Berg et al v. Kelly et al
OPINION re: 55 FIRST MOTION to Dismiss. filed by Peter Volaire, Joseph Diaz, Douglas Sheehan, Nathan Collins, Michael Casale, Thanya Duhaney, Chris Defeo, Raymond Kelly, Matthew Gresswell, Brenda Batcher, Francisco Costa, Mathew Betting, Michael Ro der, Stephen Mazzard, Christopher Clark, Cynthia Boyle, James Gatto, Jesse Cotton, Dixon Su, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, Stephen Carolan, Yesenia Ayala. The motion to dismiss is denied. (Signed by Judge Thomas P. Griesa on 11/21/2013) (djc) Modified on 11/22/2013 (djc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PHEOBE BERG, TOSHIRO KIDA, JOHN
RIVERA, DANYA ROZENTAL and
JOHNATHAN JETTER, individually and
on behalf of a class of all others similarly :
– against –
NEW YORK CITY POLICE
COMMISSIONER RAYMOND KELLY,
CHIEF OF NEW YORK CITY POLICE
DEPARTMENT JOSEPH ESPOSITO, et
12 Civ. 3391 (TPG)
Plaintiffs bring this class action complaint alleging that officers of
the New York City Police Department (“NYPD”) violated plaintiffs’ rights
under the First, Fourth, and Fourteenth Amendments of the United
States Constitution and their rights under the Constitution of the State
of New York. The alleged violations occurred on November 30, 2011.
Plaintiffs attended a protest as part of the Occupy Wall Street movement,
and NYPD officers allegedly refused to allow plaintiffs to exit a barricaded
area for approximately two hours. On March 6, 2013, defendants moved
for judgment on the pleadings for failure to state a claim and failure to
fulfill conditions precedent to suit.
Defendants’ motion to dismiss is denied.
Plaintiffs Phoebe Berg, Toshiro Kida, John Rivera, Dayna Rozental,
Jonathan Jetter, and others similarly situated are protesters affiliated
with the Occupy Wall Street movement. Defendants are named and
unnamed NYPD officers, including Police Commissioner Raymond Kelly
and Chief of the New York City Police Department Joseph Esposito.
At 8:00 p.m. on November 30, 2011, plaintiffs attended a
demonstration with approximately 100 other protestors outside the
Sheraton Hotel, located on Seventh Avenue between 52nd and 53rd Street.
Plaintiffs chose this time and place for their demonstration because they
knew that President Obama planned to attend a fundraising event at the
hotel that evening. Defendants erected barricades in a “U” shape across
the street from the Sheraton Hotel at the southwest corner of 53rd Street.
The barricade extended west on 53rd Street toward Broadway for
approximately 100 feet, creating an opening for entry and exit on 53rd
When plaintiffs arrived, NYPD officers locked the barricades and
told plaintiffs that they were only permitted to stand within the
barricaded area. At 8:41 p.m., defendants brought additional barricades
to close the opening of the area in which plaintiffs were standing. These
barricades converted the “U”-shaped area into a confined, rectangular
pen. Plaintiffs allege that defendants allowed tourists and journalists to
exit the barricaded area but threatened to arrest plaintiffs if they tried to
leave. Defendants allegedly told plaintiffs that they were being held
because they were protestors.
Plaintiffs claim that defendants only permitted protestors who
became ill to leave if they were taken by ambulance. For example,
paramedics took one protestor, Lisa Rubenstein, out of the pen after she
fainted inside the closed area. Plaintiff Jetter was not allowed to leave
despite feeling ill and suffering from a fever. Ultimately, the NYPD
officers allegedly held plaintiffs in the pen for one hour and forty-five
minutes and neither arrested them nor charged them with any crime.
Plaintiffs plan to attend future demonstrations affiliated with the
Occupy Wall Street movement but allege that they have thus far avoided
such demonstrations for fear of becoming trapped in an NYPD-erected
In deciding a motion for judgment on the pleadings pursuant to
Fed. R. Civ. P. 12(c), the court “appl[ies] the same standard as that
applicable to a motion under Rule 12(b)(6), accepting the allegations
contained in the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party.” King v. Am. Airlines, Inc., 284 F.3d
352 (2d Cir. 2002). A Rule 12(c) motion is granted only where “from the
pleadings, the moving party is entitled to judgment as a matter of law.”
Dargahi v. Honda Lease Trust, 370 Fed. App’x 172, 174 (2d Cir. 2010).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must plead sufficient facts to state a claim to relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). In deciding such a
motion, the court must accept as true the facts alleged in the complaint
but not its legal conclusions. Iqbal, 556 U.S. at 678-79. The court must
also draw all reasonable inferences in the plaintiff's favor and may
consider documents attached to the complaint, incorporated by reference
into the complaint, or known to and relied on by the plaintiff in bringing
the suit. ATSI Commc'ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d
Cir. 2007). The court may also consider documents that are integral to a
plaintiff’s claims if the plaintiff would have had actual notice of the
documents at the time the complaint was drafted. Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).
The legal standards relating to the constitutional and statutory
provisions relied on are well known and need no reiteration here.
Dealing with the complaint in this case, it is a close question as to
whether it states a valid cause of action for violation of constitutional
rights. Plaintiffs allege that they were confined behind barricades on a
street for almost two hours. However, the police were carrying out their
duty to protect the President of the United States, who was visiting the
hotel outside of which plaintiffs were protesting. It is well known that
extraordinary steps are taken to protect the President.
Plaintiffs claim that the police went too far and sUbjected plaintiffs
to a confinement beyond that which was necessary to protect the
President. The police obviously take the other view.
The court believes that it is not appropriate at this stage to rule on
the merits of the case. Thus, the court declines to dismiss the action.
However, a summary judgment motion, or cross-summary
judgment motions, may be appropriate in order to avoid a drawn-out
litigation with full discovery and trial. The court will confer with counsel.
The motion to dismiss is denied.
Dated: New York, New York
Thomas P. Griesa
U.S. District Judge
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