Opinion
6:17-CV-06448 EAW
2022-01-31
Wilbert JACKSON, Plaintiff, v. Louis MASTRANGELO, S. Drayton, and Lt. DiPrimo, Defendants.
Wilbert Jackson, Stormville, NY, Pro Se. Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendants.
Wilbert Jackson, Stormville, NY, Pro Se.
Spencer L. Ash, City of Rochester Law Department, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Proceeding pro se , plaintiff Wilbert Jackson ("Plaintiff") brings the instant action pursuant to 42 U.S.C. § 1983 alleging that defendants Louis Mastrangelo ("Mastrangelo"), S. Drayton ("Drayton"), and Lieutenant DiPrimo ("DiPrimo") (collectively, "Defendants") violated his Fourth Amendment rights. (Dkt. 1). Presently before the Court is Defendants’ motion for summary judgment. (Dkt. 45). For the reasons that follow, Defendants’ motion is granted in part and denied in part.
FACTUAL BACKGROUND
This District's Local Rules of Civil Procedure require that a party moving for summary judgment file a Statement of Undisputed Facts accompanied by citations to admissible evidence or to evidence that can be presented in admissible form at trial. See L. R. Civ. P. 56(a)(1). The rule also requires a party opposing summary judgment to file a statement admitting or contesting the moving party's Statement of Undisputed Facts and provides that an opposing party's failure to do so may render the moving party's Statement of Undisputed Facts admitted. L. R. Civ. P. 56(a)(2).
Here, Defendants filed the required statement (Dkt. 45-1) and Plaintiff failed to submit an opposing statement, and therefore the Court could deem Defendants’ recitation of the material facts admitted by Plaintiff to the extent they are supported by the record. Nonetheless, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules ... [, and] it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file [a Local Civil Rule 56(a)(1)] statement." Holtz v. Rockefeller & Co. , 258 F.3d 62, 73 (2d Cir. 2001) (internal quotations and citations omitted). Considering Plaintiff's pro se status, the Court in its discretion has conducted an independent review of the record to determine if Plaintiff's recitation of events conflicts with the statements contained in Defendants’ Statement of Undisputed Facts. See Daley v. Cablevision Sys. Corp. , No. 12-cv-6316, 2016 WL 880203, at *1 (S.D.N.Y. Mar. 7, 2016).
The Court begins with Defendants’ version of events. Defendants assert that on January 3, 2016, Mastrangelo was on duty driving behind Plaintiff when he decided to run Plaintiff's license plate, which revealed that the vehicle's inspection had expired. (Dkt. 45-3 at 10). Mastrangelo initiated a traffic stop, and Plaintiff pulled into a driveway. (Id. ). When Mastrangelo approached the vehicle and Plaintiff rolled down his window, Mastrangelo smelled marijuana. (Id. ). After Drayton and DiPrimo arrived on the scene, Mastrangelo asked Plaintiff to exit the vehicle. (Id. ). Mastrangelo performed a pat frisk, during which Plaintiff "turn[ed] his hips slightly away" when Mastrangelo reached Plaintiff's waistband area. (Id. ). Because of this movement, Mastrangelo stretched Plaintiff's waistband where he saw Plaintiff's groin area and a clear sandwich bag of "small glassine envelopes with a white chalky rock like substance inside," which he believed to be cocaine. (Id. ). He then "retrieved the bag." (Id. ).
According to Plaintiff, his vehicle was parked for about eight minutes in the driveway of a mechanic who was going to inspect the vehicle when Mastrangelo pulled up and blocked the driveway. (Dkt. 20 at 1-2). Plaintiff asserts that Mastrangelo's claim that he smelled marijuana "is without any merit as no marijuana was found in the car or in the possession of the Plaintiff or any other occupant(s) of the vehicle." (Dkt. 20 at 2).
Plaintiff asserts that Mastrangelo conducted a nonconsensual pat frisk in the street in broad daylight, during which Mastrangelo pulled the front waistband of his pants and boxers exposing his groin area. (Dkt. 1 at 5). Mastrangelo then forcibly reached down into Plaintiff's pants and retrieved a sandwich bag, "yanking [his] penis in the process, saying ‘I got you by the balls now Jackson, how do you like it.’ " (Id. ). Plaintiff has also described this incident as a "forcible touching of Plaintiff's sexual organs" (Dkt. 20 at 3) and as a degrading act in which Mastrangelo grabbed the bag and his penis and exposed his penis (Dkt. 51 at ¶ 5).
