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Brown v. City of New York

United States District Court, S.D. New York

June 18, 2014

IMANI BROWN, Plaintiff,
CITY OF NEW YORK, et al., Defendants.



On February 13, 2013, plaintiff initiated this action against defendants the City of New York and police officers Justin Naimoli and Theodore Plevritis, alleging several violations of plaintiffs constitutional rights in connection with her arrest in November 2011. Now before the Court is defendants' motion for summary judgment. (ECF No. 34.) For the reasons set forth below, defendants' motion is GRANTED.


A. Factual Background

The following facts are undisputed unless stated otherwise.

1. Events prior to plaintiffs arrest

On November 15, 2011, plaintiff was with friends when one of them received a text message stating that Occupy Wall Street ("Occupy") was being evicted from Zuccotti Park. (Defs.' Local Rule 56.1 Stmt. of Undisputed Fact ("Defs.' 56.1") ¶¶ 1, 2, ECF No. 35; Pl.'s Resp. to Defs.' Local Rule 56.1 Stmt. ("Pl.'s 56.1") ¶¶ 1, 2, ECF No. 52.) Plaintiff went to Zuccotti Park to witness the events and arrived at approximately 2:00 a.m. (Defs.' 56.1 ¶¶ 4-6, Pl.'s 56.1 ¶¶ 4-6.) At approximately 5:00 a.m., plaintiff left the area around Zuccotti Park with a friend, Johnny Sagan, so that plaintiff could find a bathroom. (Defs.' 56.1 ¶ 8, Pl.'s 56.1 ¶ 8.)

Plaintiff saw a light on at a nearby Starbucks. (Defs' 56.1 ¶ 9; Pl.'s 56.1 ¶ 9.) She approached the Starbucks and knocked on the door and, using an elevated voice, gestured to herself and to an employee inside. (Defs.' 56.1 ¶¶ 11, 14; Pl.'s 56.1 ¶¶ 11, 14.) Sagan described plaintiff as "banging on the door asking them to use their discretion and let her go to the bathroom." (Defs.' 56.1 ¶ 71; Pl.'s 56.1 ¶ 71.) A female employee approached the door, opened it, and told plaintiff that the store was closed; she then walked away. (Defs.' 56.1 ¶ 12; Pl.'s 56.1 ¶ 12.) After bringing Starbucks employees to the door twice, plaintiff decided to wait for the store to open. (Defs.' 56.1 ¶¶ 10-16; Pl.'s 56.1 ¶¶ 10-16.) At least one other individual, in addition to plaintiff and Sagan, arrived in front of the Starbucks and waited with plaintiff. (Defs.' 56. ¶¶ 17, 18, 48; Pl.'s 56.1 ¶¶ 11, 18, 48.)

At 5:05 a.m., the assistant manager of the Starbucks, Ismael Torres, called 911; he stated that he had "some people knocking on the door really really bad trying to get in the store to use the bathroom-and they like-you know, making nasty comments. And I can't op-open like this." (Defs.' 56.1 ¶¶ 20-22; Pl.'s 56.1 ¶¶ 20-22.)[1] Plaintiff did not see anyone else knocking on the door to the Starbucks. (Defs.' 56.1 ¶ 19; Pl's 56.1 ¶ 19.)

The dispatcher relaying the 911 call informed defendants Naimoli and Plevritis ("the officers") that there were "six people banging on the doors refusing to leave at Starbucks Coffee"; the dispatcher did not specifically identify or name plaintiff or another individual. (Defs.' 56.1 ¶ 29; Pl.'s 56.1 ¶¶ 29, 91, 92; Defs.' Reply Rule 56.1 Stmt. of Undisputed Fact ("Defs.' Reply 56.1") ¶¶ 91, 92.) The officers arrived at the Starbucks at approximately 5:10. (Defs.' 56.1 ¶¶ 30, 34; Pl.'s 56.1 ¶¶ 30, 34.) At least three people were standing outside the Starbucks. (Defs.' 56.1 ¶ 35; Pl.'s 56.1 ¶ 35.)[2] At the time that the officers arrived, they did not see anyone banging on the doors; the parties dispute whether the officers saw plaintiff yelling at the Starbucks employee. (Pl.'s 56.1 ¶¶ 93-95; Defs.' Reply 56.1 ¶¶ 93-95.)

The officers requested that the dispatcher call Torres back for additional information. (Defs.' 56.1 ¶ 31; Pl.'s 56.1 ¶ 31.)[3] At 5:12, Torres informed the dispatcher that he had just spoken to the police. (Defs.' 56.1 ¶¶ 32, 33; Pl.'s 56.1 ¶¶ 32, 33.)

2. Plaintiff's arrest

Plaintiff approached the officers and asked where she could use a bathroom; the officers did not direct her to a bathroom, and directed plaintiff to leave the area and to "go home." (Defs.' 56.1 ¶¶ 45, 46; Pl.'s 56.1 ¶¶ 45, 46; Deel. of Andrew Lucas in Supp. of Defs.' Mot. for Summ. J. ("Lucas Deel.") Ex. B, at 32:12-19, 34:17-20, Ex. F, at 43:8-13, ECF No. 36.)[4] Plaintiff told the officers that she could not go home and refused to leave the area. (Defs.' 56.1 ¶¶ 47, 52; Pl.'s 56.1 ¶¶ 47, 52; Lucas Deel. Ex. F, at 43:17-22.) In a subsequent online chat, plaintiff stated that she "refused to move." (Supp. Deel. of Andrew Lucas ("Lucas Supp. Deel.") Ex. 1, ECF No. 57.)

