Full Opinion

25-2376 Bernard v. City of New York 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 22nd day of October, two thousand twenty-six. PRESENT: BARRINGTON D. PARKER, ALISON J. NATHAN, Circuit Judges, LEWIS A. KAPLAN, District Judge. ∗ _____________________________________ Kimberly Bernard, Plaintiff-Appellant, v. 25-2376 The City of New York, Mayor Eric Adams, NYPD Commissioner Keechant Sewell, NYPD Commissioner Edward Caban, NYPD Chief of Department Jeffrey Maddrey, NYPD ∗ Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. Chief of Patrol John Chell, NYPD Assistant Chief James N. McCarthy, NYPD Detective Jackson Dagobert, Deputy Commissioner of Operations Kaz Daughtry, and NYPD Members John or Jane Doe #1–15, Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Maryanne K Kaishian, Callen Lowell, Kaishian & Mortazavi LLC, Brooklyn, NY. FOR DEFENDANTS-APPELLEES: Richard Dearing, Deborah A. Brenner Diana Lawless, of Counsel, for Steven Banks, Corporation Counsel of the City of New York, New York, NY. Appeal from a judgment of the United States District Court for the Southern District of New York (Denise L. Cote, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on August 28, 2025, is AFFIRMED. Kimberly Bernard appeals from the judgment of the district court granting summary judgment to Defendants on her excessive force claims brought pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts and procedural history, to which we refer only as necessary to explain our decision. Two days after participating in a protest, Bernard joined a gathering outside the 2 New York City Police Department’s 7th Precinct to provide “jail support” for people who had been arrested that day. Officers identified Bernard as having trespassed on subway tracks during the protest, and Assistant Chief James McCarthy allegedly ran toward Bernard to arrest her. What happened next is the subject of this appeal. Bernard contends that McCarthy “grabbed [her] arm and shoved [her] into the brick wall,” and “then pinned [her] against the wall.” App’x 239. She also alleges that officers placed her in “overly-tight handcuffs” and “denied [her] requests to loosen them.” App’x 240–41. The district court granted summary judgment after concluding that body camera footage “utterly discredited” all her claims of excessive force. Bernard v. City of New York, No. 24-CV-6049, 2025 WL 2494312, at *4 (S.D.N.Y. Aug. 28, 2025). We review the district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to Bernard and drawing all reasonable inferences in her favor. See Alta Partners, LLC v. Getty Images Holdings, Inc., 165 F.4th 141, 148 (2d Cir. 2026). “We also review claims of procedural error in the grant of summary judgment de novo.” Kowalchuck v. Metro. Transp. Auth., 94 F.4th 210, 214 (2d Cir. 2024). Although we construe the evidence in the light most favorable to the non- moving party, “[i]ncontrovertible evidence relied on by the moving party, such as a relevant videotape whose accuracy is unchallenged, should be credited by the court . . . 3 if it so utterly discredits the opposing party’s version that no reasonable juror could fail to believe the version advanced by the moving party.” Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007). We credit such video evidence here. In this case, the body camera footage makes clear that no reasonable jury could find that McCarthy used excessive force by shoving Bernard against a brick wall. It is well-established that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation modified). Here, the video footage forecloses a finding that any shove occurred at all. Bernard argues that McCarthy’s body blocks the camera’s view at the moment of the alleged shove. But the footage depicts McCarthy’s movements during this brief encounter and leaves no reasonable basis to conclude that he used excessive force. Given this incontrovertible video evidence, summary judgment was appropriate. We next consider Bernard’s handcuffing claims. We have held that unnecessary tightening of handcuffs can constitute excessive force. See Ketcham v. City of Mount Vernon, 992 F.3d 144, 149–50 (2d Cir. 2021). For such a claim to succeed, the plaintiff must “demonstrate that the officer was made reasonably aware that the force used was excessive.” Cugini v. City of New York, 941 F.3d 604, 608 (2d Cir. 2019). A plaintiff satisfies this requirement if “either the unreasonableness of the force used was apparent 4 under the circumstances, or the plaintiff signaled her distress, verbally or otherwise, such that a reasonable officer would have been aware of her pain, or both.” Id. No reasonable jury could find that officers used excessive force in handcuffing Bernard during her arrest or at the 7th Precinct. The video footage shows that the handcuffs hung loosely at Bernard’s wrists. Indeed, she was able to slide them up toward her forearms. The footage also does not show Bernard signaling distress at the time of handcuffing, while standing in the precinct, or as officers freed her wrists. Bernard did not meaningfully challenge or address this footage in opposition to summary judgment. We therefore affirm the grant of summary judgment on these claims. Bernard’s separate claim concerning handcuffing at Central Booking first appeared in an affidavit opposing summary judgment. But it is well established that a claim must be set forth in the pleadings, in order to give defendants fair notice. See Fed. R. Civ. P. 8(a); Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006). Accordingly, the district court properly disregarded Bernard’s Central Booking claim and did not err in denying as moot her related motion to strike portions of the Defendants’ reply or to file a sur-reply. Finally, Bernard argues that the district court prematurely granted summary judgment while discovery was stayed. Because she did not submit an affidavit or 5 declaration under Federal Rule of Civil Procedure 56(d) identifying the discovery necessary to oppose summary judgment, she forfeited that argument. See Kazolias v. IBEW LU 363, 806 F.3d 45, 54 (2d Cir. 2015). We therefore affirm the grant of summary judgment as to all of Bernard’s claims. CONCLUSION We have considered the parties’ remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 6