Hays v. City of New York et al
OPINION AND ORDER re: 43 SECOND MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b). filed by Rick Lee, Dennis Byrnes, Kino Cox, City of New York. If the sheer quantity of a plaintiff's claims could be sufficient to survive a motion to dismiss, Hays's Complaint would surely live to see another day. But even construing her pleadings liberally, her twenty some-odd claims fall well short of meeting the plausibility standard. Accordingly, and for the reasons stated a bove, Defendants' motion to dismiss is GRANTED, and the Complaint is DISMISSED in its entirety. The only remaining question is whether Hays should be granted leave to amend her Complaint. Although leave to amend a complaint should be freely g iven "when justice so requires," Fed.R.Civ.P. 15(a)(2), and courts should generally grant pro se plaintiffs leave to amend "at least once when a liberal reading of the complaint gives any indication that a valid claim might be state d," Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam) (internal quotation marks omitted), it is "within the sound discretion of the district court to grant or deny leave to amend," McCarthy v. Dun & Bradstr eet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Exercising that discretion here, the Court declines to grant Hays leave to amend the Complaint sua sponte. First, a district court may deny leave to amend when, as here, amendment would be futile becau se the problems with a plaintiff's claims are "substantive" and "better pleading will not cure" them. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Second, Hays was already granted leave to amend her complaint to cur e deficiencies raised in Defendants' first motion to dismiss and was explicitly cautioned that she "w[ould] not be given any further opportunity to amend the complaint to address issues raised by the motion to dismiss." (Docket No. 28). Finally, she "has not requested permission to file a Second Amended Complaint, nor has [s]he given any indication that [s]he is in possession of facts that would cure the problems" identified in the instant motion to dismiss. Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014). This Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Memorandum Opinion and Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate Docket No. 43 and to close the case. (Signed by Judge Jesse M. Furman on 2/28/2017) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CITY OF NEW YORK, et al.,
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Nadine Hays, proceeding pro se, brings a veritable potpourri of civil rights
claims against the City of New York (the “City”), officers of the New York City Police
Department (“NYPD”), and other City officials arising principally out of her arrest for using an
unauthorized sound amplification device on the anniversary of the Occupy Wall Street protests.
Defendants who have been served and appeared now move, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, to dismiss Hays’s claims in their entirety. (Docket No. 43).
For the reasons stated below, Defendants’ motion to dismiss is GRANTED, and the First
Amended Complaint (the “Complaint”) is dismissed in its entirety.
The following facts — which are taken from the Complaint, materials it incorporates
(including a video of the primary incident at issue), and matters of which the Court may take
judicial notice — are construed in the light most favorable to Hays. See, e.g., Kleinman v. Elan
Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011). 1
Hays incorporates by reference a video of the primary incident at issue. (Docket No. 34
(“First Am. Compl.”) ¶ 35 n.1). Although that video is no longer available at the youtube link
On September 17, 2013, the second anniversary of the Occupy Wall Street movement,
Hays set up an “educational presentation” at Zuccotti Park in New York City. (Docket No. 34
("First Am. Compl.") ¶¶ 26-30). She brought with her various materials, including “a portable
amplification speaker and microphone, a plasma screen monitor, a deep cycle battery, an
inverter, a computer, and a hand truck.” (Id. ¶¶ 27). A police officer approached Hays to ask her
if she had a permit to use an amplification device, to which she responded: “Yes, it’s called the
First Amendment to the U.S. Constitution.” (Id. ¶ 31). According to Hays, she had case law
with her showing that her actions were protected by the First Amendment and that no permit was
necessary, but the police officers at the scene “refused to talk to [her]” or “listen to [her].” (Id.
¶¶ 33-34). When Officers Dennis Byrnes and Kino Cox from the Bronx Task Force arrived on
the scene, they bound Hays’s wrists with plastic zip-lock ties and took her into custody. (Id.
¶¶ 40, 44). Hays alleges that this caused her “excruciating pain,” prompting her to “scream in
agony” and “cry uncontrollably.” (Id. ¶¶ 40-42). The Officers also confiscated Hays’s
presentation materials and other personal possessions that she had with her at the time. (Id.
¶ 43). Hays was transported to the Manhattan Detention Complex, where Officers took her
picture and fingerprints and charged her with operating a sound production device in a public
area, refusing to move, and obstruction of governmental administration. (Id. ¶ 47, 63; id. Ex. 12
(“Charging Doc.”)). Thereafter, she was brought before a judge and released without bail. (First
Am. Compl. ¶¶ 66-69). 2 After her release, Hays recovered her credit cards and driver’s license
that she provides, Defendants have submitted a copy of the video (Docket No. 45 (“Defs.’
