Case v. City of New York (233 F. Supp. 3d 372, 2017)

MEMORANDUM AND ORDER

ANALISA TORRES, District Judge:

Plaintiffs, Benjamin Case, Elizabeth Catlin, Jennifer Klein, and Mark Kushneir, bring this action pursuant to 42 U.S.C. § 1983 against the City of New York (the “City) and nine individual defendants employed by the New York City Police Department (“NYPD”), alleging that their constitutional rights were violated in connection with their participation in an Occupy Wall Street (“OWS”) protest in Manhattan. Defendants move to dismiss the second amended complaint (hereinafter “complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is GRANTED in part and DENIED in part.

BACKGROUND

I. Events of November 17,2011.

On the morning of November 17, 2011, Plaintiffs were arrested while “peacefully assembling and demonstrating with others in the Wall Street area in connection with an OWS-related demonstration.” SAC ¶¶ 103, 154, 189, ECF No. 41; see also id. ¶¶ 233, 264. They- assert that, prior to their arrests, neither they “nor other non-NYPD persons present were causing or creating the risk of any substantial blockage of vehicular or pedestrian traffic, or any other serious public ramifications,” id. ¶¶ 158, 193, 237, 269, such as “real public inconvenience, annoyance, and/or alarm,” id. ¶¶ 183, 221, 259,. 290. They allege that, “[wjithout first having given a clearly communicated dispersal' order or clearly communicated orders ... .and a meaningful opportunity ... to comply, police began to make arrests.” Id. ¶¶ 159, 194, 238, 270. Facts specific to each plaintiff are set forth below.

Benjamin Case. Case was arrested by Officer Downes and unidentified NYPD officers between 9:00’ a.m; and 10:16 a.m. in the vicinity of- William and- Beaver Streets. Id. ¶ 157. Downes rear-cuffed Case with plastic flex-cuffs, then escorted him to a prisoner transport'vehicle after which Officer Benjamin Amonte was assigned to process Case’s arrest. Id: ¶¶ Idles. For “around five hours,” Case remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt him. Id. ¶¶ 171-72, He was issued-a Desk-Appearance Ticket (“DAT”) and remained in NYPD custody until after 11:30 p.m. Id. ¶ 174. Case was charged with violating sections 240.20(5) and 240.20(6) of the New York Penal Law (disorderly conduct), as well as section 195.05 (obstruction of governmental administration (“OGA”) in tlie second degree); Casé eventually pleaded guilty to the disorderly conduct violation. Id. ¶¶ 177, 187. The complaint alleges that Amonte and Sergeant ‘Lawrence Papóla “provided false and misleading information” to the district attorney, id. ¶ 175, including in an accusatory instrument sworn to by Amonte in which he stated, that he observed Case “standing in a group of approximately 70 individuals, in the middle of the roadway,” and observed him “refuse to comply with [Papola’s] repeated lawful orders to disperse” by sitting on the ground, interlocking his arms with others and tightening his arms to prevent Almonte from removing him, id. ¶ 176. Case claims that Almonte did not actually observe the events leading up to Case’s arrest. Id. ¶ 179.

Elizabeth Catlin. Between 9:00 a.m. and 9:30 a.m. in the vicinity of Pine and William Streets, unidentified NYPD officers arrested Catlin. Id. ¶ 192. She alleges that an officer stepped on the right side of her face with his boot, which produced a blood blister or bruise that remained visible on her face for weeks thereafter and caused her pain for several days. Id. ¶¶ 195, 208, 226-27. An unidentified officer then rear-cuffed her with plastic flex-cuffs, which were too tight and hurt her. Id. ¶ 196. Catlin remained cuffed for “an excessive period of time.” Id. ¶¶ 206-07. Officer Daniel Confortó processed Catlin’s arrest. Id. ¶ 198. The complaint alleges that Confortó knew or should have known that Catlin was injured, but that he did nothing to report her injury or the use of force that caused it. Id. ¶¶ 209-11. Catlin was in NYPD custody for approximately 38 hours before she was arraigned in New York City Criminal Court and released on her own recognizance. Id. ¶ 212. She was charged with violating sections 195.05, 240.20(5), and 240.20(6) of the New York Penal Law as well as parading without a permit in violation of New York City Administrative Code section 10-110. Id. ¶ 215. The parading without a permit violation was dismissed at her arraignment. Id. ¶ 218. Catlin eventually accepted an adjournment in contemplation of dismissal (“ACD”) to resolve the charges. Id. ¶ 225. The complaint alleges that Confortó and Deputy Chief Brian McCarthy “provided false and misleading information” to the district attorney, id. ¶ 213, including in an accusatory instrument sworn to by Confor-tó in which he stated that he observed the following: Catlin “obstructing pedestrian traffic” by sitting in the middle of the street and locking arms in a crowd of approximately 50 people; McCarthy repeatedly telling Catlin and others that they must disperse or would be arrested, Catlin. remaining sitting with her arms linked; and an officer unlinking Catlin’s arms in order to arrest her, id. ¶ 214. Catlin claims that Confortó did not actually observe the events leading up to her arrest. Id. ¶ 216.

Jennifer Klein. At about 9:00 a.m., in the vicinity of Pine and William Streets, unidentified officers arrested Klein. Id. ¶ 236. An officer rear-cuffed her with plastic flex-cuffs. Id. ¶239. Officer Dmitry Tverdokhleb was assigned to process Klein’s arrest. Id. ¶ 240. For several hours, Klein remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt her. Id. ¶¶ 248-49. Klein was issued a DAT and remained in NYPD custody until approximately 11:00 p.m. Id. ¶ 250. She was charged with violating sections 240.20(5) and 240.20(6) of the New York Penal Law and eventually accepted an ACD to resolve the charges. Id. ¶¶ 253, 262. The complaint alleges that Tverdokhleb and Lieutenant David Groht “provided false and misleading information” to the district attorney, id. ¶ 251, including in an accusatory instrument sworn to by Tyerdokhleb in which he stated that he observed Groht tell Klein, who was standing in a group of over 200 people in the middle of the street, “multiple times that [she and the others] were obstructing all vehicular traffic and were ordered to leave the roadway,” but that Klein refused to move, id. ¶ 252. Klein claims that Tverdokhleb was not at the scene when she was arrested and did not actually observe the events leading up to her arrest. Id. ¶ 254.

