Frederique v. County of Nassau (168 F. Supp. 3d 455, 2016)

United States District Court for the Eastern District of New York 2016-03-11

Citations

Full opinion text

MEMORANDUM AND ORDER

LOCKE, Magistrate Judge

Plaintiffs Stanley Frederique, Luckelson Frederique, Eline Frederique, and Paul Frederique (collectively, the “Plaintiffs” or “Frederiques”) bring this action against Defendants County of Nassau, Police Officer Hector Rosario, and Police Officer Jason Scholl (collectively, the “Defendants”), alleging causes of action arising under 42 U.S.C. § 1983 and New York common law. See DE [45]. According to Plaintiffs, Nassau County Police Department (“NCPD”) officers violated their rights while responding to an April 8, 2010 domestic disturbance complaint at Plaintiffs’ home in El-mont, New York (the “Frederique Home”). Id. Presently before the Court is Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56, which Plaintiffs oppose. See DEs [57], [58], For the reasons set forth herein, Defendants’ motion is granted in part and denied in part.

I. BACKGROUND

A. Relevant Facts

The following facts are taken from Defendants’ Statement of Material Facts Pursuant to Local Civil Rule 56.1 (“Defs.’ 56.1 Stmt.”), DE [57-4]; Plaintiffs’ Statement of Disputed Facts in Opposition to Defendants’ Motion for Summary Judgment Pursuant to Local Rule 56.1 and Plaintiffs’ Counter-Statement of Facts (“Pis.’ 56.1 Stmt.”), DE [57-6]; the Declaration of Ralph J. Reissman in Support of Defendants’ Motion for Summary Judgment (the “Reissman Decl.”), DE [57]; and the Declaration of Gregory Calliste, Jr. in Support of Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (the “Calliste Deck”), DE [58-1].

1. The April 8, 2010 Altercation

At all relevant times, Plaintiffs Paul and Eline Frederique co-owned the Frederique Home, where they lived with their four sons, Stanley, Luckelson, McGregor, and Luckner. Defs.’ 56.1 Stmt. ¶¶ 9-18. During the day on April 8, 2010, McGregor and his girlfriend, Jasmine Johnson (“Johnson”), left their two-year old daughter Zoe at the Frederique Home so that Luckelson could care for her while they went out for the evening. Id. at ¶ 25; Pis.’ 56.1 Stmt. ¶ 268. When McGregor and Johnson returned at approximately 10:00 p.m., Luckelson, Stanley, and Stanley’s girlfriend, Marleana Neeper (“Marleana”), were outside with Zoe, who was in her stroller without socks or a jacket. Defs.’ 56.1 Stmt. ¶¶ 26-27. Jasmine immediately began to argue with Stanley, Luckelson, and Marleana about Zoe’s care. Id. at ¶¶ 28-30; Pis.’ 56.1 Stmt. ¶ 268. When Stanley and Luckelson told Johnson to leave, an altercation ensued and Johnson began hitting Luckelson in his face and chest. Defs.’ 56.1 Stmt. ¶¶ 29-30.

During the altercation, Luckelson went into the house to fill a vase with water, came back outside, and threw the water on Johnson. Id. at ¶33. Johnson rushed at Luckelson, knocking him to the ground, and dislocating his right shoulder. Id. at ¶ 35. Although it is undisputed that Johnson suffered a laceration to her skull and ear, the parties dispute the manner in which it occurred. According to Defendants, after throwing water on Johnson, Luckelson broke the vase over her head, causing the laceration. Id. at ¶ 34. Plaintiffs deny that Luckelson broke the vase over Johnson’s head and claim that she sustained the laceration when she fell to the ground after charging at Luckelson. Pis.’ 56.1 Stmt. ¶¶ 34, 275-76.

Stanley and Marleana brought Luckel-son to his bedroom in the basement and went back outside. Defs.’ 56.1 Stmt. ¶ 36. At that time, the Frederiques’ pet pit bull Angel was in the basement with Luckel-son. Id. at ¶ 39. Although Plaintiffs claim that Stanley called the police first in order to request medical attention for Luckelson, Stanley testified that he did not actually speak with a dispatcher or tell anyone that Luckelson required medical attention. Pis.’ 56.1 Stmt. ¶ 282; see also Reissman Deck Ex. AW at 91:20-24. It is undisputed that Johnson called the Nassau County 911 emergency telephone line at 10:18 p.m., stating that she required an ambulance and informing the dispatcher that her “daughter’s uncles” punched her. in the face and tried to hit her daughter. See Defs.’ 56.1 Stmt. ¶ 40. At 10:22 p.m., Johnson called back, stating that her “boyfriend’s brother” hit her in the head with a glass and that her head was bleeding. Id. at ¶41. According to Johnson, “Stanley started it.” Id.

2. Nassau County Police Department Arrives

The parties’ versions of what happened after the NCPD arrived are substantially different. Accordingly, the Court addresses both versions in turn.

i Defendants’ Version

At approximately 10:22 p.m., Ambulance Medical Technician Brian Ferrucci received a radio dispatch for a domestic incident requiring medical attention at the Fr'ederique Home. Id. at ¶ 45. When Fer-rucci arrived, he observed pieces of a shattered vase in the street and saw Johnson in front of the house, bleeding from her head. Id. at ¶46. Johnson told Ferrucci that Stanley and Luckelson had struck’her in the head with a vase, and that they were in the basement. Id. at ¶ 47. As Ferrucci spoke with Johnson, he heard the house’s side door opening and closing from behind a fence. Id. at ¶ 48. When Ferrucci asked the men behind the fence to come outside and speak with him, a male voice responded, “Don’t come near the fence I’ll let the dog out on you.” Id. Johnson informed Ferrucci that there was a pit bull in the house. Id. at ¶ 50. Ferrucci told the men to secure the dog and he called for police assistance. Id.

