You are on page 1of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------x ABDELILLAH MRIGLE and ADEL SAYED,

Plaintiffs,

Index No. 11 CIV 4443 GBD ECF CASE

-against-

COMPLAINT AND DEMAND FOR JURY TRIAL

CITY OF NEW YORK; individually and in their official capacities as New York City Officers DAVID KANTOR (Shield No. 27638), THOMAS KELLY (Shield No. 10711), and JOHN DOES, police officers, non-uniformed employees, and supervisory officers of the New York City Police Department, the identity and number of whom is presently unknown.

Defendants.

----------------------------------------------------------------------x

Plaintiffs ABDELILLAH MRIGLE and ADEL SAYED, by their attorneys, for

their Complaint against the Defendants, allege as follows:

PRELIMINARY STATEMENT

1. Plaintiffs are licensed street vendors and business partners who sell

delicious food from a pushcart in a legal vending location on the corner of 29th Street and

Broadway in Manhattan. Both are naturalized U.S. citizens from Morocco and Egypt,

respectively -- who have been vending for at least seven years. Each of them uses his income

from his vending business to support his wife and children in Brooklyn.

2.

This

complaint

alleges

that,

during

September

and

October,

2010

Plaintiffs Mrigle and Sayed (“Plaintiffs”) were targeted by New York City Police Officers

Kantor, Kelly, and John Does (“Defendant officers”) in a campaign of illegal enforcement that

included bogus tickets, the public denigration of their food to their loyal customers, unwarranted

threats of arrest, illegal orders to close their cart, and finally, on October 27, 2010, the unlawful

arrest of Plaintiff Mrigle and the excessive use of force against him during the arrest. As a result

of Defendants’ actions, Plaintiffs suffered a loss in business, illegal confinement, and mental and

physical harm for which they now seek redress.

3. This action arises out of the deprivation of Plaintiffs’ liberty and property

interests by Defendants, who acted under color of state law.

4. Plaintiffs bring this action for compensatory damages, punitive damages,

and attorneys’ fees pursuant to 42 U.S.C. § 1983 for violations of their civil rights, as said rights

are secured by the Constitution and laws of the United States and the State of New York.

JURISDICTION

5. This action arises under the First, Fourth, and Fourteenth Amendments to

the United States Constitution, 42 U.S.C § 1983, and the laws of the State of New York.

6. Jurisdiction is invoked pursuant to 28 U.S.C §§ 1331, 1343, and 2202.

Plaintiffs further invoke the supplemental jurisdiction of this Court to adjudicate pendant state

law claims pursuant to 28 U.S.C. §1367 since they derive from the same facts as the federal

claims.

VENUE

7. Venue is properly laid in the Southern District of New York under 28

U.S.C. §1391(b)(2) because the events giving rise to these claims occurred and arose in this

district.

2

JURY DEMAND

8. Plaintiffs respectfully demand a trial by jury of all issues in this matter

pursuant to Fed. R. Civ. P. 38(b).

PARTIES

9. Plaintiff ABDELILLAH MRIGLE is a resident of Brooklyn, New York,

and a licensed New York City mobile food vendor.

10. Plaintiff ADEL SAYED is a resident of Brooklyn, New York and a

licensed New York City mobile food vendor.

11. Defendant Officer DAVID KANTOR is sued in his individual and official

capacity. He was at all times relevant to this action a police officer employed by the City of New

York, acting within the scope of his employment and under color of state law, to wit, under the

color of the statutes, ordinances, regulations, policies, customs and usages of the State of New

York and/or the City of New York.

12. Defendant Officer THOMAS KELLY is sued in his individual and official

capacity. He was at all times relevant to this action a police officer employed by the City of New

York, acting within the scope of his employment and under color of state law, to wit, under the

color of the statutes, ordinances, regulations, policies, customs and usages of the State of New

York and/or the City of New York.

