Leibovitz v. The City of New York et al

Filing 43

ORDER granting 29 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, the State Defendants' motion to dismiss is granted. Because the court dismisses all federal claims in this ac tion with prejudice, the court declines to exercise supplemental jurisdiction over any remaining state law claims. The Clerk of Court is respectfully directed to mail a copy of this Memorandum and Order to plaintiff, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 9/20/2016. (McNulty, John)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------X
ETAN LEIBOVITZ,
Plaintiff,
- against –

MEMORANDUM & ORDER
15-CV-1722 (KAM)

DEPUTY CLERK JOHN BARRY; MAJOR LOWE;
LIEUTENANT O'BRIEN;
COURT OFFICERS MARIE BENNETT; JOHN
DOE SHIELD #6814; JOHN DOE SHIELD
#3814; JOHN DOE SHIELD #7910; JOHN
DOE SHIELD #687; JOHN DOES #1-16,
Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Etan Leibovitz, proceeding pro se, commenced
this civil rights action pursuant to 42 U.S.C. § 1983 and New
York state law for, inter alia, false arrest, malicious
prosecution, failure to intervene, and violations of his First
Amendment rights.

(See ECF No. 1, Complaint dated 3/30/15.)

Defendants Deputy Clerk John Barry, Major Glen Lowe, Lieutenant
Dawn O’Brien, and Court Officer Marie Bennett (collectively, the
“State Defendants”) 1 have filed a motion to dismiss all claims
against them for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) and for failure to state a claim pursuant to Rule
12(b)(6).

(ECF No. 30, Motion to Dismiss dated 2/8/2016.)

1 Plaintiff alleges that each State Defendant was “acting in the capacity as
agent, servant, and employee of the New York State.” (Compl. at 9.)

After the court granted plaintiff several extensions of time to
respond to the motion to dismiss (see Orders dated 11/19/2015,
1/5/2016), plaintiff informed defense counsel that he would not
oppose the motion.

(ECF No. 27, Letter dated 2/4/2016.)

For

the reasons set forth below, the State Defendants’ motion to
dismiss is granted.
Factual Background
As alleged in the Complaint, on April 16, 2014,
plaintiff was arrested inside the Queens County Civil Court for,
inter alia, video recording court officers with a smartphone
recording device after being told that recording in the
courthouse was not allowed, and refusing officers’ orders to
disperse.

(Compl. at 13-20.) 2

At the time of his arrest,

plaintiff was at the Queens Civil Court to observe a hearing
involving his friend, Kenneth Ward, Jr. (“Ward”).

(Id. at 13.)

While at the hearing, plaintiff and Ward were directed
by New York State Court Officer Marie Bennett (“Officer
Bennett”) to allow the female respondent in Ward’s case to leave
the courtroom before plaintiff and Ward exited.

(Id. at 14.)

Plaintiff verbally objected to Officer Bennett’s direction
because he felt that it constituted gender-based discrimination.
(Id.)

2

Plaintiff was permitted to leave the courtroom several

Citations to the Complaint refer to page numbers, not numbered paragraphs.

2

minutes later and was followed by Officer Bennett as he walked
toward the elevators.

(Id.)

After exiting the courtroom, plaintiff began to feel
anxious and advised Officer Bennett that he was going to record
her with his smartphone in order to “protect Mr. Ward and
himself.”

(Id.)

Officer Bennett subsequently called for

assistance from other court officers.

(Id. at 15.)

Lieutenant

Dawn O’Brien (“Lieutenant O’Brien”) and court officers
identified in the Complaint as John Doe Shield #6814, John Doe
Shield #3814, John Doe Shield #7910, John Doe Shield #687, and
John Does #1-16 (collectively, “John Doe Officers”) responded to
the fourth floor.

(Id.)

Plaintiff continued recording the

scene using his smartphone.

(Id.)

Officer Bennett and

Lieutenant O’Brien directed plaintiff to go downstairs to the
third floor.

(Id.)

Plaintiff refused to leave the area near

the elevators, where members of the public were present as
“witnesses to observe our actions and reactions.”

(Id.)

Officer Bennett then told plaintiff that he could not
“record in court.”

(Id.)

Plaintiff, alleging that he was “a

little puzzled and confused” by Officer Bennett’s directive,
objected to this direction, and asked Bennett and other
defendants to provide legal authority for Bennett’s statement
that plaintiff could not record inside the courthouse.
15-16.)

(Id. at

Plaintiff then indicated verbally that he intended to
3

record Bennett, O’Brien and the John Doe Officers to protect
Ward’s “civil rights and due process.”

(Id. at 16.)

John Doe

Shield #6814 informed plaintiff that there was an administrative
rule prohibiting recordings in the courthouse.

(Id.)

Plaintiff

expressed his intent to confirm the rule’s existence by
searching the internet on his smartphone.

(Id.)

Officer Bennett again instructed plaintiff to go
downstairs to the third floor.

(Id. at 17.)

After a few

minutes passed and plaintiff was “confident there were enough
onlookers and bystanders who observed what transpired,”
plaintiff and Ward ultimately proceeded to the third floor with
Bennett, O’Brien, and the John Doe Officers.

(Id.)

Bennett then directed plaintiff to sit on a bench.

Officer
(Id.)

John

Doe #1 instructed Ward to leave, but Ward sat down next to
plaintiff on the bench and refused to leave.

(Id. at 17-18.)

John Does #1-4 then went into another office, while Bennett,
O’Brien, John Does Shield #3814, Shield #7910, #5, and #6
supervised plaintiff and Ward.

(Id. at 18.)

Soon after, Major Glen Lowe (“Major Lowe”) emerged
from the office and ordered Lieutenant O’Brien to “[g]ive [Ward]
an order and then arrest him . . . .”
that he could leave.

(Id.)

(Id.)

O’Brien told Ward

Plaintiff told defendants that he

would erase the video from his phone, then “stood up and was
about to start recording again when Defendant Lowe grabbed his
4

phone from behind and took the phone out from his right hand”
before heading back into the office.

(Id.)

Thereafter, John

Doe Shield #7910 arrested Ward, and Bennett arrested plaintiff.
(Id. at 18-19.)

Plaintiff states that Officer Bennett went into

the office for a few minutes and “on information and belief
[Bennett] was advised by . . . Lowe to arrest [plaintiff].”
(Id. at 19.)

After being placed in custody, plaintiff was

transported to the 103rd Precinct, where he was fingerprinted,
photographed, and allegedly denied the opportunity to make a
phone call.

(Id. at 19-20.)

Several hours later, plaintiff was

transported to Queens Central Booking, where he was placed in a
holding cell with several other individuals.

(Id. at 20.)

Plaintiff was arraigned on April 16, 2014 and
transferred to Rikers Island later that night, around midnight.
(Id. at 21-23.)

He was released from custody later that day

(that is, on April 17, 2014) after a friend of plaintiff’s
posted bail.

(Id. at 21-24.)

A criminal complaint, sworn by

Officer Bennett, charged plaintiff with violating New York Penal
Law § 195.05, obstructing governmental administration in the
second degree.

(Id. at 25.)

Plaintiff’s next court appearance in his criminal case
took place on April 21, 2014, at which time his request to
proceed pro se was granted.

