Heicklen v. U.S. Dep't of Homeland Sec.
| Decision Date | 30 August 2011 |
| Docket Number | 10 Civ. 2239 (RJH) (JLC) |
| Parties | JULIAN HEICKLEN, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
(Non-ECF Case)
JAMES L. COTT, United States Magi strate Judge.
This action arises out of the distribution of jury nullification pamphlets by pro se Plaintiff, Julian Heicklen ("Heicklen"), outside the federal district court in Manhattan on six separate occasions during the fall of 2009, each of which resulted in Heicklen's arrest by federal officers and his transportation to local hospitals for evaluation. Heicklen alleges (1) Bivens violations by the Department of Homeland Security ("DHS") Secretary Janet Napolitano ("Napolitano"); Homeland Security Federal Protective Services Officers C. Barnes, Wong, and Roond and Officers John Does 1-8 (the "Officers"); the U.S. Central Violations Bureau (the "Bureau"); and Michael F. Oakes ("Oakes") (together, the "Federal Defendants"); and (2) deprivation of various constitutional rights in violation of 42 U.S.C. § 1983 by the New York City Fire Department ("FDNY") and two of its employees; New York Downtown Hospital (the "Hospital") and several of its employees; Bellevue Medical Center ("Bellevue"), and several of its employees; St. Vincent's Medical Center ("St. Vincent's") and several of its employees; and the New York City Health and Hospitals Corporation ("HHC"). Heicklen seeks, among other things, compensatory and punitive damages.
Currently before the Court are motions to dismiss by the Federal Defendants, the Hospital, and the FDNY, The Federal Defendants move to dismiss the complaint pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. The Hospital and the FDNY each move to dismiss pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that (1) each of these defendants' motions be granted and the claims against them and HHC be dismissed with prejudice; and (2) the Court sua sponte dismiss the claims against each of the remaining defendants without prejudice, except for St. Vincent's against whom this action remains stayed pursuant to 11 U.S.C. § 362(a).
The following facts are taken from the complaint and are accepted as true for purposes of deciding the instant motions.
Beginning on October 19, 2009 and continuing for several weeks, Heicklen appeared outside of the United States Courthouse at 500 Pearl Street in Manhattan (the "Courthouse") to hand out pamphlets of an organization called the Fully Informed Jury Association that advocates jury nullification, along with his own flyer (together, the "literature"). Complaint dated January 27, 2010 * 80-81 & Exs. B, C (the "complaint" or "Compl.") (Dkt. No. 1). Heicklen's flyer stated as follows:
THE JUDGE WILL INSTRUCT THE JURY THAT IT MUST UPHOLD THE LAW AS HE GIVES IT. HE WILL BE LYING. THE JURY MUST JUDGE THE LAW AS WELL AS THE FACTS. JURIES WERE INSTITUTED TO PROTECT CITIZENS FROM THE TYRANNY OF GOVERNMENT. IT IS NOT THE DUTY OF THE JURY TO UPHOLD THE LAW. IT IS THE JURY'S DUTY TO SEE THAT JUSTICE IS DONE.
Id. Ex. C. The claims in the complaint arise out of six incidents that occurred while Heicklen was in the midst of his pamphleteering in front of the Courthouse. Id. ¶¶ 80. 107, 131, 153, 166, 178.
The first incident occurred on October 19, 2009. Id. ¶ 80. Heicklen was distributing his literature in the middle of the plaza in front of the Courthouse and was eventually approached by a Homeland Security Officer who informed Heicklen that he could not distribute literature on federal property without a permit and asked him to leave. Id. 82. Heicklen refused and continued handing out the pamphlets. Id. ¶¶ 82, 84. A few minutes later, another officer approached Heicklen and again informed him that he could not distribute his literature on federal property without a permit. Id. Stating to the officers that his "permit" was the First Amendment of the Constitution, Heicklen refused to leave. Id. ¶ 86. Heicklen continued distributing his literature. Id. ¶ 87. A few minutes later, another group of officers approached Heicklen and after he again refused to leave, the officers placed him under arrest, after which he fell to the ground and remained limp and silent. Id. ¶¶ 89-94. Shortly thereafter, an ambulance was called and Heicklen was taken to St. Vincent's. Id. ¶¶ 96-97. After eventually speaking to a staff psychiatrist, Heicklen was released. Id. ¶¶ 101-04.
The next incident occurred on October 26, 2009. Id. ¶ 107. Heicklen stood in the plaza in front of the Courthouse distributing his literature and, after being approached by officers Barnes, Wong, and Roond—the same officers with whom he had interacted the previous week— and refusing to stop distributing the literature, was placed under arrest and given citations for unlawful distribution of flyers on federal property and for impeding/opposing a federal officer. Id. ¶¶ 107-08, 112. 117-18 & Exs. E-F. An ambulance arrived and Heicklen was taken to Bellevue. Id. ¶ 119. After speaking with a staff psychiatrist, Heicklen was released. Id. ¶ 122.
