Opinion
23-cv-00343 (LJL)
08-01-2024
JUNWU GONG, Plaintiff, v. STUART M. SARNOFF, O'MELVENY & MEYERS LLP, CARL M. STANTON, CITY OF NEW YORK, OFFICER JOHN DOE1, OFFICER JOHN DOE 2, OFFICER JOHN DOE 3, OFFICER LAUREN A. DUFFY, Defendants.
OPINION AND ORDER
LEWIS J. LIMAN UNITED STATES DISTRICT JUDGE
Defendants City of New York and Lauren A. Duffy (together, “City Defendants”) move pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the amended complaint filed by Plaintiff Junwu Gong (“Plaintiff”) for failure to state a claim upon which relief can be granted. Dkt No. 91.
For the following reasons, the motion to dismiss is granted.
BACKGROUND
The Court accepts the well-pleaded allegations of the amended complaint, Dkt. No. 43 (“Amended Complaint” or “AC”), as true for purposes of this motion.
Plaintiff is a foreign born, ethnic Chinese U.S. permanent resident residing in Edgewater, New Jersey who has, on numerous occasions, joined with other ethnic Chinese individuals to lawfully and peacefully protest against the Chinese Communist Party (“CCP”). AC ¶¶ 46-47, 61. He alleges that he has been subjected to an ongoing campaign of harassment by agents of the CCP. Id. ¶ 70.
Defendant City of New York is a municipal corporation organized and existing under the laws of the State of New York and maintains its principal office in the County of New York. Id. ¶ 65. Defendant Lauren A. Duffy is a New York City police officer believed to be a resident of New York. Id. ¶ 69.
Plaintiff's Amended Complaint also makes allegations against the law firm O'Melveny & Myers LLP and one of its partners, Stuart M. Sarnoff, and an individual named Carl M. Stanton, alleging, among other things, that they act on behalf of, or are agents of, the CCP. Id. ¶ 57-60, 77-78. Plaintiff alleges that O'Melveny and Sarnoff “coopt[ed] the City of New York, the New York Police Department, and certain members of the New York Police Department” and “conspired to violate, and have violated, Plaintiff's rights under the Constitution of the United States of America.” Id. ¶ 76. The Court has already dismissed the claims against Stanton, O'Melveny, and Sarnoff in previous opinions. Dkt. Nos. 57, 95.
The Amended Complaint's allegations as to the City Defendants center on events that occurred on December 20, 2022, when Plaintiff was protesting at a location believed to be in the proximity of Sarnoff's home. Id. ¶ 85. At this time, Stanton was “stalking” Plaintiff and other protestors from his vehicle. Id. ¶ 87. Plaintiff had interacted with Stanton on prior occasions during which he was protesting. Id. ¶¶ 88-92. On December 20, 2022, Stanton took photos and/or video of the Plaintiff and other protestors. Id. ¶ 93. When Plaintiff and other protestors tried to engage with Stanton to ask who he was, what he was doing, and why, Stanton became “aggressive and threatening” and “indicated that he worked with or had some kind of connection to the NYPD.” Id. ¶ 94. However, Plaintiff alleges that on information and belief, Stanton is not an officer with the NYPD. Id. ¶ 96. Plaintiff told Stanton that if he did not stop what he was doing, Plaintiff would call 911, in response to which Stanton “jumped out of his car” and said he would have Plaintiff arrested. Id. ¶¶ 97-98.
Plaintiff then called 911 twice, approximately six minutes apart. Id. ¶¶ 99, 101. Three police cars appeared on the scene shortly after Plaintiff's 911 calls. Id. ¶ 102. The officers in the first police car allegedly told Plaintiff that they were responding to a different call and thus, after asking Plaintiff if he was injured and telling him more police were on the way, they continued on and did not get out of their cars. Id. ¶ 105. The second car that arrived stopped about 300 feet from Plaintiff but the officers in that car stayed at a distance observing and did not communicate with or identify themselves to Plaintiff or the other protestors. Id. ¶¶ 106, 108. While the second police car was on the scene some distance from Plaintiff, Stanton moved his car forward and made contact with Plaintiff's back, causing him to fall to the ground and Stanton did not stop until other protestors screamed at him to stop. Id. ¶¶110-111. Plaintiff called out to the officers from the second police vehicle for help, but the officers “waited for a long time” before they came out of the car. Id. ¶ 113. The officers then did not talk to Stanton but accused Plaintiff of blocking traffic. Id. ¶ 115. After this, a third police car arrived and the officers from that car “took control of the scene.” Id. ¶¶ 115-117. Plaintiff later determined that one of the officers in the third police car was Defendant Duffy. Id. ¶ 133. Plaintiff reported to these officers that Stanton had just struck Plaintiff with his car and that Stanton had been harassing, filming, and following the protestors for 30 days. Id. ¶¶ 119-120. The officers then spoke with Stanton, but Plaintiff does not know what was said, and the officers ultimately let Stanton go. Id. ¶ 121. Plaintiff was later told there would not be a police report and is unaware of any written record of the event created by police. Id. ¶¶ 122-123.
