Chimelis v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ANNE CHIMELIS,

Plaintiff,

MEMORANDUM AND ORDER

-against-

Case No. 2:21-CV-7079

COUNTY OF SUFFOLK, POLICE

OFFICER PETER ALVAREZ,

POLICE OFFICER “JOHN”

IANONNE, and SERGEANT

MICHAWEL ALFERI,

Defendants.

Appearances: For the Defendant:

For the Plaintiff: CALLAN WRIGHT TAUSTER

ALBERT DARNELL MANUEL, III STACY A. SKORUPA

COBIA MALIK POWELL Suffolk County Department of Law

FREDERICK K. BREWINGTON 100 Veterans Memorial Highway

Law Offices of Frederick K. Brewington Hauppauge, NY 11788

556 Peninsula Boulevard

Hempstead, NY 11550

LEAH ELIZABETH JACKSON

Lieb at Law

308 W. Main Street

Smithtown, NY 11787

BLOCK, Senior District Judge:

In this civil rights action, Plaintiff Anne Chimelis (“Plaintiff”) brings federal

and state law claims against the County of Suffolk (the “County”) and three

individuals: Suffolk County Police Officer Peter Alvarez (“Alvarez”), Officer John

Ianonne (“Ianonne”), and Sergeant Michael Alferi (“Alferi”) (collectively, “Police

Defendants”). The County and Police Defendants (collectively, “Defendants”)

move for summary judgment on all of Plaintiff’s claims pursuant to Federal Rule

of Civil Procedure 56. In addition to Plaintiff’s assault and battery state law claim

against them, Police Defendants face three federal claims under 42 U.S.C. § 1983:

(1) false arrest violating the Fourth Amendment; (2) retaliatory arrest violating the

First Amendment; and (3) excessive force violating the Fourth Amendment.1

Summary judgment is appropriate only if the pleadings, the discovery

materials on file, and any affidavits show “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The moving party “bears the burden of establishing that no

genuine issue of material fact exists.” Bustamante v. KIND, LLC, 100 F.4th 419,

432 (2d Cir. 2024) (cleaned up). “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133, 150 (2000). The Court must thus “resolv[e] all ambiguities and draw all

permissible factual inferences in favor of the party against whom summary

1 Plaintiff has voluntarily withdrawn multiple claims in her memorandum of law opposing

Defendants’ motion: (1) false imprisonment, Pl.’s Opp’n at 9 n.1, ECF No. 48-15; (2) abuse of

process, id. at 14 n.2; (3) fabrication of evidence, id.; (4) negligent infliction of emotional

distress, id.; (5) intentional infliction of emotional distress, id.; and (6) Monell liability, id. at 23.

Only claims against Police Defendants remain because Plaintiff has dropped Monell liability,

required “to hold a city liable under § 1983 for the unconstitutional actions of its employees.”

See Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007).

judgment is sought.” Sloley v. VanBramer, 945 F.3d 30, 36 (2d Cir. 2019) (citing

Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)). “The party seeking summary

judgment on the basis of qualified immunity bears the burden of proof” on the

defense. Soukaneh v. Andrzejewski, 112 F.4th 107, 116 (2d Cir. 2024).2

For the following reasons, the motion is DENIED.

I

The facts are taken from the pleadings, the parties’ Rule 56.1 statements, and

supporting documentation, including an approximately sixteen-minute video of the

incident recorded by a third party. See Video, ECF No. 48-7. The Court construes

all evidence in the light most favorable to the non-moving party, drawing all

inferences and resolving all ambiguities in that party's favor. See Capital Recs.,

LLC v. Vimeo, Inc., 125 F.4th 409, 418 (2d Cir. 2025). As will be seen, the material

facts are largely in dispute, precluding summary judgment on each of Plaintiff’s

claims.

“On October 17, 2020, Plaintiff and her child attended a gathering of the

North Country Peace Group” at an intersection “in Setauket, New York.” Pl.’s 56.1

Statement of Disputed Facts in Opp’n to Defs.’ Mot. and Counter Statement of

Facts at ¶ 2, ECF No. 48-14 [hereinafter, “SOF”]. Most “members of the North

2 Throughout this opinion, the Court omits all internal quotation marks, footnotes, and citations,

and adopts all alterations, unless otherwise indicated.

