Case v. City of N.Y.

233 F.Supp.3d 372

Benjamin CASE, Elizabeth Catlin, Jennifer Klein, and Mark Kushneir, Plaintiffs,

v.The CITY OF NEW YORK, New York City Police Department ("NYPD") Chief of Department Joseph Esposito, NYPD Deputy Chief Brian McCarthy, NYPD Lieutenant David Groht, NYPD Sergeant Lawrence Papola, Shield No. 03646, NYPD Officer Benjamin Almonte, Shield No. 29182, NYPD Officer Daniel Conforti, Shield No. 26403, NYPD Officer First Name Unknown ("FNU") Downes, Shield No. Unknown, NYPD Officer Dmitry Tverdokhleb, Shield No. 27018, and NYPD Officer Michael Maldonado, Shield 23573, Defendants.

14 Civ. 9148 (AT) (RLE)

United States District Court, S.D. New York.

Signed February 10, 2017

Gideon Orion Oliver, New York, NY, for Plaintiffs.

Andrew Joseph Lucas, NYC Law Department, Office of the Corporation Counsel, Joy Tolulope Anakhu, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ANALISA TORRES, District Judge:

Plaintiffs, Benjamin Case, Elizabeth Catlin, Jennifer Klein, and Mark Kushneir, bring this action pursuant to 42 U.S.C. § 1983 against the City of New York (the "City") and nine individual defendants employed by the New York City Police Department ("NYPD"), alleging that their constitutional rights were violated in connection with their participation in an Occupy Wall Street ("OWS") protest in Manhattan. Defendants move to dismiss the second amended complaint (hereinafter "complaint")¹ pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is GRANTED in part and DENIED in part.

BACKGROUND²

I. Events of November 17, 2011

On the morning of November 17, 2011, Plaintiffs were arrested while "peacefully assembling and demonstrating with others in the Wall Street area in connection with an OWS-related demonstration." SAC ¶¶ 103, 154, 189, ECF No. 41; see also id. ¶¶ 233, 264. They assert that, prior to their arrests, neither they "nor other non-NYPD persons present were causing or creating the risk of any substantial blockage of vehicular or pedestrian traffic, or any other serious public ramifications," id. ¶¶ 158, 193, 237, 269, such as "real public inconvenience, annoyance, and/or alarm," id. ¶¶ 183, 221, 259, 290. They allege that, "[w]ithout first having given a clearly communicated dispersal order or clearly communicated orders ... and a meaningful opportunity ... to comply, police began to make arrests." Id. ¶¶ 159, 194, 238, 270. Facts specific to each plaintiff are set forth below.

Benjamin Case. Case was arrested by Officer Downes³ and unidentified NYPD officers between 9:00 a.m. and 10:15 a.m. in the vicinity of William and Beaver Streets. Id. ¶ 157. Downes rear-cuffed Case with plastic flex-cuffs, then escorted him to a prisoner transport vehicle after which Officer Benjamin Almonte was assigned to process Case's arrest. Id. ¶¶ 161–63. For "around five hours," Case remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt him. Id. ¶¶ 171–72. He was issued a Desk Appearance Ticket ("DAT")⁴ and remained in NYPD custody until after 11:30 p.m. Id. ¶ 174. Case was charged with violating sections 240.20(5) and 240.20(6) of the New York Penal Law (disorderly conduct), as well as section 195.05 (obstruction of governmental administration ("OGA") in the second degree); Case eventually pleaded guilty to the disorderly conduct violation. Id. ¶¶ 177, 187. The complaint alleges that Almonte and Sergeant Lawrence Papola "provided false and misleading information" to the district attorney, id. ¶ 175, including in an accusatory instrument sworn to by Almonte in which he stated that he observed Case "standing in a group of approximately 70 individuals, in the middle of the roadway," and observed him "refuse to comply with [Papola's] repeated lawful orders to disperse" by sitting on the ground, interlocking his arms with others and tightening his arms to prevent Almonte from removing him, id. ¶ 176. Case claims that Almonte did not actually observe the events leading up to Case's arrest. Id. ¶ 179.

