Forbes v. Officer John Doe

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROBERT FORBES,

Plaintiff, DECISION AND ORDER

6:18-CV-06700 EAW

JOHN DOE, SGT. ANTHONY

BONGIOVANNI, CITY OF ROCHESTER,

OFFICER MICHAEL DIMAURO, and

OFFICER CHRISTINA MOORHOUSE,

Defendants.

INTRODUCTION

Pro se plaintiff Robert Forbes (“Plaintiff”) brings this action under 42 U.S.C.

§ 1983, asserting claims against Defendants Sergeant Bongiovanni (“Bongiovann1’),

Officer Michael DiMauro (“DiMauro”), Officer Christina Moorhouse (“Moorhouse”),

Officer John Doe, and the City of Rochester. Pending before the Court is Plaintiff's motion

for summary judgment. (Dkt. 65). For the following reasons, Plaintiff's motion is denied.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Statement of Facts (Dkt. 65 at 6-

62), Defendants’ Statement of Undisputed Facts (Dkt. 71-11), and the exhibits submitted

by the parties. Unless otherwise noted, these facts are undisputed.

On June 10, 2017, Latoya Black (“Ms. Black’’), the mother of Plaintiff's two-year-

old daughter, picked Plaintiff up at the intersection of Dewey Avenue and Electric Avenue

in Rochester, New York. (Dkt. 65 at J§ 6-7, 9-11; Dkt. 71-11 at 49 1-2, 4-6). As Ms.

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Black, Plaintiff, and their daughter headed south on Dewey Avenue, the adults noticed a

police vehicle behind them. (Dkt. 65 at 4 14; see Dkt. 71-4 at 3). Two members of the

Rochester Police Department (“RPD”), Defendants Bongiovanni and DiMauro, pulled Ms.

Black’s vehicle over. (Dkt. 65 at 16; Dkt. 71-11 at 11). According to Bongiovanni, the

officers initially stopped Ms. Black’s vehicle because of the tinted windows, which

appeared to violate New York Vehicle and Traffic Law § 375(12-a)(b), and because the

officers suspected that the occupants were involved in an illegal drug transaction. (Dkt.

71-11 at 7-10, 14; see Dkt. 72 at Jf] 9-11).

The officers approached Ms. Black’s vehicle on the passenger side, where Plaintiff

was sitting. (Dkt. 65 at § 17; see Dkt. 72 at ¢ 12). Bongiovanni spoke with Plaintiff and

Ms. Black, and both occupants voluntarily provided identification. (Dkt. 65 at 23-24;

Dkt. 71-11 at §[ 18-19). Bongiovanni also asked Ms. Black where she “got the tint done

on the car.” (Dkt. 27 at 00:39-00:42).! Ms. Black explained that someone had tried to

match the tint to the original windows, and Bongiovanni advised her that under a new,

“tough” law, the tint would prevent her from receiving a passing inspection in the future.

(See id. at 00:43-01:07). Bongiovanni further advised Ms. Black that even though her

current state inspection might be good for the year, “[she] could still get a ticket from a

Both parties submitted, and rely upon, the footage captured by Bongiovanni’s and

DiMauro’s body-worn cameras. (See Dkt. 27; Dkt. 71-3). “Video footage can, but does

not always, conclusively establish facts for purposes of summary judgment.” Bradley v.

Bongiovanni, No. 18-CV-6823-FPG, 2021 WL 3635206, at *1 (W.D.N.Y. Aug. 17, 2021).

The references herein to the statements reflected in the body-worn cameras reflect the

Court’s transcription based on its review of the footage.

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policeman,” but he thought that they “would be all set as long as everything [was] good”

with the ID check. (See id. at 1:07-1:15).

Bongiovanni and DiMauro returned to their patrol car and subsequently learned that

Plaintiff was on parole for a state weapons conviction. (Dkt. 65 at ¶ 25; see Dkt. 72 at

¶ 15). Bongiovanni stated, “I’d like to get him out of the car, to see if he’s got a weapon

on him.” (Dkt. 27 at 04:18-04:21). Bongiovanni then told DiMauro:

I’ll tell you what we’ll do. We’ll ask him if he wants to step out real quick.

