Wright v. Manetta
Filing
21
OPINION & ORDER re: 13 MOTION to Dismiss . filed by Michael Manetta. For the reasons set forth above, defendant Michael Manetta's motion for judgment on the pleadings is GRANTED. Defendant Manetta is hereby DISMISSED from this ca se. By granting Officer Manetta's motion, the Court has dismissed the sole claim arising under federal law. As a result, a question arises as to the Court's supplemental jurisdiction to hear plaintiff's remaining state law claims. Se e 28 U.S.C. § 1367(c)(3); Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006). In a footnote in plaintiff's supplemental brief, he asserts that the action should not be dismissed as to Musanti on the ground that divers ity jurisdiction is proper. (Pl.'s Supp. Br. at 6 n.1.) As this issue has not been adequately briefed by the relevant parties as part of Officer Manetta's motion, the Court hereby orders plaintiff to show cause within 14 days setting for th in further detail why this action should not be dismissed for lack of federal subject matter jurisdiction in light of this decision. The Clerk of Court is directed to close the motion at ECF No. 13. (As further set forth in this Order), Michael Manetta terminated. (Signed by Judge Katherine B. Forrest on 2/5/2016) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
SCOTT WRIGHT,
:
:
Plaintiff,
:
:
-v:
:
NYPD OFFICER MICHAEL MANETTA and
:
JACQUELINE MUSANTI,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 5, 2016
14-cv-8976 (KBF)
OPINION & ORDER
Plaintiff Scott Wright, an African-American male, brought this action on
November 12, 2014, alleging that on November 21, 2013 he was subjected to
selective enforcement when defendant NYPD Officer Michael Manetta (“Officer
Manetta”) arrested and charged him with assault. Plaintiff alleges that his arrest
followed an altercation with defendant Jacqueline Musanti (“Musanti”), a
Caucasian female, whom Officer Manetta did not arrest or charge. The complaint
alleges one claim against Officer Manetta for selective enforcement pursuant to 42
U.S.C. § 1983, and three claims against Musanti for assault and battery, false
arrest, and malicious prosecution under New York law. (Compl., ECF No. 2.)
Pending before the Court is Officer Manetta’s motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c), based on two grounds. First, that
plaintiff fails to state a selective enforcement claim, and second, on the ground of
qualified immunity. (ECF No. 13.)
For the foregoing reasons, Officer Manetta’s motion is GRANTED. This
action is hereby dismissed as to him. In light of the Court’s dismissal of plaintiff’s
sole federal law claim, plaintiff is ordered to show cause within 14 days why this
action should not be dismissed for lack of federal subject matter jurisdiction.
I.
BACKGROUND
According to the allegations in the complaint, on November 21, 2013, at
around 9:10 a.m., plaintiff was walking to work, heading west on 39th Street
between Seventh Avenue and Eighth Avenue in New York, NY. (Compl. ¶¶ 9-10.)
Plaintiff alleges that he passed in front of defendant Musanti—who was also
walking west on 39th Street—and that in response Musanti shortly thereafter
intentionally kicked plaintiff twice in the back of his legs without provocation or
justification. (Compl. ¶¶ 11, 14.) Musanti subsequently threatened to kick plaintiff
again, yelled at him, and stood in plaintiff’s path as he tried to walk towards the
entrance of his office building. (Compl. ¶¶ 12-13.) In response, plaintiff “put his
hands up and lightly pushed Musanti out of the way.” (Compl. ¶ 13.) Musanti
responded by attacking plaintiff in an angry and hysterical manner. (Compl. ¶ 13.)
The complaint alleges that when Musanti did not stop her assault, plaintiff
grabbed Musanti by her coat and pulled her to the ground, trying to immobilize her.
(Compl. ¶ 16.) Shortly thereafter, a security guard from plaintiff’s office building
grabbed plaintiff from behind and separated plaintiff and Musanti. (Compl. ¶ 16.)
Musanti continued to attack plaintiff until the security guard released him, at
which time plaintiff entered his office building and proceeded to his office on the
sixth floor. (Compl. ¶ 17.) Plaintiff alleges that, after the incident, he had a bloody
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scratch on his face and other minor injuries, but that Musanti did not suffer any
injuries. (Compl. ¶¶ 19-20.)
