Flores v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JENNIFER FLORES, on behalf of

herself and others similarly situated,

Memorandum and Order

Plaintiff,

19-CV-5763(KAM)(RLM)

-against-

CITY OF NEW YORK, et al.,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Presently before the court in this civil rights

lawsuit against the City of New York and several of its police

officers is the defendants’ motion (ECF No. 14) pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to

partially dismiss the plaintiff’s amended complaint (ECF No. 3),

which was filed on behalf of herself and others similarly

situated. For the reasons herein, the defendants’ motion to

dismiss is GRANTED in part and DENIED in part. The court holds

that the plaintiff may seek declaratory and injunctive relief,

and proceed on her claims pursuant to the First, Fourth, and

Fourteenth Amendments.

Background

The following alleged facts are drawn from the

plaintiff’s amended complaint, which the court accepts as true

at this stage of the litigation.

The plaintiff, Jennifer Flores (“Ms. Flores”), is a

female resident of New York City. (ECF No. 3, Amended Complaint

(“Am. Compl.”), ¶ 31.) On the evening of October 12, 2016, Ms.

Flores was arrested by New York City Police Department (“NYPD”)

officers in Queens, New York, on misdemeanor charges for

obstructing government administration. (Id. ¶¶ 69-70.) She

alleges that her arrest resulted after she advised her friends

of their rights while they were being searched by NYPD officers.

(Id.) At the time of her arrest, Ms. Flores was experiencing

what she describes as “particular heavy” bleeding consistent

with her menstrual cycle. (Id. ¶ 71.) Ms. Flores was wearing a

sanitary pad, but did not have additional feminine hygiene

products with her at the time of her arrest. (Id. ¶ 72.)

Upon her arrest, NYPD officers transported Ms. Flores

to the 108th police precinct. (Id. ¶ 74.) Ms. Flores informed

multiple NYPD officers at the precinct that she was experiencing

menstrual bleeding, and she requested feminine hygiene products.

(Id. ¶ 76.) She was told by multiple NYPD officers that no such

products were available at the precinct. (Id. ¶¶ 77-79.) As

advised by the “John Doe” defendant police officers, Ms. Flores

attempted to use toilet paper and gauze to absorb the bleeding,

but neither was adequate, and her clothes were soiled and ruined

as a result of the bleeding. (Id. ¶¶ 79-80.) After Ms. Flores

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had been detained for approximately six hours, her attorney

brought her tampons. (Id. ¶ 81.)

The following day, Ms. Flores appeared for arraignment

wearing the same clothes that had been bloodied. (Id. ¶ 82.)

The criminal court granted Ms. Flores an adjournment in

contemplation of dismissal pursuant to New York Criminal

Procedure Law § 170.55, and her case was dismissed and sealed.

(Id.)

On October 11, 2019, Ms. Flores initiated the instant

action by filing a complaint on behalf of herself and others

similarly situated, against the City of New York (the “City”)

and several “John Doe” NYPD officers (together with the City,

“Defendants”). (ECF No. 1, Complaint.) On October 18, 2019,

Ms. Flores amended her complaint. (ECF No. 3, Am. Compl.) Ms.

Flores claims Defendants deprived her of her rights under the

United States Constitution, pursuant to 42 U.S.C. § 1983

(“Section 1983”), on the following grounds: deprivation of the

privileges and immunities guaranteed by the First, Fourth,

Fifth, Eighth,1 and Fourteenth Amendments (Am. Compl. ¶ 88);

discrimination in violation of the Equal Protection Clause on

the basis of sex (id. ¶ 106); a violation of the Due Process

1 Ms. Flores concedes in her opposition to the instant motion that her Fifth

and Eighth Amendment claims are properly dismissed.

3

Clause as a result of deliberate indifference to her medical

needs (id. ¶ 111); and an unconstitutional policy or practice in

violation of the Due Process Clause (id. ¶ 117). Ms. Flores

seeks declaratory and injunctive relief (1) requiring the NYPD

to make feminine hygiene products available to all women in the

NYPD’s custody, (2) requiring NYPD training on the medical

necessity of such products, and (3) directing the NYPD to put in

place a system for monitoring the supplies of such products at

precincts to ensure that they are always available. (Id. at

14.) She also seeks compensatory damages on behalf of herself

and the putative class. (Id.)

Defendants moved to dismiss portions of the amended

complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1)

for lack of standing (with regard to Ms. Flores’s claims for

declaratory and injunctive relief), and pursuant to Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim (with

regard to Ms. Flores’s claims under the Fifth and Eighth

Amendments, and the Equal Protection Clause of the Fourteenth

Amendment). (ECF No. 14, Motion to Dismiss; see ECF No. 15,

Memorandum in Support (“Def. Mem.”); ECF No. 17, Reply.) Ms.

