DiDonna v. Mass

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LOUIS A. DiDONNA,

Plaintiff,

OPINION & ORDER

-against-

22-CV-05417 (PMH)

ROBERT MAAS; CONNER STEWART;

DOUGLAS KETCHUM; KYLE FARRAND;

ANTHONY SKOW,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Louis DiDonna (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action

under 42 U.S.C. § 1983 against Robert Maas, Conner Stewart, Douglas Ketchum, Kyle Farrand,

and Anthony Skow (“Defendants”) in connection with an arrest effectuated on March 15, 2021.

(Doc. 11, “Am. Compl.”).1 Plaintiff asserts claims for excessive force and failure to intervene in

violation of the Fourth Amendment. (Id.). Pending before the Court are Defendants’ motions for

summary judgment. (Doc. 106; Doc. 107; Doc. 108; Doc. 109; Doc. 109-1, “Def. Br.”).2 Plaintiff

did not file any opposition to the motions; the Court therefore deems the motions unopposed.3

1 Citations to specific pages of the Amended Complaint and other filings on the docket correspond to the

pagination generated by ECF.

2 Pursuant to the Court’s instructions, Defendants filed one joint set of motion papers with separate notices

of motion and one consolidated memorandum of law. (Doc. 99). A notice of motion was filed on behalf of

Defendant Stewart (Doc. 106), Defendant Maas (Doc. 107), and Defendant Ketchum (Doc. 108). The Court

notes that the notice of motion filed at Doc. 109 does not specifically identify any individual Defendants,

but rather moves on behalf of “the above-named defendants.” However, Doc. 109 was filed by Mr.

Bashjawish who is counsel for Defendants Farrand and Skow. Mr. Bashjawish also specified in the pre-

motion conference letter that he was seeking to move for summary judgment on behalf of Defendants

Farrand and Skow. (Doc. 83). Accordingly, the Court understands this notice of motion (Doc. 109) to be

made on behalf of Defendants Farrand and Skow.

3 The Court set a briefing schedule for Defendants’ motions for summary judgment on April 26, 2024 (Doc.

99) and granted an extension of that schedule on May 17, 2024 (Doc. 104). The docket indicates that copies

of the Court’s April 26, 2024 and May 17, 2024 Orders were served on Plaintiff. (Docs. 100, 105).

For the reasons set forth below, Defendants’ unopposed motions for summary judgment

are GRANTED.

BACKGROUND

The Court recites the facts herein only to the extent necessary to adjudicate the extant

motions for summary judgment and draws them from the pleadings, Defendants’ Rule 56.1

Statement (Doc. 109-2, “56.1”),4 and the Defendants’ Joint Declaration (Doc. 109-3, “Joint Decl.”)

along with the exhibits annexed thereto, which include, inter alia: (1) the parties’ affidavits and

deposition transcripts (id., Exs. A-E, G-H); (2) a copy of New York States’s Administrative

Investigative Report (id., Ex. F); (3) copies of Plaintiff’s medical records (id., Exs. I-L); and (4) a

copy of the Sullivan County Sheriff’s Office Arrest Report (id., Ex. P).

On March 15, 2021, Plaintiff drove a red Honda Accord to a McDonald’s in Monticello,

New York (Sullivan County). (56.1 ¶¶ 1, 4; Joint Decl., Ex. A “Pl. Tr.” at 28:5-13, 110:17-21,

Plaintiff’s brief in opposition to Defendants’ motions was due August 12, 2024. (Doc. 104). On July 15,

2024, Defendants filed affidavits of service (Docs. 111-115) showing that Plaintiff was served with their

motion papers as well as Notice to Pro Se Litigants Pursuant to Local Civil Rule 56.2, which included, inter

alia, the text of Federal Rule of Civil Procedure 56 and a forewarning that failure to respond may result in

the dismissal of the case (Doc. 112). On August 13, 2024, Plaintiff filed a notice of change of address. (Doc.

119). At the direction of the Court, Defendants served copies of their motion papers on Plaintiff at his

updated address. (Doc. 123). The Court also sua sponte extended Plaintiff’s time to file his opposition to

September 19, 2024. (Doc. 120). On September 20, 2024, the Court granted Plaintiff’s request for an

extension of time to file his opposition brief to October 17, 2024. (Docs. 125-126). Plaintiff filed a letter

on October 22, 2024, indicating that he had sent his opposition on October 14, 2024, that it had not been

filed by the Pro Se Clerk’s Office because it was incorrectly formatted, and that he was “going to resend

this response today.” (Doc. 127). Plaintiff did not file or serve a copy of his opposition thereafter. (Doc.

