Ashley v. Gonzalez

DOCUMENT

ELECTRONICALLY FILED

DOC #:

UNITED STATES DISTRICT COURT DATE FILED:_11/30/20

SOUTHERN DISTRICT OF NEW YORK

Robert Ashley,

Plaintiff,

19-cv-6282 (AJN)

—V—

MEMORANDUM OPINION &

Correction Officer Gonzalez, et al., ORDER

Defendants.

ALISON J. NATHAN, District Judge:

Pro se Plaintiff Robert Ashley brings this civil rights action against Defendants

Correction Officer Adam Gonzalez, Correction Officer Anthony Dinicola, and Captain Natalia

Gerald.'! Now before the Court is Defendants’ motion to dismiss the complaint. For the reasons

set forth below, Defendants’ motion, Dkt. No. 41, is GRANTED in part and DENIED in part.

1. BACKGROUND

A. Factual Background

For the purposes of deciding this motion, the Court assumes that all factual allegations

contained in Plaintiff's complaint are true. See Thea v. Kleinhandler, 807 F.3d 492, 494 (2d Cir.

2015). On January 8, 2019, Plaintiff was in a cell at the Manhattan Detention Complex. Dkt.

No. 2 (“Compl.”) at 4. At around 8:06 a.m., his cell door opened, and he exited his cell in order

to investigate. Jd. He saw Defendants Gonzalez, Dinicola, and Gerald escorting another inmate

to the housing area. /d. Dinicola and Gonzalez saw him and approached Plaintiff. They then

' The Plaintiff’s complaint lists Captain Gerald’s name as “Captain Garald.” But the

Defendants’ filings indicate that the Defendant’s correct name is Natalia Gerald, see Dkt. No. 41.

The Court will refer to the Defendant as Captain Gerald for purposes of this motion to dismiss.

threatened to “spray” Plaintiff if he moved. Id. Plaintiff put his hands up, and they sprayed him

with O.C. spray, a kind of pepper spray. At that point, Dinicola lifted Plaintiff and slammed him

on the ground. Id. at 5. One of the Defendants kicked him and pinned him down with his foot

until a “probe team” picked Plaintiff up from the ground. Id. at 4–5. As Plaintiff was being

lifted from the ground, Dinicola used a pejorative term toward Plaintiff. Id. at 5. Following the

incident, Plaintiff reported having “a ball on [his] back,” along with back pain and neck pain. Id.

Based on the foregoing allegations, Plaintiff seeks monetary damages pursuant to 42

U.S.C. § 1983.

B. Procedural Background

On July 2, 2019, Plaintiff filed a complaint against Defendants Gonzalez, Dinicola, and

Gerald. Dkt. No. 2. All of the Defendants waived service on August 6, 2019. Dkt. No. 10.

Defendants filed an Answer to the Complaint on November 14, 2019. Dkt. No. 26. On

December 18, 2019, Magistrate Judge Ona T. Wang entered the parties’ proposed case

management plan and scheduling order, which established that Defendants were to file their

anticipated motion for judgment on the pleadings by no later than January 15, 2020. Dkt. No.

34. Notwithstanding that they had already filed an Answer, on January 15, 2020, Defendants

filed a motion to dismiss. Dkt. No. 41. The Court then issued an order on January 17, 2020 that

gave Plaintiff the opportunity to amend his Complaint. Dkt. No. 42. Plaintiff then filed three

letters—on January 17, 2020; January 22, 2020; and February 7, 2020. Dkt. Nos. 43–45.

Defendants filed their reply memorandum of law on February 25, 2020. Dkt. No. 46.

On April 30, 2020, Defendants filed a letter requesting that Plaintiff be allowed to

supplement his opposition to the motion to dismiss and requesting a stay of discovery until the

present motion is decided. Dkt. No. 72. Magistrate Judge Ona T. Wang granted that motion.

Dkt. No. 74. Plaintiff then filed a series of letters, some of which referred to his inability to view

the surveillance videos but others of which addressed the merits of the Defendants’ motion. See

Dkt. Nos. 76, 80, 83–85. On May 27, 2020, Defendants filed a supplemental reply memorandum

of law in support of their motion. Dkt. No. 86.