13. Defendant JOHN DOES, at all relevant times, were police officers, non-

uniformed employees, and supervisory officers of the City of New York, the identity and number

of whom is presently unknown.

3

STATEMENT OF FACTS

14. Plaintiffs are licensed street vendors and partners in a food cart business

that sells chicken, falafel, rice, salad, hot dogs, shish-kabobs, and gyro in New York. Plaintiff

Mrigle has been vending in Manhattan for seven years. He is a naturalized citizen who

immigrated to the United States ten years ago from Morocco, and lives with his wife and three

children in Brooklyn. Plaintiff Sayed has been vending for twelve years in Manhattan and

Brooklyn. He is a naturalized citizen who immigrated to the United States thirteen years ago

from Egypt, and who also lives with his wife and three children in Brooklyn.

15.

Plaintiffs

vend

in

a

legal

vending

location

in

compliance

with

all

regulations applicable to New York City mobile food vendors. Plaintiff Mrigle has been vending

from his food cart at the northwest corner of West 29th Street and Broadway in Manhattan for

six years, and Plaintiff Sayed has been vending from the same food cart for 10 months. The food

cart was operated from this location for 15 years before Plaintiffs became partners.

16. Plaintiffs are members of the Street Vendor Project, an organization of

street vendors, which is part of the non-profit Urban Justice Center. During 2009, Officers David

Kantor, Thomas Kelly, and John Does repeatedly visited Plaintiff Mrigle’s food cart at 29th and

Broadway, told Plaintiff Mrigle to leave the area, and issued Plaintiff Mrigle tickets which were

later dismissed. Plaintiff Mrigle and Street Vendor Project staff complained several times to the

Midtown South Precinct about Defendant officers’ issuance of baseless tickets. During one visit

to the precinct, Defendant officers ordered Plaintiff Mrigle to leave the precinct. Plaintiff Mrigle

left without concluding his complaint.

4

17. On September 16, 2010, Officers David Kantor, Thomas Kelly, and John

Does arrived in a white police van at 29th Street and Broadway between 4 and 6 pm. The hours

between 4 and 7 pm were Plaintiffs’ peak sales time.

18. Defendant officers yelled at Plaintiffs, “Close! Shut down! You can’t be

here! Get out of here!” Defendant officers told customers the food was dirty and scared

customers away. Plaintiff Mrigle showed the officers his license and asked them, “What’s the

problem? Why do I need to move?” Defendant officers did not answer him, and told him to

leave.

19. Plaintiff Sayed told Defendant officers, “I work to support my family.

This place is legal.” Plaintiff Sayed asked Defendant officers to measure the location, to ensure

that it was in compliance with all applicable vending regulations, but they did not respond.

Defendant officers issued Plaintiff Sayed three tickets for allegedly violating New York City

Administrative Code §§ 17-315(a), (d), and § 17-311 for vending on a sidewalk that is less than

12 feet wide, for vending less than 20 feet from a building entrance, and for vending without

conspicuously displaying a license, respectively.

Plaintiffs’ cart was on a sidewalk that was

more than 12 feet wide and their cart was positioned more than 20 feet from the nearest building

entrance. The tickets were all later dismissed.

20. One month later, on October 16, 2010, Officers David Kantor, Thomas

Kelly, and John Does arrived at 29th Street and Broadway with four inspectors from the

Department of Health. The Defendant officers did not say anything during this visit. Plaintiff

Mrigle asked the inspectors what was the problem, and they did not respond. The inspectors

issued three tickets to Plaintiff Mrigle for allegedly violating New York Administrative Code §

17-315(c), and New York Health Code §§ 81.09, and 89.23(e) for improperly storing a

5

generator, for keeping foods at improper temperatures, and for failure to have an unobstructed

work area, respectively. Later, after a hearing with Plaintiff Mrigle and the health inspector,

these tickets were dismissed.

