence and

applicable law establish that the officers’ actions did not

constitute excessive force (id. at 2); (2) the officers are

entitled to qualified immunity (id. at 3-4); (3) there was

probable cause to arrest Mr. Benny for “either or both

disorderly conduct and obstruction of governmental

administration, and/or for resisting arrest” based on the video

evidence in the record (id. at 4); (4) given that the video

evidence establishes probable cause, Mr. Benny’s malicious

prosecution claim should be dismissed (id. at 6), and (5) Mr.

Benny’s abuse of process, First Amendment, Equal Protection, and

fabrication of evidence claims fail because he merely relies on

his complaint allegations but failed to present evidence that

created a disputed fact regarding his claims. (Id. at 7-10.)

Defendants’ counsel, Mr. Finkel, filed an affidavit to which he

annexed Exhibit “E,” identified as “a copy of the portion of Mr.

Benny’s 50-h transcript cited in Defendants’ Reply Memorandum of

Law.” (Finkel Aff. at ¶¶ 2-3.) Mr. Benny’s sworn testimony at

his 50-h hearing states that as he faced the Defendant officers

as they were approaching him, he did not see or know who had

“slammed” him to the ground from behind, and that he got back up

before he was “slammed to the ground” again. (Finkel Aff., Exh.

E at 26-28.) Mr. Benny testified at this 50-h hearing that at

the time the officers were approaching him, Mr. Benny and six or

seven of his friends and other individuals were also on the

sidewalk behind him. (Id. at 26-28.)

LEGAL STANDARD

I. SUMMARY JUDGMENT

Summary judgment is appropriate “only where there is

no genuine issue of material fact to be tried, and the facts as

to which there is no such issue warrant the entry of judgment

for the moving party as a matter of law.” See Fed. R. Civ. P.

56(a); Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir.

2010). The governing law in each case determines which facts

are material, and “only disputes over facts that might affect

the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for

summary judgment, the Court must resolve all ambiguities and

draw all reasonable inferences in favor of the non-movant. See

Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340

(2d Cir. 2010).

The moving party bears the initial burden of

demonstrating the absence of any genuine dispute or issue of

material fact by pointing to evidence in the record, “including

depositions, documents ... [and] affidavits or declarations,”

Fed. R. Civ. P. 56(c)(1)(A), “which it believes demonstrate[s]

the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). The moving party may

support its assertion that there is no genuine dispute by

“showing ... that [the] adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B).

Once the moving party has fulfilled its preliminary

burden, the onus shifts to the nonmoving party to raise the

existence of a genuine dispute of material fact. Fed. R. Civ.

P. 56(c)(1)(A); Anderson, 477 U.S. at 252. A genuine dispute of

material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Id. at 248; accord Benn v. Kissane, 510 F. App’x 34, 36 (2d Cir.

2013); Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc.,

585 F.3d 662, 669 (2d Cir. 2009); Roe v. City of Waterbury, 542

F.3d 31, 35 (2d Cir. 2008); Jeffreys v. City of New York, 426

F.3d 549, 553 (2d Cir. 2005). Courts must “constru[e] the

evidence in the light most favorable to the non-moving party and

draw[ ] all reasonable inferences in its favor.” Fincher v.

Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.

2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d

Cir. 2005)).

To defeat a motion for summary judgment, the nonmoving

party must identify probative, admissible evidence in the record

from which a reasonable fact-finder could find in his or her

favor. Anderson, 477 U.S. at 256–57. The non-movant must do

more than simply show that there is some “metaphysical doubt as

to the material facts” and, toward that end, “must come forward

with specific facts showing that there is a genuine issue for

trial.” Matsushita Elec., 475 U.S. at 586. The nonmoving party

may not rely on “mere speculation or conjecture as to the true

nature of the facts to overcome a motion for summary judgment.”

Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).

Summary judgment “therefore requires the nonmoving party to go

beyond the pleadings and by [his or] her own affidavits, or by

the depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine

issue for trial.” Celotex, 477 U.S. at 324.

Local Civil Rule 56.1 requires that the movant also

file a “short and concise statement . . . of the material facts

as to which the moving party contends there is no genuine issue

to be tried,” and each proffered fact will be deemed admitted

“unless specifically controverted by a correspondingly numbered

paragraph[.]” Loc. Civ. R. 56.1(a)-(c). Each statement must be

supported by a citation to admissible evidence. Id. at 56.1(d).

The response by the non-moving party must be supported by a

“citation to evidence which would be admissible” as required by

Federal Rule of Civil Procedure 56(c). Id. A reviewing court

“may not rely solely on the statement of undisputed facts[,] ...

[i]t must be satisfied that the citation to evidence in the

record supports the assertion.” Vermont Teddy Bear Co. v. 1-800

Beargram Co., 373 F.3d 244 (2d Cir. 2004) (citing Giannullo v.

City. of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003)). A

district court “must ask not whether the evidence unmistakably

favors one side or the other but whether a fair-minded jury

could return a verdict for the plaintiff on the evidence

presented.” Simpson v. City of New York, 793 F.3d 259, 265 (2d

Cir. 2015). It is not appropriate for the Court to make

credibility assessments or resolve conflicting versions of the

events presented; these are essential questions for a jury. See

id.

II. VIDEO EVIDENCE

In certain circumstances, video evidence may be so

clear and unambiguous that a court deciding a summary judgment

motion may rely on the video and need not give credit to

assertions that are “blatantly contradicted” by the video

evidence. See Scott v. Harris, 550 U.S. 372, 378-80 (2007). In

Scott, the Supreme Court concluded that, at summary judgment,

the appellate court afforded undue weight to the non-movant’s

account of his cautious and careful driving, despite

contradicting video evidence that “more closely resembles a

Hollywood-style car chase of the most frightening sort . . . .”

Id. at 380. In discussing the parties’ burdens, the Scott court

stated: “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.” Id.; see also Pratt v. Nat'l R.R. Passenger

Corp., 709 Fed. App’x 33, 34 (2d Cir. 2017) (concluding that

“objective video and data evidence furnished by the defendants

on summary judgment was sufficient to overcome all contrary

eyewitness testimony and preclude any genuine dispute of

material fact as to the train's speed and horn blasts.”)

On the other hand, if the video evidence does not

conclusively resolve material fact issues, summary judgment

based on that evidence alone is not appropriate. See Hulett v.

City of Syracuse, 253 F. Supp. 3d 462, 482 (N.D.N.Y. 2017)

(stating that “while the video evidence submitted by the parties

will certainly be considered and carefully reviewed at this

juncture, Scott is best understood to permit the summary

adjudication of a plaintiff’s civil rights claim only in those

exceptional cases where the video evidence in the record is

sufficient to ‘blatantly contradict[ ]’ one party’s version of

events”); Zachary v. City of Newburgh, No. 13-cv-5737 (VB), 2016

WL 4030925, at *8 (S.D.N.Y. July 25, 2016) (“Although the video

evidence casts significant doubt on plaintiff’s version of the

events…a reasonable juror could [still] credit plaintiff's

account.”); Rasin v. City of New York, No. 14-cv-5771 (ARR)

(CLP), 2016 WL 2596038, at *7 (E.D.N.Y. May 4, 2016) (“The

parties have testified to two different stories, and the video

evidence is not so conclusive as to determine this factual

dispute as a matter of law.”)

As the Court will further discuss below, the video

evidence in this case is not nearly so clear-cut as to all of

Plaintiff’s claims as the video described in Scott, and, in some

instances, portions of the video appear to contradict both

parties’ accounts of Mr. Benny’s arrest. Although the parties

submit the same video, Exhibit A, in support of their positions,

and do not dispute the accuracy of any of the videos, they

advance conflicting interpretations of whether aspects of the

videos require a fact-finder to resolve disputes regarding

certain claims. See Mack v. Howard, No. 11-cv-303-A (RJA), 2014

WL 2708468, at *3 (W.D.N.Y. June 16, 2014) (denying summary

judgment where the “case boil[ed] down to two credible

interpretations of the same video.”). As discussed below, the

videos are clear and unambiguous as to some of Plaintiff’s

claims and the Court need not resolve the parties’ conflicting

assertions that are inconsistent with the video evidence.

