Hulett v. City of Syracuse (253 F. Supp. 3d 462, 2017)

DAVID N. HURD, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION..'. 476

II. BACKGROUND... 477

III. LEGAL STANDARD... 479

IV. DISCUSSION... 480

A. Threshold Matters... 480

1. The Parties’ Briefing... 480

2. The Video Evidence... 481

B. The Centro defendants... 483

1. Disability Discrimination... 483

i. Proximate Cause... 484

ii. The Direct Threat Doctrine... 487

2. The § 1983 Medical Indifference Claim against Sup’r Robinson... 488

3. Officer Coleman’s Employment Status... 490

C. The City defendants... 491

1. Excessive Force & Assault and Battery. .. 491

2. False Arrest and Imprisonment... 494

3. Malicious Prosecution... 496

4. Medical Indifference... 497

5. Municipal Liability... 498

i. Monell liability... 499

ii. State Law... 502

6. Officer Coleman’s Liability under the ADA... 503

D. The Rural/Metro defendants... 504

1. Medical Indifference under § 1983... 504

2. Medical “Negligence” under New York law... 505

3. i. Standard of Care... 505

ii. Causation... 505

iii. The Parties’ Experts... 506

E. Spoliation... 507

1. The Centro defendants... 508

2. The Rural/Metro defendants... 509

F. Hulett’s Magistrate Appeal... 510

V. CONCLUSION... 510

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Brad Hulett (“Hulett” or “plaintiff’) filed this civil rights action seeking compensatory and punitive damages for injuries he sustained on May 3, 2013, when two police officers tasered and forcibly removed him from a public bus after he refused their commands to sit down. Plaintiffs operative complaint asserts claims against three remaining groups of defendants:

First, Hulett asserts a medical indifference claim under 42 U.S.C. § 1983 as well as disability discrimination claims under the Americans with Disabilities Act (“ADA”) and New York’s Human Rights Law (“NYSHRL”) against defendants Central New York Regional Transportation Authority (“Centro”), Centro bus driver Lester Wallace (“bus driver Wallace”), and Centro bus hub supervisor Michael Robinson (“Sup’r Robinson”) (collectively the “Centro defendants”).

Second, Hulett asserts § 1983 claims for excessive force, false arrest, malicious prosecution, and medical indifference as well as state law claims for negligence, false imprisonment, and assault and battery against defendants City of Syracuse (the “City”), Frank Fowler in his official capacity as Chief of the Syracuse Police Department (“SPD”) (“Chief Fowler”), SPD Officer William Coleman (“Officer Coleman”), and SPD Sergeant William Galvin, Jr. (“Sergeant Galvin”) (collectively the “City defendants”).

Third, Hulett asserts a § 1983 medical indifference claim as well as a state law claim for medical negligence against Eastern Paramedics, Inc., an ambulance service doing business as Rural/Metro Corporation (“Rural/Metro”), and two of its employees: Paramedic Matt Maulé (“Paramedic Maulé”) and Emergency Medical Technician Kyle Dreverman (“EMT Drev-erman”) (collectively the “Rural/Metro defendants”).

The parties have spent the past few years engaged in a protracted period of wide-ranging, contentious discovery that has included, inter alia, the assertion of cross-claims between various co-defendants as well as the stipulated dismissal of all of Hulett’s claims against Onondaga County, Correctional Medical Care, Inc., and Onondaga County Sheriffs Office employees Kevin Walsh, Sonya Santana, Ralph Messina, and Kevin Murphy.

In December 2016, the Centro defendants, the City defendants, and the Rural/Metro defendants (collectively “defendants”) each moved separately for summary judgment under Federal Rule of Civil Procedure (“Rule”) 56. Hulett opposed each of these three motions and cross-moved for summary judgment in his ovwi favor as to each set of defendants.

All six motions were fully briefed and oral argument was heard on April 28, 2017 in Utica, New York. Decision was reserved.

II. BACKGROUND

On June 18, 1991, when he was about thirteen years old, Hulett was struck by a pair of passing trains as he crossed a set of railroad tracks outside Syracuse, New York. A series of invasive surgeries, including one that resulted in the removal of a portion of his shattered skull, saved plaintiffs life but left him with life-long physical and cognitive injuries, including a paralysis of his left arm, generalized left-side weakness, a visible indentation of his skull, and a noticeably altered speech pattern.

Following the train accident, Hulett completed a lengthy period of post-operative rehabilitation before eventually returning home, where he bounced around to a series of different public schools in the Syracuse area before deciding he “did not care to” graduate. Since that time, plaintiff has managed to live independently in the Syracuse area. And although he does not drive a car and is forced to walk with a noticeable left-sided limp, plaintiff has always managed to navigate the City just fíne. Prior to the incident at issue in this case, plaintiff enjoyed bicycling and regularly took advantage of the bus system.

Unfortunately, Hulett has also been in a number bicycle accidents over the years. Of particular note is one that occurred on July 14, 2006, when plaintiff was thrown from his bicycle and run over by a truck pulling a trailer, an event which ruptured his spleen and fractured his spine. Remarkably, plaintiff again recovered but added a serious back problem to his list of permanent injuries. Ever since, plaintiff has preferred to stand rather than sit when he travels by public bus—sitting for any length of time aggravates the pain in his back.

On May 3, 2013, Hulett boarded a Cen-tro bus headed toward the main transit hub located in downtown Syracuse. Once there, plaintiff intended to switch to a different Centro bus that would take him to a Wal-Mart in East Syracuse, where he could purchase a new vacuum cleaner for his apartment. Plaintiff rode in his now-customary standing position on this first bus without incident. According to plaintiff, he has never fallen down while standing oh a Centro bus.

