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Hays v. City of New York

United States District Court, S.D. New York

February 28, 2017

NADINE HAYS, Plaintiff,
CITY OF NEW YORK, et al., Defendants.


          JESSE M. FURMAN, United States District Judge:

         Plaintiff Nadine Hays, proceeding pro se, brings a veritable potpourri of civil rights claims against the City of New York (the “City”), officers of the New York City Police Department (“NYPD”), and other City officials arising principally out of her arrest for using an unauthorized sound amplification device on the anniversary of the Occupy Wall Street protests. Defendants who have been served and appeared now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Hays's claims in their entirety. (Docket No. 43). For the reasons stated below, Defendants' motion to dismiss is GRANTED, and the First Amended Complaint (the “Complaint”) is dismissed in its entirety.


         The following facts - which are taken from the Complaint, materials it incorporates (including a video of the primary incident at issue), and matters of which the Court may take judicial notice - are construed in the light most favorable to Hays. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011).[1]

         On September 17, 2013, the second anniversary of the Occupy Wall Street movement, Hays set up an “educational presentation” at Zuccotti Park in New York City. (Docket No. 34 ("First Am. Compl.") ¶¶ 26-30). She brought with her various materials, including “a portable amplification speaker and microphone, a plasma screen monitor, a deep cycle battery, an inverter, a computer, and a hand truck.” (Id. ¶¶ 27). A police officer approached Hays to ask her if she had a permit to use an amplification device, to which she responded: “Yes, it's called the First Amendment to the U.S. Constitution.” (Id. ¶ 31). According to Hays, she had case law with her showing that her actions were protected by the First Amendment and that no permit was necessary, but the police officers at the scene “refused to talk to [her]” or “listen to [her].” (Id. ¶¶ 33-34). When Officers Dennis Byrnes and Kino Cox from the Bronx Task Force arrived on the scene, they bound Hays's wrists with plastic zip-lock ties and took her into custody. (Id. ¶¶ 40, 44). Hays alleges that this caused her “excruciating pain, ” prompting her to “scream in agony” and “cry uncontrollably.” (Id. ¶¶ 40-42). The Officers also confiscated Hays's presentation materials and other personal possessions that she had with her at the time. (Id. ¶ 43). Hays was transported to the Manhattan Detention Complex, where Officers took her picture and fingerprints and charged her with operating a sound production device in a public area, refusing to move, and obstruction of governmental administration. (Id. ¶ 47, 63; id. Ex. 12 (“Charging Doc.”)). Thereafter, she was brought before a judge and released without bail. (First Am. Compl. ¶¶ 66-69).[2] After her release, Hays recovered her credit cards and driver's license from the police station and was given receipts for her other items. (Id. ¶¶ 72-74). When Hays tried to recover the rest of her property the next day, she was informed that it had been labeled “arrest evidence” and could not be returned until a later date. (Id. ¶¶ 80-81). She made a separate trip back to New York City (presumably from her home in California) to recover the remainder of her property, two items of which she alleges were lost or damaged. (Id. ¶ 82).

         The criminal charges against Hays were dropped in April 2014. (Id. ¶ 83). Later that same year, in advance of the third anniversary of the Occupy Wall Street protests, Hays applied for an amplification permit. (Id. ¶ 86). Detective Rick Lee first told her that she had been granted the permit, but when she went to the police station to pick it up she was told that her application had actually been denied. (Id.; id. Ex. 18). Hays brings a litany of claims arising from both incidents, including claims for false arrest and imprisonment, unlawful seizure, excessive force, unlawful conditions of confinement, violation of the First Amendment, conspiracy to interfere with her civil rights, and violations of privacy. Hays alleges that, as a result of her arrest and detention, she suffers from Post Traumatic Stress Disorder, short term memory loss, tangential thoughts, and panic attacks. (First Am. Compl. ¶¶ 22, 81, 102-104).


         In evaluating Defendants' motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all facts set forth in the Complaint as true and draw all reasonable inferences in Hays's favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully, ” id., and cannot rely on mere “labels and conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiff's pleadings “have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570. Finally, because Hays is proceeding pro se, her Complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Nonetheless, a pro se litigant must still state a plausible claim for relief. Put another way, the Court's duty to liberally construe a plaintiff's complaint is not the equivalent of a duty to re-write it.” Thomas v. N.Y. City Dep't of Educ., No. 15-CV-8934 (JMF), 2016 WL 4544066, at *2 (S.D.N.Y. Aug. 31, 2016) (internal quotation marks, citation, and alterations omitted).