(Id. at 26.)

A court clerk advised

plaintiff that, as a result of his arrest, signs had been
5

erected in the Queens Courts indicating that the use of
audio/video recording devices was prohibited in the courthouse
unless authorized by the Supervising Judge.

(Id.)

On April 29, 2014, May 6, 2014, June 6, 2014, June 13,
2014, June 20, 2014 and July 7, 2014, plaintiff arrived at the
Queens Civil Court, where his cell phone was confiscated and
vouchered by a court officer and returned to him upon his
departure from the courthouse.

(Id. at 26-27, 29-30.)

On June

4, 2014 and July 8, 2014, Assistant District Attorney Taylor
Piscionere advised plaintiff by phone that the case against him
would be dismissed for lack of evidence.

(Id. at 28.)

On June 20, 2014, plaintiff confronted Deputy Clerk
John Barry (“Deputy Clerk Barry”) about the continued
confiscation of his cell phone upon entering the courthouse.
Deputy Clerk Barry advised that it was court policy to do so.
(Id. at 29.)

Plaintiff returned to the courthouse on July 7,

2014 to further discuss the cell phone confiscation policy with
Deputy Clerk Barry, but because Barry was not available,
plaintiff went to Major Lowe’s office where he confronted and
argued with Lowe about his April 16th arrest, and threated to
sue Lowe in federal court.

(Id. at 30-31.)

Following this

confrontation, plaintiff exited Lowe’s office and another verbal
confrontation ensued between plaintiff and Lowe, John Doe Shield
# 687, John Doe Shield # 16, and John Doe Shield # 6814, during
6

which Lowe threatened to arrest plaintiff again.
33.)

(Id. at 31-

Plaintiff then returned to the first floor of the

courthouse, where he “yelled out loud” for Lowe to meet him
there during a three to four minute “outburst,” then left the
courthouse.

(Id. at 32-33.)

Following this incident, plaintiff advised Assistant
District Attorney Piscionere that on July 7, 2014 he had been
harassed by Major Lowe, John Doe Shield # 687, John Doe Shield #
16 and John Doe Shield # 6814.

(Id. at 33.)

He requested an

investigation, which Piscionere declined to initiate.

(Id.)

On

July 8, 2014, plaintiff also wrote to Deputy Clerk Barry
requesting an investigation of Major Lowe.

(Id.)

Barry later

informed plaintiff that Queens Civil Court no longer had
operable surveillance cameras, but did not respond to
plaintiff’s request to investigate Lowe.

(Id.)

When plaintiff

did not receive a response from Barry, he called Queens County
Civil Court Clerk Maureen Giddens to advise her of the
circumstances surrounding his April 16, 2014 arrest, the
incident on July 7, 2014, and expressed his intent to “make her
accountable,” and further informed her that he had recorded
their conversation.

(Id. at 34.)

On July 24, 2014, plaintiff appeared in Queens
Criminal Court expecting that his own case would be dismissed
based on Assistant District Attorney Piscionere’s statement that
7

she lacked sufficient evidence to proceed.

(Id. at 34.)

While

in court, Assistant District Attorney Piscionere offered
plaintiff a dismissal of the criminal complaint provided that
his co-defendant, Mr. Ward, pleaded guilty to obstructing
governmental administration.

(Id. at 35.)

After plaintiff

declined the offer, Piscionere advised the court that the
government would be filing a superseding information against
plaintiff and Ward, adding two counts of disorderly conduct.
(Id.)

The basis of the superseding information was the sworn

statement of Officer Bennett regarding the incident that
occurred on April 16, 2014.

(Id. at 37-38.)

On September 19, 2014, the prosecution filed the
superseding information charging plaintiff with two counts of
disorderly conduct pursuant to New York Penal Law §§ 240.20(2)
and (6), in addition to the preexisting charge for obstructing
governmental administration in the second degree pursuant to §
195.05.

(Id. at 37-38.)
On November 17, 2014, Assistant District Attorney

Kevin Fogarty, now also prosecuting the case for the Queens
District Attorney’s Office, appeared in court with Deputy Bureau
Chief Floyd Herring and stated that the prosecutor had dismissed
the count of obstructing governmental administration in the
second degree against plaintiff and Ward, leaving only the two
counts of disorderly conduct.

(Id. at 40.)
8

Plaintiff and Ward

were offered a deal to resolve the case against them if they
agreed to take an adjournment in contemplation of dismissal
(ACD) on the two lesser charges of disorderly conduct.
both declined.

They

(Id.)

On May 8, 11, and 12, 2015, the Honorable Michelle
Armstrong held a bench trial in Criminal Court, Queens County.
(See Declaration of Angel M. Guardiola (“Guardiola Decl.”) dated
10/26/2015, Ex. A at 4-5.) 3

On June 10, 2015, plaintiff was

found guilty of one count of disorderly conduct pursuant to New
York Penal Law § 240.20(2) for making unreasonable noise.
at 5; Guardiola Decl., Ex. B.) 4

(Id.

Plaintiff filed an appeal of his

conviction with the Supreme Court of New York, Appellate Term,
which remains pending.

(See ECF No. 33, Letter from Plaintiff

dated 2/11/2016; see also State of New York v. Etan Leibovitz,
No. 2016-187Q, Slip Op. No. 2016-84372(U) (Order granting stay
of execution of judgment pending appeal), available at:
3 In considering a Rule 12(b)(6) motion to dismiss, a court is generally
restricted to reviewing only the allegations in the complaint. However, it
is “well established that a district court may rely on matters of public
record in deciding a motion to dismiss under Rule 12(b)(6),” Pani v. Empire
Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998), and may take judicial
notice of documents filed in other courts, Kramer v. Time Warner, Inc., 937
F.2d 767, 774 (2d Cir. 1991). Accordingly, the court takes judicial notice
of the public records attached as exhibits to defendants’ motion to dismiss.
The records provide a procedural history of the underlying criminal
proceedings that plaintiff references throughout the Complaint. (See
Guardiola Decl., Ex. A (Record of Court Action); Ex. B (Record of Plaintiff’s
Appearances).)

The Complaint incorrectly states that all charges against plaintiff were
dismissed. (Compl. at 47.) The documents annexed to the State Defendants’
motion, which are properly considered, establish that plaintiff was convicted
on one count of disorderly conduct.
4

9

http://www.nycourts.gov/reporter/motions/2016/2016_84372.htm
(last visited 9/20/2016).)
Procedural History
Plaintiff filed this action on March 30, 2015.
No. 1, Complaint.)

(ECF

On June 30, 2015, the court granted

plaintiff permission to proceed in forma pauperis, but
dismissed, sua sponte, plaintiff’s claims against the City of
New York, Clerk of the Queens County Civil Court Maureen
Giddens, Queens County District Attorney Richard Brown, Deputy
Bureau Chief Herring, Supervisory Assistant District Attorney
Fogarty, and Assistant District Attorney Piscionere pursuant to
28 U.S.C. § 1915(e)(2)(B) for failure to state a claim.
No. 4, Order dated 6/30/2015.)

