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Soliman v. City of New York

United States District Court, E.D. New York

March 31, 2017



          PAMELA K. CHEN, United States District Judge

         Plaintiffs Mervat and Mohammed Soliman filed this action pursuant to 42 U.S.C. § 1983 and New York common law seeking damages and injunctive relief based on their arrests and prosecutions, and Mervat's post-arrest detention, all arising from an altercation with their neighbors in January 2015. Plaintiffs allege that Defendant Jared Ock, a New York City Police Department (“NYPD”) officer, violated their civil rights by arresting them and initiating a criminal prosecution against them without probable cause. Mervat further alleges that her rights were violated when she was subjected to excessive force and other mistreatment during her post-arrest detention. Finally, Mervat asserts that her rights under the New York and U.S. Constitutions to freely exercise her religion were violated when her Hijab was removed on the scene of the arrest, and NYPD officers required her to remove her Hijab during post-arrest booking.

         Defendants have not filed an answer to Plaintiffs' complaint, and no discovery has been taken in this case. In lieu of filing a proposed case management plan, the parties submitted a joint letter requesting that any initial pre-trial conference be held in abeyance until after briefing concluded on a motion by Defendants to dismiss the complaint and for summary judgment. (Dkt. 11.) The parties requested this postponement “[b]ecause a decision on [Defendants'] motion may dispose of all or some of the claims in this matter.” (Dkt. 11.) The motion in question- which is styled as a motion to dismiss and for summary judgment-is now ripe for review. For the reasons stated herein, Defendants' motion is GRANTED in part and DENIED in part. The parties shall submit a proposed joint scheduling order no later than April 14, 2017. Among other things, the joint discovery and pre-trial motions scheduling order should specify a deadline by which Plaintiffs will move for leave to amend the complaint, if any such motion is anticipated.

         I. Background [1]

         On January 7, 2015, Plaintiff Mervat Soliman and her son, Plaintiff Mohammed Soliman, had an altercation with their neighbor, non-party Faith Harrison, concerning a curbside parking spot outside their adjacent homes in Ridgewood, New York. (PCS ¶¶ 13-42; DCS ¶¶ 12-28.) Plaintiffs allege, and Defendants have not rebutted, that the altercation began when Harrison made threatening statements toward, and made physical contact with, Plaintiff Mervat. (PCS ¶¶ 13-42.) The details of the altercation are disputed in many respects, but Plaintiffs and Defendants agree that rude gestures and offensive language were exchanged. (PCS ¶¶ 13-42; DCS ¶¶ 12-28.)

         At some point, Harrison's thirteen-year-old daughter (“S.V.”) began using her cellphone to videotape the interaction. (DCS ¶ 11; DCS, Ex. G (Video Recorded by S.V.).) Defendants have submitted the videotape as an exhibit to their motion, and Plaintiffs appear to concede its authenticity. When the videotape begins, Harrison is sitting in the driver's seat of a vehicle parked along the curb on the same side of the street as the camera, and Plaintiffs are standing across the street. (DCS ¶ 14.) Plaintiffs then cross the street and begin standing outside the driver's side of Harrison's vehicle. (DCS ¶¶ 19-22; DCS, Ex. G.) Mohammed and Harrison exchange offensive language in loud voices, and then Mervat begins walking toward the camera. (DCS ¶¶ 15-23; DCS, Ex. G; PCS ¶¶ 32-33.) As she approaches the camera, Mervat turns her head toward the camera, and then, with her right hand, strikes at the person holding the camera (S.V.). (DCS, Ex. G.) At the same time, Mervat says something sounding like, “this is what you do” or “this is what you get, ” after which there are muffled cries or yelling that appear to be coming from S.V.[2](Id.) Before Mervat struck at S.V. with her right hand, the camera was stable, suggesting that S.V. had not moved prior to that moment. (Id.) After Mervat strikes at S.V., the camera moves around violently and does not depict the ensuing interaction between Mervat and S.V. (Id.) According to Plaintiffs, Mervat was thereafter struck in the head by S.V., causing Mervat to fall to the ground. (DCS ¶ 43.)

