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J.H. v. Bratton

United States District Court, E.D. New York

March 31, 2017

J.H., Plaintiffs,
v.
WILLIM J. BRATTON, in his official capacity as Commissioner of the New York City Police Department “NYPD”, the New York City Police Department, THE CITY OF NEW YORK and THE CITY OF NEW YORK POLICE DEPARTMENT, NEW YORK CITY POLICE OFFICERS “John Does 1-10”, and SUPERVISORY, TRAINING AND POLICY PERSONNEL Jane/John Does 10-20, Defendants.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, United States District Judge.

         Plaintiff J.H., a Muslim woman, brought this action alleging that her rights under the U.S. and New York Constitutions to freely exercise her religion were violated when the New York Police Department (“NYPD”) compelled her to remove her religious headscarf during the taking of an official Department photograph as part of post-arrest processing. Defendants have moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim on which relief can be granted. (Dkt. 11.) For the reasons stated herein, Defendants' motion is GRANTED in part and DENIED in part.

         BACKGROUND[1]

         I. NYPD INTERIM ORDER 29

         On March 2, 2015, in response to ongoing civil rights litigation, the NYPD issued an interim order-Interim Order 29-to establish new protocols for taking post-arrest photographs of arrestees who refuse to remove religious head coverings in the presence of NYPD officers for religious reasons. (Dkt 1 (“Compl.”) ¶¶ 49-53; Compl., Ex. A.) In relevant part, Interim Order 29 states that an arrestee must be informed that he or she will be required to remove any head covering, including any religious head covering, during the taking of an official Department photograph as part of the NYPD's post-arrest procedures. (Compl., Ex. A.) Interim Order 29 further provides that, in the event an arrestee refuses to remove his or her religious head covering, the officer seeking to administer the photograph must inform the arrestee that he or she is required to remove the head covering, but may do so in another NYPD facility outside the presence of officers of the opposite gender. (Id.) The officer must also inform the arrestee that electing to have the photograph taken in private at another location could cause a delay in the processing of his/her arrest. (Id.)

         If an arrestee elects to have his or her photograph taken in private, the officer seeking to administer the official Department photograph must notify a central authority within the NYPD of the gender of the arrestee, so that arrangements can be made to photograph the person outside the presence of officers of the opposite gender. (Compl., Ex. A.) The officer seeking to administer the official Department photograph is then required to transport the arrestee to the NYPD's Mass. Arrest Processing Center (“MAPC”) between the hours of 8:00 a.m. and midnight, where the arrestee's official Department photograph will be taken, without a head covering and outside the presence of officers of the opposite gender. (Id.)

         II. PLAINTIFF'S ARREST

         On September 12, 2015, approximately six months after the NYPD issued Interim Order 29, Plaintiff, a Muslim woman, was asked to report to the NYPD's 71st precinct in Brooklyn, New York. (Compl. ¶ 21.) When she arrived, she was placed under arrest. (Id. ¶ 22.) Plaintiff was wearing a veil, [2] which is part of her religious practice, and she was permitted to keep wearing the veil for an arrest photograph taken at the precinct. (Id.) After the photograph was taken, Plaintiff was handcuffed to a bench in the precinct until the next morning. (Id. ¶ 23.)

         The next morning, the NYPD transferred Plaintiff to the NYPD's central booking facility (“Central Booking”) for additional post-arrest processing. (Compl. ¶ 24.) Upon arriving at Central Booking, Plaintiff was taken to an area where her photograph could be taken. (Id. ¶ 25.) Approximately ten NYPD police officers and five detainees-all of whom were male-were also present in the area where Plaintiff's photograph was to be taken. (Id. ¶ 25)

         Two NYPD officers instructed Plaintiff that she must remove her veil for the photograph. (Compl. ¶¶ 27-28.) Plaintiff told the officers that she could not remove her veil due to her religious obligations. (Id. ¶ 29.) Plaintiff told the officers that her religious beliefs required her to wear the veil, and that she could not remove the veil in the presence of men. (Id. ¶ 30.) The officer taking the photograph told Plaintiff that her religion was irrelevant and that she must remove her veil, regardless of her religious beliefs. (Id. ¶ 31.) Plaintiff then requested that her photograph be taken in private, outside the presence of men, by a female officer. (Id. ¶ 32.) The photographing officer responded, in substance, “what do you think you are here for . . . [a] photo shoot?” (Id. ¶ 33.) The officer then instructed Plaintiff that she was required to remove her veil. (Id. ¶ 34.) Plaintiff complied. (Id.)

         When Plaintiff removed her veil, the male officers and detainees stared at her and made comments. (Compl. ¶ 35.) In particular, the photographing officer commented “[w]ow, wow, wow, ” referring to Plaintiff's hair. (Id. ¶ 37.) Plaintiff felt violated, embarrassed, and humiliated. Plaintiff broke into tears and was visibly upset and embarrassed. (Id. ¶¶ 36, 39.)

