Rothman v. City of New York

UNITED STATES DISTRICT COURT we norement oo

SOUTHERN DISTRICT OF NEW YORK □□

pp □□□□□ □□

Plaintiff, □

-against- No. 19 Civ. 0225 (CM)

THE CITY OF NEW YORK, ET AL.,

Defendants.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTION TO DISMISS

McMahon, C.J.:

Plaintiff Jeffrey Rothman (“Plaintiff”) brings this action under 42 U.S.C. § 1983 against

The City of New York (the “City”), New York City Police Detective Andrew Wunsch

(“Wunsch”), New York City Police Sergeant Vincent Flores (“Flores”), New York City Police

Department Deputy Commissioner for Legal Matters Lawrence Bye (“Byrne”), and New York

City Police Commissioner James O’Neiil (“O’ Neill”) (collectively, “Defendants”). The

sravamen of Plaintiffs Complaint, (Dkt. 9), is that when Plaintiff was attempting to serve

process at the New York City Police Department (“NYPD”) headquarters, two police officers —

Wunsch and Flores — expressed their displeasure towards Plaintiff for suing the NYPD — one by

angrily grabbing Plaintiffs pen from his hand and the other by angrily throwing Plaintiffs

papers at him. Plaintiff's pen was returned within minutes; he was then told to leave the building

and promptly left. Plaintiff was able to glean the officers’ names and shield numbers before he

left and filed complaints with the NYPD and the Civilian Complaint Review Board (“CCRB”).

The CCRB recommended that the NYPD discipline one of the officers for his discourteous

behavior by issuing a command level instruction.

Out of this, Plaintiff and his attorney have fashioned a nine-count complaint alleging

violations of the United States Constitution, the New York State Constitution, and New York

State common law torts. Through this complaint, Plaintiff also sues Police Commissioner,

James O’Neill — apparently on the grounds that Plaintiff was not kept apprised of the progress of

his complaints — and Deputy Commissioner for Legal Matters, Lawrence Byrne — on the grounds

that Byrne oversaw and approved of the actions of Wunsch and Flores.

Defendants move to dismiss the Complaint — for the most part meritoriously — pursuant to

Fed. R. Civ. P. 12(b)(6) on the grounds that (1) Plaintiff fails to plead facts sufficient to plausibly

infer that Defendants Wunsch or Flores violated Plaintiff's constitutional rights; (2} Defendants

are entitled to qualified immunity; (3) Byrne and O’ Neill lacked personal involvement in the

alleged conduct; (4) Plaintiff fails to plead facts sufficient to plausibly infer the existence of an

unconstitutional municipal policy or custom; (5) Plaintiff lacks standing to pursue declaratory or

injunctive relief; (6) the alleged state law claims fail as a matter of law; and (7) the Court should

decline to exercise jurisdiction over the alleged state law claims because there is no viable

federal claim against any defendant.

Not much is left of the complaint after this Opinion. Given the value of the case, and

consistent with Fed. R. Civ. P. 1, the Court has entered a scheduling order that will ensure the

just, speedy, and inexpensive resolution of this case.

I. Factual Background

Unless otherwise noted, the facts are taken from Plaintiffs Complaint. For the purposes

of the instant motion, the Court accepts the alleged facts as true,

A The Incident

This action arises out of an incident between Plaintiff and NYPD officers that occurred

on the afternoon of December 13, 2017, at the reception desk in the lobby of One Police Plaza in

New York City, when Plaintiff was attempting to serve process in the building.

Plaintiff is a solo practitioner in New York City; he specializes in civil rights litigation.

(Comp!. ff 17-18.) Due to the nature of Plaintiff's job, he was familiar with the “policies and

procedures with respect to the service of Summonses and Complaints” at One Police Plaza. □□□□

34.)

At approximately 4:40 P.M. on December 13, 2017, Plaintiff arrived at One Police Plaza,

went through security, and proceeded to the reception desk in the lobby of the building. (Ud. □□

28-30.) At the reception desk, Plaintiff encountered Wunsch, who was the officer assigned to

the desk. (/d. 31.) Plaintiff informed Wunsch that he was there to serve legal papers. Ud.

32.) Wunsch then informed Plaintiff that he should not have been allowed to pass through

security because, due to a recent policy change, service of process at One Police Plaza should be

made at the FOIL Unit, which had closed at 4:00 P.M. (/d. § 33.)

Notwithstanding the new policy, Plaintiff requested a pass or an escort to go to the

Manhattan Court Section Unit in Room # 8-139, as he had done many times in the past without

incident. (id. 9 34—35.) Wunsch denied this request. (/d. 36.) To effectuate service, Plaintiff

told Wunch that he would leave the papers with him at the reception desk. Ud. 437.) Plaintiff

then looked at Wunsch’s nameplate and began to write down Wunsch’s name and shield number

for the purposes of preparing an Affidavit of Service. (See id. 39-40.) Wunsch “angrily

directed” Plaintiff to stop writing down his name and proceeded to “aggressively . . . [and]

violently” grab Plaintiff's pen out of his hand. (id. § 40.) Wunsch returned the pen after

multiple requests by Plaintiff that he do so. Ud. [J 44-45.)

Wunsch then told Plaintiff that he had called for his Sergeant to come to the desk. (id. |

43.) Flores appeared and reiterated that Plaintiff would not be allowed entry to make service at

the Manhattan Court Section Unit. Ud. [| 46-47.) Plaintiff told Flores that Wunsch had grabbed

his pen out of his hand. (/d. 48.) Plaintiff then gave Flores his business card, and told Flores

that he would leave the papers with him to effect service. (/d. 49.) At this point, Flores

became angry. (Ud. 50.) He picked up the documents from the desk and “aggressively .. .

[and] violently” threw them at Plaintiff, striking him and causing the papers to fall on the floor.

(id.) After throwing the papers, Flores directed Plaintiff to leave the building. (id. 4 51.)

Plaintiff complied, leaving the Summons and Complaint on the floor. (fd. 952.) As Plaintiff

was leaving, Wunch walked beside him until he left the building. (/d.)

B. The Complaints to the CCRB and NYPD

On December 28, 2017, Plaintiff wrote a letter to the NYPD Deputy Commissioner for

Legal Matters, Lawrence Byrne and the Corporation Counsel of the City of New York, Zachary

Carter, asking that (1) the City discipline Wunsch and Flores for their conduct during the

incident at One Police Plaza, (2) Plaintiff be informed of what disciplinary actions resulted, and

(3) the City preserve all evidence relating to the incident. (id. 53-54.) Additionally, in carly

January 2018, Plaintiff filed a complaint with the CCRB seeking to have Wunsch and Flores

disciplined for their conduct during the incident at One Police Plaza. (Ud. 55.)

On April 24, 2018, Plaintiff received a telephone call from NYPD Sergeant Swetsky

(“Swetsky”). Ud. 56.) Swetsky informed Plaintiff that he had spoken with Wunch about the

incident but that no wrongdoing had occurred due to the fact that Plaintiff was able to write

down Wunsch’s name and shield number even though Wunsch failed to provide Plaintiff with

this information. (Ud. §§] 56-57.) Swetsky also told Plaintiff that his allegations that Wunsch

“wrench[ed]” the pen from Plaintiffs hand and that Flores threw Plaintiffs papers at him would

need to be investigated by the CCRB, and that neither the City nor the NYPD would investigate

those allegations “independent of the [CCRB].” (/d. § 58.) Plaintiff “believes” that Swetsky was

acting on behalf of Byrne, and that Byrne sanctioned the conduct of Wunsch and Flores. (/d. §

60.)

On August 1, 2018, the CCRB informed Plaintiff that it had investigated his complaint

and concluded that Wunsch acted “discourteously toward Jeffrey Rothman.” Ud. ff 61, 63.)

The CCRB recommended “discipline in the form of a command level instruction.” (Jd. | 63.)

The CCRB also found that Plaintiff's abuse of authority claim against Wunch and

discourteousness claim against Flores were “unsubstantiated.” (Ud. 66.) Plaintiff asserts that

“what an ‘unsubstantiated’ finding connotes is that, because there is a credibility assessment

factor which the [CCRB] determines cannot be resolved, the [CCRB], in effect, is passing on a

substantive finding with respect to the charge against the officer[s].” (ad. 68.)

The CCRB forwarded its findings and recommendations to O’Neill and Byrne. Ud. f

64.) Plaintiff believes that Byrne and O’Neilil “have the authority to adopt the referral from the

[CCRB] (both as to the substantive finding and the recommended discipline); or they have the

discretion to modify the same or disregard the same altogether.” (Ud. 65.) To date, Plaintiff has

not been provided with any information about the status of any disciplinary action that either has

or has not been taken. (/d. {| 70.)

