Benny v. The City of Long Beach

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RICKY JOSHUA BENNY,

PLAINTIFF,

MEMORANDUM AND ORDER

-against-

20-CV-1908 (KAM)(ST)

THE CITY OF LONG BEACH, THE LONG

BEACH POLICE DEPARTMENT, POLICE

OFFICER JOSEPH WIEMANN, POLICE

OFFICER ROCCO WALSH and OFFICERS

JOHN DOES 1-10,

Defendants.

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MATSUMOTO, United States District Judge:

On July 27, 2022, the Court granted in part and denied

in part Defendants’ motion for summary judgment. (ECF No. 51,

Memorandum and Order.) The Court granted Defendants’ summary

judgment on Plaintiff’s false arrest, malicious prosecution, abuse

of process, fabrication of evidence, Equal Protection, and First

Amendment claims. (Id.) The Court denied Defendants’ summary

judgment with respect to Plaintiff’s claims of excessive force and

failure to intervene. (Id.) On September 14, 15, and 16, 2022,

Plaintiff and Defendants each submitted fully briefed motions for

reconsideration regarding the Court’s decision on Defendants’

motion for summary judgment. (ECF Nos. 67-69.)

Defendants now request that the Court reconsider its

denial of qualified immunity to the individual officers regarding

Plaintiff’s claims for excessive force and failure to intervene.

(ECF No. 66-1, Defendants’ Motion for Reconsideration (“Def.

Mot.”).) Plaintiff requests that this Court reconsider its grant

of summary judgment on Plaintiff’s state and federal law claims of

false arrest, malicious prosecution, and fabrication of evidence.

(ECF No. 67-1, Plaintiff’s Motion for Reconsideration (“Pl.

Mot.”).)

Motions for reconsideration may be brought pursuant to

Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and

Local Civil Rule 6.3.1 See, e.g., Shearard v. Geithner, No. 09-

cv-963, 2010 WL 2243414, at *1 (E.D.N.Y. May 30, 2010). Having

reviewed Plaintiff’s and Defendants’ respective motions for

reconsideration, the Court finds that the motion papers of the

parties do not satisfy the demanding standard for reconsideration

under Rule 59(e) and 60(b).

Federal Rule of Civil Procedure 59(e) “allows a litigant

to file a ‘motion to alter or amend a judgment.’” Banister v.

Davis, 140 S. Ct. 1698, 1703 (2020) (quoting Fed. R. Civ. P. 59

(e)). ”A party may move for reconsideration and obtain relief

only when the party identifies an intervening change of controlling

law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.” Cho v. Blackberry

1 Plaintiff brings his motion for reconsideration pursuant to Rule 59(e), but

Defendants do not make it clear which rule they are invoking in their motion

for reconsideration. (ECF No. 67-1, Pl. Mot. at 1.) Accordingly, Court will

consider the Defendants’ motion for reconsideration under the strict

standards of both Rule 59(e) and 60(b).

Ltd., 991 F.3d 155, 170 (2d Cir. 2021) (brackets omitted). Rule

59(e) motions are not vehicles for parties to relitigate cases or

advance new theories that they failed to raise in their underlying

motion practice. Banister, 140 S. Ct. at 1703; see Sequa Corp. v.

GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (“It is well-settled

that Rule 59 is not a vehicle for . . . taking a ‘second bite at

the apple[.]’”). Reconsideration under Rule 59(e) is “an

extraordinary remedy to be employed sparingly in the interests of

finality and conservation of scarce judicial resources.” In re

Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614

(S.D.N.Y. 2000) (quotation omitted).

Rule 60(b) allows courts to relieve a party from a final

judgment on the basis of several specified circumstances,

including newly discovered evidence, mistakes, or “any other

reason that justifies relief.” Fed. R. Civ. P. 60(b). “The

standard for granting such a motion is strict, and reconsideration

will generally be denied unless the moving party can point to

controlling decisions or data that the court overlooked . . . that

might reasonably be expected to alter the conclusion reached by

the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d

Cir. 1995). Like a Rule 59(e) motion, a Rule 60(b) “cannot serve

as an attempt to relitigate the merits.” Ren Yuan Deng v. N.Y.

State Off. of Mental Health, 783 F. App’x 72, 73 (2d Cir. 2019)

(quoting Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir. 1989));

see Yuk Chun Kwong v. United States, 01-cv-4307, 2006 WL 467956,

at *1 (E.D.N.Y. Feb. 27, 2006) (“Rule 60(b) is not designed to

afford occasion for a moving party who is unhappy with the decision

regarding the initial motion to reargue matters already fully

considered and rejected by the Court.” (quotation omitted)).