Mem.”) Ex. C), and Hays does not appear to dispute that it is the same as the video upon which
she relied. Accordingly, the Court may — and does — rely on it.
At some point, Hays was also taken to Bellevue Hospital, where she received a medical
and psychological evaluation. (Id. ¶¶ 56-61). She alleges that she “lost track of the time” while
waiting at the hospital, but was there for “at least 8-10 hours.” (Id. ¶ 61).
from the police station and was given receipts for her other items. (Id. ¶¶ 72-74). When Hays
tried to recover the rest of her property the next day, she was informed that it had been labeled
“arrest evidence” and could not be returned until a later date. (Id. ¶¶ 80-81). She made a
separate trip back to New York City (presumably from her home in California) to recover the
remainder of her property, two items of which she alleges were lost or damaged. (Id. ¶ 82).
The criminal charges against Hays were dropped in April 2014. (Id. ¶ 83). Later that
same year, in advance of the third anniversary of the Occupy Wall Street protests, Hays applied
for an amplification permit. (Id. ¶ 86). Detective Rick Lee first told her that she had been
granted the permit, but when she went to the police station to pick it up she was told that her
application had actually been denied. (Id.; id. Ex. 18). Hays brings a litany of claims arising
from both incidents, including claims for false arrest and imprisonment, unlawful seizure,
excessive force, unlawful conditions of confinement, violation of the First Amendment,
conspiracy to interfere with her civil rights, and violations of privacy. Hays alleges that, as a
result of her arrest and detention, she suffers from Post Traumatic Stress Disorder, short term
memory loss, tangential thoughts, and panic attacks. (First Am. Compl. ¶¶ 22, 81, 102-104).
In evaluating Defendants’ motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all facts set forth in the Complaint as true and draw all reasonable inferences in Hays’s
favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per
curiam). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts
sufficient “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). A plaintiff must show “more than a sheer possibility that a defendant has acted
unlawfully,” id., and cannot rely on mere “labels and conclusions” to support a claim, Twombly,
550 U.S. at 555. If the plaintiff’s pleadings “have not nudged [his or her] claims across the line
from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.
Finally, because Hays is proceeding pro se, her Complaint “must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Nonetheless, a pro se litigant must still
state a plausible claim for relief. Put another way, the Court’s duty to liberally construe a
plaintiff’s complaint is not the equivalent of a duty to re-write it.” Thomas v. N.Y. City Dep’t of
Educ., No. 15-CV-8934 (JMF), 2016 WL 4544066, at *2 (S.D.N.Y. Aug. 31, 2016) (internal
quotation marks, citation, and alterations omitted).
Hays brings at least twenty claims against the City and the individual Defendants. Count
One is for false arrest and imprisonment; Count Two is for unlawful seizure; Count Three is for
excessive force; Count Four is for unconstitutional policies, practices, and customs; Counts Five
and Six are for negligent failure to train, supervise, and investigate; Count Seven is for violations
of the First Amendment; Count Eight is for abuse of process and unequal protection of the law;
Count Nine is for intentional and negligent infliction of emotional distress; Count Ten is for
cruel and unusual conditions of confinement; Count Eleven is for fingerprinting, photographing,
and iris scanning without a warrant; Count Twelve alleges the existence of an unconstitutional
ordinance; Count Thirteen is for failure to discharge a mandatory duty; Count Fourteen is for
trespass to chattels; Count Fifteen is for conspiracy to interfere with civil rights; Counts Sixteen
and Nineteen are for defamation of character and false light; Counts Seventeen and Eighteen are
for assault and battery; and Count Twenty is for failure to intervene. The Court will address the
claims in turn, except insofar as multiple claims can be addressed together.
A. False Arrest, False Imprisonment, and Similar Claims
Hays’s claims for false arrest, false imprisonment, and abuse of process turn on the
propriety of her arrest. As a matter of law, those claims fail if there was probable cause to arrest
and prosecute Hays for an offense. See, e.g., Betts v. Shearman, 751 F.3d 78, 81 (2d Cir. 2014).
Probable cause to arrest exists if an arresting officer has actual “knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a
crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). A court should consider the “totality
of the circumstances” in evaluating whether the “facts available to the officer at the time of
arrest” meet that bar. Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (internal
quotation marks omitted). Significantly, it is enough that probable cause existed, and — at least
for purposes of a false arrest claim — it is irrelevant “whether probable cause existed with
respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer
at the time of arrest.” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006); accord Figueroa v.
