Caldwell v. Officer German Geronimo

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BOISEY CALDWELL,

Plaintiff, 19 Civ. 8253 (KPF)

-v.- OPINION AND ORDER

OFFICER GERMAN GERONIMO,

Defendant.

KATHERINE POLK FAILLA, District Judge:

On September 2, 2019, Defendant German Geronimo, an officer with the

New York City Police Department (the “NYPD”), arrested Plaintiff Boisey

Caldwell for fishing in Morningside Park contrary to park regulations. During

the arrest, Defendant, using a disputed amount of force, brought Plaintiff to

the ground and caused Plaintiff to injure his chin. Plaintiff, proceeding pro se,

then sued Defendant under 42 U.S.C. § 1983 for violating Plaintiff’s

constitutional rights. Both parties have moved for summary judgment. For

the reasons that follow, the Court denies summary judgment to both parties on

Plaintiff’s excessive force claim, and grants summary judgment to Defendant

on the false arrest and equal protection claims suggested by Plaintiff’s

pleadings.

BACKGROUND1

A. Factual Background

Plaintiff has fished in Morningside Park since he was young. (Def. 56.1

¶ 1). On an unknown date before September 2, 2019, Plaintiff was fishing in a

pond in Morningside Park when a couple walking by told Plaintiff that he could

not fish in the pond and the man threw Plaintiff’s bucket of fish back into the

pond. (Id. at ¶ 2; Pl. Dep. 41:11-42:22). Sometime thereafter, but before

Plaintiff’s arrest on September 2, 2019, Plaintiff noticed that a sign had been

placed by the pond in Morningside Park stating that fishing in the pond was

prohibited. (Def. 56.1 ¶ 3; Pl. Dep. 41:2-7).

On September 2, 2019, Plaintiff traveled to Morningside Park in order to

catch fish to feed his turtles. (Def. 56.1 ¶ 4). Plaintiff took with him a six-foot-

long fishing net, a bucket, and a portable radio. (Id. at ¶¶ 5, 11). Upon

arriving at the pond, Plaintiff began catching fish in his net. (Id. at ¶ 7).

Defendant Geronimo and non-party NYPD officer Jessica Gutierrez entered

Morningside Park in a marked NYPD car and drove towards Plaintiff and the

1 The facts in this Opinion are drawn primarily from Defendant’s Statement of Material

Facts pursuant to S.D.N.Y. Local Civil Rule 56.1 (“Defendant’s 56.1 Statement” or “Def.

56.1” (Dkt. #129)) and the exhibits attached to the Declaration of Qiana Smith-Williams

in Support of Defendant’s Motion for Summary Judgment (Dkt. #130), including

Plaintiff’s deposition taken on January 21, 2021 (id., Ex. A (“Pl. Dep.”)), body-worn

camera (“BWC”) footage taken by non-party NYPD officer Jessica Gutierrez (id., Ex. C

(“Gutierrez BWC”)), and BWC footage taken by Defendant Geronimo (id., Ex. F

(“Geronimo BWC”)).

For ease of reference, the Court refers to Defendant’s Memorandum of Law in Support

of His Motion for Summary Judgment as “Def. Br.” (Dkt. #131). Plaintiff’s initial

Memorandum of Law in Support of His Motion for Summary Judgment is referred to as

“Pl. Br.” (Dkt. #106). Because Plaintiff has submitted numerous supplemental letters

since filing his initial motion for summary judgment, the Court refers to those letters by

docket number where relevant.

pond. (Id. at ¶ 8). Plaintiff was still fishing when Defendant and Gutierrez

arrived at the pond. (Id. at ¶ 9). Defendant exited the car first, followed by

Gutierrez. (Id. at ¶ 10). Plaintiff was holding his fishing net and the bucket

containing the fish he had caught. (Id. at ¶ 11; Pl. Dep. 49:9-14).

Defendant walked up to Plaintiff, told Plaintiff that he could not fish in

the pond, and pointed out a sign prohibiting fishing near blooms or surface

scum. (Def. 56.1 ¶¶ 12-13, 16). Defendant also directed Plaintiff to return the

fish in the bucket to the pond. (Id. at ¶ 15). Plaintiff responded that the sign

had only recently been installed and, further, that it depicted a person fishing

with a rod rather than a net and thus did not apply to him. (Id. at ¶ 17; Pl.

Dep. 51:21-22, 52:1-4). Instead of emptying his bucket of fish back in the

pond, Plaintiff attempted to walk away with the partially filled bucket. (Def.

