Singh v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BALWINDER SINGH,

Plaintiff, MEMORANDUM & ORDER

19-CV-632(EK)(ST)

-against-

CITY OF NEW YORK, P.O. MANDEEP

CHEEMA, individually and in his

official capacity, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Balwinder Singh brought this suit against several

defendants, alleging Fourth Amendment claims under 42 U.S.C.

§ 1983, and various state-law claims.1 The parties cross-moved

for summary judgment; those motions are the subject of

Magistrate Judge Tiscione’s Report and Recommendation (R&R)

dated June 28, 2022. ECF No. 55. The R&R recommends that the

Court deny Plaintiff’s motion for summary judgment, grant

Cheema’s motion for summary judgment on Singh’s false-arrest

claim, and deny Cheema’s motion on the claims for excessive

force, and assault and battery.

1 The full list of defendants included: the City of New York; P.O.

Mandeep Cheema; and police officers “John Doe” #1-10. As discussed in

Section II.B of this order, Singh’s remaining claims are as follows: Section

1983 excessive force, state-law false arrest, and state-law assault-and-

battery against defendant Cheema; and Section 1983 municipal-liability

against the City. The only claims at issue in the instant cross-motions are

the claims against Cheema.

Having reviewed the record, I adopt the R&R in part.

Singh’s motion for summary judgment on his excessive-force claim

is DENIED. Cheema’s motion for summary judgment on Singh’s

claims for false arrest and excessive force under Section 1983,

and assault and battery under state law, is GRANTED. As

detailed below, Cheema is entitled to qualified immunity on the

excessive-force claim because no clearly established law

prohibited the force he applied in the effort to handcuff Singh

under the instant circumstances. Summary judgment is warranted

on Singh’s false-arrest claim, as well, for the reasons set out

in the R&R.

I. Background

The R&R capably sets out the factual background, which

I will not repeat wholesale here. Because I diverge from the

R&R’s recommendations on the excessive-force claim (and

corresponding state-law battery claim), I recite certain key

facts underlying those claims below. I view the facts in the

light most favorable to Singh, drawing any inferences in his

favor.

Early in the morning on February 28, 2018, Singh’s

wife called 911 to say that her husband was intoxicated and that

they were fighting. Audio of 911 Call 01:22, Pl. Ex. D. She

asked the operator to send an ambulance. Pl. Rule 56.1

Statement of Material Facts (“Pl. 56.1”) ¶ 7, ECF No. 46-2. EMS

workers arrived at Singh’s home shortly thereafter and

determined that he needed to go to the hospital because he was

acting irrationally, speaking incoherently, and displayed an

unsteady gait. Pl. 56.1 ¶ 13; Dep. of Nicole Milonas 85:24-

86:4, ECF No. 46-8. Singh was uncooperative and refused to go

to the hospital, so EMS workers called for police assistance.

Pl. 56.1 ¶¶ 20-21. It is undisputed that Plaintiff’s blood

alcohol level was more than three times the legal driving limit

when he was tested at the hospital two hours later. Pl. Resp.

to Def. Rule 56.1 Statement of Material Facts (“Pl. Resp to Def.

56.1”) ¶¶ 114-15, ECF No. 49-1 (admitting that Plaintiff’s BAC

was 247 mg/dL two hours after his wife called 911).

Singh’s home security system recorded video and audio

of the EMS workers’ arrival and call to police, but Singh

deleted this recording after the incident. Pl. Resp. to Def.

56.1 ¶ 54. (Before he did so, Singh used his cell phone to

record the portion of the video showing what he alleges to be

excessive force, as discussed below.2) Nevertheless, it is

undisputed that EMS contacted the NYPD, stating that they were

attending to an uncooperative subject, and indicating — in two

2 Singh contends that he deleted the video by “accident” and that it

would have been overwritten anyway, fourteen days later, absent preservation.

But Singh obviously realized that the video might be relevant later, and

selected the portion he wanted to preserve. Pl. Resp. to Def. 56.1 ¶¶ 51-55;

Pl. Ex. G(1), Video (hereinafter “Video”).

successive communications — that they required the NYPD’s

assistance “ASAP.”3 When the officers arrived at Singh’s home,

Officer Cheema spoke with the EMTs on the scene. One of the

EMTs — Cheema did not recall which — told him, in substance,

that Singh was being uncooperative to the point where they felt

unsafe. Id. ¶ 82.

Singh continued to refuse to go to the hospital. Pl.