Mazza, 825 F.3d 89, 99-100(2d Cir. 2016). Moreover, even in the absence of probable cause, a
police officer is entitled to qualified immunity if the probable cause determination was
objectively reasonable — that is, whether there was “arguable” probable cause to arrest. Jenkins
v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007).
Hays alleges that the Officers lacked probable cause to arrest her because a document
from the New York State Unified Court System states “not an arrest charge, [a]rraignment
charge” with respect to two of the three charges brought against her: use of a sound amplification
device without a permit and refusal to move. (First Am. Compl. ¶ 109; see Charging Doc.).
That may be true, but it is irrelevant. By statute, violation of the sound amplification ordinance
is punishable by fine, imprisonment, or both, see N.Y.C. Admin. Code § 10-108(j)(1), and a
police officer may arrest a person for “any offense when he has probable cause to believe that
such person has committed the offense in his presence,” McMillan v. City of New York, No. 03CV-626 (SLT) (LB), 2009 WL 261478, at *8 (E.D.N.Y. Feb. 4, 2009) (internal quotation marks
and alteration omitted); see also N.Y. Penal Law § 10.00 (defining “offense” as “conduct for
which a sentence to a term of imprisonment or to a fine is provided by . . . local law or
ordinance.”). Regardless, the third charge (which was labelled “arrest charge” on the charging
document) was for “Obstruction of Governmental Administration,” in violation of Section
195.05 of the New York Penal Law. (Charging Doc.). And there was plainly probable cause
(and certainly arguable probable cause) for the Officers to arrest Hays for that offense after she
made it clear to them that she did not have the permit for sound amplification, as required by the
City ordinance, and continued to use her portable speaker and microphone after the Officers
directed her to cease and desist. (First Am. Compl. ¶¶ 32-35; Defs.’ Mem. Ex. C, at 00:5006:31). In short, because there was probable cause to arrest Hays, her false arrest, false
imprisonment, and abuse of process claims are dismissed.
To the extent that Hays’s other claims — including her claims for unlawful seizure and
warrantless fingerprinting, photographing, and iris scanning (First Am. Compl. ¶¶ 116-19, 125,
213-219) — are premised on seizure of her person (rather than her property), they fail for the
same reasons. See, e.g., Jackson v. City of New York, 29 F. Supp. 3d 161, 178-79 (E.D.N.Y.
2014) (considering claims for false arrest, false imprisonment, and seizure of the person
together). Additionally, it is well established that “the Fourth Amendment allows police to take
certain routine administrative steps incident to arrest — i.e., booking, photographing, and
fingerprinting.” Maryland v. King, 133 S. Ct. 1958, 1977 (2013) (internal quotation marks and
alterations omitted); see also N.Y. Crim. Pro. Law § 160.10(1) (mandating that a person arrested
for a felony or a misdemeanor be fingerprinted). The Court need not address whether iris
scanning qualifies as such a “routine administrative step” because Hays concedes in her
Complaint that no iris scan was actually performed. (First Am. Compl. ¶ 64; Defs.’ Mem. 5 n.4).
Accordingly, all of Hays’s claims based on seizure of her person — whether for false arrest, false
imprisonment, or otherwise — are dismissed.
B. Unlawful Seizure and Related Claims
Hays’s unlawful seizure claims are otherwise premised on the confiscation of her
property at the time that she was arrested, including “irreplaceable bills[,] . . . [her] cell phone,
computer, GPS, car battery, power inverter, make-up suitcases, DVD’s, papers, plasma screen
television, projector, power strip, and hand truck.” (First Am. Compl. ¶¶ 43, 119-122). It is well
established that “[a] ‘seizure’ of property occurs when there is some meaningful interference
with an individual’s possessory interest in that property.” United States v. Jacobsen, 466 U.S.
109, 113 (1984). Nevertheless, the Defendant Officers were plainly permitted to seize the
property in Hays’s possession at the time of her lawful arrest and to then retain evidence of her
alleged crimes pending conclusion of the criminal proceedings. See United States v. Herron, 18
F. Supp. 3d 214, 223 (E.D.N.Y. 2014). They were also entitled to retain Hays’s “personal
effects” for “safekeeping” for the duration of the custodial arrest. (First Am. Compl. Ex. 17
(“Property Vouchers”)). See Herron, 18 F. Supp. 3d at 224; see also United States v. Cancel,
167 F. Supp. 3d 584, 595-96 (S.D.N.Y. 2016).
To the extent that Hays alleges that Defendants unlawfully retained some of her personal
property after the arrest, the claim would arise under the Due Process Clause of the Fourteenth
Amendment rather than the Fourth Amendment. See Shaul v. Cherry Valley-Springfield Cent.
Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004). To state such a due process claim, however, a
plaintiff must demonstrate either that: (1) she “was never given proper notice of the postdeprivation state law remedies” or (2) “the post-deprivation remedies available under state law
were inadequate.” Sommerville v. Wright, No. 12-CV-165 (KAM) (JMA), 2014 WL 794275, at
*4 (E.D.N.Y. Feb. 25, 2014) (internal quotation marks omitted). Hays does neither here. She
concedes that she was given vouchers for her property after she was released and does not allege
that those vouchers were legally insufficient. (First Am. Compl. ¶¶ 73-74; Property Vouchers 2,
4, 7, 9, 14). And she makes no claim that her post-deprivation remedies were inadequate. (First
Am. Compl. ¶¶ 116-125).
For substantially the same reasons, Hays’s state law claim for trespass to chattels also
fails. To make out a claim for trespass to chattels under New York law, plaintiffs must allege
that “(1) defendants acted with intent, (2) to physically interfere with (3) plaintiff[’s] lawful
possession, and (4) harm resulted.” Biosafe-One, Inc. v. Hawks, 639 F. Supp. 2d 358, 368
(S.D.N.Y. 2009), aff’d, 379 F. App’x 4 (2d Cir. 2010). To satisfy the intent element, “the
defendant must act with the intention of interfering with the property or with knowledge that
such interference is substantially certain to result.” Id. at 368-69. Here, Hays fails to allege any
facts in support of her conclusory assertion that retention of personal property was “intentional.”
Moreover, she does not even name as defendants the Officers who would have been responsible
for inventorying, mislabeling, and retaining her property. (First Am. Compl. ¶¶ 80-82).
Accordingly, her trespass to chattels claim must be and is dismissed.
Finally, Hays claims that seizure of her hand truck violated the Americans with Disability
Act (“ADA”), 42 U.S.C. § 12101 et seq. (First Am. Compl. ¶ 124), but that claim fails on
multiple grounds. First, there is no individual liability under the ADA. See, e.g., Fox v. State
Univ. of New York, 497 F. Supp. 2d 446, 451 (E.D.N.Y. 2007). Additionally, she fails to allege
facts plausibly suggesting she was “disabled” within the meaning of the ADA, that the arresting
Officers were aware of any disability, that use of the hand truck constituted a “reasonable
accommodation,” or that she suffered injury or indignity as a result of the Officers’ conduct.
See, e.g., Woods v. City of Utica, 902 F. Supp. 2d 273, 280 (N.D.N.Y. 2012) (“An arrestee can
establish liability under the ADA . . . by showing defendants failed to provide a reasonable
accommodation for his disability during the course of the arrest and post-arrest, causing him to
suffer greater injury or indignity than other arrestees.” (internal quotation marks omitted)).
Hays’s claim under the ADA is therefore dismissed as well.
C. Excessive Force, Assault and Battery, and Similar Claims
Next, Hays alleges two discrete incidents of excessive force: one during her arrest, when
Officer Byrnes “tightly cinched the plastic zip-lock on [her] very arthritic wrists,” and one while
she was in custody, when Officer Byrnes “threw [her] up against a wall” and dragged her
“backwards by the handcuffs.” (First Am. Compl. ¶¶ 127-28). The former is analyzed under
the Fourth Amendment, see Graham v. Connor, 490 U.S. 386, 395 (1989), while the latter is
analyzed under the Due Process Clause of the Fourteenth Amendment, see, e.g., Holland v. City
of New York, 197 F. Supp. 3d 529, 545 (S.D.N.Y. 2016). For present purposes, however, the
incidents can be treated together because, to be actionable under either Amendment, the conduct
at issue must be “sufficiently serious . . . to reach constitutional dimensions.” Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (internal quotation marks omitted); see Graham, 490
U.S. at 396 (“Not every push or shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.” (internal quotation marks and citation
omitted)). In the case of allegedly tight handcuffing, that requires a plaintiff to plead and prove
“some injury beyond temporary discomfort.” Usavage v. Port Auth. of N.Y. & N.J., 932 F. Supp.