Elizabeth Catlin. Between 9:00 a.m. and 9:30 a.m. in the vicinity of Pine and William Streets, unidentified NYPD officers arrested Catlin. Id. ¶ 192. She alleges that an officer stepped on the right side of her face with his boot, which produced a blood blister or bruise that remained visible on her face for weeks thereafter and caused her pain for several days. Id. ¶¶ 195, 208, 226–27. An unidentified officer then rear-cuffed her with plastic flex-cuffs, which were too tight and hurt her. Id. ¶ 196. Catlin remained cuffed for "an excessive period of time." Id. ¶¶ 206–07. Officer Daniel Conforti processed Catlin's arrest. Id. ¶ 198. The complaint alleges that Conforti knew or should have known that Catlin was injured, but that he did nothing to report her injury or the use of force that caused it. Id. ¶¶ 209–11. Catlin was in NYPD custody for approximately 38 hours before she was arraigned in New York City Criminal Court and released on her own recognizance. Id. ¶ 212. She was charged with violating sections 195.05, 240.20(5), and 240.20(6) of the New York Penal Law as well as parading without a permit in violation of New York City Administrative Code section 10–110. Id. ¶ 215. The parading without a permit violation was dismissed at her arraignment. Id. ¶ 218. Catlin eventually accepted an adjournment in contemplation of dismissal ("ACD") to resolve the charges.⁵ Id. ¶ 225. The complaint alleges that Conforti and Deputy Chief Brian McCarthy "provided false and misleading information" to the district attorney, id. ¶ 213, including in an accusatory instrument sworn to by Conforti in which he stated that he observed the following: Catlin "obstructing pedestrian traffic" by sitting in the middle of the street and locking arms in a crowd of approximately 50 people; McCarthy repeatedly telling Catlin and others that they must disperse or would be arrested, Catlin remaining sitting with her arms linked; and an officer unlinking Catlin's arms in order to arrest her, id. ¶ 214. Catlin claims that Conforti did not actually observe the events leading up to her arrest. Id. ¶ 216.

Jennifer Klein. At about 9:00 a.m., in the vicinity of Pine and William Streets, unidentified officers arrested Klein. Id. ¶ 236. An officer rear-cuffed her with plastic flex-cuffs. Id. ¶ 239. Officer Dmitry Tverdokhleb was assigned to process Klein's arrest. Id. ¶ 240. For several hours, Klein remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt her. Id. ¶¶ 248–49. Klein was issued a DAT and remained in NYPD custody until approximately 11:00 p.m. Id. ¶ 250. She was charged with violating sections 240.20(5) and 240.20(6) of the New York Penal Law and eventually accepted an ACD to resolve the charges. Id. ¶¶ 253, 262. The complaint alleges that Tverdokhleb and Lieutenant David Groht "provided false and misleading information" to the district attorney, id. ¶ 251, including in an accusatory instrument sworn to by Tverdokhleb in which he stated that he observed Groht tell Klein, who was standing in a group of over 200 people in the middle of the street, "multiple times that [she and the others] were obstructing all vehicular traffic and were ordered to leave the roadway," but that Klein refused to move, id. ¶ 252. Klein claims that Tverdokhleb was not at the scene when she was arrested and did not actually observe the events leading up to her arrest. Id. ¶ 254.

Mark Kushneir. Unidentified officers arrested Kushneir shortly after 9:00 a.m. in the vicinity of Broadway and Exchange Place. Id. ¶ 266. An unidentified officer rear-cuffed him with plastic flex-cuffs. Id. ¶ 271. Well after Kushneir arrived at a prisoner transport vehicle, Officer Michael Maldonado was assigned to process Kushneir's arrest. Id. ¶ 272. For "around five hours," Kushneir remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt him. Id. ¶¶ 280–81. Kushneir was issued a DAT and held in NYPD custody until "around or after" 11:30 p.m. Id. ¶ 282. He was charged with violating section 240.20(5) of the New York Penal Law, for which he ultimately accepted an ACD. Id. ¶¶ 285, 291. The complaint alleges that Maldonado "provided false and misleading information" to the district attorney, id. ¶ 283, including in an accusatory instrument he swore to in which he stated that he observed Kushneir "standing in the middle of the sidewalk" with approximately 100 other people, such that they "completely blocked the sidewalks" and prevented their use by pedestrians, id. ¶ 284. Kushneir claims that Maldonado did not actually observe the events leading up to Kushneir's arrest. Id. ¶ 286.

II. NYPD Policies and Practices

Plaintiffs allege that their unlawful treatment by the NYPD on November 17, 2011, resulted from two specific policies concerning large protests that were adopted by the City in the fall of 2011. Id. ¶¶ 73–81. First, during meetings attended by Chief of Department Joseph Esposito⁶ and others, the City refined and adopted a "policy and practice related to OWS of denying persons arrested at demonstrations individual consideration for release with summonses (the ‘No–Summons Policy’)." Id. ¶¶ 64–65. Second, the City refined and adopted a "policy and practice related to the centralized processing of arrestees in a single mass arrest processing center including the involvement of NYPD Legal Bureau and Criminal Justice Bureau agents in the creation of boilerplate NYPD documents containing false information, all as part of an unreasonably lengthy and punitive mass arrest processing plan (the ‘MAPP’)." Id. ¶ 66. According to Plaintiffs, the No–Summons Policy and MAPP specifically targeted demonstrations "perceived to be associated with OWS." Id. ¶ 67.

Plaintiffs also allege that these two policies departed from the official procedures set forth in the NYPD Patrol Guide. Id. ¶ 69. According to Plaintiffs, the Patrol Guide provides that "persons detained or arrested for non-criminal violations...