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King v. City of New York

March 30, 2007

MICHAEL KING, PLAINTIFF,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS.
MICHAEL KING, PETITIONER,
v.
NEW YORK STATE DIVISION OF PAROLE, ROBERT DENNISON, RESPONDENT.



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

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

As the caption reflects, this Memorandum and Order disposes of applications for relief in two related actions prosecuted by Michael King. Docket No. 99 CV 3669 is a pro se civil action pursuant to 42 U.S.C. §§ 1983, 1985(2), 1985(3), and 1986 against the City of New York ("the City"), Sergeant John Asam and Police Officers Michael Morra and Joseph Wilhelm ("the arresting officers"), Assistant District Attorneys Richard Johnson and Barry Pinto, Detectives Alan McPherson and William Campisi, Lieutenant Angelo Carbone, and Police Officer Cheryl Cox.*fn1 On September 15, 2004, I adopted a report and recommendation of United States Magistrate Judge Roanne L. Mann, narrowing King's claims to include only: (1) a claim that the arresting officers used excessive force on King during and subsequent to his arrest on April 22, 1999; (2) a claim that the April 22, 1999 arrest was unconstitutional for want of probable cause; (3) a claim that certain defendants conspired to cover up the alleged misconduct of April 22, 1999; (4) a claim that certain defendants coerced incriminating statements from King the day after the arrest; (5) a claim of malicious prosecution by certain defendants; and (6) a claim against the City alleging enterprise liability. Before me now are the parties' cross-motions for summary judgment in that action.

Docket No. 05 CV 3247 is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which King challenges his conviction of the March 31, 1999 robbery of Jose Rodriguez. Pursuant to his plea of guilty to that robbery, King was sentenced to five years in prison and five years of post-release supervision.

For the reasons set forth below, the City's motion for partial summary judgment in No. 99 CV 3369 is granted, King's cross-motion for summary judgment in that action is denied, and the petition for a writ of habeas corpus in No. 05 CV 3249 is denied.

BACKGROUND*fn2

A. The Arrest

Michael King was arrested on April 22, 1999 on the corner of 29th Avenue and Gilmore Street in Queens County, New York. King's version of the facts leading up to his arrest differs substantially from that of the arresting officers. According to King, he was riding as a passenger in Norberto Carabali's livery vehicle when, "as a result of [Carabali's] own negligence over a dispute with the plaintiff," the vehicle swerved into a parked car on Gilmore Street. Plaintiff[']s [C]ross Motion for a Summary Judgment ("Pl. Br.") 1; see also King Dep. 133-36, Aug. 1, 2001. King then got out of the car and walked up the block to the corner of 29th Avenue. Pl. Br. 1; see also King Dep. 137, Aug. 1, 2001.King provides a copy of a 911 report, which he claims indicates that, at the "p[re]cise time" he approached the corner, a 911 caller reported a "disturbance" by a large group of individuals at a house on the corner. Pl. Br. 1; see also id. at 3 (claiming that the 911 call came at "2241 hrs," "seconds before plaintiff[']s arrest"); id. Ex. F (911 report). The report does not mention the race or other descriptions of the perpetrators of the disturbance. Id. at 1.

Asam, Morra and Wilhelm responded to the disturbance in an unmarked police vehicle. Id. According to King, they saw that he was the only person on the street and "automatically assumed [he] was the person making a disturbance . . . [s]olely because of his race." Id. at 3; see also King Dep. 138-39, Aug. 1, 2001. Only after King was ordered to lie down at gunpoint, handcuffed, kicked, and maced with an entire can of pepper spray did the arresting officers "discover[]" that King was likely not a perpetrator of the disturbance they had responded to. Pl. Br. 1. However, the officers subsequently noticed the livery-vehicle collision a half-block away, retrieved Carabali from the vehicle, and procured an identification of King from Carabali. See id.

