Full opinion text
MEMORANDUM OPINION AND ORDER HOLWELL, District Judge. Plaintiff Jamel “Abdula” Allen brings suit against the City of New York (“City”), Captain Sakellardis, and Correction Officers Crespo, Merced, and Reyes (collectively, “defendants”), alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Allen claims that, while being held in custody at Rikers Island, he was assaulted by corrections officers and then falsely arrested and maliciously prosecuted in connection with the incident, all in violation of his constitutional rights. On December 5, 2005, defendants moved for summary judgment on all of Allen’s claims in his Second Amended Complaint. On September 29, 2006, Magistrate Judge Debra Freeman issued a Report and Recommendation (the “Report”) recommending that defendants’ motion for summary judgment be granted as to defendants Sakel-lardis, Crespo, Reyes, and the City of New York, and that all of Allen’s claims against these defendants be dismissed. As to defendant Merced, the Report recommends that the motion for summary judgment be granted as to Allen’s § 1983 claim predicated on false arrest, but denied as to the § 1983 claims predicated on the use of excessive force and malicious prosecution. Finally, the Report recommends that the Court decline to reach any state law assault claim not pleaded in this action, and, to the extent that Allen may have attempted to plead a due process or retaliation claim, that the Court dismiss any such claim on summary judgment, as to all defendants. Allen filed timely objections to the Report (“Objection”); the Court has received no objections from defendants. For the reasons set forth below, the Court denies defendants’ motion for summary judgment on Allen’s failure-to-intervene claim against Sakellardis and Crespo but otherwise adopts the Report in its entirety. DISCUSSION The facts underlying Allen’s claims are extensively outlined in the Report, familiarity with which is assumed, and which is attached to this Opinion for ease of reference. I. Standard of Review A. Dispositive Motions The district court adopts a magistrate judge’s report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing “the Report, the record, applicable legal authorities, along with Plaintiffs and Defendant’s objections and replies.” Bandhan v. Lab. Corp. of Am., 234 F.Supp.2d 313, 316 (S.D.N.Y.2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F.Supp. at 1189. If, however, the party “makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.” Sanchez v. Dankert, No. 03 Civ. 2276(LTS), 2004 U.S. Dist. LEXIS 3716, 2004 WL 439502, at *1 (S.D.N.Y. Mar.9, 2004); accord Johnson v. City Univ. of New York, No. 00 CV 4964(WK), 2003 U.S. Dist. LEXIS 10615, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). “If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error.” Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y.2006) (internal quotation marks and citations omitted). B. Summary Judgment Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the burden of demonstrating that no genuine issue of fact exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party succeeds in this showing, the burden shifts to the nonmoving party to demonstrate that an issue of material fact does exist. Id. In order to defeat a motion for summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(c)). II. Allen’s Objections For the most part, Allen’s objections merely reiterate the arguments made in his opposition to summary judgment, and his only evidence to support the objections are the exhibits to his opposition. He objects to the recommendation that his excessive force claim against defendants Sakellardis, Crespo, and Reyes be dismissed, arguing once again that their use of force to pull him into the dormitory while he physically resisted constituted cruel and unusual punishment in violation of the Eighth Amendment. With respect to his claim against the City, Allen concedes that he has failed to demonstrate the existence of a municipal practice or “policy that was the moving force of the constitutional violation[s]” alleged in his Second Amended Complaint, a prerequisite to holding the City liable under § 1983 for the individual defendants’ actions, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), but he renews his application for additional discovery to develop this claim. To the extent that these arguments “engage the district court in a rehashing of the same arguments” made in Allen’s opposition to the motion for summary judgment, the appropriate standard of review is clear error. Edwards, 414 F.Supp.2d at 346-47. Allen argues, however, that Sakellardis, Crespo, and Reyes should be held liable for their failure to intervene to prevent or stop the alleged assault by Merced, which Allen claims occurred while he was in handcuffs and was being led from the dormitory to Intake, necessitating de novo review of this aspect of the Report. The Report did not consider a failure-to-intervene claim against Sakellardis, Crespo, or Reyes because the Magistrate Judge concluded that neither Allen’s Second Amended Complaint nor his opposition stated such a claim. (Report 20 n.ll.) Nevertheless, having generously reviewed the pleadings and briefs in light of Allen’s objections, the Court concludes that Allen inartfully attempted to state such a claim, at least with respect to Sakellardis and Crespo. Allen states that, “Capt. Sakel-lardis was the supervisory in charge of the incident, but let C.O. Merced dictate the situation.... ” (Opp’n 8.) Allen then describes how Merced banged Allen’s head against the wall and states that Sakellar-dis, Merced, and Crespo “should individually be liable for the actions in this incident.” (Id.) Allen also cites Wright v. Smith, in which the Second Circuit held that “a defendant who occupies a supervisory position may be found personally involved in the deprivation of a plaintiffs constitutionally protected liberty” where the supervisory official “was grossly negligent in managing subordinates who caused the unlawful condition or event.” 21 F.3d 496, 501 (2d Cir.1994) (quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)). Although Wright is not a duty-to-intervene case, the Court understands Allen to argue that Sakellardis and Crespo should be liable for standing by without intervening when Merced assaulted him. This is not an illogical claim to bring, and a reasonable plaintiff in Allen’s position would be expected to raise such a claim. For these reasons, the Court deems Allen’s allegations sufficient to raise a claim against Sakellardis and Crespo for failure to intervene. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (“We read [the pro se party’s] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest.”); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988) (referring to the “special solicitude” afforded pro se litigants when confronted with motions for summary judgment). Although defendants do not address squarely what happened as Merced led Allen back to Intake, they state that they applied force only to move Allen into the dormitory (Def. Rule 56.1 Statement ¶ 16), implicitly denying that any force was used thereafter. The Court will therefore consider whether summary judgment should be granted for defendants on Allen’s failure-to-intervene claim. “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) (citing O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988)). An officer who does not personally inflict the injury at the core of an excessive use of force claim may still be liable under § 1983 where the officer fails to intervene to prevent the harm, in spite of a “realistic opportunity” to do so, O’Neill, 839 F.2d at 11-12, and “observes or has reason to know ... that excessive force is being used.” Anderson, 17 F.3d at 557. “Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Id. Viewing the evidence in the light most favorable to Allen, defendants’ motion for summary judgment with respect to Sakellardis and Crespo must be denied. Allen testified that Sakellardis and Crespo accompanied Merced and Allen to Intake. (See Allen Dep. 47 ¶¶9-15 (Def.Ex. Q.) Defendants appear to dispute whether Sakellardis accompanied the other officers, as Crespo’s “Use of Force Report” states that Merced and Crespo, but not Sakellar-dis, escorted Allen to Intake. (See Crespo Use of Force Report 2 (Objections Ex. B, at 12).) It is also unclear from the Allen’s description of the incident how long the alleged assault by Merced lasted, although Allen states that “Merced had plaintiffs arm up in a ninety degree angle and began banging the plaintiffs head against the wall outside the dorm 4-Upper, while going down the steps” (Opp’n 8), suggesting multiple bangs to the head as the party walked down the steps to Intake. Thus, a jury could conclude that, because Merced repeatedly banged Allen’s head against the wall, there was a reasonable opportunity for Sakellardis and Crespo to intervene on Allen’s behalf, if the jury believed that both officers were witnesses to the incident. See, e.g., Sims v. Griener, No. 00 Civ. 2524(LAP), 2001 U.S. Dist. LEXIS 15527, 2001 WL 1142189, at *5 (S.D.N.Y. Sept.27, 2001) (finding that evidence was sufficient for jury to find that non-intervening corrections officers had opportunity to intervene on prisoner’s behalf when four other officers attacked prisoner); Hickey v. City of New York, No. 01 Civ. 6506(GEL), 2004 U.S. Dist. LEXIS 23941, 2004 WL 2724079, at *13 (S.D.N.Y. Nov.29, 2004) (finding sufficient evidence for jury to find that police officer had opportunity to prevent his partner from shooting plaintiff); Ortiz v. Cornacchia, No. 88 Civ. 5988(CHT), 1990 U.S. Dist. LEXIS 8778, 1990 WL 103982, at *4 (S.D.N.Y. July 16, 1990) (denying summary judgment where officers failed to prevent fellow officer from assaulting prisoner in an elevator). Therefore, defendants’ motion for summary judgment on Allen’s claims against Sakellardis and Crespo for failure to intervene to halt the alleged assault by Merced must be denied. III. Qualified Immunity Defendants move to have the Second Amended Complaint dismissed in its entirety against the defendant corrections officers (Sakellardis, Crespo, Merced, and Reyes) on the basis of qualified immunity. The only claims that in the absence of immunity would survive summary judgment are the excessive force and malicious prosecution claims against Merced and the failure-to-intervene claims against Sakel-lardis and Crespo. With respect to Merced, the Court has reviewed the Report for clear error and agrees that Merced is not entitled to qualified immunity on Allen’s claims for excessive force or malicious prosecution. Therefore, the Court need only consider here whether qualified immunity applies to the failure-to-intervene claims against Sakellardis and Crespo. Defendants are entitled to qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “To overcome the defense of qualified immunity for failure to intercede where others have engaged in excessive force, a plaintiff must show that the failure to intercede permitted fellow officers to violate an individual’s clearly established rights of which a reasonable officer would have known, and ‘the failure to intercede must be under circumstances making it objectively unreasonable for him to believe that his fellow officers’ conduct did not violate those rights.’ ” Speights v. City of New York, Nos. 98 Civ. 4635(NG)(JMA), 98 Civ. 4636(NG)(JMA), 2001 U.S. Dist. LEXIS 10433, 2001 WL 797982, at *6 (E.D.N.Y. June 18, 2001) (quoting Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129 (2d Cir.1997)). “On summary judgment it is necessary to show that no reasonable trier of fact could find that the defendants’ actions were objectively unreasonable.” Desulma v. City of New York, No. 98 Civ. 2078(RMB)(RLE), 2001 U.S. Dist. LEXIS 9678, 2001 WL 798002, at *8 (S.D.N.Y. July 6, 2001). On the facts as alleged by Allen, a reasonable juror could find that Sakellardis and Crespo’s failure to intervene while Merced assaulted Allen permitted Merced to violate Allen’s clearly established rights of which a reasonable officer would have been aware and that this failure to intervene was objectively unreasonable. Therefore, Sakellardis and Crespo are not entitled to qualified immunity. See Sims, 2001 U.S. Dist. LEXIS 15527, 2001 WL 1142189, at *6 (denying qualified immunity to corrections officers alleged to have witnessed an attack on inmate). CONCLUSION Having reviewed the specific portions of the Report to which Allen objected de novo, and having reviewed the remainder of the Report for clear error, the Court adopts the Report and Recommendation of Magistrate Judge Freeman with the above modification. Defendants’ motion [62] for summary judgment is granted in part and denied in part. Defendants’ motion for summary judgment is granted as to defendants Reyes and the City of New York, and all of Allen’s claims against these defendants are dismissed. As to defendant Merced, the motion for summary judgment is granted as to Allen’s § 1983 claim predicated on false arrest, but denied as to the § 1983 claims predicated on the use of excessive force and malicious prosecution. As to defendants Sakellardis and Crespo, the motion for summary judgment is granted as to Allen’s § 1983 claims predicated on false arrest, malicious prosecution, and use of excessive force, but denied as to the § 1983 claim predicated on a failure to intervene. A telephonic conference regarding the status of this matter shall be held on Thursday, April 19, 2007, at 10:00 a.m. The office of Corporation Counsel shall make arrangements for Allen to participate the call and shall initiate the call to the Chambers of the Honorable Richard J. Holwell on that date. The telephone number for Chambers is (212) 805-0256. SO ORDERED. REPORT AND RECOMMENDATION FREEMAN, United States Magistrate Judge. INTRODUCTION In this action