MEMORANDUM & ORDER
Jose Mediavilla, a participant in several Occupy Wall Street protests that took place in downtown Manhattan in 2011 and 2012, filed a complaint asserting that his rights were violated in connection with his arrests on November 5, 2011 and November 12, 2011 by members of the New York City Police Department. Before me is the motion for summary judgment filed by Defendants City of New York, Lieutenant Michael 'Zielinski, Deputy Chief Steven Anger, Police' Officer Anthony Ciaramita-ro, and Deputy Inspector' Elisa Cokkinos, seeking the dismissal of all caúses of action, and Plaintiff Jose Mediavilla’s cross motion to amend the complaint. Because I find that there was probable cause to arrest Plaintiff and that, even if probable cause did not exist, the individual defendants would be entitled to qualified immunity, Defendants’ motion for summary judgment is GRANTED in its entirety. In addition,, because I find Plaintiffs proposed amendment to his First Amended Complaint is futile in light of the existence of probable cause and the individual Defendants’ qualified immunity, Plaintiffs cross motion to amend the First Amended Complaint is DENIED.
I. Background
The following facts are undisputed unless otherwise noted. Plaintiff Jose Media-villa, (“Plaintiff’ or “Mediavilla”),
A. November 5, 2011 Incident
On Saturday, November 5, .2011, Plaintiff participated in a political demonstration in front of 60 Centre Street in Manhattan. The demonstration purportedly related to “a consumer action” called “Bank Transfer Day.” According to Plaintiff, “Bank Transfer Day was a consumer activism initative [sic] calling for a voluntary switch from commercial banksi to not-for-profit credit unions by Saturday November 5, 2011.” (P’s 56.1, ¶¶ 31-33.)
Defendant Lieutenant Zielinski, (“Defendant Zielinski” or “Lieutenant Zielin-ski”), stated, through the bullhorn, “Ladies and gentlemen, my name is Lieutenant Zielinski, I am with the Manhattan South
After not getting what he believed to be a meaningful response from other officers, Mediavilla focused his attention on the officer using a bullhorn to direct the demonstrators to leave the sidewalk in front of 60 Centre Street who “seemed to be in charge.” (P’s 56.1 ¶ 71; Mediavilla Aft. . ¶¶ 14-17,) The officer with the bullhorn was Lieutenant Zielinski. (Mediavilla Aft. ¶ 17; P’s 56.1 ¶ 71.) Plaintiff approached Lieutenant Zielinski. (P’s Resp. 56.1 ¶ 67; Response 67-1; Mediavilla Aff. ¶ 15.) Plaintiff and Lieutenant Zielinski were on the same side of one of the plastic fences that the police were using in front of 60 Centre Street. (MV1 08:04-08:10.) Plaintiff, having reduced his objections to the officers’ conduct into the word “treason,” (P’s 56.1 ¶ 73), repeated this word several times to Lieutenant Zielinski loudly enough so that it could be heard clearly over the din of the other protestors and police officers,.(TARU 14:35-14:48). An officer continued to instruct demonstrators to move back and to disperse. (P’s Resp. 56,1 ¶ 71; MV1 08:06-08:10.) Plaintiff remained less than an arms’ length away from Lieutenant Zielinski holding a copy of the U.S. Constitution, (P’s Resp. 56.1 ¶ 74, Response 74-2), and continued to yell the word “treason” at Lieutenant Zielinski. (P’s 56.1 ¶¶ 78-79; P’s Resp. 56.1 ¶74, Response 74-3; TARU 14:37-14:48.) Lieutenant Zielinski repeated “move back” and/or “move back, sir” at least twice into the bullhorn before saying “this sidewalk is closed, you need to move,” again through the bullhorn which at this time was pointing directly at Plaintiff. (TARU 14:37-14:44; MV1 08:04-08:17.) Lieutenant Zielinski turned to his left, away from Plaintiff, and took a few steps away from Plaintiff. (P’s Resp. 56.1 ¶79, Response 79-1; TARU 14:45-14:48.) Plaintiff pursued him, taking a quick step toward Lieutenant Zielinski on his right side shouting “treason” once more. (Mediavilla Aft. ¶ 18; P’s Resp. 56.1 ¶ 80, Responses 80-2, 80-3; TARU 14:47-14:48.) Lieutenant Zielinski then turned toward Plaintiff, who repeated
The police did not have a warrant for Plaintiffs arrest on November 5, 2011. (Ps 56.1 ¶ 90.) Plaintiff was held for approximately twenty-four (24) hours before being released on his own recognizance. (Id. ¶ 91; Mediavilla Aff. ¶ 20.) Plaintiff appeared in court a number of times in connection with the November 5, 2011 arrest. (P’s 56.1 ¶94; Mediavilla Aff. ¶21.) On or about July 24, 2013, the charges against Plaintiff stemming from the November 5, 2011 arrest were adjourned in contemplation of dismissal, and were eventually dismissed and the records sealed pursuant to New York Criminal Procedure Law 170.55. (P’s 56.1 ¶ 95; Mediavilla Aff. ¶ 21.)