Mark Kushneir. Unidentified officers arrested Kushneir shortly after 9:00 a.m. in the vicinity of Broadway and Exchange Place. Id. ¶ 266. An unidentified officer rear-cuffed him with plastic flex-cuffs. Id. ¶ 271. Well after Kushneir arrived at a prisoner transport vehicle, Officer Michael Maldonado was assigned to process Kush-neir’s arrest. Id. ¶ 272. For “around five hours,” Kushneir remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt him. Id. ¶¶ 280-81. Kushneir was issued a DAT and held in NYPD custody until “around or after” 11:30 p.m. Id. ¶ 282. He was charged with violating section 240.20(5) of the New York Penal Law, for which he ultimately accepted an ACD. Id. ¶¶ 285, 291. The complaint alleges that Maldonado “provided false and misleading information” to the district attorney, id. ¶ 283, including in an accusatory instrument he swore to in which he stated that he observed Kushneir “standing in the middle of the sidewalk” with approximately 100 other people, such that they “completely blocked the sidewalks” and prevented their use by pedestrians, id. ¶ 284. Kushneir claims that Maldonado did not actually observe the events leading up to Kushneir’s arrest. Id. ¶ 286.

II. NYPD Policies and Practices

Plaintiffs allege that their unlawful treatment by the NYPD on November 17, 2011, resulted from two specific policies concerning large protests that were adopted by the City in the fall of 2011. Id. ¶¶ 73-81. First, during meetings attended by Chief of Department Joseph Esposito and others, the City refined and adopted a “policy and practice related to OWS of denying persons arrested at demonstrations individual consideration for release with summonses (the ‘No-Summons Policy’).” Id. ¶¶ 64-65. Second, the City refined and adopted a “policy and practice related to the centralized processing of arrestees in a single mass arrest processing center including the involvement of NYPD Legal Bureau and Criminal Justice Bureau agents in the creation of boilerplate NYPD documents containing false information, all as part of an unreasonably lengthy and punitive mass arrest processing plan (the ‘MAPP’).” Id. ¶ 66. According to Plaintiffs, the No-Summons Policy and MAPP specifically targeted demonstrations “perceived to be associated with OWS.” Id. ¶ 67.

Plaintiffs also allege that these two policies departed from the official procedures set forth in the NYPD Patrol Guide. Id. ¶ 69. According to Plaintiffs, the Patrol Guide provides that “persons detained or arrested for non-criminal violations such as those, for which plaintiffs were presumably detained, as well as most misdemean- or offenses, who are carrying proper identification and have no outstanding arrest warrants, are normally eligible for individualized determinations of eligibility for release with a Universal Summons or DAT rather than being held in custody for arraignment.” Id. Plaintiffs allege that the substitution of the No-Summons Policy and MAPP in place of the standard procedures resulted in longer detainment periods for OWS protestors. Id. ¶¶ 70-74. Plaintiffs claim that these policies derived from “ill-will toward [Plaintiffs’] perceived association with OWS,” id. ¶ 78, and Defendants’ desire to “deter and/or prevent [Plaintiffs] .from participating in further OWS-related. demonstrations,” id. ¶ 80.

Plaintiffs also claim that the NYPD used similar policies and practices against protestors during the 2004 Republican National Convention (the “RNC”), id. ¶¶ 36-47, for which Esposito helped plan the police response, id. ¶¶ 34-35. According to Plaintiffs, the City’s RNC policies resulted in unconstitutional actions, including the widespread failure to make individualized determinations of probable cause, id. ¶ 43, the use of excessive force by police officers, id. ¶¶ 44, and excessively long detention periods .for arrestees, id. ¶ 45, such that the New York State Supreme Court went so far as to hold the City “in contempt of court for failing to release hundreds of arrestees who had been detained in excess of 24 hours without justification for the delay, some of whom had been detained for more than 72 hours,” id. ¶ 46. Plaintiffs note that over 1,800 arrests were made in connection with the 2004 RNC, id. ¶ 42, the vast majority of which resulted in dismissals, id. ¶ 51. Plaintiffs allege that, despité dozens of lawsuits and a decade of litigation over the NYPD’s RNC-related conduct—which ultimately cost the City tens of millions of dollars in judgments and settlements, id. ¶¶ 48-49, 54-55, unfavorable coverage in the media, id. ¶ 54, and complaints- to the Civilian Complaint Review Board, id.—the City has failed to modify the NYPD’s policies and practices regarding crowd control, mass arrest, and prosecution,-and has failed to train, supervise; and discipline NYPD officers “in connection with properly policing First Amendment assemblies,” id. ¶¶ 55-56.

...Indeed, Plaintiffs allege, that, in the years following the 2004 RNC and prior, to the advent of OWS, the NYPD continued to employ these problematic policies and practices in connection with its years-long crackdown on “Critical Mass” bicycle rides, id. ¶ 50, which similarly resulted in multiple litigations, one of which settled for approximately $1 million', id. ¶ 53.

Based on the above allegations, Plaintiffs assert that the City and Esposito knew or should have known that the “NYPD’s plans for policing and mass arrest processing in connection with protests planned for November 17, 2011 would result in unlawful arrests, excessive use of force, excessive detentions, malicious abuse of process, and ... other unlawful conduct.” Id. ¶¶ 101-02.

DISCUSSION

I. Motion to Dismiss Standard

To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows fhe court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to a presumption of truth. Id. On a motion to dismiss, the Court must draw all reasonable inferences in .the non-movant’s favor. ATSI Commc’ns, 493 F.3d at 98.

II. False Arrest Claim

Only Kushneir asserts a false arrest claim. “A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, ... is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification.” Id. “The existence of probable cause to arrest constitutes justification and ‘is a complete defense to an action for false arrest.’ ” Id. (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1991)). “In general, probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Id. “The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers.” Id.