Plaintiff alleges that at approximately 9:15 a.m., several NYPD officers,
including defendant Officer Manetta, entered plaintiff’s place of employment.
(Compl. ¶ 21.) Plaintiff alleges that the officers did not witness the altercation
described above, but rather had been called to the scene by Musanti; he alleges that
the officers informed him that Musanti “wanted to ‘press charges’ against him.’”
(Compl. ¶¶ 21-22.) Officer Manetta asked plaintiff what happened, and plaintiff
explained that Musanti had kicked him for no reason and then started attacking
him. (Compl. ¶ 23.) Another officer asked if Musanti hit plaintiff; when plaintiff
said that Musanti hit him and pointed out the scratches on his face, the officer
scoffed and said “I get scratched all the time.” (Compl. ¶ 23.) Plaintiff repeatedly
told the officers that he wanted to press charges against Musanti, but Officer
Manetta refused to take his complaint and told plaintiff that he could not press
charges against Musanti; Officer Manetta’s only proffered reason was “because you
can’t.” (Compl. ¶ 25.)
Officer Manetta arrested plaintiff, handcuffed him, and escorted plaintiff out
of his office. (Compl. ¶ 27.) Plaintiff was placed in the backseat of a patrol car and
waited outside the front of his office for about 45 minutes, during which time
plaintiff’s boss arrived and went to speak to plaintiff. (Compl. ¶ 27.) An
unidentified police officer—not Officer Manetta—said to plaintiff’s boss with
“malicious glee”, “Are you going to free him?” (Compl. ¶ 27.) Plaintiff was taken to
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the NYPD’s 14th Precinct, where he was booked and issued a desk appearance
ticket by Officer Manetta that charged plaintiff with assault in the third degree.
(Compl. ¶¶ 28-29.) Plaintiff alleges that during the booking process, Officer
Manetta told plaintiff, “more than likely your case will be dismissed in court.”
(Compl. ¶ 28.)
Plaintiff appeared for his arraignment in criminal court and pled not guilty
on January 6, 2014; at this point, plaintiff was charged with two counts of assault in
the third degree, one count of attempted assault in the third degree, and one count
of harassment in the second degree. (Compl. ¶ 31.) Plaintiff alleges that “all of the
charges against [him] were based on false and malicious accusations by Musanti.”
(Compl. ¶ 32.) Plaintiff was required to return to criminal court on at least six
additional occasions, until his case was dismissed on speedy trial grounds on
October 2, 2014. (Compl. ¶¶ 34, 36.)
Plaintiff filed his complaint on November 12, 2014, alleging one claim against
Officer Manetta under § 1983, and three claims against Musanti under New York
law. (ECF No. 2.)1 As to his § 1983 claim, plaintiff alleges that he was subjected to
selective treatment by Officer Manetta when Officer Manetta arrested and charged
plaintiff, but not Musanti, despite the fact that Officer Manetta knew Musanti to be
“an equal participant in the altercation.” (Compl. ¶¶ 41, 42.) Plaintiff alleges that
the only relevant differences between himself and Musanti—and thus the only
bases upon which Officer Manetta made his decision(s) as to whom to arrest—are
1 The complaint asserts federal subject matter jurisdiction under 28 U.S.C. § 1331 based on
plaintiff’s § 1983 claim; it asserts supplemental jurisdiction under 28 U.S.C. § 1367 as to plaintiff’s
state law claims. (Compl. ¶¶ 5-6.)
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that plaintiff is African-American and male whereas Musanti is Caucasian and
female. (Compl. ¶ 43.)
Officer Manetta filed an answer on February 2, 2015 (ECF No. 6), and
Musanti answered on March 13, 2015 (ECF No. 9). On April 29, 2015, Officer
Manetta brought the pending motion for judgment on the pleadings under Rule
12(c). (ECF No. 13.) Plaintiff filed an opposition brief on May 20, 2015 (ECF No.
