Rodriguez et al v. Winski et al

Filing 80

MEMORANDUM AND ORDER granting 41 Motion to Dismiss; granting in part and denying in part 44 Motion to Dismiss; granting 48 Motion to Dismiss; granting 51 Motion to Dismiss. For the foregoing reasons, we grant the motions to dismiss brought by JPMC, Mitsui and the Brookfield defendants. We grant in part and deny in part the motion to dismiss brought by the MTA defendants. We further grant the MTA defendants' motion for severance. This resolves Docket Nos. 41, 44, 48, and 51. (Signed by Judge Naomi Reice Buchwald on 9/26/2013) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
YDANIS RODRIGUEZ, et al.
Plaintiffs,
MEMORANDUM AND ORDER

- against -

12 Civ. 3389 (NRB)

EDWARD WINSKI, et al.,
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Plaintiff Ydanis Rodriguez and 16 other named plaintiffs
(“plaintiffs”),
protestors,

comprising

elected

a

group

officials,

and

of

Occupy

Wall

journalists,

Street

bring

this

action against various institutional and individual defendants,
pursuant to 42 U.S.C. § 1983.1
causes

of

action,

including,

Plaintiffs assert 49 separate
inter

alia,

allegations

of

the

violation of their federal First and Fourth Amendment rights,
the violation of their New York State constitutional rights,
conspiracy

to

violate

their

constitutional

rights,

and

state

tort law claims.
Pending
plaintiffs’
defendants:
1

before
First
(a)

the

Court

Amended
the

are

Complaint

Metropolitan

four

motions

brought

by

to

dismiss

the

following

Transportation

Authority

Plaintiffs describe Occupy Wall Street as a “leaderless” movement
without a formal institutional structure, consisting of “one big swarm of
people.” Ex. L to Compl. Accordingly, plaintiffs are a collection of named
individuals, in addition to the National Press Photographers’ Association;
there is no “Occupy Wall Street” institutional entity acting as a party to
this suit.

(“MTA”), MTA Police Commissioner Michael Coan in his individual
and

official

capacities,

and

MTA

Police

Lieutenant

Omeeta

Lakeram in her individual and official capacities (collectively,
“MTA defendants”), (b) JP Morgan Chase & Co. (“JPMC”), owner of
the

plaza

at

One

Chase

Manhattan

Plaza,

(c)

Mitsui

Fudosan

America, Inc. (“Mitsui”), owner of the atrium at 100 William
Street,
Zuccotti

and

(d)

Park

Brookfield

and

operator

Office
of

Properties

the

World

Inc.,

Financial

owner

of

Center’s

Winter Garden (“Brookfield”), and James Morrissey, a Brookfield
employee
Center

serving

as

General

(collectively,

Manager

“Brookfield

of

the

World

defendants”).

Financial
The

MTA

defendants also move to sever plaintiffs’ claims against them.
For the reasons set forth below, the motions to dismiss brought
by JPMC, Mitsui and the Brookfield defendants are granted; the
motion to dismiss brought by the MTA defendants is granted in
part,

denied

in

part,

and

the

MTA

defendants’

motion

for

severance is granted.
BACKGROUND
I.

Procedural History
Plaintiffs filed this lawsuit on April 30, 2012, and filed

on October 16, 2012 their First Amended Complaint (hereinafter
the “complaint”), which was joined by two new plaintiffs and
brought against an expanded set of defendants.
the

MTA

defendants,

and

the

Brookfield

2

JPMC, Mitsui,

defendants

moved

to

dismiss on December 14, 2012.

Plaintiffs opposed on January 23,

2013, and the moving defendants filed their replies on February
12, 2013.

Oral argument was held in two sessions on August 7,

2013 and August 20, 2013.
II.

Allegations in the Complaint
This case arises from events in New York City during the

Occupy Wall Street protests regarding “the effects of income
inequality

on

approximately
protestors

society.”
September

gathered

or

Compl.

251.

Occupy

2011,

¶

Wall

attempted

to

gather

Beginning
Street
in

a

in

(“OWS”)

number

of

Manhattan locations, including certain relevant to the instant
motions:

the plaza at One Chase Manhattan Plaza, the atrium at

100 William Street, the World Financial Center’s Winter Garden,
Zuccotti Park, and Grand Central Terminal.

Plaintiffs’ 939-

paragraph complaint alleges that, on a series of occasions, in
violation

of

law,

certain

individual

plaintiffs

were

either

refused entry to certain properties or were forcibly removed
from the properties and in some cases arrested.
A.

Allegations Pertaining to Defendant JPMC

On September 17, 2011, OWS protestors, including individual
plaintiffs Justin Wedes and Peter Dutro, marched to One Chase
Manhattan Plaza (“1CMP”), but were unable to enter because the
New York Police Department (“NYPD”) had closed the space and
cordoned it off with police barricades.

3

Compl. ¶¶ 263-64, 278.

Plaintiff Dutro was similarly barred from 1CMP when he and other
OWS protestors attempted to enter on October 12, 2011.
¶¶ 283-84.

Compl.

Plaintiffs allege that at some time after October

12, 2011, a privately owned fence replaced the police barricades
surrounding

1CMP,

preventing

OWS

protestors

from

entering.

Compl. ¶¶ 294-296, 303.
1CMP is a parcel of real property privately owned by JPMC.
Compl. ¶ 32.

The plaza is raised above street level and is

accessible by several sets of staircases; it does not function
as a part of the lower Manhattan street grid.

See Decl. of

Michael T. Sillerman, Ex. 1 at 17-22.
JPMC’s

predecessor

Chase

Manhattan

Bank

planned

and

received municipal approvals for the construction of 1CMP prior
to

the

enactment

of

New

Sillerman Decl., Ex. 13.

York’s

1961

Zoning

Resolution.

As part of the plan of construction,

the City closed, de-mapped and conveyed to Chase Manhattan Bank
a one-block section of Cedar Street.
16.

In

turn,

JPMC

conveyed

by

Sillerman Decl., Ex. 14-

indenture

to

the

City

“a

permanent and perpetual easement . . . for street purposes” of
property surrounding 1CMP, used to expand bordering streets and
sidewalks.

Sillerman Decl., Ex. 17.

No easement or similar

contractual provision burdens the plaza itself.
2013 Tr. at 14.

4

See Aug. 7,

Because the City provided all requisite approvals for the
design and construction of 1CMP before the promulgation of the
1961 Zoning Resolution, 1CMP was not designated as a “publicly
accessible open space” pursuant to the 1961 ordinance.
Sillerman Decl., Ex. 14-18.
allegations

regarding

The complaint contains inconsistent

whether

accessible open space.”

See

1CMP

qualifies

as

a

“publicly

Compare Compl. ¶ 263 (alleging that

1CMP is a publicly accessible open space) with Compl. ¶ 211
(alleging that 1CMP is not a publicly accessible open space).
Nevertheless, plaintiffs acknowledge in their opposition papers
that “1CMP was not constructed under the provisions of the 1961
Zoning

Resolution”

that

first

introduced

in

New

York

the

relevant zoning mechanism for creating privately owned publicly
accessible

open

space.

Pls.’

Opp’n

to

Def.

JPMC’s

Mot.

to

Dismiss at 4.
B.

Allegations Pertaining to Defendant Mitsui

On

the

evening

of

January

1,

2012,

certain

OWS

participants, including plaintiff Yonatan Miller, gathered in
the atrium of 100 William Street.

