The opinion
USDC SDNY
UNITED STATES DISTRICT COURT DOCUMENT
ELECTRONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DOC #:
DATE FILED: 2/17/2026
CLEON CLARK
Plaintiff, No. 23-cv-3271 (NSR)
-against- OPINION & ORDER
HUTCHINSON, et al.,
Defendants.
NELSON S. ROMAN, United States District Judge:
Pro se Plaintiff Cleon Clark (‘Plaintiff’) brings this action under 42 U.S.C § 1983 against
Defendants the City of Mount Vernon, Lieutenant Gregory Addison, Sergeant Elio T. Rucci, and
Police Officers Michael Hutchins, Joseph C. Saetta, Nicholas Kikis, Derek A. Williams, Charles
A. Rizzo, David M. Culbert, Stefano R. Silvestri, Julien N. Martinez, Michael Timpone, Lytel
Martin, and Jonathan Gibson-Price (collectively, the “Defendants” or “Defendant Officers”)./
Plaintiff alleges that Defendants violated his First Amendment rights by retaliating against him
and his Fourth Amendment rights through false arrest and the use of excessive force in connection
with two unrelated arrests on August 20, 2021, and July 8, 2022.” Presently before the Court is
Defendants’ motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF
No. 100.)
' Although Plaintiff is a pro se litigant, he received assistance from the City Bar Justice Pro Se Legal Assistance Project
in the Southern District of New York in preparing his opposition papers. (ECF No. 103, “Pl. Opp.,” at 1, n.1.)
2 The First Amended Complaint (“FAC”) alleges violations of the First, Fourth, Fifth, and Sixth Amendments. (Defs.’
Ex. Aat 5.) Plaintiff now appears to have abandoned his Fifth and Sixth Amendment claims, as his opposition papers
state that he brings only First and Fourth Amendment claims. (Pl. Opp. at 1.) When a party “does not address [a]
claim in either his memorandum or affidavits and exhibits submitted in opposition to Defendants’ motion for summary
judgment, the Court deems him to have abandoned this claim.” Turner y. Sidorowicz, 2016 WL 3938344, at *4
(S.D.N.Y. July 18, 2016) (citing Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014)). The Court deems the
Fifth and Sixth Amendment claims abandoned and will address only Plaintiff’s First and Fourth Amendment claims.
For the following reasons, Defendants’ motion for summary judgment is GRANTED in
part and DENIED in part.
FACTUAL BACKGROUND
Plaintiff and Defendants submitted briefs, statements of material facts pursuant to Local
Rule 56.1, responses to the opposing statements of material facts, and the record and exhibits from
discovery in the instant proceeding, which reflect the following factual background.
I. August 20, 2021 Arrest
At approximately 7:15 p.m. on August 20, 2021, Plaintiff Cleon Clark was walking along
4th Avenue in the City of Mount Vernon, New York. (Defs.’ Ex. B, “Pl. Dep.,” Tr. 22:4–10.) At
that time, Defendant Officers Michael Hutchins, Nicholas Kikis, and Joseph Saetta were
conducting a traffic stop in front of 133 South 4th Avenue. (ECF No. 102, Ex. A, “Defs.’ 56.1,” ¶
9.) This, and the following events, were recorded. (Defs.’ Ex. J.) Plaintiff stopped on the sidewalk
to observe the officers conducting the stop. (Defs.’ 56.1 ¶ 10.) None of the officers were equipped
with body-worn cameras. (Id. ¶ 11.) Plaintiff was not affiliated with the vehicle subject to the
stop. (Id. ¶ 12.)
Shortly after arriving, Plaintiff dropped his belongings on the sidewalk and stepped toward
the stopped vehicle. (Id. ¶ 13.) Plaintiff, however, remained on the sidewalk. (Defs.’ Ex. J.)
Plaintiff also began speaking with Officer Saetta about the traffic stop. (Defs.’ 56.1 ¶ 16.) Officer
Hutchins recognized Plaintiff from prior encounters in the community and knew him to be an
individual who had previously been arrested by the Mount Vernon Police Department (“MVPD”).
(Id. ¶¶ 14–15.) Officer Hutchins was also aware that Plaintiff had a history of mental health
conditions. (Id. ¶ 14.) The MVPD incident report states that at least one officer felt unsafe due to
Plaintiff’s proximity to the traffic stop. (Defs.’ Ex. F.) As a result, Officer Hutchins joined Officer
Saetta, began speaking with Plaintiff, and directed him to step away from the vehicle. (Defs.’ 56.1
¶ 21.) Officer Kikis subsequently joined the interaction. (Defs.’ Ex. J.)
Officer Hutchins directed Plaintiff to step away from the vehicle three times. (Defs.’ 56.1
¶ 22.) Plaintiff did not comply. (Id.) Up to that point, Plaintiff had remained in the same location
with his arms crossed. (Defs.’ Ex. J.) Due to Plaintiff’s noncompliance, Officer Hutchins placed
both hands on Plaintiff’s upper body and pushed him backward. (Id.) Plaintiff tripped over his
own belongings but did not fall to the ground. (Id.) Officer Hutchins then walked toward Plaintiff.
(Id.) In response, Plaintiff began yelling at Officer Hutchins asking why he was pushed. (Id.; Pl.
Aff. ¶¶ 26, 34.) Plaintiff also attempted to confront Officer Hutchins but was stopped by Officer
Kikis, who positioned himself between the two. (Defs.’ Ex. J.) Although Officer Kikis stood
between Plaintiff and Officer Hutchins, both Plaintiff and Officer Hutchins appeared to be verbally
confronting one another. (Id.) Officer Hutchins also attempted to confront Plaintiff but was
impeded by Officer Kikis, who remained positioned between them. (Id.) Throughout this
encounter, Plaintiff periodically had his hands clenched into fists. (Id.)
Plaintiff eventually positioned himself directly in front of the vehicle that had initially been
stopped. (Id.) Officers Hutchins, Kikis, and Saetta were on the sidewalk and remained in front of
Plaintiff. (Id.) Although Officer Kikis attempted to defuse the situation by speaking with Plaintiff,
Plaintiff nevertheless attempted to approach Officer Hutchins. (Id.) At that point, Plaintiff was
standing on the sidewalk with his back against the storefronts. (Id.) Officers Hutchins, Kikis, and
Saetta continued speaking with Plaintiff in an effort to defuse the situation. (Id.) The officers also
directed Plaintiff to step back and to leave the area. (Defs.’ 56.1 ¶ 34.) Plaintiff did not comply
and appeared to raise his voice while gesturing his hands at Officer Hutchins. (Defs.’ Ex. J.)
The officers assert that Plaintiff again balled his fists and flexed his arms toward Officer
Hutchins. (Defs.’ 56.1 ¶ 36.) As a result, Officer Hutchins pushed Plaintiff against the storefront
wall in order to place him under arrest. (Defs.’ Ex. J.) Officers Kikis and Saetta assisted once
Plaintiff was against the wall. (Id.) Plaintiff appeared to struggle against the wall, which led all
three officers to push him to the ground. (Id.) Plaintiff was placed face down on his stomach.
