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Perez v. City of New York

December 29, 2006

MANUEL PEREZ, PLAINTIFF,
v.
CITY OF NEW YORK, SERGEANT PHILIP MAHONEY, DETECTIVES LEROY JACOBSON AND ALAN MACPHERSON AND UNIDENTIFIED NEW YORK CITY POLICE OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

Plaintiff, Manuel Perez, brings this action pursuant to 42 U.S.C. § 1983 and other federal and state laws, alleging that defendants violated his Constitutional rights in various respects. Defendants City of New York and Alan Macpherson*fn1 (together, the "Defendants") now move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth above, Defendants' motion is granted in part and denied in part.

BACKGROUND

With the few exceptions noted below, the facts in this case are not in dispute. On September 25, 1994, around 1:00 a.m., plaintiff was a passenger in a cab which was stopped by police officers near 34th Avenue and 103rd Street in Queens, New York. Defendants' Statement pursuant to Rule 56.1 ("Defendants' 56.1 Statement") at ¶ 1; Plaintiff's Statement pursuant to Rule 56.1(b) ("Plaintiff's 56.1 Statement") at ¶ 1. The police asked the driver for his papers, then asked both the driver and plaintiff to exit the cab. Defendants' 56.1 Statement at ¶¶ 2-3; Plaintiff's 56.1 Statement at ¶¶ 2-3. As the two men waited outside the vehicle, the police searched, and recovered a gun from an area near the cab. Defendants' 56.1 Statement at ¶¶ 3-4; Plaintiff's 56.1 Statement at ¶¶ 3-4. Both men were arrested. Defendants' 56.1 Statement at ¶ 5; Plaintiff's 56.1 Statement at ¶ 5.

Plaintiff admits that, at some point during this encounter with the police, he provided the police with a fictitious name, "Luis Rodriguez." Defendants'

56.1 Statement at ¶ 6; Plaintiff's

56.1 Statement at ¶ 6. Plaintiff also contends that a detective -- variously identified as either defendant Jacobson or a "Detective Jacobs"*fn2 -- and other, unidentified police officers assaulted him, causing injury to his chin. Complaint at ¶ 19; Defendants' 56.1 Statement at ¶ 7; Plaintiff's

56.1 Statement at ¶ 7. In his complaint, plaintiff alleges that he also suffered an asthma attack following this assault, but that Detective Jacobson threatened to beat him if he insisted on going to the hospital. Complaint at ¶ 19. However, in Plaintiff's 56.1 Statement, he admits that he received medical attention at the precinct. Plaintiff's 56.1 Statement at ¶ 8.

According to plaintiff, defendant Jacobson questioned plaintiff at the precinct without first reading him Miranda warnings or securing a waiver of plaintiff's rights. Complaint at ¶ 19. Plaintiff further alleges that, although he told Jacobson that the gun was not his, Jacobson falsely represented that plaintiff had admitted finding the gun. Id.

Plaintiff was indicted in the Supreme Court of the State of New York, Queens County, for criminal possession of a weapon in the second degree. Defendants' 56.1 Statement at ¶ 9; Plaintiff's 56.1 Statement at ¶ 9. Plaintiff subsequently moved to dismiss this indictment -- m 4701/94 -- and on June 19, 1995, Supreme Court Justice Evelyn Braun granted the motion. Defendants' 56.1 Statement at ¶ 10; Plaintiff's 56.1 Statement at ¶ 10. Plaintiff was immediately released from custody and remained at liberty until January 28, 1996. Defendants' 56.1 Statement at ¶¶ 10, 12; Plaintiff's 56.1 Statement at ¶¶ 10, 12.

While the parties agree that the prosecution successfully appealed Justice Braun's order dismissing the indictment, Defendants' 56.1 Statement at ¶ 11; Plaintiff's 56.1 Statement at ¶ 11, the parties disagree about the date on which the indictment was reinstated and whether this reinstatement played any part in plaintiff's January 28, 1996, arrest. Defendants assert that plaintiff was arrested on charges stemming from two unrelated matters, Defendants' 56.1 Statement at ¶ 12, and cite to a portion of plaintiff's pro se Supplemental Brief in which he stated that Indictment m 4701/94 was not reinstated until January 21, 1997. See Exhibit C to the Declaration of Concepcion A. Montoya, dated April 15, 2005 ("Montoya Declaration") at ¶ 5. Plaintiff agrees that his January 28, 1996, arrest stemmed from the unrelated matters, but maintains that his arrest also related to Indictment m 4701/94. Plaintiff's 56.1 Statement at ¶ 12.

