Adkins v. City of N.Y.

• Decision Date: 15 November 2015
• Docket Number: No. 14–cv–7519 (JSR).,14–cv–7519 (JSR).
• Citation: Adkins v. City of N.Y., 143 F.Supp.3d 134 (S.D. N.Y. 2015)
• Parties: Justin ADKINS, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

143 F.Supp.3d 134

Justin ADKINS, Plaintiff,

v.CITY OF NEW YORK, et al., Defendants.

No. 14–cv–7519 (JSR).

United States District Court, S.D. New York.

Signed Nov. 15, 2015.

Andrea Juanita Ritchie, Andrea J. Ritchie, Esq., Brooklyn, NY, for Plaintiff.

Dara Lynn Weiss, Cheryl Leah Shammas, New York City Law Department, New York, NY, for Defendants.

OPINION AND ORDER

JED S. RAKOFF, District Judge.

Like hundreds of other Occupy Wall Street protesters, plaintiff Justin Adkins was arrested on the Brooklyn Bridge on October 1, 2011. Unlike the other protesters, Adkins, following his arrest, was handcuffed to a wall for seven hours. Plaintiff alleges he was treated differently because he is transgender. He brought the present suit against the City of New York, former mayor Michael Bloomberg, and various other officials, claiming (1) deprivation of federal civil rights in violation of § 1983, based on defendants' harassment and mistreatment of transgender arrestees; (2) excessive use of force in violation of 42 U.S.C. § 1983 and the Fourth Amendment; (3) denial of equal protection in violation of § 1983 and the Fourteenth Amendment, based on sex and gender identity discrimination; (4) violation of § 1983 and the First Amendment, based on the punishing and chilling of plaintiff's gender identity and expression; (5) unreasonable conditions of confinement under § 1983 ; (6) failure to intervene in violation of § 1983 ; (7) municipal liability under § 1983 ; and (8) supervisory liability under §§ 1981 and 1983.¹ Defendants thereafter moved under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's complaint in its entirety for failure to state a claim. The Court finds that it is obliged to grant defendants' motion in most respects, but that plaintiff's Equal Protection claim against the City of New York survives. By way of background, plaintiff was detained during an Occupy Wall Street march on the Brooklyn Bridge roadway. He was taken to the 90th Precinct and initially held in a cell with other men. Neither plaintiff nor the other men complained, and no one raised any safety concerns. Nonetheless, plaintiff was removed from the cell and told to sit in a chair next to a bathroom. He was then handcuffed to a metal handrail and kept in this position for the next seven hours, resulting in soreness in his arm and shoulder over the next week. While plaintiff was handcuffed to the wall, other arrestees were provided with sandwiches, but plaintiff was denied food.

"To 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The Court must draw all reasonable inferences in plaintiff's favor and accept as true all factual allegations in his complaint. In re Elevator Antitrust Litigation, 502 F.3d 47, 50 (2d Cir.2007).

Plaintiff first claims that defendants used excessive force during his detention. The test for excessive force under the Fourth Amendment " ‘is one of objective reasonableness' ... and requires balancing the nature and quality of the intrusion on the plaintiff's Fourth Amendment interests against the countervailing governmental interests at stake." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.2010) (citations omitted). Here, the temporary nature of plaintiff's alleged injury weighs heavily against his claim. See Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459, 468–69 (S.D.N.Y.2008). Plaintiff alleges only that he suffered soreness in his arm and shoulder lasting approximately one week. In the absence of continuing injury, the governmental interests in maintaining order and security in a precinct justify restraining a detainee outside of a cell. Plaintiff's excessive force claim fails.