Plaintiff also asserts that Drayton and DiPrimo "stood and watched" while Mastrangelo illegally searched him, manipulated his clothing, reached inside his pants with unnecessary force to grab the sandwich bag, and yanked on his penis while making sexual comments. (Dkt. 1 at 6). According to Plaintiff, Drayton and DiPrimo never intervened or attempted to stop Mastrangelo. (Id. ).
PROCEDURAL HISTORY
Plaintiff commenced the current action on July 7, 2017. (Dkt. 1). On May 14, 2018, the Court granted Plaintiff's motion to proceed in forma pauperis and screened Plaintiff's complaint. (Dkt. 5). In the screening order, the Court concluded that Plaintiff had sufficiently alleged a Fourth Amendment claim against Mastrangelo and a failure to intervene claim against Drayton and DiPrimo. (Id. at 2-4). However, the Court dismissed Plaintiff's claim against the City of Rochester. (Id. at 4-5). On August 2, 2018, Defendants filed a motion to dismiss (Dkt. 8), which the Court denied (Dkt. 26). Defendants answered the complaint (Dkt. 30), and scheduling orders were issued (Dkt. 33; Dkt. 41). Discovery was set to close by April 6, 2021 (Dkt. 41), and Defendants filed a motion for summary judgment on June 15, 2021 (Dkt. 45). Plaintiff filed a response to Defendants’ motion on September 20, 2021 (Dkt. 51), to which Defendants did not reply.
DISCUSSION
I. Legal Standards Governing Motions for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the non-moving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011). Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Clarification of Claims at Issue
At the outset, the Court believes it is necessary to clarify for both parties the claims that are present in this action. The Court allowed two claims to proceed to service in this case: (1) alleged excessive force used during the search; and (2) failure to intervene. (See Dkt. 26 at 2 ("On May 14, 2018, the Court issued an Order granting Plaintiff permission to proceed in forma pauperis and allowing his excessive use of force and failure to intervene claims against Defendants to proceed to service.")).
Certain papers submitted by Plaintiff suggest he is arguing that the initial traffic stop and the search itself were unlawful. (See Dkt. 20 at 1-2). However, Plaintiff did not allege in his complaint that the initial stop was unlawful, the Court did not allow such a claim to proceed to service, and he did not seek leave to amend his complaint at any point during this proceeding. (See Dkt. 1).
Additionally, Plaintiff could not have alleged a viable § 1983 claim based on the alleged unlawfulness of the search (as opposed to the manner in which it was carried out). Supreme Court precedent is clear that "to recover damages for ... other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey , 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). As Plaintiff has acknowledged, if the search was found to be unlawful, the drugs found during the search would have been inadmissible evidence in his underlying criminal case (Dkt. 20 at 2 (discussing fruits of the poisonous tree doctrine)), and he would not have been convicted. Therefore, any § 1983 claim Plaintiff seeks to pursue on the basis that the search itself was unlawful—either because Mastrangelo lacked probable cause to conduct the search or because the search was conducted in public without extraordinary circumstances—necessarily calls into question the validity of his conviction, which cannot proceed without evidence that his conviction or sentence has been invalidated. Heck , 512 U.S. at 487, 114 S.Ct. 2364 ; see, e.g., Waller v. Smith , 403 F. Supp. 3d 164, 170–71 (W.D.N.Y. 2019) ("Here, it appears from the facts pleaded in the Complaint that Plaintiff Waller's conviction of attempted criminal possession of a weapon in the second degree in violation of NY Penal Law §§ 110, 265.03 -3 stems solely from the evidence obtained in the March 7, 2014 search that is the subject of the instant Complaint—a single episode involving a single search.... Accordingly, Plaintiff Waller's claim under Section 1983 that the search of his home violated his Fourth Amendment rights is barred under Heck and must be dismissed."); Monroe v. Gould , 372 F. Supp. 3d 197, 202-03 (S.D.N.Y. 2019) ("Here, plaintiff does not contend his conviction for criminal possession of a controlled substance has been invalidated in any way by any state or federal court or any other state or federal official. Furthermore, the undisputed facts demonstrate that plaintiff's conviction stems solely from the evidence obtained in the September 29, 2014, search revealing cocaine in the front passenger's side of Rodriguez's vehicle—in other words, a single episode involving a single search. Having pleaded guilty to criminal possession of a controlled substance, success on plaintiff's Section 1983 claim that the search was unlawful would necessarily imply the invalidity of his conviction. Therefore, plaintiff's claim concerning the search which led to the discovery of cocaine is barred by Heck .").
