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Wubayeh v. City of New York

September 18, 2007

DESSIE WUBAYEH, DEGETNU T. SHIMEKACH, FRANCIS EFAGENE, SYLVESTER SUBERRO, VERNON RICHARDS, MELAKU ASAMAW, OWEN GARRISON AND CLETUS AMAGWU, PLAINTIFFS,
v.
THE CITY OF NEW YORK AND REGGIE RIVERA, DEFENDANTS.



The opinion of the court was delivered by: Trager, J

MEMORANDUM AND ORDER

Defendant City of New York ("City") has filed a motion to dismiss the above action for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion to dismiss is granted.*fn1 In addition, although this motion was only brought by the City, this matter will be dismissed as to all defendants, pursuant to a district court's "power to dismiss for failure to prosecute sua sponte." Martens v. Thomann, 273 F.3d 159, 179 (2d Cir. 2001).

Background

Plaintiffs Dessie Wubayeh, Degetnu T. Shimekach, Francis Efagene, Sylvester Suberro, Vernon Richards, Melaku Asmamaw, Owen Garrison and Cletus Amagwu (collectively "plaintiffs") filed the initial sealed complaint in this action on January 28, 1994. Plaintiffs brought this civil rights action under 42 U.S.C. § 1983, alleging that defendant Reggie Rivera ("Rivera"), an officer with the New York City Police Department ("NYPD"), violated their constitutional rights by committing unlawful violent assaults and sexual abuse against them. See Second Verified Amended Complaint, dated April 17, 1995. Plaintiffs are each seeking in excess of $20 million in punitive and compensatory damages from the City and Rivera. Id.

(1)

Initial Investigation and Litigation In 1994, the Queens County District Attorney's Office conducted an extensive investigation into the allegations of sexual assault by Officer Rivera. See Office of the Queens County District Attorney, Investigation Into Allegations of Sexual Assault by Police Officer Reggie Rivera, dated Dec. 15, 1994 ("DA Report"), attached as Exhibit A to Declaration of Seth D. Eichenholtz, dated Sept. 11, 2006. The District Attorney's 146-page report (which was based on "hundreds" of interviews with the parties involved, review of all the available evidence, scrutiny of Officer Rivera's personal and professional history, and analysis by experts in sexual assault) found that there was no credible evidence to support the plaintiffs' allegations. DA Report at 1-7. Based on this investigation, the City declined to file any criminal charges against Officer Rivera.

The District Attorney's report also raised the "specter of fabrication" in the claims of the plaintiffs against Officer Rivera:

[E]ach of the alleged victims has a motive to falsely accuse the officer. Each earns his living illegally, employed in one capacity or another in the illegal livery van industry. The accused officer has played an active and aggressive role in the police crackdown on this illegal industry. He has issued thousands of summonses, seized numerous vans and made dozens of arrests. A number of the alleged victims and their witnesses have been at the receiving end of the accused officer's efforts. One was even arrested by him shortly before the first of the allegations was made. The depth of the alleged victims' anger toward the accused officer was such that a meeting was organized by one of the alleged victims prior to the first reported alleged attack, the sole purpose of which was to drive the officer out of the Rockaways by filing false complaints against him. This detail, standing alone, raises the specter of fabrication in this case.

DA Report at 5-6.

Plaintiffs have submitted a lengthy rebuttal to the District Attorney's report. See Plaintiff's Memo of Law in Opposition to Motion to Dismiss Under Rule 41(b) of the Federal Rule of Civil Procedure, dated Oct. 16, 2006 ("Pl.'s Opp.") at Ex. B. Plaintiffs' rebuttal is unsigned and undated, but it is reportedly the "internal work product of plaintiffs' prior attorneys." Pl.'s Opp. at 1.

As the lengthy docket sheet for this case shows, the parties to this dispute engaged in discovery until October 1998. The parties also engaged in expert discovery and disclosure in preparation for trial. After the conclusion of discovery, Magistrate Judge Roanne L. Mann set a schedule for the parties' respective obligations for a pre-trial order, which was due to be submitted to the court by November 1, 1999. See Scheduling Order of Magistrate Judge Mann, filed August 5, 1999. This pre-trial schedule was interrupted when defendant Rivera filed a petition for Chapter 7 bankruptcy on September 1, 1999, prompting an automatic stay of this suit. Pursuant to an order dated September 17, 1999, this suit was stayed and administratively closed pending the disposition of Officer Rivera's bankruptcy petition.

(2)

Bankruptcy Court Proceedings Defendant Reggie Rivera's Chapter 7 bankruptcy petition was overseen by Judge Dorothy Eisenberg of the Eastern District of New York (Central Islip) Bankruptcy Court. See Docket for Bankruptcy Petition # 8-99-87476-DTE. Plaintiffs participated as creditors in the Rivera bankruptcy with two separate series of actions: an adversary proceeding contesting the discharge of Rivera's ...


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