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Holmes v. City of New York

United States District Court, S.D. New York

March 29, 2018

THE CITY OF NEW YORK et al., Defendants.


          LAURA TAYLOR SWAIN United States District Judge

         Plaintiff Marisa Holmes brings this action under 42 U.S.C. § 1983 against the City of New York and individual Defendants Kenneth O'Donnell, Anthony Bologna, and Fernando Centeno-Talavera (collectively, the “Defendants”) for violation of her rights under the United States Constitution arising from her arrest on September 24, 2011, during demonstrations by Occupy Wall Street (“OWS”) in lower Manhattan. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         On March 4, 2016, the Court granted Defendants' motion to dismiss as to Plaintiff's claims for malicious prosecution, assault, battery, and excessive force. (Docket entry no. 76.) On February 8, 2017, the Court denied Plaintiff's motion for leave to amend her malicious prosecution claim. (Docket entry no. 123.) The Court also declined to reconsider its dismissal of Plaintiff's excessive force claim. (Id.) Defendants now move for summary judgment dismissing Plaintiff's false arrest, trespass, abuse of process, fabrication of evidence, and First Amendment retaliation claims. (Docket entry no. 134.) Defendants also move for summary judgment dismissing Plaintiff's claim for municipal liability against the City of New York, her claim for supervisory liability against Individual Defendants O'Donnell and Bologna, and her claims against Individual Defendants Bologna and Centeno-Talavera. (Id.) Plaintiff cross-moves for summary judgment on her false arrest, fabrication of evidence, First Amendment interference, and municipal liability claims. (Docket entry no. 138.)

         On July 14, 2017, after oppositions to the parties' cross-motions for summary judgment had been filed, Plaintiff requested leave to assert previously withdrawn municipal liability claims based upon a June 28, 2017, New York City Civil Complaint Review Board report. (Docket entry no. 165.) The Court denied Plaintiff's request, which was made after the close of discovery and at the reply stage of summary judgment briefing, as unfairly prejudicial to the defense and contrary to the interests of efficiency and judicial economy. (Docket entry no. 168.)

         The Court has considered carefully the parties' submissions. For the reasons that follow, Defendants' motion for summary judgment is granted in part and denied in part. Plaintiff's motion for summary judgment is denied in its entirety.


         Unless otherwise indicated, the following facts are undisputed.[1] Plaintiff is a documentary film-maker and journalist who worked with the OWS media group. (Docket entry no. 139, Pl. 56.1 St. ¶ 6; docket entry no. 162, Holmes Decl. ¶ 2.) Defendant Kenneth O'Donnell is a New York Police Department (“NYPD”) detective and a lawyer in the NYPD legal bureau. (Pl. 56.1 St. ¶ 1.) Defendant Fernando Centeno-Talavera is a police officer with the NYPD and Defendant Anthony Bologna is a deputy inspector with the NYPD. (Docket entry no. 13, Am. Compl. ¶ 7.)

         On the morning of September 24, 2011, Plaintiff arrived at Zuccotti Park and left with a march. (Docket entry no. 136, Def. 56.1 St. ¶¶ 1-2.) Plaintiff had her camera out and was filming the march as it was happening. (Id. ¶ 3.) The march left Zuccotti Park, continued south on Broadway, and then turned onto Wall Street. (Id. ¶ 4.) From Wall Street, the march turned north onto Nassau Street. (Id. ¶ 9.) Plaintiff proceeded north on Nassau Street until she reached the corner of Nassau and Cedar Street. (Id. ¶ 10; docket entry no. 163, Pl. Resp. to Def. 56.1 St. (“Pl. Resp.”) ¶ 10.) At the corner of Nassau and Cedar, Plaintiff encountered a man, known as R.S., kneeling in the street and giving a speech. (Def. 56.1 St. ¶ 11.) Plaintiff noticed R.S. and began to film his speech. (Pl. 56.1 St. ¶ 20; docket entry no. 159, Def. Resp. to Pl. 56.1 St. (“Def. Resp.”) ¶ 20.) The parties dispute whether NYPD officers on the scene were attempting to direct individuals gathered on the roadway towards the sidewalk during this time. (Compare Pl. Resp. ¶¶ 46, 71, 134 with Def. 56.1 St. ¶¶ 46, 71.) The parties do not dispute that, shortly after R.S. finished his speech, he was placed under arrest. (Def. 56.1 St. ¶ 20.) The parties dispute the events that transpired next.

