Zeng v. Chell

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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XIAMIN ZENG,

Plaintiff, 19-cv-3218 (JGK)

- against - MEMORANDUM OPINION

AND ORDER

JOHN CHELL, ET AL.,

Defendants.

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JOHN G. KOELTL, District Judge:

The plaintiff, Xiamin Zeng, brought this complaint pursuant

to 42 U.S.C. § 1983 and New York state law against Detective

Danielle Febus, Inspector John Chell, Detective Gary DeNezzo,

Sergeant George Tavares, Officer Irwin Luerpon, Officer Erlene

Wiltshire, Officer Christopher Robley, and the City of New York

(the “City”), alleging false arrest, excessive force, malicious

prosecution, denial of a fair trial, abuse of criminal process,

municipal liability, and denial of medical treatment. In a

Memorandum Opinion and Order dated March 1, 2022, this Court

granted in part and denied in part the defendants’ motion to

dismiss the complaint for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). See Zeng v. Chell, No.

19-cv-3218, 2022 WL 624873, at *1, *11 (S.D.N.Y. Mar. 1, 2021)

(“March Opinion”). This Court dismissed Zeng’s Section 1983 claims

for false arrest, malicious prosecution, denial of a right to a

fair trial, malicious abuse of process, and municipal liability in

their entirety. See March Opinion, at *4-6. There are no claims

remaining against Detective Gary DeNezzo, Sergeant George Tavares,

Police Officer Irwin Luperon, Police Officer Christopher Robley,

or Police Officer Erlene Wiltshire. See ECF No. 109.1 Zeng’s

remaining claims are against Detective Febus for excessive force

and deliberate indifference to unconstitutional conditions of

confinement under Section 1983, and assault and battery against

Detective Febus and the City under New York state law. The

defendants now move for summary judgment dismissing each claim and

in addition, contend that Detective Febus is entitled to qualified

immunity. The defendants further request that the Court deny

supplemental jurisdiction if the federal claims are dismissed.

In response to the defendants’ motion for summary judgment,

the plaintiff did not attempt to defend her federal claims or

respond to the argument that Detective Febus was protected by

qualified immunity. Rather, the plaintiff only defended her claims

of assault, battery, and excessive force. See ECF No. 120 at 10-

11. At the argument on the motion on December 20, 2023, the

plaintiff’s counsel made it clear that the plaintiff abandoned her

federal claims, see Hearing Tr. at 10-11, and requested that the

Court decline to exercise supplemental jurisdiction over the

plaintiff’s state law claims of excessive force, assault, and

battery under New York state law, see id. at 11.

1 Inspector John Chell and Officer Robley were never served and,

therefore, are not defendants. Frank Decl. ¶ 7, ECF No. 111.

I.

The following facts are taken from the parties’ Local Rule

56.1 Statements and supporting papers and are undisputed unless

otherwise noted.

The plaintiff, Xiamin Zeng, was called to the police station

on January 31, 2018 in response to a text message informing her

that her son was at the Queens Child Abuse Squad and asking her to

pick him up. See ECF No. 117 ¶¶ 5-5A. When she arrived, at

approximately 12:00 p.m., id. ¶¶ 6-6A, an officer directed her to

wait for Detective Febus in a room with glass walls, id. ¶¶ 7-7A,

where she waited for approximately three hours, ECF No. 121 ¶ 5.

While she waited, Zeng alerted the officers to her difficulty

breathing, asked the officers for water, and asked to use the

bathroom. Id. She was told to wait for Detective Febus. Id.

