# Dzionara-Norsen v. County of Monroe

> District Court, W.D. New York · July 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11088886

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11088886

## How later opinions describe it (automated extraction)

- explaining the “objective reasonableness” test for excessive force claims under the Fourth Amendment likewise applies to claims under the Fourteenth Amendment

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICHARD DZIONARA-NORSEN,
Plaintiff,
v. 21-CV-6715-MAV-MJP
DECISION AND ORDER
COUNTY OF MONROE, et al.,
Defendants.

INTRODUCTION
On November 22, 2021, Plaintiff Richard Dzionara-Norsen commenced this
civil rights action, raising seven claims against the County of Monroe (the “County”),
Todd Baxter, Brett Kirkpatrick, and David Gertin (collectively, the “Defendants’).
ECF No. 1 at 1. Plaintiff alleges he is an individual with a disability, as known by
Defendants, and that while incarcerated at the Monroe County Jail (the “Jail”) “he
was brutally beaten” by Kirkpatrick and Gertin, both of whom are Deputy Sheriffs
with the Monroe County Sheriffs Office (““MCSO”). Id. at 1-2. Before the Court is
Plaintiffs motion for partial summary judgment on his claims against Kirkpatrick—
for excessive force under 42 U.S.C. § 1983, and for assault and battery under New
York state law.! ECF No. 42; see ECF No. 1 at 8-10. Defendants filed a response in

1 These two claims are also asserted against Gertin. ECF No. 1 at 8-10. The claims against Gertin and
other Defendants are outside the scope of Plaintiff's motion for partial summary judgment.

opposition to Plaintiffs motion, ECF No. 45, and Plaintiff filed a reply, ECF No. 46.2
The case was transferred to the undersigned on February 10, 2025. ECF No. 49.
For the reasons set forth below, Plaintiffs motion for partial summary
judgment is GRANTED.
BACKGROUND3
It is undisputed that a Jail security camera located above the Deputy Desk in
the “REC Annex” captured the November 25, 2020 incident which forms the basis of
Plaintiffs claims against Kirkpatrick (the “Video”). There is no audio in the Video,
and everyone appearing in the video is wearing a medical mask or face covering over
their mouths and noses. The parties do not dispute the Video’s authenticity or its
accuracy. The following facts are taken from the Court’s independent review of this
video evidence as well as Plaintiffs Statement of Material Facts, ECF No. 42-2 □□□□
Stmt.”), and Defendants’ Counterstatement of Material Facts, ECF No. 45-2 (“Def.
Stmt.”). See W.D.N.Y. Loc. R. Civ. P. 56(a)(1)-(2). There are very few disputes of fact,
and the Court has noted where the remaining disputes between the parties lie, where
the Video is unclear, and where the Video plainly contradicts a party’s allegations of
what transpired.
“At the summary judgment stage, facts must be viewed in the hight most
favorable to the nonmoving party only if there 1s a genuine dispute as to those facts.”

2 Plaintiff thereafter filed a motion to supplement briefing on his partial summary judgment motion.
ECF No. 47. The Court denied that request as unnecessary in a Text Order on May 30, 2025. ECF No.
50.
3 The corresponding citation to Defendant’s Counterstatement of Material Facts is omitted when their
response was “undisputed.” Citations to the videotape evidence reference the UTC timestamp on the
footage itself.

Scott v. Harris, 550 U.S. 372, 380 (2007) (quotation omitted). Where a videotape of
the relevant events exists and there are no disputes about its accuracy, a court
deciding a motion for summary judgment must “view[ | the facts in the light depicted
by the videotape.” Id. at 381; see also Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir.
2007) (“Incontrovertible evidence relied on by the moving party, such as a relevant
videotape whose accuracy is unchallenged, should be credited by the court on... [a
motion for judgment as a matter of law‘] if1t so utterly discredits the opposing party’s
version that no reasonable juror could fail to believe the version advanced by the
moving party.”); Vann by Vann v. City of Rochester, 747 F. Supp. 3d 566, 569
(W.D.N.Y. 2024), reconsideration denied, No. 6:18-CV-06464 EAW, 2024 WL 4750388
(W.D.N.Y. Nov. 4, 2024) (“[T]he Court’s factual recitation relies on its own review of
the videotape evidence, and not on the gloss thereon provided by either party.”)
Plaintiff has autism spectrum disorder and is a person with a disability. PI.
Stmt. at § 1. Plaintiff was incarcerated at the Jail, starting on November 20, 2020,
pending sentencing for a criminal conviction. Id. at § 2. On November 25, 2020,
Gertin and Kirkpatrick were assigned to the REC Annex, where Plaintiff was being
held “for constant supervision.” Id. at §/{ 3-4.
1 The November 25, 2020 Incident
At approximately 3:54 p.m., Kirkpatrick opened Plaintiffs cell for him to speak
with mental health services in the reception area of the Jail. Id. at § 6. Plaintiff exited