21. Three days later, on October 19, 2010, Officers David Kantor, Thomas

Kelly, and John Does arrived at 29th Street and Broadway between 4 and 6 pm. Defendants

shouted at Plaintiff Sayed, “Close! Close! Close! Go! Go! Move! Move!” A customer asked

Defendant officers, “What is wrong? Is the food bad?” Defendants responded, “Yes. The food is

bad.” As the Defendant officers were yelling at him, Plaintiff Sayed experienced chest pains and

an increase in his blood pressure. Plaintiff Sayed asked the officers to please stop shouting at

him. When Plaintiff Mrigle arrived, Plaintiff Sayed was lying on the ground and was not saying

anything. Plaintiff Mrigle asked the police to call an ambulance. An ambulance came to pick up

Plaintiff Sayed, who was released from the hospital around 11 p.m. on the same date.

22. Before the ambulance came, Defendant officers issued Plaintiff Sayed

tickets for allegedly violating New York City Administrative Code § 17-315(a) for vending on a

sidewalk that was less than 12 feet wide and for an inexistent section of the New York City

Health Code. Plaintiffs’ cart was on a sidewalk wider than 12 feet. Both tickets were later

dismissed.

23. Defendant officers told Plaintiff Mrigle, “Close. Get out of here. You can’t

be here.” Defendants told Plaintiffs’ customers they were not allowed to purchase food and

refused to allow Plaintiff Mrigle to serve his customers. Defendants told the customers that the

food was dirty. Defendants also threatened to take Plaintiffs’ cart and told Plaintiff Mrigle that

they had a hitch on their van to tow the cart away. In response, Plaintiff Mrigle closed the food

cart.

6

24. Defendant officers’ actions caused Plaintiff Sayed physical and mental

pain and suffering. Plaintiff Sayed had heart surgery about five years ago and was taking

prescription medicine to control his blood pressure and cholesterol. His felt his blood pressure go

up each time Defendant officers came to the food cart, and he had a hard time sleeping. He was

constantly thinking about Defendant officers’ threats. He was concerned about his health, paying

for all the tickets, and taking care of his family. As a result, during this period, he missed many

days of work.

25. Eight days later, on the afternoon of October 27, 2010, Officers David

Kantor, Thomas Kelly, and John Does arrived at 29th Street and Broadway in a black, unmarked

car. Plaintiff Sayed phoned Plaintiff Mrigle, who was nearby, and told him to come to the cart.

When Plaintiff Mrigle arrived, Plaintiff Sayed was being issued a ticket for allegedly violating

New York Administrative Code § 20-465(d), which applies to merchandise vendors, not food

vendors. The ticket was later dismissed.

26. A customer arrived, and Plaintiff Mrigle began to make the customer’s

order. Defendant officers told Plaintiffs to shut down the cart. Plaintiff Mrigle asked, “For

what?”, and the officer responded “I don’t care. Get out of here.”

27. Defendant Kantor told Plaintiff Mrigle he was under arrest, told him to put

everything down and put his hands behind his back. Plaintiff Mrigle dropped his cooking

utensils, raised his hands, and then put them behind his back. The customer asked, “Why are you

arresting him?”, but he did not answer. Plaintiff Sayed told the Defendant officers that Plaintiff

Mrigle did not do anything wrong and there was no reason to arrest him. Defendant officers

responded, “Stop talking. This is none of your business.” Defendant Kantor applied the

handcuffs very tight around Plaintiff Mrigle’s wrists. Plaintiff Mrigle told Defendant Kantor that

7

the handcuffs were too tight, but Defendant Kantor did not adjust them. Plaintiff Mrigle was put

in the car and was driven to the Midtown South Precinct.

28. Afraid of also being arrested, Plaintiff Sayed closed the cart and called for

someone to bring it to the garage.

