Rothman v. City of N.Y.

• Decision Date: 05 August 2019
• Docket Number: No. 19 Civ. 0225 (CM),19 Civ. 0225 (CM)
• Parties: JEFFREY ROTHMAN, Plaintiff, v. THE CITY OF NEW YORK, ET AL., Defendants.
• Court: U.S. District Court — Southern District of New York

JEFFREY ROTHMAN, Plaintiff,
v.
THE CITY OF NEW YORK, ET AL., Defendants.

No. 19 Civ. 0225 (CM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 5, 2019

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

McMahon, C.J.:

Plaintiff Jeffrey Rothman ("Plaintiff") brings this action under 42 U.S.C. § 1983 against The City of New York (the "City"), New York City Police Detective Andrew Wunsch ("Wunsch"), New York City Police Sergeant Vincent Flores ("Flores"), New York City Police Department Deputy Commissioner for Legal Matters Lawrence Byrne ("Byrne"), and New York City Police Commissioner James O'Neill ("O'Neill") (collectively, "Defendants"). The gravamen of Plaintiff's Complaint, (Dkt. 9), is that when Plaintiff was attempting to serve process at the New York City Police Department ("NYPD") headquarters, two police officers - Wunsch and Flores - expressed their displeasure towards Plaintiff for suing the NYPD - one by angrily grabbing Plaintiff's pen from his hand and the other by angrily throwing Plaintiff's papers at him. Plaintiff's pen was returned within minutes; he was then told to leave the building and promptly left. Plaintiff was able to glean the officers' names and shield numbers before he left and filed complaints with the NYPD and the Civilian Complaint Review Board ("CCRB").

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The CCRB recommended that the NYPD discipline one of the officers for his discourteous behavior by issuing a command level instruction.

Out of this, Plaintiff and his attorney have fashioned a nine-count complaint alleging violations of the United States Constitution, the New York State Constitution, and New York State common law torts. Through this complaint, Plaintiff also sues Police Commissioner, James O'Neill - apparently on the grounds that Plaintiff was not kept apprised of the progress of his complaints - and Deputy Commissioner for Legal Matters, Lawrence Byrne - on the grounds that Byrne oversaw and approved of the actions of Wunsch and Flores.

Defendants move to dismiss the Complaint - for the most part meritoriously - pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that (1) Plaintiff fails to plead facts sufficient to plausibly infer that Defendants Wunsch or Flores violated Plaintiff's constitutional rights; (2) Defendants are entitled to qualified immunity; (3) Byrne and O'Neill lacked personal involvement in the alleged conduct; (4) Plaintiff fails to plead facts sufficient to plausibly infer the existence of an unconstitutional municipal policy or custom; (5) Plaintiff lacks standing to pursue declaratory or injunctive relief; (6) the alleged state law claims fail as a matter of law; and (7) the Court should decline to exercise jurisdiction over the alleged state law claims because there is no viable federal claim against any defendant.

Not much is left of the complaint after this Opinion. Given the value of the case, and consistent with Fed. R. Civ. P. 1, the Court has entered a scheduling order that will ensure the just, speedy, and inexpensive resolution of this case.

I. Factual Background

Unless otherwise noted, the facts are taken from Plaintiff's Complaint. For the purposes of the instant motion, the Court accepts the alleged facts as true.

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A. The Incident

This action arises out of an incident between Plaintiff and NYPD officers that occurred on the afternoon of December 13, 2017, at the reception desk in the lobby of One Police Plaza in New York City, when Plaintiff was attempting to serve process in the building.

Plaintiff is a solo practitioner in New York City; he specializes in civil rights litigation. (Compl. ¶¶ 17-18.) Due to the nature of Plaintiff's job, he was familiar with the "policies and procedures with respect to the service of Summonses and Complaints" at One Police Plaza. (Id. ¶ 34.)

At approximately 4:40 P.M. on December 13, 2017, Plaintiff arrived at One Police Plaza, went through security, and proceeded to the reception desk in the lobby of the building. (Id. ¶¶ 28-30.) At the reception desk, Plaintiff encountered Wunsch, who was the officer assigned to the desk. (Id. ¶ 31.) Plaintiff informed Wunsch that he was there to serve legal papers. (Id. ¶ 32.) Wunsch then informed Plaintiff that he should not have been allowed to pass through security because, due to a recent policy change, service of process at One Police Plaza should be made at the FOIL Unit, which had closed at 4:00 P.M. (Id. ¶ 33.)

Notwithstanding the new policy, Plaintiff requested a pass or an escort to go to the Manhattan Court Section Unit in Room # S-139, as he had done many times in the past without incident. (Id. ¶¶ 34-35.) Wunsch denied this request. (Id. ¶ 36.) To effectuate service, Plaintiff told Wunch that he would leave the papers with him at the reception desk. (Id. ¶ 37.) Plaintiff then looked at Wunsch's nameplate and began to write down Wunsch's name and shield number for the purposes of preparing an Affidavit of Service. (See id. ¶¶ 39-40.) Wunsch "angrily directed" Plaintiff to stop writing down his name and proceeded to "aggressively . . . [and] violently" grab Plaintiff's pen out of his hand. (Id. ¶ 40.) Wunsch returned the pen after multiple requests by Plaintiff that he do so. (Id. ¶¶ 44-45.)

