The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
This case is before the Court on a motion to dismiss. Plaintiff
Heyward Dotson brings this action against New York State officers
Court Sergeant Charles Farrugia, Court Officer William Chan, Court
Officer Robert Philios, unknown state court officers John Does, and
unknown supervisory state court officers Richard Roes (the "State
Defendants"), against the City of New York, New York City officer
Deputy Sheriff Kevin Sutack, unknown city officers Billie Boes, and
unknown supervisory city officers Larry Loes (the "City Defendants"),
and against Allied Barton Security Services, Allied Barton employees
Angel Barbosa, Richard Cheng, Joachim Kokenjak, Alex Menuau, Olufemi
Adegoki, unknown Allied Barton employees Michael Moes, and unknown
Allied Barton supervisory employees Paul Poes (the "Allied Barton
Defendants"). Plaintiff brings claims against all individual
defendants, sued in their individual capacities, under 42 U.S.C. §
1983, for deprivation of his rights under the First, Fourth, and
Fourteenth Amendments. Plaintiff sues the City of New York for
violation of his constitutional rights under a theory of Monell
liability. He sues Allied Barton for violation of his constitutional
rights and for various state law violations under a theory of
respondeat superior, and also alleges negligent hiring. He sues the
individual Allied Barton Defendants for state law negligence. He sues
the individual State Defendants for state law claims, including
assault and battery, false arrest and false imprisonment, abuse of
process, violation of and retaliation for his state law right to free
speech and association, trespass, intentional infliction of emotional
distress, and negligence. He sues all defendants for violations of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA")
and the Rehabilitation Act, 5 U.S.C. § 790 et seq., the New York State
Constitution's guarantee of equal protection, and the New York City
Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., as well as for
The present complaint (the "Complaint") is plaintiff's second amended complaint, filed January 12, 2012.*fn1 The City Defendants moved to dismiss on August 25, 2011, the State Defendants moved to dismiss on September 9, 2011, and the Allied Barton Defendants filed an answer on September 30, 2011. Oral argument was held on November 10, 2011.
For the following reasons, plaintiff's claims against the City Defendants and the Allied Barton Defendants are dismissed in their entirety. Plaintiff's claims against the State Defendants are also dismissed, with the exception of: (1) plaintiff's § 1983 claim against the State Defendants for false arrest; (2) plaintiff's state law claim against the State Defendants for false arrest; (3) plaintiff's § 1983 claim against defendant Farrugia for excessive force; and (4) plaintiff's state law claim against defendant Farrugia for assault and battery, all of which survive.
Plaintiff's claims arise from two separate incidents at two separate courthouses. On September 19, 2008, plaintiff went to the New York State Supreme Court courthouse located at 111 Centre Street in Manhattan (the "state court") for a scheduled appearance in housing court (the "state court incident"). When plaintiff attempted to go through the magnetometer at the courthouse entrance, he set off the machine's alarm. This happened repeatedly, as plaintiff later realized he had a sandwich wrapped in tin foil in his pocket. Eventually, plaintiff successfully went through the magnetometer without setting off the alarm. Upon doing so, he performed a "celebratory motion" that involved "slowly" moving his arms "in a circular motion in front of [his] chest." At that point, defendant Farrugia arrested and handcuffed plaintiff, and then defendants Farrugia, Chan, and Philios brought him upstairs, held him in custody for approximately an hour and a half, questioned him, emptied his pockets and inquired as to whether the birdseed found therein was drugs, removed his shoes and socks, and lifted up his shirt. Plaintiff alleges that during this time the handcuffs were excessively tight, and that he missed his housing court date due to the detention. Plaintiff was charged with disorderly conduct under New York Penal Code § 240.20, and issued a summons that described his behavior as "disorderly and erratic" and "verbally defiant and extremely uncooperative," and stated that he had "yell[ed] and flail[ed] his arms-almost striking a member of the public." The summons required plaintiff to appear in criminal court.