As a threshold matter, the Court will not draw any

adverse inference with regard to the unproduced video originally

described and referenced by Mr. Brewington as providing

evidentiary support for Mr. Benny’s complaint. After extensive

delays and submissions by the parties in response to orders of

this Court seeking to identify and produce that video, Mr. Benny

and his counsel submitted a video designated by both parties as

Exhibit A, and which is identical to Defendant’s Exhibit A, and

the Court will refer to the video as Exhibit A. The parties

agree that Exhibit A, which is at three minutes and fifty-eight

seconds long, is accurate and “the fullest depiction of the

events giving rise to Mr. Benny’s claims.” (Brewington Decl. in

Opp’n at ¶ 4.)

Defendants argue that to “the extent the videos before

the Court on this motion somehow do not resolve all issues of

fact, an adverse inference that the missing footage would have

been unfavorable to Mr. Benny on all remaining claims is

warranted.” (Defs. Br. for Summ. J. at 5.) Pursuant to the

Second Circuit’s decision in Residential Funding Corp. v.

DeGeorge Financial Corp., a party seeking an adverse inference

instruction is required only to demonstrate:

(1) that the party having control over the evidence had an

obligation to preserve it at the time it was destroyed; (2)

that the records were destroyed with a culpable state of

mind; and (3) that the destroyed evidence was ‘relevant’ to

the party's claim or defense such that a reasonable trier

of fact could find that it would support that claim or

defense

306 F.3d 99, 107 (2d Cir. 2002). Under this standard, a movant

is not required to demonstrate that the spoliator acted with a

“culpable state of mind”; a court has discretion to sanction a

party for even negligent spoliation. See Residential Funding,

306 F.3d at 108.

In this case, Mr. Brewington has repeatedly

represented to this Court that he “remain[s] at a loss as to who

showed [the video footage]” to him and that he provided to

Defendants’ counsel the video that Mr. Benny provided to him.

(Brewington Decl. in Opp’n. at ¶¶ 2-11; ECF No. 37-1, Second

Brewington Decl. in Opp’n to Defs. Mot. to Dismiss at ¶ 4.)

Although the elusive footage discussed by Mr. Benny and his

counsel delayed much of this Court’s prior adjudication of

Defendant’s motion to dismiss, Mr. Brewington has stated that he

does not have possession or control of the initial video that he

viewed and used to prepare the complaint. (Brewington Decl. in

Opp’n. at ¶¶ 2, 4.) There is no evidence before this Court,

from Defendants or otherwise, that there was a video in Mr.

Brewington’s actual possession that was destroyed due to a

culpable mind or negligence. Thus, the Court declines to apply

any adverse inference, especially because both parties agree

that there are these “true and accurate” video recordings of Mr.

Benny’s arrest, specifically Exhibits A through C. (Id. at ¶¶

7-9.) The Court will consider the videos designated Exhibits A

through C and the other evidence submitted by parties in

deciding Defendants’ motion for summary judgment.

DISCUSSION

I. SECTION 1983 AND QUALIFIED IMMUNITY

Section 1983 of Title 42 provides in relevant part

that:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects,

or causes to be subjected, any citizen of the United States

. . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured . . . .

42 U.S.C. § 1983. Section 1983 “is not itself a source of

substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes.” Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979); see also Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999). To maintain a Section

1983 claim, Mr. Benny must satisfy two elements. First, “the

conduct complained of must have been committed by a person

acting under color of state law.” Pitchell v. Callan, 13 F.3d

545, 547 (2d Cir. 1994) (citation omitted). It is undisputed

that the Defendants were acting under color of state law during

Mr. Benny’s arrest and other alleged acts and omissions relating

to his claims. Second, “the conduct complained of must have

deprived a person of rights, privileges, or immunities secured

by the Constitution or laws of the United States.” Id.; see

also McCugan v. Aldana-Brnier, 752 F.3d 224, 229 (2d Cir. 2014).

Where, as here, Mr. Benny seeks monetary damages, the “personal

involvement of defendants in alleged constitutional deprivations

is a prerequisite” to recovery. Farid v. Ellen, 593 F.3d 233,

249 (2d Cir. 2010) (citing Farrell v. Burke, 449 F.3d 470, 484

(2d Cir. 2006)).

To prevail, moreover, Mr. Benny must overcome the

doctrine of qualified immunity—the individual Defendants’

“entitlement not to stand trial under certain circumstances.”

Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). For any alleged

violation, the qualified immunity analysis proceeds in two

parts. First, “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right?” Saucier v. Katz, 533

U.S. 194, 201 (2001); see also Garcia v. Does, 779 F.3d 84, 92

(2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d

196, 211 (2d Cir. 2007)).

The second step of the qualified immunity analysis

requires the Court to consider “whether [the] right is clearly

established”— i.e., “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Id. at 202; Anderson v. Creighton, 483 U.S. 635,

640 (1987) (“The contours of the right must be sufficiently

clear that a reasonable official would understand that what he

is doing violates that right…and that in light of pre-existing

law the unlawfulness must be apparent.”). “Only Supreme Court

and Second Circuit precedent existing at the time of the alleged

violation is relevant in deciding whether a right is clearly

established.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004)

(citing Townes v. City of New York, 176 F.3d 138, 144 (2d Cir.

1999)).

In determining whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation confronted, the Court may not evaluate the officer’s

conduct “with 20/20 hindsight.” Salim v. Proulx, 93 F.3d 86, 91

(2d Cir. 1996). Instead, “[t]he doctrine of qualified immunity

serves to protect police from liability and suit when they are

required to make on-the-spot judgments in tense circumstances,”

Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995) (citations

omitted), and the Court must therefore evaluate challenged

conduct “from the perspective of a reasonable officer on the

scene.” Kerman v. City of New York, 261 F.3d 229, 239 (2d Cir.

2001) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989));

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (“The qualified

immunity standard ‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who

knowingly violate the law.’”)

II. THE FALSE ARREST (COUNT III), MALICIOUS

PROSECUTION (COUNT III), FABRICATION OF EVIDENCE

(COUNT III), AND ABUSE OF PROCESS (COUNT IV) CLAIMS

A. FALSE ARREST (COUNT III)

“In analyzing Section 1983 claims for false arrest,

courts ‘generally look to the law of the state in which the

arrest occurred.’” Ying Li v. City of New York, 246 F. Supp. 3d

578, 600 (E.D.N.Y. 2017) (quoting Dancy v. McGinley, 843 F.3d

93, 107 (2d Cir. 2016)). For purposes of the instant action,

“[a] claim for false arrest under [S]ection 1983, resting on the

Fourth Amendment right to be free from unreasonable seizures,

including arrest without probable cause, is substantially the

same as that under New York law.” Id. (citing Jenkins v. City

of New York, 478 F.3d 76, 84 (2d Cir. 2007)). Under New York

law, the elements of a false arrest claim are: (1) defendant

intended to confine plaintiff; (2) plaintiff was conscious of

the confinement; (3) plaintiff did not consent to the

confinement; and (4) the confinement was not otherwise

privileged. Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d

Cir. 1995).

The existence of probable cause constitutes a

“complete defense” to a false arrest claim under Section 1983

and New York state law. Alvarado v. City of New York, 453 F.

App’x 56, 58 (2d Cir. 2011) (citing Weyant v. Okst, 101

F.3d 845, 852 (2d Cir. 1996). “Probable cause to arrest exists

when the authorities have knowledge or reasonably trustworthy

information sufficient to warrant a person of reasonable caution

in the belief that an offense has been committed by the person

to be arrested.” McGuire v. City of New York, 142 F. App’x 1, 1

(2d Cir. 2005). “[A]n arresting officer’s state of mind (except

for the facts that he knows) is irrelevant to the existence of

probable cause,” and therefore, the officer’s “subjective reason

for making the arrest need not be the criminal offense as to

which the known facts provide probable cause.” Devenpeck v.

Alford, 543 U.S. 146, 153 (2004) (citations omitted). When

assessing whether probable cause existed, the reviewing court

“must consider [only] those facts available to the officer at

the time of the arrest and immediately before it.” Stansbury v.

Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (alteration in original)

(internal quotation marks omitted) (quoting Panetta v. Crowley,

460 F.3d 388, 395 (2d Cir. 2006)).

Defendants argue that, as a matter of law, they cannot

be liable for false arrest because they had probable cause to

arrest Mr. Benny or, in the alternative, they are entitled to

qualified immunity. Further, because qualified immunity

protects officers who reasonably believe their conduct to be

lawful, the existence of “arguable probable cause” establishes a

qualified immunity defense. Martinez v. Simonetti, 202 F.3d

625, 634 (2d Cir. 2000) (citations omitted); see also Zalaski v.

City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013). As with the

probable cause inquiry, the Court’s inquiry regarding arguable

probable cause is confined to the facts known to the arresting

officer at the time of the arrest. Betts v. Shearman, 751 F.3d

78, 82-83 (2d Cir. 2014); Picott v. Chatmon, No. 12-cv-7202,

2017 WL 4155375, at *5 (S.D.N.Y. Sept. 18, 2017). The Second

Circuit has affirmed that “‘[a]rguable’ probable cause should

not be misunderstood to mean ‘almost’ probable cause . . . . If

officers of reasonable competence would have to agree that the

information possessed by the officer at the time of arrest did

not add up to probable cause, the fact that it came close does

not immunize the officer.” Jenkins, 478 F.3d at 87. Arguable

probable cause exists “if either (a) it was objectively

reasonable for the officer to believe that probable cause

existed, or (b) officers of reasonable competence could disagree

on whether the probable cause test was met.” Golino v. City of

New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (citations omitted);

see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir.

2002) (“[I]n situations where an officer may have reasonably but

mistakenly concluded that probable cause existed, the officer is

nonetheless entitled to qualified immunity.” (citing Lennon, 66

F.3d at 423)).

Based on the record before the Court, including the

undisputed video evidence in Exhibits A through C, the Court

finds that Defendants had probable cause to arrest Mr. Benny for

obstructing governmental administration, disorderly conduct, and

resisting arrest. See Marcavage v. City of New York, 689 F.3d

98, 109–10 (2d Cir. 2012) (“A Fourth Amendment claim turns on

whether probable cause existed to arrest for any crime, not

whether probable cause existed with respect to each individual

charge (internal citation omitted)).

1) Obstruction of Governmental

Administration

New York Penal Law § 195.05 defines the crime of

obstructing governmental administration in the second degree and

provides, in relevant part, that:

A person is guilty of obstructing governmental

administration in the second degree when he intentionally

obstructs, impairs or perverts the administration of law or

other governmental function or prevents or attempts to

prevent a public servant from performing an official

function, by means of intimidation, physical force or

interference, or by means of any independently unlawful act

. . . .

N.Y. Penal Law § 195.05.

The offense has four elements: “(1) prevention or

attempt to prevent (2) a public servant from performing (3) an

official function (4) by means of intimidation, force or

interference.” Cameron v. City of New York, 598 F.3d 50, 68 (2d

Cir. 2010) (quoting Lennon 66 F.3d at 424). New York courts

have confirmed that the fourth element requires physical

interference, although the interference can be minimally

physical, and “inappropriate and disruptive conduct at the scene

of the performance of an official function” will suffice.

Basinski v. City of New York, 706 F. App'x 693, 698 (summary

order) (discussing cases interpreting New York obstruction of

governmental administration statute) (quoting Kass v. City of

New York, 864 F.3d 200, 209 (2d Cir. 2017, and collecting

cases). For example, in Davan L., the New York Court of Appeals

affirmed a finding that, where a juvenile had been “put on

specific, direct notice” of a “confined and defined” area of

police activity and told to keep away, and the juvenile

“intentionally intruded himself into the area” to warn others of

police presence, the juvenile’s conduct met the elements of

obstruction of governmental administration. See Matter of Davan

L., 689 N.E.2d 909, 910-11 (N.Y. 1997). This Court has held

that when individuals disobey officers’ orders to step back

during an arrest of another individual, the facts establish

probable cause for arrest. See Leibovitz v. City of New York,

No. 14-CV-7106(KAM)(LB), 2018 WL 1157872, at *1 (E.D.N.Y. Mar.

2, 2018).

In the Second Circuit’s Kass decision, the plaintiff

had been speaking with protestors on a sidewalk adjacent to a

protest site. 864 F.3d at 208. In their efforts to regulate

pedestrian traffic and address crowd-control issues, officers

directed the plaintiff “to either keep walking or enter [the]

designated protest area.” Id. at 209. The plaintiff “verbally

and physically refused to obey the officers’ orders” and was

arrested. Id. at 210. The district court denied a motion for

judgment on the pleadings based on qualified immunity and was

reversed by the Second Circuit which held that the officers had

at least arguable probable cause to arrest the plaintiff for

obstructing governmental administration in violation of New York

Penal Law § 195.05. Id. at 203.

In considering the instant motion, and as discussed

above, the Court finds that Exhibit A clearly and indisputably

establishes that Mr. Benny repeatedly defied Defendant officers’

multiple orders to “back up” and “clear the area” as they sought

to secure the area in which multiple bystanders had gathered

while the officers were arresting an individual. (Exhibit A,

00:14-00:58.) Under the circumstances, the police orders were

proper, as the officers were attempting, at the time, to arrest

Mr. Coad and maintain order among onlookers in the vicinity

where police had been called to respond to a fight. Mr. Benny,

for at least one minute while on camera is repeatedly seen

retreating and reapproaching the officers as he raises his voice

at the officers and requestions them. (Id.) The officers

repeatedly direct Mr. Benny to move back and “clear the area”.

(Id.) The video also shows Mr. Benny moving towards the

individual Defendant officers who were continuing to direct the

onlookers to “back up” and “clear the area” as Mr. Benny points

a finger in their direction and tells the officers, “no”. (Id.

at 00:40-00:46.) Defendants stand in front of Mr. Benny and

direct the onlookers, including Mr. Benny, to “clear the area

right now” no less than seven times with Mr. Benny repeatedly

refusing and responding, “no, I have the right.” (Id. at 00:46-

1:06.) During this time, one of Mr. Benny’s friends tells Mr.

Benny “come on” in an attempt to get him to comply and step

away, and Mr. Benny also responds “no” to his companion. (Id.)

When Defendants thereafter state, at least three times, that

this is the “last warning” to “clear the area” and that Mr.

Benny is “acting disorderly,” Mr. Benny responds with several

“no”s and “I’m not, though.” (Id. at 01:06-01:10.) It is

during this last moment of Mr. Benny’s noncompliance with

Defendants’ orders that Defendants advise Mr. Benny that he is

under arrest. (Id. at 01:13.) Exhibit B and Exhibit C also

clearly establish that Mr. Benny defied repeated orders by the

police officers to step back and clear the area while continuing

to yell at police who were attempting to effect an arrest and

control the crowd. (Exhibit B, 00:01-00:13; Exhibit C, 00:12-

00:25.)

Mr. Benny communicated his intent, multiple times, to

disobey Defendants’ orders to move back and clear the area, and

in fact disobeyed the orders. Taken as a whole, and even when

viewed in the light most favorable to Mr. Benny, the video

recordings, which the parties agree accurately depict the events

surrounding Mr. Benny’s arrest, establish that the officers had

probable cause to arrest Mr. Benny for obstruction of

governmental administration for his repeated intentional efforts

to prevent the officers from performing their official functions

by his physical interference and intrusions.

Mr. Benny contends that his own arrest could not have

been supported by probable cause, because he was protesting the

false arrest of Mr. Coad. (See generally ECF No. 45, Pl. Mem.

in Opp’n.) There is no evidence before the Court that the

officers lacked probable cause at the time to arrest Mr. Coad,

and in any case, disagreeing with an officer’s arrest of another

is not a defense to obstructing governmental administration.

Regardless of whether the arrest of another individual is

appropriate, the law does not protect onlookers who obstruct

governmental administration, based on their own view of whether

police conduct is appropriate. Although bystanders may legally

record police action, they may not repeatedly intrude into the

area of police activity or an area that police are attempting to

control, while disregarding police orders to “back up” and

“clear the area”. See Bruno v. City of Schenectady, No. 12-CV-

285(GTS)(RFT), 2016 WL 1057041, at *12 (N.D.N.Y. Mar. 14, 2016)

(finding probable cause to arrest where “Plaintiff’s repeated

and deliberate disregard of Defendant[’s] . . . order to stay

behind the police tape, which was exacerbated by her disruptive

harangue, interfered with [Defendant’s] performance of his

[official] dut[ies].”) Because probable cause is an absolute

defense to a false arrest claim, Mr. Benny’s false arrest claim

fails and must be dismissed.