(ECF

The court permitted plaintiff’s

claims to proceed against Deputy Clerk John Barry, Major Lowe,
Court Officer Marie Bennett, Lieutenant O'Brien, and the John
Doe Officers.

(Id.)

The case caption was amended accordingly.

As the court can best discern, the Complaint includes
the following federal causes of action against the remaining
defendants, each asserted pursuant to 42 U.S.C. § 1983: (1)
deprivation of plaintiff’s First Amendment rights to free speech
and free expression against Lowe and Barry; (2) illegal seizure
in violation of the Fourth Amendment against Barry and Lowe; (3)
false arrest and false imprisonment in violation of the Fourth
Amendment against Major Lowe and Officer Bennett; (4) malicious
10

prosecution and abuse of process against Barry, Lowe, and
Bennett in violation of the Fourth, Fifth, Sixth, and Fourteenth
Amendments; and (5) failure to intervene against O’Brien, Barry,
and the John Doe Officers in violation of the Fourth and
Fourteen Amendments.

The Complaint also asserts at least ten

state common law causes of action against defendants, including
false imprisonment, assault, battery, and abuse of process. 5
Plaintiff seeks compensatory and punitive damages, a declaratory
judgment that plaintiff’s rights were violated, and injunctive
relief “enjoin[ing] Defendants Brown and Herring and their
successors, agents, servants, employees . . . from subjecting
defendants [sic] to unlawful criminal prosecution and
constitutional due process violations.”

(Compl. 70-71.) 6

On September 16, 2015, during a pre-motion conference
with the parties, the court granted plaintiff leave to file an
amended complaint no later than October 12, 2015.
Entry dated 9/16/2015.)

(See Minute

Plaintiff did not file an amended

complaint by the court’s deadline, or anytime thereafter.

On

October 25, 2015, the State Defendants served their motion to
dismiss the Complaint.

Although plaintiff requested and

5 As discussed infra, because plaintiff’s federal claims are subject to
dismissal, the court declines to exercise supplemental jurisdiction over
plaintiff’s state law claims not addressed herein.
6 The court dismissed plaintiff’s claims against Queens County District
Attorney Brown and Queens County District Attorney Office Deputy Floyd
Herring on June 30, 2015. (ECF No. 4.)

11

received from the court multiple extensions of time to serve his
opposition to the motion to dismiss (see Orders dated
11/19/2015, 1/5/2016), plaintiff ultimately informed defendants’
counsel on January 28, 2016 that he would not oppose defendants’
motion.

(ECF No. 27, Letter dated 2/4/2016.)

Accordingly, on

February 8, 2016, defendants filed their unopposed motion to
dismiss all claims and a supporting memorandum.

(See ECF No.

30, Defendant’s Memorandum in Support of Motion for Summary
Judgment (“Def. Mem.”).)
The State Defendants seek dismissal of all claims
brought against them in their official capacities pursuant to
Rule 12(b)(1), arguing that they are protected by sovereign
immunity.

They also argue the Complaint should be dismissed

pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
Legal Standards
I.

Rule 12(b)(1)
“A case is properly dismissed for lack of subject

matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

It

is well-settled that the “plaintiff bears the burden of proving
subject matter jurisdiction by a preponderance of the
evidence.”

Aurecchione v. Schoolman Transp. Sys., Inc., 426
12

F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d
493, 497 (2d Cir. 2002)).

In reviewing a Rule 12(b)(1) motion

to dismiss, the court “must accept as true all material factual
allegations in the complaint, but [the court is] not to draw
inferences from the complaint favorable to plaintiff.”

J.S. ex

rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.
2004).

The court “may consider affidavits and other materials

beyond the pleadings to resolve the jurisdictional issue, but
[it] may not rely on conclusory or hearsay statements contained
in the affidavits.”
II.

Id.

Rule 12(b)(6)
“To survive a motion to dismiss pursuant to Rule

12(b)(6), a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678.

A complaint

providing only “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
Courts are “obligated to construe a pro se complaint
13

liberally” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) and
must interpret pro se complaints “to raise the strongest
arguments that they suggest.”
248 (2d Cir. 2006).

Pabon v. Wright, 459 F.3d 241,

Nonetheless, pro se “complaints must

contain sufficient factual allegations to meet the plausibility
standard.”

Green v. McLaughlin, 480 F. App’x 44, 46 (2d Cir.

2012).
Discussion
I.

Sovereign Immunity
Plaintiff brings each of his claims against the State

Defendants in their official and personal capacities.

The State

Defendants argue that sovereign immunity bars plaintiff’s claims
against them in their official capacities.
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”
XI.

U.S. Const. amend.

In interpreting the Eleventh Amendment, the Supreme Court

has long held that the Eleventh Amendment bars suits against a
state by one of its own citizens.
U.S. 1, 10–11 (1890).

See Hans v. Louisiana, 134

Sovereign immunity under the Eleventh

Amendment also extends to state officials sued in their official
capacities because the state is the true party at interest.
14

See

Kentucky v. Graham, 473 U.S. 159, 169 (1985).
As officers of the New York State Court System, the
State Defendants are immune from suit in their official
capacities.

See Davis v. New York, 106 Fed. App’x. 82, 83 (2d

Cir. 2004) (“Specifically, we affirm the district court’s
holding that the Eleventh Amendment bars [plaintiff’s] claims
against the State of New York, the New York State Unified Court
System, and [individual defendants] in their official
capacities.”)

A claim that is barred by a state’s sovereign

immunity must be dismissed.

See Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 54 (1996).
There are three limited exceptions to state sovereign
immunity, all inapplicable here.

First, a state may waive

its sovereign immunity by consenting to suit in federal court.
Coll. Sav. Bank v. Fl. Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 670 (1999).

Second, Congress may abrogate

state sovereign immunity by acting pursuant to a grant of
constitutional authority.
62, 80 (2000)).

Kimel v. Fl. Bd. of Regents, 528 U.S.

Third, under the Ex parte Young doctrine,

sovereign immunity does not preclude a plaintiff from seeking
prospective injunctive relief or declaratory relief against a
state official acting in his or her official capacity for
ongoing violations of federal law.

See Green v. Mansour, 474

U.S. 64, 68, (1985) (“[T]he Eleventh Amendment does not prevent
15

federal courts from granting prospective injunctive relief to
prevent a continuing violation of federal law.”); Dube v. State
Univ. of New York, 900 F.2d 587, 595 (2d Cir. 1990) (“[A] state
official acting in his official capacity may be sued in a
federal forum to enjoin conduct that violates the federal
Constitution, notwithstanding the Eleventh Amendment bar.”).
None of these exceptions apply.

New York has not

consented to be sued in federal court for alleged § 1983
violations, see Mamot v. Bd. of Regents, 367 Fed App’x 191, 192
(2d Cir. 2010), nor did Congress abrogate states’ sovereign
immunity by enacting § 1983.

See Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 64 (1989).

Finally, although the Ex parte

Young doctrine may permit actions seeking prospective relief
against state officials to stop ongoing violation of federal
law, plaintiff seeks to enjoin the actions of Queens County
District Attorney Richard Brown and Deputy Bureau Chief Floyd
Herring – individuals who were dismissed from this action by
Order dated June 30, 2015.