Plaintiff's Fourteenth Amendment conditions of confinement claim fails for similar reasons. To state such a claim, "an inmate must allege that: (1) objectively, the deprivation the inmate suffered was ‘sufficiently serious that he was denied the minimal civilized measure of life's necessities,’ and (2) subjectively, the defendant official acted with ‘a sufficiently culpable state of mind ..., such as deliberate indifference to inmate health or safety.’ " Walker v. Schult, 717 F.3d 119, 125 (2d Cir.2013) (citations omitted) (considering inmate's Eighth Amendment claim); see Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009) ("Claims ... of ... serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment."). The Court does not reach the second Walker prong because plaintiff's complaint does not satisfy the first. Although his detention was uncomfortable, plaintiff was not denied the minimal civilized measure of life's necessities. He was denied food for a relatively brief period and suffered no lasting injury as a result. See Rush v. Astacio, 159 F.3d 1348, 1998 WL 480751 at *2 (2d Cir.1998) (Summary Order).

Next, although plaintiff did not voluntarily withdraw his First Amendment claim, he has framed it in contradictory and uncertain terms. In his briefing, plaintiff stated that his First Amendment claim is "squarely based on the right to protest and has nothing to do with his transgender identity." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 11 n. 9, ECF No. 10. However, at oral argument, defendant's counsel characterized his claim as based on his gender expression, which counsel claimed was chilled by his arrest and treatment. See Transcript dated October 7, 2015. To the extent that plaintiff's First Amendment claim is based on the right to protest, it must be dismissed along with his false arrest claims under Garcia v. Does, 779 F.3d 84 (2d Cir.2015). To the extent that plaintiff's First Amendment claim is based on his somehow stymied gender expression, it must also be dismissed: plaintiff cites no authority for this kludging together of anti-discrimination and First Amendment law.

This leaves plaintiff's Equal Protection claim. To prevail on an Equal Protection claim, "a plaintiff must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination[, and] show that the disparity in treatment cannot survive the appropriate level of scrutiny." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005). With respect to the first half of this formulation, plaintiff has adequately alleged that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination. Plaintiff claims he was originally held with other male detainees in a general cell. Complaint ¶ 108, ECF No. 1 ("Compl."). But plaintiff, allegedly the only transgender detainee, was removed and held by himself in more deleterious conditions—handcuffed to a wall without food. Id. ¶¶ 109, 116, 117. Plaintiff alleges that this disparate treatment was purposeful because it was pursuant to the NYPD's custom of subjecting transgender detainees to special conditions, viz., handcuffing them to railings. Id. ¶ 118, 134–36. He also alleges discriminatory intent on the basis of individual police officers' responses to learning of his transgender status, which included gawking, giggling, and inquiring about his genitalia. Id. ¶¶ 101, 115. These allegations render plaintiff's claims of intentional discrimination plausible.

When dealing with such a claim, the Court must first determine what level of scrutiny applies. Defendants argue that plaintiff's treatment is subject to the lowest level of scrutiny, i.e., rational basis review. See Lopez v. City of New York, 2009 WL 229956 at *13 (S.D.N.Y. Jan. 30, 2009).² Plaintiff argues that the appropriate standard of review is so-called "intermediate scrutiny" because discrimination against transgender people is a form of gender discrimination. See Glenn v. Brumby, 663 F.3d 1312, 1316–18 (11th Cir.2011). Alternatively, plaintiff argues that intermediate scrutiny must be applied because transgender people are a so-called "quasi-suspect class," i.e. a classification that calls "for a more exacting standard of judicial review than is normally accorded economic and social legislation." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

The Court concludes that transgender people are such a class in light of Windsor v. United States, 699 F.3d 169 (2d Cir.2012). Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. Id. at 181–85. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor's four factors.

First, transgender people have suffered a history of persecution and discrimination. As the Second Circuit put it with respect to gay people, this is "not much in debate." Id. at 182. Moreover, this history of persecution and discrimination is not yet history. Plaintiff cites data indicating that transgender people report high rates of discrimination in education, employment, housing, and access to healthcare. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 18 n. 14, ECF No. 10 (citing National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at Every Turn, A Report of the National Transgender Discrimination Survey, 2011).

Second, transgender status bears no relation to ability to contribute to society. Some transgender people experience debilitating dysphoria while living as the gender they were assigned at...