Compl. ¶¶ 337, 342.

At some

time thereafter, NYPD Deputy Inspector Edward Winski and other
police officers arrived and instructed the OWS protestors to
leave the atrium.

Compl. ¶¶ 343-44.

When challenged by OWS

participants, Deputy Inspector Winski explained that Mitsui, the
owner of 100 William Street, believed the area to be private

5

space.

Compl. ¶ 345-46.

threatened

plaintiff

Deputy Inspector Winski then allegedly

Miller

and

other

OWS

participants

with

arrest if they did not depart the atrium, although no arrests
are alleged to have occurred.

Compl. ¶¶ 349, 351.

Plaintiffs allege, without further specification as to who
was

involved

or

what

conduct

(if

any)

occurred,

that

“an

employee of Mitsui invited and encouraged the police to take
this action and/or did not prevent the NYPD from taking this
action.”

Compl.

involvement,
decision”

¶
as

such

in

357.
it

service

of

Plaintiffs
was,

as

a

Mitsui’s

characterize
“unilateral

alleged

Mitsui’s

and

sudden

“self-determined,

spontaneous wish” to preclude OWS access to the 100 William
Street atrium.
The

Compl. ¶¶ 362, 364.

atrium

of

100

William

Street,

owned

by

defendant

Mitsui, is a “privately owned public space,” colloquially known
as “POPS.”

Compl. ¶¶ 211, 338.

New York City governs the terms

of public access to POPS via applicable Zoning Resolutions and
the

oversight

Commission.

of

the

City

Council

Compl. ¶¶ 215-232.

and

the

City

Planning

A sign is posted in the atrium

of 100 William Street, noting that the space is “required to be
open to the public from 7 AM to Midnight.”
C.

Compl. ¶ 341.

Allegations Pertaining to Brookfield Defendants

Defendant Brookfield, a commercial real estate corporation,
owns or operates two properties at issue in the instant case.

6

Like the Mitsui-owned atrium at 100 William Street, Zuccotti
Park is a privately owned public space.
224, 312.

2

Compl. ¶¶ 33, 219,

See also Brookfield Defs.’ Mot. to Dismiss at 2.

Brookfield also operates the Winter Garden, a glass atrium in
the World Financial Center.3

Brookfield employs defendant James

Morrissey as the General Manager of the World Financial Center,
a position he held at all times relevant to this action.

Compl.

¶¶ 34, 133.
On

or

after

September

17,

2011,

certain

individuals

associated with the OWS movement entered Zuccotti Park, erected
tents and began inhabiting the space.

Compl. ¶¶ 2, 75, 245.

After approximately two months of occupation, on November 15,
2011,

Mayor

Michael

Bloomberg

directed

the

NYPD

to

evacuate

Zuccotti Park, at which point the New York City Department of
Sanitation and private vendors hired by Brookfield cleaned the
park and performed repairs.

Compl. ¶¶ 313, 483, 625.

2

See also

Zuccotti Park was formerly known as Liberty Park. Throughout their
complaint, plaintiffs choose to use the park’s former name in a selfdescribed exercise of “iron[y].” Compl. ¶ 25, n.3. Eschewing irony in favor
of clarity, this opinion uses the property’s proper name.
3
Although plaintiffs allege that the Winter Garden is also a privately
owned public space (Compl. ¶¶ 219, 338), Brookfield clarifies that it merely
holds a ground lease, rather than ownership rights, to the Winter Garden.
Brookfield Defs.’ Mot. to Dismiss. at 5, n.2. Brookfield’s representation
comports with a review of the applicable Zoning Regulations, indicating that
New York’s public-benefit corporation, the Battery Park City Authority, owns
the Special Battery Park City District in which the Winter Garden is located.
See New York City Zoning Resolution, art. VIII, ch. 4 (2013). The Winter
Garden is not listed among New York City’s privately owned public spaces.
Privately Owned Public Space: Downtown Manhattan Community District 1, NEW YORK
CITY DEPARTMENT OF CITY PLANNING,
http://www.nyc.gov/html/dcp/html/priv/mndist1.shtml#37 (last visited Sept.
26, 2013).

7

Brookfield Defs. Mot to Dismiss at 3.

According to plaintiffs’

allegations, Brookfield transferred all authority over Zuccotti
Park

to

the

City

and

the

NYPD,

eviction of the OWS protestors.

which

then

carried

out

the

Compl. ¶¶ 235-37.

The complaint alleges that on November 15, 2011, plaintiff
Timothy Fitzgerald was arrested in Zuccotti Park, and plaintiff
Michael Rivas was beaten and arrested by NYPD officers as he
tried to enter Zuccotti Park.
plaintiff

City

Council

Williams,

and

Democratic

Compl. ¶¶ 152, 486, 496.

Members,

Ydanis

District

Rodriguez

Leader

and

Paul

Two

Jumaane

Newell

were

prevented by NYPD officers from entering Zuccotti Park on the
same day, and plaintiffs Rodriguez and Newell were arrested and
allegedly assaulted as they approached the park.
60-61, 65-68, 484-85, 550.
plaintiff

Jeffery

McClain

Compl. ¶¶ 53,

Members of the NYPD also barred
from

approaching

Zuccotti

allegations

related

Park.

Compl. ¶¶ 487-88.
The

complaint

also

contains

protests at the Brookfield-operated Winter Garden.

to

OWS

Plaintiffs

allege that the Brookfield defendants entered into an agreement
with the NYPD to oust OWS participants from the Winter Garden on
December

12,

2011.

Compl.

¶

606.

Members

of

the

NYPD,

including Deputy Inspector Winski, allegedly arrested plaintiffs
Wedes, Knefel and Paul Sullivan without probable cause as they
were documenting protest activities in the Winter Garden, but

8

plaintiffs

do

not

specify

how,

if

at

all,

the

Brookfield

defendants were involved in conduct directed at Messrs. Wedes,
Knefel and Sullivan.
Also

on

Compl. ¶ 153-156, 159.

December

12,

2011,

the

NYPD

arrested

photojournalist Charles Meacham in the Winter Garden.
99-119.

Mr.

Meacham

was

subsequently

charged

plaintiff
Compl. ¶¶

with

criminal

trespassing in the third degree, and these charges were later
reduced

and

then

dropped

entirely.

Compl.

¶¶

125-142.

Plaintiffs allege that defendant James Morrissey, manager of the
World Financial Center property in which the Winter Garden was
located, lied when he averred in the criminal complaint that he
had

personally

Garden.

instructed

Compl.

¶¶

Mr.

Meacham

134-39.

to

According

leave
to

the

Winter

plaintiffs,

Mr.

Morrissey’s allegedly false attestation occurred at the request
of the NYPD, in an effort to chill the speech of OWS activists.
Compl. ¶¶ 137-39.
more

extensive

Morrissey

made

The Brookfield defendants, in turn, submit a

video

of

several

the

showing

requesting

that
that

Mr.
OWS

Flaum Decl., Ex. 7.

Allegations Pertaining to MTA Defendants

Plaintiffs’
limited

events,

announcements

protesters vacate the premises.
D.

day’s

to

allegations

claims

arising

against
out

of

the
the

MTA

defendants

arrest

of

a

are

single

plaintiff, Justin Sullivan, in Grand Central Terminal on January
10, 2012.

Compl. ¶¶ 161-173, 513-14, 866-95.