56.1 ¶¶ 33-35. During this time, Singh addressed his wife in

Punjabi. Cheema, who understood what Singh was saying,

testified that Singh was blaming his wife for the situation,

stating, “You did this to me, you’re going to pay, you did

this,” and “You’re going to pay for what you did.” Dep. of

Mandeep Cheema (“Cheema Dep.”) 77:15-23, 80:12-13, ECF No. 48-7.

Singh disputes that he threatened his wife but acknowledges that

he blamed her for the situation. Pl. Resp. to Def. 56.1 ¶ 89

(Singh testified that he told her: “this is not right, you are

sending me to the hospital with handcuffs on. This is not

right. I had not done anything.”). After trying to convince

Singh to go to the hospital voluntarily, Cheema gave Singh a

choice: he could either go voluntarily, or the officers would

have to take him in handcuffs. Pl. 56.1 ¶¶ 29-31; Cheema Dep.

3 Pl. Resp. to Def. 56.1 ¶¶ 75-76 (admitting that the EMTs communicated

to police “PLZ SEND RMP [radio motor patrol car], UNCO-COP PT [uncooperative

patient],” and requested assistance a few minutes later, saying “RMP NEEDED

ASAP”).

85:7-87:15. Singh agreed to go voluntarily and began to get

dressed. Pl. 56.1 ¶¶ 31-33.

Singh’s cell phone video shows the moments leading up

to the incident, and the incident itself. Singh and the

officers stood close to the front door, preparing to leave the

apartment. Officer Malinda Walker opened the front door, as

Officer Justin Davis stood to the side. Video 7:24. Officer

Cheema stood behind Singh. Rather than walking out, however,

Singh leaned forward slightly and extended his arms behind his

back, towards Officer Cheema. Video 7:30. There is no audio,

but it is undisputed that at this point, Singh told Officer

Cheema the officer would “have to handcuff” him. Pl. 56.1 ¶ 34;

Def. Rule 56.1 Statement of Material Facts ¶ 35, ECF No. 48-2.

Just as Officer Cheema took out handcuffs and began to

place them on Singh, however, Singh abruptly withdrew his hands

from behind his back, and said, “I’m just joking. You’re not

going to handcuff me.” Pl. 56.1 ¶ 35. The video, which

captured the scene from behind Cheema and Singh – and thus

provides a perspective similar to Cheema’s – shows that Singh

withdrew his hands from behind his back and brought them out in

front of him. At the same time, he took a quick step away from

Cheema and toward both the open door and Officer Walker. Video

7:57-8:03; Dep. of Balwinder Singh (“Singh Dep.”) 61:15-20, ECF

No. 48-6; Dep. of Malinda Walker 58:3-7, ECF No. 48-9.

As Singh stepped toward Officer Walker and the open

door, Officer Cheema followed, moving forward and wrapping his

arms around Singh from behind – his right arm over Singh’s right

shoulder, and his left arm under Singh’s left arm. Video 8:00-

8:05. Still holding onto Singh, Cheema pulled Singh’s body to

the right and then down to the ground. Video 8:05. Once Singh

was on the ground, Cheema and the two other officers handcuffed

him, lifted him up, and escorted him out the door. Video 8:00-

8:45.

The parties dispute how to characterize Cheema’s

maneuver: Singh refers to it as “body-slamming,” see Pl. Opp. to

Def. Mot. for Summ. J. (“Pl. Opp.”) 22-26, ECF No. 49-1, but

Defendants call it an “arm-bar takedown.” Def. Br. in Support

of Def. Mot. for Summ. J. (“Def. Br.”) 12, ECF No. 48-1. These

competing characterizations are not critical, given that the

action was captured on video, and the video speaks for itself.

Cheema’s action caused an abrasion and bruising on

Singh’s forehead and exacerbated Singh’s pre-existing shoulder

injury. See Photos of Pl. Face Injury, Ex. L to Cohen Decl.,

ECF No. 46-15; Pl. Expert Reports, Ex. K to Cohen Decl., ECF No.

46-14.

II. Legal Standard on Review of Report & Recommendation

Generally speaking, when neither party files

objections to a report and recommendation, the district court

reviews the recommendation for clear error. See Advisory Comm.

Notes to Fed. R. Civ. P. 72(b); accord State Farm Mut. Auto.

Ins. Co. v. Grafman, 968 F. Supp. 2d 480, 481 (E.D.N.Y. 2013).