We’ll give him the choice. I don’t smell any marijuana in the car, and she

pulled right over. The only thing I got on her right now is some dark tint.

We’ll see how well he cooperates. We’ll ask him if there are any weapons

in the car. Then we’ll ask her for consent. If she says no, I’m good with it.

If she says yes, then maybe we can get one. Let’s go check with them.

(Id. at 04:44-05:15).

The officers returned to the passenger side of Ms. Black’s vehicle, and Bongiovanni

inquired about Plaintiff’s parole status. (See id. at 05:20-05:45). Bongiovanni then asked

Plaintiff whether the two of them could speak privately on the sidewalk outside of the car,

but he assured Plaintiff that “he was not under arrest.” (See id. at 05:46-05:53). Plaintiff

replied that Bongiovanni was making him “nervous” and that he would rather

“[Bongiovanni] talk with [him] right here.” (Id. at 05:54-06:09). Bongiovanni asked

Plaintiff whether there were any weapons or anything illegal in the car, and Plaintiff replied

that there was not. (Id. at 06:10-06:25).

After some back-and-forth, Bongiovanni stated that he “would like to get to know

[Plaintiff]” and had seen Plaintiff “on a corner where they’re shooting a lot of guns.” (Id.

at 06:30-06:45). Bongiovanni then unlocked Plaintiff’s door with his left hand, opened the

door with his right, and told Plaintiff, “I just want you to step out and have a conversation,

that’s all, you’re not under arrest.” (Id. at 06:48-06:56).

Plaintiff exited the vehicle, and Bongiovanni began to search him. (Id. at 07:22-

07:38). After Bongiovanni searched Plaintiff’s arms and posterior legs, DiMauro held

Plaintiff’s arms behind his back while Bongiovanni searched Plaintiff’s anterior legs, chest,

and groin. (Id. at 07:40-08:15; see Dkt. 65 at ¶ 39; Dkt. 71-11 at ¶ 34). Bongiovanni felt

the inside of Plaintiff’s waistband and grabbed Plaintiff’s belt buckle. (See Dkt. 27 at

08:15-08:18). At that point, Plaintiff fled from the officers. (Id. at 08:18-08:20; see Dkt.

65 at ¶¶ 40-41; Dkt. 71-11 at ¶¶ 35-36).

The officers chased Plaintiff behind the detached garage at the rear of 259

Albemarle Street and arrested him. (Dkt. 65 at ¶¶ 40-41; Dkt. 71-11 at ¶¶ 35-36). An

additional responding member of RPD, Defendant Moorhouse, found several vials of

marijuana on the opposite side of the fence from where Plaintiff was taken into custody.

(Dkt. 65 at ¶ 45; Dkt. 71-11 at ¶ 40; see Dkt. 71-7 at 1). Plaintiff was charged with both

Obstruction of Governmental Administration in the Second Degree and Unlawful

Possession of Marihuana in the Second Degree and taken to the Monroe County Sheriff’s

Office for booking. (Dkt. 65 at ¶¶ 47-48; Dkt. 71-11 at ¶¶ 42-43; see Dkt. 75 at 39). As

Plaintiff underwent booking, a glass vial of marijuana fell out of his right pant leg. (Dkt.

71-11 at ¶ 41; see Dkt. 71-8 at 3). Plaintiff was further charged with Possession of

Contraband in Prison in the Second Degree. (Dkt. 65 at ¶ 48; Dkt. 71-11 at ¶ 43; see Dkt.

71-8 at 1). Plaintiff’s charges were later dismissed. (See Dkt. 65 at ¶ 52; Dkt. 71-11 at

¶ 47; Dkt. 75 at 39).

PROCEDURAL BACKGROUND

Plaintiff filed his initial complaint on September 27, 2018. (Dkt. 1). Upon screening

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court entered a Decision and Order

finding that Plaintiff had failed to allege a viable claim against any of the defendants but

affording him an opportunity to amend. (Dkt. 7).