29. While in the police car, Defendant Kantor asked Plaintiff Mrigle “Do you

think Urban Justice is going to help you? Urban Justice can’t do nothing for you” and “What

country are you from?” When Plaintiff Mrigle responded, “Morocco,” Defendant Kantor asked

“Do you not listen to the police in your country?” Defendant Kantor asked Plaintiff Mrigle if he

was a citizen, to which Plaintiff Mrigle responded “Yes.” Defendant Kantor took Plaintiff

Mrigle’s wallet from him, removed his driver’s license, inspected it, and then returned it.

30.

Inside

the

precinct,

Defendant

Kantor

removed

the

handcuffs

from

Plaintiff Mrigle’s wrists and placed him in a very dirty cell that smelled very bad.

31. After several hours, Defendant Kantor came into the cell and again placed

handcuffs on Plaintiff Mrigle too tightly, exacerbating his pain. Defendant Kantor took his

picture and fingerprints and placed him back in the cell, where he removed the handcuffs.

Another hour later, Defendant Kantor came back and gave Plaintiff Mrigle a ticket for disorderly

conduct, saying “That’s it. Go home.” It was approximately 11 p.m. Plaintiff Mrigle had been

detained for about 6 hours and his wrists were injured from the handcuffs being applied too tight.

32. Defendant officers’ actions caused Plaintiff Mrigle both physical and

mental pain and suffering. This was the first time Plaintiff Mrigle was arrested in 52 years of his

life in fact, Plaintiff Mrigle had never experienced anything like before. After the arrest,

Plaintiff

Mrigle

had

difficulty

sleeping

and

suffered

from

nightmares.

Nervous

and

uncomfortable, he could only work for an hour or two at the cart each day. He continues to feel

8

anxious and uncomfortable working at the cart and wants to change his location. Plaintiff

Mrigle’s family was also very distressed. His wife and children cried upon learning Plaintiff

Mrigle had been arrested. They were scared and anxious, and worried that Plaintiff Mrigle had

committed a crime.

33. Plaintiffs’ business depended on its loyal customers, many of whom

witnessed the ticketing, threats, and arrests that occurred in September and October, 2010. As a

result of the Defendants’ actions, Plaintiffs have lost a significant portion of their business.

Customers later asked Plaintiffs if they had sold drugs, stolen something, or cooked bad food.

34. The day after the arrest, October 28, 2010, the Defendant officers returned

to Plaintiffs’ cart. Defendant officers told Plaintiff Mrigle to move across the street. The other

side of the street has a doorway, meaning that Plaintiffs would be in violation of the regulations

if they moved the cart there. Plaintiff Mrigle did not move the cart. He was issued a ticket for

allegedly violating § 17-315(a) for vending from a sidewalk less than 12 feet wide. The sidewalk

where the food cart was located was in fact wider than 12 feet. The ticket was later dismissed.

35. On October 31, 2010, police officers from a different precinct arrived at

29th Street and Broadway. Plaintiff Mrigle asked the officers, “What’s the problem?” The

officers told Plaintiff Mrigle he did not have the required 12 feet of sidewalk width, according to

§ 17-315(a). Plaintiff Mrigle measured the space with his measuring tape for the officers.

Plaintiff Mrigle showed a copy of the regulations to the officers. The officers left without issuing

any tickets and did not come back again.

9

CAUSES OF ACTION

CLAIMS AIRSING UNDER 42 U.S.C § 1983

Count I Unlawful Arrest

36. Plaintiff Mrigle repeats and realleges the allegations contained in all

preceding paragraphs as if set forth in full.

37. By their conduct, under color of law, Defendants deprived Plaintiff Mrigle

of his constitutional right under the Fourth Amendment to be free from unreasonable searches

and seizures.

38. Defendant

Officers

unlawfully

arrested

Plaintiff

Mrigle,

intended

to

confine him, and confined him without probable cause to believe that Plaintiff had committed

any offense or violated the law.

39. Plaintiff Mrigle was aware of his confinement as he was locked in a small

cell for approximately 6 hours without his consent or any reasonable justification.

