Parker v. Incorporated Village of Freeport

UNITED STATES DISTRICT COURT 1:48 pm, Aug    15, 2024

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

--------------------------------------------------------------X EAS TERN D ISTRICT OF NEW YORK

JOHN PARKER, LONG ISLAND OFFICE

Plaintiff, REPORT AND

RECOMMENDATION

19-CV-6945 (JS)(JMW)

-against-

OFFICER SANTOS, Individually and as an Officer

attached to the Incorporated Village of Freeport Police

Department, INCORPORATED VILLAGE OF

FREEPORT, and INCORPORATED VILLAGE OF

FREEPORT POLICE DEPARTMENT,

Defendants.

--------------------------------------------------------------X

A P P E A R A N C E S:

Gent Disha, Esq.

Wingate, Russotti, Shapiro, Moses & Halperin, LLP

420 Lexington Avenue, Suite 2700

New York, NY 10170

Attorney for Plaintiff

James M. Murphy, Esq.

Montfort, Healy, McGuire & Salley

840 Franklin Avenue

Garden City, NY 11530

Attorney for Defendants

WICKS, Magistrate Judge:

Plaintiff John Parker (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983 asserting

(i) violations of his Fourth Amendment rights, (ii) negligence in the hiring, training, discipline and

supervision of police officers, and (iii) malicious prosecution against Defendants Officer Santos,

Incorporated Village of Freeport (the “Village”) and the Incorporated Village of Freeport Police

Department (“Freeport PD”) (collectively, “Defendants”), arising out of Plaintiff’s arrest by

Officer Santos and the Freeport PD on August 9, 2018. (ECF No. 1.) On February 15, 2023, the

undersigned, who presided over the discovery phase, marked the case as trial ready and returned

it to District Judge Joanna Seybert for trial. (ECF No. 34.) On July 26, 2023, a conference was

held to discuss Defendants anticipated Motion for Summary Judgment on all Counts. (ECF No.

36.) Now before the Court, on referral from Judge Seybert (see Electronic Order dated April 19,

2024), is Defendants’ Motion for Summary Judgment which seeks dismissal of the Complaint in

its entirety (ECF Nos. 39, 41). The motion is opposed by Plaintiff (ECF No. 40). For the reasons

stated herein, the undersigned respectfully recommends that Defendants’ Motion for Summary

Judgment (ECF No. 39) be GRANTED in part and DENIED in part.

BACKGROUND

I. Factual Background

The following facts are drawn from the parties’ Local Rule 56.1(a) Statements and are

uncontested unless otherwise noted.1 On August 9, 2018, Plaintiff’s mother, Theresa Parker, called

1 Unless otherwise noted, a standalone citation to a party’s Rule 56.1 statement throughout this Report and

Recommendation means that the Court has deemed the underlying factual allegation undisputed. Any

citation to a Rule 56.1 statement incorporates by reference the documents cited in it. Where relevant,

however, the Court may cite directly to an underlying document. The Court has deemed true undisputed

facts averred in a party’s Rule 56.1 statement to which the opposing party cites no admissible evidence in

rebuttal. See Stewart v. Fashion Inst. of Tech., No. 18-cv-12297 (LJL), 2020 WL 6712267, at *8 (S.D.N.Y.

Nov. 16, 2020) (“‘[P]ursuant to Local Civil Rule 56.1 [the movant’s] statements are deemed to be admitted

where [the non-moving party] has failed to specifically controvert them with citations to the record.’”)

(quoting Knight v. N.Y.C. Hous. Auth., No. 03 Civ. 2746 (DAB), 2007 WL 313435, at *1 (S.D.N.Y. Feb.

2, 2007)); Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881 (TCP), 2012 WL 4498827, at *2 n.2

(E.D.N.Y. Sept. 28, 2012) (“Local Rule 56.1 requires . . . that disputed facts be specifically controverted by

admissible evidence. Mere denial of an opposing party’s statement or denial by general reference to an

exhibit or affidavit does not specifically controvert anything.”). Further, to the extent a party improperly

interjects arguments and/or immaterial facts in response to facts asserted by the opposing party, and does

not specifically controvert such facts, the Court disregards those statements. See McFarlane v. Harry’s

Nurses Registry, No. 17-CV-06350 (PKC) (PK), 2020 WL 1643781, at *1 n.1 (E.D.N.Y. Apr. 2, 2020)

(quoting Risco v. McHugh, 868 F. Supp. 2d 75, 85 n.2 (S.D.N.Y. 2012)). As the Second Circuit has

explained, a district court “may not rely solely on the statement of undisputed facts contained in the moving

party’s Rule 56.1 statement.” Vt. Teddy Bear Co. v. 1-14 800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir.

2004). “Instead, a district court must satisfy itself ‘that the citation to evidence in the record supports the

assertion.’” Elijah Schimkewitsch v. New York Institute of Technology, No. 23-1022, Summary Order (2d

Cir. Aug. 14, 2024) (quoting Vt. Teddy Bear Co., 373 F.3d at 244).

Freeport PD requesting an officer be dispatched to “the cash checking place” at the intersection of

Main Street and Sunrise Highway in Freeport Village, New York. (ECF No. 40-7.) Mrs. Parker

had just cashed a check from Social Services made payable to herself and Plaintiff’s stepson,

Kenny Love (“Love”), who had rented a room in Mrs. Parker’s house at 121 Lillian Avenue in

Freeport. (ECF No. 39-2 at ¶ 4(c)). Out of the $288.00 check, Mrs. Parker claimed $140.00 for

herself to cover storage fees, but and his mother Danyelle Greene demanded the full amount. (Id.

at ¶ 4(d)-(e)). A verbal dispute arose over the $140.00, and Mrs. Parker would not surrender the

money. (Id. at ¶ 4(e)). By the time officers arrived at Main Street and Sunrise Highway, Mrs.

Parker had gone to Freeport PD headquarters and directed law enforcement officers to 121 Lillian

Avenue, claiming Ms. Greene, Love, and Plaintiff were in front of her house insisting she forfeit

the $140.00. (Id. at ¶ 4(g); ECF No. 40-6 at 24.)

The police escorted Mrs. Parker to her home that evening and found an irate Plaintiff who

tried to explain the dilemma to responding officers. (ECF Nos. 40-6 at 24.) In the body camera

footage, when officers told Plaintiff they were trying to stop an argument, he exclaimed, “There’s

no reason to stop the argument, she’s wrong,” and then lurched at Mrs. Parker as she entered her

parked car in the driveway, wherein officers stepped in between the two. (ECF No. 40-7.) Leaning

against the car’s driver-side door, Plaintiff lamented to officers how Mrs. Parker was supposedly

taking advantage of Love’s previous living situation at her home and repeatedly insisted she was

wrong. (Id.) Demanding that they make his mother turn over the money, Plaintiff told officers, “If

you don’t do it, I’m gonna do it,” and then asked officers, “You want me to break the f***ing

window?” (Id.) At this point, Mrs. Parker was seated in her car. (Id.) Officers behind the vehicle

can be heard saying to one another, “He’s gonna break the door, get ready to jump in.” (Id.)

However, in his January 19, 2021 deposition, Plaintiff denied having ever said he would break the

car’s window or otherwise damage the vehicle but affirmed that he “was annoyed about the

situation.” (ECF No. 40-6 at 40.) As bystanders and officers tried to calm Plaintiff down, he

shouted, “We could do whatever, I don’t give a f*** about you trying to size up on me” to one of

the officers straddling the vehicle and then said, “I’m not scared of nothing.” (ECF No. 40-7.)

Plaintiff eventually left his position next to the car and walked to the end of the driveway, telling

officers, “You better call twenty more,” as can be heard in the body camera footage. (ECF No. 40-

7). While police questioned Mrs. Parker, who was still in her car, Plaintiff shook hands with an

officer at the end of the driveway and explained to him, “I’m not scared of nothing, I’ve been to

jail before, I can fight, I don’t care about none of that, she wrong,” to which the officer responded,

“At the same time, we have a job to do, calmly, and we don’t need people at a heightened, agitated

state.” (Id.). In his deposition, Plaintiff later denied both saying the police “better call 20 more”

and saying that he had been to jail before and could fight. (ECF No. 40-6.)