Flores opposed the motion. (ECF No. 16, Memorandum in

Opposition (“Opp.”).)

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Legal Standards

In analyzing a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(1) for lack of Article III

standing, courts must determine whether the plaintiff’s

complaint “contain[s] sufficient plausible allegations” to

invoke the court’s subject matter jurisdiction over the case or

controversy. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 55

(2d Cir. 2016). Article III of “the United States Constitution

restricts federal courts to deciding ‘Cases’ and ‘Controversies’

and thus imposes what the Supreme Court has described as the

‘irreducible constitutional minimum of standing,’” which

requires a plaintiff to show an “injury-in-fact, causation, and

redressibility.” Baur v. Veneman, 352 F.3d 625, 631–32 (2d Cir.

2003) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992)). “To qualify as a constitutionally sufficient injury-

in-fact, the asserted injury must be ‘concrete and

particularized’ as well as ‘actual or imminent, not conjectural

or hypothetical.’” Id.

In addition, under Federal Rule of Civil Procedure

12(b)(6), a plaintiff’s claims must be dismissed if the

plaintiff fails to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). In deciding a motion to

dismiss under Rule 12(b)(6), the court evaluates the sufficiency

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of the plaintiff’s allegations under a “two-pronged approach.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, courts are

not bound to accept legal conclusions at this stage. See id. at

678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Second, the court must assume all well-pleaded facts

are true, and then “determine whether they plausibly give rise

to an entitlement to relief.” Iqbal, 556 U.S. at 679. A claim

is 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.” Id. at 678.

Plaintiff brought this action pursuant to Section

1983, which provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State . . . subjects, or causes to be subjected,

any citizen of the United States . . . to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured . . . .

42 U.S.C. § 1983. Section 1983 “is not itself a source of

substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes.” Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979); see also Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999).

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To maintain a Section 1983 claim, a plaintiff must

plausibly allege two elements. First, “the conduct complained

of must have been committed by a person acting under color of

state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.

1994). Second, “the conduct complained of must have deprived a

person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Id.; see also

McCugan v. Aldana- Brnier, 752 F.3d 224, 229 (2d Cir. 2014).

Discussion

Defendants first move to dismiss Ms. Flores’s claims

for declaratory and injunctive relief pursuant to Federal Rule

of Civil Procedure 12(b)(1), arguing that Ms. Flores lacks

standing to seek declaratory and injunctive relief. (Def. Mem.

5-7.) Second, Defendants argue that Ms. Flores cannot state a

claim pursuant to certain of the Constitutional rights she has

asserted in her amended complaint. (Id. at 8-11.) The court

will address both arguments in turn.

I. Standing to Seek Declaratory and Injunctive Relief

Defendants argue that Ms. Flores lacks standing to

seek declaratory and injunctive relief because future harm to

her is not “imminent,” because she was arrested one time in the

past. (Def. Mem. at 6-7.)

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Defendants rely on the seminal case on the issue of

standing to seek declaratory and injunctive relief for alleged

violations of the Constitution: the Supreme Court’s decision in

City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the

plaintiff had been subjected to a choke hold by police officers,

and sought an injunction to prevent the police from using choke

holds in the future, absent the threat of deadly force. Id. at

98. The Supreme Court held that the plaintiff, who was

proceeding on behalf of himself only, could not establish

standing to seek injunctive relief, because the single incident

alleged in his complaint did “nothing to establish a real and

immediate threat that he would again be stopped for a traffic

violation . . . by an officer or officers who would illegally

choke him” again in the future. Id. at 105. The Supreme Court

noted that “[n]othing” in the police’s policy “suggest[ed] that

the choke holds . . . [were] authorized absent some resistance

or other provocation,” and further stated that the plaintiff

would have to show not only that another encounter with the

police was likely, but “either, (1) that all police officers in

Los Angeles always choke any citizen with whom they happen to

have an encounter . . . or, (2) that the City ordered or

authorized police officers to act in such manner.” Id. at 106,

110 (emphasis in original).

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Here, Defendants contend that Ms. Flores’s case falls

squarely within the holding of Lyons, and that she likewise

lacks standing because she has not shown that she is likely to

be arrested and detained while menstruating again. (Def. Mem.

at 6-7.) Ms. Flores notes that Lyons was a split 5-4 decision,

with the dissenting justices strongly disagreeing with the

majority based on a long line of precedent interpreting the

standing requirement. (Opp. at 3.) Ms. Flores also argues that

her status as a New York City resident means that she will

always be subjected to the City’s “law enforcement apparatus,”

and she could be “subjected to a custodial arrest” at “any time”

in the future. (Id. at 4.)

