Marlin v. City of New York
Marlin v. City of New York
2016 WL 4939371 (S.D.N.Y. 2016)
September 7, 2016

McMahon, Colleen,  United States District Judge

Video
Criminal
Download PDF
To Cite List
Summary
The court did not consider any ESI as Plaintiff objected to its submission and questioned its authenticity and accuracy. The court found that the exhibits submitted by defendants that went to the merits were not “integral” to the complaint and were not admitted to by the plaintiff. Therefore, they were not considered in deciding the motion.
Jasom Marlin Plaintiff,
v.
The City of New York, New York City Police Department (“NYPD”) Counterterrorism Bureau Inspector John O'Connell, NYPD Sergeant Paul D'Addario, Shield No. 5259, NYPD Officer Jonathan Batista, Shield No. 9098, NYPD Officer Michael Morrin, Shield No. 17028, NYPD Officer Robert McNicholl, Shield No. 12027, and NYPD Officers John and Jane Doe #1-5 (the Names Being Fictitious, as the true names and shield numbers are not presently known), in their individual and official capacities, Defendants
No. 15 Civ. 2235 (CM)
Signed September 07, 2016

Counsel

Gideon Orion Oliver, New York, NY, for Plaintiff.
Andrew Joseph Lucas, Dara Lynn Weiss, Joy Tolulope Anakhu, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.
McMahon, Colleen, United States District Judge

DECISION AND ORDER PARTIALLY GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

*1 Plaintiff Jason Marlin brings a § 1983 action against five named officers of the New York City Police Department (“NYPD”), five John Doe defendants, and the City of New York. He alleges that the individual defendants violated his First, Fourth, Sixth and Fourteenth Amendment rights in arresting him and bringing charges against him in connection with his participation in Occupy Wall Street protests. Plaintiff also brings a claim for municipal liability against the City under Monell v. Department of Social Services, 436 U.S. 658 (1978).
Defendants have moved to dismiss Plaintiff's claims and have simultaneously moved for summary judgment on the limited ground of qualified immunity. For the reasons that follow, Defendants' motion to dismiss is GRANTED in part and their motion for summary judgment is DENIED.
PARTIES
The moving Defendants are members of the NYPD and the City of New York. At the time of the events giving rise to the First Amended Complaint (“FAC”):
• John O'Connell was an Inspector with the NYPD's Counter-terrorism Bureau;
• Paul D'Addario was an NYPD Sergeant;
• Jonathan Batista was an NYPD officer;
• Michael Morrin was an NYPD officer;
• Robert McNicholl was an NYPD officer;
The FAC also names five “John and Jane Doe” defendants, who are NYPD officers whose real names are not known to Plaintiff. FAC ¶ 14. Their alleged roles in Plaintiff's claims are as follows:
• John Doe #1 was the NYPD supervisor who ordered the arrest of a female protestor shortly before ordering Plaintiff's arrest. FAC ¶ 16.
• John Doe #2, John Doe #3, John Doe #4, and John Doe #5 were NYPD officers or supervisors who were involved in placing Plaintiff under arrest and using force on Plaintiff's right elbow. FAC ¶ 17, 18, 19, 20.
FACTS
All facts relevant to the motion to dismiss are taken from the Plaintiff's First Amended Complaint (FAC). All well-pleaded factual allegations are assumed to be true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Because Defendants have also brought a motion for summary judgment dismissing the complaint on the ground of qualified immunity, the Plaintiff has been deposed, in order to fully flesh out his story. To the extent that the deposition testimony elicited Plaintiff's version of the events pleaded in the FAC, it is deemed true for purposes of this pre-answer motion for summary judgment. Stephenson v. John Doe 332 F.3d 68 (2d Cir. 2003); see Individual Practices and Procedures for Judge McMahon, Rule IV.E.3. It seems that a number of questions were put at the deposition seeking to undermine the truth of what Plaintiff asserted. That is all very well and good, but as will be discussed below, it is irrelevant to a qualified immunity motion made at this early stage of proceedings. At this pre-answer stage, a court considering a motion for summary judgment on the ground of qualified immunity properly takes the plaintiff's story as true and asks whether a reasonable police officer standing in the shoes of each of the defendants could have thought that his actions, as described by the plaintiff, were constitutionally compliant. This is not the time for asserting that Plaintiff's story is not true, or that things did not happen as Plaintiff described them, or for establishing that the police officers did nothing wrong (which the City has a lamentable habit of confusing with qualified immunity).
*2 Plaintiff Jason Marlin is a 24-year-old resident of Silver Spring, Maryland who traveled to New York City on several occasions to participate in demonstrations and activities associated with Occupy Wall Street. FAC ¶¶ 7, 32. Plaintiff first participated in the demonstrations beginning in October 2011 while the Occupy Wall Street movement was physically occupying Zuccotti Park, a privately owned public space in New York's Wall Street financial district. FAC ¶¶ 35, 36. Plaintiff lived in Zuccotti Park as a part of the protests until November 15, 2011, when he was arrested and subsequently released. See Marlin 2/10/16 Deposition [hereinafter “Marlin Dep.”] at 17, 20, Ex. A to Decl. of Andrew Lucas in Supp. of Defs.' Second Mot. to Dismiss and Mot. for Summ. J. (Docket #49). Thereafter, Plaintiff remained in New York to participate in Occupy Wall Street activities for another month before leaving New York in mid-December of 2011. Marlin Dep. at 20.
Plaintiff returned to New York on March 23, 2012 to participate for a second time in Occupy Wall Street demonstrations. Id. at 21. The events arising from this second turn in the demonstrations give rise to his instant action. Plaintiff had learned, through the Occupy Wall Street website and through the group's text messages, that the protesters had shifted its focus to Union Square. Id. at 22-23. According to Plaintiff, Occupy Wall Street directed its focus to Union Square in part because, by March 2012, Zuccotti Park was completely barricaded off and access was limited. Id. at 23.
When Plaintiff arrived at Union Square around midnight on March 23, 2012, he saw 50 to 60 protesters in the area and saw approximately the same number of police officers. Id. at 25. On the night, the officers were standing in a line behind barricades on a sidewalk parallel to the stairs on the south end of Union Square Park. Id. at 25.
Around the time that Plaintiff arrived to the park, police officers were verbally ordering and physically pushing protestors in an effort to relocate the crowd to another part of the sidewalk. Id. at 27. In his recollection, Plaintiff did not hear any announcements or orders by police that night. Id. at 26. Plaintiff does remember that officers, who were wearing white shirts, held bullhorns, but does not remember any of them making any announcements. Id. at 28. At one point that night, a group of police officers approached Plaintiff, who was standing with 50 or 60 protestors, and told these protestors to move to the southwestern end of Union Square. Id. at 28-29. After the police relocated them to the southwestern end of Union Square, the protestors continued to associate in that location until approximately 1:00 or 2:00 A.M. Id. at 28-29. According to Plaintiff, the officers moved the group because the New York Department of Sanitation was coming to clean the sidewalk. Id. at 32.
It was generally known to Plaintiff and to other protestors that the police would push the group to different areas of Union Square around midnight. Id. And from what Plaintiff had gathered, the police had been moving protestors around in this manner for at least a couple of days. Id. at 33.
On the following day, March 24, after spending the day at an Occupy Wall Street-related march outside of Union Square, Plaintiff returned to the area by the evening. Id. at 34. Again, the police were present at the park, but the barricades were not set up as they were the night before. Id. at 35. Plaintiff did not see park rules posted anywhere and did not hear any police announcements that the park was going to be closing at midnight. Id. at 35, 39. Although Plaintiff was aware that the park closes at midnight because fellow protestors had mentioned it, he did not believe that the part of Union Square in which he was occupying had a closing time since it was not part of the park. Id. at 37.
As midnight approached, the police officers formed a crowd, as they had done the night before, and began pushing the protestors, a group of 50 to 100 people. Id. at 41, 43. Plaintiff happened to be standing in the front of the group of protestors who were being relocated, in a position closest to the officers. Id. at 43, 44. The crowd of protestors moved back slowly in response to being pushed by the officers. Id. at 47.