At the end of the driveway and in the street, officers tried to explain to Plaintiff that, since

this was a civil dispute, they could not settle the check distribution. (ECF No. 40-7.) After noting

his frustration on the matter, Plaintiff went to talk with the Sergeant, who repeated that it was a

civil matter about which the police could do nothing. (ECF Nos. 40-6 at 42). After a few minutes,

Plaintiff repositioned himself near the driver-side door where Mrs. Parker was still seated; officers

Nardella and Santos were adjacent to the car monitoring the situation. (ECF Nos. 39-8; 39-9; 40-

7.) Having approached Mrs. Parker, who was still in her car, Plaintiff insisted to his mother that

she was “causing a problem” and demanded the $140.00, while his mother repeatedly asked him

to step away from the vehicle. (ECF No. 40-7.) When Mrs. Parker said she was going to take her

handbag into her house, Plaintiff retorted, “No the f*** you not coming in there.” (ECF No. 40-

7.) The two then exchanged some words about a bet over whether Mrs. Parker would in fact make

it to her house. (Id.) Plaintiff refused to leave the side of the car, complaining to officers, “She is

rolling the window up on my hand,” and affirmed, “She not going in the house… She not going in

that house.” (ECF No. 40-7.) Officers asked Plaintiff to relax and noted that he was “standing on

the window.” (Id.) When Mrs. Parker exhorted her son to move away from the car, Plaintiff replied,

“You gonna give the money up. You not stronger than me, dummy.” (Id.) Mrs. Parker then began

her egress from the vehicle, whereupon Plaintiff exclaimed, “You see her pushing the door on

me?” (Id.) Finally exiting her car, Mrs. Parker says, “Excuse me,” to her son and the officers there.

(Id.) Officers Santos and Nardella were still in position by the car door. (Id.).

The parties disagree on the ensuing interaction between Plaintiff, Mrs. Parker, and Officer

Santos in the driveway of 121 Lillian Avenue. Plaintiff contends that he was never in arm’s reach

of his mother at “any time,” and that he did not attempt to make contact with Mrs. Parker or grab

her handbag. (ECF Nos. 40-1 at ¶ 1; 40-6 at 46-47.) Moreover, Plaintiff denies inadvertently

striking Officer Santos. (ECF Nos. 40-2 at 5-6; 40-6 at 47.) By contrast, Defendants claim Plaintiff

did attempt to apprehend his mother’s handbag and then swung at Mrs. Parker, but instead hit

Officer Santos in the face. (ECF No. 39-3 at 1-2.) According to the witness statements submitted

in support of the Defendants’ Motion for Summary Judgment, Plaintiff reached around Officer

Nardella to grab his mother’s handbag, and when Officer Nardella started pushing Plaintiff to keep

him away from his mother, Plaintiff then extended his hand to punch Mrs. Parker, but instead

struck Officer Santos in the face. (ECF Nos. 39-8, 39-9, 39-10.) Defendants further identify that

Plaintiff admitted in his Notice of Claim (ECF No. 39-11) to grabbing his mother’s arm, attempting

to prevent her from walking away. (ECF No. 41 at 5.)

In the body camera footage of the dark driveway, officers can be heard saying, “John,

relax,” upon Mrs. Parker’s exit from her vehicle (ECF No. 40-7.) Though not much is visible in

the dusk, there is rapid and audible shuffling from Officer Santos’ body camera, and from Officer

Seaman’s body camera, police can be heard saying towards Plaintiff and his mother, “No, no, stop,

stop, stop.” (ECF No. 40-7.). Plaintiff then exclaims “Don’t you-,” and officers descend upon the

driver’s side of the car where Parker, his mother, and officers Santos and Nardella were. (ECF No.

40-7.) From Officer Santos’ perspective, after Plaintiff says, “Don’t you-,” there is an audible thud,

and the body camera shakes violently. (Id.) As Officer Seaman rushes towards the car, he says

“Watch out, watch out, get out of the way.” (Id.) Meanwhile, Officer Santos, amid a physical

altercation with Plaintiff, says, “You f*** man … bullsh*t … f*** outta here … you f***ing …

f*** outta here.” (Id.) Having arrived at the front of the car, Officer Seaman asks, “Who’s got

cuffs,” to which another unidentified officer replies, “I got cuffs, I got cuffs.” (Id.) At this point,

an officer shines a flashlight on the scene, and Officer Santos swings towards Plaintiff as he is

brought to the ground, hitting him at least three times. (Id.) Plaintiff shouted back: “You gonna

punch me in my face,” to which Officer Santos replied, “You bust in my face, you punched me in

my f***ing face - let me go, move!” (ECF No. 40-7.) As the officers try to restrain Plaintiff, Officer

Santos continues to cry out, “You punched me, you motherf***er,” while Plainitff bemoans for all

officers to “Get the f*** off [him].” (Id.) Officers implore Plaintiff to stop resisting, and, as the

clamor persists, Plaintiff calls out from the ground, “He’s still kicking me! You’re just gonna let

him kick me and punch me?” (Id.) Officers finally subdue Plaintiff, and Officer Seaman explains

to Plaintiff that he was fighting the officers, to which Plaintiff replied, “I didn’t fight nobody.” (Id.)

What happens after the police secured Plaintiff is also hotly contested. Defendants claim

that Officer Santos only came into contact with Plaintiff before officers handcuffed and subdued

him and deny that Officer Santos ever struck Plaintiff after police had restrained him. (ECF Nos.

41 at 3-4; 41-1 at ¶¶ 2-3, 5). By contrast, Plaintiff contends Officer Santos struck and assaulted

him after he was handcuffed on the ground, proffering the body camera footage as corroboration

(ECF Nos. 40-1 at ¶ 2; 40-2 at 5-6). Plaintiff additionally asserts that it took four officers to restrain

Officer Santos from laying any further blows upon him, while Plaintiff was “handcuffed and non-

threatening.” (ECF No. 40-2 at 5-6.) Defendants contend in reply that the officers only had to hold

Santos back before they fully subdued Plaintiff. (ECF No. 41 at ¶¶ 3, 6.) After Plaintiff was

handcuffed and lying on the ground, the body camera footage further shows Officer Santos lean

over between two officers and say to Plaintiff, “Is that what you wanted? Is that what you wanted?”

Officer Santos then lunges at Plaintiff, pushing past fellow officers who had been at ease, and

strikes Plaintiff with at least one punch and one kick. (ECF No. 40-7.) The commotion picks up

again, with multiple officers shouting Officer Santos’ name and moving to pull him away from

Plaintiff as they yell for the officer to stop. (Id.) Santos relents, and Officer Seridge takes him into

the street to cool down and examine the right side of Officer Santos’ face where Plaintiff had

seemingly struck him (Id.)

As Officer Santos walks into the street cursing, Plaintiff asks, “Y’all gonna let him keep

doing that,” to which Officer Seaman responds, “John, do me a favor: shut up.” (Id.) With officers

hoisting him off the ground, Plaintiff repeatedly invites police to look at his face (Id. at 4:23 -

4:34). Officers escort a handcuffed Plaintiff to the end of the driveway and into the street, where

Plaintiff sees Officer Santos and says, “Come on, Santos - I got an amputated foot.” (Id.) Officer

Santos replies with, “Shoulda thought about that,” and Plaintiff questions, “I shoulda thought

about what? After you punched me in the face?” (Id.) Officers then load Plaintiff into a police car.

(Id.) Plaintiff was arrested and charged with attempted grand larceny in the fourth degree, resisting

arrest, attempted assault in the third degree, assault in the third degree and detained on an open

bench warrant. (ECF No. 39-2 at ¶ 4(l).) These charges were adjourned in contemplation of

dismissal. (Id. at ¶ 4(n); ECF No. 1 at ¶ 28.) Plaintiff claims that Officer Santos’ alleged assault

has caused “serious and permanent personal injuries.” (ECF No 40-1 at ¶ 6.) In his deposition,

Plaintiff claimed that the incident left him with nerve damage in his left hand, requiring therapy

and making it susceptible to cramps and regular twitching. (ECF No. 40-6 at 52-55.) He

additionally claimed that nerve damage in his left eye has forced him to wear glasses since the

attack, and that he has had surgery for a titanium flex rod placed in his neck. (Id. at 56-63.)

However, Defendants contend, relying on Plaintiff’s deposition, that no medical evidence has

causally related these injuries to the incident with Officer Santos (ECF No. 40-6 at 62), because

Plaintiff could not proffer a medical diagnosis connecting the injuries in his hand, eye, and neck

to the altercation with police. (ECF No. 41-1 at ¶ 6.)

II. Procedural History

Plaintiff originally commenced this action against Defendants on December 11, 2019,

alleging: (i) violations of his Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. §

1983, arising from the altercation between him and Officer Santos, (ii) negligent hiring, training,

and supervision of Officer Santos and other responding officers on the part of the Incorporated

Village of Freeport and its Police Department, and (iii) malicious prosecution on the part of the

Incorporated Village of Freeport. (ECF No. 1 at ¶¶ 2, 5, 12, 22, 27.) Plaintiff specifically alleges:

(i) that responding officers “unlawfully arrested and unlawfully restrained” him, and that Officer

Santos attacked the plaintiff before and after other officers had pulled him away from John Parker,

“all… without justification or excuse in fact or in law” (ECF No. 1 at ¶¶ 13-15); (ii) that the

Incorporated Village of Freeport and its Police Department “knew or should have known that the

aforementioned defendant officers were of vicious propensity,” and that the Incorporated Village

of Freeport and its Police Department “could have reasonably anticipated the dispositions of the…

defendant officers would likely result in injury to others” (ECF No. 1 at ¶¶ 23-24); and (iii) that

the arrest, underlying the proceedings commenced by the defendants and terminated favorably to

Plaintiff, was made with actual malice but without probable cause. (ECF No. 1 at ¶¶ 27-29.)