These first two arguments by Ms. Flores are slightly

off the mark. Though Lyons was a 5-4 decision, and a reasonable

legal mind could disagree with the majority, it is still binding

on this court. And in Lyons, the majority was clear that living

under the police’s jurisdiction does not implicate an imminent

threat of harm that is sufficient to convey standing for

purposes of injunctive relief. See Lyons, 461 U.S. 105-06.

Ms. Flores further argues that the holding in Lyons

does not necessarily control, based on the specific facts

alleged in her case. (Opp. at 6.) The court agrees, at least

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at this stage, that Lyons is distinguishable and that Ms. Flores

has alleged sufficient facts to confer standing.

In a variety of contexts, the Second Circuit has held

that Lyons is inapplicable where the facts alleged were

distinguishable. For example, in a class action in which child

plaintiffs sought an injunction against the police’s allegedly

coercive interrogation tactics of minors facing possible

delinquency charges, the Second Circuit held that the

plaintiffs, “as a certified class,” were distinguishable from

the lone plaintiff in Lyons. Deshawn E. by Charlotte E. v.

Safir, 156 F.3d 340, 344 (2d Cir. 1998). Like the plaintiffs in

Deshawn, Ms. Flores seeks to proceed on behalf of all those

similarly situated. It remains to be determined whether class

treatment under Federal Rule of Civil Procedure 23 is

appropriate in this case, but if a class of menstruation-age

women is ultimately certified, there will be a far greater

likelihood that one member of the class is currently detained,

or could be subjected to a custodial detention without feminine

hygiene products in the future, thus giving the class standing

to seek injunctive relief.

Further, in Deshawn, the Second Circuit held that “in

Lyons, there was no proof of a pattern of illegality as the

police had discretion to decide if they were going to apply a

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choke hold and there was no formal policy which sanctioned the

application of the choke hold.” Id. at 344-45. “In contrast,

the challenged interrogation methods in [Deshawn] [were]

officially endorsed policies[.]” Id. Here, similarly, Ms.

Flores has alleged that the NYPD has a widespread practice of

not having or providing feminine hygiene products to detainees

at any of its precincts. (Am. Compl. ¶¶ 2-3.) Thus, although

the plaintiff in Lyons failed to show “that all police officers

in Los Angeles always choke any citizen with whom they happen to

have an encounter,” Lyons, 461 U.S. at 106, Ms. Flores has

alleged that all women arrested in New York City are deprived of

feminine hygiene products while detained at an NYPD precinct, in

every circumstance.

The Second Circuit also found Lyons inapplicable to a

case in which a plaintiff sought to enjoin the federal

government’s practice of approving “downed” livestock for human

consumption, due to the risk of contracting disease from such

livestock. Baur, 352 F.3d at 640. In Baur, the Second Circuit

noted that in Lyons, “the occurrence of the alleged future

injury rested on the independent actions of third-parties not

before the court, rendering the asserted injury too speculative

for standing purposes.” Id. In other words, the plaintiff in

Lyons lacked standing to seek an injunction against a

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hypothetical police officer, who was not before the court, to

prevent a particular action in the future. Here, Ms. Flores is

not seeking to prevent the actions of a hypothetical officer;

she seeks to require the City (which is a defendant before the

court) to require that the NYPD stock all of its precincts with

feminine hygiene products, to monitor the stock of those

products, and to train its police officers about the need for

them. She does not seek to require or prevent any action by

police officers who are not before the court.

Although the plaintiff in Baur faced “a chain of

contingencies [that] may need to occur . . . to actually

contract” a disease resulting from the government’s policy, the

Second Circuit held that “the relevant ‘injury’ for standing

purposes may be exposure to a sufficiently serious risk of

medical harm—not the anticipated medical harm itself—thus only

the exposure must be imminent, not the actual onset of disease.”

