Price v. Simmons et al

Filing 114

OPINION AND ORDER re: 107 MOTION to Dismiss filed by The City of New York, Sergeant Shevitz, Selevena Brooks, Olufunmillo F. Obe, Linda Simmons, Rose Pierre-Louis, Raymond DeJesus. For the reasons stated above, the C ourt: (i) DENIES the motion to dismiss the § 1983 malicious prosecution claim against the City of New York and Simmons; (ii) GRANTS the motion to dismiss the § 1983 First Amendment claims against Brooks, Obe, and Pierre-Louis in thei r individual capacities on the basis of qualified immunity, and the claims against the City of New York-along with Brooks, Obe, and Pierre-Louis in their official capacities-for failure to state a claim; (iii) GRANTS the City Defendants' mo tion to dismiss the substantive due process claims against them, for failure to state a claim; and (iv) GRANTS the City's motion to dismiss the Monell claim related to the false arrest and malicious prosecution by MTA officers. The following § 1983 claims remain: (i) malicious prosecution, against Simmons in her individual and official capacities, and the City of New York; (ii) false arrest, against Corrado, Cruz, and Staines in their individual capacities; (iii) false arrest, exc essive force, and malicious prosecution, against MTA Officer John Doe and MTA Officer Jane Doe in their individual capacities. The parties are ordered to meet and confer and propose a discovery schedule to the Court, using the Courts case management plan, on or before July 20, 2018. The Clerk of Court is directed to terminate the motion at docket entry 107. (Signed by Judge Katherine Polk Failla on 6/25/2018) Copies Mailed By Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
June 25, 2018
DATE FILED: ______________

KELLY PRICE,
Plaintiff,
-v. THE CITY OF NEW YORK; ROSE PIERRELOUIS, in her individual and official capacity;
SELVENA BROOKS, in her individual and
official capacity; INSPECTOR OLUFUNMILO
F. OBE, in her individual and official
capacity; DETECTIVE LINDA SIMMONS, in
her individual and official capacity; OFFICER
JOHN STAINES, in his individual and official
capacity; OFFICER ISELAINE GUICHARDO
HERMENE GILDO CRUZ, in her individual
and official capacity; LT. NICHOLAS
CORRADO, in his individual and official
capacity; LIEUTENANT RAYMOND
DEJESUS, in his individual and official
capacity; OFFICER EMMET, in his individual
and official capacity; SERGEANT SHEVITZ,
in his individual and official capacity; MTA
OFFICER JOHN DOE, in his individual and
official capacity; MTA OFFICER JANE DOE,
in her individual and official capacity,

15 Civ. 5871 (KPF)
OPINION AND ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Kelly Price brings this pro se action under 42 U.S.C. § 1983,
alleging violations of her constitutional rights. This case has a long history,
with which the Court presumes familiarity. But it suffices to say that Plaintiff
has filed a Fourth Amended Complaint (the “FAC” (Dkt. #69)), and it is the
operative pleading. She sues the City of New York, ten of its employees
(primarily officials of the New York City Police Department, or “NYPD”), and two

unidentified employees of the Metropolitan Transportation Authority Police
Department. The City of New York and its employees (collectively referred to as
the “City Defendants”) have moved under Rule 12(b) (6) of the Federal Rules of
Civil Procedure to dismiss nearly all of the claims against them. For the
reasons set forth below, the Court grants in part and denies in part the City
Defendants’ motion to dismiss.
BACKGROUND 1
The following allegations are taken from the FAC and are assumed to be
true for the purposes of this Opinion. See Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011). From approximately September 2008 to December
2013, Plaintiff “was in a ‘relationship’ with [nonparty] Raheem Andre Powell,”
who abused her “physically, mentally, and economically.” (FAC ¶¶ 19-20). For
several years during their “relationship,” Powell “forced [Plaintiff] to engage in
sexual acts with third parties and to provide him monies accrued from
performing such services, against [Plaintiff’s] will.” (Id. at ¶ 21).
In 2010, Plaintiff obtained from the New York City Family Court an order
of protection against Powell. She requested that officers of the NYPD’s 28th
Precinct serve the order on Powell, but they refused to do so. (FAC ¶¶ 22-23).
Plaintiff further alleges that the Manhattan District Attorney’s Office directed
officers of the 28th Precinct “to not give police services or take reports from
[Plaintiff]” without the District Attorney’s prior approval. Officers of the 28th

1

For ease of reference, the Court refers to the City Defendants’ supporting memorandum
of law as “Def. Br.” (Dkt. #108); Plaintiff’s memorandum in opposition as “Pl. Opp.”
(Dkt. #110); and the City Defendants’ reply memorandum as “Def. Reply” (Dkt. #111).

2

Precinct consequently placed Plaintiff on a “Do Not Serve / Arrest Alert List”
and labeled her as a “fabricator.” (Id. at ¶¶ 24-25). 2
In October 2010, after Powell assaulted Plaintiff on a public street,
Plaintiff sought assistance at the 28th Precinct police station. Plaintiff provided
details about the incident to nonparty Officer Diaz, who “organized for photos
to be taken of [her] injuries.” (FAC ¶¶ 26-28). But after Plaintiff left the police
station, she decided that due to fear of retaliation from Powell, she would
request that the report not be filed. (Id. at ¶¶ 29-30).
When Plaintiff returned to the 28th Precinct stationhouse the next day,
she learned that the report had already been filed and that NYPD Detective
Linda Simmons had been assigned to the investigation. (FAC ¶¶ 31-33).
Plaintiff spoke with Simmons, explained that she feared retaliation from Powell
(and provided her with her reasons why she was afraid), and requested to
withdraw the complaint against him. Simmons explained that if Plaintiff
wished to withdraw the report, Plaintiff would have to provide a false statement
that she “had caused her own injuries,” a statement that would lead to Plaintiff
receiving “a desk appearance ticket for making a false police report.” (Id. at
¶¶ 34-37). Plaintiff agreed to retract the report and was placed in a holding cell
while Simmons conducted a criminal background check. After Simmons
confirmed that Plaintiff had no active warrants, she let Plaintiff out of the cell

2

In previous pleadings, Plaintiff alleged that Powell was a major case informant for the
NYPD and Manhattan District Attorney’s Office, and that both entities sought to protect
Powell by refusing to investigate or pursue Plaintiff’s allegations against him. (See, e.g.,
Dkt. #21 at ¶¶ 5-6, 16, 24, 26).

3

so that Plaintiff could write a statement providing that “she had caused the
injuries to her face herself.” (Id. at ¶¶ 38-41). When Plaintiff finished writing
the statement, Simmons handcuffed her and put her in a cell. Plaintiff was
detained for approximately one hour and was released with a desk appearance
ticket that required her to appear in court the following month. (Id. at ¶¶ 4345). At the court appearance, Plaintiff “was told the charge would be
adjudicated in six months if she did not get re-arrested.” (Id. at ¶ 49).
After Plaintiff withdrew her October 2010 complaint, she repeatedly
sought to file “formal police reports” concerning Powell’s abuse. In February
2011, Manhattan Assistant District Attorney (“ADA”) Maria Strohbehn
summoned Plaintiff to her office to inform Plaintiff both that she was declining
to charge Powell and that she had put Plaintiff “on a do-[not]-serve services
list.” (Id. at ¶¶ 50-51).
In August 2016, Plaintiff visited the New York City Criminal Court in
Manhattan and requested a certificate of disposition related to the 2010 desk
appearance ticket. The court clerk informed Plaintiff that the “desk appearance
ticket had never been adjudicated and still remained open after almost six
years.” (FAC ¶ 59). Plaintiff alleges that, finally, on September 9, 2016, “the
proceedings commenced by Simmons terminated in [Plaintiff’s] favor with a
certificate of dismissal issued by the [Manhattan District Attorney’s Office].” (Id.
at ¶ 61). 3

3

Plaintiff does not explain the basis of the criminal court’s dismissal of the charge or
charges against her.

4

Plaintiff then pivots to allege facts concerning another allegedly unlawful
arrest and detention. She asserts that a stranger assaulted her on July 2,
2015, and that when she went to the NYPD’s Midtown North police station to
file a complaint, Lieutenant Nicholas Corrado refused “to take [her] report
about the assault.” (FAC ¶¶ 62-65). Unsatisfied, Plaintiff requested to speak
with a commanding officer, and Corrado responded by ordering her to leave the
station. Plaintiff refused to leave and insisted that the NYPD take her report.
(Id. at ¶¶ 66-68). Corrado, assisted by Officer Iselaine Guichardo Hermene
Gildo Cruz, “physically pulled [Plaintiff] out of her seat,” put handcuffs on her,
and detained her inside the station until an ambulance arrived to take her to
Bellevue Hospital Center for involuntary observation. (Id. at ¶¶ 69-73). Cruz
stayed with Plaintiff during the ambulance ride to Bellevue, and inside of the
hospital, she was joined by Officer John Staines in continuing to detain
Plaintiff for about an hour. (Id. at ¶¶ 74-77). At the direction of hospital staff,
Cruz and Staines removed Plaintiff’s handcuffs; they subsequently left the
building. (Id. at ¶¶ 78-79). After about two hours of observation by hospital
staff, Plaintiff was released from Bellevue. Plaintiff asserts that Corrado, Cruz,
and Staines had no reason to believe that she was a risk of harm to herself or
others, or that she required immediate mental health treatment. (Id. at ¶¶ 8083).
Plaintiff continued to advocate for herself and to complain to City officials
about the NYPD’s refusal to protect her from Powell or to investigate her
allegations of abuse. One way in which she did so was by lodging publicly

5

viewable complaints directed at several of the City’s official Twitter accounts.
For instance, she interacted with the official Twitter feed for the NYPD’s 28th
Precinct, which feed has a Twitter handle, or username, of @NYPD28Pct. That
account was administered by NYPD Inspector Olufunmilo F. Obe. (FAC ¶¶ 9195). The 28th Precinct’s Twitter page includes a hyperlink to the City’s official
Social Media Policy and “does not otherwise limit the purpose or topic of the
@NYPD28Pct Account,” beyond the restrictions set forth in that policy. (Id. at
¶¶ 96-97). 4
In October 2014, Plaintiff began following the @NYPD28Pct account, and
she would occasionally post public responses to the account. (FAC ¶¶ 101-02).
For instance, on October 14, 2014, Plaintiff posted two responses to the
@NYPD28Pct account. The first response read:
@NYPD28Pct @sffny ATTN Insp OBE: link 4
#DomesticViolence prevention leads to a JEWELRY
MALL. Your selection is nice ow.ly/CdI1G.
(Id. at ¶ 102). On the same day, Plaintiff posted the following reply to another
tweet by the @NYPD28Pct account:
@NYPD28Pct @sffny nice selection INSP OBE! Any
extra time to respond to the letter I sent 2 your precinct
about #DV?

