LAURA TAYLOR SWAIN, District Judge.
Plaintiff Marisa Holmes brought this action under 42 U.S.C. section 1983 for violation of her rights under the United States Constitution and the Constitution of the State of New York. Her claims arise from her arrest on September 24, 2011, during demonstrations by Occupy Wall Street ("OWS") in lower Manhattan. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
On May 22, 2014, the named Defendants moved to dismiss Plaintiff's Amended Complaint (docket entry no. 13 (hereinafter "AC")) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c). (Docket entry no. 21.) After the briefing on the motion to dismiss had been completed, Plaintiff moved for leave to file a Second Amended Complaint, which would add certain factual allegations relating to Plaintiff's Section 1983 claim for false arrest. (
For the reasons that follow, Defendants' motion to dismiss is granted in part and denied in part. Because Plaintiff's proposed Second Amended Complaint contains neither new claims nor new allegations of fact that are relevant to the dismissed claims, her motion for leave to amend is denied, but Plaintiff will be afforded an opportunity to propose an amended complaint with additional factual material relating to one dismissed claim.
The following factual summary is drawn from Plaintiff's Amended Complaint, and is taken as true for purposes of this motion practice.
Plaintiff, a documentary film-maker and journalist who was an "active participant" in OWS, was filming an OWS demonstration outside of One Chase Manhattan Plaza in lower Manhattan in the early afternoon of September 24, 2011. (AC ¶¶ 9-10.) Plaintiff, along with numerous other members of the public and officers of the New York Police Department ("NYPD"), was in the middle of the roadway as a young man gave a speech, which Plaintiff was filming. (AC ¶ 12.) Given the numerous members of the public and NYPD officers present in the roadway, there was no vehicular traffic on the street at the time. (AC ¶¶ 38-39.) Plaintiff alleges that the street on which she was arrested, Nassau Street, was closed to vehicular traffic. (AC ¶¶ 40, 43-44.)
After the speech had proceeded for several minutes, NYPD officers, including Defendant Deputy Inspector Anthony Bologna, began to place the speaker under arrest. (AC ¶ 16.) Defendant Detective Kenneth O'Donnell, who was standing alongside Plaintiff, instructed her (by name) to leave the roadway. (AC ¶¶ 17, 22.) Plaintiff did not comply with this instruction, but continued to film the arrest of the speaker, which involved multiple NYPD officers who were moving the speaker from the roadway to the sidewalk. (AC ¶ 19.) On the orders of Defendant Bologna, Defendants O'Donnell and Officer Fernando Centenotalavera then placed Plaintiff under arrest while she "was in the process of leaving the roadway." (AC ¶¶ 23-HOLMES 24, 31.) Plaintiff alleges that she was "roughly" brought down to the ground by Defendants O'Donnell and Centenotalavera and then placed in handcuffs that were "applied with an excessive and punitive tightness." (AC ¶¶ 26-28.)
Plaintiff was placed in a police vehicle and taken to the NYPD 1st Precinct station house, where she was searched, fingerprinted, and photographed. (AC ¶¶ 41, 47-48.) Plaintiff was held at the 1st Precinct for several hours, and then taken to Manhattan Central Booking, where she was arraigned and released on her own recognizance. (AC ¶¶ 49-51.) Plaintiff was charged with one count each of violations of Penal Law § 205.30 (resisting arrest), § 195.05 (obstruction of governmental administration), and § 240.20(5) (disorderly conduct). (AC ¶ 52.) The obstruction of governmental administration charge was later dismissed on motion of the District Attorney; the two other charges were dismissed after adjournment in contemplation of dismissal. (AC ¶¶72-73.)
Defendants have moved to dismiss the Amended Complaint under either Federal Rule of Civil Procedure 12(b)(6) or 12(c). Because Defendants have filed an Answer (docket entry nos. 7 & 8), a motion under Rule 12(b)(6) is procedurally barred. The Court will therefore address Defendants' motion solely as a motion under Rule 12(c), though the standard for such a motion is identical to the standard for a Rule 12(b)(6) motion to dismiss.
To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face."
"The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference."
Plaintiff did not attach any documents to her Amended Complaint. However, in connection with this motion practice, Defendants have proffered three video recordings they contend should be treated as integral to the Amended Complaint based on the standard set forth in
Plaintiff concedes that she used "various videos as sources . . . for a number of the allegations that were made in the Amended Complaint." (Docket entry no. 28 (Memorandum of Law), at 9 n.2.) Plaintiff does not, however, state that she drafted her pleading using the specific videos proffered by Defendants as source material. Defendants have not proffered any other evidence that would establish that the video evidence is integral to the Amended Complaint, and therefore the video evidence is not properly considered in the context of this motion to dismiss.
Plaintiff claims that her arrest and subsequent period of detention were violative of her constitutional rights under the Fourth and Fourteenth Amendments. Defendants move to dismiss this claim on the grounds that there was probable cause for Plaintiff's arrest.
Defendants argue that there was probable cause to arrest Plaintiff under three sections of the New York Penal Law ("N.Y.P.L."). In order to establish probable cause, "the facts and circumstances within the officer's knowledge and of which they had reasonably trustworthy information [must be] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been, or is being committed by the person to be arrested."