As an initial matter, a “plaintiff can under no circumstances recover if he was convicted of the offense for which he was arrested.” Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986). In connection with his arrest, Kushneir was charged with disorderly conduct in violation of the New York Penal Law section 240.20(5), SAC ¶ 285, which he resolved by accepting an ACD, id. ¶ 291. Unlike a conviction, an ACD leaves open the question of guilt, see Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980), and does not bar Kushneir from pursuing his false arrest claim, see Wahhab v. City of New York, 386 F.Supp.2d 277, 293 (S.D.N.Y. 2005); see also MacNamara v. City of New York, 275 F.R.D. 125, 147 n.18 (S.D.N.Y. 2011).

The next question is whether there was probable cause for Kushneir’s arrest. Section 240.20(5) provides that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [h]e obstructs vehicular or pedestrian ■ traffic.” N.Y. Penal Law § 240.20(5). The Second Circuit has required a showing that the putative offender was “actually and immediately blocking” the pedestrian or vehicular traffic in question. Zellner v. Summerlin, 494 F.3d 344, 372 (2d Cir. 2007). Further, “New York courts have interpreted this statute to permit punishment only where the conduct at issue does more than merely inconvenience pedestrian or vehicular traffic.” Jones v. Parmley, 465 F.3d 46, 59 (2d Cir. 2006). Where, as here, a disorderly conduct statute is applied in the context of “political demonstrations and protests—activities at the heart of what the Bill of Rights was designed to safeguard,” First Amendment considerations come into play. Id. at 56. “Indeed, the [Supreme] Court has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they ... simply fear possible disorder.” Id.

Kushneir claims that he was not “causing or creating the risk of any substantial blockage of vehicular or pedestrian traffic.” SAC ¶ 269. The pleadings do not suggest that he was “actually and immediately blocking” the 'pedestrian or vehicular traffic in question. Zellner, 494 F.3d at 372. Rather, the complaint alleges that Esposi-to and “other unidentified NYPD supervisors” set up barricades and parked police vehicles in order to prevent traffic from passing through the areas in which they expected Plaintiffs’ protest activities to take place. SAC ¶ 110. Although the complaint quotes a statement allegedly made by Maldonado averring that he observed Kushneir and approximately 100 other people “cause[] public inconvenience and annoyance” by “completely blocking] the sidewalks” from pedestrian use, id. ¶ 284, the complaint also asserts that this sworn statement was “false and misleading” and that Maldonado did not actually observe the conduct leading up to Kushneir’s arrest, id. ¶¶ 283, 286. Taking the pleadings in the light most favorable to Plaintiffs, there is an insufficient factual foundation to support a finding of probable cause to arrest Kushneir for violating section 240.20(5).

Defendants argue that Kushneir’s false arrest claim must fail because there was probable cause to arrest him for violating another disorderly conduct provision, section 240.20(6), which states that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] [he] congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.” N.Y. Penal Law § 240.20(6). Defendants contend that Plaintiffs admit that dispersal orders were issued, see, e.g., SAC ¶¶ 130-34, 140, and that, therefore, there was probable cause to arrest Kush-neir for not complying. Def. Mem. 7-8, EOF No. 50; Def. Reply 2-3, ECF No. 69. However, Kushneir contends that Defendants arrested him “[wjithout first having given a clearly communicated dispersal order or clearly communicated orders to [Kushneir] and a meaningful opportunity ... to comply.” SAC ¶ 270.

“[W]hether the police had probable cause to arrest [Plaintiff] for defying a police order turns on two factors. The first is whether, and to what extent, the police communicated their orders to the entire crowd.” Dinler v. City of New York, No. 04 Civ. 7921, 2012 WL 4513352, at *10 (S.D.N.Y. Sept. 30, 2012) (citing Vodak v. City of Chicago, 639 F.3d 738, 745 (7th Cir. 2011) (“[B]efore the police could start arresting peaceable demonstrators for defying their orders they had to communicate the orders to the demonstrators.”)). “The second is whether the demonstrators were given an opportunity to comply with those orders—that is, whether they indeed refused to do so.” Id.; see also Adams v. City of New York, No. 15 Civ. 6741, 2016 WL 1169520, at *3 (S.D.N.Y. Mar. 22, 2016) (“Section 240.20(6) requires that, in addition to the requisite intent, an arrestee must refuse to comply with a lawful dispersal order.” (emphasis omitted)). Plaintiffs allege that the dispersal orders were not sufficiently communicated to Kushneir, and that Kushneir was not given an opportunity to comply. Accordingly, the Court cannot conclude at this stage that there was probable cause to arrest Kushneir.

Defendants argue that Kushneir has pleaded only “threadbare legal conclusions that his arrest was improper.” Def. Reply 2. However, Plaintiffs are not required to set forth a lack of probable cause in their complaint. Under New York law, a plaintiff need not allege “want of probable cause” when stating a false arrest claim based on a warrantless arrest. Broughton, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 315 (1975). Indeed, “[whenever there has been an arrest and imprisonment without a warrant” the arrest is presumptively “unlawful.” Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 315 (1975); see also Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007) (“Where an officer makes an arrest without a warrant, the presumption arises that the plaintiffs arrest was unlawful”). It is the defendant who bears the burden “of proving that probable cause existed for the plaintiffs arrest” as an affirmative defense. Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003) (citing Broughton, 373 N.Y.S.2d 87, 335 N.E.2d at 315).

Defendants argue that, even if probable cause was lacking, they are entitled to qualified immunity. Def. Mem. 8. A qualified immunity defense against a false arrest suit requires a showing of “arguable probable cause,” Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (internal quotation marks omitted), a “formidable hurdle ... [that] is usually not successful,” Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191—92 (2d Cir. 2006) (quoting McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004)). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Zalaski, 723 F.3d at 390. At this stage, based solely on the allegations in the complaint, the Court cannot conclude that Defendants are entitled to qualified immunity based on arguable probable cause. Plaintiffs clearly allege that the dispersal orders given were neither sufficiently communicated nor followed by an opportunity to comply. A determination as to whether it was reasonable for the arresting officers to believe that their arrests were lawful requires further factual development.