I. These Proceedings

The First Cause of Action alleges that Wunsch unreasonably seized Plaintiffs property,

and violated his rights under the Fourth Amendment and 42 U.S.C. § 1983.

The Second Cause of Action alleges that Wunsch unreasonably seized Plaintiffs

property, violating his rights under the laws and Constitution of New York.

The Third Cause of Action alleges that Wunsch and Flores subjected Plaintiff to

unreasonable force and detention/restraint, violating Plaintiffs rights under the Fourth and

Fourteenth Amendments and § 1983.

The Fourth Cause of Action alleges that Wunsch and Flores subjected Plaintiff to

unreasonable force and detention/restraint, violating Plaintiffs rights under the laws and

Constitution of New York.

The Fifth Cause of Action alleges that Byrne sanctioned Wunsch’s and Flores’s conduct,

violating Plaintiff's rights under the Fourth and Fourteenth Amendments and § 1983.

The Sixth Cause of Action alleges that the O’Neill, Byrne, and the City violated

Plaintiff's rights under the First Amendment and § 1983.

The Seventh Cause of Action alleges that the O’Neill, Byrne, and the City violated

Plaintiffs rights under the First Amendment and § 1983.

The Eighth Cause of Action alleges that the City is liable for the state law claims,

pursuant to the doctrine of respondeat superior.

The Ninth Cause of Action alleges that the City is liable for the § 1983 claims, pursuant

the doctrine of respondeat superior.

HI. Discussion

A. Standard of Review

Rule 12(b}(6) of the Federal Rules of Civil Procedure provides for the dismissal of a

complaint that fails to state a claim upon which relief may be granted. The causes of action

alleged in a complaint state a claim so long as they contain “sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic 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.” Jd. “The issue is simply

whether the facts the plaintiff alleges, if true, are plausibly sufficient to state a legal claim.” Doe

v. Columbia Univ., 831 F.3d 46, 48 2d Cir. 2016).

The court must accept as true all well-pleaded factual allegations and draw all reasonable

inferences in the plaintiffs favor. See id. at 59. However, “conclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss.”

Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir, 2006) (internal

alterations omitted) (internal quotation marks omitted).

In addition to the complaint, the Court may consider documents that are attached as

exhibits, incorporated by reference, or are otherwise integral to the allegations contained therein

so long as there is no dispute as to the authenticity or accuracy of the document. Difolco v.

MSNBC Cable £.L.C., 622 F.3d 104, 111 (2d Cir, 2010).

B. Federal Claims

Section 1983 creates a “species of tort liability” for State actors that deprive someone of

“rights, privileges, or immunities secured by the Constitution.” Manuel v. City of Joliet, Il., 137

S. Ct. 911, 916 (2017). In order to state a claim under Section 1983, Plaintiff must allege that

Defendants “were state actors or were acting under color of state law at the time of the alleged

wrongful action” and that “the action deprived plaintiff of a right secured by the Constitution or

federal law.” Hirsch v. City of New York, 300 F. Supp. 3d 501, 508 (S.D.N.Y. 2018) (citing Am.

Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 49-50 (1999)). It is important to note that Section 1983

provides only a mechanism for enforcing individual rights secured by the Constitution and laws

of the United States and is not an independent source of rights. See Gonzaga Univ. v. Doe, 536

U.S. 273, 285 (2002); Alberti v. County of Nassau, 393 F. Supp. 2d 151, 161 (E.D.N.Y. 2005).

Here, Plaintiff's federal claims arise under the First, Fourth, and Fourteenth Amendments

to the United States Constitution. (See Compl.) The claims arising under the First and Fourth

Amendments are made applicable to State actors through incorporation under the Fourteenth

Amendment. See Ker v. California, 374 U.S. 23, 30 (1983) (holding that the Fourth Amendment

is binding against the States through incorporation under the Fourteenth Amendment); Cooper v.

U.S. Postal Serv., 577 ¥.3d 479, 491 (2d Cir. 2009) (holding that the Fourteenth Amendment

incorporates the First Amendment).

1, The Motion to Dismiss the First Cause of Action (Unlawful Seizure of

Plaintiff's Property in Violation of the Fourth Amendment) is Denied

In the First Cause of Action, Plaintiff asserts that his property — specifically, his pen --

was unlawfully seized in violation of the Fourth Amendment to the United States Constitution.

(See Compl. 78.) Plaintiff alleges that, when he began to write down Wunsch’s name and

shield number, for the purpose of preparing an Affidavit of Service, “Wunsch angrily directed

the Plaintiff to stop writing his name down and... abrasively .. . [and] violently grabbed the

Plaintiff's pen and wrenched it out of Plaintiff's hand.” Ud. Jf 39-40.)

The Fourth Amendment states that “[t]he right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and seizures, shall not be violated

....” U.S. Const. amend. IV. The Fourth Amendment's “proper function is to constrain...

against intrusions which are not justified in the circumstances, or which are made in an improper

manner.” Winston v. Lee, 470 U.S. 753, 760 (1985) (internal quotation marks omitted) (quoting

Schmerber v. California, 384 U.S. 757, 768 (1966)). In order to determine whether Wunsch’s

alleged actions in taking Plaintiff's pen could plausibly constitute a Fourth Amendment

violation, the Court must find that (1) Plaintiff has plausibly alleged that the taking of his pen

was indeed a “seizure” as defined by the Fourth Amendment, and (2) that the seizure was

unreasonable. The Court will address each prong in turn.

a) Plaintiff’s Pen Was Seized

“A ‘seizure’ of property occurs when there is some meaningful interference with an

individual’s possessory interests in that property” resulting from a “governmental action.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984). A seizure is complete once the taking of

the property is complete, so it is of no moment how long the seized property is retained by the

person after he took it. See id. Once the property has been taken away from someone, it has

been “seized.” See Peterec v. Hilliard, No. 12-CV-3944 (CS), 2013 WL 5178328, at *5

(S.D.N.Y. Sept. 16, 2013) (citing Jacobsen, 466 U.S. at 113); see also Mallard v. Potenza, No.

94-CV-223 (CBA), 2007 WL 4198246 at *5 (E.D.N.Y. Nov. 21, 2007) (internal quotation marks

omitted) (“[T]he Fourth Amendment protects an individual’s interests in retaining possession of

property but not the interest in regaining possession of property.”).

Here, the interest that must not be meaningfully interfered with is the possessory interest

in the pen itself -- an interest distinct from Plaintiffs secondary interest in using the pen to write

down Wunsch’s name and shield number. The fact that a pen is not a valuable item or may be

considered insignificant is of no relevance here. The possessory interest need not be meaningful

— only the interference with that interest.

The alleged seizure in question in the case at bar is similar to the one that occurred in

Gennusa vy. Canova, 748 F.3d 1103 (11th Cir. 2014). In Gennusa, a domestic violence suspect

and his counsel were at a police station for a non-custodial interview when the suspect wrote a

statement on a piece of paper. His lawyer, the plaintiff in the action, declined to turn the paper

over to the police when an officer demanded it. fd. at 1108. When the officer proceeded to

“forcibly grab] the statement” from the plaintiff's hand, he “meaningfully interfered” with the

plaintiff's possessory interest in the statement. See id. at 1108, 1114 (citing Soldal v. Cook Cty.,

506 U.S. 56, 61 (1992)). Plaintiff alleges similar facts here — that a police officer grabbed a

personal item out of his hand without his consent. It is of no consequence that Wunsch allegedly

returned the pen shortly after first taking it, because the seizure was already complete once the

pen was taken in the first instance. See Peterec, 2013 WL 5178328, at *5.

For this reason, Plaintiff adequately stated a claim that his pen was in fact seized by

Wunsch. Whether that seizure violated Plaintiff's Fourth Amendment rights turns on whether

the seizure could possibly be deemed reasonable.

It cannot be.

b) Plaintiff Pleads Facts From Which a Trier of Fact Could

Conclude That the Seizure Was Unreasonable

“| T fhe ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v.

California, 573 U.S, 373, 381 (2014) (internal quotation marks omitted) (quoting Brigham City,

Utah v. Stuart, 547 U.S, 398, 403 (2006)). Ordinarily, seizures of personal property are

unreasonable under the Fourth Amendment unless they are carried out “‘pursuant to a judicial

warrant,” issued by a neutral and detached magistrate after finding probable cause.” [linois v.

McArthur, 531 U.S. 326, 330 (2001) (quoting United States v. Place, 462 U.S. 696, 701 (1983)).

However, “There are recognized exceptions under which warrantless seizures will be considered

‘reasonable.’” Harrell y. City of New York, 138 F. Supp. 3d 479, 488 (S.D.N.Y. 2015). In

Illinois v. McArthur, the Supreme Court lists some examples of exceptions to the warrant

requirement and includes: temporary seizures to preserve evidence until a warrant can be

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obtained, suspicionless stops at drunk driver checkpoints, temporary seizure of luggage based on

reasonable suspicion, temporary detention of suspects to prevent flight and protect officers while

executing a search warrant, and temporary stops based on reasonable suspicion. Jd. at 330-31.

