Occupy Buffalo v. City of Buffalo
Filing
79
DECISION AND ORDER IT HEREBY IS ORDERED, that Defendants' Motion for Summary Judgment (Docket No. 62) is GRANTED. FURTHER, that the Clerk of Court is directed to CLOSE this case. SO ORDERED.Signed by William M. Skretny, United States District Judge on 5/12/2020. (JCM)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
OCCUPY BUFFALO, through its memberbase, including but not limited to LISA
RICHARDSON, HERON SIMMONDS-PRICE,
JOHN ROSZMAN, DANA GERACE, et al.,
Plaintiffs,
v.
CITY OF BUFFALO, BYRON BROWN, in his
official capacity as Mayor of the City of Buffalo,
DANIEL DERENDA, in his official capacity as
the Police Chief, MICHAEL DeGEORGE, in his
official capacity as director of communications,
and other presently unidentified officials,
employees and/or agents of the City of Buffalo
in their official and individual capacities, JOHN
DOE and RICHARD ROE, et al., and other
presently unidentified local, state, or federal
officials or agents,
DECISION AND ORDER
13-CV-407S
Defendants.
I. INTRODUCTION
In the fall of 2011, Plaintiff Occupy Buffalo (“Occupy”) established an encampment
in Niagara Square as part of an international movement protesting growing income
inequality, which the City of Buffalo initially permitted pursuant to an agreement. But when
the agreement ended, Buffalo police and public works employees cleared both the
protesters and their belongings from Niagara Square, over their objections. Occupy and
its members allege that their removal from the Square violated their rights under the
United States and New York Constitutions and under New York law. Defendants have
moved for summary judgment on these claims. (Docket Nos. 62, 74.) Because Plaintiffs
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have failed to come forth with sufficient evidence to support their causes of action,
Defendants’ motion for summary judgment is granted.
II. BACKGROUND
Unless otherwise noted, the following facts are undisputed for purposes of the
motion for summary judgment. This Court takes the facts in the light most favorable to
Occupy, the non-moving party. See Mitchell v. City of New York, 841 F.3d 72, 75 (2d Cir.
2016) (at summary judgment, a court “views the evidentiary record in the light most
favorable to ... the non-moving party”).
Occupy Buffalo is a “non-hierarchical organization comprised of individuals
interested in creating a more economically and politically just City of Buffalo and United
States.” (Complaint, Docket No. 1, ¶ 7.) In early October 2011, several members of
Occupy Buffalo “established a round-the-clock encampment in Niagara Square,” in
solidarity with other Occupy groups around the country. (Id., ¶ 15.) Occupy erected tents
where members could interact with each other and with the public and could sort and
redistribute donations from Buffalonians supportive of Occupy’s goals. (Id.) The tents
stored members’ personal belongings and items donated to the group. (Id.) Around 50
members of Occupy Buffalo “took up permanent residence at the encampment.” (Id., ¶
18.)
Niagara Square is a park subject to Chapter 309 of the City of Buffalo Charter and
Code. (Defendants’ Statement of Undisputed Facts, Docket No. 62-21, ¶ 1.) Chapter 30915 states, in part, that “no person shall sleep in any park or park approach.” (Docket No.
62-3 at p. 1.) Chapter 309 also limits the depositing of any kind of garbage on the grounds
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of any park without a permit from the Commissioner of Public Works (§ 309-14, Docket
No. 62-4), and provides that parks shall be closed between sunrise and sunset (§ 30925A, Docket No. 62-5.) Erecting tents or temporary structures in city parks is forbidden
without the permission of the Common Council, which may impose “reasonable
conditions” on the same. (§ 309-36, Docket No. 62-7.) No tent erected for a special event
may “remain erect for longer than 15 days unless extended by the Common Council.”
(Id.)
On or around December 9, 2011, two months after Occupy established its
encampment, the City entered an agreement with Occupy allowing its members to use
and sleep in Niagara Square, subject to certain terms and conditions (“the Agreement”).
(Defendants’ Statement of Undisputed Facts, Docket No. 62-21, ¶¶ 3-4; see also
Agreement, Docket No. 62-13 at pp. 1-7.) The City agreed to allow Occupy to camp in
tents overnight and to place posters, signs, and banners in the Square. (Docket No. 6213 at pp.1-2.) Occupy agreed to follow proper sanitary procedures, to facilitate Square
maintenance by the City, and to collect financial donations for the seeding, maintenance,
and electricity costs to the City. (Id. at p. 3.) Occupy also agreed to move from Niagara
Square to Lafayette Square (just two blocks away) if required due to inclement weather,
to accommodate the City’s snow removal operations, or if another community event
sought to use Niagara Square. (Id. at pp. 2-3.) The Agreement extended through
February 1, 2012, and was “renewable for additional periods of two months upon
compliance with the terms contained herein and continued safe operation within the
Square.” (Id. at p. 3.) Occupy understood the Agreement to mean that extensions would
be “rubber-stamped” as long as Occupy complied with its terms. (Docket No. 74 at p. 16.)
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In January 2012, the City began efforts to renegotiate the Agreement. (Docket No.