When Officers Anthony Carbone, Gregory Tristan Cetto, and Jason Scholl arrived, Johnson identified Stanley as one of the men who attacked her. Id. at ¶¶ 64, 119-20, 150. Scholl patted Stanley down to check for weapons, and Carbone placed Stanley in handcuffs. Id. at ¶ 123. Scholl then put Stanley in the back of Carbone’s police vehicle, and remained with him for approximately one hour before taking him to the police station for arrest processing. Id. at ¶¶ 123-24. Sergeants Joseph Pizzi-menti and Christopher Barricelle instructed Officers Carbone, Timothy Siar, Hector Rosario, Kerry Harracksingh, and Sean McNeill to establish a perimeter around the house ahd surrounding area to prevent Luckelson or anyone in the house from escaping. Id. at ¶¶ 68, 181. Officers Carbone and Siar were in the backyard, Officer McNeill was at the front of the driveway, and Officers Rosario and Har-racksingh were several houses down. Id. at ¶¶ 68, 80, 102, 169. Shortly after establishing a perimeter, the house’s side door opened and a pit bull came out. Id. at ¶ 69. Carbone yelled, “grab your dog'” but . it began running toward him. Id. The dog changed its course several times, running at Sergeant Pizzimenti and Officers Car-bone, Siar, and McNeill, each • of whom fired his gun multiple times until they killed the dog. Id. at ¶¶ 139-40, 171, 199. In total, Carbone fired fifteen shots, Siar fired thirteen shots, McNeill fired eleven shots, and Pizzimenti fired four shots. See Reissman Deck Ex. R. An April 19, 2010 NCPD Firearm Discharge Investigation (the “Firearm Discharge Report”) concluded that, “[a]s long as the imminent threat from the pit bull continued to jeopardize the safety of the officers, the first round [of gunshots] as well as the last round expended was necessary and reasonable.” Id.

After shooting the pit bull, several officers ran toward the side door from which it had been released. See Defs.’ 56.1 Stmt. ¶¶ 55, 81, 103, 156. Pizzimenti told Luckel-son to come out of the house with his hands up and get on the ground. Id. at ¶ 82. When Luckelson did not comply, Piz-zimenti, Barricelle, Rosario, Harracksingh, Siar, and Cetto entered the home, following Luckelson down the stairway into the basement. Id. at ¶ 83. Although officers ordered Luckelson to put his hands behind his back, he dropped to the ground on his stomach and put his arms under his body. Id. at 1184. As Rosario, Harracksingh, and Pizzimenti attempted to handcuff Luckel-son, Luckelson struggled with the officers, kicking and flailing his arms and legs. Id. at ¶ 85. The officers eventually gained control and placed Luckelson in handcuffs. Id. at ¶¶ 86, 202.

Once in handcuffs, the officers brought Luckelson upstairs, and Ferrucci evaluated him, observing only a minor laceration on the fifth digit of Luckelson’s left hand. Id. at ¶ 57. Thereafter, Officers Rosario and Harracksingh brought Luckelson to Winthrop Hospital to undergo a “Fit for Confinement” evaluation. Id. at ¶ 88. Officer Scholl brought Stanley to the Fifth Precinct for arrest processing. Id. at ¶¶ 124-25.

ii. Plaintiffs’ Version

According to Plaintiffs, the NCPD arrived approximately twenty to thirty minutes after Stanley placed his call and immediately began asking about stray guns and drugs. Pis.’ 56.1 Stmt. ¶¶ 283-84. Stanley and Marleana told the officers that Luckelson was in the basement and required medical attention. Id. at ¶¶ 290-92. Officers Carbone and Scholl told Stanley to get against the wall, threw him against the gate, and punched him in his back where he had surgery earlier that day. Id. at ¶ 286. At the officers’ instruction, Paul called Luckelson on his cell phone and told him to come upstairs. Id. at ¶ 293.

Believing that the police had responded to provide medical attention, Luckelson slowly made his way up the stairs, with Angel following behind him. Id. at ¶¶ 295-97, 307. When Luckelson opened the side door, Angel walked out. Id. at ¶ 308. Within a few seconds of opening the door, Luckelson heard gunshots erupt, causing him to instinctively close the door and retreat into the stairway leading into the basement. Id. at ¶ 310. Officers Pizzimenti, Harracksingh, Barricelle, Carbone, and Rosario entered the home and followed Luckelson into the basement. Id. at ¶ 315. Luckelson told the officers he was unable to put his hands up because his right shoulder was dislocated, but in an attempt to comply with their orders, he dropped to the ground to be handcuffed. Id. at ¶¶ 315-16.

While on the ground, Rosario kicked Luckelson in the head and face twice, one officer stood on his head for several seconds, and several officers kicked and punched Luckelson in his legs, arms, back, and dislocated shoulder. Id. at ¶¶ 319-21. According to Luckelson, he was punched and kicked a total of sixty to ninety times and blood was “gushing” from his ear “like a waterfall.” Id. at ¶ 410. Luckelson heard an officer shout, “search the house for drugs,” and officers opened drawers, lifted the bed, and punctured a hole in the ceiling. Id. at ¶ 322. Officers then went upstairs and began to search other rooms of the house. Id. at ¶¶ 381-89. Although it is undisputed that Paul executed a Consent to Search Form, Plaintiffs argue that he signed it after the officers had already searched the house, and that he signed it under duress. Id.

3. Criminal Charges and Prosecution

i. Stanley Frederique

Stanley was charged with: (i) one count of menacing in the second degree in violation of N.Y. Penal Law § 120.14 for threatening to release the pit bull and telling Ferrucci, “move away from the fucking door before I let the dog go”; and (ii) one count of endangering the welfare of a child in violation of N.Y. Penal Law § 260.10 for having a physical confrontation with Johnson in front of Zoe, who was not wearing shoes, socks, or a coat. Defs.’ 56.1 Stmt. ¶ 226-27; see also Reissman Deck Exs. V, W. In NCPD Form 79SJ Physical Condition Questionnaires completed following his arrest, Stanley attested that he was in good health, that he did not have any injuries, and that he did not require medical attention. Defs.’ 56.1 Stmt. ¶¶ 229-30; see also Reissman Deck Exs. X, Y. Stanley disputes that he signed any document stating that he was in good health, and alleges that he continued to request medical assistance. Pis.’ 56.1 Stmt. ¶ 229.