16), and Officer Manetta filed a reply on May 27, 2015 (ECF No. 17).
On January 15, 2016, this action was reassigned to the undersigned. On
January 20, 2016, the Court ordered Officer Manetta to provide any additional
argument relating to the issue of his entitlement to qualified immunity no later
than January 27, 2016, and ordered plaintiff to provide any response no later than
February 3, 2016. (ECF No. 18.) Officer Manetta filed his supplemental brief on
January 27, 2016 (ECF No. 19), and plaintiff filed his response on February 3, 2016
(ECF No. 20).
II.
LEGAL STANDARDS
A.
Motion for Judgment on the Pleadings
Rule 12(c) provides that “[a]fter the pleadings are closed–but early enough
not to delay trial–a party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c). The same standard applicable to Rule 12(b)(6) motions applies to motions
brought under Rule 12(c). Bank of New York v. First Millennium, Inc., 607 F.3d
905, 922 (2d Cir. 2010). Thus, the court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the non-moving party’s
favor, id., and a complaint may be dismissed where it fails to plead “enough facts to
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state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Under Rule 12(c), the movant bears the burden of
establishing “that no material issue of fact remains to be resolved and that it is
entitled to judgment as a matter of law.” Juster Assocs. v. City of Rutland, Vt., 901
F.2d 266, 269 (2d Cir. 1990) (quotation marks and alteration omitted).
B.
Selective Enforcement
A selective enforcement claim rests on principles of equal protection.
LaTrieste Rest. & Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir.
1994). To prevail on a claim for selective enforcement, a plaintiff must show that:
“‘(1) the person, compared with others similarly situated, was selectively treated;
and (2) that such selective treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person.’” Lisa’s Party City, Inc. v.
Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999) (quoting LaTrieste Rest., 40 F.3d
at 590); see also Annis v. Cnty. of Westchester, 136 F.3d 239, 247-48 (2d Cir. 1988)
(affirming that gender constitutes an impermissible consideration).
“‘A showing that the plaintiff was treated differently compared to others
similarly situated’ is a ‘prerequisite’ and a ‘threshold’ matter to a selective
treatment claim.” Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp.
2d 679, 692 (S.D.N.Y. 2011) (quoting Church of the Am. Knights of the Ku Klux
Klan v. Kerik, 356 F.3d 197, 210 (2d Cir. 2004)). Courts within this Circuit have
held that individuals are similarly situated for purposes of selective enforcement
claims when they are “similarly situated in all material respects.” Id. at 696; see
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Missere v. Gross, 826 F. Supp. 2d 542, 461 (S.D.N.Y. 2011) (stating that some courts
have framed the standard as whether “‘a prudent person, looking objectively at the
incidents, would think them roughly equivalent’” (quoting Yajure v. DiMarzo, 130 F.
Supp. 2d 568, 572 (S.D.N.Y. 2001))). A plaintiff’s “naked assertions of
discrimination” are insufficient to survive the pleading stage. Liang v. City of New
York, No. 10-CV-3089 (ENV)(VVP), 2013 WL 5366394, at *11 (E.D.N.Y. Sept. 24,
2013).
Defendant argues that the standard for asserting a selective enforcement
claim is the same as that for a “class of one” claim. (Def.’s Opening Br. at 5-6, ECF
No. 15; see also Def.’s Reply Br. at 2, ECF No. 17.) A “class of one” claim arises
when a plaintiff alleges that he has been “intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). There is
disagreement within this Circuit as to whether “similarly situated” means the same
thing in the context of a selective enforcement claim—in which the plaintiff claims
selective treatment on the basis of an impermissible factor (e.g. race, gender, etc.)—
as it does in the context of a class of one claim. E.g., Mosdos Chofetz Chaim, 815 F.
Supp. 2d at 693-97 (collecting and comparing cases); Viteritti v. Inc. Vill. of
Bayville, 918 F. Supp. 126, 134-35 (E.D.N.Y. 2013) (collecting and comparing cases).
