Dwares v. City of New York

• Decision Date: 05 February 1993
• Docket Number: No. 131,D,131
• Parties: Steven Bruce DWARES, Plaintiff-Appellant, v. The CITY OF NEW YORK, Inspector Gelfin, Lieutenant McKenna, John Does and Jane Poes, Known and Unknown Police Officers of the City of New York, Bruce Kreitman, Defendants-Appellees. ocket 92-7266.
• Court: U.S. Court of Appeals — Second Circuit

Page 94

985 F.2d 94

Steven Bruce DWARES, Plaintiff-Appellant, v. The CITY OF NEW YORK, Inspector Gelfin, Lieutenant McKenna John Does and Jane Poes, Known and Unknown Police Officers of the City of New York, Bruce Kreitman, Defendants-Appellees.

No. 131, Docket 92-7266.

United States Court of Appeals Second Circuit.

Argued Sept. 15, 1992.

Decided Feb. 5, 1993.

Jonathan C. Moore, New York City (Michael Deutsch, People's Law Office, Chicago, IL, on the brief), for plaintiff-appellant.

Elaine Rothenberg, New York City (O. Peter Sherwood, Corp. Counsel of the City of New York, Larry A. Sonnenshein, on the brief), for defendants-appellees.

Before OAKES, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Steven Bruce Dwares appeals from a final judgment of the United States District Court for the Southern District of New York, John F. Keenan, Judge, dismissing his complaint, brought principally under 42 U.S.C. §§ 1983, 1985(3), and 1986 (1988), alleging that defendants City of New York ("City") and individual police officers ("officers") (collectively the "City defendants") conspired with defendant Bruce Kreitman and others associated with him to permit Kreitman and his associates, without threat of intervention by defendant police officers, to assault Dwares and to prevent Dwares's exercise of his First Amendment rights. The district court dismissed the asserted federal claims pursuant to Fed.R.Civ.P. 12(b)(6), ruling that the complaint did not adequately allege a conspiracy, or the deprivation of a constitutionally protected right, or a City custom or practice contributing to Dwares's injuries. The court declined to exercise pendent jurisdiction over the asserted state claims. On appeal, Dwares contends that the district court erred in ruling that the complaint failed to state a claim on which relief can be granted. For the reasons below, we conclude that the complaint stated claims on which relief can be granted under § 1983 against the individual defendants in their individual capacities, and we vacate the judgment and remand (a) for adjudication of those claims and the state-law claims against those defendants, and (b) for such further proceedings as may be appropriate with respect to the other claims.

I. BACKGROUND

The allegations of the complaint, which must be taken as true for purposes of reviewing a dismissal for failure to state a claim on which relief can be granted, included the following. On July 4, 1989, a rally was held in Washington Square Park in New York City. At the rally there was a demonstration that included the burning of an American flag. Dwares did not physically participate in that desecration, but he attended the demonstration and voiced his support for those who did.

Also present in the park at the time of the rally was a group of individuals known as "skinheads," including Kreitman, who were known to the City's Police Department in general and to the defendant officers in particular to have a history of racism and engaging in "violent attacks on individuals engaged in lawfully protected First Amendment activity." (Complaint p 18.) At about 6:00 p.m. on July 4, Dwares, who was demonstrating in support of the rights of others to engage in flag burning, was physically attacked by Kreitman and other "skinheads" who, inter alia, repeatedly hit him about the head with a bottle. (Complaint p 25.) After being hit and chased for some 10 minutes, Dwares finally escaped, with head and face bloodied, and took refuge in a nearby Emergency Medical Services vehicle.

The prolonged felonious attack on Dwares occurred in the presence of the defendant police officers; but the officers made no attempt to intervene, or to protect Dwares from harm, or to arrest the assaulting "skinheads." (Complaint p 26.) The complaint alleged, on information and belief, that

prior to the specific incident that gave rise to this litigation, the individual police officer defendants herein and the "skinheads", including defendant Kreitman, had conspired and/or agreed amongst themselves to permit the "skinheads" to harass and assault those who wished to express their First Amendment rights by burning an American flag, as well as those who supported the right of individuals to express themselves in that way, so long as this conduct did not get totally out of control.

