1 16-2780 Shen v. City of N.Y. UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held 1 at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 9 th day of February, two thousand eighteen. 3 4 PRESENT: B ARRINGTON D. P ARKER , 5 R ICHARD C. W ESLEY , 6 C HRISTOPHER F. D RONEY , 7 Circuit Judges

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---------------------------- ---------------------------- -------------- 9 Z IMING S HEN , 10 Plaintiff-Appellant , 11 12 v. No. 16-2780 13 14 C ITY OF N EW Y ORK , P OLICE O FFICER E VAN A RONOWITZ , 15 P OLICE O FFICER S ELENA D. H OLMES , P OLICE O FFICER 16 M ICHAEL M RAZ , D ANIEL S HAPIRO , S PENCER B URNETT , 17 J OHN D OE 1, P OLICE O FFICER J OHN D OE 2, supervisor at 18 precinct house, P OLICE O FFICER J OHN S HULTZ , 19 Defendants-Appellees

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---------------------------- ---------------------------- -------------- 21 22 FOR PLAINTIFF-APPELLANT: N ATHAN Z. D ERSHOWITZ , Nathan Z. Dershowitz, LLC, New York, NY (Amy Adelson, Daniela Elliott, Law Offices of Amy Adelson, LLC, New York, NY, on the brief ).

 The Clerk of Court is directed to amend the caption as set forth above.2 FOR DEFENDANTS-APPELLEES CITY OF NEW YORK, POLICE OFFICER EVAN ARONOWITZ, POLICE OFFICER SELENA D. HOLMES, POLICE OFFICER MICHAEL MRAZ, JOHN DOE 1, POLICE OFFICER JOHN DOE 2, AND POLICE OFFICER JOHN SHULTZ:
FOR DEFENDANTS-APPELLEES DANIEL SHAPIRO AND SPENCER BURNETT: M AC K ENZIE F ILLOW , Assistant Corporation Counsel (Richard Dearing, of counsel ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY.

