Porat v. Lincoln Towers Community Ass'n | Cases | Westlaw

*1 Ram Z. Porat (“Plaintiff”) brings the present action against the Lincoln Towers Community Association, security guards Boniface Bulloy, FNU Perry, Thomas McNamara and John Does 1-4, New York City Police Officers Richard Lopez and John Doe 5, John Doe Corporations 1-2 and the City of New York (collectively, “Defendants”) as a result of an incident that took place in and around the Lincoln Towers apartment complex in April of 2003. Presently before the Court is the motion to dismiss the First Amended Complaint (“Complaint” or “Compl.”) of Defendants Lincoln Towers Community Association, Boniface Bulloy, FNU Perry and Thomas McNamara (the “Private Defendants”).

Ram Z. Porat (“Plaintiff”) is a “photo hobbyist,” (Compl., ¶ 16), who “is originally from Israel and who speaks with an Israeli accent.” (Id., ¶ 39) On April 23, 2003, he was walking north on 11th Avenue, past the point where it becomes West End Avenue. (Id., ¶ 16) Plaintiff approached 66th St., where the Lincoln Towers complex begins, at approximately 6:00 PM. (Id., ¶ 17) Lincoln Towers is a group of residential buildings that occupies the space enclosed by 66^th and 70^th Streets on the north and south and Freedom Place and Amsterdam Avenue to the east and west.

Plaintiff was standing on West End Avenue taking pictures of the Lincoln Towers on a digital camera “recently purchased for a friend,” (Id., ¶ 16), when he was stopped by a Lincoln Towers security guard and asked if he was “a resident of Lincoln Towers,” (id., ¶ 19). An interaction followed in which Plaintiff was told that management policy did not permit non-resdients to take photographs of the buildings. (Id., ¶ 20) “Plaintiff took more pictures,” (id., ¶ 21), “then entered the public courtyard,” (id., ¶ 22), and “continued to take pictures,” (id., ¶ 25). A second guard approached Plaintiff, “accosted him and demanded to know why he was taking pictures.” (Id.) Plaintiff told the guard that “he was taking pictures for aesthetic and recreational reasons,” (id., ¶ 26), but Plaintiff refused to show either the pictures or any form of identification, (id.). The guard then stated that Plaintiff was under civilian arrest. (Id.)

Plaintiff then states that in attempting to exit the premises, the security guards “blocked [his] passage.” (Id., ¶ 28) Over the next several minutes, Plaintiff encountered three more security guards, including one guard who identified himself as the head of security. (Id., ¶¶ 29-34) Plaintiff was again asked to show the pictures and identification and he again refused. (Id., ¶ 29) Plaintiff believed he was unable to leave, as the guards were “blocking his way in an intimidating and threatening manner,” (id., ¶ 34), so he “asked the [guards] to call the police,” (id.).

Eventually two New York city police officers arrived and after a “private interview, out of earshot of plaintiff,” (id., ¶ 36), between Officer Richard Lopez (“Officer Lopez”) and the head security guard, John Doe 2, Officer Lopez issued Plaintiff an appearance ticket for trespassing. This occurred after a discussion in which a second police officer told Plaintiff that “ ‘security concerns after 9/11’ were the rationale behind the prohibition against taking pictures.” (Id., ¶ 37)

*2 To contest the ticket, Plaintiff retained a private attorney and appeared in court on April 28, 2003. (Id., ¶ 42) “No one appeared in court to prosecute the complaint, and judgment was entered in favor of Plaintiff.” (Id.) Almost exactly one year later, on April 27, 2004, Plaintiff initiated the present action in this Court.

In his ten-count Complaint, Plaintiff advances four federal claims. Pursuant to 42 U.S.C. § 1983, Plaintiff alleges: (1) malicious prosecution in violation of the First and Fourteenth Amendments; (2) false arrest and false imprisonment in violation of the First and Fourteenth Amendments; (3) retaliation in response to a protected exercise of First Amendment rights; and (4) conspiracy to violate the First, Fourth and Fourteenth Amendments.¹ The Private Defendants presently move to dismiss the first four claims, the purported federal claims, and Plaintiff's tenth claim, the declaratory judgment claim.

