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Carpenter v. The City of New York

United States District Court, S.D. New York

November 27, 2013

HEATHER CARPENTER and JULIO JOSE JIMENEZ-ARTUNDUAGA, Plaintiffs,
v.
THE CITY OF NEW YORK, CHIEF OF DEPARTMENT JOSEPH J. ESPOSITO, CHIEF OF PATROL JAMES P. HALL, SGT. ROBERT BYRNE, SGT. CHRISTOPHER NEWSOM, SGT. RODRIGUEZ, and SGT. PATRICK WRIGHT, Defendants

Order Filed: February 13, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Plaintiffs: Ronald L. Kuby and Leah Marielle Busby, Law Office of Ronald L. Kuby, New York, NY.

For Defendants: Andrew Lucas, Assistant Corporation Counsel of the City of New York, New York City Law Department, New York, NY.

OPINION

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OPINION AND ORDER

DENNIS COTE, United States District Judge.

Plaintiffs Heather Carpenter (" Carpenter" ) and Julio Jose Jimenez-Artunduaga (" Jimenez" ) filed this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages against six defendants: the City of New York (" the City" ), Chief of Department Joseph J. Esposito (" Chief Esposito" ), Chief of Patrol James P. Hall (" Chief Hall" ), Sergeant Robert Byrne (" Sergeant Byrne" ), Sergeant Christopher Newsom (" Sergeant Newsom" ), Sergeant

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Rodriguez (" Sergeant Rodriguez" ), and Sergeant Patrick Wright (" Sergeant Wright" ). This case arises out of an October 15, 2011 protest organized by a group known as Occupy Wall Street, during which the plaintiffs were arrested for criminally trespassing in a Manhattan Citibank branch.

The plaintiffs seek to impose civil liability under § 1983 on the four Sergeants for arresting them in violation of the Fourth Amendment, and using excessive force in doing so. The remaining claims seek to hold the City and the two Chiefs responsible under the Monell doctrine and as supervisors, respectively.

On June 24, 2013, defendants moved for summary judgment. Despite being granted repeated extensions, the plaintiffs failed to file a complete set of papers in opposition to the summary judgment motion within the time permitted. Having examined the record with care, summary judgment is granted in part. The false arrest claims are dismissed. As to excessive force, only the claims against the City are dismissed.

BACKGROUND

The following facts are undisputed or taken in the light most favorable to the plaintiffs unless otherwise indicated. This case arises out of a protest conducted by the Occupy Wall Street (" Occupy" ) movement. The Occupy movement explains that it came into being in September 2011, when it occupied Zuccotti Park, located near Wall Street in New York City's financial district. As relevant here, Occupy objects to the perceived greed of financial services institutions and their allegedly corrupt relationship with the government. Occupy organized a protest for October 15, 2011, which the New York City organizers called, in their Facebook post, a " Day of Action Against Banks." Through this Facebook post, Carpenter and Jimenez became aware of the October 15 protest.

During the evening prior to October 15, Carpenter visited Jimenez at the bar at which he worked and they discussed joining the protest. That night, Carpenter travelled to Zuccotti Park and joined the protestors. Jimenez joined her after he left work early on the morning of October 15. The couple slept for a few hours in Zuccotti Park.

On the afternoon of October 15, the plaintiffs arrived with other protestors at Washington Square Park, the staging ground for the Occupy protest. Carpenter intended to " participate" in the Occupy protest that day by closing her Citibank bank account. Carpenter had previously been notified by Citibank of a $17 monthly fee to maintain her account; Citibank had no such fee in the past. The plaintiffs joined a group of approximately 30 to 35 Occupy protesters marching to a Citibank branch at 555 LaGuardia Avenue in Greenwich Village. Defendant Sergeant Rodriguez was also in this group, dressed in plain clothes.