Ultimately, “to determine whether a seizure is unreasonable, a court must ‘balance the

nature and quality of the intrusion on the individual’s Fourth Amendment interests against the

importance of the governmental interest alleged to justify the intrusion’ and determine whether

‘the totality of the circumstances justified the particular sort of .. . seizure.’” Carroll v, City of

Monroe, 712 F.3d 649, 651 (2d Cir, 2013) (internal alterations omitted) (quoting Tennessee v.

Garner, 471 U.S. 1, 8-9 (1985)).

Plaintiff alleges that there was “no legitimate law enforcement justification” for the

seizure. (Compl. 4 41.) While that ends the matter — on a motion to dismiss I must accept the

assertion as true (it is certainly well pleaded) -- Defendants do not suggest a justification in

support of their Motion to Dismiss (see Defs.’ Mem. Supp.). Since, if the facts alleged are true

(as I must presently assume), there was in fact no legitimate governmental interest in seizing the

pen, it means there is no counterweight in the Carroll analysis to the intrusion in Plaintiff's

possessory interest in his pen. The facts pleaded admit of the conclusion that Wunsch did not

take kindly to Plaintiff's attempt to write down his identifying information and took the pen to

try to stop Plaintiff from recording who he was. But Plaintiff had every right to record Wunsch’s

name and shield number. Thus, Plaintiff adequately alleges that the seizure of his pen was

unreasonable.

C) Wunsch Is Not Entitled to Qualified Immunity

As to each and every federal claim, Defendants argue that the two police officers are

entitled to qualified immunity. (Defs.’ Mem. Supp. at 9-11.) Because Plaintiff states a claim

against Wunsch arising out the seizure of his pen, the court must consider whether to dismiss that

claim at the pleading stage on the ground of qualified immunity.

I will not do so.

“Police officers are immune from liability for money damages in suits brought against

them in their individual capacities if ‘their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’” Brandon v. City of

New York, 705 F. Supp. 2d 261, 270 (S.D.N-Y. 2010) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “The qualified immunity doctrine protects government officials from suits

seeking to impose personal liability for money damages based on unsettled rights or on conduct

that was not objectively unreasonable.” Tenenbaum v. Williams, 193 F.3d 581, 595-96 (2d Cir.

1999) (internal quotation marks omitted). Therefore, courts should ask (1) whether the officer’s

conduct violates “clearly established constitutional rights” and, if so, (2) whether it was

“objectively reasonable for them to believe their acts did not violate those rights.” See Weyant v.

Okst, 101 F.3d 845, 857 (2d Cir. 1996). “A police officer’s actions are objectively

unreasonable, and therefore are not entitled to immunity, when ‘no officer of reasonable

competence could have made the same choice in similar circumstances.’” Brandon, 705 F.

Supp. 2d at 271 Ginternal quotation marks omitted) (quoting Anthony v. City of New York, 339

F.3d 129, 138 (2d Cir. 2003).

Drawing all reasonable inferences in Plaintiff's favor, Wunsch was angry that Plaintiff

was writing down his name and shield number and responded by grabbing Plaintiff's pen out of

his hand. (See Comp!. ff] 39-40.) After Plaintiff repeatedly asked for his pen to be returned,

Wunsch complied and returned the pen. (/d. at 44-45.) It is clearly established that Plaintiff had

a constitutional right to keep his pen absent any law enforcement need that would deem it

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reasonable to seize the pen. Assuming (as I must, on a motion to dismiss) that there was no

legitimate law enforcement need to take the pen, it would be clear to a reasonable officer that he

had no right to seize the pen. An officer of reasonable competence would not allow his or her

frustration over a non-threatening disagreement about the proper procedure for service of process

at One Police Plaza to overcome his or her judgment and training, resulting in a constitutional

violation.

For the foregoing reasons, Plaintiff has stated a claim for an unconstitutional seizure in

violation of his Fourth Amendment rights.

2. The Motion to Dismiss the Third Cause of Action (Unreasonable

Detention/Excessive Force) is Granted

In the Third Cause of Action, Plaintiff alleges that the two officer Defendants used

excessive force against his person and unreasonably detained him, in violation of the Fourth and

Fourteenth Amendments. (See Compl. { 84.) He fails to state a claim under either theory.

Plaintiff claims that he was subject to “unnecessary and... unreasonable...

detention/restraint” by Wunsch and Flores when he was leaving One Police Plaza. Ud. {| 84.)

Plaintiff’ s “detention/restraint” (i.¢e., unlawful seizure of the person) claim is limited to “his

removal from the One Police Plaza building lobby.” (/d.}

Plaintiff also claims that Flores and Wunsch subjected him to “unnecessary and...

unreasonable force .. . in violation of the Plaintiff's rights as guaranteed to him under the Fourth

and/or Fourteenth Amendments to the United States Constitution ....” Ud. 4 84.) This claim

stems from Flores’ allegedly “aggressively ... [and] violently” throwing Plaintiff's papers at

13

him” (id. § 50) and Wunsch’s “aggressively .. . [and] violently” “grabb[ing]” Plaintiff's pen and

“wrenchfing]” it out of his hand (id. § 40.)!

a} Plaintiff Pleads No Viable Fourth Amendment Personal

Seizure Claim

A claim for unlawful detention sounds in the Fourth Amendment’s prohibition on

unreasonable seizures. See Posr vy. Doherty, 944 F.2d 91, 98 (2d Cir. 1991). But for a seizure to

be unreasonable under the Fourth Amendment, there must be a seizure begin with. Here there is

none.

“|Aj person has been ‘seized’ within the meaning of the Fourth Amendment only if, in

view of all the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States vy. Mendenhall, 446 U.S. 544, 554 (1980). But if “a

reasonable person would feel free ‘to disregard the police and go about his business,’ the

encounter is consensual” and it “will not trigger Fourth Amendment scrutiny unless it loses its

consensual nature.” Florida y. Bostick, 501 U.S. 429, 434 (1991) (internal citations omitted).

The Supreme Court has clarified that “Mendenhall’s rule of a seizure occurring ‘only if’ a

reasonable person would feel restrained by a police order ‘states a necessary, but not a sufficient,

condition for seizure.” United States v. Swindle, 407 F.3d 562, 572 (2d Cir. 2005) (quoting

California v. Hodari D., 499 U.S. 621, 628 (1991)). A police encounter loses its consensual

nature, resulting in a Fourth Amendment seizure, “[o|nly when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen... .” Terry v.

Ohio, 393 U.S. 1, 19 0.16 (1968).

The seizure of the pen from Plaintiff is dealt with in the First Cause of Action; in this cause of action,

Plaintiff contends that the grabbing of the pen constituted excessive force.

14

Where a plaintiff has not claimed that physical force was used, but instead claims that a

show of authority restricted his liberty, the question of how to determine whether the plaintiff has

been seized often arises. The Fourth Amendment is not implicated “merely because one of the

persons involved is a police officer.” United States v. Singleton, 608 F. Supp. 2d 397, 401-02

(W.D.N.Y. 2009) (citing Florida v. Royer, 460 U.S. 491, 497 (1983)). “[LJaw enforcement

officers do not violate the Fourth Amendment” by merely approaching and questioning an

individual. Brown v. City of Oneonta, N_Y., 221 F.3d 329, 340 (2d Cir. 2000). Where physical

force is absent, there must be “submission to the assertion of authority.” Swindle, 407 F.3d at

572 (internal quotation marks omitted) (quoting Hodari D., 499 U.S. at 626). It is not enough for

a plaintiff to merely feel restrained in order for there to have been a seizure. See id. Factors to

consider in determining whether or not there was a show of authority include “the threatening

presence of several officers, the display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.” United States v. Serrano, 695 F. App’x 20, 22 (2d Cir.

2017) (internal quotation marks omitted) (quoting Mendenhall, 446 U.S. at 554).

Plaintiff does not plead facts tending to show that Wunsch either restrained him or forced

his submission to authority. Plaintiff does not argue that Wunsch touched his person at any

point. Rather, Plaintiff claims that “Wunsch unnecessarily walked with the Plaintiff as the

Plaintiff was complying with . . . Flores’ directive” to leave the building. (Compl. 52.)

Plaintiff describes Wunsch’s walking next to him as a “custodial detention/restraint of the

Plaintiff as the Plaintiffs liberty/freedom of movement was being unnecessarily and

unreasonably constrained.” Ud.) This, with respect, is nonsense. Plaintiff does not argue that

Flores “removed” him from One Police Plaza by seizing his person. (Plaintiff's Memorandum in

15

Opposition to Party Defendants’ Rule 12(b)(6} Motion to Dismiss, Dkt. 32 (“P1. Mem. Opp.”)).