Accordingly, Defendants’ motion to dismiss Kushneir’s false arrest claim is DENIED.

III. Excessive Force Claims

A claim of excessive use of force during an arrest is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The question is whether Defendants’ use of force was objectively unreasonable “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. All four Plaintiffs allege that they were tightly handcuffed for hours or “an excessive period of time.” SAC ¶¶ 171-72, 206-07, 248-49, 280-81. In addition, Catlin alleges that an unidentified officer stepped on her face with his boot, causing her pain and injury. Id. ¶¶ 195, 208, 226-27.

A. Tight Handcuffs

“Although handcuffs must be reasonably tight to be effective, overly tight handcuffing can constitute excessive force.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459, 468 (S.D.N.Y. 2008) (citation omitted). “[I]n evaluating the reasonableness of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the [plaintiffs’] pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists.” Id. (quoting Esmont v. City of New York, 371 F.Supp.2d 202, 215 (E.D.N.Y. 2005)). “Courts in this Circuit have generally found that handcuffing does not suffice for an excessive force claim unless it causes some injury beyond temporary discomfort or bruising.” Omor v. City of New York, No. 13 Civ. 2439, 2015 WL 857587, at *7 (S.D.N.Y. Feb. 27, 2015); see also Lynch, 567 F.Supp.2d at 468-69 (collecting cases).

Although all four Plaintiffs claim that they were handcuffed too tightly, they fail to allege that they complained about their handcuffs, that Defendants ignored such complaints, and that they suffered injuries caused by the handcuffs. And although Plaintiffs assert that they were handcuffed for periods of time such as four hours or “several hours,” courts in this district have found allegations of similar or much longer periods of uncomfortable handcuffing insufficient to state a claim for excessive force. See, e.g., Omor, 2015 WL 857587, at *7 (four to five hours); Bender v. City of New York, No. 09 Civ. 3286, 2011 WL 4344203, at *6 (S.D.N.Y. Sept. 14, 2011) (dismissing excessive force claim where plaintiff alleged that she was handcuffed “extremely tightly for nearly fourteen hours leaving indentations in plaintiffs forearms for over six hours”). Plaintiffs, therefore, have failed to state an excessive force claim based on Defendants’ use of handcuffs.

B. Catlin’s Injury

As to the remaining claim of excessive force alleged by Catlin, “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Id. (citation omitted) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Catlin asserts that, while she was engaging in peaceful assembly, an officer stepped on her face with his boot, causing her pain for several days and a wound that remained visible for weeks thereafter. SAC ¶¶ 189, 195, 208, 226-27. The allegations here plead more than a “push or shove” necessary to effect an arrest. See Graham, 490 U.S. at 396, 109 S.Ct. 1865.

However, for the reasons set forth in more detail in Section VIII, infra, Catlin has failed to sufficiently plead the personal involvement of any of the Defendants, “a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Because the Court will dismiss this claim based on lack of personal involvement, the Court need not address Defendants’ qualified immunity arguments.

Accordingly, Defendants’ motion to dismiss Case, Klein, and Kushneir’s excessive force claim is GRANTED. Defendants’ motion to dismiss Catlin’s excessive force claim is granted in Section VIII of this opinion.

IV. Excessive Detention Claim

“[T]he Fourth Amendment provides the proper analytical framework” for claims that police conduct “unconstitutionally prolonged [an arrestee’s] postarrest detention.” Bryant v. City of New York, 404 F.3d 128, 135-36 (2d Cir. 2005). “In the context of pretrial detention, the Supreme Court has held that, when there has been a warrantless arrest, the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention.” Id. “[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement.” County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In sum, “[w]hat is constitutionally required is that, except in extraordinary circumstances, the arrestee be given a hearing into probable cause for the arrest within 48 hours.” Bryant, 404 F.3d at 138. In New York, because probable cause determinations are made at arraignments, the Fourth Amendment thus requires that an arrestee be arraigned within 48 hours. Id.

The complaint .alleges that Case, Klein, and Kushneir were each detained for about 15 to 20 hours, SAC ¶ 143, while Catlin was detained for about 38 hours, id. ¶ 212. Because none of the Plaintiffs were detained in excess of 48 hours, their detention periods were presumptively reasonable.

“This is not to say that the probable cause determination in a particular case passes constitutional muster, simply because it is provided within 48 hours.” McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661. A plaintiff may have an excessive detention claim if she can show that her probable cause determination was “delayed unreasonably.” Id.; see Bernshtein v. City of New York, No. 08 Civ. 2906, 2010 WL 2541617, at *1 (S.D.N.Y. June 22, 2010) (“It is undisputed that Plaintiff was detained for less than 48 hours, but that does not end this inquiry. The issue here is not the number of hours Plaintiff was detained, but whether her detention was ‘delayed unreasonably.’ ”). However, a plaintiff “whose arraignment has been delayed less than forty-eight hours bears the burden of proving the delay was unreasonable ... and in evaluating the reasonableness of such delay, ‘courts must allow a substantial degree of flexibility’ and ‘cannot ignore’ the ‘practical realities’ attendant large metropolitan criminal justice systems.” Irons v. Ricks, No. 02 Civ. 4806, 2003 WL 21203409, at *11 (S.D.N.Y. May 22, 2003) (quoting McLaughlin, 500 U.S. at 56-57, 111 S.Ct. 1661). “Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” McLaughlin, 500 U.S. at 56, 111 S.Ct. 1661.