(Id.) At that point, it is unclear from the video recording what was occurring because bystanders
began standing in front of the parties. (Id.) The officers assert that Plaintiff continued to resist
arrest during this time. (Defs.’ 56.1 ¶¶ 42–43.) Plaintiff disputes this account. (Pl. Dep. Tr. 29:19–
21.) Plaintiff further alleges that he “felt something” while being arrested, suggesting that he was
beaten by the officers. (Id. Tr. 30:17–20.) Each officer submitted a “use of force” report describing
the force employed during the incident. (Defs.’ Exs. G–I.) Other than noting that the officers had
to grab and restrict Plaintiff’s arms to handcuff him, none of the reports indicated that the officers
struck Plaintiff. (Id.) Plaintiff also could not recall whether he was struck during the interaction.
(Pl. Dep. Tr. 30:17–20.) Plaintiff nevertheless alleges that his handcuffs were too tight and that
the officers refused to loosen them. (Id. Tr. 31:4–7.)
Following his arrest, Plaintiff was transported to the MVPD precinct. (Defs.’ 56.1 ¶ 48.)
While at the precinct, Plaintiff complained of pain in his right arm, and an ambulance was called
to the cellblock. (Id. ¶ 49.) Plaintiff later testified that, as a result of his arrest, he sustained a
scrape on his head, a scratch on his ear, and pain in his back. (Pl. Dep. Tr. 33:12, 35:11–16, 36:2–
3.) Plaintiff’s arrest photographs also show a laceration on his left elbow and slight swelling on
his right forearm. (Defs.’ Ex. Q at 2, 6.) Once the ambulance arrived, Plaintiff refused medical
attention. (Defs.’ 56.1 ¶ 50.) Plaintiff also claims to have suffered depression due to his arrest,
though he did not seek mental health treatment. (Id. ¶¶ 103–104.)
Officer Hutchins thereafter charged Plaintiff with obstruction of governmental
administration (“OGA”) (N.Y. Penal Law § 195.05), disorderly conduct (N.Y. Penal Law §
240.20(1)), and resisting arrest (N.Y. Penal Law § 205.30). (Id. ¶ 51.) Plaintiff’s charges were
subsequently resolved by an adjournment in contemplation of dismissal. (Id. ¶ 53.) Plaintiff was
ultimately released from MVPD custody after approximately 45 minutes of arriving at the precinct.
(Id. ¶ 106.)
II. July 8, 2022 Arrest
Almost a year later, Plaintiff was again arrested by the MVPD. This arrest was also
recorded. (See Defs.’ Exs. W, X, AA.) At approximately 8:35 a.m., Plaintiff was present at an
AutoZone store located at 1 Pathmark Plaza in Mount Vernon, New York. (Defs.’ 56.1 ¶ 108;
Defs.’ Ex. T.) Plaintiff arrived at the store on a motorized scooter. (Defs.’ 56.1 ¶ 109.) Plaintiff
alleges that he was purchasing spray paint. (Pl. Dep. Tr. 40:2–5.) After leaving the store, Plaintiff
drove off on his motorized scooter. (Defs.’ 56.1 ¶ 110.)
Shortly thereafter, Ms. Rosa Vives, the store’s security guard, called 911 reporting that a
man had stolen an item from the store. (Defs.’ Ex. U.) Ms. Vives described the suspect as a Black
male wearing a black hat, white pants with blue writing, a blue polo shirt, and having a bike outside
the store. (Id.) Officer Julien Martinez was dispatched to the AutoZone store. (Defs.’ 56.1 ¶¶
111–12.) He was not issued with a body-worn camera. (Id.) Upon arrival, Officer Martinez spoke
with Ms. Vives, who confirmed her earlier description and stated that the suspect had placed an
item in a bag before leaving. (Id. ¶ 116.) At the same time, Officer Michael Timpone was
dispatched to the area of South 3rd Avenue and East 3rd Street to canvass for the suspect in
connection with the alleged larceny. (Id. ¶ 117.) Officer Timpone was informed that the suspect
was a Black male with a cast on his arm. (Id.)
While Officer Martinez was speaking with Ms. Vives, she observed the suspect—
Plaintiff—leaving the parking lot on his motorized scooter. (Id. ¶ 118.) Plaintiff was not wearing
a helmet. (Id. ¶ 119.) Officer Martinez returned to his MVPD vehicle, activated his emergency
lights and sirens, and attempted to stop Plaintiff. (Id. ¶ 120.) Plaintiff did not comply, later
testifying that he did not believe the police were attempting to pull him over. (Pl. Dep. Tr. 42:7–
13.) The parties dispute whether Plaintiff made illegal U-turns, rode against oncoming traffic, or
operated his scooter on the sidewalk. (Defs.’ 56.1 ¶¶ 122–123.) Officer Martinez nonetheless
pursued Plaintiff over several streets and blocks. (Id.)
During the pursuit, Officer Timpone received a radio transmission that the suspect was
continuing northbound on South 2nd Avenue on a scooter or motorbike. (Id. ¶ 124.) Officer
Timpone then observed an MVPD vehicle pursuing a dark-colored motorized scooter operated by
a Black male wearing a dark shirt and a white cast on his arm. (Id.) Plaintiff drove into the parking
lot of 1 Bogopo Plaza and exited onto East 2nd Street. (Id. ¶ 125.) Officer Timpone pursued
Plaintiff for several blocks and followed him to the entrance of the “Food Bazaar,” where Plaintiff
drove toward him. (Id. ¶ 126.) Officer Timpone made a sharp left turn to avoid a collision. (Id. ¶
127.) He then continued toward the rear entrance of the Food Bazaar and observed Plaintiff speed
out onto southbound 3rd Avenue. (Id. ¶ 128.)
At some point, Plaintiff slowed his speed, prompting Officer Martinez to exit his vehicle
and pursue Plaintiff on foot. (Id. ¶ 129.) While proceeding northbound on South 3rd Avenue,
Plaintiff struck Officer Timpone’s vehicle. (Id. ¶ 130.) Officer Martinez then grabbed Plaintiff’s
upper body in an attempt to remove him from the scooter. (Defs.’ Ex. W.) Officer Timpone exited
his vehicle and assisted in removing Plaintiff from the scooter. (Id.) Officer Relvas and Probation
Officer Anderson arrived and provided additional assistance. (Id.) The officers were able to
remove Plaintiff from the scooter; although the scooter fell, Plaintiff remained standing. (Id.)
After Plaintiff’s noncompliance, all four officers pushed him onto Officer Timpone’s vehicle
before lifting and placing him on the ground on his stomach. (Defs.’ Ex. X.) The officers then
surrounded Plaintiff to restrain him. (Id.)