B. November 12, 2011 Incident
On the evening of November 12, 2011, Plaintiff was at the front of a nighttime silent march. (P’s 56.1 ¶ 96; Mediavilla Aff. ¶ 24.) The intended route for the silent march began at Zuccotti Park, was to go past the Federal Reserve Bank and then return back to Zuccotti Park. (P’s 56.1 ¶ 98.) Plaintiff was wearing a “Guy Fawkes” mask on the side of his head such that it did not cover his face.
. The police did not have a warrant for Plaintiffs arrest on November 12, 2011. (P’s 56.1 ¶ 113; Stecklow Deck, Ex. Q.)
Based on his November 5 and November 12, 2011 arrests, Mediavilla brings seven causes of action pursuant - to 42 U.S.C. § 1983: (1) deprivation of federal civil rights; (2) false arrest; (3) failure to intervene; (4) malicious prosecution; (5) excessive force; (6) violations of his-rights under the First Amendment; and (7) municipal liability under Monell v. Department of Social Services of the City of N.Y.,
II. Procedural History
Plaintiff filed the complaint in this action on October 29, 2014, naming the City of New York and Chief Anger, Officer Ciaramitaro, Lieutenant Zielinski, and Officers “John Does 1-10.” (Doc. 1.) On November 5, 2014, Plaintiff filed an amended complaint adding fourteen additional officer defendants to the complaint (“First Amended Complaint”). (Doc. 4.) In his First Amended Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 and the relevant provisions of the United States Constitution. (Compl. ¶¶ 82-166.)
On May 28, 2015, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 53), along with a declaration, (Doc. 54), attaching exhibits, (Docs. 54-1-54-5), in support, and the next day Defendants filed a memorandum of law in support - of the motion, (Doc. 55). In their memorandum, Defendants asserted, that I could rely on the video evidence as part of their motion to dismiss, but requested that if I determined the videos tb be beyond the scope of my consideration on a motion to dismiss that I
While the Rule 56.1 statements were being prepared and filed, the parties continued briefing the instant motion. On July 17, 2015, Plaintiff filed his opposition and the cross motion to amend the First Amended Complaint, (Doc. 64), with a declaration, (Docs. 65), attaching exhibits, (Docs. 65-1-65-65), and a memorandum of law, (Doc. 69), in support. On July 21, Plaintiff filed a second declaration that attached the proposed Second Amended Complaint related to his cross motion to amend. (Docs. 72, 72-1.)
III. Summary Judgment
A. Legal Standards
1. Summary Judgment
Summary judgment may not be granted unless all of the submissions taken together “show[] that there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Smith v. Cty. of Suffolk,
Once the moving party has asserted facts showing that the non-movant’s claims or affirmative defenses cannot be sustained, “the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord,
2. Section 1983
Section 1983 provides a cause of action for damages against “[e]very person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws .... ” 42 U.S.C. § 1983. In other words, “[t]o state a claim under § 1983, a plaintiff must allege that defendants violated plaintiffs federal rights while acting under color of state law.” McGugan v. Aldana-Bernier,
3. Probable Cause
An officer “has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Garcia,
4. Qualified Immunity
The. doctrine of qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments” by immunizing them from suit for damages unless their conduct violated clearly established constitutional rights of which a reasonable person would have known. Stanton v. Sims, — U.S. —,
1. The November 12 Arrest
As an initial matter, summary judgment must be granted for all claims related to the November 12 Arrest. By letter dated July 28, 2015, during ongoing briefing on Defendants’ converted motion for summary judgment and Plaintiffs cross motion to amend the First Amended Complaint, Plaintiff provided notice, without further explanation, “that we are removing all reference and claims related to the arrest of November 12, 2011.” (Doc. 73.) Thus, Plaintiff sought to strike all paragraphs in the proposed Second Amended Complaint, as well as “any legal arguments set forth in the memorandum” of law in support of his motion to amend and in opposition to summary judgment, (Doc. 69), related to the November 11 Arrest. (Doe. 73.) Because Plaintiff has abandoned his legal arguments opposing summary judgment on claims related to the November 12 Arrest, I grant summary judgment on those claims. See Jackson v. Fed. Exp.,
2. The November 5 Arrest
a. Probable Cause
Defendants move for summary judgment on the ground that there was probable cause to believe that Plaintiff committed various violations of the New York Penal. Law (“NYPL”). Because a finding of probable cause to arrest Plaintiff vitiates most, if not all, of Plaintiffs claims for relief, I address the issue of probable cause first. Based upon Plaintiffs actions on November 5, 2011, Defendants argue that probable cause existed to arrest Plaintiff for a myriad of offenses- under the NYPL. I summarize the elements for each of the offenses for which Defendants assert there was probable cause to arrest Plaintiff.