Country Peace Group and Black Lives Matters protestors” occupied one side of the

road, while many “supporters and followers of [] President Donald Trump”

(“Trump”) gathered on the opposite side. Id. at ¶ 3. At some point, a vehicle

caravan of Trump supporters drove down the road and stopped at the intersection.

Id. at ¶ 9.

Then, a Trump impersonator exited the vehicle that led the caravan. Id. at ¶

6. There were no police vehicles in the intersection at that time. Id. at ¶ 9.

However, Plaintiff asserts that she saw a police car in a parking lot adjacent to the

intersection upon arriving. Pl.’s Dep. Tr. at 16:24–18:10, ECF No. 48-6. Two

protestors entered the intersection, with one holding a sign reading “Racism is not

Patriotism.” Video at 0:51; SOF at ¶¶ 8–9. The Trump impersonator and others

who exited the caravan vehicles walked in the road, posing for pictures with Trump

supporters and addressing protestors on both sides of the road. Video at 0:30–3:34.

Officer Alvarez arrived after people entered the roadway to disperse the crowd, but

nobody acknowledged his instruction. SOF at ¶ 73. Sergeant Alfieri and Officer

Iannone arrived later. Id. at ¶¶ 69, 122.

Around that time, “Debbie Edwards[] was hit by a pick-up truck in the pro-

Trump caravan.” Id. at ¶ 5. Plaintiff entered the roadway to help her. Pl.’s Dep. Tr.

at 22:2–4. The parties dispute whether a truck hit anyone. SOF at ¶ 91. At this

point, Plaintiff stood around the front of the caravan with multiple other people

who held signs expressing views across the political spectrum. Video at 3:50.

Members of the Trump caravan then “screamed at [Plaintiff] and other members of

the North County Peace Group [in the roadway]. . . pushed people, and ripped the

sign out of” Plaintiff’s hands. SOF at ¶ 7; Video at 3:55. In response, and to help

Edwards, Plaintiff sought assistance from officers around her, including Alvarez.

SOF at ¶¶ 12, 70. Her efforts proved fruitless, as police ignored her. Id. at ¶ 13.

After about two minutes, Police Defendants instructed Plaintiff and Myrna

Gordon (“Gordon”), a fellow North Country Peace Group member, to exit the road.

Id. at ¶¶ 15–26, 54; Iannone Dep. Tr. at 18:25–19:9, ECF No. 48-10.

Simultaneously, Plaintiff asked Police Defendants to control the crowd that had

gathered in the road, including the pro-Trump protestor who had menaced her. SOF

at ¶¶ 15, 24–25. Other people asked to leave the road initially dispersed but then

reentered. Iannone Dep. Tr. at 19:24–20:10. The vehicle leading the caravan tried

to move while people from the caravan and both sides of the road, including

Plaintiff, occupied the road.3 Video at 3:47. Later, its occupants again exited the

car. Id. at 8:52. Many protestors from the caravan and both sides of the road

3 Defendants allege that, at this point, “the Trump protestors had either re-entered the cars or left

the roadways.” SOF at ¶ 11. The video demonstrates otherwise. See Video at 3:53. “In certain

circumstances, video evidence may be so clear and unambiguous that a court deciding a

summary judgment motion . . . need not afford weight to conclusory or non-credible assertions

that are inconsistent with the blatant video evidence.” Monahan v. City of New York, No. 20-CV-

2610, 2022 WL 954463, at *4 (S.D.N.Y. Mar. 30, 2022) (citing Scott v. Harris, 550 U.S. 372,

378-80 (2007)).

occupied the road from the time people reentered the leading car to the time of

Plaintiff’s arrest. Id. at 3:47–9:08.

After Plaintiff and Gordon refused to move multiple times, they were

arrested. SOF at ¶¶ 16–18, 21–26. Alvarez arrested Gordon and then Iannone and

Alfieri arrested Plaintiff. Id. at ¶¶ 164, 166. The parties dispute whether Alfieri had

received instructions from his supervisor to begin arrests or if he made the decision

himself. Id. at ¶ 100. Following Plaintiff’s arrest, other protestors remained in the

roadway. Video at 9:14.