One week later, on November 2, 2009, Heicklen again appeared in the plaza in front of the Courthouse and began distributing his literature. Id. ¶¶ 131, 133. Several officers approached Heicklen and told him that he could not pass out the literature on federal property; however, Heicklen ignored this directive. Id. ¶¶ 134, 136. One of the officers then informed Heicklen that he was under arrest, and Heicklen "fell to the ground face down." Id. ¶ 137. After laying on the ground for more than an hour, Heicklen was placed in an ambulance and again taken to Bellevue. Id. ¶ 139. Once there, Heicklen "made a fuss to see someone in charge, so that he could either be released or brought in front of a magistrate." Id. ¶ 142. After his requests were ignored and he had become more persistent, Heicklen was given, against his wishes, a shot of thorazine to calm him down. Id. ¶¶ 143-44. Heicklen slept through the night, was interviewed by a psychiatrist and social worker the following day, and was then released from Bellevue. Id.¶¶ 144, 149.
On November 9, 2009, Heicklen again distributed his literature in the plaza in front of the Courthouse. Id. ¶ 153. He was eventually approached by Officers Musumeci and Barnes, who informed him that he had to leave. Id. ¶ 155. When Heicklen refused, another group of officers, including Officer Barnes, approached Heicklen and placed him under arrest, prompting Heicklen to fall to the ground. Id. ¶¶ 156-57. Heicklen also received a citation for distribution of flyers on federal property.Id. ¶ 157 & Ex. J. Antonio Musumeci ("Musumeci"), a reporter who had been filming the events and who originally was a named plaintiff in this action, was also arrested.1 The officers left shortly thereafter, Heicklen "stood up[.| and the event was over." Id. ¶ 161.
A similar series of events unfolded on November 16, 2009. Id. ¶ 166, Heicklen distributed his literature in the plaza in front of the Courthouse, was asked to leave by certain federal officers, refused, and shortly thereafter was placed under arrest by several officers, including Officer Barnes. Id. ¶ 166. Officer Barnes gave Heicklen a citation for unauthorized distribution of flyers, then "unarrested" Heicklen and, along with the rest of the officers, "left the scene." Id. ¶ 170 & Ex. N.
The final incident described in the complaint took place on November 23, 2009. Id. ¶ 178. Heicklen was distributing his literature in the plaza in front of the Courthouse when three officers approached him and asked him who he was. Id. ¶ 180. When Heicklen reached into his bag for his clipboard, one of the officers grabbed Heicklen's arm and placed him under arrest. Id. ¶ 181. In response, Heicklen fell to the ground, silent, and remained there for about a half hour. Id. Medics from the FDNY soon arrived and when Heicklen did not respond to their attempt to communicate with him, they "pounded on [his] chest and shoulders to try to get him to respond" but Heicklen remained unresponsive. Id. ¶ 185. The medics subsequently searched Heicklen for identification and, in doing so, "put a three inch rip" in Heicklen's pants. Id. ¶ 186.
Shortly thereafter, an ambulance arrived, and Heicklen was placed inside of it, still unresponsive, Id. ¶ 187. The medics from the ambulance "punched" Heicklen in the chest and shoulders "to get him to talk;" however, he refused. Id. Heicklen was then taken to the Hospital where he received a thorough medical exam and was eventually released. Id. ¶¶ 188, 192-93.
Heicklen later received four notices from the United States Courts* Central Violations Bureau each ordering him to pay a $100.00 fine or to appear before a Magistrate Judge in the Courthouse on January 19, 2010. Id. ¶¶ 199-200 & Exs. R-S. Heicklen failed to appear. Id. ¶ 203.
Heicklen filed the instant complaint on March 15, 2010. The Defendants listed in the 269 paragraph pleading are the Federal Defendants; the FDNY and two John Doe defendants employed there—"ambulance attendants 1 and 2;" the Hospital and several John and Jane Doe defendants employed there; HHC; St Vincent's and several John and Jane Doe defendants employed there; and Bellevue and several John and Jane Doe defendants employed there.2
On June 14, 2010, Heicklen filed a proof of service, along with affidavits from process servers, and stated that he had effectuated service on some but not all of the Defendants listed in the complaint: the Federal Defendants; HHC; St. Vincent's; Bellevue and the non-John and Jane Doe employees there; the Hospital; and the FDNY. Affirmation of Service of Summons dated June 11, 2010 (Dkt. No. 7).3
By letter dated July 29, 2010, counsel for St. Vincent's...
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