56.1 ¶¶ 18, 20; Gutierrez BWC at 00:06). Defendant moved to block Plaintiff

from leaving and Plaintiff was unable to get by. (Def. 56.1 ¶¶ 19, 21; Gutierrez

BWC at 00:07-00:08). Defendant reached for Plaintiff’s bucket, but Plaintiff

refused to let go. (Def. 56.1 ¶¶ 22-23; Pl. Dep. 56:16-17, 56:21-22, 58:4-6,

59:11-15; Gutierrez BWC at 00:08-00:09). The contest over the bucket

resulted in water and fish spilling onto the ground. (Def. 56.1 ¶ 24; Gutierrez

BWC at 00:09-00:10).

Defendant and Officer Gutierrez grabbed Plaintiff’s arms and pulled them

behind Plaintiff’s back. (Def. 56.1 ¶¶ 25-26; Gutierrez BWC at 00:11-00:14).

Defendant moved Plaintiff a short distance away from the pond to a waist-high

fence. (Def. 56.1 ¶ 27; Gutierrez BWC at 00:13-00:17). While Defendant was

attempting to restrain Plaintiff, Defendant brought Plaintiff to the ground and

Plaintiff hit his chin on the pavement. (Def. 56.1 ¶¶ 28-29; Gutierrez BWC at

00:17-00:20).2 Defendant kneeled on Plaintiff’s back and pulled Plaintiff’s left

arm behind his back. (Def. 56.1 ¶¶ 30-31; Gutierrez BWC at 00:20-00:28).

Gutierrez directed Plaintiff to put his right arm behind his back, and when

Plaintiff did not comply, Gutierrez grabbed Plaintiff’s right arm and pulled it

behind him. (Def. 56.1 ¶¶ 32-33; Gutierrez BWC at 00:33-00:48; Geronimo

BWC at 00:10-00:23). Defendant and Gutierrez then handcuffed Plaintiff.

(Def. 56.1 ¶¶ 34; Gutierrez BWC at 00:48-00:58).

Approximately a minute and a half later, Defendant lifted Plaintiff to his

feet. (Def. 56.1 ¶ 35; Gutierrez BWC at 2:34-2:39; Geronimo BWC at 2:12-

2:18). Plaintiff had blood on his chin. (Def. 56.1 ¶ 36; Geronimo BWC at 2:54-

3:01). Several passersby who had gathered in the vicinity while Defendant and

Gutierrez were attempting to arrest Plaintiff picked up fish from the ground.

(Def. 56.1 ¶¶ 38, 40; Gutierrez BWC at 2:43-3:27). Defendant walked Plaintiff

to the officers’ car and placed him in the back seat. (Def. 56.1 ¶ 37; Geronimo

BWC at 3:03-3:39). Plaintiff was transported to the 26th Precinct in the

officers’ car, and subsequently was taken by ambulance to St. Luke’s Hospital

2 Officer Gutierrez’s BWC was blocked during the brief period when Defendant and

Plaintiff went to the ground (see Gutierrez BWC at 00:17-00:19), and thus the Court is

unable to determine from the BWC footage whether Defendant deliberately pushed

Plaintiff to the ground or instead merely fell to the ground with Plaintiff. The parties

dispute the amount of force used. (Compare Pl. Br. 1-2 (alleging that Defendant

“tackled” Plaintiff), with Def. 56.1 ¶ 28 (“Defendant Geronimo and Plaintiff fell to the

ground.”), and with Def. Br. 7 (“Defendant Geronimo either fell on plaintiff or,

alternatively, used a minimal amount of force to take him to the ground in order to

handcuff him, but he did not tackle him.”)).

for treatment for the injury to his chin. (Def. 56.1 ¶¶ 41, 44). Plaintiff had a

1.5 cm laceration to his chin and received three sutures. (Id. at ¶¶ 45-46).

Plaintiff is not claiming to have suffered any other injuries during the incident.

(Id. at ¶ 48; Pl. Dep. 82:4-19).

Plaintiff was charged with failure to comply with a sign, in violation of

N.Y.C. Mun. Code, Charter and Rules (“N.Y.C. Rules”), tit. 56, § 1-03(c)(3), and

disorderly conduct in violation of N.Y. Penal Law § 240.20(7). (Def. 56.1 ¶ 42).

Plaintiff ultimately was not prosecuted on the charges. (See Pl. Dep. 125:5-6;

see also Dkt. #142 at 2).

