20-642-cv Oakley v. Dolan

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2020

Argued: September 25, 2020 Decided: November 16, 2020

Docket No. 20-642

------------------------------------------ CHARLES OAKLEY,

Plaintiff - Appellant,

V.

JAMES DOLAN, IN HIS INDIVIDUAL CAPACITY, IN HIS PROFESSIONAL CAPACITY, MSG NETWORKS, INC., MADISON SQUARE GARDEN COMPANY, MSG SPORTS & ENTERTAINMENT, LLC,

Defendants - Appellees. ------------------------------------------

Before: NEWMAN, CALABRESI, CARNEY, Circuit Judges.

Appeal from a judgment of the District Court for the Southern District of New

York (Richard J. Sullivan, Judge), dismissing an amended complaint brought by

Charles Oakley against MSG Networks, Inc., The Madison Square Garden

Company, and MSG Sports & Entertainment, LLC and James Dolan.

Reversed and remanded as to causes of action for assault and battery;

affirmed as to all other causes of action in a summary order filed this date. Douglas H. Wigdor, Wigdor LLP, New York, NY (Renan F. Varghese, Wigdor LLP, New York, NY, Nelson A. Boxer, Petrillo Klein & Boxer LLP, New York, NY, on the brief), for Plaintiff-Appellant Charles Oakley.

Randy M. Mastro (Akiva Shapiro, Declan T. Conroy, Grace E. Hart, Gibson, Dunn & Crutcher LLP, New York, NY, on the brief), for Defendants- Appellees James Dolan, MSG Networks, Inc., Madison Square Garden Company, and MSG Sports & Entertainment, LLC.

JON O. NEWMAN, Circuit Judge:

This appeal concerns the sufficiency of allegations of unreasonable force

applied by security personnel endeavoring to remove a spectator from a sports

arena. Plaintiff-Appellant Charles Oakley appeals from the February 20, 2020,

judgment of the District Court for the Southern District of New York (Richard J.

Sullivan, Judge 1). The judgment dismissed an amended complaint against

Defendants-Appellees MSG Networks, Inc., The Madison Square Garden

Company, and MSG Sports & Entertainment, LLC (collectively “the MSG

Defendants”) and James Dolan. We conclude that the allegations of unreasonable

1 Judge Richard J. Sullivan, United States Circuit Judge, sitting by designation. Judge Sullivan was a District Judge when Oakley’s complaint was filed. Judge Sullivan retained the case when he became a Circuit Judge in October 2018. All references to the District Court in this opinion are to Judge Sullivan’s rulings filed in the District Court.

2 force sufficed to withstand a motion to dismiss the assault and battery causes of

action in the Plaintiff’s amended complaint. We therefore reverse in part and

remand. The appeal also presents other issues, which we resolve favorably to the

Defendants-Appellees in a summary order filed this date.

Background

Oakley is a former professional basketball player who had a successful career

with the New York Knicks basketball team from 1988 to 1998. Dolan is the Executive

Chairman of the MSG Defendants, which own and operate Madison Square Garden

(“the Garden”) and the Knicks.

The Plaintiff filed a complaint in September 2017 and an amended complaint

in February 2018, alleging state law claims for assault and battery against the MSG

Defendants, arising out of an incident occurring at the Garden on February 8, 2017

(“the Incident”). The amended complaint also alleges other state law claims and a

federal claim under the Americans with Disabilities Act,

et seq.,

against all Defendants, which the summary order considers.2 This opinion considers

the assault and battery claims; the summary order filed this date considers all the

other claims.

2 A state law claim for false imprisonment was not asserted against Dolan.

3 Plaintiff’s allegations. Oakley alleged the following facts concerning the assault

and battery claims. Dolan “constantly disrespected” Oakley and had “security

harass him” when he attended games at the Garden. Am. Compt. ¶ 2. On February

8, 2017, Oakley appeared at the Garden to watch a Knicks game. Within minutes of

the moment when Oakley took his seat, Dolan directed security “to forcibly

remove” Oakley,

, and he “was approached by three large men identifying

themselves as being members of [MSG’s] security team who ordered him to leave

the arena without explanation,”

. When Oakley asked why was being forced

to leave, one of the security guards “demand[ed] loudly, ‘Why are you sitting so

close to Mr. Dolan?’”

. Oakley “attempted to defuse the situation by patiently

explaining to the security personnel that he had done nothing wrong and simply

wanted to watch the game.”

. Oakley “raised his arms during this encounter,

in a defensive posture that clearly conveyed that he had no intention of engaging in

any violent behavior.”

. Oakley “attempted to demonstrate that he was

capable of watching the game without creating an incident, by turning around and

peaceably returning to his seat.”

. He “did not, however, refuse to leave the

Garden at the time and merely sought an explanation for why he was being treated

4 differently than every other fan who had attended the Knicks game that night.”

.

“As he did so, two of the security guards grabbed Mr. Oakley and pushed

him to the ground.”