         The NYPD received several reports concerning the altercation between Plaintiffs, Harris, and S.V., including a report from an unidentified source who said that a group of people were fighting outside Plaintiffs' residence. (DCS ¶ 6.) The NYPD also received a report from Harris, who stated that her daughter had been assaulted by two people. (DCS ¶¶ 4-7.)

         Two police units arrived at the scene of the altercation within a few minutes of Harris's call. (DCS ¶ 8.) The police officers, including Defendant Jared Ock, questioned Plaintiffs, Harris, and S.V. about what had transpired between them. (DCS ¶ 10; PCS ¶¶ 44-45.) Mohammed gave the officers his account of his altercation with Harris and S.V. (PCS ¶ 45.) Harris and S.V. gave their own accounts of the altercation, which included a statement that S.V. had been punched in the face by both Mervant and Mohammed. (DCS, Ex. F, at ¶ 195.) Harris and S.V. also allowed the officers to view the video S.V. had recorded of the incident on her cellphone. (PCS ¶ 11.) The officers did not receive an account from Mervat at that time because, by the time the police arrived on the scene, Mervat was lying on the ground, unconscious, having allegedly been struck in the head by S.V. (PCS ¶ 44.)

         After speaking with Mohammed, Harris, and S.V., the police officers decided to arrest Mohammed and Mervat. (PCS ¶¶ 60-61, 69.) Defendant Ock placed Mohammed under arrest and transported him to the NYPD's 104th Precinct, where he was searched, fingerprinted, photographed, and placed in a holding cell. (PCS ¶¶ 60-61.)

         Mervat was not transported directly to the 104th Precinct. Instead, she was placed in an ambulance, where she regained consciousness. (DCS ¶¶ 44-45.) Before being placed in the ambulance, Mervat was wearing a Hijab, a Muslim headscarf. (PCS ¶ 64.) But when she regained consciousness in the ambulance, Mervat discovered that she had been handcuffed and that her headscarf was no longer on her head. (DCS ¶ 47.) In the ambulance, paramedics applied an oxygen mask to Mervat and performed chest compressions. (DCS ¶ 48.) The officers escorting Mervat commented to the effect that she was faking her injuries and that she was a criminal. (PCS ¶ 68.) The ambulance delivered Mervat to a hospital. (PCS ¶ 69.)

         Mervat was in the hospital for several hours, during which she remained handcuffed at all times. (PCS ¶¶ 72, 84.) Mervat underwent diagnostic testing, including an electrocardiogram and a CAT scan, and was treated for headaches, neck pain, and left shoulder pain resulting from her interaction with S.V. (PCS ¶ 75.) The testing resulted in a finding of headaches, dizziness, and fainting, in addition to a “fall trauma” that was observed upon Mervat's admission. (PCS ¶ 76.) At some point, Mervat received a pillowcase from a nurse, which Mervat used to cover her hair, in lieu of a headscarf. (PCS ¶ 71.)

         Sometime thereafter, while still at the hospital, Mervat asked the escorting officer whether she could use the restroom. (PCS ¶ 78.) The officer refused Mervat's request, and Mervat was not permitted to use the restroom for several hours. (PCS ¶ 79.) The officer finally allowed Mervat to use the restroom in response to pleading by hospital staff, but he refused to allow Mervat to completely shut the door to the restroom. (PCS ¶ 79.) After Mervat had begun to use the restroom, the officer began banging on the door. (PCS ¶ 81.) The officers (all male) then demanded that a nurse immediately enter the restroom and pull Mervat out. (PCS ¶ 82.) Complying with the officers' instructions, the nurse barged into the restroom, unannounced, while Mervat's pants were down, and instructed Mervat to leave the restroom. (PCS ¶ 82.) Mervat felt “violated and exposed.” (PCS ¶ 83.)