II. DISCUSSION

As a preliminary matter, the Court must address the proper procedural basis for

Defendants’ motion. As already noted, Defendants filed an Answer to Plaintiff’s Complaint on

November 14, 2019. Dkt. No. 26. Then, after conducting an initial case management

conference with the parties, Judge Wang entered the parties’ proposed case management plan

and scheduling order, which set a briefing schedule for Defendants to file their anticipated

motion for judgment on the pleadings by no later than January 15, 2020. Dkt. No. 34.

Defendants’ January 15, 2020 motion, however, is styled as a motion to dismiss for failure to

state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 37, 41.

But Rule 12(b) provides that “[a] motion asserting any of these defenses must be made before

pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). Because an Answer has

been filed, the proper filing would have been a motion for judgment on the pleadings under Rule

12(c), as anticipated by the case management plan and scheduling order entered into the docket

on December 18, 2019. See Dkt. No. 34. The difference between a Rule 12(b)(6) and Rule

12(c) motions “is largely academic because the standard under Rule 12(c) is the same as the

standard under Rule 12(b)(6): Accepting the non-moving party's allegations as true and viewing

the facts in the light most favorable to that party, judgment on the pleadings or dismissal for

failure to state a claim should be granted if the moving party ‘is entitled to judgment as a matter

of law.’” Richards v. Select Ins. Co., 40 F. Supp. 2d 163, 165 (S.D.N.Y. 1999) (citing Burns

Int’l Sec. Servs., Inc. v. International Union, 47 F.3d 14, 16 (2d Cir. 1995) (per curiam)). In light

of this, and in order to ensure that the case proceeds without further delay, the Court will

construe Defendants’ motion as a Rule 12(c) motion for judgment on the pleadings.

Defendants also request in their motion that the Court consider surveillance videos that

Defendants submitted as exhibits to their motion. They concede that “the videos enclosed as

Exhibit C are not incorporated into the Complaint,” but they assert that the videos “should be

considered here because they are essential to a full understanding of the events underlying

[plaintiff’s] complaint, and [plaintiff cannot] . . . dispute their authenticity.” See Dkt. No. 41 at 1

n.1 (citation and internal quotation marks omitted).

The Court may not consider the videos at this juncture. As Defendants note, the

Complaint does not incorporate these videos. Furthermore, there is no basis to conclude that

these videos are integral or essential to the Complaint. Courts in this district have expressed

skepticism at such claims, emphasizing that extraneous videos documenting the events in

question are not properly considered on a motion to dismiss unless the plaintiff relied upon the

videos when drafting the complaint. See, e.g., Gersbacher v. City of New York, 134 F. Supp. 3d

711, 719–20 (S.D.N.Y. 2015) (collecting cases) (“Because Gersbacher did not rely upon the

videos in drafting the complaint, they are not integral to the complaint and cannot be considered

in this Court's evaluation of the motion to dismiss.”); Pluma v. City of New York, No. 13–CV–

2017 (LAP), 2015 WL 1623828, at *3 (S.D.N.Y. March 31, 2015)) (declining to consider videos

submitted by the defendants because the videos were neither incorporated by reference and the

plaintiff did not rely on them in bringing his complaint). See also Chambers v. Time Warner,

Inc., 282 F.3d 147, 153 (2d Cir. 2002) (“[A] plaintiff’s reliance on the terms and effect of a

document in drafting the complaint is a necessary prerequisite to the court’s consideration of the

document on a dismissal motion; mere notice or possession is not enough.”). That standard is

not met here. While the Court granted Defendants’ request to allow the Plaintiff to supplement

his opposition to their motion to dismiss with comments on the surveillance videos, see Dkt. No.

74, that does not change the Court’s analysis as to whether the videos are properly understood as

essential to the Complaint. Nor does the Court see any extraordinary circumstances that would

justify premature consideration of these videos. Having concluded that the submitted videos are

not properly presented to the Court for purposes of resolving this motion, the Court will not

consider them.