9

While filming an

OWS protest at Grand Central Terminal, Mr. Sullivan was arrested
by MTA police and members of the NYPD and allegedly treated with
excessive force.

Compl. ¶¶ 161-62, 866, 890-91.

Plaintiffs

allege that MTA Lieutenant Lakeram instructed other MTA officers
to

take

Mr.

returned.

Sullivan’s

cameras,

Compl. ¶¶ 164, 168-69.

which

allegedly

were

After being held in custody

for approximately 18 hours, Mr. Sullivan was released.
¶¶ 873-74.

never

Compl.

At some point thereafter, Mr. Sullivan returned to

the police station at Grand Central Terminal to retrieve his
camera and was then re-arrested by Lieutenant Lakeram and held
for

an

additional

24

hours.

Compl.

¶¶

874-75.

At

oral

argument, plaintiffs contended that Mr. Sullivan’s re-arrest was
retaliatory in nature, while the MTA defendants stated that Mr.
Sullivan’s previous release from custody had been mistaken and
hence the re-arrest was a correction of the prior error.
20, 2013 Tr. at 39-40, 49.

Aug.

On September 4, 2012, Mr. Sullivan

received an Adjournment in Contemplation of Dismissal on the
unspecified charges relating to his arrest.
With

respect

to

individual

Compl. ¶ 172.

defendant

MTA

Commissioner

Michael Coan, plaintiffs do not allege that he was present or
involved in Mr. Sullivan’s arrest or detention.

The complaint

merely alleges that, as a 26-year veteran of the NYPD, Mr. Coan
“would have had every opportunity to coordinate with NYPD in its

10

response to OWS generally and handling the press specifically in
connection with OWS.”

Compl. ¶ 405.
DISCUSSION

I. Motion to Dismiss Standard
To survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the plaintiff's “[f]actual allegations must
be

enough

to

raise

a

right

to

relief

above

the

speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Where a plaintiff has not “nudged [his] claims across the line
from conceivable to plausible,” dismissal is appropriate.
at 570.

Id.

This pleading standard applies in “all civil actions.”

Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).

In applying these

standards, we accept as true all factual allegations in the
pleadings and draw all reasonable inferences in the non-moving
party's favor.

Anderson News, L.L.C. v. Am. Media, Inc., 680

F.3d 162, 185 (2d Cir. 2012).
II.

Analysis of Federal Claims Against Private Defendants
A.

§ 1983 Claims Against Defendant JPMC

With regard to defendant JPMC, plaintiffs allege that their
constitutional freedoms of expression, press, and assembly were
violated

when

they

were

barred

from

entering

1CMP.

The

threshold question, then, must be whether the denial of access
to 1CMP implicated First Amendment concerns.

11

It

is

axiomatic

that

the

First

Amendment

protects

the

rights to speak, publish, and assemble against abridgement only
by the government.
N.L.R.B.,

424

U.S. CONST. amend. I.

U.S.

507,

513

See also Hudgens v.

(1976).

Private

actors

are

typically not subject to its constraints, and owners of private
property are generally permitted to exclude strangers without
First Amendment limitations.

See, e.g., Kalfus v. New York &

Presbyterian Hosp., 476 F. App’x 877, 879 (2d Cir. 2012) (“In
the absence of any government nexus to the challenged action,
however, the First Amendment does not prevent a property owner
from

restricting

press

access

to

private

property.”

(citing

Hudgens, 424 U.S. at 513-21)).
Here, the parties agree that 1CMP is private property owned
by JPMC.

Compl. ¶¶ 32, 211.

Plaintiffs contend, however, that

1CMP has taken on the character and attendant obligations of
public

space

conditions,

via

its

the

original

alleged

contractual

traditional

character

covenants
as

a

and

public

gathering place, and its incorporation of an area that formerly
was a public sidewalk.

Pls.’ Opp’n to Def. JPMC Mot. to Dismiss

at 2-17.
Although the contracts and implementing deeds between JPMC
and New York City contain easements for expansions of the street
and sidewalks surrounding 1CMP, they contain no easements on the
plaza itself.

Sillerman Decl., Ex. 17.

12

See also Aug. 7, 2013

Tr. at 14.

This absence is legally significant, as New York’s

Statute

Frauds

of

mandates

that

explicitly stated in writing.
(“An

estate

or

interest

in

any

interests

in

land

be

N.Y. Gen. Oblig. Law § 5–703(1)
real

property

.

.

.

cannot

be

created, granted, assigned, surrendered or declared, unless . .
. by a deed or conveyance in writing, subscribed by the person
creating,

granting,

assigning,

surrendering

or

declaring

the

same.”); see also 2004 Bowery Partners, LLC v. E.G. West 37th
LLC, No. 113810/10, 2011 WL 2651792, at *4 (N.Y. Sup. Ct., June
30, 2011) (“[I]n order to satisfy the statute of frauds, there
must be a writing subscribed by [defendant] setting forth the
details of the transaction.”).
The contractual appearance of the word “plaza” alone falls
far

short

grantor’s

of

the

intent”

“plain

and

necessary

direct
to

language

create

a

legally

obligation for JPMC to open 1CMP to the public.
Inc.

v.

Dimacopoulos,

68

N.Y.2d

963,

965

evincing

(N.Y.

the

binding

Willow Tex,
1986).

The

dictionary definition on which plaintiffs themselves rely and
from which they selectively quote indicates that “plaza” has a
number of meanings, including a “public square” or a “market
place.”

Pls.’ Opp’n to Def. JPMC’s Mot. to Dismiss at 3; Decl.

of Leo Glickman, Ex. A.

Other dictionary definitions of “plaza”

confirm the word’s multiplicity of meanings, including an “open
square,” “[a]n open place in a town,” and “[a] large paved area

13

surrounded

by

or

adjacent

to

shops

and

businesses,

designed as a feature of a shopping complex.”
of Jeffrey Braun, Ex. B.

usually

See Reply Decl.

1CMP’s municipal approval documents do

not define the plaza’s use value as the plaintiffs propose, but
rather

suggest

reasons

of

aesthetics.

that

“light

the
and

City
air,”

may

have

passive

wanted

the

recreation,

See Sillerman Decl., Ex. 18 at 1008.

plaza
or

for

merely

Plaintiffs’

contentions notwithstanding, the word “plaza” is no surrogate
for express language designating 1CMP a privately owned public
space.
Further, plaintiffs’ assertions that 1CMP shares certain
characteristics with public parks are irrelevant and unavailing.
Indisputably, 1CMP is not a public park, and indeed has been
privately owned since its initial development, irrespective of
the

fact

that,

“[b]efore

September

17,

2011,

persons

would

regularly gather and meet at One Chase Manhattan Plaza, to speak
to

one

another,

recreation.

eat

meals”

Compl. ¶ 277.

and

engage

in

other

passive

The Supreme Court has rejected the

notion that privately owned space “lose[s] its private character
merely because the public is generally invited to use it for
designated purposes.”
(1972).

Lloyd Corp. v Tanner, 407 U.S. 551, 569

Indeed, the Court has expressly retracted its erstwhile

amenability to applying First Amendment protections to privately
owned space.

See Hudgens v. N.L.R.B., 424 U.S. 507, 518 (1976)

14

(“[W]e make clear now, if it was not clear before, that the
rationale of Logan Valley [applying First Amendment protections
to a private shopping mall] did not survive the Court's decision
in the Lloyd case.”)
Finally, while at one time Cedar Street and its adjoined
sidewalks

ran

through

the

space

that

is

now

1CMP,

the

incorporation of a former public sidewalk does not suffice to
transform 1CMP into a traditional public forum.