4“TT}he standard for granting summary judgment mirrors the standard for judgment as a matter of
law, such that the inquiry under each is the same.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 150 (2000) (quotation omitted).

his cell and told the deputies that he was not going back into his cell until he was
able to speak with his mother on the telephone. Id. at § 7. Defendants add that
Kirkpatrick testified during his deposition that he told Plaintiff “that after he talked
to a mental health professional, he could use the phone,” and that Plaintiff responded
by saying, “fuck you. ’m not going back in the cell.” Def. Stmt. at { 36.
The Video does not show Plaintiffs cell, Kirkpatrick outside of it, or the initial
exchange between the two of them. At 3:54:11 p.m., the Video shows Gertin in the
REC Annex, gesturing to someone offscreen to come towards him. Video at 15:54:11.
There were three other people in the REC Annex space at that time: a uniformed
officer at the Deputy Desk, a Jail employee with a clipboard sitting on a bench to the
left of the open door that Plaintiff eventually walks towards, and another employee
in an office on the other side of the open door. Jd.
Five seconds later, Plaintiff becomes visible on the video, walking quickly past
Gertin towards the open door on the other side of REC Annex—towards mental health
services. Id. at 15:54:16. It is apparent that Gertin speaks to Plaintiff, and Plaintiff
stops and turns to respond, seemingly frustrated. Id. at 15:54:17—:21. The parties do
not dispute that Kirkpatrick and Gertin ordered Plaintiff to return to his cell, but
Plaintiff continued to walk towards the reception area. Pl. Stmt. at { 8. Defendants
add that Plaintiff continued saying “fuck you” while walking away.” Def. Stmt. at
{ 37. The Video shows Gertin and Plaintiff both making frustrated hand gestures
towards the other and shows Gertin stepping closer to Plaintiff. Video at 15:54:18—
:24. Plaintiff turns away from Gertin to continue to walk towards the open door, and

Gertin grabs Plaintiffs right wrist with his left hand, causing Plaintiff to stop
abruptly and turn back towards Gertin. Jd. at 15:54:24. The parties do not dispute
that Gertin “grabbed [Plaintiffs] wrist and ordered [him] to put his hands behind his
back.” Pl. Stmt. at § 9. Kirkpatrick is not yet visible in the video, but based on where
he comes into frame, Kirkpatrick could have witnessed this interaction from behind
Gertin.
Plaintiff “attempted to pull away from Gertin but never raised his fists or
attempted to strike Gertin or Kirkpatrick” or otherwise “make a physical threat to
harm Gertin.” Jd. at {{ 10-11; Def. Stmt. at 11. Defendants also add that when
Plaintiff “pulled away” from Gertin’s wrist-grab, Plaintiff said “don’t fucking touch
me.” Def. Stmt. at 39. The Video shows Plaintiff shifting his weight back on both
feet while trying to pull his right arm out of Gertin’s hold and attempting to move
towards the open door again. Video at 15:54:25.
In immediate response, Gertin transferred Plaintiffs right wrist from his left
hand to his right, forced Plaintiffs right arm behind Plaintiffs back and pushed him
up against a nearby wall in front of the open door. Id. at 15:54:25—:27. Gertin “pushed”
Plaintiff “against the wall to detain and handcuff him.” Pl. Stmt. at { 12. Once Gertin
pushes Plaintiff up against the wall, Gertin lifts his left leg to step forward and brace
his knee against Plaintiff. 5 Video at 15:54:28.

5 Defendants identify that, during his deposition, Gertin testified that once Plaintiff was pushed up
against the wall, Plaintiff “pushed out against the wall.” Def. Stmt. at 740. This account is contradicted
by the Video. See Video at 15:54:27—:28.