At about noon, Hulett reached Centro’s main transit hub and switched buses, boarding Centro bus number 1249 driven by Centro bus driver Wallace. A surveillance video submitted by the parties shows that plaintiff boarded the bus without assistance, assumed a standing position on the right side of the aisle behind a yellow or white line, and grasped a vertical pole or grab bar with his good right hand. The video also appears to show that plaintiff was wearing a medical bracelet around his left wrist. According, to plaintiff, he had received the bracelet from a hospital the day before, where he had presented complaining of back pain from a go-cart collision that took place at a local mall.

Before bus 1249 departed, bus driver Wallace told Hulett that he had to take a seat. Plaintiff refused. Wallace then exited the bus and called for his supervisor, Rob--inson, who boarded the bus along with Officer William Coleman, a uniformed SPD officer who may have been working private security for Centro. Sup’r Robinson instructed Hulett to sit down. When plaintiff again refused, Sup’r Robinson told Officer Coleman “[s]ee if you can’t have him have a seat or your [sic] gonna have to take him off [the bus].”

Officer Coleman then told Hulett to sit down or get off the bus. Plaintiff again refused and continued to maintain his standing, right-handed grip on the bus’s grab bar. Officer Coleman can be seen making a short-lived attempt to remove plaintiffs right hand from the bus’s grab bar and then, following a brief verbal exchange between plaintiff and Sup’r Robinson that occurred while Officer Coleman summoned backup, Sergeant William Gal-vin, Jr. arrived.

The two SPD officers then boarded the bus and again demanded that Hulett either sit down or exit the bus. When plaintiff again refused to sit, the officers lifted plaintiffs shirt to expose the skin of his back, tasered him at least twice, removed him from the bus head-first, and wrangled him onto the ground outside. The audio transcript of the surveillance video demonstrates that the two officers actually engaged in a brief, but apparently unhurried, discussion about the most effective location to deploy the taser against plaintiffs back. For instance, one officer can be seen gesturing at plaintiffs back while stating “[w]ith the probes that’s a direct hit right there.”

Once Hulett was on the ground outside, one of the officers can be overheard for the first time telling plaintiff he is “under arrest.” As the bus drives away from the transit hub, the surveillance video ends by depicting Sergeant Galvin dragging plaintiff by his right leg some distance across the pavement as plaintiffs left leg remains trapped at an awkward angle underneath his body. Plaintiff suggests one of the officers may have kicked him as well, though the surveillance video does not clearly show that to be the case.

Sergeant Galvin then radioed for paramedics while more SPD officers arrived. At about 12:34 p.m., Paramedic Maulé and EMT Dreverman responded to the scene. They checked Hulett’s vital signs and then bandaged the taser wounds in his back after an SPD officer removed the probes, which had become “wedged in his back pretty deep[ly].” According to the Rural/Metro defendants, plaintiff repeatedly refused any further medical attention and even marked refusal forms on a computer tablet memorializing that decision. Plaintiff, for his part, acknowledges that he has refused medical treatment for other injuries in the past, but asserts that he did not refuse medical treatment on this occasion and claims that neither Paramedic Maulé nor EMT Dreverman ever asked him if he wanted to go to the hospital.

SPD officers then moved Hulett into a transport van and took him to the Onondaga County Justice Center, where he was transferred to a wheelchair and brought in for booking. A second surveillance video shows that although plaintiff repeatedly indicated to Justice Center personnel that he could not bear any weight on his left leg, they initially attempted to get plaintiff to stand up anyway so that they could search his pockets more easily. After a couple failed attempts to get plaintiff to stand under his own power, several officers lifted plaintiff up so that he could be searched in the intake room. Following this search, Justice Center personnel wheeled plaintiff into a cell and helped him onto a bed.

At around 4:00 a.m. the next morning, one of the Justice Center’s deputies took notice of the fact that Hulett had failed to even touch his dinner tray. According to the incident report, plaintiff explained to the deputy that he was unable to reach it because he “couldn’t move his body” due to the “pain in his back and legs.” The deputy informed Justice Center medical staff, who concluded that plaintiff “needed to go the Hospital to be checked.” Another Rural/Metro ambulance was summoned to transport plaintiff to SUNY Upstate Medical University, where he underwent immediate surgery for a fractured left hip.

After Hulett was transferred to the hospital, SPD Officer David Ciciriello decided the best course of action under the circumstances was to release plaintiff by issuing an “appearance ticket,” an instrument which charged plaintiff with disorderly conduct and resisting arrest based on the events inside the bus.

On August 29, 2013, following a motion by Hulett’s counsel, the criminal charges against him were dismissed for “legal insufficiency” and “in the interest of justice,” with the District Attorney’s office joining plaintiffs dismissal motion as to the legal insufficiency issue. This lawsuit soon followed.

III. LEGAL STANDARD

The entry of summary judgment is warranted 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed. R. Crv. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A fact is “material” for purposes of this inquiry if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

When summary judgment is sought, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim. Anderson, 477 U.S. at 250 n.4, 106 S.Ct. 2505. The failure to meet this burden warrants denial of the motion. Id. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Id. at 250, 106 S.Ct. 2505.

When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553. Accordingly, summary judgment is inappropriate where “review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (summary judgment is appropriate only when “there can be but one reasonable conclusion as to the verdict”).

Where, as here, the parties have cross-moved for summary judgment, a reviewing court “must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable infer-enees against the party whose motion is under consideration.” Marcano v. City of Schenectady, 38 F.Supp.3d 238, 246 (N.D.N.Y. 2014) (McAvoy, J.) (citation omitted). In undertaking this analysis, it bears noting that “a district court is not required to grant judgment as a matter of law for one side or the other.” Id. (citation omitted); see also Residential Mgmt. (N.Y.) Inc. v. Fed. Ins. Co., 884 F.Supp.2d 3, 7 (E.D.N.Y. 2012) (“Cross-motions for summary judgment do not alter the basic standard, but simply require the court to determine whether either of the parties deserves judgment as a matter of law on facts that are not in dispute.”).

IV. DISCUSSION

A. Threshold Matters

Before turning to the merits of the pending motions, there are a couple threshold issues that require some attention.