         After her photograph was taken, Plaintiff put her veil back on. (Compl. ¶ 38.) The male detainees continued to laugh at Plaintiff and make inappropriate comments about her. (Id. ¶ 39.) Plaintiff was then escorted to a medical examiner, who had an opportunity to review a copy of the photograph taken of Plaintiff without her veil on. (Id. ¶ 40.) Seeing that Plaintiff was wearing a veil in person, but not in the photograph, the medical examiner told Plaintiff that she should not have been required to remove her veil for the photograph and that it was against policy to require her to do so. (Id.)

         After seeing the medical examiner, Plaintiff was escorted to the women's holding cell in Central Booking. (Compl. ¶ 41.) An officer there approached Plaintiff and asked her why she had been photographed without her veil. (Id.) Plaintiff told the officer that she had been ordered to remove her veil for the photograph. (Id.) The officer told Plaintiff that it was improper and a violation of NYPD policy to order an arrestee to remove a religious veil for a post-arrest photograph. (Id.) The officer explained that, pursuant to NYPD policy, if Plaintiff did not want to be photographed without her veil in the presence of male officers, she could have been transferred to another NYPD facility to be photographed in private by a female officer. (Id.)

         The outcome of Plaintiff's arrest is unclear from the record, but, sometime thereafter, Plaintiff filed a notice of claim against Defendant the City of New York (“the City”), alleging that her civil rights were violated when she was ordered to remove her veil for a photograph in the presence of men.[3] (Compl. ¶ 6.) On February 3, 2016, a hearing was held concerning Plaintiff's notice of claim pursuant to New York General Municipal Law § 50-h. (Id.)[4]

         Plaintiff commenced this action on April 25, 2016, by filing a complaint in this Court. (Compl.) Plaintiff alleges the following causes of action: (i) violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution (Compl. ¶¶ 57-65), (ii) deprivation of Plaintiff's right under the U.S. Constitution to freely exercise her religion (Compl. ¶¶ 66-73), (iii) religious discrimination in violation of the New York Constitution (Compl. ¶¶ 74-77), (iv) intentional infliction of emotional distress (Compl. ¶¶ 78-84), (v) negligent infliction of emotional distress (Compl. ¶¶ 85-91), and (vi) negligent hiring, retention, training, and supervision (Compl. ¶¶ 92-100).

         Defendants now move under Fed.R.Civ.P. 12(b)(6) to dismiss each of Plaintiff's claims for failure to state a claim on which relief can be granted.

         DISCUSSION

         I. 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 570. 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).

         II. ANALYSIS

         Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss each of Plaintiff's claims. The Court addresses each claim in turn.

         A. Violation of Due Process

         Plaintiff argues that Interim Order 29 violates the Due Process Clause of the Fourteenth Amendment because it is unconstitutionally vague. (Pl.'s Br. 4-11.) Specifically, Plaintiff takes issue with the provision of Interim Order 29 that instructs a police officer to notify any arrestee who wishes to avail themselves of the protocols for being photographed in private that “their arrest processing may be delayed due to operational requirements incumbent in using the [private photographing procedures].” (Id.; see also Compl. ¶ 62; Compl., Ex. A, at 2.) Plaintiff argues that, in failing to specify the amount of time by which an arrestee's processing may be delayed, Interim Order 29 “imposes an undue burden on the constitutional rights of arrestees.” (Compl. ¶ 62.) In response, Defendants argue, first, that Plaintiff lacks standing to challenge Interim Order 29 on vagueness grounds, and, second, that Plaintiff's vagueness challenge fails on the merits. (Defs.' Br. 4-8.)

         The Court agrees with Defendants that Plaintiff lacks Article III standing to challenge Interim Order 29 on the ground of vagueness. To establish Article III standing for retrospective relief, such as damages, a plaintiff must allege “an injury in fact . . . [that is] fairly traceable to the actions of the defendant . . . [which would] be redressed by a favorable [court] decision.” Marcavage v. City of N.Y., 689 F.3d 98, 103 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Here, Plaintiff does not allege that she was told that her arrest processing would be delayed if she availed herself of the private photographing procedures established in Interim Order 29. (See Compl.) Indeed, Plaintiff asserts that “she was not given the benefit of the procedure” at all. (Pl.'s Br. 5.) Given this admission, Plaintiff cannot establish that she suffered any injury in fact arising from an allegedly vague provision in Interim Order 29 because, by her own admission, that provision was never applied to her. (Pl.'s Br. 5.)

         Plaintiff also lacks standing to seek prospective relief with respect to the allegedly vague provisions of Interim Order 29. To establish standing for prospective relief, “a plaintiff must show, inter alia, ‘a sufficient likelihood that he or she will again be wronged in a similar way.'” Marcavage, 689 F.3d at 103 (quoting Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). Plaintiff has alleged no facts showing a concrete and real likelihood (i) that she will be arrested again in the future, (ii) that after being arrested, she will be given the vague instruction that her arrest processing will be “delayed” if she avails herself of the private photographing procedures established in Interim Order 29, and (iii) that due to the vagueness of that instruction, she will choose to remove her headscarf in the presence of men ...


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