As this is happening, the two non-officer employees in the REC Annex have
put more distance between themselves and Gertin and Plaintiff at a non-urgent pace.
Id. at 15:54:25—:27. One woman backed up farther into the office she was in. Jd. When
Gertin pinned Plaintiff's arm behind his back, the officer at the Deputy Desk got up
and started moving towards Gertin and Plaintiff at a brisk, but walking, pace. Id.
Kirkpatrick on the other hand is seen running towards Plaintiff and Gertin,
appearing onscreen after Gertin pins Plaintiffs right arm behind his back but before
the front of Plaintiffs body is pushed against the wall. Id. at 15:54:27.
Plaintiffs body barely has time to bounce slightly off the wall when Kirkpatrick
1s upon him, coming from his right side. Jd. at 15:54:27—:28; see Pl. Stmt. at J 13
(“Within one second of Gertin pushing [Plaintiff] into the wall, Kirkpatrick ran over
and began punching [Plaintiff] in the right side of his face”). Kirkpatrick immediately
punches Plaintiff in the head with such force that both Plaintiff and Gertin, still
holding Plaintiff from behind, are knocked to the side. Video at 15:54:28. Kirkpatrick
erabs Plaintiff, while Gertin still has a hold on him, and punches Plaintiff in the face
three more times in rapid succession, knocking the left side of Plaintiffs head into
the side of the open metal door. Id. at 15:54:28-:31; see Pl. Stmt. at 915 (undisputed
the door was metal). Both of Plaintiffs shoes come off as a result of Kirpatrick’s
engagement. Video at 15:54:29. At no point does Plaintiff fight back against
Kirpatrick, and at no point could Plaintiff shield his head or face against impact. Id.
at 15:54:27—:31.

Plaintiff goes to the ground through the open doorway by Kirpatrick, forcing
Gertin to release his hold on Plaintiff in the process. Id. at 15:54:31. Plaintiffis mostly
out of frame once he was forced through the open doorway. See id. The officer from
the Deputy Desk sat on one of Plaintiffs legs while Kirpatrick and Gertin handcuffed
Plaintiff on the ground. Id. at 15:54:35—.44.
The only fact as articulated by Plaintiff that Defendants explicitly dispute is
the assertion that Plaintiff did not do “anything that a reasonable deputy could
interpret as an objectively reasonable threat of physical harm.” Pl. Stmt. at 11.
Defendants instead contend that Plaintiff “wasn’t complying so his gestures were a
threat.” Def. Stmt. at 11.
At the time of the incident, Plaintiff weighed approximately 140 pounds and
was 59’, Gertin weighed approximately 220 pounds and was 511”, and Kirkpatrick
weighed approximately 200 pounds and was 62”. Pl. Stmt. at § 18. The deputies were
each, thus, “much larger” than Plaintiff. Jd. Plaintiff was transported to Strong
Memorial Hospital “where he was treated for facial fractures.” Id. at J 19.
Administrative Assessments of the Incident
Jail policy prohibits the unreasonable, unnecessary, and excessive use of force.
Id. at § 28. In accordance with defensive tactics training, strikes to the face or head
are considered a “level three” use of force. Id. at { 24. “Immediately after the
incident,” Kirkpatrick’s direct supervisor reviewed the Video and removed
Kirkpatrick from his role interacting with the inmate population “because he
determined that Kirkpatrick used unreasonable force.” Id. at § 20. Specifically, the

supervisor stated that “Kirkpatrick failed to properly assess the situation before
engaging with [Plaintiff].” [d. at 21.
The supervisor “conducted an investigation into the incident and was able to
immediately identify that Kirkpatrick had used excessive force against [Plaintiff].”
Id. at § 22. The supervisor issued Kirkpatrick a Memorandum of Record, identifying
that Kirkpatrick had used unreasonable force and violated Jail Policy MBO 038-10,
“Response/Aggression & Subject Management Resistance Report,” and he submitted
a special report to the Major of Operations, recommending that Kirkpatrick receive
remedial training. Id. at 25-26. This “special report” was forwarded to Internal
Affairs (“TA”), which then conducted its own investigation into the incident. Id. at
27. The IA investigation likewise concluded that the “subject management
techniques employed by Kirkpatrick were unreasonable for the situation.” Id. at ¥ 28.
Defendant Baxter, the Monroe County Sheriff, agreed with TA’s findings and

