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Richards v. City of New York

March 30, 2007

RICARDO RICHARDS, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET. AL., DEFENDANT.



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

MEMORANDUM and ORDER

Plaintiff Ricardo Richards ("Richards" or "Plaintiff") commenced this suit, asserting 11 causes of action against 27 defendants, including the City of New York, New York City Police Department ("NYPD"), Raymond W. Kelly, Neldra M. Zeigler, Charles V. Campisi, George D. O'Brien, Julio C. Ordonez, Jr., Scott Woltering, James Wunderlich, John MacGuire, Michael Morley, Michael McVeigh, Andrew Celenti, Todd Fecht, Edward Wilson, John Webber, Nicholas Masi, John Vaccaro, William T. Morris, Michael Tarpey, Daniel Engel, Thomas V. Dale, Wes Sosna, Charles V. Talamo, "Fowler," Carlo Barelli, and Martin Merensky, all of whom, at the relevant times described in the Complaint, were employees of the NYPD. Plaintiff subsequently amended his Complaint to add new claims and two additional defendants, Richard Dee and Michael Fogarty, bringing the total number of defendants to 29, and then filed a Second Amended Complaint on August 25, 2005.*fn1 The essence of Plaintiff's Second Amended Complaint is that Plaintiff was subjected to discrimination and retaliation in violation of Title VII, that defendants violated his constitutional right to equal protection and that the defendants allegedly violated the New York State Human Rights Law and New York City Human Rights Law.

The City of New York, NYPD, Raymond W. Kelly, Neldra M. Zeigler, Charles V. Campisi, George D. O'Brien, Michael Morley, Andrew Celenti, Todd Fecht, John Webber, Nicholas Masi, William T. Morris, Michael Tarpey, Daniel Engel, Thomas V. Dale, Wes Sosna, Charles V. Talamo, "Fowler," Carlo Barelli, Martin Merensky, Richard Dee and Michael Fogarty (the "City Defendants")*fn2 now, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, move to dismiss, in part, the Second Amended Complaint because it fails to state a cause of action as to certain events and certain defendants.

BACKGROUND

Plaintiff, an African-American male, has been employed by the NYPD as a police officer, since on or about July 1, 1998. The Seconded Amended Complaint sets forth a litany of alleged acts that have occurred since April 2000. The following facts are taken from Plaintiff's Second Amended Complaint ("Compl.").*fn3

A. The April 2000 Incident

On or about April 3, 2000, Plaintiff, a member of the 104th Precinct, was assigned to respond to a 911 call by the division radio dispatcher, to investigate an automobile accident.

(Compl. at ¶ 16.) When Plaintiff arrived at the scene, he and his partner, Officer Potter, found an individual who was in an accident because she was allegedly driving while intoxicated and learned that the individual was an off-duty police officer. (Compl. at ¶¶ 17-19.) The driver, a white female, was later identified as an officer named Cheryl Gaffney of the 83rd Precinct. (Compl. at ¶ 19.) Plaintiff believes that Officer Potter did not want to call the patrol supervisor because he was trying to cover for Officer Gaffney. (Id.) Plaintiff contacted the patrol supervisor who, after arriving at the location of the accident, determined that Officer Gaffney was unfit for duty and ordered her arrest. (Compl. at ¶¶ 20, 21.)

According to Plaintiff, his involvement with the arrest of Ms. Gaffney upset her colleagues in the 83rd precinct. (Compl. at ¶ 22.) Three of her colleagues, defendants Scott Woltering, James Wunderlich, and John Macguire, drove to the 104th Precinct and threatened Plaintiff in the locker room, saying to him "What's the matter with you? You better watch your back because you're not going to get any backup in the 83. Be careful, you may catch a bullet." (Compl. at ¶ 23, 24.) After Plaintiff informed Sergeant Galan of the alleged harassment, Woltering, Wunderlich and Macguire were subsequently suspended. (Compl. at ¶ 24.) Defendant James Vaccaro, a Patrolman's Benevolent Association delegate, handled all of the suspensions. (Compl. at ¶ 25.)