62-21, ¶ 6.) The City asserts that it did so because it needed to prepare for the upcoming
festival season, and because remediation of the Square would have become more difficult
if Occupy continued to inhabit it. (Id., ¶¶ 6-7.) The City also suggests that it sought
renegotiation to reopen the Square for use by all citizens, and to address complaints
received by the Mayor’s Call and Resolution Center. (See Declaration of Timothy Ball,
Docket No. 62-11, ¶ 5; Affidavit of Robert Kratenstein, Docket No. 62-15; “Case Details”
of calls, Docket No. 62-16.) In a letter dated February 1, 2012, the City offered Occupy
the chance to stay in Niagara Square through March 1, 2012, if Occupy accepted new
terms and conditions. (Docket No. 62-14 at p. 1.)
Occupy states that renegotiation discussions began only five days before the
February 1 expiration of the Agreement, and that, because of its consensus-based
decisionmaking process, there was not enough time for it to agree on a new agreement.
(Plaintiffs’ Statement of Undisputed Facts, Docket No. 74 at p. 16.) According to Occupy,
at a final meeting on the evening of February 1, 2012, the City presented a new
agreement that Occupy was unable to agree upon by the midnight deadline. (Id. at pp.
16-17.)
Consequently, early in the morning of February 2, 2012, the City directed Occupy
members to leave the Square. (Docket No. 62-21, ¶ 10; see also Docket No. 1, ¶ 19.)
Occupy asserts that a SWAT unit and a militarized tank were present during the initial
confrontation between Buffalo police and Occupy members. (Docket No. 1, ¶ 27.) The
City also asked Occupy members to remove their belongings from the Square. (Id.) The
parties contest the manner in which this occurred: the City asserts that it gave Occupy
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members the opportunity to gather their belongings, and that it eventually used a truck to
remove property that appeared to be abandoned. (Docket No. 75-1, ¶ 15.) Occupy asserts
that its members asked for time to retrieve their possessions, but that they were “forced
to leave the Square without being given the opportunity to gather any personal property.”
(Docket No. 74, ¶ 15.)
The City asserts that after giving Occupy members time to remove their property,
it removed “abandoned” property from the Square and took it to an enclosed and heatregulated property, where it was sorted and made ready for Occupy members to claim
during business hours. (Docket No. 62-21, ¶¶ 16-20.) Occupy alleges in its complaint that
its members attempted to retrieve their belongings, but that “with the exception of a few
sleeping bags, all of the items…were completely destroyed and heaped into a single pile
of unnavigable debris.” (Docket No. 1, ¶ 35.)
III. DISCUSSION
Occupy brought this action against the City on April 23, 2013. (Docket No. 1.)
Occupy raises twelve claims in its complaint. First, it claims that the City’s removal of
members’ property from Niagara Square was an unreasonable seizure in violation of
members’ Fourth Amendment rights. Second, it claims that Defendants violated
members’ due process rights under the Fourteenth Amendment when they seized
members’ possessions in Niagara Square. Third, it claims that Defendants violated
members’ First Amendment rights by destroying their forum for expression. Fourth,
Occupy claims that the show of force with which Defendants removed members from the
Square violated members’ Eighth Amendment rights. Fifth, Occupy claims that
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Defendants are liable to it for failing to supervise and train City employees, resulting in
the violation of members’ constitutional rights. Occupy also claims that Defendants
violated their rights under the New York Constitution, specifically Article 1, section 8 (Sixth
Cause of action); Article 1, section 12 (Seventh Cause of Action), and Article 1, section 6
(Eighth Cause of Action). Finally, Occupy brings claims under New York law against
Defendants for conversion (Ninth Cause of Action), replevin (Tenth Cause of Action),
negligence (Eleventh Cause of Action), and negligent supervision and training (Twelfth
Cause of Action).
Occupy seeks a declaratory judgment that Defendants violated their federal and
state constitutional rights, as well as damages in the amount of $15,000, and punitive
damages against the John Doe individual defendants.
Defendants move for summary judgment on each of Occupy’s claims.
A.
Procedural Posture
This case has a long history. Occupy filed its complaint on April 23, 2013. Following
Defendants’ answer on July 2, 2013 (Docket No. 9), the parties requested and were
granted multiple adjournments of their filing deadlines. (See Docket Nos. 24, 26, 27, 30,
32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56.) On September 21, 2017, the Honorable
Hugh B. Scott, United States Magistrate Judge, directed the parties to complete all
discovery by November 30, 2017, and set a final deadline for the filing of dispositive
motions by February 28, 2018. (See Docket No. 61.) Neither party appears to have
conducted any discovery.
On February 28, 2018, Defendants filed a so-titled Motion to Dismiss, which
consisted of a collection of documents with a memorandum of law requesting both
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dismissal and summary judgment. (Docket No. 62.) Upon instructions from the Clerk of
Court, Defendants refiled their memorandum as a Motion for Summary Judgment on
March 1, 2018, with no new documents attached. (See Docket No. 63.) The documents
Defendants submitted with their initial memorandum include a Rule 56 statement of
undisputed facts, the sworn affidavits of defendant Daniel Derenda and non-parties
Donald Poleto, Andrew Rabb, and Richard Kratenstein, a copy of the Agreement, the
City’s February 1, 2012 letter to Occupy regarding renegotiating the Agreement, an
inventory of items removed from the Square, and sections of § 309 of the Buffalo Code.