• Disorderly Conduct-Violation of sections 240.20(1) and 240.20(6) require that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... (1) [h]e engages in . fighting or in violent, tumultuous or threatening behavior; or ... (6) [h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse,” NYPL § 240.20(1), (6);
• Obstructing Government Administra- ' tion — Violation of section 195.05 requires that a person' “intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from pérforming an official function, by means of intimidation, physical force or interference,” id. § 195.05;
• Menacing — Violation- of section 120.15 requires that “by physical menace, [a person] intentionally placet ] or attempt[ ] to place another person in fear of death, imminent serious physical injury or physical injury,” id. § 120.15; and
• Harassment — section 240.26 requires that a person, “with intent to harass, annoy or alarm another person ... follows a person in or about a public place or places; or .engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose,” id. § 240.26.
By attempting to restore order, the police were performing an official function within the meaning of Penal Law § 195.05; However, “interference” under that statute must be in part at least, physical in nature. Appellant did not struggle or do anything to interfere with the. police, and he did not intrude himself into, or get in the way of, an ongoing police activity. Any physical contact between appellant and an officer was initiated by the officer. Appellant’s failure to comply with the order to disperse, without more, lacked the requisite intentional physical component.
See Matter of Kendell R.,
The New York Court of Appeals has made clear that in order for there to be probable cause to arrest for a violation of § 240.20 there must be “actual or threatened public harm (‘inconvenience, annoyance or alarm’)” and that a defendant “either intended to cause public inconvenience, annoyance or alarm or was reckless in creating a risk of those consequences.” People v. Johnson,
Here, the intent requirement for both statutes is met. Plaintiff concedes— and the video evidence shows — that during the demonstration, he repeatedly shouted “treason” at a close distance to Lieutenant Zielinski, and sought to and did remain at that close distance while Lieutenant Zielin-ski was issuing orders to the demonstrators through the bullhorn. (See generally TARU 14:35-14:50.) Plaintiff testified that, by shouting “treason,” he sought to inform the officers that their orders to the crowd of demonstrators to disperse were “denying the peaceful protesters our right to public assembly.” (Mediavilla Aff. ¶ 17; see P’s 56.1 ¶ 73.) Plaintiff concedes that as he “approached the Courthouse steps, [he] walked next to a line of police officers, and began speaking to many of them about how the denial of this peaceful public assembly was a betrayal of their oath of office.” (Mediavilla Aff. ¶ 13; see P’s 56.1 ¶¶ 67, 73.) When no officer responded, “[i]n a very short time, I told the officers present that they were ... committing treason.” (Mediavilla Aff. ¶ 16; see P’s 56.1 ¶ 73.) Plaintiff apparently altered what he was saying — i.e., from pointing out that by denying the protestors a place to assemble peacefully the officers were violating their oath of office to shouting one word “treason”
It is not disputed that orders to disperse were given by Lieutenant Zielin-ski and other officers, and that Plaintiff did not leave the area and/or clear the sidewalk.
