Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WILSON CANTARERO LOPEZ,

Plaintiff,

MEMORANDUM

v. AND ORDER

23-CV-2230-SJB-JMW

COUNTY OF SUFFOLK, et al.,

Defendants.

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BULSARA, United States District Judge:

Wilson Cantarero Lopez (“Cantarero Lopez”) filed this case after he was

hospitalized for ten days from injuries inflicted by corrections officers at the Suffolk

County Correctional Facility in Riverhead, New York. Cantarero Lopez brings claims

under § 1983 for excessive force, failure to intervene, and bodily integrity violations, as

well as state law claims for assault, battery, negligence, and emotional distress against

Suffolk County, the Suffolk County Sheriff’s Department; Sergeants Kim Snider, Travis

Accardi, Arthur LaFranca, and Anthony Richetti; Lieutenants Mark Hawthorne, Zorcik,

and Michael Ervolino; and Corrections Officers Ivan Skolnick, Kenneth DeFelice, Brian

Bangel, Daniel Shaw, Darren Dobriner, Daniel McManus, and D. Lostritto. Defendants

have moved for summary judgement. For the reasons explained below, the motion is

granted in part and denied in part.

STANDARD FOR SUMMARY JUDGMENT

A “court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”  Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

“A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v. Progressive Cas.

Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).  “In determining whether summary judgment is appropriate, [the

Court] must resolve all ambiguities and draw all reasonable inferences against the

moving party.”  Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The movant bears the burden of “demonstrat[ing] the absence of a genuine issue

of material fact.”  Celotex, 477 U.S. at 323.  “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion” in one of two ways.  Fed. R. Civ. P.

56(c)(1). It may cite to portions of the record “including depositions, documents,

electronically stored information, affidavits or declarations, . . . admissions,

interrogatory answers, or other materials.”  Id. R. 56(c)(1)(A).  Alternatively, it may

show that “the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the

fact.”  Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988).

In moving for summary judgment or answering such a motion, litigants are

required by the Local Rules to provide a statement (a Rule 56.1 statement) setting forth

purported undisputed facts or, if controverting any fact, responding to each assertion.

See Loc. Civ. R. 56.1(a)–(b).  In both instances, the party must support its position by

citing to admissible evidence from the record.  Id. R. 56.1(d); see also Fed. R. Civ. P. 56(c)

(requiring reliance on admissible evidence in the record in supporting or controverting

a purported material fact).  “The purpose of Local Rule 56.1 is to streamline the

consideration of summary judgment motions by freeing district courts from the need to

hunt through voluminous records without guidance from the parties.”  Holtz v.

Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the

Court will consider the evidentiary sources of the claims.  Halberg v. United Behav.

Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and recommendation).

In evaluating the sources of claims made in dueling Rule 56.1 statements, the Court

cannot—as is true for the summary judgment motion as a whole—weigh evidence or

assess the credibility of witnesses.  See United States v. Rem, 38 F.3d 634, 644 (2d Cir.

1994).  Furthermore, “[l]egal arguments are impermissible in any Rule 56.1 Statement

and are to be disregarded.”  Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL

1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont’l Cas. Co., No. 12-CV-412, 2013

WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted Local Rule

56.1 statements and responses to each other’s statements that mix factual assertions

with legal argument and therefore fail to meet the requirements of Local Rule 56.1. The

facts . . . are taken from those assertions contained in the Local Rule 56.1 statements that

comply with Local Rule 56.1[.]” (citations omitted)).  The court may not grant summary

judgment based on a fact in a Rule 56.1 statement—even if undisputed—not supported

by admissible evidence.  E.g., Giannullo v. City of New York, 322 F.3d 139, 142–43 (2d Cir.

2003) (vacating grant of summary judgment to defendants based on facts enumerated in

Rule 56.1 statement supported only by arguments in briefs rather than admissible

evidence). The Court must also disregard conclusory denials that lack citations to

admissible evidence.  Rodriguez v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3

(S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument.  They should contain

factual assertions, with citation to the record.  They should not contain conclusions[.]”),

aff’d, 56 F. App’x 27, 29 (2d Cir. 2003).  Also, where the opposing party fails to

specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement

by the moving party “will be deemed to be admitted.”  Loc. Civ. R. 56.1(c).  The Court

also does not give any consideration to hearsay, speculation, or inadmissible evidence

in evaluating declarations or affidavits.  Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d

Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary

judgment stage[.]”); Crawford v. Dep’t of Investigation, No. 05-CV-5368, 2007 WL 2850512,

at *2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific facts

showing that there is a genuine issue for trial;’ he or she ‘may not rely on mere

conclusory allegations nor speculation, but instead must offer some hard evidence

showing that its version of the events is not wholly fanciful.’” (quoting Woodman v.

WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff’d, 324 F. App’x 139, 143 (2d Cir.

2009).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 24, 2022, Cantarero Lopez was incarcerated at Suffolk County

Correctional Facility in Riverhead, New York. (Defs.’ Rule 56.1 Statement (“Defs.’ 56.1

Stmt.”), Dkt. No. 42-2 ¶¶ 3–5; Pl.’s Rule 56.1 Resp. (“Pl.’s 56.1 Resp.”), Dkt. No. 42-22

¶¶ 3–5). He was locked in his cell, while another inmate, Nicholas Lobianco was

standing outside. (Id. ¶ 12; Defs.’ 56.1 Stmt. ¶ 12). The two began arguing over trading

food around 4:30 P.M., and Lobianco threw food into Cantarero Lopez’s cell, after

which Cantarero Lopez retaliated by spitting blood (due to a recent root canal),

throwing toilet water at Lobianco, and smashing a bin against his cell wall. (Id. ¶¶ 12–

13, 15–16, 20; Pl.’s 56.1 Resp. ¶¶ 12–13, 15–16, 20). Cantarero Lopez was informed by

prison officials that he would be relocated to another cell; an extraction team was

assembled because he had been spitting blood and throwing toilet water. (Id. ¶¶ 21–22,

278; Defs.’ 56.1 Stmt. ¶¶ 21–22, 278). Cantarero Lopez testified that six or seven officers

then entered his cell. (Id. ¶ 22; Pl.’s 56.1 Resp. ¶ 22). The cell extraction was filmed and

the video was provided to the Court, however, what transpired inside the cell is not

clearly visible.