Thereafter, Detective Febus arrived and Zeng told the

Detective that she wanted to see her son, had a doctor’s

appointment in the afternoon, wanted to see her attorney, needed

to drink water, and needed to use the bathroom. See ECF No. 117 ¶¶

17-17A. Zeng also told the Detective that she was having

difficulty breathing, see ECF No. 121 ¶ 5. Zeng has been

prescribed an inhaler for diagnosed asthma, see ECF No. 117 ¶ 12,

but did not bring her medication or any other asthma treatment

with her to the police station, see id. ¶ 13.2

Detective Febus ignored these complaints, ECF No. 117 ¶¶ 18,

18A, and instead ran a system check for the plaintiff, which

revealed “that there was an active investigation card from the

75th Precinct stating that there was probable cause to arrest

[Zeng].” Id. ¶¶ 20-20A. The investigation stemmed from a complaint

made against Zeng by Gang Liu, her ex-boyfriend and the father of

her child. Id. ¶¶ 20-20A.

Detective Febus then arrested Zeng and placed a single

handcuff on Zeng’s wrist. See ECF No. 117 ¶¶ 24, 24A. Ten to

twenty minutes later, Detective Febus escorted Zeng to a police

vehicle, id. ¶¶ 25, 25A, and Zeng waited outside the vehicle for

an additional ten to twenty minutes. Id. ¶¶ 27-27A. Zeng

complained to Detective Febus that her head, arm, and wrist hurt,

and she asked the Detective to loosen her handcuff, but the

Detective did not do so. Id. ¶¶ 30, 30A, 31, 31A. When Zeng

arrived at the 75th Precinct about 45 minutes to one hour later,

Detective Febus removed the handcuff from her wrist and then left.

Id. ¶¶ 31, 31A—33, 33A.

On February 1, 2018, Zeng was arraigned and released from

custody. Id. ¶¶ 35, 35A. In total she was handcuffed for no more

2 The initial conversation between Detective Febus and Zeng lasted

about a half hour. See ECF No. 117 ¶¶ 19, 19A.

than 100 minutes, id. ¶¶ 34-34A, and denied access to a bathroom

for approximately five hours, assuming she was permitted to use

the bathroom immediately upon arriving at the 75th Precinct, id.

¶¶ 15, 15A, 25, 25A, 27, 27A, 32, 32A, which Zeng alleges that she

was denied, see ECF No. 118 ¶ 9; ECF No. 121 ¶ 9. Detective Febus

was present with Zeng for under three hours. ECF No. 117 ¶¶ 19,

25, 25A, 27, 27A, 32, 32A, 33, 33A.

The first time Zeng sought medical attention after her arrest

was a visit to a doctor on April 21, 2018, where she raised

concerns about a cough, runny nose, fatigue, and intermittent

hearing loss. ECF No. 117 ¶¶ 38, 38A, 39, 39A. Her physical

examination revealed that she had normal hearing and was

experiencing nasal congestion. Id. ¶¶ 40, 40A. On July 14, 2019,

Zeng began physical therapy for lower back pain that started

recently. See ECF No. 117 ¶¶ 43, 43A.3

On April 10, 2019, Zeng commenced this action. ECF No. 2.

After this case commenced, Zeng alleged for the first time that

the handcuffs caused her wrists to bleed. See ECF No. 118 ¶ 10.

She asserted that she sustained injuries to her wrist, including

“very deep red marks with some areas of bleeding.” ECF No. 118 ¶

10.

3 Zeng does not allege that the physical therapy she sought is

related to the arrest.

II.

The standard for granting summary judgment is well

established. “The 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,

322-23 (1986); Gallo v. Prudential Residential Servs. L.P., 22

F.3d 1219, 1223 (2d Cir. 1994).4

“[T]he trial court's task at the summary judgment motion

stage of the litigation is carefully limited to discerning whether

there are genuine issues of material fact to be tried, not to

deciding them. Its duty, in short, is confined at this point to

issue-finding; it does not extend to issue-resolution.” Gallo, 22

F.3d at 1224. However, “disputed legal questions . . . present

nothing for trial and are appropriately resolved at summary

judgment.” Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 184

(S.D.N.Y. 1990).

