Adams v. City Of New York, et al

Filing 18

OPINION AND ORDER....The defendants December 14 motion to dismiss is granted in part. The claims against the City of New York are dismissed. The motion to dismiss is denied with respect to the remaining claims against the individual defendants. (Signed by Judge Denise L. Cote on 3/22/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
MICHAEL ADAMS,
:
:
Plaintiff,
:
:
:
-v:
CITY OF NEW YORK, POLICE OFFICER
:
CASTILLO, JOHN DOE #1-3,
:
:
Defendants.
:
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15cv6741 (DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiff:
Nicholas Mindicino
Stoll, Glickman & Bellina, LLP
475 Atlantic Ave., 3rd Floor
Brooklyn, NY 11217
For the defendants:
Michael K. Gertzer
Corporation Counsel of the City of New York
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
This case arises from the arrest and detention of Michael
Adams (“Adams”).

The defendants are the City of New York

(“City”) and individual police officers of the New York Police
Department (“NYPD”), including Officer Jason Castillo
(“Castillo”).

The defendants have moved to dismiss the

complaint in its entirety under Rule 12(b)(6) and 12(c), Fed. R.

1

Civ. P.

For the reasons that follow, only the plaintiff’s

Monell claim against the City is dismissed.
Background
These facts are taken from the complaint.

Adams has

authored a book on the architectural history of Harlem and
engaged in efforts to preserve the Renaissance Ballroom and
Casino (“Renaissance”), which was located on 7th Avenue between
137th and 138th Street in Harlem.

On November 16, 2014, Adams

went to the Renaissance to protest its planned demolition.

His

protest began at approximately 10:25 a.m., and three other
people protested along with Adams.

Adams’s protest largely

consisted of him chanting “Save Harlem Now” on the public
sidewalk.

Adams alleges that he was not creating unreasonable

noise, blocking pedestrian traffic, or preventing access to any
of the buildings located in the area.
Police officers approached Adams shortly before 11:00 a.m.
The police officers told Adams that they were responding to a
complaint about his protest.

Adams replied that he was

exercising his constitutionally protected rights and would not
stop protesting; he refused to leave the area.

The officers

placed Adams under arrest and detained him at the precinct until
approximately 1:00 p.m.

Adams was issued two summonses for

disorderly conduct and released.

The charges against him were

later dismissed.
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Adams brings four causes of action under 42 U.S.C. § 1983
based on these events: (1) false arrest; (2) malicious
prosecution; (3) violations of his First Amendment rights; and
(4) municipal liability for all of these constitutional
violations under Monell.

He also brings what appears to be a

state law claim for false arrest and contends that the City is
liable for that claim under a theory of respondeat superior.
The complaint was filed on August 25, 2015.

The case was

referred to the § 1983 plan under Local Rule 83.10.
has not yet taken place.
dismiss on December 14.

Mediation

The defendants filed a motion to
The plaintiff was given an opportunity

to amend his complaint or oppose that motion.

He elected to

file an opposition, and the motion to dismiss became fully
submitted on January 18.
Discussion
When deciding a motion to dismiss under Rule 12(b), Fed. R.
Civ. P., a court must “accept all allegations in the complaint
as true and draw all inferences in the non-moving party’s
favor.”

LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d

471, 475 (2d Cir. 2009).

“To survive a motion to dismiss under

Rule 12(b)(6), a complaint must allege sufficient facts which,
taken as true, state a plausible claim for relief.”

Keiler v.

Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014); Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must contain
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sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face.”).

“A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Parkcentral

Global Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208
(2d Cir. 2014) (citation omitted).
the same for a 12(c) motion.

The standard of review is

Mantena v. Johnson, 809 F.3d 721,

727 (2d Cir. 2015).
Section 1983 provides a cause of action for damages against
“[e]very person who, under color of any statute . . . of any
State . . . subjects, or causes to be subjected, any citizen . .
. to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws.”
not applicable to § 1983 suits.

Vicarious liability is

Littlejohn v. City of New York,

795 F.3d 297, 314 (2d Cir. 2015).

Thus, “to impose liability on

a municipality under § 1983, a plaintiff must identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s
injury.”

Newton v. City of New York, 779 F.3d 140, 152 (2d Cir.

2015) (citing Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 694 (1978)).
I.

False Arrest

A false arrest claim requires a plaintiff to prove “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
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was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not
otherwise privileged.”

Liranzo v. United States, 690 F.3d 78,

95 (2d Cir. 2012) (citation omitted).
same under New York state law.
F.3d 259, 265 (2d Cir. 2015).