Occupy responded to Defendants’ motion as a Motion for Summary Judgment,
submitting with its memorandum of law a Rule 56 statement of facts, a copy of the
Agreement, its 50-e notice of claim against the City, and a log of calls to the City’s call
resolution center, but no affidavits. (See Docket No. 74.)
Federal Rule of Civil Procedure 12 (d) states that when the Court considers
documents outside the pleadings, a motion must be assessed under the standard for
summary judgment. When this happens, “all parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12
(d). Because Defendants re-titled their motion as a Motion for Summary Judgment, and
because Occupy responded to it as such, this Court finds that Occupy had a reasonable
opportunity to present pertinent material and will therefore assess Defendants’ motion
under the summary judgment standard.
B.
Summary Judgment
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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Fed. R. Civ. P. 56 (a). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences
drawn from the evidence must be "viewed in the light most favorable to the party opposing
the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609,
26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import
of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is any
evidence in the record from which a reasonable inference could be drawn in favor of the
opposing party, summary judgment is improper.”
Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations omitted).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence
showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Wright
v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is
properly supported by documents or other evidentiary materials, the party opposing
summary judgment may not merely rest on the allegations or denials of his pleading....”);
D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be evidence
from which the jury could reasonably find for the non-moving party. See Anderson, 477
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U.S. at 252.
In the end, the function of the court is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249. “Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the court on summary judgment.”
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
C.
Claims against unnamed defendants and official-capacity claims
1. Claims against unnamed defendants
In its complaint, Occupy names as defendants “other presently unidentified
officials, employees and/or agents of the City of Buffalo in their official and individual
capacities, JOHN DOE and RICHARD ROE, et al. and other presently unidentified Local,
State or Federal officials or agents.” (Docket No. 1.) There is no evidence in the record
that any of these unnamed parties has been identified or served.
Federal Rule of Civil Procedure 4 (m) requires dismissal, absent a showing of
“good cause,” of claims against a defendant who is not served within 90 days of the filing
of the complaint. “Courts typically resist dismissing suits against John Doe defendants
until the plaintiff has had some opportunity for discovery to learn the identities of
responsible officials.” Coward v. Town & Vill. of Harrison, 665 F.Supp.2d 281, 300
(S.D.N.Y. 2009) (internal quotation marks and citation omitted). Where, as here, a plaintiff
has had ample time to discover the identities of the unnamed officials and has not yet
named them, or served them, dismissal without prejudice is proper. See, e.g., Webb v.
Miller, No. 918CV610TJMDJS, 2020 WL 1227155, at *2 (N.D.N.Y. Mar. 12, 2020); Cruz
v. City of New York, 232 F. Supp. 3d 438, 448–49 (S.D.N.Y. 2017); Delrosario v. City of
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New York, No. 07 CIV. 2027 (RJS), 2010 WL 882990, at *5 (S.D.N.Y. Mar. 4, 2010)
(dismissing claims against unnamed defendants without prejudice where plaintiff had
ample time and opportunity to discover their identities). As an initial matter, therefore, this
Court will dismiss Occupy’s claims against the unnamed officials, employees and agents
of the City of Buffalo, John Doe, Richard Roe, and “other presently unidentified Local,
State, or Federal officials and or agents.”
2. Official-capacity claims
Occupy brings its claims against Byron Brown, Daniel Derenda, and Michael
DeGeorge solely in their official capacities. Defendants argue that these claims should be
dismissed because an official-capacity claim is redundant with a claim against a
municipality. This Court agrees.
An official-capacity suit is, essentially, a suit against the municipality of which the
officer is an agent. Stancati v. Cty. of Nassau, No. 14-CV-2694 JS ARL, 2015 WL
1529859, at *2 (E.D.N.Y. Mar. 31, 2015) (citing Kentucky v. Graham, 473 U.S. 159, 166,
105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985)). “[I]n the Second Circuit, where a plaintiff
names both the municipal entity and an official in his or her official capacity, district courts
have consistently dismissed the official capacity claims as redundant.” Phillips v. Cty. of
Orange, 894 F.Supp.2d 345, 385 (S.D.N.Y. 2012). This Court will therefore dismiss the
claims against Byron Brown, Daniel Derenda, and Michael DeGeorge as redundant.
D.
Federal Constitutional claims
Occupy brings its federal claims pursuant to 42 U.S.C. § 1983. Civil liability is
imposed under § 1983 only upon persons who, acting under color of state law, deprive
an individual of rights, privileges, or immunities secured by the Constitution and laws.
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See 42 U.S.C. § 1983. On its own, § 1983 does not provide a source of substantive
rights, but rather, a method for vindicating federal rights conferred elsewhere in federal
statutes and the Constitution. See Graham v. Connor, 490 U.S. 386, 393-94,109 S. Ct.
1865, 1870, 104 L. Ed. 2d 443 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 145 n.3,
99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979)). Accordingly, as a threshold matter in
reviewing claims brought pursuant to § 1983, it is necessary to precisely identify the
constitutional violations alleged. See Baker, 443 U.S. at 140. Here, Occupy’s federal
claims are grounded in the First, Fourth, Eighth, and Fourteenth Amendments.
In opposing Occupy’s claims, the City argues that it cannot be held liable pursuant
to § 1983 because Occupy has not established the existence of a municipal policy or
custom. It further argues that Occupy has not met its burden to defeat summary judgment
on any of its constitutional claims. This Court will consider these arguments in turn.
