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ROE v. CITY OF NEW YORK
August 3, 2001
JAMES ROE, PLAINTIFF,
THE CITY OF NEW YORK, NEW YORK CITY POLICE COMMISSIONER BERNARD KERIK, AND NEW YORK CITY POLICE OFFICERS LANCE HO, THOMAS HICKEY, AND JOHN DOES #1-9, DEFENDANTS.
The opinion of the court was delivered by: Sweet, D.J.,
Anonymous plaintiff James Roe ("Roe") moves to amend the complaint
pursuant to Fed.R.Civ.P. 15(a) to add (1) a prayer for injunctive relief
for a class of persons similarly situated to himself; and (2) injunctive
relief claims on behalf of putative plaintiffs Hilton Perez ("Perez") and
John B. as representatives of the putative class; as well as (3) to allow
John B. to proceed anonymously. Defendants City of New York ("the
City"), New York City Police Commissioner Bernard Kerik ("Kerik" or the
"Commissioner"), New York City Police Officers Lance Ho ("Ho") and Thomas
Hickey ("Hickey") (collectively the "defendants") oppose the motions on
the grounds of standing, ripeness, and improper joinder. In addition,
defendants cross-move to strike numerous paragraphs in the proposed class
action complaint ("PCC" or "class complaint") and exhibits attached
thereto on the grounds that the material therein is immaterial to the
claims and prejudicial to the defendants. For the reasons set forth
below, the motion to amend the complaint and the motion for John B. to
proceed anonymously are granted, and the motion to strike is denied.
At all times relevant to this action, plaintiff James Roe was a
New York City resident and a registered participant in the Lower
East Side Needle Exchange Program ("LESNEP"), a State-authorized
New York City needle exchange program ("NEP").
Putative plaintiff Hilton Perez is a New York City resident and
registered participant in the Foundation for Research on Sexually
Transmitted Diseases (FROSTD), a State-authorized New York City NEP.
Putative plaintiff John B. is a New York City resident and a registered
participant in the LESNEP.
Putative class members Jim Moes #1-#3 are yet to be identified
registered participants in registered New York City NEP's.
Defendant City of New York is a municipal entity created and authorized
under the laws of the State of New York. The City is authorized to
maintain a police department (the "New York City Police Department" or
Defendant Lance Ho is a NYPD detective.
Defendant Thomas Hickey is a NYPD police officer.
Putative defendant Paul Demarato ("Demarato") is a NYPD police
This civil rights action alleges that the defendants have a practice of
unlawfully harassing, arresting and prosecuting injection drug users such
as plaintiffs, who are registered participants in state-authorized New
York City needle exchange programs. Roe, Perez, and John B. (hereinafter
collectively referred to as "plaintiffs," for ease of reference) contend
that this practice not only violates their rights under the Fourth and
Fourteenth Amendments to the United States Constitution, and the laws of
New York, but also threatens public health by eviscerating the
effectiveness of lawful clean needle exchange programs ("NEP's"), which
save lives by reducing the spread of AIDS and other blood-borne
The complaint, filed on November 28, 2000, sought damages for James Roe
for illegal search, false arrest, malicious prosecution, forced
participation in a "buy and bust," conspiracy to violate his civil
rights, failure to train, official policy to violate civil rights,
violation of state rights, and respondeat superior liability for
violation of state rights.
On March 30, 2001, Roe moved to amend the complaint pursuant to
Fed.R.Civ.P. 15(a). The proposed class action complaint seeks to assert
claims for declaratory and injunctive relief protecting the right of a
class of registered participants in licensed NEP's legally to possess
injection equipment obtained from or to be returned to those programs.
The PCC also seeks to add Hilton Perez and John B. as representatives of
the putative class, to provide additional facts relating to their claims
for injunctive relief, and to add Officer Demarato, who arrested Perez,
as a defendant.
In addition to facts specific to the putative plaintiffs' claims, the
PCC sets forth detailed factual allegations pertaining to the link
between the use of "dirty" needles and the spread of HIV/AIDS and other
blood-borne diseases, the role of NEP's in saving lives by preventing
further transmission of disease, and New York City's needle exchange
program. Notably, the PCC alleges that:
One of the greatest impediments to an effective needle
exchange program is fear on the part of IDUs
[intravenous drug users] that they will be arrested
while participating in the [needle exchange] program.
Indeed, researchers have concluded that the sharing of
injection equipment is due primarily to fear of arrest
and incarceration for violation of drug paraphernalia
laws and ordinances that prohibit manufacture, sale,
distribution, or possession of equipment and materials
intended to be used with narcotics.
(PCC ¶ 56.) The PCC alleges that Roe and Perez were each unlawfully
arrested by defendant NYPD officers for possessing hypodermic instruments
they carried pursuant to their registered participation in a lawful NEP,
and that the NYPD has a continuing practice of targeting NEP
participants, which not only violates their rights under both the federal
constitution and the New York State law pertaining to needle exchanges,
but also deters Roe, Perez, John B. and other putative class
participating in the needle exchange program.
John B. has also filed a motion to proceed anonymously because he fears
adverse consequences if his condition as an injection drug user with
full-blown AIDS were to become public. The PCC has been filed under seal
pending a ruling on his motion.
Defendants have opposed the motion to amend and that portion of the
anonymity motion relying on John B.'s HIV status. On May 1, 2001,
defendants cross-moved to strike numerous paragraphs in the complaint,
plus exhibits attached thereto, each of which pertain to HIV, as
immaterial to the claims and prejudicial to the defendants.
The motions were deemed fully submitted after oral argument on
May 16, 2001.
I. The Motion to Amend is Granted
The defendants oppose the motion on the grounds that (1) Roe, Perez,
and John B. do not have standing to claim injunctive relief; (2) John B's
claims are not ripe for adjudication; and (3) putative plaintiffs Perez
and John B. are not ...