Although Plaintiff’s arrest was recorded, his actions once on the ground are obscured by
the surrounding officers. (Id.) The video recording nonetheless depicts Officers Martinez and
Timpone struggling to control Plaintiff’s right arm. (Id.) According to Officers Martinez and
Timpone, Plaintiff began resisting arrest while on the ground by placing his right arm underneath
his body and tightening his muscles. (Defs.’ 56.1 ¶¶ 135–136.) As a result, Officer Martinez struck
Plaintiff once on the left side of his face with a closed fist. (Id. ¶ 137; Defs.’ Ex. X.) The recording
of Plaintiff’s arrest shows that shortly after Officer Martinez struck Plaintiff, the officers appear to
reposition Plaintiff’s right arm. (Defs.’ Ex. X.) Around this time, an unidentified civilian
approached and began recording the arrest from a different vantage point. (Defs.’ Ex. AA.) That
video depicted Officer Martinez holding down Plaintiff’s upper back and neck while the remaining
officers restrained Plaintiff’s arms and legs. (Id.) Plaintiff was eventually handcuffed—only on
his right arm due to a cast on his left arm—and placed in leg shackles. (Defs.’ 56.1 ¶¶ 142–43.)
Plaintiff was subsequently transported to a hospital, where he received treatment for
injuries allegedly sustained during the arrest. (Id. ¶¶ 144–45.) He was then transferred to the
MVPD precinct, where officers learned that his driver’s license was suspended and that the
motorized scooter was not registered. (Id. ¶¶ 145–46.) Lieutenant Gregory Addison later arrived
and interrogated Plaintiff. (Id. ¶ 150.) Lieutenant Addison also photographed Plaintiff’s head
where Plaintiff claimed he had been punched and noted no visible injuries. (Id. ¶¶ 151–52.)
Lieutenant Addison informed Plaintiff that he was being charged with reckless driving (N.Y. Penal
Law § 275.30) and reckless endangerment (N.Y. Penal Law § 120.20). (Id. ¶¶ 154–55.)
Following the arrest, Officer Timpone transported Plaintiff to Montefiore Hospital for
further medical evaluation. (Id. ¶ 156.) While at the hospital, Plaintiff complained of pain to his
head and wrist. (Id. ¶¶ 171, 182.) Plaintiff underwent a CT scan and X-rays, both of which were
normal. (Id. ¶ 173.) Plaintiff was discharged without further treatment, other than being prescribed
a muscle relaxant. (Id. ¶¶ 183, 186.) Plaintiff’s charges from the July 8, 2022 arrest were
eventually resolved by an adjournment in contemplation of dismissal. (Id. ¶ 179.)
PROCEDURAL HISTORY
On April 18, 2023, Plaintiff commenced this action against Defendants. (ECF No. 1.)
Defendants filed an Answer on August 1, 2023. (ECF No. 18.) During the course of discovery,
Plaintiff filed the FAC on June 18, 2024. (ECF No. 37.) On August 7, 2025, Defendants moved
for summary judgment, submitting a memorandum of law in support of the motion along with a
Local Rule 56.1 statement of undisputed material facts. (ECF Nos. 100–102.) Plaintiff opposed
the motion and filed a counterstatement to Defendants’ Rule 56.1 statement. (ECF No. 103.)
Plaintiff also filed a supplement Local Rule 56.1 statement of material facts.3 (Id.) Defendants
2F
then filed a reply memorandum in further support of their motion and a reply to Plaintiff’s
supplement Rule 56.1 statement. (ECF No. 104.)
LEGAL STANDARD
3 In addition to responding to Defendants’ Rule 56.1 statement, Plaintiff submitted a “[s]upplement” 56.1 statement
purporting to set forth material facts. (ECF No. 103, Ex. 2.) Under Local Rule 56.1, a non-moving party may respond
to the moving party’s numbered paragraphs and, if necessary, include paragraphs identifying genuinely disputed
facts—but may not file a separate, free-standing statement of facts. Emanuel v. Gap, Inc., 2022 WL 3084317, at *2
(S.D.N.Y. Aug. 3, 2022) (citing Estevez v. Berkeley Coll., 2021 WL 3115452, at *11 (S.D.N.Y. July 19, 2021)).
Accordingly, the Court will not consider Plaintiff’s supplemental Rule 56.1 statement.
Summary judgment is appropriate “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). The moving party bears the initial burden of pointing to evidence in the record, inclusive
of deposition testimony, documents, affidavits, and declarations, id. at 56(c)(1)(A), “which it
believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party may support an assertion that there is no genuine
dispute of a particular fact by “showing… that [the] adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its
preliminary burden, the onus then shifts to the nonmoving party to raise the existence of a genuine
issue of material fact. Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
A genuine dispute of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Courts must “draw
all rational inferences in the non-movant’s favor” while reviewing the record. Kirkland v.
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson, 477 U.S. at 248). Importantly,
“the judge’s function is not himself to weigh the evidence and determine the truth of the matter,”
nor is it to determine a witness’s credibility. Anderson, 477 U.S. at 249; see also Jeffreys v. City
of New York, 426 F.3d 549, 553 (2d Cir. 2005) (noting that “[a]ssessments of credibility and choices
between conflicting versions of the events are matters for the jury, not for the court on summary
judgment”). Rather, in answering the primary inquiry of “whether there is the need for a trial,” the
court must determine “whether a fair-minded jury could return a verdict for the plaintiff [or non-
moving party] on the evidence presented.” Anderson, 477 U.S. at 250, 252. Summary judgment
should be granted when a party “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex, 477 U.S. at 322.
When a pro se litigant is involved, the same summary judgment standards apply. Williams
v. Savory, 87 F. Supp. 3d 437, 451 (S.D.N.Y. 2015). However, “the pro se litigant should be given
special latitude in responding to a summary judgment motion.” Id. (quoting Knowles v. N.Y City
Dep’t of Corr., 904 F. Supp. 217, 220 (S.D.N.Y. 1995)); see also Graham v. Lewinski, 848 F.2d
342, 344 (2d Cir. 1988) (“[S]pecial solicitude should be afforded pro se litigants generally, when
confronted with motions for summary judgment.”).
DISCUSSION
Defendants move for summary judgment on several grounds: (1) Plaintiff has abandoned
claims against certain Defendants; (2) Plaintiff has abandoned certain potential New York State
law claims; (3) Plaintiff cannot establish a genuine dispute of material fact as to his Fourth
Amendment false arrest and excessive force claims; (4) Defendants are entitled to qualified
immunity in their individual capacities; and (5) Plaintiff’s First Amendment retaliation claim is
untimely. (See generally ECF No. 102, “Defs.’ Mem.”; ECF No. 104, “Defs.’ Reply.”). The Court
addresses each argument in turn.
I. Threshold Matters
A. Lack of Personal Involvement of Certain Defendants
Defendants argue that all claims asserted against Defendant Officers Williams, Rizzo,
Culbert, Silvestri, Rucci, Martin, Gibson-Price, and Addison must be dismissed because Plaintiff
does not contest their lack of personal participation in the events of August 20, 2021, and July 8,
2022. (Defs.’ Reply at 1.) When seeking monetary damages under § 1983, as Plaintiff does here,
it is a “prerequisite” that he demonstrate the “personal involvement of defendants in [the] alleged
constitutional deprivations.” Kirby v. Cruz, 2025 WL 2886488, at *1 (2d Cir. Oct. 10, 2025)
(quoting Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)).
Plaintiff’s opposition acknowledges that there is no genuine dispute of material fact regarding the
personal participation of these Defendants. (Pl. Opp. at 30.) The Court therefore dismisses all
claims asserted against them.
B. Abandonment of Potential New York State Law Claims
Defendants next argue that any potential New York State law claim—i.e., false arrest,
assault, battery, or any tort-based claim—should be dismissed as untimely. (Defs.’ Mem. at 10.)