In order to establish a class of one claim, a plaintiff must show that: (1) “no
rational person could regard the circumstances of the plaintiff to differ from those of
a comparator to a degree that would justify the differential treatment on the basis
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of a legitimate government policy”, and (2) “the similarity in circumstances and
different in treatment are sufficient to exclude the possibility that the defendants
acted on the basis of a mistake.” Ruston v. Town Bd. for Town of Skaneateles, 610
F.3d 55, 60 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d
Cir. 2006)). While the Second Circuit’s formulations as to the elements necessary to
establish selective treatment and class of one claims are nearly equivalent, a
number of district courts have found that the similarly situated standard is
“slightly less stringent in the selective enforcement context.” Mosdos Chofetz
Chaim, 815 F. Supp. 2d at 696; see also Gentile v. Nutty, 769 F. Supp. 2d 573, 580
(S.D.N.Y. 2011); Mangino v. Inc. Vill. of Patchogue, 739 F. Supp. 2d 205, 255-56
(E.D.N.Y. 2010). To the extent that the similarly situated standard applicable to
class of one claims is more stringent than that applicable to selective enforcement
claims, the class of one standard is not relevant here. Plaintiff clearly alleges a
traditional selective enforcement claim—based on the impermissible factors of race
and gender—rather than a class of one claim. In any event, the Court does not rely
on the above (slightly more stringent standard) from Ruston and Clubside in
resolving defendant’s motion, although the Court’s reasoning would apply with
equal force if that standard governed here.
C.
Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
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Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity should be decided at the
earliest possible stage in litigation. Id. at 232; see also Mitchell v. Forsyth, 472 U.S.
511, 526 (1985) (“Unless the plaintiff’s allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.”). Qualified immunity may be
granted at the pleading stage where “the facts supporting the defense appear[ ] on
the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004).
“A Government official’s conduct violates clearly established law when, at the
time of the challenged conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is doing violates that
right.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and
alterations omitted). While there need not be a case directly on point, “existing
precedent must have placed the statutory or constitutional question beyond debate.”
Id. Even if a right is clearly established, an officer is entitled to qualified immunity
in circumstances where it “was objectively reasonable for the officer to believe the
conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154
(2d Cir. 2013) (quotation marks omitted). Qualified immunity “‘gives ample room
for mistaken judgments by protecting all but the plainly incompetent or those who
knowingly violate the law.’” Rogoz v. City of Hartford, 796 F.3d 236, 247 (2d Cir.
2015) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
III.
DISCUSSION
Officer Manetta argues that he is entitled to judgment on the pleadings
under Rule 12(c) because plaintiff has failed to plausibly allege the elements
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necessary to establish a selective enforcement claim and, alternatively, on the basis
that he is entitled to qualified immunity. For the reasons set forth below, the Court
dismisses plaintiff’s selective enforcement claim on both grounds.
First, plaintiff has failed to plausibly allege the initial, threshold requirement
of a selective enforcement claim, which is that he was subjected to selective
treatment when compared with others that were similarly situated to him. Lisa’s
Party City, 185 F.3d at 16; Mosdos Chofetz Chaim, 815 F. Supp. 2d at 692. The
only individual whom plaintiff alleges he was similarly situated to is Musanti, the
other participant in the incident that gave rise to plaintiff’s arrest. As defendant
correctly points out, however, plaintiff’s own allegations clearly show that plaintiff
and Musanti were not similarly situated in at least one highly relevant and
material respect. The material distinction is, namely, that after the altercation
concluded, Musanti immediately contacted the police to report the incident, whereas
plaintiff proceeded to his office and did not contact the authorities. (Compl. ¶¶ 17,
21-22.) In his opposition brief, plaintiff concedes that an inference—as “equally
valid” as any other alternative—to have been drawn from the facts and
circumstances known to Officer Manetta and the other officers who carried out the
arrest was that plaintiff was at fault for the bulk of the incident. (Pl.’s Opp. Br. at
5, ECF No. 16.)
