The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge.
Plaintiff's claims arise from an arrest allegedly involving mistaken identity. By decision dated July 12, 2003, U.S. District Judge Arthur D. Spatt granted defendants' motion to dismiss as to all plaintiff's claims except (1) false arrest, malicious prosecution, and deliberate indifference to medical treatment under 42 U.S.C. § 1983; (2) municipal liability against the Village of Hempstead under § 1983; and (3) conspiracy to falsely arrest and imprison plaintiff against Detective Mancuso and the John Doe detectives and police officers under 42 U.S.C. § 1985. Carbajal v. County of Nassau, 271 F. Supp. 2d 415, 419, 424 (E.D.N.Y. 2003). Defendants now move for summary judgment on the grounds of qualified immunity. For the reasons stated below, the court denies defendants' motion.
Plaintiff is an El Salvador national living in the United States without a visa or green card and working at a roofing company. He has never been married. Plaintiff lived for seven years at 264 Stewart Avenue in Hempstead, New York, where a drug transaction was observed and videotaped by Hempstead detectives. Plaintiff was later arrested for this drug offense and told police officers that he was not the man on the videotape. Though plaintiff was unable to identify the individual on the videotape at the time of his arrest, he later discovered that it was a man named "Abel," or nicknamed "Catracho," who resided at 264 Stewart Avenue for around one month. In more detail, the facts surrounding plaintiff's arrest are as follows.
On March 16, 1999, defendant Detective Mancuso and three other detectives, Stephen Karlya, Donald Simone, and Frank Puma*fn1 -working together on a "long-term narcotics operation" at the Village of Hempstead Police Department-arranged with a confidential informant ("CI") to make an audio/videotape recording of a drug transaction. While walking on Van Cott Avenue in Hempstead, New York, the CI spotted a man whom he knew sold drugs and informed the detectives. The CI approached the man and followed him to 264 Stewart Avenue, in Hempstead, where the man entered through the front door and returned with a small plastic bag of twenty dollars worth of crack-cocaine. The man then sold the crack-cocaine to the CI. This transaction was recorded on the videotape. The transaction occurred in Spanish, and defendants have not rebutted that they never transcribed or translated the videotape. The detectives viewed the videotape later that day and made still photographs of the suspect. Of the four detectives, only Detective Mancuso testified to speaking "a little" Spanish. (Mancuso Dep. at 12.) Detective Karlya testified he understands "a little bit" of Spanish (Karlya Dep. at 333), and, though he did not understand the exact dialogue on the videotape, he understood that part of the conversation was "about work." (Id. at 339.)
The court has reviewed the videotape and the transcription/translation provided by the plaintiff. The videotape footage is in black and white, and the sound quality is fair, though from time to time the dialogue is unintelligible. As the CI is wearing the camera, there is a lot of movement in the frames, especially when the CI is walking. On the videotape, the CI asks the man who sells him the drugs what his name is, and the man responds "Abel." The man also tells the CI that he works in carpentry and mentions having been previously married and wanting to travel to Honduras, though the man does not make a specific statement about his nationality. There are not many clear images of "Abel," because often he and the CI are walking side by side. Also, apparently because of camera placement on the CI, in several frames, the top of Abel's head is not visible. However, as the still photographs show, Abel's face is visible in several frames on the videotape. After the CI completes the transaction and reunites with the detectives, the CI tells one of the detectives on the tape, in English, that the man who sold him the drugs "said his name," but the CI does not mention the name "Abel" and states instead that he does not remember the man's name. Detective Karlya testified at his deposition that the CI told him that the drug seller was named "Jose."*fn2 (Karlya Dep. at 61.)