B. Procedural Background

Plaintiff filed the Complaint in this matter on September 4, 2019,

bringing claims against the New York City Law Department and Officer German

Geronimo, originally misidentified as Geronimo German. (Dkt. #2). By Order

dated November 13, 2019, the Court dismissed the claims against the New

York City Law Department in accordance with N.Y.C. Charter ch. 17, § 396.

(Dkt. #5). Officer Geronimo filed his answer on February 5, 2020 (Dkt. #13),

which the Court deemed timely (see Dkt. #32). On March 25, 2020, the Court

held an initial pretrial conference with the parties (see Minute Entry for

March 25, 2020), and subsequently entered a Civil Case Management Plan and

Scheduling Order (Dkt. #31). On June 9, 2020, the Court granted Defendant’s

request for an extension of time to complete discovery (Dkt. #44), and on

June 10, 2020, it entered a revised Civil Case Management Plan and

Scheduling Order (Dkt. #46).

On August 21, 2020, due to Plaintiff’s noncompliance with numerous

Court orders, failure to participate in discovery, and failure to appear for a

telephonic conference, the Court ordered Plaintiff to show cause why the case

should not be dismissed for failure to prosecute and failure to comply with

Court orders. (Dkt. #63). The Court received Plaintiff’s response on

September 2, 2020. (Dkt. #69). Defendant filed a second request for an

extension of time to complete discovery on September 15, 2020 (Dkt. #73),

which request the Court discussed with the parties during a conference held on

October 1, 2020 (see Minute Entry for October 1, 2020). On October 16, 2020,

the Court denied Plaintiff’s request for certain records belonging to the City of

New York regarding historical use of force by NYPD officers due to the

irrelevance of such records to Plaintiff’s extant claims. (See Dkt. #86).

On October 27, 2020, the Court received two letters from Plaintiff (Dkt.

#91-92), which letters the Court construed as a motion for leave to amend

pursuant to Federal Rule of Civil Procedure 15(a)(2). The Court ordered

Defendant to respond to the motion (Dkt. #94), which Defendant did on

November 19, 2020 (Dkt. #95). On November 30, 2020, the Court issued an

order (i) denying Plaintiff’s motion for leave to amend to add a municipal

liability claim due to the inadequacy and conclusory nature of Plaintiff’s

allegations; (ii) denying reconsideration of its denial of Plaintiff’s request for the

City’s use of force records; and (iii) granting Defendant’s request to further

extend the discovery deadline. (Dkt. #96). The Court granted an additional

discovery extension on January 14, 2021. (Dkt. #105).

In separate letters dated February 1, 2021, the parties notified the Court

that they both intended to move for summary judgment. (Dkt. #111-112). On

February 8, 2021, the Court set a briefing schedule for the motions and

accepted as Plaintiff’s opening submission a document filed on January 14,

2021. (Dkt. #113 (accepting document previously docketed at entry 106)). The

Court received supplemental submissions from Plaintiff on February 9 (Dkt.

#114), February 24 (Dkt. #119), February 25 (Dkt. #120), and March 2, 2021

(Dkt. #123-125). On March 3, 2021, the Court ordered Plaintiff to refrain from

filing any further letters and to consolidate his arguments in his response to

Defendant’s motion for summary judgment. (Dkt. #126). Defendant filed his

opening papers on March 10, 2021. (Dkt. #127-132). The Court received

additional letters from Plaintiff on March 10 (Dkt. #133-134), March 16 (Dkt.

#135), April 5 (Dkt. #136), April 14 (Dkt. #137), and August 9, 2021 (Dkt.

#142). Defendant filed his reply memorandum on May 10, 2021. (Dkt. #138).

The Court considers both parties’ motions now fully briefed and ripe for

resolution.

DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 56(a), a “court shall grant

summary judgment if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).3 A fact is “material” if it “might affect the outcome of the suit under the

governing law,” and it is genuinely in dispute “if the evidence is such that a

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

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New

York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A court “must resolve

all ambiguities and draw all reasonable inferences in the non-movant’s favor.”

Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.

2004).