Here, the officers’ orders to disperse were lawful. The New York City Charter § 435(a) states “the police department and force shall have the power and it shall be their duty to ... preserve order at .... all public meetings and assemblages ... regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public ..., ” N.Y.C. Charter § 435(a). The City “certainly has a significant interest in keeping its public spaces safe and free of congestion.” Bery v. City of N.Y.,
To the extent Plaintiff argues that the orders to disperse were unlawful because they violated Plaintiffs First Amendment right to free speech, “First Amendment protections, while broad, áre not absolute. It is axiomatic, for instance, that government officials may stop or disperse public demonstrations or protests where ‘clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears.’ ” Jones v. Parmley,
There is no First Amendment violation when the government “regulates by reasonablé, appropriate and noil-discrimi-natory measures the time, place and manner of use of the streets for public assemblies. ...” People v. Pearl,
Therefore, I find that there are no material questions of fact concerning whether the demonstrators’ presence on the sidewalk was sufficient to and was obstructing pedestrian traffic. The dispersal orders of the police were a reasonable, appropriate, and limited means of maintaining order and the free movement of pedestrian traffic. Therefore, even if Plaintiff was arrested solely on the basis of his refusal to disperse, I find that the arresting officers had probable cause. Here, not only did Plaintiff refuse to disperse, he also purposefully approached Lieutenant Zielinski because he “seemed to be in charge,” (Mediavilla Aff. ¶ 16; see P’s 56,1 ¶ 71), shouted “treason” repeatedly, and made physically provocative movements by following Lieutenant Zielinski that provided the arresting officers with probable cause to arrest Plaintiff for Disorderly Conduct and Harassment pursuant to NYPL §§ 240.20(1) and 240.26.
Criminal violations under §§ 240.20(1), and 240.26 require a showing, respectively, that a person (i) was engaged in “tumultuous or threatening behavior,” or (ii) “with intent to harass, annoy or alarm another person ... followed] a person in or about
In sum, I find that there was probable cause to arrest Plaintiff for Disorderly Conduct under NYPL §§ 240.20(1), 240.20(6), Obstruction of Governmental Administration under § NYPL 195.05, and Harassment under § 240.26.
b. Deprivation of Federal Civil Rights
In light of my finding that there was probable cause to arrest Plaintiff, I now turn to Plaintiffs specific claims for relief. Plaintiffs first claim under § 1983 alleges that Defendants violated his rights under the First, Fourth, Fifth, and Fourteenth Amendments. (Compl. ¶¶ 82-89.) Plaintiff incorporates the entirety of his factual allegations by reference into this claim, (id. ¶ 82); however, he does not explain how this claim is distinct from those identified in his other claims for relief. The allegations in the First Amended Complaint do not give Defendants fair notice of the substantive and factual grounds upon which the claim rests. Plaintiffs claim is therefore insufficient under Fed. R. Civ. P. 8(a)(2); see Sforza v. City of New York, 07-CV-6122,
c. False Arrest
Next, I turn to Plaintiffs false arrest claim. A false arrest claim requires a plaintiff to prove “(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Liranzo v. United States,
Where an arrest is made without a warrant,'“the defendant [in a false arrest case] ... bears the burden of proving probable cause as an affirmative defense.” Dickerson v. Napolitano,
’ Even in the absence of a finding of probable cause, the arresting officers had “arguable probable cause” because, for the same reasons I finds that probable cause existed, I find that it was objectively reasonable for the arresting officers to believe that probable cause existed. Garcia,
d. Malicious Prosecution
Under New York law,. “[t]he elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) .its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice.” Savino v. City of New York,
Further, even in the absence of probable cause, Plaintiffs malicious prosecution claim fails because the charges stemming from his November 5, 2011 arrest were disposed of through an “adjournment in contemplation of dismissal,” dr an “ACD.” (Compl. ¶¶ 72-73.) “An individual granted an ACD cannot maintain a Section 1983 action sounding in false arrest or malicious prosecution.” Hines v. Port Auth. of N.Y. & N.J., No. 94-CV-5109,
Finally, in the alternative, it is clear that the arresting officers would be entitled to qualified immunity on Plaintiffs malicious prosecution claim. “[Cjontinuing probable cause is a complete defense to a constitutional claim of malicious prosecution.” Betts v. Shearman,
-As discussed above, the arresting officers had, at a minimum, arguable probable cause to arrest Plaintiff for the crimes charged. There is no allegation that any intervening events or. information made the imposition of charges “manifestly unreasonable.” Jean v. Montina,
e. Excessive Force
Mediavilla further contends that the officers used excessive force during his arrest. (Compl. ¶¶ 112-13, 116-18.) Specifically, Plaintiff alleges that the ar
“Courts apply a separate standard to claims for excessive force in the use of handcuffs.” Sachs v. Cantwell, No. 10-CV-1663,
The injury requirement is “particularly important,” Sachs,
Plaintiff fails to allege facts sufficient to support his claim for tight handcuffing in either the First Amended Complaint or his affidavit. Specifically, Plaintiff does not allege or identify any evidence in the record that demonstrates that he told any officer that his handcuffs were too tight. See Sachs,
In his memorandum of law in opposition to Defendants’ converted motion for summary judgment, Plaintiff raises a new theory of excessive force, asserting that Plaintiff “was pulled from behind and knocked to the ground, and, once he was on the ground, four to five police officers sat or kneeled on him while effecting his arrest.” (P’s Mem. 14.) Because this theory of excessive force is raised for the first time in Plaintiff’s opposition to Defendants’ motion for summary judgment, I need not consider it here.