1. Municipal liability
To prevail on a claim against a municipality under § 1983, a party must establish,
as a threshold matter, that a “municipal policy of some nature caused a constitutional
tort.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 98 S. Ct.
2018, 2036, 56 L. Ed. 2d 611 (1978).
For Occupy to succeed on its constitutional claims, therefore, it must show that an
official policy of the City caused its alleged constitutional injuries. The City—the sole
remaining defendant—argues that Occupy has only stated in conclusory fashion that the
City acted pursuant to an official policy, and that Occupy “ha[s] not presented any
plausible theory of municipal liability.” (Docket No. 62-22 at p. 13.)
A municipality can be held liable for a single act “tailored to a particular situation
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not intended to control decisions in later situations,” as long as the act was directed by an
official policymaker. Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 406,
117 S. Ct. 1382, 1389, 137 L. Ed. 2d 626 (1997); see also Pembaur v. City of Cincinnati,
475 U.S. 469, 480, 106 S. Ct. 1292, 1298–99, 89 L. Ed. 2d 452 (1986).
This is because
[i]f the decision to adopt [a] particular course of action is properly made by
that government's authorized decisionmakers, it surely represents an act of
official government “policy” as that term is commonly understood. More
importantly, where action is directed by those who establish governmental
policy, the municipality is equally responsible whether that action is to be
taken only once or to be taken repeatedly. To deny compensation to the
victim would therefore be contrary to the fundamental purpose of § 1983.
Pembaur, 475 U.S. at 480–81.
The City’s actions on February 2, 2012, therefore, can represent an official policy,
as long as those actions were directed by “authorized decisionmakers.” Id. Here, the City
does not argue that the February 2, 2012 order to vacate the Square was ordered by
someone other than an authorized decisionmaker. Indeed, evidence in the record
suggests that authorized decisionmakers issued and implemented the order. For
example, Police Commissioner Daniel Derenda states that following the expiration of the
Agreement between Occupy and the City, “the Buffalo Police Department immediately
enforced the City’s laws and ordinances in asking individuals to vacate the square.”
(Docket No. 62-17, ¶ 8.) Senior Engineer Donald Poleto states that “a truck used by the
Department of Public Works” removed materials from Niagara Square, and took them to
a City facility at 1120 Seneca Street, where Public Works employees sorted them.
(Docket No. 62-19, ¶¶ 6, 8.) A police officer was assigned to assist with claims to the
property. (Id., ¶ 13.) All of these facts point to official action by the City, and Defendants
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nowhere argue to the contrary.
Consequently, this Court finds sufficient evidence from which it could reasonably
be concluded that police and public works employees acted pursuant to an official policy
in removing protesters and their possessions from Niagara Square. The analysis now
proceeds to whether any of Occupy’s federal constitutional claims against the City can
survive summary judgment.
2. Occupy’s Fourth Amendment property-seizure claim (first cause of
action)
Occupy argues that the City’s removal of its members’ possessions from the
Square violated their Fourth Amendment rights. Occupy suggests that its members’
ownership of items seized should have been obvious to the City. The City argues that
Occupy has not identified a possessory interest of any member in any particular item
removed from Niagara Square, and that summary judgment is therefore warranted on
Occupy’s Fourth Amendment claim.
a. Legal standard
The Fourth Amendment provides, in pertinent part, that the “right of the people to
be secure in their persons, houses, papers and effects, against unreasonable searches
and seizures, shall not be violated....” U.S. Const. amend. IV. Discussing the Fourth
Amendment, the Supreme Court has stated that “a ‘search’ occurs when an expectation
of privacy that society is prepared to consider reasonable is infringed,” while “a ‘seizure’
of property occurs when there is some meaningful interference with an individual's
possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104
S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984).
To succeed when claiming an unconstitutional seizure, then, a party must first
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assert a possessory interest in an item seized. 1 This is seen in the criminal context in the
doctrine of standing, by which a defendant moving for suppression of evidence must
assert, via affidavit, that he or she had a “property or possessory interest in the place
searched or the items seized.” United States v. Fields, 113 F.3d 313, 320 (2d Cir. 1997).
Civil litigants can also assert Fourth Amendment seizure claims. Soldal v. Cook
Cty., Ill., 506 U.S. 56, 69, 113 S. Ct. 538, 548, 121 L. Ed. 2d 450 (1992) (“[T]he right
against unreasonable seizures would be no less transgressed if the seizure of the house
was undertaken to collect evidence, verify compliance with a housing regulation, effect
an eviction by the police, or on a whim, for no reason at all. … [I]t would be ‘anomalous
to say that the individual and his private property are fully protected by the Fourth
Amendment only when the individual is suspected of criminal behavior.’”) (citing Camara
v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 530, 87 S. Ct. 1727, 1732,
18 L. Ed. 2d 930 (1967)). But it follows that civil claimants, too, must establish a
possessory interest at stake when challenging the government’s seizure of their property.