Plaintiff filed an amended complaint on July 5, 2019. (Dkt. 8). On April 6, 2020,

the Court entered a screening order, dismissing Plaintiff's claims against RPD and the

Monroe County Sheriff, as well as his claims for negligence, prima facie tort, punitive

damages, and his claims brought under the New York State Constitution. (Dkt. 9). Plaintiff

was allowed to proceed to service on claims of excessive force, false arrest and false

imprisonment, and unreasonable search and seizure pursuant to § 1983, and on state law

claims for false arrest and false imprisonment, assault and battery, negligent hiring,

intention infliction of emotional distress (“ITED”), and malicious prosecution. (/d. at 18-

19).

Defendants answered the complaint on June 23, 2020. (Dkt. 20). On June 10, 2021,

Defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).’

(Dkt. 40). On January 18, 2022, the Court granted Defendants’ motion as to Plaintiff's

§ 1983 claims against the City of Rochester, as well as to his state law negligent hiring

claim, but denied Defendants’ motion in all other aspects. (Dkt. 50).

Defendants purportedly brought the motion to dismiss under Rule 12(b)(6), but

since the motion was filed more than a year after answering Plaintiff's amended complaint,

the Court treated it as a motion for judgment on the pleadings pursuant to Rule 12(c). See,

e.g., Wojtczak v. Safeco Prop. & Cas. Ins. Cos., 669 F. Supp. 2d 305, 311 (W.D.N.Y. 2009).

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On August 7, 2023, Plaintiff filed a motion for summary judgment. (Dkt. 65).

Defendants responded on October 30, 2023 (Dkt. 71), and Plaintiff replied on December

6, 2023 (Dkt. 75).

DISCUSSION

I. Legal Standard for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the Court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as

to any material fact . . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the

party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the

moving party has met its burden, the opposing party “must do more than simply show that

there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,

781 F.3d 42, 44 (2d Cir. 2015) (internal quotation marks and citation omitted).

Specifically, the non-moving party “must come forward with specific evidence

demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly &

Co., 654 F.3d 347, 358 (2d Cir. 2011). Indeed, “the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

In addition, “[i]t is well settled that pro se litigants generally are entitled to a liberal

construction of their pleadings, which should be read to raise the strongest arguments that

they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (italics in original)

(internal quotation marks and citation omitted). Despite this liberal approach, “where the

movant fail[s] to fulfill its initial burden of providing admissible evidence of the material

facts entitling it to summary judgment, summary judgment must be denied, even if no

opposing evidentiary matter is presented, for the non-movant is not required to rebut an

insufficient showing.” Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d Cir. 2003)

(internal quotation marks and citation omitted).

II. Plaintiff’s False Arrest Claims

Plaintiff argues that he is entitled to summary judgment because Bongiovanni and

DiMauro falsely arrested and falsely imprisoned him in violation of the Fourth

Amendment. (See Dkt. 65 at ¶¶ 64-90). The Fourth Amendment states: “The right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no warrants shall issue, but upon probable

cause . . . .” U.S. Const. amend IV. “A § 1983 claim for false arrest, resting on the Fourth

Amendment right of an individual to be free from unreasonable seizures, including arrest

without probable cause, is substantially the same as a claim for false arrest under New York

law,” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal citations omitted), and

“[c]laims for false arrest and false imprisonment are essentially the same causes of action,”

Dickerson v. Monroe Cnty. Sherriff’s Dep’t, 114 F. Supp. 2d 187, 191 (W.D.N.Y. 2000).

Under New York law, a false arrest occurs where: “(1) the defendant intended to

confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff

did not consent to the confinement and (4) the confinement was not otherwise privileged.”

Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (first alteration in original)

(internal quotation marks and citation omitted); see D’Amico v. Corr. Med. Care, Inc., 120

A.D.3d 956, 961 (4th Dep’t 2014). The element at issue in this case is whether Defendants’

confinement of Plaintiff was privileged, i.e., whether Bongiovanni and DiMauro had

probable cause or reasonable suspicion to detain Plaintiff. See Martinez v. Cty. of

Schenectady, 97 N.Y.2d 868, 873-74 (2001) (“The existence of probable cause serves as a

legal justification for the arrest and an affirmative defense to the claim [of false

imprisonment].”); accord Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). The issue of

whether an officer has probable cause or reasonable suspicion sufficient to detain an

individual is a mixed question of law and fact. See Ornelas v. United States, 517 U.S. 690,

696-97 (1996); accord United States v. Singletary, 798 F.3d 55, 59 (2d Cir. 2015). For the

reasons set forth below, the Court concludes that Plaintiff is not entitled to summary

judgment on his false arrest claims under § 1983 and New York law.