Aside from his wholly conclusory (and therefore irrelevant) assertion that Wunsch’s escorting

him out the door was “unnecessary,” Plaintiff does not plead any restraint or “show of

authority,” by Wunsch. There was only one officer walking beside Plaintiff. Plaintiff does not

allege that Wunsch displayed his weapon, touched him, or said anything to him as he was

walking beside Plaintiff. No reasonable person would have felt “restrained” by Wunsch’s

walking beside him.

Nor has Plaintiff pleaded that Wunsch seized his person when he took the pen out of

Plaintiff's hand. Indeed, according to Plaintiff (who is a lawyer, and who knows how to plead an

excessive force claim), Wunsch grabbed only the pen, not Plaintiff himself. This differentiates

the case from West vy. Davis, 767 F. 3d 1063, 1066 (11th Cir. 2014) — a case in which an officer

grabbed plaintiff's wrist in order to obtain his pen, thereby resulting in the seizure of his person,

rather than seizure of property.

. Plaintiff's Third Cause of Action suggests that Flores also subjected him to “unnecessary

and... unreasonable .. . detention/restraint . . . with respect to his removal from One Police

Plaza.” (Compl. J 84.) Detention occurs when a reasonable person would not have felt “free to

go.” Plaintiff alleges, in sum and substance, that Flores (1) refused to allow Plaintiff to enter the

building, (2) told Plaintiff to leave the premises, and (3) threw the papers Plaintiff was there to

serve at Plaintiff (See Compl. 47, 50, 51.) Put otherwise, Flores did no more than direct

Plaintiff to leave; and Plaintiff concedes that “he was voluntarily complying with the direction

given to him by Flores to leave.” (Pl. Mem. Opp. at 13.) Not only is it clear that a reasonable

person would have felt free to leave, but Plaintiff actually acknowledged that he was free to

16

leave — and was in fact leaving. Plaintiff may not have been free to stay, but that does not mean

that he was not “free to go,” which is the hallmark of restraint.

Accordingly, Plaintiff has failed to state a claim for an unconstitutional seizure of his

person in violation of the Fourth Amendment.

b) Plaintiff Pleads No Viable Excessive Use of Force Claim Either

Under the Fourth or Fourteenth Amendments

(1) Plaintiff Can Only Raise His Excessive Force Claim

Under the Fourteenth Amendment

Graham v. Conner, 490 U.S 386 (1989) sets out the “exclusive framework for analyzing

whether the force used in making a seizure complies with the Fourth Amendment.” County of

Los Angeles, Calif. y. Mendez, 137 8. Ct. 1539, 1546 (2017). Graham held that claims alleging

that “law enforcement officers have used excessive force — deadly or not — in the course of an

arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard” rather than under the Fourteenth Amendment’s

substantive due process doctrine. /d. at 395. However, the Fourth Amendment reasonableness

standard laid out in Graham was applied only to “excessive force in the course of making an

arrest, investigatory stop, or other ‘seizure’ of [a] person.” Graham, 490 U.S. at 387 (emphasis

added).

Outside the context of an arrest or other seizure of the person, the Second Circuit has

held, post Graham, that “a plaintiff may make claims of excessive force under § 1983 under the

Due Process Clause of the Fourteenth Amendment” in certain circumstances. Hemphill v.

Schott, 141 F.3d 412, 418 (2d Cir. 1998). Specifically, the Second Circuit concluded that

reading Graham to suggest “that those relatively unusual excessive force cases falling beyond

the ambit of the Fourth and Eighth Amendments are redressable only by recourse to state tort

17

law” is incorrect, and that “in the non-seizure, non-prisoner context, the substantive due process

right to be free from excessive force is alive and well.” Rodriguez v. Phillips, 66 F.3d 470, 477

(2d Cir, 1995). This interpretation by the Second Circuit is alive and well today. See, e.g., Edrei

v. Maguire, 892 F.3d 525, 533 (2d Cir, 2018) (“The right not to be subject to excessive force,

perhaps most commonly associated with the Fourth and Eighth Amendments, can also arise

under the Fourteenth.”).

Because Plaintiff was not “seized,” see supra pp. 14-17, his excessive force claim must

be brought and analyzed under the substantive due process doctrine of the Fourteenth

Amendment.

(2) Plaintiff Fails to State a Fourteenth Amendment

Excessive Force Claim

“Historically, the test for excessive force under the Fourteenth Amendment was whether

the use of such force ‘shocks the conscience.’” Abujayyab v. City af New York, No. 15 Civ.

10080 (NRB), 2018 WL 3978122, at *5 (S.D.N.Y. Aug. 20, 2018). The Supreme Court created

the “shocks the conscience” test in Rochin v. California, 342 U.S. 165 (1952), when the Court

that an officer’s actions of forcing the extraction of morphine capsules from the plaintiff's

stomach contents by ordering a physician to force an emetic solution through a tube into the

plaintiff's stomach to induce vomiting “shocks the conscience.” fd. at 172. Under the original

formulation, in order to “shock the conscience,” the force in question must do “more than offend

some fastidious squeamishness.” See id. Even ifa police officer’s use of force constitutes a civil

assault or battery, it may not “shock the conscience” such that it rises to the level of a

constitutional violation. See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). “[C]onduct

intended to injure in some way unjustifiable by any government interest is the sort of action most

likely to rise to the conscience-shocking level.” County of Sacramento v. Lewis, 523 U.S. 833,

18

849 (1998). However, neither permanent nor severe injuries are required to shock the

conscience. See Robison v. Via, 821 F.2d 913, 924 (2d. Cir. 1987).

In Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018), the Second Circuit held that in order to

“shock the conscience,” the force used must be an “objectively unreasonable degree of force” as

defined in Kingsley v. Hendrickson, 135 8. Ct. 2466 (2015). Edrei, 892 F.3d at 536. The court

in Edrei held that “purposeful, knowing or (perhaps) reckless action that uses an objectively

unreasonable degree of force is conscience shocking.” Jd. Under the test outlined in Edrei and

Kingsley, the following factors are analyzed to determine whether a use of force was objectively

unreasonable:

(1) the need for force, including the threat reasonably perceived by the officer and

whether the plaintiff was actively resisting, (2) the relationship between the need

and the degree of force used, (3) the extent of the plaintiffs injury, and (4) any

effort made by the officer to temper or to limit the amount of force.

Abujayyab, 2018 WL 3978122, at *6 (citing Kingsley, 135 S. Ct. at 2473; Edrei, 892 F.3d at

537-38). While malicious intent is not required for a showing of excessive force, it is a

condition “that might help show that the use of force was excessive.” Edrei, 892 F.3d at 537

(emphasis in original) (internal quotation marks omitted).

Kingsley was a case about excessive force used against a pretrial detainee, but the Second

Circuit held that Kingsley also applied to force used against persons who were not detainees. See

Edrei, 892 F.3d at 535-36. Kingsley holds that “objective reasonableness turns on the “facts and

circumstances of each particular case’” and that “[a] court must make this determination from the

perspective of a reasonable officer on the scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Kingsley, 135 8. Ct. at 2473 (quoting Graham, 490 U.S. at

396).

19

Here, the force allegedly used by Wunsch and Flores does not rise to the level required to

sustain a constitutional violation. The alleged conduct, while perhaps unbecoming an NYPD

officer, was not even “force” — let alone force that was “objectively unreasonable” and

“shocking” to the conscience.

Drawing all inferences in the plaintiffs favor, the need for force by both Wunsch and

Flores was minimal. Plaintiff was not acting in an unruly, threatening, or violent manner.

Although Plaintiff's refusal to abide by the alleged new procedure for serving process at One

Police Plaza may have annoyed the officers at the reception desk, there is nothing to suggest that

that, absent the use of force, there would have been an imminent threat to security.

Second, while any threat perceived by the officers on the scene was minimal, so too was

the so-called force actually used. Throwing papers at someone is not using force — period.

Grabbing a pen out of someone’s hand comes closer, but it does not rise to the level of physical

force that was deemed actionable in Abujayyab (a punch in the face) or in Edrei (an LRAD

capable of causing serious physical injury). Grabbing a pen is unlikely to cause serious physical

injury — especially where, as here, no touching of Plaintiff's person is alleged.

Third, the fact that Plaintiff suffered no injury weighs heavily against a finding of

excessive force. In Stora v. City of New York, No. 16-CV-4541 (ERK), 2019 WL 1746955

(E.D.N.Y. Apr. 18, 2019), while the force alleged involved a punch to the face ~ a higher degree

of force than is involved in the case at bar — the absence of a measurable injury weighed heavily

in the court’s finding that there was no excessive force. Id. at *6—7. Plaintiff does not allege that

he suffered any physical injury due to the force used by either Wunsch or Flores.