However, even if I were to consider Plaintiffs newly raised allegations, any excessive force claim based upon them would also fail. The evidence reflects that Plaintiff (1) was agitated when shouting “treason” at Lieutenant Zielinski from a close distance; (2) took a quick step or steps toward Lieutenant Zielinski following him as he had turned away; and (3) confronted and twice shouted “treason” at Lieutenant Zielinski when he turned around to face Plaintiff. (See MV1 08:02-08:15; TARU 14:30-14:50; Mediavilla Aft ¶¶ 18-19; P’s 56.1 ¶¶ 78-79.) The officers could reasonably have viewed Plaintiff as a potential threat given his conduct, including the escalation of his behavior towards Lieutenant Zielinski. See People v. Weaver,
f. First Amendment
Mediavilla alleges that his First Amendment rights were violated when he was arrested at the protest on November 5, 2011. As an initial matter, as noted above, Plaintiffs affidavit clearly demonstrates that he freely exercised his First Amendment rights, expressing his views to various police officers before his arrest. (Mediavilla Aff. ¶¶ 11-17.) Plaintiff alleges in the First Amended Complaint that he was arrested in retaliation for being present at an Occupy Wall Street event, and “criticizing” police officers. (Compl. ¶ 121.) “In order to state a retaliation claim, we require a private citizen to show: ‘(1) he has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right.’” Kuck v. Danaher,
Because I find that there was probable cause to arrest Plaintiff, his First Amendment claims must fail. See Fabrikant v. French,
Even if there was no probable cause, the officers would be entitled to qualified immunity because the evidence demonstrates that the officers were reasonable in believing Plaintiff should be subject to arrest in light of his conduct. “A state actor charged under § 1983 with violating a- plaintiffs constitutional rights - is entitled to have the action dismissed on the basis of qualified immunity if at the time of the challenged conduct there was no ‘clearly established law' that such conduct constituted a constitutional violation.” Lynch v. Ackley,
While pleaded as a retaliation claim, Plaintiff includes an assertion of a time, place, and manner restriction for the first and only time in his opposition papers.' (See generally P’s Mem. 22-28.) As an initial matter, I need not consider an argument raised for the, first time in Plaintiffs opposition to Defendants’ motion for summary judgment. See Avillan,
g. Failure to Intervene
Mediavilla next asserts § 1983 claims against the Defendant Officers for the failure to intervene on his behalf and protect him from unconstitutional treatment, (See Compl. ¶¶ 96-102.) To state such a claim, a plaintiff must show that defendant observed or had reason to know “(1) that excessive force [was] being used; (2) that a citizen ha[d] been unjustifiably arrested; or (3) that any constitutional violation ha[d] been committed by a law enforcement official.” Anderson v. Branen,
Even if I had found probable cause lacking, the Defendant Officers would be entitled to qualified-immunity for any failure to intervene in the arrest of Plaintiff. I find that, looking at the information available to the arresting officers, in particular Plaintiffs increasingly tumultuous behavior, at the time of the arrest, Adams,
h. Municipal Liability
Finally, Plaintiffs claims based on municipal liability under Monell cannot stand without an underlying constitutional violation. Since Plaintiffs false arrest, malicious prosecution, excessive force, first amendment, failure to intervene; and general federal civil rights claims fail, Plaintiffs Monell claim fails. Phillips v. DeAngelis,
Even if there was an underlying violation of Plaintiffs constitutional rights, his Monell claim would fail. A municipality may be held liable under § 1983 only if a plaintiffs injury is. the result of municipal policy, custom, or practice. Monell,
(1) a formal policy officially endorsed by the municipality; (2) actions taken by the government officials responsible for establishing municipal policies related to the particular deprivation in 'question; (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymak-ing officials; or (4) a failure by policy makers to train or supervise subordinates.