J OANNE F ILIBERTI (Peter James Johnson, Jr., of counsel ), Leahey & Johnson, P.C., New York, NY. Appeal from an August 3, 2016, judgment of the United States District Court for 1 the Southern District of New York (Forrest, J. ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the judgment of the district court is AFFIRMED IN PART AND 4 VACATED IN PART , and the case is REMANDED for proceedings consistent with 5 this summary order. 6 Plaintiff-Appellant Ziming Shen appeals fr om a judgment of the district court 7 granting Defendants-Appellees’ motions for summary judgment. Shen challenges the 8 dismissal of certain claims he brought purs uant to federal and state law against two 9 photographers, six New York City police officers, and the City of New York in 10 connection with an altercation between Shen and the photographers and Shen’s 11 subsequent arrest. We assume th e parties’ familiarity with th e underlying facts, record of 12 prior proceedings, and issues on appeal. 133 I. Background 1 On September 16, 2011, Shen and his wi fe exited the federal courthouse in 2 Brooklyn, New York, after attending a court appearance in a federal criminal proceeding 3 against them involving charges of defraudi ng a federal nutrition program. Upon leaving 4 the courthouse, they encoun tered a group of professional news photographers covering 5 his court appearance. As Shen approached the waiting photog raphers, he made punching 6 and kicking gestures, but did not make physical contact with them. He then moved 7 further down the sidewalk, where he encount ered Defendant-Appellee Daniel Shapiro, 8 one of the photographers. The parties dispute what occurre d during this in itial exchange 9 between Shen and Shapiro, but everyone agrees that Shen’s arm beca me entangled in the 10 camera strap of one of Shapiro’s cameras. 11 Once the camera strap was untangled fro m Shen’s arm, Shen proceeded away 12 from the courthouse, and the photographers fo llowed him. At some point, an altercation 13 ensued between Shapiro and Shen. The parties dispute bot h who initiated the encounter 14 and what took place during it, but it ended w ith Shen on the ground. As a result of the 15 altercation, Shen suffered several injuries, including a fractured shoulder, while Shapiro 16 suffered a bloody nose, and one of Shapiro’s cameras was damaged. 17 Following the confrontation, Shapiro called 911. During the call, Shapiro 18 informed the 911 operator th at Shen might require an am bulance and that Shen had 19 assaulted him. New York City police then responded to the scene, and Shapiro informed 204 the officers that Shen had assaulted him. Th e police arrested Shen, who remained on the 1 ground until his arrest, and tran sported him to the hospital fo r treatment of his injuries. 2 Shen claims that, prior to his arrest, he info rmed the police that th ey were arresting the 3 wrong person. One eyewitness al so informed one of the polic e officers present at the 4 scene that Shapiro was the aggressor. 5 Shapiro and Spencer Burnett, another photographer, went to the local police 6 precinct. While there, the police interviewed Shapiro, who asserted that Shen assaulted 7 him. The next day, the district attorney’s office also interviewe d Shapiro, who again 8 stated that Shen attacked him. The police and the distri ct attorney’s office also 9 interviewed Burnett, who reported that he saw only the initial cont act between Shen and 10 Shapiro immediately outside the courthouse. Shen was then charge d with several New 11 York state offenses in connec tion with the altercation, in cluding assault in the third 12 degree. In November 2011, Shapiro again signe d a statement for the district attorney’s 13 office affirming his claim of assault. Burnett also reiterated his statement in February 14
2012. The charges were dismissed by th e state court in February 2014. 15 Shen commenced this suit in September 2014. The second amended complaint 16
asserted numerous federal stat utory and constitutional claims and related state law claims 17 against Shapiro, Burnett, police officer s allegedly involved in responding to the 18 altercation, and New York City. Defendants moved for summary judgment as to all of 195 Shen’s claims. The district court granted de fendants’ motions and dismissed the action. 1 This appeal followed. 2 On appeal, Shen argues that the district court erred in dismissing his federal and 3 state claims for: (1) excessive force; (2) malicious prosecution; (3) failure to train and/or 4 supervise; (4) negligence; and (5) violations of 42 U.S.C. §§ 1981 and 1985. We review a 5
district court’s decision to grant summary judgment de novo , affirming “only if the 6 moving party has demonstrated that there is no genuine issue as to any material fact and 7 that judgment as a matter of law is warranted.” Jaegly v. Couch , 439 F.3d 149, 151 (2d 8 Cir. 2006). “In determining whether a case pres ents triable issues of fact, we, like the 9 district court, may not make credibility dete rminations or weigh the evidence, and we 10 must resolve all ambiguities and draw all permissible in ferences in favor of the 11 non-moving party.” Id. (citations omitted). 12 Applying this standard of review, we affi rm the majority of the district court’s 13 conclusions for substantially the same reasons stated in the district court’s opinion and 14 order. See Shen v. City of N.Y. , No. 14-CV-7358 (KBF), 2 016 WL 41265 41 (S.D.N.Y. 15 Aug. 2, 2016). However, we vacate and rema nd as to the state law malicious prosecution 16 claim against Shapiro. Although de fendants argue—and the district court 17 concluded—that some of the claims are subjec t to dismissal on more than one basis, we 18 note here only those grounds that are necessary to our decision. 196 II. Excessive Force Claims Against Police Officer Defendants 1 Shen claims that the police officers used excessive fo rce in handcuffing him and 2 transporting him to the hospital. Under the Fourth Amendment, a police officer may not 3 use excessive force in effecting an arrest. See Tracy v. Freshwater , 623 F.3d 90, 96 (2d 4 Cir. 2010). Whether a use of force is excessiv e is measured according to a standard of 5 “’objective reasonableness,” which “requires balancing the nature and quality of the 6 intrusion on the plaintiff’s Fourth Amen dment interests against the countervailing 7 governmental interests at stake.” Id. (quoting Bryant v. City of N.Y. , 404 F.3d 128, 136 8 (2d Cir. 2005))