Defendants answered the Complaint on February 3, 2020. (ECF No. 8.)

On May 29, 2020, Magistrate Judge Shields adopted the parties’ proposed Phase I

discovery deadlines (ECF No. 10), but additionally: (i) directed counsel to submit a joint status

letter on October 9, 2020 setting forth all discovery taken and stating with particularity, all

discovery necessary and dates for completion thereof, for the matter to be trial or dispositive

motion practice ready, and (ii) scheduled an in-person status conference for October 13, 2020. (See

Electronic Order dated May 29, 2020.) On October 20, 2020, the Court amended the discovery

schedule to have fact-finding completed by December 30, 2020, and to have dispositive motions

initiated by January 29, 2021, additionally requiring counsel to submit a joint status letter by

December 22, 2020, which would include a request for a settlement conference if the parties so

desired. (See Electronic Order dated October 20, 2020.) The Court then extended fact discovery to

March 30, 2021, dispositive motion initiations to April 29, 2021, and the joint status letter to March

22, 2021. (See Electronic Order dated January 13, 2021.) On March 23, 2021, the deadline for

expert discovery was extended to June 1, 2021, and the dispositive motion deadline was extended

to June 30, 2021. (See Electronic Order dated March 23, 2021.) On June 10, 2021, the parties

appeared for a Status Conference before the undersigned2 regarding discovery status; fact and

expert discovery were extended to July 31, 2021, and the Final Pretrial Conference before the

undersigned was set for August 30, 2021. (ECF No. 16).

2 This case was reassigned from Judge Shields to undersigned on May 24, 2021. (See Electronic Order

dated May 24, 2021.)

The parties submitted their Joint Pretrial Order (“JPTO”) on August 26, 2021. (ECF No.

17). At the Pretrial Conference on September 13, 2021, Plaintiff requested, and was granted, a

short adjournment to revise and finalize the JPTO. (ECF No. 19.) The Court set another Pretrial

Conference for October 7, 2021, and marked the revised JPTO for filing on October 5, 2021. (Id.)

On October 21, 2021, Plaintiff requested another extension, which the Court granted and set a

Pretrial Conference for November 15, 2021, and a filing deadline on the revised JPTO for

November 8, 2021. (ECF No. 20.) The undersigned approved of the parties’ JPTO of November

22, 2021, and returned the action to the District Court for final disposition. (ECF No. 22.) However,

the Court, considering: (i) the backlog of civil cases due to the COVID-19 pandemic, (ii) the

difficulties of holding in-person proceedings at the time, and (iii) the priority of its criminal docket,

referred this action to the Trial Ready Rapid Mediation Pilot and ordered the parties to notify the

Court of their efforts in finding a mediator by March 2, 2022. (See Electronic Order dated January

31, 2022.) The parties ultimately adjourned their first Mediation scheduled for September 22,

2022, because Plaintiff’s counsel had stopped practicing the law and was not responding to

Plaintiff’s requests for his case file. (ECF Nos. 25, 29.) Defendants’ counsel offered to provide

Plaintiff with courtesy copies of his case file, and the parties agreed to continue mediation while

plaintiff looked for new counsel. (ECF Nos. 27, 29.)

At the Status Conference before the undersigned on February 15, 2023, Plaintiff appeared

pro se and advised the Court that he had not retained new counsel and would not be reopening

discovery. (ECF No. 34.) The undersigned marked the case as trial ready and referred it back to

Judge Seybert for trial scheduling, considering the case had returned from mediation as

unsuccessful. (ECF No. 34; Electronic Order dated February 15, 2023.) At the July 26, 2023, Status

Conference before Judge Seybert, the parties entered into a briefing schedule for anticipated

dispositive motions (ECF No. 36), and on October 24, 2023, Plaintiff’s new counsel filed a Notice

of Appearance. (ECF No. 37.) Defendants filed their Motion for Summary Judgment on all Counts

asserted in the Complaint on December 27, 2023 (ECF No. 39), and Plaintiff’s Response in

Opposition (ECF No. 40), as well as Defendants’ Reply in Support (ECF No. 41). On April 19,

2024, Judge Seybert referred Defendants’ Motion to the to the undersigned for a Report and

Recommendation (“R&R”). (See Electronic Order dated April 19, 2024.)

III. The Parties’ Contentions

A. Defendants’ Motion for Summary Judgment

In support of their Motion for Summary Judgment, Defendants argue: (i) the claims against

the Village must be dismissed, (ii) Plaintiff’s state law claims are barred by the statute of

limitations, (iii) that the doctrine of qualified immunity bars Plaintiff’s claim against Officer

Santos, (iv) Plaintiff’s claim for negligent hiring, training, discipline, and supervision must be

dismissed because Officer Santos was acting within the scope of his employment, (v) Plaintiff’s

claim for malicious prosecution must be dismissed, (vi) the claims against the Freeport PD must

be dismissed, and (vii) Plaintiff cannot recover punitive damages against the Village. (ECF No.

39-3 at i.) With respect to the first point, Defendants argue that Plaintiff has failed to proffer

evidence of the Village engaging in an unconstitutional policy, custom, or practice. (ECF No. 39-

3 at 3.) Specifically, Defendants posit that a single officer’s alleged constitutional violations in an

isolated incident do not make the Village vicariously liable for – and cannot demonstrate at large

– an unconstitutional municipal pattern or practice under the Supreme Court’s decision in Monell

v. Dept. Social Services, 436 U.S. 658, 691 (1978) (“Monell”) and the Second Circuit’s decision

in Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (“Riccuti”). (Id. at 4-5.)

Defendants argue Plaintiff’s Complaint does not even reference a policy or custom on the Village,

and in the Pretrial Order, Plaintiff conceded that the Complaint failed to state a Monell claim

against the Village, warranting dismissal. (ECF Nos. 39-3 at 5; 39-6 at ¶ 7(p).)

As to the second point, Defendants argue the statute of limitations on Plaintiff’s state law

claims ran on November 7, 2019, however, Plaintiff only filed this action on December 11, 2019,

and therefore, as Plaintiff conceded in the Pretrial Order, and pursuant to CPLR §§ 215 and 9802,

Defendants contend the statute of limitations bars these claims (ECF Nos. 39-3 at 6-6; 39-6 at ¶

7(m).) Third, Defendants contend the doctrine of qualified immunity bars Plaintiff’s claims against

Office Santos because Officer Santos’ actions were “not only reasonable, but should be expected”

as “[P]laintiff was lunging toward his mother and attempting to punch her but instead punched

P.O. Santos in the face,” and therefore “was a threat to the safety of the officers present and to

[Plaintiff’s] own mother.” (ECF No. 39-3 at 7.)3 Defendants maintain that “it certainly is not

reasonable to expect an officer to not strike back after being punched in the face,” contending that

one of the main factors in analyzing the merits of constitutional excessive force is “whether the

suspect poses a threat to the officers or others.” (ECF No. 39-3 at 6-7) (citing Graham v. Conner,

490 U.S. 386, 396-97 (1989)). Defendants emphasize that from the perspective of a “reasonable

officer at the scene,” Officer Santos was justified in defending himself and others amid the “tense,

uncertain, and rapidly evolving” circumstances that Plaintiff aggravated. (ECF No. 39-3 at 7)

(citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). Defendants further contend that Officer Santos’

conduct did not violate an established statutory or constitutional right which a reasonable officer

at the scene should have discerned. (ECF No. 39-3 at 8.) Specifically, Defendants claim that, after

being punched, Officer Santos acted in self-defense and subdued Plaintiff to effectuate an arrest

3 Plaintiff denies reaching for his mother’s handbag or inadvertently striking Officer Santos. (ECF Nos. 40-

1 at ¶ 1; 40-6 at 46-47; 40-2 at 5-6; 40-6 at 47.)

for assault, such that it was objectively reasonable for Santos to believe his conduct did not

contravene an established right. (Id. at 9-10) (citing City of Escondido, California v. Emmons, 586

U.S. 38, 43-44 (2019)). To this end, Defendants claim even if the constitutional right is clearly

established here, no law could have unequivocally notified Officer Santos or a reasonable official

in his place that his retaliation impermissibly violated Plaintiff’s general right to be free from

excessive force, warranting summary judgment in favor of Defendants on qualified immunity

grounds. (Id. at 9.)

