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Johnson v. City of New York

July 13, 2010


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



Plaintiff Terri Johnson ("plaintiff" or "Johnson") brings this action against the City of New York (the "City"), Detective Kevin Hogan of the New York City Police Department ("NYPD") and unnamed police officers (together, the "City Defendants"), Follett Higher Education Group, Inc. ("Follett"), Lagena Solomon ("Solomon") and James Williams ("Williams") (collectively, "defendants"), alleging federal civil rights claims pursuant to 42 U.S.C. § 1983 and various state law tort claims, all arising from plaintiff's allegedly unlawful arrest, confinement and prosecution. Presently before the court are defendants' motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's action. (Doc. Nos. 93 (Follett's motion), 99 (Williams's motion), 100 (Solomon's motion), and 106 (the City Defendants' motion). For the reasons set forth below, the City Defendants' motion for summary judgment is granted in its entirety. Further, the court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, which are dismissed without prejudice.


The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in a light most favorable to the nonmoving plaintiff.

On January 31, 2005, plaintiff was employed by a temporary employment agency as a cashier at a bookstore operated by defendant Follett at the City University of New York, Queens College. (Doc. No. 113, Declaration of Jessica Klotz ("Klotz Decl."), Ex. E, Deposition of Terri Johnson taken on Mar. 3, 2008 ("Pl. Dep.") at 29-30; Doc. No. 108, City Defendants' Local Civil Rule 56.1 Statement ("City Defs. 56.1 Stmt.") ¶ 2.) At all relevant times, defendant Solomon was the bookstore's assistant manager and defendant Williams was one of its security guards. (Doc. No. 97, Follett's Local Civil Rule 56.1 Statement ("Follett 56.1 Stmt.") ¶¶ 3, 5.) On January 31, 2005, plaintiff left his work shift before 9:00 p.m. and went home to Brooklyn by bus. (Pl. Dep. at 44-45; see also Klotz Decl., Ex. E, Criminal Trial Transcript ("Trial Tr.") at 49-50.)

On or about the late evening of January 31, 2005, or the early morning of February 1, 2005, Solomon and Williams left the bookstore to deposit bags containing a portion of the bookstore's daily proceeds in the night depository of a nearby bank. (Trial Tr. at 31, 54-55, 57; see also Doc. No. 109, Declaration of Susan Scharfstein ("Scharfstein Decl."), Ex. F, Complaint Report dated Feb. 1, 2005; City Defs. 56.1 Stmt. ¶ 6.)*fn1

They drove to the bank in Solomon's vehicle and Williams showed Solomon a shorter route than they had used on previous trips to the bank. (Klotz Decl., Ex. I, Deposition of Lagena Solomon taken on Mar. 19, 2008 ("Solomon Dep.") at 66-67.) When Solomon and Williams arrived at the bank, they observed a man standing at a nearby bus stop. (Id. at 76; see also Klotz Decl., Ex. H, Deposition of James Williams taken on Apr. 17, 2008 ("Williams Dep.") at 45.)

After arriving at the bank, Solomon and Williams were accosted by the man they previously observed at the bus stop, who demanded money and displayed a gun. (City Defs. 56.1 Stmt. ¶ 7; Trial Tr. at 58-59; Solomon Dep. at 79.) Both Solomon and Williams testified that the man (the "robber" or "assailant") apparently ran to the bank from the nearby bus stop. (Solomon Dep. at 79; Williams Dep. at 47-49.) The man pushed Williams against a wall, displayed a gun and replaced it into his waistband, and seized the deposit bags. (Solomon Dep. at 81, 86.) The man then asked Solomon where her cell phone was, to which Solomon responded "in the car[,]" and patted down Solomon's coat. (Id. at 87-88.) Solomon testified that the assailant stood very close to her and that his face was only partially concealed by a scarf from the bottom of his nose. (Doc. No. 102, Solomon's Local Rule 56.1 Statement ("Solomon 56.1 Stmt.") ¶¶ 86-88; Solomon Dep. at 97-98.) Solomon also noted that the man appeared to have difficulty with his leg and to shift his weight off the leg by shaking it. (Solomon Dep. at 100-02.) The man did not pat down Williams or ask him where his cell phone was. (See id. at 93.) Neither Williams nor Solomon attempted to resist or defend against the robbery. (See id. at 90.) The assailant fled with the money. (Id. at 91-92.) Subsequently, Solomon and Williams returned to Solomon's vehicle and called the police to report the crime. (Id. at 93; City Defs. 56.1 Stmt. ¶ 12.) Solomon testified that she told Williams that she believed that the assailant was plaintiff. (Solomon Dep. at 93.) Solomon was shocked and frightened by the events. (Id. at 92.)