. In assessing the reasonableness of a use of force, “we are careful to 9 evaluate the record from the pe rspective of a reasonable officer on the scene, rather than 10 with the 20/20 vision of hindsight.” Id. (internal quotation marks omitted). “Proper 11 application of the test of reasonableness in this context requires careful attention to the 12 facts and circumstances of eac h particular case . . . .” Rogoz v. City of Hartford , 796 F.3d 13 236, 246 (2d Cir. 2015) (alterations and internal quotation marks omitted). 14 We agree with the district court’s conc lusion that, even when the evidence is 15 construed in the light most favorable to Sh en, the record does not support a finding that 16 the officers involved in Shen’s arrest used exce ssive force. It is undisputed that when the 17 officers arrived on the scene, th ey encountered a volatile situation—reports of a physical 18 blows struck, evidence of injury to both partie s, and a crowd in the area of combat. As to 19 the actual use of force at issue, as the distri ct court noted, Shen has pleaded his claim for 207 excessive force in a way that implicates the period of time on ly from when he was 1 handcuffed to when he was placed in an ambulance to be transported to the hospital. Shen 2 does not dispute that this window was very brief; indeed, when asked at his deposition 3 “what happened next” after he had been ha ndcuffed, Shen responded: “I think the 4 ambulance c[a]me. They pull[ ed] me on the ambulance.” App. 733. Moreover, for the 5 brief period at issue, the record shows th at Shen was handcuffed with two sets of 6 connected handcuffs because of his complaints to the officers about th e shoulder injury 7 he sustained in the altercation wi th Shapiro, such that his hands rested near the side of his 8 hips rather than completely behind him. Fina lly, although Shen tes tified at his deposition 9 that he experienced significant pain from the inju ry to his shoulde r, including during the 10 brief period that he was handcuffed, he has offered no eviden ce that the handcuffing 11 caused him any further injury other than that he had alre ady suffered from the encounter 12 with Shapiro. 1 13 The undisputed facts thus sh ow that the officers res ponded to an incident of 14 reported violence by handcuffing Shen, the suspected aggressor, using two sets of 15
handcuffs to accommodate his sh oulder injury and in a way that did not result in any 16 further injury to Shen, for (as relevant here ) only the brief period of time that it took to 17

1 Shen argues that the district court erred in declin ing to consider an expert affidavit he submitted in opposition to defendants’ motions for summary judgment . We identify no error in the district court’s decision to exclude the affidavit, but even if the exclusion had been error, the expert opinion Shen points to—that handcuffing Shen in a certain way may have caused him pain—does not support his argument that the handcuffing caused him further injury , so any such error would be harmless.8 place Shen in an ambulance to be transported immediately to a hospital for treatment of 1 his injuries. In these circumstances, the di strict court correctly concluded that no 2 reasonable juror could find that the offi cers’ conduct was objectively unreasonable. 3 Shen’s excessive force claim ther efore fails as a matter of law. 2 4
III. Malicious Prosecution 5

a. Claims against the City of Ne w York and the Police Officers 6 To prevail on a malicious prosecution clai m under either 42 U.S.C. § 1983 or New 7 York state law, 3 Shen must show: (1) the initiatio n or continuation of a criminal 8 proceeding against him; (2) the termination of the proceeding in his favor; (3) that there 9 was no probable cause for the proceeding; and (4) that the proceeding was instituted with 10 malice. Mitchell v. City of N.Y. , 841 F.3d 72, 79 (2d Cir. 2016). Because lack of probable 11 cause is a necessary element, “t he existence of probable caus e is a complete defense to a 12 claim of malicious prosecution . . . .” Savino v. City of N.Y. , 331 F.3d 63, 72 (2d Cir. 13 2003). 14 Here, the district court correctly conclude d that the existence of probable cause 15 defeats Shen’s claim for malicious prosecut ion against the police officers and the City. 16 Because Shen withdrew his fa lse arrest claims in his o pposition to summary judgment, 17

2 The district court also concluded that the police o fficers were entitled to qualified immunity for their use of the two sets of handcuffs. We need not reach that issue here. 3 Shen brought his malicious prosecution claim against the police officers under both § 1983 and state law. The analysis for both is the same, as Shen must make the same showing for both the § 1983 and state law claim. See Kinzer v. Jackson , 316 F.3d 139, 143 (2d Cir. 2003). As to Shapiro and Burnett, Shen brought his malicious prosecution claim only under state law, which we address below.9 Appellant Br. 19

