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Milo v. City of New York

United States District Court, E.D. New York

November 14, 2014

SABRINA MILO, Plaintiff,
THE CITY OF NEW YORK and Police Officer GREG E. EVERT, Defendants

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[Copyrighted Material Omitted]

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For Sabrina Milo: Daniel I. Neveloff, New York, NY.

For The City of New York and Police Officer Greg E. Evert: Brian Jeremy Farrar, New York Law Dept., Corporation Counsel, New York, NY.

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Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction

II. Facts

III. Fed.R.Civ.P. 12(c) Judgment on the Pleadings Standard

IV. Law

A. Statute

B. Municipal Liability Standard

C. False Arrest and False Imprisonment Under Fourth Amendment Standard

D. Excessive Force Under Fourth Amendment Standard

1. De Minimis Injuries

2. Verbal Harassment

E. Free Speech Under First Amendment Standard

1. Clear and Present Danger

2. Regulation of Speech Inside Schoolhouse Walls

F. Unconstitutional Confinement and Deliberate Indifference to Medical

Needs Under Due Process Clause of Fourteenth Amendment Standard

1. Components of Deliberate Indifference Rule

2. Parties That May Be Held Liable

V. Application of Law to Facts

A. Municipal Liability Claim

B. False Arrest and False Imprisonment Claims

C. Excessive Force Claim

D. Free Speech Claim

E. Unconstitutional Confinement and Deliberate Indifference to Medical

Needs Claim

VI. Conclusion

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I. Introduction

Frustrated by a critical letter from her assistant principal, Sabrina Milo, an art teacher at a public high school in Brooklyn, announced in the school's teachers' lounge: " [I]f I had a trench coat and a shotgun, it would be Columbine all over again." The reference to Columbine evoked memories of a terrorist gun attack on young students that left twelve students and one teacher dead, and twenty-one wounded. Her statement was a modem analogue to that of Justice Oliver Wendell Holmes Jr.'s illustration of what was beyond the pale: shouting fire in a theater.

Upset, three days later three teachers filed written descriptions of the incident. One of them wrote that when she asked Milo to retract her statement, the response was: " Don't worry, I won't get you."

The three eyewitness statements were provided to police. Milo was arrested. Probable cause existed to arrest her for a violation of New York Penal Law section 490.20, defining a terrorist threat.

Prosecutorial investigation quickly revealed that plaintiff lacked the requisite mens rea --there was no intent to do harm. Exercising common sense, authorities quickly released Milo on bail and then dismissed all charges.

On the undisputed facts, defendants' motion to dismiss is granted with respect to plaintiff's Monell claim against the City and her free speech, false arrest, and false imprisonment claims against the one named officer.

Were it not for the three year statute of limitations applicable to claims brought pursuant to section 1983 of Title 42, what would remain open is plaintiff's claim that, while she was held at the police station and chained to a pole for nine hours, one or more police officers withheld all liquids from her after being informed that her medical condition--hypoglycemia--required continuous hydration. Even were she a terrorist, she had a right to humane imprisonment. The Constitution does not permit abusing municipal prisoners by deliberately denying them necessary medical relief, a violation of the due process clause of the Fourteenth Amendment.

Plaintiff, however, did not name as a defendant the officer or officers who had been informed of her medical need and then withheld the simple remedy--water. Nor did she name any person in charge of the precinct's operation or any officer who witnessed the incident and had a duty to intervene.

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Plaintiff seeks to amend the complaint. Because the three year statute of limitations has run, an amendment would be futile. Amendment is denied.

The case is dismissed.

II. Facts

Plaintiff started teaching art at Fort Hamilton High School (" Fort Hamilton" ) in 2001. Am. Compl. ¶ 12, Sept. 15, 2014, ECF No. 13-3. Ten years later, on March 29, 2011, during the noon lunch break, she entered the teachers' lounge shaking and crying. Id. ¶ ¶ 14, 17. She had just received a communication from the assistant principal informing her that she had made inappropriate comments to a student. Id. ¶ 14. Feeling unfairly targeted, she vented her exasperation to other teachers. Id. ¶ ¶ 15, 17. They included Gloria Mingione, Alan Zeitland, Johnny Rosero, Nanetta Lopinto, Kalli Zervos and Terry Papantonio. Id. ¶ 17.

