Torres-Cuesta v. Berberich , 511 F. App'x 89 ( 2013 )

11-4134
Torres-Cuesta v. Berberich
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 13th day of February, two thousand thirteen.
PRESENT:
RALPH K. WINTER,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_____________________________________
JULIANO TORRES-CUESTA,
Plaintiff-Appellant,
v. 11-4134
FRANCIS BERBERICH, NEW YORK POLICE
DETECTIVE, JOHN DOES, UNKNOWN
DRUG ENFORCEMENT ADMINISTRATION
(DEA) AGENTS, EDWIN BENITEZ,
DETECTIVE, ANDREW BUTORACH,
UNITED STATES OF AMERICA,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Juliano Torres-Cuesta, pro se, Libson, Ohio.
FOR DEFENDANTS-APPELLEES: Varuni Nelson, Scott R. Landau, Assistant
United States Attorneys for Loretta E.
Lynch, United States Attorney for the
Eastern District of New York, Brooklyn,
New York.
Appeal from a order of the United States District Court for the Eastern District of New
York (Ross, J).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellant Juliano Torres-Cuesta, proceeding pro se, appeals the district court’s order,
after a bench trial, in favor of Appellees.1 We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
In an appeal of the district court’s decision after a bench trial, we review the district
court’s legal conclusions de novo and its findings of fact for clear error. See Arch Ins. Co. v.
Precision Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009). The clear error standard also applies
when the district court concludes that the evidence is in equipoise. See Boule v. Hutton, 328
F.3d 84, 92-93 (2d Cir. 2003). This Court does not “second-guess either the trial court’s
credibility assessments or its choice among permissible competing inferences.” Amalfitano v.
Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008) (internal quotation marks omitted). Mixed
questions of law and fact are reviewed de novo. See Roberts v. Royal Atlantic Corp., 542 F.3d
363, 367 (2d Cir. 2008). Furthermore, this Court is “extremely deferential,” concerning
1
Although no judgment appears on the docket, judgment was deemed entered on
December 29, 2011, 150 days after filing of the district court’s post-trial opinion and order
dismissing Appellant’s claims. See Fed. R. Civ. P. 58(c)(2)(B).
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evidentiary determinations, United States v. Quattrone, 441 F.3d 153, 188 (2d Cir. 2006), and
reviews such determinations for abuse of discretion, see United States v. Malpeso, 115 F.3d 155,
162 (2d Cir. 1997).
To prevail on a claim pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), a plaintiff must establish by a preponderance of the
evidence that: (1) the defendant was acting under the color of federal law at the time of the
alleged constitutional violation; (2) the defendant’s conduct deprived the plaintiff of a right
secured by the Constitution; and (3) the defendant’s acts were the proximate cause of the
damages sustained by the plaintiff. See Taverez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
Additionally, Federal Tort Claims Act claims are permitted where federal law enforcement
officers are alleged to have committed assault or battery, 28 U.S.C. § 2680(h), and courts must
apply the law of the state where the incident occurred, see Federal Deposit Ins. Corp. v. Meyer,
510 U.S. 471, 478 (1994). To recover for assault in New York, the state where the incident
occurred, a plaintiff must prove that defendant intentionally placed him “in fear of imminent
harmful or offensive contact.” Girden v. Sandals Int’l, 262 F.3d 195, 203 (2d Cir. 2001) (internal
quotation marks omitted). To recover for battery, he must show that the defendant intentionally
made “wrongful physical contact” with the plaintiff. Id. (quotation marks omitted). For both
torts, the plaintiff must also show the defendant’s conduct “was not reasonable within the
meaning of the New York statute concerning justification for law enforcement’s use of force in
the course of performing their duties.” Nimely v. City of New York, 414 F.3d 381, 391 (2d Cir.
2005).
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Here, a clear error standard applies when the district court concludes that the evidence is
in equipoise, Boule, 328 F.3d at 92-93, and “a finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S.
564, 573 (1985) (internal quotation marks omitted). The district court’s finding that Torres-
Cuesta did not meet his burden of proof in establishing excessive force is not clear error.
While under different circumstances, plaintiff’s objectively credible injuries might be
sufficient to prove that the appellees used excessive force, see Maxwell v. City of New York, 380
F.3d 106, 108 (2d Cir. 2004) (finding claims to survive summary judgment where the only injury
alleged is bruising), here, we conclude that the district court did not err in finding “his injury
does not tip the balance in either direction.” Dist. Ct. Op. at 31 n.7. In the present case,
plaintiff’s testimony, as to other facts, created “concern that plaintiff embellished portions of his
testimony.” Id. at 31. Additionally, the evidence did not preclude the possibility that plaintiff
sustained his neck injury through some other means. Id. at 31 n.7. Accordingly, where
plaintiff’s credibility was doubtful and the cause of injury was indefinite, we must find that the
district court did not commit clear error in its weighing of the injury in the case at hand.
We have considered all of Torres-Cuesta’s arguments and find them to be without merit.
Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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