In order to prevail on a malicious prosecution claim, a plaintiff must show four elements: (1) the defendant initiated a prosecution against plaintiff; (2) without probable cause to believe the proceeding could succeed; (3) the proceeding was begun with malice; and (4) the matter terminated in his favor. O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir.1996). In addition, when the malicious prosecution claim is brought under Section 1983, the Supreme Court has held that a plaintiff must establish a deprivation of liberty under the Fourth Amendment. Albright v. Oliver, 510 U .S. 266, 274 (1994). Defendants do not squarely address the four-element test laid out in O'Brien. Instead, they focus on the Albright requirement, arguing that Plaintiff never suffered a Fourth Amendment deprivation of liberty. The events of April 23, 2003 that resulted in an appearance ticket ordering Plaintiff to appear in court five days later do not rise to the level of a Fourth Amendment deprivation of liberty and, therefore, cannot substantiate a malicious prosecution claim.

Where an alleged malicious prosecution is the basis for a Section 1983 claim, a plaintiff must show a deprivation of liberty consistent with the concept of “seizure.” Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995). This seizure must be effected “pursuant to legal process.” Heck v. Humphrey, 512 U.S. 477, 484 (1994). According to the Court of Appeals, a seizure pursuant to legal process will either be in the form of a warrant and accompanying arrest or “a subsequent arraignment, in which any post-arraignment deprivations of liberty might satisfy this constitutional requirement.” Singer, 63 F.3d at 117. Neither situation is present here. Plaintiff was merely issued a summons, (Compl., ¶ 38), that required that he appear in court in the near future; Plaintiff was not arrested, “none of the security guard defendants appeared in court to prosecute the complaint, and eventually judgment was entered in favor of the plaintiff,” (Compl., ¶ 42). Plaintiff did not face an arraignment or any post-arraignment restriction on his travel.

*3 Thus, Plaintiff fits squarely into the line of cases following Singer, holding that a single court appearance, as an alleged deprivation of liberty, is insufficient to support a Section 1983 malicious prosecution claim. See Morales v. United States, 961 F.Supp. 633, 638 (S.D.N.Y.1997)( “[W]here ... the arrested person ... has no restrictions on travel, is not required to post bail, and is only required to appear at subsequent hearings (at which time the charges are dismissed), there may not be an injury sufficient to implicate the Fourth Amendment.”); Maldonado v. Pharo, 940 F.Supp. 51, 54 (S.D.N.Y.1996)(“[T]he mere court-imposed obligation to return for proceedings [on one day] does not satisfy the constitutional ‘seizure’ requirement.”); Neimann v. Whalen, 911 F.Supp. 656, 670 (S.D.N.Y.1996) ( “[T]he requirement that plaintiff appear before the court for hearings or trial on the charge against her would not seem, by itself, to constitute the requisite constitutional injury.”); Subirats v. D'Angelo, 938 F.Supp. 143, 149 (E.D.N.Y.1996) (a single appearance at court and associated legal expense are “insufficient to establish a Section 1983 claim for malicious prosecution.”).

Plaintiff does cite authority for the proposition that his single court appearance represents a deprivation of liberty sufficient to support a Section 1983 malicious prosecution claim. These cases follow the Court of Appeals' holding in Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir.1997), that restriction of a citizen's constitutional right to travel and a requirement to appear in court periodically are conditions “appropriately viewed as seizures within the meaning of the Fourth Amendment.” See also Kirk v. Metropolitan Transportation Authority, 2001 U.S. Dist. LEXIS 2786 at *46-47 (S.D.N.Y.2001); Dorman v. Castro, 214 F.Supp. 299, 309 (E.D.N.Y.2002); Kirton v. Hassel, 1998 U.S. Dist. LEXIS 6535 at *19 (E.D.N.Y.1998); Sassower v. City of White Plains, 922 F.Supp. 652, 656 (S.D.N.Y.1998); Willner v. Town of North Hempstead, 977 F.Supp. 182, 190 (E.D.N.Y.1997).