. “In forcibly shoving Mr. Oakley to the ground within

seconds of first approaching him, and without any physical threat or provocation

from Mr. Oakley, the security guards clearly exceeded the bounds of reasonable

behavior and instigated a physical altercation where there otherwise was no need

for such violent conduct.”

. “When Mr. Oakley got back to his feet,”

,

“the security guards further escalated the confrontation by physically grabbing Mr.

Oakley to forcibly compel him to leave,”

. “Fearing for his safety as he was

surrounded by several large security guards, and having already been roughly

shoved to the ground once, Mr. Oakley pushed their hands away in self-defense.”

. “Within seconds, Mr. Oakley was forcibly turned around so his back faced

security, grabbed by six officers and thrown to the ground.”

. “The security

guards further refused Mr. Oakley’s repeated requests that he be allowed to stand

up, instead crowding around him and impeding his ability to get to his feet.”

. “Mr. Oakley was then put into restraints and the security guards roughly

threw him out of the Garden.” ¶ 49. “Defendants greatly exceeded the amount of

5 force that was necessary in the situation, especially since Mr. Oakley had explained

repeatedly that he had not done anything wrong and not instigated the violent

conduct.”

. Oakley “was ultimately taken outside of the arena, arrested and

charged with assault.”

.

Oakley made the following allegations in support of a cause of action for

assault. The MSG Defendants “intentionally placed Plaintiff in imminent fear of

harmful and/or offensive conduct when, inter alia, they physically and forcibly

removed Plaintiff from the Garden . . . .”

. “As a direct and proximate result

of [the MSG Defendants’] tortious conduct, Plaintiff has suffered and continues to

suffer harm . . . .”

. He made the following allegations in support of a cause

of action for battery. The MSG Defendants “intentionally and wrongfully physically

contacted Plaintiff without his consent when, inter alia, they physically and forcibly

removed Plaintiff from the Garden . . . .”

. “As a direct and proximate result

of [the MSG Defendants’] tortious conduct, Plaintiff has suffered and continues to

suffer harm . . . .”

. Plaintiff’s pleading of both the assault and the battery

causes of action incorporated his factual allegations.

Dismissal of the amended complaint. On February 19, 2020, the District Court

granted the Defendants’ motion to dismiss the amended complaint. See Oakley v.

6 Dolan, No. 17-cv-6903 (RJS),

(S.D.N.Y. Feb. 19, 2020). The District

Court recognized that, to defeat a motion to dismiss a complaint, a plaintiff must

allege “‘enough facts to state a claim [for] relief that is plausible on its face,’”

at

*3 (quoting Bell Atlantic Corp. v. Twombly,

(2007)), and that “a court

must accept as true all factual allegations in the complaint and draw all reasonable

inferences in favor of the plaintiff,”

at *4 (citing ATSI Communications, Inc. v.

Schaar Fund, Ltd.,

(2d Cir. 2007)).3

Turning to the assault and battery claims, the Court first observed that “‘a

property owner has the right to use reasonable force to eject a trespasser from its

premises,’”

at *12 (quoting Mitchell v. New York University, No. 150622/2013,

, at *1 (N.Y. Sup. Ct. Jan. 8, 2014), and then acknowledged that “the use

of unnecessary force or evidence of intent to injure . . . removes the privilege,”

The Court further explained that “the MSG Defendants had the right to expel

Oakley from the Garden and that his refusal to leave justified their use of reasonable

force to remove him ‒ a licensee who became a trespasser by refusing to leave their

property after being directed to do so.”

. The Court cited Impastato v.

3 The District Court also ruled that, in resolving the motion to dismiss, it would not consider certain videos of the February 8, 2017 incident that the MSG Defendants submitted in support of their motion to dismiss. Oakley makes no claim on appeal that this was error.

7 Hellman Enterprises, Inc.,

,

(N.Y. App. Div. 1989),

for the proposition that “[a]n admission ticket to a place of public amusement is

merely a license which is revocable, without cause, at the will of the proprietor.”

Oakley,

, at *13 (internal quotation marks omitted).

The Court understood Oakley’s claim to be that “the guards’ use of force was

unreasonable because he did ‘nothing wrong and simply wanted to watch the game

in peace.’”

(quoting Am. Compt. ¶ 37). Then, considering whether the force used

was unreasonable, the Court stated that “the mere allegation that the guards

subsequently ‘grabbed [him] and pushed him to the ground [citing Am. Compt.

¶ 42]’ is not enough to demonstrate unreasonable force, see, e.g., Kalfus v. N.Y.

Presbyterian Hospital,

(2d Cir. 2012) (explaining that police

officers’ pushing trespasser onto the ground while arresting him to remove him

from the premises after he refused to leave was reasonable force).” Oakley,

, at *13. The Court continued, “Nowhere does Oakley allege that the guards

intended to injure him, and his description of the events as they unfolded does not

support an inference of excessive or unreasonable force.”