Fourth, Defendants contend that Plaintiff’s failure to provide a proper Notice of Claim

warrants the dismissal of his claims for negligent hiring, training, discipline, and supervision

pursuant to New York General Municipal Law (“NYGML”) §§ 50-e and 50-i. (ECF No. 39-3 at

10-11.) Defendants additionally contend that New York State law mandates the dismissal of

negligent hiring, training, discipline, and supervision claims when the defendant acts within the

scope of his employment, and, as Plaintiff has conceded in the Pretrial Order, Officer Santos was

acting within the scope of his employment. (Id. at 11; 39-6 at ¶ 7(o).) Fifth, Defendants argue

Plaintiff’s claims for malicious prosecution must be dismissed because, as also acknowledged in

the Pretrial Order, the criminal charges against Plaintiff were adjourned in contemplation of

dismissal (“ACOD”), which is not a “favorable determination” for the purposes of a malicious

prosecution. (ECF No. 39-3 at 11-12.) Defendants posit that acceptance of an ACOD precludes

civil action against officers and municipalities for malicious prosecution. (Id. at 12) (citing

Freedman v. Monticello Police Department, 01 Civ 0119 (NRB), 2003 WL 135751 (S.D.N.Y.

2003) (Buchwald, J.)). Defendants further note an element of malicious prosecution is “termination

in favor of the accused,” and, while ACOD is not an admission of guilt or a conviction, it is not

considered to be “termination in favor of the accused” and does not settle the question of the

accused’s guilt. (Id.)

Sixth, Defendants maintain that the claims against the Freeport PD should be dismissed

because, under New York law, administrative arms of a municipality do not have a legal identity

separate and apart from the municipality and thus cannot be sued, and the Freeport PD is an

administrative arm of the Village, and therefore, has no capacity to be sued. (Id. at 12-13.) Finally,

Defendants argue Plaintiff cannot recover punitive damages against the Village, as state entities

and political subdivisions are not subject to punitive damages. (Id. at 13) (citing Sharapata v. Town

of Islip, 56 N.Y.2d 332 (1982)).

B. Plaintiff’s Opposition

In his Opposition, Plaintiff argues: (i) there are material issues of fact precluding summary

judgment at this stage of the litigation, (ii) Defendants “clearly violated [Plaintiff’s] established

constitutional right,” (iii) Officer Santos is not protected by the doctrine of qualified immunity

because his act of striking Plaintiff while Plaintiff was handcuffed and subdued was objectively

unreasonable, and (iv) that punitive damages may still be available against Officer Santos. (ECF

No. 40-2 at 5, 7, 10, 14.) First, Plaintiff contends there is an issue of material fact as to whether he

inadvertently struck Officer Santos. (Id. at 5.) Plaintiff maintains the “baseless and unfounded

claim” that he struck Santos “is used only as a pretext to the Defendant officer’s actions in an effort

to afford him qualified immunity.” (Id.) In making this argument, Plaintiff relies on his deposition

wherein he denied striking Santos (ECF No. 40-6 at 46-47) and contends, this disagreement

between the parties alone should warrant denial of Defendant’s Motion for Summary Judgment.

(ECF No. 40-2 at 6.) Plaintiff asserts Officer Santos exercised excessive force “after the [p]laintiff

was already restrained and handcuffed and no longer a threat” such that there is no reasonable or

lawful basis upon which to afford Santos qualified immunity. (Id.) (emphasis in original).

Second, Plaintiff contends that “Defendants violated [his] clearly established constitutional

right to be free from excessive force when he was assaulted by Defendant, [Officer Santos], after

Plaintiff was already detained and handcuffed on his stomach, presenting no threat to any of the

officers present.” (Id. at 10). Plaintiff relies on the body camera footage, “crucially omitted from

Defendants’ narrative,” as evidence that “vividly captures this unjustified use of force” (id. at 7),

and also notes that “comments from the other officers present… further attest to the non-

aggressive, subdued state of the Plaintiff.” (Id.) Plaintiff maintains that under the Fourth

Amendment, “it is well established that the use of excessive force during an arrest is

constitutionally prohibited” (id. at 9) (citing Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002),

and “the use of force upon an individual already handcuffed, and thus presenting no threat of flight

or possible harm to anyone in the area, constitutes excessive force.” (Id. at 9-10) (citing Tracey v.

Freshwater, 623 F.3d 90 (2d Cir. 2010). To this end, according to Plaintiff, Defendants “should

have known” that striking a “handcuffed and subdued” Plaintiff violated his constitutional rights.

(Id. at 10.)

Third, Plaintiff argues Officer Santos’ conduct was “neither reasonable nor within the

bounds of established legal standards” (id. at 10), and that to grant Santos qualified immunity here

“would set a dangerous precedent… condoning gross misconduct under the guise of law

enforcement.” (Id. at 11.) Plaintiff contends that since he was “arrested, subdued, and handcuffed”

when Officer Santos struck him, the severity of Plaintiff’s underlying crime, the claim that Plaintiff

posed a threat to officers, or that Plaintiff was trying to evade arrest are all irrelevant (id. at 12-

13), as no reasonable jury could conclude that it was reasonable for Santos to think he was not in

contravention of the Fourth Amendment when he struck Plaintiff after he was cuffed and subdued.

(Id. at 12.)

Plaintiff additionally argues the actions of other officers in body camera footage, “which

the Defendants have conveniently ignored” (id. at 10), “put to rest any argument regarding the

reasonableness of the force used by [Officer Santos].” (Id. at 13). Specifically, Plaintiff identifies

officers shouted “Santos, stop” while stepping between Santos and the “handcuffed, subdued”

Plaintiff. (Id.) Plaintiff argues that defendants’ proffered precedent is distinguishable, as in City of

Escondido, California, officers used force while making an arrest, whereas here, officers

supposedly engaged in force after plaintiff was restrained (ECF No. 40-2 at 14). Fourth, Plaintiff

notes that Defendants premised their argument against punitive damages only as to the Village and

the Freeport PD, and not against Officer Santos individually. (Id.) Plaintiff maintains punitive

damages against the Officer Santos are available and suggests that such a reward may be integral

to the civil action’s remedy. (Id. at 14-15.)

C. Defendants’ Reply

In their Reply, Defendants direct the Court to Plaintiff’s Notice of Claim (ECF No. 39-11),

which states that Officer Santos only begun striking when Plaintiff grabbed Mrs. Parker’s arm to

keep her on the scene, and that police only had to pull Officer Santos off Plaintiff before they

handcuffed and subdued him. (ECF No. 41 at 3.) Defendants further charge that Plaintiff’s

“feigned factual issues” in his Opposition to Summary Judgment cannot present an issue of triable

fact because there is no affidavit or sworn testimony from Plaintiff averring Officer Santos struck

him while handcuffed, nor are there any explanations for the inconsistencies between the Notice

of Claim and the Opposition. (Id. at 4.) Plaintiff’s denial of grabbing his mother’s arm, according

to Defendants, “does not raise a credible issue of fact sufficient to defeat a motion for summary

judgment.” (Id. at 5.)

In an adamantine fashion, Defendants contend that the body camera footage does not show

Officer Santos jumping onto and striking a “handcuffed and subdued” Plaintiff. (Id. at 4.)

Defendants insist they have not ignored the footage, rather, they acknowledged it in their

Declaration of Support for Summary Judgment by referencing the Pretrial Order, which lists all

body camera footage. (Id. at 5.) Defendants reiterate that Officer Santos was justified in defending

himself and others after Plaintiff struck him; and just because officers had to separate Santos from

Plaintiff does not suggest Santos’ conduct was clearly unlawful. (Id.) Furthermore, “[a]s the body

camera videos clearly demonstrate,” Defendants argue Plaintiff’s conduct created a “very tense

and confrontational setting,” threatening the officers and his mother. (Id. at 6-7.)4 Amid the

“seemingly tense and uncertain environment” seen through the body camera videos, Defendants

contend that “it was objectively reasonable for [Officer Santos] to believe his acts did not violate

any constitutional right of the [P]laintiff,” thus warranting the application of qualified immunity

to Santos. (Id. at 7.)

DISCUSSION

I. Standard on a Motion for Summary Judgment

In order to obtain summary judgment, the movant must demonstrate 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 Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022). A genuine dispute of

material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

4 Defendants specifically quote Plaintiff from the footage saying, “I’m not afraid of nothing, I’ve been to

jail before, I can fight,” “If you don’t lock her up, you’re going to have a bigger problem,” and that the

police should “call 20 more.” (Id. at 6.)

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden

is on the movant to demonstrate the absence of a genuine issue of material fact, which can be met

by pointing to a lack of evidence supporting the nonmovant’s claim. Celotex Corp. v. Catrett¸ 477

U.S. 317, 323, 325 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Once the

movant meets its initial burden, the burden shifts and the nonmovant may defeat the motion only

by adducing evidence of specific facts that raise a genuine issue for trial. Fed. R. Civ. P. 56(e);

Anderson, 477 U.S. at 250; Davis v. New York¸ 316 F.3d 93, 100 (2d Cir. 2002).

“The Court is to believe the evidence of the non-movant and draw all justifiable inferences

in her favor, but the non-movant must still do more than merely assert conclusions that are

unsupported by arguments or facts.” Sosa v. New York City Dep't of Educ., 406 F. Supp. 3d 266,

268 (E.D.N.Y. 2019) (internal citations omitted). The role of the court at the summary judgment

stage is not to resolve disputed issues of fact, but merely undertake an analysis to identify whether

triable issue of fact exist. See Kee v. City of New York, 12 F.4th 150, 167 (2d Cir. 2021). That is,

the court’s function is “issue-finding,” not “issue-resolution.” Carolina Cas. Ins. Co. v. Cap.