Plaintiffs claim that their release was delayed “to deter and/or prevent them from participating in further OWS-related demonstrations,” SAC ¶ 80, and, more specifically, that they and others were arrested on the morning of November 17, 2011 to prevent them from participating in another OWS protest planned for that evening on the Brooklyn Bridge, id. ¶¶ 96-99, 120. The complaint alleges that the NYPD, wishing to avoid-a repeat-of a mass OWS protest on the bridge the month before, set out to maké arrests of OWS demonstrators that morning as a .“proactive” measure. Id. ¶ 99. The Court- finds that these allegations, at this stage, plausibly support Plaintiffs’ claim that they spent more time in detention than was necessary and that the reason for the delay was to prevent them from participating in further protests “based on ill-will toward their perceived association' with OWS.” Id. ¶ 78. See Pesola v. City of New York, No. 15 Civ. 1917, 2016 WL 1267797, at *9 (S.D.N.Y. Mar. 30, 2016) (concluding that, where the plaintiffs alleged that their pre-arraignment delays were punishments for refusing to submit to iris scans, and even though “[t]here may be some set of facts brought out in discovery ... - that makes each delay appear reasonable, .., [a]t this early stage and on the facts alleged, [the plaintiffs’] excessive detention claims cannot be dismissed”); Sorensen v. City of New York, No. 98 Civ. 3356, 2003 WL 169775, at *4 (S.D.N.Y. Jan. 23, 2003) (concluding that “[t]he -question of whether the City intentionally delayed plaintiffs arraignment is one of intent” and “a question for the trier of fact”); see also MacNamara, 275 F.R.D. at 150 (“The central and predominant focus of the class action suit is not the mere length of detention for RNC arrestees, but the existence of a policy to detain them longer than would otherwise be required. Such a policy, if proven, would surely demonstrate that the probable cause determinations for indmd-ual RNC arrestees were unreasonably and deliberately delayed.”).

The Court also finds that Defendants are not entitled to qualified immunity on this claim. “The rule ... that officers cam not intentionally delay an arraignment for no reason—was ‘clearly established’ at the time of [Plaintiffs’ arrest and detention. No reasonable officer could have believed it was permissible to intentionally delay a plaintiffs arraignment based on ill will or delay for delay’s sake.” Allen v. City of New York, No. 03 Civ. 2829, 2007 WL 24796, at *18 (S.D.N.Y. Jan. 3, 2007). Further, “[t]he fact that [D]efendants contest the version of event[s] presented by [Pjlaintiffs of course does not entitle them to qualified immunity.” Id.; see also Curry v. City of Syracuse, 316 F.3d 324, 334 (2d Cir. 2003) (“Where the circumstances are in dispute, and contrasting accounts present [unresolved] factual issues ..., a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity”).

Accordingly, Defendants’ motion to dismiss Plaintiffs’ excessive detention claim is DENIED.

V. Right to a Fair Trial Claim

Plaintiffs claim that Defendants violated their right to a fair trial under the Sixth Amendment by swearing out false statements against Plaintiffs in accusatory instruments. SAC ¶¶ 360-56. “When a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); see also Morse v. Fusto, 804 F.3d 538, 548 (2d Cir. 2015). A plaintiff need not have actually proceeded to trial in order to have an actionable § 1983 claim based on the denial of this right. See Ricciuti, 124 F.3d at 127 (considering § 1983 claim for right to a fair trial where the plaintiffs’ criminal charges were dismissed pre-trial); Canario v. City of New York, No. 05 Civ. 9343, 2006 WL 2015651, at *1 (S.D.N.Y. July 12, 2006) (same). Rather, the allegedly false information must be material such that it “would likely influence the jury if it arrived at a jury.” Garnett v. Undercover Officer C0039, No. 13 Civ. 7083, 2015 WL 1539044, at *8 (S.D.N.Y. Apr. 6, 2015). Further, the plaintiff must “suffer[ ] a deprivation of liberty as a result.” Jovanovic v. City of New York, 486 Fed.Appx. 149, 152 (2d Cir. 2012); see also Schiller v. City of New York, No. 04 Civ. 10178, 2008 WL 200021, at *10 (S.D.N.Y. Jan. 23, 2008) (“The limiting factor appears to be not whether the plaintiff went to trial but whether the falsification caused material harm.”).

Plaintiffs allege that Defendants’ sworn affidavits contained false accusations against Plaintiffs. Specifically, they claim that Almonte, Conforti, Tverdokhleb, and Maldonado each falsely swore that they had observed the conduct of Case, Catlin, Klein, and Kushneir, respectively. SAC ¶¶ 175-80, 213-17, 251-56, 283-87. The complaint further alleges that the district attorney decided to lodge charges against Plaintiffs based on these false statements. SAC ¶¶ 177, 215, 253, 285. Accepting these factual allegations as true and drawing all reasonable inferences in Plaintiffs’ favor, the Court finds that the complaint adequately alleges that these were materially false statements that would likely influence a jury’s decision and that caused Plaintiffs a deprivation of their liberty. See Mem. and Order on Recons., Marom v. City of New York, No. 15 Civ. 2017, ECF No. 66, at 2-6, 2016 WL 5900217 (S.D.N.Y. July 29, 2016) (reinstat-mg plaintiffs’ fair trial claims on reconsideration); Henry v. City of New York, No. 02 Civ. 4824, 2008 WL 22077469, at *4 (S.D.N.Y. Sept. 8, 2003) (finding, on motion for summary judgment, that question of fact remained as to “whether Plaintiffs deprivation of liberty (his incarceration between his arrest and his release) was caused by the fabrication of evidence”).

Further, Defendants are not entitled to qualified immunity on this claim. “Qualified immunity is unavailable on a claim for denial of the right to a fair trial where that claim is premised on proof that a defendant knowingly fabricated evidence and where a reasonable jury could so find.” Morse v. Fusto, 804 F.3d 538, 550 (2d Cir. 2015); see also Jovanovic v. City of New York, No. 04 Civ. 8437, 2006 WL 2411541, at *13 (S.D.N.Y. Aug. 17, 2006) (“The right to a fair trial free of fabricated evidence is basic to our Constitution and was clearly established at the time that [the Defendant] allegedly acted. Any reasonable officer would have known that [p]laintiff s rights would be violated by ... making false statements to prosecutors.” (citation omitted)).

Accordingly, Defendants’ motion to dismiss Plaintiffs’ right to a fair trial claim is DENIED.