Count II Unreasonable Force

40. Plaintiff Mrigle repeats and realleges the allegations contained in all

preceding paragraphs as if set forth in full.

41. By their conduct, under color of law, Defendants violated Plaintiff

Mrigle’s Fourth Amendment right to be free from the use of force that is unconstitutionally

excessive.

42. Plaintiff Mrigle was subject to a seizure within the meaning of the Fourth

Amendment when he was arrested by Defendant Kantor.

43. Defendant Kantor applied unreasonable force during the arrest of Plaintiff

Mrigle. When Officer Kantor requested Plaintiff Mrigle to put his hands behind his back,

10

Plaintiff Mrigle complied and did not say or do anything to resist the arrest. Defendant Kantor

applied handcuffs on Plaintiff Mrigle’s wrists too tightly when he was at his food cart and while

he was at the precinct. Plaintiff Mrigle told Officer Kantor the handcuffs were too tight.

Count III Interference with First Amendment Rights

44. Plaintiffs repeat and reallege the allegations contained in all preceding

paragraphs as if set forth in full.

45. By their conduct, under color of law, Defendants violated Plaintiffs’ First

Amendment rights by interfering with Plaintiffs’ freedom of association.

46. Plaintiffs are members of an association of street vendors called Street

Vendor Project. In 2009, the Street Vendor Project assisted Plaintiff Mrigle in complaining about

Defendants issuance of numerous baseless tickets.

47. During Plaintiff Mrigle’s arrest, Defendants made several remarks about

his membership with the association of street vendors. Defendant Officers issued numerous

baseless tickets to Plaintiffs and arrested Plaintiff Mrigle without probable cause. Plaintiffs were

targeted, in whole or in part, because of their association with Street Vendor Project. Defendants’

actions ticketing, arrest, orders to close down, and threats to confiscate the pushcart -- would

likely deter a person of ordinary firmness from exercising First Amendment rights of freedom of

association.

Count IV Due Process Claim

48. Plaintiffs repeat and reallege the allegations contained in all preceding

paragraphs as if set forth in full.

49. By their conduct, under color of law, Defendants deprived Plaintiffs of

their constitutional right under the Fourteenth Amendment to pursue their occupation. The due

11

process clause protects a liberty and property interest in pursuing common occupations or

professions. (Benigni v. City of Hemet, 879 F.2d 473, 478 (9th Cir. 1988))

50. Defendant officers repeatedly visited Plaintiffs’ business location, where

their unconstitutional actions were directed at Plaintiffs to push them out of business. Defendant

officers repeatedly told customers the food was bad or dirty, prevented Plaintiffs from serving

customers, told Plaintiffs to leave their business location, and threatened to confiscate Plaintiffs’

food cart. Defendant officers visited Plaintiffs’ business during their busiest time of day, issued

numerous baseless tickets, and brought health inspectors to Plaintiffs’ business location. All

tickets issued by the officers and inspectors were dismissed. Furthermore, Defendant officers

arrested Plaintiff Mrigle in front of his customers, further leading customers to believe Plaintiff

Mrigle was committing wrongful acts. As a result, Plaintiffs were deprived of their due process

rights to pursue their occupation.

Count V City Liability for Unconstitutional Acts

51. The City of New York, through its policies, customs or practices, and

decisions or acquiescence of its policymakers has exhibited a deliberate indifference to the

constitutional rights of licensed street vendors selling food, which caused a violation of

Plaintiffs’ rights.

52. It was the policy and custom of the City to in adequately train, supervise,

and discipline police officers with respect to the rights of licensed street vendors selling food,

thereby causing Defendants to engage in unlawful conduct described above.

53. As a direct and proximate cause of the City’s deliberate indifference,

Defendants violated Plaintiffs’ constitutional rights for which they suffered damages.