“The moving party bears the initial burden of showing that there is no

genuine dispute as to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse

Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (internal quotation marks and

alteration omitted). If the movant has met its burden to show that no genuine

factual dispute exists, “its opponent 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. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

(1986) (internal quotation marks and citations omitted). The nonmoving party

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

3 The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary

judgment standard from a genuine “issue” of material fact to a genuine “dispute” of

material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting

that the amendment to “[s]ubdivision (a) … chang[es] only one word — genuine ‘issue’

becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment

determination.”). This Court uses the post-amendment standard but continues to be

guided by pre-amendment Supreme Court and Second Circuit precedent that refer to

“genuine issues of material fact.”

facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co.,

804 F.2d 9, 12 (2d Cir. 1986).

In deciding a motion for summary judgment, “a district court generally

should not weigh evidence or assess the credibility of witnesses.” Rojas v.

Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (internal

quotation marks omitted). However, “reliable objective evidence,” such as a

video recording, “may speak for itself” and negate facts proffered by the parties.

Marcavage v. City of New York, 689 F.3d 98, 110 (2d Cir. 2012).

This Court’s task in this case has been complicated by Plaintiff’s failure

to provide a statement of material facts in support of his motion for summary

judgment, as required by Local Civil Rule 56.1, or to respond to Defendant’s

Rule 56.1 Statement. See S.D.N.Y. Local Civil Rule 56.1(a), (c). “Pro se

litigants are … not excused from meeting the requirements of Local Rule 56.1.”

Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (citing Vt.

Teddy Bear, 373 F.3d at 246). Nevertheless, the Court retains discretion “to

consider the substance of the plaintiff’s arguments, where actually supported

by evidentiary submissions.” Id. To be fair to both parties, the Court has

conducted its own thorough review of the record. See id. (“[T]he Court may not

rely solely on the statement of undisputed facts contained in [a] party’s Rule

56.1 statement; it also must be satisfied that the … party’s assertions are

supported by the record.” (citing Vt. Teddy Bear, 373 F.3d at 244)).

B. Analysis

1. Plaintiff’s Operative Claims

“[42 U.S.C. § 1983] creates no substantive rights; it merely provides

remedies for deprivations of rights established elsewhere.” City of Oklahoma

City v. Tuttle, 471 U.S. 808, 816 (1985). There are two essential elements to

any claim raised under Section 1983: “[i] the defendant acted under color of

state law; and [ii] as a result of the defendant’s actions, the plaintiff suffered a

denial of her federal statutory rights, or her constitutional rights or privileges.”

Annis v. City of Westchester, 136 F.3d 239, 245 (2d Cir. 1998).

This Court is mindful that it must “afford a special solicitude” to Plaintiff

as a pro se litigant, Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), and

that Plaintiff’s pleadings are “to be construed ‘liberally to raise the strongest

arguments’” they suggest, McCray v. Lee, 963 F.3d 110, 116 (2d Cir. 2020)

(quoting Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)). Accordingly, the

Court finds that Plaintiff’s Complaint can be read to state claims under Section

1983 for use of excessive force and false arrest. (See Dkt. #2 at 1 (“Officer

Geronimo … used excessive force unnecessarily[.]”); id. at 2 (“[Geronimo]

should be ordered to pay for causing me to have these stitches and for cuffing

me when he had no warrant and essentially no purpose under the color of

law[.]”)). And looking to Plaintiff’s numerous submissions filed prior to the

entry of the Civil Case Management Plan on March 25, 2020, to the extent

those may be treated as supplemental pleadings, the Court discerns allegations

suggesting an equal protection claim as well. (See Dkt. #10 at 1 (alleging

Geronimo acted “based on discrimination because he had no cause to arrest”);

Dkt. #23 at 4 (“I was judged by the color of my skin and [Geronimo] presumed

that he would be right to abuse me like he did.”)). The Court resolves the

parties’ summary judgment motions based on these three claims.4

2. The Court Denies Both Motions for Summary Judgment as to

Plaintiff’s Excessive Force Claim

a. Reasonableness of Force Used

Plaintiff alleges that he was subjected to excessive force when Defendant

grabbed him, took him to the ground, and handcuffed him. (See Dkt. #2 at 1

(alleging that Defendant “jumped upon my back” and “forced my chin into the

ground”); id. at 2 (alleging that Defendant “should be ordered to pay for causing

me to have these stitches and for cuffing me when he had no warrant and

essentially no purpose under the color of law”)).

“The Fourth Amendment, which protects against unreasonable seizures,

governs a claim that excessive force was used in connection with an arrest.”

Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002) (citing Graham v. Connor, 490

U.S. 386, 388, 391-95 (1989)). “Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates the Fourth

Amendment.” Graham, 490 U.S. at 396 (internal quotation marks and citation

omitted). That said, “even a valid arrest, made with probable cause, may lead

4 The Court previously dismissed Plaintiff’s allegations against the City of New York for

failing to state a viable claim for municipal liability under Monell v. Department of Social

Services of City of New York, 436 U.S. 658 (1978). (See Dkt. #5; see also Dkt. #86

(denying Plaintiff’s overbroad discovery requests for NYPD records); Dkt. #96 (denying

Plaintiff leave to amend to add a Monell claim based on vague and conclusory

allegations)). The Court will not revisit that decision again and thus addresses here

only those claims Plaintiff has pleaded against Defendant Geronimo individually.

to an excessive force finding where officers act unreasonably in physically

restraining a suspect.” Mesa v. City of New York, No. 09 Civ. 10464 (JPO),

2013 WL 31002, at *18 (S.D.N.Y. Jan. 3, 2013).

“Because ‘the right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical coercion or threat

thereof to effect it,’ determining whether the amount of force an officer used is

reasonable ‘requires a careful balancing of the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’” Cugini v. City of New York,

941 F.3d 604, 612 (2d Cir. 2019) (quoting Graham, 490 U.S. at 396). Courts

are to pay “careful attention to the facts and circumstances of each particular

case, including [i] the severity of the crime at issue, [ii] whether the suspect

poses an immediate threat to the safety of the officers or others, and

[iii] whether he is actively resisting arrest or attempting to evade arrest by

flight.” Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S 1, 8-9

(1985)). “In this context, the reasonableness question is whether the officers’

actions were ‘objectively reasonable’ in light of the facts and circumstances

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

Mickle, 297 F.3d at 120 (quoting Graham, 490 U.S. at 397).

Defendant argues that his use of force was minimal and objectively

reasonable, because (i) “Plaintiff posed an immediate threat” to the officers,

(ii) “Plaintiff was non-compliant from the inception of the interaction between

Defendant Geronimo and Plaintiff,” (iii) “Plaintiff attempted to evade and/or

resisted arrest,” and (iv) Defendant’s use of force caused only a de minimis

injury to Plaintiff. (Def. Br. 7-9). Defendant also argues that Plaintiff’s

allegation that Defendant used excessive force “is solidly refuted by the body-

worn camera (‘BWC’) footage of the incident,” and that the Court should not

credit Plaintiff’s testimony where it is belied by the video footage. (Id. at 7

(citing Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007))).

Based upon the Graham factors, the Court finds that the record does not

support either party’s position beyond reasonable dispute. First, Plaintiff was

arrested for failure to comply with a park sign and disorderly conduct. (Def.

56.1 ¶ 42). These are hardly “severe” crimes and there is no evidence Plaintiff

put anyone else’s safety at risk. Second, while the BWC footage does show that

Plaintiff was carrying his fishing pole and bucket when Defendant approached

him, Plaintiff did not brandish the pole or otherwise act in a physically

aggressive manner towards Defendant. (See Gutierrez BWC at 00:00-00:08).

Third, Plaintiff did attempt to walk around Defendant and did not want to let go

of his bucket, but it is not clear from the BWC footage what, if anything,

Defendant said to Plaintiff as Plaintiff attempted to walk away. (See id. at

00:06-00:08). For example, the BWC footage does not reflect, nor is there any

allegation, that Defendant told Plaintiff that he was under arrest and not free to

leave. Instead, the video footage shows that when Plaintiff attempted to walk

away from Defendant, Defendant escalated the situation by forcefully grabbing

Plaintiff’s bucket and then his arms (id. at 00:08-00:10), pulled Plaintiff’s arms

behind him and pushed him over to a short fence (id. at 00:11-00:17), brought

Plaintiff to the ground (id. at 00:17-00:20), and then knelt on Plaintiff’s back

while attempting to handcuff him (id. at 00:20-00:48). Plaintiff disputes that

he resisted arrest (Pl. Dep. 116:21-22, 117:16-17, 119:1), and the Court does

not find the BWC footage to be conclusive as to whether Plaintiff struggled

against Defendant’s efforts to restrain him. Finally, while the Court agrees that

Plaintiff’s injury was not severe, “the extent of [a plaintiff’s] injuries, while

relevant to the excessive force inquiry, is not dispositive.” Frost v. N.Y.C. Police

Dep’t, 980 F.3d 231, 255 (2d Cir. 2020).

The Court’s task on summary judgment is to determine “whether a jury,

instructed as to the relevant factors, could reasonably find that the force used

was excessive.” Brown v. City of New York, 798 F.3d 94, 103 (2d Cir. 2015).