Defendants also request that the Court “convert their motion to a motion for summary

judgement under Federal Rule of Civil Procedure 12(d),” should the Court determine that the

submitted videos are not properly before it on this motion. Dkt. No. 41 at 1 n.1. Whether to

convert a motion to dismiss into a motion for summary judgment is left to the sound discretion of

the district court. See Kouakou v. Fideliscare New York, 920 F. Supp. 2d 391, 396 (S.D.N.Y.

2012). Rule 12(d) requires that the court or the non-moving party give “sufficient notice to an

opposing party and an opportunity for that party to respond.” Groden v. Random House, Inc., 61

F.3d 1045, 1052 (2d Cir.1995). See also McPherson v. Coombe, 174 F.3d 276, 2828 (2d

Cir.1999) (“[A]bsent a clear indication that the pro se litigant understands the nature and

consequences of Rule 56 . . . he or she must be so informed by the movant in the notice of

motion or, failing that, by the district court.”). And pursuant to Local Rule 12.1, on January 15,

2020, the Defendants filed a notice that explained the consequences of the Court’s conversion of

the Defendants’ motion into a motion for summary judgment; among other things, the

Defendants attached to their Notice the full text of Rule 56 of the Federal Rules of Civil

Procedure. See Dkt. No. 40, Ex. 1. Nonetheless, in evaluating the parties’ submissions, the

Court cannot conclude that Plaintiff fully understood, when he filed his supplemental opposition

to the Defendants’ motion, that responding to the motion and to the videos “would be his last

chance to submit evidence” in support of his claims. Hernandez v. Coffey, 582 F.3d 303, 309 (2d

Cir. 2009). In any event, given the nature of the claims at issue, the Court deems the

Defendants’ arguments in support of conversion under Rule 12(d) insufficient.

As a result, the Court construes the Defendants’ motion as a motion for judgment on the

pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In evaluating the

sufficiency of the Defendants’ motion, the Court will not consider extraneous materials

submitted by the Defendants, including the surveillance videos of the incident in question, see

Dkt. No. 39, Ex. C.

A. Legal Standard

Rule 12(c) permits a party to move for judgment on the pleadings “[a]fter the pleadings

are closed.” Under Rule 12(c), judgment on the pleadings is proper if the material facts are

undisputed and the moving party is entitled to judgment as a matter of law based on the contents

of the pleadings. See, e.g., Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.

1988). Courts evaluate Rule 12(c) motions employing the familiar 12(b)(6) standard,

“accept[ing] all factual allegations in the complaint as true and draw[ing] all reasonable

inferences in [the] plaintiffs’ favor.” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)

(quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam) (alterations omitted)).

Thus, to survive a motion for judgment on the pleadings, the complaint must include “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, when a plaintiff is

proceeding pro se, the Court holds the pleadings “to less stringent standards than formal

pleadings drafted by lawyers.” Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997) (quoting

Haines v. Kerner, 404 U.S. 519, 521 (1972)). That is, the Court will liberally construe the

complaint. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017).

Notwithstanding this, “the duty to liberally construe a plaintiff’s complaint [is not] the equivalent

of a duty to re-write it.” Kirk v. Heppt, 532 F. Supp. 2d 586, 590 (S.D.N.Y. 2008) (alteration in

original) (citation omitted). If a pro se plaintiff has not pled sufficient facts to state a claim that

is plausible on its face, the Court must dismiss his complaint. See Hill v. Curcione, 657 F.3d

116, 122 (2d Cir. 2011).

B. Defendants’ motion as to Captain Gerald is granted.

Defendants first argue that Plaintiff has failed to state a claim against Captain Gerald.

Their primary argument is that Plaintiff failed to allege any facts supporting the claim that she

was personally involved in the use of force against him. See Dkt. No. 41 at 4. The Court agrees.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the

defendants’ direct and personal involvement in the alleged constitutional deprivation. See

Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983

solely because that defendant employs or supervises a person who violated the plaintiff's rights.

See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable

for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”).