*3 While the crowd was being pushed by police, protestors vocalized their disapproved of the police's actions – protestors cursed at, berated, and insulted the officers. Id. at 45. One such individual, a female protestor standing to the Plaintiff's immediate left, was arrested after yelling at the police, “You should be ashamed of yourselves.” Id at 47-49. A police officer, identified by Plaintiff as wearing a white shirt, ordered the arrest of the female protestor. Id. at 51. As a result of the order, several NYPD officers who, according to Plaintiff, were wearing blue uniforms, attempted to extract the woman out of the crowd and pulled her toward the police line. FAC ¶ 131.
A few seconds after the female protestor was arrested, the same officer in the white shirt ordered Plaintiff's arrest as well, alleging that Plaintiff was “helping” the female protestor. Marlin Dep. at 51. At the time that the woman was placed under arrest, Plaintiff was standing next to her with their shoulders touching, but the two were not otherwise holding hands, linking arms, or maintaining any other physical contact. Id. at 52. Plaintiff had in his right hand a three-feet-tall, plastic orange half-cylinder with a handle attached, which he called a “shield.” Id. at 52-54. Someone in the park had been distributing these “shields” to protestors earlier that day. Id. at 55-56.
In response to the order to arrest Plaintiff, several NYPD officers in blue shirts grabbed Plaintiff, dragged him through several lines of police officers, and flung him from an upright stance onto his stomach. FAC ¶ 136, 137. Then, these officers pinned Plaintiff face-down to the ground and yelled, “Stop Resisting.” Marlin Dep. at 62. By Plaintiff's account, he was entirely compliant with NYPD officers and did not resist arrest in any way. FAC ¶¶ 141, 142.
While pinned down by the officers, Plaintiff felt a “crunch type sensation” in his right elbow from pressure that was applied to that area. Marlin Dep. at 62. Less than one minute had passed between the time Plaintiff was thrown to the ground and the time that he felt the “crunch” sensation. Id. at 63. Within the next few seconds, Plaintiff was placed in handcuffs and was pulled up to his feet. FAC ¶ 150, 151. An officer, whom Plaintiff identified by his badge number 8089, re-cuffed Plaintiff. FAC ¶ 153.
After several minutes, Officer Batista escorted Plaintiff to an area where a group of NYPD supervisors, some of whom were wearing white shirts, congregated. FAC ¶ 154. Officer Batista indicated to the NYPD supervisors wearing white shirts that Plaintiff's right arm was injured. FAC 154. According to Plaintiff, it was plainly obvious that his arm was injured because it “was hanging in an unnatural angle.” FAC ¶ 156. An NYPD supervisor then ordered Officer Batista to remove the handcuffs from Plaintiff, and one or more of the supervisors summoned an ambulance. FAC ¶ 157-160.
Plaintiff believes that the officers involved in placing him under arrest included some or all of the following defendants: Officer Batista, Officer Morrin, Officer McNicholl, and Sergeant D'Addario. FAC ¶ 139. Plaintiff alleges that Inspector O'Connell was the highest ranking officer in the immediate vicinity of his arrest and was responsible for supervisory decisions with respect to fellow officers on the scene. FAC ¶ 165, 166. Plaintiff further alleges that Inspector O'Connell and Sergeant D'Addario ordered Officers Batista, Morrin, and McNicholl to process numerous arrests made on March 24 and March 25, 2012 in connection with the Occupy Wall Street protests. FAC ¶ 177.
After medical responders arrived at Union Square, Emergency Medical Technicians (“EMTs”) stabilized Plaintiff's arm with foam and boards and transported him to Bellevue Medical Center, along with approximately three NYPD officers. FAC ¶ 163. Defendant Batista accompanied Plaintiff to Bellevue, where Plaintiff was handcuffed by his left arm to a hospital bed. FAC ¶ 179. Doctors at the hospital conducted diagnostic imaging of Plaintiff's right elbow, which revealed that his elbow was dislocated and fractured and that the ligaments attached to the elbow were tom. FAC ¶ 181-184. The Bellevue doctors then relocated Plaintiff's right elbow and gave him strong pain medication. FAC ¶ 185, 186.
*4 As a result of the injuries sustained in the course of his arrest, Plaintiff can no longer fully extend his right arm. FAC ¶ 221. His injury has required months of expensive medical treatment and has also caused him physical, psychological and emotional injuries, mental anguish, suffering, humiliation, and other damages. FAC ¶ 226.
In the early evening of March 25, 2012, Plaintiff was transported to 100 Centre Street, where he spent the night in a jail cell. FAC ¶ 191, 192. Plaintiff was eventually charged with resisting arrest, in violation of N.Y. Penal Law § 205.3, and with obstruction of governmental administration in the second degree, in violation of N.Y. Penal Law § 195.05. FAC ¶ 195. At his first appearance before the New York City Criminal Court, Plaintiff was released on his own recognizance. FAC ¶ 196. After various court appearances, Plaintiff eventually accepted an Adjournment in Contemplation of Dismissal (ACD) of the charges against him. FAC ¶ 213.
Plaintiff has attached to the FAC an affidavit submitted by Officer Batista in support of Plaintiff's arrest. FAC, Ex. A. According to the affidavit, at approximately 12:01 A.M. on March 25, 2012, Officer Batista observed Officer O'Connell tell a “Separately Charged Defendant” to leave the park because the park was closed but the individual refused to leave. Id. He then observed Plaintiff step in front of the “Separately Charged Defendant” in order to “block Police Officer Morrin from effectuating an arrest [of the Separately Charged Defendant].” Id. Officer Batista next stated in the affidavit that Plaintiff failed his arms and screamed, “LEAVE US THE FUCK ALONE!” Id. When Officer Batista tried to place Plaintiff under arrest, Plaintiff failed his arms, refused to place his arms behind his back, fell to the ground and tucked his arms under his body. Plaintiff then stated, by the officer's account, “THIS IS A SIDEWALK. I CAN STAND HERE IF I WANT. I HAVE THE CONSTITUTIONAL RIGHT TO STAND HERE.” Id. According to the affidavit, Plaintiff's resistance to arrest lasted approximately three minutes. Id.
PROCEDURAL HISTORY
Plaintiff filed his original complaint on March 24, 2015. Docket #1. After Defendants filed an initial motion to dismiss and an initial motion for summary judgment on the ground of qualified immunity, Docket #22, Plaintiff amended filed his First Amended Complaint on October 31, 2014, Docket #30. On December 29, 2015, Defendants filed a second motion to dismiss each of Plaintiff's claims in the FAC; they simultaneously indicated an intent to file a second motion for summary judgment with respect to each of Plaintiff's claims, limited to the ground of qualified immunity. Docket #39. In accordance with this Court's Individual Rules, Plaintiff was deposed and the motion for summary judgment was briefed thereafter.[2]
DISCUSSION
A. Standard for Motion to Dismiss
*5 “To survive a motion to dismiss under Rule 12(b)(6)... a complaint must contain sufficient factual matter accepted as true, to state a claim to relief that is plausible on its face.” Mabry v. Neighborhood Defender Svc., 769 F. Supp. 2d 381, 389 (S.D.N.Y. 2011) (citing Iqbal, 556 U.S. at 662). “[A] plaintiff's obligation ... requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court evaluates the sufficiency of the complaint under the “two-pronged approach” suggested by the Supreme Court in Iqbal. First, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Iqbal, 556 U.S. at 679. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
B. Standard for Summary Judgment on the Ground of Qualified Immunity
Under Federal Rule of Civil Procedure 56, the Court will grant summary judgment if the evidence offered shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. SeeCelotex Corp. v. Catrett, 477 U.S. 317 (1986). The Court views the record in the light most favorable to the non-movant and resolves all ambiguities and draws all reasonable inferences against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir. 1987). When qualified immunity is invoked as the basis for summary judgment, the same standard applies. However, there are special considerations when a motion for summary judgment is made on that ground.
Qualified immunity exists to protect government employees from civil liability where performance of their discretionary functions “does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
When confronted with a qualified immunity defense, the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001) has indicated that a court should engage in a two-prong inquiry: (1) The court should first determine whether the plaintiff alleged facts sufficient to demonstrate a violation of a constitutional right; and (2) if so, the court should then decide whether the right was “clearly established” at the time of the alleged misconduct. See Saucier, 533 U.S. at 201. The immunity defense is available so long as reasonably competent officials could disagree about whether the conduct at issue would violate clearly established rights. Malley v. Briggs, 475 U.S. 335, 341 (1986); Carrier v. Lussier, 955 F.2d 841, 846 (2d Cir. 1992).