The moving party bears the initial burden of “informing the

district court of the basis for its motion” and identifying the

matter that “it believes demonstrate[s] the absence of a genuine

issue of material fact.” Celotex, 477 U.S. at 323. If the movant

meets that burden, “the nonmoving party must come forward with

4 Unless otherwise noted, this Memorandum Opinion and Order omits

all alterations, omissions, emphasis, quotation marks, and

citations in quoted text.

specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). In determining whether summary judgment is proper,

a court must resolve all ambiguities and draw all reasonable

inferences against the moving party. See id.; Brod v. Omya, Inc.,

653 F.3d 156, 164 (2d Cir. 2011).

III.

The defendants, Detective Febus and the City, move for

summary judgment dismissing the plaintiff’s claims for violations

of Section 1983 based on the alleged use of excessive force by

Detective Febus, see ECF No. 113, 5-11, and deliberate

indifference to Zeng’s medical needs and conditions of

confinement, id. at 11-15. The defendants also assert that

Detective Febus is entitled to qualified immunity from Zeng’s

Section 1983 claims, id. at 15-17, and request that this Court

decline to exercise supplemental jurisdiction over Zeng’s

remaining state law claims, id. at 19.

Because the plaintiff did not respond to the defendants’

argument for summary judgment dismissing her Section 1983 claims,

those claims were abandoned. See Banyon v. Sikorski, No. 17-cv-

4942, 2021 WL 2156226, at *2 (S.D.N.Y. May 27, 2021) (“Such a

failure to respond to arguments set forth in a moving party’s

brief is an adequate ground for a Court to deem the claim

abandoned.”); Brandon v. City of New York, 705 F. Supp. 2d 261,

268 (S.D.N.Y. 2010) (“In [the plaintiff’s] brief, [the plaintiff]

did not raise any arguments opposing Defendant’s motion regarding

these two claims. Accordingly, the Court deems [the plaintiff’s]

first and third claims abandoned.”). Moreover, the plaintiff’s

counsel explicitly abandoned those claims at the argument on the

motion, see Hearing Tr. at 10-11, and therefore those claims

should be dismissed.

IV.

Zeng’s remaining claims are for assault and battery based on

New York state law. ECF No. 68 ¶¶ 166-167.

A district court may decline to exercise supplemental

jurisdiction if “the district court has dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c). “When

all federal claims are eliminated before trial, the balance of

factors to be considered -- including judicial economy,

convenience, fairness, and comity -- typically points towards

declining to exercise supplemental jurisdiction over any remaining

state-law claims.” Lawtone-Bowles v. City of New York, Dep't of

Sanitation, 22 F. Supp. 3d 341, 352 (S.D.N.Y. 2014).

Having dismissed all of the plaintiff's federal claims, the

claims over which this Court has original jurisdiction, declining

to exercise supplemental jurisdiction over the state-law claims of

assault and battery against Detective Febus and against the City

of New York on a respondeat superior basis is appropriate. Id. at

352-53; see, e.g., Valencia ex rel. Franco v. Lee, 316 F.3d 299,

305 (2d Cir. 2003}; In re Merrill Lynch Ltd. P'ships Litig., 154

F.3d 56, 61 (2d Cir. 1998); Staten v. Patroimen's Benevolent Ass'n

of City of N.Y., 282 F. Supp. 3d 734, 742-43 (S.D.N.Y. 2017). The

plaintiff's assault and battery claims under state law against

Detective Febus and against the City on a respondeat superior

basis are therefore dismissed without prejudice.

CONCLUSION

The Court has considered all of the parties’ arguments. To

the extent not specifically addressed above, those arguments are

either moot or without merit. For the foregoing reasons, the

defendants’ motion for summary judgment is granted. Zeng’s Section

1983 claims alleging excessive force and deliberate indifference

to unconstitutional conditions of confinement against Detective

Febus are dismissed. Zeng’s state-law claims for assault and

battery against Detective Febus and the City of New York are

dismissed without prejudice. The Clerk of Court is therefore

directed to enter judgment dismissing this action. The Clerk is

also directed to close all pending motions and to close this case.

SO ORDERED.

— VY

Dated: New York, New York □□ Mosel

January 23, 2024 SCO of

Le John G. Koeltl

United States District Judge