See Melrose v. N.Y. State Dep’t of

Health Office of Prof’l Med. Conduct, No. 05–CV–8778, 2009 WL
211029, at *5 (S.D.N.Y. Jan. 26, 2009) (“[T]he Second Circuit
still requires that state officers be named in order for the Ex
Parte Young exception to apply.”).

Moreover, as explained

further below, plaintiff fails to adequately plead any violation
of federal law, much less an ongoing violation of federal law as
16

required by the Ex Parte Young doctrine.

See In re Deposit Ins.

Agency, 482 F.3d 612, 618 (2d Cir. 2007) (stating that the Ex
parte Young doctrine may apply “provided that [the] complaint
(a) ‘alleges an ongoing violation of federal law’ and (b) ‘seeks
relief properly characterized as prospective’”) (quoting Verizon
Maryland, Inc. v. Public Serv. Comm’n of Maryland, 535 U.S. 635,
645 (2002)).
Because none of the exceptions to sovereign immunity
apply, plaintiff’s claims against the State Defendants in their
official capacities are barred by the Eleventh Amendment and
must be dismissed.
II.

Younger Abstention
The State Defendants also argue that the court should

refrain from granting plaintiff declaratory and injunctive
relief pursuant to the Younger abstention doctrine.
at 10.)

(Def. Mem.

In Younger v. Harris, 401 U.S. 37 (1971), “the Supreme

Court held that a federal court . . . should not enjoin a
criminal proceeding in a state court.”

Liberty Mut. Ins. Co. v.

Hurlbut, 585 F.3d 639, 646 (2d Cir. 2009).
Younger abstention is appropriate when three elements
are met: 1) there is an ongoing state proceeding; 2) an
important state interest is implicated; and 3) the plaintiff has
a state court avenue open for review of constitutional claims.
See Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001) (listing
17

requirements under Younger); Philip Morris, Inc. v. Blumenthal,
123 F.3d 103, 105 (2d Cir. 1997) (same).

However, a federal

court may “nevertheless intervene in a state proceeding upon a
showing of ‘bad faith, harassment or any other unusual
circumstance that would call for equitable relief.’”

Diamond

“D” Constr. Corp. v. McGowan, 282 F.3d 191, 198–202 (2d Cir.
2002) (quoting Younger, 401 U.S. at 54).

A party seeking to

circumvent Younger abstention bears the burden of establishing
the applicability of one of the exceptions.

Id. at 198.

Here, the criminal case against plaintiff is still
pending, New York has an important state interest in enforcing
its criminal laws, and plaintiff may raise his constitutional
claims in the pending criminal proceedings.

Moreover, plaintiff

fails to allege any extraordinary circumstance justifying
federal intervention in the pending state court criminal
prosecution.

Accordingly, to the extent that plaintiff seeks an

injunction of, or a declaration regarding, his criminal
prosecution in state court (Compl. at 70), those claims are
dismissed pursuant to Younger.
III. Section 1983 Claims Against the State Defendants in their
Individual Capacities.
Pursuant to Rule 12(b)(6), the State Defendants move
to dismiss plaintiff’s § 1983 claims for failure to state a
claim upon which relief may be granted.
18

In order to maintain a

§ 1983 action, a plaintiff must allege two essential elements.
First, “the conduct complained of must have been committed by a
person acting under color of state law.”

Pitchell v. Callan, 13

F.3d 545, 547 (2d Cir. 1994) (citation omitted).

Second, “the

conduct complained of must have deprived a person of rights,
privileges or immunities secured by the Constitution or laws of
the United States.”

Section 1983 “does not create a

Id.

federal right or benefit; it simply provides a mechanism for
enforcing a right or benefit established elsewhere.”

Morris–

Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist., 423 F.3d
153, 159 (2d Cir. 2005) (citing Okla. City v. Tuttle, 471 U.S.
808, 816 (1985)).
A.

First Amendment Claim
Plaintiff brings a claim for “Freedom of

Speech/Seizure of Phone” in violation of the First Amendment,
contending that defendants Barry and Lowe unlawfully deprived
plaintiff of his rights to freedom of speech and expression.
(Compl. at 50.)

This claim appears to allege that Barry and

Lowe violated plaintiff’s First Amendment rights by prohibiting
plaintiff from recording video on his smartphone inside the
Queens County Civil Court.

(See Compl. at 16 (stating that

administrative rule prohibiting video recording in the
courthouse “obviously violates [plaintiff’s] First Amendment
rights”).)

The State Defendants argue that this claim should be
19

dismissed because plaintiff has no First Amendment right to
record video inside the Queens Civil Court.

(Def. Mem. at 12-

13.)
To recover on a First Amendment claim under § 1983, a
plaintiff “must demonstrate that his conduct is deserving of
First Amendment protection and that the defendants’ conduct of
harassment was motivated by or substantially caused by his
exercise of free speech.”
(2d Cir. 1991).

Rattner v. Netburn, 930 F.2d 204, 208

Whether the First Amendment protects particular

speech requires the court to consider “the nature of the forum
in which the speaker’s speech is restricted.”

Huminski v.

Corsones, 396 F.3d 53, 89 (2d Cir. 2004).
Plaintiff’s recording in the courthouse is not
deserving of First Amendment protection.

“The function of a

courthouse and its courtrooms is principally to facilitate the
smooth operation of a government’s judicial functions,” which is
“likely to be incompatible with expressive activities inside a
courthouse.”

Id. at 91.

Consequently, “Supreme Court and

Second Circuit precedent are clear that a courthouse is a nonpublic forum.”

Washpon v. Parr, 561 F. Supp. 2d 394, 408

(S.D.N.Y. 2008); see also United States v. Grace, 461 U.S. 171,
178 (1983) (holding that the Supreme Court building and its
grounds other than public sidewalks are not public forums).
Inside a non-public forum, “governmental restrictions on
20

expressive conduct or speech are constitutional so long as they
are reasonable in light of the use to which the forum is
dedicated and ‘are not an effort to suppress expression merely
because public officials oppose the speaker's view.’”
561 F. Supp. 2d at 408-09.

Washpon,

Reasonableness “must be assessed in

light of the purpose of the forum and all the surrounding
circumstances.”

Cornelius v. NAACP Legal Defense and

Educational Fund, Inc., 473 U.S. 788, 809 (1985).
The Administrative Rules of the New York State Unified
Court System state, in relevant part:
Taking photographs, films or videotapes, or
audiotaping, broadcasting or telecasting, in a
courthouse including any courtroom, office or
hallway thereof, at any time or on any occasion,
whether or not the court is in session, is
forbidden, unless permission of the Chief
Administrator of the Courts or a designee of the
Chief Administrator is first obtained.
22 N.Y.C.R.R. § 29.1(a).

This administrative rule is viewpoint

neutral and reasonable in light of the function of a courthouse.
Plaintiff does not allege that he requested or received
permission to record video inside Queens Civil Court.

Indeed,

plaintiff’s phone was only confiscated after he refused to leave
the court’s fourth floor hallway and disregarded multiple orders
to cease recording video on his smartphone.