Cantarero Lopez testified that he received an instruction from an officer to

“stand up and get against the wall,” which he did.1 (Id. ¶ 23; Defs.’ 56.1 Stmt. ¶ 23; see

Dep. of Wilson Cantarero Lopez (“Cantarero Lopez Dep.”), attached to Pl.’s Opp’n as

Ex. B, Dkt. No. 42-26 at 29:18–30:3). While he was against the wall, one officer pushed

him against the wall and another pulled him off his feet, causing him to fall and cut his

forehead on the side of his bed. (Pl.’s 56.1 Resp. ¶ 26; Defs.’ 56.1 Stmt. ¶ 26). He says he

never resisted, but officers nonetheless dragged him on the floor into the middle of the

cell. (Pl.’s Rule 56.1 Counterstatement of Facts (“Pl.’s 56.1 Counterstatement”), Dkt. No.

42-22 ¶¶ 20, 22–23). They then pinned him down, restrained him, and repeatedly

1 Later, Cantarero Lopez says he did not understand what the officers were

saying when they first gave him commands to stand up. (Defs.’ 56.1 Stmt. ¶ 344; Pl.’s

56.1 Resp. ¶ 344; see Cantarero Lopez Dep. at 54:4-7).

kicked and punched him, though he cannot identify which officers were striking him.

(Defs.’ 56.1 Stmt. ¶¶ 25–29; Pl.’s 56.1 Resp. ¶¶ 25–29).

During cell extractions, officers are typically assigned to one of five roles,

“tactical shield, right arm, left arm, legs, and mechanical restraints,” while a separate

sergeant oversees the process. (Id. ¶ 167; Defs.’ 56.1 Stmt. ¶ 167). The shield officer

enters first, followed by the officer assigned to the individual’s legs, and then the two

officers assigned to each arm. (Id. ¶ 232; Pl.’s 56.1 Resp. ¶ 232). A sergeant, Travis

Accardi, and lieutenant, Mark Hawthorne, were present for the extraction. (Id. ¶ 186;

Defs.’ 56.1 Stmt. ¶ 186).

Kenneth DeFelice was part of the extraction team, and was assigned to make sure

incarcerated individuals in other cells were facing the back wall for officer safety. (Id.

¶¶ 147, 195; Pl.’s 56.1 Resp. ¶¶ 147, 195). Both sides agree he could not observe what

was happening in Cantarero Lopez’s cell, and did not recall what, if anything, he heard

happening. (Id. ¶ 150; Defs.’ 56.1 Stmt. ¶ 150).

Brian Bangel was assigned to the shield position, which is supposed to press a

plastic shield against the individual being moved against the back wall so other officers

can reach their designated assignments. (Id. ¶ 170; Pl.’s 56.1 Resp. ¶ 170). His shield

made contact with Cantarero Lopez’s back. (Id. ¶ 198; Defs.’ 56.1 Stmt. ¶ 198).

Daniel Shaw was assigned to control Cantarero Lopez’s legs. (Id. ¶ 216; Pl.’s 56.1

Resp. ¶ 216). Shaw was in the cell during the extraction, but did not kick or punch

Cantarero Lopez, nor did he witness another officer doing so. (Id. ¶¶ 223–24; Defs.’ 56.1

Stmt. ¶¶ 223–24).

Daniel McManus and Darren Dobriner were each assigned to one of Cantarero

Lopez’s arms so he could be handcuffed. (Id. ¶¶ 231, 245; Pl.’s 56.1 Resp. ¶¶ 231, 245).

Ivan Skolnick was assigned the role of placing Cantarero Lopez in mechanical

restraints. (Id. ¶ 260; Defs.’ 56.1 Stmt. ¶ 260). Though the parties dispute whether

Cantarero Lopez was ever resisting, they agree that when Skolnick entered the cell to

apply restraints, Cantarero Lopez was not resisting, and before that, Skolnick could not

see inside the cell—aside from being able to view the shield officer’s (Bangel) back. (Id.

¶¶ 263–64; Pl.’s 56.1 Resp. ¶¶ 263–64). Cantarero Lopez was handcuffed and shackled

in the cell. (Id. ¶ 271; Defs.’ 56.1 Stmt. ¶ 271).

Defendants generally contend that Cantarero Lopez was resisting. Accardi can

be heard telling him to stop resisting and stop kicking the officers on video. (E.g., id.

¶¶ 347, 352, 354). Skolnick, Shaw, McManus, Dobriner, and Bangel completed incident

reports stating that Cantarero Lopez did not comply with the instruction to face the

back wall and put his hands through the food slot to be handcuffed. (Id. ¶¶ 375, 377–

80). McManus, Dobriner, and Bangel also noted that there was a brief struggle to gain

control over Cantarero Lopez. (Id. ¶¶ 378–80).

There is no dispute that Sergeants Kim Snider and Accardi, and Lieutenants

Hawthorne, Zorcik, and Michael Ervolina did not enter Cantarero Lopez’s cell for the

extraction. (Id. ¶ 255; Pl.’s 56.1 Resp. ¶ 255). Accardi did not see any officer kick,

punch, or strike Cantarero Lopez, and Snider was not present for the cell extraction in

any capacity. (Id. ¶¶ 280, 293; Defs.’ 56.1 Stmt. ¶¶ 280, 293).

Once he was in mechanical restraints, Cantarero Lopez was escorted out of the

cell and placed in the restraint chair, and as can be seen on video, he had a cut above his

left eyebrow. (Id. ¶¶ 355–57; Pl.’s 56.1 Resp. ¶¶ 355–57). He was then moved to a

separate detention cell. (Id. ¶ 361; Defs.’ 56.1 Stmt. ¶ 361). He was evaluated by

medical staff, who recommended he be sent to a hospital. (Id. ¶¶ 368–70; Pl.’s 56.1

Resp. ¶¶ 368–70). Cantarero Lopez testified that he was choking on blood and

struggling to breathe while awaiting transportation, and that he told officers, but

nobody responded. (Id. ¶ 38; Defs.’ 56.1 Stmt. ¶ 38). Cantarero Lopez was hospitalized

for ten days following the extraction: he had internal bleeding in his abdomen that

required surgery, which was performed the day after the extraction. (Id. ¶¶ 47–48, 53;

Pl.’s 56.1 Resp. ¶¶ 47–48, 53). He also received stitches for the cut on his forehead. (Id.