disciplined Kirkpatrick by suspending him for 20 days and requiring him to attend
additional training. Id. at | 32. The County, through its Rule 30(b)(6) witness,
admitted that “the force used by Kirkpatrick in striking Plaintiff in the face four times
was unreasonable and unnecessary.” Jd. at 31. Kirkpatrick himself agreed with the
findings of the investigations into the incident, admitted that “all four punches were
unreasonable and excessive,” and accepted the discipline imposed by Sheriff Baxter.
Id. at { 30, 33.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that summary
judgment should be granted if the moving party establishes “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after
considering the evidence in the light most favorable to the non-moving party, the
court finds that no rational jury could find in favor of that party. Scott, 550 U.S. at
380. The moving party bears the burden of showing the absence of a genuine dispute
as to any material fact. Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry
the non-movant’s burden of proof at trial. Johnson v. Xerox Corp., 838 F. Supp. 2d 99,
103 (W.D.N.Y. 2011). .
Once the moving party has met its burden, the opposing party “must do more
than simply show that there is some metaphysical doubt as to the material facts, and
may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v.
Concentra Health Serus., Inc., 781 F.3d 42, 44 (2d Cir. 2015). Specifically, the non-
moving party “must come forward with specific evidence demonstrating the existence
of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011). Indeed, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247—48 (1986).
As noted above, because there is a videotape of the incident, and there are no
disputes about the Video’s accuracy, the Court must view the facts at summary
judgment in the light depicted by the Video. Scott, 550 U.S. at 380.
DISCUSSION
Plaintiff seeks summary judgment on his two claims against Kirkpatrick—one
for excessive force under federal law, and one for assault and battery under New York
state law. New York state law claims for assault and battery are subject to the same
standard of review as excessive force claims, and New York’s good faith immunity
doctrine parallels qualified immunity in excessive force cases. Glowczenski v. Taser
Intl, Inc., 928 F. Supp. 2d 564, 587 (E.D.N.Y. 2018); see Mesa v. City of New York, No.
09 Civ. 10464(JPO), 2013 WL 31002, at *27 (S.D.N.Y. Jan. 8, 2013) (where qualified
immunity applied to excessive force claim, assault and battery claim “must fail as
well’). Therefore, the Court need not separately analyze Plaintiffs assault and
battery claim against Kirkpatrick and proceeds with its excessive-force analysis.
I. Excessive Force
Because he was a presentence detainee, Plaintiffs federal § 1983 claim against
Kirpatrick for excessive force arises under the Fourteenth Amendment. Bell v.
Wolfish, 441 U.S. 520, 535 (1979); Little v. Cnty. of Nassau, 708 F. Supp. 3d 252, 262—
63 (E.D.N.Y. 2023). To prevail on a claim of excessive force when the force is
“purposefully or knowingly” used against a pretrial or presentence detainee, such as

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here, the detainee must show only that the force “was objectively unreasonable.”
Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015) (explaining the “objective
reasonableness” test for excessive force claims under the Fourth Amendment likewise
applies to claims under the Fourteenth Amendment). “A determination of whether
the force used was reasonable ‘requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Lennox v. Miller, 968 F.3d 150, 155 (2d. Cir. 2020) (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)).
Kirkpatrick’s actions in punching Plaintiff in the face four times in rapid
succession, causing his head to slam into a metal door, less than one second after
Gertin had Plaintiff up against a wall with his right arm pinned behind his back and
braced against Gertin’s left knee was objectively unreasonable and excessive as a
matter of law. The summary judgment record is replete with undisputed evidence
foreclosing any genuine dispute that Kirkpatrick used excessive force. Moreover, the
depiction of the incident in the Video speaks for itself. Kirkpatrick’s supervisor
“immediately” concluded that Kirkpatrick used excessive force against Plaintiff. The
IA investigation concluded that “subject management techniques employed by
Kirkpatrick were unreasonable for the situation’—a conclusion that Defendant
Sheriff Baxter agreed with, resulting in disciplinary action against Kirkpatrick. The
County’s 30(b)(6) witness admitted “the force used by Kirkpatrick in striking Plaintiff