When Iannone and Alfieri arrested and handcuffed Plaintiff, she experienced

pain from her pre-existing shoulder injuries and in her wrists. SOF at ¶¶ 27, 31.

The parties dispute whether Plaintiff conveyed her pain to the surrounding officers

during her arrest and their response, if any. Id. at ¶¶ 33, 133. The parties also

dispute who walked Plaintiff to the police car. Id. at ¶¶ 35, 134. Iannone then drove

Plaintiff and Gordon to the precinct. Id. at ¶ 36. The parties dispute whether

Alvarez was in the car. Alvarez Dep. Tr. at 46:14–47:5, ECF No. 48-6; Pl.’s Dep.

Tr. at 59:15–60:5. Plaintiff, still in pain, asked Iannone to pull over and adjust her

handcuffs, but he declined and told Plaintiff it was not protocol to do so. SOF at ¶¶

37; 135. Iannone offered to take Plaintiff to the hospital, but she declined. Id. at ¶¶

80, 135. The parties dispute whether Plaintiff complained of pain while in

transport, aside from responding to Iannone’s offer. Id. at ¶ 79.

It is disputed whether, upon arrival, Iannone or Alvarez removed Plaintiff

from the vehicle. Id. at ¶¶ 38; 137. One of the officers “turned her around and ‘with

no warning,’ released her handcuffs.” Id. at ¶ 38. Plaintiff felt a “‘burning pain’ and

described the feeling as her right arm ‘dropped out of the socket.’” Id. The officer

then adjusted Plaintiff’s handcuffs and handcuffed her again. Id. at ¶ 39. Plaintiff

was then placed in a holding room and “cuffed to a metal table with her hands in

front of her,” id. at ¶ 48, but her pain did not “go away,” id. at ¶ 141. After

approximately five hours, she was released with a desk appearance ticket. Id. at ¶

50. Plaintiff subsequently sought and received medical treatment. Id. at ¶¶ 55–57,

59.

II

A. False Arrest

i. Substantive Claim

The Fourth Amendment protects persons from warrantless arrests absent

probable cause. See D.C. v. Wesby, 583 U.S. 48, 56 (2018). Probable cause is thus

an absolute defense to a false arrest claim. Manganiello v. City of New York, 612

F.3d 149, 161–62 (2d Cir. 2010). “Probable cause to arrest exists when the

historical facts, viewed from the standpoint of an objectively reasonable police

officer, provide knowledge or reasonably trustworthy information sufficient to

warrant a person of reasonable caution in the belief that an offense has been or is

being committed by the person to be arrested.” Rupp v. Buffalo, 91 F.4th 623, 638–

39 (2d Cir. 2024). “Whether probable cause exists depends upon the reasonable

conclusion to be drawn from the facts known to the arresting officer at the time of

the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152–53 (2004). This inquiry is

“objective rather than subjective” and does not probe a specific officer’s intent.

Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)

“Probable cause for a disorderly conduct violation under N.Y. Penal Law §

240.20 exists only where a reasonable person in the officer’s circumstances would

have believed that the person to be arrested acted with ‘intent to cause public

inconvenience, annoyance or alarm or with recklessness as to a risk thereof.’”

McClellan v. City of Rensselaer, 395 F. App’x 717, 718 (2d Cir. 2010) (summary

order) (quoting Provost v. City of Newburgh, 262 F.3d 146, 157 (2d Cir. 2001)).

Defendants argue that Police Defendants had probable cause to arrest

Plaintiff for obstructing traffic under N.Y. Penal Law § 240.20(5) because she

“deliberately and knowingly obstructed traffic . . . and refused the officers’

instructions to leave the roadway despite being warned that refusal would lead to

her arrest.” Defs.’ Mem. at 11, ECF No. 48-4. But probable cause cannot be

determined here as a matter of law because the parties dispute whether a

reasonable officer in Police Defendants’ position could believe that Plaintiff

intended to cause or recklessly created the risk of causing public harm.