¶ 49; Defs.’ 56.1 Stmt. ¶ 49). And one of his teeth had been knocked out during the

extraction, for which he received a replacement. (Id. ¶ 52; Pl.’s 56.1 Resp. ¶ 52).

None of the involved officers were subject to any discipline for the cell

extraction. (Id. ¶¶ 115, 240, 252, 269; Defs.’ 56.1 Stmt. ¶¶ 115, 240, 252, 269).

Cantarero Lopez filed his Amended Complaint on June 9, 2023. (Am. Compl.,

Dkt. No. 19). The Amended Complaint brings claims under § 1983 for excessive force

and failure to intervene in violation of the Eighth Amendment, (id. ¶¶ 117–38);

negligent supervision, (id. ¶¶ 139–58); Monell liability, (id. ¶¶ 159–72); and due process

and bodily integrity in violation of the Fifth and Fourteenth Amendments, (id. ¶¶ 173–

82). The Amended Complaint also brings state law claims for assault, battery,

negligence, intentional infliction of emotional distress, and negligent infliction of

emotional distress. (Id. ¶¶ 183–237). The motion for summary judgment was fully

briefed on November 12, 2025. (Defs.’ Mem. in Supp. of Summ. J. dated June 24, 2025

(“Defs.’ Mot.”), Dkt. No. 42-32; Pl.’s Opp’n to Defs.’ Mot. dated Aug. 29, 2025 (“Pl.’s

Opp’n”), Dkt. No. 42-21; Defs.’ Reply in Supp. of Summ. J. dated Nov. 12, 2025 (“Defs.’

Reply”), Dkt. No. 42-40).

DISCUSSION

I. Eighth Amendment Excessive Force

“The Eighth Amendment prohibits the infliction of cruel and unusual

punishments, including the unnecessary and wanton infliction of pain.” Jordan v.

Walker, No. 22-1118, 2024 WL 4635225, at *2 (2d Cir. Oct. 31, 2024) (quotations omitted).

“A claim that a government official has violated the Eighth Amendment by using

excessive force has both a subjective and an objective component.” Mustafa v. Pelletier,

No. 22-2187, 2023 WL 7537625, at *1 (2d Cir. Nov. 14, 2023). The subjective component

requires a showing that the defendant’s actions were “characterized by wantonness in

light of the particular circumstances surrounding the challenged conduct,” and may be

satisfied by demonstrating that “no legitimate law enforcement or penological purpose

can be inferred from the defendant’s alleged conduct, as the mistreatment alone may, in

2 Although Defendants do not purport to bring this motion on behalf of the

Suffolk County Sheriff’s Department, (see Defs.’ Mot. at 1), that Defendant is “an

administrative arm of the County, without a legal identity separate and apart from the

municipality and, therefore, without the capacity to sue or be sued,” and is dismissed.

Barreto v. Suffolk County, No. 10-CV-0028, 2010 WL 301949, at *2 (E.D.N.Y. Jan. 20, 2010)

(quotation omitted); see also Guggino v. Med. Dep’t—Yaphank Corr. Facility, No. 25-CV-

0597, 2025 WL 1207665, at *5 (E.D.N.Y. Apr. 25, 2025) (collecting cases). The Clerk of

Court is directed to terminate the Suffolk County Sheriff’s Department from the docket.

some circumstances, be sufficient evidence of a culpable state of mind.” Id. (quotations

omitted).

Defendants contend that the only officers who participated in the use of force are

Bangel, Shaw, McManus, Dobriner, and Skolnick. (Defs.’ Mot. at 7). They concede that

Hawthorne was a participant and do not seek his dismissal. (Defs.’ Reply at 3).

Therefore, they contend that the excessive force claim against Snider, Richetti, DeFelice,

Accardi, LaFranca, Zorcik, Lostritto, and Ervolino should be dismissed. (Id.).

“It is axiomatic that claims under § 1983 for use of excessive force or failure to

intervene require personal involvement to trigger liability.” Demosthene v. City of New

York, 831 F. App’x 530, 535 (2d Cir. 2020); see Tangreti v. Bachmann, 983 F.3d 609, 618 (2d

Cir. 2020) (“[A] plaintiff must plead and prove that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.”

(quotation omitted)). Where “there is nothing in the record from which a rational jury

could reasonably infer” that a defendant used force against the plaintiff, summary

judgment is appropriate. Demosthene, 831 F. App’x at 535 (“Due to this lack of evidence

regarding Detective Roberts’s personal involvement in the alleged excessive use of force

at the time of the line-up, the district court also properly dismissed this portion of

Demosthene’s excessive force and failure to intervene claims.”); Nguedi v. Caulfield, 813

F. App’x 1, 3 (2d Cir. 2020) (dismissing excessive force claim for failure to allege

personal involvement); Delee v. Hannigan, 729 F. App’x 25, 30–31 (2d Cir. 2018) (same);

Kornegay v. Doe, 371 F. App’x 178, 179 (2d Cir. 2010) (same). There is no dispute that

Snider, Richetti, DeFelice, Accardi, LaFranca, Zorcik, Lostritto, and Ervolino did not

directly participate in the use of force. This claim is therefore dismissed against them.

II. Failure to Intervene

Even if some officers did not directly use force against Cantarero Lopez, they

may still be held liable under a failure to intervene theory.

A law enforcement officer has an affirmative duty to intercede on the behalf

of a citizen whose constitutional rights are being violated in his presence by

other officers, and is liable for the preventable harm caused by the actions

of the other officers where that officer observes or has reason to know . . .

that excessive force is being used.

Porter v. Goord, 467 F. App’x 21, 23 (2d Cir. 2012) (quotations omitted); see also Randolph

v. Griffin, 816 F. App’x 520, 523 (2d Cir. 2020) (“Prison officials can be held liable under

42 U.S.C. § 1983 for failing to intervene in a situation where another official is violating

an inmate’s constitutional rights, including the use of excessive force, in their

presence.”). “Liability attaches on the theory that the officer, by failing to intervene,

becomes a ‘tacit collaborator’ in the illegality.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d

Cir. 2016). But an officer may be held liable only if he “has sufficient time to act to

prevent it.” Id.