If it is established that a property interest is at stake, a court must then assess
whether the seizure was reasonable under the Fourth Amendment. This inquiry requires
a “careful balancing of governmental and private interests.” Soldal, 506 U.S. at 71.
b. Occupy cannot defeat the City’s motion on its Fourth Amendment
claim
Here, the City argues that Occupy has failed to identify property interests in any
items seized and destroyed, and therefore lacks standing to pursue a Fourth Amendment
1
Parties can alternatively assert the violation of a privacy interest. See Katz v. United States, 389 U.S. 347,
88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), and its progeny. But the invasion of possessory interests, even
without the assertion of any privacy interest, can still violate the Fourth Amendment. See Soldal v. Cook
Cty., Ill., 506 U.S. 56, 64, 113 S. Ct. 538, 544, 121 L. Ed. 2d 450 (1992).
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seizure claim. (Docket No. 62-22.) In support of its motion, the City submits the
declaration of Donald Poleto, stating, “I observed that those materials [in Niagara Square]
were left largely exposed to the elements in what appeared to be standard recreational
camping tents” (Docket No. 62-19, ¶ 4), and the declaration of Daniel Derenda, stating
that after the police asked individuals to leave the Square and remove their belongings,
the City “remov[ed] what appeared to be abandoned property from the Square.” (Docket
No. 62-17, ¶ 8.) (emphasis added.)
To defeat the City’s motion for summary judgment, Occupy must provide
admissible evidence of its possessory interest in the items it claims were seized. Occupy
has not done so. Instead, Occupy relies on the general descriptions in its complaint of
“food, books, tables, chairs, tents, clothing, art supplies, basic medical supplies, and a
plethora of other items supplied by Buffalonians supportive of the Occupy movement’s
goals and activities” (Docket No. 1, ¶ 15), and on conclusory statements that Defendants
“deprived them of their property unlawfully.” (Docket No. 74 at p. 6). At summary
judgment, however, a nonmoving party must “offer some hard evidence showing that its
version of the events is not wholly fanciful,” Matsushita, 475 U.S. at 586, and cannot
“merely rest on the allegations …of [its] pleading.” Wright, 554 F.3d at 266. Because
Occupy has submitted no admissible evidence from which a jury could reasonably
conclude that Occupy or any of its members had a protected interest in any particular
item removed from the Square, the City is entitled to summary judgment on Occupy’s
Fourth Amendment claims.
3. Occupy’s Fourteenth Amendment due process claim (second cause of
action)
Occupy argues that the City violated its members’ Fourteenth Amendment due
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process rights by not giving them time to retrieve their possessions in the Square, and by
not offering a sufficient procedure by which they could later reclaim them. The City argues
that Occupy has not identified a protected property interest in any item taken. It further
argues that the process offered to Occupy was sufficient, in that City employees gave
members time to collect their possessions, told them how to retrieve the items, and held
the items for subsequent pickup.
a. Legal standard
The Fourteenth Amendment to the United States Constitution guarantees that no
person shall be deprived “of life, liberty or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “The touchstone of due process, of course, is ‘the requirement
that a person in jeopardy of serious loss (be given) notice of the case against him and
opportunity to meet it.’” Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009)
(quoting Mathews v. Eldridge, 424 U.S. 319, 348–49, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976)). “It is equally fundamental that the right to notice and an opportunity to be heard
‘must be granted at a meaningful time and in a meaningful manner.’” Fuentes v.
Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972) (quoting Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)). These requirements
are not uniform, however, as “due process is flexible and calls for such procedural
protections as the particular situation demands.” Eldridge, 424 U.S. at 334.
To determine whether a plaintiff was deprived of property without due process of
law in violation of the Fourteenth Amendment, courts (1) “identify the property interest
involved,” and (2) “determine whether the plaintiff received constitutionally adequate
process in the course of the deprivation.” O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir.
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2005) (citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 212 (2d Cir. 2003)).
Once it is determined that there is a property interest involved, courts analyze
claims under the three-factor balancing test prescribed in Eldridge, weighing: “‘(1) the
private interest at stake; (2) the risk of an erroneous deprivation of that interest through
the procedures used and the probable value (if any) of alternative procedures; [and] (3)
the government's interest, including the possible burdens of alternative procedures.’”
Kuck v. Danaher, 600 F.3d 159, 163 (2d Cir. 2010) (quoting O'Connor, 426 F.3d at 197).
b. Occupy cannot defeat the City’s motion on its Fourteenth Amendment
claim
Occupy argues that the City did not give its members sufficient time to retrieve
their possessions, that it destroyed their tents, and that it placed their items “in a single
pile of unnavigable debris.” (Docket No. 74 at p. 17, Docket No. 1, ¶ 35.) The City argues
that Occupy members have not asserted a property interest in any items removed from
the Square. The City also argues that Occupy members were given an appropriate
amount of time to retrieve their possessions on February 2, 2012, and ample opportunity
to retrieve their possessions after that date.
First, the City argues that Occupy and its members have submitted no evidence
identifying the items taken and have not asserted a property interest in any item. (Docket
No. 62-22 at p. 9.) They further this argument with Daniel Derenda’s statement that the
items removed “appeared to be abandoned.” (Docket No. 62-17, ¶ 8.) To defeat
Defendants’ motion, Occupy must present admissible evidence showing a genuine issue
of fact regarding their interest in the items removed. Such evidence could take the form
of a sworn affidavit attesting to a member’s possessory interest in any given item that was
removed. But Occupy has not submitted any evidence, instead relying on conclusory
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statements that cannot, for the reasons stated above, defeat a motion for summary
judgment. This Court therefore finds no evidence in the record from which a jury could
find a protectible property interest.
But even if Occupy could properly establish a property interest, there is insufficient
evidence from which a jury could find that the process afforded to Occupy members was
inadequate. Derenda’s sworn affidavit states that the Police asked individuals to remove
their belongings, and only then removed what appeared to be abandoned property from
the Square. (Derenda affidavit, Docket No. 62-17, ¶ 8.) Defendants further assert that “all
individuals were given the opportunity to gather their belongings.” (Docket No. 75-1, ¶
15.) The affidavit of Donald Poleto asserts that the materials collected from Niagara
Square were kept in a heat-regulated garage facility and sorted by approximately five
workers over the course of two or three days, so that they could be made available to
claim. (Id.) “Nothing was thrown out.” (Id.) Defendants have submitted police “property
reports” detailing the items removed from the Square. (Docket No. 62-20.)
In countering Defendants’ motion, Occupy must support its claims that it was not
given time to retrieve its items, and that the items were subsequently destroyed, with
some form of admissible evidence. Occupy has not done so, nor has it suggested any
alternative procedures that would have provided the process its members were due. In
the absence of any admissible evidence countering the City’s assertions, no reasonable
jury could find in Occupy’s favor. This Court will therefore grant the City’s motion for
summary judgment on Occupy’s Fourteenth Amendment claim.
4. Occupy’s First Amendment claim (third cause of action)
Occupy argues that the City’s sudden revocation of its permission to use the
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Square violated its members’ First Amendment rights by abruptly terminating their
expressive conduct. The City argues that there was no violation of Occupy’s First
Amendment rights. It argues that it lawfully removed Occupy members from Niagara
Square around 2:00 a.m. pursuant to a valid time, place, and manner restriction on
Occupy members’ speech, after Occupy’s temporary permission to use the Square had
ended.
a. Legal standard
The First Amendment protects, among other things, “free and unhindered debate
on matters of public importance.” Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will
Cty., Illinois, 391 U.S. 563, 573, 88 S. Ct. 1731, 1737, 20 L. Ed. 2d 811 (1968). But “the
First Amendment does not guarantee the right to communicate one's views at all times
and places or in any manner that may be desired.” Mitchell v. City of New Haven, 854 F.
Supp. 2d 238, 253 (D. Conn. 2012) (quoting Heffron v. Int'l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981)).
“The existence of a right of access to public property and the standard by which
limitations upon such a right must be evaluated differ depending on the character of the
property at issue.” Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 44, 103 S.
Ct. 948, 74 L. Ed. 2d 794 (1983). According to this “forum-based” approach for assessing
restrictions on the use of government property, courts must determine the nature of the
space in question. Mitchell v. City of New Haven, 854 F. Supp. 2d 238, 247 (D. Conn.
2012). “Traditional public fora are those places which by long tradition or by government
fiat have been devoted to assembly and debate.” Id. at 802. Streets and parks have long
been identified as paradigmatic public fora. Perry, 460 U.S. at 45 (“Streets and parks …
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‘have immemorially been held in trust for the use of the public, and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.’” (quoting Hague v. CIO, 307 U.S. 496, 515, 59 S. Ct. 954,
963, 83 L. Ed. 1423 (1939)). As a public park, Niagara Square qualifies as such a
traditional public forum.
The Supreme Court has held that, in traditional public fora,
[e]xpression, whether oral or written or symbolized by conduct, is subject to
reasonable time, place, or manner restrictions. We have often noted that
restrictions of this kind are valid provided that they are justified without
reference to the content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and that they leave
open ample alternative channels for communication of the information.
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3068–69,
82 L. Ed. 2d 221 (1984).
In Clark, a case with facts somewhat similar to those now before this Court, the
National Park Service denied a permit to protesters who wished to camp in tent cities in
Lafayette Park and on the national Mall to demonstrate the plight of the homeless. Id. at
291-92. The Court assumed without deciding that the erection of tents and camping were
protected “expressive conduct.” Id. at 292. The Court then held that the restriction banning
camping was reasonable, because it was content-neutral and narrowly tailored to
protecting the government’s interest in keeping the park “in an attractive and intact
condition for all users,” and because alternative channels of expression remained for the
protesters. Clark, 468 U.S. at 295 (“The regulation otherwise left the demonstration intact,
with its symbolic city, signs, and the presence of those who were willing to take their turns
in a day-and-night vigil. Respondents do not suggest that there was, or is, any barrier to
delivering to the media, or to the public by other means, the intended message concerning
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the plight of the homeless.”)
To defeat Defendants’ motion, therefore, Occupy must provide some evidence that
the City’s regulations are not content-neutral, are not narrowly tailored to a significant
government interest, or that there were no alternative channels available for its symbolic
conduct.
b. Occupy cannot defeat the City’s motion on its First Amendment claim
Occupy has not brought forth any such evidence. Occupy argues that it “occupied”
the Square pursuant to a “renewable agreement” with the City, and that the City
terminated the Agreement and enforced the pre-existing laws governing the Square in
bad faith and contrary to Occupy’s belief that it would be given more time to negotiate.
Occupy does not argue, however, that the regulations the City enforced were
unconstitutional.