The arresting officers assert a different version of the April 22, 2001 events. Morra, Asam, and Wilhelm claim they were assigned to patrol and investigate an unsolved pattern of Queens livery-vehicle robberies involving the use of knives, guns, and other physical force. See Morra Aff. ¶ 3; Wilhelm Aff. ¶ 3. Morra claims that at 2241 hours his unmarked police vehicle, which he was driving with Asam and Wilhelm as passengers, was stopped at a stop sign at the intersection of 29th Avenue and Gilmore Street. Morra Aff. ¶¶ 4-5; Wilhelm Aff. ¶¶ 4-5. Morra heard a crashing sound and a car alarm on Gilmore Street; looking in the direction of the crash, Morra saw a livery vehicle crashed into a parked car. Morra Aff. ¶¶ 5-6. Morra drove the police car over to the crashed livery vehicle, and claims to have seen King leaning over the front seat and striking the livery driver "repeatedly about the head and facial area" with a knife. Id. ¶ 7; see also Wilhelm Aff. ¶ 6; Asam Aff. ¶ 6.*fn3

The arresting officers got out of their car, drew their firearms, and approached the livery vehicle, at which point Morra opened the rear driver's side door. See Morra Aff. ¶¶ 8-11; see also Wilhelm Aff. ¶¶ 7-10. Wilhelm claims King did not comply with repeated orders to drop the knife. See Wilhelm Aff. ¶¶ 11-14; see also Morra Aff. ¶¶ 12-15. Morra claims King complied with his second order to drop the knife. See Morra Aff. ¶¶ 12-15. Morra pulled King out of the livery vehicle by his shirt; King said to him, "I'm the victim; I'm the victim." Id. ¶ 16. Wilhelm claims King "lunge[d] towards Morra." Wilhelm Aff. ¶ 13; see also Morra Aff. ¶ 17 ("I observed Michael King attempt to punch me with a closed fist while exiting the vehicle . . . ."). The officers restrained King with handcuffs and pepper spray. See Morra Aff. ¶¶ 17-22. The livery driver, later identified as Carabali, told Morra that King had demanded money from him, punched him in the head, and threatened him with a knife. See id. ¶ 24. When King had begun to stab him, Carabali reported, he had lost control of the car and crashed. See id.

B. The Arresting Officers' Use of Force During and After the Arrest

According to King, the arresting officers "kicked" and "stomped" him as he lay handcuffed on the ground after his arrest, uttering racial slurs as they did so. Pl. Br. 1.; see also King Dep. 199-200, Aug. 2, 2001 ("[T]hey started stomping me out, calling me you stupid nigger and stupid stuff."). The officers also "emptied a can of mace into his eye[]s that required medical attention." Pl. Br. 1; see also King Dep. 199, Aug. 2, 2001 ("[T]hey sprayed me with mace and I turned my head this way and they sprayed me with mace, then I turned my head this way, and then they started spraying me again."). King claims that he posed no threat to the police and did not try to resist, complying peacefully with the officers' command to "get on the ground." King Dep. 199, Aug. 2, 2001.

After the arrest, the officers took King to the 115th Precinct, where, King claims, one officer threw him "headfirst into a holding cell and banged his head against the floor." Pl. Br. 9; see also King Dep. 219, Aug. 2, 2001 ("I was thrown into the cell"). The officers maced him again. See Pl. Br. 9; King Dep. 221, Aug. 2, 2001 ("I was pushed into the cell . . . head first . . . . Moments later I was pulled out, thrown into a chair, I fell out of the chair, I was maced again, thrown on the floor, my head was banged . . . ."). The assault caused King first- and second-degree burns to the eyes, tenderness to the head, and psychological impairments. Pl. Br. 9.