Here, the Court concludes that it cannot find that Defendant used excessive

force as a matter of law, but that a reasonable jury could so find as a matter of

fact. See, e.g., id. at 103 (“Even though most of the facts concerning the

application of force are undisputed, a jury will have to decide whether Fourth

Amendment reasonableness was exceeded when Brown was taken to the

ground after refusing to put her hands behind her back and when officers

struggled with her on the ground[.]”); Gersbacher v. City of New York, No. 14

Civ. 7600 (GHW), 2017 WL 4402538, at *11 (S.D.N.Y. Oct. 2, 2017) (“[B]ecause

a dispute exists as to the extent of the injuries that Gersbacher sustained, the

extent of his resistance, and the amount of force Inspector Winski used in

arresting him, a reasonable jury could find that Inspector Winski’s use of force

was objectively unreasonable.”); Cox v. Fischer, 248 F. Supp. 3d 471, 482

(S.D.N.Y. 2017) (“[A] jury could reasonably find that Officer Murphy’s actions

were unreasonable, where Cox had allegedly committed only a minor parole

violation, did not pose any physical threat to officers or others, and did not

physically resist or threaten any officer on the scene.”). Accordingly, neither

Defendant nor Plaintiff is entitled to summary judgment because there is a

triable issue of fact concerning the objective reasonableness of the force

Defendant used against Plaintiff.

b. Qualified Immunity

Defendant argues, in the alternative, that he is entitled to qualified

immunity because “it is not clearly established that taking a resisting and non-

compliant arrestee to the ground in order to place him in handcuffs is

objectively unreasonable.” (Def. Br. 16). The Second Circuit has noted that

“qualified immunity protects officers from the sometimes hazy border between

excessive and acceptable force.” Kerman v. City of New York, 261 F.3d 229,

239 (2d Cir. 2001) (internal quotation marks and alterations omitted).

However, as relevant here, it is well established in the Second Circuit “that the

use of entirely gratuitous force is unreasonable and therefore excessive.”

Tracy, 623 F.3d at 99 n.5; accord Jones v. Treubig, 963 F.3d 214, 226 (2d Cir.

2020); see also Cox, 248 F. Supp. 3d at 482 (explaining that Second Circuit

caselaw makes clear “that it is unreasonable under the Fourth Amendment for

an officer to use substantial force against an arrestee suspected of a minor

offense who refuses to raise his arms but does not physically attack an officer,

attempt to flee, or make any threatening gesture”). Thus, qualified immunity

may, but will not necessarily, provide a defense to this sort of excessive force

claim.

“In light of the fact-specific nature of the inquiry on an excessive force

claim, granting summary judgment against a plaintiff on such a claim is not

appropriate unless no reasonable factfinder could conclude that the officers’

conduct was objectively unreasonable.” Lennox v. Miller, 968 F.3d 150, 155 (2d

Cir. 2020) (quoting Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir. 2015)).

As discussed above, the Court concludes that a reasonable factfinder could

find that Plaintiff did not pose a threat to Defendant and did not understand,

at the time he attempted to walk past Defendant, that he was not free to leave,

and that Defendant’s aggressive action to restrain Plaintiff was clearly

unwarranted. Consequently, the Court declines to grant Defendant summary

judgment based on a qualified immunity defense. See id. at 157 (affirming

denial of qualified immunity where “a reasonable jury could find that the force

used by [the defendant police officer] was significant and that [the plaintiff] was

not resisting when such force was used”); Gersbacher, 2017 WL 4402538, at

*12 (denying qualified immunity “because facts material to a determination of

the reasonableness of [the defendant officer’s] actions are in dispute”); Cox, 248

F. Supp. 3d at 484 (declining to grant qualified immunity to defendant parole

officer).

3. The Court Grants Defendant’s Motion for Summary Judgment

as to Plaintiff’s False Arrest Claim

During the October 1, 2020 conference, Plaintiff seemed to disavow a

false arrest claim. (Def. 56.1 ¶ 49; Dkt. #82 (“Oct. 1, 2020 Tr.”) at 3:16-18 (“I

was tackled for no reason. That’s excessive force. That’s not an arrest.”)).