4

Plaintiff notes that according to a report from Harvard University’s Berkman Klein
Center for Internet & Society, the City encouraged NYPD commanders to create official
Twitter accounts “to increase interaction with the communities in which police officers
work every day” and “to share information about community events, encourage
community members to attend public meetings, and document NYPD’s service work in
communities.” (FAC ¶ 99 & Ex. B at 18).

6

(Id.). Shortly thereafter, “Obe blocked [Plaintiff] from the @NYPD28Pct Account
without notifying [Plaintiff] or providing reasons for blocking her.” (Id. at
¶ 103).
As a result of being “blocked” by Obe, Plaintiff could not — and still
cannot — use her own Twitter account to view tweets from @NYPD28Pct,
respond to any tweet published by @NYPD28Pct, or view any other person’s
responses to tweets by @NYPD28Pct. (FAC ¶¶ 104-05). Plaintiff alleges that
Obe blocked her from the @NYPD28Pct account in retaliation “for her criticism
of the domestic violence assistance rate within the 28th Precinct” and to
prevent her “from publically criticizing the 28th Precinct.” (Id. at ¶¶ 106-07).
Plaintiff had a similar experience with the Twitter account for the New
York City Mayor’s Office to Combat Domestic Violence, @NYCagainstabuse, and
its administrator, Selvena Brooks. Near the end of 2014, Plaintiff used her
Twitter account to post the following responses to tweets from
@NYCagainstabuse:
@NYCAGAINSTABUSE @NYPD28Pct victims be wary of
the 2-8: their “Help” put me on #Rikers & my abuser
walked chn.ge/11fKJZd #JAILSACTION
***
@NYCagainstabuse Many more women could have
benefitted from services at a FJC [Family Justice
Center] but were barred because they were falsely
labeled “fabricators.”
***
@NYCagainstabuse where do we go when wrongly
dubbed as “fabricators” by #MYNYPD & @manhattanda
& denied entrance to Family Justice Centers?
7

(FAC ¶ 114). On the same day as Plaintiff’s final tweet to @NYCagainstabuse,
Brooks blocked Plaintiff’s Twitter account from accessing the official account of
the Mayor’s Office to Combat Domestic Violence, leading to the same
limitations as those concerning the @NYPD28Pct account. (Id. at ¶¶ 115-19).
Plaintiff surmises that Brooks blocked her in retaliation for her criticism of the
City’s domestic violence assistance rates and to prevent further public criticism
of the Mayor’s Office to Combat Domestic Violence. (Id. at ¶¶ 120-23). Plaintiff
also asserts that Rose Pierre-Louis, who at the time was the Commissioner of
the Mayor’s Office to Combat Domestic Violence, ordered Brooks to block
Plaintiff from @NYCagainstabuse. (Id. at ¶¶ 121, 124).
Plaintiff also had interactions with a Twitter account named @RPLNYC,
which was moderated by Pierre-Louis. Plaintiff contends that Pierre-Louis
identified herself on the account as the Commissioner of the Mayor’s Office to
Combat Domestic Violence and used the account to “disseminate official
information during that time that she was Commissioner.” (FAC ¶¶ 126-28).
She adds that Pierre-Louis “gained followers and credibility by naming her
official title on her @RPLNYC [T]witter account and disseminating official
information and offering her editorial opinion of that information in her
capacity as Commissioner for the NYC Mayor’s Office to Combat Domestic
Violence.” (Id. at ¶ 129).
Plaintiff alleges that in October 2014, Pierre-Louis blocked her from
viewing and posting replies to the @RPLNYC Twitter account. (FAC ¶ 131).
While Plaintiff does not specifically allege the facts and circumstances that

8

preceded her being blocked from the @RPLNYC account, she contends that
Pierre-Louis blocked her in retaliation for “her criticism of the domestic
violence community’s response to her secondary victimization by the criminal
justice system” and “to mitigate fears that other victims may harbor when [ ]
turning to authorities for help if they learned of [Plaintiff’s] fate when she
attempted to do so.” (Id. at ¶¶ 136-37).
In addition to accusing Obe, Brooks, and Pierre-Louis of blocking her
from viewing Twitter accounts that they administer, Plaintiff also asserts that
the City itself is responsible. She alleges that even though the City’s official,
written social media policies “are explicit that people are not to be blocked on
Social Media based on viewpoint, the City has a practice and custom of
blocking unfavorable comments on social media[,]” as allegedly demonstrated
by the allegations set forth above. She also contends that the City ratified the
conduct of Obe, Brooks, and Pierre-Louis — essentially adopting their
conduct — by their refusal to order Obe, Brooks, and Pierre-Louis to “unblock”
her, despite Plaintiff’s personally submitting requests to several City officials.
(FAC ¶¶ 141-49).
Plaintiff further alleges that on November 17, 2016, during the pendency
of this civil action, several unidentified persons harassed her inside of Penn
Station. While this incident was occurring, MTA Officers John and Jane Doe
approached the area, and after Plaintiff’s harassers dispersed, Officer John Doe
“attacked [Plaintiff] from behind without provocation,” causing bruising on
Plaintiff’s arms and legs and knocking out one of her teeth. (FAC ¶¶ 150-52).

9

The officers handcuffed Plaintiff and stated that they intended to take her,
involuntarily, “to Bellevue Hospital’s psych ward.” (Id. at ¶¶ 153-54). After a
brief detention inside of an MTA police station, the officers instead took Plaintiff
to St. Vincent’s Hospital. There, Officer John Doe told a nurse to sedate
Plaintiff, which the nurse did — again, without Plaintiff’s consent. (Id. at
¶¶ 153-61). About eight hours later, Plaintiff “woke up” and was released from
the hospital. (Id. at ¶ 164). As Plaintiff was leaving, a nurse “handed [Plaintiff]
two tickets from MTA Officers John Doe and Jane Doe, one for public
intoxication and one for disorderly conduct.” (Id. at ¶ 168). In March 2017,
the criminal court dismissed both charges because the allegations were facially
insufficient. (Id. at ¶ 169).
Plaintiff adds that on January 24, 2017, also during the pendency of this
civil action, members of the NYPD again denied her services. Plaintiff states
that after she was assaulted by an unknown individual, she reported the
incident to officers of the NYPD’s 34th Precinct and Transit Bureau 3, including
Officer Emmett, who told her to call the Transit Bureau on the following day to
get an incident report number. (FAC ¶¶ 170-73). Over the following days,
Plaintiff called the Transit Bureau several times but was given the same
response each time: “no report had been made yet but [ ] call back the next
day.” (Id. at ¶¶ 174-75). Plaintiff eventually spoke with Lieutenant Raymond
DeJesus, who promised a full investigation into the assault. After a week
passed with no apparent action by the NYPD, Plaintiff spoke with Sergeant
Shevitz, who also promised a full investigation into the incident. (Id. at ¶¶ 176-

10

80). As of the filing of the FAC, however, the NYPD and its officers had taken
no action to investigate the assault. (Id. at ¶ 181). Plaintiff attributes the
NYPD’s inaction to the City’s practice or custom of “deny[ing] service to
individuals such as [Plaintiff] who are on a [‘]do not serve[’] list or have been
labeled a fabricator in the City’s records.” (Id. at ¶ 182).
DISCUSSION
Plaintiff’s claims for relief, all under § 1983, can be organized into the
following categories:
1.

Malicious prosecution claims under the Fourth
Amendment against Simmons, in her individual and
official capacities, and the City of New York;

2.

First Amendment claims against Obe, Brooks, and
Pierre-Louis, in their individual and official capacities,
and the City of New York;

3.

False arrest claims under the Fourth Amendment,
against Corrado, Cruz, and Staines, in their individual
and official capacities, and the City of New York;

4.

False arrest, excessive force, and malicious prosecution
claims under the Fourth Amendment, against MTA
Officer John Doe and MTA Officer Jane Doe, in their
individual and official capacities, and the City of New
York; and

5.

Substantive due process claims under the Fourteenth
Amendment, against all of the individual defendants,
related to the assault and denial of services on
January 24, 2017.

(FAC ¶¶ 186-90). Plaintiff seeks a declaratory judgment that Defendants have
violated her constitutional rights, a permanent injunction restraining
Defendants from placing or keeping her on a do-not-serve list or deeming her a
fabricator, and compensatory and punitive damages.

11

The City Defendants have moved, under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, to dismiss all claims against them, except for the false
arrest claims against Corrado, Cruz, and Staines. The MTA and its officers are
not parties to this motion.
A.

Applicable Law
Rule 12(b)(6) of the Federal Rules of Civil Procedure
When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[’s]
favor, assume all well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to relief.” Faber v. Metro.
Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and
citation omitted). Thus, “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While this
plausibility requirement “is not akin to a probability requirement . . . , it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(internal quotation marks omitted).
Toward that end, a plaintiff must provide more than “an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. It is not
enough for a plaintiff to allege “naked assertions or conclusory statements”;
rather, a plaintiff must come forward with “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the

12

misconduct alleged.” Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015)
(internal quotation marks omitted). The Court is obliged, however, to construe
pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and
interpret them to raise the “strongest [claims] that they suggest,” 5 Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation
marks and citations omitted, emphasis in original); see generally McLeod v.
Jewish Guild for the Blind, 864 F.3d 154, 157 (2d Cir. 2017).
The motion should be denied “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of [her] claim which would entitle
[her] to relief.” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57,
63 (2d Cir. 2011) (citation omitted, alterations in original). In applying these
standards, the Second Circuit has specifically cautioned against hastily
dismissing complaints alleging civil rights violations. See McGarry v. Pallito,
687 F.3d 505, 510 (2d Cir. 2012); see also Tarshis v. Riese Org., 211 F.3d 30,
35 (2d Cir. 2000) (collecting cases).

5

The Court notes that Plaintiff’s memorandum of law in opposition to this motion “was
prepared with the assistance of the New York Legal Assistance Group Legal Clinic for
Pro Se Litigants in the SDNY.” (See Pl. Opp. 2 n.1). Accordingly, the Court will not
afford Plaintiff’s memorandum of law the special solicitude normally afforded to pro se
submissions. See Spira v. J.P. Morgan Chase & Co., 466 F. App’x 20, 22 n.1 (2d Cir.
2012) (summary order); Ibrahim v. United States, 868 F. Supp. 2d 27, 29 (E.D.N.Y.
2012); see generally In re Fengling Liu, 664 F.3d 367, 369-71 (2d Cir. 2011) (holding
that an attorney’s undisclosed ghostwriting may violate the attorney’s duty of candor).
But because there is no clear indication that the FAC was prepared by an attorney, the
Court will continue to afford Plaintiff special solicitude in interpreting the pleading’s
allegations. See Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010).