A. Initial Traffic Stop

Plaintiff argues that Bongiovanni and DiMauro did not have probable cause for the

initial stop of Ms. Black’s vehicle. (See Dkt. 65 at ¶¶ 64-74). In response, Defendants

argue that the traffic stop was “supported by probable cause, [or] at least reasonable

suspicion.” (Dkt. 71-12 at 4).

“The Fourth Amendment permits brief investigative stops . . . when a law

enforcement officer has a particularized and objective basis for suspecting the particular

person stopped of criminal activity or a traffic violation.” United States v. Diaz, 802 F.3d

234, 238 (2d Cir. 2015) (internal quotation marks and citation omitted). “Accordingly,

such [traffic] stops must be justified by probable cause or a reasonable suspicion . . . .”

United States v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (internal quotation marks and

citation omitted); see United States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009)

(“[R]easonable suspicion of a traffic violation provides a sufficient basis under the Fourth

Amendment for law enforcement officers to make a traffic stop.”). The subjective intent

of an officer performing a traffic stop is irrelevant. See United States v. Dhinsa, 171 F.3d

721, 724-25 (2d Cir. 1998) (“[A]n officer’s use of a traffic violation as a pretext to stop a

car in order to obtain evidence for some more serious crime is of no constitutional

significance.”).

Here, Bongiovanni and DiMauro had probable cause to stop Ms. Black’s vehicle if

it was objectively reasonable to believe that her windows were illegal under New York

Vehicle and Traffic Law § 375(12-a)(b). See United States v. Harrell, 268 F.3d 141, 148-

49 (2d Cir. 2001). Indeed, “[s]topping a vehicle based upon probable cause or reasonable

suspicion that a vehicle is being operated with tinted windows in violation of § 375(12-

a)(b)(2), even if the officers’ true motivations are driven by a desire to investigate other

illegal activity, complies with the Fourth Amendment.” United States v. Lucas, 338 F.

Supp. 3d 139, 154 (W.D.N.Y. 2018), aff'd, No. 19-3937-CR, 2021 WL 3700944 (2d Cir.

Aug. 20, 2021). For traffic stops based on illegal window tint, “[t]he legal test . . . is

whether the police officer reasonably believes the windows to be over-tinted in violation

of Vehicle and Traffic Law § 375(12-a)(b),” and an officer’s “testimony that he could not

see into the [ ] vehicle meets that test.” People v. Biggs, 208 A.D.3d 1340, 1344 (2d Dep’t

2022).

In his affidavit, Bongiovanni states that Ms. Black was pulled over, at least in part,

because the officers could not see the occupants of the vehicle through the tinted windows.

(See Dkt. 72 at 9 11).2 Bongiovanni’s statement creates a genuine issue of material fact as

to whether the officers reasonably believed that Ms. Black’s window tint was illegal under

§ 375(12-a)(b). Accordingly, Plaintiff's request for summary judgment is denied.

B. Search of Plaintiff’s Person

Plaintiff also argues that Bongiovanni and DiMauro impermissibly extended the

initial traffic stop to include a search Plaintiff's person. (See Dkt. 65 at 4] 68, 70-71, 73-

74, 88-90). Defendants respond that the officers had a reasonable suspicion of criminal

3 Plaintiff objects to Defendants’ reliance on Bongiovanni’s affidavit, which was

submitted initially without being signed and notarized. (See Dkt. 75 at 30). However,

within a matter of days after the initial filing, Defendants quickly filed a corrected version

of the affidavit. (Dkt. 72). While Defendants are cautioned to be more careful moving

forward, the Court will accept the corrected version of Bongiovanni’s affidavit.