Nevertheless, a district judge retains authority to “accept,

reject, or modify” any recommendation. 28 U.S.C. § 636(b)(1).

Section 636 gives R&Rs no “presumptive weight,” Mathews v.

Weber, 423 U.S. 261, 271 (1976); instead, district courts are

free to review the case “in whole or in part anew.” Id.4

III. Discussion

A. Excessive Force Claim

1. Fourth Amendment Law on Excessive Force

Under the Fourth Amendment, a police officer’s

application of force is excessive “if it is objectively

unreasonable in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.”

Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).

Courts must view the “reasonableness of a particular use of

force . . . from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham

v. Connor, 490 U.S. 386, 396 (1989).

4 See also Mathews, 423 U.S. at 271 (a district judge is “free to follow

[the R&R] or wholly to ignore it,” but either way the “authority and the

responsibility to make an informed, final determination, we emphasize,

remains with” him or her); Cole v. Rogers, No. 14-CV-3216, 2017 WL 1155002,

at *1 (E.D.N.Y., 2017) (Bianco, D.J.) (“Although the parties have waived any

objections to the R&R and thus de novo review is not required, the Court has

conducted a de novo review of the R&R in an abundance of caution.”).

Whether a particular use of force is reasonable or

excessive depends on the specific facts and circumstances.

Courts generally look at three factors: (1) the severity of the

crime at issue; (2) whether the suspect poses an immediate

threat to the safety of the officers or others; and (3) whether

he is actively resisting arrest or attempting to evade arrest by

flight. Id. Force must be “reasonably related to the nature of

resistance and the force used, threatened, or reasonably

perceived to be threatened, against the officer.” Sullivan v.

Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). Some circuit courts

have recognized the second factor — the immediate threat to

officer safety — as the most important. See Pauly v. White, 874

F.3d 1197, 1215-16 (10th Cir. 2017) (“The second Graham factor,

whether the suspect posed an immediate threat to the safety of

the officers or others, is undoubtedly the most important and

fact intensive factor in determining the objective

reasonableness of an officer’s use of force.”); Chew v. Gates,

27 F.3d 1432, 1441 (9th Cir. 1994) (second factor is “the most

important single element of the three specified factors”).

When a subject refuses an order to place his hands

behind his back to be handcuffed, officers may do what is

“necessary to subdue [him] and apply handcuffs.” Husbands ex

rel. Forde v. City of New York, 335 F. App’x 124, 128 (2d Cir.

2009). The application of force is excessive in this context

(perhaps tautologically) when it goes “beyond what [is]

necessary” to do the same. Id.; see also Curry v. City of

Syracuse, 316 F.3d 324, 332 (2d Cir. 2003) (plaintiff may

prevail on excessive force claim “if he is able to show that

[the officer] used more force than was necessary to subdue

him”).

2. Qualified Immunity in the Excessive-Force Context

Singh’s Fourth Amendment claim against Cheema, a

police officer, must be viewed through the lens of qualified

immunity. E.g., City of Tahlequah v. Bond, 142 S. Ct. 9 (2021)

(per curiam); Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021)

(per curiam). “The doctrine of qualified immunity protects

government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When an

official asserts a qualified immunity defense, courts consider

whether “(1) the official violated a statutory or constitutional

right, and (2) . . . the right was clearly established at the

time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d

162, 167 (2d Cir. 2016).5 “Officials are entitled to qualified

immunity when their decision was reasonable, even if mistaken;

5 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

the doctrine gives ample room for mistaken judgments by

protecting all but the plainly incompetent or those who

knowingly violate the law.” Rogoz v. City of Hartford, 796 F.3d

236, 247 (2d Cir. 2015).

In excessive-force claims, the reasonableness inquiry

often “overlap[s]” with the qualified immunity analysis. See,

e.g., Cowan v. Breen, 352 F.3d 756, 764 (2d Cir. 2003);

Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003). The

difference is that “the qualified immunity inquiry goes on to

ask whether any constitutional violation was clearly

established.” Jackson v. Tellado, 236 F. Supp. 3d 636, 661

(E.D.N.Y. 2017). A constitutional right is clearly established

“when it is sufficiently clear that every reasonable official

would have understood that what he is doing violates that

right.” Rivas-Villegas, 142 S. Ct. at 7; see also Jones v.

Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (right is clearly

established when it would have been “clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted”).