13

Civil Rights Claims Under 42 U.S.C. § 1983
The Ku Klux Klan Act of 1871, amended and codified in relevant part as
42 U.S.C. § 1983, created a private right of action against any person acting
under color of law who subjects another to the “deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” Accordingly,
to sustain an action under § 1983, the conduct at issue “must have been
committed by a person acting under color of state law” and “must have
deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir. 1994); see also West v. Atkins, 487 U.S. 42, 48-49 (1988).
When a plaintiff sues a municipality under § 1983, it is not enough for
the plaintiff to allege that one of the municipality’s employees or agents
engaged in some wrongdoing. The plaintiff must show that the municipality
itself caused the violation of the plaintiff’s rights. See Connick v. Thompson,
563 U.S. 51, 60 (2011) (“A municipality or other local government may be liable
under this section [1983] if the governmental body itself ‘subjects’ a person to a
deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”)
(quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 692 (1978));
accord Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words,
to state a § 1983 claim against a municipality, the plaintiff must allege facts
showing (i) the existence of a municipal policy, custom, or practice, and (ii) that
the policy, custom, or practice caused the violation of the plaintiff’s

14

constitutional rights. See Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 403 (1997); Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012).
There are several ways that a plaintiff can state a claim of municipality
liability under § 1983. A plaintiff can, for instance, plead (i) a formal policy
officially promulgated by the municipality caused the constitutional violation,
see Monell, 436 U.S. at 690; (ii) the official responsible for establishing the
policy, with respect to the subject matter in question to the specific action,
caused the constitutional violation, see Pembauer v. City of Cincinnati, 475 U.S.
469, 483-84 (1986) (plurality opinion); (iii) the existence of an unlawful practice
by subordinate officials, which was so widespread and well settled as to
constitute a “custom or usage” of the municipality, caused the constitutional
violation, see City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1985)
(plurality opinion); Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 871 (2d Cir.
1992); or (iv) a failure to train or supervise that amounts to “deliberate
indifference” to the rights of those with whom the municipality’s employees
interact, see City of Canton v. Harris, 489 U.S. 378, 388 (1989); Cash, 654 F.3d
at 334.
Qualified Immunity
The doctrine of qualified immunity shields public officials from civil
liability so long 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. Fitzgerald,
457 U.S. 800, 818 (1982)); see generally Kisela v. Hughes, 138 S. Ct. 1148,

15

1152 (2018); Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 58-59 (2d
Cir. 2017).
For a constitutional right to be “clearly established,” “[t]he contours of
the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987); see also Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In other
words, existing precedent must have placed the statutory or constitutional
question beyond debate.” Reichle v. Howards, 566 U.S. 658, 664 (2012)
(internal citation and quotation marks omitted).
If the law is “clearly established, the immunity defense ordinarily should
fail, since [ ] reasonably competent public official[s] should know the law
governing [their] conduct.” Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013)
(quoting Harlow, 457 U.S. at 818-19). But “[e]ven where the plaintiff’s federal
rights and the scope of the official’s permissible conduct are clearly
established, the qualified immunity defense protects a government actor if it
was ‘objectively reasonable’ for him to believe that his actions were lawful at
the time of the challenged act.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.
1995) (citing Creighton, 483 U.S. at 641). “The objective reasonableness test is
met — and the defendant is entitled to immunity — if ‘officers of reasonable
competence could disagree’ on the legality of the defendant’s actions.” Id.
(citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

16

B.

Analysis
Malicious Prosecution Claims Against Simmons and the City of
New York
The Court first considers Plaintiff’s § 1983 malicious prosecution claims

against Simmons and the City of New York. The tort of malicious prosecution
“remedies detention accompanied, not by absence of legal process, but by
wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 389-90
(2007). The elements of a malicious prosecution claim under § 1983 are
derived from applicable state law. See Swartz v. Insogna, 704 F.3d 105, 112
(2d Cir. 2013) (citing Conway v. Vill. of Mount Kisco, 750 F.2d 205, 214 (2d Cir.
1984)).
Under New York law, to state a claim for malicious prosecution, a
plaintiff must allege facts showing: (i) the defendant initiated or continued a
prosecution against the plaintiff, (ii) the defendant lacked probable cause to
commence the proceeding or believe the proceeding could succeed, (iii) the
defendant acted with malice, and (iv) the prosecution was terminated in the
plaintiff’s favor. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). A
claim for malicious prosecution under § 1983 requires the additional element
of (v) “a sufficient post-arraignment liberty restraint to implicate the plaintiff’s
Fourth Amendment rights.” Rohman v. N.Y.C. Trans. Auth., 215 F.3d 208, 215
(2d Cir. 2000). This element can be satisfied where, for instance, a plaintiff
was remanded pending trial, see Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117
(2d Cir. 1995), or where a plaintiff was compelled to return to court before
dismissal of the criminal charge, see Swartz, 704 F.3d at 112.
17

In their motion, the City Defendants do not dispute that Plaintiff’s
allegations have satisfied the first four elements of the claim. Instead, they
argue that “Plaintiff’s single court appearance does not amount to a deprivation
of her liberty interest.” (Def. Br. 16 (relying exclusively on Burg v. Gosselin,
591 F.3d 95 (2d Cir. 2010)). 6 The Court disagrees.
The Second Circuit has “consistently held,” most recently in Swartz v.
Insogna, “that a post-arraignment defendant who is ‘obligated to appear in
court in connection with [criminal] charges whenever [her] attendance [i]s
required’ suffers a Fourth Amendment deprivation of liberty.” 704 F.3d at 112
(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (finding that postarraignment requirements that plaintiff appear for court appearances and not
leave the state were sufficient to implicate the Fourth Amendment)). Thus, “the
requirement that a plaintiff appear in court, post-arraignment, in connection
with criminal proceedings, does constitute [a deprivation of liberty].”
MacPherson v. Town of Southampton, No. 07 Civ. 3497 (DRH) (AKT), 2013 WL
6058202, at *5 (E.D.N.Y. Nov. 14, 2013). Courts have found a liberty
deprivation, for example, where arrestees were arraigned and were
subsequently required to make one other court appearance. See Willis v. City
of New York, No. 12 Civ. 5259 (RA), 2015 WL 556884, at *8 n.9 (S.D.N.Y.
Feb. 9, 2015) (finding liberty depravation in context of § 1983 malicious
prosecution claim); see also Gogol v. City of New York, No. 15 Civ. 5703 (ER),
6

The City Defendants’ reliance on Burg is puzzling, as “there was no claim for malicious
prosecution in Burg,” Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013) — an
important fact that they fail to mention.

18

2017 WL 3449352, at *11 (S.D.N.Y. Aug. 10, 2017) (finding liberty interest in
context of § 1983 fair trial claim).
In this case, Plaintiff alleges that after she received the desk appearance
ticket, she was released from custody, appeared in court about a month after
the ticket was issued, and about six years later — when she learned that the
prosecution remained pending long after she believed it to have been
dismissed — she again appeared in court, where the charge was dismissed.
(FAC ¶¶ 59-61). 7 During the entire pendency of the prosecution, she remained
subject to New York Criminal Procedure Law § 510.40, which states that
“[u]pon ordering that a principal be released on [her] own recognizance, the
court must direct [her] to appear in the criminal action or proceeding involved
whenever [her] attendance may be required and to render [herself] at all times
amenable to the orders and processes of the court.” N.Y. Crim. Proc. Law
§ 510.40.
In Rohman, the Second Circuit recognized that under § 510.40, an
arrestee released on her own recognizance “must ordinarily remain in the
state.” 215 F.3d at 216; see also Perez v. Duran, 962 F. Supp. 2d 533, 542
(S.D.N.Y. 2013) (“[T]he plaintiff’s release on his own recognizance necessarily
required the plaintiff to comply with travel restrictions.”). The restrictions on
Plaintiff’s travel, which operated as a de facto confinement within the state and
remained in place as long as Plaintiff was released on her own recognizance,
7

The City Defendants repeatedly, and erroneously, state that Plaintiff only appeared in
court once. (See Def. Br. 16-17; Def. Reply 6-7). The FAC makes clear that Plaintiff
appeared in court twice.

19

are therefore sufficient to implicate the Fourth Amendment and constitute a
seizure. See Rohman, 215 F.3d at 216; Murphy, 118 F.3d at 947; Gogol, 2017
WL 3449352, at *11. Accordingly, the Court denies the motion to dismiss the
individual-capacity claims against Simmons. 8
The Court must also deny the City Defendants’ correlative motion to
dismiss the official-capacity claims against Simmons and the Monell claim
against the City. 9 It appears that the City Defendants’ sole argument for
dismissal of these claims is that Plaintiff did not allege a constitutional
violation by Simmons — that is, a sufficient post-arraignment restraint. (Def.
Br. 19 (“[A] desk appearance ticket with a single court appearance for that
ticket is not a sufficient deprivation of liberty.”)). As explained above, Plaintiff
has, in fact, stated a § 1983 claim against Simmons for malicious prosecution.
On this basis alone, denial of the City Defendants’ motion is warranted.
In any event, Plaintiff has set forth sufficient facts suggesting that the
City was a moving force behind Simmons’s conduct. Plaintiff alleges that at the

8

Simmons did not argue that she was entitled to qualified immunity, and that argument
is therefore waived. Even if she did, the argument would fail. Reasonably competent
officers understand that it is unlawful to initiate a prosecution against a domestic
violence victim for allegedly filing a false report when there was no reason to believe the
report was false and was only being retracted because the victim feared retaliation from
her abuser. Stated another way, it is objectively unreasonable to arrest and initiate a
prosecution of a person that the officer knows to be innocent of any crime. See Scotto v.
Almenas, 143 F.3d 105, 113 (2d Cir. 1998); Ricciuti v. N.Y.C. Trans. Auth., 124 F.3d
123, 128 (2d Cir. 1997).

9

The Court considers these claims together, because an official-capacity claim against a
governmental official is the functional equivalent of a claim against the governmental
entity itself. See Kentucky v. Graham, 473 U.S. 159, 165 (1985); Monell v. Dep’t of Soc.
Servs. of City of N.Y., 436 U.S. 658, 690 n.55 (1978)); Tanvir v. Tanzin, 889 F.3d, 72,
81-82 & n.7 (2d Cir. 2018) (discussing the distinctions between individual and officialcapacity claims).