VI. First Amendment Claims

A. Retaliation

Plaintiffs assert a First Amendment retaliation claim. SAC ¶¶ 322-28. As an initial matter, the existence of probable cause will defeat a First Amendment claim “premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence [plaintiff].” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). Accordingly, because Case pleaded guilty to disorderly conduct, SAC ¶ 187, there was probable cause to arrest him, and his First Amendment retaliation claim must be dismissed. See Cameron, 806 F.2d at 387 (“[A] conviction of the plaintiff following the arrest is viewed as establishing the existence of probable cause.”).

The Court rejects Defendants’ contention that there was probable cause to arrest Catlin and Klein based on the allegations in the complaint. As discussed in the context of Kushneir’s false arrest claim, nothing in the complaint suggests that the dispersal orders were sufficiently communicated to Catlin and Klein or that either was given an opportunity to comply with the orders. See SAC ¶¶ 194, 222-23, 238, 260-61. The Court cannot conclude based solely on the pleadings that there was probable cause as a matter of law to arrest Catlin and Klein. Therefore, Catlin, Klein, and .Kushneir are not precluded from asserting a First Amendment retaliation claim.

“To plead a First Amendment retaliation claim a plaintiff must show: (1) he has- a right protected by the First Amendment; . (2) the defendant’s actions were motivated or substantially caused by his .exercise of that right; and (3) the defendant’s actions caused him some injury.” Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). Plaintiffs satisfy the ,first element because they plausibly allege that they were engaged in conduct protected by the First Amendment, SAC ¶¶ 154, 189, 233, 264 (alleging that they were “peacefully assembling and demonstrating ... in connection with an OWS-related” event). See Jones, 465 F.3d at 56 (“The Supreme Court has declared that the- First Amendment protects political demonstrations and protests—activities at the heart of what the Bill of Rights was designed to safeguard.”); Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004) (“It is well established that ‘[t]he First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.’ ” (quoting Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003))).

Plaintiffs also satisfy the second element by plausibly alleging that their treatment by the NYPD was motivated or substantially caused by their First Amendment activity." SAC ¶¶ 75-80. The Second Circuit has acknowledged that a defendant’s motive and intent are “both difficult to plead with specificity in a complaint,” and therefore '“ti]t is sufficient to allege facts from which ¡a. retaliatory intent on the part of the defendants reasonably may be inferred.” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002). The Court finds that the sequence of events alleged by Plaintiffs— that they were arrested while participating in an OWS protest—is sufficient to . infer Defendants’ retaliatory motive. See, e.g., Meyers v. City of New York, No. 14 Civ. 9142, 2015 WL 6503825, at *12 (S.D.N.Y. Oct. 27, 2015) (holding that the plaintiffs allegation that NYPD officers arrested him and his fellow demonstrators while they were engaged in First Amendment speech implied “a motivation substantially caused by that speech” and thus met the second element for a First Amendment retaliation claim).

Plaintiffs can satisfy the third element— injury—by showing “either that [their] speech has been adversely affected by the government retaliation or that [they have] suffered some other concrete harm.” Dorsett, 732 F.3d at 160. This element is easily met here. Not only was Plaintiffs’ speech silenced when they were arrested and subsequently held in custody, but they also suffered “some other concrete harm” in the form of criminal charges. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (holding that the “issuance of the tickets was an injury in that it subjected [plaintiff] to a state action requiring that she either appear in court, pay a fine, or both”).

Finally, Defendants are not entitled to qualified immunity on this claim. “[W]hen determining a motion to dismiss on qualified immunity grounds in advance of full merits discovery, ... the question to be answered is whether a reasonable Government officer, confronted with the facts as alleged by, plaintiff, could reasonably have believed that his actions did not violate some settled constitutional right.” Torres v. Village of Sleepy Hollow, 379 F.Supp.2d 478, 483 (S.D.N.Y. 2005). “A citizen has a settled right not to suffer retaliation for the exercise of his First Amendment rights.” Id. at 486. The complaint clearly alleges that Plaintiffs were engaged in First Amendment protected activity at the time of their arrests. See Jones, 465 F.3d at 56. And the complaint adequately alleges a retaliatory motive on the part of the officers in arresting Plaintiffs. Because it would have been objectively unreasonable for those officers to believe that arresting Plaintiffs for exercising their First Amendment rights was lawful, qualified immunity is not available to Defendants at this time. See DePace v. Flaherty, 183 F.Supp.2d 633, 641-42 (S.D.N.Y. 2002).

Accordingly, Defendants’ motion to dismiss Case’s First Amendment retaliation claim is GRANTED. Defendant’s motion to dismiss Catlin, Klein, and Kushneir’s first Amendment Retaliation claims is DENIED.

B. Time, Place, and Manner Restriction

In addition to their retaliation claim, Plaintiffs assert a separate claim that “the restrictions imposed by defendants' on plaintiffs’ First Amendment rights” constituted unconstitutional time, place, and manner restrictions. SAC ¶ 329. As to exactly which “restrictions” Plaintiffs are challenging, the complaint broadly asserts that the NYPD policies and practices alleged in relation to Plaintiffs’ Monell claims violated their First Amendment rights. Id. ¶ 330. In their opposition, Plaintiffs appear to clarify that their challenge is directed at the New York Penal Law provisions under which they were charged as well as the No-Summons Policy and the MAPP. PI. Opp. 36 n.8, 44,- 45, ECF No. 62. Plaintiffs challenge • these penal law provisions and policies not on their face but as applied, contending that they gave Defendants “unbridled discretion ... to permit or deny protected expression without limitation” and were, consequently, unconstitutionally enforced against them. Id. at 44, 45 & n.11.