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activity, and that Plaintiff was armed. (See Dkt. 71-12 at 4-8). Defendants also argue that

Plaintiff’s status as a parolee is relevant to the analysis. (/d. at 7).*

“Warrantless searches and seizures are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated

exceptions.” United States v. Hagood, 78 F.4th 570, 575-76 (2d Cir. 2023) (internal

quotation marks and citation omitted). “The Terry investigative stop and frisk 1s one such

exception.” United States vy. Weaver, 9 F.4th 129, 138 (2d Cir. 2021); see Terry v. Ohio,

392 US. 1, 30 (1968).

In the context of a traffic stop, “the tolerable duration of police inquiries in the

traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic

violation that warranted the stop, and attend to related safety concerns.” Rodriguez v.

United States, 575 U.S. 348, 354 (2015). However, “a traffic stop may be extended beyond

4 Defendants’ argument in this regard 1s not well developed. It is true that “[p]arolees

subject to terms and conditions of release ‘have severely diminished expectations of

privacy by virtue of their status alone.’” United States v. Quinones, 457 F. App’x 68, 69

(2d Cir. 2012) (quoting Samson v. California, 547 U.S. 843, 848 (2006)). It is also true

that state law and federal law concerning the search of a parolee do not necessarily mirror

each other. See United States v. Braggs, 5 F.4th 183, 186 (2d Cir. 2021) (discussing

inapplicability of state law provisions requiring reasonable suspicion for search of a parolee

in context of exclusionary rule in federal criminal proceeding). Because the Court

concludes that issues of fact defeat Plaintiff's summary judgment motion under generally

applicable Fourth Amendment jurisprudence, it need not and does not analyze Plaintiff's

expectation of privacy in the context of his parole status. United States v. Chandler, 56

27, 42 (2d Cir. 2022), cert. denied, 143 S. Ct. 1791, 215 L. Ed. 2d 676 (2023) (“We

do not apply Braggs or the Special Needs Doctrine here, having concluded on the record

before us that the search of Chandler’s residence and car rested squarely on reasonable

suspicion.”).

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the point of completing its mission if an officer develops a reasonable suspicion of criminal

activity.” United States v. Wallace, 937 F.3d 130, 138 (2d Cir. 2019) (alteration, internal

quotation marks, and citation omitted). Additionally, a law enforcement officer may frisk

an individual for weapons if the officer has “a reasonable suspicion not only that criminal

activity is afoot, but also that the person suspected is armed and dangerous.” Weaver, 9

F.4th at 139 (internal quotation marks and citation omitted).

“Reasonable suspicion is less than probable cause and must be established by

specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant the intrusion.” Hagood, 78 F.4th at 576. “This objective inquiry

disregards the officer’s subjective motivation and asks instead whether a reasonable officer

would suspect unlawful activity under the totality of the circumstances.” Diaz, 802 F.3d

at 239. “Contextual considerations such as the fact that the stop occurred in a high crime

area, factor into a reasonable-suspicion analysis, and the officers’ assessment of an

individual’s nervous or evasive behavior is pertinent in establishing reasonable suspicion.”

Hagood, 78 F.4th at 576 (internal quotation marks and citation omitted). The facts are not

considered in isolation but rather “the totality of the circumstances” must be evaluated

“through the eyes of a reasonable and cautious officer on the scene, whose insights are

necessarily guided by the officer’s experience and training.” Id.

According to Bongiovanni, the officers: (1) spotted Ms. Black’s vehicle parked at

an intersection allegedly known to be an open-air drug market and at which gunshots had

been reported; (2) observed Ms. Black’s vehicle take a “circuitous route” back to Dewey

Avenue; and (3) could not see the occupants of Ms. Black’s vehicle through the tinted

windows. (See Dkt. 72 at ¶¶ 6-11). Plaintiff challenges the sufficiency of Defendants’

evidence for those factual circumstances. (See, e.g., Dkt. 65 at ¶¶ 69, 72; Dkt. 75 at 28).

Such arguments demonstrate Plaintiff’s misunderstanding of his own evidentiary burden

as the party moving for summary judgment. See Vt. Teddy Bear Co., Inc. v. 1-800

Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (holding that even an “unopposed

summary judgment motion may [ ] fail where the undisputed facts fail to show that the

moving party is entitled to judgment as a matter of law.” (internal quotation marks and

citation omitted)). Defendants have sufficiently “set forth specific facts showing that there

is a genuine issue for trial” as to whether Bongiovanni and DiMauro had a reasonable

suspicion of criminal activity. See Anderson, 477 U.S. at 256.