Sergeants Rodriguez, Newsom, and Byrne had attended a briefing the morning of October 15, in which the officers were advised of the Occupy protest planned for that day and told that the objective of the protesters was to " take over the banks." Sergeant Rodriguez learned at the briefing that some of the Occupy protesters were going to close their bank accounts as part of the protest. All three Sergeants were sent to Washington Square Park. As the protesters departed from Washington Square Park, a superior officer directed Sergeant Rodriguez to join the group and " blend in." Superior officers directed Sergeants Newsom and Byrne to monitor the group.

On the walk to the Citibank branch, all or nearly all members of the group chanted

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Occupy slogans, such as " Banks got bailed out, we got sold out." Both plaintiffs participated in the chanting. Jimenez carried a video camera; he filmed the group walking to the branch, interviewing members of the group as they walked. Sergeant Rodriguez noticed both plaintiffs, Carpenter because of her red hair and Jimenez because he was videotaping.

At or around 2 p.m., the group entered the Citibank branch. They gathered in the main reception area and formed a circle. At that point, three members of the group began a " teach-in." Other members of the group aired their grievances about the banking system and shared personal stories on topics such as student debt. The teach-in was audible to all those present in the bank branch. Carpenter did not speak during the teach-in, but she did clap along with the group. Jimenez walked through the area, filming the teach-in. Sergeant Rodriguez observed both plaintiffs among the protesters.

At or around 2:04 p.m.,[1] a Citibank employee addressed the protesters. She stated, " I'm asking you guys can you protest outside the branch. No cameras are allowed inside the branch." A member of the group responded, " You guys have cameras inside the branch." The Citibank employee then stated, " Respectfully, we're asking you to protest outside but not inside the branch." Both plaintiffs admit that they heard the statements by this first employee. Less than one minute later, a second Citibank employee addressed the group one more time. He said, " Guys, I kindly ask you if you could do this outside, but not inside the branch." Jimenez admits he heard this statement as well. Despite these statements by bank employees, only a few of the protestors left the bank. Carpenter and Jimenez were among those who remained in the bank.

While the remaining protesters continued with the teach-in, Carpenter closed her bank account. Jimenez handed Carpenter her bank card, and she approached a teller. When Jimenez attempted to film Carpenter's bank transaction, she told him not to. Jimenez then returned to filming the teach-in, which continued to take place within the bank.

Sergeant Rodriguez observed both plaintiffs remain in the bank after the bank employees had addressed the protestors, and he witnessed Jimenez handing the bank card to Carpenter. From what he observed, Sergeant Rodriguez assumed that Carpenter was closing her bank account, since he had been advised in the briefing earlier that day that some of the Occupy protesters would be closing their accounts.

Jimenez and Carpenter exited the bank branch about four to five minutes after the bank employees asked the protesters to move their protest outside. At about 2:08 p.m., Jimenez left the bank branch even though Carpenter had not yet completed her bank transaction. As Jimenez left, he shouted, " they're closing the doors." Almost immediately thereafter the police shut the doors to the bank.

At about 2:09 p.m., Carpenter completed her transaction and moved to exit the bank branch. Although there were police officers blocking people from leaving, Carpenter showed her receipt and was permitted to leave. Carpenter and Jimenez found each other, walked over to the bank branch windows, and spent the next few minutes watching -- and later recording -- what was happening inside the branch.

What they witnessed was the police arresting the Occupy protesters in the bank branch. A senior police officer told the

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fprotesters inside the branch that they were all under arrest for criminal trespass. As the protesters inside the bank were being placed under arrest, Sergeant Rodriguez looked out of the bank windows and recognized Carpenter and Jimenez. He informed Chief Esposito that there were two additional protesters who had been involved in the demonstration outside the bank. Chief Esposito authorized their arrest, and Sergeant Rodriguez left the bank branch, accompanied by Sergeant Newsom, to arrest the plaintiffs.