2d 575, 592 (S.D.N.Y. 2013) (internal quotation marks omitted). The injuries “need not be
severe or permanent,” Vogeler v. Colbath, No. 04-CV-6071 (LMS), 2005 WL 2482549, at *9
(S.D.N.Y. Oct. 6, 2005), but they must be more than de minimis, see Washpon v. Parr, 561 F.
Supp. 2d 394, 407 (S.D.N.Y. 2008); see also Esmont v. City of New York, 371 F. Supp. 2d 202,
Applying those standards here, Hays’s excessive force claims fall short. First, with
respect to the allegedly tight handcuffing, she claims only to have been in pain until the
handcuffs were removed (First Am. Compl. ¶ 127), and does not allege any “specific physical
injuries.” Boley v. Durets, No. 12-CV-4090 (ARR) (JO), 2013 WL 6562445, at *8–9 (E.D.N.Y.
Dec. 10, 2013). And with respect to the alleged interaction with Officer Byrnes, although she
claims that she was “screaming in agony and crying uncontrollably” during the incident, she
repeatedly confirms that her injuries were limited to her previously existing psychological
conditions. (First Am. Compl. ¶¶ 22, 128-130, id. Exs. 3-4; Docket No. 48 (“Pl.’s Opp’n”) 1618). Accordingly, Hays’s excessive force claims against Officer Byrnes fail as a matter of law.
See, e.g., Marom v. City of New York, No. 15-CV-2017 (PKC), 2016 WL 916424, at *7
(S.D.N.Y. Mar. 7, 2016), reconsideration granted in part, 2016 WL 5900217 (S.D.N.Y. July 29,
2016); Johnson ex rel. Johnson v. County of Nassau, No. 09-CV-4746 (JS) (MLO), 2010 WL
3852032, at *3 (E.D.N.Y. Sept. 27, 2010); Russo v. Port Auth. of N.Y. & N.J., No. 06-CV-6389
(RRM) (CLP), 2008 WL 4508558, at *5 (E.D.N.Y. Sept. 30, 2008). Her claims against other
Officers in the vicinity, for alleged failure to intervene (First Am. Compl. ¶¶ 250-252), are
likewise dismissed. See Foy v. City of New York, No. 03-CV-7318 (HB), 2004 WL 2033074, at
*3 (S.D.N.Y. Sept. 10, 2004) (“[T]here can be no failure to intervene where there was no
Hays’s state law claims based on the same incidents — for assault and battery, intentional
infliction of emotional distress, and negligent infliction of emotional distress (First Am. Compl.
¶¶ 193-97, 241-245; see Pl.’s Opp’n 24-25) — must also be dismissed. First, her assault and
battery claims fail for the same reasons as her excessive force claims. See Green v. City of
Mount Vernon, 96 F. Supp. 3d 263, 295 (S.D.N.Y. 2015) (“Assault and battery claims, when
alleged against a police officer, are evaluated like excessive force claims.”); Pelayo v. Port
Auth., 893 F. Supp. 2d 632, 642 (S.D.N.Y. 2012) (“Similar to a claim for excessive force under
[Section] 1983, a state law claim for battery against a police officer in the course of an arrest
requires the plaintiff to prove that the officer’s use of force was excessive or objectively
unreasonable under the circumstances.” (internal quotation marks omitted)). Second, under New
York law, a person may not bring claims for intentional infliction of emotional distress or
negligent infliction of emotional distress where, as here, there are more traditional theories of tort
liability available. See, e.g., Frederique v. County of Nassau, 168 F. Supp. 3d 455, 483
(E.D.N.Y. 2016); Crews v. County of Nassau, 996 F. Supp. 2d 186, 214 (E.D.N.Y. 2014). In any
event, the conduct alleged by Hays is not “so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in civilized community.” Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303
(1983) (internal quotation marks omitted).