The effort to identify clearly established controlling

law “must be undertaken in light of the specific context of the

case, not as a broad general proposition.” Brosseau v. Haugen,

543 U.S. 194, 198 (2004) (per curiam). The Supreme Court has

“repeatedly told courts not to define clearly established law at

too high a level of generality.” City of Tahlequah, 142 S. Ct.

at 11. “It is not enough that a rule be suggested by then-

existing precedent; the rule’s contours must be so well defined

that it is clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id.; see also Kisela

v. Hughes, 138 S. Ct. 1148, 1152-53 (2018) (defendants will be

“entitled to qualified immunity unless existing precedent

squarely governs the specific facts at issue”) (emphasis added).

Thus, although courts “do not require a case directly

on point, . . . existing precedent must have placed the

statutory or constitutional question beyond debate.” Mullenix

v. Luna, 577 U.S. 7, 12 (2015). “The dispositive question is

whether the violative nature of particular conduct is clearly

established.” Id. This is especially true in excessive force

cases: the Supreme Court has said that “specificity is

especially important in the Fourth Amendment context,” where “it

is sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply to the

factual situation the officer confronts.” Id.; see also Kisela,

138 S. Ct. at 1153 (“Use of excessive force is an area of the

law in which the result depends very much on the facts of each

case, and thus police officers are entitled to qualified

immunity unless existing precedent squarely governs the specific

facts at issue.”).

The upshot is that qualified immunity may protect an

officer who employs force that is objectively excessive under

the Fourth Amendment, provided that the officer could reasonably

— but mistakenly — have believed otherwise in the press of

circumstances: “The protection of qualified immunity applies

regardless of whether the government official’s error is a

mistake of law, a mistake of fact, or a mistake based on mixed

questions of law and fact.” Pearson, 555 U.S. at 231.

In recent qualified immunity cases, the Supreme Court

has emphasized the importance of video evidence at the summary

judgment stage. “Courts are required to view the facts and draw

reasonable inferences in the light most favorable to the party

opposing summary judgment,” which “usually means adopting . . .

the plaintiff’s version of the facts.” Scott v. Harris, 550

U.S. 372, 378 (2007). However, where the record contains

uncontroverted video evidence, the court “should . . . view the

facts in the light depicted by the videotape.” Id. at 381.

Following this protocol, the Supreme Court recently unanimously

overruled two courts of appeals on qualified immunity grounds

based on video footage of the events. In City of Tahlequah, the

Court summarized the video footage of a police shooting before

holding that the officers had not violated clearly established

law. 142 S. Ct. at 10-11. And in Rivas-Villegas, the Court

relied on footage showing the defendant-officer placing his knee

on the suspect’s back “for no more than 8 seconds,” to conclude

that the officer was entitled to qualified immunity. 142 S. Ct.

at 7.

Watching the video evidence here, it is not clear that

any constitutional violation occurred — let alone a violation of

clearly established Fourth Amendment law.

3. Cheema’s Actions Did Not Violate Clearly Established

Law

As this caselaw establishes, a defendant is entitled

to summary judgment when, “looking at the evidence in the light

most favorable to, and drawing all inferences most favorable to”

the plaintiff, no reasonable jury “could conclude that it was

objectively unreasonable for the defendant to believe that he

was acting in a fashion that did not clearly violate an

established federally protected right.” Hartline v. Gallo, 546

F.3d 95, 102 (2d Cir. 2008). Put differently, summary judgment

is appropriate here if no reasonable jury could conclude that

Cheema violated a legal obligation that was “sufficiently clear

that every reasonable official would have understood” his

conduct to violate that obligation. Rivas-Villegas, 142 S. Ct.

at 7.

Evaluating the evidence and drawing inferences as

such, no reasonable jury could so conclude. Simply put, neither

Plaintiff nor the R&R (nor I) have surfaced any case recognizing

a “clearly established” right that Cheema’s actions, even viewed

in the light most favorable to the plaintiff, could be held to

violate.

a. Supreme Court and Second Circuit Cases on

Excessive Force

The Supreme Court and Second Circuit have decided a

substantial number of qualified immunity cases involving

allegations of excessive force. Given the primacy of the

“clearly established” standard here, it behooves us to review

these cases in some detail.

In City of Tahlequah, the Supreme Court unanimously

held that officers were entitled to qualified immunity. 142 S.