However, Murphy and its progeny are readily distinguishable from the present case. One of the conditions imposed upon the Murphy plaintiff's release was that he not leave the State of New York pending the resolution of the charges against him. Murphy, 118 F.3d at 946. Plaintiff does not allege that he was subjected to any such restriction on his travel. Additionally, the plaintiff in Murphy was “called for court appearances some eight times during the year in which his criminal proceeding was pending.” Id. Here, Plaintiff alleges that he has appeared in court only once. Because Murphy is distinguishable from the present case, the Singer standard is controlling. Plaintiff does not allege that he was arrested or arraigned on criminal charges and therefore he cannot claim a deprivation of liberty “pursuant to legal process” that substantiates his malicious prosecution claim. Singer, 63 F.3d at 117. Accordingly, Plaintiff's second claim is dismissed.

*4 Plaintiff's third claim for false arrest and imprisonment against police officers Richard Lopez and John Doe 5 fares no better.² Ordinarily, in evaluating false arrest and imprisonment claims against police officers, courts must determine whether the officer had probable cause to affect an arrest. See Singer, 63 F.3d at 118; Cameron v. Fogarty, 806 F.2d 380, 386 (2d Cir.1986) cert. denied, 481 U.S. 1016; Neimann, 911 F.Supp. at 666. Here, however, Officer Lopez issued Plaintiff a “summons for trespassing” and stated that if he “did not appear in court on the appointed date, a warrant would issue for his arrest.” (Complaint, ¶¶ 38-39). Therefore, Plaintiff's false arrest and imprisonment claim fails because his pleading states that he was simply never arrested. See, e.g., Nazarian v. Compagnie Nat'l Air France, 989 F.Supp. 504, 508 (S.D.N.Y.1998) (false arrest claim dismissed where no “arrest” occurred). Accordingly, Plaintiff's third claim is dismissed.

Plaintiff also alleges that Defendants violated his First Amendment rights by issuing him an appearance ticket for trespass in retaliation for his exercise of conduct protected under the First Amendment. In order to prevail on a First Amendment retaliation claim, a plaintiff must prove: (1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by the exercise of that right; and (3) defendants' actions effectively chilled the exercise of that right. See Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.2001); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998). Plaintiff cannot satisfy either of the first two of these three elements, and therefore his First Amendment retaliation claim fails.

As to the first element, although communicative photography is well-protected by the First Amendment, see Bery v. City of New York, 97 F.3d 689 (2d Cir1996); Baker v. City of New York, No. 01 cv 4888, 2002 U.S. Dist LEXIS 18100 (S.D.N.Y. Sept. 25, 2002); Krukowski v. Swords, 15 F.Supp.2d 188 (D.Conn.1998); Connell v. Town of Hudson, 733 F.Supp. 465 (D.N.H.1990), Plaintiff's Complaint denies any communicative or other interest protected by the First Amendment. According to the Complaint, Plaintiff was taking photographs of the construction taking place on the Lincoln Towers for his own personal use.³ (Complaint, ¶¶ 16-17, 19, 26) The question therefore, is whether the First Amendment protects purely private recreational, non-communicative photography.

It is well established that in order to be protected under the First Amendment, images must communicate some idea. See Texas v. Johnson, 491 U.S. 397, 404 (1989); Bery, 97 F.3d at 694. To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 568 (1995); Montefusco v.. Nassau County, 39 F.Supp.2d 231, 242 (E.D.N.Y.1999).⁴ “Without an element of expression, there is no risk to the speaker or creator of art that his or her ideas or messages will be unlawfully extinguished ... in contravention of the First Amendment.” Id. (internal quotations omitted).