128). On November 20, 2024, the Court sua sponte extended Plaintiff’s time to oppose the motion to

December 4, 2024, and cautioned that if Plaintiff failed to file opposition by December 4, 2024, the motion

would be deemed fully submitted and unopposed. (Doc. 129). The Court’s November 20, 2024 Order was

mailed to Plaintiff. (See Nov. 21, 2024 Doc. Entry). Thus, as is clear from the docket, Plaintiff had ample

notice of Defendants’ motions for summary judgment, as he had been served with the moving papers and

subsequently requested extensions of time to file opposition to the motions. Plaintiff failed to file any

opposition and, accordingly, the Court deems the motions fully submitted and unopposed.

4 Plaintiff did not submit his own Rule 56.1 Statement or respond to Defendants’ Rule 56.1 Statement.

156:9-11). A McDonald’s employee reported Plaintiff’s vehicle to the police, indicating that she

noticed a beer bottle in the center console and that she thought the driver might be impaired or

under the influence. (56.1 ¶ 2; Joint Decl., Ex. O). Plaintiff departed McDonald’s and proceeded

to drive along Route 17 when he observed a Sheriff’s vehicle activate its emergency lights behind

him. (56.1 ¶ 3; Pl. Tr. at 28:13-24, 98:5-21, 159:11-15). Plaintiff did not pull over. (56.1 ¶ 6; Pl.

Tr. at 28:13-24). Plaintiff was pursued by several members of law enforcement down Routes 17

and 55 but refused to stop.5 (56.1 ¶ 7; Pl. Tr. at 159:9-160:9). Plaintiff’s evasive driving maneuvers

resulted in collisions with multiple police vehicles and his car eventually came to a stop after

colliding with Defendant Ketchum’s vehicle. (56.1 ¶¶ 12-13, 21, 33-35; Pl. Tr. at 33:14-16, 99:12-

100:20, 101:13-19, 160:16-20).

Pursuant to the Arrest Report, Deputy Russell Corley, who is not named as a defendant in

this action, was the arresting officer and Defendant Farrand was the assisting officer. (56.1 ¶ 47;

Joint Decl., Ex. P). Defendant Farrand testified that he ordered Plaintiff to exit the vehicle and that

Plaintiff did not move. (Joint Decl., Ex. E “Farrand Tr.” at 43:25-44:3, 67:5-7). Plaintiff was then

physically removed from the vehicle. (Id. at 44:4-6, 67:8-10, 68:3-11; Pl. Tr. at 102:2-8; Joint

Decl., Ex. H “Maas Tr.” at 50:18-23). Plaintiff was placed against the car, handcuffed, patted

down, and put in a Sheriff’s vehicle for transport to the station. (56.1 ¶¶ 46, 48; Farrand Tr. at

68:12-14; Maas Tr. at 51:9-14, 52:21-54:7).

Plaintiff testified that during his arrest he was “slammed” against the Sheriff’s vehicle, and

that he sustained an injury to his right rib. (Pl. Tr. at 85:17-86:3, 107:4-16). Plaintiff further

testified that the handcuffs were put on so tightly that they injured his right wrist. (Pl. Tr. at 30:3-

9, 86:5-8). Plaintiff complained to Defendant Maas that the handcuffs were on too tight, and

5 All Defendants were involved to some extent in the pursuit of Plaintiff’s vehicle on March 15. The details

of each individuals’ involvement in the pursuit and/or arrest are addressed infra.

Defendant Maas informed Defendants Skow and Ferrand of Plaintiff’s complaint. (56.1 ¶¶ 49-50;

Mass Tr. at 54:21-55). Defendant Skow readjusted Plaintiff’s handcuffs. (Joint Decl., Ex. D “Skow

Tr.” at 52:3-53:5, 55:8-10). Plaintiff confirmed that one of the officers adjusted his handcuffs but

testified that it only made him feel worse. (56.1 ¶ 51; Pl. Tr. at 30:16-21).

Plaintiff was transported to the Sullivan County Sheriff’s Department where he was

assessed by Emergency Medical Services (“EMS”) and advised to go to the hospital, but he refused

medical attention or transport to the hospital. (56.1 ¶ 52; Joint Decl., Ex. J at 6, 8, 16, 20; Pl. Tr.

at 104:13-105:2). Plaintiff now alleges that he sustained permanent injuries to his right ribs and

wrist. (Am. Compl. at 5; 56.1 ¶ 56; Pl. Tr. at 14:9-13). He claims that he suffered permanent feeling

loss in 35% of his right hand, and that his right rib was broken, causes him constant pain, and can

be seen poking through the skin. (Am. Compl. at 5; 56.1 ¶¶ 57-58, 60).

Plaintiff underwent an x-ray of his right ribs and chest fifteen days after the arrest that

concluded that “[t]here is no fracture seen.” (Joint Decl., Ex. I). An x-ray conducted on August 22,

2022, also found “no evidence of right rib fracture.” (Joint Decl., Ex. K). An electromyography

test was conducted on Plaintiff’s right wrist on September 1, 2021, which concluded “[t]here is

electrophysiological evidence of mild right median neuropathy at the wrist (carpal tunnel

syndrome) and old inactive right posterior interosseous neuropathy. There is no evidence of

widespread motor neuronopathy; active right cervical radiculopathy or right radial neuropathy.”