2) Disorderly Conduct

To prove the crime of disorderly conduct under New

York Penal Law § 240.20, Defendants must establish three

elements: (i) the defendant's conduct must be “public” in

nature, (ii) it must be done with “intent to cause public

inconvenience, annoyance or alarm” or with recklessness as to “a

risk thereof,” and (iii) it must match at least one of the

descriptions set forth in the statute. N.Y. Penal Law § 240.20.

The Defendants reported that Mr. Benny violated subdivision six

of N.Y. Penal Law § 240.20, because Mr. Benny “congregate[d]

with other persons in a public place and refuse[d] to comply

with a lawful order of the police to disperse.” (See ECF No.

45-4, Brewington Decl. in Opp’n., Exh. E, Misdemeanor

Information filed on December 8, 2018.)

With respect to disorderly conduct, the Court

concludes that Mr. Benny’s conduct on December 8, 2018, as

depicted in the video Exhibits A through C, satisfies all of the

elements to establish probable cause for his arrest. Mr.

Benny’s interaction with the Defendants on the night of his

arrest was in public, taking place on the sidewalk outside of

the Whale’s Tale, in the vicinity of a fight where others had

gathered. (See generally Exhibit A-C.) The Court finds that

based on the undisputed video evidence, reasonable officers

would agree that Mr. Benny's continued refusal to step away or

leave the area after Defendants repeatedly asked him to do so,

“recklessly creat[ed] a risk” of “caus[ing] public

inconvenience, annoyance or alarm.” See N.Y. Penal Law §

240.20(6); see also Provost v. City of Newburgh, 262 F.3d 146,

157 (2d Cir. 2001)(holding that if a reasonable person in the

same circumstances of an officer would have believed defendant’s

conduct satisfied all three elements of § 240.20, the defendant

had committed or in fact committed the crime of disorderly

conduct). Although “the risk of public disorder does not have

to be realized[,] the circumstances must be such that

defendant's intent to create such a threat (or reckless

disregard thereof) can be readily inferred.” Monahan v. City of

New York, No. 20-CV-2610 (PKC), 2022 WL 954463, at *4 (S.D.N.Y.

Mar. 30, 2022) (citation omitted).

The video evidence before the Court establishes that

Mr. Benny grew increasingly agitated, as he repeatedly

approached the officers who directed him multiple times to step

back and raised his voice to question and object to the

officers’ actions as the officers were arresting Mr. Coad and

were attempting to keep the crowd from approaching. (Exhibit A,

00:14-00:58, Exhibit B, 00:01-00:13; Exhibit C, 00:12-00:25.)

Mr. Benny argues that he did not refuse to comply with

a lawful order to disperse, as required by New York Penal Law §

240.20(6), because he was acting alone and his failure to

disperse was not done with the intent to cause public

inconvenience. The videos demonstrate that Mr. Benny was among

a group of onlookers and was directed by Defendants to “back up”

and “clear the area,” after he continued to approach the

officers. Exhibit A, filmed by another individual, shows both

Mr. Benny and others repeatedly being directed by the officers

to “back up” and “clear the area,” and Mr. Benny repeatedly

responds “no.” (See generally Exhibit A.) He was in a crowd

and appears to be the only one approaching the officers and

being told to step back. (Id.) Moreover, Mr. Benny testified

in his 50-h hearing that he estimated there were “maybe six to

seven” “other people” around him when the Defendants approached

him. (Finkel Aff., Exh. E at 28.)9 The Exhibit C video also

clearly shows there are at least five bystanders in the

background as Mr. Benny interacts with the officers before his

arrest. For the foregoing reasons, the Court concludes that the

Defendants had probable cause to arrest Mr. Benny for disorderly

conduct.

1) Resisting Arrest

New York Penal Law § 205.30 defines the crime of

resisting arrest and provides, in relevant part, that: a person

is guilty of resisting arrest when he intentionally prevents or

attempts to prevent a police officer or peace officer from

effecting an authorized arrested of himself or another person.

Exhibits A through C clearly show that Mr. Benny

defied repeated orders to step back and clear the area while

continuing to yell at police who were attempting to effect an

arrest and control the crowd. In Exhibit B, the video shows

that after Mr. Benny was told he was under arrest and to turn

around, he spins and tries to break free of the Defendant

9 The Court also notes that Mr. Benny stated he did “not want to give an exact

count” of the people on the sidewalk, but he confirmed that “there were

people other than [his] friends on the sidewalk with [him].” (Finkel Aff,

Exh. E at ¶¶ 28-29.)

officer’s initial attempt to arrest him. (Exhibit B, 00:17-

00:21.) At this time, other voices say “chill,” although it is

not clear who the statements are directed to or who is making

the statements. (Id.) Exhibit B shows that after the officers

stated their intention to put Mr. Benny under arrest, Mr. Benny

and the officers scuffled for seconds as they pushed one

another, until the officers brought Mr. Benny to the ground face

down. The officers held Mr. Benny down while attempting to

place him in handcuffs. (Exhibit B, 01:15-01:24.) Despite what

Mr. Benny asserts in his Rule 56.1 counter statement and

declaration, all of the videos undeniably demonstrate that Mr.

Benny “intentionally prevent[ed] or attempt[ed] to prevent”

Defendants from effecting the arrest of Mr. Coad. (See

generally Exhibits A-C.) Moreover, with regards to Mr. Benny’s

own arrest, after he was advised under arrest, the video shows

that he spun free of the officers and engaged in a physical

tussle with the officers. (Id.)

Accordingly, Defendants demonstrated with undisputed,

clear and unambiguous, and admissible video evidence that the

officers had probable cause to arrest Mr. Benny for any and all

offenses with which he was charged. See Jaegly v. Couch, 439

F.3d 149, 154 (2d Cir. 2006) (“Following Devenpeck, . . . a

claim for false arrest turns only on whether probable cause

existed to arrest a defendant, and…it is not relevant whether

probable cause existed with respect to each individual charge,

or, indeed, any charge actually invoked by the arresting officer

at the time of arrest.”).

Here, Exhibits A through C depict the indisputable

facts and circumstances known to the officers sufficient to

establish probable cause to arrest Mr. Benny for obstruction of

governmental administration in violation of New York Penal Law §

195.05, disorderly conduct in violation of New York Penal Law §

240.20(6), and resisting arrest in violation of New York Penal

Law § 203.30. Mr. Benny’s own declaration, to the extent he

seeks to contradict what is clear from the video evidence, fails

to create a genuine disputed factual issue regarding his Section

1983 false arrest claim. Consequently, Defendants’ motion for

summary judgment is granted as to Mr. Benny’s false arrest

claim.

2) Qualified Immunity

Alternatively, based on the authorities discussed

above, the Court finds that Defendants had “arguable probable

cause” to arrest Mr. Benny. Golino, 950 F.2d at 870. Mr.

Benny’s continued reapproaching of the officers, after repeated

directives to step back, could cause a reasonable officer to

believe that Mr. Benny intended to interfere with the officers’

exercise of their authority to effect another arrest and

maintain control of multiple bystanders. N.Y. Penal Law §

195.05. Given the context in which Mr. Benny repeatedly stated

his refusal, and in fact refused, to comply with the officers’

orders, it was also objectively reasonable for the officers to

infer that Mr. Benny’s continued defiance of their orders

recklessly created a risk that he would “cause public

inconvenience, annoyance or alarm,” including a public

disturbance. N.Y. Penal Law § 240.20(6). Lastly, an officer

reasonably could believe that they had “arguable probable cause”

to believe that Mr. Benny was resisting arrest as he scuffled

with the police officers after they notified him that he was

under arrest, and based on Defendants’ attempts to not once, but

twice, to physically place Mr. Benny under arrest. N.Y. Penal

Law § § 203.30. The individual Defendants are therefore

entitled to qualified immunity with respect to Mr. Benny’s

Section 1983 claim for false arrest.