D. Conditions of Confinement Claims
Hays also claims that Byrnes’s conduct and the conditions of her transportation to the
precinct amounted to unconstitutional conditions of confinement. (First Am. Compl. ¶¶ 198212). “In a pretrial detainee’s challenge to conditions of confinement under the Fourteenth
Amendment, ‘the proper inquiry is whether those conditions amount to punishment of the
detainee.’” Patterson v. City of New York, No. 11-CV-7976 (DLC), 2012 WL 3264354, at *5
(S.D.N.Y. Aug. 9, 2012) (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). “If the conditions
do not amount to punishment, allegations that defendants have denied plaintiff access to basic
human needs are evaluated under a standard of deliberate indifference.” Milo v. City of New
York, 59 F. Supp. 3d 513, 524 (E.D.N.Y. 2014). Hays’s claims fail under either standard. With
respect to the former, she fails to allege (except in the most conclusory of terms (see, e.g., First
Am. Compl. ¶ 203)) that the Defendant Officers acted “(1) with punitive intent, [and] (2)
personally engaged in conduct that caused the challenged conditions of confinement.” Turkmen
v. Hasty, 789 F.3d 218, 238 (2d Cir. 2015). And under the deliberate indifferent standard, Hays
fails to plausibly allege, as she must, that “objectively, the deprivation [she] suffered was
‘sufficiently serious that [s]he was denied the minimal civilized measure of life’s necessities.’”
Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Gaston v. Coughlin, 249 F.3d 156,
164 (2d Cir. 2001)). The deprivations that Hays does allege — namely, the use of zip-tie
handcuffs, the lack of an available seatbelt in the paddy wagon, being denied the right to make a
phone call, and evaluation at Bellevue Hospital — do not even come close to meeting that
standard. See, e.g., Stevens v. City of New York, No. 12-CV-3808 (JMF), 2013 WL 81327, at *3
(S.D.N.Y. Jan. 8, 2013), aff’d, 541 F. App’x 111 (2d Cir. 2013). Accordingly, Hays’s conditions
of confinement claims must be and are dismissed as well.
E. First Amendment and Conspiracy Claims
Next, Hays alleges that Defendants violated and conspired to violate her First
Amendment rights to freedom of speech and to gather for redress of grievances. (First Am.
Compl. ¶¶ 171-84). In particular, she brings both facial and as-applied challenges to the City’s
permitting process for amplified sound, and accuses Defendants of conspiring to “silence [her]
and add [her] name to a list of all individuals in the United States that exhibit dissent.” (Id.
¶ 184). Hays’s facial challenge to the ordinance fails, however, because the “time, place, and
manner” restrictions in question have been repeatedly upheld by courts in this Circuit, and Hays
fails to provide any reason why the outcome in her case should be any different. See, e.g.,
Marcavage v. City of New York, 918 F. Supp. 2d 266, 270-75 (S.D.N.Y. 2013) (finding that the
permit requirement established by Section 10-108 of the N.Y.C. Administrative Code was
content-neutral and that the government had a significant governmental interest, the requirement
was narrowly-tailored to that interest, and plaintiffs had alternative channels of communication);
accord McMillan, 2009 WL 261478, at *9; see also Turley v. Police Dep’t of City of N.Y., 167
F.3d 757, 761 (2d Cir. 1999) (affirming the district court’s determination that Section 10-108 did
not confer impermissible discretion on police officers). Hays’s as-applied challenge — based on
the claim that she was “doing a public service announcement” and that “[n]obody objected to the
level of amplification” (First Am. Compl. ¶¶ 180-83, 223) — also fails, as courts have upheld
application of the statute even to core political speech. See McMillan, 2009 WL 261478, at *9
(collecting cases). Finally, to the extent Hays brings claims based on the denial of a sound
amplification permit in 2014, she fails to sufficiently allege that her application met all
permitting requirements. See N.Y.C. Admin. Code § 10-108(a)-(h). (First Am. Compl. ¶¶ 8587, 174-75, 179; id. at Ex. 18; see Defs.’ Mem 20).
Hays’s other conspiracy claims, brought pursuant to Title 42, United States Code,
Sections 1983, 1985, and 1986, also fail as a matter of law. (See First Am. Compl. ¶¶ 171-184,
236). First, to survive a motion to dismiss on a Section 1983 conspiracy claim, a plaintiff must
allege — in more than conclusory terms — an agreement between two or more state actors,
concerted acts to inflict an unconstitutional injury, and an overt act in furtherance of the goal.
Ciambriello v. County of Nassau, 292 F.3d 307, 324-35 (2d Cir. 2002). Here, Hays’s allegations
of an agreement — let alone an agreement to inflict unconstitutional injury given the Court’s
conclusions above with respect to Hays’s underlying claims — are “strictly conclusory.” Id. at
325. Further, to the extent that she alleges agreement among officers of the NYPD, her
conspiracy claims are barred by the “intra-corporate conspiracy” doctrine, pursuant to which
“officers, agents, and employees of a single corporate or municipal entity, each acting within the
scope of his or her employment, are legally incapable of conspiring with each other.” Dunlop v.