(Joint Decl., Ex. L at 13). Plaintiff’s medical records further show that he was referred to a hand

surgeon on October 3, 2013 regarding his right hand. (Joint Decl., Ex. K at 6). Plaintiff explained

at his deposition that this referral concerned an injury to his right ring finger and that he was told

to have it looked at by a hand surgeon, that he would need physical therapy, and that he would

need to have a tendon put back in. (Pl. Tr. at 17:7-18:13, 20:6-21:7). Plaintiff testified that he never

took any such steps. (Id.).

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the

outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, No.

17-CV-03875, 2020 WL 917294, at *4 (S.D.N.Y. Feb. 26, 2020) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).6 “‘Factual disputes that are irrelevant or unnecessary’ are

not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-

05486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248).

“The question at summary judgment is whether a genuine dispute as to a material fact exists—not

whether the parties have a dispute as to any fact.” Hernandez v. Comm’r of Baseball, No. 22-343,

2023 WL 5217876, at *5 (2d Cir. Aug. 15, 2023) (citing McKinney v. City of Middletown, 49 F.4th

730, 737 (2d Cir. 2022)).

The Court’s duty, when determining whether summary judgment is appropriate, is “not to

resolve disputed issues of fact but to assess whether there are any factual issues to be

tried.” McKinney, 49 F.4th at 738 (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.

2010)). Indeed, the Court’s function is not to determine the truth or weigh the evidence. The task

is material issue spotting, not material issue determining. Therefore, “where there is an absence of

sufficient proof as to one essential element of a claim, any factual disputes with respect to other

6 Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and

alterations.

elements of the claim are immaterial.” Bellotto v. Cnty. of Orange, 248 F. App’x 232, 234 (2d Cir.

2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)).

“It is the movant’s burden to show that no genuine factual dispute exists.” Vermont Teddy

Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970)). The Court must “resolve all ambiguities and draw all reasonable

inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d

Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with

specific facts showing that there is a genuine issue for trial.” Liverpool, 2020 WL 917294, at *4

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

non-movant cannot defeat a summary judgment motion by relying on “mere speculation or

conjecture as to the true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9,

12 (2d Cir. 1986)). However, if “there is any evidence from which a reasonable inference could be

drawn in favor of the opposing party on the issue on which summary judgment is sought, summary

judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old

Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).

Should there be no genuine issue of material fact, the movant must also establish its

entitlement to judgment as a matter of law. See Glover v. Austin, 289 F. App’x 430, 431 (2d Cir.

2008) (“Summary judgment is appropriate if, but only if, there are no genuine issues

of material fact supporting an essential element of the plaintiffs’ claim for relief.”); Pimentel v.

City of New York, 74 F. App’x 146, 148 (2d Cir. 2003) (holding that because plaintiff “failed to

raise an issue of material fact with respect to an essential element of her[] claim, the District Court

properly granted summary judgment dismissing that claim”). Simply put, the movant must

separately establish that the law favors the judgment sought.

The Court is, of course, mindful that “[p]ro se litigants are afforded a special solicitude,”

which includes reading their filings “to raise the strongest arguments they suggest.” Mortimer v.

City of New York, No. 15-CV-07186, 2018 WL 1605982, at *9 (S.D.N.Y. Mar. 29, 2018). “It is

through this lens of leniency towards pro se litigants that this Court must consider a defendant’s

motion for summary judgment against a pro se plaintiff.” Adams v. George, No. 18-CV-02630,

2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020). This status does not, however, excuse a pro se

litigant from making the showing required to defeat summary judgment; he or she must offer more

than “bald assertions, completely unsupported by evidence” to overcome the motion. Wisdom v.

Loiodice, No. 17-CV-04837, 2020 WL 4431590, at *4 (S.D.N.Y. July 31, 2020); see also

Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (explaining that the mere fact that

a litigant is pro se “does not relieve plaintiff of his duty to meet the requirements necessary to

defeat a motion for summary judgment”); Ross v. Koenigsmann, No. 14-CV-01321, 2017 WL

9511096, at *1 (N.D.N.Y. Aug. 16, 2017), adopted sub nom. Ross v. Mannava, 2017 WL 4338883

(N.D.N.Y. Sept. 29, 2017).

Where, as here, a summary judgment motion is unopposed, “uncontroverted facts in the

moving party’s statement pursuant to Local Rule 56.1 are deemed admitted.” Johnson v. City of

New York, No. 15-CV-00403, 2016 WL 7335663, at *2 (S.D.N.Y. Dec. 16, 2016) (citing

Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)); see also Fate v. Petranker, No.