 20, we need only review whether there was probable cause to pursue 1 criminal charges against Sh en after his initial arrest. See Dufort v. City of N.Y. , 874 F.3d 2 338, 351

 54 (2d Cir. 2017). 3 It is undisputed that Shapiro called 911 and reported that he had been assaulted, 4 and that once the police arrived, Shapiro stat ed to the officers th at Shen had committed 5 the assault. Shapiro’s repor t was corroborated by his bl oody nose and his damaged 6

camera. As we have previously recognized, “[i]nformation about criminal activity 7 provided by a single complainan t can establish probable cause when that information is 8 sufficiently reliable and corroborated.” Oliveira v. Mayer , 23 F.3d 642, 647 (2d Cir. 9 1994). Similarly, in the context of a false a rrest claim, we have stated that “it is 10 well-established that a law enforcement offi cial has probable cause to arrest if he 11 received his information from some person, nor mally the putative victim or eyewitness.” 12 Martinez v. Simonetti , 202 F.3d 625, 634 (2d Cir. 2000) (quoting Miloslavsky v. AES 13 Eng’g Soc’y , 808 F. Supp. 351, 355 (S.D.N.Y. 1992), aff’d , 993 F.2d 1534 (2d Cir. 14 1993)). Here, Shapiro’s report of assault to the authorities and his visible injuries at the 15 time of the officers’ arrival is relevant to the decision to continue to pursue prosecution 16 after the initial arrest. See, e.g. , Ricciuti v. N.Y.C. Transit Auth. , 124 F.3d 123, 128 (2d 17 Cir. 1997) (finding police had probable cause to conclude an assault had occurred, 18 “[g]iven [the alleged victim’s] version of events and his visible injuries”). 1910 The conflicting accounts that the officers re ceived about Shen’s responsibility for 1 the alleged assault also did not eliminate probable cause to undertake the arrest. Shen 2 argues that two eyewitnesses stat ed in their depositions that Shapiro was the aggressor, 3 and that one of them informed Police Officer Mraz that “[the police] were arresting the 4 wrong person.” Appellant Br. 41. Howeve r, in similar circumstances involving 5 conflicting accounts of who was at fault in a fight, “we have found probable cause where 6 a police officer was presented with different stories from an alleged victim and the 7
arrestee.” Culey v. Village of Suffern , 268 F.3d 65, 70 (2d Cir. 2001); see also Riccuiti , 8 124 F.3d at 128 (finding probable cause wher e police officer was confronted with two 9 conflicting accounts of altercation). More im portantly for the malicious prosecution 10 claim, following Shen’s arrest , Shapiro and Burne tt provided statemen ts at the local 11 precinct to the police, and the next day provided statements to the district attorney’s 12 office. In light of both the officers’ obs ervations at the scene and the follow-up 13 interviews, the undisputed facts show that the police officers had probable cause to 14 believe Shen had assaulted Shapiro and we re justified in purs uing his prosecution. 4 See 15 Stansbury v. Wertman , 721 F.3d 84, 95 (2d Cir. 2013) ( noting that probable cause in the 16