B. MALICIOUS PROSECTUION (COUNT III)

For the reasons provided below, the Court also grants

Defendants’ motion for summary judgment on Mr. Benny’s claims

for malicious prosecution claims. “[I]n recognizing a malicious

prosecution claim when the prosecution depends on a violation of

federal rights, [Section 1983] adopts the law of the forum state

so far as the elements of the claim for malicious prosecution

are concerned.” Cornejo v. Bell, 592 F.3d 121, 129 (2d Cir.

2010) (citation omitted). To establish a [S]ection 1983 claim

for malicious prosecution, a plaintiff must prove the following

four elements under New York law: “‘(1) the initiation or

continuation of a criminal proceeding against plaintiff; (2)

termination of the proceeding in plaintiff’s favor; (3) lack of

probable cause for commencing the proceeding; and (4) actual

malice as a motivation for defendant’s actions’ — as well as a

violation of the plaintiff’s rights under the Fourth Amendment.”

Ying Li, 246 F. Supp. 3d at 604 (quoting Manganiello v. City of

New York, 612 F.3d 149, 160–61 (2d Cir. 2010)); see also Boyd v.

City of New York, 336 F.3d 72, 76 (2d Cir. 2003). Probable

cause for purposes of malicious prosecution is different from

probable cause for arrest. Ying Li, 246 F. Supp. 3d at 611

(citing Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417

(2d Cir. 1999)). Probable cause to prosecute exists where there

are “such facts and circumstances as would lead a reasonably

prudent person to believe the plaintiff guilty.” Boyd, 336 F.3d

at 76. To determine whether probable cause exists sufficiently

to defeat a malicious prosecution claim, a court must separately

analyze each “charge[…] claimed to have been maliciously

prosecuted.” Morris v. Silvestre, 604 F. App'x 22, 25 (2d. Cir.

2015) (quoting Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991)

); see also D'Angelo v. Kirschner, 288 F. App'x 724, 726–27 (2d

Cir. 2008) (“a finding of probable cause to arrest as to one

charge does not necessarily defeat a claim of malicious

prosecution as to other criminal charges”). Thus, the relevant

question is “whether sufficient probable cause existed to charge

[Mr. Benny] with each of the crimes.” Lowth v. Town of

Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996)

Here, it is undisputed that the Defendants had

probable cause to prosecute Mr. Benny for (1) obstruction of

government administration, (2) disorderly conduct, and (3)

resisting arrest. The Exhibit B video, which provides a clear

angle of Mr. Benny scuffling with the police officers as they

attempt to arrest him, in particular highlights Mr. Benny’s

actions that provided probable cause for the officers to bring

all the charges against Mr. Benny. (See generally Exhibit B.)

As discussed, supra, Exhibit B very clearly shows that Mr. Benny

defied repeated orders to step back and clear the area while he

continued to yell at police officers who were attempting to

effect an arrest and control the crowd. (Exhibit B, 00:13-

00:17.) In Exhibit B, Mr. Benny also spins and breaks free of

the officer as he attempts to place him under arrest. (Exhibit

B, 00:17-00:21.) Exhibit B shows that Mr. Benny and the

officers scuffled for seconds as they pushed one another, until

the officers brought Mr. Benny to the ground face down. (Id. at

00:21-00:28.) Based on the Court’s consideration of the video

evidence demonstrating that there was probable to arrest Mr.

Benny for obstructing governmental administration, disorderly

conduct, and resisting arrest, this Court further concludes that

there was probable cause for a reasonably prudent person to

commence the prosecution and to believe Mr. Benny to be guilty

of both charges.

Mr. Benny also provides no evidence that the officers

were motivated by malice while carrying out their duties and

including the three charges of obstruction of governmental

administration, disorderly conduct, and resisting arrest against

Mr. Benny in their three accusatory instruments. (See

Brewington Decl. in Opp’n., Exh. E, Misdemeanor Information

filed on December 8, 2018.) Even though a judge ultimately

dismissed the charges, at the time Mr. Benny’s prosecution was

commenced, based on the record before the Court, probable cause

existed to do so. Moreover, there is no evidence from which a

jury could find that the Defendants acted with actual malice.

The Court therefore grants Defendants’ motion for summary

judgment as to Mr. Benny malicious prosecution claims.

C. ABUSE OF PROCSES (COUNT IV)

The Court also grants Defendant’s motion for summary

judgment as to Mr. Benny’s abuse of process claims. The Second

Circuit has stated that “[a]buse of process, however, does not

depend upon whether or not the action was brought without

probable cause or upon the outcome of the litigation.” Lodges

743 and 1746, Int'l Ass'n of Machinists & Aerospace Workers,

AFL–CIO v. United Aircraft Corp., 534 F.2d 422, 465 n. 85 (2d

Cir.1975). In explaining a claim for abuse of process, the

Second Circuit has stated:

[T]he gist of the tort of abuse of process, [as]

distinguished from malicious prosecution, is not commencing

an action or causing process to issue without

justification, but misusing or misapplying process

justified in itself for an end other than that which it was

designed to accomplish. The purpose for which the process

is used, once it is issued, is the only thing of

importance.

See Weiss v. Hunna, 312 F.2d 711, 717 (2d Cir.1963) (quotation

omitted).

Consistent with the Second Circuit’s analysis in

United Aircraft Corp. and Weiss, a plaintiff may prove an abuse

of process claim where a defendant: “(1) employs regularly

issued legal process to compel performance or forbearance of

some act (2) with intent to do harm without excuse or

justification, and (3) in order to obtain a collateral objective

that is outside the legitimate ends of the process.” Savino v.

City of N.Y., 331 F.3d 63, 76 (2d Cir. 2003) (quoting Cook v.

Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)).

Here, Mr. Benny provides no evidence from which a jury

could find that Defendants prosecuted Mr. Benny to “compel” Mr.

Benny to perform or forebear from an act, with intent to do harm

without justification. Mr. Benny also fails to provide evidence

of the third element, that Defendants had a “collateral

objective that is outside the legitimate ends of the process.”

There is no genuine dispute of material fact that the Defendants

were performing their official duties during the events

undergirding this action, when they responded to an altercation

at or near a bar, maintained control of the crowd, and effected

Mr. Benny’s arrest. Mr. Benny’s bare argument that his

continued prosecution was to “block [him] from access to the

Court and seeking justice against them for wrongful acts” is not

supported by any evidence. (Pl. Mem. in Opp’n. at 19.)

Furthermore, Mr. Benny’s unsupported contention that Defendants’

utilization of the “process” is symptomatic of the Defendants’

“own warped sense of power” (id.) is insufficient to establish

that Defendants acted with an illegitimate collateral objective.

See Hauser v. Bartow, 273 N.Y. 370, 374 (1973) (“If [one] uses

the process of the court for its proper purpose, though there is

malice in his heart, there is no abuse of process.”). The Court

therefore grants Defendants’ motion for summary judgment as to

Mr. Benny abuse of process claims.

D. FABRICATION OF EVIDENCE (COUNT III)

As a threshold matter, this Court notes that although

Defendants did not move for summary judgment on Mr. Benny’s

fabrication of evidence claim, pursuant to Federal Rule of Civil

Procedure 56(f), both parties had “reasonable time to respond”

and thus this Court will “consider summary judgment on its own

after identifying for the parties material facts that may not be

genuinely in dispute.” (See Pl. Mem. in Opp’n at 11-13; Defs.

Reply Br at 9-10.) See also Bridgeway Corp. v. Citibank, 201

F.3d 134, 139 (2d Cir. 2000) (“a sua sponte grant of summary

judgment against that party may be appropriate” when “there are

circumstances under which it is not a reversible error for a

district court to grant summary judgment against a party without

notice or opportunity to defend”); In re 650 Fifth Ave. &

Related Properties, 830 F.3d 66, 96 (2d Cir. 2016) (grants of

summary judgment are only appropriate “where the party against

whom summary judgment is rendered has had a full and fair

opportunity to meet the proposition that there is no genuine

issue of material fact to be tried” (citing Schwan-Stabilo

Cosmetics GmbH v. Pacificlink Int'l Corp., 401 F.3d 28, 33 (2d

Cir. 2005)). The Second Circuit has said that in instances

where the district court failed to give notice before sua sponte

granting summary judgment, if the party “either cannot claim to

have been surprised by the district court's action or if,

notwithstanding its surprise, the party had no additional

evidence to bring, it cannot plausibly argue that it was

prejudiced by the lack of notice.” Bridgeway Corp., 201 F.3d at

140.