Approximately an hour after Plaintiff first called 911, Plaintiff left the scene to have lunch with other protestors at a nearby restaurant. Id. ¶ 125. Upon entering the restaurant, Plaintiff “started to feel dizzy, short of breath, and he went into shock.” Id. ¶ 126. One of the other protestors called 911 to “request information about the police officers” and to request an ambulance for Plaintiff. Id. ¶ 128. Shortly thereafter and in response to the 911 call, the officers from the third police car from earlier that day (including Defendant Duffy) re-appeared along with an ambulance. Id. ¶ 129. At this point, one of the officers asked Plaintiff for ID information and Duffy told the medical personnel that Plaintiff was “wrong” for “jumping on the car.” Id. ¶ 129. Duffy indicated that the ambulance would not leave for the hospital until a supervisor came. Id. ¶ 130. The other officer also prevented the ambulance from leaving “for several minutes” but did not explain his reasons for doing so. Id. ¶ 132. A supervisor arrived and then the ambulance left. Id.
Plaintiff was taken to Mount Sinai hospital and stayed there for the afternoon to receive treatment. Id. ¶ 134-135. Plaintiff now states that he is in “constant fear and apprehension because he does not feel safe enough to exercise his rights under United States Constitution without suffering further and more aggressive attacks.” Id. ¶ 138.
PROCEDURAL HISTORY
Plaintiff initiated this action by filing a complaint on January 18, 2023. Dkt. No. 2.Plaintiff filed the Amended Complaint on April 26, 2023. Dkt. No. 43. On May 8, 2023, O'Melveny and Sarnoff moved to dismiss the Amended Complaint against them, Dkt. No. 46, which was granted by the Court on July 17, 2023, Dkt. No. 57. The Court granted a motion by O'Melveny and Sarnoff for reasonable attorneys' fees on April 23, 2024. Dkt. No. 107. With respect to Stanton, Plaintiff initially sought an entry of default judgment against him, Dkt. No. 76, but then ultimately acknowledged that he had served the wrong individual and sought to voluntarily dismiss the claims against Stanton, Dkt. No. 93. The Court dismissed the claims against Stanton without prejudice. Dkt. No. 95.
Plaintiff attempted to file the complaint on January 13, 2023, but it was rejected due to a filing error. Dkt. No. 1.
The City Defendants moved to dismiss the Amended Complaint against them on November 9, 2023. Dkt. No. 91. Plaintiff opposed the motion, Dkt. No. 94, and the City Defendants filed a reply on December 20, 2023, Dkt. No. 101.
The City of New York was served on July 18, 2023, Dkt. No. 59, and Duffy was served on July 27, 2023, Dkt. No. 64.
LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a complaint must include “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 555, 557. The ultimate question is whether “[a] claim has facial plausibility, [i.e.,] the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Put another way, the plausibility requirement “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].” Twombly, 550 U.S. at 556; see also Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011).
When adjudicating a motion to dismiss under Rule 12(b)(6), the Court considers not only the well-pleaded allegations of the complaint but documents incorporated by reference and “matters of which judicial notice may be taken.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
DISCUSSION
Plaintiff alleges that the City Defendants: (1) violated his First and Fourteenth Amendment rights by acting in agreement with O'Melveny, Sarnoff and Stanton to take steps against him as one of the Chinese protestors against the CCP in violation of 42 U.S.C. § 1983, Dkt. No. 43 ¶¶ 140-147 (Count One); (2) engaged in a conspiracy with O'Melveny, Sarnoff and Stanton to deprive him of his rights on the basis of his race and/or ethnicity and to prevent him from exercising his constitutional rights of free speech in violation of 42 U.S.C. § 1985(3), id. ¶¶ 148-159 (Count Two); and (3) retaliated against him for his exercise of free speech rights in violation of 42 U.S.C. § 1983, Id. ¶¶ 160-169 (Count Three). He also alleges that the City and two John Doe officers violated his constitutional rights by failing to intervene to prevent Stanton from striking Plaintiff with Stanton's vehicle, id. ¶¶ 170-180 (Count Five).
Plaintiff references the Fourth Amendment in the heading to Count One of the Amended Complaint and alleges that the City was deliberately indifferent to his rights under the Fourth Amendment as well as under the First and Fourteenth Amendments. Dkt. No. 43 ¶ 144(f). In his third count, for First Amendment retaliation, Plaintiff briefly asserts that he was falsely arrested and subjected to excessive force. Id. ¶ 164. He does not otherwise reference the Fourth Amendment. In Defendants' memorandum of law in support of the motion to dismiss, Defendants argue that such conclusory assertions fail to state a claim for relief, Dkt. No. 92 at 67, and that Plaintiff has not pleaded any facts that would indicate that he was detained, arrested or confined in any manner or that he was subject to any level of force, whether reasonable or excessive, Id. at 14. Plaintiff does not respond to Defendants' arguments in his memorandum of law in opposition to the motion to dismiss or even mention the Fourth Amendment. Dkt. No. 98. Accordingly, the Court determines that, to the extent Plaintiff intended to plead Fourth Amendment claims in his Amended Complaint, those claims are abandoned. See Pincover v. J.P. Morgan Chase Bank, N.A., 592 F.Supp.3d 212, 227 (S.D.N.Y. 2022) (“A court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed”) (internal citations omitted); see also Jackson v. Federal Exp., 766 F.3d 189, 198 (2d Cir. 2014).