1. The Parties’ Briefing

First, in an effort to simplify matters, the factual recitation set forth above only roughly tracks the parties’ proffered outlines of the relevant background material and has instead been supplemented, where appropriate, by other information independently culled from the discovery record.

This amounted to a significant undertaking in its own right, since each set of defendants has filed their own Statement of Material Facts and, in each instance, Hulett has responded by submitting his own response to the moving statement as well as a separate counter-statement of his own. In addition, plaintiff has also filed on the docket an attorney affidavit in opposition to all three of the pending summary judgment motions (and in support of his own cross-motions) that appears to include just about every shred of discovery he conducted in this case. See Van Vleck Decl. ¶¶ 2-107.

Among other things, a review of these dueling submissions reveals that although a somewhat grainy black-and-white surveillance video exists depicting significant portions of Hulett’s ill-fated encounter with Centro personnel and law enforcement, the parties nevertheless manage to place in legitimate dispute many of the underlying facts as well as the range of permissible inferences that might be drawn therefrom.

This quasi-independent approach to the record has also proved necessary for an interrelated reason: not only does the content of the parties’ lengthy factual submissions appear to conflict in myriad, sometimes subtle, ways, but the accompanying memoranda also include some questionable treatment of the relevant bodies of governing law. Indeed, a thorough review of all of the parties’ submissions suggests that relying solely on their guidance to sort everything out might result in leaving some important issues unresolved.

In fairness to defendants, at least some of the confusion reflected in the briefing is attributable to the fact that Hulett’s operative complaint is a “shotgun pleading,” a document which “incorporates all of the factual allegations preceding [each count].” Croons v. N.Y. State Office of Mental Health, 18 F.Supp.3d 193, 199 (N.D.N.Y. 2014) (observing that “this type of litigation strategy ultimately acts to thwart meaningful legal analysis”).

For instance, Hulett contends Officer Coleman may have been acting in some capacity as an employee of Centro during the incident. But rather than treat this issue separately, many of the parties’ submissions (and at least some of the parties’ discovery) seemingly attempt to simultaneously address claims against him in both his capacity as an SPD officer and as a private security employee of Centro. See, e.g., Am. Compl. ¶ 53.

As a result of this and other issues, confusion reigns: the Centro defendants spend pages of their initial briefing trying to fend off certain § 1983 claims only to have Hulett later concede in his response that many of those claims were not squarely asserted against them in the first place, while the City defendants spend time analyzing phantom ADA claims on Officer Coleman’s behalf.

For clarity’s sake, this decision tackles these disputes by starting out with a straightforward analysis of the merits of the claims Hulett has obviously pressed in this lawsuit before engaging in a necessary discussion of the various ancillary issues raised by the parties. To the extent one or more of the arguments raised by the parties in their briefing is not addressed in detail here, it has been considered and found to be without merit.

2. The Video Evidence

Second, because bus surveillance tapes and a Justice Center booking video play so heavily in the. parties’ briefing, a quick discussion is in order about how to properly consider this evidence in the current procedural posture, a point at which the Court is essentially tasked with deciding whether or not the case should go to a jury. See, e.g., Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (Cardamone, J.) (emphasizing that “the trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried”).

In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court made clear that video evidence submitted in connection with a party’s summary judgment motion should absolutely be considered in determining whether material issues of fact exist. Id at 380, 127 S.Ct. 1769 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the [video] record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”); see also Orr v. Copeland, 844 F.3d 484, 491 (5th Cir. 2016) (characterizing Scott as “empowering] a district court to disregard testimony that is at odds with video evidence”).

In fact, Scott’s treatment of video evidence is frequently invoked in this Circuit and others as justification to dispose of civil rights cases on summary judgment. See, e.g., Kalfus v. Presbyterian Hosp., 476 Fed.Appx. 877, 880-81 (2d Cir. 2012) (summary order) (affirming dismissal of excessive force claim where video recording confirmed that “[n]o reasonable factfinder could conclude that [the officer’s] actions were excessive in the circumstances”). Of course, there is often a good reason for this practice: relying on video evidence is common sense in cases where a video unambiguously reduces one party’s version of events to little more than “visible fiction.” Scott, 550 U.S. at 381, 127 S.Ct. 1769.

At the same time, however, Scott has brought about some hand-wringing in academic circles, with various commentators cautioning courts to resist the temptation to uncritically assume that video evidence inherently possesses a unique kind of “reliable factual conclusiveness.” Naomi Mezey, The Image Cannot Speak for Itself: Film, Summary Judgment, & Visual Literacy, 48 Val. U. L. Rev. 1, 3 (2013); see also Denise K. Barry, Snap Judgment: Recognizing the Propriety & Pitfalls of Direct Judicial Review of Audiovisual Evidence at Summary Judgment, 83 Fordham L. Rev. 3343, 3385 (2015) (“[T]he bottom line is that [ ] judicial review of audiovisual evidence is anything but the objective, neutral solution to divisive, fact-bound, and problematic cases that courts tout it to be.”); Howard M. Wasserman, Video Evidence & Summary Judgment: The Procedure of Scott v. Harris, 91 Judicature 180, 182-83 (2008) (setting forth “three basic, related myths” associated with video evidence and cautioning that it cannot “transform[ ] the viewer into an eyewitness”).

Notably, in recent years district courts in this Circuit have made explicit what many of these commentators feared Scott’s holding had at best left implicit: the mere existence of a videotape in the record depicting some or all of the events in dispute will not always be dispositive at the summary judgment stage. Compare, e.g., Zachary v. City of Newburgh, 2016 WL 4030925, at *8 (S.D.N.Y. July 25, 2016) (“Although the video evidence casts significant doubt on plaintiffs version of the events in the strip search room, a reasonable juror could [still] credit plaintiffs account.”), Rasin v. City of N.Y., 2016 WL 2596038, at *7 (E.D.N.Y. May 4, 2016) (“The parties have testified to two different stories, and the video evidence is not so conclusive as to determine this factual dispute as a matter of law.”), and Mack v. Howard, 2014 WL 2708468, at *3 (W.D.N.Y. June 16, 2014) (declining to grant summary judgment where the “case boil[ed] down to two credible interpretations of the same video” (emphasis added)), with, e.g., Lin v. City of N.Y., 2016 WL 7439362, at *11 (S.D.N.Y. Dec. 21, 2016) (“[T]he video evidence unavoidably shows that the force used was constitutionally reasonable”).