20

direction of the Manhattan District Attorney’s Office, the NYPD placed her on a
“Do Not Serve / Arrest Alert List” and labeled her as a “fabricator.” (FAC ¶¶ 2425). Based on this allegation of “deliberate conduct” by the City, see Bd. of Cty.
Comm’rs of Bryan Cty., 520 U.S. at 404 — which the Court accepts as true for
the purposes of this motion — it appears that the City had a policy of
disbelieving Plaintiff’s allegations of abuse and considering her to be a
“fabricator.”
Against this background, Plaintiff alleges that Simmons framed her for
fabricating a police report, despite Simmons’s having no reason to believe that
Plaintiff was lying when she initially reported to Officer Diaz that Powell had
beaten her. (FAC ¶¶ 26-45). In the context of the facts alleged by Plaintiff,
Simmons’s conduct is inexplicable, unless one accepts Plaintiff’s assertion that
the NYPD had a policy of labeling her a fabricator, as this would supply a
plausible explanation for Simmons’s conduct. Stated another way, acting
pursuant to a municipal policy of labeling Plaintiff a fabricator, Simmons
initiated a prosecution against Plaintiff for filing a false report. See Monell, 436
U.S. at 694 (“[W]hen execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury, [ ] the government as an entity is
responsible under § 1983.”). Because, at this stage in the litigation, the
allegations plausibly suggest that the City’s policy of labeling Plaintiff a
fabricator was the moving force behind Simmons’s otherwise unconstitutional
conduct, the Court denies the City Defendants’ motion to dismiss the Monell

21

claim against the City and the official-capacity claim against Simmons for
malicious prosecution. 10
First Amendment Claims Against Brooks, Obe, Pierre-Louis,
and the City of New York
The Court next considers Plaintiff’s First Amendment claims, beginning
with the individual-capacity claims asserted against Brooks and Obe, the
operators of the City’s @NYCagainstabuse and @NYPD28Pct Twitter accounts
(the “official accounts” or “official Twitter accounts”), respectively.
In this case, the City Defendants do not dispute that Brooks and Obe
acted under color of law when moderating the official Twitter accounts and
ultimately blocking Plaintiff from viewing or otherwise interacting with them.
To the contrary, as set forth below in more detail, the City Defendants explicitly
argue that Brooks and Obe were engaged in “government speech.” (Def. Br. 912). The Court therefore concludes that Brooks and Obe were “state actors” for
the purposes of establishing liability under § 1983.

10

The Court pauses to note a potential ambiguity in Plaintiff’s allegations. At Plaintiff’s
initial criminal court appearance, “[s]he was told the charge would be adjudicated in six
months if she did not get re-arrested.” (FAC ¶ 49). This allegation suggests that
Plaintiff was offered, and accepted, an adjournment in contemplation of dismissal, or
“ACD.” See N.Y. Crim. Pro. L. § 170.55(2); Stone v. Port Auth. of N.Y. & N.J., No. 11 Civ.
3932 (SMG), 2014 WL 3110002, at *9 (E.D.N.Y. July 8, 2014) (“An ACD is a conditional
dismissal that becomes final from six months to one year after it is accepted, provided
the court does not decide, on the prosecutor’s motion, to restore the case to its calendar
in the interest of justice.” (citation omitted)). An ACD precludes any claim for malicious
prosecution because, under New York law, it is not a “favorable termination” of the
criminal proceedings. See Fulton, 289 F.3d at 196; Hollender v. Trump Vill. Co-op, Inc.,
58 N.Y.2d 420, 425-26 (1983). But Plaintiff alleges that her criminal charge remained
pending for almost six years after her initial appearance in criminal court. This
suggests that the final disposition was not an ACD. The City Defendants did not
address this issue in their motion, and the Court need not resolve it at this point. The
parties may nevertheless wish to explore this issue in discovery.

22

The issue in this case is whether Brooks and Obe violated Plaintiff’s First
Amendment rights by blocking her on Twitter — thereby preventing her from
viewing two of the City’s official Twitter feeds and from interacting with them
under her own account — in response to Plaintiff’s tweets that were critical of
the City’s handling of domestic violence cases, including her own case. After
careful consideration, the Court concludes that Plaintiff has adequately
pleaded facts showing that Brooks and Obe violated her First Amendment
rights.
Before delving too deeply into its First Amendment analysis, the Court
pauses to acknowledge the comprehensive analysis undertaken by Judge
Buchwald in Knight First Amendment Institute at Columbia University v. Trump,
— F. Supp. 3d —, No. 17 Civ. 5205 (NRB), 2018 WL 2327290 (S.D.N.Y. May 23,
2018). The Trump decision arose in the context of cross-motions for summary
judgment; it thus necessarily implicated a different factual record and different
legal standards than the instant case. Nonetheless, the analysis offers a useful
primer.
Judge Buchwald first considered whether the individual plaintiffs in that
case, who had been blocked from the President’s Twitter account because of
the political views each had expressed, had engaged in political speech, and
concluded quickly that they had. 2018 WL 2327290, at *13. She then
considered whether forum analysis applied to the President’s Twitter account,
prefacing the analysis as follows:
We can therefore reject, at the outset, any contention
that the @realDonaldTrump account as a whole is the
23

would-be forum to be analyzed. Plaintiffs do not seek
access to the account as a whole — they do not desire
the ability to send tweets as the President, the ability to
receive notifications that the President would receive, or
the ability to decide who the President follows on
Twitter. Because the access they seek is far narrower,
we consider whether forum doctrine can be
appropriately applied to several aspects of the
@realDonaldTrump account rather than the account as
a whole: the content of the tweets sent, the timeline
comprised of those tweets, the comment threads
initiated by each of those tweets, and the “interactive
space” associated with each tweet in which other users
may directly interact with the content of the tweets by,
for example, replying to, retweeting, or liking the tweet.
Id. at *14.
The district court found that the account was “owned or controlled by the
Government,” and that the act of blocking an individual user from such an
account constituted state action. 2018 WL 2327290, at *15. However, it also
found that government control did not extend to the comment component of
each tweet, which therefore excluded that component from forum analysis. Id.
at *16. Additionally, Judge Buchwald found the content and timeline
components of the President’s Twitter account to be “government speech” as
opposed to private speech, and excluded those components as well from forum
analysis. Id. at *17-18. For the remaining element, the “interactive space” for
replies and retweets, the court found it to be a designated public forum, and
found the blocking of users from that space to be impermissible viewpoint
discrimination under the First Amendment. Id. at *20-22.
The instant case arises in the very different context of a motion under
Rule 12(b)(6), where the Court is obligated to credit all well-pleaded allegations

24

of the operative complaint. Plaintiff here alleges that the blocking of her
account by @NYPD28Pct, for example, has rendered her unable to use her own
Twitter account to view tweets from @NYPD28Pct, to respond to any tweet
published by @NYPD28Pct, or to view any other person’s responses to tweets
by @NYPD28Pct. (FAC ¶¶ 104-05). These disabilities may be broader than
those addressed by Judge Buchwald. Moreover, the parties to this case have
not framed their arguments in a manner that tracks the analysis in Trump.
Given these differences, this Court’s analysis will chiefly respond to the parties’
arguments.
The First Amendment guarantees the right of freedom of speech to
individuals and groups; it speaks in strong terms: “Congress shall make no
law . . . abridging the freedom of speech.” Justice Cardozo called the freedom
of speech and thought “the indispensable condition … of nearly every other
form of freedom.” Palko v. State of Conn., 302 U.S. 319, 327 (1937), overruled
on other grounds by Benton v. Maryland, 395 U.S. 784 (1969).
The existence of a right of access to public spaces “and the standard by
which limitations upon such a right must be evaluated differ depending on the
character of the [space] at issue.” Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 44 (1983); Make the Road by Walking, Inc. v. Turner, 378
F.3d 133, 142 (2d Cir. 2004). In Perry Education Association v. Perry Local
Educators’ Association, the Supreme Court recognized a doctrinal structure for
identifying public spaces in which the government is limited, to varying
degrees, in its ability to restrict activity covered by the First Amendment. 460

25

U.S. at 45-47. It divided such spaces into three types of forums: the traditional
public forum, the public forum created by government designation, and the
nonpublic forum. See id.; see also Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 802 (1985). In evaluating whether a particular space
should be classified as a traditional public forum, a designated or limited
public forum, or a nonpublic forum, the Supreme Court has directed lower
courts to consider the space’s compatibility with expressive activity and
whether the government’s general “policy and practice” shows that the forum is
intended to be used for speech by the public. Paulsen v. Cty. of Nassau, 925
F.2d 65, 69 (2d Cir. 1991); see also Cornelius, 460 U.S. at 45. 11
In Hotel Employees & Restaurant Employees Union, Local 100 of New
York, N.Y. & Vicinity, AFL-CIO v. City of New York Department of Parks and
Recreation, 311 F.3d 534 (2d Cir. 2002), the Second Circuit identified four
factors that courts should use when evaluating the nature of a particular

11

“Governmental intent is said to be the touchstone of forum analysis.” Huminski v.
Corsones, 386 F.3d 116, 152 (2d Cir. 2004) (quoting Gen. Media Commc’ns, Inc. v.
Cohen, 131 F.3d 273, 279 (2d Cir. 1997)). In evaluating whether the government
intended to create a public forum, courts may look to its “policies or regulations”
regarding use of the space. Hotel Emps. & Rest. Emps. Union, Local 100 of N.Y., N.Y. &
Vicinity, AFL-CIO v. City of N.Y. Dep’t of Parks and Recreation, 311 F.3d 534, 547 (2d
Cir. 2002).
However, “[i]ntent is not merely a matter of stated purpose.” Paulsen v. Cty. of Nassau,
925 F.2d 65, 69 (2d Cir. 1991). Courts must look beyond official policy statements and
evaluate the government’s actual practice towards the space at issue. Make the Road by
Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004) (citing Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)); Paulsen, 925 F.2d at 69
(Government intent can be inferred from “policy and past practice, as well as the nature
of the property and its compatibility with expressive activity.” (emphasis added)). To
that end, “[o]bjective indicia of intent to create a public forum, combined with a history
of consistent practice, can overcome a bare statement of contrary purpose.” Paulsen,
925 F.2d at 70 (citation omitted).

26

property or space: (i) “whether the [property] falls within those categories of
property historically deemed to be traditional public fora,” (ii) “whether it is the
type of property that should be so classified given its physical characteristics,”
(iii) “the objective way it is used,” and (iv) the government’s “intent in
constructing and opening it to the public.” Zalaski v. City of Bridgeport Police
Dep’t, 613 F.3d 336, 343 (2d Cir. 2010) (quoting Hotel Emps., 311 F.3d at 53637). The Second Circuit has repeatedly recognized that the “primary factor” in
forum analysis is the manner in which the public space is used. See id.; Hotel
Emps., 311 F.3d at 547.
The first category is the traditional public forum, including public
streets, parks, and sidewalks, see Perry Educ. Ass’n, 460 U.S. at 45, which “by
long tradition or by government fiat have been devoted to assembly and
debate,” Paulsen, 925 F.2d at 68 (quoting Perry Educ. Ass’n, 460 U.S. at 45).
See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678
(1992) (observing that traditional public forums are spaces that have
“traditionally been available for public expression”).
In a traditional public forum, content-based restrictions on speech must
survive “strict scrutiny” — that is, the restriction must be narrowly tailored to
serve a compelling government interest. Pleasant Grove City v. Summum, 555
U.S. 460, 469 (2009); Hotel Emps., 311 F.3d at 545. In such a forum, the
government may impose content-neutral time, place, and manner restrictions;
however, these must be “narrowly tailored to serve a significant government

27

interest, and leave open ample alternative channels of communication.” Perry
Educ. Ass’n, 460 U.S. at 45.
The second category is the designated public forum, which although not
a traditional public forum, 12 exists because “the government has taken
affirmative steps to open up [the space] for general public discourse.” Johnson
v. Perry, 859 F.3d 156, 172 (2d Cir. 2017) (quoting Peck v. Baldwinsville Cent.
Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)). “The government does not create
a public forum by inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public discourse.” Cornelius,
473 U.S. at 802. Examples include university meeting facilities and municipal
theatres. See United Methodist Parish v. Bd. of Educ. of City Sch. Dist. of City of
Newburgh, 907 F. Supp. 707, 713 (S.D.N.Y. 1995).
“Speech in a designated public forum is entitled to the same
constitutional protection as that extended to expression in a traditional public
forum, so long as the state continues to designate the forum for such use.”
Peck, 426 F.3d at 626. That is, in designated public forums, content-based
restrictions on speech must survive strict scrutiny. See Pleasant Grove City,
555 U.S. at 469-70; Int’l Action Ctr. v. City of New York, 587 F.3d 521, 526-27
(2d Cir. 2009); Hotel Emps., 311 F.3d at 545.