N.Y.P.L. section 240.20 defines various disorderly conduct offenses. Section 240.20(5) provides that one "is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [he or she] obstructs vehicular or pedestrian traffic." The Second Circuit, in interpreting Section 240.20(5), has required a showing that the putative offender was "actually and immediately blocking" the pedestrian or vehicular traffic in question.
Reviewing the pleadings in the light most favorable to Plaintiff, it is not clear that Plaintiff was actually and immediately blocking any pedestrian or vehicular traffic. The allegations in the Amended Complaint demonstrate that the street in question was full of members of the public, journalists, and NYPD officers. A reasonable factfinder could determine that Plaintiff, individually, was not the actual or immediate cause of any obstruction of progress in the roadway.
Defendants next argue that there was probable cause to believe Plaintiff was violating N.Y.P.L. section 240.20(6), which provides that one "is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [he or she] congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse." The Amended Complaint acknowledges that Plaintiff was congregating with other persons in a public place, but there is no allegation that the crowd or Plaintiff was ordered to "disperse." The allegations in the Amended Complaint indicate that Plaintiff was individually — indeed, by name — told to leave the roadway. This is insufficient to demonstrate that there was order to disperse because, while "a group can disperse[,] an individual cannot."
Finally, Defendants claim that there was probable cause to believe that Plaintiff was violating N.Y.P.L. section 195.05, which provides (as relevant to this case) that one "is guilty of obstructing governmental administration when he [or she] intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act." The New York Court of Appeals has made it clear that violation of the statute requires the use of the means specified in the statute, which "requires as an element of the crime that the accused act by one of three methods: (1) `intimidation,' (2) `physical force or interference,' or (3) `any independently unlawful act.'"
Plaintiff has therefore stated a claim for false arrest and Defendants have failed to establish, at this stage of the litigation, that her claims are precluded by probable cause.
Defendants' motion to dismiss Plaintiff's claim for false arrest is denied.
Plaintiff next claims that her prosecution for violation of three sections of the N.Y.P.L. was malicious, in violation of her rights under the Fourth and Fourteenth Amendments. In order to state a malicious prosecution claim, Plaintiff "must show a violation of [her] rights under the Fourth Amendment, and must establish the elements of a malicious prosecution claim under [New York] state law."
Defendants challenge Plaintiff's malicious prosecution claim on the grounds that she does not adequately allege a post-arraignment liberty restraint. The Amended Complaint alleges only that Plaintiff was released on her own recognizance after her arraignment, and contains no allegations relating to any post-arraignment deprivations of liberty. Plaintiff therefore fails to state a claim for malicious prosecution.
Plaintiff may seek leave to amend her Complaint in order to provide additional factual material relevant to this claim insofar as it relates to the obstruction of governmental administration charge, given representations by counsel during the briefing of this motion that Plaintiff was required to appear in court on several occasions. (
Defendant's motion to dismiss the malicious prosecution claim is granted, with leave to move for permission to replead the claim in connection with the obstruction of justice charge only.
Plaintiff claims that the circumstances of her arrest involved being roughly brought to the ground by large NYPD officers and then handcuffed tightly, which were allegedly excessive uses of force that violated her Fourth and Fourteenth Amendment rights.
Plaintiff therefore fails to state a claim for excessive force, and Defendants' motion is granted as to the assault and battery claims.
Plaintiff's Amended Complaint separately alleges that defendants O'Donnell and Bologna are liable for failure to remedy the alleged constitutional violations and failure properly to train, supervise, or discipline the defendants who were directly responsible for Plaintiff's arrest and prosecution. Defendants move to dismiss these claims on two grounds: (1) that Plaintiff did not suffer a constitutional violation, and (2) that a supervisory liability or failure to intervene claim should be dismissed where Plaintiff alleges direct action by those same defendants. Because Plaintiff has stated a claim for constitutional violations, Defendants' first theory is unavailing.
Defendants' second theory is also unavailing. Direct participation is a possible basis for supervisory liability, not a duplicative claim:
Defendants' motion to dismiss Plaintiff's second claim for relief on the theory of supervisory liability or failure to intervene is denied.
Plaintiff may state a claim against the City of New York, a municipal defendant, if she alleges facts showing the existence of an official policy or custom causally related to a deprivation of her constitutional rights.
The Second Circuit has recognized that a plaintiff need not prove and document a failure to train at the pleading stage to state a claim for municipal liability under
Plaintiff's allegations suffice, at the pleading stage, to state a claim for
On January 4, 2016, Plaintiff moved for leave to amend her complaint to include material relating to "the lack of probable cause and defendants' ineligibility for qualified immunity." (Docket entry no. 57, at 3.) Defendants oppose the motion.
Because the factual allegations contained in the Amended Complaint suffice to overcome the defenses of probable cause and qualified immunity at the pleading stage, the additional allegations in the proposed Second Amended Complaint are not necessary for Plaintiff to state a claim. Moreover, because the new factual material is sensitive (
Plaintiff's motion for leave to amend is denied.
For the foregoing reasons, Defendants' motion to dismiss is granted as to Plaintiff's claims for relief under Section 1983 based on the theories of malicious prosecution, assault, and battery, and otherwise is denied.
Plaintiff's motion for leave to amend is denied. Plaintiff may move for further leave to amend
This Order resolves docket entry nos. 21 and 56. This case remains referred to Magistrate Judge Ellis for general pre-trial management (
SO ORDERED.