“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, - or manner restrictions.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). The government may impose such restrictions in public forums such- as streets, sidewalks, and parks, see Snyder v. Phelps, 562 U.S. 443, 456, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011); Hotel Emps. & Rest. Emps. Union v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir. 2002), if they (1) are content-neutral, or “justified without reference to the content of the regulated speech,” (2) “are narrowly tailored to serve a significant governmental interest,” and (3) “leave open ample alternative channels for communication of the information,” Clark, 468 U.S. at 293, 104 S.Ct. 3065. Although the “timej place, and manner” doctrine is traditionally invoked in the context of an ex ante restriction, see, e.g., Marcavage v. City of New York, 689 F.3d 98, 101 (2d Cir. 2012) (assessing reasonableness of the NYPD’s “three-zone system” for pedestrian control at the 2004 RNC that included “a. demonstration area, a frozen area (with no pedestrian traffic), and a no-demonstration area”), the Second Circuit has acknowledged that a police officer’s on-the-spot oral order to demonstrators can be analyzed under the time, place, and manner rubric, see Zalaski, 723 F.3d at 388-89 (affirming judgment of district court that, among other things, determined that the defendant police officer’s order to demonstrators “was content-neutral and a reasonable time, place, and manner restriction”); see also SAC ¶ 153 (describing a case in which a New York City Criminal Court judge, in acquitting “Flood Wall Street protestors” arrested for sitting in the street despite the issuance of dispersal orders, found that the police officer’s order to disperse “was not narrowly tailored and did not afford defendants ample alternative channels for communication”). The Court therefore will construe Plaintiffs’ “as applied” time, place, and manner challenge as a challenge specifically to the allegedly improper dispersal orders Defendants issued and used as justification for Plaintiffs’ arrests.

As to the first requirement, a restriction “that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The “principal inquiry in determining content neutrality ... is whether the government has adopted a [restriction] of speech because of disagreement with the message it conveys.” Id. Plaintiffs allege that “Defendants’ police responses to plaintiffs’ actions on November 17, 2011 ... were based on the content of plaintiffs’ speech, not their conduct,” SAC ¶ 149, and that they were subjected to the No-Summons Policy and the MAPP “because the NYPD believed they had participated in political protest related to OWS,” id. ¶ 68. However, the complaint also contains numerous allegations that other large demonstrations not associated with OWS—such as in connection with the 2002 World Economic Forum, anti-war protests in 2003, and the 2004 RNC, see id. ¶¶26, 33—met similar police responses and policies. Here, the complaint’s allegations suggest that Defendants’ orders to disperse was motivated not by disagreement with the particular subject matter of OWS, but rather by the fact that Plaintiffs were participating in a large demonstration. The Court thus finds that the restriction here-the allegedly improper dispersal orders—was content-neutral.

As to the second requirement, “[a]s a general matter, it is clear that a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). The state has a strong interest in “ensuring the public safety and order” and “promoting the free flow of traffic on public streets and sidewalks.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). The Supreme Court has clarified that “the requirement of narrow tailoring is satisfied ‘so long as the ... [restriction] promotes a substantial governmental interest that would be achieved less effectively absent the [restriction].” Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). Additionally, the means chosen cannot be substantially broader than necessary to achieve that interest. Id. at 800, 109 S.Ct. 2746. The restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Id. at 799, 109 S.Ct. 2746.

In cases involving a police officer’s oral order issued in the field, however, some courts have found that the tailoring requirement calls for a more heightened review requiring that the restriction burden no more speech than necessary to serve the proffered government interest. See McTernan v. City of York, 564 F.3d 636, 655-56 (3d Cir. 2009). The Third Circuit, for instance, looked to Madsen v. Women’s Health Center, where the Supreme Court “mandated a ‘more searching* review where a restriction takes the form of an injunction, rather than a legislative enactment.” Id. at 654 (quoting Madsen, 512 U.S. at 768, 114 S.Ct. 2516). The Third Circuit explained that the Madsen Court identified two risks warranting a “more stringent application of general First Amendment principles.” Id. (quoting Madsen, 512 U.S. at 768, 114 S.Ct. 2516). The Third Circuit stated: “First, injunctions do not emanate from deliberative, democratic decision making processes.... Second, injunctions, which target discrete groups rather than society generally, may not attract public scrutiny, increasing the likelihood that unreasonable injunctions will escape public condemnation.” Id. at 654-55. Likening on-the-spot police orders to injunctions, the Third Circuit reasoned:

[A] police directive, issued by officers in the field, poses risks similar to those presented by an injunction, warranting heightened scrutiny. First, a police directive, like an injunction, does not embody the popular will but, rather,"represents an exercise of executive authority. The absence of democratic involvement was particularly stark here. Sergeant Barth, apparently, conceived the restriction without meaningful public input and without reference to formal policy or administrative channels. Further, Sergeant Barth’s directive did not result from deliberative, democratic processes—that is, it was not the product of a “legislative choice regarding the promotion of particular societal interests.” Democratic input is especially critical in formulating speech restrictions, which must carefully balance constitutional rights against public safety imperatives. Further, as in Madsen, the directives here, which focused on First Amendment activity at a single reproductive health clinic, might easily escape public scrutiny, requiring more vigilant judicial oversight. Hence, a directive issued by officers in the field, such as the one issued by Sergeant Barth, presents constitutional hazards similar to those identified with injunctions in Madsen.

Police directives, in fact, present potentially greater opportunities for arbitrary enforcement than injunctions. Whereas injunctions are written, police directives are oral. Oral directives often lack the precision and specificity required of federal injunctions. Moreover, oral police directives are less amenable to judicial, executive, and public oversight.

Id. at 655 (citation omitted) (quoting Madsen, 512 U.S. at 765, 114 S.Ct. 2516). The Third Circuit then found, applying heightened scrutiny to the case at hand, that fact issues precluded summary judgment on the tailoring requirement. Id. at 656.