12

Count VI Defendant Supervisory Liability for Unconstitutional Acts

54. Defendant supervisory officers exhibited a deliberate indifference to their

subordinate officers’ unconstitutional conduct. Supervisory officers knew or should have known

their subordinates were engaged in unconstitutional conduct and failed to adequately respond,

causing subordinate officers to violate the constitutional rights and harm Plaintiffs.

55. Defendant supervisory officers had previously received complaints of

defendant officers who committed a series of unconstitutional acts against Plaintiff Mrigle.

Defendant

supervisory

officers

failed

to

appropriately

supervise,

train,

and

correct

the

misbehavior of subordinate officers causing defendant officers to violate Plaintiffs’ constitutional

rights.

Count VII Intentional Discrimination

56. Plaintiffs repeat and reallege the allegations contained in all preceding

paragraphs as if set forth in full.

57. By their conduct, under color of law, Defendants deprived Plaintiffs of

their

constitutional

right

under

the

Fourteenth

Amendment

to

be

free

from

intentional

discrimination based upon race, color, and national origin.

58. Defendant officers intentionally discriminated against Plaintiffs based

upon their race, color, and national origin.

59. During Plaintiff Mrigle’s arrest, Defendants made remarks to Plaintiff

Mrigle about his country of origin and citizenship. Defendant officers issued Plaintiffs baseless

tickets and arrested Plaintiff Mrigle, unlike other nearby vendors who were not Arab or Middle

Eastern.

13

PENDANT STATE CLAIMS

Count VIII False Arrest and Imprisonment

60. Plaintiff Mrigle repeats and realleges the allegations contained in all

preceding paragraphs as if set forth in full.

61. Defendant

Officers

unlawfully

arrested

Plaintiff

Mrigle,

intended

to

confine him, and confined him without probable cause to believe that Plaintiff Mrigle had

committed any offense or violated the law.

62. Plaintiff Mrigle was aware of his confinement as he was locked in a small

cell for approximately 6 hours without his consent or any reasonable justification.

Count IX Negligence

63. Plaintiff Mrigle repeats and realleges the allegations contained in all

preceding paragraphs as if set forth in full.

64. Defendant officers had a duty to exercise reasonable care in applying

handcuffs to Plaintiff Mrigle. Defendant officers’ failure to act with reasonable care was a direct

cause of the injury to Plaintiff Mrigle’s wrists.

Count X Assault and Battery

65. Plaintiff Mrigle repeats and realleges the allegations contained in all

preceding paragraphs as if set forth in full.

66. Defendant officers created a reasonable apprehension of bodily harm in

Plaintiff. Defendant officers intentionally arrested Plaintiff Mrigle and used excessive force,

injuring Plaintiff Mrigle’s wrists.

14

Count XI Defamation

67. Plaintiffs repeat and reallege the allegations contained in all preceding

paragraphs as if set forth in full.

68. Defendant officers made false and defamatory statements about Plaintiffs

and their food to their customers and potential customers, causing injury to their reputation and

business.

Count XII Interference with Business Relations

69. Plaintiffs repeat and reallege the allegations contained in all preceding

paragraphs as if set forth in full.

70. Defendant

officers

knew

customers

wanted

to

purchase

food

from

Plaintiffs and customers attempted to do so. Defendant officers made statements to prevent

customers from purchasing food from Plaintiffs and caused Plaintiffs to lose customers and their

future business.

WHEREFORE, Plaintiffs request the following relief jointly and severally as against all

the Defendants:

(a)

Award compensatory damages in an amount to be determined at trial;

(b)

Award punitive damages in an amount to be determined at trial;

(c)

Disbursements, costs, and attorneys’ fees; and

(d)

For such other and further relief as this Court may seem deem just and proper.

15

Dated:

June 28, 2011 New York, New York

Respectfully submitted,

Counsel:

URBAN JUSTICE CENTER Sean Basinski, Esq. 123 William Street, 16 th Floor New York, NY 10038 Telephone: (646) 602-5600 Facsimile: (212) 533-4598

Attorney for Plaintiffs

16