D.H. v. City of N.Y.

• Decision Date: 09 January 2018
• Docket Number: 16 Civ. 7698 (PKC)(KNF)
• Citation: 309 F.Supp.3d 52
• Parties: D.H., N.H., K.H. f/k/a J.H., Natasha Martin, Tiffaney Grissom, Rosa Gonzalez, Adrienne Bankston, and Sarah Marchando, individually and on behalf of a class of all others similarly situated, Plaintiffs, v. The CITY OF NEW YORK, Sean Kinane, Joseph McKenna, Kayan Dawkins, Thomas Keane, Maria Imburgia, Kevin Maloney, Joel Allen, Dave Siev, Bryan Pocalyko, Christopher Salazar, Henry Daverin, Joseph Nicosia, Kelly Quinn, Alexis Yanez, Michael Doyle, and John/Jane Doe Nypd Police Officers #1–14, Defendants.
• Court: U.S. District Court — Southern District of New York

309 F.Supp.3d 52

D.H., N.H., K.H. f/k/a J.H., Natasha Martin, Tiffaney Grissom, Rosa Gonzalez, Adrienne Bankston, and Sarah Marchando, individually and on behalf of a class of all others similarly situated, Plaintiffs,

v.The CITY OF NEW YORK, Sean Kinane, Joseph McKenna, Kayan Dawkins, Thomas Keane, Maria Imburgia, Kevin Maloney, Joel Allen, Dave Siev, Bryan Pocalyko, Christopher Salazar, Henry Daverin, Joseph Nicosia, Kelly Quinn, Alexis Yanez, Michael Doyle, and John/Jane Doe Nypd Police Officers #1–14, Defendants.

16 Civ. 7698 (PKC)(KNF)

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

Signed January 9, 2018

Anna Fleder Connolly, Lawrence B. Friedman, Rishi Nachiketa Zutshi, Alex Leonard, Alexandra Silas McCown, Christina Marie Karam, Robert Alexander Lawner, Stephanie Siyi Wu, Cleary Gottlieb Steen & Hamilton LLP, Kimberly Forte, William Donald Gibney, Sr., Cynthia Helen Conti–Cook, The Legal Aid Society, Kate Mogulescu, New York, NY, for Plaintiffs.

Anthony Matthew Disenso, Suzanna Publicker Mettham, Bilal Husain Haider, Joanne Maureen McLaren, New York City Department of Corrections, East Elmhurst, NY, for Defendants.

MEMORANDUM AND ORDER

CASTEL, United States District Judge

D.H., N.H., K.H., Natasha Martin, and Tiffaney Grissom, who are transgender, and Rosa Gonzalez, Adrienne Bankston, and Sarah Marchando, who are not, are eight women of color who were arrested under New York's prohibition against loitering for the purpose of prostitution, N.Y. Penal Law § 240.37(2). Each maintains that she was arrested for "doing nothing more than walking down the street in the neighborhood[ ] where [she] live[s]." (Dkt. 93 at 1). The charges against plaintiffs were ultimately either dismissed or adjourned in contemplation of dismissal. (Amended Complaint ("AC") ¶¶ 123, 140, 155, 175, 190, 203, 215, 237). They have filed suit against the City of New York ("City") and numerous officers in the New York Police Department ("NYPD"), asserting twenty claims under federal and state law, thirteen of which are also raised on behalf of a putative class. In the main, they challenge the constitutionality of New York's prohibition against loitering for the purpose of prostitution, the City's policies and customs concerning its implementation, and the legality of its enforcement against them. (AC ¶¶ 240–337).

The key provision at issue on this motion is section 240.37 of the New York Penal Law, which provides, in relevant part, as follows:

Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passageof other persons, for the purpose of prostitution as that term is defined in article two hundred thirty of this part, shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section or of section 230.00 of this part.