12

A space is presumptively a public forum if it is “generally open to the public,” Widmar v.
Vincent, 454 U.S. 263, 268 (1981), “designed for and dedicated to expressive activities,”
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975), or “has as a
principal purpose … the free exchange of ideas,” Int’l Soc’y for Krishna Consciousness,
Inc. v. Lee, 505 U.S. 672, 679 (1992) (citation omitted).

28

A limited public forum is a subset of the designated public forum. It
arises “where the government opens a non-public forum but limits the
expressive activity to certain kinds of speakers or to the discussion of certain
subjects.” Hotel Emps., 311 F.3d at 545 (quoting N.Y. Magazine v. Metro.
Transp. Auth., 136 F.3d 123, 128 n.2 (2d Cir. 1998)). Once a government “has
opened a limited forum . . . , [it] must respect the lawful boundaries it has itself
set.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995);
see also Ross Rinehart, “Friending” and “Following” the Government: How the
Public Forum and Government Speech Doctrines Discourage the Government’s
Social Media Presence, 22 S. Cal. Interdisc. L.J. 781, 788-89 (Spring 2013)
(“When a state opens a limited public forum but excludes a speaker who falls
within the class of speakers to whom the forum is made available or whose
speech concerns a subject matter for which the forum is dedicated, the state’s
exclusion is subject to strict scrutiny.” (citing Ark. Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 672 (1998)). Restrictions on speech that is not within
the type of expression allowed in a limited public forum must only be
reasonable and viewpoint-neutral. See, e.g., Fighting Finest v. Bratton, 95 F.3d
224, 227 (2d Cir. 1996) (corrected opinion).
The third category is that of nonpublic forums, which consist of spaces
that “the government has not opened for expressive activity by members of the
public.” Hotel Emps., 311 F.3d at 546; see also Perry Educ. Ass’n, 460 U.S. at
45-46. The state has more control over speech in nonpublic forums than in
public forums because “its actions [in nonpublic forums] are most analogous to

29

that of a private owner.” Paulsen, 925 F.2d at 69. In nonpublic forums, the
government may restrict speech so long as the restrictions are “reasonable and
not an effort to suppress expression merely because public officials oppose the
speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46; Hotel Emps., 311 F.3d at
546 (“The government may restrict speech in non-public fora subject only to
the requirements of reasonableness and viewpoint neutrality.”).
Regardless of where it occurs, however, the government’s own speech “is
exempt from First Amendment scrutiny.” Johanns v. Livestock Mktg. Ass’n,
544 U.S. 550, 553 (2005). Instead, when the government engages in its own
speech, it is permitted to “speak for itself” and to “select the views that it wants
to express.” Pleasant Grove City, 555 U.S. at 467-68 (upholding a local
government’s exclusion of a proposed privately funded monument from a
public park, and holding that the government’s display of a permanent
monument in a public park is not a form of expression limited by the Free
Speech Clause); see also Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“The First
Amendment prohibits Congress and other government entities and actors from
‘abridging the freedom of speech’; the First Amendment does not say that
Congress and other government entities must abridge their own ability to
speak freely.”); Latino Officers Ass’n, N.Y., Inc. v. City of New York, 196 F.3d
458, 468 (2d Cir. 1999) (“[I]t is well settled that the government may regulate
its own expression in ways that would be unconstitutional were a private party
the speaker.”); United Veterans Mem’l & Patriotic Ass’n of the City of New
Rochelle v. City of New Rochelle, 72 F. Supp. 3d 468, 474 (S.D.N.Y. 2014)

30

(“[B]ecause the Free Speech Clause does not restrict government speech, forum
analysis does not apply at all when the government is speaking for itself.”
(citing Pleasant Grove City, 555 U.S. at 480-81)), aff’d, 615 F. App’x 693 (2d
Cir. 2015) (summary order)). When determining whether speech should be
attributed to the government, rather than to a private party, courts must
consider: (i) whether the government has long used the forum to communicate
its message, (ii) whether the particular speech at issue is “closely identified in
the public mind with the government,” and (iii) whether the government
maintains direct “control over the messages conveyed” in the forum. Walker v.
Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2248-49 (2015); see
also Matal, 137 S. Ct. at 1757-60 (discussing the government speech doctrine
and concluding that trademarks are private speech, not government speech);
United Veterans Mem’l, 72 F. Supp. 3d at 474 (noting that in Pleasant Grove
City, the Supreme Court “did not announce a test for identifying government
speech, but it placed considerable emphasis on whether, based on all the
circumstances, a reasonable observer would have concluded that the
government was the speaker”).
In this case, the City Defendants contend that the entirety of the official
Twitter feeds — including publicly viewable reply tweets from Plaintiff and
other members of the public — constitute government speech, such that they
can control their content by blocking replies from others. (Def. Br. 9-12). In
support, they argue that Walker — a case in which the Supreme Court upheld
Texas’s scheme for specialty license plate designs, even though it rejected a

31

design that presented certain messages that the state did not wish to publicly
support or adopt — favors its position. The Court is not persuaded. See Matal,
137 S. Ct. at 1758 (characterizing the government speech doctrine as
“essential” but “susceptible to dangerous misuse”). And here it will focus, as
Judge Buchwald did, on “the ‘interactive space’ associated with each tweet in
which other users may directly interact with the content of the tweets by, for
example, replying to, retweeting, or liking the tweet.” Trump, 2018 WL
2327290, at *14.
None of the factors set forth in Pleasant Grove City or Walker favors the
City Defendants’ argument for government speech. Most importantly,
reasonable observers of the official Twitter accounts would understand that
Plaintiff’s reply tweets — those that sharply criticized the City’s handling of
domestic abuse victims and warning other victims of the possible consequences
of relying on City agencies for assistance — were not the City’s own speech, but
were Plaintiff’s alone. These messages emanated from Plaintiff’s own Twitter
account and clearly identified Plaintiff (or at least her Twitter account) as the
speaker. The City Defendants cannot credibly suggest that the public would
confuse Plaintiff’s posts criticizing the City as being the City’s own speech.
The other factors likewise counsel against a finding of government
speech. The City has not long used Twitter specifically, or social media
generally, to convey its messages, as social media websites are relatively recent
phenomena. Messages that emanate from Plaintiff’s Twitter account cannot be
said to be “closely identified in the public mind” with the City. The City does

32

not — and in fact, cannot — exercise direct control over messages from
Plaintiff’s own Twitter account. Cf. Walker, 135 S. Ct. at 2248-49. 13 The Court
therefore concludes that the conduct of Brooks and Obe in blocking Plaintiff
from the official Twitter accounts cannot be classified as government speech. It
is instead governed by the Free Speech Clause of the First Amendment. 14
The Court therefore turns to the difficult task of forum analysis. In
Davison v. Loudoun County Board of Supervisors, No. 16 Civ. 0932 (JCC), 2016
WL 4801617 (E.D. Va. Sept. 14, 2016) — a nonbinding district court case with
similar facts to those at issue here — the pro se plaintiff accessed the official
Facebook page of the Loudoun County Government and posted a message on
the page that was critical of the government’s handling of an open-records
request. The webpage’s manager, an employee of the Loudoun County
government, deleted the comment in apparent violation of the county’s own

13

As Plaintiff alleges in the FAC, “[t]here is no ability of an account owner to delete
another user’s tweet to his account without blocking the other user.” (FAC ¶ 89). See
also Monroe v. Hopkins, (2017) EWHC 433 (QB), at Appendix ¶ 24 (“If @Person really
[does not] like tweets by @Stranger, they can ‘Block’ @Stranger, and neither @Person
nor @Stranger will be able to receive each other’s tweets into their respective Timelines
or view each other’s tweets on each other’s Profiles. However, no tweets are deleted by
blocking, and all tweets of a Blocked person are still available for everyone else to see as
before, including in any search results.”), available at https://www.judiciary.gov.uk/
judgments/judgment-monroe-v-hopkins. Because the City lacks the ability to delete
any account’s tweets other than its own, it cannot credibly claim direct control over the
messages posted in reply to its tweets.

14

The Court is aware of Morgan v. Bevin, No. 17 Civ. 60 (GFVT), 2018 WL 1557300 (E.D.
Ky. Mar. 30, 2018), a district court opinion that denied a preliminary injunction to two
plaintiffs who were blocked from viewing or commenting on the Twitter and Facebook
pages for the Governor of Kentucky. That court held that the governor’s social media
pages — including critical comments posted by the governor’s constituents about
matters of public concern, i.e., the governor’s right-to-work policies and his thenoverdue property taxes — were government speech not subject to the Free Speech
Clause. Id. at 3, 6. For the reasons set forth above, this Court declines to follow
Morgan.