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in the face four times was unreasonable and unnecessary,” and Kirkpatrick himself
admitted that “all four punches were unreasonable and excessive.” The Video
provides clear confirmation of the unreasonableness of what transpired.
II. Qualified Immunity
“The doctrine of qualified immunity shields public officials performing
discretionary functions from civil liability insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known, or insofar as it was objectively reasonable for them to believe that
their acts did not violate those rights.” Bradway v. Gonzales, 26 F.3d 318, 317-18 (2d
Cir. 1994). Qualified immunity is an affirmative defense for which Kirkpatrick would
bear the burden of proof at trial. Dunkelberger v. Dunkelberger, No. 14-CV-3877
KMK, 2015 WL 5730605, at *6 (S.D.N.Y. Sept. 30, 2015).
“Tn resolving questions of qualified immunity at summary judgment, courts
engage in a two-pronged inquiry. The first asks whether the facts, [t]aken in the light
most favorable to the party asserting the injury, .. . show the officer’s conduct violated
a [federal] right[.]... The second prong of the qualified-immunity analysis asks
whether the right in question was ‘clearly established’ at the time of the violation.”
Felix v. City of New York, 408 F. Supp. 3d 304, 308 (S.D.N.Y. 2019) (quoting Tolan v.
Cotton, 572 U.S. 650, 655-56 (2014)) (alterations in original)). Said differently, if the
officer's conduct violated a right, the Court must analyze the objective reasonableness
of the officer’s belief the lawfulness of his actions. Loria v. Gorman, 306 F.3d 1271,
1282 (2d Cir. 2002). If the officer reasonably believed that his actions did not violate

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plaintiffs rights, he is entitled to qualified immunity even if that belief was mistaken.
Id. An officer’s subjective beliefs and motivations are irrelevant. Read v. Town of
Suffern Police Dept, No. 10 CIV. 9042 JPO, 2013 WL 3193418, at *4 (S.D.N.Y. June
25, 2013). Instead, courts determine only whether a jury could find that “officers of
reasonable competence could disagree’ on the legality of the defendant’s actions.”
Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)).
As to the first prong, Kirkpatrick argues that summary judgment is
inappropriate because special interrogatories must be submitted to a jury to establish
the underlying facts, for example, whether Plaintiff was detained at the time of the
use of force and whether Plaintiff posed a threat to officer safety. See ECF No. 45 at
5-7. Special interrogatories are only needed, however, “[i]f there is a dispute as to the
material facts.” Zellner, 494 F.3d at 368. “Once the jury has resolved any disputed
facts that are material to the qualified immunity issue, the ultimate determination
of whether the officer’s conduct was objectively reasonable is to be made by the
court.”). No genuine dispute exists here.
As discussed above, the summary judgment record clearly demonstrates that
Kirkpatrick violated Plaintiffs right to be free from the use of excessive force against
him. Kirkpatrick himself admitted he used excessive force. Viewing the facts in the
light depicted by the videotape, as the Court must in this case, no reasonable jury
could find that Plaintiff was resisting or posing a threat to officer safety to a degree
that would justify the force used by Kirkpatrick, assuming the jury could find

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Plaintiff was resisting or threatening officer safety at all, at the time Kirkpatrick
started striking him. Kirkpatrick’s attempt to create “metaphysical doubt” as □□

whether Plaintiff was detained or whether he posed a threat does not impact the
conclusion compelled by the largely undisputed facts, which overwhelmingly show
that excessive force was used in violation of Plaintiffs Fourteenth Amendment rights.
See Robinson, 781 F.3d at 44; Anderson, 477 U.S. 247-48; see also Jones v. Treubig,
963 F. 3d 214, 230 (2d Cir. 2020) Gssued June 26, 2020) (officer not entitled to
qualified immunity for administering a second tasing when plaintiff was “subdued
face down, arms spread”).
Turning to the second prong, no reasonable officer could believe that
Kirpatrick’s use of force was legal given the circumstances. It was clearly established,
well before the November 2020 incident, that it would violate the Fourteenth
Amendment to repeatedly punch a presentence detainee in the face while the
detainee was facing a wall with one arm pinned behind his back, after the detainee
was non-compliant with officers’ orders and attempted to pull away from an officer,
but had never raised his fists or attempted to strike an officer or otherwise make a
physical threat of harm. Compare, od. Ostroski v. Town of Southold, 443 F. Supp. 2d
325, 343 (E.D.N.Y. 2006) (“[A] reasonable officer should have known that repeatedly
striking a subdued suspect violates a clearly established constitutional right not to
be subjected to excessive force during arrest.”); Jones, 963 F.3d at 225 (“Before the
incident at issue here in April 2015, it was clearly established in this Circuit that it
is a Fourth Amendment violation for a police officer to use significant force against