Ct. at 11. There, the suspect’s ex-wife had called the police

to say that he was intoxicated and that she was concerned the

situation would get “ugly.” Id. at 10. The Court reviewed

uncontroverted video evidence of the incident, which showed that

when the officers tried to arrest the suspect, he refused to

comply with their orders; and when he picked up a hammer and

appeared ready to throw it at the officers, they shot him. Id.

at 10-11. The Court declined to reach the constitutional

question, instead proceeding directly to the “clearly-

established” question. Id. at 12. The Court held that none of

the cases relied on by the Tenth Circuit came even “close to

establishing that the officers’ conduct was unlawful.” Id.

Accordingly, the officers were thus entitled to qualified

immunity. Id.

In Husbands ex rel. Forde v. City of New York, the

Second Circuit upheld the district court’s grant of summary

judgment to an officer who had punched a minor suspect in an

effort to put him in handcuffs. 335 F. App’x at 128-29. The

record showed that the plaintiff, whom the police believed had a

gun (but from whom no gun was recovered), “was doing something

with his hands that made it difficult to arrest him.” Id. at

129. Where the officers reasonably feared for their safety, the

court held that “[o]ne punch to a suspect who is resisting being

put in handcuffs does not rise to the level of excessive force.”

The court held that no constitutional violation occurred at all,

clearly established or otherwise. Id.

The case that best supports Singh’s argument is

perhaps Brown v. City of New York, 798 F.3d 94, 102–03 (2d Cir.

2015). There, the district court had granted summary judgment

on constitutional — not qualified immunity — grounds, holding

that no Fourth Amendment violation could be found where, after

the plaintiff had refused to give her hands to be handcuffed,

the officer took her to the ground, pushed her face into

pavement, and then pepper sprayed her twice in the face while

she was on the ground. Id.

The alleged excessive force in that case, too, was

video-recorded. Assessing the video, the Second Circuit found

that all three Graham factors favored the plaintiff: the

suspected crime was minor, she “posed no threat whatever to the

safety of the officers or others,” and “[a]s for actively

resisting arrest, [she] was not fleeing, nor physically

attacking an officer, nor even making a move that an officer

could reasonably interpret as threatening an attack.” Id.

(emphasis added). On that basis, the Second Circuit concluded

that the “assessment of a jury [was] needed.” Id. at 103; see

also id. (stating that, for purposes of the constitutional

analysis, “the factual determination of excessiveness” was for

the jury in that case).

Singh’s actions are distinguishable from Ms. Brown’s.

His quick move toward Officer Walker is reasonably interpreted

as threatening, and / or as a first step toward flight through

the open door. Moreover, the amount of force the police used is

distinguishable: Brown was pepper-sprayed twice in the face at

close range; no similar force was applied to Singh.6

Brown is distinguishable on another ground, as well:

the Court of Appeals’ analysis relied fairly prominently on the

size disparity between the plaintiff and the officers who

effectuated her arrest. 798 F.3d at 101 (“Officer Plevritis was

5′10″ and weighed 215 pounds; Officer Naimoli was 5′7″ and

weighed 150–160 pounds; Brown was 5′6″ and weighed 120

pounds.”). Reviewing the record, the Court of Appeals observed

that “no reason appears why, with Brown standing, each officer

could not have simply held one of her arms, brought it behind

her, and put handcuffs on her wrists.” Id. at 102. The court

continued:

Police officers must be entitled to make a reasonable

selection among alternative techniques for making an

arrest. But when the amount of force used by two

police officers involves taking a 120–pound woman to

the ground and twice spraying her directly in the face

with pepper spray, the availability of a much less

aggressive technique is at least relevant to making

6 Singh contends that Cheema’s use of force exacerbated a pre-existing

shoulder injury, Pl. Br. in Support of Pl. Mot. for Summ. J. 7, ECF No. 46-1,

but the Second Circuit has limited the inferences that may be drawn from that

contention in assessing whether the force was excessive. In Kalfus v. New

York & Presbyterian Hosp., 476 F. App’x 877, 880–81 (2d Cir. 2012), the

plaintiff had “resisted arrest by refusing to stand up or to permit himself

to be handcuffed”; he alleged that the defendant patrolmen employed excessive

force when they “turned him onto his stomach, pulled his arms behind his

back, placed handcuffs on him, and lifted him onto his feet by pulling his

arms, sweatshirt and waist.” In the process, they caused a “rotator cuff

tear” that was “an extension of a pre-existing” injury. Id. at 881. The

Second Circuit wrote that the plaintiff’s shoulder injury did not support a

claim of excessive force because the officers “had no reason to know that

[his] existing shoulder injury might be aggravated if his arms were pulled or

he were handcuffed.” Id. Here, too, Cheema had no reason to know about

Singh’s pre-existing shoulder condition.

the ultimate determination of whether excessive force

was used.