Over the next few months, Plaintiff endured an "indifferent, hostile, and dangerous work environment." (Compl. at ¶ 26.) His locker was moved, shaken and disrupted, and his hat, rain coat and baton stolen, and no one wanted to speak to or work with him. (Id.) Plaintiff claims that middle and lower management of the NYPD was aware of Plaintiff's dilemma but did nothing to support or protect him. (Id.) Plaintiff was eventually transferred to the 113th Precinct, where he was subjected to the same hostile and indifferent work environment, and called "a rat." (Compl. at ¶¶ 27, 30.) He was given dangerous assignments and he was having trouble sleeping. (Compl. ¶¶ 31, 32.)

B. The 2001 Arrest

On or about August 17, 2001, Plaintiff was arrested by defendants Edward Wilson, John Webber and Nicholas Masi, of the 103rd Precinct's Anti-Crime Unit, for allegedly soliciting a prostitute. (Compl. at ¶ 36.) During this incident, Plaintiff's nose was fractured when Wilson punched Plaintiff in his face, placed him in an illegal choke hold, and slammed Plaintiff's body onto the hood of an unmarked radio patrol vehicle. (Compl. at ¶ 37.) When Plaintiff arrived at the arresting precinct, defendant Andrew Celenti did not allow Plaintiff to go to the hospital for his alleged injuries. (Compl. at ¶ 40.) According to Plaintiff, defendant Todd Fecht was "aware" of defendants Wilson, Webber and Masi's misconduct, but "took no action." (Compl. at ¶ 42.)

An investigation into the incident followed, and during the initial investigation, defendants Wilson, Webber and Masi were represented by defendant Vaccaro, of the Benevolent Association. (Compl. at ¶ 43.) Defendants Morris, Morley and McVeigh were "present" during the investigation into the incident and Plaintiff complains that they did nothing to redress the misconduct of defendants Wilson, Webber, or Masi. (Compl. at ¶ 44.) Further, defendant Dale was "aware of this investigation" but did nothing to redress the misconduct of the three defendants. (Compl. at ¶ 45.)

Plaintiff was suspended from duty and charged with misconduct for allegedly soliciting the prostitute. (Compl. at ¶¶ 52, 55.) The charges were eventually dismissed when the NYPD Commissioner adopted the findings and recommendations of NYPD Assistant Deputy Commissioner of Trials that Plaintiff be found not guilty of the alleged misconduct. (Compl. at ¶¶ 59-61.)

Following Plaintiff's arrest, he was sent for a psychological evaluation. (Compl. at ¶ 46.) Plaintiff claims that defendant Michael Tarpey forcibly escorted him to Long Island Jewish Hospital for the evaluation after he reacted negatively to the Police Department psychologist. (Id.) After being found psychologically fit, Plaintiff was allowed to return home. (Id.) Following the end of his suspension, Plaintiff was subjected to quarterly psychological evaluations by NYPD. (Compl. at ¶ 55.)

On or about August 21, after Plaintiff filed a complaint with the Civilian Complaint Review Board ("CCRB") concerning the incident, his police radio was removed later in the day. (Compl. at ¶ 47.) The radio was returned to him after his prior counsel contacted Charles V. Campisi, the Chief of the NYPD Internal Affairs Bureau ("IAB"). (Compl. at ¶ 48.) His arrest was later investigated by IAB, and George O'Brien and Julio Ordonez, who supervised Plaintiff's investigation, "closed it without re-dressing the defendants's misconduct and retaliation." (Compl. at ¶ 51).

C. Performance Evaluation at Viper 6

Plaintiff was served with disciplinary charges related to his arrest on or about August 24, 2001. (Compl. at ¶ 52.) He was then transferred to the Viper 6 unit where he remained until March 17, 2004. (Compl. at ¶¶ 62, 63.) While at Viper 6, Plaintiff claims he had "no problems" with his peers or supervisors. (Compl. at ¶ 57.) Plaintiff alleges, however, that he was harassed ...


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