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Richardson v. City of New York

United States District Court, Second Circuit

December 10, 2013

BUDDY RICHARDSON, Plaintiff,
v.
THE CITY OF NEW YORK et al., Defendants.

ORDER AND OPINION

LORNA G. SCHOFIELD, District Judge.

Plaintiff Buddy Richardson brings this action pursuant to 42 U.S.C. ยง 1983 against Captain Christopher J. McCormack, the City of New York (the "City") and N.Y.P.D. Police Officers John Doe "1-5" for violations of his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff also asserts state law claims for false arrest, unlawful imprisonment, malicious prosecution and negligent hiring, retention, training and supervision.

Defendants move for judgment on the pleadings dismissing the constitutional claims, pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(c). Defendants move, pursuant to Fed.R.Civ.P. 56, for partial summary judgment seeking dismissal of all other claims against all Defendants, except Plaintiff's false arrest claim against Captain McCormack from the time Plaintiff was detained until a loaded firearm was found in the police van in which he was transported. For the reasons stated below, Defendants' motion is granted in part and denied in part. All claims against all Defendants are dismissed except the following claims against Defendant McCormack: the federal claims for false arrest, excessive force, unlawful search and seizure and malicious prosecution.

I. Background

Most of the facts in this case are disputed. The following description of events is taken from the parties' Rule 56.1 Statements and other evidence in the record and is construed, as required on this motion, in the light most favorable to Plaintiff, the nonmoving party.

This case arises out of the arrest of Plaintiff Buddy Richardson on August 20, 2009, at approximately 12:35 a.m. in upper Manhattan. Shortly after midnight that night, Plaintiff and his brother, Mohammed Richardson, walked from their mother's house to the deli that was about a block away. Mohammed Richardson purchased a beer and opened it. Plaintiff Buddy Richardson, who did not have a beer, warned his brother that he should put his beer in a brown paper bag so that he would not get a ticket. As the men left the deli, two officers appeared. Mohammad Richardson retreated into the store and attempted to finish his beer quickly, hoping that the officers would not give him a ticket.

Plaintiff Buddy Richardson started walking to his mother's house. He was carrying a bag containing a shirt and cigarettes. He testified that, as he was walking away, Captain McCormack pushed him from the front using both hands. Plaintiff turned around saying, "My brother's the one with the beer. If you gonna write him a ticket, just write him a ticket." Buddy Richardson again attempted to walk away, and Captain McCormack punched him on the left side of the face as he was turning around. Buddy Richardson then backed away saying that he had "nothing to do with it." Captain McCormack then reached for him, grabbed his tank top and ripped it off in the process. Other officers appeared and tackled Plaintiff to the street and hit, beat and kicked him.

Meanwhile, police officers took Plaintiff's brother, Mohammed Richardson, out of the deli, handcuffed him and sat him on the sidewalk. He testified that he observed Captain McCormack "swing on" Buddy Richardson as he was stepping away. Plaintiff's mother testified that she observed the events from the window of a friend's apartment, which was across the street from the deli. She testified that she saw the officer approach Buddy Richardson while he was backing away with his arms lowered and saw many officers beating and choking him. Another witness, a passerby, testified that that she saw a lot of police officers hitting Buddy Richardson, who was not resisting.

After Plaintiff was handcuffed, Captain McCormack held his face and back to the ground in the street. The officers searched him and removed all his belongings from his shorts pockets. They then turned him on his back, and Captain McCormack pulled Plaintiff's drawstring shorts and underwear down and searched under his genitals. They then turned him on his stomach, and Office McCormack searched between his buttocks. More officers arrived, and a crowd grew. Plaintiff and three other witnesses (his mother, his brother and a passerby) testified that Plaintiff's genitals and buttocks were visible to those on the street and that Plaintiff, who was still shirtless, was close to naked. According to these same witnesses, Captain McCormack searched between Plaintiffs' buttocks, spreading his butt checks and using his hand to search. At some point during or after the search Plaintiff was shackled so that his feet were bound.