Harper v. City of N.Y., 11-CV-4333,
Plaintiff alleges that “Defendant City of New York had de facto policies, practices,
As an initial matter, it is well established that only admissible evidence may serve to support or defeat a motion for summary judgment. See St. Mary’s Honor Ctr. v. Hicks,
Further, references to other litigations are insufficient to establish the requisite policy or practice required to sustain Monell claims. See, e.g., Jean-Laurent v. Wilkerson,
In addition, Plaintiffs Monell claim fails because Plaintiff has not offered any evidence establishing a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Triano,
In sum, Defendants’ motion for summary judgment, (Doc. 53), is GRANTED.
IV. Motion to Amend
A. Legal Standard
A motion to amend a complaint is made pursuant to Federal Rule of Civil Procedure 15, which provides that leave to amend “should [be] freely give[n] ... when justice so requires.” Fed. R. Civ. P. 15(a)(2); Foman v. Davis,
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should ... be “freely given.”
Foman,
With regard to the futility prong, “the proposed amended complaint [need only be] sufficient as to some claims” for the request to not be futile. Kassner v. 2nd Ave. Delicatessen Inc.,
B. Discussion
As discussed in Part III of this Memorandum & Order, Plaintiffs claims fail as a
In the Second Amended Complaint, Plaintiff seeks to add support for his First Amendment claims, (see id. ¶¶ 174-77), alleging that Plaintiff, in shouting “treason” was “verbally explaining] to various members of the NYPD, including Defendant Lieutenant Zielinski, that they were violating their oaths of office and the U.S. Constitution” (id. ¶ 174) and that “[i]n response to Plaintiff ... shouting the word TREASON at Defendant LIEUTENANT ZIELINSKI, Plaintiff ... was arrested,” (id. ¶ 177). Plaintiff raised these issues in his affidavit, and I have considered those allegations in making my decision. Plaintiff also seeks =to amend to add support for his Monell liability claims, (see, generally, id. ¶¶ 184-273), adding details of, inter alia, the 2004 Republican National Convention, (id. ¶¶ 184-185), and the testimony of officers given in unrelated actions purporting to show a lack of First Amendment training, (id. ¶¶ 197-208, 218-226). As with the amendments concerning the events of November 5, 2011, much of the Second Amended Complaint’s new allegations in support of Plaintiffs Monell claim are captured in Plaintiffs Affirmative Rule 56.1 Statement, which I have considered in coming to my ruling. (Compare Second Am. Compl. ¶¶ 224-226, with P’s 56.1 ¶¶ 14(1-141 (describing the testimony of non-party Lieutenant Konstantinidis concerning First Amendment training).)
Because none of the additional allegations would support a finding that the Officer Defendants lacked probable cause to arrest Plaintiff on November 5, 2011, and/or are duplicative of allegations contained in Plaintiffs affidavit and Rule 56.1 Statement, I find that amendment of the First Amended Complaint would be futile. Milanese,
V. Conclusion
For the reasons stated herein, Defendants’ motion for summary judgment is GRANTED in its entirety. Plaintiffs cross motion to amend the First Amended Complaint is DENIED. The Clerk’s Office is respectfully requested to terminate all open motions and close the case.
SO ORDERED.
Notes
. Plaintiff’s surname appears throughout Plaintiff's briefings as both "Media Villa” and "Mediavilla.” For purposes of this Memorandum & Order, I will use "Mediavilla” in referring to Plaintiff.
. "P’s Resp. 56.1” refers to Plaintiff’s Responsive 56.1 Statement. (Doc. 70.)
. "P's 56.1” refers to Plaintiff’s Affirmative 56.1 Statement. (Doc. 71.) Defendants admit that Plaintiff participated in an Occupy Wall Street march and demonstration on November 5, 2011, that Plaintiff’s affidavit submitted with his opposition papers states that the march and demonstration were related to Bank Transfer Day but states that the facts related to Bank Transfer Day are not material to the current litigation. (Defendants’ Response to Plaintiff’s Affirmative 56.1 Statement ("Ds’ Resp. 56.1”) ¶¶ 31-33, Doc. 77.)
. "Mediavilla Aff.” refers to the Plaintiff's Affidavit. (Doc. 65-1.)