To succeed on a fabricated-evidence claim, Mr. Benny

must establish that an (1) investigating official (2)

fabricate[d] information (3) that is likely to influence a

jury's verdict, (4) forward[ed] that information to prosecutors,

and (5) the plaintiff suffer[red] a deprivation of life,

liberty, or property as a result. See Ashley v. City of New

York, 992 F.3d 128, 139 (2d Cir. 2021) (citation omitted).

Here, given Mr. Benny’s opportunity to defend his

fabrication of evidence claims, the Court grants summary

judgment to Defendants on Mr. Benny’s fabrication of evidence

claim. Mr. Benny briefed his fabrication of evidence claim in

his memorandum of law in opposition to Defendants’ motion for

summary judgment. (See Pl. Mem. in Opp’n at 11-13.) Mr. Benny

alleged that Officer Wiemann fabricated evidence by signing

accusatory instruments that claimed Mr. Benny “physically

resist[ed] the defendants’ efforts to arrest him.” (Id;

Brewington Decl. in Opp’n., Exh. E, Misdemeanor Information

filed on December 8, 2018.) The Court has considered the

parties’ evidence for the related claims of false arrest,

malicious prosecution, and abuse of process, and presumes that

Mr. Benny has had no additional evidence to bring for his

fabrication of evidence claim. Accordingly, this Court relies

on the video evidence recounted in extensive detail above and

finds that Mr. Benny and the officers scuffled for some time

during Mr. Benny’s arrest. (See generally Exhibit A and B.)

The video recordings of Mr. Benny and Defendants struggling,

after Mr. Benny was told he was under arrest and spun out of an

officer’s grasp, blatantly contradicts Mr. Benny’s account that

he did not “physically resist[] the defendants’ efforts to

arrest him” as alleged by the Officer Wiemann in the accusatory

instruments. (See Brewington Decl. in Opp’n., Exh. E,

Misdemeanor Information filed on December 8, 2018.) Mr. Benny

fails to identify or provide any evidence of the information he

claims is fabricated, that he resisted arrest, and therefore,

the Court grants summary judgment as to Mr. Benny’s fabrication

of evidence claim.

III. EXCESSIVE FORCE (COUNT III) & FAILURE TO

INTERVENE (COUNT VI)

A. EXCESSIVE FORCE (COUNT III)

The Court denies Defendants’ motion for summary

judgment as to Mr. Benny’s claims of excessive force and failure

to intervene. Mr. Benny alleges that Defendants violated the

Fourth and Fifth Amendments by using excessive force in

effecting his arrest. Here, the Court finds that there are

genuine disputes of material fact, whether the Defendants used

excessive force in effecting Mr. Benny’s arrest. Based on the

lack of clarity in the video evidence as to the Defendants’ use

of force, the parties’ differing interpretations of the videos,

and the parties’ differing accounts of the force used to effect

Mr. Benny’s arrest, the Court finds that summary judgment on Mr.

Benny’s excessive force claim must be denied. The jury must

resolve the dispute of whether the Defendants’ use of force was

excessive or reasonable.

The Fourth Amendment, which guarantees the right to be

free from unreasonable seizures, prohibits police officers from

using excessive force in effecting an arrest. Tracy v.

Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham, 490

U.S. at 395)). Courts apply an objective reasonableness

standard to determine whether the force used was excessive. Id.

(quoting Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir.

2005)). Thus, “the inquiry is necessarily case and fact

specific and requires balancing the nature and quality of the

intrusion on the plaintiff’s Fourth Amendment interests against

the countervailing governmental interests at stake.” Id.

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

(2d Cir.2004)).

To determine whether the force used was reasonable,

courts consider “(1) the nature and severity of the crime

leading to the arrest, (2) whether the suspect pose[d] an

immediate threat to the safety of the officer or others, and (3)

whether the suspect was actively resisting arrest or attempting

to evade arrest by flight.” Id. (citing Graham, 490 U.S. at

396; Papineau v. Parmley, 465 F.3d 46, 61 (2d Cir.2006)). The

Court recognizes that evidence is viewed “from the perspective

of a reasonable officer on the scene,” allowing for “the fact

that police officers are often forced to make split-second

judgments-in circumstances that are tense, uncertain, and

rapidly evolving-about the amount of force that is necessary in

a particular situation.” Id. at 96. This Court also notes that

“[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates a[n]

[individual’s] constitutional rights.” Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir. 1973).

The video evidence clearly reveals the following

events: after the officer gave repeated directives to “back up”

and “clear the area” and warned Mr. Benny, “final warning,” he

informed Mr. Benny that he was under arrest and directed him to

turn around. (Exhibit A, 01:14-01:15.) The camera does not

show Mr. Benny, so it is unclear what Mr. Benny was doing or if

Mr. Benny was within reaching distance of the officer. (Id.)

Approximately one second after the Defendant officer informed

Mr. Benny he was under arrest and directed him to turn around,

the camera shows that either the same officer or another officer

(it is not clear in any of the videos) wraps his arms around Mr.

Benny and attempts to place him under arrest. (Id. at 01:15-

01:16.) In Exhibit B, the video recording also does not capture

what happens between a Defendant officer telling Mr. Benny he is

under arrest and part of Mr. Benny’s body being lowered toward

the ground. (Exhibit B, 00:13-00:19.)

It is undisputed that Exhibit A and B demonstrate that

once a Defendant officer tries to take Mr. Benny into custody,

Mr. Benny tries to spin and break free of the officer’s grasp

before his hands and knees momentarily make contact with the

ground. (Exhibit A, 01:17-01:18.) What remains unclear in all

three video exhibits, however, is what happened in the second

between a Defendant officer telling Mr. Benny he was under

arrest and, potentially another or the same, Defendant officer

putting his arms around Mr. Benny in an attempt to place him in

custody. Furthermore, after Mr. Benny spun and broke free of

the officer, and then engaged in a tussle with the officers, Mr.

Benny is seen on the ground, with at least two officers holding

him down, while his hands are behind his back, as the officers

try to put handcuffs on him. (Exhibit A, 01:26-01:48.) Mr.

Benny’s face and the front of his body are fully on the

sidewalk, a Defendant officer has his knee on Mr. Benny’s cheek

by the officer, and the amount of weight applied to Mr. Benny’s

cheek is not clear. But approximately twenty seconds, other

bystanders ask “why are you on his face” until a Defendant

officer moves his knee to Mr. Benny’s back. (Id.) Another

Defendant officer asks the individual recording the video to

“back up” while the individual yells that the Defendants should

not have had their knee on Mr. Benny’s face. (Id. at 01:48-

02:18.) The Court cannot and should not determine whether the

level of force used to arrest Mr. was reasonable or excessive,

during the fast-paced “split-second” physical encounter between

Mr. Benny and the officers. After careful consideration of the

videos and declarations, this Court finds that there are genuine

material issues of fact in dispute, and this Court cannot

conclusively determine whether the elements of excessive force

were met.

The Court also highlights that the video evidence

indeed reveals discrepancies or gaps in both Defendants’ and Mr.

Benny’s accounts of the arrest. Though Mr. Benny’s declaration

stated that he did not resist arrest, the video clearly shows a

prolonged struggle between Mr. Benny and Defendants, where Mr.

Benny twists away and stands upright after being initially

restrained and Mr. Benny then lunges towards and scuffles with

the officers. (Id. at 01:19-01:33.) Despite the existence of

probable cause to arrest Mr. Benny and charge him with

obstruction of governmental administration, disorderly conduct,

and resisting arrest, a reasonable juror could also find that

the use of force in effecting Mr. Benny’s arrest was excessive,

under the circumstances to be presented at trial. (Id.) Based

on the video evidence, Defendants assert that Mr. Benny pushed

an officer on the chest, which may have occurred during the

scuffle between Mr. Benny and the officers depicted in the

videos. But the videos still do not show what, if anything, Mr.