At some point during the pendency of the indictment, the state court conducted a hearing upon plaintiff's motion to suppress the gun as the fruit of an unlawful stop. Plaintiff asserts that Jacobson falsely testified at a suppression hearing, misrepresenting the "circumstances of the stop and arrest." Complaint at ¶ 21. Suppression was denied and on September 9, 1998, plaintiff was convicted of criminal possession of a weapon in the third degree. Id. at ¶ 21. Plaintiff was subsequently sentenced to a prison term of three and one-half to seven years. Id.

On March 19, 2001, the Appellate Division, Second Department, reversed this judgment of conviction, holding that the trial court had erred in denying plaintiff's motion to suppress. See People v. Rodriguez, 281 A.D.2d 565, 727 N.Y.S.2d 313 (N.Y. App. Div. 2d Dep't 2001). The Appellate Division found that the police lacked a "reasonable suspicion that [the] occupants [of the cab] had been engaged in, were presently engaged in, or were about to engage in criminal activity." Id., 281 A.D.2d at 565-66, 727 N.Y.S.2d at 313. The Court therefore held that the gun, which was seized as a result of the stop, and the plaintiff's statements, which were made after the stop, should have been suppressed as fruits of the unlawful stop. Id., 281 A.D.2d at 566, 727 N.Y.S.2d at 313.

Plaintiff was released from custody shortly after this decision. The exact date on which plaintiff was released is unclear; the Complaint alleges that plaintiff was released on March 19, 2001, Complaint at ¶ 23, but the parties agree in their Rule 56.1 statements that plaintiff was not released until June 2001. Defendants' 56.1 Statement at ¶ 14; Plaintiff's 56.1 Statement at ¶ 14. On May 23, 2001, Justice Steven Fisher of the Supreme Court, Queens County, dismissed Indictment m 4701/94. See Certificate of Disposition (Ex. E to the Montoya Declaration). The prosecution appealed the Appellate Division's decision, but without success. See People v. William II, 98 N.Y.2d 93, 745 N.Y.S.2d 792 (2002).

The Complaint

In August 2001, plaintiff -- represented by one Thomas Sheehan, Esq. -- commenced this action against the City of New York and police officers allegedly involved in the September 25, 1994, stop: Sergeant Philip Mahoney, Detectives Leroy Jacobson and Alan Macpherson, and other, "unidentified New York City police officers." The complaint alleges that Mahoney, Jacobson and Macpherson were the officers who stopped the cab, and that plaintiff's arrest "was based on the false statements of Jacobson that he saw the plaintiff drop the gun out the window after the stop and . . . that plaintiff made a statement that he had found the gun." Complaint at ¶ 19. The complaint also alleges that "Macpherson lied and said he heard something fall to the ground," id., but does not specifically allege when Macpherson made this statement or that it served as part of the basis for the arrest.

The complaint alleges that "Jacobson physically and unlawfully assaulted plaintiff by throwing plaintiff to the ground," thereby causing plaintiff's injuries. Id. The complaint does not allege that either Macpherson or Mahoney participated in the assault, but rather that they failed to intervene. Id. The complaint also alleges that Jacobson -- not Macpherson or Mahoney -- "violated plaintiff's right to remain silent and to counsel by interrogating plaintiff without Miranda warnings or waiver of rights," and that it was Jacobson who falsely claimed that plaintiff had admitted possessing the gun. Id.

Although the complaint states that the action is brought pursuant to 42 U.S.C. § 1983, only the first of the complaint's seven causes of action expressly alleges a violation of that statute. This first cause of action alleges that defendants violated (1) plaintiff's rights under the Fourth Amendment to due process and to be free from unreasonable searches and seizures and the unreasonable use of force; (2) plaintiff's rights under the Fifth Amendment to remain silent and to be represented by counsel; and (3) plaintiff's rights under the Fourteenth Amendment to equal protection and to be informed of the accusations against him. In addition, plaintiff alleges that the individual defendants conspired to falsely arrest and maliciously prosecute him.

