Juliano TORRES-CUESTA, Plaintiff-Appellant, v. 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, 511 F. App'x 89

SUMMARY ORDER Appellant Juliano Torres-Cuesta, proceeding pro se, appeals the district court’s order, after a bench trial, in favor of Ap-pellees. 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, 828 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.” Arnalfitano 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 evidentia-ry 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 Tavarez 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, 114 S.Ct. 996, 127 L.Ed.2d 308 (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).

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, 105 S.Ct. 1504, 84 L.Ed.2d 518 (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 appel-lees 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 plaintiffs 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-Cues-ta’s arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court. . 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).