On January 26, 2009, plaintiff arrived at criminal court at 346 Broadway in Manhattan (the "criminal court") in order to address the summons issued to him as a result of the state court incident (the "criminal court incident"). The guards on duty included both city employees and employees of Allied Barton, with whom the city had contracted to provide courthouse security services. At some point prior to his arrival at criminal court but after September 19, 2008, plaintiff had had a defibrillator implanted in his chest, which, plaintiff alleges, prevented him from proceeding safely through a magnetometer. He related this information to one of the supervisory security guards at criminal court, whom he believes to have been either one of the Allied Barton individual defendants or defendant Sutack. However, plaintiff alleges, the guard "told [him] to just get on the line and keep moving." As plaintiff approached the magnetometer, he twice repeated to the guard that he "was not supposed to go through magnetometers due to his defibrillator," to which the guard told him to "move it along," and "insisted" that he go through the magnetometer. All of these conversations took place within earshot of other court officers. Plaintiff proceeded through the machine, his defibrillator malfunctioned, and he fell to the floor. Courthouse personnel called for emergency medical services, who arrived and brought plaintiff to the emergency room; from there he was admitted to the hospital.
On March 30, 2009, plaintiff returned to criminal court on the disorderly conduct charge. Courthouse personnel remembered him from the prior criminal court incident; this time, plaintiff underwent a pat-down screening rather than proceeding through the magnetometer. Plaintiff received an adjournment in contemplation of dismissal of the disorderly conduct charge.
II. Legal Standard on a Motion to Dismiss
In order to survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim is facially plausible only 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Seidl v. Am. Century Cos., 427 F. App'x 35, 37 (2d Cir. 2011) (quoting Iqbal, 129 S. Ct. at 1949). On a motion to dismiss, the Court must accept the plaintiff's factual allegations as true, and draw all reasonable inferences in the plaintiff's favor; however, conclusory statements in a complaint are not assumed to be true. See Seidl, 427 F. App'x at 37. "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. (quoting Iqbal, 129 S. Ct. at 1949); see also Harris v. Mills, 572 F. 3d 66, 72 (2d Cir. 2009) ("although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). The Court is to adjudge plausibility in context, and should "draw on its judicial experience and common sense." Seidl, 427 F. App'x at 37 (quoting Iqbal, 129 S. Ct. at 1950).
A. The State Court Incident
Plaintiff brings multiple federal and state law claims against the State Defendants arising out of the state court incident. These claims are addressed in turn below.
i. Section 1983 False Arrest
Plaintiff's first claim against the State Defendants is under 42 U.S.C. § 1983 for false arrest. In order to plead a claim brought pursuant to § 1983, a plaintiff must properly allege (1) that the defendant deprived him of a right guaranteed by the Constitution or laws of the United States and (2) that the defendant acted under color of law. 42 U.S.C. § 1983; see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
To plead a cause of action for false arrest under § 1983, a plaintiff must plausibly allege that: "(1) the defendant intentionally confined the 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 justified." Richardson v. New York City Health & Hosps. Corp., No. 05-cv-6278, 2009 WL 804096, at *7 (S.D.N.Y. Mar. 25, 2009) (citing Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991)). "The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotation marks and citation omitted). "Probable cause to arrest exists when the officers have 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." Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007).
Here, the plaintiff and the State Defendants disagree whether there was probable cause for plaintiff's arrest. In his Complaint, plaintiff alleges that the celebratory motion he performed upon successfully passing through the magnetometers was done "slowly, and with no conceivable danger or disruption to anyone." In the summons which was issued to plaintiff as a result of the state court incident, defendant Chan wrote that plaintiff was "disorderly and erratic in his behavior," that he "would not follow instructions in completing the magnetometer search," that he was "verbally defiant and extremely uncooperative," and that he "yell[ed] and flail[ed] his arms-almost striking a member of the public."