Each of these decisions recognize the general principle that, in the ordinary case, the appropriate course of action is still to permit the jury an opportunity to “resolve the competing versions of events, in conjunction with the video, through the ordinary fact-finding processes in which juries engage: evaluating credibility, drawing inferences from everything they ha[ve] seen and heard, and deciding what all the evidence ‘means’ and what it reveals about what happened.” Wasserman at 184 (emphasis added); see also Arthur R. Miller, Simplified Pleading, Meaningful Days in Court, & Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286, 311 (2013) (observing that the summary judgment device has “taken on an Armageddon-like significance; it has become both the centerpiece and end-point for many (perhaps too many) federal civil cases”).

In other words, while the video evidence submitted by the parties will certainly be considered and carefully reviewed at this juncture, Scott is best understood to permit the summary adjudication of a plaintiffs civil rights claim only in those exceptional cases where the video evidence in the record is sufficient to “blatantly contradictf ]” one party’s version of events. Scott, 550 U.S. at 380, 127 S.Ct. 1769.

With these threshold matters out of the way, what remains to be addressed are the merits of the pending motions.

B. The Centro defendants

Hulett contends the Centro defendants denied him bus service because of his disability in violation of the ADA and NYSHRL. Plaintiff also asserts Robinson is liable for medical indifference under 42 U.S.C. § 1983. To the extent plaintiff initially sought to bring additional claims against these particular defendants, his opposition briefing makes clear that he has abandoned them. Pl.’s Opp’n Mem. at 33 (“Hulett concedes that Centro is not liable for the actions of Wallace, Robinson, and Coleman under the doctrine of respondeat superior, that he has not established that Centro is liable under Monell, and that Wallace is not liable for deprivation of medical care.”).

1. Disability Discrimination

Hulett’s ADA and NYSHRL claims -will be analyzed in tandem. Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d Cir. 2004) (“New York State disability discrimination claims are governed by the same legal standards as federal ADA claims.”); see also N.Y. Exec. Law § 296(2)(a) (making it unlawful for any “person, [including] the owner .... agent or employee of any place of public accommodation” to discriminate against the disabled); id. § 292(9) (defining “place of public accommodation” to include “all public conveyances operated on land ..., as well as the stations and terminals thereof’).

In keeping with their general attitudes toward each other, the parties cannot agree on which Title of the ADA applies to Hulett’s claim. The Centro defendants opened their briefing by focusing on Title III of the ADA, but as plaintiff points out, Centro’s own informational documents refer to it as a “governmental entity,” a factor which suggests that Title II provides the more appropriate analytical framework. See Centro’s Master Goal Plan for Fiscal Year 2015-2016, available at http://www.centro.org/does/default-source/ proeurementdepartment/mwbe/programfy-goals-mwbe-goal-plan-fy-2016.pdf (last visited May 8, 2017); see also, e.g., N.Y. Pub. Auth. Law § 1329 (declaring that Centro “shall be regarded as performing an essential governmental function”). In reply, the Centro defendants explain that they have “no objection to this Court applying Title II in determining the parties’ summary judgment motions.” Defs.’ Reply Mem. at 21.

Generally speaking, both “Titles II and III of the ADA prohibit discrimination against qualified disabled individuals by requiring that they receive ‘reasonable accommodations’ that permit them to have access to and take a meaningful part in public services and public accommodations.” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003)).

Title II, Part B of the ADA “specifically governs the provision of public transportation services.” Abrahams v. MTA Long Island Bus, 644 F.3d 110, 115 (2d Cir. 2011) (citing 42 U.S.C. §§ 12141-12165).

To state a claim under Title II, a plaintiff must establish: “(1) he is a qualified individual with a disability; (2) the defendant is subject to [the ADA]; and (3) he was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by defendants because of his disability.” Disabled in Action v. Bd. of Elections in City of N.Y., 752 F.3d 189, 196-97 (2d Cir. 2014) (quoting McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012)).

Although “the scope of Title II is not limitless,” Reeves v. Queen City Transp., Inc., 10 F.Supp.2d 1181, 1185 (D. Colo. 1998), “the phrase ‘services, programs, or activities’ has been interpreted to be a ‘catch-all phrase that prohibits all discrimination by a public entity.’ ” Noel v. N.Y.C. Taxi & Limousine Comm’n, 687 F.3d 63, 68 (2d Cir. 2012) (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997)).

The Centro defendants do not contest whether Hulett has stated a prima facie claim for disability discrimination under this framework. Rather, defendants contend plaintiffs federal and state law disability claims against them must be dismissed for two, independent reasons.

i. Proximate Cause

First, the Centro defendants contend Hulett cannot demonstrate that they were the proximate cause of any of the injuries he ultimately sustained. According to defendants, the force employed by Officer Coleman and Sergeant Galvin was unexpectedly extreme and unforeseeable. To illustrate the difference, the Centro defendants at oral argument explained that, in their view, a “foreseeable” ADA violation in this case would be limited to, say, plaintiff suffering additional injury to his lower back as a result of being improperly forced to sit down rather than from any injury sustained as a result of the unexpectedly serious turn of events that actually occurred.

The Second Circuit has applied common law tort concepts to issues of proximate causation under the ADA. Henrietta D., 331 F.3d at 278-79 (“The common law of torts, however, instructs that the existence of additional factors causing an injury does not necessarily negate the fact that the defendant’s wrong is also the legal cause of the injury.”).