33

Social Media Comments Policy. Plaintiff posted another comment that
protested the alleged violation of his free speech rights, and that message was
also deleted, as well as two subsequent postings — making all of Plaintiff’s
postings invisible to the public. See id. at *1-2.
The plaintiff sued under 42 U.S.C. § 1983, for violation of his First
Amendment rights. In support of its motion to dismiss, the government
conceded that “in adopting a Social Media Comments Policy, the County
designated its Facebook page a limited public forum,” but nevertheless argued
that “because the County reserved the right to moderate comments, the
removal of [p]laintiff’s comments [did] not implicate the First Amendment.” Id.
at *6-7 (citations omitted). The district court rejected the defendants’
argument, stating that “[o]nce [the government] had opened a limited forum …
the State must respect the lawful boundaries it has itself set,” and thus,
“[h]aving adopted the Social Media Comments Policy, the County government is
bound to abide by its terms.” Id. at *7 (citing Rosenberger, 515 U.S. at 829).
The district court denied the government’s motion to dismiss the complaint,
and later denied a government official’s motion to dismiss the First Amendment
claim related to blocking Plaintiff’s critical comment from the official’s
Facebook page. See Davison v. Loudoun Cnty. Bd. of Supervisors, 227 F. Supp.
3d 605, 610-12 (E.D. Va. 2017).
While Davison confronted similar issues to those present here, it is of
limited assistance to this Court: there, the defendants conceded that the
county’s official Facebook account constituted a limited public forum, but here,

34

the City Defendants make no such concession. In any event, if forced to
resolve, this Court would be inclined to find that the City’s official Twitter
accounts do not constitute a traditional public forum. The Supreme Court
“has rejected the view that traditional public forum status extends beyond its
historic confines,” Ark. Educ. Television Comm’n, 523 U.S. at 678 (citing Int’l
Soc’y for Krishna Consciousness, 505 U.S. at 680-81), which consist of public
streets, parks and sidewalks, see Perry Educ. Ass’n, 460 U.S. at 45. See also
United States v. Am. Library Ass’n, 539 U.S. 194, 205-06 (2003) (“The doctrines
surrounding traditional public forums may not be extended to situations where
such history is lacking.”).
The Court would also likely be inclined to reject the notion that the City’s
official Twitter pages are nonpublic forums, because by creating the Twitter
accounts and interacting with the public, it has opened those forums “for
expressive activity by members of the public.” Hotel Emps., 311 F.3d at 546;
see also Perry Educ. Ass’n, 460 U.S. at 45-46. In fact, the City’s official Twitter
pages share many characteristics of public forums, even if not traditional
public forums: Twitter is “generally open to the public,” Widmar v. Vincent, 454
U.S. 263, 268 (1981); appears to be “designed for and dedicated to expressive
activities,” Southeastern Promotions, 420 U.S. at 555; and appears to have “as a
principal purpose … the free exchange of ideas,” Int’l Soc’y for Krishna
Consciousness, 505 U.S. at 679 (citation omitted).
The Court, however, need not resolve the issue now. The FAC sets forth
facts suggesting that Plaintiff posted tweets in the interactive sections of two

35

Twitter accounts, under her own account name and attributed to her alone,
that criticized City agencies and officials for failing to adequately serve
domestic violence victims and that warned other victims of the consequences of
seeking help from City agencies. Very shortly after posting the critical tweets,
Obe and Brooks blocked Plaintiff from the official accounts. (See FAC ¶¶ 10214). These allegations strongly suggest that Obe and Brooks blocked Plaintiff
from the official Twitter accounts because of her critical comments and to
prevent her from publicly criticizing City officials in those forums. That is, it
appears that Obe and Brooks expelled Plaintiff from the official Twitter
accounts on the basis of her viewpoint. See Rosenberger, 515 U.S. at 829
(stating that “viewpoint discrimination” is “an egregious form of content
discrimination” in which the government “targets not subject matter, but
particular views taken by speakers on a subject”).
Regardless of whether it occurs in a public, designated, or nonpublic
forum, viewpoint discrimination that results in the intentional, targeted
expulsion of individuals from these forums violates the Free Speech Clause of
the First Amendment. See Rosenberger, 515 U.S. at 820 (holding that the
government is prohibited from “exercis[ing] viewpoint discrimination, even
when the … forum is one of its own creation”); Make the Road by Walking, 378
F.3d at 143 (requiring viewpoint neutrality even in nonpublic forum). Because
viewpoint discrimination, such as that alleged by Plaintiff in this action, is
unlawful in any forum subject to the Free Speech Clause, the Court finds that

36

Plaintiff has adequately alleged that Obe and Brooks violated her rights under
the First Amendment.
This is not the end of the analysis, however, as Obe and Brooks contend
that they are entitled to qualified immunity. 15 They argue qualified immunity
is appropriate because “there is no controlling authority in this jurisdiction on
whether a government[-]operated Twitter account can block a private user’s
account.” (Def. Br. 14). They add that even those courts outside of this Circuit
that have addressed analogous issues have “failed to create a clear standard
that would allow these individuals to know that their actions in blocking
[Plaintiff] violated the First Amendment.” (Id. at 13).
Plaintiff counters by framing the constitutional issue much more broadly.
She states:
Defendants’ claim that their actions were permissible
under the doctrine of qualified immunity, such that
they could not know of the supposed right to not be
15

The Court is within its discretion to resolve the constitutional issue before addressing
the defense of qualified immunity. Reaching the constitutional issue before considering
qualified immunity “is often beneficial” because it “promotes the development of
constitutional precedent and is especially valuable with respect to questions that do not
frequently arise in cases in which a qualified immunity defense is unavailable.” Pearson
v. Callahan, 555 U.S. 223, 236 (2009); see also Plumhoff v. Rickard, 134 S. Ct. 2012,
2020 (2014) (resolving the Fourth Amendment question before reaching the issue of
qualified immunity). This is entirely consistent with the courts’ long-standing obligation
to “say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803); see also
Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified
Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement
of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L.
Rev. 1219, 1249 (May 2015) (“[I]f a court reviewing a constitutional claim to which
qualified immunity applies [does] not address the merits of the claim, the same right
may be violated time and again, with courts declining each time to provide a remedy or
state the law for future cases.”); Michael T. Kirkpatrick and Joshua Matz, Avoiding
Permanent Limbo: Qualified Immunity and the Elaboration of Constitutional Rights from
Saucier to Camreta (and Beyond), 80 Fordham L. Rev. 643, 678 (Nov. 2011)
(encouraging courts to reach the merits in civil rights actions where the constitutional
injuries at issue “are particularly ill-suited to development through alternative
dynamics”).

37

blocked on Twitter, misses the point entirely. The
Plaintiff’s right which was violated is the right to not be
discriminated [against] based on her viewpoint ….
Defendants, as city officials, cannot be entitled to
qualified immunity simply because the technology of
the interface changes with time.
(Pl. Opp. 13). The FAC and Plaintiff’s memorandum of law in opposition, taken
together, can also be construed as suggesting that Obe and Brooks had fair
warning, from at least two different sources, that their conduct was unlawful:
(i) appellate authority holding that, generally speaking, viewpoint
discrimination is unlawful in forums subject to the Free Speech Clause, and
(ii) the City’s own Social Media Policy — that is, its own internal regulation —
which prohibits the City’s social media moderators from blocking a person on
Twitter because of a disfavored viewpoint. (See, e.g., FAC ¶ 138).
Although Plaintiff did not cite the case, her argument echoes the
reasoning of Hope v. Pelzer, 536 U.S. 730 (2002) — a case where the Supreme
Court denied qualified immunity to prison guards who twice handcuffed a
prisoner to a hitching post, with one of the occasions lasting seven hours, and
with the prisoner outside in the Alabama summer sun without a shirt, water,
or bathroom breaks. The Supreme Court held that state prison regulations
and a report of the U.S. Department of Justice that criticized the “hitching
post” practice — in addition to federal appellate authority addressing similar,
but by no means identical situations — were sufficient to clearly establish the
law and put the guards on notice that their conduct was unlawful. Id. at 74142. The Court explained that “officials can still be on notice that their conduct
violates established law even in novel factual circumstances.” Id. at 741; see
38

also United States v. Lanier, 520 U.S. 259, 271 (1997) (“There has never
been … a section 1983 case accusing welfare officials of selling foster children
into slavery; it does not follow that if such a case arose, the officials would be
immune from damages [or criminal] liability.” (alteration in original) (citation
omitted)). In so doing, the Supreme Court rejected the Eleventh Circuit’s
requirement that, for qualified immunity purposes, the previous cases holding
the conduct to be unlawful must be “materially similar” to the case at bar,
Hope, 536 U.S. at 739, and cautioned against “the danger of a rigid
overreliance on factual similarity,” id. at 742. Instead, the Supreme Court held
that the “salient question” is whether the state of the law at the time of the
subject incident gave public officials “fair warning” that the conduct was
unlawful. Id. at 741.
The Supreme Court has never overruled Hope, but its retreat from that
decision is palpable. 16 Two years after Hope was decided, the Supreme Court
characterized that case as standing for the narrow proposition that the absence
of federal appellate authority supporting a claim is not fatal in cases where the
16

Academic literature reflects this assessment. See, e.g., Karen Blum et al., Qualified
Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 654
(2013) (“The Court’s language in Hope is clearly more ‘plaintiff-friendly,’ but since that
decision, the ‘fair warning’ formula has been virtually ignored by the Supreme Court.”
(citation omitted)); Daniel K. Siegel, Clearly Established Enough: The Fourth Circuit’s
New Approach to Qualified Immunity in Bellotte v. Edwards, 90 N.C. L. Rev. 1241, 1252
(May 2012) (discussing the modern trend among the circuits to require a case on point
for law to be clearly established); see also Tahir Duckett, Unreasonably Immune:
Rethinking Qualified Immunity in Fourth Amendment Excessive Force Cases, 53 Am.
Crim. L. Rev. 409, 429 (Spring 2016) (“[Hope] applies only to actions that ‘obviously run
afoul of the law,’ and it has rarely been applied. Only once has a Supreme Court
Justice applied [Hope] to conclude that an officer was put on notice in novel factual
circumstances, and it was in a dissent. And only once has the Supreme Court applied
[Hope] to a case where the officer was not found to have qualified immunity.” (footnote
call numbers omitted)).

39

constitutional violation is “obvious.” See Brosseau v. Haugen, 543 U.S. 194,
199 (2004) (per curiam). And despite the wave of Supreme Court cases
addressing (and granting) qualified immunity in recent years, no Supreme
Court majority has cited Hope in the qualified immunity context for
approximately four years, see Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014),
and none has cited its “novel circumstances” holding in almost nine years, see
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377-78 (2009).
In this action, Plaintiff argues that Brooks and Obe are not entitled to
qualified immunity because, generally speaking, government officials should
know that viewpoint discrimination is unlawful in any forum. (Pl. Opp. 13).
But the Supreme Court has repeatedly instructed lower courts “not to define
clearly established law at a high level of generality.” Kisela, 138 S. Ct. at 1152
(citations and quotation marks omitted); see also White v. Pauly, 137 S. Ct.
548, 552 (2017); Plumhoff, 134 S. Ct. at 2023. The Second Circuit has followed
suit. See, e.g., McGowan v. United States, 825 F.3d 118, 122-25 (2d Cir. 2016)
(holding that appellate cases “establishing the right of a prisoner to be free
from retaliation for filing a lawsuit or grievance” did not clearly establish the
unlawfulness of retaliating against a prisoner for authoring an article, under
his own byline, that was critical of prison policies).
Here, neither the parties nor the Court has “identified any binding
authority in existence at the relevant time that . . . ‘directly address[ed]’ the
reasonableness of the challenged conduct,” see McGowan, 825 F.3d at 124
(quoting Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2014)), particularly in the