Trucking Inc., 523 F. Supp.3d 661, 668 (S.D.N.Y. 2021) (citing Gallo v. Prudential Residential

Servs., Ltd. P’ship 22 F.3d 1219, 1224 (2d. Cir. 1994)). Au fond, the court’s role is to decide

whether, “after resolving all ambiguities and drawing all inferences in favor of the nonmovant, a

reasonable jury could return a verdict for the nonmovant.” Miller v. N.Y. State Police, No. 20-

3976, 2022 WL 1133010, at *1 (2d Cir. Apr. 18, 2022) (citing Anderson, 477 U.S. at 248 and

Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127, 129 (2d Cir. 2013)).

Viewing the facts presented here in the light most favorable to Plaintiff, the undersigned

finds: (i) material issues of fact remain for trial on Plaintiff’s claim of Fourth Amendment

violations, (ii) Plaintiff’s Monell claim against the Village and the Freeport PD fails as a matter of

law, (iii) Plaintiff’s claim for negligence in the hiring, training, discipline and supervision of police

officers fails as a matter of law, and (iv) Plaintiff’s claim for malicious prosecution fails as a matter

of law. Therefore, the undersigned respectfully recommends Defendants’ Motion for Summary

Judgment be granted as to Plaintiff’s Monell, negligent hiring/supervision, and malicious

prosecution claims, only, and denied as to the alleged Fourth Amendment claims.

II. Fourth Amendment Violations and Qualified Immunity

Defendants argue that the doctrine of qualified immunity bars Plaintiff’s claims against

Officer Santos for violations of Plaintiff’s Fourth Amendment rights. See ECF No. 39-3 at 6-10.

Plaintiff counters: (i) there are still questions of material fact precluding summary judgment on

Plaintiff’s Fourth Amendment claims, (ii) Officer Santos violated Plaintiff’s Fourth Amendment

rights, (iii) and Officer Santos’ striking of a “subdued and handcuffed” Plaintiff was “objectively

unreasonable.” See ECF No. 40-2 at 5-7, 10-12. The undersigned analyzes the merits of each

contention below.

Qualified immunity shields “government officials performing discretionary

functions…from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Kelsey v. County of Schoharie, 567 F.3d 54, 60-

61 (2d Cir. 2009). Thus, the Court must consider (1) whether the official violated a statutory or

constitutional right, and (2) whether the right was clearly established at the time of the alleged

misconduct. Sabir v. Williams, 52 F.4th 51, 58 (2d Cir. 2022); Tracey v. Freshwater, 623 F.3d 90,

95-96 (2d Cir. 2010). As to the first consideration, the Fourth Amendment prohibits a police

officer’s unreasonable and therefore excessive use of force in effectuating an arrest. Graham v.

Connor, 490 U.S. 386, 395-97 (1989); Tracy, 623 F.3d at 96. Under this test of objective

reasonableness, Graham, 490 U.S. at 397, the inquiry weighs the particular facts and

circumstances of the disputed incident to balance the plaintiff’s Fourth Amendment interests

against the concerns of law enforcement. Harrison v. Inc. Vill. Freeport, 498 F.Supp.3d 378, 394

(E.D.N.Y. 2020); Amnesty Am. v. Town W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004). The Court

makes this inquiry not with the benefit of hindsight, but “from the perspective of a reasonable

officer on the scene,” Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006), acknowledging “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.” Graham, 490 U.S. at 397. Some factors to shepherd this inquiry chiefly include (1) the

nature and severity of the arrest’s underlying crime, (2) whether the suspect poses a threat to

officers and those in the area, and (3) whether the suspect resisted arrest or attempted to evade

officers. Tracy, 623 F.3d at 96 (citing Graham, 490 U.S. at 396).

In assessing particular circumstances from the perspective of a reasonable officer, a dispute

in fact does not necessarily preclude summary judgment on excessive force. Tracy, 623 F.3d at 97.

For instance, in Mesa v. City of New York, plaintiff made contact with an officer conducting crowd

control; the parties disputed whether she intentionally lashed out or was merely pushed into the

officer. 2013 WL 31002 at *20 (S.D.N.Y. Jan. 3, 2013). Nonetheless, it was not unreasonable for

the defendant officer to subdue her, considering that in the tumult of the crowd, the lunging

plaintiff seemed to require some sort of restraint, even if she ultimately did not. Id. at *19-20 (“It

makes no difference that [plaintiff] did not, in actuality, hit [defendant], so long as it was

reasonable for the officers who detained her to perceive that some sort of forcible contact had

occurred between the two.”); see also Smith v. City of New York 2021 WL 4267525 at *2-3, 6-8

(S.D.N.Y. Sept. 20, 2021) (where officers reasonably effectuated plaintiff’s arrest in a physical

altercation after the plaintiff “in a loud, combative, and antagonistic manner…thrusted his arms in

the air” in the direction of an officer, appearing to strike him in the chin). A plaintiff's abrasive and

threatening behavior could also compel an officer to take action out of a reasonable concern for

the safety of others. In Lopez v. Gerace, 2023 WL 7281653 (N.D.N.Y. Nov. 3, 2023), a “highly

agitated” plaintiff, “demonstratively walking back and forth,” shouting at officers, and removing

jewelry seemingly in preparation for a fight, lunged at and came within two feet of an officer. Id.

at *2-5. Defendant, unsure whether plaintiff was going for a beer can in front of the officer or

charging to attack, made the “split-second decision” to punch plaintiff in the face and tackle him

to the ground before plaintiff ever made contact with either the can or the officer. Id. at *5. The

Court found the defendant-officer acted with reasonable force. Id. at 11. Officers had tried to ease

the situation amid plaintiff’s threatening postures, and when this tension seemed to erupt with

plaintiff’s sudden movement towards an officer, defendant acted with a legitimate concern for the

safety of his partner. Id. at 10-11.

As to the second consideration, the Court focuses on “‘whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.’” Jones v. Treubig,

963 F.3d 214, 224 (2d Cir. 2020) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Though an

officer may violate an established right in the circumstances he confronted, the officer can still be

entitled to qualified immunity if it was objectively reasonable of him to believe his conduct did

not violate that right. Outlaw v. City of Hartford, 884 F.3d 351, 367 (2d Cir. 2018). Since the

inquiry on excessive force is fact-intensive, the Court must define the clearly established right with

specificity and definiteness, such that a reasonable official in the defendant’s place would know

he was violating it. City of Escondido, Cal. v. Emmons, 586 U.S. 38, 42 (2019); Kisela v. Hughes,

584 U.S. 100, 105 (2018). That does not necessarily mean there needs to be precise precedent on

point, “but existing precedent must place the statutory or constitutional question beyond debate.”

Lennox v. Miller, 968 F.3d 150, 156-57 (2d Cir. 2020) (internal quotations omitted); Terebesi v.

Torreso, 764 F.3d 217, 237 n.20 (2d Cir. 2014) (“Some measure of abstraction and common sense

is required with respect to police methods[.]”).

It is beyond question that the use of significant and “entirely gratuitous” force against a

restrained arrestee who is not resisting and does not threaten the safety of officers or others is

unreasonable and therefore excessive. Tracy, 623 F.3d at 99 n.5; Lennox, 968 F.3d at 157; Jones,

963 F.3d at 225. The Second Circuit has articulated this principle on multiple occasions across a

variety of fact patterns and methods of force application. See Tracy, 623 F.3d at 98 (holding that

a jury could find that the use of pepper spray against a handcuffed and unresisting plaintiff

constituted excessive and gratuitous force); Maxwell v. City of New York, 380 F.3d 106, 108 (2d

Cir. 2004) (vacating summary judgment for an officer who allegedly shoved a handcuffed plaintiff

headfirst into a police car, striking her head on the metal frame in the process); Weather v. City of

Mount Vernon, 474 Fed.Appx. 821, 824 (2d Cir. 2012) (where no reasonable officer would believe

that twisting a compliant plaintiff’s arm behind his back and shoving him into a brick wall was a

lawful use of force); Simcoe v. Gray, 577 Fed.Appx. 38, 40 (2d Cir. 2014) (denying summary

judgment amid disputes over whether officers yanked plaintiff’s arm and smashed his head into

the ground even though he was not resisting); Outlaw, 884 F.3d at 367 (where the Court affirmed

a jury’s verdict on appeal, reasoning that “no competent police officer could have failed to

comprehend that [the constitutional prohibition against use of excessive force in making an arrest]

would encompass repeatedly beating an unresisting, supine, jaywalking suspect with a stick”).