Defendants argue that there is no evidence that Snider, Richetti, LaFranca,

Zorcik, Lostritto, and Ervolino were present for the cell extraction, and DeFelice could

not observe what was happening inside the cell, so the failure to intervene claims

against them should be dismissed. (Defs.’ Mot. at 8).3 Cantarero Lopez only contends

3 A failure to discipline claim sounds in Monell liability, not individual excessive

force liability, and Cantarero Lopez’s discipline claims are therefore discussed infra.

that DeFelice4 is “clearly pictured on video watching through the cell bars as the other

Defendants viciously attack the Plaintiff” and that it “can be seen on video that the

Officers are punching and kicking the Plaintiff and those outside of the cell fail to

intervene.” (Pl.’s Opp’n at 8).

Cantarero Lopez’s argument cannot be squared with the undisputed facts he has

admitted. “DeFelice could not observe what was happening in the Plaintiff’s cell at the

time of the extraction and does not recall what he heard, if anything.” (Defs.’ 56.1 Stmt.

¶ 150; Pl.’s 56.1 Resp. ¶ 150). As for the others, Snider was not present for the cell

extraction. (Id. ¶ 293; Defs.’ 56.1 Stmt. ¶ 293). And Richetti and LaFranca were the

investigator and supervisor assigned to review Cantarero Lopez’s claim—there are no

facts to suggest they had any involvement in or saw the cell extraction. (Id. ¶¶ 73, 103;

Pl.’s 56.1 Resp. ¶¶ 73, 103). There are similarly no facts that could support a failure to

intervene claim against Ervolino or Zorcik, who the parties agree responded to the

initial incident when Cantarero Lopez was arguing with Lobianco, and who Accardi

testified may have ordered him to assemble the cell extraction team, but who are never

alleged to have been in the vicinity of the cell extraction. (Id. ¶ 277; Defs.’ 56.1 Stmt.

¶ 277; Pl.’s 56.1 Counterstatement ¶ 67; Defs.’ 56.1 Resp. ¶ 67). The only allegation

regarding Lostritto is that he was responsible for recording the video of the cell

extraction. (Am. Compl. ¶ 27). There is no suggestion or allegation that he could

observe what was happening in the cell.

4 Defendants do not seek to dismiss the failure to intervene claim against

Accardi. (Defs.’ Reply at 5).

It is undisputed that these Defendants either were not present during the use of

force or could not observe what was happening in the cell, or in Lostritto’s case, there is

no information at all about what he observed. On this record, without evidence that the

subject officers “observe[d] the use of force” and had “sufficient time to act to prevent

it,” Figueroa, 825 F.3d at 106, they are entitled to summary judgment on the failure to

intervene claim.

In summary, the claims for excessive force under a theory of direct participation

or failure to intervene are dismissed against Snider, Richetti, DeFelice, LaFranca, Zorcik,

Lostritto, and Ervolino. The excessive force claim against Accardi is dismissed insofar

as it is asserted against him as a direct participant; though the failure to intervene claim

against Accardi survives, as Defendants did not seek dismissal. The excessive force and

failure to intervene claims against Hawthorne also survive, because Defendants did not

seek his dismissal.

III. Qualified Immunity

The Court turns to whether the remaining Defendants are entitled to qualified

immunity on the excessive force claim against Bangel, Shaw, McManus, Dobriner,

Skolnick, and Hawthorne, and the failure to intervene claim against Bangel, Shaw,

McManus, Dobriner, Skolnick, Hawthorne, and Accardi.

“Qualified immunity shields government officials from liability for civil damages

if their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Matusak v. Daminski, 165 F.4th 702, 711

(2d Cir. 2026) (quotation omitted). “When properly applied, it protects all but the

plainly incompetent or those who knowingly violate the law.” Id. (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 743 (2011)). To determine whether an official is entitled to

qualified immunity, the court considers (1) “whether the facts that a plaintiff has . . .

shown . . . make out a violation of a constitutional right,” and (2) “whether the right at

issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id.

(quotation omitted). Courts may elect to address these elements in any order, see

Sacaza v. City of New York, 169 F.4th 363, 370 (2d Cir. 2026), and here the Court begins

with the second—whether the right at issue was clearly established.

“A right is clearly established when it is sufficiently clear that every reasonable

official would have understood that what he is doing violates that right. A right is not

clearly established if existing precedent does not place the constitutional question

beyond debate.” Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (quotation omitted). To

identify a clearly established right, a court must generally5 “identify a case where an

officer acting under similar circumstances . . . was held to have violated the

5 In an “obvious case,” the high-level “reasonableness” considerations the

Supreme Court has discussed may, without identification of a particular case, “clearly

establish” an excessive force violation. Brosseau v. Haugen, 543 U.S. 194, 199 (2004); see

also Seweid v. County of Nassau, No. 21-CV-3712, 2024 WL 693981, at *14 (E.D.N.Y. Feb.

20, 2024) (“Qualified immunity is usually a game of find-that-case, but not always.

Common sense still plays a role. This Court can examine, for example, whether

qualified immunity applies based on the ‘obviousness’ of the alleged Constitutional

violation—even in the absence of a controlling case exactly on point.” (quoting Taylor v.

Riojas, 592 U.S. 7 (2020) (per curiam))). Though the constitutional right here was clearly

established by prior Supreme Court and Circuit precedent, taking the facts as Cantarero

Lopez presents them as the Court must in this posture, see Tracy v. Freshwater, 623 F.3d

90, 99 (2d Cir. 2010) (finding summary judgment inappropriate where, “if a jury

credited [plaintiff’s] version of the events,” it “might well conclude” that the force used

was unreasonable), this may also be an “obvious case.”

Constitution.” Id. (quotation omitted). And that case must “define the right with a high

degree of specificity, so that every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.” Id. (quotation omitted). General principles,

like “an officer may not use unreasonable and excessive force,” are not specific enough.

Id. (quotation omitted). “In short, officers receive qualified immunity unless they could

have read the relevant precedent beforehand and known that it proscribed their specific

conduct.” Id. (quotation omitted).

