Gersbacher v. City of N.Y.

• Decision Date: 25 September 2015
• Docket Number: No. 1:14–cv–7600–GHW.,1:14–cv–7600–GHW.
• Citation: 134 F.Supp.3d 711
• Parties: Eric GERSBACHER, Plaintiff, v. The CITY OF NEW YORK, Officer Gonzalez, Officer Ramirez, Deputy Inspector Edward Winski, and John Doe Police Officers 1–10, Defendants.
• Court: U.S. District Court — Southern District of New York

134 F.Supp.3d 711

Eric GERSBACHER, Plaintiff,

v.The CITY OF NEW YORK, Officer Gonzalez, Officer Ramirez, Deputy Inspector Edward Winski, and John Doe Police Officers 1–10, Defendants.

No. 1:14–cv–7600–GHW.

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

Signed Sept. 25, 2015.

Samuel Benjamin Cohen, Wylie M. Stecklow, Stecklow Cohen and Thompson, New York, NY, for Plaintiff.

Andrew Joseph Lucas, Joy Tolulope Anakhu, NYC Law Department, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS

, District Judge:

On September 20, 2011, Plaintiff Eric Gersbacher was arrested while participating in the Occupy Wall Street demonstrations in Zuccotti Park in lower Manhattan. Gersbacher alleges that he was unlawfully arrested as part of the New York City Police Department's ("NYPD") efforts to harass the protesters and discourage First Amendment expression, that NYPD officers used excessive force in effectuating his arrest, and that NYPD officers were deliberately indifferent to his serious medical condition when he suffered an asthma

attack during the arrest. The City of New York ("the City"), Police Officers Gonzalez and Alan Ramirez, and Police Deputy Inspector Edward Winski (together "Defendants"), move to dismiss Gersbacher's complaint under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendants' motion is DENIED.

I. Background ¹

On the morning of September 20, 2011, prior to his arrest, Gersbacher was sitting on top of a blue tarp in Zuccotti Park in lower Manhattan. Compl. ¶¶ 1, 25, ECF No. 1. Protesters associated with the Occupy Wall Street movement had begun to occupy the park a few days prior to Gersbacher's arrest, and would remain in the park for nearly two months afterwards. Id. ¶ 19.

The protesters had been told by Inspector Winski that the police would be enforcing New York City Administrative Code § 16–122(b)

, which forbids the erection of structures in public places. Id. ¶ 22. Gersbacher alleges that the police did not issue any citations, but that this threat was one of the tactics used by police to intimidate protesters and make them feel unsafe. Id. ¶¶ 21, 23. As a result, protesters detached their tarps from trees and other objects so that they were not creating "structures." Id. ¶ 24.

Around 10:00 am, Gersbacher was seated on one such tarp and approximately ten NYPD officers, including Officers Gonzalez and Ramirez, were standing near the tarp. Id. ¶ 28. The plaintiff witnessed NYPD officers tackle and arrest three other individuals nearby. Id. ¶ 29. Police officers then pulled Gersbacher away from the tarp by his shirt, and Gersbacher fell and asked the officers what they were doing. Id. ¶¶ 30, 31, 33. The officers did not respond, and Gersbacher stood back up and began moving away from the officers. Id. ¶¶ 34–36. The officers then pulled Gersbacher back and forced him to the ground, holding him down with their body weight and causing bruising and cuts on Gersbacher's forehead by pushing his face against the ground. Id. ¶¶ 37–41.

While Gersbacher was face down on the ground, NYPD officers began punching him, pulled his arms behind his back, and placed his hands in plastic flexi-cuffs. Id. ¶¶ 51–53. Around this time Gersbacher began to have an asthma

attack. Id. ¶ 54. He informed the NYPD officers that he was having an asthma attack and could not breathe. Id. ¶¶ 57, 59. A bystander told the police that they had an inhaler for Gersbacher to use, but the police did not respond. Id. ¶¶ 66, 67. The NYPD officers continued to pin Gersbacher to the ground for two minutes before allowing him to sit up and use the inhaler. Id. ¶ 68.

At some later point, although Gersbacher does not specify when, the NYPD officers lifted him off the ground only to shove him back down and pin him to the ground again. Id. ¶¶ 78–80. When a police officer pulled Gersbacher's left arm it slipped out of the flexi-cuff and Gersbacher tried to curl himself into a ball. Id. ¶¶ 81–84. NYPD officers then pulled Gersbacher's left arm back to cuff him again, and Gersbacher indicated to the police that he would permit himself to be handcuffed but that he needed to breathe. Id. ¶¶ 85, 86. The officers put Gersbacher's left wrist back in the flexi-cuff, grabbed him by the arms, and lifted him off the ground. Id. ¶¶ 88, 89. Gersbacher asked what he was being charged with and the police officers did not respond. Id. ¶¶ 91, 92.

