Salmon v. Blesser, 091015 FED2, 14-1993-cv

Docket Nº:14-1993-cv
Opinion Judge:REENA RAGGI, CIRCUIT JUDGE.
Party Name:Oliver Salmon, Plaintiff-Appellant, v. Thomas Blesser, individually and in his official capacity as an Albany, New York Police Officer, Albany Police Department, City of Albany, New York, Defendants-Appellees, John Doe, 1 and 2, the name being fictitious but intended to represent one or more employees of the Albany Police Department, Defendants.
Attorney:Keith Frank Schockmel, Esq., Albany, New York, for Plaintiff- Appellant. Eric Sugar, Assistant Corporation Counsel, Albany, New York, for John J. Reilly, Corporation Counsel, Albany, New York, for Defendants-Appellees.
Judge Panel:Before: Jacobs, Raggi, and Lynch, Circuit Judges.
Case Date:September 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Oliver Salmon, Plaintiff-Appellant,

v.

Thomas Blesser, individually and in his official capacity as an Albany, New York Police Officer, Albany Police Department, City of Albany, New York, Defendants-Appellees,

John Doe, 1 and 2, the name being fictitious but intended to represent one or more employees of the Albany Police Department, Defendants.

No. 14-1993-cv

United States Court of Appeals, Second Circuit

September 10, 2015

Submitted: June 15, 2015

On appeal from a judgment of dismissal entered in the Northern District of New York (D'Agostino, J.), plaintiff argues that his complaint alleging forcible ejection from the Albany City Court states plausible claims for relief under the First and Fourth Amendments to the Constitution, as well as under New York law prohibiting the intentional infliction of emotional distress. While an order to depart a public area does not, by itself, effect a "seizure" of the person so ordered, see Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994), where, as here, a plaintiff alleges that an officer used physical force to restrain and control the plaintiff's movements, that allegation does plausibly plead a seizure subject to the Fourth Amendment's reasonableness requirement. Accordingly, we vacate the dismissal of plaintiff's Fourth Amendment claim against defendant Blesser, but affirm the judgment in all other respects.

Keith Frank Schockmel, Esq., Albany, New York, for Plaintiff- Appellant.

Eric Sugar, Assistant Corporation Counsel, Albany, New York, for John J. Reilly, Corporation Counsel, Albany, New York, for Defendants-Appellees.

Before: Jacobs, Raggi, and Lynch, Circuit Judges.

REENA RAGGI, CIRCUIT JUDGE.

Plaintiff Oliver Salmon sued the City of Albany, the Albany Police Department, Police Officer Thomas Blesser, and two "John Doe" employees of the Police Department under 42 U.S.C. § 1983 and New York State law for alleged constitutional and tort injuries resulting from the use of physical force to eject him from the Albany City Court. Salmon now appeals from a judgment entered on May 29, 2014, in the United States District Court for the Northern District of New York (Mae A. D'Agostino, Judge) dismissing his complaint in all respects. See Salmon v. Blesser, No. 1:13-cv-1037(MAD/RFT), 2014 WL 1883552 (N.D.N.Y. May 12, 2014). Specifically, Salmon appeals from the dismissal of his claims against Officer Blesser, in his individual capacity, under the First and Fourth Amendments as incorporated by the Fourteenth Amendment and under state law prohibiting intentional infliction of emotional distress. See Fed.R.Civ.P. 12(b)(6).1

On de novo review, see, e.g., Ricci v. Teamsters Union Local 456, 781 F.3d 25, 26 (2d Cir. 2015), we affirm the challenged dismissal of Salmon's First Amendment and emotional distress claims, but we vacate dismissal of his Fourth Amendment claim. To the extent the district court relied on Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994), to conclude that removals from courthouses do not constitute "seizures" subject to the Fourth Amendment, we explain herein that Sheppard states a general rule that a police order to leave an area, without more, does not effect a seizure of the person so ordered. Nevertheless, where, as here, an official uses physical force to effect the ejection, so that for a time, however brief, he intentionally restrains the person and controls his movements, a plaintiff can plausibly plead a seizure subject to the Fourth Amendment's reasonableness requirement. Accordingly, we affirm in part, vacate in part, remand the case to the district court for further proceedings consistent with this opinion.

I. Background

A. Salmon's Removal from the Courthouse

The following facts are drawn from Salmon's complaint and are presumed to be true for purposes of this appeal. See Diaz v. Paterson, 547 F.3d 88, 91 (2d Cir. 2008).

On September 1, 2010, Salmon accompanied his attorney to the Albany City Court to examine a court file. Because only lawyers were permitted into the clerk's office where the file was kept, Salmon waited in a public area outside the office while his attorney went inside. As Salmon waited, Officer Blesser approached and ordered persons to leave the area. Salmon explained that he was waiting for his attorney and offered to summon counsel to confirm that fact. According to Salmon, Blesser "became enraged . . ., and without warning, grabbed [Salmon] by the collar and violently twisted his arm up behind his back and began shoving [him] toward the door." Compl. ¶ 23. When Salmon complained that Blesser was hurting him, Blesser twisted Salmon's arm further. Blesser then "physically threw [Salmon] out the door and threatened [him] with arrest" if he reentered the building. Id. ¶ 28. Salmon asserts that these actions caused him permanent physical injury.

B. Procedural History

On August 23, 2013, Salmon filed this federal action. Defendants moved to dismiss, which motion the district court granted on May 12, 2014. See Salmon v. Blesser, 2014 WL 1883552. As to the Fourth Amendment claim of unreasonable seizure, the district court concluded that Salmon failed plausibly to plead a seizure of his person in light of Sheppard v. Beerman, wherein this court held that a fired law clerk was not seized when court officers ordered him to leave his formerly employing judge's chambers and escorted him out of the courthouse. See id. at *6–7. Sheppard explained that no seizure occurred because the clerk remained "free to go anywhere else that he desired, with the exception of [the judge's] chambers and the court house." Sheppard v. Beerman, 18 F.3d at 153 (internal quotation marks omitted). To the extent Salmon also complained of excessive force, the district court held that such a claim was not cognizable absent a seizure. See Salmon v. Blesser, 2014 WL 1883552, at *7.

The district court afforded Salmon 14 days to amend his complaint. Rather than amend, however, Salmon let the deadline pass, whereupon he filed notice of this appeal.2

II. Discussion

A. Fourth Amendment Claim

Salmon's appeal from the dismissal of his Fourth Amendment claim against Blesser presents us with a single question: Did he allege facts sufficient to plead a plausible "seizure" of his person? See County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998)...

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