For their part, the arresting officers claim that King violently resisted the seizure. Asam claims that though King complied with an instruction by the arresting officers to drop his knife, King punched, kicked, and attempted to bite Asam. Asam Aff. ¶ 19. Morra claims King swung a punch at him. Mora Aff. ¶ 17. Morra assisted Asam in "restraining" King by attempting to grab him and take him down. Id. ¶ 18. King "violently struggled" when the officers attempted to handcuff him. Asam Aff. ¶ 20. Because King continued to resist with violence when he was on the ground, Morra says he employed "two approximately one-second bursts of pepper spray" to subdue King. Morra Aff.¶ 21; see also Asam Aff. ¶ 23. The officers eventually "restrained" King. Asam Aff. ¶ 24.*fn4

The arresting officers also dispute King's allegations of abuse at the 115th Precinct. Morra claims he "placed" King in a cell while he was still handcuffed. Morra Aff. ¶ 26. He then "observed Michael King run, head first, into the wall of the holding cell. [He] grabbed the keys to try to open the cell, and saw Michael King once against smash his head into the wall of the cell. By the time [Morra] was able to open the cell, [King] had hit his head against the wall at least one more time." Id. ¶ 27. After Morra removed King from the cell, King "[threw] his body to the ground" in the processing area and "sh[ook] his body and repeatedly smash[ed] his head into the ground." Id. ¶ 28.

C. The Line-Up Identifications

The same day, five livery drivers identified King in line-ups as the perpetrator of earlier livery-vehicle robberies. See Bruzzese Decl. Ex. M, O, R (Line-up Reports of complainants Jose Rodriguez, Reuben Gonzalez, Jose Pesantez); see also id. Ex. T (Supplemental Arrest Report reflecting "ID in line-up" by Maximo Mendez); id. Ex Q (Supplemental Arrest Report reflecting identification by Ruben Diaz). In particular, Jose Rodriguez identified King as the individual who "robbed [him] once." Id. Ex. M.

D. The Confessions and the Hospital Visit

The day after his arrest, King was interrogated three times. At 6:10 a.m. and 5:00 p.m., King signed written versions of his Miranda warnings. See Bruzzese Decl. Ex. cc, dd. King also produced two signed, handwritten statements, the first of which admitted to carjacking a livery vehicle on April 2, 1999 with a box-cutter, the second of which admitted to an array of robberies of other livery vehicles, including the carjacking at knifepoint of a red Lincoln. King admitted that he called the driver of that vehicle, using the driver's cell phone, to tell him the location of the vehicle after he abandoned it. See id. Ex. ee, ff. The first written statement corresponded to a complaint by Mohammed Choudry that he was robbed at knifepoint and carjacked by a white or Hispanic passenger he picked up at 21st Street between 37th and 38th Avenues in Queens County, New York. See id. Ex. G. The second written statement corresponded in relevant part to a complaint by Jose Rodriguez that his red Lincoln livery vehicle had been carjacked by a "male black," who had also robbed him of a gold chain from around his neck, and who had later answered Rodriguez's cell phone and informed Rodriguez where he could find the abandoned vehicle. See id. Ex. D (Unusual Occurrence Report, Mar. 31 1999), Ex. E (Complaint Report of Jose Rodriguez, Mar. 31, 1999). The Rodriguez complaint stated that the perpetrator of the carjacking wore a baseball hat. See id. Ex. E.

In addition, at 6:56 p.m. defendants Campisi, McPherson and Pinto elicited a videotaped confession from King, in which King stated that he was read his Miranda rights and understood them, stated that he voluntarily provided the two handwritten statements to the police, and provided additional detailed accounts of several livery robberies. See id. Ex. gg.

Also on April 23, 1999, King was treated at Elmhurst Hospital for exposure to mace. See King Dep. 238-39, Aug. 2, 2001. He was examined by a psychiatrist as well. Id. at 252. The psychiatrist recommended to King's arraignment judge that he undergo further psychiatric care in an out-patient setting. See Bruzzese Decl. Ex. ss (medical records).