Plaintiff failed to respond to this argument. (See generally Pl. Opp.) For this reason, Defendants
contend that any such claims should be dismissed as abandoned. (Defs.’ Reply at 1.)
Courts deem a “claim abandoned when a party moves for summary judgment on one
ground and the party opposing summary judgment fails to address the argument in any way.”
Ragland v. City of New York, 2022 WL 580923, at *7 (S.D.N.Y. Feb. 25, 2022). This principle
applies equally in the pro se context. See, e.g., Daley v. Cablevision Sys. Corp., 2016 WL 880203,
at *8 (S.D.N.Y. Mar. 7, 2016) (“a pro se plaintiff who does not address a moving party’s argument
regarding a claim will be deemed to have abandoned that claim”), aff’d, 675 F. App’x 97 (2d Cir.
2017); Oparaji v. Atl. Container Line, 2008 WL 4054412, at *12 (S.D.N.Y. Aug. 28, 2008) (same),
aff’d, 363 F. App’x 778 (2d Cir. 2010).
Because Plaintiff’s opposition fails to respond to Defendants’ argument that any New York
State law claims are time-barred, those claims are deemed abandoned. Although the Court
acknowledges Plaintiff’s pro se status, his opposition was nevertheless prepared with the assistance
of the Federal Pro Se Legal Assistance Project. (Pl. Opp. at 1, n.1.) Plaintiff’s pro se status does
not excuse his failure to respond, and any New York State law claims are therefore dismissed as
abandoned.
C. Municipal Liability
Defendants notably do not move to dismiss the claims asserted against the City of Mount
Vernon. (See generally Defs.’ Mem.) Nor does Plaintiff advance any argument concerning the
City of Mount Vernon in opposition. (See generally Pl. Opp.) The Court nevertheless examines
the City of Mount Vernon’s potential liability in this action.
A municipality such as the City of Mount Vernon may be sued directly for constitutional
violations under § 1983. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690
(1978). A municipality, however, cannot be held liable for acts of “its employees below the policy-
making level solely upon the basis of respondeat superior.” Byrd v. City of New York, 2018 WL
259316, at *12 (S.D.N.Y. Jan. 2, 2018); see also Johnson v. N.Y.C. Police Dep’t, 2016 WL 3277261
at *2 (2d Cir. June 8, 2016); Littlejohn v. City of N.Y., 795 F.3d 297, 314–15 (2d Cir. 2015). Rather,
in order to hold a municipality liable under § 1983 for the unconstitutional acts of its employees,
the plaintiff must plead and prove that the violation of constitutional rights resulted from a
municipal custom or policy. See Connick v. Thompson, 563 U.S. 51, 60 (2011); Pembaur v. City
of Cincinnati, 475 U.S. 469, 478–83 (1986); Johnson, 2016 WL 3277261 at *2; Littlejohn, 795
F.3d at 314–15.
Despite naming the City of Mount Vernon as a defendant, Plaintiff fails to plead or adduce
any evidence of a municipal custom or policy giving rise to the alleged harm, either in the FAC or
in his opposition. (See generally Defs.’ Ex. A; Pl. Opp.) Instead, Plaintiff relies solely on the
actions of the Officer Defendants. (Id.) This is insufficient to sustain municipal liability—even if
a reasonable jury could conclude that an individual defendant violated Plaintiff’s constitutional
rights. “Proof of a single incident of unconstitutional activity is not sufficient to impose liability
under Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy [that] can be attributed to a municipal policymaker.” Vasquez v.
Cnty. of Rockland, 2020 WL 883514, at *14 (S.D.N.Y. Feb. 24, 2020) (quoting City of Oklahoma
City v. Tuttle, 471 U.S. 808, 823–24 (1985)). The Court therefore dismisses all claims against the
City of Mount Vernon.
II. Fourth Amendment – False Arrest Claims
Defendants argue that Plaintiff’s false arrest claims fail because there was probable cause,
or at the very least arguable probable cause, for the arrests that occurred on August 20, 2021, and
July 8, 2022. (Defs.’ Mem. at 11.) In response, Plaintiff argues that a genuine issue of fact exists
as to whether there was probable cause with respect to the August 20, 2021 arrest only. (Pl. Opp.
at 27–29.) Because Plaintiff’s opposition addresses Defendants’ argument solely as to the August
20, 2021 arrest, Defendants further contend that Plaintiff has abandoned his false arrest claim
arising from the July 8, 2022 arrest. (Defs.’ Reply at 1.) The Court reviews each argument in turn.
A. August 20, 2021 Arrest
The Court first addresses Defendants’ argument that probable cause existed to arrest
Plaintiff on August 20, 2021. (Defs.’ Mem. at 12.) On that date, Plaintiff was arrested for OGA
(N.Y. Penal Law § 195.05), disorderly conduct (N.Y. Penal Law § 240.20(1)), and resisting arrest
(N.Y. Penal Law § 205.30). (Defs.’ Ex. F at 1.) The parties, however, appear to only focus on the
OGA and disorderly conduct charges. The Court thus only examines whether probable cause
existed for those two charges.
To establish a false arrest claim under § 1983, a plaintiff must show that (1) “the defendant
intended to confine [the plaintiff],” (2) “the plaintiff was conscious of the confinement,” (3) “the
plaintiff did not consent to the confinement,” and (4) “the confinement was not otherwise
privileged.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (internal quotation
marks omitted).
Probable cause serves as a complete defense to a claim of false arrest. Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996). An officer has probable cause to arrest when he possesses
“reasonably trustworthy information as to[ ] facts and circumstances that are 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.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). The relevant
inquiry is “whether the facts known by the arresting officer at the time of the arrest objectively
provided probable cause to arrest.” Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006) (citing
Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). There need not have been probable cause for the
specific charge invoked at the time of arrest; rather, probable cause to arrest for any offense is
sufficient. Ackerson, 702 F.3d at 20. Once a law enforcement officer has reasonable grounds for
believing that probable cause exists, the officer is not “required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest.” Ricciuti v. N.Y.C. Transit
Auth., 124 F.3d 123, 128 (2d Cir. 1997).
In the context of § 1983 false arrest claims, an arresting officer is entitled to qualified
immunity if there was “arguable probable cause” at the time of the arrest. Figueroa v. Mazza, 825
F.3d 89, 100 (2d Cir. 2016) (quoting Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013)).
Arguable probable cause exists where 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.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting
Zalaski, 723 F.3d at 390). This analysis turns on “the information possessed by the officer at the
time of the arrest,” rather than the officer’s “subjective intent, motives, or beliefs.” Id. (quoting
Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010)). Accordingly, an officer is entitled to qualified
immunity unless “‘no reasonably competent officer’ could have concluded, based on the facts
known at the time of arrest, that probable cause existed.” Figueroa, 825 F.3d at 100 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
i. Obstruction of Governmental Administration
The Court first examines whether Officers Hutchins, Kikis, and Saetta had probable cause
to arrest Plaintiff for OGA based on his refusal to leave the premises of the traffic stop. N.Y. Penal
Law § 195.05 provides that:
A person is guilty of obstructing governmental administration when he intentionally
obstructs, impairs or perverts the administration of law or other governmental
function or prevents or attempts to prevent a public servant from performing an
official function, by means of intimidation, physical force or interference, or by
means of any independently unlawful act.