         Hays brings at least twenty claims against the City and the individual Defendants. Count One is for false arrest and imprisonment; Count Two is for unlawful seizure; Count Three is for excessive force; Count Four is for unconstitutional policies, practices, and customs; Counts Five and Six are for negligent failure to train, supervise, and investigate; Count Seven is for violations of the First Amendment; Count Eight is for abuse of process and unequal protection of the law; Count Nine is for intentional and negligent infliction of emotional distress; Count Ten is for cruel and unusual conditions of confinement; Count Eleven is for fingerprinting, photographing, and iris scanning without a warrant; Count Twelve alleges the existence of an unconstitutional ordinance; Count Thirteen is for failure to discharge a mandatory duty; Count Fourteen is for trespass to chattels; Count Fifteen is for conspiracy to interfere with civil rights; Counts Sixteen and Nineteen are for defamation of character and false light; Counts Seventeen and Eighteen are for assault and battery; and Count Twenty is for failure to intervene. The Court will address the claims in turn, except insofar as multiple claims can be addressed together.

         A. False Arrest, False Imprisonment, and Similar Claims

         Hays's claims for false arrest, false imprisonment, and abuse of process turn on the propriety of her arrest. As a matter of law, those claims fail if there was probable cause to arrest and prosecute Hays for an offense. See, e.g., Betts v. Shearman, 751 F.3d 78, 81 (2d Cir. 2014). Probable cause to arrest exists if an arresting officer has actual “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.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). A court should consider the “totality of the circumstances” in evaluating whether the “facts available to the officer at the time of arrest” meet that bar. Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (internal quotation marks omitted). Significantly, it is enough that probable cause existed, and - at least for purposes of a false arrest claim - it is irrelevant “whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.” Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006); accord Figueroa v. Mazza, 825 F.3d 89, 99-100(2d Cir. 2016). Moreover, even in the absence of probable cause, a police officer is entitled to qualified immunity if the probable cause determination was objectively reasonable - that is, whether there was “arguable” probable cause to arrest. Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007).

         Hays alleges that the Officers lacked probable cause to arrest her because a document from the New York State Unified Court System states “not an arrest charge, [a]rraignment charge” with respect to two of the three charges brought against her: use of a sound amplification device without a permit and refusal to move. (First Am. Compl. ¶ 109; see Charging Doc.). That may be true, but it is irrelevant. By statute, violation of the sound amplification ordinance is punishable by fine, imprisonment, or both, see N.Y.C. Admin. Code § 10-108(j)(1), and a police officer may arrest a person for “any offense when he has probable cause to believe that such person has committed the offense in his presence, ” McMillan v. City of New York, No. 03-CV-626 (SLT) (LB), 2009 WL 261478, at *8 (E.D.N.Y. Feb. 4, 2009) (internal quotation marks and alteration omitted); see also N.Y. Penal Law § 10.00 (defining “offense” as “conduct for which a sentence to a term of imprisonment or to a fine is provided by . . . local law or ordinance.”). Regardless, the third charge (which was labelled “arrest charge” on the charging document) was for “Obstruction of Governmental Administration, ” in violation of Section 195.05 of the New York Penal Law. (Charging Doc.). And there was plainly probable cause (and certainly arguable probable cause) for the Officers to arrest Hays for that offense after she made it clear to them that she did not have the permit for sound amplification, as required by the City ordinance, and continued to use her portable speaker and microphone after the Officers directed her to cease and desist. (First Am. Compl. ¶¶ 32-35; Defs.' Mem. Ex. C, at 00:50-06:31). In short, because there was probable cause to arrest Hays, her false arrest, false imprisonment, and abuse of process claims are dismissed.

         To the extent that Hays's other claims - including her claims for unlawful seizure and warrantless fingerprinting, photographing, and iris scanning (First Am. Compl. ¶¶ 116-19, 125, 213-219) - are premised on seizure of her person (rather than her property), they fail for the same reasons. See, e.g., Jackson v. City of New York, 29 F.Supp.3d 161, 178-79 (E.D.N.Y. 2014) (considering claims for false arrest, false imprisonment, and seizure of the person together). Additionally, it is well established that “the Fourth Amendment allows police to take certain routine administrative steps incident to arrest - i.e., booking, photographing, and fingerprinting.” Maryland v. King, 133 S.Ct. 1958, 1977 (2013) (internal quotation marks and alterations omitted); see also N.Y. Crim. Pro. Law § 160.10(1) (mandating that a person arrested for a felony or a misdemeanor be fingerprinted). The Court need not address whether iris scanning qualifies as such a “routine administrative step[]” ...

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