The Amended Complaint lists causes of action One, Two, Three, Five, Six, and Seven, with no fourth cause of action. Dkt. No. 43 at pp. 20-29. Counts Six and Seven are not asserted against the City Defendants.
The City Defendants argue that each of Plaintiff's claims against them should be dismissed for failure to state a claim for relief. Dkt. Nos. 92, 101. They argue that Plaintiff's first and second counts should be dismissed because the Amended Complaint contains no well-pleaded allegations about the existence of a conspiracy to support a claim of conspiracy to violate Plaintiff's constitutional rights under Section 1983 and that, in addition, Plaintiff fails to plead a racial or class-based discriminatory animus to satisfy Section 1985(3). Dkt. No. 92 at 913. The City Defendants also argue that Plaintiff's third cause of action for First Amendment retaliation should be dismissed because Plaintiff does not allege that any NYPD officer took any adverse action against him on the basis of his speech. Id. at 13-15. Finally, the City Defendants argue that Plaintiff's failure to intervene claim should be dismissed for failure to plead an underlying constitutional violation by a fellow officer. Id. at 15-16. Each of Defendants' arguments is well-taken.
The City Defendants also argue that the Amended Complaint should be dismissed in its entirety because the claims are conclusory and fail to give fair notice under Federal Rule of Civil Procedure 8. See Dkt. No. 92 at 6-7. “Rule 8 is fashioned in the interest of fair and reasonable notice, not technicality, and therefore is not meant to impose a great burden upon a plaintiff.” Collins v. Pearson Education, Inc., 2024 WL 895316, at *6 (S.D.N.Y. Mar. 1, 2024). Detailed factual allegations are not required and dismissal under Rule 8 is “usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well-disguised.” Id. (citing Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. 2019)). Although some of the allegations in the Amended Complaint are conclusory, which informs the Court's analysis under 12(b)(6) as discussed herein, the Amended Complaint as a whole does not fail to satisfy the modest standards of Rule 8. It does provide basic notice of the factual basis for the claims against the City Defendants namely, that they violated Plaintiff's constitutional rights on December 20, 2022 when he was engaged in protest activity and the NYPD responded to his 911 calls. The Amended Complaint does describe the conduct of the NYPD, e.g., not filing a police report or arresting Stanton, which Plaintiff claims violated his rights.
I. Count One Fails to State a Claim for Section 1983 Conspiracy
In his first count, Plaintiff alleges that the City Defendants acted in conspiracy and cooperation with O'Melveny and Sarnoff and Stanton to silence “Chinese who are critical of the CCP.” Dkt. No. 43 ¶ 144(d).
To state a conspiracy claim under § 1983, a plaintiff must allege: “(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002); Panburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). A party needs to “provide some factual basis supporting a meeting of the minds, such as that defendants entered into an agreement, express or tacit, to achieve the unlawful end, augmented by some details of time and place and the alleged effects of the conspiracy.” K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197, 208 (S.D.N.Y. 2013); see De'Bey v. City of New York, 2021 WL 8013765, at *13 (S.D.N.Y. Oct. 26, 2021), report and recommendation adopted, 2022 WL 909790 (S.D.N.Y. Mar. 29, 2022).
The Court previously has had the occasion to consider whether the Amended Complaint alleges that the City Defendants or Stanton conspired with O'Melveny and Sarnoff. The Court concluded that it did not. The Court found: There is no well-pleaded allegation, only speculation, that [O'Melveny and Sarnoff] had a relationship with Stanton or that Stanton had a relationship with the NYPD” and “Plaintiff pleads no facts that would establish a common goal between O'Melveny and/or Sarnoff and the NYPD, through Stanton or otherwise, or a plan to deprive Plaintiff of his constitutional rights.” Gong v. Sarnoff, 2023 WL 4561800, at *7-10 (S.D.N.Y. July 17, 2023); see also Gong v. Sarnoff, 2023 WL 5372473, at *14 (S.D.N.Y. Aug. 22, 2023) (noting that only “speculation and conjecture” were given by Plaintiff's counsel when asked for the basis on which he believed Sarnoff or O'Melveny colluded with police, that the Amended Complaint is “devoid of allegations regarding Stanton's connection with the police,” and that there are “no non-conclusory allegations that [. . .] Stanton or the NYPD [were] acting at the direction of [O'Melveny and Sarnoff]”). That conclusion still holds. See Slotkin v. Citizens Cas. Co. of N.Y., 614 F.2d 301, 312 (2d Cir. 1979) (the law of the case doctrine reflects the “general practice of refusing to reopen what has been decided”). The Amended Complaint contains no allegations of fact from which an inference can be drawn that the City Defendants and O'Melveny, Sarnoff, and/or Stanton had an agreement to violate Plaintiff's First Amendment rights. The Amended Complaint contains the conclusory allegation that “O'Melveny and Sarnoff . . . have conscripted elements of the NYPD to oppose the protestors who, like the Plaintiff, have been appearing, and peacefully demonstrating.” AC ¶ 74. But there are no facts to support that conclusion. To the contrary, the complaint alleges that it was not O'Melveny, Sarnoff, or Stanton who first contacted the police on December 20, 2022, but that it was Plaintiff himself. Id. ¶¶ 97, 99, 101. And, while Plaintiff identifies a number of protests against O'Melveny and Sarnoff that occurred prior to December 20, 2022, Id. ¶¶ 81, 82, he does not allege that members of the NYPD were present at any of those protests.