19-CV-05519, 2022 WL 2672317, at *1 (S.D.N.Y. July 8, 2022) (“Statements made by Defendant

that are supported by admissible evidence and not refuted by Plaintiff are deemed admitted.”).

“Even when a motion for summary judgment is unopposed, the district court is not relieved of its

duty to decide whether the movant is entitled to judgment as a matter of law.” Vermont Teddy

Bear, 373 F.3d at 242. “Before summary judgment may be entered, the district court must ensure

that each statement of material fact is supported by record evidence sufficient to satisfy the

movant’s burden of production even if the statement is unopposed.” Jackson v. Fed. Express, 766

F.3d 189, 195 (2d Cir. 2014). “And, of course, the court must determine whether the legal theory

of the motion is sound.” Id. A summary judgment motion in a pro se case “may be granted as

unopposed only if (1) the plaintiff has received adequate notice that failure to file any opposition

may result in dismissal of the case; and (2) the Court is satisfied that the facts as to which there is

no genuine dispute show that the moving party is entitled to judgment as a matter of law.” Lurch

v. Berry, No. 20-CV-02312, 2021 WL 3668113, at *3 (S.D.N.Y. Aug. 17, 2021).7

ANALYSIS

Plaintiff presses claims for excessive force and failure to intervene in the use of excessive

force under 42 U.S.C. § 1983. That law provides, in pertinent part, that “[e]very person who, under

color of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to

the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured . . . .” 42 U.S.C. § 1983. “[T]his language does not create substantive

rights; rather, it creates a mechanism by which individuals can vindicate the violation of rights

secured elsewhere.” Linares v. Annucci, No. 19-CV-11120, 2021 WL 2689736, at *6 (S.D.N.Y.

June 30, 2021) (quoting Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y.

Jan. 8, 2021) (alteration in original)).

7 The Court must, as an initial matter, find that Plaintiff has received adequate notice that “failure to file

any opposition may result in dismissal of the case.” Lurch, 2021 WL 3668113, at *3. As explained supra,

Defendants served Plaintiff with the requisite Notice to Pro Se Litigants Pursuant to Local Civil Rule 56.2

that failure to respond to the motion may result in dismissal of the action. (Doc. 112). Accordingly, the

Court finds that Plaintiff received adequate notice that his claims might be dismissed for failure to file an

opposition to Defendants’ motion for summary judgment. See Gil-Cabrera v. City of New York, No. 20-

CV-09493, 2023 WL 2601132, at *6 (S.D.N.Y. Mar. 22, 2023) (finding adequate notice where the plaintiff

was served with a Local Civil Rule 56.2 notice containing a warning “that failure to respond may result in

dismissal of the action”).

Defendants argue that summary judgment dismissing the action is warranted because: (i)

Defendants were not personally involved in Plaintiff’s arrest; (ii) the uses of force were reasonable

as a matter of law; and (iii) Defendants are entitled to qualified immunity. (Def. Br. at 6-24).

I. Personal Involvement

“As a fundamental prerequisite, ‘to establish a § 1983 claim, a plaintiff must show the

defendants’ personal involvement in the alleged constitutional violation.’” Lockett v. City of

Middletown, No. 19-CV-08255, 2021 WL 1092357, at *4 (S.D.N.Y. Mar. 22, 2021) (quoting Boley

v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017)). To show personal involvement, “a plaintiff must

plead and prove that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020)

(quoting Iqbal, 556 U.S. at 676). “Assertions of personal involvement that are merely speculative

are insufficient to establish a triable issue of fact.” Keesh v. Quick, No. 19-CV-08942, 2022 WL

2160127, at *5 (S.D.N.Y. June 15, 2022). “A police officer is personally involved in the use of

excessive force if he used force himself or was present when force was used by another officer but

did not intervene to protect the victim even though he had a reasonable opportunity to do so.”

Jean-Baptiste v. Froehlich, No. 21-CV-01482, 2024 WL 4581653, at *5 (D. Conn. Oct. 25, 2024)

(citing Demosthene v. City of New York, 831 F. App’x 530, 535 (2d Cir. 2020) (summary order)).

Here, Plaintiff was unable to identify which officers handcuffed him or “slammed” him against

the vehicle. (56.1 ¶ 17; Pl. Tr. at 107:22-108:10, 143:1-17, 179:23-180:4). Defendants contend that

none of them were personally involved in the alleged constitutional violations. (Def. Br. at 6-13).

Turning first to Defendant Stewart (Def. Br. at 7-9), Plaintiff testified that he believed,

based on a police report, that Defendant Stewart “assisted . . . taking [Plaintiff] into custody.”