Among other things, the personal involvement of an individual defendant can be established in a

§ 1983 violation if: “(1) the defendant participated directly in the alleged constitutional violation,

(2) the defendant, after being informed of the violation through a report or appeal, failed to

remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional

practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was

grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the

defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on

information indicating that unconstitutional acts were occurring.” Grazette v. Rockefeller, No.

20-CV-0965 (AJN), 2020 WL 5237142, at *2 (S.D.N.Y. Sept. 2, 2020) (citing Colon, 58 F.3d at

873).

None of the facts that Plaintiff alleges in his Complaint support the proposition that

Captain Gerald participated directly in the use of force against him. Nor does Plaintiff allege any

facts to support the notion that, after being informed of the violation, Captain Gerald failed to

remedy the wrong; that she created a policy or custom under which the use of excessive force

occurred; that she was grossly negligent in supervising Dinicola and Gonzalez; or that she

exhibited deliberate indifference to Plaintiff’s rights by failing to act on information that

unconstitutional acts were occurring. See Compl. at 4–5. Even construing Plaintiff’s claims

liberally and analyzing the Complaint under “less stringent standards” than the Court would a

“formal pleading[] drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9–10 (1980), the Court

concludes that the Complaint is deficient of facts that amount to a plausible claim regarding

Captain Gerald’s personal involvement in the use of force against him. Indeed, the Complaint

mentions Captain Gerald only once, asserting that she was bringing the other inmate back to the

housing area along with Gonzalez and Dinicola. See Compl. at 4. And in his opposition to the

Defendants’ motion to dismiss, Plaintiff concedes that Captain Gerald was not responsible for his

“physical injuries.” Dkt. No. 45 at 2. Plaintiff’s concession that she was not involved in his

physical injuries further bolsters the Court’s determination that the Complaint fails to allege facts

that support Plaintiff’s excessive force claim against Captain Gerald.

In his opposition to Defendants’ motion, Plaintiff asserts that his claims against Captain

Gerald stem from the “emotional injuries” he experienced in the aftermath of the incident. Dkt.

No. 45 at 2. And he claims, for the first time, that Captain Gerald ordered that his property be

destroyed, threatened Plaintiff, and disrespected his food. Id. These claims go well beyond any

facts stated in the Complaint, as the Complaint focuses exclusively on the January 8, 2019

incident and his physical injuries that resulted from that incident. See Compl. at 4–5. “[A]s a

general rule, . . . courts should not consider factual allegations made for the first time in

opposition papers.” Paul v. Bailey, No. 09-CV-5784 (RO), 2013 WL 2896990, at *5 (S.D.N.Y.

June 13, 2013). But “[c]onsistent with the Court’s obligation to construe claims made by pro se

litigants liberally,” the Court may “consider all of Plaintiff[’]s factual allegations, including those

made in opposition papers, as further amending his [Complaint].” Id. Still, the circumstances in

this case do not justify such construal because, as Defendants assert, “plaintiff’s assertions in his

opposition go beyond supplementing or clarifying his excessive force allegations” and they “add

entirely new categories of claims” to the excessive force claims that are at the core of the original

complaint. Dkt. No. 46 at 2.

Moreover, the asserted new claims are too devoid of detail to state a claim that is

“plausible on its face,” Twombly, 550 U.S. at 570, even after all reasonable inferences have been

drawn in Plaintiff’s favor. Plaintiff alleges that Captain Gerald ordered that Plaintiff’s property,

including “legal work” and pictures, be destroyed; that Captain Gerald ordered that Plaintiff’s

food be disrespected, which the Court construes as referring to food tampering; and third, that

Captain Gerald threatened him if he “call[ed] 311 or [his] family or anyone who [could help]

him.” Dkt. No. 45 at 2. The filing alleges no facts regarding how Captain Gerald ordered the

destruction of property or who in fact ended up destroying the property, other than that it was

allegedly done by corrections officers, see id. at 2; provides no indication regarding how the food

was “disrespected,” and alleges no facts connecting Captain Gerald to the alleged food

disrespect; and provides no information about the content of the alleged threats or when and

where such threats were made. Even examining these claims under the “special solicitude” that

applies when a litigant proceeds pro se, they are insufficient to state a claim that is plausible on

its face. See Twombly, 550 U.S. at 570; see also Hill, 657 F.3d at 122.