As for the constitutional violation prong, if a claim is based on a clearly

established right, defendants are protected by qualified immunity “only so long as ‘it

was objectively reasonable for [them] to believe that [their] acts did not violate those

rights.’” Levin v. City of Buffalo, 179 F.4th 132, 142 (2d Cir. 2026) (per curiam) (quoting

Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991)). At summary judgment, if

factual disputes “preclude a determination as to whether [defendants’ conduct] was

objectively reasonable,” the Court cannot grant qualified immunity. Id. at 142–43.6

6 Recently, the Second Circuit has stated that “summary judgment is appropriate

when a trier of fact would find that reasonable officers could disagree,”—that is, if a

reasonable jury could go either way on whether the conduct was reasonable (for

example, in a false arrest case, “if a reasonable jury could find that there was probable

cause”), then officers get the benefit of qualified immunity. Sacaza, 169 F.4th at 373

(quoting Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995)). But that analysis only applies

“when the factual record is not in serious dispute.” Lennon, 66 F.3d at 421 (quotation

omitted); compare Sacaza, 169 F.4th at 371 (basing its holding “on the undisputed facts in

the record” (emphasis added)), with Levin, 179 F.4th at 142–43 (denying qualified

immunity at summary judgment because of factual disputes as to objective

reasonableness and whether a constitutional violation occurred). That is not the case

here.

Timing is also critical. Cases decided after the events at issue cannot be used to

determine that a right is clearly established. Matusak, 165 F.4th at 714–15. But the Court

may consider cases published after the conduct at issue that address “whether a right

was clearly established by case authority before the time of such conduct.” Id. at 715

(quotation omitted). The use of force at issue in this case occurred on March 24, 2022.

Defendants argue that they are entitled to qualified immunity because they were

justified in their use of force to remove Cantarero Lopez from his cell, since he had

thrown toilet water and spit blood at a neighbor, and because he “deliberately refused

to respond and/or was slow to respond to the extraction team’s commands.” (Defs.’

Mot. at 21; see also Defs.’ Reply at 12). They also argue that the video footage of the

extraction—which does not provide much, if any, insight into what exactly happened

inside the cell—“demonstrates the need for the use of force.” (Defs.’ Reply at 12). For

the reasons explained below, the right at issue was clearly established, and factual

disputes preclude resolution of whether it was objectively reasonable for Defendants to

believe their conduct was lawful. Accordingly, the Court cannot grant Defendants

qualified immunity at this juncture.

A. Clearly Established Law

The right at issue here—as Cantarero Lopez presents it, to be free from repeated

inflictions of force by punching and kicking when he was not resisting under the Eighth

Amendment, (Pl.’s Opp’n at 18)—was clearly established, see Hudson v. McMillian, 503

U.S. 1, 4, 10 (1992) (punching and kicking a restrained incarcerated person, leading to

bruises, swelling, and a cracked dental plate, constitutes an Eighth Amendment

violation). Hudson puts beyond debate that a reasonable officer would have been on

notice that repeatedly punching, kicking, and otherwise assaulting an incarcerated

person who is not resisting violates his Eighth Amendment rights. See also Hogan v.

Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (finding an Eighth Amendment violation where

prison officials sprayed the plaintiff with feces, vinegar, and machine oil, burning his

eyes and leaving him with physical injuries); Hope v. Pelzer, 536 U.S. 730, 737–38 (2002)

(tying an incarcerated person to a hitching post for hours in the hot sun was a

gratuitous infliction of unnecessary pain that violated the clear prohibitions of the

Eighth Amendment); Harris v. Miller, 818 F.3d 49, 64 (2d Cir. 2016) (“[C]ertain actions,

including the malicious use of force to cause harm, constitute Eighth Amendment

violations per se. This result follows because when prison officials maliciously and

sadistically use force to cause harm, contemporary standards of decency are always

violated.” (quotation omitted)).

B. Constitutional Violation

Turning to whether it was “objectively reasonable”7 for Defendants to believe

their conduct did not violate Cantarero Lopez’s clearly established Eighth Amendment

7 Although Eighth Amendment excessive force violations require a subjective

inquiry into defendants’ motivations for their actions, “[t]he Supreme Court has made

clear that qualified immunity turns on an objective assessment of the defendant’s

actions.” Clark v. Valletta, 157 F.4th 201, 217 (2d Cir. 2025) (citing Anderson v. Creighton,

483 U.S. 635, 641 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[Q]ualified

immunity’s reasonableness inquiry . . . ‘remain[s] distinct’ from constitutional

standards.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 204–05 (2001)). Courts cannot

“collapse” Eighth Amendment subjective inquiries into the objective-reasonableness

standard—in other words, excessive force and qualified immunity inquiries do not

merge—and so the Court does not assess the subjective inquiry here. Id. at 217 & n.14.

rights, factual disputes preclude resolution at this juncture. See Levin, 179 F.4th at 142–

43.

Cantarero Lopez testified that he complied with the instructions to stand against

the wall of his cell, but was pushed, causing him to fall on the ground, and then, while

he was not resisting, officers dragged him on the floor, pinned him down, restrained

him, and repeatedly struck him. (Pl.’s 56.1 Counterstatement ¶¶ 20–23, 27–28); see

Randolph, 816 F. App’x at 523 (plaintiff may rely exclusively on his own testimony to

counter summary judgment). Defendants vigorously dispute this, relying on officer

accounts that Cantarero Lopez was noncompliant and the video of the extraction, which

they assert does not depict Cantarero Lopez being punched or struck. (E.g., Defs.’ 56.1

Resp. ¶¶ 20–22, 27–28). But the video of the cell extraction does not clearly show the

contact with Cantarero Lopez in the cell: it does not clearly resolve the parties’

divergent accounts. And there is no argument that the force used was de minimis or

dispute as to the extent of the injuries incurred: Cantarero Lopez was hospitalized for

ten days because of internal bleeding that required surgery, and also received stitches

and replacement of a tooth that was knocked out during the cell extraction. (Defs.’ 56.1

Stmt. ¶¶ 47–49, 53; Pl.’s 56.1 Resp. ¶¶ 47–49, 53).