“Restrained” arrestees are typically in handcuffs and encompassed by officers, making no

or ceasing evasive attempts. Estate of Jaquez v. City of New York, 104 F.Supp.3d 414, 434-35

(S.D.N.Y. 2015) (“[R]easonable jurors applying their common sense could determine that it was

objectively unreasonable to shoot Mr. Jaquez in the back of the head when he had already been

shot at least four times, was surrounded by a team of officers suited up in their ballistics gear, and,

even if he somehow maintained possession of the knife, was merely pushing up from the ground”);

Bryant v. Meriden Police Dept., 2017 WL 1217090 at *15 (D. Conn. Mar. 31, 2017) (holding it as

clearly established that officers could not inflict significant force upon a handcuffed arrestee

surrounded by multiple officers); Watson v. Grothkopp, 2019 WL 3431104 at *6 n.9 (E.D.N.Y.

Sept. 14, 2012) (finding that plaintiff’s snide remarks towards police did not sanction an officer to

punch plaintiff in the face where plaintiff had his hands on the ground, made no attempt to flee,

and was encircled by three officers). More recently, Lennox articluated that Tracy’s holding still

applies in cases of apparent excessive force featuring crude, physical altercations. In Lennox, an

officer “had no trouble” handcuffing plaintiff and slammed her to the ground. Lennox, 968 F.3d at

153. The officer then crushed plaintiff under both knees, causing significant pain. Id. Relying on

Tracy’s progeny, the Second Circuit reiterated “that it is impermissible to use significant force

against a restrained arrestee who is not actively resisting.” Id. at 157 (“Because a reasonable jury

could find that the force used by [defendant] was significant and that [plaintiff] was not resisting

when such force was used, we cannot say, as a matter of law, that [defendant] did not violate

clearly established law.”).

Here, Plaintiff’s Complaint “can be read to allege that [Officer Santos] exceeded Fourth

Amendment constraints in [two] different ways[.]” Tracy, 623 F.3d at 96; ECF No. 1 at ¶ 14. First,

that Officer Santos attacked Plaintiff without justification when Mrs. Parker exited her car

(hereafter, the “First Interaction”). Second, that Officer Santos assaulted Plaintiff after officers

subdued Parker and placed him in handcuffs (hereafter, the “Second Interaction”). As stated,

Officer Santos disputes Plaintiff’s account of the facts behind both of those allegations.

A. The First Interaction

With respect to the First Interaction, the undersigned concludes that Officer Santos acted

reasonably and did not use excessive force in violation of the Fourth Amendment. From Santos’

perspective, and as Officers Nardella and Seridge affirmed in their witness statements, Plaintiff

had his mother bound in an intense verbal melee from the time officers arrived on scene,

belligerently shouting his position at both her and police. See ECF Nos. 39-8; 39-9. Even after

officers had explained to him it was a civil matter about which they could do nothing, neither

Plaintiff nor his mother broadcasted an intent to acquiesce and instead chose to sustain the war of

words over $140.00. Long before the altercation over Mrs. Parker’s handbag, officers voiced their

concerns that Plaintiff was going to break her car door or smash her window when he asked, “You

want me to break the f***ing window?” See ECF No. 40-7. Whether or not Plaintiff intended to

act on these statements is immaterial where officers on the scene interpreted these threats gravely

and anticipated violence. As with the shouting Lopez plaintiff who seemed to be preparing for a

fight, Plaintiff’s demonstrative conduct here created a combative and uncertain environment that

reasonably put officers on a heightened alert for conflict ahead of the struggle by Mrs. Parker’s

car. Plaintiff further threatened that his mother would not make it into her own home before

surrendering the money. Once again, it does not matter if Parker intended these words in jest or

for show. Rather, the query is on how a reasonable officer would perceive this conduct amid the

circumstances. Considering that an agitated Parker positioned himself against his mother’s car

door multiple times and refused to leave even in the presence of multiple officers, Santos and his

cohort had reason to believe Parker would use force to stop his mother from leaving the scene,

thus posing a threat to her safety and that of those in the vicinity.

Considering these circumstances, the witness statements of Officer Nardella, Officer

Seridge, and Mrs. Parker are particularly instructive of the precise sequence of events surrounding

the First Interaction. All three place Officers Nardella and Santos standing by Mrs. Parker’s car in

the driveway as she and her son disputed the money. See ECF Nos. 39-8; 39-9; 39-10. According

to Officer Nardella’s statement, as Mrs. Parker exited her vehicle, Plaintiff “reached around [him]

and grabbed [Mrs. Parker’s] purse in an attempt to remove it from her person.” See ECF No. 39-

8. Officer Seridge recounts the same occurrence: “As [Plaintiff’s] mother attempted to exit her

vehicle, [Plaintiff] did attempt to take her purse off her person.” See ECF No. 39-9. Mrs. Parker

further testified that she was “exiting [her] vehicle when [Plaintiff] grabbed [her] handbag.” See

ECF No. 39-10. Officer Nardella and Mrs. Parker additionally claim that Mrs. Parker pushed away

from Plaintiff to break his grasp. See ECF Nos. 39-8; 39-10. After this, Officer Nardella

“interceded and began pushing [Plaintiff] back to keep him away from [Mrs. Parker].” See ECF

No. 39-8. Officer Seridge affirmed this testimony, observing that “Nardella did grab [Plaintiff] to

keep him off [Mrs. Parker].” See ECF No. 39-9. Mrs. Parker similarly stated that, after she pushed

off Plaintiff, “police then intervened and wrestled [Plaintiff].” See ECF No. 39-10. Finally, all

three statements maintain that Plaintiff, in attempting to reach around Officer Nardella and strike

his mother, punched Santos in the face. See ECF No. 39-8 (“[Plaintiff] then made a closed fist and

in an attempt to punch his mother, recklessly punched PO Santos in the face[.]”); ECF No. 39-9

(“[Plaintiff] then threw a punch which did strike PO Santos in the face.”); ECF No. 39-10

(“[Plaintiff] had extended his right hand in an attempt to punch me but instead struck PO Santos

in the face.”).

Parker disputes three aspects of this sequence: (i) he denies grabbing or attempting to grab

his mother or her purse (ECF No. 40-6 at 46), (ii) he contends that he never attempted to punch

his mother (Id.), and (iii) he insists he never inadvertently struck Officer Santos (ECF Nos. 40-1

at ¶ 1; 40-2 at 5; 40-6 at 47). However, in Plaintiff’s Notice of Claim, his Memorandum in

Opposition against Defendants’ Motion for Summary Judgment, and his Deposition (and

notwithstanding the inconsistencies between the Notice of Claim and the Deposition), Plaintiff

does not deny the pushing and shoving Officer Nardella, and the three statements corroborating

that fact go uncontested. Thus, even after settling the three disputed facts in favor of Plaintiff –

i.e., that he did not grab or attempt to grab his mother’s purse, did not attempt to punch his mother,

and that he did not inadvertently strike Officer Santos – Plaintiff, at the very least, engaged with

Officer Nardella in some sort of grapple which an officer in Santos’ position could reasonably

perceive as a threat to the safety of those around him. See ECF No. 41 at 5. Like the interaction in

Mesa, where the Court found it reasonable for officers to restrain a lunging plaintiff in a tumultuous

scene who had just made contact with an officer, here, Santos found himself before an agitated

and combative Plaintiff who, by his words and conduct, appeared bent on apprehending his mother

and the $140.00 by physical means.

Even if Parker did not intend to seize any part of his mother, his encounter with Officer

Nardella in the close quarters of the dark driveway, pinched between a car and hedges, posed an

imminent threat to the safety of Officer Nardella and Mrs. Parker, whom an escalation of violence

could embroil. Guided by Lopez, it was reasonable for an officer to take down a plaintiff who had

suddenly moved within close proximity to another officer without even making contact; here,

Plaintiff had already made contact with Officer Nardella. And, as in Lopez, Plaintiff had not shown

signs of simmering his temper in the moments before the altercation. Rather, Plaintiff’s conduct,

as seen from the perspective of Santos, only increased the tension in the driveway and elicited a

forceful response from police who, up until that moment, had attempted to reason with him the

entire time they were there. To this end, the undersigned finds Officer Santos acted with reasonable

force in taking down Plaintiff after seeing Plaintiff use force against a fellow officer.

B. The Second Interaction

With respect to the Second Interaction, the undersigned finds that there are still material

issues of fact in dispute precluding a grant of summary judgment at this stage. The parties

specifically dispute whether Officer Santos continued to strike Plaintiff before or after officers

handcuffed and restrained Plaintiff. Affording full credit to Plaintiff’s account of the Second

Interaction, the undersigned notes a reasonable juror could certainly find that Santos’ pushing past

officers surrounding Plaintiff and attempting to strike him while Plaintiff was handcuffed and

offering no resistance constituted unreasonable force. As laid out above (see supra, II. Count I:

Fourth Amendment Violations and Qualified Immunity), Second Circuit precedent has clearly

established a restrained and complaint arrestee’s right to be free from the use of significant force,

where qualified immunity cannot shield an officer amid a dispute of fact material to force

application. Tracy, 623 F.3d at 98; Simcoe, 577 Fed.Appx. at 40; Jones, 963 F.3d at 225 (“Before

the incident at issue here in [August 2018], it was clearly established in this Circuit that it is a

Fourth Amendment violation for a police officer to use significant force against an arrestee who is

no longer resisting and poses no threat to the safety of officers or others.”).