         Later that evening, Mervat was discharged from the hospital and taken by the escorting officers to the NYPD's 104th Precinct. (PCS ¶ 84.) Upon arriving at the precinct, Mervat was directed to remove her jacket, her blouse, and the pillowcase that was covering her hair. (PCS ¶ 87.) Mervat was then placed in a jail cell for several hours without food, heat or her “veil”.[3](PCS ¶ 88.) Mervat requested, but was refused, pain killers for the pain she was experiencing in her chest, neck, and feet. (PCS ¶ 89.) Sometime after midnight, Mervat informed an officer that she did not feel well, that her chest felt tight, and that she could not breathe. (PCS ¶ 91.) The officer called her a fake and a liar, and attempted to shove Mervat toward the cell. (PCS ¶ 92.) Mervat fainted, and then she was escorted by Defendant Ock in shackles back to the hospital where she was treated the day before. (PCS ¶ 93.) Mervat was treated for dizziness and nausea, and then she was taken to the NYPD's central booking facility for processing. (PCS ¶¶ 95-96.)

         During the booking process, Mervat was forced to remove her head covering. (PCS ¶ 96.)[4]When it came time for Mervat's photograph to be taken, Mervat requested that her photograph be taken by a female photographer. (PCS ¶ 97.) Mervat's request for a female photographer was denied, and her photograph was taken by a man in the presence of several other men. (PCS ¶ 97.) Mervat then asked for a translator and an opportunity to call her family, but those requests were denied. (PCS ¶ 98.)

         Plaintiffs Mohammed and Mervat were both arraigned on January 8, 2015, on charges of Assault in the Third Degree (N.Y. Penal Law § 120.00-1), Endangering the Welfare of a Child (N.Y. Penal Law § 260.10-1), and Harassment in the Second Degree (N.Y. Penal Law § 240.26-1). (PCS ¶ 99.) On February 19, 2015, the district attorney added a charge of Penal Law 240.20 Disorderly Conduct. (PCS ¶ 100.) Plaintiffs then reached an agreement with the District Attorney's Office: In exchange for pleading guilty to the charge of Disorderly Conduct and completing two days of community service, Plaintiffs would receive an Adjournment in Contemplation of Dismissal (“ACD”) of the counts against them, along with a three-month protection order barring them from contact with S.V. (PCS ¶ 101.) Plaintiffs entered guilty pleas to the Disorderly Conduct charge, and thereafter completed their two days of community service. (PCS ¶ 102.) Upon Plaintiffs' completion of their community service, their guilty pleas were vacated and replaced with ACDs. (Id.)[5]

         On March 2, 2015-almost two months after Plaintiffs were arraigned-the NYPD issued Interim Order 29, which revised the NYPD protocols for dealing with “arrestees who refuse to remove their religious head covering for an official Department photograph.” (PCS, Ex. DD, at 1.) The Interim Order established a procedure whereby “an arrestee can remove their religious head covering and have their photograph taken in private.” (Id.) The order distinguished between two types of photographs taken of an arrestee during the booking and detention process: (1) a Department photograph, which must be taken with “an unobstructed view of the arrestee's head, ears and face”; and (2) a Prisoner Movement Slip photograph, which “may be taken while the arrestee wears their religious head covering.” (Id.) For the Department photograph, the Interim Order further provided that, if an arrestee refuses to remove her head covering, the arresting officer shall inform the arrestee of the option to have a photograph taken in private by officers of the same gender. (Id.) If the arrestee elects that option, the arresting officer must then transport the arrestee to the NYPD's centralized Mass. Arrest Processing Center, “where the arrestee will have an official Department picture taken without their religious head covering” by an officer of the same gender. (Id.)