However, Plaintiff’s other statements at the conference evince a

misunderstanding about the nature of a potential false arrest claim. In

Plaintiff’s view, he was never under arrest because Defendant neither told him

that he was under arrest nor read him his Miranda rights, and thus there

could be no “false arrest.” (Oct. 1, 2020 Tr. 4:1-12; see also id. at 5:10-12 (“I

don’t have an arrest. I didn’t go to court. When you have an arrest, you

usually have to appear in court[.]”)). Nevertheless, when affording Plaintiff the

latitude he is due as a pro se litigant, the Court finds that Plaintiff’s allegations

raise a false arrest claim. (See, e.g., Dkt. #2 at 2 (alleging that Defendant

“cuff[ed] me when he had no warrant and essentially no purpose under the

color of law”); Dkt. #10 at 1 (stating Defendant “had no cause to arrest”);

Oct. 1, 2020 Tr. 4:13-18 (“I was assaulted, I was handcuffed, put in the car,

taken to the precinct, and then taken to the hospital. … [T]hey gave me a

ticket, and they told me to come to court. I never went to court. I wrote to the

court, and I told the court what happened, and they threw it out.”)).

To state a viable claim for false arrest under New York law, a plaintiff

must show that “[i] the defendant intended to confine plaintiff, [ii] the plaintiff

was conscious of the confinement, [iii] the plaintiff did not consent to the

confinement, and [iv] the confinement was not otherwise privileged.” Savino v.

City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting Bernard v. United

States, 25 F.3d 98, 102 (2d Cir. 1994)). “Where probable cause for the arrest

exists, an arrest by a law enforcement officer is privileged.” Marlin v. City of

New York, No. 15 Civ. 2235 (CM), 2016 WL 4939371, at *9 (S.D.N.Y. Sept. 7,

2016) (citing Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.

2013)). “Thus, probable cause is a complete defense to a claim for false arrest.”

Id. (citing Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015)).

Probable cause exists when an arresting officer has “knowledge or reasonably

trustworthy information of facts and circumstances that are sufficient to

warrant a person of reasonable caution in the belief that the person to be

arrested has committed or is committing a crime.” Weyant v. Okst, 101 F.3d

845, 852 (2d Cir. 1996). “The inquiry is limited to ‘whether the facts known by

the arresting officer at the time of the arrest objectively provided probable

cause to arrest.’” Gonzalez, 728 F.3d at 155 (quoting Jaegly v. Couch, 439

F.3d 149, 153 (2d Cir. 2006)).

It is uncontested in this case that Defendant seized Plaintiff’s person,

handcuffed him, and transported him to the 26th Precinct, all with Plaintiff’s

knowledge but without his consent. (See Def. 56.1 ¶¶ 25-37, 41). Thus, the

first three prongs of a false arrest claim are satisfied. Plaintiff’s claim fails to

meet the fourth requirement, however, because it is beyond reasonable dispute

that Defendant had probable cause to arrest Plaintiff for, at minimum,

(i) failure to comply with police directives, see N.Y.C. Rules, tit. 56, § 1-03(c)(1)

(“No person shall fail, neglect or refuse to comply with the lawful direction or

command of any member of the Police Department. … Violation of this

paragraph constitutes a misdemeanor.”); and (ii) failure to comply with

prohibitions on signs, see id. § 1-03(c)(3) (“No person shall fail to comply with

or obey any instruction, direction, regulation, warning, or prohibition, written

or printed, displayed or appearing on any park sign[.]”).

Plaintiff admitted in his deposition that: (i) he was aware of the sign in

Morningside Park prohibiting fishing in the pond (Pl. Dep. 41:2-8, 51:13-22);

(ii) despite the sign, he was fishing in the pond on September 2, 2019,

including at the time Defendant and Officer Gutierrez arrived on scene (id. at

34:1-8, 47:1-2, 51:18-13); and (iii) when Defendant approached Plaintiff,

Plaintiff was carrying his bucket partially filled with water and fish that he had

already caught (id. at 49:8-18). Furthermore, when Defendant pointed out that

the posted sign forbade fishing in the pond and directed Plaintiff to return the

fish in his bucket to the pond, Plaintiff claimed the sign did not apply to him,

refused to comply, and attempted to leave with the bucket. (Id. at 52:1-11,

57:12-58:6). With direct knowledge of these circumstances, Defendant had

probable cause to arrest Plaintiff for failing to comply with his lawful directives

and with the park’s prohibition against fishing in the pond. See Marlin, 2016

WL 4939371, at *10-11 (holding that violations of New York City park rules

supported probable cause to arrest); see also People v. Caba, 910 N.Y.S.2d 373,

374 (2d Dep’t 2010) (“[O]nce the police officers witnessed the defendants

trespassing into a park owned and operated by the City of New York, the

entrance of which had a posted sign indicating that the park closed several

hours earlier at dusk, they had probable cause to issue them summonses for

committing a violation and/or arrest them for misdemeanors.”).