Compl. ¶ 274.

What was once a traditional public forum ceased to be so when
the City of New York de-mapped and sold, without retention of
servitude, a portion of the street and sidewalk to JPMC, which
in turn conspicuously changed its objective characteristics by
absorbing the property into a raised plaza distinct from the
former street grid.

Sillerman Decl., Ex. 1.

See also Int’l

Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 699
(1992) (Kennedy, J., concurring) (“In some sense the government
always retains authority to close a public forum, by selling the
property,

changing

its

physical

character,

or

changing

its

principal use.”).
Plaintiffs

cite

precedent

finding

that

privately

owned

streets and sidewalks can in some cases be subject to First
Amendment

protections;

factually dissimilar.

however,

the

circumstances

here

are

For instance, the plaza itself at 1CMP is

burdened by no government-held servitude, unlike the properties

15

at issue in First Unitarian Church of Salt Lake City v. Salt
Lake City Corp., 308 F.3d 1114 (10th Cir. 2002); Venetian Casino
Resort, L.L.C. v. Local Joint Executive Bd. of Las Vegas, 257
F.3d 937 (9th Cir. 2001); and Citizens To End Animal Suffering &
Exploitation,

Inc.

v.

Faneuil

Hall

Marketplace,

Inc., 745

F.

Supp. 65 (D. Mass. 1990).

1CMP is also separate and distinct

from

street

Lower

Manhattan’s

grid

and

distinguishable as a privately owned space.

is

visually

Compare Utah Gospel

Mission v. Salt Lake City Corp., 425 F.3d 1249, 1255-58 (10th
Cir. 2005) (holding that private property was no longer subject
to the First Amendment after the city sold its easement to the
private property owner and the property was differentiated from
the surrounding sidewalks by signage and landscaping features)
with First Unitarian Church of Salt Lake City v. Salt Lake City
Corp., 308

F.3d

1114,

1122-28 (10th

Cir.

2002)

(previously

holding that the very same private property over which the city
then

held

an

thoroughfare

easement
as

part

and
of

which

the

functioned

city’s

as

a

pedestrian

transportation

subject to First Amendment protections).

grid

was

As this review makes

clear, the factors articulated by courts to support application
of the First Amendment to private property do not apply here.
Accordingly, because 1CMP is privately owned and because
the

space

has

constitutional

not

been

guarantee

of

dedicated
free

16

to

public

expression

has

use,
no

“the

part

to

play,” and plaintiffs cannot state a claim against defendant
JPMC.

Hudgens, 424 U.S. at 521.
B.

§ 1983 Claims
Defendants

Against

Mitsui

and

the

Brookfield

Plaintiffs also allege violations of their constitutional
rights

to

Brookfield

speech,

press,

defendants

and

during

assembly

separate

by

Mitsui

and

confrontations

the

between

police and OWS participants at Zuccotti Park, the Winter Garden,
and the 100 William Street atrium.
1.
For
against

Legal Standard for State Action

plaintiffs
private

to

prevail

defendants

in

a

42

Mitsui,

U.S.C.

§

1983
and

Brookfield

claim
James

Morrissey, they must establish that Mitsui and the Brookfield
defendants acted under color of law.
§ 1983

is

to

constitutional

deter

or,

violations

Because the purpose of

alternatively,
perpetrated

provide

by

redress

state

actors,

for
“a

plaintiff pressing a claim of violation of his constitutional
rights under § 1983 is thus required to show state action.”
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255,
257 (2d Cir. 2008) (quoting Tancredi v. Metro. Life Ins. Co.,
316 F.3d 308, 312 (2d Cir. 2003)) (internal quotation marks
omitted).

A private actor can undertake “state action” only

where

“challenged

the

action

of

17

a

private

party

is

fairly

attributable to the state.”

Hollander v. Copacabana Nightclub,

624 F.3d 30, 33 (2d Cir. 2010) (citations omitted).
Admittedly, as has been noted, Supreme Court cases on the
issue of what precisely constitutes state action “have not been
a model of consistency.”

United States v. Stein, 541 F.3d 130,

147 (2d Cir. 2008) (quoting Edmonson v. Leesville Concrete Co.,
500

U.S.

614,

Nonetheless,

632

state

(1991)

action

(O'Connor,

generally

can

J.,
be

dissenting)).

attributed

to

a

private entity where
(1) the entity acts pursuant to the “coercive power”
of the state or is “controlled” by the state (“the
compulsion test”); (2) when the state provides
“significant encouragement” to the entity, the entity
is a “willful participant in joint activity with the
[s]tate,” or the entity's functions are “entwined”
with state policies (“the joint action test” or “close
nexus test”); or (3) when the entity “has been
delegated a public function by the [s]tate,” (“the
public function test”).
Sybalski,

546

F.3d

at

257

(citing

Brentwood

Acad.

v

Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001)).
Plaintiffs do not allege in their complaint, nor do
they argue in their opposition papers, that Mitsui, Brookfield
or Mr. Morrissey acted pursuant to the state’s compulsion or
coercive power.

Plaintiffs’ arguments instead effectively focus

on the second and third standards set forth in Sybalski; that
is,

that

Mitsui

and

the

Brookfield

defendants

are

to

be

considered state actors because they engaged in joint action

18

with

the

NYPD

to

evict

OWS

activists

and

because

they

are

stewards of privately owned public spaces.
2.
“The

Joint Action Test

touchstone

prearrangement,

of

joint

conspiracy,

action

custom,

private actor and the police.”

or

is

often

policy’

a

shared

‘plan,
by

the

Forbes v. City of New York, No.

05 Civ. 7331 (NRB), 2008 WL 3539936, at *5 (S.D.N.Y. Aug. 12,
2008) (citing Ginsberg v. Healey Car & Truck Leasing, Inc., 189
F.3d

268,

272

(2d

Cir.

1999).

However,

a

private

party’s

“provision of background information to a police officer does
not by itself make [the private owner] a joint participant in
state action under Section 1983.”

Ginsberg, 189 F.3d at 272.

See also Liwer v. Hair Anew, No. 99 Civ. 11117 (SAS), 2000 WL
223828, at *2 (S.D.N.Y. Feb. 25, 2000) (“Where a private person
merely

seeks

the

assistance

of

the

police

to

quell

a

disturbance, the private party is not ‘jointly engaged’ in the
police officer's conduct so as to render it a state actor under
§ 1983.” (citing Ginsberg, 189 F.3d at 272)). In considering
joint

action

claims,

courts

must

assess

independently evaluated the situation.

whether

the

police

Where “a police officer

exercises independent judgment in how to respond to a private
party's legitimate request for assistance, the private party is
not ‘jointly engaged’ in the officer's conduct so as to render

19

it a state actor under Section 1983.”

Ginsberg, 189 F.3d at

272.
In

support

of

their

allegations

that

Mitsui

and

the

Brookfield defendants, respectively, undertook joint action with
the NYPD, plaintiffs rely heavily on allegations that Mitsui and
Brookfield called upon police to remove OWS participants from
Zuccotti Park, the Winter Garden, and the atrium at 100 William
Street.

Compl.

¶¶

235-39,

356-57,

360,

398,

602-08.

With

respect to Mitsui, however, the complaint does not make clear
whether any Mitsui associate in fact communicated with police.
Plaintiffs allege merely that “an employee of Mitsui invited and
encouraged the police to take this action and/or did not prevent
the NYPD from taking this action.”