On April 12, 2010, the Nassau County District Attorney issued an Order of Protection against Stanley on Johnson’s behalf, and requested to speak with Johnson about the charges against Stanley. Defs.’ 56.1 Stmt. ¶ 233. Johnson repeatedly refused to assist in prosecuting Stanley, and in a November 8, 2010 Dismissal Memorandum, Assistant District Attorney Karen Finley wrote that, without Johnson’s assistance, the prosecution would be unable to prove either charge pending against Stanley. Id. at ¶234. Accordingly, on November 9, 2010, the charges pending against Stanley were dropped in their entirety. Id. at ¶ 235.

ii Luckelson Frederique

During Luckelson’s Fit for Confinement evaluation at Winthrop Hospital, he complained of shoulder pain and a laceration on his right middle finger. Id. at ¶237. Luckelson did not complain that he had been kicked in the ear, face, or head. Id. at ¶ 238. Luckelson was deemed fit for confinement, and Rosario and Harracksingh brought him to the Fifth Precinct, where he was charged with: (i) one count of assault in the second degree in violation of N.Y. Penal Law § 120.05(2) for breaking a vase over Johnson’s head; (ii) one count of attempted assault in the second degree in violation of N.Y. Penal Law § 120.05(3) for purposely releasing the pit bull on the officers; (iii) one count of assault in the second degree in violation of N.Y. Penal Law § 120.05(3) for injuring Officer Har-racksingh during the course of being arrested; and (iv) one count of resisting arrest in violation of N.Y. Penal Law § 205.30 for flailing his arms and refusing to allow NCPD officers to handcuff him. Id. at ¶¶ 239-43. In NCPD Form 79SJ Physical Condition Questionnaires, Luckel-son also attested that he was in good health, had no injuries, and did not require medical attention. Id. at ¶¶ 245-46; see also Reissman Deck Exs. AN, AO.

On August 31, 2010, the three charges arising under N.Y. Penal § 120.05 were reduced to misdemeanor charges of assault in the third degree in violation of N.Y. Penal Law § 120.00. Defs.’ 56.1 Stmt. ¶ 254. On April 18, 2011, those charges were dismissed because the District Court Informations were facially insufficient. See People v. Frederique, 31 Misc.3d 1215(A), % 927 N.Y.S.2d 818 (Table) (N.Y.Dist.Ct. Apr. 18, 2011). In a February 28, 2011 letter to the Nassau County District Attorney, Johnson wrote that she did not want any charges pressed against Luckel-son and requested that all charges concerning her be dropped. Defs.’ 56.1 Stmt. ¶ 255; see also Reissman Deck Ex. AS. Ultimately, in August 2012, the final charge pending against Luckelson for resisting arrest was dismissed. Defs.’ 56.1 Stmt. ¶ 256. However, it is not clear what role, if any, Johnson’s request played in the District Attorney’s decision to dismiss Luckelson’s resisting arrest charge, as there is no dismissal memorandum or other evidence specifically describing the reason the charge was dropped.

4. Johnson’s Statements and Recantation

On April 9, 2010, following the incident, Johnson completed and signed a supporting deposition, in which she swore, among other things, that both Stanley and Luck-elson punched her in the face, and that Luckelson hit her over the head with a vase, causing a laceration. See Reissman Decl. Ex. B. The same night, Johnson gave a second statement to Detective Edward Rogan at the Fifth Precinct, stating that Stanley “told [Ferrucci], ‘move away from the fucking door before I let the dog go.’ ” Id. at Ex. C. On April 30, 2010, Johnson gave a third statement to Detective Sergeant Richard Harasym of the NCPD’s Internal Affairs Unit, stating that Luckel-son barricaded himself inside the Frede-rique Home and released a pit bull to attack the officers. Id. at Ex. P.

In her February 28, 2011 letter to the Nassau County District Attorney, Johnson recanted her prior statements, claiming “the statements are false and were not written by [her]_” Id. at Ex. AS. According to Johnson, her “words were changed and flipped around and tampered with to better justify the police and their wrong doing.” Id. As described above, she also wrote that she did not want charges pressed against Luckelson. Id. Johnson did not, however, specify what portions of her prior statements were purportedly false. Id.

B. Procedural History

By way of a Complaint dated April 8, 2011, Plaintiffs commenced this action against the County of Nassau, the NCPD, and “John Doe” NCPD Officers, alleging causes of action arising under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and New York common law. See DE [1], At a September 20, 2011 initial conference, Judge Feuer-stein dismissed Plaintiffs’ Complaint without prejudice as unripe because Luckel-son’s criminal prosecution for resisting arrest was still pending. See DE [5]. Following dismissal of Luckelson’s resisting arrest charge in state court, this action was reopened on August 6, 2012. See DE [9].

On December 13, 2013, Plaintiffs sought leave to file an amended complaint naming as defendants: Police Officers Carbone, Cetto, Harracksingh, McNeill, Rosario, Scholl, and Siar; Sergeants Bar-ricelle and Pizzimenti; Detectives Richard Lee and Edward Rogan; and Ambulance Medical Technician Ferrucci. See DE [36]. Defendants opposed the motion on the grounds that the amendments were futile, as the statute of limitations had expired and Plaintiffs were not diligent in timely seeking to amend their Complaint. See DE [39]. On May 22, 2014, after Judge Feuerstein So Ordered the parties’, consent to proceed before a magistrate judge, Magistrate Judge William D. Wall denied Plaintiffs’ motion with respect to proposed defendants Barricelle, Carbone, Cetto, Ferrucci, Harracksingh, Lee, McNeill, Pizzimenti, Rogan, and Siar. See DE [43]. Judge Wall held that Plaintiffs were not diligent in seeking to amend their Complaint with respect to those defendants because their identities had been disclosed in Defendants’ November 21, 2012 initial disclosures. Id. at 4. In contrast, Judge Wall observed that Defendants had not timely disclosed the identities of Officers Scholl and Rosario, and as a result, Plaintiffs could not have sought leave to amend their Complaint as to those individuals before the statute of limitations expired. Id. Accordingly, Judge Wall granted Plaintiffs’ motion with respect to Officers Scholl and Rosario. Id.

Thereafter, on May 30, 2014, Plaintiffs filed an Amended Complaint against the County of Nassau, Police Officer Hector Rosario, and Police Officer Jason Scholl. See DE [45]. Plaintiffs allege causes of action arising under: (i) 42 U.S.C. § 1983 for excessive force, unlawful search and seizure, false arrest, malicious prosecution, and abuse of process; and (ii) New York common law for intentional infliction of emotional distress (“IIED”), false arrest, malicious prosecution, abuse of process, negligence and/or gross negligence, conversion, defamation, and trespass. Id. Plaintiffs also assert a cause of action for municipal liability under 42 U.S.C. § 1983 against Nassau County. Id.

II. LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 56, 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). The movant bears the burden of establishing that there are no material facts that preclude judgment as a matter of law. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2004). In deciding a motion for summary judgment, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir.2004); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (holding that a motion for summary judgment should be denied if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Once the movant has met its initial burden, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (internal quotation omitted); see also Maxton v. Underwriter Labs., Inc., 4 F.Supp.3d 534, 542 (E.D.N.Y.2014) (“An issue of fact is considered ‘genuine’ when a reasonable finder of fact could render a verdict in favor of the non-moving party.”). In determining whether summary judgment is warranted, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986); see also Artis v. Valls, No. 9:10-CV-427, 2012 WL 4380921, at *6 n. 10 (N.D.N.Y. Sept. 25, 2012) (“It is well established that issues of credibility are almost never to be resolved by a court on a motion for summary judgment.”).