Thus, there are issues of fact that preclude summary judgment, namely

whether a reasonable officer would believe that Plaintiff entered the roadway “for

the legitimate purpose” of seeking police assistance after a truck hit her friend and

pro-Trump protestors menaced her and others near her. Rupp, 91 F.4th at 642

(echoing that jury might infer that plaintiff entered road “‘for the legitimate

purpose of getting the [] officer’s attention, not to cause public inconvenience,

annoyance or alarm’” (quoting Provost, 262 F.3d at 158)). A jury could also infer

that Plaintiff did not recklessly obstruct traffic because the road was

simultaneously occupied by drivers and occupants of the vehicles in the caravan, as

well as protestors from both sides. And, prior to Plaintiff’s arrest, a car was able to

drive around her and the other people in the roadway. SOF at ¶ 44; Video at 5:11;

see Jones v. Parmley, 465 F.3d 46, 59 (2d Cir. 2006) (explaining that disorderly

conduct violation only lies “where the conduct at issue does more than merely

inconvenience pedestrian or vehicular traffic”).

ii. Qualified Immunity

Government actors may invoke qualified immunity to shield themselves

from liability for civil damages “‘when [their] conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Soukaneh, 112 F.4th at 115 (quoting White v. Pauly, 580 U.S. 73,

78–79 (2017)). “Courts apply a two-step process in evaluating whether qualified

immunity applies: ‘qualified immunity shields federal and state officials from

money damages unless [the facts demonstrate] (1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly established at the

time of the challenged conduct.’” Steele-Warrick v. Microgenics Corp., 671 F.

Supp. 3d 229, 246 (E.D.N.Y. 2023), remanded on other grounds, 2024 WL

2837618 (2d Cir. June 5, 2024) (quoting Sabir v. Williams, 52 F.4th 51, 58 (2d Cir.

2008)). “Summary judgment on qualified immunity grounds is not appropriate

when there are facts in dispute that are material to a determination of

reasonableness.” Thomas v. Roach, 165 F.3d 137, 143 (2d Cir.1999).

In defense to “a false arrest claim,” officers may also invoke qualified

immunity if “arguable probable cause” existed to make the arrest. Guan v. City of

New York, 37 F.4th 797, 806 (2d Cir. 2022). “A police officer has arguable

probable cause if either (a) it was objectively reasonable for the officer to believe

that probable cause existed, or (b) officers of reasonable competence could

disagree on whether the probable cause test was met.” Id.

Police Defendants argue that they did not violate Plaintiff’s clearly

established right “to be free from arrest without probable cause,” Gonzalez v. City

of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013), because probable cause justified

her arrest. But qualified immunity cannot be granted as a matter of law since there

are issues of fact that must be resolved, namely whether it was objectively

reasonable for an officer to believe that Plaintiff intended to cause or recklessly

created the risk of causing public harm. See Krause v. Bennett, 887 F.2d 362, 365

(2d Cir. 1989) (explaining that question of “whether a reasonable police officer

would have believed probable cause existed” is also “the decisive factor in the

analysis of qualified immunity”). Those fact issues determine whether any

objective officer in Police Defendants’ position could believe that probable cause

to arrest Plaintiff existed.

B. First Amendment Retaliation

i. Substantive Claim

Police Defendants argue that “the existence of probable cause” defeats

Plaintiff’s “First Amendment claim premised on the allegation that defendants

arrested [] plaintiff based on a retaliatory motive.” Caravalho v. City of New York,

732 F. App’x 18, 23 (2d Cir. 2018) (summary order) (quoting Fabrikant v. French,

691 F.3d 193, 215 (2d Cir. 2012)). As mentioned, probable cause is disputed. Even

so, “while probable cause ‘should generally defeat a retaliatory arrest claim,’ a

narrow exception exists where, even though officers have probable cause to make

arrests, they ‘typically exercise their discretion not to do so.’” Wheeler v. Artola,

852 F. App’x 589, 591 (2d Cir. 2021) (summary order) (quoting Nieves v. Bartlett,

587 U.S. 391, 406–07 (2019)). “A plaintiff can take advantage of this exception by

presenting ‘objective evidence that he was arrested when otherwise similarly

situated individuals not engaged in the same sort of protected speech had not

been.’” Id. After showing such “objective evidence,” “plaintiff’s claim may

proceed in the same manner as claims where the plaintiff has met the threshold

showing of the absence of probable cause.” Nieves, 587 U.S. at 406–08.