(56.1¶ 18; Pl. Tr. at 102:17-20, 103:8-104). The record shows that Defendant Stewart was involved

in the police pursuit, that his vehicle was struck by Plaintiff’s vehicle, that Plaintiff’s vehicle

stopped “at least two car lengths-ish away from [him],” and that he was waiting by his car for his

supervisor when the arrest occurred. (56.1¶¶ 9-14; Joint Decl., Ex. B “Stewart Tr.” at 38:4-9,

39:16-40:8, 41:23-25, 43:14-21). Defendant Stewart testified that he did not remove Plaintiff from

his vehicle, handcuff Plaintiff, or have any interaction with Plaintiff during the arrest. (56.1 ¶ 15;

Stewart Tr. at 43:11-21, 44:14-45:5). Defendant Stewart did not see Plaintiff exit the vehicle, be

“slammed” against the car, or be placed in handcuffs. (56.1¶ 16; Stewart Tr. at 44:14-45:5). Thus,

the record shows that Defendant Stewart was not involved in the allegedly excessive uses of force

nor present when such force was used.

With respect to Defendant Ketchum (Def. Br. at 9-11), Plaintiff testified that he believed

Defendant Ketchum “slammed” him against the car. (Pl. Tr. at 121:12-122:11). The record shows

that Defendant Ketchum was involved in the police pursuit, that his car collided with Plaintiff’s

vehicle, and that Plaintiff’s vehicle came to a rest on the opposite side of the road following their

collision. (56.1 ¶¶ 30-35). Defendant Ketchum testified that he assisted a deputy in moving a

vehicle and that “[b]y the time I had backed his car up and got it in position, they had [Plaintiff]

out of the car” and had already patted Plaintiff down and handcuffed him. (56.1 ¶¶ 38-41; Joint

Decl., Ex. C “Ketchum Tr.” at 72:16-23). Defendant Ketchum neither observed Plaintiff exit his

vehicle nor saw Plaintiff be put against the vehicle. (56.1 ¶¶ 42-43; Ketchum Tr. at 77:12-14, 82:4-

18). Defendant Ketchum was, accordingly, not involved nor present when the subject uses of force

occurred.

On the other hand, the record shows that Defendants Maas, Farrand, and Skow were present

during Plaintiff’s arrest. Defendant Farrand testified that he stood to the side while Defendant

Maas “handl[ed]” Plaintiff. (Farrand Tr. at 61:2-6, 67:5-7, 68:17-22). Defendant Maas testified

that he recalls being there, although he states that he was not the one to handcuff Plaintiff. (Maas

Tr. at 50:2-23, 54:11-17). Defendant Maas heard Plaintiff’s complaint about the handcuffs being

too tight, reported the complaint, and then Defendant Skow readjusted Plaintiff’s handcuffs (Maas

Tr. at 54:22-55:3; Skow Tr. at 52:3-25, 55:8-10). Therefore, summary judgment is not warranted

as to Defendants Maas, Farrand and Skow on the basis of lack of personal involvement because

the record shows that they were at least present for, and potentially participated in, Plaintiff’s being

put against the car and handcuffing.8 See Gardner v. City of New York, No. 16-CV-06476, 2021

WL 3848112, at *7 (E.D.N.Y. Aug. 27, 2021) (denying summary judgment on excessive force

claim based on a lack of personal involvement where there was “a genuine issue of material fact

as to whether Officer Delaney was present during or participated in the alleged unlawful conduct”).

Accordingly, the motions for summary judgment are granted as to Defendants Ketchum

and Stewarts’ lack of personal involvement, and the two claims asserted against them are

dismissed.

II. Excessive Force and Failure to Intervene

Summary judgment is warranted as to all Defendants in any event, because Plaintiff’s

claims for excessive force and failure to intervene fail as a matter of law. Plaintiff’s first claim,

excessive force, is analyzed under the reasonableness standard of the Fourth Amendment. See

Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019); Brown v. City of New York, 798

F.3d 94, 100 (2d Cir. 2015); McDonald v. City of Troy, No. 18-CV-01327, 2021 WL 2232565, at

*4 (N.D.N.Y. June 3, 2021) (explaining that “[t]he Fourth Amendment protects a free citizen from

8 Defendants also argue with respect to Defendant Maas that he cannot be found liable for failure to

intervene because (i) he did not have sufficient time to intervene in the placement of Plaintiff on the car and

(ii) he did intervene in the handcuffing by reporting Plaintiff’s complaint that the handcuffs were too tight.

(Def. Br. at 11-12). The Court declines to grant summary judgment on this basis because a factual issue

exists as to what Defendant Maas’s role was during the arrest. (Compare Ferrand Tr. at 68:18-22, with Maas

Tr. at 50:20-51:14).

excessive force in the course of an arrest”). “Police officers’ application of force is excessive, in

violation of the Fourth Amendment, if it is objectively unreasonable ‘in light of the facts and

circumstances confronting them, without regard to the officers’ underlying intent or motivation.’”

Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Conor, 490

U.S. 386, 397 (1989)). Analyzing whether a particular use of force is reasonable “must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Calixto v. City of New York, 778 F. App’x 59, 59-60 (2d Cir. 2019) (quoting Graham,

490 U.S. at 396). “Given the fact-specific nature of the inquiry, granting summary judgment

against a plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder

could conclude that the officers’ conduct was objectively unreasonable.” Amnesty Am. v. Town of

W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

As to the second claim, failure to intervene, “[f]urther, a law enforcement officer has an

affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being

violated in his presence by other officers.” Pateman v. City of White Plains, No. 17-CV-06156,

2020 WL 1497054, at *13 (S.D.N.Y. Mar. 25, 2020) (quoting Harris v. City of Newburgh, No. 16-

CV-02731, 2017 WL 4334141, at *9 (S.D.N.Y. Sept. 27, 2017)). “Whether an officer had

sufficient time to intercede or was capable of preventing the harm being caused by another officer

is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not

possibly conclude otherwise.” Id. (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).

There are two different applications of force that Plaintiff contends were excessive during

his arrest: (1) being put against the car; and (2) the use of handcuffs. (See Am. Compl. at 5-6). The

Court considers each use of force separately.

a. First Use of Force: Being Put Against the Car

Plaintiff alleges that after he was removed from his vehicle he was “slammed so hard on

the car by several officers breaking [his] bigger ribs on [his] right side.” (Id. at 5). Defendants

argue that this use of force was objectively reasonable, there is no evidence of a rib injury, and

there is no evidence of Defendants’ malice or intent to harm Plaintiff. (Def. Br. at 17-21).

Generally, when assessing whether a particular use of force was reasonable, “courts must

look to the totality of the circumstances relating to the conduct of law enforcement officers,

including the manner in which the plaintiff’s alleged injuries were inflicted during the arrest.”

Kayo v. Mertz, No. 19-CV-00365, 2021 WL 1226869, at *14 (S.D.N.Y. Mar. 31, 2021); see also

Gutierrez v. New York, No. 18-CV-03621, 2021 WL 681238, at *14 (E.D.N.Y. Feb. 22, 2021)

(noting that evaluating the use of force “is fact-specific and requires balancing of various factors”).

This evaluation is “guided by consideration of at least three factors: (1) the nature and severity of

the crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of

the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to

evade arrest by flight.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). “That multi-factor

test is not meant to be applied rigidly, however, and the inquiry into whether force is reasonable

requires an objective examination of the totality of the circumstances.” Gersbacher v. City of New

York, No. 14-CV-07600, 2017 WL 4402538, at *9 (S.D.N.Y. Oct. 2, 2017).

The Court finds that the force used against Plaintiff in putting him against the car was

objectively reasonable under the circumstances. It is undisputed that Plaintiff failed to stop his

vehicle after seeing a Sheriff’s vehicle activate emergency lights behind him and that a multi-car

police pursuit ensued, during which Plaintiff committed several traffic violations and collided with

three law enforcement vehicles. (56.1 ¶¶ 5-6, 8, 12, 21, 33). It is further undisputed that law

enforcement had reason to believe that Plaintiff was impaired or under the influence at the time of

his arrest. (56.1 ¶ 2; Joint Decl., Ex. O). Moreover, while the record reflects that Plaintiff was not

actively resisting arrest, officers at the scene testified that Plaintiff appeared to be under the

influence of some narcotic and was not listening to their commands, including Defendant

Farrand’s order to exit the vehicle. (Pl. Tr. at 119:23-25; Maas Tr. at 48:17-25, 52:4-15; Farrand

Tr. at 68:3-5; Skow Tr. at 49:14-19). Thus, it was reasonable for the officers to consider Plaintiff

a potential threat to their safety or a flight risk. Accordingly, considering the totality of the

circumstances, no reasonable factfinder could conclude that the officers’ conduct in putting

Plaintiff against the car so that he could be handcuffed and patted down was objectively

unreasonable. See Genovese v. Town of Southampton, 921 F. Supp. 2d 8, 20 (E.D.N.Y. 2013)

(“Physical force is often necessary when effectuating arrests.”).

Regardless, “summary judgment is proper where undisputed medical records directly and

irrefutably contradict a plaintiff’s descriptions of his injuries, [because] no reasonable jury could

credit plaintiff’s account of the happening.” Rolkiewicz v. City of New York, 442 F. Supp. 3d 627,

641 (S.D.N.Y. 2020) (quoting Henry v. Officer Pierce, 11-CV-00845, 2017 WL 3610507, at *2

(S.D.N.Y. Aug. 21, 2017)). Plaintiff alleges that during the arrest his right ribs were “broken,” that

those ribs now cause him “constant pain,” and that they “can be seen poking through [his] skin.”