III. DISCUSSION

A. Individual Liability Arising Under 42 U.S.C. § 1983

Section 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....

42 U.S.C. § 1983.

Section 1983 itself does not create substantive rights; rather, “it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (“[Section 1983] merely provides a method for vindicating federal rights elsewhere conferred ....”) (internal quotation omitted). Therefore, to prevail on a claim arising under Section 1983, a plaintiff must establish: “(1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law.” Hawkins v. Nassau County Corr. Facility, 781 F.Supp.2d 107, 111 (E.D.N.Y.2011). Furthermore, “it is well-settled that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”’ Jones v. Nassau County Sheriff Dep’t, 285 F.Supp.2d 322, 325 (E.D.N.Y.2003) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)).

Although Plaintiffs’ theories of liability arising under Section 1983 are not specifically delineated in the Amended Complaint, the Court interprets the first count of the Amended Complaint to assert causes of action for: (i) excessive force, (ii) unreasonable search, (iii) unreasonable seizure, (iv) false arrest, (v) malicious prosecution, and (vi) abuse of process. See Am. Compl. ¶¶ 33-53.

1. Excessive Force

The Fourth Amendment prohibits the use of excessive force by a police officer. See Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.2010) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)). In cases of excessive force, “[a] police officer is personally involved [sufficient to establish Section 1983 liability] ... if the officer either: (1) directly participates in an assault; or (2) is present during the assault, and fails to intercede on behalf of the victim even though he had a reasonable opportunity to do so.” Tieman v. City of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *25 (S.D.N.Y. Mar. 26, 2015); see also Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir.2001) (“Failure to intercede results in liability where an officer observes excessive force is being used or has reason to know that it will be.”).

A police officer’s use of force is excessive, thereby violating the Fourth Amendment, “if it is objectively unreasonable ‘in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.’ ” Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004) (quoting Graham, 490 U.S. at 397, 109 S.Ct. at 1872); see also Harrell v. County of Nassau, No. 10-CV-5894, 2013 WL 5439137, at *5 (E.D.N.Y. Sept. 27, 2013) (holding that claims of excessive force that arise diming the course of an arrest “must be analyzed under the Fourth Amendment’s ‘reasonableness’ standard rather than under the more generalized ‘substantive due process’ approach”). Courts must evaluate the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872. Therefore, courts consider the totality of the circumstances, “including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others and whether he is actively resisting arrest.” Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir.2000); see also Nimkoff v. Dollhausen, 751 F.Supp.2d 455, 463 (E.D.N.Y.2010) (“In so deciding whether an officer used excessive force, the fact finder must consider the totality of the circumstances, including the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest.”) (internal quotation omitted).

Courts in the Second Circuit recognize that “some degree of force is necessary when effectuating an arrest .... ” Sash v. United States, 674 F.Supp.2d 531, 538 (S.D.N.Y.2009). Nevertheless, “there are limits to the amount of force that may be used, even where the person resists or assaults the officer.” Allison v. Farrell, No. 97 Civ. 2247, 2002 WL 88380, at *5 (S.D.N.Y. Jan. 22, 2002); see also Sullivan, 225 F.3d at 166 (“The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.”). Therefore, “if there is a dispute concerning the amount of force used and the reasonableness of the force used, the matter becomes a question of fact for a jury to decide.” Allison, 2002 WL 88380, at *5.

As an initial matter, it is undisputed that neither Scholl nor Rosario interacted with or made contact with Paul or Eline Frede-rique on April 8, 2010. Defs.’ 56.1 Stmt. ¶¶ 257-58. Therefore, the relevant inquiry is whether there is a question of material fact as to whether Officers Scholl and Rosario used excessive force when arresting Stanley and Luckelson, respectively.

i Officer Scholl

Plaintiffs identify questions of material fact as to whether the amount of force that Scholl used during the course of Stanley’s arrest was reasonable sufficient to defeat summary judgment. Accepting as true Stanley’s testimony that he was thrown against a fence and punched in the back, a reasonable jury could find that amount of force to be excessive, particularly in light of the fact that Defendants concede that Stanley was not resisting arrest. See Defs.’ 56.1 Stmt. ¶ 65; see also Harrell, 2013 WL 5439137, at *10 (denying motion for summary judgment because “[w]hether Plaintiff was punched and the officer’s motivation for punching Plaintiff are issues to be decided by a jury”). Moreover, even though Stanley indicated on the Form 79SJ Physical Condition Questionnaires that he did not require medical attention, “an injury need not be serious in order to give rise to a constitutional claim” for excessive force. Ortiz v. Pearson, 88 F.Supp.2d 151, 160 (S.D.N.Y.2000); see also Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987) (“While [plaintiff] did not seek medical treatment for her injuries, and this fact may ultimately weigh against her in the minds of the jury in assessing whether the force used was excessive, this failure is not fatal to her claim.”); Gomez v. City of New York, No. 05 Civ. 2147, 2007 WL 5210469, at *7 (S.D.N.Y. May 28, 2007) (“The law does not require that a plaintiff be bleeding or in need of immediate medical attention to maintain a cause of action for excessive force.”) (Report and Recommendation), adopted by, 2008 WL 3833811 (S.D.N.Y. Aug. 14, 2008)..