Id. at 103. Here, in contrast, Singh significantly outweighed

Officer Walker – the officer in whose direction he was headed

after he evaded Cheema’s effort to handcuff him. According to

the deposition testimony, Singh is five-foot-seven and weighed

190 pounds at the time of arrest, while Officer Walker was five-

foot-two and weighed approximately 140 pounds. Singh Dep.

60:25-61:2; Dep. of Malinda Walker 6:2-13, ECF No. 48-9.7

The case of Lennox v. Miller, 968 F.3d 150, 156 (2d

Cir. 2020), is likewise distinguishable; there, the officer

brought plaintiff to the ground after he had already handcuffed

her, and then “put his full body weight on her, kneeling on her

back, and slammed her head into the ground, notwithstanding the

fact that she had already been handcuffed and positioned face

down.” Id. The court held that a “jury could find that [the

officer] used unreasonable force on an individual who was not

resisting arrest and who was secured in such a manner that she

posed no threat to public safety.” Id.; cf. Dunham v. City of

New York, No. 11-CV-01223, 2021 WL 918373, at *7 (S.D.N.Y. Mar.

10, 2021) (no qualified immunity where “a reasonable jury could

7 Following remand, the district court granted summary judgment again,

but on qualified immunity grounds — i.e., on the basis that the Fourth

Amendment law had not been clearly established when Ms. Brown was arrested.

The Second Circuit upheld that decision. Brown v. City of New York, 862 F.3d

182, 190-92 (2d Cir. 2017).

find that [plaintiff] no longer posed an immediate threat . . .

and . . . was no longer resisting,” and therefore “that the

officers gratuitously inflicted pain in a manner that was not a

reasonable response to the circumstances once Plaintiff was no

longer resisting arrest” (emphasis added)). For obvious

reasons, Dunham does not map well onto the instant facts: the

video leaves no dispute that Singh had declined to submit to

handcuffing at the time of Cheema’s brief action.

Plaintiff cites some of these cases in passing, but in

the end does not successfully identify a source of clearly

established law that Cheema’s actions could be found to violate.

In one brief paragraph analyzing the qualified immunity defense

to the excessive-force claim, the R&R invokes the unpublished

report and recommendation of the magistrate judge in Hicks v.

City of New York, 2015 WL 5774575, at *3 (E.D.N.Y. 2015). The

allegations in that case were markedly different from those

here:

Plaintiff states that the officers used something to

break down his door and that the first officer to

enter was wearing a helmet and shield. He claims this

officer punched him in the face and that the other

officers attacked him by punching, kicking, and tasing

him even before he had a chance to say anything.

Specifically, Hicks claims that when the first officer

entered, plaintiff simply stood there, tried to ask

what was going on, but the officer punched him in the

face and his head was slammed against a wall.

According to plaintiff, even though he put up no

fight, he was attacked by approximately eight officers

and taken down to the floor. . . . Plaintiff alleges

that he was struck below his right eye with a taser

prong, that this taser prong hooked into his cheek,

and that an officer yanked the hooked prong out of his

face. He was also struck with the taser in the left

arm and in his torso several times.

Id.; see also id. at *10 (“Hicks asserts he did nothing to

provoke any use of force and that the defendants’ punches, kicks

and taser use were gratuitous.”). There was no video evidence

in that case. Hicks does not “clearly establish,” at the

requisite level of specificity, any rule of law applicable to

this case.8

b. Cheema’s Actions “Clearly Violate” No Rule

Emerging from These Cases

Applying these cases to the undisputed evidence here,

including especially the video footage, no reasonable jury could

conclude that Officer Cheema violated clearly established law.

Two of the three Graham factors strongly favor Cheema. First,

the video makes clear that Singh was resisting being handcuffed.

Plaintiff acknowledges that he refused to go to the hospital

voluntarily, at which point Cheema gave Singh the choice: come

voluntarily, or the officers would place him in handcuffs. Pl.