Benny did to prompt the officer’s initial attempt to restrain

Mr. Benny and place him on the ground. Furthermore, the

Defendants assert that they removed their knee off Mr. Benny “as

soon as [Mr. Benny] was brought to his feet,” which is not

depicted in the videos. (Defs. Reply Br. at 6.)

Even with video evidence, Mr. Benny and Defendants’

accounts of the events on December 8, 2018 differ substantially,

raising disputed issues of material fact. Because there are

multiple questions left unanswered in the record before the

Court of what transpired immediately prior to and during Mr.

Benny's arrest, and the amount of force used, to explain whether

the officers used reasonable force, this Court must leave fact-

finding to the jury. See Amnesty, 361 F.3d 113 (“Because a

reasonable jury could also find that the officers gratuitously

inflicted pain in a manner that was not a reasonable response to

the circumstances, however, the determination as to the

objective reasonableness of the force used must be made by a

jury following a trial.”); Curry v. City of Syracuse, 316 F.3d

324, 335–36 (2d Cir. 2003) (“In sum, based on the two starkly

different narratives of the incident at issue, genuine issues of

material fact preclude summary judgment on plaintiff's false

arrest and unlawful search claims.”).

Indeed, even if a genuine issue exists as to whether

force was excessive, officers may invoke qualified immunity’s

second prong, “whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Anderson, 483 U.S. 640. The qualified immunity analysis hinges

on whether under the totality of the circumstances, the officers

used reasonable force or “violate[d] clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In other words, the Court must look to “whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at

202.

It is clearly established in the Second Circuit that

“it [is] a Fourth Amendment violation to use ‘significant’ force

against arrestees who no longer actively resisted arrest or

posed a threat to officer safety.” See Muschette on Behalf of

A.M. v. Gionfriddo, 910 F.3d 65, 70 (2d Cir. 2018); see also

Rogoz v. City of Hartford, 796 F.3d 236, 251 (2d Cir. 2015)

(finding that officers who jumped on the back of a non-resisting

arrestee were not entitled to summary judgment on the merits or

on the defense of qualified immunity); O'Hara v. City of New

York, 570 F. App'x 21, 24 (2d Cir. 2014) (punching an arrestee

without provocation was excessive force and there is a

distinction between “struggling against” the officer’s blows and

resisting arrest); Ragland v. City of Mount Vernon, No. 11 CV

1317 VB, 2013 WL 4038616, at *6 (S.D.N.Y. July 12, 2013)

(evidence that officers, without warning, grabbed plaintiff's

neck and jumped on his back while he was riding his bicycle

precluded summary judgment on excessive force); Calamia v. City

of New York, 879 F.2d 1025, 1035 (2d Cir. 1989) (concluding that

a plaintiff’s testimony about being immediately shoved to the

floor upon answering an officer’s door knock could defeat a

motion for summary judgment as a matter of law); Sash v. United

States, 674 F. Supp. 2d 531, 538 (S.D.N.Y. 2009) (“Tackling an

arrestee on the street and forcibly shoving him into a metal

gate when he offers no resistance certainly could be actionable

conduct.”). The standard of reasonableness standard must be

applied to the moment that force was used. Graham, 490 U.S. at

396. The degree of force used, if any, and the moment of force

used are not clear from the record.

Although there is evidence of Mr. Benny’s interaction

with the Defendants after a Defendant officer tries to bring Mr.

Benny under arrest the first time, the video evidence and Mr.

Benny’s declaration of the events prior to and during his arrest

cannot be reconciled at this time. Defendants’ motion for

summary judgment on Mr. Benny’s excessive force claim must be,

and is, denied. See Mills v. Fenger, 216 Fed. Appx. 7, 8-9 (2d

Cir. 2006) (citing Thomas, 165 F.3d at 143) (“Because whether

force is excessive turns on its reasonableness, we have held

that ‘[s]ummary judgment on qualified immunity grounds is not

appropriate when there are facts in dispute that are material to

a determination of reasonableness.’”); see also Coe v. Rogers,

No. cv 14-3216(JFB)(AKT), 2017 WL 1157182, at *14 (E.D.N.Y. Mar.

6, 2017), report and recommendation adopted, No. 14-

3216(JFB)(AKT), 2017 WL 1155002 (E.D.N.Y. Mar. 27, 2017)

(finding that when there were two “competing versions of the

events,” of an officer's “body-slamming” of plaintiff, whether

excessive force was used must be left for a jury to decided).

Despite all of the video evidence and parties’

submissions, it remains unclear whether Mr. Benny had any time

to comply with the arresting officer’s order to turn around

after he was told he was under arrest, what Mr. Benny did in

response, and what degree of force the officer used. The facts

around the moment of the officer’s use of force are material and

disputed. Thus, this Court finds that the jury must decide

whether the officer’s use of force was reasonable under the

circumstances.

B. FAILURE TO INTERVENE (COUNT VI)

An underlying constitutional violation is a

precondition of a failure-to-intervene claim. See O'Neill v.

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

liability on the part of a defendant under a failure-to-

intervene theory, a plaintiff must show that the defendant (1)

possessed actual knowledge that a fellow officer was using

excessive force; (2) had a realistic opportunity to intervene

and prevent the harm from occurring; and (3) nonetheless

disregarded that risk by intentionally refusing or failing to

take reasonable measures to end the use of excessive force.

Kornegay v. New York, 677 F.Supp.2d 653, 658 (W.D.N.Y. 2010).

Police officers are “under a duty to intervene and prevent

fellow officers from subjecting a citizen to excessive force and

may be held liable for his failure to do so if he observes the

use of force and has sufficient time to act to prevent it.” See

Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016). If a fellow

officer fails to intervene, “liability attaches on the theory

that the officer . . . becomes a ‘tacit collaborator’ in the

illegality.” Id. (quoting O'Neill, 839 F.2d 11-12 (2d Cir.

1988)); see also Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir.

2014) (“An officer who fails to intercede in the use of

excessive force . . . is liable for the preventable harm caused

by the actions of other officers.”).

“Whether the officer had a ‘realistic opportunity’ to

intervene is normally a question for the jury, unless,

‘considering all the evidence, a reasonable jury could not

possibly conclude otherwise.’” Terebesi, 764 F.3d at

244 (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.

1994)).

Defendants provide no declarations of any officers

detailing their knowledge or involvement, or lack thereof, of

their opportunity to intervene in Mr. Benny's arrest, and

therefore, the Court must consider Mr. Benny’s sworn statements

and the evidence of multiple unidentified officers present

during the alleged use of excessive use of force. Although the

Court recognizes “the mere fact that [an] [o]fficer was present

for the entire incident does not, on its own, establish that he

had either awareness of excessive force being used or an

opportunity to prevent it,” it is not clear whether excessive

force was used and, if so, which officers were simply present or

aware, or had an opportunity to intervene. See Rodriguez v.

City of New York, No. 10 CIV. 9570 PKC KNF, 2012 WL 1658303, at

*5 (S.D.N.Y. May 11, 2012). Based on the record before the

Court and considering the evidence in the light most favorable

to the nonmoving party, Mr. Benny, a question of material fact

exists as to whether the force used was excessive and whether

the other officers failed to intervene. If, as he claims, Mr.

Benny had fully submitted to the officers’ control and

Defendants observed a fellow officer use unnecessary force but

failed to intervene despite having time to do so, no reasonable

officer under the circumstances would believe that his or her

actions were lawful. Therefore, the Court cannot find that

qualified immunity applies under the circumstances presented by

the record before the Court. The Defendants’ motion for summary

judgment on Mr. Benny’s excessive force and failure to intervene

is denied.

IV. FIRST AMENDMENT CLAIM (COUNT II)

The Court grants summary judgment for Defendants as to

Mr. Benny’s First Amendment claim. “To recover on a First

Amendment claim under [Section 1983], a plaintiff must

demonstrate that his conduct is deserving of First Amendment

protection and that the defendants’ conduct of harassment was

motivated by or substantially caused by his exercise of free

speech.” Rattner v. Netburn, 930 F.2d 204, 208 (2d Cir.

1991) (quoting Donahue v. Windsor Locks Board of Fire

Commissioners, 834 F.2d 54, 58 (2d Cir. 1987)); see also Dorsett

v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (“To plead a

First Amendment retaliation claim a plaintiff must show: (1) he

has a right protected by the First Amendment; (2) the

defendant's actions were motivated or substantially caused by

his exercise of that right; and (3) the defendant's actions

caused him some injury.” (citation omitted)). The Court finds

that no reasonable juror could find that Defendants deprived Mr.