*6 In Saucier, the Supreme Court also indicated that the issue of qualified immunity should be decided at the earliest possible opportunity –preferably at the outset of the case. Thus, the availability of qualified immunity is ideally decided at “a point at which plaintiff's well pleaded allegations are assumed to be true, and defendant's version of the facts is immaterial.” Espinoza v. City of New York, 11 Civ. 2108 (CM), 2012 WL 4761565, at *3 (S.D.N.Y. Aug. 3, 2012); cf Pearson v. Callahan, 555 U.S. 223 (2009). In Stephenson v. John Doe, 332 F.3d at 68, the Second Circuit explained that when determining a motion to dismiss on qualified immunity grounds in advance of full merits discovery, the plaintiff's version of the facts (in this case, elaborated in his deposition testimony) is assumed to be true. See also, Espinoza, 11 Civ. 2108 (CM), 2012 WL 4761565, at *3. The truth of the plaintiff's allegations is assumed “without regard to any objection defendants may have to the truth of plaintiff's version of events.” Quezada v. Roy, 14 Civ. 4056 (CM), 2015 WL 5970355, at *10 (S.D.N.Y. Oct. 13, 2015); see also Tellier v. Fields, 280 F.3d 69, 74 (2d Cir. 2000); Plunkett v. City of New York, 10 Civ. 6778 (CM), 2011 WL 4000985, at *6 (S.D.N.Y. Sept. 2,2011). In deciding the issue of qualified immunity, “the defendants' version of the facts is absolutely irrelevant.” Bolden v. Vill. of Monticello, 344 F. Supp. 2d 407, 411 (S.D.N.Y. 2004). Accordingly, this Court does not take testimony from defendants or otherwise consider their version of events. Quezada, 14 Civ. 4056 (CM), 2015 WL 5970355, at *11.
Pursuant to this Court's Individual Rules, when any defendant raises a qualified immunity defense, I insist that the plaintiff amplify the “short, plain statement” in the complaint with testimony that fully fleshes out his story. For purposes of this aspect of the motion (which is really a motion for summary judgment), the Court relies on evidence in the FAC as amplified by Plaintiff's deposition testimony.
Time and time again, this Court finds that municipal defendants conflate qualified immunity with arguments relating to the merits of a claim. In many cases, defendants file a notice of motion for summary judgment on the ground of qualified immunity and proceed to make arguments for dismissal of Plaintiff's claims that have nothing to do with qualified immunity. For instance, defendants may argue that the plaintiff fails to plead facts sufficient to make out a constitutional violation, or that things did not happen in quite the way the Plaintiff says they did. The instant motion raising the qualified immunity defense is no exception.
Thus, the Court finds it necessary to remind Defendants that an official is often entitled to dismissal or summary judgment “not because of qualified immunity, but because he did nothing wrong.” Quezada, 14 Civ. 4056 (CM), 2015 WL 5970355, at *10 (quoting Dolson v. Vill. of Washingtonville, 382 F. Supp. 2d 598, 602 (S.D.N.Y. 2005)). And indeed, as we shall see, only one of plaintiff's many claims is dismissible on the ground of qualified immunity.
C. Preliminary Matters
Before I consider the merits of Defendants' motions, there are two preliminary matters I must address. The first concerns whether Plaintiff's claims against John Doe defendants are barred by the statute of limitations. The second concerns whether several exhibits submitted by Defendants in support of their motion for summary judgment may be considered in deciding the instant motions.
“Section 1983 actions in New York are subject to a three-year statute of limitations.” Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015). Additionally, a section 1983 claim beings to accrue when “plaintiff knows or has reason to know of the injury giving rise to the claim.” Id.; see Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013).
Plaintiff's claim began to accrue on the date of his arrest. Plaintiff was arrested on the night of March 24, 2012; the FAC and his deposition suggest that the arrest may have continued past midnight, leading into March 25. Thus, the statute of limitations expired on his § 1983 claims on March 25, 2015. He filed a timely original complaint on March 24, 2015, which included claims against named defendants and against five “John Doe” defendants. Plaintiff then filed an FAC on October 31, 2015, which contained amended allegations but against the same named defendants and the same five “John Doe” defendants. The FAC states that as of October 30, 2015, Defendants have not identified for Plaintiff any Doe officer who was involved in injuring him. FAC ¶ 30.
*7 In Barrow v. Wethersfield Police Dep't, 66 F. 3d 466 (2d Cir. 1995), the Second Circuit held that a plaintiff must sue any John Doe defendant in his real name before the statute of limitations runs, or the claim against the John Doe will be time-barred. Because Plaintiff did not sue the five John Doe defendants in their real names before March 25, 2015, any claims against them are time-barred and must be dismissed.
A second preliminary matter that must be addressed is whether evidence submitted by Defendants should be considered in deciding these pre-discovery motions.
With certain pre-discovery motions, such as 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 v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). The court may also consider, on a motion to dismiss, 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)).
While the Defendants have moved to dismiss Plaintiff's claims under Rule 12(b)(6), they have also simultaneously moved for summary judgment on the limited grounds of qualified immunity. Thus, pursuant to this Court's individual rules, Plaintiff was deposed for the purpose of fleshing out the contours of his claim, which needed to be pleaded only in accordance with Fed. R. Civ. P. 8's “short plain statement” standard.
At the deposition, Plaintiff was shown and questioned about several exhibits introduced by Defendants. Plaintiff's attorney objected to the questioning, both before Plaintiff answered any questions related to these exhibits and afterward in their brief. See Marlin Dep. 65-84. The question to be answered is whether any of these exhibits may be considered on either the motion to dismiss or the pre-answer qualified immunity motion.
A. Photograph of a Park Sign
Plaintiff was shown a photograph of a park sign and testified that the sign stated that Union Square Park is closed from 12:00 A.M. to 6:00 A.M. Marlin Dep. at 67. The sign also states that it is prohibited to enter the park if the park is closed and that it is prohibited to have a performance or rally or engage in any commercial activity except by permit. Id.
This exhibit will not be considered. Plaintiff did not rely on it in fashioning his claims or his pleading, and he mounted a challenge to the authenticity of the document in the answer he gave at the deposition (that is, he did not know whether such a sign was posted on the night in question). The park sign photograph is not “integral” to the FAC, which makes no mention of it. Furthermore, there is no evidence that Plaintiff was aware of the sign, he testified that he did not know if the park rules were posted prior to his arrest on March 24 or 25, 2012. Id.
B. Webpage Dated March 24, 2012
Plaintiff was next shown a webpage and was directed to observe the date of the webpage, which he stated was March 24, 2012. Id. at 68. Plaintiff affirmed that a photograph that appeared on the webpage seemed to depict a park sign containing the same rules as the park sign in the photograph that was shown earlier in the deposition. Id. at 69.
*8 The exhibit will not be considered. Plaintiff did not rely on it in fashioning his claims or his pleading, and he has not admitted to the authenticity of the webpage – he merely said that he agreed with what it purported to be. He did not testify that he had ever seen the webpage prior to the night of his arrest, and counsel specifically challenges the authenticity of the document in the papers opposing the Defendants' motion. Pl's Mem. of Law in Opp'n to Mot. for Summ. J. at 13. The webpage is not “integral” to the FAC, which makes no mention of it.
C. Six Video Clips
Plaintiff was next shown six video clips that purport to show in real time what was happening in the park on the night he was arrested.
These video clips are also not “integral” to the FAC; the FAC makes no reference to them. They are simply and solely evidence with which Defendants intend to rebut any suggestion that Plaintiff's claims – especially his claim that no dispersal order was issued — have merit. They will certainly be pertinent on a motion for summary judgment after the filing of an answer; they may not, however, be considered on Defendants' motion to dismiss or on a pre-answer motion for summary judgment on the ground of qualified immunity.
The Court's conclusion with respect to the videos is consistent with recent cases in this district that have dealt with the same issue. In a similar case involving video submissions purporting to document incidents related to the Occupy Wall Street Movement, Pluma v. City of New York, 13 Civ. 2017, 2015 WL 1623828, at *3 (S.D.N.Y. Mar. 31, 2015), my colleague Judge Preska declined to consider video offered by the City of New York in support of its motion to dismiss in a § 1983 action. In doing so, she noted that the video was neither referenced in the complaint nor relied upon in bringing the lawsuit. Id. Later that same year, Judge Woods also refused to consider on a motion to dismiss video evidence offered by the City in Gersbacher v. City of New York, 134 F. Supp. 3d 711, 718 (S.D.N.Y. 2015), yet another § 1983 action arising from Occupy Wall Street demonstrations. In Gersbacher, the videos were hyperlinked in a footnote within a report that was incorporated by reference in the plaintiff's complaint. Id. Judge Woods found that the unauthenticated videos were too far attenuated from the complaint to be considered at that stage of litigation. Id.