8 Furthermore, it is not entirely clear that an order issued at the

district court level can “clearly establish” anything for purposes of

qualified immunity. The Supreme Court has recently suggested (albeit

obliquely) that the relevant universe of case law may be limited to Supreme

Court authority. See, e.g., Reichle v. Howards, 566 U.S. 658, 665-66 (2012)

(“Assuming arguendo that controlling Court of Appeals’ authority could be a

dispositive source of clearly established law in the circumstances of this

case, the Tenth Circuit’s cases do not satisfy the ‘clearly established’

standard here.”); Rivas-Villegas, 142 S. Ct. at *2 (“Even assuming that

controlling Circuit precedent clearly establishes law for purposes of § 1983

. . . .”).

Opp. 4 (citing Cheema Dep. 82-89). Singh first indicated his

intent to go voluntarily, but then changed course: he said that

the officers would “have to handcuff him.” Pl. 56.1 ¶¶ 33-35.

As the video shows, Singh then extended his hands behind him,

and Officer Cheema took out handcuffs and began to place them on

Singh. Then Singh changed course again: he withdrew his hands

from behind his back, brought them out in front of him, and took

a quick step away from Cheema. Video 7:55-8:00.

Second, the video shows that it was utterly reasonable

for Cheema to conclude that Singh posed a risk to officer safety

and a risk of flight through the open door. The video shows

Singh taking a sudden step towards Cheema’s partner, Officer

Walker, with his (Singh’s) hands out in front of him.9 Cheema

watched Singh move in that direction. E.g., Cheema Dep. 102:16-

24 (“It was a sudden step towards my partner. . . . At that

point, based off of his behavior, and based off of everything

that led up to that point, just different levels of aggression

that he kept displaying the whole time, his behavior changing,

and at that point I no longer felt, like, okay this is a safe

9 Cheema testified, and Singh does not dispute, that as Singh withdrew

his hands and stepped away from Cheema, he stated, “I’m just joking, you’re

not going to handcuff me.” Pl. 56.1 ¶ 35. It should go without saying that

Singh cannot benefit from his claim to have been joking. Even if he had been

joking about submitting to be handcuffed, that says nothing about his intent

to flee or harm someone else on the premises. Moreover, Singh’s subjective

motivations are largely irrelevant. “Our focus is not on [plaintiff’s]

motivations but instead on the sequence of events from the perspective of a

reasonable officer at the scene.” Tracy v. Freshwater, 623 F.3d 90, 93, 97

(2d Cir. 2010).

scene. . . .”). The video also corroborates Cheema’s testimony

that he could not see Singh’s hands and did not know what he was

doing with them, because the video shows Cheema standing behind

Singh as he moves forward towards Officer Walker. Video 8:00;

see Cheema Dep. 103:10-11 (“It was just the initial action of

him bringing his hands to the front and saying, ‘No, no, no,

you're not going to handcuff me.’ Then he took that sudden step,

which made me no longer feel safe.”).10

As Judge Tiscione acknowledged, “Cheema’s use of force

against Plaintiff was deployed as an instantaneous response to a

potential safety threat he posed against Walker.” R&R 8. Singh

might have been able to overpower Walker or grab one of the

officers’ weapons. See generally Pinero v. Burbran, 18-CV-4698,

2021 WL 4224727, at *4 (S.D.N.Y. Sept. 16, 2021) (“Plaintiff’s

active resistance of arrest and his physical hold on [the

officer’s] uniform posed the immediate threat that Plaintiff

would be able to overpower the officers or grab one of their

weapons.”); see also MacLeod v. Town of Brattleboro, 548 F.

App’x 6, 8 (2d Cir. 2013) (use of a taser was objectively

reasonable where fleeing motorist pulled into an abandoned lot

in surrender, got out of his car and kneeled on the ground, but

10 The third officer on this scene — Officer Davis — shared Cheema’s

assessment that Singh was potentially dangerous. E.g., Dep. of Justin Davis

120:15-122:24, ECF No. 48-8 (“I didn’t know what he was going to do. . . . I

thought he could attack anybody.”).

subsequently “rose to his feet, turned to face the officers with

his hands free and outstretched, and refused to return to the

ground.”).

In sum, given Singh’s apparent refusal to be

handcuffed, his erratic behavior and high level of intoxication,

the fact that the EMTs told him that before the police arrived,

Singh was uncooperative to the point where they were concerned

for their safety, and his sudden movement in the direction of

Officer Walker, no reasonable jury could find Cheema liable over

a qualified immunity defense. Cheema is entitled to qualified

immunity (and therefore summary judgment) on Plaintiff’s

excessive-force claim.

B. State-Law Claim for Assault and Battery

Summary judgment is also granted as to Plaintiff’s

state-law assault and battery claim.