Kass v. City of New York, 864 F.3d 200, 206–07 (2d Cir. 2017). An individual may be convicted
under this statute when: (1) a public servant is performing an official function; (2) the individual
prevents or attempts to prevent the performance of that function by interfering with it; and (3) the
individual acts intentionally. Id. (citing N.Y. Penal Law § 195.05). It appears, however, that courts
are divided as to whether a physical act—rather than a mere verbal act—is required to sustain a
conviction for OGA. For instance, the Second Circuit concluded that “purely verbal interference
may not satisfy the ‘physical component’ under Penal Law § 195.05.” Uzoukwu v. City of New
York, 805 F.3d 409, 414–15 (2d Cir. 2015). There, the court determined that the district court’s
jury instructions “invited the jury to find for the defendants on the false arrest claim by inaccurately
suggesting that they could find probable cause existed to arrest… for obstruction of governmental
administration solely because [the arrestee] refused to answer the questions of officers[.]” Id. at
418. Plaintiff relies on similar authority in his opposition. See Ekukpe v. Santiago, 823 F. App’x
25, 29 (2d Cir. 2020) (affirming the district court’s conclusion that an officer potentially lacked
probable cause to arrest where the arrestee “did not raise his voice, curse, or do anything outside
of ‘normal conversation,’” and where “[t]his testimony is supported by the surveillance video”).
Defendants, of course, disagree with this interpretation and cite authority to the contrary.
(Defs.’ Reply at 3.) Most notably, Defendants rely on Maradiaga v. City of New York, 2020 WL
5849465 (S.D.N.Y. Oct. 1, 2020), for the proposition that verbal conduct may suffice to establish
probable cause for OGA. There, the district court granted summary judgment in defendants’ favor,
concluding that officers had probable cause to arrest the plaintiffs after they refused repeated
directives to move away from a traffic safety checkpoint. Id. at *4. In Maradiaga, officers
established a checkpoint and were conducting traffic stops when plaintiffs approached and began
recording. Id. at *2. Plaintiffs stood less than five feet from a vehicle being searched, and one
officer’s attention was diverted from the checkpoint as a result. Id. The officer directed plaintiffs
to step back. Id. Although plaintiffs took a single step backward, they refused to move further
despite multiple warnings. Id. at *2–3. After one plaintiff handed a flyer to an occupant of the
vehicle being searched, officers again directed plaintiffs to move back and warned that they were
creating a “dangerous situation.” Id. at *3. When plaintiffs continued to refuse, officers arrested
them for OGA. Id. The district court ultimately concluded that no genuine issue of material fact
existed because “Plaintiffs’ defiant actions… presented sufficient probable cause for their arrest
for… OGA.” Id. at *4.
The issue before the Court is whether Plaintiff intentionally interfered with Officers
Hutchins, Kikis, and Saetta in the performance of the traffic stop. Upon arriving at the scene,
Plaintiff remained on the sidewalk but stood only feet away from the officers and the vehicle
subject to the traffic stop. (Defs.’ Ex. J.) Although other pedestrians were present on the sidewalk
observing the traffic stop, Plaintiff remained the closest individual to the vehicle. (Id.) Defendants
contend that Plaintiff failed to leave the officers’ zone of safety and diverted their attention from
the traffic stop. (Defs.’ Mem. at 13.) The MVPD incident report documenting Plaintiff’s arrest
reflects that the Officer Defendants felt unsafe due to Plaintiff’s proximity. (Defs.’ Ex. F.) Officer
Hutchins—who was aware of Plaintiff’s prior interactions with law enforcement—directed
Plaintiff several times to step away from the vehicle. (Defs.’ Ex. J.) Plaintiff refused to comply.
(Id.) Plaintiff characterizes his refusal as a form of “silent dissent.” (Pl. Opp. at 4.) Plaintiff also
admits that he was, in fact, “decid[ing] to ignore [Officer] Hutchins.” (Pl. Aff. ¶ 19.)
While the Court does not condone Officer Hutchins’s actions—who, for reasons unclear,
appeared to attempt to provoke Plaintiff before being interrupted by another officer—the Court
nonetheless finds Maradiaga persuasive. The officers were conducting a traffic stop, which is
“especially fraught with danger to police officers.” Maradiaga, 2020 WL 5849465, at *4 (quoting
Arizona v. Johnson, 555 U.S. 323, 330 (2009)). Although Plaintiff remained on the sidewalk while
observing the traffic stop, his “presence created a security risk for officers conducting the vehicle
checkpoint, and [he] did not comply with numerous directives to move to a safe distance.” Id.
Plaintiff created such a risk because Officer Hutchins recognized that Plaintiff had been previously
arrested by the MVPD and that he suffered from certain mental health conditions. (Defs.’ Ex. C ¶
6.) Plaintiff does not dispute this. (Defs.’ 56.1 ¶ 14.) By “congregating mere feet from the stopped
vehicle[,]” and refusing repeated directives to move, Plaintiff “created a distraction for officers, or
at the very least, presented an additional unknown factor to officers who were already trying to
assess and minimize other potentially emergent safety concerns with the checkpoint.” Maradiaga,
2020 WL 5849465, at *4. The Court does acknowledge that Plaintiff submits an affirmation stating
that he was only observing the traffic stop because Officer Hutchins was engaging in unlawful
conduct. (Pl. Aff. ¶ 10.) However, “a pro se party’s bald assertions unsupported by evidence…
are insufficient to overcome a motion for summary judgment.” Collier v. City of Mount Vernon,
2024 WL 4043135, at *7 (S.D.N.Y. Sept. 4, 2024). Plaintiff’s defiance was not a “silent dissent”—
“inappropriate or disruptive conduct at the scene of the performance of an official function” can
support a charge of OGA, “even if there is no physical force involved.” Wheeler v. Artola, 852 F.
App’x 589, 591 (2d Cir. 2021) (quoting Willinger v. City of New Rochelle, 212 A.D.2d 526, 527
(1995)). The Court therefore concludes that probable cause existed to arrest Plaintiff for OGA.
ii. Disorderly Conduct
The Court next examines whether Officers Hutchins, Kikis, and Saetta had probable cause
to arrest Plaintiff for disorderly conduct. N.Y. Penal Law § 240.20(1) provides that “[a] person is
guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm,
or recklessly creating a risk thereof… [h]e engages in fighting or in violent, tumultuous or
threatening behavior.” Gonzalez v. Bronx Cnty. Hall of Just. Ct. Officer Mark Hirschman Shield
7421, 2017 WL 435829, at *10 (S.D.N.Y. Jan. 31, 2017).
There is no dispute that Plaintiff and Officer Hutchins engaged in a heated verbal exchange.