Here, however, at the motion to dismiss stage, the Court need not reach the question of whether a “more searching” review is required. Even under a less demanding level of review, the Court cannot conclude, based on the allegations in the complaint and without further factual development, that the requirements of “narrow tailoring” and “ample alternative channels of communication” were met. See Pouillon v. City of Owosso, 206 F.3d 711, 717-18 (6th Cir. 2000) (finding that the question “whether requiring [the plaintiff protestor] to move to the sidewalk was a reasonable time, place, and manner restriction that, as the First Amendment requires, left open ample alternative channels of communication ... should have gone to the jury,” where dispute existed as to whether ordering the protestor to return to the sidewalk would inhibit his protest). Furthermore, because the Court cannot conclude that Plaintiffs were arrested pursuant to a valid time, place, and manner restriction, and it was clearly established then that, absent such a valid restriction, arresting Plaintiffs for participating in the OWS demonstration was a First Amendment violation, Defendants are not entitled to qualified immunity at this time. See Occupy Columbia v. Haley, 738 F.3d 107, 124-25 (4th Cir. 2013).

Accordingly, Defendants’ motion to dismiss Plaintiffs’ First Amendment claim based on an unconstitutional time, place, and manner restriction is DENIED.

VII. Fourteenth Amendment Claims

A. Equal Protection

Plaintiffs claim that the NYPD policies and practices alleged in relation to their Monell claims, discussed below, violated their Fourteenth Amendment rights to equal protection under the laws. Plaintiffs base their equal protection claim on a selective enforcement theory, asserting that those policies and practices “target[ed] perceived participation in OWS demonstration.” SAC ¶ 345; see PI. Opp. 43. To establish a violation of equal protection based on selective enforcement, Plaintiffs must show: “(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Lisa’s Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999).

Plaintiffs’ cannot maintain their equal protection claim because they fail to adequately allege that they were treated differently from “others similarly situated.” Id. Although Plaintiffs assert that they were subjected to non-standard policing policies (the No-Summons Policy and the MAPP) that resulted in their being “held in custody for longer than similarly situated ‘non-OWS related’ arrestees would have been,” SAC ¶ 74; see also id. ¶ 119 (“In Plaintiffs’ cases, their arrest to release time was around double that of others similarly situated.”), these allegations do not satisfy the “similarly situated” requirement of “a reasonably close resemblance of the facts and circumstances of plaintiffs and comparator’s cases,” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Plaintiffs need not show “that both cases are identical.” Id. But here, Plaintiffs fail to cite even one comparative case where Defendants applied a different policy to demonstrators. Indeed, the complaint alleges that other large demonstrations not associated with OWS were also subjected to policies similar to the No-Summons Policy and MAPP. The Court thus concludes that Plaintiffs fail to state a claim for violation of their right to equal protection. See Marom v. City of New York, No. 15 Civ. 2017, 2016 WL 916424, at *13-14 (S.D.N.Y. Mar. 7, 2016).

Accordingly, Defendants’ motion to dismiss Plaintiffs’ equal protection claim is GRANTED.

B. Due Process

Plaintiffs also broadly plead violations of their right to due process. See SAC ¶¶ 294-95. In their opposition, however, they argue only that their right to due process was violated because the Penal Law provisions under which Plaintiffs were charged did not provide adequate notice of the prohibited conduct. PL Opp. 41 n.9. This claim, however, cannot stand because Plaintiffs do not specifically allege that the Penal Law provisions violated their due process rights. See SAC ¶¶ 294-95 (asserting generally that Defendants’ “conduct and actions and/or omissions” deprived them of due process). Plaintiffs make a passing reference to “vagueness and overbreadth concerns” in the context of their First Amendment claims, id. ¶ 329, but again fail to specify, that they are challenging the Penal: Law provisions. A claim that is asserted in a, brief but not in a pleading is not a properly pleaded claim, and the Court will not deem the pleading amended by the brief. See Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 836 (S.D.N.Y. 1988).

To the extent Plaintiffs also are asserting a substantive due process claim, this also fails. “[W]here another provision of the Constitution ‘provides an explicit textual source of constitutional protection,’ a court must assess a plaintiffs claims under that explicit provision and ‘not the more generalized, notion of “substantive due process.” ’ ” Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000) (quoting Conn v. Gabbert, 526 U.S. 286, 293, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)); see also Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (“[W]here a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process.”). This is so because, as the Supremé Court has observed, “the guideposts for responsible de-cisionmaking” in the “unchartered area” of substantive due process “are scarce and open-ended.” Albright v. Oliver, 510 U.S. 266, 271-72, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion). As a result, the Supreme Court has “always been reluctant to expand the concept of substantive due process” and has limited the availability of such claims to those which are not covered under other constitutional amendments. County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The Court concludes, therefore, that, because all of Plaintiffs’ constitutional claims are covered under either First, Fourth, or Sixth Amendment standards and the Equal Protection Clause, they do not have an additional substantive due process cause of action under the Fourteenth Amendment. See Velez, 401 F.3d at 94 (holding that the “plaintiffs substantive due process claim is either subsumed in her more particularized allegations,” raising First Amendment and Equal Protection Clause claims, “or must fail.”).

Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is GRANTED.

VIII. Personal Involvement of Individual Defendants

“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’” Colon, 58 F.3d at 873 (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Plaintiffs’ surviving claims are Kushneir’s false arrest claim; Catlin’s claim for excessive force; Catlin, Klein, and Kushneir’s First Amendment retaliation claims; and all Plaintiffs’ excessive detention, right to fair trial, and time, place, and manner claims. If the complaint fails to plausibly allege the personal involvement of the individual defendants in each of those claims, the respective claims must be dismissed as to those particular defendants.

Each Plaintiff asserts claims against the police officer who, they allege, actually arrested them and processed their arrests, or, in the case of Catlin’s excessive force claim, “cannot [be] rule[d] out” as the officer who stepped on her face. SAC ¶ 197. Plaintiffs also wish to hold “supervisory defendants”—Esposito, McCarthy, Groht, and Papóla—liable for directing and supervising the misconduct of the subordinate officers. See id. ¶¶ 191, 235, 268, 297-300. In analyzing claims against supervisory defendants, courts in the Second Circuit have looked to Colon v. Coughlin, which held that personal involvement of a supervisor may be shown by evidence that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring.

58 F.3d at 873.

With regard to the first factor in particular, the Second Circuit has clarified that the “direct participation” theory of supervisory liability refers to “personal participation by one who has knowledge of the facts that rendered the conduct illegal,” but also encompasses personal