Addressing the issue of Occupy’s permission to use the Square first, Occupy
appears to argue that the City’s refusal to honor the Agreement, after the parties failed to
renew it, did not comport with its reasonable expectation to be afforded more time to
renegotiate. Occupy also argues that the City unlawfully “evicted” it from the Square
without the notices required by New York law. (Docket No. 73 at p. 3.) The parties agree,
however, that the Agreement expired by its terms at midnight on February 1, 2012, and
that the City then acted pursuant to its existing regulations. The real issue, therefore,
appears to be whether these regulations are valid. Thus, this Court will not address
Occupy’s contract construction or illegal eviction arguments because they do not
elucidate the constitutional issues on which Occupy bases its claim.
Occupy’s First Amendment claim is that the regulations governing Niagara Square,
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pursuant to which the City removed it from the Square, were invalid restrictions on their
expressive activity. In countering this claim, the City argues that it was enforcing a valid
time, place, and manner restriction. It provides the text of all the relevant laws, which on
their face are content-neutral. (See Docket Nos. 62-3, 62-4, 62-5, 62-6, 62-7.) It also
submits evidence that its decision to enforce its regulations upon expiration of the
Agreement was not content-based, but rather, was motivated by the desire to re-open
meaningful access to Niagara Square so that it could be used and enjoyed by all citizens.
(Declaration of Timothy Ball, Docket No. 62-11, ¶ 5.) And there is no claim that the City
prevented Occupy members from protesting in the Square after the cleanup, or from
protesting in a different public location.
To defeat the City’s motion, Occupy is required to present admissible evidence
raising a genuine issue of fact. Occupy has failed to do so. In its complaint, Occupy
asserts that the City’s action “destroyed [its] forum for learning and the exchange of
ideas,” and that the City’s “excessive response to a long-standing and peaceful protest”
had a “chilling effect on the First Amendment rights of both the individuals present at the
square that evening, and of citizens who might have otherwise joined the ranks of Occupy
Buffalo.” (Docket No. 1, ¶¶ 51-52.) But in responding to Defendants’ motion, Occupy does
not provide admissible evidence suggesting that the City’s regulations do not pass
constitutional muster. It does not point to any facts suggesting that these regulations are
not content-neutral; that the City’s interests in deciding to enforce its laws were not
significant; or that Occupy lacked alternative channels for its expressive conduct.
At summary judgment, a nonmoving party must “offer some hard evidence
showing that its version of the events is not wholly fanciful,” Matsushita, 475 U.S. at 586,
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and cannot “merely rest on the allegations …of [its] pleading.” Wright, 554 F.3d at 266.
Occupy has not met this burden, and this Court will accordingly grant Defendant’s motion
on Occupy’s First Amendment claim.
5. Occupy’s Eighth Amendment excessive-force claim (fourth cause of
action)
In its complaint, Occupy states that Defendants used an excessive showing of
force in clearing Niagara Square, in violation of its members’ Eighth Amendment rights.
The City provides evidence stating that “the tactical staffing provided by the Police
Department … was largely precautionary, made for both officer and public safety, and
appropriate for the circumstances and scale of the assignment we were undertaking.”
(Affidavit of Daniel Derenda, Docket No. 62-17, ¶ 9). Derenda further states that arrests
that took place were in response to disorderly conduct, and that he was “unaware of any
claims of excessive physical force … or physical injuries.” (Id., ¶ 10.) Occupy does not
address its Eighth Amendment claims in its response to Defendants’ motion. (Docket No.
74.)
a. Legal standard
The Eighth Amendment protects those convicted of a criminal offense from cruel
and unusual punishments. Ingraham v. Wright, 430 U.S. 651, 664, 97 S. Ct. 1401, 1408–
09, 51 L. Ed. 2d 711 (1977). On the other hand, “[c]laims that law enforcement officers
have used excessive force—deadly or not—in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and
its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865,
1871, 104 L. Ed. 2d 443 (1989). Because the conduct Occupy alleges took place in the
context of the arrests of some members in Niagara Square, this Court finds that Occupy’s
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excessive force claims arise under the Fourth Amendment.
To trigger the Fourth Amendment’s protections against the use of excessive force,
an arrest, or “seizure,” of the person is needed. See California v. Hodari D., 499 U.S. 621,
626, 111 S. Ct. 1547, 1550, 113 L. Ed. 2d 690 (1991). Courts within the Second Circuit
“have been reluctant to entertain excessive-force claims without any physical contact.
Mere threats or verbal harassment, without any ‘appreciable injury,’ generally are not
actionable under section 1983.” Merrill v. Schell, 279 F. Supp. 3d 438, 443–44 (W.D.N.Y.
2017) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam) (citations
omitted)). To establish that the use of force during arrest was unreasonable and therefore
a violation of the Fourth Amendment, a plaintiff must establish that the government
interests at stake were outweighed by “the nature and quality of the intrusion on [plaintiffs']
Fourth Amendment interests.” Graham v. Connor, 490 U.S. at 396.
b. Occupy cannot defeat the City’s motion on its excessive-force claim
Occupy does not make any of the above arguments in its response to the City’s
motion. It does not describe, or offer any evidence of, any force used during the arrest of
any particular member. Nor does Occupy state that any actual force was used, but rather
a “showing of force.” Occupy does not even mention its showing-of-force claims in its
response memorandum. (See Docket No. 74.) Occupy’s complaint states that “a large
SWAT unit and a militarized tank” were used “solely to intimidate Occupy members” and
that this “unnecessary and terrifying show of force was likely to retraumatize individuals
who had previously experienced significant trauma at the hands of law enforcement.”