Id. at 641. Here, Ms. Flores alleges a serious risk of medical

harm on behalf of women who may be menstruating and are denied

feminine hygiene products when they are arrested and detained,

because “tampons and sanitary pads serve multiple medical

purposes.” (Am. Compl. ¶ 9.) Indeed, Ms. Flores alleges that

the Food and Drug Administration classifies tampons and sanitary

pads as “medical devices,” and that the Mayor of New York has

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recognized them as a “necessity.” (Id. ¶¶ 8, 12.) As alleged

by Ms. Flores, the risk of harm, therefore, is a serious medical

risk, more similar to the risk at issue in Baur than the one in

Lyons. To hold that Ms. Flores does not have standing to seek

declaratory and injunctive relief on behalf of herself and

others similarly situated would effectively mean that no

detainee could ever prevent the City from engaging in a practice

that poses a health risk to detainees, because health risks to

any one individual will always require a chain of events (in

this case, being arrested while menstruating). See Baur, 352

F.3d at 641 (“[U]nder the dissent’s analysis, . . . no consumer

would have standing to sue, as it would remain purely

speculative that any individual consumer would actually consume

contaminated beef and contract [disease] as a result.”).

Finally, in Baur, the Second Circuit also emphasized

that “[t] o survive a motion to dismiss, [the plaintiff] need not

present more specific scientific evidence or statistical

verification to prove that the risk actually exists.” Id. at

642. The court can address the issue of standing again “at a

later procedural stage where [the] plaintiffs can properly be

expected to present a full factual record to meet their burden

of establishing standing.” Id.

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Accordingly, at this stage, the court declines to

dismiss Ms. Flores’s claims for declaratory and injunctive

relief due to lack of standing. Once the court decides whether

a class will be certified, and more facts about the plaintiffs

and the City’s practices are available, the court may revisit

the issue, if appropriate.

II. Equal Protection Claim

Next, Defendants argue that Section 1983 does not

provide any substantive rights, and that Ms. Flores has failed

to identify the deprivation of any substantive rights protected

by the Fifth or Eighth Amendments, or by the Fourteenth

Amendment’s Equal Protection Clause. (Def. Mem. at 8-11.)

Defendants have not moved to dismiss Ms. Flores’s claims

pursuant to the First and Fourth Amendments, or the Due Process

Clause of the Fourteenth Amendment, nor do they argue that Ms.

Flores lacks standing to pursue compensatory damages stemming

from the alleged constitutional violations. (Id. at 1 n.1.)

In her opposition to the motion to dismiss, Ms. Flores

concedes that she cannot state a claim for a violation of the

Fifth or Eighth Amendments, and that those claims “are properly

dismissed.” (Opp. at 7.) The court, therefore, dismisses Ms.

Flores’s Fifth and Eighth Amendment claims.

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The only substantive constitutional right at issue in

Defendants’ motion is thus whether Ms. Flores has stated a claim

pursuant to the Equal Protection Clause of the Fourteenth

Amendment. The Fourteenth Amendment directs that the government

may not “deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, Sec. 1. “The

Equal Protection Clause of the Fourteenth Amendment is

‘essentially a direction that all persons similarly situated

should be treated alike.’” Diesel v. Town of Lewisboro, 232

F.3d 92, 103 (2d Cir. 2000) (quoting City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “[S]ex-

based discrimination may be actionable under [Section] 1983 as a

violation of equal protection.” Demoret v. Zegarelli, 451 F.3d

140, 149 (2d Cir. 2006). Where a governmental practice that is

“gender-neutral on its face is challenged on the ground that its

effects upon women are disproportionally adverse, a twofold

inquiry is appropriate.” Collier v. Barnhart, 473 F.3d 444, 448

(2d Cir. 2007) (quoting Personnel Adm’r of Mass. v. Feeney, 442

U.S. 256, 274 (1979) (alteration omitted)). “The first question

is whether the statutory classification is indeed neutral in the

sense that it is not gender-based.” Id. “If the classification

itself, covert or overt, is not based upon gender, the second

question is whether the adverse effect reflects invidious

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gender-based discrimination.” Id. “In this second inquiry,

impact provides an important starting point, but purposeful

discrimination is the condition that offends the Constitution.”

Id.

Here, Ms. Flores argues that the failure to provide

feminine hygiene products at NYPD precincts “clearly evinces a

gender discriminatory policy, practice or pattern on the part

of” the City. (Opp. at 9.) Ms. Flores relies on the standard

set forth by the Supreme Court in United States v. Virginia, 518

U.S. 515 (1996), although her case presents a slightly different

circumstance. In Virginia, the Supreme Court addressed a state

policy of admitting only men to a public military academy. Id.

at 520. In contrast, here, it is not alleged that the City

adopted a policy or practice that classified men and women

differently. Rather, Ms. Flores’s allegation is that despite

the apparent gender neutrality of the City’s policy about which

medical products to stock for detainees at police precincts, the

adverse effect on women reflects invidious gender-based

discrimination.