(Defs.’ Ex. J.) Nor is there a dispute that, after Officer Hutchins pushed Plaintiff when he refused
to move away from the vehicle subject to the traffic stop, Plaintiff attempted to charge at Officer
Hutchins, balled his fists, and flexed his arms in Officer Hutchins’ direction. (Id.) Plaintiff
contends that his conduct constituted self-defense. (Pl. Opp. at 29.) Plaintiff’s account, however,
is “blatantly contradicted by documentary evidence,” and the Court “need not adopt wholly self-
serving testimony contradicted by the objective evidence in the case.” Carzoglio v. Paul, 2024
WL 776031, at *6 (S.D.N.Y. Feb. 26, 2024). Although Officer Hutchins did push Plaintiff, the
push was not forceful, and Plaintiff did not fall to the ground. (Defs.’ Ex. J.) The video recording
further demonstrates that Plaintiff aggressively attempted to charge Officer Hutchins and would
have done so but for Officer Kikis’ intervention. (Id.) Moreover, this confrontation could have
been wholly avoided had Plaintiff stepped away from the vehicle subject to the traffic stop as
directed several times. Consequently, the Court concludes that Officers Hutchins, Kikis, and
Saetta had sufficient probable cause to arrest Plaintiff for disorderly conduct, and as a result, the
Court grants Defendants’ motion for summary judgment as to Plaintiff’s false arrest claims arising
from the August 20, 2021 incident.
B. July 8, 2022 Arrest
The Court next addresses Defendants’ abandonment argument with respect to the July 8,
2022 arrest. As the Court has already noted, a non-moving party’s claim is considered abandoned
when the party fails to address a moving party’s argument in any way. See Ragland, 2022 WL
580923, at *7. This principle applies even when the non-moving party is proceeding pro se. See
Daley, 2016 WL 880203, at *8; Oparaji, 2008 WL 4054412, at *12. Although Plaintiff
commenced this action as a pro se litigant, his opposition papers were prepared with the assistance
of the Federal Pro Se Legal Assistance Project. (Pl. Opp. at 1, n.1.) Because Plaintiff failed to
address any of Defendants’ arguments that probable cause existed for his arrest on July 8, 2022,
the Court deems Plaintiff’s false arrest claim arising from that arrest abandoned.
III. Fourth Amendment – Excessive Force Claims
Defendants likewise argue that Plaintiff’s excessive force claims fail because the level of
force used by the Defendant Officers on August 20, 2021, and July 8, 2022, was objectively
reasonable in response to Plaintiff’s physical resistance. (Defs.’ Mem. at 20.)
Excessive force claims “are properly analyzed under the Fourth Amendment’s objective
reasonableness standard.” Shamir v. City of New York, 804 F.3d 553, 556 (2d Cir. 2015) (internal
quotations omitted). A police officer’s use of force is excessive “if it is objectively unreasonable
‘in light of the facts and circumstances confronting them, without regard to their underlying intent
or motivation.’” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham
v. Connor, 490 U.S. 386, 397 (1989)). Factors relevant to this inquiry include: “the need for the
application of force, the relationship between the need and the amount of force that was used, the
extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing harm.” Figueroa, 825
F.3d at 105 (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251–52 (2d Cir.
2001)).
The “‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Brown v. City of
New York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham, 490 U.S. at 397). “A court’s role in
considering excessive force claims is to determine whether a jury, instructed as to the relevant
factors, could reasonably find that the force used was excessive.” Id. at 103. “[I]t is… well
established that not every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates a [plaintiff’s] constitutional rights.” Kayo v. Mertz, 531 F. Supp. 3d
774, 797 (S.D.N.Y. 2021) (quoting Mesa v. City of New York, 2013 WL 31002, at *18 (S.D.N.Y.
Jan. 3, 2013)). However, “[i]t is the force used, not the injuries caused, which must be determined
to be de minimis as a matter of law.” Campbell v. City of New York, 2010 WL 2720589, at *8
(S.D.N.Y. June 30, 2010)).
Qualified immunity nevertheless shields officers from liability unless their conduct
violated “clearly established statutory or constitutional rights of which a reasonable person would
have known.” Chamberlain Est. of Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d
Cir. 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome qualified
immunity, “[t]he contours of the right must be sufficiently clear” at the time of the violation “that
a reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Because “[u]se of excessive force is an area of the law in
which the result depends very much on the facts of each case… officers are entitled to qualified
immunity unless existing precedent squarely governs the specific facts at issue.” Kisela v. Hughes,
584 U.S. 100, 104 (2018) (per curiam) (internal quotation marks and citation omitted).
A. August 20, 2021 Arrest
i. Officer Hutchins Pushing Plaintiff
Beginning with the August 20, 2021 incident, Plaintiff first alleges that Officer Hutchins
used excessive force when pushing him. (Pl. Opp at 15–18.) Upon reviewing the video recording,
however, Officer Hutchins did not aggressively push Plaintiff. (Defs.’ Ex. J.) Nor did Plaintiff
fall and injure himself. (Id.) Numerous courts have likewise concluded that pushing a
noncompliant individual without causing injury does not constitute excessive force. See, e.g.,
Figueroa, 825 F.3d at 105 (affirming directed verdict for defendant officers who “push[ed]”
resisting detainee along without causing injury); Donohue v. Marsh, 2022 WL 4111025, at *6
(E.D.N.Y. Sept. 8, 2022) (granting summary judgment where defendant officer pushed plaintiff
twice and caused no injury); Rodriguez v. Vill. of Ossining, 918 F. Supp. 2d 230, 242 (S.D.N.Y.
2013) (granting summary judgement and acknowledging that “not every push or shove constitutes
excessive force”). Moreover, Officer Hutchins “had probable cause to arrest Plaintiff, such that
the use of some force was reasonable.” Rodriguez, 918 F. Supp. 2d at 242. Although Officer
Hutchins could and should have conducted himself in a better manner, the Court does not deem
his push of Plaintiff excessive.
ii. Officers Hutchins, Kikis, and Saetta Arresting Plaintiff
Plaintiff next alleges that Officers Hutchins, Kikis, and Saetta used excessive force by
pinning him against the wall and forcing him to the ground to effectuate his arrest. (Pl. Opp. at
11–15.) After Officer Hutchins pushed him, Plaintiff became aggressive, circling and charging at
Officer Hutchins with his hands balled into fists. (Defs.’ Ex. J.) Officer Hutchins acted no better
and did the same. (Id.) Both parties also verbally assaulted one another. (Id.) While Plaintiff had
his back to the storefronts along the sidewalk, he continued verbally assaulting Officer Hutchins
while slamming and pointing his forearm toward him. (Id.) According to Plaintiff, he was
demanding to know why he had been pushed. (Pl. Aff. ¶¶ 26, 34.) As Plaintiff began pointing at
Officer Hutchins, Officers Kikis and Saetta positioned themselves between them in an effort to
defuse the situation. (Defs.’ Ex. J.) Plaintiff continued to have his hands balled into fists. (Id.)
At this moment, Officer Hutchins, with the assistance of Officers Kikis and Saetta, pinned Plaintiff
against the wall. (Id.) The video recording shows that Plaintiff was resisting. (Id.) The officers
then slammed Plaintiff to the ground, after which the view of him became obstructed by observing
pedestrians. (Id.)