         Defendants allege that, following R.S.'s arrest, Bologna ordered several NYPD officers, including O'Donnell, to clear the street of protestors. (Id. ¶ 54.) Defendants contend that Plaintiff ignored O'Donnell's order to leave the street, instead walking around O'Donnell to the location where R.S. was being handcuffed and filming the arresting officer from approximately one-half of an inch away. (Id. ¶ 57.) Defendants allege that after Plaintiff made contact with one of the officers arresting R.S., O'Donnell warned Plaintiff to get out of the street again, at which point Plaintiff turned around, swatted at O'Donnell's hand, and told him not to touch her property. (Id. ¶¶ 58-60.) O'Donnell then placed Plaintiff under arrest with the assistance of Centeno-Talavera. (Id. ¶¶ 61, 72.)

         Plaintiff alleges that, after allowing Plaintiff to film R.S. for over two minutes, O'Donnell told her to get out of the street just as police officers began to cuff R.S. (Pl. 56.1 St. ¶ 29, 31; Holmes Decl. ¶ 19-20.) Plaintiff alleges that O'Donnell “fixated” on her over others present in the roadway, addressing her by name, asking her to leave the roadway, and then blocking the lens of her camera to prevent Plaintiff from continuing to film R.S.'s arrest. (Pl. 56.1 St. ¶¶ 31, 34; Holmes Decl. ¶¶ 20, 22.) Plaintiff contends that she then moved alongside the officers carrying R.S. towards the south sidewalk of Nassau Street, and that she was in the process of leaving the roadway in compliance with O'Donnell's request when she was arrested. (Pl. 56.1 St. ¶ 32; Holmes Decl. ¶¶ 21, 30-32.) Plaintiff admits that, at one point while she was filming R.S.'s arrest, an NYPD officer's elbow bumped into her camera. (Pl. 56.1 St. ¶ 44; Holmes Decl. ¶ 76.)

         In addition to their disparate accounts of the events preceding Plaintiff's arrest, the parties also proffer conflicting evidence as to whether Plaintiff subsequently resisted arrest (compare Def. 56.1 St. ¶ 51, 61-62, 104-105, 107-109 with Pl. Resp. ¶ 51, 61-62, 104-105, 107-109 and Holmes Decl. 37, 41-44, 70-71, 73-74, 78-79, 83, 84), and whether Plaintiff was blocking vehicular traffic prior to her arrest (compare Pl. 56.1 St. ¶¶ 24-25, 61-65 and Holmes Decl. ¶¶ 54, 66 with Def. Resp. ¶¶ 24-25, 61-65 and Def. 56.1 St. ¶¶ 101, 110, 112, 114-115). Defendants contend that Plaintiff resisted arrest by trying to break away from the arresting officers and using force to physically prevent her arms from going behind her back. (Def. 56.1 St. ¶¶ 51, 61-62, 104.) Defendants also contend that Plaintiff further resisted arrest by throwing her arm up, clutching her left arm against her chest, and spreading her legs apart. (Id. ¶¶ 105, 107-109.) Finally, Defendants allege that Plaintiff blocked a postal van and another vehicle from proceeding on Nassau Street. (Def. 56.1 St. ¶¶ 101, 110, 112, 114-115.) Plaintiff disputes each of these allegations (see Pl. Resp. ¶ 51, 61-65, 104-105, 107-109; Holmes Decl. ¶ 41-44, 70-71, 73-74, 78-79, 83), and also argues that her large backpack made it impossible for her to place her hands behind her back (see Pl. Resp. ¶ 106; Holmes Decl. 37), and that Nassau Street was closed to vehicular traffic that day (see Pl. 56.1 St. ¶¶ 24-25, 61-65; Holmes Decl. ¶¶ 54, 66). It is undisputed that Plaintiff was in the roadway while R.S. was giving his speech, and that Plaintiff was arrested while on the roadway. (Pl. Resp. ¶ 22; Def. Resp. ¶ 21; Holmes Decl. ¶ 30.)

         Plaintiff's arrest was processed by Centeno-Talavera. (Def. 56.1 St. ¶ 76.) Plaintiff was charged with resisting arrest, obstruction of governmental administration in the second degree, and disorderly conduct. (Docket entry no. 140-2, Criminal Compl.) The criminal complaint, which was signed and sworn to by O'Donnell, states that Plaintiff “was obstructing vehicular traffic by standing in the middle of the street, ” that Plaintiff “pushed [O'Donnell's] arm away, ” and that Plaintiff “refused to put [her] hands behind [her] back, kicked [her] legs back and forth, wrapped [her] arms around [her] body, and threw [her] arms up and down thereby making handcuffing difficult.” (Id. at 1-2.) The obstruction of governmental administration charge against Plaintiff was ultimately dismissed on motion of the District Attorney; the two other charges were dismissed after adjournment in contemplation of dismissal. (See docket entry no. 161-2, Apr. 16, 2012 Hr'g Tr.) Plaintiff made five court appearances in connection with these charges. (See docket entry no. 161-3, Crim. Appearance History.)


         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that “might affect the outcome of the suit under the governing law, ” and there is a genuine dispute where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted)). In evaluating a motion for summary judgment, the Court must “construe all ...

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