    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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