The facts that Plaintiff alleges with respect to members of the NYPD relate for the most part to acts that the NYPD did not take the first police car on the scene stopped when Plaintiff flagged them down but did not engage because they were responding to a different call, Id. ¶ 105, the officers in the second police car “remained at a distance” and “failed to respond in any way,” Id. ¶¶ 110, 113, and the officers in the third police car who arrived after the Stanton incident did not make a report, and left the scene, Id. ¶ 121, 125. Plaintiff does not allege any contact between members of the NYPD and any of the other Defendants before the incident in which Stanton's car hit Plaintiff. Plaintiff does allege that after the incident the officers in the second car did not talk to Stanton but “accused Plaintiff of blocking the traffic even though Plaintiff as the one who called 911.” Id. ¶ 114. He also alleges that, after he complained to a different group of officers, those officers spoke briefly to Stanton but then let him go. Id. ¶ 121. The facts that the officers spoke only briefly to Stanton and that they accused Plaintiff of blocking traffic, however, does not itself make it plausible that the NYPD acted in concert with O'Melveny, Sarnoff, or Stanton to violate Plaintiff's First Amendment right to speak critically of the CCP or to prevent him from exercising those rights in the future. It would have been “natural” and “rational” for the NYPD to conduct its own review of the situation before determining independently whether any further police action was necessary. See Twombly, 550 U.S. at 566. Cf. Rodriguez v. Winski, 973 F.Supp.2d 411, 422 (S.D.N.Y. 2013) (no joint action where police independently evaluate the situation). Plaintiff has not offered “sufficient factual details regarding an agreement among [D]efendants to violate the civil rights of [P]laintiff,” but rather has put forth “vague, conclusory, and general allegations that, standing alone, are routinely found lacking under the Rule 12(b)(6) standard.” Concepcion v. City of New York, 2008 WL 2020363, at *6 (S.D.N.Y. May 7, 2008).
Finally, Plaintiff cannot save his claim by an assertion that the officers all colluded with one another to violate his constitutional rights. Leaving aside the absence of any well-pled allegations that any of the officers cared about Plaintiff's political views, under the intracorporate conspiracy doctrine, “the officers, employees, and agents of the same corporate entity acting within their scope of employment, along with the corporate entity itself, are considered a single entity and are legally incapable of conspiring with each other.” Biswas v. City of New York, 973 F.Supp.2d 504, 534 (S.D.N.Y. 2013). “‘Although the Second Circuit has yet to extend this doctrine to § 1983 conspiracy claims, ‘courts in this district have uniformly applied the rule to Section 1983 cases as well.'” Savarese v. City of New York, 547 F.Supp.3d 305, 344 (S.D.N.Y. 2021) (quoting Nollah v. City of New York, 2018 WL 4636847, at *4 (S.D.N.Y. Sept. 27, 2018)); see De'Bey, 2021 WL 8013765, at *14; Dowd v. DeMarco, 314 F.Supp.3d 576, 587 (S.D.N.Y. 2018)); Anemone v. M.T.A., 419 F.Supp.2d 602, 604 (S.D.N.Y. 2006) (collecting cases). The intracorporate conspiracy doctrine “squarely applies when the accusation of conspiracy is levelled at a group of NYPD officers, each of whom participates as a member of the police in the arrest of a citizen.” Savarese, 547 F.Supp.3d at 344. A fortiori, it applies when the officers act together in determining not to arrest a civilian.
II. Count Two Fails to State a Claim for Section 1985(3) Conspiracy
In his second count, Plaintiff alleges that the City Defendants engaged into a conspiracy with O'Melveny, Sarnoff, and Stanton to deprive him of his rights on the basis of his race and/or ethnicity and to prevent him from continuing to exercise his First Amendment rights under Section 1985(3). AC ¶ 150. Among other things, Plaintiff alleges that the City Defendants colluded with O'Melveny, Sarnoff and Stanton, failed to respond to 911 calls, failed to lend aid and to file a police report and hindered the rendering of medical assistance, Id. ¶ 151, and that “[t]he Defendants were motivated by racial animus against the Plaintiff and his fellow protestors,” Id. ¶ 157.
To state a claim for conspiracy under § 1985(3), a plaintiff must allege: “1) a conspiracy; 2) for the purpose of depriving either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States. Furthermore the conspiracy must also have been motivated by some racial or other discretionary animus.” Gong, 2023 WL 4561800, at *10 (citing Mian v. Donaldson, Lufkin, & Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993) (per curiam)); see Abadi v. Am. Airlines, Inc., 2024 WL 1346437, at *22 (S.D.N.Y. Mar. 29, 2024).