Here, Santos insists that he only struck Parker before officers had restrained him, and that

even if officers pulled him off, it was only before they fully restrained Parker and does not in itself

speak to any constitutional violation. See ECF No. 41 at 4-5. However, according to Plaintiff,

Santos engaged a docile, handcuffed Plaintiff well after the initial struggle in the driveway,

pushing past other officers to deliver further blows. See ECF No. 40-2 at 6-7. Moreover, unlike

the evidence presented regarding the First Interaction, there is nothing on the record compelling

the conclusion that Plaintiff further resisted officers after he was handcuffed. Particularly with the

body camera footage, a reasonable jury could find that Parker was restrained and no longer

presented a threat, considering he was surrounded by officers and appeared to be in handcuffs. As

Bryant and Watson denote, officers have restrained an arrestee typically when they handcuff and

surround him. Furthermore, the footage shows Santos pushing past officers and striking in

Plaintiff’s direction. To this end, without ruling on the reasonableness of this interaction, a jury

could additionally find here that Santos inflicted a significant amount of force upon a restrained

and compliant Parker. As Lennox held in line with Tracy’s reasoning, physical blows against an

arrestee who no longer poses a threat to officers or others constitutes an impermissible amount of

force – and amid disputes of material fact – such findings should go to the jury. Therefore, the

undersigned “cannot say, as a matter of law, that Officer [Santos] did not violate clearly

established law,” Lennox, 968 F.3d at 157; accordingly, the undersigned respectfully recommends

that Defendants’ Motion for Summary Judgment as to Plaintiff’s claim of Fourth Amendment

violations against Officer Santos be denied.

III. Monell Liability

To state a claim against a municipality -- in this instance, the Village -- Plaintiff must

adduce certain evidence to prevail on his § 1983 claim: “[A] municipality, such as the [Village],

can only be liable under section 1983 if an action taken pursuant to official municipal policy caused

the alleged deprivation of plaintiff’s rights.” Molina v. New York, No. 21-CV-3144 (RPK) (JMW),

2023 U.S. Dist. LEXIS 8961, at *19 (E.D.N.Y. Jan. 17, 2023). Specifically, pursuant to the

Supreme Court’s decision in Monell, a plaintiff must demonstrate that conduct pursuant to the

municipality’s policy or custom, made by lawmakers or those whose acts fairly represent the

official policy, inflicted the alleged harm. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658, 694-95 (1978); Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012) (“Jones”).

And, “[a]bsent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat

superior basis for the tort of its employee.” Id. at 80; see also Hall v. New York City Dep’t of Corr.,

No. 22-CV-5738 (AMD) (MMH), 2022 WL 17811474, at *2 (E.D.N.Y. Dec. 19, 2022) (quoting

Halperin v. New York City Dep’t of Correction, No. 19-CV- 6266, 2019 WL 6328775, at *2

(E.D.N.Y. Nov. 26, 2019) (dismissing § 1983 claim against DOC and declining to substitute the

City of New York as a defendant where the plaintiff did not allege any unconstitutional policy or

custom attributable to the City of New York)).

In determining whether there is an unconstitutional policy or custom at play, Second

Circuit courts look for (1) a municipality’s endorsement of a formal policy, (2) actions of officials

who are responsible for establishing the policy that caused the apparent constitutional deprivation,

(3) a consistent and widespread practice that, though not officially sanctioned, is readily apparent

to a supervising policy maker, or (4) inadequate training of subordinates amounting to the

policymakers’ deliberate indifference to the rights of those who interact with the subordinates.

Brandon v. City of New York, 705 F.Supp.2d 261, 276–77 (S.D.N.Y. 2010). In a similar vein, while

circumstantial evidence of inadequately trained subordinates can lead to inferences of deliberate

indifference at the policy-making level, “a single incident alleged in a complaint, especially if it

involved only actors below the policy-making level, does not suffice to show a municipal policy.”

Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991) (“Ricciuti”).

Ricciuti featured an amended complaint describing more than a dozen incidents “of alleged,

conceded, or adjudicated improper arrests by TA officers from 1975 to 1989” and three reports

detailing chronic shortcomings of the TA’s subway policing. Id. at 121. Where individual TA

officers had punched, threatened, and arrested plaintiffs without cause in the case’s underlying

events, the Court found there was enough evidence to infer the TA’s deliberate indifference,

constituting a municipal policy behind those individual beatings. Id. at 120-24. Conversely, in

Jones, though plaintiff produced “instances of reprehensible and at times illegal and

unconstitutional conduct by individual officers,” nothing demonstrated persistent, abusive conduct

among officers over a period of years sufficient to put supervisors and policymakers on notice. Id.

at 85. Several isolated incidents (some wherein police did not even commit a constitutional

infraction) beyond supervisory purview could not sufficiently evince an indifference tantamount

to a municipal policy. Id. at 84-85.

Here, as Plaintiff concedes in the Joint Pretrial Order (“JPTO”) (ECF No. 39-3 at 7(p)), the

undersigned finds Plaintiff’s Monell claim fails as a matter of law. Even if, as Defendants note,

Plaintiff’s Complaint alleged that a policy or custom of the Village wrought upon Plaintiff a

constitutional deprivation, the facts are bereft of evidence or inferences tying the Complaint’s

underlying incident to that policy. After consideration of Plaintiff’s deposition, the voluminous

body camera footage, and the parties’ respective 56.1 Statements and attached exhibits, the

undersigned finds nothing in the record suggests that conduct like that of Officer Santos’ on August

9, 2018 was so widespread as to draw the attention of supervising policy makers, nor can the Court

draw any inferences from the single incident at 121 Lillian Avenue that the Village so poorly

prepared Officer Santos and his fellow subordinates as to render the Village indifferent to the rights

of those its officers encountered in similar scenarios. See e.g., Mineo v. Town of Hempstead, No.

22CV04092JMAJMW, 2024 WL 1077874, at *6 (E.D.N.Y. Feb. 23, 2024), report and

recommendation adopted, No. 22CV04092JMAJMW, 2024 WL 1072569 (E.D.N.Y. Mar. 12,

2024) (“Mineo”) (“As the operative complaint stands, Plaintiff fails to set out any pattern

constituting a violation of his § 1983 rights as against the Town. Instead, he states in a conclusory

fashion ‘that the conduct of the Defendants as complained herein constitutes a pattern of illegal

and discriminatory actions aimed at harming the Plaintiff and his family solely in response to the

Plaintiff's conduct as a Compliance Officer with the TOH.’”); Tieman v. City of Newburgh, No.

13-CV-4178 (KMK), 2015 WL 1379652 at *12, 2015 U.S. Dist. LEXIS 38703 at *41 (S.D.N.Y.

Mar. 26, 2015) (finding plaintiff's threadbare allegations that the city had a policy or practice of

using excessive force and that it had a custom of inadequately training or otherwise supervising

personnel which resulted in violations of her constitutional rights was insufficient under Monell);

Jones v. City of Mount Vernon, No. 22-cv-414 (NSR), 2023 WL 2118026 at *9, 2023 U.S. Dist.

LEXIS 27526 at *21 (S.D.N.Y. Feb. 17, 2023) (“Mount Vernon”) (stating that plaintiff's

“boilerplate” allegations that the department's and city's policies and practices were the “driving

force” behind the constitutional violation was insufficient to prove causation).

In stark contrast to the multiple reports and documented incidents over a period of years in

Ricciuti approaching widespread behavior, the events of this isolated incident, construed in the

most favorable light for Plaintiff, cannot render the Village liable for any alleged depravation of a

constitutional right. As seen in Jones, no amount of Officer Santos’ apparent depravity can

singularly hold the Village liable. Plaintiff does not proffer a history of documented police training

and conduct, reports on the Freeport PD demonstrating policing shortcomings effectively

sanctioning this type of behavior, or a volume of incidents where officers similarly situated in rank

and circumstance acted in a manner similar to Defendant Santos. At bottom, we cannot aggregate

this incident to find widespread or indifferent behavior constituting a municipal policy if we have

nothing to study beyond the incident itself. See Mineo, No. 22CV04092JMAJMW, 2024 WL

1077874, at *7 (collecting cases) (“Plaintiff only describes these Defendants’ conduct, without

demonstrating or connecting it to an unconstitutional policy, pattern, or custom. Plaintiff's

assertions are insufficient to constitute a claim under § 1983.”) Accordingly, the undersigned

respectfully recommends Defendants’ Motion for Summary Judgment as to Plaintiff’s Monell

claim against the Village be granted.