(Am. Compl. at 5). Plaintiff further testified that his “rib cage was shattered.” (Pl. Tr. at 37:17-19,

85:17-86:3). Plaintiff’s description of his injury, however, is contradicted by medical records.

EMS records show that Plaintiff complained of rib pain on the day of the arrest but refused medical

treatment. (Joint Decl., Ex. K at 6). An x-ray conducted of Plaintiff’s right ribs fifteen days after

the arrest concluded that “[t]here is no fracture seen” (Joint Decl., Ex. I) and an x-ray conducted

approximately one year later found “no evidence of right rib fracture” (Joint Decl., Ex. K). “While,

in certain instances, a plaintiff may exclusively rely on [his] own testimony . . . [a]bsent

corroborating evidence, testimony that is inconsistent and contradictory may be insufficient to

survive summary judgment.” Rolkiewicz, 442 F. Supp. 3d at 642-43 (quoting Campbell v. Hanson,

No. 17-CV-01024, 2019 WL 2717691, at *5 (S.D.N.Y. June 28, 2019)). Given that Plaintiff’s

testimony about his ribs being broken is contradicted by his medical records, “his word alone is

not enough to create a genuine dispute of material fact.” Id. Accordingly, Plaintiff’s claim for

excessive force based on him being put against the car fails as a matter of law.

There being no excessive force claim, the failure to intervene claim likewise fails. See

Thomas v. Morley, No. 20-CV-07520, 2022 WL 394384, at *10 (S.D.N.Y. Feb. 9, 2022).

b. Second Use of Force: Handcuffing

Plaintiff alleges that the handcuffs were “intentionally squeezed on as hard as they could”

and resulted in permanent damage to his right hand. (Am. Compl. at 5-6). Defendants argue that

Plaintiff’s injury was de minimis. (Def. Br. at 13-17).

“Courts apply a separate standard to claims for excessive force in the use of handcuffs.”

Sachs v. Cantwell, No. 10-CV-01663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012). “This

particularized standard reflects the need to balance the ‘right to use some degree of physical

coercion,’ including the use of handcuffs ‘tight enough to prevent the arrestee’s hands from

slipping out,’ . . . with the use of ‘overly tight handcuffing’ that could constitute excessive force.”

Pateman, 2020 WL 1497054, at *16. The Court evaluates three specific factors: “(1) [whether] the

handcuffs were unreasonably tight; (2) [whether] the defendants ignored the arrestee’s pleas that

the handcuffs were too tight; and (3) the degree of injury to the wrists.” Id. (citing Usavage v. Port

Auth. of New York & New Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013)). “The injury

requirement is particularly important. In fact, [t]here is a consensus among courts in this circuit

that tight handcuffing does not constitute excessive force unless it causes some injury beyond

temporary discomfort.” Rolkiewicz, 442 F. Supp. 3d at 638; see also Selvaggio v. Patterson, 93 F.

Supp. 3d 54, 74 (E.D.N.Y. 2015) (recognizing that the injury consideration “is particularly

important, because in order to be effective, handcuffs must be tight enough to prevent the arrestee’s

hands from slipping out”). In order to be actionable, the injuries must be more than de minimis.

See Morgan v. City of New York, No. 17-CV-06454, 2021 WL 2207002, at *5 (E.D.N.Y. Mar. 25,

2021).

First, it is undisputed that Plaintiff complained that the handcuffs were unreasonably tight.

(56.1 ¶ 49). It is further undisputed that Defendant Skow responded to Plaintiff’s complaint by

readjusting Plaintiff’s handcuffs (Skow Tr. at 52:3-53:5, 55:8-10), although Defendant Skow

maintains that the handcuffs were initially applied appropriately and did not need to be loosened

(Skow Tr. at 55:6-10); and Plaintiff testified that the adjustment made him feel worse (Pl. Tr. at

30:16-21, 67:14-24). The third factor tips the balance in Defendants favor because Plaintiff’s

claimed injury to his right hand is unsupported by any evidence in the record. Plaintiff alleges that

he has “permanent feeling loss in [his] hand,” “[he] can no longer make a complete fist,” and “[he]

was told . . . [he] will never be able to make a complete fist again.” (Am. Compl. at 5). Plaintiff

testified at his deposition that he has made progress on the injury to his hand since the arrest but

that even after doing daily hand exercises, he cannot make a complete fist. (Pl. Tr. at 15:15-25,

55:2-8). Plaintiff also testified that at some unspecified time “not too long” after the arrest, he was

seen at an urgent care and then went to some type of outpatient physical therapy “a few times.”

(Pl. Tr. at 70:20-72:13). But Plaintiff, in failing to oppose the instant motion, offers no evidence

to corroborate these statements.