Around 2:15 p.m., Sergeant Rodriguez approached Carpenter. Many of the facts regarding what transpired at this point are disputed. It is undisputed, however, that Sergeant Rodriguez approached Carpenter as she held her iPhone and recorded what was happening inside the branch. He stated that she was " inside with the rest of them" and that she would have to " come with him." Carpenter repeatedly stated that she was a " customer," pointing to the receipt from her transaction. Jimenez identified himself as Carpenter's boyfriend or fiancé, said something along the lines of " let's go," and then placed his arm behind Carpenter's back, as if to guide her away from Sergeant Rodriguez. Sergeant Rodriguez then grabbed Carpenter from behind and moved her to the front of the bank. Chief Hall, who had just arrived on the scene, assisted Sergeant Rodriguez by grabbing Carpenter's arm and helping Rodriguez direct her to the wall of the bank branch, where Rodriguez then handcuffed her.

At virtually the same time, Jimenez was arrested. Sergeant Newsom and Sergeant Wright, who had just arrived, brought Jimenez into the bank vestibule. As Jimenez was being brought inside the vestibule, he grabbed and held onto the doorframe for a few seconds. Inside the vestibule, additional officers helped arrest Jimenez.

On June 21, 2011, plaintiffs filed this action, asserting that they had been falsely arrested and subjected to excessive force during those arrests. Following the completion of discovery, the defendants moved for summary judgment on June 24, 2013. The plaintiffs only filed exhibits and seven pages of a Rule 56.1 Statement by the extended deadline for the plaintiffs' submission of opposition papers.[2] The defendants filed a reply to these submissions on September 20.

DISCUSSION

Summary judgment may not be granted unless all of the submissions taken together " show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must " set out specific facts showing a genuine

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issue for trial," and cannot " rely merely on allegations or denials" contained in the pleadings. Rule 56(e), Fed. R. Civ. P.; See also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). " A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," as " [m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material facts -- " facts that might affect the outcome of the suit under the governing law" -- will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The plaintiffs bring two Fourth Amendment claims pursuant to 42 U.S.C. § 1983. To sustain a Section 1983 claim, the plaintiff must show that he was " deprived of rights, privileges, or immunities secured by the Constitution and laws [of the United States]" by a person acting under color of state law. Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (citation omitted). That an individual officer committed a constitutional violation is not sufficient, however, to establish liability under § 1983 because these officers are further protected by the doctrine of qualified immunity.

As the Supreme Court recently reiterated,

" The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). " Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments," and " protects 'all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). " We do not require a case directly on point" before concluding that the law is clearly established, " but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 131 S.Ct. at 2083.

Stanton v. Sims, 134 S.Ct. 3, 187 L.Ed.2d 341, 2013 WL 5878007, at *2 (U.S. 2013) (per curiam). A court may resolve the qualified immunity question first, but it is often appropriate to begin by determining whether an official has violated a constitutional right. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In this case, the plaintiffs contend that the individual defendants violated their Fourth Amendment rights by (1) falsely arresting them and (2) using excessive force in the course of those arrests.

1. False Arrest Claims

Defendants assert that no false arrest occurred because the arresting officers had probable cause to believe that the plaintiffs committed criminal trespass.[3] In

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assessing Fourth Amendment claims of false arrest brought under § 1983, courts look to the law of the state in which the arrest occurred. Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). Under New York state law, a claim of false arrest requires a showing that the confinement was not privileged. Liranzo v. United States, 690 F.3d 78, 96 (2d Cir. 2012). 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).

The requirement of probable cause does not create a high bar for law enforcement. " In general, 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." Id. (citation omitted). " 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." Id. (citation omitted).

When assessing an individual's state of mind as part of a probable cause determination, police officers are granted " great" " latitude" " because the practical restraints on police in the field are greater with respect to ascertaining intent." Zalaski v. City of Hartford, 723 F.3d 382, 393 (2d Cir. 2013)(citation omitted). In Zalaski, the Court of Appeals concluded that the arresting officers were entitled to qualified immunity where there was " arguable probable cause for a reasonable officer to think that the plaintiffs were engaged in the sort of disorderly conduct proscribed" by statute. Id. at 394. The statute required proof that the arrest person had acted with the " predominant intent" to cause inconvenience. Id. at 391. The Court of Appeals concluded that the arresting officers were entitled to make a judgment regarding that intent based on the totality of the circumstances. Id. at 393.