*5 Plaintiff's Complaint satisfies neither element of this standard. He effectively disclaims any communicative property of his photography as well as any intended audience by describing himself as a “photo hobbyist,” (Compl.¶ 16), and alleging that the photographs were only intended for “aesthetic and recreational” purposes. (Compl., ¶ 26) Although Plaintiff cites a number of cases that protect photography under the First Amendment, each of these cases is distinguishable in that the “speaker” intended to communicate a message to an audience, an intent that is not alleged here.

Two of the cases Plaintiff cites involved the public display and sale of visual art or the solicitation of passers-by to have pictures taken, developed and sold to them. See Bery, 989 F.3d at 689 (protected public display of visual art); Baker, 2002 U.S. Dist LEXIS 18100 at *2-5 (protected solicitation of pedestrians by photographer). Two other cases involve artistic photography or filming for an intended audience. See Tunick v. Safir, 228 F.3d 135 (2d Cir.2000) (artistic filming of nude models protected); Krukowski, 15 F.Supp.2d at 191 (photography of a professional model for her portfolio protected). Three cases involved the filming of police activities, which the courts held to be of public interest. See Smith v. City of Cumming, 212 F.3d 1332 (11th Cir.2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir.1995); Alliance to End Repression v. City of Chicago, Nos. 74 C 3268, 75 C 3295, 2000 U.S. Dist. LEXIS 6342 (N.D.Ill. May 8, 2000). Three additional cases involved filming intended for broadcast on television news or public access channels. See Demarest v. Athol/Orange Community Television, 188 F.Supp.2d 82 (D.Mass.2002); Lambert v. Polk County, 723 F.Supp. 128 (S.D.Iowa 1989); Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634 (D.Minn.1972). The remaining case Plaintiff cites involved the classic First Amendment example of a reporter attempting to take a photograph for publication with a specific story. See Connell, 733 F.Supp. at 468-73.

These cases all concerned protected First Amendment conduct not because the plaintiffs used cameras, but because the cameras were used as a means of engaging in protected expressive conduct. They do not, as Plaintiff suggests, stand for the proposition that the taking of photographs, without more, is protected by the First Amendment. Therefore, Plaintiff fails to satisfy the first element of the Section 1983 First Amendment retaliation standard, an interest protected by the First Amendment.

Even assuming that Plaintiff's recreational, non-communicative photography is protected under the First Amendment, he cannot satisfy the second element of the retaliation standard, that Defendants' actions were motivated or caused by the exercise of Plaintiff's protected expression. In this regard, Plaintiff must show that the state actor police officers-the only persons with the power to affect the alleged retaliation and issue the appearance ticket-were so motivated. Without showing that the state actors committed an unconstitutional retaliation, there can be no underlying conspiracy to implicate the security guard non-state actors. See Roesh v. Otarola, 980 F.2d 850 (2d Cir.1992); Pollack v. Nash, 58 F.Supp.2d 294, 305 (S.D.N.Y.1999).

*6 The facts alleged are as follows: Lincoln Towers is private property. (Compl., ¶¶ 9, 32) Before Plaintiff entered the property, a security guard told him that non-residents were not permitted to photograph the buildings. (Id., ¶¶ 20, 26) Knowing this, Plaintiff entered the property and began to take photographs of the buildings. (Id., ¶¶ 21, 22, 25) The guards informed Plaintiff that he was trespassing-the Complaint also notes the presence of a “No Trespassing” sign. (Complaint, ¶¶ 23, 32, 35) The security guards detained Plaintiff while Officer Lopez arrived, and a subsequent discussion between security guard John Doe 2 and Officer Lopez resulted in Officer Lopez's issuing Plaintiff an appearance ticket. (Id., ¶¶ 28-38)

Where the facts of a case show a good faith basis to make an arrest-or as here, where there is probable cause to issue an appearance ticket for trespass-a police officer's motive is irrelevant, and a claim of First Amendment retaliation must fail. See Singer, 63 F.3d at 120; Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir.1990). Plaintiff argues that there cannot be a finding of probable cause under these circumstances because the conversation in question between security guard John Doe 2 and Officer Lopez could only have been about his prohibited photography. Therefore, Plaintiff maintains that the ticket must have been issued in response to his legal exercise of his First Amendment rights.