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Wunsch then told Plaintiff that he had called for his Sergeant to come to the desk. (Id. ¶ 43.) Flores appeared and reiterated that Plaintiff would not be allowed entry to make service at the Manhattan Court Section Unit. (Id. ¶¶ 46-47.) Plaintiff told Flores that Wunsch had grabbed his pen out of his hand. (Id. ¶ 48.) Plaintiff then gave Flores his business card, and told Flores that he would leave the papers with him to effect service. (Id. ¶ 49.) At this point, Flores became angry. (Id. ¶ 50.) He picked up the documents from the desk and "aggressively . . . [and] violently" threw them at Plaintiff, striking him and causing the papers to fall on the floor. (Id.) After throwing the papers, Flores directed Plaintiff to leave the building. (Id. ¶ 51.) Plaintiff complied, leaving the Summons and Complaint on the floor. (Id. ¶ 52.) As Plaintiff was leaving, Wunch walked beside him until he left the building. (Id.)

B. The Complaints to the CCRB and NYPD

On December 28, 2017, Plaintiff wrote a letter to the NYPD Deputy Commissioner for Legal Matters, Lawrence Byrne and the Corporation Counsel of the City of New York, Zachary Carter, asking that (1) the City discipline Wunsch and Flores for their conduct during the incident at One Police Plaza, (2) Plaintiff be informed of what disciplinary actions resulted, and (3) the City preserve all evidence relating to the incident. (Id. ¶¶ 53-54.) Additionally, in early January 2018, Plaintiff filed a complaint with the CCRB seeking to have Wunsch and Flores disciplined for their conduct during the incident at One Police Plaza. (Id. ¶ 55.)

On April 24, 2018, Plaintiff received a telephone call from NYPD Sergeant Swetsky ("Swetsky"). (Id. ¶ 56.) Swetsky informed Plaintiff that he had spoken with Wunch about the incident but that no wrongdoing had occurred due to the fact that Plaintiff was able to write down Wunsch's name and shield number even though Wunsch failed to provide Plaintiff with this information. (Id. ¶¶ 56-57.) Swetsky also told Plaintiff that his allegations that Wunsch

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"wrench[ed]" the pen from Plaintiff's hand and that Flores threw Plaintiff's papers at him would need to be investigated by the CCRB, and that neither the City nor the NYPD would investigate those allegations "independent of the [CCRB]." (Id. ¶ 58.) Plaintiff "believes" that Swetsky was acting on behalf of Byrne, and that Byrne sanctioned the conduct of Wunsch and Flores. (Id. ¶ 60.)

On August 1, 2018, the CCRB informed Plaintiff that it had investigated his complaint and concluded that Wunsch acted "discourteously toward Jeffrey Rothman." (Id. ¶¶ 61, 63.) The CCRB recommended "discipline in the form of a command level instruction." (Id. ¶ 63.) The CCRB also found that Plaintiff's abuse of authority claim against Wunch and discourteousness claim against Flores were "unsubstantiated." (Id. ¶ 66.) Plaintiff asserts that "what an 'unsubstantiated' finding connotes is that, because there is a credibility assessment factor which the [CCRB] determines cannot be resolved, the [CCRB], in effect, is passing on a substantive finding with respect to the charge against the officer[s]." (Id. ¶ 68.)

The CCRB forwarded its findings and recommendations to O'Neill and Byrne. (Id. ¶ 64.) Plaintiff believes that Byrne and O'Neill "have the authority to adopt the referral from the [CCRB] (both as to the substantive finding and the recommended discipline); or they have the discretion to modify the same or disregard the same altogether." (Id. ¶ 65.) To date, Plaintiff has not been provided with any information about the status of any disciplinary action that either has or has not been taken. (Id. ¶ 70.)

II. These Proceedings

The First Cause of Action alleges that Wunsch unreasonably seized Plaintiff's property, and violated his rights under the Fourth Amendment and 42 U.S.C. § 1983.

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The Second Cause of Action alleges that Wunsch unreasonably seized Plaintiff's property, violating his rights under the laws and Constitution of New York.

The Third Cause of Action alleges that Wunsch and Flores subjected Plaintiff to unreasonable force and detention/restraint, violating Plaintiff's rights under the Fourth and Fourteenth Amendments and § 1983.

The Fourth Cause of Action alleges that Wunsch and Flores subjected Plaintiff to unreasonable force and detention/restraint, violating Plaintiff's rights under the laws and Constitution of New York.

The Fifth Cause of Action alleges that Byrne sanctioned Wunsch's and Flores's conduct, violating Plaintiff's rights under the Fourth and Fourteenth Amendments and § 1983.

The Sixth Cause of Action alleges that the O'Neill, Byrne, and the City violated Plaintiff's rights under the First...