Finally, the low level of force applied suggests a tempered response from the officers.

Drawing all reasonable inferences in Plaintiff’s favor, it cannot be assumed that the officer

20

would expect Plaintiff to suffer any harm as a result of the force applied. In other words, the

alleged use of force could not have been applied for the purpose of causing harm to the Plaintiff,

because if that had been their goal, the officers would have used more force than they did.

Although lack of malicious intent is not in itself determinative, see Edrei, 892 F.3d at 537, it

suggests a tempered response from Wunsch and Flores.

The factors outlined in Kingsley and Edrei, as applied to this case, yield a finding that

Plaintiff has failed to allege facts sufficient to state a claim for excessive use of force under the

Fourteenth Amendment. The “force” alleged simply does not rise to the rather low level needed

to implicate the Constitution.

3. The Motion to Dismiss the Sixth and Seventh Causes of Action is

Granted

In the Sixth and Seventh Causes of Action, Plaintiff seeks to recover for violations of the

First Amendment and Fourteenth Amendment under the theories that Plaintiff has a First

Amendment right and a Fourteenth Amendment property right to know what discipline measures

the NYPD took with respect to Wunsch and Flores. (See Compl. {{] 95, 99.) This is nonsense.

a) Plaintiff Pleads No Viable First Amendment Claim

The First Amendment states that “Congress shall make no law . . . abridging . . . the right

of the people . . . to petition the government for a redress of grievances.” U.S. Const. amend. I.

The Fourteenth Amendment states that “[n]o State shall . . . deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV. Plaintiff claims that his First

Amendment right to petition the government for a redress of grievances and his Fourteenth

Amendment right to not be denied property without due process of law were violated because he

did not receive information about any disciplinary actions that may have stemmed from his letter

to Byrne and O’Neill and the complaint he filed with the CCRB. Plaintiff asserts that he:

21

has a right to know under both the First and Fourteenth Amendments to the

United States Constitution what the outcome of his Petition/Complaint to

government is as it relates to the rights violating conduct of the government’

agents and employees directed at him; and whether its agents and employees will

suffer discipline for their conduct; and the Plaintiff has an objective expectation

that, where there is a finding against a police officer for the officer’s conduct, the

Plaintiff will be informed, as part of the process he has triggered to obtain

discipline, the outcome of the process.

(Compl. { 71.)

It is well settled that “nothing in the First Amendment . . . suggests that the rights to

speak, associate, and petition require government policymakers to listen or respond to

individuals’ communications.” Ladeairous v. Attorney General of N.Y., 592 F. App’x 47, 48 (2d

Cir. 2015) (summary order) (internal alterations omitted) (internal quotation marks omitted)

(quoting Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984)).

Plaintiff wrote a letter to Lawrence Byrne and Zachary Carter on December 28, 2017,

asking that the City discipline Wunsch and Flores. (Compl. § 53.) Plaintiff also filed a

complaint with the CCRB in early January 2018, seeking to have Wunsch and Flores disciplined.

55.) His First Amendment right to petition was in no way impeded; the First Amendment

did not guarantee him any particular result.

Neither does the First Amendment guarantee Plaintiff any response to his “petition.” See

Ladeairous, 592 F. App’x at 48. But he got one, On April 24, 2018 Sergeant Swetsky called

Plaintiff, presumably in response to the December 28, 2017 letter, to inform him that the City

found that Wunsch did nothing wrong by refusing to give Plaintiff his name and shield number,

since Plaintiff was able to obtain that information by looking at Wunsch’s nameplate, (Id. 957.)

The CCRB also informed Plaintiff of the outcome of its investigation — a finding that Wunsch

acted discourteously and a recommendation that Wunsch receive a command level instruction.

JJ 61, 63.)

22

b) Plaintiff Pleads No Viable Fourteenth Amendment Claim

“To possess a federally protected property interest, a person must have a legitimate claim

of entitlement to it.” Edelheriz v. City of Middletown, 943 F. Supp. 2d 388, 394 (S.D.N.Y. 2012)

(citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). A claim to property

“does not arise from the Constitution, but rather from an independent source such as state or

local law.” Jd. In order to have a property interest in something, a person must have more than

abstract need, desire or unilateral expectation” of it. Jd, (internal quotation marks omitted)

(quoting Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir, 2002).

Plaintiff does not indicate what state or local law endows him with a property interest in

knowing whether the NYPD agreed with and carried out the CCRB’s non-binding

recommendation. Therefore, there is no basis to sustain Plainitff’s Fourteenth Amendment

claim.

Because Plaintiff fails to plead a violation of the First or Fourteenth Amendments as they

relate to his claims that he deserves to know the outcome of the CCRB referral, the Sixth and

Seventh Causes of Action are dismissed,

4. The Motion to Dismiss the Fifth Cause of Action (Supervisory Liability

Claim) is Granted

In the Fifth Cause of Action, Plaintiff seeks to recover for violations of the Fourth and

Fourteenth Amendments under the theory that Byrne, through oversight actions “sanctioned” the

conduct of Wunsch and Flores. (See Compl. { 90.)

a} Applicable Law

Supervisory liability under Section 1983 may be shown in the following ways:

(1) actual direct participation in the constitutional violation, (2) failure to remedy

a wrong after being informed through a report or appeal, (3) creation of a policy

or custom that sanctioned conduct amounting to a constitutional violation, or

allowing such a policy or custom to continue, (4) grossly negligent supervision of

23

subordinates who committed a violation, or (5) failure to act on information

indicating that unconstitutional acts were occurring.

Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d

137, 145 (2d Cir. 2003)). These categories were first articulated by the Second Circuit in Colon

v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

The doctrine of respondeat superior does not apply to supervisor liability alleged under

Section 1983. See Ashcroft v. Iqbal, 556 U.S, 662, 676 (2009). “It is well settled that, in order to

establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff must show

.., the defendant’s personal involvement in the alleged constitutional deprivation.” Vasquez □□□

Reilly, No. 15-CV-9528 (KMK), 2017 WL 946306, at *11 (S.D.N.Y. Mar. 9, 2017) (internal

quotation marks omitted) (quoting Grullon y. City of New Haven, 720 F.3d 133, 138 (2d Cir.

2013)). “Because vicarious liability is inapplicable . . . a plaintiff must plead that each

[glovernment-official defendant, through the official’s own individual actions, has violated the

Constitution.” Iqbal, 556 U.S. at 676. Thus, a supervisor’s “mere knowledge” of a

subordinate’s constitutional violation does not amount to the supervisor’s violating the

Constitution. See id. However, if a supervisor is personally involved in developing an

unconstitutional policy or deliberately allowing an unconstitutional policy to continue, he or she

may be individually liable under Section 1983. See Richardson, 347 F.3d at 435,

b) Plaintiff's Assertion of Supervisory Liability is Conclusory

The only surviving federal constitutional claim that potentially implicates the City and a

supervisor — specifically NYPD Deputy Commissioner for Legal Matters, Lawrence Byrne — is

the alleged taking of Plaintiff's pen by Wunsch. Plaintiff alleges that Byrne “sanctioned”

Wunsch’s conduct. (Compl. § 90.) In support of this allegation, Plaintiff claims that (1) he

believes “Sergeant Swetsky acted for and on behalf of... Byrne and at his direction in

24

undertaking the investigation and coming to the conclusions that [Swetsky] did,” (id. ] 59);

(2) he believes that Byrne adopted Swetsky’s conclusions, (id); and (3) he believes that “Byrne

sanctioned and adopted the unlawful conduct of ... Wunsch , . . making it his conduct as their

supervisor through the command structure” (id. { 60).

However, “Conclusory accusations regarding a defendant’s personal involvement in the

alleged violation, standing alone, are not sufficient, and supervisors cannot be held liable based

solely on the alleged misconduct of their subordinates.” Vasquez, 2017 WL 946306, at *11

(internal quotation marks omitted) (quoting Lindsey v. Butler, 43 F. Supp. 3d 317, 329 (S.D.N.Y.

2014)).

Plaintif? s conclusory allegation that Byrne sanctioned Wunsch’s conduct after it

occurred fails to state a claim for supervisory liability. Because Plaintiff had no constitutional

(as opposed to courtesy) right to be informed about how NYPD responded to his various

complaints and referrals, any allegations against Swetsky relating to Plaintiff's F irst Amendment

claim are out of the case.