In light of these facts, it is impossible to determine whether any reasonable jury

could find that it was objectively reasonable for Defendants to believe that their conduct

did not violate Cantarero Lopez’s rights. See Kaminsky, 929 F.2d at 927 (upholding

denial of qualified immunity at summary judgment where the district court “correctly

decided that [it] could not determine whether it was objectively reasonable for

[defendants] to believe their acts were lawful, because the facts in dispute were relevant

to that determination”). Taking the facts as Cantarero Lopez recounts them—that he

was repeatedly assaulted by multiple officers while compliant, nonresistant, and

restrained on the floor of his cell—as the Court must at this stage, there is no serious

argument that Defendants’ belief in the lawfulness of their conduct was reasonable. See

Russell v. Scott, 170 F.4th 83, 93 (2d Cir. 2026) (explaining the proper inquiry as

“whether, on the facts as testified to by [plaintiff], [defendant] violated [plaintiff’s]

rights”); e.g., Burris v. Dezelic, No. 14-CV-5540, 2026 WL 865838, at *10 (E.D.N.Y. Mar. 30,

2026) (denying qualified immunity “[b]ecause there remain material factual disputes as

to the extent, reasonableness, and purpose of the force used”); Jackson v. Downstate Corr.

Facility, No. 16-CV-0267, 2020 WL 7630351, at *10 (S.D.N.Y. Dec. 22, 2020) (denying

qualified immunity “[b]ecause there is a dispute of material fact over whether Plaintiff

was noncompliant with a reasonable order and whether any force was used on Plaintiff

at all”); Vann v. Sudranski, No. 16-CV-7367, 2020 WL 3001072, at *7 (S.D.N.Y. June 4,

2020) (“[T]here is a genuine factual dispute concerning whether C.O. Sudranski used

excessive force against plaintiff . . . . [I]t would not have been objectively reasonable for

C.O. Sudranski to have believed he could lawfully violate [plaintiff’s Eighth

Amendment right to be free from excessive force] by forcefully striking plaintiff in the

groin during a routine pat frisk.”); Ellis v. Catalano, No. 16-CV-8452, 2020 WL 1956963, at

*15 (S.D.N.Y. Apr. 23, 2020) (“Plaintiff attests that he was repeatedly punched absent

provocation or resistance. The Court cannot conclude as a matter of law that a

reasonable officer would believe that such conduct did not violate the Eighth

Amendment.”).

Because fact disputes preclude resolution of whether Defendants’ conduct was

objectively reasonable, qualified immunity is inappropriate. “[T]he ultimate resolution

of who is telling the truth . . . must be made by a jury, since there are clearly disputed

issues of fact and credibility determinations that cannot be made by a court on a motion

for summary judgment. All that matters now is that, if believed, [plaintiff’s] allegations

establish a constitutional violation.” Hayes v. Dahlke, 976 F.3d 259, 276 & n.8 (2d Cir.

2020) (denying qualified immunity because of clear “factual dispute as to whether

Dahlke ever engaged in the conduct alleged by Hayes,” and “no doubt that the illegality

of such conduct was clearly established”); Russell, 170 F.4th at 98 (denying qualified

immunity because “the facts favorable to [plaintiff] that the . . . jury might find” would

amount to a violation of plaintiff’s constitutional rights, and leaving the ultimate

determination to the factfinder on whether the conduct was in fact objectively

reasonable (quotation omitted)).

IV. Monell Liability

A municipality may be held liable under § 1983 if the deprivation of the plaintiff’s

constitutional rights “is caused by a governmental custom, policy, or usage of the

municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012). “The elements

of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be

subjected to (3) the deprivation of a constitutional right.” Agosto v. N.Y.C. Dep’t of Educ.,

982 F.3d 86, 97 (2d Cir. 2020). A plaintiff may establish the existence of a municipal

policy giving rise to Monell liability in separate ways, including:

(1) a formal policy endorsed by the municipality . . . ; (2) actions directed by

the government’s authorized decisionmakers or those who establish

governmental policy . . . ; (3) a persistent and widespread practice that

amounts to a custom of which policymakers must have been aware . . . ; or

(4) a constitutional violation resulting from policymakers’ failure to train

municipal employees.

Deferio v. City of Syracuse, 770 F. App’x 587, 589–90 (2d Cir. 2019) (quotations and

citations omitted). “[I]solated acts of excessive force by non-policymaking municipal

employees are generally not sufficient to demonstrate a municipal custom, policy, or

usage that would justify municipal liability.” Jones, 691 F.3d at 81. Such isolated acts

could justify municipal liability if they “were done pursuant to municipal policy,” if

they “were sufficiently widespread and persistent to support a finding that they

constituted a custom, policy, or usage of which supervisory authorities must have been

aware,” or if “a municipal custom, policy, or usage would be inferred from evidence of

deliberate indifference of supervisory officials to such abuses.” Id. Or, “[a] plaintiff

alleging that she has been injured by the actions of a low-level municipal employee can

establish municipal liability by showing that a policymaking official ordered or ratified

the employee’s actions—either expressly or tacitly.” Id.

Cantarero Lopez’s Monell theories are as follows: 1) failure to discipline, act, or

supervise by municipal policymakers; and 2) a pattern of failing to report other officers

for excessive force. (Pl.’s Opp’n at 9–12).8 Each theory fails.

First, Cantarero Lopez argues that no officers were disciplined in connection

with the force used against him, and he notes two individuals—Sergeant Accardi, who

oversaw the extraction, and LaFranca, who was a supervisor within the Internal Affairs

unit—that are final policymakers for Monell purposes. (Id. at 11). He appears to

contend that this incident was “sufficiently severe” and resulted in no discipline by

supervisors whose actions constitute final policy decisions. (Id.)