4 Shen challenges this conclusion by th e district court on the ground that the court’s decision cited to four pages of deposition testimony that do not appear to ha ve been filed by any party on the CM/ECF docket. The City defendants acknowledge this discrepancy and speculate that “one of the parties must have inadvertently included [the pages] in a courtesy copy submitted to chambers.” City Appellees’ Br. 29 n.5. Assuming arguendo that it was error for the district court to consider these pages, any such error was harmless, as Shen does not dispute the accuracy of the c itations, and in any event, the district court’s brief references to these pages do not support factual points that were dispositive to the court’s analysis.11 context of malicious prosecution has been de scribed as “such facts and circumstances as 1 would lead a reasonably pruden t person to believe the plaintiff guilty”). Contrary to 2 Shen’s arguments on appeal, the relevant inquiry for probable cause is not whether a jury 3 would have been compelled to accept the accounts of Shapir o and Burnett. As we have 4 explained, the probable-cause standard “does not require absolute certainty.” Boyd v. City 5 of N.Y. , 336 F.3d 72, 76 (2d Cir. 2003). Moreove r, Shen has failed to offer any basis on 6 which to conclude that the probable cause against him “dissipate[d]” based on “the 7 discovery of some intervening fact” that ma de apparent “the groundless nature of the 8 charge.” Kinzer v. Jackson , 316 F.3d 139, 144 (2d Cir. 2003) (quoting Lowth v. Town of 9 Cheektowaga , 82 F.3d 563, 571 (2d Cir. 1996)). Becau se the existence of probable cause 10 defeats Shen’s claim of malicious prosecution as to the City and the police officers, the 11 district court properly granted summary judgmen t on this claim as to these defendants. 12 b. Claim Against Shapiro 13 However, we reach a different re sult as to Defendant Shapiro. We first distinguish 14 probable cause for the claim ag ainst Shapiro from the claim ag ainst the police officers. In 15 the context of a malicious prosecution claim under New York state law, a plaintiff can 16 defeat a showing of probable cause “by eviden ce establishing that the police witnesses 17 have not made a complete and full statement of facts . . . to the District Attorney, that 18 they have misrepresented or falsified evidence, that they have withheld evidence[,] or 19 otherwise acted in bad faith.” Torres v. Jones , 47 N.E.3d 747, 762 (N.Y. 2016) (quoting 2012 Colon v. City of N.Y. , 455 N.E.2d 1248, 1250 (N.Y. 1983)); see also Dufort , 874 F.3d at 1 353 (noting that plaintiff bore the burden of “establishing that Defendants misled . . . the 2 prosecutors by either withholding or misrep resenting evidence” in order to overcome 3 presumption of probable cause); Rothstein v. Carriere , 373 F.3d 275, 283

 85 (2d Cir. 4 2004) (applying this exception for probable cau se to malicious prosecution claim against 5 government cooperator). New York courts have lo ng made clear that th is exception to the 6 finding of probable cause applies where a pr ivate citizen provides false information to 7 law enforcement. See, e.g. , Ramos v. City of N.Y. , 285 A.D.2d 284, 300 (1st Dep’t 2001) 8 (“The record here, for the present motion, su fficiently supports pl aintiff’s claim, for 9 purposes of denying defendant’s motion, that witnesses had no t made a complete and full 10 statement of facts either to . . . the District Attorney, that they had misrepresented or 11 falsified evidence, and that th ey sufficiently withhe ld evidence or otherwise acted in bad 12 faith, which, if proved, would overcome the pr esumption of probable cause. At this stage 13 of the proceeding, it cannot be found as a matter of law that defendant prosecuted 14 plaintiff with probable cause and without malice.”). 