Additionally, where multiple officers cooperate in an investigation, the " collective knowledge doctrine" applies to the determination of probable cause.

The collective knowledge doctrine provides that, for the purpose of determining whether an arresting officer had probable cause to arrest, " where law enforcement authorities are cooperating in an investigation, the knowledge of one is presumed shared by all."

Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003)(quoting Illinois v. Andreas, 463 U.S. 765, 772 n.5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)); See Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007)(applying the collective knowledge doctrine in the § 1983 context). " [S]ummary judgment dismissing a plaintiff's false arrest claim is appropriate if the undisputed facts indicate that the arresting officer's probable cause determination was objectively reasonable." Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007).

Under N.Y. Pen. L. § 140.05, it is an act of criminal trespass when an individual " knowingly enters or remains unlawfully in or upon premises." [4] The statute defines " enter or remain unlawfully" as follows:

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A person " enters or remains unlawfully" in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.

N.Y. Pen. L. § 140.00(5).

Where, as here, the alleged trespass occurred on premises generally open to the public, the State has the burden of proving three elements to support a prima facie case of criminal trespass: (1) that a lawful order excluding the defendant from the premises was issued, (2) that the order was communicated to the defendant by a person with authority to make the order, and (3) that the defendant defied that order. People v. Munroe, 18 Misc.3d 9, 853 N.Y.S.2d 457, 458 (3d A.D. 2007). An individual accused of criminal trespass may raise as a defense that he " honestly believe[d] that he [wa]s licensed or privileged to enter." People v. Basch, 36 N.Y.2d 154, 325 N.E.2d 156, 365 N.Y.S.2d 836, 840 (1975). It is generally left to a jury to assess the credibility of this defense. See, e.g., People v. Jackson, 38 A.D.3d 1052, 831 N.Y.S.2d 596, 598 (3d A.D. 2007).

An arresting officer has no duty to investigate exculpatory defenses, or to assess the credibility of claims regarding exculpatory defenses. " Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Panetta v. Crowley, 460 F.3d 388, 396 (2d Cir. 2006)(citation omitted). On the other hand, the officer may not " deliberately disregard facts known to him which establish" an exculpatory defense. Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003). Indeed, an officer's awareness of the facts supporting an exculpatory defense may eliminate probable cause. Id. at 135. Probable cause is not eliminated, however, by the mere existence of evidence that could permit a conclusion of innocence. " [O]nce officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury. Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence." Panetta, 460 F.3d at 396 (citation omitted).

The defendants have shown through the admissions of the plaintiffs and other undisputed evidence that the arresting officers had probable cause to believe that the plaintiffs committed the crime of criminal trespass. The plaintiffs have not presented evidence that raises a material dispute of fact regarding the officers' knowledge of conduct supporting the elements of the crime of trespass. The defendants have therefore shown that they are entitled to summary judgment on the false arrest claims.

A reasonable police officer was entitled to conclude that the statements of the bank employees delivered to the protestors were lawful orders excluding the protestors from continuing protest activities within the bank's premises.[5] A reasonable

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police officer was also entitled to conclude that the statements were communicated by persons authorized by the bank to make them and that they were effectively communicated to the plaintiffs. Each of the plaintiffs has admitted hearing at least one of the statements by the bank employees. Finally, a reasonable officer would also be entitled to conclude that each of the plaintiffs was a protester and was in violation of those orders.