City of New York, No. 06-CV-0433 (RJS), 2008 WL 1970002, at *9 (S.D.N.Y. May 6, 2008).
Separate and apart from those deficiencies, Hays fails to sufficiently allege “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’
action,” as required to state a claim under Section 1985. Middleton v. City of New York., No. 04CV-1304 (JFB) (LB), 2006 WL 1720400, at *9 (E.D.N.Y. June 19, 2006) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)); see 42 U.S.C. § 1985(3) . And without a viable Section
1985 claim, Hays cannot bring a claim under Section 1986. See, e.g., Dwares v. New York, 985
F.2d 94, 101 (2d Cir. 1993) (“Liability under [Section] 1986, which permits an action against a
person who had the ‘power to prevent or aid in preventing the commission of’ a wrong
‘mentioned in section 1985,’ but who ‘neglected or refused so to do,’ is dependent on the validity
of a claim under [Section] 1985.” (alterations omitted)).
The Complaint also alleges claims with respect to the individual Defendants for placing
Hays in a “false light” and defamation of character. (First Am. Compl. ¶¶ 237-40, 246-249). In
her opposition to Defendants’ motion, however, Hays appears to withdraw both claims (Pl.’s
Opp’n 40-41), and for good reason. First, as Hays appears to concede, “New York does not
recognize a claim of false light invasion of privacy.” Colandrea v. Town of Orangetown, 490 F.
Supp. 2d 342, 351 (S.D.N.Y. 2007). Second, to bring a defamation claim pursuant to Section
1983, a plaintiff must plead and prove that a government official has (1) “utter[ed] . . . a
statement sufficiently derogatory to injure [the plaintiff’s] reputation, that is capable of being
proved false, and that [the plaintiff] claims is false,” and which (2) imposed a “material . . .
burden or . . . alteration of the plaintiff’s status or rights.” Vega v. Lantz, 596 F.3d 77, 81 (2d
Cir. 2010) (internal quotation marks omitted). Additionally, the “statement must be sufficiently
public to create or threaten a stigma.” Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005). Hays
alleges neither a material burden nor alteration of her status or rights nor that any statement was
publicized. It follows that any defamation claim she still presses must be dismissed. See, e.g.,
Brooks v. Jackson, No. 11-CV-6627 (JMF), 2013 WL 5339151, at *11 (S.D.N.Y. Sept. 23,
In her opposition to Defendants’ motion, Hays tries to recast her false light and
defamation claims as claims under the “Federal Privacy Act.” (Docket No. 52, at 15; Pl.’s Opp’n
41). That is not enough, however, to salvage her claims. First, the law is clear that a plaintiff
may not amend her complaint through her memorandum of law opposing a motion to dismiss.
See, e.g., Olde Monmouth Stock Transfer Co. v. Depository Trust & Clearing Corp., 485 F.
Supp. 2d 387, 393 (S.D.N.Y. 2007). Second, and in any event, any claim pursuant to the Privacy
Act of 1974, 5 U.S.C. § 552a (if that is indeed what Hays means by the “Federal Privacy Act”)
would have to be dismissed because the statute does not provide for a private right of action
against a state agency or official. See, e.g., Stoianoff v. Comm’r of Motor Vehicles, 107 F. Supp.
2d 439, 444–45 (S.D.N.Y. 2000), aff’d, 12 F. App’x 33 (2d Cir. 2001).
G. Monell Liability
Hays’s final claim warranting discussion is for municipal liability under Monell v.
Department of Social Services, 436 U.S. 658 (1978). (First Am. Compl. ¶¶ 132-42). 3 Given the
absence of an underlying constitutional violation, however, she cannot state a claim under
Monell. See, e.g., Schultz v. Inc. Vill. of Bellport, 479 F. App’x 358, 360 (2d Cir. 2012)
(summary order) (“Because [the plaintiff] was unable to establish an underlying violation of his
constitutional rights . . ., his . . . Monell claim necessarily fail[s] as well.”). Additionally, it is
well established that, in order to establish a claim under Monell, a plaintiff must allege that the
violation of her constitutional rights resulted from a municipal policy, custom, or practice. See
Monell, 436 U.S. at 690-91. “Proof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell.” City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24
(1985) (plurality opinion). Here, Hays fails to allege any facts from which the Court could
conclude that the City had a policy, custom, or practice that gave rise to the alleged violations of
Hays’s constitutional rights. She does assert that her treatment stemmed from a “sanctioned 
policy, practice, and/or custom” and that the City failed to “properly train,” “discipline,”
“supervise”, and “monitor arrests” (First Am. Compl. ¶¶ 132-70; Pl.’s Opp’n 18-20), but she
The Complaint also purports to bring respondeat superior claims against the City (see
First Am. Compl. ¶¶ 143-170), but it is well established that a municipality may not be held
liable under Section 1983 “simply on the basis of respondeat superior.” Best v. City of New
York, No. 11-CV-4475 (JMF), 2012 WL 5458054, at *3 (S.D.N.Y. Nov. 8, 2012).