“The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations.” Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 314, 434 N.Y.S.2d 166, 414 N.E.2d 666 (N.Y. 1980) (citations omitted). As the Second Circuit observed almost two decades ago,

In everyday terms, the concept might be explained as follows: Because the consequences of an act go endlessly forward in time and its causes stretch back to the dawn of human history, proximate cause is used- essentially as a legal tool for limiting a wrongdoer’s liability only to those harms that have a reasonable connection to his actions.

Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 235 (2d Cir. 1999).

Where, as here, “the acts of a third person intervene between the defendant’s conduct and the plaintiffs injury, the causal connection is not automatically severed.” Derdiarian, 51 N.Y.2d at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666. Rather, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s [misconduct].” Id.; see also Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 (N.Y. 1983) (“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant’s [initial conduct] from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant.”).

“There are certain instances, to be sure, where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law.” Derdiarian, 51 N.Y.2d at 315, 434 N.Y.S.2d 166, 414 N.E.2d 666. However, “[b]ecause questions concerning what is foreseeable and what is normal may be the subject of varying inferences ..., these issues generally are for the fact finder to resolve.” Id.; see also Bell v. Bd. of Educ. of City of N.Y., 90 N.Y.2d 944, 946, 665 N.Y.S.2d 42, 687 N.E.2d 1325 (N.Y. 1997) (“While foreseeability is generally an issue for the fact finder, where only one conclusion can be drawn, proximate cause may be decided as a matter of law.”).

The Centro defendants support their proximate causation argument by claiming ignorance about the possible consequences that might fairly flow from “merely” requesting the assistance of law enforcement with removing Hulett. In support of this claim, defendants have produced video evidence from 2010 depicting another instance in which Sup’r Robinson was involved in forcing plaintiff to leave a Centro bus.

This 2010 bus surveillance video depicts Hulett riding a Centro bus in a standing position for the duration of at least one stop before a female bus driver can be heard telling him to sit down because, in her words, “you always gettin’ up [and] you barely can walk.” Hunt Aff. Ex. W (traditionally filed with the Court). When plaintiff refuses, the driver is shown stopping the bus before telling him that: “you have a disability you gotta sit.” Id When plaintiff is again heard to refuse, the driver summons Sup’r Robinson to the scene, where he initially attempts to convince plaintiff to sit down. Id. When plaintiff refuses yet again, Sup’r Robinson calls in a pair of SPD officers, who remove plaintiffs grip on the bus’s grab bar and escort him outside. Id.

The Centro defendants contend that a review of this prior incident conclusively defeats Hulett’s claim. According to Sup’r Robinson, because plaintiff “peacefully complied” with the SPD officers on this past occasion, defendants cannot in any way be held responsible for the violent, aggressive course of action undertaken by Officer Coleman and Sergeant Galvin this time around. Robinson Aff. ¶ 8.

To make this point, the Centro defendants rely principally on Estate of Saylor v. Regal Cinemas, Inc., 54 F.Supp.3d 409 (D. Md. 2014), a case from Maryland with a tragic fact pattern. There, off-duty Sheriffs Office deputies working mall security caused the death of an individual with Down Syndrome after a movie theater employee asked the deputies to remove the decedent from the theater for failing to pay for a movie ticket. Id. at 412-14.

As relevant here, the Saylor Court granted the defendant-theater’s motion to dismiss, concluding that a mere request by the theater’s employee to remove the decedent could not, as a matter of law, be considered a proximate cause of decedent’s death. Estate of Saylor, 54 F.Supp.3d at 429. Although the Court acknowledged it was “painfully aware that law enforcement officers do, at times, employ excessive and deadly force,” it nevertheless concluded it would be inappropriate to task ordinary citizens with the responsibility to “anticipate that possibility when simply requesting the assistance of the police.” Id. at 433.

This argument is rejected. While the Centro defendants are correct to characterize the bus incident as one that does not fall neatly inside the typical rubric used to evaluate a denial-of-services claim, the particular circumstances of this case warrant a different conclusion, at least at the summary judgment stage.

For starters, Saylor is not the silver bullet the Centro defendants are looking for here, since it is an out-of-Circuit district court decision whose reasoning does not bind this Court or any other. See, e.g., Camreta v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”).

Even assuming otherwise, a close reading of the Saylor Court’s proximate cause discussion reveals that it is directed at whether, and when, a violation of the ADA can stand as some relevant evidence in support of a negligence claim under Maryland state law. See Estate of Saylor, 54 F.Supp.3d at 431.

Answering that question in the negative, the Saylor Court concluded that even accepting “that a violation of the ADA could be used as evidence of negligence, ... the Court would, nonetheless, conclude that the claim would fail because [the theater’s] conduct was not the proximate cause” of decedent’s death. 54 F.Supp.3d at 431. In other words, the Saylor Court’s view of the limits of proximate causation under Maryland state law defeated decedent’s state law negligence claim, a different issue than the one raised here. See id. at 431-32.

More importantly, a review of the 2010 video submitted by the Centro defendants reveals that although this prior incident did not result in a tasing or a broken hip, Hulett’s compliance on that occasion most certainly appears to have been procured in a less-than-totally-peaceful manner—at the very least, plaintiffs hand appears to have been forcibly removed from the grab bar by one of the SPD officers, and plaintiff can be heard arguing loudly with the officers as they forcefully escort him off the bus.

A factfinder might well conclude, based partially on Sup’r Robinson’s direct involvement in this earlier incident, that he was on notice that SPD officers would readily use some degree of force to remove Hulett in the event they were summoned to do so. Indeed, a jury might also infer from this earlier incident that it was more widely understood by Centro bus drivers and their supervisors that they could mistreat disabled passengers who inconvenienced them, in contravention of their own stated policies, by using uniformed law enforcement to forcibly remove them in the absence of legitimate justification.