Compl. ¶ 357.

In any event, summoning police or requesting that police
take action to disperse OWS protestors simply does not suffice
to constitute joint action or to convert the private party into
a state actor.

See Forbes, 2008 WL 3539936, at *9 (quoting

Liwer, 2000 WL 223828, at *2).

Indeed, even if a private party

provides false information to police, as plaintiffs allege that
defendant James Morrissey did in the criminal complaint, such
provision

alone

does

not

constitute

20

joint

action

actionable

under § 1983.4

See Young v. Suffolk Cnty, 705 F. Supp. 2d 183,

196 (E.D.N.Y. 2010) (citing Ginsberg, 189 F.3d at 272).
The evictions from Brookfield and Mitsui properties in no
way involved the type of improper abdication of decision-making
authority from police to a private party that would give rise to
an inference of joint action.

Rather, the police were engaged

in active evaluation and decision-making throughout the duration
of the OWS protests.
NYPD

spokesman

For instance, plaintiffs allege that an

informed

the

press

that

even

before

protests

began on September 17, “the plans for the [OWS] meeting and
protest were ‘well known publicly.’” Compl. ¶ 271.
of

the

evictions

at

issue,

the

movement’s

By the time

scope

and

media

coverage had only grown, as did police monitoring thereof.

See

Compl.

and

¶

78

(alleging

increased

police

observation

restriction of OWS participants between August 2011 and November
2011).

According

to

the

complaint,

police

“targeted”

OWS

participants and OWS-affiliated journalists for arrest, rather
than merely deferring to the judgment of others.

Compl. ¶¶ 147-

48, 158, 397, 501, 556, 563.
With

regard

to

the

specific

evictions,

the

complaint

alleges—and plaintiffs’ video exhibit to the complaint confirms—

4

As noted supra, plaintiffs’ allegation that Mr. Morrissey purposefully
provided false information in his attestation founders in light of a more
complete video cut of that day’s events, which plainly shows Mr. Morrissey
asking OWS protestors to depart, as he truthfully averred in the criminal
complaint. See Flaum Decl. Ex. 7.

21

that

in

each

interacted

case

with

police

the

observed

protestors,

the

and

protests

formed

an

firsthand,
independent

judgment, without merely relying on that of the property owners.
See Exhibit G to Compl.

Regarding police conduct at Zuccotti

Park, plaintiffs allege that the eviction was “carefully planned
by the City and the Police Commissioner,” and that “each aspect
of the Zuccotti Park operation went according to the City’s
plan.”

Compl. ¶ 625.

Regarding the arrest of plaintiff Charles

Meacham at the Winter Garden, plaintiffs allege that members of
the NYPD instructed Mr. Meacham to leave and then arrested him,
without apparent input from any Brookfield associate, including
Mr. Morrissey.
Street
Winski

Compl. ¶¶ 106-115.

eviction,
had

plaintiffs

“essentially

argue

Regarding the 100 William
that

unfettered

NYPD

Deputy

discretion”

Inspector

and

“carte

blanche . . . to address this ‘problem’ as he pleased.”

Pls.’

Opp. to Def. Mitsui’s Mot. to Dismiss at 18, 20.
Together,

these

allegations

demonstrate

that

police

responding to protest sites reached independent decisions as to
what action, if any, to take and how.

Plaintiffs simply cannot

show the substitution of private judgment for police judgment
necessary

to

constitute

joint

action.

Instead,

plaintiffs

explicitly plead the very opposite as to defendant Brookfield,
which allegedly “actually transferr[ed] discretion and authority
to

[the]

NYPD

to

order

OWS

22

participants

off

of

publicly

accessible open areas.”
320.

In

sum,

Compl. ¶ 398.

plaintiffs’

See also id. ¶¶ 234-37,

allegations

cannot

support

an

inference of joint action with the City or the police against
Mitsui or the Brookfield defendants.
3.

Public Function Test

Plaintiffs’ alternative argument—that defendants Mitsui and
Brookfield are state actors under the “public function” test—
would require that the private defendants perform a function
that is “traditionally the exclusive prerogative of the State.”
Jackson

v.

Metro.

Edison

Co.,

419

U.S.

345,

353

(1974).

Plaintiffs allege that, by operating a space akin to a public
park,

Mitsui

standard.

and

the

Brookfield

defendants

satisfy

this

Pls.’ Opp’n to Def. Mitsui’s Mot. to Dismiss at 10-

17; Pls.’ Opp’n to Brookfield Defs.’ Mot. to Dismiss at 2-5.
This argument is without merit.
Plaintiffs rely heavily on the public function test set out
in Evans v. Newton, holding that the owner of a former public
park, which had been transferred to private ownership in order
to introduce racial segregation, constituted a state actor.

382

U.S 296, 299 (1966) (“Conduct that is formally ‘private’ may
become so entwined with governmental policies or so impregnated
with

a

governmental

constitutional

character

limitations

as

placed

to
upon

become
state

subject

to

action.”).

the
In

Evans, the City of Macon continued to maintain and control the

23

former

public

circumstances

park,
as

it

which

passed

saw
from

virtually
public

beyond a substitution of trustees.

to

no

change

private

Id. at 301.

of

ownership
The Court

reasoned that “[i]f the municipality remains entwined in the
management or control of the park, it remains subject to the
restraints of the Fourteenth Amendment . . . .”

Id.

The facts of the instant case, however, are dissimilar and
distinguishable.

Here, plaintiffs do not allege that the City

is involved in any way in controlling or maintaining Zuccotti
Park, the Winter Garden, or the atrium at 100 William Street, in
contrast to the park in Evans.
Further, subsequent decisions have confined Evans to its
facts.

In Flagg Bros., Inc. v. Brooks, for instance, the Court

characterized the Evans holding as “a finding of ordinary state
action under extraordinary circumstances” and expressed “doubt”
that Evans intended to establish a rule whereby operation of a
park becomes an exclusively public function.
n.8.

436 U.S. 149, 159

See also Utah Gospel Mission v. Salt Lake City Corp., 425

F.3d 1249, 1255 (10th Cir. 2005) (“Evans has since been limited
to

the

unique

facts

involved.”).

Although

courts

have

identified other public functions, such as operating a company
town,

holding

primary

elections

and

neutering

animals

on

an

exclusive basis, subsequent cases have declined to hold that
operating a park open to the public is, in itself, a public

24

function.

Compare Marsh v. Alabama, 326 U.S. 501, 506-08 (1946)

(operation of a company town constituted a public function) and
Terry v. Adams, 345 U.S. 461, 469-70 (1953) (primary elections
constituted state action) and Fabrikant v. French, 691 F.3d 193,
210-11 (2d

Cir.

2012)

(SPCA

animal

control

activities

constituted a public function) with Forbes v. City of New York,
No. 05 Civ. 7331 (NRB), 2008 WL 3539936, at *8 (S.D.N.Y. Aug.
12, 2008) (no public function found in operating a publiclyowned

but

privately-licensed

park,

where

the

City

had

no

oversight duties and received no financial benefit from park
activities or speech restrictions).
Because plaintiffs fail to allege state action by Mitsui
and the Brookfield defendants via public function, joint action
or an alternative standard, they do not state a claim against
these defendants under § 1983.
state

action

state

a

or

claim

liability.5

individual
against

Having thus failed to establish

liability,

Mitsui

or

plaintiffs

Brookfield

also

for

cannot

vicarious

See, e.g., City of Los Angeles v. Heller, 475 U.S.