Defendants points out that the videos, the photograph, and the webpage were shown to Plaintiff at his deposition, were marked by Defendants' counsel, and Plaintiff was questioned about them. On this basis, Defendants argue that these materials should be admitted for the Court's consideration in deciding the instant motions. But they are wrong. On a pre-answer motion for summary judgment on the ground of qualified immunity, Defendants must establish that they are entitled to the defense on Plaintiff's version of the facts. Thus, Defendant's version of what actually happened, as contained in the video clips, is irrelevant. It is offered prematurely. The mere fact that Defendants followed improper procedure at the deposition does not render the clips relevant.
During Plaintiff's deposition, Plaintiff's counsel objected before Plaintiff answered any questions about each of the exhibits that Defendants seek to submit. See Marlin Dep. at 65-84; and when Defendants submitted the exhibits containing the videos, photograph, and screenshot a webpage in support of its motion for summary judgment, Plaintiff objected to their submission in his opposition brief and questioned their authenticity and accuracy. They may not and will not be considered.
D. Affidavit from New York City Department of Parks Official
*9 Finally, Defendants offer an affidavit from Elliot Sykes, a New York City Parks Department official, who testified that Union Square Park closed at midnight on March 24, 2014. This affidavit is not integral to Plaintiff's FAC, and it was never introduced at Plaintiff's deposition. It is solely evidence presented by Defendants to establish their version of the facts. As such, it will not be considered.
Had the City simply answered the FAC, and moved thereafter for summary judgment on the merits – or even, after discovery, on the ground of qualified immunity – the result would be different. Eventually, the City will figure out that the least expensive way to litigate these cases is sometimes to join issue and seek a prompt disposition that can take advantage of the evidence in Defendants' possession that exonerates its officers.
That said, all but two of Plaintiff's claims must be dismissed even without the Defendants' evidence – and consideration of the excluded evidence would not alter that result on these motions.
D. Plaintiff's Section 1983 Claims
Plaintiff alleges that Defendants violated his First, Fourth, Sixth, and Fourteenth Amendment rights.
Plaintiff first alleges that NYPD officers falsely arrested him, without probable cause, in Union Square.
In order to state a claim for false arrest, a plaintiff must show that “(1) the defendant intended to confine plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” confined without his consent and without justification.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).
Where probable cause for the arrest exists, an arrest by a law enforcement officer is privileged. Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013). Thus, probable cause is a complete defense to a claim for false arrest. Simpson v. City of New York, 793 F. 3d 259, 265 (2d Cir. 2015). The requirement of probable cause does not create a high bar for law enforcement. An arresting officer has probable cause when the officer has “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “The inquiry is limited to whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.” Gonzalez, 728 F.3d at 155.
It is not necessary for probable cause to have existed “with respect to each individual charge” so long as “probable cause existed to arrest for any crime.” Marcavage v. City of New York, 689 F.3d 98, 109 (2d Cir. 2012). By the same token, “[p]robable cause does not need to be predicated on the offense the arresting officer invoked in making the arrest,” so long as the arrest was supported by probable cause for any offense. Gersbacher, 134 F. Supp. 3d at 721; see also Marcavage, 689 F.3d at 109.
Plaintiff fails to state a claim for false arrest. His claim must be dismissed because, even accepting Plaintiff's allegations as true, the police had probable cause to arrest him.
Plaintiff was charged with Resisting Arrest, N.Y. Penal Law § 205.30, and Obstruction of Government Administration in the Second Degree, N.Y. Penal Law § 195.05. FAC 195. Defendants argue that there was probable cause to arrest Plaintiff for several violations under the Parks Rules and Regulations set forth in the Rules of the City of New York (“R.C.N.Y.”). They make clear that violations of the Park Rules are criminal offenses pursuant to 56 R.C.N.Y. § 1-07. Defendants put forth several Park Rules for which they contend that they had probable cause to arrest Plaintiff. These Rules include:[3]
*10 56 R.C.N.Y. § 1-03(a)(2) and (a)(3):
(2) Whenever a threat to public health or safety exists in any park resulting from any natural cause, explosion, accident or any other cause, or by riot or unlawful assembly or activity, the Commissioner may close the park or any part thereof to the public for such duration as he deems necessary to ensure the safety and well-being of the public.
(3) No person shall enter or remain in any park without the permission of the Commissioner when such park is closed to the public.
56 R.C.N.Y. § 1-03(c)(1) and (c)(2):
(1) No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer... indicated by gesture or otherwise.
(2) No person shall fail to comply with or obey any instruction, direction, regulation, warning, or prohibition, written or printed, displayed or appearing on any park sign...
56 R.C.N.Y. § 1-05(a)(1) and (a)(3):
(1) No person shall hold or sponsor any special event or demonstration without a permit.
(3) No person shall erect any structure, stand, booth, platform, or exhibit in connection with any assembly, meting, exhibition or other event without approval of the Commission or his or her designated representative.
As will be discussed, according to Plaintiff's own admissions, it is evident that Defendants had probable cause to arrest Plaintiff for violation of R.C.N.Y. § l-03(a), which prohibits one from being in a city park after it is closed to the public. The Court, therefore, sees no need to decide whether there was also probable cause to arrest Plaintiff for violation of any of the other Park Rules at issue or for Resisting Arrest and Obstruction of Government Administration. See Marcavage, 689 F.3d at 109.
In People v. Caba, the Second Department of the New York Appellate Division reversed the lower court's decision to grant a motion to suppress evidence on the ground that police officers did not have probable cause to arrest. The court stated that the officers did have probable cause to arrest the defendants for violating 56 R.C.N.Y. § 1-03 (a)(3):
[O]nce the police officers witnessed the defendants trespassing into a park owned and operated by the City of New York, the entrance of which had a posted sign indicating that the park closed several hours earlier at dusk, they had probable cause to issue them summonses for committing a violation and/or arrest them for misdemeanors.
910 N.Y.S.2d 373, 374 (2d Dep't 2010).
By Plaintiff's own admission, he remained in or adjacent to Union Square Park at midnight on March 25, 2014. Marlin Dep. at 40, 43; FAC 114. Plaintiff also admitted that police had been moving Occupy Wall Street protestors from Union Square Park around midnight for the previous several nights. Marlin Dep. at 32-33. When asked at his deposition if anyone had mentioned to him whether or not the park closes, Plaintiff stated, “I think there was mention that the park closes at midnight, but I don't identify the area of Union Square we are as the park.” Id. at 37. Thus, Plaintiff acknowledged his awareness that Union Square Park closed at midnight.
*11 Plaintiff also testified that this area in which he was standing on the night of his arrest was contiguous to the southernmost set of stairs in Union Square Park. Id. at 39. He testified that he does not believe that this area constituted part of Union Square Park; he contends that the “start” of park grounds was at its southernmost stairs, next to which he was standing. But Plaintiff cannot slice the salami so thinly. He places himself at what he admits is an entrance to the park. At the very least, the officers who arrested Plaintiff at that time and in that location were qualifiedly immune, because they had “arguable probable cause” to arrest – that is, a reasonable police officer in their position might reasonably have assumed that the Plaintiff was in an area closed to the public at that hour. SeeCerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001); Mesa v. City of New York, 9 Civ. 10464 (JPO), 2013 WL 31002, at *9 (S.D.N.Y. Jan. 3, 2013).
Plaintiff argues that he did not intend to enter the park when it was closed or intend to remain after it was closed. However, Plaintiff's state of mind at the time of his arrest has no bearing whatsoever on whether the police had probable cause to arrest him. The only state of mind that is relevant in the probable cause to arrest inquiry is that of a reasonable officer in the circumstances surrounding the arrest.
I dismiss Plaintiff's claim of false arrest because, by Plaintiff's own admissions in the FAC and at his deposition, the police, at the very least, had arguable probable cause to arrest him.
Plaintiff next claims that NYPD officers used force in excess of what is permitted under the Fourth Amendment in effectuating his arrest.