The NYPD officers then took Gersbacher to the 1st Precinct. Id. ¶ 93. During the drive to the precinct, Gersbacher repeatedly requested that the officers loosen the flexi-cuffs; the officers did not respond to these requests. Id. ¶¶ 94, 95. While being held in the waiting area of the 1st Precinct, Gersbacher again asked an officer to loosen or remove his handcuffs, and the police officer responded that he could "make those handcuffs hurt more" if Gersbacher kept talking. Id. ¶¶ 98, 99. Gersbacher's wrists were in pain and his hands turned purple as a result of how tightly he was cuffed. Id. ¶¶ 96, 97. He later found cuts and bruises where the flexi-cuffs had been. Id. ¶ 102. After an about an hour, a police officer roughly removed the cuffs with scissors, causing Gersbacher additional pain. Id. ¶¶ 100, 101.

Gersbacher was then taken from the waiting area to a holding cell. Id. ¶ 101. While he was in the holding cell, Officer Ramirez instructed him to decline if anyone asked if he needed medical treatment. Id. ¶ 105. Gersbacher replied that he did need treatment and would say so, and Officer Ramirez then hit the bars of the holding cell in an effort to intimidate Gersbacher. Id. ¶¶ 106, 107. Gersbacher did request medical treatment while in the holding cell, but his requests were ignored. Id. ¶¶ 108, 109.

After approximately eleven hours, NYPD officers, including Officer Ramirez, transferred Gersbacher to Central Booking. Id. ¶ 110. At Central Booking, a paramedic asked Gersbacher if he needed medical treatment, but because Officer Ramirez was present Gersbacher said that he did not require medical treatment. Id. ¶¶ 111–113.

Gersbacher was charged with Obstruction of Government Administration in the

Second Degree and Resisting Arrest, New York Penal Law §§ 195.05

and 205.30. The charges were eventually dismissed. Id. ¶¶ 115, 117.

As a result of this incident, Gersbacher alleges significant physical, mental, and emotional injuries. Id. ¶¶ 118, 119. He was not able to resume his participation in the Occupy Wall Street demonstrations or return to college. Id. ¶¶ 120–122. In May 2012, Gersbacher began work at a landscaping company, but he was terminated shortly after he was hired as a result of this arrest. Id. ¶¶ 123–124.

Gersbacher filed this action under 42 U.S.C. § 1983

on September 19, 2014. He brings claims against Defendants for (1) false arrest; (2) failure of individual officers to intervene to prevent violations of his constitutional rights; (3) use of excessive force; (4) deliberate indifference to serious medical needs on violation of his due process rights; (5) retaliation for exercise of his First Amendment rights; and (6) municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).² Defendants move to dismiss all claims.

II. Legal Standard

In deciding a motion to dismiss under Rule 12(b)(6)

, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 110–11 (2d Cir.2010) (quoting Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir.2009) ). To avoid dismissal, 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) ). A formulaic recitation of the elements of a cause of action, devoid of supporting facts, does not suffice. Id. To satisfy the "plausibility" requirement, the plaintiff must plead facts that permit the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

III. Discussion

A. Whether the Videos May Be Properly Considered with the 12(b)(6) Motion

Before assessing the sufficiency of the complaint, the Court must determine which sources of information beyond the complaint, if any, should be considered. "In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)

, a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco, 622 F.3d at 111 (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) ). The court may also consider a document that is "integral" to the complaint, however, "it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document." Id. (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) ).

Gersbacher's complaint explicitly incorporates ten items, including a report entitled "Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street" (the "Report"). Compl. ¶ 206 n. 8. Defendants base their motion to dismiss on three videos, two of which are hyperlinked in a footnote and an appendix of the online version of the Report. These first two videos are three minutes long and thirty seconds long, respectively (the "three-minute video" and "thirty-second video"). The third video (the "nine-minute video"), defendants assert, is an unedited version of one of the two videos linked in the Report, and Defendants prefer this video to the three-minute video, which they describe as "edited, decontextualized, and incomplete." Defs.' Br. 2, ECF No. 17. Gersbacher takes the position that...