Plaintiff has presented such evidence. At the time of Plaintiff’s arrest, many

other people occupied the roadway and obstructed traffic, including the driver of

the vehicle at the front of the caravan. Many persons in the roadway signaled their

political views, through signs, apparel, and words. But police only arrested those

who protested the pro-Trump contingent. Plaintiff asserts that Police Defendants

arrested her after labeling her a “leader” of the protest, if she was identified at all,

whereas Police Defendants retort that they labeled her the “leader” of the

obstruction. See SOF at ¶ 100; Pl.’s Opp’n at 10. Defendants also argue that

Plaintiff “was only arrested when she entered the roadway” and refused to exit

upon police instruction, but Plaintiff responds that many others who remained in

the roadway were not arrested. Defs.’ Mem. at 17; see Pl’s Opp’n at 11–13.

There thus exists objective evidence that Police Defendants might have

exercised their discretion not to arrest protestors who supported Trump. See

Gonzalez v. Trevino, 602 U.S. 653, 658 (2024). A reasonable jury could find that

this evidence triggers the Nieves exception and itself evidences retaliatory intent.

See Nieves, 587 U.S. at 400, 406–08. If the exception is not triggered, the Court

could still not decide Plaintiff’s retaliatory arrest claim as a matter of law because

probable cause remains disputed, as discussed in section III(a)(i).

ii. Qualified Immunity

Police Defendants also invoke qualified immunity on Plaintiff’s retaliatory

arrest claim, arguing that probable cause legitimized her arrest. Violation here of

the clearly established right to engage in First Amendment speech free from

retaliatory arrest hinges on disputes regarding probable cause and the Nieves

exception’s applicability. See Nieves, 587 U.S. at 406–08. As mentioned, Plaintiff

has presented objective evidence from which a reasonable jury could infer that

Police Defendants refused to arrest pro-Trump protestors. These competing

inferences present an issue of fact. See Musso v. Hourigan, 836 F.2d 736, 743 (2d

Cir. 1988) (affirming denial of summary judgment on qualified immunity on

different First Amendment claim where “a rational jury could infer that

[government actor] singled out [Plaintiff] out of dislike for what [she] had to say”).

A jury must thus determine whether “objective evidence” supports the inference

that Plaintiff was arrested when otherwise similarly situated individuals not

engaged in the same sort of protected speech had not been.” Id. at 407–08.

Even if the Nieves exception does not apply, Plaintiff’s claim may still

proceed if a jury finds that Police Defendants did not have probable cause to arrest

Plaintiff. Because these disputes determine whether the officers “acted reasonably

under settled law in the circumstances,” Rupp, 91 F.4th at 642, summary judgment

is inappropriate here, see Roach, 165 F.3d at 143–44 (precluding summary

judgment on qualified immunity where disputes prevented district court from

determining whether officers violated underlying constitutional right).

C. Excessive Force

i. Substantive Claims

Defendants argue that Plaintiff’s excessive force claim fails because

probable cause existed for her arrest and Police Defendants only employed the

minimal force necessary to arrest her. “The Fourth Amendment prohibits the use of

unreasonable and therefore excessive force by a police officer in the course of

effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Unique

considerations apply in excessive force cases involving handcuffs. “In evaluating

the reasonableness of handcuffing,” courts may consider evidence: “(1) [that] the

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

arrestee’s pleas that the handcuffs were too tight; and (3) [of] the degree of injury

to the [arrestee’s] wrists.” Cugini v. City of New York, 941 F.3d 604, 612–13 (2d

Cir. 2019).

But “a court’s reasonableness analysis is not limited to a factual checklist.”4

Id. at 613. “The question is more broadly whether an officer reasonably should

have known during handcuffing that his use of force was excessive. A plaintiff

satisfies this requirement if either the [objective] unreasonableness of the force

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

verbally or otherwise, such that a reasonable officer would have been aware of her

pain, or both.” Id.; see Kalfus v. N.Y. & Presbyterian Hosp., 476 F. App’x 877, 881

(2d Cir. 2012) (summary order) (explaining that officer knowledge of plaintiff’s

preexisting injury could render force used objectively unreasonable).