Turning to whether the officers reasonably suspected that Plaintiff was armed and

dangerous, Bongiovanni provides the following description:

After learning of [Plaintiff’s] parole status and the gun charge, I wanted to

speak to [Plaintiff] more, as to his reason for being on the violent corner at

an intersection suspected of being an open[-]air drug market. I was

concerned about [the] possession of the gun charge and the criminal history

of [Plaintiff] and therefore when I re-approached the vehicle I did so with

caution based on my experience as a police officer. I approached the

passenger side and informed [Plaintiff] that he was on parole for a criminal

offen[s]e involving a weapon. I asked [Plaintiff] to step out of the vehicle;

[Plaintiff] informed me that he was nervous and refused to step out of the

vehicle. I asked a second time for [Plaintiff] to step out and [I] unlocked the

door and ordered [Plaintiff] to keep his hands where I could see them because

of: (1) the refusal to step out of the vehicle as ordered (2) [Plaintiff’s] parole

status and (3) my fear of a weapon based on [Plaintiff’s] criminal history.

(Dkt. 72 at ¶¶ 15-18). Plaintiff does not challenge the fact that he was on parole or that he

refused Bongiovanni’s initial requests to step out of the vehicle. (See Dkt. 65 at ¶¶ 32-36).

However, Plaintiff argues that Bongiovanni really did not fear that Plaintiff was armed and

dangerous. (See id. at ¶ 73). Not only are issues of Bongiovanni’s credibility inappropriate

for resolution on summary judgment, see, e.g., Redd v. New York Div. of Parole, 678 F.3d

166, 174 (2d Cir. 2012) (“Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge.”

(internal quotation marks and citation omitted)), but the inquiry is an objective one, so that

the issue is not centered on Bongiovanni’s subjective motivation but rather whether “a

reasonable officer would suspect unlawful activity under the totality of the circumstances,”

Diaz, 802 F.3d at 239. Plainly, this is an issue of fact that cannot be resolved on summary

judgment.

C. Plaintiff’s Arrest

Plaintiff’s final argument pertaining to his false arrest claims is that Bongiovanni

and DiMauro did not have probable cause to arrest him for Obstruction of Governmental

Administration in the Second Degree (“OGA”). (See Dkt. 65 at ¶¶ 99-105). Defendants

respond that the officers had probable cause for the OGA arrest “by the fact that Plaintiff

broke from the detaining officers while they were questioning [him] . . . .” (See Dkt. 71-

12 at 14).

In New York, an individual commits OGA when he “intentionally obstructs, impairs

or perverts the administration of law or other governmental function or prevents or attempts

to prevent a public servant from performing an official function, by means of intimidation,

physical force or interference, or by means of any independently unlawful act . . . .” N.Y.

Penal Law § 195.05. “Any interference must be physical and must obstruct an ‘official

function . . . authorized by law.’” Dancy v. McGinley, 843 F.3d 93, 111 (2d Cir. 2016)

(citations omitted).

Here, both parties focus on whether Plaintiff’s flight during Bongiovanni’s and

DiMauro’s search of his person constituted “physical force or interference” sufficient to

give the officers probable cause for the arrest. (See Dkt. 65 at ¶ 99; Dkt. 71-12 at 14). But

a threshold issue is whether the stop and frisk was legal. While “[p]robable cause to arrest

for a violation of § 195.05 may be predicated on, amongst other things, obstructing a lawful

search . . . resisting an illegal search cannot constitute [OGA].” Walker v. Carrozzo, No.

21-CV-2975 (KMK), 2023 WL 2664610, at *7 (S.D.N.Y. Mar. 28, 2023) (internal

quotation marks and citation omitted); see Dancy, 843 F.3d at 112 (“[Plaintiff’s] actions

could not have constituted [OGA] because [Defendant’s] Terry stop and frisk were

unauthorized.”). Because there is a genuine issue of material fact as to whether

Bongiovanni’s and DiMauro’s search of Plaintiff was legal, there is also a genuine issue of

material fact as to whether the officers had probable cause to arrest Plaintiff for OGA.