Although the remaining causes of action do not specifically mention § 1983, the fifth and sixth causes of action appear to raise § 1983 claims against defendants who were not directly responsible for the deprivations of plaintiff's rights. Plaintiff's fifth cause of action alleges that unspecified "individual defendants failed in their affirmative duty to protect the constitutional right of Plaintiff from infringement by other law enforcement officers in their presence." Complaint at ¶ 50. The sixth cause of action alleges that the City of New York and the Unidentified Police Officers, "who were supervisors as a matter of policy and practice," were deliberately indifferent to the violation of plaintiff's constitutional rights and failed to discipline or train police officers, including the named defendants. Id. at ¶ 54-55. This cause of action specifically alleges that the City has a "policy and custom" of inadequately and improperly investigating civilian complaints of police misconduct, and a "policy" of giving "police officers suspected of criminally assaulting a civilian forty eight hours to delay in answering any questions." Id. at ¶¶ 61, 64.

The seventh cause of action raises claims pursuant to 42 U.S.C. § 1985 (2) and (3) and § 1986, alleging that the "individual defendant police officers" conspired with one another to deprive plaintiff of his constitutional rights, including the right to be free from false arrest and false imprisonment. Plaintiff specifically alleges that he is "a male of Hispanic ethnic origin," and that "defendants' conduct was motivated by racial animus." Id. at ¶ 72.

The remaining three causes of action raise various state-law claims. The second cause of action alleges that defendants "violated plaintiff's rights under New York law" in that "defendants assaulted Plaintiff; used force to arrest Plaintiff; falsely arrested, assaulted, imprisoned, detained Plaintiff; maliciously prosecuted Plaintiff; forced the Plaintiff to appear in criminal court; libeled and slandered Plaintiff; abused process against the Plaintiff; intentionally inflicted emotional distress upon the Plaintiff; invaded plaintiff's privacy; conspired against the Plaintiff; denied plaintiff his liberty under the laws and Constitution of the State of New York; trespassed against Plaintiff; and otherwise violated plaintiff's rights under New York law." Id. at ¶ 36. The third cause of action asserts that the City of New York was negligent and/or reckless both in hiring and retaining the individual defendants, and in the training and supervision of these defendants. Id. at ¶ 40. Finally, the fourth cause of action essentially alleges negligence on the part of all defendants. Id. at ¶ 45.

It is unclear whether Mr. Sheehan served all of the named defendants with this complaint. The docket sheet indicates that only two returns of service have been filed. The first return indicates that on August 14, 2001, plaintiff caused a summons and the complaint to be served upon the City of New York and the New York City Police Department (which is not a party to this action). The second return indicates that on August 20, 2001, plaintiff caused a summons and complaint to be served upon Macpherson at the 115th Precinct in Queens. However, nothing on the docket sheet or in the Court's file indicates that any of the other defendants have been served, and only the City of New York and Macpherson have answered the complaint.

The Instant Motion

In June 2005, the City of New York and Macpherson moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. These two defendants advance seven arguments, which are discussed in detail below.

On August 15, 2005, before filing a response to Defendants' motion, Mr. Sheehan was suspended from the practice of law. See In Matter of Sheehan, 28 A.D.3d 96, 97, 808 N.Y.S.2d 556, 556 (N.Y. App. Div. 2d Dep't 2006). Plaintiff never moved for an extension of time to respond to Defendants' motion and on August 25, 2005, this Court dismissed the instant action for failure to prosecute. Although the action was reinstated upon plaintiff's pro se motion, Mr. Sheehan was disbarred on February 14, 2006, without ever filing responsive papers. See id., 28 A.D.3d at 98, 808 N.Y.S.2d at 557.

In March 2006, plaintiff moved to have counsel assigned to represent him. By order dated April 28, 2006, Magistrate Judge Go denied that motion, without prejudice to a further application following resolution of Defendants' motion for summary judgment. Plaintiff, with the capable assistance of a prison law clerk, has now filed his responsive papers. These papers largely respond to Defendants' arguments, but also request that this Court re-open discovery and stay Defendants' motion until plaintiff has had the opportunity "to conduct discovery on the defendants." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Memo") at 26.

DISCUSSION

The Summary Judgment ...


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