Moreover, it is not sufficient to overcome the pleading standard laid out in Twombly and

Iqbal to simply state that Plaintiff “believes” Swetsky was acting for Byrne in investigating

Plaintiffs complaints. It is also insufficient, on a motion to dismiss, to state that Plaintiff

“believes” that Byrne, through Swetsky’s actions, sanctioned Wunsch’s conduct. Plaintiff

alleges no facts that support his beliefs that would transform his “beliefs” from merely possible

to plausible. He thus does not adequately state personal involvement by Byrne.

Additionally, because “mere knowledge” is not enough for supervisory liability under

Section 1983, see Igbal, 556 U.S. at 676, the fact that Plaintiff made Byrne aware of the alleged

25

violations by sending him a letter and forwarding the subsequent CCRB complaint does not give

rise to supervisory liability for Byrne.

Plaintiff does not allege that O’ Neill participated in any way in the investigations into

Plaintiff's complaints or that he sanctioned the behavior in question — let alone communicated

with Byrne or any of the officers involved. (See Compl., passim.) In fact, he really alleges

nothing at all against the Commissioner in relation to the actions of Wunsch and Flores. For that

reason alone, the complaint, as against him, must be dismissed.

5. The Motion to Dismiss the Ninth Cause of Action (Monell) is Granted

Plaintiff claims that he is entitled to recover against the City of New York for the alleged

“unlawful and wrongful conduct of its... employees . . . pursuant to the doctrine of respondeat

superior.” (Compl. J 112.)

“Tn order to prevail on a claim against a municipality under section 1983 based on acts of

a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)

deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an

official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,

542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690—

91 (1978)). With respect to the “official policy” Monell clement, a “municipal policy of some

nature” must have caused a “constitutional tort.” Jd. (internal quotation marks omitted) (quoting

Monell 436 US. at 691). Therefore, “a municipality may not be found liable simply because one

of its employees committed a tort.” fd. (internal quotation marks omitted) (quoting Bd. of Cty.

Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405 (1997)); see also Roe, 542 F.3d at 36

(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986)).

Plaintiff has failed to establish that any action by a City employee resulted from a custom

or policy of the City. He nowhere alleges facts that support a City policy, written or unwritten,

26

allowing officers to grab pens from lawyers attempting to serve process at One Police Plaza.

Additionally, because municipalities cannot be held liable under the doctrine of respondeat

superior with respect to § 1983 claims, see Bishop, 2010 WL 4159566, at «7, the mere fact that

an NYPD officer may have committed a constitutional tort does not give rise to liability for

City.

This disposes of all of Plaintiffs federal claims. I now turn to his correlate state

law/common law claims.

C. State Law Claims

Plaintiff brings parallel state law claims for (1) the alleged seizure of his pen, (2) the

“force” he allegedly endured at the hands of the NYPD, and (3) the alleged “detention/restraint”

to which he was subject. Ud. §J 80-82, 86-88.) Plaintiff also claims that, in addition to the

individual actors, the City is also liable for these violations of New York law under the doctrine

of respondeat superior. (Ud. J§ 104-06.)

The New York Constitution states, “The right of the people to be secure in their persons .

and effects, against unreasonable . . , seizures, shall not be violated ....” N.Y. Const. art. I §

12. In Brown v. State of New York, 89 N.Y.2d 172 (1996), the Court of Appeals held that ifa

State actor violates the state constitution, a constitutional tort is committed, which gives rise to a

private cause of action in tort against the State and the state actors. The Court of Appeals also

held that no underlying enabling statute is required for an individual to bring a claim for damages

based on a violation of the state constitution. /d at 187.

However, the Court of Appeals described the constitutional tort action as a narrow

remedy, to be used only when “necessary to effectuate the purposes of the State constitutional

protections [that a] plaintiff invokes” or when “appropriate to ensure full realization of [a

27

plaintiff's] rights.” See Martinez v. City of Schenectady, 97 N.Y .2d 78, 83 (2001). Where there

are alternative remedies available for the plaintiff, such as asserting a claim under state tort law

or a federal claim under § 1983, a state constitutional tort claim will not lic. See Alvan v. City of

New York, 311 F. Supp. 3d 570, 588 (E.D.N.Y. 2018) (emphasis added) (citing Waxter v. State,

33 A.D.3d 1180, 1181-82 (3d Dep’t 2006); Lyles v. State, 2 A.D.3d 694, 695-96 (2d Dep’t

2003)) (hoiding that a plaintiff cannot recover under a state constitutional tort action where an

alternate remedy exists under state tort law); Wahad v. FBI, 994 F. Supp. 237, 240 (S.D.N.Y,

1998) (holding that a state constitutional action cannot lie when § 1983 provides an alternative

remedy for the plaintiff),

1. ‘The Motion to Dismiss the Second Cause of Action is Granted in Part

and Denied in Part

In the Second Cause of Action, Plaintiff seeks to recover for violations of the

Constitution and laws of New York under the theory that Wunsch seized his property — namely

his pen — “without legitimate governmental interest.” (See Compl. { 81.)

In addition to being actionable under § 1983 as an unconstitutional seizure of property,

see supra pp. 8-13, the taking of the pen also sounds in the New York common law tort of

conversion, which “occurs when one ‘intentionally and without authority, assumes or exercises

control over personal property belonging to someone else, interfering with that person’s right of

possession.”” Demry v. Wind, 82 A.D.3d 670, 671 (st Dep’t 2011) (quoting Colavito v. N.Y.

Organ Donor Network, Inc., 8 N.Y.3d. 43, 49-50 (2006)). To state a claim for conversion, the

plaintiff must have a possessory right or interest in the property and the defendant must have

interfered with or taken dominion over the property in derogation of the plaintiff's possessory

rights. Petrone v. Davidoff Hutcher & Citron, LLP, 150 A.D.3d 776, 777 (2d Dep’t 2017). Of

particular relevance to the case at bar, returning the property to the plaintiff does not negate the

28

conversion because, “A claim for conversion will exist even where the deprivation is partial or

temporary.” Slue v. N.Y. Univ. Med. Ctr., 409 F. Supp. 2d 349, 364 (S.D.N.Y. 2006) (citing

Pierpoint vy. Farnum, 234 A.D. 205, 209 (2d Dep’t 1931)).

Plaintiff has adequately stated a claim for conversion against Wunsch. Plaintiff claims

that he has a possessory right to his pen, and that Wunsch took dominion, albeit briefly, over the

pen, which frustrated Plaintiff's interest in exclusive possession of his pen. The right that must

be violated for a conversion action is not the right to use the property as intended — a right that

was not infringed, since Plaintiff did not need the pen when it was taken away from him in order

to obtain Wunsch’s name and shield number — but rather, the right to possess the pen. Plaintiff

clearly claims that he had a right to possess the pen; he says the pen belonged to him and claims

that he had the pen in his possession. (See Compl. { 40.)

But since Plaintiff states a claim for conversion, no state constitutional tort claim lies. To

that extent, the Second Cause of Action must be dismissed.

2. The Motion to Dismiss the Fourth Cause of Action is Granted in Part

and Denied in Part

In the Fourth Cause of Action, Plaintiff seeks to recover for violations of the New York

State Constitution under two theories: wrongful detention/restraint and unreasonable force. (See

Compl. § 87.) As discussed above, no state constitutional tort lies if Plaintiff has a remedy for

the same conduct under either § 1983 or state common law.

a) Plaintiff Pleads No Viable Wrongful Detention Claim Under

Either the New York State Constitution or New York State

Common Law

Plaintiff alleges that he was “subjected to unnecessary and . . . unreasonable

detention/restraint . . . with respect to his removal from the One Police Plaza building lobby . . .

in violation of the Plaintiffs rights under the laws and Constitution of the State of New York.”

29

(Compl. { 87.) The first step in the analysis is to decide whether Plaintiff can avail himself of

the state constitution, or whether some alternative remedy lies.

Because Plaintiff was not seized under the Fourth Amendment, see supra pp. 14-17, he

has no alternative remedy for the personal seizure claim under § 1983.

But some common law tort might be implicated by Plaintiff's claim. Defendants suggest

that the closest state tort law analog to Plaintiff's constitutional seizure claim is false arrest.”

The elements for a cause of action for false arrest are (1) “the defendant intended to confine the

plaintiff,” (2) “the plaintiff was conscious to the confinement and did not consent to the

confinement,” and (3) “the confinement was not otherwise privileged.” D’Amico vy. Correctional

Medical Care, Inc., 120 A.D.3d 956, 961 (4th Dep’t 2014).

However, Plaintiff has not come close to stating a claim for false arrest and does not

argue that he has done so in his opposition brief. (See Pl. Mem. Opp.) As described supra p. 13,

Plaintiff was not confined. The opposite was true ~ Plaintiff was told to leave One Police Plaza

and was leaving when Wunsch “unnecessarily walked” besides Plaintiff on his way out. (See

Compl. 4] 51-52.) Therefore, there is no alternative means of redress in state tort law.