The Court has already concluded that the Defendant Officers had probable cause to arrest
Plaintiff for disruptive conduct. After being pushed by Officer Hutchins, Plaintiff became
aggressive and attempted to fight back on multiple occasions. (Defs.’ Ex. J.) Moments before
Officer Hutchins charged, Plaintiff was screaming, slamming his forearms, and pointing his hands
at him. (Id.) Officer Hutchins therefore charged Plaintiff against the wall in order to place him
under arrest. (Id.) The video recording depicts Plaintiff resisting arrest by struggling against being
pushed into the wall. (Id.) Once up against the wall, Plaintiff continued moving his arms to avoid
being handcuffed. (Id.) Given Plaintiff’s aggressive behavior and resistance, a reasonable officer
would have acted as the Defendant Officers did to effectuate the arrest.
Indeed, “[t]he calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396–97; see also McKinney v. City of Middletown, 49 F.4th 730,
741 (2d Cir. 2022) (affirming the district court’s conclusion that defendant officer did not use
excessive force where plaintiff became “extremely combative” and “charged towards the
defendants”); Casiano v. Ashley, 515 F. Supp. 3d 19, 23 (W.D.N.Y. 2021) (granting summary
judgment where plaintiff resisted handcuffing, and defendant officers used successive stabilization
measures to gain compliance and complete the arrest, including stabilizing plaintiff to the wall and
then ground). And while Officer Hutchins’ conduct “may not appear entirely professional,” his
actions were not “sufficiently serious to amount to a constitutional violation.” Vasquez, 2020 WL
883514, at *10.
Plaintiff’s claim is further undercut by his own testimony, in which he acknowledges that
he was unsure whether the Defendant Officers struck him at any point during the arrest. (Pl. Dep.
Tr. 30:15–20.) He could only recall that he “felt something” and nothing more. (Id.) Because of
Plaintiff’s combative behavior leading up to the incident, the Court concludes that the Defendant
Officers did not use excessive force. Plaintiff cannot take a “combative” stance, “charge[ ] towards
the [D]efendants,” and then claim that his actions carry no consequences. See McKinney, 49 F.4th
at 741.
iii. Alleged Excessive Use of Handcuffs
Finally, the Court turns to Plaintiff’s argument that his handcuffs were excessively too tight.
“Courts apply a separate standard to claims for excessive force in the use of handcuffs.” Sachs v.
Cantwell, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012). “[I]n evaluating the reasonableness
of handcuffing, a Court is to consider evidence that: (1) the handcuffs were unreasonably tight; (2)
the defendants ignored the arrestee’s pleas that the handcuffs were too tight; and (3) the degree of
injury to the wrists.” Esmont v. City of New York, 371 F. Supp. 2d 202, 215 (E.D.N.Y. 2005). “The
injury requirement is ‘particularly important.’” Usavage v. Port Auth. of New York and New
Jersey, 932 F. Supp. 2d 575, 592 (S.D.N.Y. 2013) (quoting Sachs, 2012 WL 3822220, at *14). 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.” Lynch ex rel. Lynch
v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008); see Usavage, 932 F. Supp. 2d
at 592 (collecting cases). “These injuries need not be ‘severe or permanent,’ but must be more
than merely ‘de minimis[.]’” Usavage, 932 F. Supp. 2d at 592 (internal citations omitted).
Plaintiff testified that, as a result of his arrest, he sustained a scrape on his head, a scratch
on his ear, and pain in his back.4 (Pl. Dep. Tr. 33:12, 35:11–16, 36:2–3.) Plaintiff’s arrest
3F
photographs also show a laceration on his left elbow and slight swelling on his right forearm.
(Defs.’ Ex. Q at 2, 6.) Other than the slight swelling of his right forearm, Plaintiff provides no
evidence indicating that he suffered severe or permanent injuries from the handcuffs being too
tight. On the contrary, when the ambulance arrived to attend to Plaintiff’s injuries, he refused
4 Plaintiff also claims to have suffered “mental damages” as a result of his arrest. (Defs.’ Ex. 1 at 2.) Beyond the
conclusory allegations in the FAC, however, Plaintiff has provided no testimony or other evidence demonstrating
that he suffered emotional distress as a result of this incident. The claim fails as a matter of law. See Rolkiewicz v.
City of New York, 442 F. Supp. 3d 627, 648 (S.D.N.Y. 2020).
medical attention. (Defs.’ Ex. F at 2.) The Court therefore concludes that the Defendant Officers
did not use excessive force in handcuffing Plaintiff—or at all—during the August 20, 2021 incident
and grants Defendants’ motion for summary judgment on the excessive force claims arising from
that date.
B. July 8, 2022 Arrest
Turning to the July 8, 2022 incident, Plaintiff initially alleges that Officers Martinez and
Timpone used excessive force in effectuating his arrest. (Defs.’ Mem. at 24–25.) As a preliminary
matter, however, it appears that Plaintiff has abandoned any excessive force claim against Officer
Timpone. (Pl. Opp at 18–19.) The Court therefore deems all claims against Officer Timpone
abandoned and dismisses them accordingly. See Ragland, 2022 WL 580923, at *7; Daley, 2016
WL 880203, at *8. The remaining issue for the Court’s review is whether Officer Martinez used
excessive force by punching Plaintiff and applying pressure to his neck during the attempted arrest.
(Defs.’ Reply at 8.)
Up to this point, the video recordings have been critical to the Court’s review of Plaintiff’s
two arrests. Here, however, is the first instance in which the Court cannot determine from the
video recording whether Plaintiff was resisting arrest once on the ground. There is no question
that Plaintiff resisted arrest when he was first removed from his motorized scooter. (Defs.’ Ex. W.)
As the video progresses, it is evident that Officer Martinez raises his fist and punches Plaintiff in
the head. (Defs.’ Ex. X.) Defendants do not dispute this. (Defs.’ Ex. S ¶ 120.) Defendants contend
that Officer Martinez resorted to punching Plaintiff because Plaintiff was placing his right hand
under his stomach, thereby preventing the officers from handcuffing him. (Id. ¶ 19.) Once Plaintiff
is on the ground, however, Officers Martinez and Timpone obscure the camera’s view of him.
(Defs.’ Ex. X.) A separate recording depicts a front view of the incident, but it begins only after
Officer Martinez punched Plaintiff. (Defs.’ Ex. AA.) While Officers Martinez and Timpone are
positioned over Plaintiff, there is visible movement near Plaintiff’s right arm. (Defs.’ Ex. X.)
However, the Court may not rely on speculation to conclude that no genuine dispute of material
fact exists. Without video evidence capturing this portion of the encounter, “the evidentiary record
on Plaintiff's excessive force claim is thin and amounts to no more than ‘he said, he said.’”
Swanhart v. Jackson, 2026 WL 192395, at *7 (S.D.N.Y. Jan. 23, 2026). Plaintiff maintains that he
did not resist arrest, while Defendants contend otherwise. (Pl. Aff. ¶ 53 compare with Defs.’ Ex.
S ¶ 19.)
At the summary judgment stage, the Court may not resolve credibility disputes or weigh
competing versions of events. Where, as here, the claim turns on sharply conflicting accounts of
what occurred, the issue must be resolved by a jury. Nor can the Court conclude that Officer
Martinez is entitled to qualified immunity. It is “clearly established law that an officer uses
excessive force by punching an arrestee in the jaw and forcing him to the ground… despite failing
to immediately comply with an officer’s order to put his hands on the wall, is not physically
resisting arrest, making any threatening gesture, or attempting to flee.” Cox v. Fischer, 248 F.