40

context of First Amendment claims concerning the government’s use of social
media. Nor have decisions from other circuits “clearly foreshadow[ed] a
particular ruling on the issue.” Scott v. Fischer, 616 F.3d 100, 105 (2d Cir.
2010); see also al-Kidd, 563 U.S. at 742 (requiring, in the absence of
controlling authority, “a robust ‘consensus of cases of persuasive authority’”
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))). 17 After careful
consideration, the Court concludes that it must grant qualified immunity to
Brooks and Obe on the individual-capacity claims against them.
Turning to the individual-capacity claim against Pierre-Louis, the parties
vigorously dispute whether Pierre-Louis acted under color of law when she
blocked Plaintiff from the @RPLNYC Twitter account. But the Court need not
resolve this dispute. Even if Pierre-Louis did act under color of law, she would
be entitled to qualified immunity because at the time of the challenged
conduct, there was neither binding authority nor “a robust ‘consensus of cases
of persuasive authority’” holding that her conduct was unlawful. See al-Kidd,
563 U.S. at 742 (quoting Wilson, 526 U.S. at 617). The Court therefore grants

17

In Hope, the Supreme Court appeared to hold that the law could be clearly established
by state regulations and guidance from the U.S. Department of Justice concerning the
challenged conduct. 536 U.S. at 741-42. In this case, Plaintiff alleges that “[t]he City
Social Media Policy provides that a comment may be deleted if it violates the comment
policy” and that the policy dictates that “people are not to be blocked on Social Media
based on viewpoint.” (FAC ¶¶ 94, 138). If Hope were the last word on qualified
immunity, which it is not, the Court might be inclined to conclude that the City’s Social
Media Policy provided fair warning to Brooks and Obe that their conduct — blocking
Plaintiff from the official Twitter accounts because of her viewpoint — was unlawful,
and therefore deny them qualified immunity. But the Court does not conclude as such
because Hope’s holding has been cabined to “obvious” cases, see Brosseau v. Haugen,
543 U.S. 194, 199 (2004) (per curiam), and because the influence of Hope is at a low
ebb, see, e.g., McGowan v. United States, 825 F.3d 118, 122-25 (2d Cir. 2016).

41

qualified immunity to Pierre-Louis on the individual-capacity claims against
her.
The Court next considers whether the City of New York, through its
policies, practices, or widespread customs, caused the violation of Plaintiff’s
rights under the First Amendment. See Askins v. Doe, 727 F.3d 248, 254-55
(2d Cir. 2013) (holding that qualified immunity is a defense available only to
individuals sued in their individual capacities; municipalities have no
immunity from damages for liability flowing from their constitutional
violations). 18 Plaintiff does not appear to allege that the City had an official
policy of blocking commenters on social media because of their viewpoint.
Rather, she alleges that the City’s official policy was that its social media
moderators — such as Brooks and Obe — may not block commenters based
upon their expressed viewpoint. (FAC ¶ 138). Stated another way, she has not
alleged that an official City policy caused the violation of her First Amendment
rights; she contends that Brooks’s and Obe’s departure from official policy
caused the harm.
Instead, Plaintiff appears to invoke three other theories of municipal
liability under § 1983: (i) the existence of an unlawful practice by subordinate
officials, which was so widespread and well settled as to constitute a custom or
usage of the municipality, caused the constitutional violation; (ii) the failure to
train amounted to deliberate indifference to the rights of those with whom the

18

At the same time, the Court addresses the official-capacity claims against Brooks, Obe,
and Pierre-Louis.

42

municipality’s employees interact, thereby causing the constitutional injury;
and (iii) that the official responsible for establishing the policy, with respect to
the subject matter in question to the specific action, caused the constitutional
violation. (FAC ¶¶ 139-49).
Concerning the first theory, “Monell’s policy or custom requirement is
satisfied where a local government is faced with a pattern of misconduct and
does nothing, compelling the conclusion that the local government has
acquiesced in or tacitly authorized its subordinates’ unlawful actions.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). Plaintiff does not allege
that any person besides herself was blocked by the City’s social media
moderators. She instead alleges that an informal but widespread custom must
have existed because she was blocked on three occasions by three separate
City employees. (FAC ¶ 139).
But Plaintiff’s allegations of three similar constitutional violations do not
allow the Court plausibly to infer the existence of a widespread custom or
practice that can be attributed to the City. See Jones, 691 F.3d at 85 (holding
that three incidents “fell far short of showing a policy, custom, or usage of
officers”); Giaccio v. City of New York, 308 F. App’x 470, 472 (2d Cir. 2009)
(summary order) (stating that four similar constitutional violations “falls far
short of establishing a practice that is ‘so persistent or widespread’ as to justify
the imposition of municipal liability”); White v. City of New York, No. 15 Civ.
6696 (GHW), 2016 WL 4750180, at *12 (S.D.N.Y. Sept. 12, 2016) (holding that
six incidents over five years were insufficient to plausibly allege the existence of

43

a municipal policy); Davis v. City of New York, 228 F. Supp. 2d 327, 346
(S.D.N.Y. 2002) (“[T]wo incidents of unconstitutional conduct by low-level
employees in a city agency with over 35,000 employees can never provide a
reasonable basis for finding a widespread or well-settled custom.”). The Court
therefore concludes that Plaintiff fails to allege plausibly that a widespread
municipal custom exists.
Plaintiff also asserts a Monell claim against the City based upon its
alleged failure to train its employees about the interplay between social media
use and the First Amendment. The Supreme Court has explained that “[a]
municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Connick, 563 U.S. at 61. “Where
municipal liability is based on … inaction, rigorous standards of culpability
and causation must be applied to ensure against vicarious liability.” Matusick
v. Erie Cty. Water Auth., 757 F.3d 31, 73 (2d Cir. 2014) (internal quotation
marks omitted) (quoting Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S. at 405).
In order for municipal liability to attach on a failure-to-train theory, “a
municipality’s failure to train its employees in a relevant respect must amount
to ‘deliberate indifference to the rights of persons with whom the [untrained
employees] come into contact.’” Connick, 563 U.S. at 61 (citing City of Canton,
489 U.S. at 388). “A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference for
purposes of failure to train.” Id. at 62 (internal quotation marks and citation
omitted). To allege deliberate indifference in the context of a failure-to-train

44

claim, a plaintiff must plead facts giving rise to a plausible inference that (i) the
municipality knows “to a moral certainty” that its employees will confront a
given situation, (ii) either the situation presents the employees with a difficult
choice of the sort that training will make less difficult, or there is a history of
employees mishandling the situation, and (iii) the wrong choice by the
employee will frequently cause a constitutional deprivation. Walker v. City of
New York, 974 F.2d 293, 297-98 (2d Cir. 1992).
Plaintiff alleges that “[t]he City’s failure to train employees on the proper
use of social media carries a high risk that deleting comments or blocking
users will cause violations of those users’ First Amendment rights.” (FAC
¶ 140). This allegation, without more, does not “nudge[ ] [Plaintiff’s] claims
across the line from conceivable to plausible,” Twombly, 550 U.S. at 570, and
fails to meet the “rigorous standard of culpability and causation” required to
plead municipal liability based upon alleged municipal inaction, Matusick, 757
F.3d at 73; see also Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” (quoting Twombly, 550 U.S. at 555, 557)).
Plaintiff’s bare allegation therefore does not state a claim of deliberate
indifference by the City.
Even when the Court liberally construes the operative pleading, there is
no suggestion that before Brooks, Obe, and Pierre-Louis blocked Plaintiff from
the Twitter accounts at issue, the City knew of “[a] pattern of similar

45

constitutional violations by untrained employees.” Connick, 563 U.S. at 62. A
municipality cannot act with deliberate indifference if it had no reason to
believe its employees would engage in the unconstitutional conduct at issue.
See DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); Walker, 974 F.2d at 297-98.
It may well be that this lawsuit, and this Opinion, place the City on notice of
the need to train its employees that viewpoint discrimination is unlawful in
forums governed by the Free Speech Clause, including the City’s official Twitter
accounts. Indeed, the Court hopes that it does. But that does not mean that
the City’s alleged failure to train — when it had no reason to believe “to a moral
certainty” that its failure would result in constitutional violations, see Walker,
974 F.2d at 297 — caused the violation of Plaintiff’s First Amendment rights.
Finally, although the FAC is not entirely clear, it can be read to suggest
that the City should be liable because its employees failed to correct the
problem — that is, unblock Plaintiff on Twitter — after Plaintiff made them
aware of what had happened. Plaintiff specifically alleges that she lodged
complaints with 311, Pierre-Louis, and NYPD Commissioner James O’Neill.
(See FAC ¶¶ 141-49). By making these allegations, Plaintiff may be attempting
to argue that the City of New York itself undertook the alleged conduct
pursuant to a policymaker’s adoption or ratification of his subordinates’
conduct. See Pembauer, 475 U.S. at 481 (“[M]unicipal liability may be imposed
for a single decision by municipal policymakers … where the decisionmaker
possesses final authority to establish municipal policy with respect to the
action.”); Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir.

46

2006) (recognizing that a superior’s awareness of subordinate’s
unconstitutional conduct imposes municipal liability under Monell based on
ratification or deliberate indifference).
It is true that Commissioner O’Neill is a “policymaker” for Monell
purposes, such that his decisions can bind the City of New York. See N.Y. City
Charter § 434; Domenech v. City of New York, 919 F. Supp. 702, 710 & n.1
(S.D.N.Y. 1996). But Plaintiff’s bare allegation that she “complained orally to
NYPD Commissioner James O’Neill about being blocked on Twitter” is
insufficient to show that O’Neill knew that his subordinates blocked Plaintiff for
unconstitutional reasons. See Praprotnik, 485 U.S. at 127 (“If the authorized
policymakers approve a subordinate’s decision and the basis for it, their
ratification would be chargeable to the municipality because their decision is
final.” (emphasis added)); Davis v. City of New York, 228 F. Supp. 2d 327, 34142 (S.D.N.Y. 2002) (holding that city could not be liable on grounds that former
Commissioner knew subordinates refused to reinstate the plaintiff without
proof that he knew such refusal was because the plaintiff had exercised his
First Amendment rights). Because Plaintiff fails to allege that O’Neill knew that
Obe and Brooks blocked Plaintiff because of her viewpoint, and because the
allegations do not suggest that O’Neill agreed with his employees’ decision to
engage in viewpoint discrimination, Plaintiff fails to allege plausibly that the
City ratified or adopted the conduct of Brooks and Obe.
For these reasons, the Court grants the City Defendants’ motion to
dismiss the Monell claim against the City of New York, and the official-capacity