Defendants argue that Plaintiffs fail to identify an issue of fact because they “cannot identify any individual officer who allegedly pushed or punched Stanley, and certainly not Rosario or Scholl.” See Defendants’ Reply Memorandum of Law in Further Support of Motion for Summary Judgment (“Reply Mem.”), DE [57-8], at 12. However, it is undisputed that only Scholl, Carbone, and Cetto were present when Stanley was patted down, handcuffed, and placed in the back of Carbone’s car. See Defs.’ 56.1 Stmt. ¶¶ 65, 123, 152. Even if Scholl did not personally push or punch Stanley, he was undoubtedly present and in close proximity during the alleged assault. As such, there is a question of fact at least as to whether Scholl had a reasonable opportunity to intercede on Stanley’s behalf. See Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 (S.D.N.Y.2003) (“A plaintiff need not establish who, among a group of officers, directly participated in the attack and who failed to intervene.”); see also Douglas v. City of New York, 595 F.Supp.2d 333, 345 (S.D.N.Y.2009) (“Whether an officer ... can be held liable on a failure to intervene theory is generally a question of fact for the jury to decide.”). Accordingly, the Court finds that genuine issues of fact exist with respect to the allegations of excessive force against Officer Scholl.

ii Officer Rosario

Plaintiffs also identify questions of material fact as to whether the amount of force that Rosario used during the course of Luckelson’s arrest was reasonable sufficient to survive Defendants’ motion. Defendants argue that “the evidence conclusively establishes that no excessive force was used by any officer to subdue [Luckel-son] and place him in custody, especially in view of the fact that he was kicking, flailing and had locked his arms beneath his body on the floor resisting arrest.” See Defendants’ Memorandum of Law in Support of Motion for Summary Judgment (“Defs.’ Mem.”), DE [57-5], at 21. According to Defendants, Luckelson made no complaints of abuse immediately following his arrest, Ferrucci observed no blood coming from his ears or bruising to his face, and his medical records from Winthrop Hospital do not indicate that Luckel-son suffered injuries to his head or ear. Id. at 18-22.

However, according to Luckelson, he did not resist arrest and attempted to comply with the officers’ commands. Pis.’ 56.1 Stmt. ¶ 316. He further testified that Rosario was “pounding [his] face with his feet,” and that he was kicked and punched in his face, head, legs, arms, back, and dislocated shoulder. Id. at ¶¶ 318-21. Further, Luckelson testified that he suffered a laceration to his ear and “blood was gushing out like a waterfall” following the incident. Id. at ¶¶324, 410. Consistent with Luckelson’s version of events, his medical records from Winthrop Hospital reveal that doctors applied a peroxide wipe to his ear at the time of his treatment. See Reiss-man Deck Ex. AM. Moreover, although Luckelson indicated that his dislocated shoulder was attributable to his earlier fight with Johnson, accepting as true his testimony that officers kicked him in the shoulder, a reasonable jury may find that the officers’ actions exacerbated his preexisting injury. See Rivera v. City of Rochester, No. 09-CV-6621, 2015 WL 409812, at *6 (W.D.N.Y. Jan. 29, 2015) (denying motion for summary judgment where the plaintiff alleged that a police officer’s use of force exacerbated a prior injury). Based on the foregoing, a reasonable jury could find Rosario’s use of force to be excessive. See Davis v. City of New York, No. 04-CV-3299, 2007 WL 755190, at *13 (E.D.N.Y. Feb. 15, 2007) (holding that questions of fact precluded summary judgment where the plaintiff testified that officers kicked her in the face while she was handcuffed and laying on the ground); see also Gomez, 2007 WL 5210469, at *7 (holding that a lack of documented injuries is an issue properly considered by a jury in determining whether an arresting officer’s use of force was excessive). Accordingly, the Court finds that genuine issues of fact exist with respect to the allegations of excessive force against Officer Rosario.

2. Unlawful Search of the Frederique Home

The Fourth Amendment further provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,. shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend.- IV.

The Supreme Court has held that, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Accordingly, “[t]he Fourth Amendment generally prohibits a warrantless entry into an individual’s home.” Callahan v. City of New York, 90 F.Supp.3d 60, 69 (E.D.N.Y.2015); see also United States v. Elliott, 50 F.3d 180, 185 (2d Cir.1995) (“A warrantless search is per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.”) (internal quotation omitted). Relevant for purposes of this motion, the Fourth Amendment’s war-rantless search prohibition does not apply where exigent circumstances exist such that warrantless entry is necessary. See Mangino v. Inc. Vill. of Patchogue, 739 F.Supp.2d 205, 236 (E.D.N.Y.2010) (“A warrantless search is permissible if exigent circumstances require state officials’ immediate entry to the property.”). Therefore, “officers may not, absent exigent circumstances or consent, enter a suspect’s home to make a warrantless arrest.” Breitbard v. Mitchell, 390 F.Supp.2d 237, 249 (E.D.N.Y.2005). Although courts consider various factors in determining whether exigent circumstances existed, “[t]he essential question ... is whether law enforcement agents were confronted by an ‘urgent need’ to render aid or take action.” Loria v. Gorman, 306 F.3d 1271, 1284 (2d Cir.2002).

It is undisputed that Scholl did not enter the Frederique Home at any time, and that Rosario only entered the basement of the home in order to arrest Luckelson. Defs.’ 56.1 Stmt. ¶¶ 98, 128. Rosario did not enter other areas of the home, and he did not search any part of the home, including the basement. Id. at ¶ 98. Defendants do not argue that Rosario had consent to enter the Frederique Home to arrest Luckelson, but rather, that exigent circumstances necessitated his war-rantless entry. See Defs.’ Mem. at 17. Plaintiffs do not oppose this argument, and therefore fail to identify a question of fact precluding judgment as a matter of law. See Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir.2014) (“[I]n the case of a counseled party, a court may, when appropriate, infer from a party’s partial opposition [to a motion for summary judgment] that relevant claims or defenses that are not defended have been abandoned.”). Accordingly Defendants’ motion for summary judgment is granted with respect to Plaintiffs’ claim for unlawful search of the Fre-derique Home.

3. Unlawful Seizure for the Death of Angel and Property Damage

The Fourth Amendment also prohibits the “[e]xcessive or unnecessary destruction of property in the course of a search .... ” Smith v. City of New York, No. 04 Civ. 3286, 2010 WL 3397683, at *13 (S.D.N.Y. Aug. 27, 2010); see also Figueroa v. Kroll, No. 98 Civ. 837, 2004 WL 2924492, at *5 (S.D.N.Y. Dec. 16, 2004) (“[UJnnecessarily destructive behavior may rise to the level of violating the Fourth Amendment.”). The unlawful killing of a pet can serve as a “seizure” for purposes of liability under the Fourth Amendment. See Carroll v. County of Monroe, 712 F.3d 649, 651 (2d Cir.2013) (“[T]he unreasonable killing of a companion animal constitutes an unconstitutional ’seizure’ of personal property under the Fourth Amendment.”); Van Patten v. City of Binghamton, 137 F.Supp.2d 98, 107 (N.D.N.Y.2001) (“[T]he killing of Plaintiffs dog is a seizure within the meaning of the Fourth Amendment.”). However, as with all claims arising under Section 1983, a defendant must be personally involved to be liable for a violation of the Fourth Amendment’s unlawful seizure provision. See Crandall v. David, 457 Fed. Appx. 56, 58 (2d Cir.2012) (affirming summary judgment where the defendant had no personal involvement in an unlawful seizure).