Supp. 3d 471, 482 (S.D.N.Y. 2017). The Court therefore denies Defendants’ motion for summary
judgment as to the excessive force claims arising from the July 8, 2022 arrest.
IV. First Amendment – Retaliation Claim
For the first time in his opposition, Plaintiff asserts that Officer Hutchins violated Plaintiff’s
First Amendment rights by retaliating against him during the August 20, 2021 arrest. (Pl. Opp. at
19.) In response, Defendants argue that the Court should not consider this argument because it
was improperly raised for the first time in Plaintiff’s opposition. (Defs.’ Reply at 9.)
It is well established that “[a] party cannot assert a cause of action for the first time in
response to a summary judgment motion.” Greenidge v. Allstate Ins. Co., 312 F. Supp. 2d 430,
436–37 (S.D.N.Y. 2004), aff’d, 446 F.3d 356, 361 (2d Cir. 2006); see also Rojo v. Deutsche Bank,
487 F. App’x 586, 588–89 (2d Cir. 2012) (summary order) (“We have refused to address the merits
of claims raised for the first time [in opposition to summary judgment].”); Brandon v. City of New
York, 705 F. Supp. 2d 261, 278 (S.D.N.Y. 2010) (“It is black letter law that a party may not raise
new claims for the first time in opposition to summary judgment.”); Bush v. Fordham Univ., 452
F. Supp. 2d 394, 406 (S.D.N.Y. 2006) (“[C]ourts in this District have consistently ruled that it is
inappropriate to raise new claims for the first time in submissions in opposition to summary
judgment” (quotation marks omitted)). This is true even in cases filed by pro se litigants. See
Cooney v. Consol. Edison, 220 F. Supp. 2d 241, 253 (S.D.N.Y. 2002) (holding, in case with pro se
plaintiff, that “[a] party may not raise new claims for the first time in response to a motion for
summary judgment”), aff’d, 63 F. App’x 579 (2d Cir. 2003).
Although Plaintiff loosely mentions the First Amendment in the FAC, nowhere does he
allege a First Amendment retaliation claim. It follows that Plaintiff improperly asserts this claim
for the first time in his opposition papers. Regardless of this deficiency, Plaintiff’s claim lacks
merit.
To succeed on a First Amendment retaliation claim, a plaintiff must demonstrate that “(1)
he has a right protected by the First Amendment; (2) the defendant's actions were motivated or
substantially caused by his exercise of that right; and (3) the defendant's actions caused him some
injury.” Dorsett v. City of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). The existence of probable
cause generally defeats a retaliatory arrest claim, but as the Supreme Court has explained, “a
narrow qualification is warranted for circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do so.” Nieves v. Bartlett, 587 U.S. 391, 406
(2019). “In such cases, an unyielding requirement to show the absence of probable cause could
pose ‘a risk that some police officers may exploit the arrest power as a means of suppressing
speech.’” Id. (quoting Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945, 1953 (2018)).
Plaintiff asserts that Officer Hutchins pushed him for engaging in protected speech. (Pl.
Opp. at 20.) According to Plaintiff, his disregard and noncompliance with Officer Hutchins’
directions to vacate the area of the traffic stop was a “sign of protest” and “silent dissent.” (Id. at
4, 20.) The Court disagrees. The Court has already concluded that the Defendant Officers had
probable cause to arrest Plaintiff for OGA. Because there was probable cause to arrest Plaintiff,
his First Amendment claim must fail. See Mediavilla v. City of New York, 259 F. Supp. 3d 82, 107
(S.D.N.Y. 2016) (citing Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012)). Plaintiff similarly
argues that Officer Hutchins targeted him despite other pedestrians observing the traffic stop. (Pl.
Opp. at 20.) Plaintiff, however, admits that Officer Hutchins “targeted [him] because of [their]
history.” (Pl. Aff. ¶ 18.) That history includes being previously arrested by the MVPD. (Defs.’
Ex. C. ¶ 6.) Plaintiff also fails to identify other individuals who posed a threat to the traffic stop
or who positioned themselves directly in front of the vehicle, as he did. See Maradiaga, 2020 WL
5849465, at *7 (granting summary judgment where plaintiffs failed to provide “objective evidence
that [they were] arrested when otherwise similarly situated individuals not engaged in the same
sort of protected speech ha[ve] not been”).
Finally, Plaintiff asserts that he was arrested because he questioned why Officer Hutchins
pushed him back from the vehicle. (Pl. Opp. at 26.) This claim suffers from the same fatal flaw.
“The existence of probable cause will defeat… a First Amendment claim that is premised on the
allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence
[him].” Fabrikant, 691 F.3d at 215. As discussed above, Plaintiff was not arrested for questioning
Officer Hutchins. Rather, he was arrested for disorderly conduct after aggressively attempting to
charge Officer Hutchins while clenching his hands into fists. (Defs.’ Ex. J.) Plaintiff presents no
evidence that the Defendant Officers’ actions were motivated or substantially caused by his
exercise of any First Amendment right. Because the Defendant Officers had probable cause to
arrest Plaintiff, his First Amendment retaliation claim fails as a matter of law.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in
part and DENIED in part.
The Court GRANTS Defendants’ motion for summary judgment as follows:
1. All claims asserted against Defendants Williams, Rizzo, Culbert, Silvestri, Rucci, Martin,
Gibson-Price, and Addison for lack of personal involvement;
2. All potential New York State law claims;
3. All claims asserted against Defendant City of Mount Vernon;
4. Both Fourth Amendment false arrest claims arising from the August 20, 2021, and July 8,
2022 arrests;
5. The Fourth Amendment excessive force claims arising from the August 20, 2021 arrest,
thereby dismissing all claims asserted against Defendant Officers Kikis and Saetta;
6. The Fourth Amendment excessive force claim arising from the July 8, 2022 arrest, only
with respect to Defendant Officer Timpone; and
7. The First Amendment retaliation claim, thereby dismissing all claims asserted against
Defendant Officer Hutchins.
The motion is DENIED only with respect to the Fourth Amendment excessive force claim arising
from the July 8, 2022 arrest asserted against Defendant Officer Martinez.
The Clerk of Court is respectfully directed to terminate the motion at ECF No. 100 and to
terminate Defendants City of Mount Vernon, Williams, Rizzo, Culbert, Silvestri, Rucci, Martin,
Gibson-Price, Addison, Hutchins, Kikis, Saetta, and Timpone from this action. Officer Martinez
is the sole remaining defendant. The Clerk of Court shall mail a copy of this Order to pro se
Plaintiff at the address listed on ECF.
A telephonic Pretrial Conference is scheduled for April 9, 2026, at 10:00 a.m. To access
the teleconference, please follow these directions: (1) Dial the Meeting Number: (855) 244-8681;
(2) Enter the Access Code: 2310 494 3855; and (3) Press pound (#) to enter the teleconference.
SO ORDERED,
Dated: February 17, 2026
White Plains, NY
Nelson S.Roman,USDJ.
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