The officers exited the car, informed plaintiff that Starbucks had called them, and asked for her identification, which she declined to provide. (Defs.' 56.1 ¶¶ 49-51; Pl.'s 56.1 ¶¶ 49-51.) The officers told plaintiff that they were going to place her under arrest and send her to jail. (Defs.' 56.1 ¶ 53; Pl.'s 56.1 ¶ 53.) They then grabbed her arm to place her under arrest. (Defs.' 56.1 ¶ 54; Pl.'s 56.1 ¶ 54.) Plaintiff did not voluntarily place her hands behind her back or otherwise offer her arms to be handcuffed. (Defs.' 56.1 ¶ 55; Pl.'s 56.1 ¶ 55.)

In the process of arresting plaintiff, the officers asked her to stop resisting them at least four times. (Defs.' 56.1 ¶ 56; Pl.'s 56.1 ¶ 56.) Sagan said, "Please don't put her on the floor, just please let her go." (Id.) Plevritis replied, "No, she's under arrest, " then said, "Stop moving your arms, stop resisting, miss, stop resisting. Miss, stop resisting. All right, you're going to the ground now." (Id.)[5] The officers took plaintiff to the ground. (Defs.' 56.1 ¶ 57; Pl.'s 56.1 ¶ 57.) After being taken to the ground, plaintiff did not offer her arms; she was afraid that the contents of her purse had been scattered, and she was trying to keep her phone and wallet from being lost. (Defs.' 56.1 ¶ 62; Pl.'s 56.1 ¶ 62.) After taking plaintiff to the ground, plaintiff continued to resist; the officers told plaintiff to stop resisting 14 times, to "stop it" five times, and to give over her hands. (Defs.' 56.1 ¶¶ 64-66; Pl.'s 56.1 ¶¶ 64-66; Lucas Deel. Ex. M.) According to plaintiff, witnesses made several statements that plaintiff was not resisting. (Pl.'s 56.1 ¶¶ 64, 65, 72.) In the aforementioned online chat, plaintiff stated that she "resisted arrest." (Supp. Deel. of Andrew Lucas ("Lucas Supp. Deel.") Ex. 1, ECF No. 57.)

One of the officers said to plaintiff, "Give us your hands or you're going to get pepper-sprayed right now." (Defs.' 56.1 ¶ 67; Pl.'s 56.1 ¶ 67.) One of the officers then pepper-sprayed plaintiff for approximately one second. (Defs.' 56.1 ¶ 69; Pl.'s 56.1 ¶ 69.) Plaintiff continued to resist; the officers told plaintiff multiple times to stop resisting and to place her hands behind her back. (Defs.' 56.1 ¶ 72; Pl.'s 56.1 ¶ 72; Lucas Deel. Ex. M.) Plaintiffs skirt had come up, and she attempted to pull her skirt down. (Defs.' 56.1 ¶73; Pl.'s 56.1 ¶73.) Officer Plevritis said to plaintiff, "You're going to get it again, you're going to get it again." (Defs.' 56.1 ¶74; Pl.'s 56.1 ¶ 74.) Plaintiff testified that she was warned that she would be pepper-sprayed a second time if she did not surrender her hands. (Defs.' 56.1 ¶ 75; Pl.'s 56.1 ¶75; Lucas Deel. Ex. F, at 54:21-24.) After pepper-spraying plaintiff a second time, the officers told plaintiffs to put her hands behind her back multiple times and to stop resisting. (Defs.' 56.1 ¶ 77; Pl.'s 56.1 ¶77.)[6]

After continuing to resist for approximately 20 seconds, plaintiff offered her arms to be handcuffed and allowed herself to be arrested in order to "regain [her] dignity and move on out of this current situation." (Defs.' 56.1 ¶78; Pl.'s 56.1 ¶78; Lucas Deel. Ex. F, at 56:01-10.) Plaintiff was in physical pain and did not want to be pepper-sprayed again. (Defs.' 56.1 ¶78; Pl.'s 56.1 ¶78.) After plaintiff was handcuffed, while she was kneeling on the ground with the officers holding her, she asked them to please pull her skirt down so before they lifted her up so that her lower body would not be completely exposed; Plevritis said, "No, " and the officers pulled plaintiff to her feet. (Pl.'s 56.1 ¶ 149; Defs.' Reply 56.1 ¶ 149; Lucas Deel. Ex. M.) The officers then placed plaintiff in the police car and transported her to the First Precinct. (Defs.' 56.1 ¶ 84; Pl.'s 56.1 ¶¶ 84, 150; Defs.' Reply 56.1 ¶ 150.)[7]

3. Plaintiff's charges

Plaintiff was ultimately arraigned on two charges: resisting arrest under New York Penal Law § 205.30 and disorderly conduct under New York Penal Law § 240.20(1) and (3). (Defs.' ...

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