In their amended complaint, plaintiffs assert that section 240.37 is unconstitutionally vague and overbroad, resulting in "inconsistent and arbitrary enforcement." (AC ¶¶ 8, 240–251). They also allege, among other things, that defendants subjected plaintiffs to intentional discrimination on the basis of race, gender, or gender identity, arrested them without probable cause, arrested them for activity protected by the First Amendment, infringed their liberty interests in "self-expression, bodily integrity and privacy," and engaged in unlawful, bias-based profiling. (AC ¶¶ 252–319). Plaintiffs further assert that the officers of the 52nd Precinct conspired to perform "sweeps" to arrest the transgender plaintiffs "for their status as transgender women." (AC ¶¶ 280–83). For these claims, plaintiffs request declaratory relief that section 240.37 is void and that defendants have violated plaintiffs' rights. (AC ¶¶ 339–40). They also seek an injunction restraining the City from enforcing section 240.37, as well as compensatory and punitive damages. (AC ¶¶ 341–57). In addition, plaintiffs raise five individual claims against the individual defendants. (AC ¶¶ 304–19). D.H., who is deaf, also asserts a claim against several of the individual defendants under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and analogous state laws for actions occurring during and after her arrest, (AC ¶¶ 320–33), and N.H. raises an excessive force claim under state and federal law against defendant Dawkins for actions occurring after her arrest, (AC ¶¶ 334–37).

Defendants have moved for partial dismissal of the amended complaint. (Dkt. 87). On this motion, defendants do not challenge plaintiffs' section 1983 claims for damages against the individual defendants for alleged violations of plaintiffs' rights to "self-expression, bodily integrity and privacy," freedom of speech, and freedom from unreasonable seizures. Nor do they challenge D.H.'s claim for damages under the ADA, or N.H.'s section 1983 excessive force damages claim. They have, however, moved pursuant to Rule 12(b)(1), Fed. R. Civ. P., to dismiss all of plaintiffs' claims insofar as they seek declaratory or injunctive relief. They have also moved under Rule 12(b)(6), Fed. R. Civ. P., to dismiss plaintiffs' claims challenging section 240.37 on vagueness and overbreadth grounds and to dismiss plaintiffs' other claims on various grounds that will be explained. For the reasons to follow, defendants' motion is granted in part and denied in part.

DISCUSSION

I. Rule 12(b)(1)

Defendants argue that plaintiffs lack standing to seek declaratory and injunctive relief for two reasons. First, they assert that plaintiffs have not established an injury in fact "because [plaintiffs have] failed to plead a sufficient likelihood of future harm from[,] and the existence of an official policy or its equivalent regarding the NYPD's enforcement of[,] [section] 240.37." (Dkt. 89 at 6). Second, defendants argue that plaintiffs have not adequately established that the requested declaratory or injunctive relief would likely redress the alleged injuries. Although not raised by defendants, the Court will also address whether the alleged injuries are fairly traceable to the actions of defendants.

Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck–Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005) ("Because ... standing ... goes to this Court's subject matter jurisdiction, it can be raised sua sponte .").

Dismissal of a suit under Rule 12(b)(1) is proper "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Article III of the United States Constitution predicates the federal courts' adjudicatory power on the presence of standing, an inherent element of the "case-or-controversy requirement." Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 273, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). The " ‘irreducible constitutional minimum’ of standing" requires that "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).

At the pleading stage, the Court's task is to determine whether a plaintiff has "allege[d] facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue." John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 736 (2d Cir. 2017) (second alteration in original) (quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) ). Plaintiffs must do so on their own; that is, they "must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Court "accept[s] as true all material allegations of the complaint ... and construe[s] the complaint in favor of the complaining party." W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (quoting United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998) ).

a. Injury in Fact

"To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). When the relief requested is prospective, such as a declaratory judgment or an injunction, a plaintiff must adequately allege "a sufficient likelihood that he [or she] will again be wronged in a similar way." Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (alteration in original) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ). To make this showing, it is not necessary for "a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat." Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015) (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ). Rather, for preenforcement statutory challenges, it is sufficient to "allege[ ] ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,’ " so long as "there exists a credible threat of prosecution thereunder." Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d...