         II. Plaintiffs' Claims

         Plaintiffs commenced this action on September 14, 2015. They allege the following causes of action under 42 U.S.C. § 1983: (i) deprivation of Plaintiff Mervat's constitutional right to freely exercise her religion (Compl. ¶¶ 81-91); (ii) false arrest of both Plaintiffs (Compl. ¶¶ 92-95); (iii) malicious prosecution of both Plaintiffs (Compl. ¶¶ 96-105); (iv) failure to intervene to prevent violations of Plaintiffs' rights (Compl. ¶¶ 106-112); and (v) excessive force as to both Plaintiffs.

         Plaintiffs also assert the following causes of action under New York law: (i) false arrest (Compl. ¶¶ 121-26); (ii) false imprisonment (Compl. ¶¶ 127-32); (iii) assault (Compl. ¶¶ 133-36); (iv) battery (Compl. ¶¶ 137-41); (v) religious discrimination as to Plaintiff Mervat (Compl. ¶¶ 142-45); (vi) intentional infliction of emotional distress (Compl. ¶¶ 146-52); (vii) negligent infliction of emotional distress (Compl. ¶¶ 153-59); (viii) prima facie tort (Compl. ¶¶ 160-65); (ix) negligent hiring and retention (Compl. ¶¶ 166-70); and (x) negligent training and supervision (Compl. ¶¶ 171-74).

         All of Plaintiffs' claims except two-namely, their claims for negligent hiring and retention and for negligent training and supervision-are asserted against Defendant Ock. The negligent hiring, retention, training and supervision claims are asserted against the City of New York, acting through the NYPD. Plaintiff Mervat also appears to assert her free-exercise and religious discrimination claims against the City of New York, alleging that her rights to religious freedom were violated by Defendants' “practice” of requiring arrestees to remove their religious head coverings for their official Department photograph. (Compl. ¶ 86; see also Def.'s Br. 1 n.1 (construing Mervat's free-exercise claim as being asserted against the City of New York).)

         III. Defendants' Motion to Dismiss

         Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss the following claims: (i) Plaintiff Mervat's free exercise claim pursuant to 42 U.S.C. § 1983, (ii) Plaintiff Mervat's religious discrimination claim under New York law, (iii) Plaintiffs' claims of intentional infliction of emotional distress, (iv) Plaintiffs' claims of negligent infliction of emotional distress, (v) Plaintiffs' claims of prima facie tort, and (vi) Plaintiffs' claims of negligent hiring, retention, training, and supervision. Defendants also move to dismiss all claims asserted against the NYPD on the ground that the NYPD is a non-suable entity.

         A. Legal Standard

         To withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a complaint must plead facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The liberal notice pleading standard of Fed.R.Civ.P. 8(a) only requires that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 555. The complaint need not set forth “detailed factual allegations, ” but the plaintiff must present “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. In evaluating a 12(b)(6) motion to dismiss, the district court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006).

         B. Analysis

         1. Free Exercise of Religion

         In their submissions, the parties construe the Complaint as alleging two distinct theories of liability for violation of Plaintiff Mervat's right under the U.S. Constitution to freely exercise her religion. The first theory is that Mervat's free exercise rights were violated when her headscarf was removed at the scene of the altercation. The second theory is that Mervat's free exercise rights were violated when, during the booking process after her arrest, NYPD officers denied her request to be photographed outside the presence of male officers, and forced her to remove her headscarf and be photographed by a man in the presence of other men. (PCS ¶ 97.)

         a. Removal of Plaintiff Mervat's Headscarf at the Scene

         Mervat alleges that an unspecified police officer violated her right under the First Amendment to the U.S. Constitution to freely exercise her religion when the officer “removed her veil” before placing her into an ambulance at the scene. (Pls.' Br. 9-10.) Mervat contends that the removal of her veil, or headscarf, at the scene, while she was unconscious, gives rise to a claim of First Amendment retaliation. (Pls.' Br. 10.)

         To prevail on a First Amendment retaliation claim, a plaintiff must show that “(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment rights.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).