Defendants ask the Court to make impermissible credibility determinations

regarding “what transpired during and after [Plaintiff’s] handcuffing” that preclude

summary judgment on this claim. Defs.’ Mem. at 23. Relying on testimonial

evidence, Defendants dispute who handcuffed Plaintiff, whether Police Defendants

heard her complaints of pain and requests to adjust her handcuffs, whether they

knew of her preexisting injury, the degree of force used, and the severity of

Plaintiff’s resulting injuries.5 See id. at 23–24; SOF at ¶¶ 106, 116, 132–34, 141;

4 Even handcuffing cases require courts to balance, in determining reasonableness, “(1) the

severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of

the officers or others, and (3) whether [the suspect] is actively resisting arrest or attempting to

evade arrest by flight.” Cugini, 941 F.3d at 612. The Court focuses considerations unique to

handcuffing cases because Defendants center their motion on such arguments.

5 Police Defendants direct the Court to video evidence to “support the officers’ accounts of the

events.” Defs.’ Mem. at 24. But the Court cannot assess credibility on summary judgment.

Regardless, the video does not clearly depict who walked Plaintiff to the police car.

Pl.’s Dep. Tr. at 90:2–91:7. These credibility disputes are material. See, e.g., Ikezi v.

City of New York, No. 14-CV-5905, 2017 WL 1233841, at *13–14 (E.D.N.Y. Mar.

31, 2017) (precluding summary judgment where “Plaintiffs asked the officers to

handcuff them in front of their bodies instead of behind their backs because they

had shoulder injuries” but officers refused); Pelayo v. Port Authority, 893 F. Supp.

2d 632, 642 (S.D.N.Y. 2012) (“Plaintiff’s testimony about the injuries and

subsequent treatment alone is sufficient to support an excessive force claim on a

motion for summary judgment.”); Owens v. Colburn, 860 F. Supp. 966, 972–73

(N.D.N.Y. 1994), aff’d, 60 F.3d 812 (2d Cir. 1995) (noting that dispute “as to

whether a police officer had actual knowledge of a plaintiff’s [preexisting]

shoulder injury” precludes summary judgment on handcuffing claim). A jury must

thus resolve these credibility disputes at trial. Reeves, 530 U.S. at 150. The same

result holds even if probable cause was not in dispute. See Weyant v. Okst, 101 F.3d

845, 858 (2d Cir. 1996) (explaining that “use of excessive force is impermissible

even during a lawful arrest”).

ii. Qualified Immunity

Police Defendants then assert qualified immunity for Plaintiff’s excessive

force claim because they contend that there is no “clearly established law holding

that it is an unreasonable use of force to handcuff suspects pursuant to normal

handcuffing procedures after they notify law enforcement officers that they have

injuries that would be exacerbated by such handcuffing.” Ikezi, 2017 WL 1233841

at *16. But since Ikezi, the Second Circuit has clearly established the right to be

free from “force that [officers] should know is unreasonable based on the arrestee’s

manifestation of signs of distress.” Cugini, 941 F.3d at 617. This right was clearly

established at the time the events underlying Plaintiff’s case occurred. The Second

Circuit decided Cugini in October 2019, and the events here occurred in October

2020.

Cugini places “the lawfulness of the particular [action] beyond debate,”

Wesby, 583 U.S. at 64, and applies “with obvious clarity to the specific conduct in

question,” Steele-Warrick, 671 F. Supp. 3d at 247 (quoting Matzell v. Annucci, 64

F.4th 425, 439 (2d Cir. 2023)). It should be clear to “every reasonable official” that

manifestations of distress, including those caused by preexisting injuries, could

render unreasonable force that is reasonable in other circumstances. Wesby, 583

U.S. at 63. That is especially true because, in setting the standard for handcuffing

cases, Cugini, 941 F.3d at 612, the Second Circuit cited a case that involved the

aggravation of a preexisting injury by otherwise-reasonable force, Stainback v.