Furthermore, in Defendants’ motion for summary judgment, Defendants seek to dismiss any claim against the City of Rochester. (Dkt. 45-4 at 3). The Court will repeat what it has already stated twice: the City of Rochester has been dismissed as a defendant. (Dkt. 5 at 4-5; Dkt. 26 at 2 n.1 ("Because the Court has already dismissed the claim against the City of Rochester, that portion of Defendants’ motion is denied as moot." (internal citation omitted))). As such, that portion of Defendants’ motion is again denied as moot.
Defendants also seek to dismiss Plaintiff's Fourteenth Amendment claim. (Dkt. 45-4 at 3). The Court has previously concluded that Plaintiff's excessive force and failure to intervene claims are governed by the Fourth Amendment. (See Dkt. 26 at 4-7 (citing caselaw that failure to intervene and alleged sexual misconduct during a seizure are analyzed under the Fourth Amendment); see also Dkt. 1 at 5 (asserting that his first claim arises under the Fourth Amendment)). Nonetheless, to the extent there was any outstanding issue as to whether Plaintiff's claims arise under the Fourteenth Amendment, the Court grants that portion of Defendants’ motion for summary judgment.
In sum, the claims before the Court allege that Mastrangelo used excessive force while searching Plaintiff when he yanked on his penis during the search and that Drayton and DiPrimo failed to intervene during this use of unreasonable and excessive force.
III. Qualified Immunity
As to Plaintiff's excessive force claim, Mastrangelo asserts that he is entitled to qualified immunity. (Dkt. 45-4 at 4). As noted above, Plaintiff's Fourth Amendment claim is based on excessive force used during the search and not that the search itself occurred. Therefore, Defendants’ citation to cases which purportedly assert that public, "under-the-pants," warrantless searches can be justified (Dkt. 45-4 at 5) does not address the central issue. Likewise, Defendants’ argument that Plaintiff failed to allege how long the search lasted (id. ) is similarly irrelevant. The Court focuses its analysis on whether Mastrangelo is entitled to qualified immunity for the alleged yanking of Plaintiff's penis during the search.
The Court must address one of Defendants’ tangential arguments. Specifically, Defendants assert that "[e]ven if Mastrangelo had stripped [sic] searched Plaintiff, same would not have been a violation of Plaintiff's Fourth Amendment rights. ‘a [sic] reasonable officer ... would not have understood that conducting an otherwise suspicionless visual body cavity search of a person arrested for a felony drug offense was unlawful’). [sic] To date, the Second Circuit still has not clearly held that such searches violate the Constitution, and the Court cannot find a Supreme Court case so holding." (Dkt. 45-4 at 4). First, counsel fails to recognize the nuance and legal distinction between a strip search and a visual body cavity inspection. Second, and more importantly, Defendants’ counsel makes an egregious error in failing to update his research before challenging the Court to find caselaw to the contrary. In 2008, People v. Hall , 10 N.Y.3d 303, 856 N.Y.S.2d 540, 886 N.E.2d 162 (N.Y. 2008), "forb[ade officers in New York state,] as a matter of federal constitutional law as interpreted by the New York Court of Appeals[,] ... from conducting suspicionless visual body cavity searches incident to felony arrests." Sloley v. VanBramer , 945 F.3d 30, 42 (2d Cir. 2019) (describing the effect of Hall ); see also Wheeler v. Artola , 852 F. App'x 589, 592 (2d Cir. 2021) ("In Sloley v. VanBramer , which we decided in 2019 ... we held that it was ‘sufficiently clear’ by 2013 ... that any visual body cavity search incident to a lawful arrest had to be ‘supported by a specific, articulable factual basis supporting a reasonable suspicion to believe that the arrestee secreted evidence inside a body cavity and must be conducted in a reasonable manner.’ " (quoting Sloley , 945 F.3d at 40 )). While that is the interpretation of the New York Court of Appeals and not the Supreme Court of the United States, Hall is binding authority in New York and is "relevant and often persuasive authority" for courts to consider when determining whether a plaintiff's right was clearly established for the purposes of qualified immunity. Sloley , 945 F.3d at 42 (internal quotation marks and citation omitted). The Court strongly cautions counsel from making these sorts of unsupported arguments in the future.