III. Plaintiff’s Excessive Force Claims

Plaintiff also seeks summary judgment on his Fourth Amendment excessive force

and New York assault and battery claims. (See Dkt. 65 at ¶¶ 92-97). Plaintiff asserts that

both Bongiovanni and DiMauro “committed multiple instances of wrongful physical

contact and [ ] intentional[ly] plac[ed him] in fear of such [ ] contact.” (Dkt. 65 at ¶ 92).

Defendants respond that the officers used the appropriate amount of force necessary to

effectuate Plaintiff’s lawful arrest. (See Dkt. 72-12 at 11-12).

“The Fourth Amendment protects individuals from seizures executed with

excessive force,” Dancy, 843 F.3d at 116, and “[e]xcept for § 1983’s requirement that the

tort be committed under color of state law, the essential elements of [excessive force and

state law assault and battery claims] are substantially identical,” Humphrey v. Landers, 344

F. App’x 686, 688 (2d Cir. 2009) (second alteration in original) (quoting Posr v. Doherty,

944 F.2d 91, 94-95 (2d Cir. 1991)). “Whether the force used was excessive is analyzed

under the Fourth Amendment’s ‘reasonableness’ standard, and determined by

‘balancing . . . ‘the nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental interests at stake.’” Dancy,

843 F.3d at 116 (quoting Graham v. Connor, 490 U.S. 386, 395-96 (1989)).

In evaluating the reasonableness of an officer’s conduct, courts “consider the facts

and circumstances of each particular case, including the crime committed, its severity, the

threat of danger to the officer and society, and whether the suspect is resisting or attempting

to evade arrest.” Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999). These factors are

viewed from the perspective of a reasonable officer at the time of the incident. Graham,

490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a

particular situation.” Id. at 396-97.

Here, Plaintiff has not met his burden of establishing that the officers’ use of force

was excessive as a matter of law. See Adamson v. Miller, 808 F. App’x 14, 16-17 (2d Cir.

2020) (“The central dispute in this claim is a factual one: whether Adamson was placed in

a chokehold and punched. A genuine issue as to that material fact would be sufficient to

defeat summary judgment . . . .”). For instance, while Plaintiff claims that his handcuffs

were overly tight, causing pain and wrist injuries that led to carpal tunnel syndrome (see

Dkt. 65 at ¶¶ 4(iii), 57), the officers adjusted Plaintiff’s handcuffs on at least two occasions

after Plaintiff complained that they were too tight, (see Dkt. 27 at 14:45, 29:18

(Bongiovanni); id. at 51:50, 1:05:45 (DiMauro)). And there is no evidence in the record

that it was unreasonable for the officers to handcuff Plaintiff upon arrest for OGA. See,

e.g., Cugini v. City of New York, 941 F.3d 604, 613 (2d Cir. 2019) (“The question

is . . . whether an officer reasonably should have known during handcuffing that his use of

force was excessive. A plaintiff satisfies this requirement if either the unreasonableness of

the force used was apparent under the circumstances, or the plaintiff signaled her

distress . . . such that a reasonable officer would have been aware of her pain, or both.”).

Plaintiff also claims that DiMauro used excessive force when he: (1) held Plaintiff’s

hands behind his back while Bongiovanni searched for weapons; (2) held Plaintiff in a

chokehold after the officers pursued Plaintiff on foot; and (3) placed his bodyweight on

Plaintiff to prevent Plaintiff from fleeing again. (See Dkt. 65 at ¶¶ 94-96). But the officers’

body camera footage does not establish that, during the initial search for weapons, DiMauro

held Plaintiff’s arms in a manner likely to cause injury. (See Dkt. 27 at 07:45

(Bongiovanni); id. at 44:30 (DiMauro)). The footage also does not establish that DiMauro

placed Plaintiff in a chokehold as opposed to “put[ting his] left arm around the top of

[Plaintiff’s] right shoulder, and [his] left forearm on [Plaintiff’s] upper torso” and

“appl[ying his] body weight to prevent [Plaintiff] from standing up while maintaining the

escort hold of [Plaintiff’s] left arm with [his] right hand.” (See Dkt. 75-5 at 1).° As such,

there are genuine issues of material fact precluding summary judgment in Plaintiffs favor

on his excessive force, assault, and battery claims.

