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Carrow v. City of New York

March 17, 2010

JONATHAN CARROW, PLAINTIFF,
v.
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, GIANPAOL DILISIO, WILFRED CAMACHO, EDWARD MARTINEZ AND POLICE OFFICERS "JOHN DOE" 1-3, DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Plaintiff Jonathan Carrow ("Plaintiff") brings this action against the City of New York, the New York City Police Department, New York City Police Department Detective Wifredo Camacho ("Detective Camacho"), and New York City Police Department Officers Gianpaol Dilisio ("Officer Dilisio"), Edward Martinez ("Officer Martinez"), and John Andryuk ("Officer Andryuk"), asserting claims pursuant to 42 U.S.C. § 1983 for use of excessive force, false arrest, false imprisonment, unreasonable stop and frisk, malicious prosecution, verbal abuse and harassment, and suggestive identification. Plaintiff also asserts claims against the City of New York for its allegedly negligent training of its police officers and for allegedly encouraging the use of unreasonable and excessive force applied through race-based arrest quotas. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

Plaintiff also asserts the following claims under New York state law: false arrest; unlawful stop, search, and seizure; unlawful imprisonment; malicious prosecution; assault and battery; negligence; intentional infliction of emotional distress; and negligent infliction of emotional distress. The Court has supplemental jurisdiction of Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Defendants City of New York, Detective Camacho, Officer Dilisio, Officer Martinez, and Officer Andryuk (collectively, "Defendants") have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of all the claims asserted against them. The Court has reviewed thoroughly and considered carefully all of the parties' submissions. For the following reasons, Defendants' motion is granted in its entirety.

Plaintiff has neither identified nor served with process the three "John Doe" defendants. Accordingly, Plaintiff's claims against the "John Doe" defendants are dismissed without prejudice pursuant to Rule 4 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 4(m). Plaintiff's claims against the New York City Police Department are also dismissed, without prejudice to the claims asserted against the City of New York in this action, because the New York City Police Department, as a New York City agency, cannot be sued independently. See New York City Charter, Chapter 17 § 396 (2008) (providing that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law"); McAllister v. New York City Police Dep't, No. 97 Civ. 7420, 1998 U.S. Dist. LEXIS 8847, at *1 (S.D.N.Y. June 12, 1998).

BACKGROUND

The following facts are undisputed unless otherwise noted.*fn1 On December 14, 2004, at approximately 9:40 p.m., two armed African-American males entered a bodega located at 750 Lydig Avenue, Bronx County, New York, and robbed it at gunpoint. (Ziauddin Dep. 52.) The store's clerk, Mohammed Ziauddin, was working alone at the time. (Id.) Upon entering the store, the taller of the two men jumped over the counter and assaulted Ziauddin, hitting him in the face multiple times. (Id. at 55--57.) The taller man then emptied the register and a nearby box of large bills. In all, the robbers stole approximately $2,000 in cash. (Id. at 56.) Ziauddin was injured but did not seek medical treatment. Ziauddin reported the robbery to the police and helped the responding officer search the surrounding area for possible suspects, but no arrests were made. (Id. at 55--57.)

The bodega was robbed a second time on January 18, 2005. Ziauddin and a co-worker were working when, at approximately 8:30 or 8:45 p.m., two men entered the store. (Pl.'s 56.1 Stmt. ¶ 2). Ziauddin identified the men as the same two who had robbed the store the month before. (Ziauddin Dep. 54--55.) Both men were African-American and were wearing ski masks that left visible the eyes, nose, chin, jaws and forehead. (Id. at 21--22; Pl.'s Ex.10 ("Police Radio Report").) Ziauddin did not resist the second robbery and was not injured. (See generally, Ziauddin Dep.) The robbers stole approximately $2,200 - $2,400 in cash, lottery tickets, and two cartons of cigarettes. (Id. at 25--26.) When the robbers left the store, Ziauddin pursued them at a safe distance down the street. He witnessed the two men flee into a nearby courtyard, remove their ski masks, and enter an adjacent apartment building. (Id. at 27--28.) While Ziauddin was pursuing the robbers, his co-worker called the police, providing a description of the suspects that was broadcast over the police radio. (Id. at 28--29.) A number of police officers, including defendant Officers Dilisio, Martinez, and Andryuk, responded to the call and arrived at the store within several minutes of the robbery. (Def.'s 56.1 Stmt. ¶ 10.)