5

The minimally alleged conduct by Brookfield and Mitsui does not
constitute grounds for vicarious liability for further reasons.
Even
assuming arguendo that plaintiffs had been able to properly show that these
private entities acted under color of law, “[p]rivate employers are not
[vicariously] liable under § 1983 for the constitutional torts of their
employees,” absent allegations of conduct pursuant to an official policy.
Dilworth v. Goldberg, 914 F. Supp. 2d 433, 452 (S.D.N.Y. 2012) (quoting Rojas
v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990)).
Plaintiffs attempt to overcome this impediment by arguing in opposition
papers that the private defendants can be held liable for failing to train
their employees properly.
Pls.’ Opp’n to Def. Mitsui’s Mot. to Dismiss at
15-17. Parenthetically, a failure to train theory—considered “most tenuous”

25

796, 798-99 (1986) (per curiam) (finding no municipal liability
for a § 1983 violation where a jury verdict found that the
municipal

employee

inflicted

no

constitutional

injury

on

the

plaintiff); Curley v. Village of Suffern, 268 F.3d 65, 71-72 (2d
Cir. 2001) (applying the Heller analysis to hold that where “the
jury found no deprivation of rights in the first instance” by
defendant

employees,

“no

cause

of

action

may

be

maintained

against the village [employer]”).
III. Analysis of Federal Claims Against MTA Defendants
A.

§ 1983 Claims Against the MTA Defendants by Plaintiff
Justin Sullivan

While the complaint is not a model of clarity, the primary
claims

against

the

MTA

defendants

appear

to

be

for

alleged

violations of individual plaintiff Justin Sullivan’s First and
Fourth Amendment rights, arising from Mr. Sullivan’s arrest by
MTA Police on January 10, 2012 in Grand Central Terminal, though
Mr. Sullivan is not explicitly named in the paragraphs setting
forth the First Amendment claims.6

See Compl. ¶¶ 586-95, 865-95.

by the Supreme Court—would require plaintiffs to show a Brookfield or Mitsui
“custom or policy” characterized by “deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact,” a dubious
proposition at best.
Connick v. Thompson, 131 S. Ct 1350, 1359 (2011)
(quoting City of Canton v. Harris, 489 U.S. 378, 388 (2011).
More to the
point, however, the complaint itself contains no allegations of improper
training against Mitsui or Brookfield.
6
Although plaintiff’s counsel contended in oral argument that they also
intended to assert the complaint’s 13th cause of action against the MTA
defendants (Aug. 20, 2013 Tr. at 32), the language of that cause of action
references neither the MTA nor Mr. Sullivan. Compl. ¶¶ 616-21. Further, the
complaint contains no allegations elsewhere against the MTA regarding the
activity complained of in that cause of action—i.e., refusing to return or
destroy photographs of arrested parties who received favorable terminations

26

Plaintiff Sullivan advances these claims against the MTA, MTA
Police Commissioner Michael Coan in his individual and official
capacities,

and

MTA

Police

Lieutenant

Omeeta

Lakeram

in

her

individual and official capacities.
1.

Claims against the MTA

Municipal employers generally “are not vicariously liable
under

§

1983

Thompson,

131

[municipality]

for

their

S.

Ct

liable

employees’

1350,
under

1359
§

1983

actions.”

Connick

(2011).
for

the

“[T]o

v.

hold

a

unconstitutional

actions of its employees, a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that (2)
causes

the

plaintiff

constitutional right.”

to

be

subjected

to

(3)

a

denial

of

a

Wray v. City of New York, 490 F.3d 189,

195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d 393,
397 (2d Cir. 1983)).
must

“demonstrate

To make the requisite showing, plaintiff

that,

through

its

deliberate

conduct,

the

municipality was the ‘moving force’ behind the alleged injury.”
of criminal charges. Id. Hence, to the extent it was intended to apply to
the MTA, plaintiff has not properly pleaded the 13th cause of action against
MTA defendants.
Even if plaintiffs had alleged sufficient facts against the MTA
defendants, the right of arrestees to have police photographs returned or
destroyed pursuant to New York Crim. Pro. L. § 160.50 is purely statutory in
nature and does not implicate constitutional concerns. New York v.
Patterson, 587 N.E.2d 255, 256 (N.Y. 1991) (“A defendant has no inherent or
constitutional right to the return of photographs, fingerprints or other
indicia of arrest where charges are dismissed.”); see also New York v.
Anderson, 411 N.Y.S.2d 830, 833 (N.Y. Sup. Ct. 1978) (same). Accordingly,
the violation of New York Crim. Pro. L. § 160.50 does not provide grounds for
a § 1983 claim. See, e.g., Grandal v. City of New York, 966 F. Supp 197,
202-203 (S.D.N.Y. 1997) (dismissing § 1983 claims predicated upon a violation
of New York Crim. Pro. L. § 160.50 for failure to allege a constitutional
violation).

27

Roe

v.

City

of

Waterbury,

542

F.3d

31,

37

(2d

Cir.

2008)

(quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Oklahoma v. Brown,
520 U.S. 397, 404 (1997).
plaintiff’s
official

claims

“policy,”

is

an

If the practice giving rise to a
unwritten

plaintiff

“custom”

must

show

rather

that

the

than

an

“relevant

practice is so widespread as to have the force of law.”

Brown,

520 U.S. at 404 (citations omitted).
Plaintiff

Justin

Sullivan

has

failed

to

allege

the

requisite MTA custom or policy that caused the violation he
allegedly suffered.
the

MTA

are

The complaint’s factual pleadings regarding

limited

to

the

incident

on

January

10,

2012

concluding in Mr. Sullivan’s arrest, which does not in itself
suggest

a

widespread

Plaintiff’s

claims

custom

against

with

the

force

MTA

of

law.

pursuant

to

See
§

id.

1983

are

insufficiently pled as a matter of law.
2.

Claims against MTA Commissioner Coan

Plaintiff asserts claims against MTA Police Commissioner
Coan

in

both

his

official

and

individual

capacities.

The

official-capacity claims are “to be treated as a suit against
the entity . . . not a suit against the official personally.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citation omitted).
For

plaintiff’s

official-capacity

claims

against

Commissioner

Coan to survive, an MTA wrongful “‘policy or custom’ must have
played a part in the violation of federal law.”

28

Id. (quoting

Monell v. New York City Dep’t of Soc. Serv., 436 U.S. 658, 694
(1978)).
policy

Because plaintiff has not adequately alleged an MTA
or

custom

responsible

for

Mr.

Sullivan’s

alleged

injuries, this claim fails as a matter of law.
For

plaintiff

Commissioner

Coan

to
in

successfully
his

state

individual

a

claim

capacity,

by

against
contrast,

plaintiff “must show (a) that the defendant is a ‘person’ acting
‘under

the

color

of

state

law,’

and

(b)

that

the

defendant

caused the plaintiff to be deprived of a federal right.”

Back

v.

107,

Hastings

On

Hudson

Union

Free

Sch.

122 (2d Cir. 2004) (citation omitted).
Second

Circuit,

“[i]t

is

well

Dist., 365

F.3d

Additionally, in the

settled

that,

in

order

to

establish a defendant's individual liability in a suit brought
under § 1983, a plaintiff must show, inter alia, the defendant's
personal involvement in the alleged constitutional deprivation.”
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).
The

complaint

evinces

a

total

absence

of

any

factual

allegations that might establish Commissioner Coan’s personal
involvement in the alleged violations.

