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 10 day of April, two thousand seventeen. th

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.

1
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

2
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

3
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

4