. There were over 100 demonstrators who occupied the sidewálk in front of 60 Centre Street. Some of the protestors were chanting — among other things "we want the steps,” "we are pedestrian traffic,” and "we are the 99%” — certain protestors were taking pictures of the police with cameras, one of more of the protestors was playing a harmonica, some protestors.were holding signs and some of the protestors appeared to be pushing up against and into the police officers who had formed a line on the first step(s) of 60 Centre Street. (Ds’ 56.1, ¶¶ 13-34, 42; Anakhu Deck, Ex. D, "TARU,” 02;56-07:08.) "Ds' 56.1” refers to Defendants' Local Rule 56.1 Statement of Undisputed Fact, (Doc. 61); "Anakhu Deck” refers to the Declaration of Joy Anakhu in Support of Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6), (Doc. 54); "TARU” refers to the NYPD’s Technical Assistance Response Unit, but I use the acronym here to identify the video recording provided as Exhibit D to the Anakhu Declaration that was filmed by that Unit. The numbers that appear after the TARU citations refer to the elapsed time on the video. The TARU video includes a date and timestamp; however, because (i) there is nothing in ,the record that indicates that this timestamp was verified as accurate; (ii) around the elapsed time of 14:35, the filming appears-to have stopped and the ti-mestamp jumps from 3:13:45 to 3:19:10; and' (iii) no other videos in evidence have a date and timestamp, I will cite to the elapsed time for consistency and clarity. At some point the police on the first, step(s) of 60 Centre Street .began holding what appears to be a flexible plastic orange net fence that is between two and three feet high creating a continuous wall between the protestors and the steps to 60 Centre Street. The fence had writing on it in various locations that said "Police Line Do Not Cross.” (See, e.g., TARU 03:Í8-07;08; Anakhu Decl.,' Ex. C, "MV1," 02:33-02:39.) Other similar nets were unrolled and also used in other locations in front of 60 Centre Street. One of the protestors who was standing on the side walk in front of 60 Centre Street yelled to the crowd — who repeated each phrase he spoke — "the First Amendment of the Constitution that the- police are supposed to defend states that we have the right to freely assemble whenever, wherever we deem fit, This is the Constitution of the United States, this is my permit,” (MV-1 05:01-05:36.)
. Defendants acknowledge that Mediavilla’s affidavit references these facts but dispute officers were preventing people -from assembling or engaging in discussions. (Ds' Resp. 56.1 ¶ 64.)
. “Youtubel” refers to the video recording provided as Exhibit E to the Anakhu Declaration. The numbers that appear after the You-tubel citation refer to the elapsed time on the video.
. “MVl” refers to the video recording provided as Exhibit C to the Anakhu Declaration. The numbers that appear after the Youtubel citation refer to the elapsed time on the video.
. In Defendants’ Response to Plaintiff’s Affirmative 56.1 Statement, (Doc. 77), Defendants note that Plaintiff has withdrawn his claims related to the November 12, 2011 arrest and as such these facts are no longer in issue. I include the allegations here for purposes of completeness. Defendants assert that, to the extent any response is required to these allegations, they dispute the facts asserted in Plaintiff’s Affirmative 56.1 Statement concerning the November 12, 2011 arrest. (Doc. 77 at 34.)
. Although not relevant to my decision, I will take a moment to discuss Guy Fawkes and the use of Guy Fawkes masks by protestors involved in the Occupy movement. "In 1605 Fawkes was part of a Roman Catholic group that plotted to blow up the House of Lords during the state opening of parliament. The ‘Gunpowder plot’ was intended to kill Ring James I, a Protestant, and install his nine-year-old daughter on the throne to rule as a Roman Catholic monarch. But an anonymous letter describing the plans was sent to the King. Fawkes was caught in the cellars of the House with 36 barrels of gunpowder nearby. He was tortured and the conspirators were convicted of high treason in January 1606.” The Economist explains, How Guy Fawkes became the face of post-modern protest, The Economist (Nov. 4, 2014), http://www. economist.com/blogs/economist-explains/ 2014/1 l/economist-explains-3. The Guy Fawkes mask was made popular by the 1980s comic/graphic novel, "V for Vendetta”, that in 2006 was made into a film in which a Fawkes-like character was portrayed as an “anti-hero for the modern age.” Id. The name of the lead character was "V”. Edward Lo-vett, How Did Guy Fawkes Become a Symbol of Occupy Wall Street?, Nightline (Nov. 5, 2011), http://abcnews.go.com/blogs/headlines/ 2011/11/how-did-guy-fawkes-become-a-symbol-of-occupy-wall-street/. Wearing the mask became part of various protest movements, including the Occupy movement. See id. ("And a Facebook page with an image of V in Fawkes costume asked ‘all OCCUPY Protestors to come together on November 5th, 2011, to rally again for our efforts to end corruption and social injustice.’ ”).