Police officers responded to the scene of the crime. (Defs. 56.1 Stmt. ¶ 13.) The officers interviewed Solomon and Williams and obtained details about the crime and suspect. (Solomon Dep. at 104-05.) Solomon described the assailant as 5'8" tall with a "goldish" jacket. (Id. at 105.) According to Solomon, Williams described the assailant as 5'11" with a black jacket. (Id.) During the two-to-three minute conversation with the first two responding officers, Solomon did not advise the officers that she thought that plaintiff was the assailant because Williams gave a different description and she thought that Williams might have been involved in the crime. (Id. at 106, 108-09; see also City Defs. 56.1 Stmt. ¶ 10; Trial Tr. at 17.) Plainclothes police officers then drove Solomon around for 5 to 10 minutes to canvass the neighborhood and they returned to the scene. (Solomon Dep. at 106-07.) Solomon did not alert the officers to her belief that plaintiff had committed the robbery because she was scared that plaintiff would find out that she thought he robbed her. (Id. at 108-10.) Defendant Williams did not have any further contact or communication with the police regarding the robbery investigation. (Doc. No. 99, Williams's Local Civil Rule 56.1 Statement ("Williams 56.1 Stmt.") ¶¶ 38-39.)

The robbery investigation was assigned to Detective Kevin Hogan of the 107th Precinct Detective Unit. (City Defs. 56.1 Stmt. ¶ 16.) On February 2, 2005, Detective Hogan conducted a telephone interview with Solomon to ascertain details about the robbery, obtain a description of the subject and schedule an in-person meeting. (Id. ¶ 17; Trial Tr. at 81, 177.) During the telephone interview, Solomon described the suspect's gender, ethnicity, height, weight and clothing. (Trial Tr. at 177-78; Doc. No. 101, Declaration of Steven C. Stern ("Stern Decl."), Ex. C, Detective Division report ("DD-5 Report").) Solomon indicated that the suspect was 5'9" tall, weighed 200lbs, and wore a gold hooded coat with a dark scarf that concealed part of his face. (DD-5 Report.) She did not provide the suspect's name. (Id.; Trial Tr. at 178.)

Detective Hogan met with Solomon on February 6, 2005. (Id. at 178; City Defs. 56.1 Stmt. ¶ 22; DD-5 Report.) During the meeting, Solomon was shown various mug shots, however, she did not identify a suspect from the mug shots. (Solomon Dep. at 139; DD-5 Report.) During the meeting, Solomon identified plaintiff as the individual that committed the armed robbery on February 1, 2005, of which Solomon was a victim. (City Defs. 56.1 Stmt. ¶ 23; DD-5 Report; Solomon Dep. at 134.) Solomon testified that this was the first time she told any law enforcement officer that she believed that plaintiff, a co-worker, was the assailant. (See Solomon Dep. at 134, 138; DD- 5.) She also mentioned to Detective Hogan her suspicion that Williams "had something to do" with the robbery. (Id. at 138.)

Following the February 6, 2010 meeting with Solomon, Detective Hogan took additional steps to investigate the crime. On February 7, 2005, Detective Hogan visited the scene of the robbery and requested surveillance videos from the bank. (DD-5.) Detective Hogan was unable to recover any surveillance video of the incident. (Id.; Klotz Decl., Ex. J, Deposition of Kevin Hogan taken on Mar. 19, 2008 ("Hogan Dep.") at 32.) On February 8, 2005, Detective Hogan contacted Follett to obtain a list of employees. (Hogan Dep. at 32-33; DD-5; City Defs. 56.1 Stmt. ¶ 25.) On February 16, 2008, Detective Hogan contacted the temporary employment agency that had placed plaintiff at the bookstore to obtain information concerning plaintiff. (DD-5; see also Hogan Dep. at 34; City Defs. 56.1 Stmt. ¶ 28.) Detective Hogan also ran various background checks on the plaintiff. (City Defs. 56.1 Stmt. ¶ 29.) Additionally, Detective Hogan prepared a photo array with a photograph of plaintiff and other similar images. (DD-5; Hogan Dep. at 35-36.) Detective Hogan testified that he did so to "make sure it's, in fact, Terri Johnson who I had information on." (Hogan Dep. at 35.) Hogan then requested that Solomon appear at the police precinct to view the photo array. (City Defs. 56.1 Stmt. ¶ 30.) On February 17, 2005, Solomon identified plaintiff as the perpetrator of the February 1, 2005 armed robbery. (Solomon Dep. at 139-40; Hogan Dep. at 37; DD-5.) Defendant Williams neither spoke with Detective Hogan, nor identified plaintiff as the perpetrator of the robbery. (Williams 56.1 Stmt. ¶¶ 43-44.)