“Except for § 1983’s requirement that the tort be

committed under color of state law, the essential elements of

excessive force and state law assault and battery claims are

substantially identical.” Humphrey v. Landers, 344 F. App’x

686, 688 (2d Cir. 2009). While “the doctrine of qualified

immunity applies to federal causes of action but is not

generally understood to protect officials from claims based on

state law,” Stein ex rel. Stein v. Barthelson, 419 Fed. Appx.

67, 71 (2d Cir. 2011), New York State has its own analogue. The

New York courts “grant government officials qualified immunity

on state-law claims except where the officials’ actions are

undertaken in bad faith or without a reasonable basis.” Jones

v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006).

Given my analysis on the excessive force claim,

qualified immunity applies to the battery claim too. See, e.g.,

Felix v. City of New York, 408 F. Supp. 3d 304, 312 (S.D.N.Y.

2019) (“The finding of qualified immunity on the excessive force

claims requires a grant of summary judgment on assault and

battery as well.”); Mesa v. City of New York, No. 9-CV-10464,

2013 WL 31002, at *27 (S.D.N.Y. Jan. 3, 2013) (“Thus, as the

force employed against Mesa was objectively reasonable under the

circumstances - giving rise to a finding of qualified immunity -

her assault and battery claims must fail as well.”).

* * * * *

There is a robust debate underway — in federal courts,

in the academic literature, and elsewhere — about the origins

and application of the doctrine of qualified immunity. See,

e.g., McKinney v. City of Middletown, 2022 WL 4454475, at *12-

14, *20-23 (2d Cir. Sept. 26, 2022) (discussing the wisdom of

qualified immunity in majority and dissenting opinions); see

also William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L.

Rev. 45 (2018). Together with Monell v. Dept. of Social Servs.,

436 U.S. 658 (1978), the doctrine of qualified immunity creates

a void in the constitutional landscape: it is a regular

occurrence that citizens who believe their constitutional rights

have been violated run headlong into the qualified immunity

doctrine when they bring claims against individual law

enforcement officers, and into Monell when they pursue the

relevant municipality.

District courts must, however, take the law of

qualified immunity as they find it. And the facts of this case

— involving an officer who used a single, facially reasonable

maneuver to subdue a suspect who was undisputedly resisting

arrest after a series of erratic actions (whether his intent was

“joking” or not) — do not even approach the point where the

shield of qualified immunity begins to lift, given recent

Supreme Court precedent.

C. Other Claims

Plaintiff originally brought additional claims against

Cheema, the City, and “John Does” #1-10. In Plaintiff’s

opposition brief, he agreed to dismiss several claims: negligent

hiring and retention, failure to intercede, and intentional

infliction of emotional distress. Pl. Opp. 27 n.17; see also

R&R 5. These claims may be “dismissed at the plaintiff’s

request only by court order.” Fed. R. Civ. P. 41(a)(2). Those

claims are hereby dismissed.

Plaintiff also brought a municipal liability claim

against the City under Section 1983. Defendants state, in their

opposition brief, that “Plaintiff has agreed to withdraw this

claim. The parties will submit an appropriate stipulation of

partial dismissal.” Def. Br. 1. Upon review of the docket,

however, the parties do not appear to have filed that

stipulation. The parties are ordered to indicate in letters, no

later than October 6, 2022, whether Plaintiff has stipulated to

the dismissal of the municipal liability claim, and if not, to

describe the current status of that claim.

Finally, to the extent Plaintiff has any remaining

claims against “John Doe” defendants, those are dismissed

because Plaintiff has not identified them even after the close

of discovery. See Keesh v. Artuz, No. 97–CV–8417, 2008 WL

3166654, at *2 (S.D.N.Y. Aug. 6, 2008) (“Even after discovery,

plaintiff has failed to identify the ‘John Doe’ and ‘Jane Doe’

defendants. Accordingly, the complaint against them must be

dismissed.”).

IV. Conclusion

For these reasons, I adopt the R&R in part.

Plaintiff’s motion for summary judgment on his excessive-force

claim is DENIED, and Cheema’s cross-motion for summary judgment

is GRANTED as to Plaintiff’s Section 1983 claims for false

arrest and excessive force, and state-law claim for assault and

battery. The parties shall file letters by October 6, 2022,

indicating whether they have stipulated to the dismissal of the

municipal liability claim, and (if not) whether they intend to

do so.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: September 30, 2022

Brooklyn, New York