While Monell liability may be imposed in situations of “deliberate indifference of

supervisory officials” to excessive force, such “supervisory officials” must be “persons

in policy-making roles, whose misfeasance could trigger municipal liability under

Monell.” Jones, 691 F.3d at 81 & n.6. Merely holding the title of supervisor or sergeant

does not confer an officer with final policymaking authority. See Friend v. Gasparino, 61

F.4th 77, 94 (2d Cir. 2023) (“[T]he official must have been sufficiently high up in the

municipal hierarchy that he was responsible under state law for making policy in that

area of the municipality’s business.” (quotation omitted)); Agosto, 982 F.3d at 98 (“[T]he

8 Cantarero Lopez also seems to argue that deliberate indifference to his medical

needs gives rise to a Monell claim. (See Pl.’s Opp’n at 10, 12). The exact theory of

municipal liability he is claiming is unclear. There is no automatic liability for such an

Eighth Amendment violation: the case he cites in support of this argument denied Monell

liability premised on such a theory. See Bradshaw v. City of New York, 855 F. App’x 6, 11

n.2 (2d Cir. 2021). To the extent he bases this claim on a theory that policymaking

officials’ deliberate indifference justifies municipal liability, that claim fails for the

reasons discussed infra.

official must have had state-law authority to adopt rules for the conduct of the

municipal government.” (quotation omitted)). Cantarero Lopez presents no evidence—

factual or legal—of any Defendant’s policymaking authority. (See Pl.’s Opp’n at 11

(relying on conclusory statements like “Sergeant Accardi is a policy maker for the

purposes of Monell liability”)). This Monell theory therefore fails. See Friend, 61 F.4th at

94; e.g., Miller v. Nassau County, No. 13-CV-6813, 2015 WL 13745261, at *9 (E.D.N.Y. Oct.

22, 2015) (recommending dismissal of Monell claim and noting no evidence that

corrections officers acted with final policymaking authority), report and recommendation

adopted, 2015 WL 8055302 (Dec. 7, 2015); Raphael v. County of Nassau, 387 F. Supp. 2d 127,

132 (E.D.N.Y. 2005) (“The mere fact that one of the alleged state actors was a Sergeant

does not by itself make him a ‘policymaker’ for purposes of municipal liability. . . .

Even if Sergeant Mulcahy may have been the ranking officer on the scene and thus may

have had some decision-making authority over the conduct of the other officers, the

mere exercise of discretion is insufficient to establish municipal liability.” (citing

Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003))).

Second, Cantarero Lopez points to testimony by various Defendants that they

have never reported another officer for excessive force, or, for those on the investigative

side, had never made a finding of excessive force against an officer. (Pl.’s Opp’n at 10,

12). But he points to no evidence upon which a jury could rely to conclude that there

were incidents of excessive force in the first place that officials failed to report. In other

words, he has not produced evidence of a single other instance of an excessive force

violation, let alone one that went unreported by other officers that witnessed it.9 The

failure to point to any such evidence bars this Monell theory.

Because there is no evidence in the record of actions by policymaking officials

with respect to the use of force against Cantarero Lopez, nor is there evidence of a

policy or practice of excessive force incidents that go unreported, Defendants’ motion

for summary judgment is granted as to the Monell claim.

V. Due Process and Bodily Integrity

Defendants contend that Cantarero Lopez’s substantive due process claim under

the Fifth and Fourteenth Amendments is duplicative of his Eighth Amendment claim

for the same conduct, and the Court agrees. If a specific Amendment “provides an

explicit textual source of constitutional protection . . . , that Amendment, not the more

generalized notion of ‘substantive due process,’ must be the guide for analyzing these

claims.” Graham v. Connor, 490 U.S. 386, 395 (1989); see also United States v. Lanier, 520

9 Cantarero Lopez’s expert report, relying only on the officer testimony that they

had never used, witnessed, or reported an incident of excessive force, summarily

concludes that “strongly suggests a pattern” as to excessive force, deficient training, and

inadequate investigations. (See Report of Wade Carper, attached to Pl.’s Opp’n as Ex.

Q, Dkt. No. 42-38 ¶¶ 109–11, 114). But the fact that the expert draws the same

conclusion that Cantarero Lopez’s lawyer does from the absence of prior reporting does

not make it any more probative for determining Monell liability. And even crediting the

three prior use of force incidents Cantarero Lopez references elsewhere, though all were

deemed unsubstantiated, (see Pl.’s 56.1 Counterstatement ¶¶ 450–52; Defs.’ 56.1 Resp.

¶¶ 450–52), that would still not be sufficient to impose Monell liability, e.g., Giaccio v.

City of New York, 308 F. App’x 470, 472 (2d Cir. 2009) (holding that four examples of

possible prior similar misconduct “falls far short of establishing a practice that is so

persistent or widespread as to justify the imposition of municipal liability” (quotation

omitted)); Hu v. City of New York, 927 F.3d 81, 106 (2d Cir. 2019) (identifying four prior

instances of misconduct was insufficient to suggest a widespread, persistent pattern);

Jones, 691 F.3d at 85 (three prior incidents insufficient).

U.S. 259, 272 n.7 (1997) (“Graham . . . requires that if a constitutional claim is covered by

a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim

must be analyzed under the standard appropriate to that specific provision, not under

the rubric of substantive due process.”); 20 Dogwood LLC v. Village of Roslyn Harbor, No.

23-0930, 2024 WL 1597642, at *1 (2d Cir. Apr. 12, 2024) (“The district court dismissed the

substantive due process claim because it concluded the claim was subsumed by more

particularized allegations of other provisions of the Constitution providing an explicit

textual source of protection. We agree.”); Collins v. Putt, 979 F.3d 128, 136 (2d Cir. 2020)

(“[W]here a specific constitutional provision prohibits government action, plaintiffs

seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the

broad notion of substantive due process. Under such circumstances, a plaintiff’s

substantive due process claim is either subsumed in his more particularized allegations,

or must fail.” (quotations omitted)). Cantarero Lopez’s substantive due process claim is

subsumed by his more particularized Eighth Amendment excessive force claim. See

Graham, 490 U.S. at 395 n.10 (“Any protection that ‘substantive due process’ affords

convicted prisoners against excessive force is . . . at best redundant of that provided by

the Eighth Amendment.”). Defendants’ motion for summary judgment on that basis is

granted.

VI. State Law Claims10

Defendants seek summary judgment on Cantarero Lopez’s state law claims for

intentional and negligent infliction of emotional distress (“IIED” and “NIED”), assault

and battery, negligent supervision, and negligence. (Defs.’ Mot. at 14–15, 17).

A. Emotional Distress Claims

As a preliminary matter, “the New York Court of Appeals has questioned

whether an intentional infliction claim can ever be brought where the challenged

conduct falls well within the ambit of other traditional tort liability,” and “[a]ll four

Appellate Division courts have answered the question and held that it cannot.”