“Police officers' application of force is excessive, in violation of the Fourth Amendment, if it is ‘objectively unreasonable in light of the facts and circumstances confronting them, without regard to the officers' underlying intent or motivation.’ ” Carpenter v. City of New York, 984 F.Supp.2d 255, 267 (S.D.N.Y. 2013) (quoting Papineau v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). Whether the force used was unreasonable and therefore excessive is a fact-specific inquiry. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004). In determining whether the force used in an arrest is reasonable, courts pay “careful attention to the facts and circumstances of each particular case,” including: (1) the severity of the crime at issue, (2) whether the arrestee poses an immediate threat to the safety of the officers or others, and (3) whether the arrestee is actively resisting arrest or attempting to flee. Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). The reasonableness of the force used must be evaluated from the perspective of a reasonable officer on the scene, and not with “the 20/20 vision of hindsight.” Id. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.” Id.
“Although a police officer may be justified in using some degree of force when making an arrest, the officer is not entitled to use an unlimited amount of force, even where the arrestee resists or assaults the officer.” Garcia v. Greco, 5 Civ. 9587 (SCR) (JFK), 2010 WL 446446, at *4 (S.D.N.Y. Feb. 9, 2010). “The force used by the officer must be reasonably related to the nature of resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer.” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). An arrestee's resistance to arrest is a factor that justifies the use of greater force, but such resistance, without more, does not warrant summary dismissal of an excessive force claim. For instance, in Brown v. City of New York, 798 F.3d 94, 102 (2d Cir. 2015), the Second Circuit found that an arrestee's resistance to being handcuffed, by refusing to put her hands behind her back, did not preclude a finding of excessive force where the police ultimately took the arrestee down to the ground and subdued her with pepper spray.
*12 Although the “severity of plaintiff's alleged injuries is not dispositive,” it is nonetheless “highly relevant” to the inquiry about whether the force applied was reasonable. Johnson v. Police Officer #17969, 99 Civ. 3964,2000 WL 1877090, at *5 (S.D.N.Y. Dec. 27,2000). De minimis injuries will not usually sustain a claim of excessive force. See Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993); Vogeler v. Colbath, 4 Civ. 6071, 2005 WL 2482549, at *11 (S.D.N.Y. Oct. 6, 2005). However, where the alleged injuries are more than de minimis, courts generally refuse to dismiss an excessive force claim on motion, especially when the crimes at issue are relatively minor (or when there are no crimes at issue) and the arrestee poses no safety threat to officers.
For example, in Pluma, 13 Civ. 2017 (LAP), 2015 WL 1623828, at *6, another section 1983 action arising from events related to Occupy Wall Street protests, Judge Preska refused to dismiss an excessive force claim where the complaint alleged that officers deployed pepper spray on a group of peaceful protesters and journalists without provocation. The members of this group committed no crimes, posed no threat to the officers, and did not disregard instructions from officers or evade arrest. Id.
In Gersbacher, 134 F. Supp. 3d at 723, yet another case arising from Occupy Wall Street demonstrations, Judge Woods found that an arrestee sufficiently stated an excessive force claim where he alleged that five police officers pinned him down with their full body weight and punched him. In that case, nothing in the complaint suggested that the arrestee posed a safety threat or was actively resisting arrest, although there was some indication that the arrestee may have attempted to leave the area. Moreover, the crimes for which he was arrested, Resisting Arrest and Obstruction of Governmental Administration, were not serious offenses. Id.
Here, as in Gersbacher, the crimes with which Plaintiff was charged –Resisting Arrest and Obstruction of Governmental Administration – are undoubtedly minor. See Gersbacher, 134 F.Supp.3d at 723. The “crime” for which he was actually arrested – being in Union Square Park after closing – is even less serious, as are the other violations of Park Rules cited by the City.
Nothing in the FAC or in Plaintiff's deposition suggests that he presented a safety threat to officers. Nothing indicates that Plaintiff made any attempt to flee, cf. Tennessee v. Garner, 471 U.S. at 6-8, physically attacked any officer, cf.Sullivan v. Gagnier, 225 F.3d at 163, or displayed any behavior that would cause an officer to reasonably interpret as threatening an attack, cf. Tracy v. Freshwater, 623 F.3d 90, 97 (2d Cir. 2010). While Plaintiff admitted at his deposition that he was carrying a traffic cone-like shield at the time of his arrest, Marlin Dep. at 52-54, there is no indication that Plaintiff or any other protestor threatened any officer with this object.
While Defendants do not suggest that Plaintiff attempted to flee or attacked or threatened to attack any officer, they do contend that Plaintiff resisted arrest, in contradiction to Plaintiff's account that he was entirely compliant. However, their disagreement amounts to a dispute over whether Plaintiff refused to put his arms behind his back and prevented officers from easily handcuffing him. Plaintiff's FAC contains an exhibit, an affidavit sworn by Officer Batista in support of Plaintiff's arrest, alleging that Plaintiff refused to place his arms behind his back, and instead flailed them, fell to the ground, and tucked his arms under his body. Id. According to the affidavit, Plaintiff also screamed, “Leave us the fuck alone!” Id. Plaintiff denies this, see FAC 141, 142, and for purposes of this motion, the Court must assume Plaintiff's version of events to be true and disregard the Defendants' contradictory evidence.
*13 Despite the fact that the crimes at issue were not serious, and that Plaintiff posed no safety threat, the force used to arrest Plaintiff was great and the injuries he sustained were serious. According to Plaintiff, several police officers “dragged [him]” through a crowd, “flung [him] to the ground,” and “pinned” him down. Marlin Dep. at 62. While he was pinned to the ground, at least one officer used force on Plaintiff's right elbow and caused him to feel a “crunch sensation” in his arm.” FAC ¶¶ 147, 148. The injuries that Plaintiff' sustained during the course of his arrest were immediately apparent and required urgent medical attention. According to Plaintiff, it was plain to the naked eye that after he was handled by officers, his arm hung at an “unnatural angle.” FAC ¶ 156. And after observing Plaintiff's injured arm at the time of arrest, an NYPD supervisor ordered that Plaintiff's handcuffs be removed, and an ambulance was summoned. FAC ¶157-160. Plaintiff was sent to Bellevue Medical Center, where diagnostic imaging revealed that his right elbow was dislocated and fractured and that the ligaments attached to the elbow were tom. FAC ¶¶ 181-184. The Bellevue doctors then relocated Plaintiff's right elbow and gave him strong pain medication. FAC 185, 186. Finally, Plaintiff insists that his injuries have been significant and permanent: in his FAC, he alleges that he now suffers from more limited range of motion in his right elbow and can no longer folly extend his right arm. FAC 220, 221. He also claims that his injuries required “months of expensive follow-up medical treatment and physical therapy.” FAC ¶ 224.
Assuming Plaintiff's version of the story, the facts and circumstances surrounding the use of force by the defendant police officers do not warrant summary dismissal of Plaintiff's excessive force claim. Nothing suggests it was reasonable, in light of the minor crimes at issue and in light of Plaintiff's compliance (which I assume to be true), for multiple police officers to grab Plaintiff, throw him to the ground and pin him down, and apply force while handcuffing him sufficient to dislocate and fracture his right elbow. Of course, the Defendant disputes the fact that Plaintiff was entirely compliant during his arrest, but this factual dispute cannot be resolved on a pre-answer motion.
Accordingly, the Court finds that Plaintiff's claim of excessive force survives Defendants' motions.
A. Qualified Immunity and Excessive Force
Defendants argue that, even if the officers' use of force violated Plaintiff's Fourth Amendment rights, they should nonetheless be shielded from liability on the ground of qualified immunity.
“It is well established that qualified immunity may operate as a defense to excessive force claims.” Mesa, 2013 WL 31002, at *17 (citing Finnegan v. Fountain, 915 F.2d 817, 822-23 (2d Cir. 1990)). Along the same vein, “[i]t is beyond dispute that the right to be free from excessive force has long been clearly established.” Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000).
In the excessive force context, the analysis required to determine whether an officer deserves qualified immunity converges with the analysis used to determine whether force was excessive under the Fourth Amendment: both inquiries hinge on a determination of objective reasonableness. Usavage v. Port Auth. of New York & New Jersey, 932 F. Supp. 2d 575, 594 (S.D.N.Y. 2013). Both analyses require asking: “Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force was lawful.” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 n. 4 (2d Cir. 2003); see also Washpon v. Parr, 561 F. Supp. 2d 394, 407-08 (S.D.N.Y. 2008).
