Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Holmes v. City of New York

United States District Court, S.D. New York

February 8, 2017

THE CITY OF NEW YORK, et al., Defendants.


          LAURATAYLORSWAIN, United States District Judge

         On March 4, 2016, this Court issued a Memorandum Opinion and Order (docket entry no. 76 (the “March Opinion”)) granting Defendants' motion to dismiss certain of Plaintiff's claims in this Section 1983 action arising out of Plaintiff's arrest during Occupy Wall Street demonstrations. In the March Opinion, Plaintiff granted permission to move for leave to amend her Complaint to add facts relating to her claim for malicious prosecution as to the charge of obstruction of governmental administration. Plaintiff has moved for partial reconsideration of the March Opinion, as to this Court's dismissal of her claim for excessive force, and has moved for leave to file a Second Amended Complaint that contains additional facts relating to her malicious prosecution claim. (See docket entry nos. 78 & 80.) Separately, Plaintiff has objected to an Order by Magistrate Judge Ellis relating to a discovery dispute between the parties (docket entry no. 108), and to an Order by Magistrate Judge Ellis denying a request to compel production of certain video footage (docket entry no. 114). The Court has carefully considered the parties' submissions as to both motions and both objections, and for the reasons that follow, Plaintiff's motion for reconsideration is denied, her motion for leave to amend is denied, and her objections Holmes - Reconsider, Amend, Objs.wpd Version February 8, 2017 1 to Judge Ellis' orders are overruled.


         The following recitation of facts is limited to those relevant to the two claims at issue here; the underlying facts of this case are set forth in the March Opinion. See Holmes v. City of New York, No. 14 CV 5253, 2016 WL 915332, at *1-2 (S.D.N.Y. Mar. 4, 2016).

         As to Plaintiff's claim for excessive force, Plaintiff alleges in the operative Amended Complaint (docket entry no. 13 (“AC”)) that she was “roughly [taken] down to the ground” and then placed in handcuffs, and that Plaintiff “complained about the excessive and painful tightness of her handcuffs.” (AC ¶¶ 26-29.) Plaintiff also alleges that the two male NYPD officers who arrested her were larger and stronger than she was. (AC ¶ 71.) The Amended Complaint contains no allegations that Plaintiff suffered any particular physical injury as a result, nor does Plaintiff provide medical records documenting treatment for any injury.

         As to Plaintiff's claim for malicious prosecution, Plaintiff's Proposed Second Amended Complaint (docket entry no. 81, Ex. 1 (“PSAC”)) adds the following allegation:

Plaintiff had to appear in Criminal Court, on pain of the issuance of a bench warrant should she have failed to appear, relating to the charge of Obstruction of Governmental Administration on five occasions following her arraignment: on November 14, 2011, on January 23, 2012, on February 17, 2012, on March 23, 2012, and on April 16, 2012.

(PSAC ¶ 73.) When Plaintiff was charged with Obstruction of Governmental Administration, she was simultaneously charged with disorderly conduct and resisting arrest; the latter two charges were ultimately dismissed by way of adjournment in contemplation of dismissal. (PSAC ¶ 74.)


         Motion for Reconsideration

         “A motion for reconsideration is governed by Local Civil Rule 6.3. In deciding a motion for reconsideration pursuant to Local Civil Rule 6.3 . . . [t]he moving party is required to demonstrate that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motion.” See Weber v. Multimedia Entertainment, Inc., No. 97 CV 682, 2000 WL 724003, at *1 (S.D.N.Y. June 5, 2000); see also Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.”). Ultimately, the decision as to whether or not to grant a motion for reconsideration is entrusted to the district court's sound discretion. See, e.g., Devlin v. Trans. Commcn's Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999).

         Plaintiff's motion for reconsideration states only a disagreement with this Court's conclusions in the March Opinion, and identifies no controlling decision or material fact that was overlooked. Plaintiff's motion highlights two facts not specifically noted in the March Opinion, but neither is material to the question of whether Plaintiff adequately stated a claim for excessive force. First, Plaintiff notes that the NYPD officers who brought her to the ground and arrested her were allegedly larger and stronger than she was; second, Plaintiff alleges that she did not resist arrest. Both of these facts were before the Court and were considered in the prior motion practice, and do not alter the analysis.[1]

         Plaintiff “did not allege any physical injuries, ” Higginbotham v. City of New York, 105 F.Supp.3d 369, 377 (S.D.N.Y. 2015), and thus - notwithstanding the size of the arresting officers or Plaintiff's own lack of resistance - she does not state an actionable constitutional claim for excessive force. See, e.g., Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (“[N]ot every malevolent touch . . .gives rise to a federal cause of action. . . . [A] ‘push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim.”). Plaintiff relies on dicta in Amnesty America v. Town of West Hartford, 361 F.3d 113 (2004), to argue that actual injury is not required by the Second Circuit in excessive force cases. In that case, however, plaintiffs alleged significant actual injury - “lasting damage . . . a second-degree burn . . . ramming [plaintiff's] head into a wall at a high speed.” Id. at 123. The decision in Amnesty America therefore cannot be read to support the proposition that no allegation of discernible injury is necessary to bring an excessive force claim, and therefore does not provide a basis for reconsideration of this Court's prior decision on this issue. Plaintiff's motion for reconsideration is therefore denied.

         Motion for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.