The requirements are the

Simpson v. City of New York, 793
“To avoid liability for a claim

of false arrest, an arresting officer may demonstrate that
either (1) he had probable cause for the arrest, or (2) he is
protected from liability because he has qualified immunity.”
Id.

An officer “has probable cause to arrest when he or she has

knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.”

Garcia v. Does, 779

F.3d 84, 92 (2d Cir. 2015) (citation omitted).

“Probable cause

is determined on the basis of facts known to the arresting
officer at the time of the arrest.”

Shamir v. City of New York,

804 F.3d 553, 557 (2d Cir. 2015) (citation omitted).
The defendants have asserted that they are entitled to
qualified immunity on the plaintiff’s false arrest claim.
“Qualified immunity protects public officials performing
discretionary functions from personal liability in a civil suit
for damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
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reasonable person would have known.”

Morse v. Fusto, 804 F.3d

538, 546 (2d Cir. 2015) (citation omitted).

Qualified immunity

“balances two important interests -- the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability” when they act reasonably.

Pearson v. Callahan, 555

U.S. 223, 231 (2009) (per curiam).
“Whether qualified immunity applies turns on the objective
legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was
taken.”

Morse, 804 F.3d at 546 (citation omitted).

A right is

“clearly established if it would be clear to a reasonable public
official that his conduct was unlawful in the situation he
confronted.”

Id. (citation omitted).

An officer “is entitled

to qualified immunity against a suit for false arrest if he can
establish that he had arguable probable cause to arrest the
plaintiff.”

Garcia, 779 F.3d at 92 (citation omitted).

“Arguable probable cause exists if either (a) it was objectively
reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree
on whether the probable cause test was met.”
omitted).

Id. (citation

Courts “look to the information possessed by the

officer at the time of arrest” when determining whether an

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officer’s conduct was objectively reasonable.

Id. (citation

omitted).
The plaintiff’s false arrest claim thus turns on whether
there was probable cause to arrest him for disorderly conduct.
The defendants’ brief identifies NYPL § 240.20(6) as the only
subsection relevant to Adams’s case. 1

Section 240.20 provides

that: “A person is guilty of disorderly conduct when, with
intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof: . . . (6) He congregates
with other persons in a public place and refuses to comply with
a lawful order of the police to disperse.”

The offense of

disorderly conduct therefore has three elements: “(i) the
defendant’s conduct must be ‘public’ in nature, (ii) it must be
done with ‘intent to cause public inconvenience, annoyance or
alarm’ or with recklessness as to ‘a risk thereof,’ and (iii) it
must match at least one of the descriptions set forth in the
statute.”

Provost v. City of Newburgh, 262 F.3d 146, 157 (2d

Cir. 2001).
“The significance of the public harm element in disorderly
conduct cases cannot be overstated.”

People v. Baker, 20 N.Y.3d

354, 360 (2013); People v. Johnson, 22 N.Y.3d 1162, 1164 (2014)
The probable cause defense to a false arrest claim requires
only that there was probable cause for an arrest; it does not
require that the officer had probable cause to arrest for the
specific offense charged. Marcavage v. City of New York, 689
F.3d 98, 109-10 (2d Cir. 2012).
1

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(“We have made clear that evidence of actual or threatened
public harm . . . is a necessary element of a valid disorderly
conduct charge.”).

In determining whether the arrestee

possessed the requisite intent, therefore, courts consider “many
factors, including the time and place of the episode under
scrutiny; the nature and character of the conduct; the number of
other people in the vicinity; whether they are drawn to the
disturbance and, if so, the nature and number of those
attracted; and any other relevant circumstances.”
N.Y.3d at 360 (citation omitted).

Baker, 20

Ultimately, “a person may be

guilty of disorderly conduct only when the situation extends . .
. to a point where it becomes a potential or immediate public
problem.”

People v. Weaver, 16 N.Y.3d 123, 128 (2011) (citation

omitted).
Section 240.20(6) requires that, in addition to the
requisite intent, an arrestee must refuse to comply with a
lawful dispersal order.

It is axiomatic that the “First

Amendment protects political demonstrations and protests.”
Papineau v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006).

The

Supreme Court “has repeatedly held that police may not interfere
with orderly, nonviolent protests merely because . . . they
simply fear possible disorder.”

Id. (collecting cases); see Cox

v. State of La., 379 U.S. 536, 551-52 (1965).

But, “First

Amendment protections, while broad, are not absolute.”
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Papineau, 465 F.3d at 56.