On or about March 17 or 18, 1999, Detectives Mancuso, Karlya, Puma, and Simone visited 264 Stewart Avenue in Hempstead "to identify the guy that dealt drugs to [the] informant." (Id. at 101--02.) The detectives spoke to three adults who were living at the house: plaintiff, his sister, and plaintiff's brother-in-law, Mauro Polanco. Plaintiff testified at his deposition that his brother-in-law was not at home, but Detective Mancuso recalled that the brother-in-law was "short and stocky." (Mancuso Dep. at 54.) Plaintiff's sister's two children were also home at the time of the detectives' visit. The detectives spoke to plaintiff and his family under the guise that they were investigating children being left at home alone and asked who lived in the house. The detectives do not remember who responded specifically but testified that neither of the three adults indicated that any other adults lived at the home.Plaintiff testified that he did not mention anyone else who lived in the house "[b]ecause [the detectives] just came and asked about the family." (Carbajal 2004 Dep. at 23.) The detectives did not take any notes during this visit, but Detective Mancuso recalls plaintiff stating that he worked as a roofer. The officers concluded that plaintiff was the man on the videotape who sold the drugs to the CI but did not arrest him immediately because, under the long-term narcotics operation, it was their practice to make arrests several months later to protect the identity of the CI.
On October 22, 1999, while patrolling, Detectives Mancuso and Karlya and Detective Lieutenant Joseph Wing spotted plaintiff urinating against the side of a building on Clinton and Wellington Streets in Hempstead. The detectives arrested plaintiff for the narcotics sale that took place on March 16, 1999. Detective Mancuso testified at his deposition that plaintiff was never read his Miranda rights. Plaintiff alleges that, upon his arrival at the Hempstead Police Station, he was strip searched and taunted by police officers at the Station. Police officers showed plaintiff the videotape and/or still pictures from the tape, and plaintiff told the officers the images were not of him. Plaintiff was charged with possession and sale of a controlled substance in the third degree, in violation of New York Penal Law §§ 220.16(1) and 220.39(1), respectively. Plaintiff's bail was set at $50,000, which plaintiff was unable to pay. After plaintiff's case was submitted to a Nassau County grand jury, all charges against him were dismissed. Plaintiff was released from custody on January 3, 2000.
Detective Karlya testified that he is unaware whether any of the detectives ever showed the CI a picture of plaintiff, but that he did not. Detective Karlya testified that, most likely, he had conversations with the CI sometime after plaintiff's arrest but could not remember the substance of such conversations, if any. When asked whether the CI had ever been asked to return to 264 Stewart Avenue to identify Mr. Carbajal, Detective Karlya testified that the CI "wouldn't do that." (Karlya Dep. at 274.) According to Detective Karlya, no further investigation was made to ascertain whether any other males, other than those observed during the detectives' visit, were living at 264 Stewart Avenue.
Plaintiff was deposed twice with the aid of an interpreter. Plaintiff's deposition testimony regarding when he knew that the man selling the crack-cocaine to the CI on the videotape had lived at 264 Stewart Avenue-and the living arrangements at the home-is inconsistent. Though plaintiff testified at a deposition on November 9, 2000 that he lived upstairs in March 1999 with his sister and her family, at a July 15, 2004 deposition plaintiff testified that, in March 1999, he lived in the basement with three other adults named Alejandro Campos, Maria Gonzalez, and "Apolinar," while his sister, brother-in-law, and two nephews lived upstairs. Plaintiff also testified at the 2004 deposition that it was not until late March that he saw another man at 264 Stewart Avenue and found out that this man, named "Abel," had been living upstairs for about a month. Thus, according to plaintiff, he was unaware of "Abel" at the time of the detectives' visit in March 1999. Plaintiff remembers "Abel" as a little shorter than him and approximately the same weight with the same hair color. Plaintiff testified that, at the time of his arrest, he did not know the identity of the man selling crack-cocaine on the videotape but that a friend later looked at the still photos and identified him as "Catracho" (a nickname, according to plaintiff). While plaintiff testified in 2000 that he used the front door to enter 264 Stewart Avenue, consistent with living upstairs, in 2004 he testified that he accessed his living quarters in the basement through the rear door. Plaintiff also testified in 2000 that both Alejandro Campos and "Abel" accessed 264 Stewart Avenue through the rear door, which is inconsistent with plaintiff's 2004 testimony that he lived with Alejandro Campos in the basement and that "Abel" lived upstairs.
II. Summary Judgment Standard
Summary judgment is appropriate where "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 view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158--59, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970)). In drawing inferences in favor of the nonmoving party, "the court is not entitled to weigh the evidence." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). Nevertheless, "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). The court must deny summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed. 2d 396 (1982). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed. 2d 272 (2001). "Summary judgment on the basis of qualified immunity is appropriate when the only conclusion a rational jury could ...