Neither Defendants nor Plaintiff have cited any

controlling decisions or information that the Court overlooked or

presented any clear error or new evidence in support of their

reconsideration motions. Moreover, there are no exceptional

circumstances that would alter the Court’s conclusions or justify

relief from the judgment to either party in this case. The parties

primarily repeat the same factual allegations and legal arguments

they made in their moving papers for Defendants’ motion for summary

judgment.

The Court notes that Defendants allege in their motion

for reconsideration that Plaintiff and the Court did not cite cases

that, pursuant to the Supreme Court’s standards set forth in City

of Tahlequah v. Bond, 142 S. Ct. 9 (2021) (per curiam), and Rivas-

Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (per curiam), “squarely

govern the specific facts at issue” and that the cases the Court

cited were “substantially dissimilar” from the facts of this

instant action. (ECF No. 66-1, Def. Mot. at 5-7.)

The per curiam Supreme Court decisions Defendants cite

do not alter the Supreme Court’s standards for determining

reasonableness of use of force, established in Graham v. Connor,

490 U.S. 386, 396 (1989). In fact, the two cases Defendants cite

reinforce that lower courts can deny qualified immunity where none

of the Graham factors were met. The Supreme Court confirmed that

in an “an obvious case” where the factual record can demonstrate

that conduct is unconstitutional, summary judgment can be denied

“even without a body of relevant case law” on analogous cases.

Rivas-Villegas, 142 S. Ct. at 8 (quotation omitted). Those

decisions also did not shed new light on Graham, as they instead

say that the analysis of whether an officer has used excessive

force continues to depend on “the facts and circumstances of each

particular case, including (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. (brackets

omitted) (quoting Graham, 490 U.S. at 396).

The Court denied summary judgment because there were

factual issues as to the reasonableness of Defendants’ use of

force, particularly in the time period between Plaintiff being

advised he was under arrest and the initial takedown. (ECF No.

51, Memorandum and Order at 59-62.) In limiting their request for

reconsideration to the issue of qualified immunity (ECF No. 66-1,

Def. Mot. at 6), Defendants recognize, as they must on summary

judgment, that there are disputed facts, and that the record read

in Plaintiff’s favor demonstrated that none of the Graham factors

were met as to the officers’ initial takedown. The Defendants

focus their arguments for reconsideration on lack of cases in the

Court’s decision that would “squarely govern” the facts in this

case. Defendants, however, ignore the Court’s denial of summary

judgment precisely because there are disputes of material facts

that could determine the outcome of the case.

Defendants also cites cases to support their argument

that a reasonable officer could have expected Plaintiff to be

dangerous. (ECF No. 66-1, Def. Mot. at 9-11.) Yet in their motion

for summary judgment and even now, they raise no deposition,

affidavit, or any evidence (aside from the videos that they

believe, and the Court disagrees with on summary judgment, clearly

demonstrates their interpretation of the circumstances), in which

an officer expected Plaintiff to be dangerous. In any case, that

analysis can end once the Defendants failed to dispute in their

motion for reconsideration that this Court properly held that the

factual record could support a reasonable jury’s view that none of

the Graham factors are met.

Defendants also attest for the first time that the

initial takedown did not cause injury to Plaintiff and, thereby,

that fact alone should defeat the excessive force claim. The Court

notes that in the Supreme Court decision cited by Defendants,

however, the Supreme Court expressly stated that the “core judicial

inquiry” is “not whether a certain quantum of injury was sustained,

but rather ‘whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to

cause harm.’” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)). The Supreme Court

further explained, “Injury and force . . . are only imperfectly

correlated, and it is the latter that ultimately counts. An inmate

who is gratuitously beaten by guards does not lose his ability to

pursue an excessive force claim merely because he has the good

fortune to escape without serious injury.” Id. Finally, the Court

notes that the video could support a reasonable jury’s view that

parts of Plaintiff’s body appear to have made contact with the

ground even during the initial takedown. The Court also notes

that Plaintiff ultimately suffered injuries, including a fracture,

during the arrest, though it remains unclear to the Court how each

injury occurred and at what points of his encounter with

Defendants. Accordingly, the Court concludes, again on

reconsideration as it did on summary judgment, that the

circumstances, nature, extent, and consequences of an injury are

questions of material fact that should be reserved for a reasonable

jury. See Crowell v. Benson, 285 U.S. 22, 54 (1932).

CONCLUSION

For the foregoing reasons, both Defendants’ and

Plaintiff’s motions for reconsideration are respectfully denied.

SO ORDERED.

Dated: Brooklyn, New York

October 14, 2022

__/s/ Kiyo A. Matsumoto_____

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York