Applying these standards, Defendants’ motion for summary judgment is granted with respect to Plaintiffs’ claim for unlawful seizure. In the Amended Complaint, Plaintiffs allege that Defendants are hable for unlawful seizure for killing their dog and destroying their personal property while searching their home. Am. Compl. ¶¶ 44-47. With respect to the death of Plaintiffs’ dog, neither Scholl nor Rosario personally deprived Plaintiffs of a constitutional right — i.e., unlawfully seizing Plaintiffs’ dog by shooting it — as it is undisputed that neither officer fired his gun on April 8, 2010. See Reissman Deck Ex. R. Likewise, it is also undisputed that, while other officers fired their guns at the dog, Scholl was in Carbone’s police car with Stanley and Rosario was positioned several houses down the street with Officer Har-racksingh. See Defs.’ 56.1 Stmt. ¶¶ 80-82, 123-24. As such, there is no evidence that either officer had a reasonable opportunity to intervene to prevent the shooting of Plaintiffs’ dog but failed to do so. See Jackson v. City of New York, 939 F.Supp.2d 235, 259 (E.D.N.Y.2013) (finding personal involvement for unlawful seizure where an officer had a realistic opportunity to intervene). Similarly, neither Scholl nor Rosario is personally responsible for any property damaged during the course of searching Plaintiffs’ home, as is undisputed that Scholl never entered the Frede-rique Home and that Rosario did not participate in any alleged search thereof; he only arrested Luckelson. See Defs.’ 56.1 Stmt. ¶¶ 98, 128. Immediately upon arresting Luckelson, Rosario brought him upstairs and placed him in Rosario’s police car. Id. at ¶ 88. Therefore, there is also no evidence that Scholl or Rosario had a reasonable opportunity to intervene and prevent property damage during the course of the alleged search of the Frederique Home but failed to do so.

Based on the foregoing, Plaintiffs fail to establish that either Scholl or Rosario was personally involved with the alleged unlawful seizure of Plaintiffs’ property, and Defendants are entitled to judgment as a matter of law. Accordingly, Defendants’ motion for summary judgment is granted with respect to Plaintiffs’ claim for unlawful seizure.

4. False Arrest

The Fourth Amendment further prohibits unreasonable seizures in the form of arrests without probable cause. See Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir.2006) (“[A] § 1983 claim for false arrest derives from [the] Fourth Amendment right to remain free from unreasonable seizures, which includes the right to remain free from arrest absent probable cause”)- In analyzing a claim of false arrest under Section 1983, “federal courts look to the law of the state in which the arrest occurred.” Hoyos v. City of New York, 999 F.Supp.2d 375, 385 (E.D.N.Y.2013); see also Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (“A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law.”) (internal citation omitted).

To prevail on a claim of false arrest under New York law, a plaintiff must establish: “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir.2003); see also Carpenter v. City of New York, 984 F.Supp.2d 255, 264 (S.D.N.Y.2013) (“Under New York state law, a claim of false arrest requires a showing that the confinement was not privileged.”). The existence of probable cause for an arrest “is a complete defense to an action for false arrest.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994); see also Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir.2007) (“[Finder both New York and federal law, summary judgment dismissing a plaintiffs false arrest claim is appropriate if the undisputed facts indicate that the arresting officer’s probable cause determination was objectively reasonable.”). Moreover, “it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.” Jaegly, 439 F.3d at 154; see also Davenport v. County of Suffolk, No. 99-CV-3088, 2007 WL 608125, at *5 (E.D.N.Y. Feb. 23, 2007) (“[P]robable cause as to any charge at the time of arrest is sufficient to defeat a false arrest claim as a matter of law.”). Rather, as long as probable cause exists to arrest a suspect for some crime, it is an absolute defense to a claim for false arrest. See Mesa v. City of New York, No. 09 Civ. 10464, 2013 WL 31002, at *10 (S.D.N.Y. Jan. 3, 2013) (holding that “the officers need not have possessed probable cause for every charge” to defeat a claim of false arrest).

Here, Plaintiffs concede that probable cause existed to arrest Stanley and Luckelson for the alleged assault or reckless endangerment charges with regard to Johnson. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Pis.’ Opp’n”), DE [57-7], at 20 (“[A]rguably, the police would have had probable cause to arrest and prosecute Stanley and Luckelson Fre-derique for the alleged Assault or Reckless Endangerment charges only with regard to Ms. Johnson.”). Indeed, in Johnson’s calls to the Nassau County 911 emergency line, Johnson claimed that Stanley and Luckelson punched her in the face, broke a glass over her head, and tried to hit her daughter. See Reissman Decl. Ex. A. Johnson’s complaints are sufficient to establish probable cause to arrest Stanley and Luckelson. See Carthew v. County of Suffolk, 709 F.Supp.2d 188, 197 (E.D.N.Y.2010) (holding that a victim’s 911 call established probable cause for an arrest, thereby precluding a claim for false arrest under Section 1983); see also Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000) (“[P]olice officers, when making a probable cause determination, are entitled to rely on the victims’ allegations that a crime has been committed.”). Johnson’s April 9, 2010 supporting deposition is consistent with her 911 calls in that she again claimed that Stanley and Luckelson punched her in the face and that Luckelson broke a vase over her head. See Reissman Deck Ex. B. Although Johnson later recanted the statements in her supporting deposition, she does not dispute the statements made in her 911 call, and Plaintiffs do not question their accuracy or veracity. Id. at Ex. AS. Accordingly, it is undisputed that probable cause existed to arrest Stanley and Luck-elson.

Nevertheless, Plaintiffs argue that probable cause is only a complete defense to a false arrest claim where it exists for each charge for which the individual was arrested and prosecuted. See Pis.’ Opp’n at 19-21. However, Plaintiffs’ argument conflates their claim for false arrest with their claim of malicious prosecution, and is directly at odds with well-settled principles of law. See Mesa, 2013 WL 31002, at *10; cf. Rodriguez v. N.Y.C. Police Dep’t, No. 10 Civ. 891, 2011 U.S. Dist. LEXIS 122871, at *13 (S.D.N.Y. Oct. 24, 2011) (“Unlike the false arrest analysis, however, Defendants [in a malicious prosecution case] must have had probable cause for each charge for which Plaintiff was prosecuted.”). Therefore, because probable cause existed to arrest Stanley and Luckelson, Defendants’ motion for summary judgment is granted with respect to Plaintiffs’ false arrest claim arising under Section 1983.