However, the Court of Appeals has held that in cases such as this, it is insufficient merely to plead facts upon which an inference of retaliation may be drawn. Singer, 63 F.3d at 120. “We have held previously that if the officer either had probable cause or was qualifiedly immune from subsequent suit (due to an objectively reasonable belief that he had probable cause), then we will not examine the officer's underlying motive in arresting and charging the plaintiff.” Id. (citations omitted). Here, Plaintiff admits that he did not hear any part of the conversation between security guard John Doe 2 and Officer Lopez. (Compl., ¶ 36) The facts as they are actually plead do not support an inference that Officer Lopez wrote Plaintiff a ticket in retaliation for his taking pictures legally but rather establish the existence of probable cause for Officer Lopez to conclude that Plaintiff had committed the violation of trespassing on Lincoln Towers' private property. Consequently, he cannot satisfy the second element of the First Amendment retaliation standard.

With regard to the third element of the Section 1983 retaliation standard, whether Plaintiff has been “chilled” in his future exercise of his protected right, the parties naturally disagree. Defendants argue that because Plaintiff has in fact revisited Lincoln Towers with his camera on several occasions, (Compl., ¶¶ 40-41), he has not been deterred from exercising his rights at all. Plaintiff counters that on each subsequent visit, he has been prevented from taking any pictures by Lincoln Towers security, (Id .), and therefore his rights have been sufficiently “chilled.” However, because Plaintiff has not established an interest protected under the First Amendment, there can be no concern that the future exercise of a First Amendment right is being curtailed. Accordingly, Plaintiff's Section 1983 First Amendment retaliation claim is dismissed.

*7 Plaintiff's first claim purports to allege a conspiracy in violation of his First, Fourth and Fourteenth Amendment rights. (Compl., ¶ 50) It appears that this claim is directed towards Section 1983's state action requirement, where Plaintiff must show that the Private Defendants were “willful participants in a joint activity with the State or its agents.” Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir.2002). However, a Section 1983 conspiracy claim (or, indeed, any conspiracy claim) does not stand alone; it rises or falls on the strength of the underlying constitutional violations.

“The pleading of a conspiracy will enable a plaintiff to bring suit against purely private individuals, [but] the lawsuit will stand only insofar as the plaintiff can prove the sine qua non of a Section 1983 action: the violation of a federal right.” Adickes v.. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Therefore, the true inquiry is whether Plaintiff's substantive Section 1983 claims allege constitutional violations sufficient to survive a motion to dismiss. Because that question has been answered in the negative, the conspiracy claim is dismissed.

Plaintiff's tenth claim is a request for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. However, the Declaratory Judgment Act provides only a federal remedy, not a federal claim, so it can only be applied in cases in which there is an independent basis for the exercise of federal subject matter jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Goldberg v. Cablevision Systems Corp., 281 F.Supp.2d 595, 604 (E.D.N.Y.2003); Builders Federal v. Turner Construction, 655 F.Supp. 1400, 1403 (S.D.N.Y.1987). Here, as noted above, all of Plaintiff's federal claims are dismissed on the ground that he has not adequately pleaded them. Because there is no other basis for federal jurisdiction, the declaratory judgment claim is dismissed.

With no surviving federal claims, I decline to exercise supplemental jurisdiction over Plaintiff's state law claims, and they are dismissed without prejudice, pursuant to 28 U.S.C. § 1367.

Accordingly, Defendants' motion to dismiss is granted (Docket Nos. 10 and 13), and the Clerk of the Court shall mark this action closed and all pending motions denied as moot.