As with claims for conspiracy under Section 1983, “[i]n order to maintain an action under Section 1985(3), a plaintiff ‘must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.'” Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003) (quoting Romer v. Morgenthau, 119 F.Supp.2d 346, 363 (S.D.N.Y. 2000)), cert. denied, 54 U.S. 1110 (2004); see Ziglar v. Abbasi, 582 U.S. 120, 154 (2017) (“To state a claim under § 1985(3), a plaintiff must first show that the defendants conspired that is, reached an agreement with one another.”). A plaintiff must allege “specific facts relating to the purported conspiracies.” K.D., 921 F.Supp.2d at 308. “It is well settled that claims of conspiracy ‘containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.'” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993)); see San Filippo v. U.S. Tr. Co. of N.Y., Inc., 737 F.2d 246, 256 (2d Cir. 1984) (“[C]onclusory allegations of conspiracy are insufficient to survive [. . .] ¶ 12(b)(6) motion for dismissal.”), cert. denied, 470 U.S. 1035 (1985); see also Taranto v. Putnam Cnty., 2023 WL 6318280, at *12 (S.D.N.Y. Sept. 28, 2023) (dismissing complaint for failure to sufficiently plead conspiracy); Gropper v. Fine Arts Hous., Inc., 12 F.Supp.3d 664, 671-72 (S.D.N.Y. 2014) (same); Brooks v. Cnty. of Nassau, 54 F.Supp.3d 254, 259 (E.D.N.Y. 2014) (same); Roffman v. City of New York, 2002 WL 31760245, at *5-6 (S.D.N.Y. Dec. 10, 2002) (same); Arroyo-Horne v. City of New York, 2019 WL 3428577, at *5 (E.D.N.Y. July 30, 2019) (dismissing 1985 conspiracy claim where the complaint did “not provide any allegations or include any facts from which the Court could conclude that any individual(s) conspired to deprive Plaintiff of equal protection of the laws or equal privileges and immunities under the laws”), aff'd, 831 Fed.Appx. 536 (2d Cir. 2020) (summary order); Friends of Falun Gong v. Pac. Cultural Enter., Inc., 288 F.Supp.2d 273, 279 (E.D.N.Y. 2003), aff'd sub nom., Friends of Gong v. Pac. Culture, 109 Fed.Appx. 442 (2d Cir. 2004) (summary order) (finding that the plaintiff failed to adequately plead a 1985(3) claim because “the complaint [did] not include any facts that could support an inference of a conspiracy among the various defendants” and because the plaintiff “cite[d] no facts from which a meeting of the minds could be inferred”).
Thus, the absence of any well-pled allegations that the City Defendants formed a conspiracy with O'Melveny, Sarnoff, and Stanton to violate Plaintiff's First Amendment rights, as discussed supra Section I, also dooms Plaintiff's attempt to plead a claim that the City Defendants conspired with those actors in violation of Section 1985(3). Plaintiff's claim of conspiracy under Section 1983 did not fail just because there was no understanding among those actors to restrict Plaintiff's speech. Plaintiff's claim failed because there is no well-plead allegation that would support that the City Defendants reached any agreement with anyone regarding Plaintiff.
Count Two also fails because Plaintiff alleges no facts to show that Defendants were motivated by discriminatory animus, which defeats any claim under § 1985(3). See e.g., Walsh v. City of New York, 2021 WL 1226585, at *8-9 (S.D.N.Y. Mar. 31, 2021).
III. Count Three Fails to State a Claim for First Amendment Retaliation
In Count Three, Plaintiff alleges that the City Defendants retaliated against him for his exercise of his free speech rights. AC ¶ 164.
To state a prima facie case for First Amendment retaliation, a plaintiff must show 1) that the speech or conduct at issue was protected, 2) that the defendant took adverse action against the plaintiff, and 3) that there was a causal connection between the speech and the adverse action. See Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82 (2d Cir. 2022). “[A]s a general matter the First Amendment prohibits government officials from subjecting individuals to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 587 U.S. 391 (2019) (internal citations omitted). A plaintiff may state a First Amendment claim where a government official takes “adverse action against someone based on that forbidden motive and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences.” Id. (internal citations omitted). A plaintiff must also establish a but for causal connection between the government's retaliatory animus and the plaintiff's subsequent injury. Id. at 398-99; see also Nat. Rifle Assoc. of Am. v. Vullo, 602 U.S. 175, 203 (2024) (Jackson, J., concurring). In other words, “a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an ‘adverse action' in response to his speech that ‘would not have been taken absent the retaliatory motive.'” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022) (quoting Nieves, 587 U.S. at 399).
Plaintiff indisputably has adequately alleged he was exercising First Amendment rights. He claims he was engaged in a peaceful protest against the CCP. AC ¶¶ 47, 82-83. However, Plaintiff has not alleged an adverse action caused by his protected speech.
