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July 7, 1994

DIANA MERCED, Plaintiff,


The opinion of the court was delivered by: MORRIS E. LASKER


 Diana Merced, who was shot in the face and neck by two assailants in the hallway of her Bronx public housing project, sues the City of New York and Housing Authority Police under two legal theories: (1) that the defendants violated her civil rights under 42 U.S.C. § 1983 because their failure to protect her was based on a discriminatory motive -- Merced's status as a Hispanic woman and victim of domestic violence; and (2) that the defendants promised and then failed to provide protection for her, thereby breaching a duty under New York law.

 New York City, in turn, sues the United States for indemnity and contribution under the Federal Tort Claims Act on the ground that the NYPD officers in question were serving as federal agents of a Joint Narcotics Task Force supervised by the United States Drug Enforcement Administration ("DEA").

 New York City and the Housing Authority move separately for summary judgment but on the same grounds; first, that Merced fails to state a § 1983 claim because she has presented no evidence of a discriminatory motive and second, that Merced fails to establish that the defendants had an affirmative duty, under New York law, to protect her.

 The United States moves for summary judgment dismissing the third-party complaint for lack of subject matter jurisdiction and for failure to state a claim.


 Diana Merced lived with confessed drug dealer Joseph Navedo and their son. Over the course of the relationship which began in 1983, Merced was the victim of Navedo's constant physical abuse and, on two occasions, her nose was broken by Navedo. In April 1987, Navedo demanded that Merced help him transport cocaine to Puerto Rico and she refused. Navedo threatened to kill her and, in a panic, Merced contacted her mother, Ramonita Merced, for help. Ramonita Merced went to the 44th Precinct in the Bronx and reported her daughter's situation to NYPD Detective Jose Arroyo.

 Detective Arroyo contacted Merced and, according to her, said Navedo was "going to spend a lot of time in jail" and that she need not worry about retaliation. (Merced Deposition of May 29, 1992 at 29). Arroyo then contacted the DEA. Shortly thereafter, NYPD Detectives Bruce Rivera and Wilfred Cebollero, members of the DEA Joint Narcotics Task Force, arrested Navedo based on an outstanding warrant.

 Merced alleges that she told Detective Rivera that Navedo would kill her if she cooperated with the police. She claims that Detective Rivera assured her that she could be placed in the Witness Protection Program if she was in danger (Id. at 41-43).

 Navedo was incarcerated for three months after his arrest, but was released in July 1987 after agreeing to become an informant for the DEA. When Merced heard of his release, she contacted the NYPD about her renewed fears (Merced Deposition of May 15, 1992 at 172).

 For more than a year following his release, Navedo harassed Merced and threatened to kill her. By this time, Merced was living with her mother at a Bronx public housing project. Each time Navedo tried to force himself into her apartment, Merced phoned the Housing Authority police to report that fact. Each time, Navedo left before the Housing police arrived and the Housing police told her to call again if he came back. Merced alleges that the Housing police advised her to obtain an Order of Protection against him. As a result, Merced obtained Orders of Protection from both Bronx County Criminal Court and Family Court, dated February 14, 1988, September 22, 1988, December 22, 1988 and January 11, 1989.

 After the first Order of Protection was issued, Navedo attacked Merced with brass knuckles, causing a wound which required ten stitches above her eye. After that incident, Merced went to the local NYPD precinct to file a report and present her Order of Protection. She alleges that she was told by an unidentified uniformed officer "being that me and him were . . . legally husband and wife . . . they really couldn't do much about it" (Id. at 195). On another occasion, Navedo attempted to run her over with his car. Each time, Merced called the Housing police but they did not arrest Navedo because he had left the premises. Merced states that the Housing police "knew that I had an order of protection" (Id. at 212.)

 In October 1988, Navedo attacked Merced and kidnapped their son. The Housing police then brokered a deal with Navedo, promising not to arrest him if he returned the child. During the negotiations, Merced claims that the Housing police heard Navedo threaten Merced with death. (Id. at 202.)

 Merced's mother Ramonita Merced, who was the head of the household, asked the Housing Authority in March 1989 for a change of residence to hide her family from Navedo, but the family ...

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