It is only this final element of the trespass violation that requires further discussion. The police had observed both plaintiffs engage in protest activities with a group of protestors. This included marching with them, chanting and clapping with them, joining the circle during the teach-in, and in the case of Jimenez, videotaping the protest. The protest activities of the group which the plaintiffs had joined continued after the bank employees asked them to take their protest activities outside. Virtually all of the protestors remained in the bank. As for the plaintiffs, neither of them left the bank at that point either. Both of them stayed for about four to five minutes more. During this interval Jimenez continued shooting video footage of the protest, something that the protestors had been told explicitly was not allowed. The plaintiffs have not offered evidence to create a genuine question of fact as to whether the officers were entitled to believe that Jimenez was a protester who continued to engage in protest activity within the bank premises after he was no longer permitted lawfully to do so.

While Jimenez continued with his videotaping, Carpenter took steps in this interval to close her bank account. She retrieved her bank card from Jimenez, entered into a transaction with a bank teller, and then left the bank. Sergeant Rodriguez had been told that protestors would be closing their bank accounts as part of a plan to occupy banks, and had concluded that Carpenter was closing a bank account in accordance with the plans of the Occupy movement. Based on undisputed facts, he was entitled to conclude that she was a protester, that her license to remain on the premises had been revoked, and that she disobeyed the bank's employees by continuing to engage in an act of protest within the bank's premises.

Closing a bank account is, of course, lawful activity. There is no suggestion that it would have been unlawful for Carpenter to go to any other Citibank branch that day to close her account. But, given the facts as they appeared to the arresting officers, it was reasonable for them to conclude that Carpenter's decision to remain in that Citibank branch and move to a teller's window to engage in a banking transaction was a decision to continue to engage in protest activity in defiance of the bank employees. To the extent that there is any doubt in this regard, the defendants would be entitled to qualified immunity for the decisions they made in arresting Carpenter.

Carpenter presents one argument in opposition to this motion. She asserts that she was not a protester but was merely an observer of the protest.[6] This argument fails to raise a question of fact that would prevent summary judgment. First, this argument is at odds with the many admissions that Carpenter made during her deposition. In any event, the issue is not what Carpenter intended by her actions, but what it was reasonable for the arresting officers collectively to understand from

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observing Carpenter's behavior. They were entitled, as described above, to believe that Carpenter was an active participant in the protest activity and actively working with other protestors to disrupt regular bank activity.

Nor were the arresting officers required to investigate Carpenter's explanation that she was a customer and her denial that she had been inside " with" the protesters. The issue in this case is whether there was a reasonable basis for the arresting officers to conclude that Carpenter was a protester, that she had chosen to stay in the bank branch after the bank employees asked the protestors to take their protest activities outside, and that she then engaged in another act in furtherance of the protest. Here, the arresting officers had probable cause to believe that Carpenter committed a crime, and had no duty to investigate an exculpatory defense, particularly one that would require the officers to evaluate Carpenter's intent. Panetta, 460 F.3d at 396; Jocks, 316 F.3d at 136.

2. Excessive Force Claims

The plaintiffs have also brought claims 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 the officers' underlying intent or motivation." Papineau v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (citation omitted). Determining whether excessive force has occurred requires a court to weigh the " facts and circumstances of each particular case, including the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest." Id. (citation omitted).

While " not every push or shove" permits a Fourth Amendment claim to survive summary judgment, bruising and other nonpermanent injuries may be sufficient. Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004); Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (" If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe." ). " Given the fact-specific nature of the inquiry, granting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could conclude that the officers' conduct was objectively unreasonable." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

Carpenter complains that Sergeant Rodriguez gratuitously grabbed her breasts during the arrest and that her handcuffs were too tight resulting in minor injury. Jimenez alleges that arresting officers punched and kicked him and that his finger began to bleed. Although these allegations are disputed, they raise issues of fact which may only be resolved by a jury.[7]

3. Monell Liability against City

The plaintiffs further seek to hold the City responsible pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). " Section 1983 'imposes liability on a government that, under color of some official policy, causes an employee to violate another's constitutional rights.'" Okin v. Village of Cornwall-on-Hudson Police Dep't,

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577 F.3d 415, 439 (2d Cir. 2009) (quoting Monell, 436 U.S. at 692).

Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.

Id. (citation omitted). As a result, to state a Monell claim against a city for the unconstitutional actions of its employees, " a plaintiff is required to plead . . . three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). An " official policy or custom" may be established through the official acts of city lawmakers or " those whose edicts or acts may fairly be said to represent official policy," Monell, 436 U.S. at 694, or by a pattern of misconduct that is " sufficiently persistent or widespread" as to " compel[] 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).

Plaintiffs have introduced no evidence to create a triable issue of fact as to Monell liability as to either constitutional violation. Regarding the false arrest claims, because it has been determined that the arrests were supported by probable cause, there can be no Monell liability for these claims. Regarding the excessive force claims, even though these claims survive summary judgment, plaintiffs have introduced no evidence that the excessive force allegedly used by the individual defendants is part of an " official policy or custom" of the City of New York. Accordingly, the Monell claims are dismissed in their entirety.

4. Supervisory Liability Against Supervisor Defendants

The plaintiffs also seek to hold the supervisor defendants, Chief Esposito and Chief Hall, liable for the alleged constitutional violations. It is well established that general respondeat superior liability does not exist under Section 1983. Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004). An individual supervisor can be held liable, however, if the plaintiff establishes the " defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Examples of such personal involvement include directly participating in the infraction, and creating a policy or custom under which unconstitutional practices occurred, or allowing such a policy or custom to continue. See id. at 139.[8]

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The analysis of the supervisory liability claims in this case turns on the underlying constitutional claims against the individual officer defendants. Because summary judgment is granted to the individual officer defendants on the false arrest claims, it is also granted to the supervisor defendants on these claims. As to the excessive force claims, however, plaintiffs have raised a genuine question of material fact as to the existence of a constitutional violation. The question then is whether plaintiffs have raised a genuine question of material fact as to the existence of supervisory liability.

They have done so here, because the plaintiffs have submitted sufficient evidence to show that both Chief Esposito and Chief Hall either were present for or partook in the alleged constitutional violations. If the plaintiffs prevail in demonstrating that the arresting officers used excessive force, a jury could also conclude that Chief Esposito and Chief Hall are responsible for these constitutional violations in their supervisory capacity. Accordingly, the excessive force claims against the supervisor defendants survive summary judgment.

CONCLUSION

Defendants' summary judgment motion of June 14, 2013 is granted in part. The City is dismissed as a defendant. As to the individual defendants, only the excessive force claims survive.

SO ORDERED:

MEMORANDUM ORDER AND OPINION

DENISE COTE, United States District Judge.

The plaintiffs Heather Carpenter (" Carpenter" ) and Julio Jose Jimenez-Artunduaga (" Jimenez" ) in this Section 1983 case have moved for an entry of partial judgment pursuant to Rule 54(b), Fed.R.Civ.P. Through an Opinion of November 27, 2013 (" Opinion" ), summary judgment was granted in part to the defendants. Carpenter v. City of New York, 11 Civ. 8414 (DLC), 984 F.Supp.2d 255, 2013 WL 6196968 (S.D.N.Y. Nov. 27, 2013). The defendants have moved for certification of an interlocutory appeal of the remaining claims in this case pursuant to 28 U.S.C. § 1292(b). For the reasons stated below, both motions are denied.

BACKGROUND

On November 21, 2011, Carpenter and Jimenez filed this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages against the City of New York (" City" ) and various police officers. All of the plaintiffs' claims arise out of an October 15, 2011 protest organized by a group known as Occupy Wall Street, during which the plaintiffs were arrested for criminally trespassing in a Manhattan Citibank branch. The plaintiffs contend that the defendants violated their Fourth Amendment rights by falsely arresting them and using excessive force in the course of those arrests.