The gravamen of Plaintiff's complaint appears to be that that NYPD did not respond to his complaints that Stanton had been harassing the group of protestors, did not file a police report against Stanton, and let Stanton go without arresting him. AC ¶¶ 120-123. Plaintiff does not allege that Stanton or anyone else took any action against the protestors subsequent to his report to the police about Stanton's behavior, but he does allege in conclusory form that he “is now unable to resume the free exercise of his First Amendment right to protest as he had been doing due to fear of continued, or more intense, harassment.” Id. ¶ 146. Although Plaintiff suggests that the NYPD might have been complicit in Stanton's “assault and battery,” Id. ¶ 112, against him, as noted, he pleads no facts to support that suggestion. His complaint thus squarely raises the question of whether a First Amendment claim may lie on the basis of allegations that the NYPD failed to file a police report or to make an arrest because of the speech of the alleged victim and, if so, whether there are well-pled allegations here to support such a claim.
It is settled that the State has no general Due Process obligation to ensure the safety, care, and protection of individuals who are not in its custody. See DeShaney v. Winnebago Cnty Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989). Also, “[i]t is well established that ‘[t]here is no constitutional right to an investigation by government officials.'” Troy v. City of New York, 2014 WL 4804479, at *6 (S.D.N.Y. Sept. 25, 2014) (Nathan, J.) (quoting Stone v. Dep't of Investigation of N.Y.C, 1992 WL 25202, at *2 (S.D.N.Y. Feb. 4, 1992)); accord Harrington v. Cnty. of Suffolk, 607 F.3d 31, 35 (2d Cir. 2010); White v. Renzi, 2023 WL 6205957 (2d Cir. Sept. 25, 2023); see also Mortimer v. Grodsky, 2022 WL 4096609, at *4 (S.D.N.Y. Sept. 6, 2022) (no right to governmental assistance or an investigation by government officials). Further, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Cruz v. Heo, 2023 WL 11841486, at *2 (D. Conn. Nov. 6, 2023).
The government may not offer police services to protect that speech it finds acceptable while withdrawing such services to those whose speech it finds unacceptable. See Niemotko v. State of Maryland, 340 U.S. 268, 272-73 (1951); see also Police Dep't of City of Chi. v. Mosley, 408 U.S. 92, 96 (1972) (city ordinance that allowed peaceful picketing about labor disputes but not other subjects was unconstitutional, in part because “once a forum is opened up,” the “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views”). The First Amendment prohibits the government from engaging in viewpoint discrimination. See Shurtleff v. City of Boston, Mass., 596 U.S. 243, 247 (2022); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-29 (1995); cf. Vullo, 602 U.S. at 187 (the “heart” of the First Amendment is the “recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”). The State may also violate the First Amendment when it causes a private party to punish or suppress speech it disfavors. “[A] government official cannot do indirectly what she is barred from doing directly.” Vullo, 602 U.S. at 190, 198. Thus, the police may violate the First Amendment or engage in forbidden First Amendment retaliation when, with a wink and a nod, they implicitly encourage or condone and thereby contribute to an attack on the plaintiff because of her speech. See, e.g., Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (”[p]roof of an agreement by defendant officers with ‘skinheads' expressly to permit flag burners to be beaten up without official interference or reprisal, and of a failure by the officers to interrupt such beatings inflicted in their presence, would easily permit the finder of fact to infer that the officers intended the flag burners qua flag burners to suffer the injuries inflicted”), overruled on other grounds Leatherman v. Tarrant Cnty. Narcotics Intel. and Coordinate Unit, 507 U.S. 163 (1993); cf. Okin v. Vill. of Cornwall-On-Hudson Police Dep't., 577 F.3d 415, 429 (2d Cir. 2009) (holding that due process violation may occur when police provide assurances to private party that it can act with impunity). In the Equal Protection context, the Supreme Court has held that “the State may not selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489 U.S. at 197 n.3 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). The “selective withdrawal of police protection, as when the Southern states during the Reconstruction era refused to give police protection to their black citizens, is the prototypical denial of equal protection.” White v. City of New York, 206 F.Supp.3d 920, 931 (S.D.N.Y. 2016) (citing Carmichael v. City of New York, 34 F.Supp.3d 252, 262 (E.D.N.Y. 2014)).
Plaintiff does not allege facts suggesting that the City Defendants engaged in any such conduct. He does not allege that the NYPD provided selective protection to persons based on their speech. From the allegations of the complaint, there is no reason to believe that the NYPD would have acted any differently had Plaintiff not been engaged in a protest. As noted, Plaintiff does not allege facts to support the notion that the NYPD gave permission to Stanton to engage in his conduct or that the NYPD was in any way was complicit in that conduct. Plaintiff also does not allege facts suggesting that the NYPD discriminated against him on the basis of his race or ethnicity. Although he makes a nod to race or ethnicity discrimination, see AC ¶¶ 150, 157, there are no facts in his Amended Complaint that would suggest any invidious discrimination.His sole well-pled complaint is that the police, knowing that he had been engaged in speech, failed to file a police report or to take any other action against Stanton.
Although Plaintiff alleges that “[t]he Defendants were motivated by racial animus against the Plaintiff and his fellow protestors,” Dkt. No. 43 ¶ 157, he offers no facts to support that claim. The Second Circuit has held that to succeed on such a claim under the Equal Protection Clause, a plaintiff must show that his complaints were treated differently than other similar complaints because of his protected characteristic. Okin, 577 F.3d at 438. Plaintiff has made no allegations that would satisfy the Okin standard.