Qualified immunity "shields officers from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " City of Tahlequah v. Bond , ––– U.S. ––––, 142 S. Ct. 9, 11, 211 L.Ed.2d 170 (2021) (quoting Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). To constitute a clearly established right, courts look at prior precedent to determine whether is "it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ " Rivas-Villegas v. Cortesluna , ––– U.S. ––––, 142 S. Ct. 4, 7, 211 L.Ed.2d 164 (2021) (quoting Mullenix v. Luna , 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) ). "Precedent involving similar facts can help move a case beyond the otherwise hazy borders between excessive and acceptable force and thereby provide an officer notice that a specific use of force is unlawful." Rivas-Villegas , 142 S. Ct. at 9 (internal quotation marks and citation omitted). While prior caselaw does not need to be " ‘directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.’ " Id. at 7-8 (quoting White v. Pauly , 580 U.S. 73, 137 S. Ct. 548, 551, 196 L.Ed.2d 463 (2017) ). In resolving these questions, courts cannot operate "at too high a level of generality" but must define clearly established rights at a level of specificity so that "it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted." City of Tahlequah , 142 S. Ct. at 11 (internal quotation marks and citation omitted).
Courts in this Circuit have recognized that "[u]nreasonable, non-consensual, inappropriate touching ... can constitute unreasonable intrusion into a plaintiff's bodily integrity in violation of the Fourth Amendment." Falls v. (Police Officer) Detective Michael Pitt , No. 16-cv-8863, 2021 WL 1164185 at *16 (S.D.N.Y. Mar. 26, 2021) (internal quotation marks and citation omitted); Anderson v. Waterbury Police Dep't , No 14-cv-829, 2017 WL 1157843, at *11 (D. Conn. Mar, 28, 2017) ("[C]ourts in [the Second] Circuit have found that claims that a police officer's actions during and following the arrest of a suspect rise to the level of a sexual assault are properly analyzed under the Fourth Amendment and could give rise to at least one genuine issue of material fact that precludes summary judgment on the Fourth Amendment claim." (internal quotation marks and citation omitted)); Love v. Town of Granby , No. Civ. 3:03 cv 1960, 2004 WL 1683159, at *5-6 (D. Conn. July 12, 2004) (recommending denial of summary judgment where plaintiff alleged that during a pat down, an officer grabbed his scrotum and made inappropriate comments).
Notably, Defendants do not deny that Mastrangelo yanked on Plaintiff's penis but assert that such allegations "do not demonstrate objectively unreasonable conduct." (Dkt. 45-4 at 4). The Court can think of no context in which "yanking" on a suspect's penis while making a sarcastic comment about having him "by the balls" is reasonable conduct, and in light of the above caselaw does not believe that any reasonably competent officer would believe such an act is permissible. See also Lennox v. Miller , 968 F.3d 150, 157 (2d Cir. 2020) (noting the " ‘well established’ principle ‘that the use of entirely gratuitous force is unreasonable and therefore excessive.’ " (quoting Tracy v. Freshwater , 623 F.3d 90, 99 n.5 (2d Cir. 2010) )); Fontana v. Haskin , 262 F.3d 871, 881 (9th Cir. 2001) ("There is no situation that would justify any amount of purposeful sexual verbal and physical predation against a handcuffed arrestee. No risk of flight nor threat to officer safety exists to justify such an abuse of the one-sided power arrangement that arises from a custodial arrest such as this one.").
Defendants assert that Plaintiff has failed to describe the manner in which he was "yanked." (Dkt. 45-4 at 4). While Plaintiff has not provided excruciating detail, he has consistently stated that Mastrangelo forcibly and unnecessarily touched his penis. (See Dkt. 1 at 5; Dkt. 20 at 3; Dkt. 51 at ¶ 5). Therefore, Plaintiff has sufficiently alleged that Mastrangelo's conduct was more than a mere "manipulat[ion] of his genitals to both retrieve drugs and conduct a thorough search." (Dkt. 45-4 at 4).
Defendants also point to the fact that "Plaintiff does not allege that the offending search caused him any pain or injury." (Dkt. 45-4 at 5). As the Court already noted in its Decision and Order denying Defendants’ motion to dismiss (Dkt. 26 at 6), there is no threshold degree of injury a plaintiff must allege in order to successfully pursue an excessive force claim. See Campbell v. City of N.Y. , No. 06-cv-5743, 2010 WL 2720589, at *8 (S.D.N.Y. June 30, 2010) ("It is the force used , not the injuries caused, which must be determined to be de minimis as a matter of law."); Yang Feng Zhao v. City of N.Y. , 656 F. Supp. 2d 375, 390 (S.D.N.Y. 2009) ("Even in the arrest context, ... the Second Circuit has indicated that a very minimal injury is sufficient to trigger potential [Fourth Amendment] liability."); Love , 2004 WL 1683159, at *5 ("[W]here there is no need for force, any force used is constitutionally unreasonable." (internal quotation marks and citation omitted)). Therefore, for the reasons described above, the Court denies summary judgment as to Plaintiff's claim against Mastrangelo. IV. Failure to Intervene
Defendants also seek summary judgment on Plaintiff's claim against Drayton and DiPrimo for failure to intervene when Mastrangelo used the above-described excessive force. (Dkt. 45-4 at 2-3).