But while neither federal nor common law give Plaintiff any relief, he nevertheless fails

to state a claim that he was subject to an unconstitutional seizure under the New York

Constitution.

“While the search and seizure provision of the State Constitution is similar to the wording

of the Fourth Amendment and supports a policy of uniformity between State and Federal courts .

.. [the] State provision, for reasons peculiar to New York, is subject to its own interpretation.”

? Another possibility for an “unreasonable detention” analog is assault and/or battery. However, Plaintiff does not

allege that Wunsch touched or made any menacing gesture towards Plaintiff. (See Compl. 4 52.) Simply walking

next to someone is not battery, and would not put a reasonable person in fear of an imminent battery, so it is also not

assault (see infra pp. 33-35).

30

People v. Bora, 83 N.Y.2d 531, 534 (1994), New York’s search and seizure provision has been

interpreted to be broader than the Fourth Amendment. See Landsman y. Village of Hancock, 296

A.D.2d 728, 733 (3d Dep’t 2002). Under New York law, a person is seized if “a reasonable

person would have believed, under the circumstances, that the officer’s conduct was a significant

limitation on his or her freedom.” Bora, 83 N.¥.2d at 536. “Typically the inquiry involves a

consideration of all the facts and a weighing of their individual significance.” Jd. The Court of

Appeals supplied example factors to consider, such as whether the officer’s gun was drawn,

whether the individual was prevented from moving, the number of verbal commands given, the

tone of the commands, and the number of officers involved in the encounter. See id. The

interruption required may result from the use of force but could also be the result of

“submit[ting] to the authority of the badge.” Jd at 534-35 (internal quotation marks omitted)

(quoting People v. Cantor, 36 N.Y.2d 106, 111 (1975)).

Here, there was were no verbal commands to stop or to “freeze.” Rather, Plaintiff alleges

that he was told to leave the building (see Compl. { 51) — which is the antithesis of a seizure.

Furthermore, Plaintiff does not allege facts that plausibly suggest his liberty of movement was

significantly interrupted. Plaintiff alleges that “Wunsch unnecessarily walked with Plaintiff as

[he] was complying with .. . Flores’ directive [to leave the building].” (Compl. § 52.). Plaintiff's

conclusory use of the word “unnecessary” does not alter the fact that Wunsch neither touched

him nor threatened to do so. His allegation that the “escort” was “a custodial detention/restraint

of the Plaintiff as the Plaintiff's liberty/freedom of movement was being unnecessarily and

unreasonably constrained and restrained without a legitimate law enforcement justification . □ . ”

(id.) — is purely conclusory, and so is insufficient to state a claim for a violation of Plaintiff's

rights as guaranteed to him under the New York Constitution.

31

b) Plaintiff Pleads Viable Claims for Assault and Battery under

New York Common Law

In addition to his seizure/detention claim, Plaintiff alleges that he was subjected to

“unnecessary and... unreasonable force .. . in violation of the Plaintiff's rights under the laws

and Constitution of the State of New York.” (Compl. § 87.) This claim stems from the

allegations that “Wunch aggressively .. . [and] violently[] grabbed the Plaintiff's pen and

wrenched it out of the Plaintiffs hand” (id. § 40) and that “Flores angrily picked up [Plaintiffs]

documents from the desk and he aggressively .. . [and] violently[] threw them at the Plaintiff,

striking the Plaintiff and causing the documents to then fall to the floor next to the reception desk

in the lobby at One Police Plaza” (id. J 50).

Because Plaintiff fails to state a claim for excessive use of force under the United States

Constitution, see supra pp. 17-21, Section 1983 provides no alternative remedy for Plaintiff's

excessive force claim under the New York Constitution. However, the allegations against Flores

and Wunsch do state New York common law tort claims of assault and battery. Therefore, while

the Fourth Cause of Action must be dismissed insofar as it alleges a state Constitutional claim,

see Alwan, 311 F. Supp. 3d at 588, it can go forward as a civil tort claim.

Under New York law, “A civil assault ‘is an intentional placing of another person in fear

of imminent harmful or offensive contact,’” whereas a “civil battery ‘is an intentional wrongful

physical contact with another person without consent.’” Charkhy v. Altman, 252 A.D.2d 413,

414 (1st Dep’t 1998) (quoting United Natl. Ins. v. Waterfront N.Y. Realty Corp., 994 F.2d 105,

108 (2d Cir. 1993)). Of course, police officers seeking to arrest or detain someone are entitled to

use sufficient force they reasonably believe necessary to accomplish that law enforcement goal

without being subject to civil assault and battery claims. See Holland y, City of Poughkeepsie,

90 A.D.3d 841, 846 (2d Dep’t 2011). But because the facts pleaded by Plaintiff do not amount

32

to either arrest or detention, reasonableness inquiry is inapplicable. See Johnson v. Suffolk Cty.

Police Dept., 245 A.D.2d 340, 341 (2d Dep’t 1997).

(1) Plaintiff States a Claim for Battery Against Wunsch

and Flores

One commits a civil battery when (1) there was bodily contact between the plaintiff and

the defendant, (2) the contact was offensive, and (3) the defendant intended to make the contact

without the plaintiff's consent. Bastein v. Sotto, 299 A.D,2d 432, 433 (2d Dep’t 2002). The

plaintiff need not allege an intent to harm, rather a plaintiff need only allege the act causing the

bodily contact was done with the intent to make the contact, and the contact was offensive. See

Messina v. Matarasso, 284 A.D.2d 32, 35-36 (ist Dep’t 2001). The bodily contact need not be

significant. See Hawkins v. Kuhne, 153 A.D. 216, 216-17 (2d Dep’t 1912) (holding that the

bodily contact necessary to photograph, measure, and fingerprint an inmate is sufficient to satisfy

the bodily contact element of battery), The contact also may be direct or indirect — it is sufficient

for a defendant to set in motion the force that causes the contact. See De Santis v. Luger, 257

N.Y. 476, 478 (1931) (holding that closing a door on the plaintiff could constitute a battery even

though it was the door that made contact with the plaintiff rather than the defendant himself).

“(Making contact with something connected with the plaintiff's person [also] suffices.” Waters

y. Town Sports Intern. Holdings, Inc., No. 151760/14, 2014 WL 3765564, at *1 (N.Y. Sup. Ct.

July 31, 2014); see Johnson v, Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (emphasis added)

(explaining that the constitutional protection afforded by the Eighth Amendment is not as

extensive as the protection afforded by common law battery, “which makes actionable any

intentional and unpermitted contact with the plaintiffs person or anything attached to it and

practically identified with it”).

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With respect to Wunsch, Plaintiff adequately states a claim for battery. Plaintiff alleges

that Wunsch forcefully grabbed Plaintiff's pen out of his hand without his consent. (See Compl.

{/40.) Itis of no moment that Plaintiff does not allege that Wunsch actually touched his person;

for the purposes of a battery claim, a pen in someone’s hand can be considered connected or

attached to the body of the person holding it. See People v. Santiago, 62 A.D.2d 572, 576 (2d

Dep’t 1978) (holding that snatching something from the hand of a person, while not constituting

robbery, could constitute a battery). Thus, grabbing a pen out of Plaintiffs hand satisfies the

bodily contact element of a battery claim.

Drawing all reasonable inferences in favor of the Plaintiff, it can be inferred that Wunch

intended to grab the pen. It can also be inferred that this contact was offensive to the Plaintiff,

considering that Plaintiff found it worthy to file suit over. Such contact would offend the

reasonable person, as having a chattel forcefully taken from one’s grasp is objectively offensive.

Plaintiff also states a claim for battery with respect to Flores. Plaintiff claims that Flores

angrily threw the papers that Plaintiff had brought to serve at the Plaintiff, striking him in the

chest. Again, drawing all reasonable inferences in favor of the Plaintiff, it can be reasonably

inferred that Flores intended to throw the papers at the Plaintiff and to strike him with the papers.

It can also be inferred that Plaintiff was offended by such contact. A reasonable person would

also be offended by having papers thrown at him, thus intruding on his personal space -- however

miniscule the invasion may be.

(2) Plaintiff States a Claim for Assault by Wunsch and

Flores

One commits a civil assault if s/he intentionally acts in some way that places another in

reasonable apprehension of imminent harmful or offensive contact — i-e., in reasonable

apprehension of an imminent battery. See Gould v. Rempel, 99 A.D.3d 759, 760 (2d Dep’t

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2012). Mere words are not ordinarily enough, without some gesture accompanying them, to

state a claim for assault. See id Although physical contact is not an element of assault, Brown

v. Yaspan, 256 A.D. 991, 991 (2d Dep’t 1939), there must be some overt menacing act or

gesture, see Gould, 99 A.D.3d at 760.