Salmon v. Blesser, 802 F.3d 249, 256–57 (2d Cir. 2015) (quotation omitted) (dismissing

IIED claim where conduct could give rise to battery claim); see also Goldrich v. Masco

Corp., No. 22-CV-3769, 2023 WL 2649049, at *10 (S.D.N.Y. Mar. 27, 2023) (explaining that

the same principles apply to NIED claims). This is because infliction of emotional

distress torts “ha[ve] [their] roots in the acknowledgment by the courts of the need to

provide relief in those circumstances where traditional theories of recovery do not.” Lee v.

McCue, 410 F. Supp. 2d 221, 226 (S.D.N.Y. 2006) (quotation omitted).

As such, courts regularly dismiss IIED and NIED claims where other torts—like

assault and battery—impose liability for the complained-of conduct. See, e.g., Crews v.

County of Nassau, 996 F. Supp. 2d 186, 214 (E.D.N.Y. 2014) (“Even assuming arguendo

10 Defendants only move for summary judgment on qualified immunity grounds

as to Cantarero Lopez’s federal claims. (Defs.’ Mot. at 18 (only asserting qualified

immunity as to § 1983 liability)). They do not assert any state qualified immunity

defense as to these state law claims.

that plaintiff could meet all four elements of an IIED claim, New York courts do not

allow IIED claims where the conduct complained of falls well within the ambit of other

traditional tort liability.” (quotation omitted)); Hepburn v. City of New York, No. 21-CV-

4158, 2025 WL 1640205, at *18 (E.D.N.Y. June 10, 2025) (“Because the conduct at issue

and any resulting damages are entirely encompassed by Plaintiff’s claims for false arrest

and excessive force, Plaintiff’s IIED and NIED claims are dismissed.”). Accordingly.

Cantarero Lopez’s emotional distress claims are dismissed because the underlying

conduct is actionable under traditional torts of assault and battery.

B. Assault and Battery

Defendants make no argument that Cantarero Lopez’s assault and battery claims

cannot be maintained alongside their excessive force claims. And though, only in reply,

Defendants contend that courts have dismissed assault and battery claims where

excessive force claims also failed because the legal standard is similar, that supplies no

basis to dismiss assault and battery claims where, as here, Cantarero Lopez’s excessive

force claim under § 1983 survives, e.g., Cornell v. Village of Clayton, 691 F. Supp. 3d 608,

622 (N.D.N.Y. 2023) (“For the same reasons set forth with respect to plaintiff’s excessive

force claim, plaintiff’s battery and assault claims against the Village survive summary

judgment.”); Rizk v. City of New York, 462 F. Supp. 3d 203, 229 (E.D.N.Y. 2020) (same).

Defendants’ motion for summary judgment on the assault and battery claims is denied.

C. Negligent Supervision

The Amended Complaint contends that the “lack of proper training and

supervision of these Correction Officers were contributing factors in the vicious attack

upon [Cantarero Lopez].” (Am. Compl. ¶ 140). Though it is technically asserted

against all Defendants, Cantarero Lopez only defends the claim as against Suffolk

County. (Pl.’s Opp’n at 13). And while the claim is pleaded through § 1983, (Am.

Compl. at 22), the parties appear to understand this to be a negligent supervision claim

under New York state law, (see Pl.’s Opp’n at 13 (reciting the elements of a claim for

negligent supervision under New York law)).11 The claim fails.

“To maintain a claim against a municipal employer for the negligent hiring,

training, and retention of a tortfeasor under New York law, a plaintiff must show that

the employee acted outside the scope of her employment.” Velez v. City of New York, 730

F.3d 128, 136–37 (2d Cir. 2013) (quotation omitted). Cantarero Lopez offers no response

to Defendants’ argument on this element, (see Defs.’ Mot. at 14–15), and there is no

evidence in the record from which a jury could conclude that the corrections officers

were acting outside the scope of their employment, and so Defendants are entitled to

summary judgment, see Velez, 730 F.3d at 137. The negligent supervision claim is

dismissed.

D. Negligence

Cantarero Lopez brings a separate claim for negligence, alleging that Defendants

“had a duty to act reasonably . . . in a manner that would [not] cause injury,” a duty

they breached by “subjecting him to an unprovoked, violent attack.” (Am. Compl.

11 To the extent Cantarero Lopez alleges this failure to supervise or train as a

Monell claim under § 1983, it would fail for the reasons explained above. E.g., Greene v.

City of New York, 742 F. App’x 532, 536–37 (2d Cir. 2018) (dismissing Monell claim for

failure to supervise or train).

¶¶ 207–08). Defendants only seek dismissal on the ground that “a general claim of

negligence is not actionable under § 1983,” (Defs.’ Mot. at 18), but that has no bearing

on this state law negligence claim, which is not brought under § 1983. Though much of

this claim is based on the same conduct that is the basis of the alleged assault and

battery (both intentional torts), Cantarero Lopez is permitted to proceed on a theory of

negligence in the alternative, unless “no reasonable jury could find negligence,” which

is not the case here. King v. Davis, No. 25-0966, 2026 WL 762399, at *3 (2d Cir. Mar. 18,

2026).

To summarize with respect to the state law claims, Cantarero Lopez’s claims for

IIED, NIED, and negligent supervision are dismissed. But Defendants’ motion for

summary judgment is denied with respect to the claims for assault, battery, and

negligence.

CONCLUSION

For the reasons explained above, Defendants’ motion for summary judgement is

granted in part and denied in part. The excessive force claim is dismissed against

Defendants Snider, Richetti, DeFelice, LaFranca, Zorcik, Lostritto, Ervolino, and

Accardi; the failure to intervene claim is dismissed against Defendants Snider, Richetti,

DeFelice, LaFranca, Zorcik, Lostritto, and Ervolino; and the claims for Monell liability,

due process or bodily integrity violations, negligent supervision, and emotional distress

are dismissed. The excessive force claim otherwise survives against Bangel, Shaw,

McManus, Dobriner, Skolnick, and Hawthorne, and the failure to intervene claim

survives against Bangel, Shaw, McManus, Dobriner, Skolnick, Hawthorne, and Accardi.

The state law claims for assault, battery, and negligence survive against all individual

Defendants.

The parties are directed to submit a joint proposed pretrial order by August 28,

2026, consistent with the undersigned’s Individual Practices.

SO ORDERED.

/s/ Sanket J. Bulsara

SANKET J. BULSARA

United States District Judge

Date: July 29, 2026

Central Islip, New York