"It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Anderson v. Branen , 17 F.3d 552, 557 (2d Cir. 1994). Therefore, "liability attaches where (1) the officer had a realistic opportunity to intervene to prevent the harm; (2) a reasonable person in the officer's position would have known that the victim's constitutional rights were being violated; and (3) the officer did not take reasonable steps to intervene." Gochnour v. Burri , No. 6:15-CV-06174, 2018 WL 10944594, at *3 (W.D.N.Y. July 9, 2018).
On a motion for summary judgment, a defendant "may discharge its burden of proof merely by pointing to an absence of evidence to support an essential element of [Plaintiff's] claim." Vasquez v. United States , No. 14-CV-1510, 2016 WL 315879, at *5 (S.D.N.Y. Jan. 15, 2016) (internal quotation marks and citation omitted). The burden then shifts to Plaintiff "to come forward with specific facts" showing that there is a genuine dispute as to a material fact. Matsushita Elec. Indus. Co. , 475 U.S. at 586-87, 106 S.Ct. 1348 (internal quotation marks and citation omitted).
Here, Defendants have satisfied their initial burden. Specifically, Defendants assert that Plaintiff "does not provide any facts demonstrating that the alleged offensive conduct occurred in such a manner that DiPrimo and Drayton saw or observed same.... There have been no material facts elicited to show that either Officer was in a position to observe any unlawful conduct by Mastrangelo, who had a lawful basis to reach inside of Plaintiff's pants to recover a large quantity of drugs." (Dkt. 45-4 at 2).
Plaintiff has failed to respond—either at the motion to dismiss stage or at the summary judgment stage—to arguments that his failure to intervene claim is not viable. (See Dkt. 20; Dkt. 52). See also Chamberlain v. City of White Plains , 986 F. Supp. 2d 363, 392 (S.D.N.Y. 2013) ("A court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed." (internal quotation marks and citation omitted)). The only material fact in the record regarding Drayton and DiPrimo is Plaintiff's allegation in the complaint that they were present and stood and watched while Mastrangelo carried out the search. (See Dkt. 1 at 6). However, in opposing a motion for summary judgment, a party "may not rely simply on conclusory statements." Goenaga v. Mar. of Dimes Birth Defects Found. , 51 F.3d 14, 18 (2d Cir. 1995) ; see also Transflo Terminal Servs. Inc. v. Brooklyn Resource Recovery, Inc. , 248 F. Supp. 3d 397, 399 (E.D.N.Y. 2017) ("Conclusory statements, devoid of specifics, are insufficient to defeat a properly supported motion for summary judgment.").
On this record, Defendants have met their burden by showing the lack of evidence necessary to support a failure to intervene claim, and Plaintiff cannot rely solely on the conclusory statements alleged in his complaint, which fail to provide any detail—such as the length of time the assault lasted and how close Drayton and DiPrimo were at the time—from which a reasonable juror could conclude that Drayton and DiPrimo had an opportunity to intervene in the claimed excessive use of force. See, e.g. , Henry v. Dinelle , No. 9:10-CV-0456, 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) ("Generally, officers cannot be held liable for failure to intervene in incidents that happen in a matter of seconds." (internal quotation marks and citation omitted)); cf. Figueroa v. Mazza , 825 F.3d 89, 108 (2d Cir. 2016) (concluding that a reasonable jury could find in the plaintiff's favor on failure to intervene claim even though assault only lasted approximately twenty seconds because the plaintiff had testified that the defendant officers were in close proximity to him at the time of the assault and that there were no "obstacles that might have hindered their ability to intercede"). Therefore, Defendants are entitled to summary judgment on Plaintiff's failure to intervene claim.
Because Plaintiff's failure to intervene claim fails on the merits, the Court does not need to reach the issue of whether Drayton and DiPrimo would be entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 45) is granted in part and denied in part. In particular, the Court grants Defendants’ motion with respect to any claim based on the Fourteenth Amendment and with respect to the failure to intervene claims against Drayton and DiPrimo and denies Defendants’ motion as to the excessive force claim against Mastrangelo.
SO ORDERED.