A factfinder might conclude one or more of these inferences are especially warranted under the circumstances of this case, where the audio transcript of the later, 2013 incident reveals that Sup’r Robinson actually gave Officer Coleman a specific direction rather than just a call for general assistance: “[s]ee if you can’t have him have a seat or your [sic] gonna have to take him off [the bus].” Among other things, a jury could determine that a specific direction like that one, aimed at an intransigent passenger whose visibly indented skull, noticeably altered speech pattern, and clearly limited left-handed function suggest he may be particularly susceptible to physical force, might well result in foreseeable injury during his forcible removal. In sum, none of the Centro defendants’ proximate cause arguments provide a basis for the dismissal of Hu-lett’s disability discrimination claims as a matter of law.

ii. The Direct Threat Doctrine

In the alternative, the Centro defendants contend they are not liable under the ADA “because Hulett’s refusal to sit constituted a direct threat to the safety of other passengers on the bus.” Plaintiff responds that this “safety” justification is a catch-all response that conceals the true rationale(s) for bus driver Wallace and Sup’r Robinson’s actions, which were based either in the best case on mistaken preconceptions about the limited abilities of disabled people or, at worst, on intentional animus.

The “direct threat” doctrine operates as an affirmative defense to a disability discrimination claim under the ADA, 49 C.F.R. §§ 37.1, 37.5(h), and is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services,” 42 U.S.C. § 12182(b)(3).

However, “[t]o constitute a ‘direct threat,’ the probability of significant harm must be substantial, constituting more than a remote or slightly increased risk.” Doe v. Deer Mountain Day Camp, Inc., 682 F.Supp.2d 324, 345 (S.D.N.Y. 2010) (citations omitted). In making a direct threat determination, a public accommodation must

make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

Deer Mountain Day Camp, Inc., 682 F.Supp.2d at 346 (emphasis and citation omitted).

According to the Centro defendants, bus driver Wallace observed Hulett’s unsteady gait as he boarded the bus and concluded plaintiff might fall if permitted to ride while standing. Thus, plaintiffs “refusal to sit constituted a direct threat to the safety of other passengers on the bus.”

This argument is also rejected at this stage. To be sure, the Centro defendants correctly assert that it is the reasonableness of their employee’s decision made in the moment, not the ultimate correctness of it after the fact, that matters in evaluating whether someone posed a “direct threat” as the ADA defines the term. See Makinen v. City of N.Y., 53 F.Supp.3d 676, 697-98 (S.D.N.Y. 2014) (“The focal point, in other words, is the ex ante reasonableness of a defendant’s determination, not an ex post determination of its accuracy by the factfinder.”).

But at the end of the day, “the entity asserting a ‘direct threat’ as a basis for excluding an individual bears the heavy burden of demonstrating that the individual poses a significant risk to the health and safety of others.” Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061, 1066 (9th Cir. 2007). As Hulett contends, merely stating that “had plaintiff fallen while the bus was moving, he could have injured himself or other passengers,” as the Cen-tro defendants do here, proves absolutely nothing, since every passenger who might choose to stand on a Centro bus (as Centro’s own regulations permit passengers to do) poses an identical safety hazard. 28 C.F.R. § 36.301 (“Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”).

Indeed, others courts have taken pains to emphasize that “a direct threat is not lightly found.” Monroe v. Cty. of Orange, 2016 WL 5394745, at *16 (S.D.N.Y. Sept. 27, 2016). And the U.S. Department of Transportation’s own Federal Transit Administration has issued guidance on this issue confirming that

An agency cannot deny service to a person with a disability based on what it perceives to be “safe” or “unsafe” for that individual. All riders take on some level of risk when traveling (e.g., standing while riding a bus, crossing busy streets, or walking along roadways with quickly moving traffic). Individuals with disabilities also have the right to decide, the level of risk they are willing to take to travel independently.”

U.S. Dep’t of Transp., Fed. Transit Admin., Guidance Circular on Civil Rights, 2015 WL 6037995 (Nov. 4, 2015).

Notably, Hulett’s assertion that he has never fallen while standing on a Centro bus remains uncontroverted at this point. Further, plaintiffs testimony suggests that other Centro bus drivers regularly permitted him to ride while standing over the three-year period between his serious bicycle accident and the events at issue here. Indeed, even the 2010 incident itself tends to confirm that Sup’r Robinson, at least, was aware of the fact that plaintiff had been riding public buses in this manner on some occasions.

If nothing else, a reasonable jury could well conclude the risk of harm posed by the mere possibility Hulett might fall down simply did not meet the “high threshold baked into the direct-threat analysis.” Monroe, 2016 WL 5394745, at *17. That is especially so here, since a review of the audio transcript from the 2013 incident suggests that the “safety-related” justification raised by bus driver Wallace and Sup’r Robinson reflects, at best, generalized concerns about the mere fact of plaintiffs disability as opposed to any individualized assessment and accompanying conclusion about a “significant risk to the health and safety of others” posed by plaintiff in particular. See, e.g., Van Vleck Decl. Ex. 2 at 9 (audio transcript of bus driver Wallace explaining to other passengers that he “really (ui) for the young man to sit down ’cause he has a disability”).

It bears repeating that Sup’r Robinson testified at his deposition that Hulett was not obstructing access to, or the movement of any passengers on, the bus at the time of the incident. Sup’r Robinson also readily acknowledged that passengers are permitted to ride while standing behind the white or yellow line. And again, Sup’r Robinson stated that if plaintiff had just explained why he refused to sit down, he “would’ve just had the operator fill out an incident report stating why [he refused] ..., notified dispatch that [they] have an unsafe passenger on board, but we’re still going to transport him and if anything happens, it’s already recorded on camera ... but we are going to transport him.”

In essence, the parties dispute the basis for, and reasonableness of, bus driver Wallace’s initial demand and, when Hulett refused to comply, the reasonableness of his and Sup’r Robinson’s choice to escalate the situation. Because the “direct threat” doctrine is an affirmative defense to plaintiffs claims, it simply does not necessitate their dismissal as a matter of law at this juncture.