Plaintiff offers no support for the proposition that the failure of the police to file a police report alone is adverse action that can give rise to a claim for First Amendment retaliation. The test for First Amendment retaliation is phrased in terms of “action” and not “inaction.” Shara, 46 F.4th at 82; see also Nieves, 587 U.S. at 398. The Supreme Court has framed the test in terms of whether the “injured person” can “establish a ‘causal connection' between the government defendant's ‘retaliatory animus' and the plaintiff's ‘subsequent injury,'” Id. at 398 (quoting Hartman, 547 U.S. 250, 259 (2006)), and, because no person has a right to have another investigated, it is difficult to conceive of the failure to investigate as cognizable injury, Harrington, 607 F.3d at 35. To allege injury in the form of a chilling of speech, a plaintiff must allege “present objective harm or the threat of some specific future harm,” while allegations of “subjective chill are not adequate.” A.F. by Fenton v. Kings Park Cent. Sch. Dist., 341 F.Supp.3d 188, 201 (E.D.N.Y. 2018). If the police make a decision not to act on the report of a plaintiff and not to investigate a third party, that plaintiff is not any worse off than he was before he made the complaint. He never had a right or a reasonable expectation that the government would investigate and thus he has not lost anything and suffered no injury or harm from the fact that the police have not investigated.
Plaintiff concludes that he is “living in a state of constant fear and apprehension because he does not feel safe enough [sic] exercise his rights under United Sates Constitution without suffering further and more aggressive attacks.” Dkt. No. 43 ¶ 138. This is insufficient to show objective harm or the threat of specific future harm because any future harm from Defendants is “entirely speculative.” Kings Park, 341 F.Supp.3d at 201.
Moreover, assuming arguendo that the failure to provide protective services on the basis of First Amendment protected expression could under some circumstances give rise to a First Amendment retaliation claim, Plaintiff has not pleaded facts from which it could plausibly be inferred that his speech was the cause of Officer Duffy's failure to take action against Stanton and to file a police report. The Supreme Court has held that to state a First Amendment retaliation claim based upon a retaliatory arrest, the Plaintiff must plead not just the subjective intent of the arresting officers, but that their action was objectively unreasonable, regardless of the officer's subjective state of mind. Nieves, 587 U.S. at 399-401 (citing Hartman, 547 U.S. at 263)). “Unless the plaintiff proves the absence of probable cause or presents objective evidence that he was arrested when other similarly situated individuals would not have been, ‘the statements and motivations of the particular officer are ‘irrelevant.'”' Savarese, 547 F.Supp.3d at 346 (quoting Nieves, 587 U.S. at 407). “Officers frequently must make ‘split-second judgments' when deciding whether to arrest.” Nieves, 587 U.S at 401 (quoting Lozman v. Riviera Beach, 585 U.S. 87, 98 (2018)). Accordingly, in both the Fourth and Fourteenth Amendment contexts, the Constitution generally eschews inquiry into the objectives of the investigating or arresting officer. The Supreme Court has reasoned that a purely subjective approach to claims of retaliatory arrest would “allo[w] even doubtful retaliatory arrest suits to proceed based solely on allegations about an arresting officer's mental state,” and thus would “compromise evenhanded application of the law by making the constitutionality of an arrest vary from place to place and from time to time depending on the personal motives of individual officers,” and would cause officers to “simply minimize their communication during arrests to avoid having their words scrutinized from hints of improper motive,” Nieves, 587 U.S. at 403-04 (internal citations and quotations omitted). If subjective intent alone is not sufficient for a claim of retaliatory arrest, a fortiori, it cannot be enough for a claim of retaliatory non-arrest.
Plaintiff does not plead facts that suggest that the actions of Officer Duffy or any other NYPD officer were objectively unreasonable. Police officers must be able to exercise some level of discretion in deciding how and when to investigate, file a report, or decline to make an arrest. Cf. Harrington, 607 F.3d at 35 (“[T]he duty to investigate criminal acts (or possible criminal acts) almost always involves a significant level of law enforcement discretion.”); Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 760-61 (recognizing the “deep-rooted nature of law-enforcement discretion”). Probable cause to arrest is a “fluid concept-turning on the assessment of probabilities in particular factual contexts.” Illinois v. Gates, 462 U.S. 213, 232 (1983). An officer must “have knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested,” and thus must make judgments regarding the reliability of the information they receive. Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). Here, Officer Duffy was not on the scene at the time of the alleged incident; her only knowledge would have come from Plaintiff, a party who was not disinterested. AC ¶¶ 119-120, 129. As to the other officers, one police car left before the incident, and the other only observed it from a distance. Plaintiff does not allege that the police acted on similar reports of individuals who were not engaged in the speech in which he was engaged. Nieves, at 407. He also does not allege that the officers made comments about his speech or used particular slurs, nor does he make any other non-conclusory allegations of fact that would indicate a causal connection between the officers' actions and Plaintiff's protected activity. See, e.g., Brandon v. Alam, 2024 WL 2764431, at *2 (2d Cir. May 30, 2024) (summary order) (plaintiff raised a genuine issue of material fact with respect to causation in his First Amendment retaliation claim where he alleged that doctor's conduct was motivated by plaintiff's protected activity in filing a medical malpractice lawsuit and plaintiff alleged that doctor made multiple specific remarks about the lawsuit while denying plaintiff certain medical treatment); Vinci v. Quagliani, 889 F.Supp.2d 348, 358 (D. Conn. 2012) (“a plaintiff may not solely ‘rely on conclusory assertions of retaliatory motive to satisfy the causal link'”) (quoting Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (abrogated on other grounds)). Without any facts suggesting an intent to discriminate on the basis of Plaintiff's speech or political views, there is no reason to plausibly infer that the officers' conduct in choosing not to investigate further or file a report was not a reasonable exercise of their discretion or would not have occurred absent Plaintiff's protected speech. Nieves, 587 U.S. at 399.