         Mervat has failed to plausibly allege a First Amendment retaliation claim based on the removal of her headscarf at the scene. Setting aside for the moment the question of whether Mervat's interest in wearing her headscarf in public is an interest protected by the First Amendment, the Court finds that Mervat has failed to plead any facts suggesting, first, that an officer of the NYPD removed Mervat's headscarf at the scene, and, second, that Mervat's headscarf was removed for a reason related to the religious significance of the headscarf. To the contrary, even reading all allegations in the light most favorable to Mervat, the Complaint alleges only that Mervat was wearing the headscarf before she became unconscious, and then was no longer wearing it when she regained consciousness in the ambulance. Even if the Court gives credence to Mervat's conclusory allegation that “a Police Officer removed [her] veil”-an allegation that Mervat makes notwithstanding the fact that she was unconscious when the removal allegedly occurred-nothing in the pleadings or record suggest that any such removal was motivated by religious considerations. The Court cannot make any plausible inferences about either the identity of the person who removed Mervat's headscarf or the person's motivation for doing so, especially when the alternative explanation-i.e., that either a police officer or an emergency medical technician removed Mervat's veil to examine her head for injuries-is so patently clear. In short, even reading the Complaint in the light most favorable to Mervat, the Court holds that she has not plausibly alleged that any officer of the NYPD deliberately removed her headscarf for any reason related to her religion. Mervat's First Amendment claim, based on this first theory, therefore fails.

         Furthermore, even if the Complaint adequately alleged a First Amendment claim based on this first theory, a civil action against the officer, if ever identified, would be barred by the doctrine of qualified immunity. “Under federal law, a police officer is entitled to qualified immunity where (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was ‘objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act.” Jenkins v. City of N.Y., 478 F.3d 76, 87 (2d Cir. 2007) (quotation omitted). Mervat does not cite a single authority holding that a police officer violates the First Amendment by removing the headscarf of an unconscious woman before placing her in an ambulance for emergency treatment and transportation to a hospital, even if the woman turns out to be an observant Muslim. The Court's research also turns up no such authority. Tellingly, Mervat does not even address whether qualified immunity applies to the removal of her headscarf at the scene. (Pls.' Br. 38.) Having neither been given, nor found, any legal authority suggesting that the removal of a headscarf in these circumstances would be a violation of the First Amendment, the Court grants Defendant Ock's motion to dismiss Mervat's First Amendment claim on the additional ground of qualified immunity.[6]

         b. Removal of Plaintiff Mervat's Headscarf During Booking

         Mervat alleges that her constitutional right to freely exercise her religion was violated by the NYPD's policies, practices, and procedures of requiring arrestees to remove head coverings for photographs taken during the post-arrest booking procedure. (Pls.' Br. 11-13.) On this ground, Mervat asserts a claim under Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978), for money damages against the City of New York based on the emotional and psychological harm that Mervat suffered as a result of being forced to remove her head covering for a photograph taken by a man in the presence of other men. (Compl. ¶¶ 81-91.)[7]

         To plead a Monell claim, a plaintiff must allege “(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Polo v. United States, 2016 WL 4132250, at *3 (E.D.N.Y. Aug. 3, 2016) (quoting Wray v. City of N.Y., 490 F.3d 189, 195 (2d Cir. 2007)). Mervat alleges that, prior to March 2, 2015, including during the timeframe of Mervat's arrest, the NYPD had an official policy and custom of requiring arrestees to remove their head coverings, without affording them any accommodation of their religious beliefs, such as a same-gender photographer or a private room. (Compl. ¶¶ 81-91.) Also before the Court is a copy of Interim Order 29, which revised the NYPD protocols for dealing with “arrestees who refuse to remove their religious head covering for an official Department photograph.” (PCS, Ex. DD, at 1.) Interim Order 29 corroborates Plaintiffs' allegations about the existence of a NYPD policy and custom at the time of Mervat's arrest that required arrestees to remove their head coverings, without affording them any accommodation based on their religious beliefs. The Court concludes that Plaintiffs have adequately pleaded a policy or custom.