See Remy v. Beneri,

No. 09-cv-4444, 2011 WL 5546237, at *8 (E.D.N.Y. Nov. 9, 2011)
(finding restrictions on plaintiff’s expression reasonable “in
21

light of the fact that the Support Magistrate had adjourned the
hearing and that plaintiff failed to obey the order to leave the
courtroom”); Washpon, 561 F. Supp. 2d at 409 (dismissing First
Amendment claim where plaintiff refused officers’ orders to
leave courthouse).

Because plaintiff had no First Amendment

right to record video inside the courthouse, his First Amendment
claims are dismissed.
B.

Fourth Amendment Claim for “Seizure of Phone”
Plaintiff’s cause of action for “Freedom of

Speech/Seizure of Phone” also alleges a violation of plaintiff’s
Fourth Amendment right “to be free from seizure” against Deputy
Clerk Barry and Major Lowe.

(Compl. at 50.)

To the extent this

claim is based on Major Lowe’s confiscation of plaintiff’s
smartphone in the courthouse (Compl. at 88), plaintiff fails to
state a claim for relief because, based on the facts alleged,
the confiscation of plaintiff’s phone was reasonable.
Plaintiff’s unlawful seizure claim against Barry also must be
dismissed because there is no allegation that Barry seized
plaintiff’s phone.
“The Fourth Amendment protects the ‘right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .”
Shaul v. Cherry Valley–Springfield Cent. Sch. Dist., 363 F.3d
177, 181 (2d Cir. 2004) (citation omitted).
22

However, “the

Fourth Amendment bars only unreasonable searches and
seizures.”

Holland v. Pinkerton Sec., 68 F.Supp.2d 282, 284

(S.D.N.Y. 1999) (emphasis added).

“A search or seizure is

ordinarily unreasonable in the absence of individualized
suspicion of wrongdoing.”

Dickerson v. Napolitano, 604 F.3d

732, 750 (2d Cir. 2010) (citing City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000)).
Here, Lowe’s seizure of plaintiff’s phone was
reasonable because there were grounds for individualized
suspicion of wrongdoing.

As alleged in the Complaint, multiple

court officers notified plaintiff that recording video on his
smartphone was prohibited inside the courthouse.
16).

(Compl. at 15-

Nevertheless, plaintiff alleges that he “stood up” as his

friend Ward was being arrested and “was about to start recording
again” when Major Lowe confiscated plaintiff’s phone.
18.)

(Id. at

Plaintiff’s repeated violations of the administrative rule

prohibiting recording in the courthouse plainly justified
seizure of plaintiff’s phone.

See, e.g., Bensam v. Bharara, No.

12-cv-5409, 2014 WL 1243790, at *3 (S.D.N.Y. Mar. 25, 2014)
(finding court’s seizure of plaintiff’s phone reasonable in
light of “the significant governmental interest in safeguarding
the courthouse and the minimal intrusion its limited and
reasonable security procedures have on an individual’s privacy
interest.”)

Plaintiff’s claim is dismissed because he cannot
23

sustain a Fourth Amendment claim that Barry or Lowe unreasonably
seized his smartphone.
C.

False Arrest and False Imprisonment Claims
Plaintiff alleges that “by arresting Plaintiff without

probable cause,” Officer Bennett and Major Lowe violated
plaintiff’s Fourth Amendment right “to be free from false arrest
and false imprisonment.”

(Compl. at 28.)

Because “false arrest

and false imprisonment are essentially the same causes of
action,” Dickerson v. Monroe Cty. Sheriff’s Dep’t, 114 F. Supp.
2d 187, 191 (S.D.N.Y. 2000), the court’s analysis here applies
to both.

See Mitchell v. Home, 377 F. Supp. 2d 361, 376

(S.D.N.Y. 2005) (“Because a cause of action for false arrest is
essentially the same tort as false imprisonment, they will be
discussed as one cause of action.”) (citation omitted)).
To adequately plead a false arrest claim under § 1983
(as well as under New York state law), a plaintiff must show
that “(1) the defendant intended to confine the plaintiff, (2)
the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged.”

Savino v. City of

New York, 331 F.3d 63, 75 (2d Cir. 2003) (internal quotation
marks and citation omitted).
“The existence of probable cause to arrest constitutes
justification and is a complete defense to an action for false
24

arrest, whether that action is brought under [New York] law or
under [Section] 1983.”

Kilburn v. Vill. of Saranac Lake, 413 F.

App'x 362, 363 (2d Cir. 2011) (quoting Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996) (internal citation and quotation marks
omitted)).

Probable cause to arrest exists “when the officers

have knowledge of, or reasonably trustworthy information as to,
facts and circumstances that are sufficient to warrant a person
of reasonable caution in the belief that an offense has been or
is being committed by the person to be arrested.”

Zellner v.

Summerlin, 494 F.3d 344, 368 (2d Cir. 2007).
In evaluating the existence of probable cause, the
court must look to the “totality of the circumstances,”
Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002), and
consider the “facts available to the officer at the time of
arrest.”

Ricciuti v. New York City Transit Auth., 124 F.3d 123,

128 (2d Cir. 1997) (internal citations omitted).

Furthermore,

the court’s “assessment as to whether probable cause existed at
the time of the arrest is to be made on the basis of the
collective knowledge of the police, rather than on that of the
arresting officer alone.”

Husbands ex rel. Forde v. City of New

York, 335 F. App’x 124, 127 (2d Cir. 2009); see Martinez v.
Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (noting that in
making a probable cause determination, police officers are
“entitled to rely on the allegations of fellow police
25

officers”).

When there are no material facts in dispute, the

existence of probable cause may be determined as a matter of
law.

See, e.g., Betts v. Shearman, 751 F.3d 78, 82-83 (2d Cir.

2014) (upholding dismissal of false arrest claims based on
existence of probable cause).
The State Defendants contend that the facts alleged in
the Complaint establish there was probable cause to arrest
plaintiff for disorderly conduct in violation of New York Penal
Law §§ 240.20(2) and (6), and probable cause to arrest for
obstruction of governmental administration in violation of New
York Penal Law § 195.05.

(Def Mem. at 15-17.)

Under Second

Circuit case law, a false arrest claim “turns on whether
probable cause existed to arrest for any crime, not whether
probable cause existed with respect to each individual charge.”
Marcavage v. City of New York, 689 F.3d 98, 109 (2d Cir. 2012).
Thus, plaintiff’s false arrest claim fails if probable cause
supported any one of the three offenses for which he was
ultimately charged.
Under § 240.20(2), “[a] person is guilty of disorderly
conduct when, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof . . .
he makes unreasonable noise.”

The term “unreasonable noise” in

this context means “a noise of a type or volume that a
reasonable person, under the circumstances, would not tolerate.”
26

Provost v. City of Newburgh, 262 F.3d 146, 158–59 (2d Cir. 2001)
(quoting People v. Bakolas, 449 N.E.2d 738, 740 (1983)).

The

New York Court of Appeals has explained that “[t]he public
nature of the requisite intent or risk makes [§ 240.20(2)]
essentially a disturbing the peace ordinance.”

Bakolas, 449

N.E.2d at 740.
On June 10, 2015, plaintiff was convicted after a
bench trial of disorderly conduct in violation of § 240.20(2).
(See Guardiola Decl., Ex. B.)