(Complaint p 24.) The complaint alleged that Kreitman, in an interview with a reporter for the Village Voice, confirmed that police officers had told the "skinheads" that unless they got completely out of control the police would neither interfere with their assaults nor arrest them. (Id.) As a result of the attack by the "skinheads" and the officers' agreement to refrain from interfering, Dwares suffered serious physical injury, pain, and emotional distress.

Dwares commenced the present suit for damages against the City, the officers in their individual and official capacities, and Kreitman under 42 U.S.C. §§ 1983, 1985(3), and 1986, alleging, inter alia, that defendants had conspired to deprive him of due process, of the equal protection of the laws, and of the right to engage in activity protected by the First Amendment. The complaint alleged that defendants' conduct violated Dwares's rights under the First, Fifth, and Fourteenth Amendments, as well as his rights under state law. Defendants moved to dismiss the complaint principally pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds (a) that the City defendants had no affirmative duty under the Constitution to protect Dwares from attack by Kreitman and other "skinheads," (b) that the complaint failed to allege that the City defendants deprived Dwares of a federally protected right, and (c) that the complaint failed to allege sufficient facts to make out a conspiracy. The City also moved to dismiss the § 1983 claim against it on the ground that the complaint did not allege the existence of a municipal policy or practice that caused Dwares to be deprived of any constitutional right.

In an Opinion and Order dated February 7, 1992 ("Opinion"), the district court granted defendants' motions. It dismissed the § 1983 claims against all defendants largely in reliance on DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ("DeShaney "), on the ground that the police had no affirmative obligation to come to Dwares's aid, that there was no allegation that Dwares had been the victim of intentional discrimination, and that therefore the complaint's "allegations fail[ed] to support a claim that he was deprived of any right secured by the Constitution or the laws of the United States," Opinion at 4. The court dismissed the § 1983 claim against the City for the additional reason that the complaint

point[ed] to no tangible connection between the police officers' alleged inaction and the alleged official policy of abandonment of crowd control training. In addition, plaintiff has asserted no facts which establish a policy or custom sufficient to support municipal liability.

Opinion at 8.

The court dismissed the claims asserted under § 1985(3) on the grounds that that section does not protect against discrimination on the basis of political views and that the complaint's allegations of conspiracy were conclusory. It dismissed the claims asserted under § 1986 because such claims are dependent on the viability of claims under § 1985. Having dismissed all of the federal claims, the court declined to exercise pendent jurisdiction over the asserted state-law claims.

Judgment was entered dismissing the complaint in its entirety. This appeal followed.

II. DISCUSSION

On appeal, Dwares contends that the district court erred in dismissing each of his asserted claims. We find merit in his contentions that the court erred in concluding that DeShaney required dismissal of the § 1983 claims against the individuals in their individual capacities and that the allegations of conspiracy were insufficient.

A. Section 1983 and DeShaney

Section 1983 allows an individual to bring suit against persons who, under color of state law, have caused him to be "depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. It is well established that in order to state a claim under § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 835, 102 S.Ct. 2764, 2768, 73 L.Ed.2d 418 (1982); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). A private individual may be subject to liability under this section if he or she willfully collaborated with an official state actor in the deprivation of the federal right. See id. at 152, 90 S.Ct. at 1605 (" 'Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute.' " (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966))). Conversely, a state actor may be subject to liability for an action physically undertaken by private actors in violation of the plaintiff's liberty or property rights if the state actor directed or aided and abetted the violation. See, e.g., Fries v. Barnes, 618 F.2d 988, 991 (2d Cir.1980). There is no question that a physical beating by one who has no privilege of inflicting such corporeal punishment intrudes on the victim's liberty...