Benny of his First Amendment rights.

Mr. Benny asserts that there is a First Amendment

right to videotape police officers in the performance of their

official duties. This Court notes, however, that the right to

videotape is “not without limitations” and “may be subject to

reasonable time, place, and manner restrictions.” Glik v.

Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (citing Smith v. City

of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)); see also

Higginbotham v. City of New York, 105 F. Supp. 3d 369, 379

(S.D.N.Y. 2015) (“All of the circuit courts that have [addressed

the issue] . . . have concluded that the First Amendment

protects the right to record police officers performing their

duties in a public space, subject to reasonable time, place and

manner restrictions.” (citations omitted)). Time, place, and

manner restrictions, in turn, are permissible if they “(1) are

justified without reference to the content of the regulated

speech, (2) are narrowly tailored to serve a significant

governmental interest, and (3) leave open ample alternative

channels for communication of the information.” Akinnagbe v.

City of New York, 128 F. Supp. 3d 539, 548 (E.D.N.Y. 2015)

(quoting Marcavage, 689 F.3d 98 at 104.)). Furthermore, “the

right [to record police officers in public] does not apply when

the recording would impede police officers in the performance of

their duties.” Higginbotham, 105 F. Supp. 3d at 379-80; see

also Basinksi, 192 F. Supp. 3d at 368 (“[C]ourts within this

Circuit have recognized that ‘in cases where the right to record

police activity has been recognized by our sister circuits, it

appears that the protected conduct has typically involved using

a handheld device to photograph or videotape at a certain

distance from, and without interfering with, the police activity

at issue.’” (quoting Rivera v. Foley, No. 14-CV-196(VLB), 2015

WL 1296258, at *10 (D. Conn. Mar. 23, 2015)).

When viewing these allegations in the light most

favorable to Mr. Benny, Defendants’ initial and repeated

instructions to step back constitute a justified and narrow

restriction on the place and manner in which Mr. Benny could

exercise his asserted First Amendment right to film Defendants’

arrest of Mr. Coad. Here, the government had a compelling

interest in maintaining safety and order while a crowd continued

to gather at the scene of police activities. See Bruno, No. 12-

CV-285(GTS)(RFT), 2016 WL 1057041, at *12 (finding probable

cause to arrest where plaintiff disregarded officers’ orders to

stay behind the police tape); Davan L., 689 N.E.2d 910-11

(affirming finding that juvenile’s conduct, if committed by an

adult, would constitute obstruction of governmental

administration where juvenile had been directed to stay clear of

“confined and defined” police activity area, but entered area

and yelled that police were “coming”); see also Salmon v.

Blesser, 802 F.3d 249, 253 (2d Cir. 2015) (“Police officers

frequently order persons to leave public areas: crime scenes,

accident sites, dangerous construction venues, anticipated flood

or fire paths, parade routes, areas of public disorder, etc.”).

The video Exhibits A through C show that none of the

officers ever told any of the bystanders recording their

activities that they could not record, but only directed that

they step back. (See generally Exhibit A-C). Based on the

undisputed evidence of what was captured in the videos, the

Defendants’ instructions to step back were justified and

narrowly tailored to serve a compelling government interest in

maintaining order amidst a gathering crowd while conducting

police activity. Indeed, the video evidence establishes that

Mr. Benny continued to film the scene, until he defied the

officers’ final warning to “back up” and was placed under

arrest. (Id.)

Alternatively, based on the authority discussed above,

a reasonable officer could believe that it was lawful to arrest

Mr. Benny for refusing to obey an order to retreat and cease

disrupting the Defendants’ performance of their official duties

as a crowd of onlookers continued to yell and step towards the

officers. Therefore, as an alternative holding, the individual

Defendant officers are entitled to qualified immunity with

respect to Mr. Benny’s First Amendment claim.

Further, to the extent Mr. Benny’s false arrest can be

construed as retaliation claims under the First Amendment and

Section 1983, the Court notes that the existence of probable

cause will defeat a First Amendment retaliation claim. See,

e.g., Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012)

(“The existence of probable cause . . . will also defeat a First

Amendment claim that is premised on the allegation that

defendants prosecuted a plaintiff out of a retaliatory

motive.”); Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.

1992) (“An individual does not have a right under the First

Amendment to be free from a criminal prosecution supported by

probable cause, [even if it] is in reality an unsuccessful

attempt to deter or silence criticism of the government.”);

Norton v. Town of Islip, 97 F. Supp. 3d 241, 257 (E.D.N.Y. 2015)

(“Even if [plaintiff] had stated a plausible claim against

[defendants], the Court would still dismiss [plaintiff] First

Amendment retaliation claim because the appearance tickets

against [plaintiff] were supported by probable cause.”). The

Court is unpersuaded that the police retaliated against Mr.

Benny for exercising his First Amendment rights. The three

videos this Court reviewed make it clear that multiple people,

including Mr. Benny, were filming the events occurring around

Mr. Benny. None of the other individuals filming were told to

stop filming nor were they told that they were under arrest, as

they appeared to stay farther away from the Defendants than Mr.

Benny did. (Exhibit A, 00:46-1:06.) The Court, therefore,

grants Defendants’ motion for summary judgment as to Mr. Benny’s

First Amendment claims.

V. THE EQUAL PROTECTION CLAIM (COUNT II)

Lastly, the Court grants summary judgment for

Defendants on Mr. Benny’s equal protection claim. A plaintiff

can maintain an Equal Protection Clause claim “so long as he

establishes that he was treated differently than similarly

situated persons and that the unequal treatment he received was

motivated by personal animus.” Jackson v. Roslyn Bd. of Educ.,

438 F.Supp.2d 49, 55 (E.D.N.Y. 2006) (citing Harlen Assoc. v.

Inc. Village of Mineola, 273 F.3d 494, 500 (2d Cir. 2001)); see

also Brown v. City of Oneonta, N.Y., 221 F.3d 329, 337 (2d Cir.

2000) (“The Equal Protection Clause ‘is essentially a direction

that all persons similarly situated should be treated alike.’”

(citation omitted)). Mr. Benny has failed to raise a triable

issue of material fact with respect to his Equal Protection

claim.

Although the Court construes favorably Mr. Benny’s

sworn declaration for purposes of summary judgment, “the

nonmoving party must produce more than a scintilla of admissible

evidence that supports the pleadings.” Esmont v. City of New

York, 371 F.Supp.2d 202, 210 (E.D.N.Y.2005); see also First

Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289–90,

88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Niagara Mohawk Power Corp.

v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir.2003). Here, the

only evidence Mr. Benny provides for his claims of racially

motivated discrimination by Defendants is his own declaration,

which presents no specific facts from which a jury could find

that the officers were motivated by personal animus. Mr. Benny

claims that Defendants followed Mr. Benny and his friends, who

are African-American, rather than other Caucasian pedestrians

nearby. Moreover, Mr. Benny states that Caucasian individuals

who were involved in a fight were permitted to leave the scene

but provides no facts as to how they were similarly situated to

Mr. Benny. There is no evidence that these Caucasian

individuals repeatedly defied direct police orders to “back up”

and leave the area; instead, Mr. Benny states that the Caucasian

individuals did leave the area. (Pl. Decl. in Opp’n at ¶ 6.)

Accordingly, the Court grants the motion for summary judgment

with respect to Mr. Benny’s equal protection claim.

CONCLUSION

For the foregoing reasons, Defendants’ summary

judgment is GRANTED in part and DENIED in part. The Court

GRANTS the Defendants’ summary judgment on Mr. Benny’s false

arrest, malicious prosecution, abuse of process, fabrication of

evidence, Equal Protection, and First Amendment claims. The

Court DENIES Defendants’ summary judgment with respect to Mr.

Benny’s claims of excessive force and failure to intervene.

Further, the parties are directed to schedule a

settlement conference with Magistrate Judge Steven Tiscione

and/or complete the remaining discovery in this case.

SO ORDERED.

Dated: Brooklyn, New York

July 27, 2022

__/s/ Kiyo A. Matsumoto_____

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York