Ordinarily, a claim for damages

relating to a conviction that has not been invalidated is not
cognizable under § 1983, because “a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence.”
(1994).

Heck v. Humphrey, 512 U.S. 477, 487

Plaintiff therefore must allege that his arrest and

detention have been reversed, expunged, or declared invalid in
order to bring a § 1983 claim for false arrest.

Id.

Plaintiff

does not allege he has succeeded in invalidating his conviction
for disorderly conduct.

Consequently, the Complaint fails to

state a claim for false arrest or false imprisonment under §
1983 and the claims are dismissed.
Even if plaintiff’s conviction were invalidated, 7
plaintiff has not stated a claim for false arrest or false

7

Plaintiff’s appeal of his conviction for disorderly conduct remains pending.

27

imprisonment because his own allegations, accepted as true for
purposes of considering the instant motion, establish that there
was probable cause to arrest plaintiff for disorderly conduct in
violation of § 240.20(2).

On April 16, 2014, after Officer

Bennett instructed plaintiff to stop recording video on his
smartphone in the courthouse, plaintiff used a “voice of
consternation” for several minutes in order to attract members
of the general public as “witnesses” while he continued
recording court officers.

(Compl. at 16.)

Although Officer

Bennett’s sworn statement characterizes plaintiff’s noise as
“screaming and yelling” rather than “a voice of consternation,”
(id. at 38) there is no dispute that plaintiff’s verbal
confrontation with the court officers was loud enough to attract
“bystanders and onlookers” to the scene, as plaintiff alleges.
(Id. at 17.)

This is consistent with plaintiff’s stated intent

to make sufficient noise to attract the attention of the general
public “to come over and be witnesses.”

(Id. at 16.)

The

verbal confrontation occurred immediately after multiple court
officers instructed plaintiff to stop recording video and
disperse from the court’s fourth floor elevator bank.

(Id. at

15-16.)
These alleged circumstances are sufficient to warrant
the reasonable belief that plaintiff’s verbal confrontation with
the responding officers created “unreasonable noise” in a common
28

area of the courthouse with the intent to “inconvenience, annoy,
or alarm” members of the general public.

Accordingly, because

there was probable cause to arrest plaintiff for disorderly
conduct in violation of § 240.20(2), plaintiff’s § 1983 and
state law causes of action for false arrest and false
imprisonment are dismissed. 8
D.

Malicious Prosecution
Plaintiff brings Section 1983 and state law causes of

action for malicious prosecution against Officer Bennett, Major
Lowe, and Deputy Clerk Barry arising out of his prosecution for
obstructing governmental administration pursuant to N.Y. Penal
Law § 195.05 and two counts of disorderly conduct pursuant to
N.Y. Penal Law §§ 240.20(2) and (6).

(Compl. at 53-55; 63-64.) 9

Officer Bennett and Major Lowe also are entitled to qualified immunity on
plaintiff’s false arrest and false imprisonment claims because there was
probable cause for arrest. See Marcavage, 689 F.3d at 110 n.7 (“Because we
conclude there was probable cause for Plaintiffs' arrest, a fortiori he would
be entitled to qualified immunity on this claim.”). An officer is entitled
to qualified immunity if “either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test was
met.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). The
fact that plaintiff was found guilty at trial of violating § 240.20(2)
further demonstrates that, at the very least, officers of reasonable
competence could disagree on whether the probable cause existed. See
Washpon, 561 F. Supp. 2d at 404 (noting that a “magistrate [having] found
[plaintiff] guilty [of disorderly conduct] shows at least that reasonably
competent officers could reasonably have disagreed on the propriety of the
arrest”).
8

9 In his sixth cause of action, plaintiff also alleges “deprivation of
liberty.” (Compl. at 53.) To the extent that plaintiff seeks to assert a
substantive due process claim based on deprivation of liberty, the court
construes this as duplicative of plaintiff’s claim for malicious prosecution.
See Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (noting that Section 1983
liability for malicious prosecution “typically implicates constitutional

29

A malicious prosecution claim implicates the Fourth
Amendment right “to be free of unreasonable seizure of the
person.”

Singer v. Fulton Cty. Sherriff, 63 F.3d 110, 116 (2d

Cir. 1995).

To succeed on a claim of malicious prosecution, the

plaintiff “must show some post-arraignment deprivation of
liberty that rises to the level of a constitutional
violation.”

Id. at 117.

State law provides the elements of a §

1983 claim for malicious prosecution.

Under New York law,

plaintiff must show: “(1) defendant initiated a prosecution
against plaintiff, (2) without probable cause to believe the
proceeding can succeed, (3) the proceeding was begun with
malice, and (4) the matter terminated in plaintiff’s
favor.”

Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir.

2016) (internal quotation marks, citation, and alterations
omitted).

As with claims of false arrest, probable cause is a

complete defense to malicious prosecution claims.

Manganiello

v. City of New York, 612 F.3d 149, 161–62 (2d Cir. 2003).
Plaintiff’s federal and state malicious prosecution
claims fail for two reasons.

First, plaintiff does not allege

the personal involvement of either Major Lowe or Deputy Clerk
Barry in his alleged malicious prosecution.

Second, with

respect to Officer Bennett, the allegations in the Complaint
rights secured by the fourteen amendment, such as deprivation of liberty”)
(quoting Easton v. Sundram, 947 F.2d 1011, 1017 (2d Cir. 1991)).

30

establish there was probable cause to prosecute plaintiff on
each count in the superseding information.
1. Personal Involvement
The first element of a malicious prosecution claim
requires defendant to have initiated a prosecution against
plaintiff.

In “malicious prosecution cases against police

officers, plaintiffs have met this first element by showing that
officers brought formal charges and had the person arraigned.”
Llerando–Phipps v. City of New York, 390 F. Supp. 2d 372, 382
(S.D.N.Y. 2005) (internal citations omitted); see also Cameron
v. City of New York, 598 F.3d 50, 63 (2d Cir. 2010) (“Under New
York law, police officers can ‘initiate’ prosecution by filing
charges or other accusatory instruments.”); Ricciuti, 124 F.3d
at 130 (“[A] jury could clearly find that [the defendant police
officer] started the assault prosecution because no one disputes
that he started the prosecution by filing the charges of seconddegree assault.”).

By contrast, “a plaintiff usually cannot

show arresting officers initiated a criminal proceeding against
him solely based on an arrest,” unless false information
provided by the officer “influences a decision whether to
prosecute.”

Levy v. City of New York, 935 F. Supp. 2d 575, 588–

89 (E.D.N.Y. 2013) (internal quotation marks and citation
omitted).

31

Here, Officer Bennett initiated plaintiff’s
prosecution by filing an accusatory instrument (i.e., her sworn
statement) in support of the September 24, 2014 superseding
information.

(Compl. at 37-38.)

However, the Complaint does

not allege the specific, personal involvement of Major Lowe or
Deputy Clerk Barry in plaintiff’s prosecution.

Instead,

plaintiff makes the conclusory assertion the Lowe and Barry
“conspired” with the Assistant District Attorney and others to
“gain [sic] complaining witness Defendant Bennett into falsely
accusing the Plaintiff.”

(Compl. at 53.)