The Court understood

Oakley to have alleged that “It was only after Oakley slapped the guards’ hands

away ‘in self-defense’ that three more security guards arrived on the scene and

8 forced him to the ground and ’imped[ed] his ability to’ stand up.” 4

(quoting Am.

Compt. ¶¶ 46-48) (emphasis added). The Court concluded, “Notably, the Amended

Complaint nowhere alleges that Oakley was in fact injured . . . ,” “Oakley makes no

allegation that the force used by Garden officials was unreasonable,” and “Oakley

has not alleged any facts to suggest that the guards’ use of force was excessive . . . .”

at *13-14 The Court therefore dismissed the assault and battery claims. See

.

Discussion

We review de novo dismissal of a complaint for failure to state a valid claim,

CBF Indústria de Gusa S/A v. AMCI Holdings, Inc.,

(2d Cir. 2017), and,

like the District Court, we are to determine whether the amended complaint alleges

“enough facts to state a claim [for] relief that is plausible on its face,” Bell Atlantic

Corp.

, and to “accept[] all factual allegations as true and draw[] all

reasonable inferences in the plaintiff’s favor,” CBF Indústria de Gusa S/A,

.

The Plaintiff alleged that MSG security guards “grabbed” him, “pushed him

to the ground,” Am. Compt. ¶ 42, and “forcibly shov[ed] [him] to the ground”

4 Oakley alleged that he “pushed their hands away in self-defense.” Am. Compt. ¶ 46 (emphasis added).

9 ¶ 43. Oakley further alleged that when he ”got back to his feet,” id. ¶ 44, he was

“grabbed by six officials and thrown onto the ground,” id. ¶ 47. These actions, he

alleged, “greatly exceeded the amount of force that was necessary,” id. ¶ 50, and he

further alleged that “the security guards clearly exceeded the bounds of reasonable

behavior and instigated a physical altercation where there otherwise was no need

for such violent conduct,” id. ¶ 43. He also alleged that the MSG Defendants

“intentionally placed Plaintiff in imminent fear of harmful and/or offensive

conduct,” id. ¶ 123, and that they “intentionally and wrongfully physically

contacted Plaintiff without his consent,” ¶ 127, when “they physically and forcibly

removed Plaintiff from the Garden,” id. ¶¶ 123, 127, and that the Plaintiff “has

suffered and continues to suffer harm,” id. ¶ 125.

When a plaintiff alleges that he was “thrown to the ground” by actions that

“greatly exceeded the amount of force that was necessary” and “clearly exceeded

the bounds of reasonable behavior,” and that he “has suffered and continues to

suffer harm,” the reasonable inference to be drawn is that he has been subjected to

an unreasonable amount of force.

The District Court appears to have somewhat misunderstood Oakley’s

allegations, deeming him to argue “that any use of force was unreasonable, because

10 it was unreasonable to ask him to leave in the first place.” Oakley,

,

at *14 (emphasis in original). Although Oakley did contend (incorrectly) that the act

of removal was unreasonable, his additional, and actionable, claim was that the

security guards used excessive force in accomplishing the removal.

In concluding that Oakley’s allegations did not support an inference of

unreasonable force, the District Court enlisted Kalfus v. N.Y. Presbyterian Hospital,

(2d Cir. 2012). See Oakley,

, at *13. That

decision is significantly different from Oakley’s case. First, we note that the decision

in Kalfus was not made on a motion to dismiss, but on a motion for summary

judgment. See

. Second, force was used on Kalfus in order to handcuff him

during an arrest. See

. In contrast, the Garden security officers who threw

Oakley to the ground were not trying to handcuff a person whom they had

authority to arrest; his arrest occurred later, outside the arena. The force reasonably

needed to initiate the criminal process by handcuffing a person being arrested, “in

circumstances that are tense, uncertain, and rapidly evolving,” Graham v. Connor,

(1989), is not necessarily reasonable in the civil context to

remove a person whose license to remain on private property has been revoked.

One difference, for example, is that the reasonableness of force used to make an

11 arrest takes into account “the severity of the crime” for which the arrest is being

made.

.

As the Second Department of the Appellate Division has noted, “Because of

its intensely factual nature, the question of whether the use of force was reasonable

under the circumstances is generally best left for a jury to decide.” Holland v. City of

Poughkeepsie,

,

(2d Dep’t 2011). Even in the arrest

context, the reasonableness of the force used is often a jury question. See, e.g.,

Hernandez v. Denny’s Corp.,

, 1375,

, 152 (4th Dept.

2019) (whether peace officers used unreasonable force in arresting restaurant

customer who was belligerent was question for jury). These principles apply with

even greater force at the motion to dismiss stage, where a court must assume the

truth of the plaintiff’s allegations and avoid resolving factual disputes.

In Oakley’s case, his allegations sufficed to defeat a motion to dismiss the

assault and battery claims in the amended complaint. Accordingly, the judgment is

reversed as to the causes of action for assault and battery and affirmed as to other

causes of action in a summary order filed this date, and the case is remanded for

further proceedings.

12