In cases involving the “sometimes hazy border between excessive and acceptable force,” it may be appropriate to afford the defendants an “extra layer of protection.” De Michele, 2012 WL 4354763, at *17 (quoting Saucier, 533 U.S. at 206). This is not one of those “hazy” cases. No reasonable officer could possibly believe that he needed to use so much force to subdue a non-resisting arrestee as to dislocate and fracture his elbow, causing long-lasting damage. Taking Plaintiff's account of events as true, Defendants' pre-answer motion for summary judgment on the ground of qualified immunity is denied.
B. Personal Involvement of Defendants in Use of Excessive Force
Defendants argue that Plaintiff's excessive force claim should be dismissed because Plaintiff fails specify which of the named defendants, or how many, used excessive force against him.
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). A police officer is personally involved in the use of excessive force if the officer either: (1) directly participates in an assault; or (2) is present during the assault, and fails to intercede on behalf of the victim even though he had a reasonable opportunity to do so. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997). Additionally, a Plaintiff could also show that a supervisory defendant, through “his or her supervisory responsibilities,” violated the terms of the constitutional provision at issue. Iqbal, 556 U.S. at 675-77; see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (describing the various ways a supervisor could be personally involved in a constitutional deprivation carried out by a subordinate). A plaintiff need not establish which officer, among a group of officers, directly participated in the attack and which officer failed to intervene. Jeffreys v. Rossi, 275 F.Supp.2d 463, 477 (S.D.N.Y. 2003) (citing Skorupski v. County of Suffolk, 652 F.Supp. 690, 694 (E.D.N.Y. 1987)).
*14 In his FAC, Plaintiff alleged that several officers among a group including Officers Batista, Morrin, McNicholl, and Sergeant D'Addario were personally involved in placing him under arrest, causing the injuries to his right elbow, and handcuffing him. FAC ¶ 139. Plaintiff also alleged that Inspector O'Connell and Sergeant D'Addario were supervising and observing the events in the immediate vicinity. FAC ¶ 140. Moreover, Plaintiff alleged in his FAC that Officer Batista, who he identified by badge number, re-cuffed him after standing him up and escorted him to a group of NYPD supervisors. FAC ¶ 153,154.
While Plaintiff, at this stage in litigation, cannot pick out which of these officers actually threw him to the floor, applied force to his elbow, and handcuffed him, he does allege that all of these officers were present at the time of his arrest and, at the very least, failed to intervene on his behalf. See Vesterhalt v. City of New York, 667 F. Supp. 2d 292, 297-98 (S.D.N.Y. 2009). On the instant pre-answer motion, the Court must assume that each of the individual officers was present at Plaintiff's arrest and that each failed to intervene. The only remaining question is whether any of these officers had a reasonable opportunity to intervene. In an affidavit sworn by Officer Batista, he stated that Plaintiff's resistance to arrest lasted approximately three minutes. FAC, Ex. A. Assuming for the sake of the instant motions that the arrest took approximately three minutes to effectuate, the officers could have plausibly had a reasonable opportunity to intervene.
As for the supervisory defendants – Inspector O'Connell and Sergeant D'Addario – Plaintiff has alleged that they too were present at the arrest and were observing from the immediate vicinity. Because these facts, assumed to be true, are sufficient to make a claim of personal involvement by these two defendants, the Court need not resolve whether they caused Plaintiff's constitutional deprivation through their supervisory responsibilities.
Plaintiff's excessive force claims against each named individual defendant survives Defendants' motion to dismiss and motion for summary judgment.
A. Retaliation Claim
Plaintiff insists that Defendants arrested him in order to prevent and discourage Plaintiff from engaging in protected First Amendment conduct.
The existence of probable cause will defeat a First Amendment claim, “premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory move,” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). “An individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause, [even if it is] in reality an unsuccessful attempt to deter or silence criticism of the government.” Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992).
I have already concluded, based on the facts pleaded in the FAC and those to which Plaintiff testified at his pre-answer deposition, that the officers had probable cause to arrest him. I must, therefore, dismiss Plaintiff's First Amendment retaliation claim.
B. Time, Place, Manner Restrictions
Plaintiff also brings a First Amendment challenge to the Park Rules themselves and challenges their enforcement by the defendant police officers.
Government regulation of the time, place, and manner of expressive activity is permissible as long as the restrictions “are content neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternatives for communication.” Paulsen v. Gotbaum, 982 F.2d 825, 828 (2d Cir. 1992) (quoting Burson v. Freeman, 504 U.S. 191,197 (1992)). Such regulation “is content neutral when it is justified without reference to the content of the regulated speech.” Marcavage, 689 F.3d at 104. A facially neutral regulation “does not become content based simply because it may disproportionately affect speech on certain topics.” McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014). Finally, a time, place, and manner regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government's legitimate interests.” Id. at 2535 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
*15 Plaintiff argues that the Park Rules that regulate Union Square Park, as enforced by the Defendant police officers, were not content-neutral and were not narrowly tailored to promote a compelling government interest, FAC ¶ 257. According to Plaintiff, they instead afforded Defendants “unbridled discretion” to limit protected conduct. Id.
In Caravalho v. City of New York, 13 Civ. 4174 (PKC) (MHD), 2016 WL 1274575, at *15 (S.D.N.Y. Mar. 31, 2016), plaintiffs similarly asserted that Park Rules regulating Zuccotti Park, a privately-owned public space, were improper time, place and manner restrictions. These rules concerned prohibitions against camping; erecting tents; lying down on the ground, sitting areas or walkways; using bicycles, skateboards, or rollerblades; and removing objects from trash bins. Id. at 16. In that case, Judge Castel found that plaintiffs did not have a colorable First Amendment challenge to the lawfulness of dispersal orders issued to enforce Park Rules because the Park Rules “self-evidently content neutral.” Id. Moreover, he found that the Rules were narrowly tailored to serve the government interests of alleviating congestion and promoting aesthetics of the park and ensuring that the park is available to the public for a range of activities. Id. They also did not substantially burden speech since they permitted ample alternatives for expressive conduct such as making speeches, dancing, holding signs, or passing out leaflets. Id. Finally, Judge Castel rejected plaintiffs' assertion that the defendants' decision to clear the park was itself an unlawful restriction on speech since there was no evidence that the dispersal orders were based on animus or forbid anyone from returning to the park to resume protests. Id.
The Union Square Park Rules at issue here are different rules from those at issue in Caravalho. Here, the rules concern prohibitions against persons remaining in the park after it has closed, disobeying park signs, disobeying lawful commands by police officers, and protesting on park grounds without a permit. However, as in Caravalho, they are completely content neutral on their face. They in no way prohibit conduct on the basis its intended message. Instead, they work to serve important government interests of ensuring safety and order in the park and ensuring that the public may use the park for a wide range of activities. The Park Rules do not substantially burden speech and leave open ample alternatives for expression. They permit individuals who go to the park to engage in expressive conduct in a wide array of ways, as long as they do so when the park is open. To the extent that groups wish to engage in expressive activity via a demonstration, they may do so by obtaining a permit; nothing about the Park Rules suggests that permits will be doled out on the basis of what a group is saying.
Additionally, Defendants' decision to enforce the Park Rules by clearing the park was viewpoint neutral and did not overly burden Plaintiff's speech. There is nothing to suggest that the decision to clear the park was motivated by animus for Occupy Wall Street's message. Rather, the FAC and Plaintiff's deposition testimony suggests that the orders permitted protestors to again reassemble at the park once it opened the following day.
I thus grant the motion to dismiss Plaintiff's First Amendment claims.
*16 Plaintiff next alleges that Officer Batista included fabricated evidence in an affidavit supporting his arrest, thereby depriving him of his right to a fair trial under the Sixth Amendment.
“When a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C.1983.” Ricciuti, 124 F.3d at 130; see also Morse v. Fusto, 804 F.3d 538, 548 (2d Cir. 2015). A plaintiff need not have proceeded to a full trial on the merits in order to have an actionable section 1983 claim based on the denial of a fair trial. A plaintiff who has the criminal charges against him dismissed prior to trial also bring a section 1983 claim for right to a fair trial. See Ricciuti, 124 F.3d at 127; Canario v. City of New York, 5 Civ. 9343 (LBS), 2006 WL 2015651, at *1 (S.D.N.Y. July 12, 2006).