On November 27, 2013, the Opinion dismissed the false arrest claims because undisputed evidence established that the arresting officers had probable cause to believe that the plaintiffs committed the crime of criminal trespass. The excessive force claims against the individual defendants survived because the plaintiffs' allegations raised issues of fact that may only be resolved by a jury. The claims against the City, however, were dismissed

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because the plaintiffs failed to present evidence to establish Monell liability as to the surviving excessive force claims. The excessive force claims against the individual defendants are scheduled to be tried in March 2014.

On January 13, 2014, the plaintiffs moved for an entry of partial judgment pursuant to Rule 54(b), Fed.R.Civ.P., so that they might appeal the dismissal of their false arrest claims and the dismissal of the City as a defendant. On January 17, the defendants moved for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) so that they might appeal the denial of summary judgment as to the excessive force claims against the individual defendants. A scheduling order of January 6 stated that any opposition to the motions was due by January 31 and any reply by February 7. No oppositions were filed on January 31, and thus the motions were fully submitted as of that date.

DISCUSSION

I. Defendants' Section 1292(b) Motion

Defendants seek certification of an interlocutory appeal on the surviving excessive force claims against the individual defendants pursuant to 28 U.S.C. § 1292(b). Section 1292(b) provides in relevant part:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.

28 U.S.C. § 1292(b) (emphasis added); see Casey v. Long Island R. Co., 406 F.3d 142, 146 (2d Cir. 2005) (noting that Section 1292(b) " imposes both procedural and substantive requirements on a would-be appellant" ).

Section 1292(b) is to be narrowly construed, as " the power to grant an interlocutory appeal must be strictly limited to the precise conditions stated in the law." Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (citation omitted). Certification is thus appropriate only in the narrow class of cases in which " an intermediate appeal may avoid protracted litigation." Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 866 (2d Cir. 1996). " [O]nly exceptional circumstances will justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Flor v. BOT Fin. Corp., 79 F.3d 281, 284 (2d Cir. 1996) (per curiam) (citation omitted).

Certification is not appropriate in this case, as there is no substantial ground for difference of opinion as to the denial of summary judgment on the excessive force claims. The standard for granting summary judgment on such claims is a high one. As stated in the Opinion, summary judgment can be granted only if " no reasonable factfinder could conclude that the officers' conduct was objectively unreasonable." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

Defendants make three arguments: (1) Jimenez conceded that he was resisting arrest and had no knowledge of how his finger was injured; (2) neither plaintiff can prove that the handcuffing rises to the level of a Fourth Amendment violation, citing Schy v. Vermont, 2 Fed. App'x 101 (2d Cir. 2001); and (3) Carpenter's allegations regarding the grabbing of her

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breasts is contradicted by the video evidence, which " clearly" (in the language of the defendants) shows no excessive force. None of these points, however, establishes a substantial ground for difference of opinion regarding the Court's prior determination.

As to the first point, it is undisputed that Jimenez held onto the vestibule doorframe for a few seconds, as noted in the Opinion, and that he did know how his finger began to bleed. If, however, a reasonable jury were to accept his testimony that the arresting officers punched and kicked him in the vestibule, the jury could conclude that the officers' conduct caused the bleeding and was, as a general matter, objectively unreasonable. This dispute turns on credibility issues and cannot be resolved at summary judgment.

As to the second point, defendants rely on an unpublished Second Circuit summary order. Under the rules of this Circuit, a summary order is non-precedential. Second Circuit Local Rule 32.1.1(a). As a consequence, that decision is not a basis on which to find that there is a substantial difference of opinion on an issue addressed in the Opinion.

As to the third point, the Court has reviewed the video evidence, and it does not clearly establish that the officer never grabbed Carpenter's breasts. It is true that, when the officer's grip is clearly shown on the videotape, he is clutching the plaintiff below her breasts. But, the precise positioning of the officer's hands and arms is not visible during the entire encounter. What actually happened is therefore disputed and is properly left to a jury to resolve.