. "Stecklow Decl.” refers to the Declaration of Wylie Stecklow in Opposition to the Defendants’ Motion for Summary Judgment and in Support of Plaintiffs Cross Motion for Leave to Amend his Complaint. (Doc. 65.)
. Plaintiff’s withdrawal of the claims related to his November 12, 2011 arrest does not alter the number of claims at issue since Plaintiff alleged all seven causes of action based upon, his November 5, 2011 arrest. Plaintiff's proposed Second. Amended Complaint asserts the same causes of action as the First Amended Complaint. (Compare Docs. 4, 72-1.)
. "Compl.” refers to Plaintiff’s First Amended Complaint, (Doc. 4.)
. Initially, Plaintiff attempted to file the proposed Second Amended Complaint, ("Second Amended Complaint,”) on the docket with his cross motion to amend, (see Doc. 68), but a filing error required -Plaintiff to file this - as an exhibit to a declaration. (Docs. 72, 72-1.)
. Treason is ‘'[t]he offense of attempting to overthrow the government of the state to which one owes allegiance, either by making war against the state or by materially supporting its enemies.” Black’s Law Dictionary (10th ed. 2014).
. Though I find that Plaintiff’s behavior was aggressive, liability for obstruction of governmental administration does not require a person to physically interfere with an officer's attempts to establish order: a party's refusal to comply with orders to disperse is enough to establish probable cause. Marcavage,
. “P’s Mem,” refers to Plaintiff[’]s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion. (Doc. 69.)
. I find that the evidence presented does not support a finding that Plaintiff violated NYPL § 120.15 (Menacing in the third degree) because thére is insufficient evidence that Plaintiff ''intentionally placefd] or attemptfd] to place” Lieutenant Zielinski, or any other person, "in fear of death, imminent serious physical injury or physical injury.” NYPL § 120.15. However, this finding does not alter my decision since as explained above I find that there was probable cause to arrest Plaintiff under other sections of the NYPL.
. Plaintiff might contest that his shouts of "treason” indeed served the legitimate purpose of expressing protest. However, because I find that Plaintiff's behavior in shouting "treason” was tumultuous and aggressive, I find that, taken as a whole, his conduct did not serve a legitimate purpose. Indeed, based upon the maimer in which Plaintiff yelled "treason,” no reasonable juror could find Plaintiff was merely trying to, communicate his thoughts about the officers’ actions or trying to convince them to take an alternative course of action rather than to harass them.
. Indeed, with regard to Plaintiff's arrest the First Amended Complaint merely states that “Without warning, the Defendant POLICE OFFICERS grabbed Plaintiff JOSE MEDIA-VILLA, forcing him away from the other demonstrators.” (Compl. ¶ 60.) The allegations in the First Amended Complaint were insufficient to provide notice to Defendants of the nature and facts related to Plaintiffs new excessive force claim and I would also dismiss them for failure to meet pleading standards under Rule 8. "Rule 8(a)(2) of the Federal Rules of Civil Procedure 'requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ,.. claim is and the grounds upon which it rests[,]’” Arista Records, LLC v. Doe 3,
. "Ds’ Reply” .refers to Reply. Memorandum of Law in Support of Defendants’ Converted R. 12 Motion and in Opposition to Plaintiffs Motion to Amend the Complaint. (Doc. 78.)
. Because I grant Defendants’ motion for summary judgment, I need not and do not reach Defendants’ argument that Plaintiff's claims are time barred. (See Ds’ Mem. 17-19.) Similarly, Defendants’ argument that Plaintiff fails to allege facts establishing the personal involvement of many of the individual defendants, (see Ds’ Mem. 19-20), is rendered moot by my findings.
. Plaintiff does not seek to add excessive force allegations, nor does he seek to add support to his tight handcuffing claims. (Compare Am. Compl. ¶¶ 65, 111-119 with Second Am. Compl. ¶¶ 102, 162-170.)