Dixon, 569 F.3d 767, 773 (7th Cir. 2009) (explaining that “[h]ad the Officers

known of a preexisting injury or medical condition that would have been

aggravated by handcuffing . . . the Officers certainly would have been obligated to

consider that information” in deciding whether to handcuff plaintiff). Courts in this

circuit have applied Cugini to cases where preexisting injuries render ordinary

handcuffing unreasonable.6 Other circuits agree that such force is unreasonable.7

See Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 61 (2d Cir. 2014) (recognizing

that law could be clearly established where decisions of “other circuits and . . . our

own Court foreshadowed the right”).

Thus, the right Plaintiff invokes is clearly established with sufficient

“specificity.” See Mullenix v. Luna, 577 U.S. 7, 12 (2015). Further, the identified

factual disputes prevent the Court from determining whether an objectively

reasonable officer would believe that his actions did not violate that right. See

Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (“There may be factual disputes

overlapping the excessive force and qualified immunity issues that the jury must

find.”); Roach, 165 F.3d at 143–44. The Court therefore cannot decide qualified

immunity as a matter of law. Drawing all inferences in Plaintiff’s favor, the Court

6 See, e.g., Burris v. Nassau Cnty. Dist. Att’y, No. 14-CV-5540, 2024 WL 1345296, at *9

(E.D.N.Y. Mar. 30, 2024) (denying summary judgment on excessive force claim where

“reasonable jury could find that Detective Dezelic’s actions exacerbated [plaintiff’s] pre-existing

injury”); Baker v. City of New York, 551 F. Supp. 3d 258, 267–69 (S.D.N.Y. 2021) (applying

Cugini to deny summary judgment on excessive force claim where plaintiff told handcuffing

officers of prior injury and complained about handcuffs).

7 See, e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1353–54 (8th Cir. 2002) (explaining that “what

would ordinarily be considered reasonable force” becomes excessive force when it “aggravates

(however severely) a pre-existing condition the extent of which” was known to handcuffing

officer); Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir.1993) (“An excessive use of

force claim could be premised on [the officer's] handcuffing [the plaintiff] if he knew that she

had a[] [previously] injured arm and if he believed that she posed no threat to him.”), superseded

by court rule on other grounds as stated in Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397,

407–08 (6th Cir. 2007).

denies summary judgment on Plaintiff’s excessive force and assault and battery

claims.

D. Assault and Battery

Police Defendants argue that probable clause defeats Plaintiff’s state law

assault and battery claim against them. But probable cause is disputed. “Where an

arrest is determined to be unlawful, any use of force against a plaintiff may

constitute an assault and battery, regardless of whether the force would be deemed

reasonable if applied during a lawful arrest.” Palmer v. City of New York, 564 F.

Supp. 3d 221, 247 (E.D.N.Y. 2021). The probable cause dispute thus itself

precludes summary judgment on Plaintiff’s assault and battery claim.

III

A. Alvarez’s Personal Involvement

The parties dispute Alvarez’s involvement. Police Defendants assert that

Alvarez did not have any interaction with Plaintiff besides riding in the police car

with her to the station and telling her to leave the car upon arrival. Id. at ¶¶ 76–78;

Alvarez Dep. Tr. at 51:11–16.

“It is well settled that, in order to establish a defendant’s individual liability

in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's

personal involvement in the alleged constitutional deprivation.” Grullon v. City of

New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Alvarez contends that he did not

participate in Plaintiff’s arrest or handcuffing and was not the target of Plaintiff’s

complaints. Alvarez Dep. Tr. at 48:12–49:5; 55:18–24; 62:16–21. Plaintiff presents

a diametrically opposed account of the events. Pl.’s Opp’n at 4–5, 14. These

directly conflicting accounts present credibility disputes properly resolved at trial.

Reeves, 530 U.S. at 150. Accordingly, a jury must decide whether Alvarez’s

involvement warrants exposure to liability under § 1983.

IV

Accordingly, Defendants’ motion for summary judgment is DENIED in its

entirety.

SO ORDERED.

_/S/ Frederic Block__________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

February 11, 2024