Plaintiff states a claim for assault with respect to Wunsch. Plaintiff alleges that Wunsch

was angry when he grabbed Plaintiffs pen. (See Compl. § 40.) It can be inferred that Wunsch

intended to grab the pen. It can be inferred that Plaintiff was himself apprehensive about

Wunsch’s grabbing. An angry police officer reaching for a pen, about to wrench it out of one’s

hand, may be sufficient to make a reasonable person apprehensive of imminent offensive

contact.

Plaintiff also states a claim for assault with respect to Flores. Plaintiff alleges that Flores

angrily picked up his papers and threw them at him, striking Plaintiff with the papers. (See

Compl. 950.) It can be inferred that Flores intended to throw the papers at Plaintiff. As was the

case with Wunsch, it can be inferred that when Flores picked up the papers and started throwing

them at the Plaintiff, Plaintiff was apprehensive about imminent offensive conduct, and that

apprehension was reasonable.

(3) Qualified Immunity

Although qualified immunity is generally understood to protect officials from liability

under federal causes of action, “a similar doctrine exists under New York common-law.”

Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir, 2007). To be granted qualified immunity

under New York law, “it must be established that it was objectively reasonable for the police

officers involved to believe that their conduct was appropriate under the circumstances, or that

officers of reasonable competence could disagree as to whether their conduct was proper.” Allen

v. City of New York, No. 03 Civ. 2829KMW)(GWG), 2007 WL 24796, at *24 (S.D.N.Y. Jan. 3,

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2007) (internal quotation marks omitted) (quoting Brown vy, State, 12 Misc. 3d 633, 648 (N.Y.

Ct. CL 2006)). “The only difference between the federal and state doctrines is that the

reasonableness of an officer’s action is judged with references to state law and the state, not the

federal, constitution.” Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 401 (S.D.N.Y.

2009) (citing Allen, 2007 WL 24796, at *24),

Plaintiff alleges that there was no reasonable law enforcement justification for the actions

that form the basis of his surviving state law claims (see Compl. {¥ 1, 41) and Defendants do not

argue that there were legitimate reasons for Wunsch and Flores to act in the manner alleged by

Plaintiff (see Defs.” Mem. Supp.). Moreover, a reasonable officer in the circumstances alleged

would not grab a pen out of someone’s hand or throw papers at someone, even if, hypothetically,

that person were giving them a hard time. Therefore, Wunsch and Flores are not entitled to

qualified immunity for Plaintiff's surviving state law claims.

3. The City’s Motion to Dismiss the Eighth Cause of Action is Granted in

Part and Denied in Part

In the Eighth Cause of Action Plaintiff seeks to hold the city liable for the violations of

the laws and Constitution of New York, as alleged in Counts Two and Four, under the doctrine

of respondeat superior. (See Compl. { 105.)

New York City “is liable for intentional torts . .. committed by its employees provided

that the tort is committed within the scope of the [employees’] employment.” Green v. City of

New York, 465 F.3d 65, 86 (2d Cir. 2006) (citing Carnegie v. JP. Phillips, Inc., 28 A.D.3d 599,

600 (2d Dep’t 2006)). With respect to claims that arise under New York law, the doctrine of

respondeat superior applies to the City. See Green, 465 F.3d at 86. This differs from the Monell

rule, which does not allow Section 1983 claims against municipalities under the doctrine of

respondeat superior. See Monell v. Dep't of Soc, Servs. of N.Y., 436 U.S. 658, 690-91 (1978).

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With respect to Plaintiff's claim against the City for the alleged conversion, the City

enjoys no immunity. The City does not argue that Wunsch was acting outside the scope of his

employment when he took Plaintiffs pen. (See Defs.’ Mem. Supp.) ‘The only relevant

consideration is whether the conduct alleged by Plaintiff meets the elements for conversion. See

Green, 465 F.3d at 86 (holding that because the City did not argue that officers acted outside the

scope of their employment, the court need only examine whether the alleged conduct falls within

the definition of the intentional torts alleged). Therefore, the Eighth Cause of Action Cannot be

dismissed.

The City also enjoys no immunity from Plaintiff's claim for the alleged assault and

battery. The City does not argue that Wunsch and Flores were acting outside the scope of their

employment when Wunsch allegedly grabbed Plaintiff's pen from his hand and Flores allegedly

threw Plaintiffs papers at him. (See Defs.’ Mem. Supp.) Thus, the only relevant consideration

is whether the conduct alleged by Plaintiff meets the elements for assault and battery. See

Green, 465 F.3d at 86. Because the Court holds that Plaintiff has stated a claim against Wunsch

and Flores for assault and battery, the City can be held liable for those torts under the doctrine of

respondeat superior.

However, to the extent that the Eighth Cause of Action alleges that the City is liable

under the New York State Constitution — whether for unlawful detention (which has been

dismissed on the merits) or for the claims as to which there is alternative common law redress

available to Plaintiff, it must be dismissed

IV. Summary of Rulings

A summary of my rulings is as follows:

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Count One is not dismissed insofar as it states a claim against Defendant Wunsch for the

unlawful seizure of Plaintiff 5 pen from his hand, which is alleged to violate the Fourth

Amendment and Section 1983; it is otherwise dismissed with prejudice.

Count Two is not dismissed insofar as it states a claim against Defendant Wunsch for

conversion under the common law of the State of New York; it is otherwise dismissed with

prejudice.

Count Three is dismissed in its entirety and with prejudice.

Count Four is not dismissed insofar as it alleges the torts of assault and battery against

Defendants Wunsch and Flores; it is otherwise dismissed with prejudice.

Count Five is dismissed in its entirety and with prejudice.

Count Six is dismissed in its entirety and with prejudice.

Count Seven is dismissed in its entirety and with prejudice.

Count Eight is not dismissed insofar as it alleges respondeat superior liability against the

City of New York for the common law torts alleged against Wunsch and Flores in Counts Two

and Four; it is otherwise dismissed with prejudice.

Count Nine is dismissed in its entirety and with prejudice.

The motion by Defendants Wunsch and Flores for a declaration that they are entitled to

qualified immunity for the conduct that is actionable under Counts One, Two and Four is denied.

As a result of these rulings, the case is dismissed in its entirety and with prejudice against

Defendants O’Neill and Byrne.

Scheduling Order

So what we have left is a case about whether Plaintiff is entitled to recover damages

under federal and/or state law for the seizure of his pen (which was returned to him within

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minutes of its being taken from him), and/or for having papers thrown at him by Flores. All

other claims have been dismissed.

Fed. R. Civ. P. 1 provides that the civil rules are to be construed, administered and

employed, by the court and by the parties, in a manner that promotes the just, speedy and

inexpensive determination of cases.

As this is not a case in which the Court would charge punitive damages — that is apparent

from the pleadings — any damages that might be awarded in the event Plaintiff prevails are likely

to be negligible, and would be vastly exceeded by the cost of taking extensive discovery.

Moreover, none is really needed. This is a “he said-he said” case; Plaintiff has more or less told

his story in the complaint, and the officer defendants can easily enough tell their version on the

witness stand.

In short, in order to dispose of this case expeditiously and at minimal cost, what the

parties need is to go to trial as soon as possible.

Therefore, the court enters the following order: within sixty days of the date of this

decision, each party must turn over to the other side all discovery required by Rule 26. By order

of this court, such discovery includes (1) the name of every witness to the event alleged by

Plaintiff and the name of every person within the NYPD who participated in any investigation

thereof, together with (2) every single document, piece of paper, email or other electronic

communication, memorandum, report or investigative note in its possession, custody or control

concerning this incident and Plaintiff's subsequent complaint about it. For purposes of this order

and this lawsuit, this applies to investigative notes of the NYPD, but not the CCRB, which is not

a party to this case and which will not be added as a party to this case.

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In order to effectuate Rule 1, no depositions, requests for production of documents or

interrogatories will be allowed, as these methods of discovery would not promote the speedy or

inexpensive resolution of this case. The court has already ordered the parties to turn over all

documents that are relevant to the remaining claims. Counsel can ask all the relevant questions

they want to the witnesses who are called at the trial of this action.

By October 30, 2019, each party shall turn over to the other side a list of all witnesses it

imtends to call at trial and all documents it intends to introduce. No party will be permitted to

call any witness or to introduce any document that does not appear on said list. The court

suspends its usual rule for the submission of a pre-trial order and there will be no final pre-trial

conference.

From and after October 31, 2019, the parties are on 72 hours’ notice for trial. When

called for trial the parties must appear; there will be no adjournments.

Conclusion

The Clerk of Court is respectfully directed to close Dkt. No. 27.

This constitutes the decision and order of the Court. It is a “written opinion.”

Dated: August 5, 2019 □ . a

Chief Judge

BY ECF TO ALL PARTIES

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