This allegation –

which does not allege the particular actions Lowe and Barry took
to conspire or maliciously prosecute plaintiff – is insufficient
to state a plausible malicious prosecution cause of action.
See, e.g., Barber v. Ruzzo, No. 10-CV-1198, 2011 WL 4965343, at
*2 (N.D.N.Y. Oct. 19, 2011) (“Simply stating that [defendants]
were ‘personally and actively involved in the continuation of
criminal proceedings against [a plaintiff],’ is grossly
insufficient to establish personal involvement in the actual
prosecution.”).

Accordingly, the state and federal malicious

prosecution claims against Barry and Lowe are dismissed.
2.

Probable Cause

Although Officer Bennett initiated the prosecution
against plaintiff, the malicious prosecution claim against
Bennett nonetheless fails because there was probable cause to
32

prosecute each charge in the superseding information.

The court

will separately review the merits of each charge in the
superseding information for probable cause to prosecute.

See

Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (the court must
“separately analyze the charges claimed to have been maliciously
prosecuted”).
i.

Disorderly Conduct – N.Y. Penal Law § 240.20(2)

The court has already found, as discussed supra, that
Officer Bennett had probable cause to arrest plaintiff for
disorderly conduct in violation of New York Penal Law §
240.20(2) for making unreasonable noise in the courthouse.

“If

probable cause existed at the time of arrest, it continues to
exist at the time of prosecution unless undermined ‘by the
discovery of some intervening fact.’”

Johnson v. Constantellis,

221 Fed. App’x 48, 50 (2d Cir. 2007) (quoting Kinzer v.
Jackson, 316 F.3d 139, 144 (2d Cir. 2003)).

Plaintiff does not

allege that the probable cause to arrest plaintiff was vitiated
by an intervening fact or fraud.

Accordingly, the court finds

there was probable cause to prosecute plaintiff on this
disorderly conduct charge. 10

Plaintiff also fails to meet the fourth element of a malicious prosecution
claim, favorable termination of proceedings, due to his conviction for
disorderly conduct in violation of N.Y. Penal Law § 240.20(2).

10

33

ii.

Disorderly Conduct – N.Y. Penal Law § 240.20(6)

Under § 240.20(6), “a person is guilty of disorderly
conduct when, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof . . .
[h]e congregates with other persons in a public place and
refuses to comply with a lawful order of the police to
disperse.”

To establish probable cause to prosecute a violation

of N.Y. Penal Law § 240.20(6), it must be shown that plaintiff:
(1) congregated with other persons in a public place; (2) was
given a lawful order of the police to disperse; (3) refused to
comply with that order; and (4) acted “with intent to cause
public inconvenience, annoyance or alarm” or with recklessness
to the “risk thereof.”

United States v. Nelson, No. 10-cr-

414, 2011 WL 1327332, at *3 (S.D.N.Y. Mar. 31, 2011), aff’d, 500
Fed. App’x 90 (2d Cir. 2012).

The State Defendants establish

all four elements.
First, plaintiff was congregating with other persons
in a public area of the courthouse. 11

According to the New York

Court of Appeals, “[t]he term ‘congregates with others’, as used
in the statute, requires at the very least three persons
assembling at a given time and place.”

People v. Carcel, 144

Although the Second Circuit has held that the interior of a courthouse is
not a public forum for First Amendment purposes, the court here distinguishes
between the areas of a courthouse open to the public as opposed to restricted
areas.

11

34

N.E.2d 81, 85 (N.Y. 1957).

Plaintiff alleges that, before he

was arrested, he and Ward stood together by the courthouse’s
fourth floor elevators with court officers.

(Compl. at 15.)

He

further alleges that he and Ward refused to leave that location
until plaintiff was “confident that there were enough bystanders
and onlookers who observed what transpired.”

(Id. at 17.)

This

allegation suffices to show that plaintiff assembled in the
courthouse with at least three persons.

See, e.g., Pesola v.

City of New York, No. 15-cv-1917, 2016 WL 1267797, at *5
(S.D.N.Y. Mar. 30, 2016) (finding that two plaintiffs
“congregated with others” within the meaning of § 240.20(6)
where “there was a large crowd assembling around the area where
each plaintiff claims he was standing”).
The second and third elements necessary to find
probable cause are met because the arresting officers gave
lawful dispersal orders that plaintiff disobeyed.

Plaintiff

alleges that he disregarded three orders to disperse from the
area surrounding the court’s fourth floor elevators.
15-17.)

(Compl. at

In the context of §240.20(6), an order to disperse is

considered lawful “unless the order was ‘purely arbitrary’ and
‘not calculated in any way to promote the public order.’”
Crenshaw v. City of Mount Vernon, 372 Fed. App’x 202, 206 (2d
Cir. 2010) (quoting People v. Galpern, 181 N.E. 2d 572 (N.Y.
1932)).

Plaintiff’s allegations are sufficient to warrant a
35

reasonable belief that the officers’ dispersal orders were not
arbitrary, but instead intended to promote order in a public
area of the courthouse.

Moreover, it is undisputed that

officers ordered plaintiff to disperse while he was violating
the Queens Civil Court’s administrative rule prohibiting video
recording.

“A dispersal order reasonably calculated to enforce

lawful [rules] is itself ‘lawful’ within the meaning of section
240.20(6).”

Caravalho v. City of New York, No. 13-cv-4174, 2016

WL 1274575, at *6 (S.D.N.Y. Mar. 31, 2016).
Finally, as the court has already determined, the
allegations in the Complaint support a reasonable belief on the
part of the arresting officers that plaintiff acted “with intent
to cause public inconvenience, annoyance or alarm.”

This

finding is based on plaintiff’s stated intent to disobey
officers’ dispersal order until “enough bystanders and
onlookers” had gathered to observe his confrontation with court
officers.

(Compl. at 17.)

Accordingly, the facts alleged in

the Complaint establish as a matter of law that there was
probable cause to prosecute plaintiff for disorderly conduct in
violation of N.Y. Penal Law 240.20(6).
iii. Obstructing Governmental Administration - § 195.05
Under N.Y. Penal Law § 195.05, a person obstructs
governmental administration when “he intentionally obstructs,
impairs or perverts the administration of law or other
36

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.”

Findings of probable cause for

violating §195.05 may be based on, inter alia, “a defendant’s
refusal to obey orders to leave a premises . . . or to keep away
from an area where a disturbance is taking place.”

Wilder v.

Vill. of Amityville, 288 F. Supp. 2d 341, 344–45 (E.D.N.Y.
2003), aff'd, 111 F. App’x 635 (2d Cir. 2004).

However, “mere

words, without more” do not constitute obstruction of
governmental administration.

Graham v. City of New York, 128 F.

Supp. 3d 681, 695 (E.D.N.Y. 2015) (citing Dowling v. City of New
York, No. 11-cv-4954, 2013 WL 5502867, at *8 (E.D.N.Y. Sept. 30,
2013)); Matter of Davan L., 689 N.E.2d 909 (N.Y. 1997)
(“[P]urely verbal interference may not satisfy the ‘physical’
component under Penal Law § 195.05.”) (citations omitted).
Probable cause to prosecute plaintiff for obstructing
governmental administration clearly existed.