Plaintiff merely alleges

that, given his 26-year tenure with the NYPD before joining the
MTA Police, Commissioner Coan “would have had every opportunity
to coordinate with NYPD in its response to OWS . . . .”
¶ 405.

Compl.

This conclusory speculation, which does not even rise to

29

the level of factual allegation, is baldly insufficient to state
a claim against Commissioner Coan in an individual capacity.
3.

Claims Against Lieutenant Lakeram

For the same reasons applicable to plaintiff’s officialcapacity

claims

against

Commissioner

Coan,

supra

Section

III.A.2, plaintiff fails to state a claim against Lieutenant
Lakeram in her official capacity.
Plaintiff Sullivan also asserts claims against Lieutenant
Lakeram in an individual capacity, relating to abridgement of
Mr. Sullivan’s First and Fourth Amendment rights.

With regard

to his First Amendment claim, “[t]o prevail on [a] free speech
claim, plaintiff must prove: (1) he has an interest protected by
the First Amendment; (2) defendants' actions were motivated or
substantially caused by his exercise of that right; and (3)
defendants'

actions

effectively

First Amendment right.”

chilled

the

exercise

of

his

Curley v. Village of Suffern, 268 F.3d

65, 73 (2d Cir. 2001) (citation omitted).
Applying

this

standard,

plaintiff

Sullivan

successfully

pleads allegations sufficient to state a claim under § 1983 for
violation of his First Amendment rights.
and

documentation

of

the

January

2012

His participation in
OWS

protest

at

Grand

Central invoked associative and expressive interests protected
by the First Amendment.

Plaintiff plausibly pleads that his

expressive activity motivated or substantially caused the NYPD

30

to

conduct

his

arrest.

Compl.

¶¶

162,

513.

Further,

Mr.

Sullivan includes as an exhibit to his complaint a video that,
while not entirely clear, does not undermine his contention.
Ex. G to Compl.
Finally,

Mr.

Sullivan

plausibly

pleads

that

Lieutenant

Lakeram’s conduct chilled his exercise of his First Amendment
rights,

notwithstanding

Mr.

Sullivan’s

allegation

that

he

“intends to participate in Constitutionally protected protest
activities

in

New

(emphasis added).
stating

his

intent

York

City

in

the

future.”

Compl.

¶

17

Defendants argue in motion papers that, by
to

protest

in

the

future,

Mr.

Sullivan

undermined his allegations that the arrest effectively chilled
his exercise of speech rights.

See MTA Defs.’ Mot. to Dismiss

at 14-15; MTA Defs.’ Reply at 5-6.

The precedent raised by

defendants on this point is inapposite, because in those cases
the retaliatory action occurred separately from the speech at
issue, calling into question whether First Amendment chilling
occurred.

See, e.g., Rosendale v. Brusie, No. 07-CV-8149 (CS),

2009 WL 778418 (S.D.N.Y. Mar. 25, 2009); Sloup v. Loeffler, No.
05-CV-1766 (JFB), 2008 WL 3978208 (E.D.N.Y. Aug. 21, 2008).
Here, by contrast, defendant Lakeram arrested Mr. Sullivan
during his participation in a protest.
expressive

activity

was

not

merely

Hence, Mr. Sullivan’s

chilled,

but

completely frustrated for the period of his arrest.

31

was

rather

While, to

be sure, “governmental action which falls short of a direct
prohibition

on

speech

may

violate

the

First

Amendment

by

chilling the free exercise of speech,” here Mr. Sullivan alleges
the more axiomatic “direct prohibition,” thereby fulfilling the
requirement to allege that his speech rights were infringed.
Levin v. Harleston, 966 F.2d 85, 89 (2d Cir. 1992).

Plaintiff’s

First Amendment claim against defendant Lakeram thus survives.
In addition to the First Amendment claims, plaintiff also
asserts several Fourth Amendment-related claims against the MTA
defendants

for

prosecution.7

false

arrest,

excessive

Compl. ¶¶ 865-95.

force,

and

malicious

The MTA defendants did not move

to dismiss plaintiff’s false arrest claim, therefore that claim
survives.

See Aug. 20, 2013 Tr. at 51-52.

Plaintiff did not

contest the motion to dismiss the malicious prosecution claim
and conceded that claim at oral argument.
29-31.

Remaining

to

be

decided

is

Aug. 20, 2013 Tr. at
plaintiff’s

claim

for

excessive force, and a related state law assault and battery
claim.

Compl. ¶¶ 889-895.

However, the Court need not inquire

into its merits, because plaintiff makes no factual allegations
relevant to excessive force against Lieutenant Lakeram or the
MTA.

Compl.

¶¶

889-895.

Plaintiff

merely

alleges

that

“Defendant John Doe NYPD officer . . . forc[ed] him to the
7

As discussed supra, plaintiff has failed to state a claim against the
MTA and defendant Coan pursuant to § 1983 for constitutional violations,
leaving only plaintiff’s § 1983 claims against defendant Lakeram in her
individual capacity to be addressed.

32

ground and wall multiple times, placing extremely tight flexicuffs on his wrists for a lengthy period of time.”
890-91.

Compl. ¶¶

Accordingly, to the extent that it is necessary to do

so, the excessive force claim and the related state law assault
and battery claim are dismissed as against the MTA and defendant
Lakeram.8
IV.

Conspiracy Claims Against Private Defendants and MTA
Defendants
Plaintiffs’

conspiracy

claims

against

both

the

private

defendants and the MTA defendants are so underdeveloped that it
is unclear whether they are intended under federal or state law.
In any event, to properly plead a conspiracy pursuant to § 1983,
plaintiffs must allege “(1) an agreement between a state actor
and

a

private

unconstitutional

party;

(2)

injury;

to
and

act

in

(3)

concert

an

overt

furtherance of that goal causing damages.”
of

Nassau, 292

“complaints

F.3d

307,

containing

324-25 (2d

only

Cir.

conclusory,

to

inflict

act

done

an
in

Ciambriello v. Cnty.
2002).9
vague,

Further,
or

general

allegations that the defendants have engaged in a conspiracy to

8

Any arguable respondeat superior claim against the MTA defendants
arising out of the intentional torts allegedly committed by its officers is
also dismissed. Compl. ¶¶ 918-20. See also Pls.’ Opp’n to MTA Defs.’ Mot.
to Dismiss at 16. Since plaintiff directs his assault and battery claim
against an unnamed NYPD officer and does not otherwise allege intentional
torts by MTA personnel, plaintiff does not state a claim against the MTA
defendants.
9
See Concepcion v. City of New York, No. 05 Civ. 8501 (RJS), 2008 WL
2020363, at *4-5 (S.D.N.Y. May 7, 2008) for discussion of the Ciambriello
standard’s continued application, pursuant to Supreme Court and Circuit
precedent.

33

deprive the plaintiff of his constitutional rights are properly
dismissed; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct.”

Id. at

325 (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d
Cir. 1993)).
With regard to defendant JPMC, as discussed supra Section
II.A, the exclusion of plaintiffs from 1CMP implicated no First
Amendment concerns.

