Salmon v. Blesser, No. 14-1993 (2d Cir. 2015)
Annotate this CasePlaintiff filed suit under 42 U.S.C. 1983 and New York state law, against the City, the Police Department, and two Police Department employees, alleging constitutional and tortious injuries resulting from the use of physical force to eject him from the Albany City Court. The district court dismissed the complaint. Plaintiff appealed the dismissal of his claims against Officer Blesser, in his individual capacity. The court concluded that, while the law in this circuit holds that an order to depart a public place that allows a person to go anywhere else he wishes does not, without more, effect a Fourth Amendment seizure, under Sheppard v. Beerman, where, as here, a plaintiff alleges that the ordering official used physical force intentionally to restrain plaintiff and control his movements, the officer’s conduct may or may not be reasonable, but the Fourth Amendment claim cannot be dismissed for failure plausibly to plead seizure. The court concluded, however, that plaintiff's First Amendment claim was correctly dismissed because he has not alleged either his engagement in expressive conduct or any impairment of his access to judicial records, plaintiff's intentional infliction of emotional distress claim was correctly dismissed because defendant Blesser’s alleged conduct falls well within the ambit of a traditional battery claim. Accordingly, the court vacated in part and affirmed in all other respects, remanding for further proceedings.
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