IV. Plaintiff’s Malicious Prosecution Claim

Lastly,® Plaintiff seeks summary judgment on his malicious prosecution claim,

asserting that Bongiovanni, DiMauro, and Morehouse knew that Plaintiff had not

committed any crimes on June 10, 2017. (See Dkt. 65 at § 108). As such, according to

Plaintiff, his prosecution was not supported by probable cause, which “generally creates

an inference of malice.” (See id.).

To the extent Plaintiff moves for summary judgment against Bongiovanni on a

“failure-to-intervene” theory, “a plaintiff must show that the defendant (1) possessed actual

knowledge that a fellow officer was using excessive force; (2) had a realistic opportunity

to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk

by intentionally refusing or failing to take reasonable measures to end the use of excessive

force.” Mikulec v. Town of Cheektowaga, 909 F. Supp. 2d 214, 221 (W.D.N.Y. 2012).

The officers’ body camera footage creates a genuine issue of material fact as to whether

Bongiovanni intentionally refused or failed to take reasonable measures to end DiMauro’s

alleged use of excessive force.

6 Plaintiff also asserts an ITED claim, but does not expressly move for summary

judgment on that claim. (See Dkt. 65 at J 109; see also Dkt. 8 at 9] 175-78). Even if

properly raised, the Court would deny a motion directed to this claim as there are plainly

issues of fact as to whether Plaintiff can establish a claim for ITED against Defendants. See

Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 121 (1993) (discussing that, to establish an

IIED claim in New York, an individual must show: “(i) extreme and outrageous conduct;

(ii) intent to cause, or disregard of a substantial probability of causing, severe emotional

distress; (111) a causal connection between the conduct and injury; and (iv) severe emotional

distress.”’).

In addition, Defendants argue that Bongiovanni, DiMauro, and Morehouse are

entitled to qualified immunity, and for that reason alone, Plaintiff's motion for summary

judgment should be denied. (See Dkt. 72-12 at 16-17). Because the Court has otherwise

determined that issues of fact prevent a finding of liability in favor of Plaintiff on his

claims, the Court does not reach this issue.

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“In order to prevail on a § 1983 claim against a state actor for malicious prosecution,

a plaintiff must show a violation of his rights under the Fourth Amendment, and establish

the elements of a malicious prosecution claim under state law.” Roberts v. Babkiewicz,

582 F.3d 418, 420 (2d Cir. 2009) (internal quotation marks and citation omitted). To

succeed on a “malicious prosecution claim under New York law, a plaintiff must prove (1)

the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of

the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the

proceeding; and (4) actual malice as a motivation for defendant’s actions.” Watkins v.

Town of Webster, 592 F. Supp. 3d 96, 112 (W.D.N.Y. 2022) (citations omitted). Malicious

prosecution claims under § 1983 require an additional showing of a “sufficient post-

arraignment liberty restraint.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir.

2000).

Here, Plaintiff is not entitled to judgment as a matter of law on his malicious

prosecution claims because, among other things, there is a genuine issue of material fact as

to whether Plaintiff’s arrest for OGA was supported by probable cause. See, e.g.,

Rutherford v. Cty. of Mount Vernon, No. 18 Civ. 10706 (AEK), 2023 WL 6395375, at *18

(S.D.N.Y. Sept. 29, 2023) (“For the reasons discussed above, . . . there are material facts

in dispute that prevent the Court from making a finding as to whether there was probable

cause to arrest Mr. Rutherford, let alone to pursue a prosecution.” (internal citation

omitted)). Plaintiff’s motion for summary judgment on his malicious prosecution claims

is therefore denied.

CONCLUSION

For the reasons set forth above, Plaintiff's motion for summary judgment (Dkt. 65)

is denied.

SO ORDERED.

Ll eNOWNI pl?

EF(2ABRTH A. MOURORD /

Chief Judge

United States District Court

Dated: January 29, 2024

Rochester, New York

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