# Zeng v. Chell

> District Court, S.D. New York · January 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10357533

## Case

- **Court:** District Court, S.D. New York
- **Decided:** January 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
XIAMIN ZENG,

Plaintiff, 19-cv-3218 (JGK)

- against - MEMORANDUM OPINION
AND ORDER
JOHN CHELL, ET AL.,

Defendants.
────────────────────────────────────
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10357533. Public record. Not legal advice.