Detective Hogan testified that based upon the information available to him, namely, the information provided by Solomon, Hogan decided to arrest plaintiff. (Hogan Dep. at 59-60; see also Williams 56.1 Stmt. ¶ 45.) Plaintiff was arrested on February 24, 2005 and remained in custody until the conclusion of his criminal trial. (City Defs. 56.1 Stmt. ¶ 35; Solomon 56.1 Stmt. ¶ 137.)

Following the arrest, Hogan signed a criminal court affidavit. (Scharfstein Decl., Ex. K.) The affidavit states, inter alia, that Hogan was informed by Solomon that on or about February 1, 2005, Terri Johnson approached Solomon, displayed a firearm, took from Solomon cash and checks totaling approximately $35,000 and fled the scene of the crime, in violation New York Penal Law § 160.15(4).*fn2 (See id.)

Thereafter, Detective Hogan and Solomon met with the District Attorney's Office, and Solomon spoke with an Assistant District Attorney ("ADA") about the crime. (Solomon Dep. at 140-41; City Defs. 56.1 Stmt. ¶¶ 38, 40.) Detective Hogan did not speak during the meeting, except for advising Solomon that the bank did not have a functioning security camera. (Solomon Dep. at 141-42.) Solomon advised the ADA that plaintiff perpetrated the February 1, 2005 robbery. (Id. at 167; City Defs. 56.1 Stmt. ¶ 41.) Following her statement to the District Attorney's Office, a state court judge issued temporary orders of protection prohibiting any contact or communication by plaintiff with Solomon. (City Defs. 56.1 Stmt. ¶ 44; Scharfstein Decl., Ex. L, Protection Orders.) The orders of protection were in effect from February 25, 2005 through April 7, 2005. (City Defs. 56.1 Stmt. ¶¶ 45-46.)

On March 31, 2005, plaintiff was indicted by a grand jury on one count of first-degree robbery. (City Defs. 56.1 Stmt. ¶ 43; Scharfstein Decl., Ex. M, Indictment.) Defendant Solomon testified before the grand jury which indicted plaintiff. (City Defs. 56.1 Stmt. ¶ 50.) Williams did not testify before the grand jury. (Williams 56.1 Stmt. ¶ 46.) On June 7, 2005, a state court judge issued a decision and order denying a defense motion to dismiss the indictment, finding that there was "legally sufficient evidence adduced to establish the commission by the defendant of the offense charged in the indictment." (Scharfstein Decl., Ex. O, Order dated 6/7/05; City Defs. 56.1 Stmt. ¶¶ 48-49.)

Solomon, Williams and Detective Hogan testified at plaintiff's criminal trial. (City Defs. 56.1 Stmt. ¶¶ 49-50; see Trial Tr. at 144.) At trial, Solomon testified, inter alia, that plaintiff perpetrated the February 1, 2005 armed robbery. (Id. ¶ 51.) By contrast, Williams did not identify plaintiff as the perpetrator of the armed robbery. (Williams 56.1 Stmt. ¶ 48.) Detective Hogan testified at trial concerning his investigation of the crime. Plaintiff was acquitted of the criminal charges on December 14, 2005. (City Defs. 56.1 Stmt. ¶ 53.) Defendant was released from custody on December 15, 2005. (Solomon 56.1 Stmt. ¶ 137.)


A.Summary Judgment Standard

A court may grant summary judgment only "if 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)(2). "A fact is 'material' for these purposes when it 'might affect the outcome of the suit under the governing law.'" Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Moreover, no genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. General Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). Nevertheless, the nonmoving party may not rest "merely on allegations or denials" but must instead "set out specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). Further, "the nonmoving party must come forward with admissible evidence ...

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