pursuant to 42 U.S.C. § 1983, defendants the City of New York (the “City”), Captain Sakellardis, and Correction Officers Crespo, Merced and Reyes (collectively “Defendants”) have moved for summary judgment dismissing the claims of pro se plaintiff Jamel “Abdula” Allen (“Allen”). Liberally construed, Allen’s claims principally allege that, while being held in custody at Rikers Island, he was assaulted by correction officers and then falsely arrested and maliciously prosecuted in connection with the incident, all in violation of his constitutional rights. For the reasons stated below, I respectfully recommend that the. Defendants’ motion for summary judgment be granted in part and denied in part. BACKGROUND A. Events of April 16, 2001 Many of the facts in this case are undisputed, including the background of the events in question. In 1999, while Allen was on parole after serving prison time for a state drug conviction, he was arrested on a new, federal weapons possession charge. (Declaration of Seth D. Eichenholtz (“Ei-chenholtz Decl.”), Ex. C (Transcript of deposition of Jamel “Abdula” Allen, dated Mar. 28, 2005), at 13-22.) In 2000, Allen was convicted of the federal crime and sentenced to federal prison. (Id. at 17-18.) Before commencing his federal sentence, however, he was first transferred to Rikers Island, a New York City jail, in order to face a state parole revocation hearing. (Allen’s Local Rule 56.1 Statement, dated June 27, 2006 (“Allen Rule 56.1 Statement”) (Dkt.70), ¶ 3.) On April 16, 2001, Allen was apparently in the process of being transferred from one Rikers Island facility to another, when he was informed by defendant Correction Officer Reyes (“Reyes”) that he was going to be moved into a dormitory area instead. (Id. ¶ 9; Eichenholtz Decl., Ex. C, at 37-38.) Allen did not want to be placed in a dormitory, and he told Reyes that he would refuse to go there. (Allen Rule 56.1 Statement ¶ 10.) Other correction officers became involved, and Allen was given a direct order by the officers to move into the dormitory. (Id. ¶¶ 12-22; Eichenholtz Decl., Ex. C, at 40.) Eventually, after Allen repeatedly stated that he was refusing the direct order, defendants Correction Officer Crespo (“Crespo”) and Captain Sakellardis (“Sakellardis”) tried, physically, to place him in the dormitory. (Eichenholtz Decl., Ex. C., at 39-40; Defendants’ Local Rule 56.1 Statement, dated Dec. 5, 2005 (“Def. Rule 56.1 Statement”), ¶¶ 7-9.) Allen fully admits that he refused a direct order, and does not dispute that all these two officers did was attempt to move him into the dormitory. (Eichenholtz Decl., Ex. C, at 44-45.) He does.not contend that either of the Officers punched or kicked him, or otherwise used physical force against him (id.); he merely complains that they tried to “pull” him into the dormitory area (id. at 41; Allen Rule 56.1 Statement ¶ 25). Allen also freely concedes that he resisted their efforts to do so, testifying at his deposition that he “pulled back” the entire time, saying “I’m not going inside the dorm.” (Eichenholtz Decl., Ex. C, at 42; Allen Rule 56.1 Statement ¶ 26.) The only facts about this incident that appear to be disputed by the parties relate to the role of defendant Correction Officer Merced (“Merced”). According to Merced’s account, as memorialized in a written “Notice of Infraction,” he attempted to pick up Allen’s property to place it in the dormitory, and Allen reacted by kicking him in the leg. (Eichenholtz Deck, Ex. D (Notice of Infraction, dated Apr. 16, 2001).) A Correctional Health Services record shows that Merced was seen after the incident for “pain around [the] knee area,” and was found to have “medial tenderness,” although all other diagnostic findings were negative. (Eichenholtz Deck, Ex. E (Correctional Health Services Report, dated Apr. 16, 2001).) Allen, for his part, contends that he never kicked Merced. Rather, Allen asserts that, after Merced had already placed Allen’s property in the dormitory area, and after the other officers had grabbed Allen’s arms to try to pull him into the dormitory, Merced came up on him from behind, “put [him] in a headlock,” and “tripped [him] to the floor.” (Allen Rule 56.1 Statement ¶ 27.) According to Allen, once he was on the floor, he was handcuffed, and Merced lifted his arms in a “ninety degree angle.” (Id. ¶¶ 28-29.) Allen states that he was then “lifted off the floor,” and, with his arms still forcibly raised behind his back, he was walked by the officers down some steps, to the “intake” area. (Id. ¶¶ 29-32.) Alen further asserts that, while he was being walked down the steps, with his arms held up behind him and his head facing down, Merced was “banging [his] head against the wall” (id. ¶ 30; Eichen-holtz Deck, Ex. C, at 46-47); according to Alen, this conduct was not accidental, but rather intentional (Eichenholtz Deck, Ex. C, at 46). Alen asserts that, when he was later taken to the medical clinic, he had “swelling and bruises to [his] head.” (Id. at 48.) Photographs of Alen’s face were apparently taken at that time, although it is difficult to see any injury in the copies of the photographs that Alen has submitted to the Court. (Affidavit of Jamal Alen in Support of Opposing Motion for Summary Judgment, sworn to Feb. 28, 2006 (“Pl. Mf.”), Ex. F (Photographs of Alen, dated Apr. 16, 2001).) A written “Injury To Inmate Report,” however, does record that Alen’s forehead was “slightly erythema-tous” (i.e., reddened), and that he had a small (one centimeter) superficial bruise on his forehead, which was treated with Baci-tracin ointment. (Pl. Mf., Ex. E (Injury to Inmate Report, dated Apr. 16, 2001).) B. The Charges Brought Against Allen In connection with this incident, Alen was charged by the New York City Correction Department with two infractions: refusing a direct order and assaulting a member of the staff. (Eichenholtz Decl., Ex. D.) Alen claims that the latter of these two charges was false. He further claims that he received 100 days in solitary confinement as a result of the charges — 10 days for the charge of refusing a direct order, and another 90 days for the allegedly false charge of assaulting a correction officer. (Alen Rule 56.1 Statement ¶ 37; Pl. Mf., Ex. H (Notice of Disciplinary Hearing Disposition, dated Apr. 20, 2001).) In addition, on the basis of Merced’s report, Alen was criminally charged in state court with felony and misdemeanor assault, as well as harassment and obstructing governmental administration, although it appears that all of these charges were eventually dismissed on motion of the District Attorney. (See Eichenholtz Deck, Ex. G (People v. Jamel Allen, Certificate of Disposition, dated June 28, 2002); Pl. Mf., Ex. B (Criminal Complaint sworn to by Correction Officer Jill Kiley on May 4, 2001).) According to Alen, his damages from the false accusation against him stem in part from the fact that he was held in state custody for a substantial period