The medical records proffered by Defendants undercut Plaintiff’s claimed injury. First,

Plaintiff did not complain to or seek treatment from EMS regarding pain in his right hand on the

day of the arrest. (Joint Decl., Ex. J at 6); see Morocho v. New York City, No. 13-CV-04585, 2015

WL 4619517, at *8 (S.D.N.Y. July 31, 2015) (“A court may also consider whether the plaintiff

sought emergency medical treatment right after a handcuffing incident.”). Further, the

electromyography test conducted on Plaintiff’s right wrist more than five months after the arrest

found “no evidence of widespread motor neuronopathy; active right cervical radiculopathy or right

radial neuropathy.” (Joint Decl., Ex. L at 13). These findings contradict Plaintiff’s statements that

he has permanent nerve damage to such a degree that he cannot make a complete fist to this day.

See Faruki v. City of New York, No. 10-CV-09614, 2012 WL 1085533, at *7 (S.D.N.Y. Mar. 30,

2012) (granting summary judgment on excessive force claim where medical evidence did not

corroborate plaintiff’s allegation that she suffered a hairline fracture and nerve injuries in her wrist

and hand), aff’d, 517 F. App’x 1 (2d Cir. 2013); Esmont v. City of New York, 371 F. Supp. 2d 202,

215 (E.D.N.Y. 2005) (granting summary judgment where plaintiff testified to diminished use of

her left wrist but X-ray results contradicted her claim). Even if the electromyography test’s finding

of “mild right median neuropathy at the wrist (carpal tunnel syndrome)” in Plaintiff’s right hand

was sufficient to establish nerve damage (Joint Decl., Ex. L at 13), there is no evidence that this

condition did not exist prior to the arrest and was caused by the handcuffing. Cf. Pateman, 2020

WL 1497054, at *18 (denying summary judgment where plaintiff’s medical records and

physician’s testimony suggest that he did not have neurologic symptoms in his hands before his

arrest and the handcuffing may have caused carpal tunnel syndrome and progressive numbness in

Plaintiff’s wrists). In fact, Defendants submitted medical records demonstrating that Plaintiff was

referred to a hand surgeon for a prior injury to his right hand nearly eight years prior to the arrest.

(Joint Decl., Ex. K at 6). Plaintiff explained at his deposition that he did not follow the

recommended treatment for that prior injury, such as attending physical therapy or having a tendon

put back in. (Pl. Tr. at 17:7-18:13).

Plaintiff’s allegations of nerve damage are, therefore, not supported by any admissible

evidence. “Unsubstantiated claims of nerve damage, in the absence of corroborating medical

evidence, are insufficient to support a claim of excessive force from handcuffing.” Esmont, 371 F.

Supp. 2d at 215 (E.D.N.Y. 2005); see also Tyk v. Surat, No. 13-CV-01532, 2015 WL 13215022,

at *4 (E.D.N.Y. Oct. 21, 2015) (granting summary judgment on excessive force claim where

plaintiff had no admissible evidence that he was diagnosed with bilateral radial nerve damage),

aff’d sub nom., 675 F. App’x 40 (2d Cir. 2017); see also Rolkiewicz, 442 F. Supp. 3d at 641

(granting summary judgment as to excessive force claim where “[Plaintiff’s] failure to provide any

evidence, even solid testimonial evidence that he sustained injuries as a result of handcuffing, is

fatal to his claim.”). Plaintiff’s claimed injury is de minimis and, accordingly, insufficient to sustain

a claim for excessive force concerning the use of handcuffs.

Likewise, the Plaintiff’s second claim for failure to intervene must be dismissed. See

Thomas, 2022 WL 394384, at *10.

In light of the foregoing, Plaintiff’s claim for excessive force based on both theories must

be dismissed. Even while granting Plaintiff—who filed nothing in opposition to this motion—

every benefit of the doubt to which a pro se litigant is entitled, there is no genuine dispute that the

force used against him was objectively reasonable or resulted in a de minimis injury. As every

theory of excessive force has been dismissed, Defendants are, accordingly, granted summary

judgment on this claim for relief as well as his claim for failure to intervene in the use of excessive

force. See Reynolds v. City of New York, No. 04-CV-06540, 2005 WL 2861601, at *4 (S.D.N.Y.

Oct. 31, 2005) (“[L]aw enforcement officers’ affirmative duty to intervene exists only where a

person’s constitutional rights have been violated.”).?

CONCLUSION

For the foregoing reasons, Defendants’ unopposed motions for summary judgment are

GRANTED.

The Clerk of Court is respectfully requested to (1) terminate the pending motion sequences

(Docs. 106-109); (ii) mail a copy of this Opinion and Order to Plaintiff; and (iii) close this case.

SO ORDERED.

Dated: White Plains, New York

December 23, 2024 CGOuy-

PhilipM. Halpern”

United States District Judge

Given the conclusions reached herein, the Court need not and does not reach Defendants’ arguments

regarding qualified immunity. (Def. Br. at 21-24).

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