# Caldwell v. Officer German Geronimo

> District Court, S.D. New York · August 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10334601

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10334601

## How later opinions describe it (automated extraction)

- declining to grant qualified immunity to defendant parole officer

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10334601. Public record. Not legal advice.