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an arrestee who is no longer resisting and poses no threat to the safety of officers or
others.”); Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (denying
summary judgment to officer who allegedly shoved a handcuffed arrestee headfirst
into a police car, causing her to strike her head on a part of the car), with, e.g., Torres
v. Dennis, No. 10-CV-0803 JS AKT, 2013 WL 2898142, at *4 (E.D.N.Y. June 13, 2013)
(officer entitled to qualified immunity when he punched plaintiff and hit him with a
flashlight when plaintiff “had been actively resisting arrest and [was] essentially
putting up a physical fight with the officers”); Felix, 408 F. Supp. 3d at 311 (officer
entitled to qualified immunity for an “intentional head slam and chokehold” in
response to plaintiffs physical altercation with two officers in which they “were
evenly matched” and that posed a “potentially serious and imminent risk” to officer
safety while plaintiff was being arrested for “serious offenses, robbery and assault”).
There is no other way to describe Kirkpatrick’s use of force in this case except as
gratuitous and unreasonable.
Pierre-Antoine v. City of New York is particularly illustrative. No. 04 CIV. 6987
(GEL), 2006 WL 1292076 (S.D.N.Y. May 9, 2006). The district court concluded that
an officer was not entitled to qualified immunity at summary judgment because if
plaintiffs account was credited, “a reasonable officer would have known that
repeatedly punching, kicking, and stomping on [plaintiff] violated a clearly
established constitutional right not to be subjected to excessive force during arrest.”
Id. at *6. The court reasoned:
The fact that [plaintiff] carried a cane sword does not alter this
conclusion, primarily because defendant [officer] had already taken the

15

cane sword from [plaintiff] by the time the struggle began. Nor 1s
[plaintiff's] conceded resistance to arrest conclusive. Given that several
officers were present and available to assist with the arrest[.]
[Plaintiffs] resistance (which on his account was modest and
largely passive) should not have made his arrest so difficult that
reasonable officers would believe that the law permitted them to
repeatedly punch, kick and stomp on plaintiff in the manner and to the
extent that plaintiff alleges, especially considering that [plaintiff] (1)
was already pinned face down on the ground when the officers were
striking him, (2) repeatedly told them that he was disabled and in pain,
and (3) did not attempt at any point to strike the officers back.
Id. Here, where Plaintiffis the movant at summary judgment, the relevant facts are
largely undisputed, and the facts must be viewed in the light depicted by the Video,
Kirkpatrick is, as a matter of law, not entitled to qualified immunity. It was clearly
established that any resistance that may have been occurring after Gertin engaged
Plaintiff—which was not notable enough to by detected by the Video—would not have
made his handcuffing so difficult that reasonable officers would believe that the law
permitted them to repeatedly punch Plaintiff in the head in the manner and to the
extent that 1s depicted on the Video, especially given that Plaintiff (1) was already
pinned up against the wall with one arm restrained behind him, (2) had committed
only the offense of swearing at the officers and being non-compliant with their
directive to return to his cell, (8) did not attempt at any point to become physically
aggressive with the officers who were “much larger” than him, and (4) given that a
third officer was close by as well.
Within the facts of this case itself, every supervisory entity to weigh in on the
matter concluded that Kirkpatrick’s behavior was illegal. It is undisputed that
Kirkpatrick’s direct supervisor concluded this “immediately” after viewing the Video.

16

Additionally, the Video not only clearly shows the incident, but shows that
Kirkpatrick’s response was orders of magnitude different from the other three people
witnessing Gertin’s interaction with Plaintiff. The other officer responded to Gertin
pinning Plaintiffs arm behind his back by getting up and briskly walking across the
REC Annex to assist, and the two non-officers witnessing Gertin’s interaction with
Plaintiff started backing away at a non-urgent pace. Meanwhile, Kirpatrick ran over

- and immediately struck Plaintiff in the face, knocking both Plaintiff and Gertin to
the side, and then struck Plaintiff again three more times in rapid succession. No
reasonable officer could believe that such force comported with Plaintiffs
constitutional rights
CONCLUSION
For the forgoing reasons, Plaintiffs motion for partial summary judgment is
GRANTED because he has demonstrated that there are no genuine disputes of fact
and that he is entitled to judgment as a matter of law on his claims of excessive force
and state law assault and battery against Kirkpatrick.
ORDER
IT IS HEREBY ORDERED that Plaintiffs motion for partial summary
judgment, ECF No. 42, is GRANTED; and it is further □
ORDERED that the Clerk of Court shall enter judgment against Defendant
Kirkpatrick on Plaintiffs claim of excessive force under 42 U.S.C. § 1983 and his
claim of assault and battery under New York state law.
SO ORDERED.

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Dated: July , 2025
Rochester, New York

HON. Lage A. VACCA
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11088886. Public record. Not legal advice.