# Benny v. The City of Long Beach

> District Court, E.D. New York · July 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10308261

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
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.
---------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308261. Public record. Not legal advice.