of time, pending the disposition of the criminal assault charges against him. (See Eichenholtz Decl., Ex. C, at 77-82.) The criminal charges, he argues, would not have been brought, were it not for Merced’s false statement as to who assaulted whom. (See id.) Alen also contends that he was only transferred back to federal custody when the state assault charges were dismissed, and that his federal sentence only started to run as of that point. (See id.) He contends that, because any remaining state prison term that was imposed as a result of his parole revocation was supposed to run concurrently with his federal sentence, his parole revocation provided no independent basis for the state to hold him in state custody. (See id.) Thus, although Defendants dispute this, Alen claims that his overall time in prison was unlawfully lengthened — for a period of 13 months. (See id. at 80-83.) C. Prior Proceedings in this Action 1. Allen’s Original Complaint Allen commenced this action on October 20, 2001, by filing a Complaint against the Federal Bureau of Prisons, the City, the Division of Parole, and the Department of Correction for alleged violations of Allen’s civil rights. (See Dkt. 2.) On June 11, 2002, the Court (Mukasey, J.) issued an order dismissing Allen’s claims as against the named defendants. (See Dkt. 3 (“6/11/02 Order”).) The Court dismissed the claims against the City and the Department of Correction on the ground that Allen had not alleged facts sufficient to show that his injuries were caused by “an officially adopted policy or custom” of the municipal defendants, as required for actions under 42 U.S.C. § 1983 against municipal entities. (See id. at 3 (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).) The Court also found that Allen’s claims regarding procedural irregularities in his parole revocation hearing were subject to dismissal under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). (See 6/11/02 Order at 4.) Finally, Allen’s claims against the Federal Bureau of Prisons were dismissed based on the doctrine of sovereign immunity. (See id. at 8-9.) The Court, however, granted Allen leave to amend his Complaint to allege claims against the individual correction officers who purportedly physically abused him. (See id. at 9-10.) 2. Allen’s Efforts To Amend His Complaint On June 21, 2002, in accordance with the Court’s Order, Allen filed an Amended Complaint naming specific correction officers as defendants. (Dkt.4.) In that Amended Complaint, however, Allen also repleaded his claims against the City, even though the Court had not granted him leave to do so. Apparently, Allen sought to cure the defect in his original claims against the City by pleading that there was, in fact, a City custom or policy in place that led to his injury. Following his filing of an Amended Complaint, Allen sought leave to amend his pleading again, so as to add back, as defendants, the Federal Bureau of Prisons, the Division of Parole, and the New York City Department of Correction. (See Dkt. 11.) This Court denied Allen leave to add those three defendants, based on Judge Mukasey’s June 11, 2002 Order of dismissal. (See Dkt. 12.) By motion dated November 7, 2003, Allen then moved to add as defendants the State of New York and, once again, the New York City Department of Correction. (See Dkt. 37.) By a further submission in May 2004, however, Allen appeared to withdraw his request to add the State as a defendant. In addition, in connection with a proposed Amended Complaint dated May 5, 2004, Allen formally sought to amend his pleading to add the City as a defendant — even though Allen’s first Amended Complaint had already named the City. In this last proposed pleading, Allen alleged more fully that the City had a custom of allowing correction officers at Rikers Island to beat prisoners, such as Allen, into submission. (See proposed Amended Complaint, dated May 5, 2004, at 3.) By Order dated June 8, 2004, this Court sought to resolve Allen’s outstanding motions relating to the scope of his pleading. (See Dkt. 46.) The Court accepted Allen’s May 5, 2004 proposed amended pleading, deeming it Allen’s “Second Amended Complaint,” except that the Court denied Allen’s motion to add the Department of Correction as a defendant, on the grounds that (a) the Court had already denied the same motion previously (See id. (citing Dkt. 12)), and that, (b) in any event, the proposed amendment would be futile, as the Department was a non-suable entity (id., citing, e.g., Echevarria v. Department of Corr. Servs. of New York City, 48 F.Supp.2d 388 (S.D.N.Y.1999)). The Court further found that Allen’s outstanding motion to add the State of New York as a defendant was moot, in light of Allen’s apparent withdrawal of that motion. Finally, the Court held that Allen would be permitted to proceed against the City, and to add his proposed new allegations in support of his claim that the City had a custom and practice of permitting the use of excessive force against inmates. Accordingly, the operative pleading in this case is Allen’s Second Amended Complaint, dated May 5, 2004 ((“2d Am. Compl.”) (Dkt.49)), and the only defendants currently in the case are those named in the caption of that pleading (i.e., the City and the four individually-named correction officers identified above). ■ 3. Defendants’ Motion for Summary Judgment On December 5, 2005, Defendants moved for summary judgment on all of Allen’s claims. As to Allen’s claim that he was subjected to the use of excessive force, Defendants argue that the force applied by the defendant officers was de minimis and necessary in light of Allen’s refusal to obey a direct order, and that Allen’s claim thus cannot stand. (Def. Mem. at 13-19.) With respect to Allen’s claim of false arrest, Defendants argue that the claim must fail because there was probable cause for Allen’s arrest, given his admitted refusal to obey a direct order, and his physical resistance when the officers attempted to escort him into the dormitory. (Id. at 5-8.) Finally, Defendants argue that Allen’s malicious prosecution claim, relating to the criminal charges of assault filed against him, must also fail, not only because the underlying arrest was legal, but also because Defendants did not themselves initiate the criminal proceedings, there is no evidence of malice, and Allen suffered no actual deprivation of liberty. (Id. at 8-13.) Defendants also argue that the defendant officers are entitled to qualified immunity with respect to each of Allen’s claims (id. at 19-21), and that there is no basis for Allen’s Monell claims against the City, as Allen has failed to demonstrate the existence of a municipal policy or custom, or a connection between such policy or custom and a deprivation of his constitutional rights (id. at 21-24). In his opposition papers, Allen argues that his excessive force claim should survive Defendants’ motion because the force used against him was not