As discussed

supra, plaintiff alleges that he disobeyed multiple orders from
court officers to disperse from the fourth floor of the
courthouse while recording with his smartphone.

This was

sufficient to warrant the reasonable belief that plaintiff
intentionally impaired the administration of law.

Additionally,

as the State Defendants argue, by committing disorderly conduct
37

in violation of § 240.20(2) – an “independently unlawful act” –
plaintiff prevented Officer Bennett and other officers from
enforcing the prohibition on cell phone use inside the Queens
Civil Court.

(Def. Mem. at 17.)

Thereafter, plaintiff directly

interfered with Ward’s arrest by attempting to record the arrest
on his smartphone after officers had repeatedly informed
plaintiff that such recordings inside the courthouse were
prohibited.

(Compl. at 18.)

These facts establish as a matter

of law that there was probable cause to prosecute plaintiff for
obstructing governmental administration in violation of §
195.05.

Therefore, plaintiff’s state and federal claims against

Officer Bennett for malicious prosecution are dismissed. 12
E.

Abuse of Process
Plaintiff alleges abuse of process against Deputy

Clerk Barry, Major Lowe, and Officer Bennett.

(Compl. at 53.)

“The torts of malicious prosecution and abuse of process are
closely allied.”
1994)).

Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.

“While malicious prosecution concerns the improper

issuance of process, the gist of abuse of process is the
improper use of process after it is regularly issued.”
80 (internal quotation marks and citation omitted).

Id. at

As with

As with the false arrest claim, Officer Bennett is entitled to qualified
immunity on plaintiff’s malicious prosecution causes of action because there
was probable cause for arrest. See Marcavage, 689 F.3d at 110 n.7.

12

38

plaintiff’s false arrest and malicious prosecution claims, the
court looks to New York law for the elements of this Section
1983 claim.
Under New York law, an abuse of process claim “lies
against a defendant who (1) employs regularly issued legal
process to compel performance or forbearance of some act, (2)
with intent to do harm without excuse or justification, and (3)
in order to obtain a collateral objective that is outside the
legitimate ends of the process.”

Savino v. City of New

York, 331 F.3d 63, 69–70 (2d Cir. 2003) (internal quotation
marks omitted); accord Hoffman v. Town of Southampton, 523 F.
App’x 770, 771 (2d Cir. 2013).
“The crux of a malicious abuse of process claim is the
collateral objective element.”

Douglas v. City of New York, 595

F. Supp. 2d 333, 344 (S.D.N.Y. 2009).

To satisfy this element,

“a plaintiff must prove not that defendant acted with an
improper motive, but rather an improper purpose — that is, he
must claim that [the defendant] aimed to achieve a collateral
purpose beyond or in addition to his criminal prosecution.”

Id.

(internal quotation marks and citation omitted; parenthetical in
original).

For example, “fabricating assault charges to save

one’s job could be abuse of process because safeguarding one's
own employment lies outside the legitimate goal of criminal
process.” Id. (internal quotation marks and citation omitted).
39

As an initial matter, this claim fails against Barry
and Lowe because plaintiff does not allege that either defendant
had any role in prosecuting plaintiff; these defendants
therefore did not “employ legal process” against plaintiff – the
first required element of an abuse of process claim.

Cf. Cook,

41 F.3d at 80 (noting “the [state] Troopers clearly employed
criminal process against [plaintiff] by having him arraigned on
charges”).

With respect to Officer Bennett, the Complaint is

devoid of any allegation suggesting that her role in the
prosecution was motivated by a collateral objective.

Stated

differently, there is no basis to find that Officer Bennett
arrested and prosecuted plaintiff for some improper purpose
lying outside of the legitimate goal of criminal process.
Officer Bennett’s sworn affidavit was “employed for the very
purpose of [its] filing,” i.e., to support plaintiff’s arrest
and prosecution for disorderly conduct and obstructing
governmental administration.

Silver v. Kuehbeck, 217 Fed App’x

18, 21 (2d Cir. 2007); Brandon v. City of New York, 705 F. Supp.
2d 261, 275 (S.D.N.Y. 2010) (“If [defendant] uses the process of
the court for its proper purpose . . . there is no abuse of
process.”).

Consequently, plaintiff’s § 1983 and state law

causes of action for abuse of process are dismissed.

40

F.

Failure to Intervene
Plaintiff also brings claims for failure to intervene

against defendants Barry, O’Brien, and the John Doe Officers.
(Compl. at 48, 51.)

Plaintiff’s failure to intervene claims

fail in the absence of an adequately pled underlying
constitutional violation.

See Taveres v. City of New York, No.

08-cv-3782, 2010 WL 234974, at *4 (S.D.N.Y. Jan. 19, 2010)
(recognizing that failure to intervene claim requires, inter
alia, that officers failed to intervene to prevent another
officer’s constitutional violation); see also Ladoucier v. City
of New York, No. 10-CV-5089, 2011 WL 2206735, at *4 (S.D.N.Y.
June 6, 2011) (same). Accordingly, the failure to intervene
claims are dismissed.
G.

State Law Claims
A district court may decline to exercise supplemental

jurisdiction if the court has dismissed all claims over which it
had original jurisdiction.

28 U.S.C. § 1367(c)(3); Valencia ex

rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003); see also
Lerner v. Fleet Bank, N.A., 318 F.3d 113, 130 (2d Cir. 2003)
(“In most circumstances, a district court should decline
supplemental jurisdiction if all federal claims have been
dismissed at the pleading stage.”).

Because the court has

dismissed all of plaintiff’s federal causes of action, the court
declines to exercise supplemental jurisdiction over any of
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plaintiff’s remaining state law claims.

Accordingly, any

plaintiff’s remaining state law claims are dismissed.
Leave to Amend
Leave to amend a complaint “shall be freely given when
justice so requires.”

Fed. R. Civ. P. 15(a)(2).

The Second

Circuit has cautioned that a pro se plaintiff should be provided
the opportunity to “amend his complaint prior to its dismissal
for failure to state a claim, unless the court can rule out any
possibility, however unlikely it might be, that an amended
complaint would succeed in stating a claim.”

Gomez v. USAA Fed.

Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999).

This court

already provided plaintiff an opportunity to amend his complaint
(see Minute Entry dated 9/16/2015), but plaintiff failed to do
so.

(ECF No. 19, Letter dated 10/19/2015.)

Nor did plaintiff

oppose the State Defendants’ motion to dismiss.

Additionally,

any amended complaint would be futile because, as explained
herein, plaintiff’s claims fail as a matter of law.

Leave to

replead therefore is denied and, with the exception of
plaintiff’s remaining state law claims, the Complaint is
dismissed with prejudice.

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Conclusion
For the foregoing reasons, the State Defendants’
motion to dismiss is granted.

Because the court dismisses all

federal claims in this action with prejudice, the court declines
to exercise supplemental jurisdiction over any remaining state
law claims.

The Clerk of Court is respectfully directed to mail

a copy of this Memorandum and Order to plaintiff, note service
on the docket, and close this case.

SO ORDERED.
Dated:

September 20, 2016
Brooklyn, New York
_________/s/________________
Kiyo A. Matsumoto
United States District Judge

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