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BROWN v. CITY OF NEW YORK

March 3, 2004.

LLOYD BROWN, JR., Plaintiff, -against- THE CITY OF NEW YORK, DETECTIVE BAVOLAR, BRONX COUNTY DISTRICT ATTORNEY, ASSISTANT DISTRICT ATTORNEYS GREGG TURKIN and MARY D'ANOREA, Defendants


The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

I. BACKGROUND

Plaintiff Lloyd Brown, Jr. ("Brown") brought this action naming as defendants the City of New York (the "City") and several City police officers, as well as the Bronx County District Attorney and several Assistant District Attorneys (the "DA Defendants"). Invoking 42 U.S.C. ยง 1983, 1985 and 1986, Brown alleges violations of his constitutional rights, as well as various common law torts, all arising from his arrest by City police officers and related prosecution in 1998. Brown subsequently withdrew his claims against the DA Defendants. The City then filed the instant motion for summary judgment.

  By Order dated February 25, 2004, the Court granted the City's motion and indicated that the Court's findings, reasoning and conclusions would be set forth in a Decision and Page 2 Order to be separately issued. Accordingly, for the reasons discussed below, the City's motion for summary judgment is GRANTED.

  II. FACTS

  As a threshold matter, the Court notes that, as detailed in its February 25, 2004 Order, Brown did not respond to the City's motion, even after receiving two extensions and notice from the City, prior to the City's filing of the fully-briefed motion, that the deadline for Brown's response had passed. The Court accordingly proceeded to consider the motion on the basis of the record before it. Given the absence of a response, the Court treats the facts set forth in the City's Rule 56.1 Statement of Undisputed Material Facts as "deemed to be admitted." S.D.N.Y. Loc.R. 56.l(c). The Court also considers other documents filed in connection with the motion as unopposed and accepts them, along with the allegations in the complaint, as appropriate, as forming the factual basis for the motion. See Mercado v. Div, of New York State Police. No. 96 Civ. 235, 2001 WL 563741 (S.D.N.Y. May 24, 2001); RTC Mortgage Trust 1995 S/N1 v. Palomar Realty, Inc., No. 91 Civ. 6685, 1996 WL 689281, at *1 n.l (S.D.N.Y. Nov. 27, 1996).

  Brown's claims arise from his arrest and prosecution in connection with a homicide committed in the Bronx on July 3, Page 3 1998. On that day, Elroy Evans ("Evans") was sitting with the victim, Dale Smith ("Smith"), on the steps of Smith's house in the Bronx. At approximately 5:35 p.m., two armed men arrived and forced them inside at gunpoint. Smith struggled with one of the gunmen, who shot Smith. Two other individuals apparently connected with the attackers then arrived in a vehicle and the four men fled. Evans gave the police a description of the shooter as a male black, Jamaican, about six feet tall and 25 to 30 years old.

  On the day of the shooting and on several later occasions Evans reviewed photographs at the 47th Precinct as part of the police investigation of the crime. On the second visit, Evans identified the photograph of an individual he said was the accomplice who first appeared with the shooter and had held Evans at gunpoint. At a subsequent line-up that included the person he had so identified, Evans was unable to pick out anyone positively. According to Brown, after the line-up, Detective Bavolar ("Bavolar"), the police officer in charge of the investigation and the one individual police officer specifically named as a defendant in the complaint, and other unidentified police officers not individually named in the complaint, allegedly instructed Evans to identify someone as the offender and threatened to charge Evans with the crime if he failed to do so. While reviewing more photographs two Page 4 weeks later, Evans identified a picture of Brown as the person who had shot Smith. Brown, who had been arrested a week earlier on an unrelated armed robbery charge, substantially fit the description of the shooter Evans had given to the police on the day of the homicide.

  On August 23, 1998, Bavolar and other City police officers visited Brown at his home in Queens, New York. They informed Brown that they were conducting an investigation of a crime in the Bronx and requested that Brown accompany them to the 47th Precinct. On the way there and at the precinct, Brown allegedly gave conflicting or evasive statements about his familiarity with or prior presence in the Bronx. Similarly, he gave different accounts of his whereabouts on the date and time Smith was killed, telling Bavolar that he was at home watching television, that he was at the Green Acres shopping mall in New York with his father, mother and other relatives, and that he was at a mall in New Jersey with his mother and brother-in-law. At a line-up later that day, Evans identified Brown as the individual who killed Smith. Brown was then informed by Bavolar that he was being arrested and charged with second degree murder, attempted robbery, and criminal use of a firearm in connection with Smith's shooting. On August 24, 1998, Brown was arraigned on these charges and remanded without bail. Page 5

  Appearing before a grand jury on September 9, 1998, Evans described the events relating to the shooting of Smith. He testified that he saw the shooter, whom he described as speaking with a Jamaican accent, and that he had identified the person during a line-up on August 23, 1998. Brown's father told the grand jury that on the afternoon of the homicide Brown was with him and other relatives at the Green Acres mall, that they returned home between 5:00 and 5:30 p.m. and that, while the father stayed home with his granddaughter, Brown and the other family members went out again and returned at approximately 9:15 p.m. The grand jury, after deciding not to hear testimony from other alibi witnesses Brown had proffered, indicted Brown of second degree murder and other related crimes. Brown moved to dismiss the indictment, and a judge of the New York State Supreme Court, Bronx County, denied the motion, finding that there was sufficient evidence to support each element of the offenses charged.

  On March 29, 2000, the Bronx District Attorney advised the state court that it had decided to recommend dismissal of the charges against Brown, who was then released on parole. Three weeks later, at the adjourned date for the proceeding, the court dismissed the case against Brown. Page 6

  III. DISCUSSION

 A. STANDARD FOR SUMMARY JUDGMENT

  The Court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must first look to the substantive law of the action to determine which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  The moving party bears the initial burden of demonstrating that the evidence contained in the record fails to raise a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After such a showing, the non-moving party must respond with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To this end, "[t] he non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). Thus, the moving party "must prevail Page 7 if the [non-movant] fails to come forward with enough evidence ...


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