5. Malicious Prosecution

Claims of malicious prosecution arising under Section 1983 are governed by the same standard applied under state law. Russell v. Smith, 68 F.3d 33, 36 (2d Cir.1995). To prevail on a claim of malicious prosecution under New York law, a plaintiff must establish: “(1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir.2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)). Additionally, to prevail on a claim for malicious prosecution under Section 1983, “there must be a seizure or other perversion of proper legal procedures implicating the claimant’s personal liberty and privacy interests under the Fourth Amendment.” Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir.2004) (internal quotation omitted). Here, Plaintiffs are unable to establish that either Scholl or Rosario initiated legal proceedings against Stanley or Luckelson.

To establish that a defendant initiated a proceeding, “it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” Mitchell v. Victoria Home, 434 F.Supp.2d 219, 227 (S.D.N.Y.2006) (quoting DeFilippo v. County of Nassau, 183 A.D.2d 695, 696, 583 N.Y.S.2d 283 (2d Dep’t 1992)). In malicious prosecution cases against police officers, plaintiffs have' demonstrated that officers initiated criminal proceedings by having the plaintiff arraigned, by filling out complaining and corroborating affidavits, and by signing felony complaints. See Llerando-Phipps v. City of New York, 390 F.Supp.2d 372, 382-83 (S.D.N.Y.2005). Furthermore,

[although there is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution “when a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors,” or when she withholds relevant and material information.

Mitchell, 434 F.Supp.2d at 227 (quoting Brome v. City of New York, No. 02 Civ. 7184, 2004 WL 502645, at *5 (S.D.N.Y. Mar. 15, 2004)).

Plaintiffs fail to produce sufficient evidence to overcome summary judgment with respect to their claim for malicious prosecution. It is undisputed that neither Scholl nor Rosario signed the Felony Complaints or District Court Informations charging Stanley and Luckelson with crimes. See Reissman Decl. Exs. V, W, AG-AJ. Likewise, it is undisputed that neither officer completed corroborating affidavits that were relied upon in initiating criminal proceedings. Id. Moreover, neither Scholl nor Rosario is identified in the NCPD arrest reports as the arresting or booking officer for either arrest. See id. at Exs. U, AF. As such, Plaintiffs fail to identify any evidence that Scholl or Rosario played any role, let alone an “active role,” in prosecuting Stanley and Luckelson. Mitchell, 434 F.Supp.2d at 227. Therefore, Plaintiffs’ claim for malicious prosecution fails as a matter of law. Accordingly, Defendants’ motion for summary judgment is granted with respect to •Plaintiffs’ cause of action for malicious prosecution arising under Section 1983.

6. Abuse of Process

A claim for abuse of process under Section 1983 is analyzed under the same standards applicable under New York law. Anderson v. County of Nassau, 297 F.Supp.2d 540, 548 (E.D.N.Y.2004). To prevail on a claim for abuse of process under New York law, a plaintiff must establish that the defendant: “(1) employed] regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Bertuglia v. City of New York, 133 F.Supp.3d 608, 638, 2015 WL 5692159, at *21 (S.D.N.Y. Sept. 28, 2015) (quoting Savino, 331 F.3d at 76). Moreover, “[t]he pursuit of a collateral objective must occur after the process is issued; the mere act of issuing process does not give rise to a claim.” Lopez v. City of New York, 901 F.Supp. 684, 691 (S.D.N.Y.1995).

Plaintiffs fail to raise a question of material fact with respect to their claim for abuse of process. As previously discussed, it is undisputed that neither Scholl nor Rosario commenced legal proceedings against Stanley or Luckelson, and Plaintiffs do not identify any other form of regularly issued process that Scholl or Rosario employed, as required to establish a claim for abuse of process. See Bertuglia, 133 F.Supp.3d at 637-39, 2015 WL 5692159, at *21. Therefore, Defendants’ motion for summary judgment is granted with respect to Plaintiffs’ abuse of process claim arising under Section 1983.

B. Qualified Immunity

Defendants argue that Scholl and Rosario are entitled to qualified immunity with respect to Plaintiffs’ false arrest and malicious prosecution claims, and that Rosario is entitled to qualified immunity with respect to Plaintiffs’ excessive force claim. See Defs.’ Mem. at 25-30. As an initial matter, having concluded that Defendants are entitled to summary judgment on the merits of Plaintiffs’ false arrest and malicious prosecution claims, the Court need not determine whether Scholl and Rosario are entitled to qualified immunity with respect to those causes of action. See Toliver v. City of New York, No. 10 Civ. 5803, 2012 WL 6013098, at *8 (S.D.N.Y. Dec. 3, 2012) (“Because summary judgment is granted to the Supervisory Defendants, the Court need not determine whether those defendants would be entitled to qualified immunity.”). Therefore, the Court considers only whether Rosario is entitled to qualified immunity with respect to Plaintiffs’ excessive force claim.

The doctrine of qualified immunity “protects government officials from suit if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.2013) (internal quotation omitted). A police officer is entitled to qualified immunity if he establishes “either that his conduct did not violate ‘clearly established rights’ of which a reasonable person would have known, or that it was ‘objectively reasonable’ to believe that his acts did not violate these clearly established rights.” Landy v. Irizarry, 884 F.Supp. 788, 800 (S.D.N.Y.1995) (quoting Finnegan v. Fountain, 915 F.2d 817, 818 (2d Cir.1990)). In determining whether the doctrine of qualified immunity applies, courts consider: “(1) whether a plaintiff has shown facts making out a violation of a constitutional right; (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct was lawful.” Deanda v. Hicks, 137 F.Supp.3d 543, 561, 2015 WL 5730345, at *12 (S.D.N.Y. Sept. 30, 2015) (quoting Gonzalez, 728 F.3d at 154). Relevant for purposes of this action, “it is axiomatic that the right that plaintiff asserts — namely plaintiffs right under the Fourth Amendment to be free from excessive force — is clearly established.” Hodge v. Vill. of Southampton, 838 F.Supp.2d 67, 86 (E.D.N.Y.2012). Therefore, the relevant inquiry is whether it was objectively reasonable for Rosario to believe that his actions did not violate Luckelson’s constitutional rights.

