16-1141
Pluma v. City of New York

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 10th day of April, two thousand seventeen.

    PRESENT: JON O. NEWMAN,
             DENNIS JACOBS,
                           Circuit Judges,
             LEWIS A. KAPLAN,*
                           District Judge,

    - - - - - - - - - - - - - - - - - - - -X
    ROBERT PLUMA,
             Plaintiff-Appellant,

                 -v.-                                               16-1141**

    CITY OF NEW YORK,
             Defendant-Appellee.
    - - - - - - - - - - - - - - - - - - - -X



           *
           Judge Lewis A. Kaplan, of the United States District
    Court for the Southern District of New York, sitting by
    designation.
           **
            We respectfully direct the Clerk of Court to amend
    the caption.
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FOR APPELLANT:             DAVID A. THOMPSON, Esq.,
                           Stecklow & Thompson, New York,
                           NY.

FOR APPELLEE:              MELANIE T. WEST (with Deborah A.
                           Brenner on the brief), for
                           Zachary W. Carter, Corporation
                           Counsel of the City of New York,
                           New York, NY.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Preska, C.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED IN PART, VACATED IN PART and REMANDED.

     Robert Pluma appeals from the judgment of the United
States District Court for the Southern District of New York
(Preska, C.J.). Pluma sued the City of New York (“the
City”) and various police officers, asserting state and
federal claims based on the police officers’ allegedly
unreasonable use of force during an “Occupy Wall Street”
protest. After viewing video recordings of the pertinent
events, the district court granted judgment on the pleadings
in favor of the defendants. See Fed. R. Civ. P. 12(c). We
assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.

     We review a grant of judgment on the pleadings in the
same manner as we review a motion to dismiss for failure to
state a claim. Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006). We generally accept all of the
complaint’s factual allegations as true, draw all reasonable
inferences in the plaintiff’s favor, and ask whether the
complaint sets forth a plausible claim for relief under de
novo review. See id.; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). However, we accept the factual allegations as true
only “to the extent that they are not contradicted by . . .
video evidence.” Garcia v. Does, 779 F.3d 84, 87-88 (2d
Cir. 2014).

     1. Pluma contends that the district court should not
have considered video evidence on a motion for judgment on
the pleadings; defendants counter that, because Pluma’s
first amended complaint included video stills, the district
court was entitled to view the six complete videos from
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which the stills were taken. We need not resolve this
argument because we conclude that Pluma failed to adequately
object to consideration of (at least) three of those videos,
denominated Exhibits F, G, and L. Consequently, the
district court could consider those videos.

     2. Exhibits F, G, and L are sufficient to justify
granting qualified immunity to the individual police
officers with respect to Pluma’s federal claims. Although
the district court granted judgment on the merits rather
than on qualified immunity, this Court may affirm on any
basis adequately supported by the record. Riverwoods
Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339,
343 (2d Cir. 1994). “Qualified immunity protects public
officials from liability for civil damages when one of two
conditions is satisfied: (a) the defendant’s action did not
violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did
not violate such law.” Garcia, 779 F.3d at 92 (quotation
marks omitted). “[Q]ualified immunity protects all but the
plainly incompetent or those who knowingly violate the law.”
Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quotation
marks omitted).

     Exhibits F, G, and L show a tumultuous scene in the
portion of Zucotti Park they depict. Metal barricades that
police had placed around the park had been dismantled.
Police were attempting to replace barricades, and at times
protesters and police contended for possession of the
barricades that some protesters were trying to move,
including the barricade that caused Pluma’s fall. The
videos also show that police used a spray, which the parties
agree was pepper spray, when the barricade, having been
raised into the air, posed a threat to the police and the
protesters.

     In such circumstances, qualified immunity shields the
police officers from Pluma’s federal claims. See Garcia,
779 F.3d at 92.   At a minimum, it was “objectively
reasonable” for a police officer dealing with a turbulent
situation to believe that it was lawful to try to maintain
physical control of the barricade, and to deploy pepper
spray after it had been raised into the air.

     3. Qualified immunity applies only to individuals and
therefore does not shield the City from Pluma’s federal
claims. Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 109 (2d

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Cir. 2006), overruled on other grounds by Appel v. Spiridon,
531 F.3d 138 (2d Cir. 2008). However, municipalities may be
held liable under § 1983 only if the plaintiff plausibly
alleges that a city custom or policy caused his injury. See
Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013).
Pluma does not allege that his injuries were caused by an
illegal policy or custom. Consequently, the City is not
liable to Pluma for any of his federal claims.

     4. We do not consider Pluma’s state-law claims. The
district court concluded that most of Pluma’s state-law
claims must be dismissed in light of its determination that
the police officers employed a reasonable amount of force.
Because we affirm the dismissal of the federal claims on a
different ground under a different standard, we vacate the
district court’s judgment as to all of Pluma’s state law
claims. On remand, the district court shall determine
whether to exercise pendent jurisdiction over the state-law
claims. See Klein & Co. Futures, Inc. v. Board of Trade of
City of New York, 464 F.3d 255, 262 (2d Cir. 2006) (“It is
well settled that where, as here, the federal claims are
eliminated in the early stages of litigation, courts should
generally decline to exercise pendent jurisdiction over
remaining state law claims.”).

     For the foregoing reasons, we hereby AFFIRM the
judgment of the district court in part, VACATE it in part,
and REMAND the case.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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