“[G]overnment officials may stop or

disperse public demonstrations or protests where clear and
present danger of riot, disorder, interference with traffic upon
the public streets, or other immediate threat to public safety,
peace, or order, appears.”

Id. at 56-57 (citation omitted).

The defendants’ motion to dismiss the false arrest claim is
denied.

Assessing whether there was probable cause or arguable

probable cause to arrest Adams requires factual development.
Nothing in the complaint suggests that the four protesters
intended to cause public harm in protesting on the sidewalk or
that this protest presented an immediate threat to public safety
or order.
The defendants’ arguments to the contrary are unavailing.
The defendants primarily contend that failing to comply with a
dispersal order automatically supports a finding of probable
cause to arrest under § 240.20(6), citing People v. Galpern, 259
N.Y. 279, 284-85 (1932) (finding that a dispersal order is
lawful unless “circumstances show conclusively that the police
officer’s direction was purely arbitrary and was not calculated
in any way to promote the public order”).
remains good law is an open question.

Whether Galpern

Supreme Court cases and

more recent Second Circuit precedent indicate that police
officers’ power to interfere with peaceful and orderly protests
is more limited than Galpern’s interpretation of the disorderly
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conduct statute implies.

Thus, the defendants have failed to

show that the facts in the complaint, if true, do not contain
plausible grounds for relief.
II.

Malicious Prosecution

“To establish a malicious prosecution claim . . . a
plaintiff must prove (1) the initiation or continuation of a
criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff’s favor; (3) lack of probable cause for
commencing the proceeding; and (4) actual malice as a motivation
for defendant's actions.”

Stampf v. Long Island R. Co., 761

F.3d 192, 198 (2d Cir. 2014) (citation omitted).

“[T]o be

actionable under [§] 1983 there must be a post-arraignment
seizure, the claim being grounded ultimately on the Fourth
Amendment’s prohibition of unreasonable seizures.”
Insogna, 704 F.3d 105, 112 (2d Cir. 2013).

Swartz v.

In other words, “a

post-arraignment defendant who is obligated to appear in court
in connection with criminal charges . . . suffers a Fourth
Amendment deprivation of liberty.”

Id. (citation omitted).

“[T]he existence of probable cause is a complete defense to
a claim of malicious prosecution.”

Stansbury v. Wertman, 721

F.3d 84, 94-95 (2d Cir. 2013) (citation omitted).

“The probable

cause standard in the malicious prosecution context is slightly
higher than the standard for false arrest cases.”

Id. at 95.

“Probable cause, in the context of malicious prosecution, has
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. . . been described as such facts and circumstances as would
lead a reasonably prudent person to believe the plaintiff
guilty.”

Id. (citation omitted).

The defendants’ only argument for dismissal of the
malicious prosecution claim is that there was probable cause to
arrest and prosecute Adams.

The defendants’ motion to dismiss

this claim is therefore denied.
III. First Amendment Violation
The plaintiff described his First Amendment claim as one
for retaliation.

In order to succeed on a retaliation claim, a

private citizen must show: “(1) he has a right protected by the
First Amendment; (2) the defendant’s actions were motivated or
substantially caused by his exercise of that right; and (3) the
defendant’s actions caused him some injury.”

Dorsett v. Cty. of

Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (citation omitted).
“[C]hilled speech is not the sine qua non of a First Amendment
claim,” and “a plaintiff has standing if he can show either that
his speech has been adversely affected by the government
retaliation or that he has suffered some other concrete harm.”
Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 956 (2d Cir.
2015) (citation omitted).
The defendants’ motion to dismiss Adams’s First Amendment
claim is denied.

The defendants’ argument in favor of dismissal

is again premised on the lawfulness of Adams’s arrest.
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As

discussed above, Adams has a plausible claim that his arrest was
not supported by probable cause or arguable probable cause.
IV.

Monell Liability

The defendants’ motion to dismiss the plaintiff’s Monell
claim is granted.

Adams has not pled sufficient facts to make

his Monell claim plausible.

His complaint contains nothing

aside from the “general and conclusory allegation that there was
[an unconstitutional] policy.”

Littlejohn, 795 F.3d at 315.

Conclusion
The defendants’ December 14 motion to dismiss is granted in
part.

The claims against the City of New York are dismissed.

The motion to dismiss is denied with respect to the remaining
claims against the individual defendants.

Dated:

New York, New York
March 22, 2016
__________________________________
DENISE COTE
United States District Judge

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