15 In this case, a genuine dispute of materi al fact exists regarding whether Shapiro 16 misrepresented his altercation wi th Shen to the arresting office rs, and later at the precinct, 17 and still later to the district attorney’s o ffice. Two disinterested witnesses who saw the 18 altercation testified in their depositi ons that Shapiro was the aggressor. One of these 19 witnesses reported this claim to the police at the time of Shen’s arre st. In addition, Shen 2013 himself protested that he was innocent. Th ese facts place the veracity of Shapiro’s 1 account into substantial questio n, and prevent summary judgme nt as to whether there was 2 probable cause for the malicious prosecution claim against Shapiro. 3 As a result, we turn to the other elemen ts of Shen’s malicious prosecution claim 4 against Shapiro. For reasons similar to those ab ove, we conclude that genuine disputes of 5
material fact exist as to the other elements of Shapiro’s claim. First, as to the initiation or 6 continuation of a criminal proceeding elemen t, New York courts have indicated that 7 providing false information to the police may satisfy this element. See Williams v. CVS 8 Pharmacy, Inc ., 126 A.D.3d 890, 892 (2d Dep’t 2015) (noting that “giving false 9 information to the authorities” may constitute initiation if, “at the time the information 10 was provided, the defendant knew it to be false, yet still gave it to the police or District 11 Attorney”); Weiss v. Hotung , 26 A.D.3d 855, 857 (4th Dep’t 2006) (noting that 12 “intentionally g[i]v[ing] false information to the police” could constitute 13 “commencement of the criminal proceeding ag ainst plaintiff”). These same facts are 14 probative of malice, the fourth elem ent in a malicious prosecution claim. See Torres , 47 15 N.E. 3d at 762 (“[T]he plaintiff may show malice and overcome the presumption of 16 probable cause with proof that the defendant falsified evidence in bad faith and that, 17 without the falsified evidence, the authorities’ suspicion of the plaintiff would not have 18 fully ripened into probable ca use.”). In addition, Shen te stified in his deposition that 19 Shapiro cursed at him and used a racial epithet against him, which also place the malice 2014 question into dispute. Thus, su mmary judgment is inappropriat e as to elements one, three, 1 and four of Shen’s malicious pr osecution claim against Shapiro. 2 Finally, Shen clearly satisfies the favorab le termination element of a malicious 3 prosecution claim. The charges against him were dismissed on speedy trial grounds, and 4 under New York law, a speedy trial dism issal constitutes favorable termination. See 5 Rogers v. City of Amsterdam , 303 F.3d 155, 160 (2d Cir. 2002). Thus, we conclude 6 triable issues of fact exist regarding Shen’s malicious prosecution claim as to Shapiro. 7 Before turning to Defenda nt Burnett, we must resolve one final issue. The district 8 court also dismissed the state-law malicious prosecution claims as time-barred. The 9 district court erred in this respect: New Yo rk’s one-year statute of limitations commences 10 only upon favorable termination of a prosecution. Williams , 126 A.D.3d at 891. Here, the 11 charges against Shen were dismissed on Febr uary 23, 2014, and he filed his complaint 12 within one year, on Septembe r 11, 2014. On appeal, the de fendants concede that the 13 claims were timely. Thus, the statute of limitations does not bar Shen’s malicious 14 prosecution claim against Shapiro. 15