For these reasons, Plaintiff’s claims against Captain Gerald are DISMISSED. Plaintiff

was previously afforded the opportunity to amend his complaint, and he elected not to do so. See

Dkt. No. 42. In addition, after briefing for this motion was otherwise complete, Plaintiff was

given another opportunity to supplement his opposition. see Dkt. Nos. 74, 84. Because he has

been given multiple opportunities to address his allegations against Captain Gerald, these claims

are dismissed with prejudice.

C. Defendants’ Motion as to Defendants Dinicola and Gonzalez is Denied.

Defendants claim that Dinicola and Gonzalez are entitled to qualified immunity “because

any use of force was objectively reasonable under the circumstances to ensure prison safety and

security.” Dkt. No. 41 at 4. They argue that “it is lawful for a correction officer to use force to

maintain security and order” and that “their use of force was therefore objectively reasonable

under the circumstances they faced when responding to plaintiff on January 8, 2019.” Id. at 4–5.

The Court disagrees that Dinicola and Gonzalez are entitled to qualified immunity at this

juncture.

“The Court may consider the issue of qualified immunity on a motion for judgment on

the pleadings.” Smith v. Coughlin, 727 F. Supp. 834, 839 n.7 (S.D.N.Y. 1989). “The doctrine of

qualified immunity protects government officials from civil liability for conduct that ‘does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Castillo v. Rodas, No. 09-CV-9919 (AJN), 2014 WL 1257274, at *5 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). While “the qualified immunity defense is

generally not available when a motion to dismiss is based on the pleadings . . . the motion may

be granted where the complaint itself establishes the circumstances required for a finding of

qualified immunity.” Colon v. Arrabito, No. 97-CV-7146 (HB), 1998 WL 305636, at *2

(S.D.N.Y. June 9, 1998). As in the motion to dismiss context, “[n]ot only must the facts

supporting the defense appear on the face of the complaint . . . but . . . the motion may be granted

only where ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim that would entitle him to relief.’” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)

(citing Citibank, N.A. v. K–H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992)); see also Barnett v.

Mount Vernon Police Dep’t, 523 F. App’x 811, 813 (2d Cir. 2013) (summary order) (“[B]ecause

the standard of review is the same on a motion for judgment on the pleadings [as on a motion to

dismiss] . . . the hurdle for the defendants here is similarly formidable.”). As a result, “the

plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support

his claim, but also those that defeat the immunity defense.” Id.

The Court concludes that Defendants’ qualified immunity defense is premature.

Discovery in this matter has not yet closed. Many of Defendants’ arguments focus on the fact

that the use of force is lawful in the context of maintaining security and order. See Dkt. No. 40

at 4–8. But their argument misses the crux of Plaintiff’s claim: Whether the use of force was

excessive. And “[a] prisoner’s right to freedom from excessive force by prison officials is a

clearly established constitutional right.” Allen v. City of New York, 480 F. Supp. 2d 689, 710

(S.D.N.Y. 2007). Even when a right is clearly established, however, “a government official is

still entitled to qualified immunity if ‘it was objectively reasonable for him to believe that his

actions were lawful at the time of the challenged act.’” Id. (citing Cerrone v. Brown, 246 F.3d

194, 199 (2d Cir. 2001)). As Defendants note, the objective analysis turns on the “facts and

circumstances of each particular case.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)

(citation omitted); see also Dkt. No. 41 at 6. It requires that a court account for the “legitimate

interests that stem from [an institution’s] need to manage the facility in which the individual is

detained,” with due deference to officers’ judgment as to what is “needed to preserve internal

order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 397 (citing

Bell v. Wolfish, 441 U.S. 520, 547 (1979)).

Objective reasonableness “is established if ‘the only conclusion a reasonable jury could

reach is that reasonable officers would disagree on the constitutionality’ of the official’s actions.”