necessary to maintain order, as he was already handcuffed at the time Merced banged his head against a wall, and as his only offense was refusing to go into the dormitory housing area. (Pl. Opp. at 9-15.) Acknowledging that the medical records do not reflect that he suffered a serious head injury, Allen nonetheless maintains that a showing of extreme injury is not required to succeed on an excessive force claim. (Id. at 12-15.) As to his false arrest claim, Allen maintains that his arrest was not supported by probable cause, and that this claim should therefore go forward. (Id. at 1-3.) Finally, Allen argues that his malicious prosecution claim is supportable because (1) Defendants initiated the criminal proceedings by drafting a false misbehavior report; (2) the proceedings were terminated in his favor; (3) there was no probable cause to prosecute the assault charges because he never assaulted Merced; (4) the false misbehavior report evidences Defendants’ malicious intent; and (5) his sentence was lengthened due to this criminal prosecution, constituting a deprivation of his Fourth Amendment rights. (Id. at 4-7.) As to each of his claims, Allen contends that the defendant officers are not entitled to qualified immunity. (Id. at 18-22.) He further contends that his claim against the City should stand because, according to a CNN news article, the City has engaged in a custom established by Rikers Island guards of beating inmates. (Id. at 22-25.) Moreover, Allen contends that the City has failed to discourage officers from writing false misbehavior, reports and from perjuring themselves. (Id.) In their reply papers, Defendants reiterate certain of their earlier arguments (Def. Reply Memo. at 1-4, 6-10), and also point out that the Rule 56.1 Statement submitted by Allen in opposition to their motion is deficient, in that it fails to controvert Defendants’ statements of fact in corresponding numbered paragraphs, and with citations to evidence (id. at 1 n. 1; Def. Reply ¶¶ 1-41). Therefore, Defendants argue, all of the facts set forth in their own Rule 56.1 Statement should be deemed admitted. (Def. Reply Mem. at 1 n. 1.) 4. Allen’s Motion for Additional Discovery Discovery in this case was closed well prior to Defendants’ motion. Yet in response to Defendants’ reply papers, Allen moved on March 27, 2006 to reopen discovery for the “limited” purpose of obtaining evidence to support his Monell claim against the City. Specifically, Allen requested discovery regarding: (1) “the policy concerning the appropriate procedure of the supervising, training, and disciplining, and security and monitering [sic] of day to day operations,” (2) “the policy concerning the appropriate procedure that needs to be taken when an inmate refuses a direct order,” and (3) “the policy concerning the use of excessive force.” (Dkt.68.) On April 7, 2006, the Court denied Allen’s motion, while noting that the Court would reconsider its decision, “[i]f, upon review of the [summary judgment] motion, the Court determines that any of the requested discovery would be appropriate.” (See id. (Mem.Endors.).) DISCUSSION I. SUMMARY JUDGMENT STANDARD A. Rule 56 Under Rule 56(c), a motion for summary judgment may be granted when the parties’ sworn submissions show that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996). The moving party bears the burden of showing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In considering a summary judgment motion, the Court must “view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, where the party opposing summary judgment is proceeding on a pro se basis, the Court must read that party’s papers liberally and interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (internal quotation marks and citation omitted). Even a pro se plaintiff, however, cannot withstand a motion for summary judgment by relying merely on the allegations of a complaint. See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir.1996). Rather, when confronted with evidence of facts that would support judgment in the defendant’s favor as a matter of law, the plaintiff must come forward with evidence in admissible form that is capable of refuting those facts. See Fed.R.Civ.P. 56(e); see also Jermosen v. Coughlin, 877 F.Supp. 864, 867 (S.D.N.Y.1995) (pro se plaintiffs must make proper evidentiary showing in order to defeat summary judgment). Overall, the Court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Am. Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir.1967); accord Sutera v. Sobering Corp., 73 F.3d 13, 15-16 (2d Cir.1995). Only where there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party, is summary judgment appropriate. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991). B. Local Civil Rule 56.1 Under this Court’s rules, a party moving for summary judgment under Rule 56 must submit “a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a). If the opposing party fails to respond to the moving party’s Rule 56.1 Statement, then the material facts contained in the moving party’s statement are deemed admitted as a matter of law. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003); See also Local Civ. R. 56.1(c) (“Each numbered paragraph in the statement of material facts required to be served by the moving party will be deemed admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.”). If the moving party seeks summary judgment against a pro se litigant, the moving party is also required to notify the pro se litigant of the requirements of Rule 56 and Local Rule 56. 1, in the specific form prescribed by this Court’s rules. Local Civ. R. 56.2. pro se litigants are then not excused from meeting the requirements of Local Rule 56.1. See Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir.2004) (upholding Local Rules 56.1 and 56.2). As the Second Circuit has explained, “[t]he purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing the district courts from the need to hunt through voluminous records without guidance from the parties.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir.2001). Local Rule 56. 1, however, does not relieve the party seeking summary judgment of the burden of establishing that it is entitled to judgment as a matter of law. Id. The Court may not rely solely on the statement of undisputed facts contained in the moving party’s Rule 56.1 Statement; it also must be satisfied that the moving party’s assertions are supported by the record. See Vt. Teddy Bear Co., Inc., 373 F.3d at 244; see also Holtz, 258 F.3d at 74; Zerafa v. Montefiore Hosp. Hous. Co., 403 F.Supp.2d 320, 329 n. 12 (S.D.N.Y.2005). Summary judgment may only be granted where the Court is satisfied that the undisputed facts, as supported by the record, “ ‘show that the moving party is entitled to a judgment as a matter of law.’ ” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (quoting Fed.R.Civ.P. 56(c)). II. ADEQUACY OF ALLEN’S RULE 56.1 STATEMENT As a preliminary matter, the Court faces the question of whether, for purposes of this motion, it should deem all facts set forth in Defendants’ Rule 56.1 Statement to be admitted because, despite having received notice of the requirements of the local rule, Allen failed to adhere to all of those requirements in his opposing Statement. (See Def. Reply at ¶¶ 1-41.) On this question, Defendants note that, although Allen’s Rule 56.1 Statement contains numbered paragraphs with discrete factual assertions, those paragraphs do not correspond to Defendants’ own paragraphs, as required by Local Civil Rule 56.1(b). Moreover, Defendants note that, although Allen’s Statement does contain some citations to the record, it does not do so throughout. See Local Civ. R. 56.1(d). As Allen has not fully complied with these aspects of the rule, Defendants argue that he has not effectively raised any disputed issues of fact. (See Def. Reply Mem. at 1 n.l.) Despite Allen’s failings in this regard, however, he has plainly made substantial efforts to respond to Defendants’ motion, with a sworn affidavit, documentary evidence, and a Rule 56.1 Statement, which, while imperfect, does effectively highlight for the Court those facts that Allen believes to be in dispute. Further, the areas of dispute in this case are readily apparent, not only from Allen’s Rule 56.1 Statement, affidavit, and memorandum of law, but also from the portions of the discovery record submitted by Defendant, including excerpts of Allen’s sworn deposition testimony. At his deposition, Allen gave testimony that plainly controverts certain of Defendants’ statements of supposedly “undisputed” fact. (Compare, e.g., Def. Rule 56.1 Statement ¶ 12) (stating that “Plaintiff assaulted defendant Merced”) with Ei-chenholtz Decl., Ex. C, at 45 (in which Allen testified that he “didn’t kick nobody”; id. at 59-60 (in which Allen testified that he did not agree with Merced’s statement that he was assaulted by Allen).) Under the circumstances, it is difficult to see how Defendants have been prejudiced by Allen’s failure to submit a fully-compliant Rule 56.1 Statement. Given that Allen is proceeding pro se, that summary judgment may only be granted where the Court is satisfied that there is no genuine issue of material fact, and that, in this instance, it is not difficult for the Court — or for Defendants — to review the evidentiary record to determine where any disputed issues may lie, the Court declines to accept blindly as “admitted” all factual averments made by Defendants. See Holtz, 258 F.3d at 73 (court “has broad discretion to determine whether to overlook a party’s failure to comply with local court rules”) (citations omitted); see also, e.g., Melendez v. Devry Corp., No. 03 Civ. 1029, 2005 WL 3184277, **1-2, 2005 U.S. Dist. LEXIS 31384, at *3-5 (E.D.N.Y. Nov. 29, 2005) (declining to deem admitted all facts set forth in defendant’s statement, where plaintiff was proceeding pro se); Berdugo v. City of New York, No. 03 Civ. 7319, 2004 WL 1900357, *1, 2004 U.S. Dist. LEXIS 16870, at *2 n. 1 (S.D.N.Y. Aug. 23, 2004) (where plaintiff failed to follow requirements of Local Rule 56.1, deeming defendants’ statements of facts admitted, but only to the extent that they were supported by the record); Gayman v. Pathmark Stores, Inc., No. 04 Civ. 7882, 2005 WL 1540812, *2, 2005 U.S. Dist. LEXIS 12868, at *6 n. 3 (S.D.N.Y. June 30, 2005) (refusing to grant procedural default, where plaintiffs Rule 56.1 statement was numbered in such a way to make it clear which paragraphs of defendant’s 56.1 statement plaintiff was disputing); Ostroski v. Southold, 443 F.Supp.2d 325, 333 (E.D.N.Y.2006) (concluding that plaintiff not prejudiced, despite defendant’s initial failure to submit a Local Rule 56.1 Statement, where the “relevant facts [in dispute] were readily apparent from the facts section of the memorandum of law”). Rather, the Court will “consider the totality of the parties’ submissions in identifying disputed material facts, and will construe those disputed facts in plaintiffs favor as is appropriate on summary judgment.” Hamilton v. Bally of Switz., No. 03 Civ. 5685, 2005 U.S. Dist. LEXIS 9319, at *3-4 (S.D.N.Y. May 12, 2005); see also Melendez, 2005 WL 3184277, *2, 2005 U.S. Dist. LEXIS 31384, at *5 (examining “the entire record before the court, glean[ing] the material facts therefrom, and deciding] the motion based on those facts” despite plaintiffs failure to comply with Local Rule 56.1(c)). III. ALLEN’S CLAIMS Section 1983 of Title 42 of the United States Code “establishes liability for deprivation under the color of state law ‘of any rights, privileges, or immunities secured by the Constitution.’ ” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (quoting 42 U.S.C. § 1983). Section 1983 does not create new rights; it merely provides a mechanism “for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993). Accordingly, to succeed on a claim for violation of civil rights under 42 U.S.C. § 1983, a plaintiff must show that “state officials, acting under color of state law, deprived [him] of a right guaranteed •to [him] by the Constitution.” Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir.1995). Here, Allen’s claims are predicated on allegations that he was subjected to an excessive use of force, and that he was then falsely arrested and maliciously prosecuted, all in violation of his constitutional rights. The Court will examine these claims in turn. A. Excessive Force 1. Applicable Legal Standards Allen has alleged that the individual defendants engaged in the use of excessive force against him, in violation of the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment. The Eighth Amendment, which is made applicable to the states through the Fourteenth Amendment, see McKenna v. Wright, No. 01 Civ. 6571(WK), 2002 WL 338375, at *5 n. 8 (S.D.N.Y. Mar.4, 2002) (citation omitted), is violated by unnecessary and wanton inflictions of pain and suffering, see Whitley, 475 U.S. at 320, 106 S.Ct. 1078. To establish an Eighth Amendment excessive force claim, an inmate must satisfy both subjective and objective tests. See Hudson v. McMillian, 503 U.S. 1, 7-8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000); McCrory v. Belden, No. 01 Civ. 0525(MHD), 2003 WL 22271192, at *5 (S.D.N.Y. Sept.30, 2003). To satisfy the subjective test, the inmate must show that the prison officials “had a ‘wanton’ state of mind when they were engaging in the alleged misconduct.” Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.1994) (citing Hudson, 503 U.S. at 7, 112 S.Ct.995). Whether such a showing has been made is determined by balancing four factors: (1) the need for the application of force; (2) the relationship between that need and the amount of force used; (3) the threat reasonably perceived by the responsible officials; and (4) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7, 112 S.Ct. 995 (citing Whitley, 475 U.S. at 321, 106 S.Ct. 1078). The absence of a serious injury is a relevant, but not dispositive, factor in this analysis. See id. Ultimately, the court’s decision “turns on ‘whether force was applied in a good faith effort to maintain discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). To satisfy the objective test, the inmate must show that the force that was applied was “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The objective component may include allegations of the type and extent of force used, the nature and seriousness of any injury that resulted, and other indicia of the “exces-siveness” of the force. Mitchell v. Keane, 974 F.Supp. 332, 340-41 (S.D.N.Y.1997) (citing Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir.1996)), aff'd, 175 F.3d 1008, 1999 WL 159896 (Table) (2d Cir.1997). This inquiry is “context specific, turning upon contemporary standards of decency.” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir.1999) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.1999) (internal quotation marks omitted)). Furthermore, although “a de minimis use of force will rarely suffice to state a constitutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (citation omitted), a plaintiff “need not prove ‘significant injury’ to make out an excessive force claim, and, thus, the fact that he suffered only minor injuries does not warrant dismissal.” Griffin, 193 F.3d at 92. 2. Excessive Force Claim Against Defendants Sakellardis, Crespo, and Reyes. Allen contends that Captain Sakel-lardis and Officers Crespo and Reyes used excessive force against him, violating his rights under the Eighth Amendment. (2d Am.ComplY 8.) In particular, Allen claims that defendants Sakellardis and Crespo improperly placed their hands on him when they tried to move him into the dormitory area (Eichenholtz Decl., Ex. C, at 74-75), and that Reyes should also be held liable because he was present at the time (id. at 75). Given that Allen’s excessive force claim against Sakellardis, Crespo and Reyes appears to be based solely on their conduct in trying to move him into the dormitory, the claim against these defendants does not present any genuine disputed issue of fact. The parties are in essential agreement as to what transpired at that time. There is no dispute that Allen refused to comply with a direct order from several correction officers. The correction officers had ordered Allen into a dormitory area, and Allen concedes that he physically resisted their attempts to move him there. (Allen 56.1 Statement ¶¶ 10, 25-26.) Neither party disputes that some measure of force was then used against Allen, in order to place him in the dormitory area. (Def. Rule 56.1 Statement ¶¶ 9, 11.) Allen admits, however, that Sakellardis and Crespo merely tried to pull him into the area, and that neither of these officers punched or kicked him. (Eichenholtz Decl., Ex. C, at 41, 44-45.) Further, according to Allen’s own description of the facts, Reyes never applied any force against him at all. (See id. at 40^49, 74-75; see also generally Allen Rule 56.1 Statement.) Allen also acknowledges that the only injuries he suffered that day were “swelling and bruises to the head” (id. Eichenholtz Decl., Ex. C at 48^49), which he apparently contends were caused by the actions of another defendant, Merced, when Allen was finally led away from the dormitory area (See id. at 46-49). On this undisputed factual record, Allen’s allegations as to the use of force by Sakellardis, Crespo, and Reyes cannot be found to rise to the level of a constitutional violation. At most, it is evident that the force used by these defendants was de minimis. Accordingly, the Court should grant summary judgment to these defendants, dismissing Allen’s excessive force claim against them. 3. Excessive Force Claim Against Defendant Merced Unlike the parties’ accounts as to what transpired in the dormitory area, their accounts diverge with regard to the role played by Merced. According to Allen, Merced initially came from behind and placed him in a headloek, tripping him to the floor. {See Allen 56.1 Statement ¶ 27.) Allen then contends that, after he was handcuffed and subdued, and was being led down the steps to the intake area, he became the victim of a gratuitous attack by Merced. {See id. ¶¶ 28-31; Eichen-holtz Deck, Ex. C, at 46.) The critical part of Allen’s testimony is that, as he was being led down the steps, with his arms at a ninety degree angle, Merced deliberately banged his head repeatedly against a walk (See Allen 56.1 Statement ¶ 30; Eichen-holtz Decl., Ex. C, at 46.) Allen has testified that, as a result of Merced’s attack, he suffered swelling and bruises to his head. (See Eichenholtz Decl., Ex. C, at 48^49.) Defendants, for their part, do not squarely address what occurred on the steps. They do state that any force used against Allen was, in general, de minimis and necessary to restore order following his refusal to obey the correction officers’ commands. (Def. Rule 56.1 Statement ¶¶ 11, 16; Def. Mem. at 13-19.) Defendants also state that they only applied force in order to move Allen into the dormitory (id. ¶ 16), implicitly denying that any force was used thereafter. Thus, as a preliminary matter, the parties appear to dispute whether Merced actually used any force at all against Allen, after Allen was handcuffed. If force was used after that point, then the parties assuredly dispute whether Merced had a “wanton” state of mind, and whether the degree of force involved under the circumstances was serious. On the issue of Merced’s subjective intent, Allen contends (and Merced apparently denies) that Merced assaulted him for no legitimate reason, given that, once Allen was under the officers’ control, he posed no threat and no further force was needed — certainly not the repeated banging of Allen’s head against the walk If Allen’s account of events is believed, then a jury could reasonably infer that Merced acted maliciously, regardless of whether Allen had initially failed to comply with a direct order. See Griffin, 193 F.3d at 91 (dismissal of an excessive force claim was inappropriate where there were genuine issues of material fact concerning what transpired after plaintiff was handcuffed and guards used force against him); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir.1988) (reversing summary judgment, despite possibility that plaintiff had not followed correction officer’s order, where force applied by officer was allegedly gratuitous). Hence, the facts are sufficiently contested to raise a triable issue as to the subjective component of Allen’s excessive force claim. As to the objective component of this claim, there is again a substantial factual dispute. Contrary to Defendants’ assertion, the alleged application of force by Merced, if proven, would have been more than de minimis. As Defendants acknowledge, in an excessive force action, the “more than [ ] de minimis ” requirement presents a low