The distinction between Musanti calling the police and plaintiff not doing so
is highly significant in light of plaintiff’s allegation that the police officers who
entered his office and arrested him, including Officer Manetta, were not present
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during the altercation with Musanti. (Compl. ¶ 21.) As such, plaintiff alleges that
the only information known to the officers when they entered his office was that
Musanti had called the police to the scene to report the altercation and that
plaintiff, who had visible scratches on his face, had left the scene and decided not to
actively involve the authorities. The complaint also alleges that plaintiff did not
indicate an intention to “press charges” until after officers had arrived to question
him and had informed him that Musanti sought to “press charges” against him.
(Compl. ¶ 22.) The Court’s determination that the distinctions between plaintiff
and Musanti are material is further supported by the fact that the probable cause
standard, used to measure the legality of an arrest, “depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of
the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).2
Second, even if the allegations in the complaint sufficiently pled a selective
enforcement claim, the Court concludes, in the alternative, that Officer Manetta is
entitled to qualified immunity. As explained above, Officer Manetta is entitled to
qualified immunity to the extent that his conduct did not “violate clearly
established statutory or constitutional rights of which a reasonable person would
have known,” Pearson, 555 U.S. at 231, or if it “was objectively reasonable for [him]
to believe the conduct at issue was lawful,” Gonzalez, 728 F.3d at 154.
2 To the extent that plaintiff seeks to rely on allegations that officers other than Officer Manetta
made stray comments that raise an inference of maliciousness or improper motive (e.g. plaintiff’s
allegation that an officer stated with “malicious glee” to plaintiff’s employer, “Are you going to free
him?” (Compl. ¶ 27)), such allegations are irrelevant because plaintiff does not allege that Officer
Manetta endorsed or adopted any such statement, and plaintiff provides no other basis to impute
such comments to Officer Manetta.
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As alleged in the complaint, the facts known to Officer Manetta and his
fellow officers regarding plaintiff’s altercation with Musanti were that Musanti
decided to immediately call the police to the scene, while plaintiff left the scene and
chose not to call the police. Plaintiff himself acknowledges this distinction. (E.g.,
Pl.’s Supp. Br. at 4, ECF No. 20.) Furthermore, as discussed above, plaintiff did not
indicate to the officers that he sought to press charges until after he had been
informed that Musanti sought to press charges against him.
Based on those facts, which the Court derives solely from plaintiff’s own
allegations, it cannot be said that Officer Manetta violated a clearly established
right of which a reasonable person would have known. At the very least, it was
objectively reasonable under these circumstances for Officer Manetta to believe—
and plaintiff cites no governing precedent to the contrary—that he was acting in
accordance with the law in arresting and charging plaintiff, but not arresting and
charging Musanti. Zahra v. Town of Southhold, 48 F.3d 674, 687 (2d Cir. 1995)
(stating that qualified immunity determination is based on “objective
reasonableness of [the defendant’s] actions at the time, and is not a subjective
inquiry into their personal motives”). To the extent that plaintiff seeks to defeat
Officer Manetta’s motion with allegations that Officer Manetta and other officers
exhibited malice, that argument cannot defeat the availability of Officer Manetta’s
qualified immunity where his conduct was objectively reasonable. Id. at 687-88;
Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991).
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IV.
CONCLUSION
For the reasons set forth above, defendant Michael Manetta’s motion for
judgment on the pleadings is GRANTED. Defendant Manetta is hereby
DISMISSED from this case.
By granting Officer Manetta’s motion, the Court has dismissed the sole claim
arising under federal law. As a result, a question arises as to the Court’s
supplemental jurisdiction to hear plaintiff’s remaining state law claims. See 28
U.S.C. § 1367(c)(3); Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d
Cir. 2006). In a footnote in plaintiff’s supplemental brief, he asserts that the action
should not be dismissed as to Musanti on the ground that diversity jurisdiction is
proper. (Pl.’s Supp. Br. at 6 n.1.) As this issue has not been adequately briefed by
the relevant parties as part of Officer Manetta’s motion, the Court hereby orders
plaintiff to show cause within 14 days setting forth in further detail why this
action should not be dismissed for lack of federal subject matter jurisdiction in light
of this decision.
The Clerk of Court is directed to close the motion at ECF No. 13.
SO ORDERED.
Dated:
New York, New York
February 5, 2016
KATHERINE B. FORREST
United States District Judge
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