Likewise, the undersigned finds any claims asserted against the Freeport FD should be

dismissed because the department is not an entity subject to suit. Pursuant to Fed. R. Civ. P. 17(b),

an entity can only be sued in federal court if it would be suable under the laws of the state where

it was created. See Omnipoint Communications v. Town of LaGrange, 658 F.Supp.2d 539, 552

(S.D.N.Y.2009) (citation omitted) (“LaGrange”). In this case, the Court applies New York law to

determine who is a proper party in this action. Plaintiff has sued Officer Santos, in his individual

and official capacity, the Village and the Freeport PD. In New York, however, departments of a

municipality are not suable entities because they are “merely administrative arms of a

municipality” that “do not have a legal identity separate and apart from the municipality.” Hall v.

City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002); see also LaGrange, 658 F.Supp.2d

at 552 (collecting cases); Rose v. Cnty. of Nassau, 904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012) (“The

Police Department is an administrative arm of the County[]. Under New York law, departments

that are merely administrative arms of a municipality do not have a legal identity separate and

apart from the municipality and, therefore, cannot sue or be sued.”) Therefore, the undersigned

finds Freeport PD is an improper defendant in this action, and respectfully recommends it be

dismissed. See e.g., MetroPCS New York, LLC v. City of Mount Vernon, 739 F. Supp. 2d 409, 419

(S.D.N.Y. 2010).

IV. Negligent Hiring, Supervision, and Training

As stated, Plaintiff brings claims against Defendants for negligence in the hiring, training,

discipline and supervision of police officers. The undersigned finds Plaintiff’s failure to comply

with New York’s Notice of Claim requirements warrants the dismissal of his claims for negligent

hiring, training, discipline, and supervision pursuant to New York General Municipal Law

(“NYGML”) §§ 50-e and 50-i. See ECF No. 39-3 at 10-11. Pursuant to NYGML § 50-i, “a plaintiff

pursuing litigation against a state county must (1) file a notice of intent to file a claim with the

respective county and (2) commence the action within the statute of limitations of ‘one year and

ninety days after the happening of the event upon which the claim is based.’” Horton v.

Schenectady Cnty., No. 821CV983 (LEK)(CFH), 2024 WL 1655385, at *2 (N.D.N.Y. Apr. 17,

2024) (quoting N.Y. Gen. Mun. L. § 50-i). It is well established in this Circuit that New York’s

notice of claim requirements “apply to state law personal injury claims that are brought in federal

court as related to Section 1983 cases[:]” Federal courts do not have jurisdiction to hear complaints

from plaintiffs who have failed to comply with the notice of claim requirement, or to grant

permission to file a late notice. To survive a motion to dismiss, a plaintiff must affirmatively plead

that a notice of claim was filed. Id. (cleaned up) (collecting cases); see also Warner v. Vill. of

Goshen Police Dep’t, 256 F. Supp. 2d 171, 175 (S.D.N.Y. 2003) (“The notice of claim

requirements apply equally to state tort claims brought as pendent claims in a federal civil rights

action.”). While Section 50-e “enables a plaintiff to apply to a court for leave to serve a late notice

of claim,” the application “must be made within the statute of limitations of one year and ninety

days.” Id. at *3 (citing N.Y. Gen. Mun. L. § 50-e(5)); Delaney v. City of Albany, No. 12-CV-1575,

2014 WL 701637, at *5 (N.D.N.Y. Feb. 24, 2014) (“Courts have discretion to grant requests to

file late notices of claim only up to the statute of limitations period-one year and ninety days from

the accrual of the claim.”).

Here, the incident upon which Plaintiff’s Complaint is based occurred on August 9, 2018,

and, while Plaintiff filed his Notice of Claim on November 9, 2018, he did not commence the

instant action until December 12, 2019, and failed to plead that a Notice of Claim was filed in his

Complaint. See ECF No. 1. And, if even the Court disagrees and finds Plaintiff properly complied

with state law procedural requirements, the undersigned notes New York State law additionally

mandates the dismissal of negligent hiring, training, discipline, and supervision claims when the

defendant acts within the scope of his employment, and, as Plaintiff has conceded in the Pretrial

Order, Officer Santos was acting within the scope of his employment, such that dismissal of

Plaintiff’s second claim is nonetheless warranted. See ECF No. 39-6 at ¶ 7(o); see also Poventud

v. City of New York, No. 07 CIV. 3998 DAB, 2015 WL 1062186, at *17 (S.D.N.Y. Mar. 9, 2015)

(“Where an employer admits its employee was acting within the scope of his employment, an

employer may not be held liable for negligent hiring, training, and retention.”).

V. Malicious Prosecution

To establish a claim for malicious prosecution under § 1983 and New York law, a plaintiff

must allege (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. Willey v. Kirkpatrick,

801 F.3d 51, 70 (2d Cir. 2015). “A Section 1983 malicious prosecution claim also requires a

sufficient post-arraignment liberty restraint to implicate the plaintiff’s Fourth Amendment rights.”

Buari v. City of New York, 530 F. Supp. 3d 356, 383 (S.D.N.Y. 2021) (quotes omitted). Prior to

2022, to meet the favorable termination element, a plaintiff in the Second Circuit needed to show

some “affirmative indication of innocence.” Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d

Cir. 2018), abrogated by Thompson v. Clark, 212 L. Ed. 2d 382, 142 S. Ct. 1332 (2022). However,

the Supreme Court has recently rejected Second Circuit precedent on the “favorable termination”

element and held that “a Fourth Amendment claim under § 1983 for malicious prosecution does

not require the plaintiff to show that the criminal prosecution ended with some affirmative

indication of innocence.” Thompson v. Clark, ––– U.S. ––––, 142 S. Ct. 1332, 1341, 212 L.Ed.2d

382, 393 (2022). Rather, “[a] plaintiff need only show that the criminal prosecution ended without

a conviction.” Id. (emphasis added).

Here, the undersigned finds Plaintiff’s claim for malicious prosecution fails as a matter of

law because, as also acknowledged in the Pretrial Order, the criminal charges against Plaintiff were

ACOD, which is not a “favorable determination” for the purposes of a malicious prosecution. See

ECF No. 39-3 at 11-12; Freedman v. Monticello Police Dep't, No. 01 CIV. 0119 (NRB), 2003 WL

135751, at *2 (S.D.N.Y. Jan. 17, 2003) (quoting Singleton v. City of New York, 632 F.2d 185, 193–

94 (2d Cir. 1980) (“It is well settled that in order to maintain an action for malicious prosecution

under 42 U.S.C. § 1983 in the Second Circuit, a plaintiff must establish that a prosecution was

terminated in his favor. Moreover, it has been held that because a dismissal pursuant to Crim. Proc.

Law § 170.55 (an ACD) is ‘not the equivalent of a verdict or finding that the defendant is not guilty

of the offense charged against him’, a plaintiff who has entered into an ACD, cannot maintain a

federal § 1983 claim based on a claim of malicious prosecution.”); Singleton, 632 F.2d at 195 (“To

hold otherwise would permit a defendant to relitigate the issue of probable cause by way of a s

1983 action, despite the state court's determination of that issue against him after full and fair

consideration of the evidence, thus posing the prospect of harassment, waste and endless litigation,

contrary to principles of federalism.”). To this end, Plaintiff’s acceptance of an ACOD precludes

his civil action against officers and municipalities for malicious prosecution, and, therefore, it is

respectfully recommended that Defendants’ Motion for Judgment on Plaintiff’s claim for

malicious prosecution be granted. See ECF No. 39-3 at 11-12 (further noting that an element of

malicious prosecution is “termination in favor of the accused,” and, while ACOD is not an

admission of guilt or a conviction, it is not considered to be “termination in favor of the accused”

and does not settle the question of the accused’s guilt); Harry v. City of New York, No. 23-cv-69,

2024 U.S. App. LEXIS 1618, at *4 (2d Cir. Jan. 24, 2024) (“[P]robable cause to prosecute both

charges defeats Harry’s claim.”).

CONCLUSION

For the reasons stated herein, the undersigned respectfully recommends that Defendants’

Motion for Summary Judgment be GRANTED as to Plaintiff’s Monell, negligent

hiring/supervision, and malicious prosecution claims, and DENIED as to Plaintiff’s Fourth

Amendment claims against Officer Santos.

OBJECTIONS

A copy of this Report and Recommendation is being electronically served on Counsel. Any

written objections to this Report and Recommendation must be filed with the Clerk of the Court

within fourteen (14) days of service of this Report. 28 U.S.C. § 636(b)(1) (2006 & Supp. V 2011);

Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be

directed to the district judge assigned to this action prior to the expiration of the fourteen (14) day

period for filing objections. Failure to file objections within fourteen (14) days will preclude

further review of this Report and Recommendation either by the District Court or the Court of

Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) (“a party shall file objections with the district

court or else waive right to appeal”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008)

(“failure to object timely to a magistrate’s report operates as a waiver of any further judicial review

of the magistrate’s decision”); see Monroe v. Hyundai of Manhattan & Westchester, 372 F. App’x

147, 147–48 (2d Cir. 2010) (same).

Dated: August 15, 2024

RESPECTFULLY RECOMMENDED,

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge