Davis v. City of New York

• Decision Date: 31 May 2005
• Docket Number: No. 03 Civ. 0503(GEL).,03 Civ. 0503(GEL).
• Citation: 373 F.Supp.2d 322
• Parties: Kara DAVIS, et al., Plaintiffs, v. The CITY OF NEW YORK, et al. Defendants.
• Court: U.S. District Court — Southern District of New York

Page 322

373 F.Supp.2d 322

Kara DAVIS, et al., Plaintiffs, v. The CITY OF NEW YORK, et al. Defendants.

No. 03 Civ. 0503(GEL).

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

May 31, 2005.

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Daniel M. Perez, Kuby & Perez LLP, New York City, for Plaintiffs.

Christine C. Burgess, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Susan M. Halatyn, Assistant Corporation Counsel, on the brief), New York City, for Defendants.

OPINION AND ORDER

LYNCH, District Judge.

On January 31, 2002, the first day of the 2002 World Economic Forum ("WEF") meeting in New York City, plaintiffs Kara Davis, Suzy-Lee Korn, Sharonann Lynch, Eustacia Smith, and Jacqueline Vimo, members of the AIDS Coalition to Unleash Power ("ACT-UP"), were arrested while attempting to hang a banner, which bore the ACT-UP logo and the words "GWB AND BIG BIZ AGREE-PEOPLE WITH AIDS DROP DEAD," on a downtown Manhattan building.¹ On January 23, 2003, plaintiffs brought this suit against defendants Lieutenant Arturo Mendez Sergeant Charles Famulari, Police Officers Timothy O'Neill, Stephen Biscotti, and Donald Gaghan, and the City of New York, alleging various violations of rights secured by 42 U.S.C. § 1983, the First, Fourth, and Fourteenth Amendments of the federal Constitution, and New York state constitutional and common law.² The defendants now move for summary judgment on all counts. For the reasons discussed below, the motion will be granted in part and denied in part.

BACKGROUND

I. Factual Background

The events central to plaintiffs' claims took place on January 31, 2002, the first day of the 2002 WEF.³ On that day, the five plaintiffs attempted to hang a banner critical of the governmental and corporate response to AIDS from a building located at 124 Watts Street. (P. 56.1 Counterstmt. No. 7; D. 56.1 Stmt. Nos. 1-2.) On that day, defendants Famulari, Mendez, O'Neill, Biscotti, and Gaghan, were assigned to "polic[e] the [WEF]" near the Holland Tunnel, rather than to perform their usual administrative work in the Chief of Department's Office. (Famulari Dep. 15.) Famulari and O'Neill were in the immediate vicinity of 124 Watts Street when plaintiffs arrived at the building. (Id. 82-83.)

After all five plaintiffs arrived at the building in a van, two of the plaintiffs ascended to the roof by climbing a staircase attached to the exterior of the building and then using a ladder to bridge the gap between the staircase and the roof. (D. 56.1 Stmt Nos. 12-13; P. 56.1 Counterstmt Nos. 17-18.) Three of the plaintiffs remained on the sidewalk. (Lynch Dep. 51-53; Smith Dep. 54-55; Davis Dep. 17.)

According to Famulari, he and O'Neill observed the plaintiffs approach the building and ascend to the roof of 124 Watts Street with an extension ladder and what appeared to be a black bag. (Famulari Dep., 87; O'Neill Dep. 107.)⁴ Famulari believed a burglary was in process and called for back-up. (D. 56.1 Stmt. Nos. 20-21.) "Within seconds," Mendez, Biscotti, and Gaghan arrived at the scene. (O'Neill Dep. 190; D. 56.1 Stmt. No. 22.) Two officers climbed up to the roof to tell Vimo and Korn to come down.⁵ (P. 56.1 Stmt. No. 24.) While on the roof, O'Neill determined that plaintiffs Vimo and Korn were not carrying a bag but canvas with writing on it. (O'Neill Dep. 21, 196.) Although there is no dispute that the banner was not completely unfurled at the time that Vimo and Korn were stopped on the roof, it is unclear to what extent the banner was unfurled and whether defendants saw any portion of the message on plaintiffs' banner at the time of the arrest. (Vimo 95; Korn 93-94.)⁶ When O'Neill descended from the roof he informed Famulari that the plaintiffs were trying to hang a banner. (Famulari Dep. 147-48.)

The parties provide slightly differing accounts of the sequence of events leading up to plaintiffs' arrests. According to Famulari, after the two plaintiffs on the roof joined the three on the sidewalk, he asked them whether they had permission to be at the location. When the plaintiffs did not respond, Famulari placed them under arrest. (Famulari Dep. 148, 152.) In contrast, plaintiffs assert that defendants asked the plaintiffs who remained on the sidewalk questions about their backgrounds, but do not state that defendants asked them about their permission to be on the building. (P. 56.1 Stmt. No. 21.) Lynch testified that in addition to being asked whether she was trying to burglarize the building, an officer asked her whether she "c[ame] in for the World Economic Forum," to which she responded "[y]es." (Lynch 53.) Moreover, Vimo testified that she and Korn were handcuffed while on the external staircase before reaching the sidewalk. (Vimo Dep. 97.)

Each plaintiff was charged with one count of criminal trespass in the third degree, a misdemeanor, and unlawful posting, an administrative code violation. Gaghan signed the criminal court complaints against Smith, Lynch, and Vimo; O'Neill signed the complaint against Korn and Davis. Famulari signed a supporting deposition against Smith, Lynch and Vimo.

On February 1, 2002, after routine processing, Davis and Korn were released twenty-two hours after their arrests, and Vimo, Lynch, and Smith were released nineteen-and-a-half hours after their arrests. (P. 56.1 Counterstmt. No. 52.) Desk officer Mitzie Palmer, who is not a defendant in this case, had denied the plaintiffs Desk Appearance Tickets ("DATs"), the issuance of which would have led to plaintiffs' quicker release. Palmer testified that she denied plaintiffs' requests for DATs because plaintiffs did not verify their addresses. (Palmer Dep. 93-96.) On April 4, 2002, the plaintiffs moved to dismiss the criminal charges based on facial insufficiency. (P. 56.1 Stmt. No. 53.) The District Attorney did not oppose the motion and the charges against the plaintiffs were dismissed. (P. 56.1 Stmt. No. 54.)

II. Procedural Background

In their complaint and first amended complaint, plaintiffs brought nine counts charging the defendant police officers with false arrest, malicious prosecution, intentional infliction of emotional distress, and First and Fourteenth Amendment violations, and charging New York City with negligent hiring screening, retention, supervision and training, respondeat superior, and liability under Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) for an alleged de facto NYPD policy of subduing the WEF protests by arresting and detaining protestors for unduly long periods of time. In their memorandum in opposition to defendants' summary judgment motion, however, plaintiffs withdrew their claims of intentional infliction of emotional distress altogether, their malicious prosecution claims against defendants Biscotti and Mendez, and their claims against New York City for negligent hiring screening, retention, supervision and training, and Monell liability. (P. Mem.43.)

Six claims remain: The First and Sixth Claims charge defendant police officers with false arrest in violation of Fourth and Fourteenth Amendment rights as secured by 42 U.S.C. § 1983, and New York state law.⁷ The surviving portions of the Second and Fifth Claims charge defendant police officers Famulari, O'Neill, and Gaghan, with malicious prosecution in violation of Fourth and Fourteenth Amendment rights as secured by 42 U.S.C. § 1983, and New York state law. The Third Claim charges the defendants with violations of rights secured by the First and Fourteenth Amendments and 42 U.S.C. § 1983 for false arrest and malicious prosecution as retaliation against protected speech. Finally, the Ninth Claim charges New York City with respondeat superior liability for the underlying state tort claims. Defendants move to dismiss these remaining six claims.

DISCUSSION

I. Summary Judgment Standard

Summary judgment must be granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law," and an issue of fact is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor. Id. at 255, 106 S.Ct. 2505; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995).

To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[C]onclusory allegations or unsubstantiated assertions" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

II. False Arrest and Malicious Prosecution

Section 1983 false arrest and malicious prosecution claims rooted in the Fourth and Fourteenth Amendments are "substantially the same" as false arrest and malicious prosecutions claims under New York state law, Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir.2003), with the exception that § 1983 requires that the tortfeasor act "under color of state law." Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir.1991); Weyant v. Okst,...