Allen, 480 F. Supp. 2d at 710 (citing Cerrone, 246 F.3d at 203). Typically, a plaintiff will not

recover on a § 1983 claim if a Defendant is able to show that officers “used necessary force in a

good faith effort to maintain order and security.” McKinney v. Dzurenda, 555 F. App’x 110,

111–12 (2d Cir. 2014). But “[d]ismissal on the basis of a qualified immunity defense is not

appropriate where ‘there are facts in dispute that are material to a determination of

reasonableness.’” Sereika v. Patel, 411 F. Supp. 2d 397, 407 (S.D.N.Y. 2006) (citing Thomas v.

Roach, 165 F.3d 137, 143 (2d Cir. 1999)). Such is the case here.

In support of their qualified immunity argument, Defendants argue that “it is lawful for a

correction officer to use force to maintain security and order” and “their use of force was

therefore objectively reasonable under the circumstances they faced when responding to plaintiff

on January 8, 2019.” Dkt. No. 41 at 4–5. In certain respects, they rely on the surveillance videos

to argue as to objective reasonableness, see Dkt. No. 41 7–8; as the Court has noted, however,

the Court will not consider the videos at this juncture. In any event, their description of the

relevant facts does not support a finding of qualified immunity at this juncture. Defendants

argue that “C.O.s Gonzalez and Dinicola . . . reasonably believed that plaintiff’s actions

compromised not only their safety, but the safety and security of everyone in the cell block, and

were therefore justified in their use of force to restrain him,” and that “[o]nly in response to that

threatened aggression were C.O.s Gonzalez and Dinicola forced to respond to plaintiff’s

aggressive actions by attempting to bring him under control, using O.C. spray to protect

themselves.” Id. at 8. But Defendants’ quest for qualified immunity turns on whether they

reasonably believed both that the use of force was necessary and that the level of force used was

necessary. Such conclusions, based on the facts asserted in the pleadings, are premature,

particularly where, as here, the Plaintiff “is entitled to all reasonable inferences from the facts

alleged[, including] those that defeat the immunity defense.” McKenna, 386 F.3d at 436.

Drawing all reasonable inferences in Plaintiff’s favor, the Court concludes that the facts

alleged in the pleadings do not establish as a matter of law that either the use of force or the level

of force actually used was objectively reasonable. Defendants would have the Court resolve

several inferences in their favor, including that Plaintiff “threatened to attack” Dinicola and

Gonzalez, see Dkt. No. 41 at 8, and that the level of force used—which, according to the

Complaint, included not just the O.C. spray but also “slamm[ing]” Plaintiff to the ground and

kicking him, see Compl. at 5—was reasonably believed to be “rationally related to” restoring

peace and security. Dkt. No. 41 at 8. Of course, “[o]fficers are not required to wait until they

are actually assaulted by an inmate before taking action[, and] if they perceive a threat to safety

and security in the prison, including their own safety, they are permitted to use force to restore

order.” Dkt. No. 46 at 4. But that alone does not resolve whether the use of force was

appropriate in this circumstance and whether the level of force used was excessive, or whether

Defendants’ belief to that effect was reasonable. These questions, which go to the heart of

Plaintiff's excessive force claims and Defendants’ qualified immunity defense, cannot be

resolved at such an early stage in the litigation. For this reason, the Defendants’ motion as to the

claims against Defendants Dinicola and Gonzalez is denied without prejudice to renewal at a

later stage in the litigation.

I. CONCLUSION

For the foregoing reasons, the motion for judgment on the pleadings as to Defendants

Dinicola and Gonzalez is DENIED. The motion as to Captain Gerald is GRANTED. The Court

also finds pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken

in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).

The parties shall resume discovery under the supervision of Magistrate Judge Wang. The

Clerk of Court is respectfully directed to mail a copy of this Order to the pro se litigant and to

note its mailing on the public docket.

SO ORDERED.

Dated: November 30, 2020 A he

New York, New York pe Wwe

ALISONJ.NATHAN

United States District Judge

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