         Now to the core question, namely, whether, at the time of Mervat's arrest, the NYPD practice of requiring require arrestees to remove their head coverings, either with or without affording them an accommodation based on their religious beliefs, constituted a violation of the U.S. Constitution. Mervat contends that the NYPD's policy of requiring all arrestees to remove head coverings for post-arrest photographs “is forbidden by the Constitution of the United States, ” irrespective of any accommodations the NYPD may make for arrestees who have religious beliefs related to their wearing of head coverings. (Pls.' Br. 11-12.) In other words, according to Mervat, requiring arrestees to remove their head coverings can never be constitutional. The Court disagrees.

         The Second Circuit has held that “[i]t is not a violation of the Free Exercise Clause to enforce a generally applicable rule, policy, or statute that burdens a religious practice, provided the burden is not the object of the law but merely the ‘incidental effect' of an otherwise valid neutral provision.” Seabrook v. City of N.Y., 210 F.3d 355, at *1 (2d Cir. Apr. 4, 2000) (Table). “Where the government seeks to enforce a law that is neutral and of general applicability, . . . it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices.” Fifth Ave. Presby. Church v. City of N.Y., 293 F.3d 570, 574 (2d Cir. 2002). As the Court can reasonably infer from Plaintiffs' submissions, even reading the record in the light most favorable to them, the policy and practice that Mervat challenges- i.e., requiring all arrestees to remove head coverings for post-arrest photographs-is a neutral policy of general applicability, regardless of an arrestee's religious beliefs.[8] Furthermore, the policy is reasonably related to the City's obvious and legitimate interest in having a photographic record of arrestees from which a later identification can be made. (Defs.' Br. 11-13 (citing Zargary v. City of N.Y., 607 F.Supp.2d 609, 610 (S.D.N.Y. 2009), aff'd, 412 F. App'x 339, 341-42 (2d Cir. 2011).) Thus, to the extent that Mervat's argument is that any policy requiring arrestees to remove their head coverings for arrest photos is unconstitutional, that argument fails, because the Court would need to know more about the policy to evaluate its constitutionality, namely, whether the policy, either on paper or in practice, allows or prohibits religious accommodations with respect to the removal requirement. In other words, as explained further below, the mere fact that the NYPD requires arrestees to remove their head coverings for arrest photographing is not itself unconstitutional, but the failure to offer a religious accommodation with respect to that removal may be.

         Mervat's fallback argument is that the NYPD's policy violated her free-exercise rights because the NYPD failed to provide reasonable accommodation to her religious beliefs that prohibited her from removing her head covering in public or in front of men. (Pls.' Br. 15-17.) While the case law is far from clear in this area, the Court finds that this claim survives a motion to dismiss.

         As discussed above, a neutral and generally applicable policy that only incidentally burdens a religious practice need only be supported by a rational basis. Seabrook, 210 F.3d 355, at *1; Fifth Ave. Presby. Church, 293 F.3d at 574. Defendants argue that the NYPD's policy of requiring all arrestees to remove their head coverings for arrest photographs meets that standard because it is a neutral and generally applicable policy that has a rational basis, i.e., the need to visually record arrestees' appearances for potential identification in the future. (Defs.' Br. 11-13; see also Zagary, 607 F.Supp.2d at 610, aff'd, 412 F. App'x 339, 341-42 (2d Cir. 2011).) But Defendants do not address Plaintiffs' more subtle, fallback argument, i.e., that the NYPD's pre-March 2, 2015 policy of no religious accommodation with respect to arrest photographing lacked a rational basis. (See Defs.' Br. 11-13; Defs.' Reply Br. 5-6.)

         In addressing this narrower challenge to the NYPD's policy, the Court finds guidance in the body of caselaw addressing free-exercise claims brought by prisoners seeking accommodation of their religious practices in the penological context.[9] That caselaw establishes a useful framework for determining whether the NYPD must ...

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