2. The § 1983 Medical Indifference Claim against Sup’r Robinson

Hulett’s § 1983 medical indifference claim against Sup’r Robinson is based on the fact plaintiff was allegedly suffering from a broken hip during the time period between his forcible removal from the bus and his later transfer to the Justice Center. According to plaintiff, Robinson was “supervising” Officer Coleman in his capacity as private security for Centro during this period. Plaintiff supports this claim principally by pointing to the portion of the bus surveillance video that shows Sup’r Robinson exit the bus and remain in the general area following plaintiffs detention.

“The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). However, “[sjection 1983 itself creates no substantive rights; 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). Thus, a § 1983 claim requires a plaintiff to show (1) the deprivation of a right, privilege, or immunity secured by the Constitution and its laws by (2) a person acting under the color of state law. 42 U.S.C. § 1983.

Historically, a § 1983 claim alleging deliberate indifference to a plaintiffs serious medical needs has been analyzed under a two-pronged standard. See V.W. by & through Wiliams v. Conway, 236 F.Supp.3d 554, 582-83, 2017 WL 696808, at *18 (N.D.N.Y. Feb. 22, 2017). The first prong of this standard was objective: “the alleged deprivation of adequate medical care must be sufficiently serious.” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 139 (2d Cir. 2013) (citation and internal quotation marks omitted). The second prong was long understood to be subjective: “the charged officials must be subjectively reckless in their denial of medical care.” Id.

Under this well-settled approach, it made no difference whether the plaintiff was a convicted prisoner or a pre-trial detainee, since the Second Circuit had repeatedly instructed lower courts that “[cjlaims for deliberate indifference to a ... serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).

Recently, however, the Second Circuit has changed course. In Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), the Court overruled in part Caiozzo, observing that the “subjective prong” of a § 1983 deliberate indifference claim asserted by a pre-trial detainee is “perhaps better classified as a ‘mens rea prong’ or ‘mental element prong.’ ” Id. at 29. Accordingly, the Court concluded that “deliberate indifference” in the Fourteenth Amendment context should be “defined objectively,” meaning that the “Due Process Clause can be violated [even] when an official does not have subjective awareness that the officials acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.” Id. at 35. In other words, rather than ask whether the defendant “kn[ew] of and disregarded] an excessive risk to [] health or safety,” the appropriate inquiry under the Fourteenth Amendment is whether the defendant “knew, or should have known” that his conduct “posed an excessive risk to health or safety.” Id. at 33, 35.

After carefully considering the parties’ briefing in light of this standard, the § 1983 claim against Sup’r Robinson will be dismissed. Centro is a public benefit corporation, N.Y. Pub. Auth. Law § 1328(a), and is therefore considered a municipal entity for purposes of § 1983. See Byrd v. Metro. Transit Auth., 2015 WL 4546718, at *2 (E.D.N.Y. July 28, 2015) (“Public benefit corporations, such as the MTA, are municipal entities for the purpose of Section 1983.”).

It would therefore follow that Sup’r Robinson, a Centro employee, acted “under color of state law” during the incident. Cf. Louis v. Metro. Transit Auth., 145 F.Supp.3d 215, .223 (E.D.N.Y. 2015) (concluding public bus driver acted under color of state law for purposes of § 1983 when he ejected passenger with police assistance); see also Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir. 2010) (holding that state action occurs when, inter alia, the party charged with the deprivation is “a person who may fairly be said to be a state actor”).

But both parties’ accounts of events, considered in conjunction with the surveillance video, confirm that by the time Sup’r Robinson finally exited bus 1249 to observe the aftermath of Hulett’s removal, SPD had taken control over the area by calling in additional officers as well as an ambulance. Importantly, even though plaintiff contends the Rural/Metro defendants were medically negligent and/or constitutionally indifferent to his needs, there is no factual dispute over whether Paramedic Maulé and EMT Drev-erman actually arrived in response to that call for assistance.

Therefore, under either version of the facts, no reasonable jury could conclude that it was constitutionally unreasonable for Sup’r Robinson, at that point, to stand by and/or defer to the on-scene police and medical professionals. Simply put, plaintiff cannot demonstrate that, under these circumstances, Sup’r Robinson “knew, or should have known” that his failure to take additional action under those particular circumstances “posed an excessive risk” to plaintiffs immediate health or safety. Darnell, 849 F.3d at 35. Accordingly, the § 1983 medical indifference claim against Sup’r Robinson will be dismissed.

3. Officer Coleman’s Employment Status

In his opposition to the Centro defendants’ motion, Hulett contends there is a legitimate dispute regarding whether Officer Coleman Was acting as a Centro employee or as an SPD officer during the incident. According to plaintiff, this dispute precludes the dismissal of his false arrest and malicious prosecution claims against Centro.

However, as the Centro defendants point out in their reply, Hulett’s earlier concessions obviate the need to discuss this issue in any sort of detail. To the extent plaintiff believes this dispute to be relevant for purposes of his § 1983-based false arrest or malicious prosecution claims against Officer Coleman in his individual capacity, plaintiff is simply incorrect: a successful § 1983 individual-capacity claim against an official can result only in a finding of liability against the official himself. While that official’s employment status might then prove relevant to him or to his employer(s) for purposes of reimbursement or indemnification, it is not relevant to the § 1983 claim itself.

And while Officer Coleman’s disputed employment status might have proven relevant for purposes of analyzing a respon-deat superior claim against Centro based on false arrest or malicious prosecution under state law or possibly for a Monell claim under 42 U.S.C. § 1983, Hulett has specifically abandoned those theories of relief. PL’s Opp’n Mem. at 33 (“Hulett concedes that Centro is not liable for the actions of Wallace, Robinson, and Coleman under the doctrine of respondeat superior, that he has not established that Centro is liable under Monell, and that Wallace is not liable for deprivation of medical care.”)- Accordingly, there is no apparent need to resolve this dispute.

