Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROE v. CITY OF NEW YORK

August 3, 2001

JAMES ROE, PLAINTIFF,
v.
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.,

      O P I N I O N

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.

The Parties

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 "NYPD").

Defendant Lance Ho is a NYPD detective.

Defendant Thomas Hickey is a NYPD police officer.

Putative defendant Paul Demarato ("Demarato") is a NYPD police officer.

Background

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 diseases.

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 members from 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.

Discussion

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.