(Docket No. 1, ¶¶ 27, 56.) These conclusory allegations, without any admissible evidence
to support them, cannot withstand a motion for summary judgment. Accordingly, this
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Court finds that Occupy has not presented any evidence from which a jury could find that
any member’s Fourth Amendment right to be free from excessive force was violated.
This Court will also grant summary judgment due to Occupy’s abandonment of this
claim. When a represented party responds to only some of a moving party’s claims in its
response to a motion for summary judgment, courts may deem the unopposed claims
abandoned. Jackson v. Fed. Exp., 766 F.3d 189, 195 n. 3 (2d Cir. 2014). In other words,
a court “is not required to consider what the parties fail to point out.” Monahan v. New
York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000). This Court finds Occupy’s
excessive force claim abandoned, and grants summary judgment on this basis as well.
6. Constitutional failure-to-train and failure-to-supervise claims (fifth cause
of action)
Occupy’s fifth cause of action states that Defendants “failed to train and supervise
their officials, employees and agents…so as to prevent the seizures and destruction of
Plaintiffs’ property,” resulting in the violation of Occupy’s constitutional rights. (Docket No.
1, ¶ 59.) The City argues that it cannot be liable for a failure to train or supervise because
Occupy does not make particularized allegations that the action of any City employee
caused any injury to Occupy. (Docket No. 62-22 at p. 9.) Occupy does not address these
arguments in its response, or provide any evidence regarding the City’s training
programs, individual actions by City employees, or the supervision on Niagara Square on
the morning of February 2, 2012.
a. Legal standard
A municipality is liable for failing to train its employees where it acts with deliberate
indifference in disregarding the risk that its employees will unconstitutionally apply its
policies without more training. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129–
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30 (2d Cir. 2004). To succeed, a plaintiff must provide evidence both of the municipality’s
deliberate indifference to a risk and of a specific deficiency in a training program. Id. A
plaintiff must also establish that the deficiency in training is “closely related to the ultimate
injury,” such that it “actually caused” a constitutional deprivation. Id.
A municipality is liable for failure to supervise an employee when a policymaking
official had notice of a potentially serious problem of unconstitutional conduct, such that
the need for corrective action or supervision was “obvious,” and the policymaker's failure
to investigate or rectify the situation evidences deliberate indifference, rather than mere
negligence or bureaucratic inaction. Id. at 128.
b. Occupy cannot defeat the City’s motion on its failure-to-train or failureto-supervise claims
As an initial matter, as discussed above, Occupy has not provided facts from which
a jury could find that any constitutional violations took place. Its failure-to-train and failureto-supervise claims fail on that basis alone. Further, it has not offered any evidence in
support of these claims, such as evidence of the City’s training programs or of an official’s
awareness of and failure to rectify unconstitutional conduct.
As a further basis for granting Defendants’ motion, Occupy does not address or
support these claims in its response papers. This Court therefore deems Occupy’s failureto-train and failure-to-supervise claims abandoned. For all these reasons, this Court will
grant the City’s motion on Occupy’s failure-to train and failure-to-supervise claims.
E.
This Court declines to exercise supplemental jurisdiction over Occupy’s
claims arising under New York law.
Federal district courts have supplemental jurisdiction over state-law claims “that
are so related to claims in the action within such original jurisdiction that they form part of
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the same case or controversy under Article III of the United States Constitution.” 28 U.S.C.
§ 1367(a). Subsection (c) of § 1367 “confirms the discretionary nature of supplemental
jurisdiction by enumerating the circumstances in which district courts can refuse its
exercise.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173, 118 S. Ct. 523,
139 L. Ed. 2d 525 (1997). A district court “may decline to exercise supplemental
jurisdiction” if it has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C
§ 1367(c)(3). Here, since this Court is granting Defendants’ motion for summary judgment
on each of Occupy’s federal claims, there is no independent basis for federal jurisdiction
over Occupy's state law claims. See, e.g., United Mine Workers of America v. Gibbs, 383
U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) (“Certainly, if the federal claims
are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”).
Having granted summary judgment on Occupy’s First, Fourth, Eighth, and
Fourteenth Amendment claims, this Court declines to exercise supplemental jurisdiction
over Occupy’s claims based on the same events arising under the New York Constitution
and New York law. Accordingly, these claims will be dismissed.
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment is
granted. Because Occupy has neither identified nor served any of the unnamed
defendants, this Court will dismiss its claims against all unnamed defendants. This Court
will also dismiss as redundant Occupy’s claims against any named defendants in their
official capacities. This Court further finds that Occupy has not raised any issues of fact
pertaining to its First, Fourth, Eighth, and Fourteenth Amendment, and failure-to-train or
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supervise, claims against the City of Buffalo. This Court will accordingly grant Defendants’
motion for summary judgment on these claims. (First, Second, Third, Fourth, and Fifth
Causes of Action.)
Having granted summary judgment on Occupy’s federal claims, this Court declines
to exercise supplemental jurisdiction over Occupy’s state law claims arising from the
same facts. Accordingly, all of Occupy’s state law claims will be dismissed. (Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Causes of Action.)
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment
(Docket No. 62) is GRANTED.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.
Dated:
May 12, 2020
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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