c. Claim Against Burnett 16 The rationale that requires us to remand to the district court the malicious 17 prosecution claim as to Shap iro does not apply to Burnett. 5 Shen concedes in his brief 18 that Burnett was present only at the initial encounter immedi ately outside the courthouse. 19

5 In his opposition to defendants’ motions for summary judgment, Shen abandoned all other claims as to Burnett except for the malicious prosecution claim.15 Appellant Br. 40. In his statements to the police a nd district attorney, that followed 1 Shen’s arrest, Burnett reported only as to Shen’s actions when Shen immediately left the 2 courthouse, and did not represent that he was present at the later altercation when Shen 3 was injured. Specifically, Burnett represented that “[Shen] did rep eatedly kick at and 4 swing [his] arms at [Burnett], [Shapiro], a nd other photographers.” App. 343. In his 5 deposition, Shen did not contest that he made such gestures while exiting the courthouse, 6 and the record (including numerous photo graphs) establishes that Shen did so. See, e.g. , 7 App. 631. Accordingly, we conc lude that there is not a genu ine dispute of material fact 8 regarding whether Burnett also misled the police, and affirm the district court’s grant of 9 summary judgment as to Burnett. 10 On remand, given the dismissal of all cl aims over which the district court has 11 original jurisdiction, the court may decline to exercise supplemental jurisdiction over this 12 remaining state law claim. 28 U.S.C. § 1367(c)(3); see Valencia ex rel. Franco v. Lee , 13 316 F.3d 299, 305 (2d Cir. 20 03). The court should balance the factors of “judicial 14 economy, convenience, fairness, and comity” in maki ng this discretionary determination. 15 Id. at 305 (quoting Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 350 n.7 (1988)). 16
IV. Monell Claim against the City of New York 17 Shen argues that the district court abused its discretion in denying him the 18 opportunity to amend his comp laint to clarify that Count 16, which was pleaded as a 19 pendent state-law claim, was in fact a federal claim for Monell liability against the City 2016 pursuant to 42 U.S.C. § 1983. We identify no abuse of discretion here, where Shen’s 1 request for leave to amend was filed nearly tw o months after the district court issued an 2 order adjourning the pretrial sc hedule in the case in light of the court’s intention to grant 3 summary judgment for defend ants. Moreover, any such amendment would have been 4 futile, as Monell does not create liability absent an independent constitutional violation, 5 see Segal v. City of N.Y. , 459 F.3d 207, 219 (2d Cir. 2006), and the district court correctly 6 granted summary judgment as to Shen’s unde rlying constitutional claims. We therefore 7 reject Shen’s arguments with respect to his purported Monell claim against the City. 8
V. Negligence Claim against Shapiro 9 Shen challenges the district court’s dismis sal of his state-law negligence claim, 10 arguing that the court erred in concluding th at the claim did not sound in negligence 11 because the underlying conduct by Shapiro was intentional. More specifically, Shen 12 contends that he is permitted to plead alternative claims, so the allegations of intentional 13 assault do not preclude him from also asser ting a negligence claim on the theory that 14 Shapiro is liable for “chasi ng Shen while carrying dangerous equipment and accidentally 15 injuring him.” Appellant Reply Br. 18. Althou gh this may be possible as a legal theory, 16 Shen’s argument finds no support in the record. As the district court noted, Shen testified 17 that Shapiro “attack[ed] [him], ” “grabbed [him ],” “us[ed] a camera to hit [him],” “pulled 18 [him] down to the ground,” and “us[ed] his knee to hit [him].” Ap p. 674–76, 706, 714. 1917 Shapiro also acknowledged the intentional na ture of his conduct, testifying that he 1 intended to bring Shen to the ground and “shoved him down.” Id. at 1040–41. 2 Under New York law, “once intentional offensive contact has been established, 3 the actor is liable for assault and not neglig ence, even when the ph ysical injuries may 4 have been inflicted inadvertently.” Smith v. Cty. of Erie , 295 A.D.2d 1010, 1011 (4th 5 Dep’t 2002) (quoting Salimbene v. Merchants Mut. Ins. Co. , 217 A.D.2d 991, 994 (4th 6 Dep’t 1995)). Because the record here, constr ued in the light most favorable to Shen, 7 shows that “[t]he ‘touching’ of [Shen] was ne ither inadvertent nor accidental,” Shen has 8 asserted a claim “for an assa ult, not negligent behavior.” Locke v. N. Gateway Rest., Inc. , 9 233 A.D.2d 578, 579 (3d Dep’t 1996); see also Cagliostro v. Madison Square Garden, 10
Inc. , 73 A.D.3d 534, 535 (1st Dep’t 2010) (dismissing neg ligence claim as “simply 11 contrary to [plaintiff’s] testimony that he was ‘pushed,’ ‘grabbed,’ ‘pulled,’ and 12 ‘manhandled’”). We therefore conclude that the district court properly granted summary 13 judgment as to Shen’s negligence claim. 14
VI. Violations of §§ 1981 and 1985 15 Finally, Shen argues that the district c ourt erred in dismissing two claims—for 16 violations of 42 U.S. C. §§ 1981 and 1985—on the basi s that Shen’s opposition to 17 summary judgment did not address those claims. 6 We have explained that, “in the case 18 of a counseled party, a court may, when appropriate, infer from a party’s partial 19

6 These claims include Shen’s allegation of a conspir acy between Shapiro and a police officer to violate Shen’s civil rights.18 opposition that relevant claims . . . that are not defended have been abandoned.” Jackson 1 v. Fed. Express , 766 F.3d 189, 198 (2d Cir. 2014). Such an inference was appropriate 2 here, especially in light of the statement by plaintiff’s counsel that he planned to 3 withdraw many of the claims at issue. Shen’s argument that the district court erroneously 4 dismissed these claims therefore fails. 5
* * * 6 We have considered Shen’s remaining arguments and conclude that they are 7 without merit. Accordingly, we AFFIRM IN PART and VACATE IN PART the 8 judgment of the dist rict court, and we REMAND the case to the district court for 9 proceedings consistent with this order. 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk of Court 12