Cheikhaoui v. City of New York
| Docket Number | 22 Civ 08855 (CM) |
| Decision Date | 11 September 2023 |
| Parties | CHEIKHAOUI, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT APPLE'S MOTION TO DISMISS AND DEFENDANTS OMINSCIENT INVESTIGATIONS CORP.'S AND BRIAN PLUNKETT'S MOTIONS TO DISMISS
Plaintiff Kamal Cheikhaoui (“Plaintiff'), brings this action pursuant to 42 U.S.C. § 1983 and state law against Defendants the City of New York, Apple, Inc., Omniscient Investigations Corp, d/b/a OIC Security, Lieutenant Nakwan Brathwaite, Police Officer Russel Bast, Police Officer Yelena Ast, Police Officer Brandon Lau, Police Officer Rawdi Ali Police Officer Salvatore Provenzano and Brian Plunkett (collectively, “Defendants”).
Plaintiff alleges constitutional claims under Section 1983 against the City of New York and Defendant Officers for violations of his First, Fourth, Fifth, and Fourteenth Amendment rights. Plaintiff also asserts state law claims for (1) assault and battery by Defendant Plunkett and the Defendant Officers; (2) false arrest, false imprisonment, and malicious prosecution by the Defendant Officers; (3) abuse of process and malicious prosecution by Defendants Apple, OIC Security and Plunkett (4) negligent screening, hiring, training, supervision and retention by Defendants City of New York, Apple, and OIC Security; (5) negligence against all Defendants; and (6) intentional and negligent infliction of emotional distress against all Defendants. Plaintiff contends that these violations stem from a series of unlawful actions that occurred following his October 19, 2021 visit to the Apple Store located at 1981 Broadway, New York, NY.
Defendants Apple, OIC Security and Brian Plunkett move to dismiss the claims against them in Plaintiffs first amended complaint pursuant to Fed.R.Civ.P. 12(b)(6), asserting that Plaintiff s claims against them fail to state a cause of action. In addition, Plaintiff moves for leave to file a second amended complaint pursuant to Fed.R.Civ.P. 15.
For the following reasons, Plaintiff is granted leave to amend his complaint, Apple's motion to dismiss is granted in part and denied in part, and the motion to dismiss by OIC Security and Plunkett is granted in part and denied in part.
As an initial matter, the Court addresses Plaintiffs motion for leave to file a Second Amended Complaint (“SAC”).
On August 14, 2023, Plaintiff filed a motion for leave to file a SAC. Dkt. No. 53. Plaintiff noted that the purpose of this amendment was solely to join Police Officer Salvatore Provenzano as a party and to assert the same claims against him as asserted against the Defendant Officers. Dkt. No. 54 at 1.
In making his motion, Plaintiff emphasized that no new facts or claims were asserted in the SAC against the existing Defendants, “so as not to disturb the pending motions to dismiss” filed by Apple and OIC Security and Plunkett. Id. at 1. In response to Plaintiffs motion, Defendants OIC Security, Plunkett, and Apple filed oppositions in which they stated that they do not object to Plaintiffs request to amend the complaint, as long as their motions to dismiss the first amended complaint (“FAC”) are deemed motions to dismiss the SAC. Dkt. No. 57 at 2; Dkt. No. 58 at 2. In addition, the City Defendants (the City of New York and Defendant Officers) do not object to Plaintiffs motion. Dkt. No. 59 at 1.
Fed. R. Civ. P. 15(a) states that “[t]he court should freely give leave [to amend] when justice so requires.” Under this liberal standard, leave is generally given as long as (1) the party seeking the amendment has not unduly delayed, (2) that party is not acting in bad faith or with a dilatory motive, (3) the opposing party will not be unduly prejudiced by the amendment, and (4) the amendment is not futile. Foman v. Davis, 371 U.S. 178, 182 (1962). The moving party “must explain any delay” but the party opposing the amendment bears the burden of showing bad faith, prejudice, or futility. See United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 285 F.Supp.3d 759, 766 (S.D.N.Y. 2018) (citing cases).
In addition, “Where a plaintiff seeks to amend [her] complaint while a motion to dismiss is pending, a court ‘may either deny the pending motion to dismiss as moot or consider the merits of the motion, analyzing the facts as alleged in the amended pleading.'” Moore v. Experian, 2023 WL 3005746, at *1 (S.D.N.Y. Mar. 31, 2023)) (citing Cotto v. Fed. Nat'l Mortg. Ass'n, 2021 WL 4340668, at *4 (S.D.N.Y. Sept. 22, 2021)).
Plaintiff states that the identity of Provenzano only came to light shortly prior to his arraignment on July 19, 2023. Dkt. No. at 6. Therefore, there has been no undue delay. As to the remaining factors, none of the Defendants oppose Plaintiffs motion to amend. Therefore, Plaintiffs motion is GRANTED.