An officer’s actions are objectively reasonable “if officers of reasonable competence could disagree on the legality of the defendant’s actions.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir.2000). However, courts have observed that the distinction between the defense of qualified immunity and the substantive law of an excessive force claim has become blurred. See, e.g., Landy, 884 F.Supp. at 800 (“The practical difference between the objective reasonableness required to defend on the merits of an excessive force claim and that required for a qualified immunity defense is difficult to decipher.”); Merzon v. County of Suffolk, 767 F.Supp. 432, 447 (E.D.N.Y.1991) (observing that the objective reasonableness determination of a Fourth Amendment excessive force claim may merge with the question of whether a claim is subject to qualified immunity). Therefore, summary judgment on qualified immunity grounds is inappropriate where genuine issues of fact preclude a finding that an officer’s actions were objectively reasonable. See Hodge, 838 F.Supp.2d at 85-86.

Here, as discussed above, there are questions of material fact as to whether Rosario’s use of force during the course of Luckelson’s arrest was objectively reasonable. Those questions of fact preclude summary judgment on qualified immunity grounds. See Smith v. Fields, No. 95 Civ. 8374, 2002 WL 342620, at *6, n. 9, 2002 U.S. Dist. LEXIS 3529, at *22 n. 9 (S.D.N.Y. Mar. 1, 2002) (holding that allegations that the plaintiff was “slapped and kicked about the face” were sufficient to defeat a claim of qualified immunity at the summary judgment stage); Nogue v. City of New York, No. 98 Civ. 3058, 1999 WL 669231, at *9, 1999U.S. Dist. LEXIS 13201, at *31 (E.D.N.Y. Aug. 27, 1999) (holding that, where the plaintiff alleged that an officer kicked and punched him while he was on the ground, the issue of qualified immunity was for a jury). Therefore, Defendants’ motion for summary judgment on qualified immunity grounds with respect to Plaintiffs’ excessive force claim against Rosario is denied.

C. Municipal Liability Arising Under 42 U.S.C. § 1983

A municipality may not be held liable under Section 1983 on a respondeat superior theory of liability. Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); see also Genovese v. Town of Southampton, 921 F.Supp.2d 8, 24 (E.D.N.Y.2013) (“[A] municipal entity may only be held liable where the entity itself commits a wrong; a municipality cannot be held liable under § 1983 on a respondeat superior theory”) (internal quotation omitted). A municipality may only be found liable under Section 1983 “if the deprivation of the plaintiffs rights under federal law [was] 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); see also Pipitone v. City of New York, 57 F.Supp.3d 173, 194 (E.D.N.Y.2014) (“Municipalities can only be held liable under § 1983 when they are a ‘moving force’ behind the constitutional deprivation.”); DeJesus v. Vill. of Pelham Manor, 282 F.Supp.2d 162, 175 (S.D.N.Y.2003) (holding that a plaintiff “must demonstrate a causal connection between the policy at issue and the unconstitutional acts committed by the municipality’s agent”). A policy or custom for purposes of municipal liability under Section 1983 need not be explicit. Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992). Rather, a policy or custom may be inferred by constitutional violations that are so “persistent and widespread” that they “practically have force of law.” Davis v. City of New York, 959 F.Supp.2d 324, 338 (S.D.N.Y.2013). “However, ‘a single incident involving an employee below the poli-cymaking level will not suffice to support an inference of municipal custom or policy.’” Brewster v. Nassau County, 349 F.Supp.2d 540, 549 (E.D.N.Y.2004) (quoting Vann v. City of New York, 72 F.3d 1040, 1050 (2d Cir.1995)).

A municipality may also be held liable where it demonstrates a “manifest failure to train, supervise or discipline [its] employees.” Mahan v. City of New York, No. 00-CV-6645, 2005 WL 1677524, at *3 (E.D.N.Y. July 19, 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985)). In such cases, an inference of a municipal custom or policy may

be drawn from circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction, or evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that its agents were violating citizens’ constitutional rights.

DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998); see also Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) (“We have held that municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy or ratification of unconstitutional conduct within the meaning of Monell.”). However, “[o]nly where a failure ... reflects a deliberate or conscious choice by a municipality ... can a city be liable for such a failure under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989); see also Triano v. Town of Harrison, 895 F.Supp.2d 526, 588 (S.D.N.Y.2012) (“A municipality may be liable for the failure to supervise or discipline its employees only where the need to act is so obvious, and the inadequacy of the current practices so likely to result in a deprivation of federal rights, that the municipality or official can be found deliberately indifferent to the need.”) (internal quotation omitted).

Applying these standards, Plaintiffs are unable to establish a question of material fact as to municipal liability arising under Section 1983. According to Plaintiffs, “[t]he severity of the incident, the failure to investigate, retrain, or discipline, and the Chiefs approval of the incident provide sufficient indication of a failure to supervise such that summary judgment on this issue would be premature.” Pis.’ Opp’n at 35. Specifically, Plaintiffs argue that: (i) the NCPD failed to adequately investigate and discipline its officers following Plaintiffs’ complaints regarding the April 8, 2010 incident; and (ii) the April 19, 2010 Firearm Discharge Report establishes that NCPD policymakers endorsed the officers’ actions such that a municipal policy or custom may be inferred. Id. at 34-35. Neither argument is sufficient to defeat Defendants’ motion for summary judgment.

Initially, although Plaintiffs argue that they “complained to the Nassau County Police Department about its officers’ actions against their dog Angel, wherein Plaintiffs’ dog was brutally killed, [and] Plaintiffs’ home was shot-up and riddled with bullets,” see id. at 34, a “Plaintiff cannot infer a policy from the alleged violation of his own civil rights.” Anderson v. City of New York, 657 F.Supp. 1571, 1574 (S.D.N.Y.1987). Rather, because Plaintiffs allege that non-policymaking police officers deprived them of their constitutional rights, they must establish that the possibility of such a deprivation “was so ’highly predictable’ that it reflected a conscious disregard on the part of the municipality to this deprivation.” Lundina v. City of New York, No. 95-CV-4409, 1998 WL 846813, at *3 (E.D.N.Y. Oct. 5, 1998) (quoting Bd. of the Cty. Comm’rs of Bryan County v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 (1997)). Plaintiffs fail to identify any evidence suggesting that it would be “highly predictable” that NCPD officers would deprive them of their constitutional rights. To that end, they do not identify any prior instances in which the NCPD failed to discipline its officers or investigate complaints of misconduct such that the officers would be “emboldened” to engage in future misconduct. See Pipitone, 57 F.Supp.3d at 196 (“It is plainly foreseeab