When Ziauddin returned to the store, he provided the police with additional information about the robbery and the perpetrators. (Id. at ¶ 13; Pl.'s 56.1 Stmt. ¶ 14.) Ziauddin reported that the two robbers were quite different in appearance from each other: the first was "very big and fat" and was shorter than five and a half feet tall; the second was in his twenties and about six feet tall, and was wearing a black hooded North Face brand jacket and "blue colored or something" jeans. The shorter, heavier man held two pistols while the taller man again jumped over the counter and emptied the registers and the box of larger bills. (Ziauddin Dep. 24.) Between the radio broadcast and Ziauddin's additional description, the officers possessed information indicating that one of the robbers was an armed, "tall," Black male in his twenties, with a narrow nose, dressed in a hooded black North Face brand jacket, "blue jeans," and a ski mask. Ziauddin also identified for the officers the building into which he had seen the suspects flee just minutes earlier. (Police Radio Dispatch; Ziauddin Dep. 30--31.) Based on this information, the police canvassed the nearby area, encountering Plaintiff at approximately 9:25 p.m. (Pl.'s 56.1 Stmt. ¶ 31.) Plaintiff was standing in the courtyard outside of the apartment building identified by Ziauddin. (Id. at ¶ 31; Pl.'s Dep. 149--50.) Plaintiff, a 6'1" African-American male, was wearing black jeans and a black North Face brand jacket. (Pl.'s 56.1 Stmt. ¶¶ 24, 40.)

Suspecting that Plaintiff was the perpetrator, the officers approached him with their guns drawn. (Def.'s 56.1 Stmt. ¶ 25; Pl.'s Dep. 108, 135.) The officers stopped Plaintiff and frisked him, finding a black ski mask. (Def.'s 56.1 Stmt. ¶¶ 26, 29.) The officers brought Ziauddin to the courtyard in a police vehicle so that he could identify the suspect. (Pl.'s 56.1 Stmt. ¶ 53.) Ziauddin visually identified Plaintiff as the perpetrator from the police vehicle,*fn2 and Plaintiff was placed under arrest and transported to the 49th Precinct Police Station. (Id. at ¶¶ 61, 63; Def.'s 56.1 Stmt. ¶ 41.) Ziauddin also identified Plaintiff as one of the perpetrators of the first robbery. (Pl.'s Exh. 8 ("Complaint Follow Up").) The bodega had a security camera on the premises, but it was not working on the night of the second robbery. (Ziauddin Dep. 43--44.)

Plaintiff was charged with two counts of robbery in the first degree, two counts of robbery in the second degree, two counts of robbery in the third degree, two counts of grand larceny in the fourth degree, two counts of menacing in the second degree, and two counts of criminal possession of stolen property in the fourth degree, pursuant to New York Penal Law §§ 160.15, 160.10, 160.05, 155.30, 120.14, and 165.45, respectively. (See Pl.'s Exh. 11 ("Indictment Sheet").) Plaintiff was represented by appointed counsel at his arraignment and was unable to post bail. (Pl.'s Dep. 184.) Plaintiff was held at Riker's Island for approximately four weeks. (Id. at 186--91). The grand jury dismissed the indictment on February 7, 2005, on all charges due to a lack of sufficient evidence. (Indictment Sheet.) Plaintiff denies any involvement in the robberies at issue. (Pl.'s 56.1 Stmt. ¶¶ 68, 71.) Plaintiff commenced this action on February 22, 2006. (Docket entry no. 1.)

DISCUSSION

Summary judgment in favor of a moving party is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing an absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Summary judgment is not appropriate if there are disputes about material facts "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). However, the non-moving party cannot avoid summary judgment through vague assertions regarding the existence of disputed material facts or "defeat the motion through mere speculation or conjecture." W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). "[T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986) (alteration in original)). The evidence is viewed in the light most favorable to the nonmoving party and all reasonable inferences are drawn in its favor. Rubens v. Mason, 527 F.3d 252 (2d Cir. 2008).

The Initial Stop

Plaintiff alleges that the officers' decision to stop and search him was unreasonable, constituting a violation of his Fourth Amendment rights. Plaintiff also alleges that it was unreasonable for the officers ...


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