Ms. Flores’s allegation is bolstered by her contention

that the Mayor of New York, upon requiring that inmates in

correctional facilities have access to feminine hygiene

products, acknowledged that “feminine hygiene products are a

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necessity – not a luxury.” (Am. Compl. ¶ 8 (emphasis added).)

The fact that the City’s top official acknowledged the

importance of providing this “necessity” to female inmates

raises an inference regarding the City’s decision to deny the

same to women who are detained at NYPD precincts. Moreover, it

is not the case that the City has provided inadequate medical

products in a blanket manner, as bandages and other first aid

equipment are allegedly available at precincts. (Id. ¶ 25.) It

is only the medical products that women need that are not

available.

The court acknowledges that another district court

facing a similar allegation has held that the “requirement of

menstrual pads [as] a unique female requirement . . . do[es] not

go to whether the [] Defendants’ failure to provide feminine

hygiene products was the result of discriminatory intent.”

Turano v. Cty. of Alameda, No. 17-cv-6953 (KAW), 2018 WL

3054853, at *8 (N.D. Cal. June 20, 2018). Ultimately, to

prevail on her Equal Protection claim, Ms. Flores will indeed

have to show more than just a disparate impact of the City’s

practice on women. See Reynolds v. Barrett, 685 F.3d 193, 201

(2d Cir. 2012) (“[E]qual [P]rotection claims under [Section]

1983 cannot be based solely on the disparate impact of a

facially neutral policy”); see also Vill. of Arlington Heights

17

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977)

(“[O]fficial action will not be held unconstitutional solely

because it results in a racially disproportionate impact[,]” and

“[p]roof of racially discriminatory intent or purpose is

required to show a violation of the Equal Protection Clause.”).

Nonetheless, “discriminatory intent is rarely

susceptible to direct proof.” Hayden v. Paterson, 594 F.3d 150,

163 (2d Cir. 2010). Where there is a disparate adverse impact

of a neutral policy on a protected class, that “impact provides

an important starting point” for analyzing an Equal Protection

claim. Collier, 473 F.3d at 448. Ultimately, a plaintiff must

show that the “invidious discriminatory purpose was a motivating

factor” behind the policy or practice, which is a complex

question that “demands a sensitive inquiry into such

circumstantial and direct evidence of intent as may be

available.” Arlington Heights, 429 U.S. at 266. The court is

unable to make that sensitive inquiry in this case without

examining evidence of the City’s intent, which will only be

available if Ms. Flores is permitted to proceed to discovery.

Ms. Flores has alleged that all women detained at NYPD

precincts are forced to go without medically necessary products,

and the denial of these products has subjected “hundreds, if not

thousands, of menstruating female pre-trial detainees . . . to

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highly unsanitary conditions, substantial risk of infection,

humiliation, and degradation,” none of which is suffered by male

detainees. (Am. Compl. ¶ 3); see Feeney, 442 U.S. at 279 n.24

(what an “official entity is ‘up to’ may be plain from the

results its actions achieve, or the results they avoid”). Ms.

Flores has further alleged that the Mayor of New York recognized

the “necessity” of these products for women, and yet, the City

still does not provide them to women detained by the NYPD. At

this stage, these allegations are sufficient to raise an

inference of discriminatory intent, and for Ms. Flores to state

a plausible claim that the City violated the Equal Protection

Clause of the Fourteenth Amendment. Ultimately, to prevail on

this claim, Ms. Flores will have to show that a discriminatory

intent was at least a motivating factor in the City’s decision

to do so. For now, however, she has alleged a plausible claim

sufficient to survive Defendants’ motion to dismiss.

Accordingly, Defendants’ motion to dismiss Ms.

Flores’s Equal Protection claim is denied.

Conclusion

For the foregoing reasons, Defendants’ motion to

dismiss is GRANTED in part and DENIED in part. Defendants’

motion is granted with respect to Ms. Flores’s claims pursuant

to the Fifth and Eighth Amendments, and those claims are

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dismissed. Defendants’ motion to dismiss is denied with respect

to standing, and with respect to Ms. Flores’s other claims. The

case shall proceed on Ms. Flores’s claims pursuant to the First

and Fourth Amendments and pursuant to the Equal Protection and

Due Process Clauses of the Fourteenth Amendment. The parties

shall proceed with discovery under the supervision of Magistrate

Judge Roanne L. Mann.

SO ORDERED.

Dated: Brooklyn, New York

February 19, 2021

___________/s/_______________

Hon. Kiyo A. Matsumoto

United States District Judge

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