Plaintiff told Mingione: " [I]f I had a trench coat and a shotgun, it would be Columbine [--a reference to the April 20, 1999 mass shooting of high school students at Columbine High School in Littleton, Colorado--] all over again." Id. ¶ 18 (emphasis added). Mingione cautioned: " [D]on't say that." Id. Plaintiff responded: " I'm sorry. I'm just so frustrated right now. This is how I feel." Id. Mingione shook her head, mouthing the word " no." Id.

Plaintiff then returned to her classroom. Id. ¶ 22. She worked two more days without incident. Id. ¶ ¶ 23-24.

On April 1, 2011, three days after the event, three teachers submitted statements describing the incident:

o Mingione wrote: On Tuesday, March 29, 2011, during lunch (7th period), Sabrina Milo was very upset and told me that she wanted to bring a machine gun under a trench coat to school. I said to her -- " Sabrina--don't say that[,]" to which she replied, " Oh, I'm serious-- it is going to be Columbine all over again."
Again, I repeated -- " You don't say that!" She said, " Don't worry, I won't get you."
o Rosero wrote: On Tuesday, March 29, 2011, during 7th period (approximately 12:30 p.m.), Sabrina Milo, Teacher of Art, was sitting at the table in the Teachers['] Lounge, room 319, and crying. Ms. Milo engaged Gloria Mingione in conversation regarding why she was upset and what she wanted to do about it. She said that she wanted to bring a machine gun and that it would be " Columbine all over again."
Ms. Mingione gave her three opportunities to retract the statement or amend it, but she did not, other than clarifying that she " wouldn't get" her (Ms. Mingione).
o Zeitlin wrote: While using the computer in the English lounge, Ms. Milo was speaking and used the phrase " come in in a trench coat ." It was at that point that I told her she should not say such a thing even in jest, because someone could get the wrong idea. This phrase is associated with causing violence in a school. I did not interpret this to be a threat, however, the statement is a troubling one.
When I said to her that she shouldn't joke about such things, she did not answer me so I believed she realized that she should not have made such a comment that she might " come in in a trench coat" one day.

Farrar Decl., Exs. B--D, Aug. 25, 2014, ECF No. 10 (emphasis added).

On the same morning that these teachers submitted their recollections, plaintiff was asked by her department supervisor

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to attend an unscheduled meeting in his office and to bring all of her belongings. Am. Compl. ¶ 25. Shortly after noon, four uniformed New York Police Department officers entered the department supervisor's office. Id. ¶ 26. Officer Greg E. Evert asked plaintiff if she was Sabrina Milo. Id. She responded: " Yes." Id. Evert then informed plaintiff that she was under arrest. Id. Plaintiff was handcuffed and escorted out of the school into a police van. Id. According to Milo, " [t]he handcuffs were secured tightly, but the police officers refused to loosen them despite [my] request [that they do so]." Id.

At the 68th precinct, plaintiff was allegedly handcuffed to a pole from 1:00 p.m. to 10:00 p.m. Id. ¶ ¶ 27-28. She was unhandcuffed to be processed, to use the restroom and to see her attorney. Id. ¶ 28. Plaintiff told at least one police officer that she suffered from hypoglycemia, a medical condition, and that she was required to drink large amounts of water. Id. ¶ 30. She was not provided with food or drink. Id. ¶ 29. Officers at the precinct mocked her, stating: " Why are you being a cry baby? You're a terrorist." Id. At one point, when she requested water, an officer asked if she had a dollar. Id. ¶ 30. When she answered " No," he reportedly said: " I guess you're not getting water then." Id.

Finally, acting on the advice of her attorney, plaintiff demanded that she be taken to a hospital. Id. ¶ 31. Without delay, Emergency Medical Services arrived at the precinct and took her to Lutheran Medical Center. Id. She was treated at the hospital while handcuffed. Id. ¶ 33. At 6:00 a.m., plaintiff was brought back to the 68th precinct. Id. ¶ 34.

At the precinct, unidentified police officers and staff held newspapers with plaintiff's photograph on the front page. Id. ¶ 36(a). Some allegedly pointed to these newspapers and then to plaintiff and laughed. Id.

Plaintiff was arraigned and charged with " Making a terroristic threat." Id. ¶ 36(b); N.Y. Penal Law § 490.20 (McKinney 2014). The first paragraph of New York Penal Law section 490.20 requires proof of intent to cause some form of criminal harm. The second paragraph provides that it is no defense that the defendant did not have the intent or capacity to commit the terroristic act threatened. It reads:

1. A person is guilty of making a terroristic threat when with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping, he or she threatens to commit or cause to be committed a specified offense [here of shooting to kill many ...

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