threshold for plaintiffs to overcome. Espinal v. Goord, No. 00 Civ. 2242, 2001 WL 476070, *13, 2001 U.S. Dist. LEXIS 5688, at *54 n. 46 (S.D.N.Y. May 8, 2001). Forcibly banging a person’s head against a wall entails a risk of severe injury. Numerous courts in this circuit have found, in analogous factual circumstances, that comparable displays of force were more than de minimis. See Atkins v. County of Orange, 372 F.Supp.2d 377, 399-401 (S.D.N.Y.2005) (concluding that triable issue of fact existed as to objective element of plaintiffs excessive force claim where plaintiffs body and head was allegedly slammed into a wall, after he had been handcuffed, causing pain in his shoulders for several days); Bonilla v. Brancato, No. 99 Civ. 10657, 2002 WL 31093614, *7, 2002 U.S. Dist. LEXIS 17360, at *19-20 (S.D.N.Y. Sept. 18, 2002) (denying summary judgment on excessive force claim where plaintiff alleged that correction officer intentionally struck his head with baton while plaintiff laid on ground defenseless); Turner v. White, No. 95 Civ. 4822, 1998 WL 355183, at *2-3 (E.D.N.Y. Apr.30, 1998) (denying summary judgment on plaintiff-parolee’s Eighth Amendment excessive force claims, where defendants, on three occasions, allegedly handcuffed plaintiff without cause, and on one of those occasions slammed plaintiffs head against the wall several times while he was handcuffed); see also Kalwasinski v. Artuz, No. 02 Civ. 2582, 2003 WL 22973420, **8-9, 2003 U.S. Dist. LEXIS 22731, at *24-25 (S.D.N.Y. Dec. 18, 2003) (noting that “when use of force furthers no penological interest, even a de minimis use of force is wanton and so violates Eighth Amendment protections”); Messina v. Mazzeo, 854 F.Supp. 116, 133 (E.D.N.Y.1994) (noting that “a review of the case law in this circuit reveals that, as a general rule, the issue of whether excessive force was used is for the jury to decide, even though the amount of force used and the extent of injury asserted may be minimal”). The level of force alleged by Allen, if established, would be enough to overcome the low threshold established in previous decisions. Moreover, Defendants are incorrect in asserting that the extent of Allen’s injuries demonstrate such a modest use of force that Defendants are entitled to judgment as a matter of law. (Def. Mem. at 18-19.) To support their position, Defendants point to the “Injury to Inmate Report,” which states that Allen suffered only a “one centimeter superficial bruise to the left forehead,” requiring the application of an antibiotic ointment. (Pl.Aff., Ex. E.) Courts in this circuit have held, however, that “[ejven if the injuries suffered were not permanent or severe, a plaintiff may still recover if the force used was unreasonable and excessive.” Corselli, 842 F.2d at 26 (internal quotation marks and citations omitted); See also id. (noting that “the extent of injury is but one of the factors to be considered”). Any exertion of malicious force “constitutes an Eighth Amendment violation per se, whether or not significant injury is evident.” Griffin, 193 F.3d at 91 (internal quotation marks and citations omitted) (reversing grant of summary judgment where only injuries alleged by plaintiff were bruised shin and swelled knee). Accordingly, while Allen’s injuries do not appear to have been particularly grave, a question of material fact exists regarding the objective component of his claim, as the circumstances under which Allen was injured are disputed by the parties. See Smith v. Donahue, No. 03 Civ. 325F, 2005 WL 1460173, at *4 (W.D.N.Y. June 21, 2005) (“While plaintiffs injuries, lumbar back pain and an abrasion on his hand, do not appear to have been serious, the court finds a question of material fact exists regarding the circumstances under which Plaintiff sustained these injuries.”); McCrory, 2003 WL 22271192, at *6 (“Depending on the specific facts of how the altercation began and proceeded, a reasonable fact-finder could conceivably conclude that some of the actions that plaintiff attributes to each of these defendants represented malicious or sadistic conduct, or at least reflected an excessive and unreasonable use of force to keep or restore order.”); Ali v. Szabo, 81 F.Supp.2d 447, 458 (S.D.N.Y.2000) (“[Bjecause there is a material issue of fact as to whether any force was needed, the Court cannot determine whether the force allegedly used ... reasonably correlates to the need for the application of force.”); Johnson v. Doherty, 713 F.Supp. 69 (S.D.N.Y.1989) (summary judgment on an excessive force claim is inappropriate where there are disputed facts as to the context in which the incident occurred and the signs of provocation); see also Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999) (where the parties version of facts differed markedly, “[t]he issue of excessive force was ... for the jury, whose unique task it was to determine the amount of excessive force used, the seriousness of the injuries, and the objective reasonableness of the officer’s conduct”); Henry v. City of New York, No. 02 Civ. 4824, 2003 WL 22077469, at *2 (S.D.N.Y. Sept.8, 2003) (“[WJhere there is a factual dispute about the circumstances surrounding arrest and the degree of force used, the Second Circuit requires a jury determination of the reasonableness of that force.”). In light of the parties’ substantially different accounts of Merced’s conduct, material issues of fact exist as to the degree of force applied by Merced, and whether such force was justifiable under the circumstances. Accordingly, to the extent Defendants have sought summary judgment on Allen’s excessive force claim against Merced based on the supposed absence of any material factual dispute, I recommend that the motion be denied. 4. Qualifíed Immunity Merced argues that he is entitled to qualified immunity with respect to Allen’s excessive force claim. (Def. Mem. at 19-21.) “The purpose of the qualified immunity doctrine is to balance the need to protect the rights of citizens through damage remedies, with the opposing need to ‘protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.’ ” Danahy v. Buscaglia, 134 F.3d 1185, 1189 (2d Cir.1998) (quoting Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)). “A government official is entitled to qualified immunity from suit for actions taken as a government official if (1) the conduct attributed to the official is not prohibited by federal law, constitutional or otherwise; (2) the plaintiffs right not to be subjected to such conduct by the official was not clearly established at the time of the conduct; or (3) the official’s action was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken.” Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir.2000) (citations omitted). A prisoner’s right to freedom from excessive force by prison officials is a clearly established constitutional right. See, e.g., McCrory, 2003 WL 22271192, at *7 (“there is no question that ... the right of inmates to be