Moreover, in light of the limited amendment to the FAC, solely to identify a “John Doe” Officer, and that no new facts or claims were asserted in the SAC against the existing Defendants, the court will consider the merits of the motions to dismiss filed by Apple and OIC Security/Plunkett as though they have been directed to the SAC.
Plaintiff Kamal Cheikhaoui is a resident of the State of New York. Second Amended Complaint (“SAC,” Dkt. No. 55-1) ¶ 15.
Defendants Lieutenant Brathwaite, Officer Bast, Officer Ast, Officer Lau, Officer Ali, and Officer Salvatore Provenzano (collectively, the “Defendant Officers”) are members of the New York Police Department (“NYPD”). Id. ¶ 18.
Defendant City of New York is a municipal corporation that maintains the New York City Police Department. Id. ¶ 16-17.
Defendant Apple is organized and existing by virtue of the laws of the State of California. Id. ¶ 23. At all times alleged in the SAC, Apple operated, maintained, supervised, and controlled the Apple Store located at 1981 Broadway, New York, NY. Id. ¶ 39.
Defendant Omniscient Investigations Corp, d/b/a OIC Security (“OIC Security”) is organized and existing by virtue of the laws of the State of New York. Id. ¶ 25. At all times alleged in the SAC, Apple retained OIC Security to provide security services at the Apple Store located at 1981 Broadway, New York, NY. Id. ¶ 41.
Defendant Brian Plunkett is a resident of the State of New York. Defendant Plunket was employed by OIC Security as a security guard at the Apple Store located at 1981 Broadway, New York, NY at all times alleged in the SAC. Id. ¶¶ 26-27, 29.
On the evening of October 19, 2021, Plaintiff was inside the Apple Store located at 1981 Broadway, New York, NY (the “Apple Store”). SAC ¶ 42. Defendant Plunkett, a security guard, grabbed Plaintiff, removed his bag and threw it to the ground, and ripped Plaintiff s jacket off his body. Id. Plaintiff alleges that Defendant Plunkett had no reason to do any of this, and he did not suspect Plaintiff of shoplifting. Id.
Plaintiff notes that he had had a prior encounter with Defendant Plunkett in the Apple store a few months earlier. Id. ¶ 43. Plaintiff told Plunkett that he was acting in a rude and menacing way toward a woman who was standing in line near him. He asked Plunkett, calmly, to stop. Id. Plunkett began to address Plaintiff in an aggressive manner, at which point the manager and assistant manager of the Apple Store intervened and asked Plaintiff to return at a later time. Id.
On this occasion, Defendant Plunkett, together with another employee at the Apple Store, called the police and reported that Plaintiff was being verbally abusive to staff and refusing to leave the store. Id. ¶ 44. When the Defendant Officers arrived at the store, Plunkett and the other Apple employee repeated this story. Id. ¶ 45.
Officers Ast and Ali first arrived at the scene. They immediately engaged Plaintiff in a hostile and antagonizing manner. Id. at ¶ 46. Plaintiff told the Defendant Officers that he was being harassed, assaulted, and battered by Defendant Plunkett and wanted to file a police report against him. Id. However, Officers Ast and Ali refused to take Plaintiffs report. Id. When the remaining Defendant Officers arrived at the scene, Plaintiff tried telling Officer Brathwaite that he wanted to file a report, but was told no reports would be taken and he should leave the store. Id. Plaintiff responded that he would be filing a complaint with the Attorney General's Office against Defendants Brathwaite, Ast, and Ali, for refusing to take his report. Id. ¶ 46. He then picked up his belongings and began to leave the store. Id. Plaintiff alleges that the Defendant Officers refused to take Plaintiffs report because Defendant Plunkett was known to them to be and/or identified himself as a retired NYPD police officer. Id. ¶ 47.
As he was walking out of the store with the Defendant Officers, one of the Defendant Officers punched Plaintiff in the head, and he fell to the floor. Id. ¶ 48. Then one of the Defendant Officers, believed by Plaintiff to be Defendant Bast, pepper sprayed Plaintiff in his face. Id.
Defendant Ast and other Defendant Officers then jumped on top of Plaintiff and handcuffed him. Id. Plaintiff alleges that there was no justifiable cause for this use of force. Id. Plaintiff was escorted out of the Apple Store and taken to a police vehicle, at which time one of the Defendant Officers used additional excessive force on him by grabbing him forcefully in the back of his head. Id.
Plaintiff was arrested by the Defendant Officers and taken to the 20th Precinct for processing. Id. ¶ 49. The Defendant Officers did not promptly decontaminate Plaintiff from the pepper spray. Id. Plaintiff was told to use the toilet at the precinct to wash the...
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