Finally, Plaintiff also suggests that his Fourteenth Amendment rights were violated by the police's failure to investigate and make an arrest, but does not specify how his Fourteenth Amendment rights were violated. See, e.g., Folk v. City of New York, 243 F.Supp.3d 363, 371 (E.D.N.Y. 2017) (dismissing claims for violations of Fourth, Fifth, and Fourteenth Amendments where plaintiff did not identify which rights under those amendments were violated or the specific factual basis for the claims). Plaintiff appears to rest his Fourteenth Amendment claims on the same premise as his First Amendment claims. Dkt. No. 98 at 5 (“Such a right to protest is the bedrock to our democracy and protected under the First and Fourteenth Amendments.”). Because Plaintiff's First Amendment and Fourteenth Amendment claims both appear to rest on the same factual basis that officers allegedly failed to protect him appropriately due to his protected speech as a protestor the analyses “coalesce” and thus the Fourteenth Amendment claims fail because the First Amendment claims fail. See Kristoffersson on behalf of R.R. v. Port Jefferson Union Free Sch. Dist., 2024 WL 3385137, at *5 (2d Cir. July 12, 2024); Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 372 (S.D.N.Y 2011); cf. 699 Eatery Corp. v. City of New York, 2024 WL 519967, at *70 (S.D.N.Y. Feb. 9, 2024).
Because the Court finds that there was no deprivation of constitutional or federal rights, the Court need not consider whether the City Defendants are entitled to qualified immunity. See, e.g., Kelsey v. Cnty. of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009); 5 Borough Pawn, LLC v. Marti, 753 F.Supp.2d 186, 190 (S.D.N.Y. 2010).
IV. Count Five Fails to State a Claim for Failure to Intervene
In Count Five, Plaintiff alleges that two John Doe Defendants are liable for “failure to intervene.” AC ¶¶ 170-80. He alleges that the two officers “knew that the Plaintiff was one of the protestors at that time, and therefore knew that he was in the exercise of his Constitutional rights, and such [sic] knew that the interference at that time was interfering with the Plaintiff's rights,” id. ¶¶ 171-175, and that by taking no “steps whatever to intervene,” they are liable for violating Plaintiff's constitutional rights, id. ¶ 176. In short, Count Five makes the same claim in slightly different language and under a different constitutional rubric as Count Three. It is no more successful.
This claim also independently fails because it is asserted against John Doe defendants who are not named and have not been served. See, e.g., Coward v. Town and Village of Harrison, 665 F.Supp.2d 281, 300-01 (S.D.N.Y. 2009).
Where one police officer has violated the constitutional rights of the plaintiff and another officer has a realistic opportunity to intervene to prevent the harm and it is objectively unreasonable for the officer to believe that the plaintiff's rights were not violated, the officer has a duty to intervene. See, e.g., Martinez v. City of New York, 564 F.Supp.2d 88, 106 (E.D.N.Y. 2021). The duty stems from the constitutional violation by the first officer; without a violation of constitutional law by the first officer, there would be no constitutional violation for the second officer to commit. See, e.g., Coleman v. City of New York, 2010 WL 571986, at *5 (S.D.N.Y. Feb. 2, 2010) (because there was no underlying constitutional violation by first set of officers, second set of officers could not be liable for failure to intervene); Rolkiewicz v. City of New York, 442 F.Supp.3d 627, 646 (S.D.N.Y. 2020) (“Failure to intervene claims are contingent upon the disposition of the primary claims underlying the failure to intervene claim.”) (internal citations omitted).
The flaw in Plaintiff's theory is that he does not allege a constitutional violation that the two John Doe officers had a duty to intervene to prevent. Plaintiff alleges that the violation occurred when “he was struck by Defendant Stanton's vehicle.” Dkt. No. 43 ¶ 173. But Plaintiff does not allege Stanton was a NYPD officer. He affirmatively admits that “Defendant Stanton is not an officer with the NYPD.” Id. ¶ 96. He also does not allege facts to establish Stanton is a state actor at all. Because Plaintiff has not alleged any violation of his constitutional rights, he thus does not allege a claim for failure to intervene. See Troy, 2014 WL 4804479, at *11.
Because the Court has determined that there was no underlying constitutional violation, the Court need not address whether Plaintiff has sufficiently alleged that the municipality is liable under Monell. See, e.g., Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006).
CONCLUSION
The motion to dismiss is GRANTED.
The Clerk of Court is respectfully directed to close Dkt. No. 91, and to close this case.
SO ORDERED.