United States District Court, S.D. New York
OPINION & ORDER
A. Engelmayer, United States District Judge
December 4, 2014, plaintiffs Xavier Roper and William Logan
Lockett were arrested by officers of the New York City Police
Department ("NYPD") in the vicinity of Times Square
in Manhattan. Roper and Lockett bring this action under 42
U.S.C. § 1983, alleging that defendants, NYPD officers
and the City of New York (the "City"), violated
their federal constitutional rights in connection with the
arrests. Defendants move to dismiss under Federal Rule of
Civil Procedure 12(b)(6).
reasons that follow, the Court grants defendants' motion.
evening of December 4, 2014, demonstrators associated with
the Black Lives Matter movement gathered to protest in Times
Square. FAC ¶¶ 40, 92, 138. Black Lives Matter is a
movement intended “to call attention to and change
inequalities and ill effects created through systems of
structural racism in American society, ” among them
police misconduct and brutality directed at African
Americans. Id. ¶ 121. On December 4, the Black
Lives Matter protest concerned, in particular, the failure to
indict an officer in the case of Eric Garner, an
African-American man killed during an arrest on Staten Island
in July 2014. See Id. ¶¶ 135-39.
went to Times Square on December 4 intending to document the
protest. Id. ¶¶ 40-43. Roughly an hour
after he arrived, Roper “moved into the street, ”
which was closed to traffic, id. ¶ 54, in order
“to photograph and video record the police action from
a different perspective, ” id. ¶ 53.
Sometime thereafter, defendant Inspector Timothy Beaudette
ordered the protestors to move from the street to the
sidewalk. Id. ¶ 55. As the result of barricades
and a “wall of NYPD officers, ” Roper was unable
to access the sidewalk in order to comply with the order.
Id. ¶ 56. Roper heard an NYPD supervisor
instruct his officers to “[j]ust take somebody and put
them in handcuffs.” Id. ¶ 60. One of the
officers then arrested Roper for “standing in the
street, ” id. ¶ 62, and placed him in
plastic “flex-cuffs, ” id. ¶ 76.
a freelance photojournalist, also attended the December 4
protest in order to take photographs of the protestors, the
police, and the interactions between the two. Id.
¶¶ 90, 92-93. During the protest, in an effort to
locate a restroom, Lockett crossed a street that had been
closed off to traffic. Id. ¶¶ 96-100.
Lockett did not use a crosswalk, as those had been blocked
off by police officers. See Id. ¶¶ 97, 99.
Police officers, including defendant Officer Lombardo,
arrested Lockett for disorderly conduct and placed him in
plastic flex-cuffs. Id. ¶¶ 101-02.
their arrests, Roper and Lockett were each detained for
several hours and eventually issued desk-appearance tickets.
Id. ¶¶ 82-83, 106-07. At their court
appearances, both plaintiffs received adjournments in
contemplation of dismissal. Id. ¶¶ 87,
108. The charges against them have since been dismissed and
sealed. Id. ¶¶ 88, 108.
November 12, 2015, plaintiffs filed their original complaint,
before the Honorable Analisa Torres. Dkt. 1. On February 25,
2016, they filed the FAC. Dkt. 23. A court-ordered mediation
session was held on August 18, 2016, without success. Dkt.
34. On August 22, 2016, the case was referred to the
Honorable Gabriel W. Gorenstein for all general pretrial
matters. Dkt. 35.
October 4, 2016, Judge Torres denied defendants' request
to stay discovery pending defendants' anticipated motion
to dismiss. Dkt. 46. On October 6, 2016, defendants then
filed the instant motion to dismiss, which was fully
submitted as of October 27. Dkts. 47-51. On November 22,
2016, the case was transferred to the undersigned. On January
25, 2017, Judge Gorenstein granted a request by the City to
stay discovery concerning plaintiffs' claims for
municipal liability against it. Dkt. 66. After multiple
extensions, fact discovery on the balance of plaintiffs'
claims ended on March 23, 2017. See Dkt. 66. Judge
Gorenstein denied plaintiffs' requests to further extend
the discovery period. See Dkt. 66, 72.
Standard of Review
survive a motion to dismiss under Rule 12(b)(6), a complaint
must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility 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).
Dismissal is proper where, as a matter of law, ...