Because Plaintiff has failed to raise any material dispute of fact as to

whether his arrest was privileged, Defendant is entitled to summary judgment

on Plaintiff’s false arrest claim.

4. The Court Grants Defendant’s Motion for Summary Judgment

as to Plaintiff’s Equal Protection Claim

In his summary judgment motion, Plaintiff indicates that he believes

Defendant discriminated against him on the basis of race, in violation of the

Equal Protection Clause of the Fourteenth Amendment. (See Pl. Br. 1 (“[T]his

is a matter of Racial Profiling, and Discrimination”); id. at 2-3 (stating that the

“violations of the fourth Amendment protection in this matter” are “racially

motivated”)). Defendant seeks dismissal of any equal protection claim on the

grounds that (i) Plaintiff’s Complaint cannot be reasonably read to state an

equal protection claim, and (ii) Plaintiff has not come forward with any evidence

supporting such a claim. (Def. Br. 21).

“To prevail on an equal protection claim, ‘a plaintiff must demonstrate

that he was treated differently than others similarly situated as a result of

intentional or purposeful discrimination.’” Reynolds v. Quiros, 990 F.3d 286,

300 (2d Cir. 2021) (quoting Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.

2005)). Additionally, Plaintiff must establish that “such selective treatment

was based on impermissible considerations such as race[.]” Freedom Holdings,

Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (quoting Lisa’s Party City, Inc.

v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)); see also Holden v. Port

Auth. of N.Y. & N.J., No. 17 Civ. 2192 (JGK), 2021 WL 681040, at *12 (S.D.N.Y.

Feb. 22, 2021).

Assuming arguendo that Plaintiff has pleaded an equal protection claim

(see supra Section B.1), the Court agrees that Defendant is entitled to

summary judgment due to Plaintiff’s failure to come forth with any concrete

evidence, as opposed to mere speculation, that Defendant harbored

discriminatory intent. Plaintiff’s allegations that Defendant arrested and used

force against him based, at least in part, on Plaintiff’s race are wholly

conclusory. (See Pl. Br. 1-2, 4-5). Plaintiff does not present any evidence that

similarly situated individuals were treated differently. For example, Plaintiff

does not present any evidence that people of other races were permitted to fish

at the same pond in Morningside Park. (See generally id.). This deficiency is

fatal to his equal protection claim. See C.T. v. Valley Stream Union Free Sch.

Dist., 201 F. Supp. 3d 307, 321 (E.D.N.Y. 2016) (“[A]t the summary judgment

stage, a plaintiff must present evidence comparing himself to individuals that

are similarly situated in all material respects, and must show how this

similarly situated individual of a different race was not subject to the same

offensive conduct.” (internal quotation marks and citations omitted) (quoting

Lener v. Hempstead Pub. Sch., 55 F. Supp. 3d 267, 283 (E.D.N.Y. 2014), and

Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000))). And the record

contains no evidence, either direct or circumstantial, indicating that Plaintiff’s

race factored into Defendant’s decision to arrest him. (See generally Pl. Br.; Pl.

Dep.). Plaintiff’s “mere speculation and conjecture is insufficient to preclude

the granting of the motion.” See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d

494, 499 (2d Cir. 2001). Accordingly, the Court grants Defendant’s motion for

summary judgment with respect to any equal protection claim Plaintiff

intended to plead.

CONCLUSION

Plaintiffs motion for summary judgment is DENIED. Defendant’s motion

for summary judgment is DENIED with respect to Plaintiffs excessive force

claim, and is GRANTED with respect to Plaintiff's false arrest and equal

protection claims. The Clerk of Court is directed to terminate the motions at

docket entries 106 and 127. The Clerk of Court is further directed to maila

copy of this Opinion and Order to Plaintiffs address of record.

The parties are hereby ORDERED to appear for a telephonic conference

regarding next steps in this case on September 30, 2021, at 10:00 a.m. The

dial-in information is as follows: At 10:00 a.m., the parties shall call (888) 363-

4749 and enter access code 5123533. Please note, the conference will not be

available prior to 10:00 a.m.

SO ORDERED.

Dated: August 27, 2021 Kathe fal. ful

New York, New York

KATHERINE POLK FAILLA

United States District Judge

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