Milo v. City of N.Y.
Decision Date | 14 November 2014 |
Docket Number | No. 14–CV–1172.,14–CV–1172. |
Citation | 59 F.Supp.3d 513 |
Parties | Sabrina MILO, Plaintiff, v. The CITY OF NEW YORK and Police Officer Greg E. Evert, Defendants. |
Court | U.S. District Court — Eastern District of New York |
Daniel I. Neveloff, New York, NY, for Plaintiff.
Jeremy Farrar, Corporation Counsel, New York Law Dept., New York, NY, for Defendants.
Table of Contents
I.
Introduction
517
II.
Facts
518
III.
Fed.R.Civ.P. 12(c) Judgment on the Pleadings Standard
520
IV.
Law
520
A.
Statute
520
B.
Municipal Liability Standard
520
C.
False Arrest and False Imprisonment Under Fourth Amendment Standard
521
D.
Excessive Force Under Fourth Amendment Standard
521
1.
De Minimis Injuries
522
2.
Verbal Harassment
522
E.
Free Speech Under First Amendment Standard
522
1.
Clear and Present Danger
522
2.
Regulation of Speech Inside Schoolhouse Walls
523
F.
Unconstitutional Confinement and Deliberate Indifference to Medical Needs Under Due Process Clause of Fourteenth Amendment Standard
524
1.
Components of Deliberate Indifference Rule
525
2.
Parties That May Be Held Liable
525
V.
Application of Law to Facts
526
A.
Municipal Liability Claim
526
B.
False Arrest and False Imprisonment Claims
526
C.
Excessive Force Claim
527
D.
Free Speech Claim
527
E.
Unconstitutional Confinement and Deliberate Indifference to Medical Needs Claim
527
VI.
Conclusion
528
Frustrated by a critical letter from her assistant principal, Sabrina Milo, an art teacher at a public high school in Brooklyn, announced in the school's teachers' lounge: “[I]f I had a trench coat and a shotgun, it would be Columbine all over again.” The reference to Columbine evoked memories of a terrorist gun attack on young students that left twelve students and one teacher dead, and twenty-one wounded. Her statement was a modern analogue to that of Justice Oliver Wendell Holmes Jr.'s illustration of what was beyond the pale: shouting fire in a theater.
Upset, three days later three teachers filed written descriptions of the incident. One of them wrote that when she asked Milo to retract her statement, the response was: “Don't worry, I won't get you.”
The three eyewitness statements were provided to police. Milo was arrested. Probable cause existed to arrest her for a violation of New York Penal Law section 490.20, defining a terrorist threat.
Prosecutorial investigation quickly revealed that plaintiff lacked the requisite mens rea —there was no intent to do harm. Exercising common sense, authorities quickly released Milo on bail and then dismissed all charges.
On the undisputed facts, defendants' motion to dismiss is granted with respect to plaintiff's Monell claim against the City and her free speech, false arrest, and false imprisonment claims against the one named officer.
Were it not for the three-year statute of limitations applicable to claims brought pursuant to section 1983 of Title 42, what would remain open is plaintiff's claim that, while she was held at the police station and chained to a pole for nine hours, one or more police officers withheld all liquids from her after being informed that her medical condition—hypoglycemia —required continuous hydration. Even were she a terrorist, she had a right to humane imprisonment. The Constitution does not permit abusing municipal prisoners by deliberately denying them necessary medical relief, a violation of the due process clause of the Fourteenth Amendment.
Plaintiff, however, did not name as a defendant the officer or officers who had been informed of her medical need and then withheld the simple remedy—water. Nor did she name any person in charge of the precinct's operation or any officer who witnessed the incident and had a duty to intervene.
Plaintiff seeks to amend the complaint. Because the three-year statute of limitations has run, an amendment would be futile. Amendment is denied.
The case is dismissed.
Plaintiff started teaching art at Fort Hamilton High School (“Fort Hamilton”) in 2001. Am. Compl. ¶ 12, Sept. 15, 2014, ECF No. 13–3. Ten years later, on March 29, 2011, during the noon lunch break, she entered the teachers' lounge shaking and crying. Id. ¶¶ 14, 17. She had just received a communication from the assistant principal informing her that she had made inappropriate comments to a student. Id. ¶ 14. Feeling unfairly targeted, she vented her exasperation to other teachers. Id. ¶¶ 15, 17. They included Gloria Mingione, Alan Zeitland, Johnny Rosero, Nanetta Lopinto, Kalli Zervos and Terry Papantonio. Id. ¶ 17.
Plaintiff told Mingione: “[I]f I had a trench coat and a shotgun, it would be Columbine [—a reference to the April 20, 1999 mass shooting of high school students at Columbine High School in Littleton, Colorado—]all over again. ” Id. ¶ 18 (emphasis added). Mingione cautioned: “[D]on't say that.” Id. Plaintiff responded: Id. Mingione shook her head, mouthing the word “no.” Id.
Plaintiff then returned to her classroom. Id. ¶ 22. She worked two more days without incident. Id. ¶¶ 23–24.
On April 1, 2011, three days after the event, three teachers submitted statements describing the incident:
Farrar Decl., Exs. B–D, Aug. 25, 2014, ECF No. 10 (emphasis added).
On the same morning that these teachers submitted their recollections, plaintiff was asked by her department supervisor to attend an unscheduled meeting in his office and to bring all of her belongings. Am. Compl. ¶ 25. Shortly after noon, four uniformed New York Police Department officers entered the department supervisor's office. Id. ¶ 26. Officer Greg E. Evert asked plaintiff if she was Sabrina Milo. Id. She responded: “Yes.” Id. Evert then informed plaintiff that she was under arrest. Id. Plaintiff was handcuffed and escorted out of the school into a police van. Id. According to Milo, “[t]he handcuffs were secured tightly, but the police officers refused to loosen them despite [my] request [that they do so].” Id.
At the 68th precinct, plaintiff was allegedly handcuffed to a pole from 1:00 p.m. to 10:00 p.m. Id. ¶¶ 27–28. She was unhandcuffed to be processed, to use the restroom and to see her attorney. Id. ¶ 28. Plaintiff told at least one police officer that she suffered from hypoglycemia, a medical condition, and that she was required to drink large amounts of water. Id. ¶ 30. She was not provided with food or drink. Id. ¶ 29. Officers at the precinct mocked her, stating: Id. At one point, when she requested water, an officer asked if she had a dollar. Id. ¶ 30. When she answered “No,” he reportedly said: “I guess you're not getting water then.” Id.
Finally, acting on the advice of her attorney, plaintiff demanded that she be taken to a hospital. Id. ¶ 31. Without delay, Emergency Medical Services arrived at the precinct and took her to Lutheran Medical Center. Id. She was treated at the hospital while handcuffed. Id. ¶ 33. At 6:00 a.m., plaintiff was brought back to the 68th precinct. Id. ¶ 34.
At the precinct, unidentified police officers and staff held newspapers with plaintiff's photograph on the front page. Id. ¶ 36(a). Some allegedly pointed to these newspapers and then to plaintiff and laughed. Id.
Plaintiff was arraigned and charged with “Making a terroristic threat.” Id. ¶ 36(b); N.Y. Penal Law § 490.20 (McKinney 2014). The first paragraph of New York Penal Law section 490.20 requires proof of intent to cause some form of criminal harm. The second paragraph provides that it is no defense that the defendant did not have the intent or capacity to commit the terroristic act threatened. It reads:
N.Y. Penal Law § 490.20 (emphasis added).
The criminal complaint by...
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