E. King's Allegations About Defendants Carbone and Cox

King claims, and defendants acknowledge, that Carbone wrote a memorandum to his supervisor, the chief of patrol, about King's arrest. See Defendant Carbone's Responses and Objections to Plaintiff's Interrogatories and Requests to Admit ("Carbone's Responses") ¶¶ 2, 4. King claims that this memorandum does not mention the 911 report of the disturbance, and altered the time reflecting King's arrest from 2241 hours to 2247 hours. See Pl. Br. 9-10. Carbone agrees that he represented in the memorandum that "plaintiff quickly exited the vehicle with knife in hand and was disarmed after a violent struggle," and claims that Asam supplied that information. Carbone's Responses ¶ 4.

King also alleges that Cox misrepresented to the press that King stabbed Carabali and made "personal remarks" about King's "fetish" for Lincoln Town Cars. Pl. Br. 10.

F. The Charges and Indictments

Carabali signed an accusatory instrument against King the day after the arrest, attesting, among other things, that King entered his car and demanded his money, threatened to kill him, punched him, and stabbed him in the head with a knife. See Compl. 2, People v. King, No. 99Q0019749 (N.Y. Crim. Ct. Apr. 23, 1999). The complaint also stated that Carabali suffered "bleeding and substantial pain" as a result of King's assault, requiring six stitches to treat a head wound. Id. King was also charged with the robberies of complainants Rodriguez, Gonzalez, Choudry, Diaz, Pesantez, and Mendez. See Bruzzese Decl. Ex. W, X, Y, Z, aa, bb. Ultimately, however, all the cases against King except those pertaining to Rodriguez and Diaz were dismissed on speedy trial grounds pursuant to N.Y. Crim. Proc. § 30.30. See id. Ex. zz, aaa, bbb, ccc.

Johnson presented the cases pertaining to Rodriguez and Diaz to the grand jury. Johnson Aff. ¶¶ 14, 18. The grand jury heard, among other evidence, testimony by King and the two livery drivers, as well as King's videotaped confession, after which the grand jury returned a true bill. See Bruzzese Decl. Ex. ii (Grand Jury Indictment 1719/99). The New York State Supreme Court, Queens County dismissed the indictment, however, ruling that the testimony of the livery drivers was "sufficient evidence to indict," but that the presentation to the grand jury of "some portion" of the videotape, in which King confessed to a "long series of robberies of livery cabs . . . not specifically . . . the incidents charged," was "highly prejudicial." People v. King, Ind. No. 1719/99, at 1-2 (N.Y. Sup. Ct. Nov. 5, 1999) (Kron, J.). Johnson's next presentation of the Rodriguez charge, which also secured an indictment, was dismissed on the prosecution's consent because King was not afforded an opportunity to testify. See Bruzzese Decl. Ex. ll. Johnson presented the Rodriguez and Diaz charges a third time, and King was indicted yet again. See id. Ex. mm.

G. The Commencement of the Civil Action, King's Guilty Plea, and Subsequent Proceedings

Before the indictments, on June 28, 1999, King commenced a civil action pursuant to 42 U.S.C. §§ 1983, 1985(2), 1985(3), and 1986. A flurry of motions and amendments winnowed the claims and defendants to those mentioned above.

On March 5, 2002, King withdrew his plea of not guilty and entered a plea of guilty to the March 31, 1999 robbery of Jose Rodriguez. See Bruzzese Decl. Ex. NN at 3, 12 (transcript of plea proceedings). King waived his right to a suppression hearing and his right to trial by jury, and pled guilty to robbery in the second degree, in violation of N.Y. Penal Law ยง 160.10(3), admitting that on March 31, 1999 he had robbed Rodriguez of his livery vehicle and other property at knifepoint in Queens County, New York. Id. at 6-9. King also waived his right to appeal. Id. at 12. In exchange, the prosecution waived charging King for various failures to appear in court, and agreed to a determinate sentence of five years of incarceration and five years of supervision. Id. at 3-4. King testified at the plea proceeding that he understood the nature of the ...


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