In Marom v. City of New York, 15 Civ. 2017 (PKC), 2016 WL 916424, at *9 (S.D.N.Y. Mar. 7,2016), an Occupy Wall Street protestor arrested at demonstrations in Zuccotti Park demonstrations lodged substantially identical allegations against NYPD police offers – that the officers falsely created arresting paperwork swearing that they saw plaintiffs in certain conduct. Judge Castel found that the plaintiffs' “broad and conclusory allegations that the officers created ‘false narratives' about what they saw” were insufficient for a fair trial claim to survive a motion to dismiss. Id. Judge Castel also concluded that plaintiff's claim that the purportedly false reports were “likely to influence a jury's decision” was “entirely speculative.” Id. He reasoned that, in order for these allegedly false statements to reach a jury at all, the officers would have had to testify to these statements in court, since the arrest reports, if they included inculpatory evidence against plaintiffs, would be inadmissible on their own under the Confrontation Clause. Id. False arresting documents, in this respect, differ dramatically from other kinds of allegedly fabricated evidence, such as false confessions, which would be “almost certain to influence a jury's verdict,” because they would of course be introduced into evidence as party admissions. See Ricciuti, 124 F.3d at 130; see also Canario, 5 Civ. 9343 (LBS), 2006 WL 2015651, at *2.
Here, the claim that Plaintiff lodges against Officer Batista is substantially similar to the one raised against the defendant police officers in Marom: Plaintiff alleges that Officer Batista fabricated false arresting documents against him. Plaintiff has not alleged that this denied him the right to a fair trial because he alleges no facts from which one could conclude that the trier of fact at a trial would ever see the affidavit, which is inadmissible under the Federal Rules of Evidence. Plaintiff's denial of fair trial claim fails because, as in Marom, his purely conclusory assertion that Officer Batista's purportedly false affidavit would affect a jury's decision is entirely speculative and, given the rules of evidence, utterly improbable. For that reason the motion to dismiss this claim is granted, and there is no need to discuss Defendants' contention that Officer Batista is entitled to qualified immunity.
*17 I dismiss Plaintiff's denial of fair trial claim, not on grounds of qualified immunity, but because Plaintiff fails to state a claim.
Plaintiff challenges Defendants' restrictions on Occupy Wall Street activities on both Due Process and Equal Protection grounds. It is unclear exactly what conduct Plaintiff alleges has resulted in violation of Due Process or Equal Protection, but he complains of “group probable cause” determinations by police officers and hints at selective enforcement. Plaintiff's admissions in the FAC and in his deposition support that view that police officers had probable cause to arrest him as an individual. Thus, the Court rejects Plaintiff's allegation that he was subjected to some sort of “group probable cause” determination.
In his memorandum in opposition to the motion to dismiss, Plaintiff asserts: “To the extent the Defendants articulated RCNY or other similar restrictions against [him], but not others similarly situated,” he may pursue a selective enforcement claim. Pl's Mem. of Law in Opp'n to Mot. to Dismiss at 16. However, he does not specifically allege in the FAC that Defendants selectively enforced any rule or regulation against him and not others. A claim that is asserted in a brief but not in a pleading is not a properly pleaded claim, and the court will not deem the pleading amended by the brief. See Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 836 (S.D.N.Y. 1988).
So Plaintiff has one claim remaining: his claim for excessive force. He argues that the City of New York is liable under section 1983 for the deprivation of his constitutional rights in this regard.
A municipality may be held liable under section 1983 only if the plaintiffs injury is the result of municipal policy, custom, or practice. Monell v. N. Y.C. Dep't of Soc. Servs., 436 U.S. 658,694 (1978). It may not be held liable solely “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986).
To establish a municipal policy or custom, a Plaintiff must allege one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by the government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so persistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policy makers to train or supervise subordinates.
Harper v. City of New York, 11 Civ. 4333 (CM), 2013 WL 432599, at *4 (S.D.N.Y. Jan. 31, 2013) (quoting McLaurin v. New Rochelle Police Officers, 373 F.Supp.2d 385, 399-400 (S.D.N.Y. 2005)); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010).
Moreover, “there must be a ‘direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” ’ Triano v. Town of Harrison, 895 F. Supp. 2d 526, 531 (S.D.N.Y. 2012) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). “[T]he mere assertion that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.” Zahra v. Town Of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (quoting Dwares v. City of N. Y., 985 F.2d 94, 100 (2d Cir. 1993)).
A. Municipal Policies and Practices
*18 Plaintiff's FAC and deposition must demonstrate a “direct causal link” between a municipal action and his only surviving claim – a claim of excessive force. Plaintiff lists six supposed policies and practices that he believes are grounds for municipal liability. FAC ¶ 274a-f. These alleged municipal policies and practices are either identical or substantially identical to those alleged by the plaintiffs in Marom.
Three of the alleged municipal policies and practices have no direct causal link to Plaintiff's being subjected to excessive force during his arrest.
First, Plaintiff alleges that the City had policy and practice of “unreasonably restricting protected activities” associated with Occupy Wall Street in or around Union Square Park in March 2012. FAC 274a. This purported policy or practice arguably relates to Plaintiff's First Amendment claims, but those have been dismissed. It does not relate to his claim that NYPD used excessive force, which is the sole surviving claim in this lawsuit.
Second, the alleged practice of treating groups of protestors as a “ ‘unit’ for ‘mass arrest’ probable cause determination purposes without first giving meaningful notice or an opportunity to disperse ... without ensuring that lawfully authorized and constitutionally significant notice, and a meaningful opportunity to disperse ...,” FAC 274b, arguably relates to a false arrest claim, but Plaintiff's false arrest claim has been dismissed. This policy or practice does not relate to his claim of excessive force.
Finally, Plaintiff's alleges that the City has a policy or practice of failing to provide protesters with meaningful dispersal orders and opportunities for dispersal prior to arresting participants of “First Amendment assemblies,” FAC ¶ 274d, may relate to his First Amendment or false arrest claims, but again do not relate to his surviving claim.
Setting these three alleged policies and practices aside, the remaining three purported municipal policies and practices bear some plausible causal link to Plaintiff's excessive force claim. He alleges that the NYPD had a practice of using formations and police lines to physically push protestors, FAC ¶ 274c; used “force-related policies, procedures, and training” for crowd and disorder control at First Amendment assemblies, FAC ¶ 274e; and had inadequate or deficient “use of force reporting,” FAC ¶ 274f.
With respect to the allegations that the NYPD used formations and police lines to physically push protestors, used “force-related” policies and procedures for crowd control, and had deficient “use of force reporting,” Plaintiff fails to allege facts that admit of a plausible inference that any one of them was “so persistent and widespread as to practically have the force of law.” Marom, 15 Civ. 2017 (PKC), 2016 WL 916424, at *21 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). Plaintiff, like the plaintiffs in Marom, argues that the City's alleged policies and practices were “persistent and widespread” by pointing to their application at prior demonstrations, including the 2004 Republican National Convention (“RNC”) protests, “Critical Mass” bike rides, and previous Occupy Wall Street protests. He points to the numerous actions brought against the City in connection with these prior demonstrations, but does not indicate which, if any, of those actions led to findings of liability against the City for excessive force. In fact, Plaintiff acknowledges that litigation related to the RNC protests and to the Critical Mass events have settled, suggesting that there was no finding of liability against the City. The only case that Plaintiff points to that has led to any finding of liability is People v. Pogan – a case that resulted in a conviction of a police officer for falsifying police reports. FAC ¶ 275c, citing People v. Pogan, 06416-2008 (Sup. Ct. N.Y. Co.).
*19 Thus, Plaintiff has not supplied sufficient factual content to sustain a Monell claim based on the City's alleged policies involving NYPD's use of formations and police lines, use of “force-related policies, procedures, and training” for crowd and disorder control at First Amendment assemblies, or NYPD's inadequate or deficient “use of force reporting.”
B. Failure to Train, Supervise or Discipline
Plaintiff presents a second theory to support his Monell claim, arguing that the City failed to train, supervise, and discipline police officers for excessive use of force. FAC ¶ 274g, 274h. He suggests that this failure led to officers to violate his constitutional rights in using excessive force against him on the night of March 24, 2012.