Thus, even assuming it had been pled with

sufficient specificity, the alleged agreement between defendant
City of New York and defendant JPMC to exclude outsiders from
JPMC property would not have been in violation of law.
The conspiracy analysis as to Mitsui and the Brookfield
defendants
Section

is

very

II.B.2,

similar

finding

no

to

our

initial

actionable

private defendants and the NYPD.

discussion,

joint

action

supra

between

See Ciambriello, 292 F.3d at

324 (noting the similarity between analysis of joint action and
conspiracy claims under § 1983).
401

F.

Supp.

2d

362,

375-78

conspiracy claims concurrently).

See also Fisk v. Letterman,
(evaluating

joint

action

and

As noted, a private party is

not liable under § 1983 for “subsequent, independent actions of
a police officer whenever [the party] legitimately calls for
official assistance or protection.”

Ginsberg v. Healey Car &

Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999).

34

Further, plaintiffs’ conspiracy allegations against Mitsui
and the Brookfield defendants are no more specific than those
dismissed as insufficient in similar cases involving arrests at
the 2008 Republic National Convention.

In Concepcion v. City of

New York, for example, allegations that an RNC official had
repeatedly met and collaborated with city officials to devise a
master

strategy

arrested

during

for

managing

the

Convention,

survive a motion to dismiss.
2020363

at

*5-10

(S.D.N.Y.

protestors,
were

some

found

of

whom

insufficient

were
to

No. 05 Civ. 8501 (RJS), 2008 WL
May

7,

2008)

(holding

that

allegations that RNC official Norcross had discussed a security
strategy with City officials “does not support a plausible claim
that Norcross or the RNC reached an agreement with any other
individual

or

entity,

let

alone

an

agreement

to

violate

plaintiff's civil rights.”).
Here,

plaintiffs

allege

even

less.

Against

defendants

Brookfield and Mitsui, the complaint merely recites the elements
of a conspiracy claim and makes conclusory assertions.
¶¶ 602-15.

Compl.

With regard to Mitsui, plaintiffs undermine their

allegations of a prearranged, bilateral conspiracy by alleging
that Mitsui came to a “unilateral and sudden decision” emanating
from a “self-determined, spontaneous wish” to rid 100 William
Street of OWS protestors.

Compl. ¶¶ 362, 364.

35

As against Brookfield employee James Morrissey, Plaintiffs
present

only

one

specific

Morrissey

“falsely

requesting

that

Compl. ¶ 607.

factual

averred”

an

OWS

in

a

participant

allegation:
criminal
leave

the

that

Mr.

complaint
Winter

to

Garden.

As noted earlier, however, a more complete video

of the day’s events substantiates Mr. Morrissey’s account.

See

Flaum

Mr.

Decl.

Ex.

7.

Nevertheless,

even

assuming

that

Morrissey had deliberately provided false information to police,
such provision alone is not sufficient to form the basis of a
conspiracy claim.

See Vazquez v. Combs, No. 04 Civ. 4189 (GEL),

2004 WL 2404224 at *4 (S.D.N.Y. Oct. 22, 2004) (“[M]erely filing
a

complaint

with

the

police,

reporting

a

crime,

requesting

criminal investigation of a person, or seeking a restraining
order, even if the complaint or report is deliberately false,
does not give rise to a claim against the complainant for a
civil

rights

violation.”).

Plaintiffs’

allegations

against

Mitsui, Brookfield and Mr. Morrissey simply do not support a
plausible conspiracy claim.
Plaintiff

Justin

Sullivan

likewise

fails

to

plead

sufficient facts to state a claim for conspiracy against the MTA
defendants.
allegations

Instead,
of

a

the

complaint

conspiratorial

merely

agreement

makes
and

conclusory

attempts

to

generate suspicion, without more, about MTA Commissioner Coan’s
prior employment with the NYPD years prior.

36

Compl. ¶ 404-06.

Mr. Sullivan’s January 2012 arrest in Grand Central Terminal is
the only incident alleged involving conduct by both the MTA and
the NYPD.

However, neither the complaint nor the video exhibit

to the complaint makes a showing that the NYPD and MTA Police
formed

an

unlawful

conspiracy

constitutional rights.

to

abridge

Mr.

Sullivan’s

Compl. ¶¶ 161-66, 513-14, 866-95; Ex. G

to Compl.
V.

State Claims against Private Defendants and MTA Defendants
In addition to the claims discussed supra, plaintiffs also

assert

concomitant

state

claims

against

both

the

private

defendants and the MTA defendants, arising from the same alleged
conduct and implicating state constitutional rights, as well as,
with regard to defendant Brookfield, an apparent assault and
battery claim.

“It is well settled that where . . . the federal

claims are eliminated in the early stages of litigation, courts
should generally decline to exercise pendent jurisdiction over
remaining state law claims.”

Klein & Co. Futures, Inc. v. Bd.

of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006).
Because we have dismissed the § 1983 claims against JPMC, Mitsui
and the Brookfield defendants, we will refrain from exercising
pendant

jurisdiction

contrast,
Lakeram

since

invoking

over

plaintiff’s
violation

the
§
of

related
1983
the

state

claims
First

claims.

against

Amendment

By

defendant
and

false

arrest survives, declining pendant jurisdiction with respect to

37

related

state

claims

against

the

MTA

defendants

would

be

premature.
VI.

Severance
In addition to moving for dismissal, the MTA defendants

simultaneously moved to sever Justin Sullivan’s claims against
the MTA, defendant Coan, and defendant Lakeram.
Federal

Rule

of

Civil

Procedure

21

and

Pursuant to

governing

case

law,

“[t]he decision whether to grant a severance motion is committed
to

the

sound

discretion

of

the

trial

court.”

New

York

v.

Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir. 1988).
The

following

severance:

factors

“(1)

are

whether

relevant
the

claims

to

the

arise

determination
out

of

the

of

same

transaction or occurrence; (2) whether the claims present some
common questions of law or fact; (3) whether settlement of the
claims or judicial economy would be facilitated; (4) whether
prejudice would be avoided if severance were granted; and (5)
whether different witnesses and documentary proof are required
for the separate claims.”

In re Merrill Lynch & Co., Inc.

Research Reports Sec. Litig., 214 F.R.D. 152, 154-55 (S.D.N.Y.
2003).
With these factors in mind, we find that severance of the
remaining claims against the MTA defendants is appropriate.

Of

the many allegations in plaintiffs’ prolix complaint, only a
small percentage concerns the MTA defendants, even before this

38

opinion.

More importantly, plaintiffs’ allegations against the

MTA defendants are limited to a single incident involving a
single plaintiff, Justin Sullivan, who does not assert claims
against any of the non-MTA defendants.

The occurrences giving

rise to Mr. Sullivan’s claims against the MTA are independent of
plaintiffs’

many

parties

spanning

and

unrelated
a

much

allegations
longer

time

involving
period.

separate
Given

the

infirmity of plaintiffs’ conspiracy allegations, discussed supra
Section

IV,

there

remains

no

unifying

scheme

linking

Mr.

Sullivan’s January 2012 arrest with the other incidents alleged.
See id. at 155-56 (granting severance where conspiracy claim was
insufficient).

The balance of factors here weighs in favor of

severance.

39

CONCLUSION

For the foregoing reasons,

we grant the motions to dismiss

brought by JPMC, Mitsui and the Brookfield defendants.

We grant

in part and deny in part the motion to dismiss brought by the
MTA defendants.
severance.

Dated:

We further grant the MTA defendants' motion for

This resolves Docket Nos. 41, 44, 48, and 51.

New York, New York
September~?, 2013

L~~~
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

40