The State Defendants argue that, by quoting from the summons in his Complaint, plaintiff has incorporated the summons into the allegations of his Complaint, such that its allegations too must be taken as true at this stage of the case. The State Defendants are correct that, if the allegations set out in the summons were taken as true, and if there were no contrary allegations in the Complaint, probable cause for the offense of disorderly conduct would be established. However, plaintiff's Complaint affirmatively disputes the accuracy of the facts alleged in the summons. And it is well settled that, "although the Court may properly consider the contents of a document in the context of a motion to dismiss, documentary evidence does not trump a plaintiff's contrary factual allegations." Vogelfang v. Capra, No. 10-cv-3827, 2012 WL 832440, at *15 (S.D.N.Y. Mar. 13, 2012) (citing Roth v. Jennings, 489 F.3d 499, 510-511 (2d Cir. 2007)). Therefore, plaintiff's version of events-not the version which appears in the quoted summons-must be taken as true at this stage of the litigation. The Complaint denies that the facts alleged in the summons were truthful-it contends that plaintiff's only conduct preceding his arrest was his slow "celebratory motion" after clearing the magnetometer; without more, such conduct would not supply probable cause for an arrest. Taking his allegation as true, plaintiff therefore plausibly challenges the State Defendants' probable cause to arrest plaintiff. Accordingly, the motion to dismiss plaintiff's § 1983 claim based on false arrest must be denied.
ii. Section 1983 Use of Excessive Force
Plaintiff also brings a § 1983 claim against the State Defendants for use of excessive force. "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 their underlying intent or motivation.'" Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
In his Complaint, plaintiff alleges that defendant Farrugia handcuffed him, and that the handcuffs were "excessively tight." Plaintiff does not allege that he informed any of the State Defendants that the handcuffs were too tight. "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Richardson, 2009 WL 804096, at *10 (quoting Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986)). Because plaintiff does not allege that any defendant other than Farrugia used excessive force during the arrest, plaintiff's excessive force claim as to the other State Defendants is dismissed.
As to plaintiff's allegations regarding defendant Farrugia, it is true that excessively tight handcuffing may constitute use of excessive force. See Kerman v. City of New York, 261 F.3d 229, 239-40 (2d Cir. 2001). Like all excessive force claims, the pivotal question is whether the officer's behavior was objectively unreasonable in light of the circumstances. Taking all facts alleged in plaintiff's Complaint as true, he is a frail, older man who was handcuffed after he did a slow, whimsical motion with his arms, and he did not resist arrest or otherwise require particularly forceful restraint. Assuming this description of events to be true, as the Court must on a motion to dismiss, plaintiff's claim against defendant Farrugia for excessive force meets the plausibility standard. iii. Freedom of Speech and Association and Access to Courts
As part of his first claim, plaintiff alleges deprivation of and retaliation for his First Amendment rights to freedom of speech and association, as well as violation of his right of access to courts.
Plaintiff's Complaint does not allege that plaintiff uttered or was prevented from uttering any pure speech. Rather, plaintiff's argument for violation of his First Amendment rights is based on the circular motion he performed with his arms upon proceeding through the magnetometer without incident. To be entitled to protection under the First Amendment, conduct must be of a sufficiently expressive or associative nature to merit protection under free speech law. See Burt v. Gates, 502 F.3d 183, 187 (2d Cir. 2007); see also Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 65-66 (2006) (First Amendment protection extended only to conduct "that is inherently expressive"). Here, however, the dance motion described by the plaintiff, without more, cannot rightly be described as "inherently expressive" such that a viewer would understand the speech being expressed, were there any. Furthermore, "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." U.S. v. O'Brien, 391 U.S. 367, 376 (1968). Thus, even if it were the case that plaintiff's movement contained some minimal element of expressive or associative content, the governmental interest in maintaining order and public safety at the entrance to a courthouse is sufficiently important to justify State Defendants' behavior. A reading of plaintiff's Complaint that draws all reasonable inferences in his favor is consistent with the conclusion that the government has an important interest in maintaining strict order at a courthouse entrance.
A First Amendment retaliation claim is premised upon the plaintiff pleading, with plausibility, that he "engaged in protected speech, and that the speech was a substantial or motivating factor in an adverse decision taken by the defendant." Bearss v. Wilton, 445 F. App'x 400, 402 (2d Cir. 2011). Here, because plaintiff does not plead with plausibility that he engaged in protected ...