For a plaintiff to succeed on a claim of municipal liability under a failure to train theory, he must show that the failure amounted to “deliberate indifference.” Connick, 563 U.S. at 61. Moreover, he must “demonstrate that the policymaker's inaction was the result of conscious choice and not mere negligence.” Cash v. Cty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011). “[D]eliberate indifference may be inferred where the need for more or better supervision to protect against constitutional violations was obvious, [ ], but the policymaker fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs.” Id. Additionally, municipal inaction, such as a failure to discipline subordinates, may also give rise to a Monell claim. See Bastista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Such inaction rises to the level of a municipal policy “where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 737 (1989)).
Plaintiff alleges that the NYPD failed to train or supervise the NYPD in proper policing or use of force in controlling demonstrations and protest assemblies even after negative media coverage and complaints to the Civilian Complaint Review Board (CCRB). FAC ¶ 293,294. Additionally, he alleges that even after receiving the complaints, the City failed to discipline NYPD supervisors and officers who received complaints, FAC ¶ 295.
Plaintiff's support for his claim that the City failed to train or supervise police officers consists entirely of conclusory allegations. For instance, Plaintiff claims, without providing any factual support, that since 2004, “the City has promoted and otherwise rewarded officers, including supervisors,” in cases where they (or their subordinates) used excessive force. FAC ¶ 307.
Plaintiff does, however, plead two pieces of non-conclusory evidence to support his allegation that the City failed to discipline officers despite well-documented and extensive incidents of the NYPD's use of excessive force. The first is an October 2015 report by the New York City Department of Investigation, Office of the Inspector General for the NYPD (“OIG-NYPD”). (.Police Use of Force in New York City: Findings and Recommendations on NYPD's Policies and Practices, http://www.nyc.gov/html/oignypd/assets/downloads/pdf/oig_nypd_use_of_force_report_oct_1_2015.pdf) (hereinafter “October 2015 Report”). The second is a 2012 joint research publication by The Global Justice Clinic at the New York University School of Law and the Walter Leitner International Human Rights Clinic at Fordham Law School. (Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street, http://hrp.law.harvard.edu/wp-content/uploads/2013/06/suppressing-protest-2.pdf) (hereinafter “2012 Research Study”).
*20 Plaintiff argues, in essence, that these reports support the allegation that the NYPD had a pattern or practice of using excessive force, particularly against Occupy Wall Street protestors, that the City was put on notice of such practices, and that the City acted with deliberate indifference with respect to this information by failing to discipline officers. The City's failures, according to Plaintiff, caused him to suffer from NYPD's excessive use of force on March 25, 2012.
First, the October 2015 Report analyzed cases from 2010 to 2014 for excessive or unnecessary force in which the Civilian Complaint Review Board (CCRB), a city agency independent from the NYPD, substantiated allegations. For the purposes of the report, OIG-NYPD then tracked the life cycles of these cases at NYPD. The report concluded that “NYPD frequently failed to impose discipline even when provided with evidence of excessive force.” October 2015 Report at 4. The report stated that from 2010 to 2014 there were 207 allegations of force in 179 cases that were substantiated by the CCRB. Id. at 1. An independent review by OIG-NYPD substantiated 104 of these allegations and confirmed that officers used force in excess of what was warranted under the circumstances. Id. For 37 of these 104 allegations, or 35.6%, the NYPD imposed no discipline. Id. For the cases decided between 2010 and 2013, the NYPD declined to impose discipline in 34 of 77 allegations, or 44.1% of the time. Id. In cases decided in 2014 and 2015, the NYPD declined discipline in a smaller percentage of cases — in three of 27 allegations, or 11.1% of the time. Id. However, as the report notes, the number of data points since January 2014 was small, and force complaints from 2014 may have still been under investigation at the time that the report was published. Id. at 4, 6 n. 4.
In Boddie v. City of New York, 15 Civ. 4275 (GHW), 2016 WL 1466555, at *3 (S.D.N.Y. Apr. 13, 2016), Judge Woods was confronted by this very same October 2015 Report, supplied by a plaintiff who raised a Monell claim under the same failure to discipline theory. Judge Woods found that the October 2015 Report was insufficient to allege that the City was put on notice of the alleged pattern of misconduct because the incident at issue in that case took place six months before the publication of the report. Id. Judge Woods also found that the report was insufficient to support Plaintiff's allegation that his incident was part of a pattern of use of excessive force rather than “an isolated incident.” Id. In particular, he noted the report's conclusion that the number of cases in which a complaint of excessive force was substantiated and the offending officer was not disciplined was “trending downward” in 2014 and 2015. Id.
While I respect the decision of my esteemed colleague, I am disinclined to dismiss Plaintiff's claim at this stage of litigation. Plaintiff was allegedly subject to the police's use of excessive force in March 2012, which falls within the five year period from 2010 to 2014 in which there were 207 allegations of force in 179 cases that were substantiated by the CCRB. Plaintiff is entitled to discovery into when the October 2015 Report was commissioned and why. The data provides sufficient factual support for Plaintiff's claim that he was not merely victim to an “isolated incident” but was instead subject to a pattern or practice of use of excessive force by NYPD.
Moreover, I find that Plaintiff adequately states a claim that the City was sufficiently put on notice of NYPD's excessive use of force; the report's publication date is actually not relevant to the issue of notice. Even if the City was not aware of the findings in the October 2015 Report until its publication, it was put on notice by the 207 allegations of force in 179 cases substantiated by the CCRB between 2010 and 2014.
*21 Finally, Plaintiff adequately provides support for the inference that the City did nothing about NYPD's pattern of excessive use of force. Despite the number of complaints received and substantiated by the CCRB between 2010 and 2014, officers were not disciplined in over 35% of these cases. Even if the no-discipline rate itself was not known until publication of the October 2015 report, the very fact that a large proportion of officers faced no disciplinary action for unlawful conduct plausibly suggests that the City did nothing. It also counsels against dismissing Plaintiff's claim at this juncture.
Aside from the October 2015 report, Plaintiff also cites to a 2012 joint research study by legal clinics at NYU School of Law and Fordham Law School that. The study reviews documented police practices against Occupy Wall Street protestors from September 2011 through July 2012, which includes “[a]ggressive, unnecessary and excessive police force.”[4] 2012 Research Study at vi. The study also includes a table of 130 alleged incidents where the police used excessive force against Occupy Wall Street protestors, bystanders, lawyers, legal observers, and journalists from September 2011 through July 2012. Id. at 133-194. These incidents were documented by the 2012 Research Study's Research Team with information obtained through interviews, direct observations, videos and photos, social media, civil litigation complaints, and new reports. Id. The study concluded that these incidents “raise concerns about the police use of force” and “warrant[s] investigation by authorities.” Id. at 72.
While Judge Castel in Marom found that this same 2012 Research Study was insufficient to support a Monell claim, 15 Civ. 2017 (PKC), 2016 WL 916424, at *22,1 conclude that the publication, coupled with the data on which the October 2015 report by the NYPD-OIG was based, provides sufficient factual support to foreclose dismissal of the Monell claim. Viewed in the light most favorable to Plaintiff, the data summarized in these publications creates a plausible inference that NYPD had a pattern or practice of use of excessive force (particularly against Occupy Wall Street protestors), that the City was put on notice of this and did nothing, as shown by its failure to discipline officers, and that the City's inaction caused Plaintiff's alleged constitutional injury.
CONCLUSION
For the foregoing reasons, the Defendants' motion to dismiss is partially GRANTED, and Defendants' motion for summary judgment is DENIED.
The Clerk of the Court is directed to remove Docket No. 39 from the Court's list of pending motions.
Dated: September 7, 2016.

Footnotes

Plaintiff's FAC also contains two other affidavits in support of arrests – one sworn by Defendant Morrin (FAC, Ex. B) and the other sworn by Defendant McNicholl (FAC, Ex. C). Because these affidavits support the arrests of other individuals and do not otherwise bear on Plaintiff's instant claims, the Court will not address these two affidavits.
The memoranda submitted by both parties on the issue of qualified immunity describe Defendants' motion as a motion to dismiss. However, because Defendants move to dispose of the Plaintiff's claim on the ground of qualified immunity and do so after deposing Plaintiff, the Court converts Defendants' motion to a motion for summary judgment, in accordance with the Court's Local Rules.
Defendants cite to incorrect sections of the Rules of the City of New York. Based on the text of the rules to which Defendants refer in their brief, the correct sections are stated here.
The Court notes that the publication discusses “aggressive” or “excessive” police use of force in the context of international law and human rights, and not specifically with reference to the Fourth Amendment. Id. at 72.