Plaintiff lay exposed in the street for more than a few minutes until the crowd complained and the officers then pulled his shorts up. They left him there for a while longer and then picked him up. Another officer conducted a pat down search while Plaintiff was standing, and then they loaded him into a police van with his brother. At this point, he was clad only in drawstring shorts, underwear, shoes and socks and was bound with handcuffs and leg shackles.

When Buddy Richardson arrived at the precinct, they photographed him, he spit up blood, and they asked if he wanted medical attention. He said yes, and they called an ambulance to transport him to the hospital. According to a hospital invoice, he received a CT scan of the head and brain and other treatment. Richardson received a hospital bill with a charge of over $2000. After the hospital visit, police officers returned Plaintiff to the precinct where they put him in the holding pen. The next morning he was taken to Central Booking and charged.

A. Van #5395

Officers Sunil Gidarisingh and Ramon Polanco responded to a call to transport Plaintiff and his brother to Precinct 23 after their arrest. They drove police van #5395. Both officers testified by affidavit that they searched the van immediately before picking up Plaintiff and his brother and confirmed that it was free of contraband and weapons. They again searched the van after the brothers arrived at the precinct. Officer Gidarisingh testified that he discovered a loaded.40 caliber Taurus handgun in the crevice of the back seat of the van where Richardson had been sitting, bound hand and foot. Officer Gidarisingh alerted the other officer and then a Sergeant of the discovery. The two officers affirmed that Buddy Richardson and Mohammad Richardson were the only prisoners transported in police van #5395 between 12:35 a.m. and the search of the van that uncovered the handgun.

Buddy Richardson testified that he did not have a gun on August 20, 2009.

B. Parole Revocation Hearing

Plaintiff was charged with criminal possession of a weapon in the second degree and the assault of Captain McCormack in Criminal Court of the City of New York, New York County. He pleaded not guilty on August 23 and posted bail on August 24, 2009.

After interviewing Captain McCormack, Plaintiff's parole officer found that he was in violation of the terms of his parole and remanded him to Riker's Island. Plaintiff requested a probable cause hearing to argue that his parole had been wrongfully revoked. At the hearing, the evidence focused on charge number 3-that Buddy Richardson "punched the arresting officer Sergeant McCormack in the face." The parole officer elected not to proceed on the weapons charge or the bootleg cigarettes charge. The probable cause hearing commenced on September 22, 2009, and after an adjournment continued on October 6, 2009.

Captain McCormack testified on both days and stated the following: he approached Buddy Richardson suspecting that he had sold untaxed cigarettes because he saw Plaintiff exchange a pack of cigarettes for U.S. currency with a person who turned out to be his brother. When Captain McCormack asked Plaintiff for his identification, he pushed Captain McCormack without provocation, then punched him approximately three times in the head. Captain McCormack admitted that he ripped off Plaintiff's shirt in an effort to grab him. Plaintiff tried to flee, but two other police officers arrived and helped Captain McCormack and his partner restrain Plaintiff. Captain McCormack denied that he touched Plaintiff first and denied that he searched Plaintiff at any time.

The Parole Hearing Officer also heard testimony from Buddy Richardson, Mohammed Richardson, their mother and a fourth witness who was a neighbor, who testified in substance to the beating, strip search and restraint of Plaintiff as described above. At the conclusion of the testimony, the hearing officer found that Captain McCormack's testimony on September 22 and October 6 were "completely different" and that the testimony was "incredulous." The Parole Hearing Officer then found no probable cause for charge number three (assaulting a police officer) and lifted the warrant. The other parole violation charges presumably were dismissed. After being detained more than three weeks at Riker's Island, Plaintiff was released again soon after the October 6, 2009 hearing.

On motion of the District Attorney, the criminal charges against Buddy Richardson were dismissed on March 25, 2010.

II. Legal Standard

The Court reviews motions under Fed.R.Civ.P. 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings under the same standard as Fed.R.Civ.P. 12(b)(6) motions to dismiss. Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Therefore, "[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)). The Court accepts as true all wellpleaded factual allegations and draws all reasonable inferences in favor of the nonmoving party. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). A complaint does not "suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557). Rule 8 of the Federal Rules of Civil Procedure "requires factual allegations that ...


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