47

claims against Obe, Brooks, and Pierre-Louis, related to the their blocking of
Plaintiff from the subject Twitter accounts. See Fed. R. Civ. P. 12(b)(6).
Due Process Claims Against the City Defendants
Plaintiff also asserts substantive due process claims, under the Due
Process Clause of the Fourteenth Amendment, against the City Defendants.
These claims relate to Plaintiff’s assault by an unidentified person on
January 24, 2017. (See FAC ¶¶ 170-82). The FAC appears to limit this claim
to the alleged failure of Emmett, Dejesus, and Shevitz to investigate and file a
formal report concerning Plaintiff’s assault on January 24, 2017. (See id. at
¶ 190 (“The denial of services to Ms. Price on January 24, 2017, and thereafter
as set forth above violated Ms. Price’s rights under the Fourteenth
Amendment.”)). The Court understands this allegation as suggesting that
Plaintiff has a freestanding constitutional right to have police investigate her
assault and file a formal report or complaint, and that Defendants violated that
right.
But to the extent that Plaintiff asserts a freestanding constitutional right
to have her assault complaint investigated, she fails to state a claim for relief.
Generally speaking, crime victims do not have a stand-alone constitutional
right to have officers investigate their complaints. See Troy v. City of New York,
No. 13 Civ. 5082 (AJN), 2014 WL 4804479, at *6 (S.D.N.Y. Sept. 25, 2014)
(holding that there is “no constitutional right to an investigation by government
officials”), aff’d, 614 F. App’x 32 (2d Cir. 2015) (summary order); Lewis v.
Gallivan, 315 F. Supp. 2d 313, 316 (W.D.N.Y. 2004) (“[T]he law is well settled

48

that no private citizen has a constitutional right to bring a criminal complaint
against another individual.”); cf. Harrington v. Cty. of Suffolk, 607 F.3d 31, 35
(2d Cir. 2010) (in the procedural due process context, holding that parents had
no constitutional due process property interest in adequate police investigation
of motor vehicle collision that killed their son). The Court must therefore
dismiss Plaintiff’s claims concerning a stand-alone constitutional right to have
her assault complaint investigated by the police.
In light of the Plaintiff’s pro se status, the Court alternatively construes
Plaintiff’s allegations as suggesting that the City Defendants — through their
alleged history of inaction toward Plaintiff’s allegations of assaults over the
years — caused the assault of January 24, 2017, in violation of Plaintiff’s
substantive due process rights.
“[T]he Due Process Clause is phrased as a limitation on the State’s power
to act, not as a guarantee of certain minimal levels of safety and security.”
Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (internal quotation marks
omitted). For that reason, “[o]nly an affirmative act can amount to a violation
of substantive due process.” Id. Governmental action resulting in bodily harm
is not a substantive due process violation unless the state “action was so
‘egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). It is therefore insufficient
to simply allege that a state actor failed to protect an individual, even from a
known danger of bodily harm, or failed to warn that individual of such danger.

49

See Collins v. City of Harker Heights, 503 U.S. 115, 125-29 (1992). “This
includes dangers arising from private parties.” Estate of M.D. by DeCosmo v.
New York, 241 F. Supp. 3d 413, 425 (S.D.N.Y. 2017) (holding that a father
failed to state a substantive due process claim against government officials who
were aware of complaints of child abuse by the child’s mother’s paramour and
who did not prevent the paramour from further harming the child).
As the Supreme Court has explained, the purpose of the Due Process
Clause of the Fourteenth Amendment is “to protect the people from the State,
not to ensure that the State protected them from each other.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). “[N]othing in
the language of the Due Process Clause itself requires the State to protect the
life, liberty, and property of its citizens against invasion by private actors,” id.
at 195, and the language of the Due Process Clause “cannot fairly be extended
to impose an affirmative obligation on the State to ensure that those interests
do not come to harm through other means,” id.
It is true that in exceptional circumstances, “a governmental entity may
have a constitutional obligation to provide protection, either because of a
special relationship with an individual, or because the governmental entity
itself has created or increased the danger to the individual.” Ying Jing Gan v.
City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (citing DeShaney, 489 U.S.
at 198). The Court below examines these two exceptions to the general
DeShaney rule.

50

First, Plaintiff may contend that as a frequent crime victim, she had a
“special relationship” with the NYPD that entitled her to protection from assault
by private parties. This allegation is insufficient to trigger the “special
relationship” exception. In DeShaney, the Supreme Court stated that a special
relationship, for substantive due process purposes, springs “from the limitation
which [the government] has imposed on [the plaintiff’s] freedom to act on [her]
own behalf.” 489 U.S. at 200. For this reason, “involuntary custody” is “the
linchpin of any special relationship exception.” Matican v. City of New York,
524 F.3d 151, 156 (2d Cir. 2008) (collecting cases); see also Cruz v. N.Y.C.
Hous. Auth., No. 03 Civ. 8031 (RJH), 2004 WL 1970143, at *8 (S.D.N.Y. Sept. 3,
2004) (“[T]he Second Circuit has . . . only recognized ‘custodial relationships
such as a prison and inmate or a mental institution and involuntarily
committed patient, and the relationship between a social service agency and
foster child’ as imposing an affirmative duty to protect on state actors.”
(quoting Ying Jing Gan, 996 F.2d at 533)).
In this case, the alleged harm is Plaintiff’s assault by an unknown person
on January 24, 2017. Plaintiff was not in the government’s physical custody at
any time relevant to that assault. Therefore, the City Defendants’ conduct —
allegedly refusing to investigate Plaintiff’s reports of crimes over the past
several years — does not rise to the level of a “limitation on [Plaintiff’s] freedom
to act on [her] own behalf.” DeShaney, 489 U.S. at 200. The Court therefore
finds that Plaintiff’s allegations are insufficient to invoke the special
relationship exception.

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Second, Plaintiff may contend that the City Defendants’ alleged refusal to
process her assault complaints over the past several years, or otherwise
investigate the crimes against her, “has created or increased the danger to
[her].” Ying Jing Gan, 996 F.2d at 533 (citing DeShaney, 489 U.S. at 198).
This is commonly referred to as the “state-created danger” exception. See
Dwares v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993), overruled on
other grounds by Leatherman v. Tarrant Cty. Narc. Intelligence & Coordination
Unit, 507 U.S. 163 (1993); Estate of M.D. by DeCosmo, 241 F. Supp. 3d at 42628 (surveying Second Circuit cases concerning the contours of the exception).
This exception arises when governmental officials provide “a prearranged
official sanction of privately inflicted injury,” Dwares, 985 F.2d at 99, or where
a “state actor aids and abets a private party in subjecting a [person] to
unwanted physical harm,” Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir.
1998); see also Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415,
429 (2d Cir. 2009) (“The affirmative conduct of a government official may give
rise to an actionable due process violation if it communicates, explicitly or
implicitly, official sanction of private violence.”); Pena, 432 F.3d at 111
(“[W]hen … state officials communicate to a private person that he or she will
not be arrested, punished, or otherwise interfered with while engaging in
misconduct that is likely to endanger the life, liberty or property of others,
those officials can be held liable under [§] 1983 for injury caused by the
misconduct under Dwares.”). But “an allegation simply that police officers had
failed to act upon reports of past violence would not implicate the victim’s

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rights under the Due Process Clause[.]” Dwares, 985 F.2d at 99; see also
Pena, 432 F.3d at 109 (“A failure to interfere when misconduct takes place, and
no more, is not sufficient to amount to state created danger.”).
In this action, “any theory of state-created danger is fatally undermined
by the absence of any allegation that [the City Defendants] affirmatively
communicated, even implicitly [to Plaintiff’s unidentified assailant] that abuse
against [Plaintiff] was permissible.” Estate of M.D. by DeCosmo, 241 F. Supp.
3d at 427. Plaintiff does not allege, for instance, that any of the City
Defendants communicated to the unidentified assailant, “explicitly or
implicitly, official sanction of private violence,” Okin, 577 F.3d at 429, or
affirmatively aided and abetted the assault of Plaintiff, see Hemphill, 141 F.3d
at 418. While the City Defendants “may have been aware of the dangers that
[Plaintiff] faced in the free world, [they] played no part in their creation, nor did
[they] do anything to render [Plaintiff] any more vulnerable to them.”
DeShaney, 489 U.S. at 201. Plaintiff’s allegations — although profoundly
troubling to the Court — do not rise to the level of a violation of Plaintiff’s
substantive due process rights. The Court therefore must grant the City
Defendants’ motion to dismiss the substantive due process claims against
them.
Monell Claims Against the City for Acts of MTA Officers
Plaintiff also appears to assert a § 1983 claim against the City of New
York related to her arrest by MTA Police Officers John and Jane Doe. (FAC
¶ 189). The Court must grant the City’s motion to dismiss this claim.

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The MTA and the City of New York are separate and distinct municipal
entities for § 1983 purposes. See Lloyd v. City of New York, No. 12 Civ. 4303
(BMC), 2012 WL 3878116, at *1 n.1 (E.D.N.Y. Sept. 6, 2012) (collecting cases);
Altro v. Conrail, 130 A.D.2d 612 (2d Dep’t 1987) (“The MTA is a public benefit
corporation created to continue and improve railroad commuter transportation
throughout a commuter transportation district including Westchester County
and the City of New York.” (citations omitted)). In this action, Plaintiff does not
sue the MTA. Rather, she attempts to hold the City of New York liable for the
conduct of the MTA’s police officers. But she does not allege any facts
suggesting that the City of New York was a moving force behind her arrest by
MTA officers. She does not, for instance, allege that the MTA police officers
were ever trained or employed by the City of New York or that the City had any
control whatsoever over these officers. See Breitkopf v. Gentile, 41 F. Supp. 3d
220, 259-61 (E.D.N.Y. 2014); cf. N.Y. Magazine, 136 F.3d at 126-27 (holding
that a plaintiff lacked standing to sue the City of New York for harms allegedly
caused by the MTA). Plaintiff therefore fails to state a Monell claim against the
City of New York related to her arrest by MTA officers.
CONCLUSION
For the reasons stated above, the Court: (i) DENIES the motion to
dismiss the § 1983 malicious prosecution claim against the City of New York
and Simmons; (ii) GRANTS the motion to dismiss the § 1983 First Amendment
claims against Brooks, Obe, and Pierre-Louis in their individual capacities on
the basis of qualified immunity, and the claims against the City of New York —

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along with Brooks, Obe, and Pierre-Louis in their official capacities — for
failure to state a claim; (iii) GRANTS the City Defendants’ motion to dismiss the
substantive due process claims against them, for failure to state a claim; and
(iv) GRANTS the City’s motion to dismiss the Monell claim related to the false
arrest and malicious prosecution by MTA officers.
The following § 1983 claims remain: (i) malicious prosecution, against
Simmons in her individual and official capacities, and the City of New York;
(ii) false arrest, against Corrado, Cruz, and Staines in their individual
capacities; (iii) false arrest, excessive force, and malicious prosecution, against
MTA Officer John Doe and MTA Officer Jane Doe in their individual capacities.
The parties are ordered to meet and confer and propose a discovery
schedule to the Court, using the Court’s case management plan, on or before
July 20, 2018.
The Clerk of Court is directed to terminate the motion at docket entry
107.
SO ORDERED.
Dated: June 25, 2018
New York, New York
KATHERINE POLK FAILLA
United States District Judge
Sent by First Class Mail to:
Kelly Price
534 W. 187th Street, Apt. #7
New York, NY 10033

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