C. The City defendants

Hulett asserts § 1983 and related state law claims against Officer Coleman and Sergeant Galvin for excessive force, false arrest and imprisonment, and malicious prosecution. Plaintiff also asserts a § 1983 claim against the City for systematically failing to appropriately train, supervise, and discipline officers, resulting in the use of excessive force against citizens with disabilities. Finally, plaintiff asserts that the City is liable for its employees’ misconduct under a state law theory of respondeat superior.

1. Excessive Force & Assault and Battery

“The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). “Federal excessive force claims and state law assault and battery claims against police officers are nearly identical.” Graham v. City of N.Y., 928 F.Supp.2d 610, 624 (E.D.N.Y. 2013).

For either type of claim to succeed, a plaintiff must ultimately demonstrate that the defendant’s use of force was “objectively unreasonable ‘in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’” Hershey v. Gold-stein, 938 F.Supp.2d 491, 519 (S.D.N.Y. 2013) (quoting Maxwell v. City of N.Y., 380 F.3d 106, 108 (2d Cir. 2004)). “If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.” Id. (quoting Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987)).

This “objective reasonableness” inquiry is “necessarily case and fact specific and requires balancing the nature and quality of the intrusion on the plaintiff’s Fourth Amendment interests against the countervailing governmental interests at stake.” Tracy, 623 F.3d at 96 (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

Thus, review is “guided by consideration of at least three factors: (1) the nature and severity of the crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Tracy, 623 F.3d at 96 (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

Importantly, a court must evaluate the record “ ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” Tracy, 623 F.3d at 96 (quoting Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). In. so doing, it is important to “make ‘allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’ ” Id.

“Accordingly, police receive a fairly wide zone of protection in close cases involving potential danger, emergency conditions, and other exigent circumstances.” Lin v. Cty. of Monroe, 66 F.Supp.3d 341, 358 (W.D.N.Y. 2014) (citation omitted). However, “granting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could conclude that the officers’ conduct was objectively unreasonable.” Amnesty Am., 361 F.3d at 123.

With the contours of this standard firmly in mind, the parties’ cross-motions on these claims are denied. Defendants, for their part, try to paint the incident on the bus as a rapidly evolving situation that required quick-thinking by Officer Coleman and Sergeant Galvin, but the bus surveillance video as well as the officers’ own testimony tends to undermine that characterization of the circumstances. Greenaway v. Cty. of Nassau, 97 F.Supp.3d 225, 235 (E.D.N.Y. 2015) (“Because objective reasonableness is extremely fact-specific, summary judgment on the issue is often inappropriate.”).

Among other things, at the time of the incident the bus was still parked- in the Centro hub, meaning it was not, for example, parked on the side of a busy city street, a situation that might militate in favor of the conclusion that the situation needed to be resolved quickly for safety purposes. Further, although Sergeant Gal-vin at his deposition appeared reluctant to concede that plaintiffs appearance, demeanor, and speech would permit the average person to readily conclude plaintiff suffered from one or more serious disabilities, Galvin Dep. at 144 (“I was aware of the ... possibility existed, he may have an infirmity”), a review of the bus surveillance video clearly suggests otherwise.

In addition, neither the alleged conduct justifying the initial intervention—causing a delay to bus driver Wallace’s route—nor the primary alleged crime identified by the City defendants as resulting from that conduct—disorderly conduct—can fairly be described as “serious.” Indeed, disorderly conduct is considered only a “violation” under state law, N.Y. Penal Law § 240.20, and is therefore an offense for which no greater than fifteen days’ imprisonment may be imposed, id. § 10.00(3).

Importantly, upon Sergeant Galvin’s arrival, the two officers together almost immediately chose to employ a taser, an indisputably significant use of force, on Hulett, who is visibly physically disabled. See Garcia v. Dutchess Cty., 43 F.Supp.3d 281, 297 (S.D.N.Y. 2014) (“[B]oth methods of deploying a taser constitute ‘significant’ force.”); see also Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 911 (4th Cir. 2016) (“Taser use is severe and injurious regardless of the mode to which the taser is set.”).

To be sure, and as the City defendants insist, the law does not make it “presumptively unreasonable or excessive” to use a taser against a physically disabled person. Gordon v. Cty. of Onondaga, 2014 WL 6078426, at *6 (N.D.N.Y. Nov. 13, 2014) (Scullin, J.). Yet to do so under the apparent circumstances of this case, where Hulett offered only verbal refusals to comply and a continued grip on the bus’s grab bar with his good right hand, weighs decidedly against any conclusion that plaintiff could be viewed as a flight risk or as an immediate threat to the officers or nearby passengers. See Crowell v. Kirkpatrick, 400 Fed.Appx. 592, 595 (2d Cir. 2010) (summary order) (specifically declining ‘to “suggest that the use of a taser to effect an arrest is always, or even often, objectively reasonable” (emphasis added)); Lee v. City of Utica, 2013 WL 12140336, at *4 (N.D.N.Y. Mar. 5, 2013) (collecting cases on reasonable and unreasonable use of ta-sers); see also Vill. of Pinehurst, 810 F.3d at 909 (“The subject of a seizure does not create [a safety] risk simply because he is doing something that can be characterized as resistance—even when that resistance includes physically preventing an officer’s manipulations of his body.”).

In addition, the black-and-white bus surveillance video fails to clearly show what occurred as the officers forcefully “escorted” Hulett off the bus, and leaves the viewer wondering whether, and to what extent, additional force may have been applied during those moments that might have contributed to plaintiffs broken hip. And even following plaintiffs removal from the bus, it cannot be said as a matter of law that Sergeant Galvin acted in an objectively reasonable manner by dragging plaintiff some distance across the pavement, since plaintiff did not appear to be offering any further resistance at that point. Tracy, 623 F.3d at 98 (holding that otherwise acceptable use of pepper spray became excessive when arrestee was “offering no further active resistance”); Meyes v. Baltimore Cnty., 713 F.3d 723, 733 (4th Cir. 2013) (“[F]orce justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.”). In fact, plaintiffs testimony and the video