Moreover, in light of the Court of Appeals' repeated guidance that § 1292(b) certification be granted rarely, this is not an " exceptional" case warranting certification of an interlocutory appeal. Flor, 79 F.3d at 284. This is a § 1983 case in which the false arrest claims were dismissed at summary judgment but the excessive force claims were not. Permitting interlocutory appeal in such cases would seriously undermine the practice in federal court of " postponing appellate review until after the entry of a final judgment." Id. Moreover, this case does not fall within the narrow class of cases in which " an intermediate appeal may avoid protracted litigation." Koehler, 101 F.3d at 866. Discovery is complete; a joint pretrial order is due this week, and a trial is scheduled for approximately one month. Thus, interlocutory appeal on the surviving excessive force claims against the individual defendants is denied.

II. Plaintiffs' Rule 54(b) Motion

Rule 54(b), Fed.R.Civ.P., authorizes entry of a final judgment before all of the claims against each party to a lawsuit have been adjudicated " where: (1) there are multiple claims or parties; (2) at least one of the claims or the rights and liabilities of at least one party has been determined; and (3) " there is 'an express determination that there is no just reason for delay.'" Transportation Workers Union, Local 100 v. N.Y. City Transit Auth., 505 F.3d 226, 230 (2d Cir. 2007) (quoting Fed.R.Civ.P. 54(b)). The " historic federal policy against piecemeal appeals," however, " requires that the court's power to enter such a final judgment before the entire case is concluded, thereby permitting an aggrieved party to take an immediate appeal, be exercised sparingly." Novick v. AXA Network, LLC, 642 F.3d 304, 310 (2d Cir. 2011) (citation omitted). " The power" to make a Rule 54(b) determination " should be used only in the infrequent harsh case where there exists some danger of hardship or injustice through delay which would be alleviated by immediate

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appeal." Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (citation omitted).

" Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Novick, 642 F.3d at 310 (quoting Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). A " district court generally should not grant a Rule 54(b) certification if the same or closely related issues remain to be litigated." Id. at 311 (citation omitted). " It does not normally advance the interests of sound judicial administration or efficiency to have piecemeal appeals that require two (or more) three-judge panels to familiarize themselves with a given case in successive appeals from successive decisions on interrelated issues." Id. (citation omitted).

Entry of partial judgment on the dismissed claims under Rule 54(b) is not appropriate. The false arrest and excessive force claims are closely related as they arise from the same October 15 incident and arise out of related events, i.e., plaintiffs' arrest and the police officers' conduct in making the arrest. Permitting appeal now would force the Court of Appeals to familiarize itself with the same incident in successive appeals. Moreover, plaintiffs have failed to identify any danger of hardship or injustice that would result from delaying the immediate appeal of the dismissal of the false arrest claims and the claims against the City.

The plaintiffs' arguments in support of entry of a partial judgment under Rule 54(b) are not persuasive. First, they observe that defendants have taken no position on their Rule 54(b) motion. This Court will not, however, permit piecemeal appeals simply because defendants are not opposed to such an outcome.

Second, plaintiffs assert that the dismissed claims are " are factually distinct in both time and substance" from the surviving claims. To the contrary, all claims are rooted in a single, short incident.

Additionally, plaintiffs cite Vivenzio v. City of Syracuse, 611 F.3d 98, 105 (2d Cir. 2010), as authority for the proposition that certification can be granted on closely related claims. Vivenzio addressed the continued validity of a 1980 consent decree that governed the hiring of firefighters by the City of Syracuse. It therefore provides no support for certification of an appeal in this kind of action.

Finally, plaintiffs suggest that permitting the Second Circuit to rule on the dismissed claims may increase the possibility of settlement in this case. Such an argument could be made in many cases in which there has been a partial grant of summary judgment, and does not provide a basis to enter a partial judgment here.

CONCLUSION

Defendants' January 17, 2014 motion for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), is denied. Plaintiffs' January 13, 2014 motion for entry of a partial judgment pursuant to Rule 54(b), Fed.R.Civ.P., is denied. The joint pretrial order remains due on February 14, 2014.

SO ORDERED:


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