does not allege anything to support those conclusory assertions other than her isolated personal
experiences, reports that are twenty-plus years old, and unproven allegations made in other
lawsuits. See Pluma v. City of New York, No. 13-CV-2017 (LAP), 2015 WL 1623828, at *11
(S.D.N.Y. Mar. 31, 2015) (finding that a “single recent incident” and “decade-old report” are
“extremely unlikely” to give rise to Monell liability); see also Simms v. City of New York, 480 F.
App’x 627, 630 (2d Cir. 2012) (summary order) (finding that citations to unrelated actions were
insufficient to establish a pattern or practice). Finally, to the extent that Hays alleges a policy or
custom towards “Occupiers” in 2011 and 2012, she fails to establish a “direct causal link”
between that alleged policy and her own injuries one and two years later. Pluma, 2015 WL
1623828, at *9 (internal quotation marks omitted). For these reasons, Hays’s Monell claims are
If the sheer quantity of a plaintiff’s claims could be sufficient to survive a motion to
dismiss, Hays’s Complaint would surely live to see another day. But even construing her
pleadings liberally, her twenty some-odd claims fall well short of meeting the plausibility
standard. 4 Accordingly, and for the reasons stated above, Defendants’ motion to dismiss is
GRANTED, and the Complaint is DISMISSED in its entirety. 5
To the extent that the Court has not explicitly analyzed any particular claim in the
Complaint — for example, Hays’s claims for unequal protection of the law or failure to
discharge mandatory duties — that is because such claims are effectively duplicative of the
claims discussed above. See, e.g., Zahrey v. City of New York, No. 98-CV-4546 (DCP) (JCF),
2009 WL 1024261, at *9 (S.D.N.Y. Apr. 15, 2009) (collecting cases dismissing general due
process claims as duplicative of those already discussed).
Given the reasoning above, the Court sees no basis to maintain Hays’s claims against the
Defendants who have not yet been served or appeared — namely, Captain Mark Iocco, NYPD
Attorney James Conroy, Officer Eric Grimes, former Mayor Michael Bloomberg, former Police
Commissioner Raymond Kelly, and “Does 1-10” — even though they (obviously) did not join in
The only remaining question is whether Hays should be granted leave to amend her
Complaint. Although leave to amend a complaint should be freely given “when justice so
requires,” Fed.R.Civ.P. 15(a)(2), and courts should generally grant pro se plaintiffs leave to
amend “at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated,” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per
curiam) (internal quotation marks omitted), it is “within the sound discretion of the district court
to grant or deny leave to amend,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d
Cir. 2007). Exercising that discretion here, the Court declines to grant Hays leave to amend the
Complaint sua sponte. First, a district court may deny leave to amend when, as here, amendment
would be futile because the problems with a plaintiff’s claims are “substantive” and “better
pleading will not cure” them. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Second,
Hays was already granted leave to amend her complaint to cure deficiencies raised in
Defendants’ first motion to dismiss and was explicitly cautioned that she “w[ould] not be given
any further opportunity to amend the complaint to address issues raised by the motion to
dismiss.” (Docket No. 28). Finally, she “has not requested permission to file a Second
Amended Complaint, nor has [s]he given any indication that [s]he is in possession of facts that
would cure the problems” identified in the instant motion to dismiss. Clark v. Kitt, No. 12-CV8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014).
This Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that
any appeal from this Memorandum Opinion and Order would not be taken in good faith, and in
the motion to dismiss. (First Am. Compl. ¶¶ 11-12; Defs.’ Mem. 1 n.1). The claims against
those Defendants are presumably also subject to dismissal for other reasons, including failure to
timely serve, see Fed. R. Civ. P. 4(m), and lack of personal involvement, see, e.g., Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006).
forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962). The Clerk of Court is directed to terminate Docket No. 43 and to close the case.
Dated: February 28, 2017
New York, New York
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