United States District Court, S.D. New York
OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Plaintiff Kwame Garnett brings this action, pursuant to 42 U.S.C. § 1983 ("Section 1983"), against two undercover officers of the New York City Police Department for his allegedly wrongful arrest and prosecution in connection with a drug sale that occurred on November 19, 2011. The undercover officers ("UC 0039" and "UC 0243") move for summary judgment on all claims. The Court grants summary judgment in favor of UC 0243 with respect to Garnett's false arrest, malicious prosecution, and denial of a right to a fair trial claims, as Garnett cannot show that UC 0243 was personally involved in his arrest and prosecution. However, because a genuine issue of material fact exists with respect to Garnett's false arrest, malicious prosecution, and denial of a right to a fair trial claims against UC 0039 and with respect to his failure to intervene claim against UC 0243, the Court denies summary judgment as to those claims.
1. The November 19, 2011 Narcotics Operation
On the evening of November 19, 2011, undercover officers UC 0039 and UC 0243, along with Officers Neftali Betances and Tyrone Viruet, were members of a tactical team conducting a "buy-and-bust" narcotics operation on the block of Lexington Avenue between 115th and 116th streets, a block known for the recurrent sale of narcotics. Pl. Resp. 56.1 ¶¶ 2, 5-6. Pursuant to the planned operation, UC 0243 and UC 0039 walked along the east side of Lexington Avenue in an attempt to purchase narcotics. Id. ¶ 8. UC 0243 acted as the primary undercover officer and UC 0039 acted as the ghost undercover officer. Id. ¶ 9. Meanwhile, certain members of the tactical team (the "field officers"), including Officers Betances and Viruet, were stationed in police vehicles in the surrounding area, waiting for communication from the undercover officers. Id. ¶ 10.
At approximately 6:15 p.m., in front of Lexington Grocery, located at 1865 Lexington Avenue between 115th and 116th streets, UC 0243 and UC 0039 encountered two individuals, later identified as Naim Roper and Wakuan Cintron. Id. ¶¶ 13-15. At about the same time, UC 0039 also observed Garnett on the same block. Id. ¶ 14. Garnett testified at his deposition that he knew Roper and Cintron - they had grown up together in the same neighborhood. Aroubas Decl. Exh. H at 63:17-21, 67:2-8. As the officers approached, Roper offered to sell UC 0243 marijuana. Pl. Resp. 56.1 ¶ 16. When UC 0243 conveyed that he was also looking to purchase cocaine, Cintron became engaged in the conversation as well. Id. ¶ 17. Meanwhile, UC 0039 stood nearby observing the exchange and the surrounding area. Id. ¶ 18. He testified that he saw Garnett appearing to act as a lookout. Aroubas Decl. Exh. C at 88:21-90:2, 96:6-23, Exh. C2 at 19:3-22, Exh. G at 38:5-17, 55:21-57:14.
UC 0243 then followed Roper and Cintron into Lexington Grocery, trailed by UC 0039. Pl. Resp. 56.1 ¶ 19. Once inside the store, UC 0243 proceeded toward the back of the store with Roper and Cintron. Id. ¶ 20. UC 0039 stayed close to the store's entrance, which was held open, where he was able to observe UC 0243 transacting with Roper and Cintron as well keep an eye on the street. Id. ¶ 21. UC 0243 purchased cocaine from Cintron and marijuana from Roper in exchange for cash, a transaction which UC 0039 observed. Id. ¶¶ 23-25.
It is here that the parties' version of events diverge. According to UC 0039, Garnett entered the store as the transaction was taking place looking angry, "very authoritative towards [Roper and Cintron], " and appearing to act "in the managerial position." Aroubas Decl. Exh. G at 53:5-15. UC 0039 further testified that Garnett then made statements to Roper and Cintron, though UC 0039's account of the statement varies slightly over time:
in the Follow Up report that UC 0039 prepared, UC 0039 wrote that Garnett said, "YO HURRY UP, YA'LL AIN'T DONE YET, GET THAT MONEY, I'M NOT LOOKING TO GET LOCKED UP TONIGHT, LET'S GO." Id. Exh. K;
in the criminal complaint prepared by Officer Viruet, UC 0039 relayed Garnett's statements as, "YO HURRY UP, YA'LL AIN'T DONE YET, GET THAT MONEY, I'M NOT LOOKING TO GET LOCKED UP TONIGHT." Id. Exh. B at P003;
at the criminal trial, UC 0039 testified, "[Garnett] told them... why are you taking so long. Hurry up. [Garnett] stated - he said, get that money, let's get out of here. You are taking too long. Let's go. [Garnett] used the word stupid. [Garnett] also stated he was not looking to get locked up - I'm not looking to get locked up tonight. Hurry up and let's go." Id. Exh. C at 96:6-23;
at his deposition in the course of this litigation, UC 0039 testified, "[Garnett] doesn't yell, but he very sternly speaks to [Cintron and Roper], and he says, in sum and substance, "What the fuck is taking you guys so long? Hurry up. You guys are stupid. Hurry up... [Garnett] used the f' word and he used the word stupid.' And he also stated in sum and substance, I'm not looking to get locked up tonight. You guys are taking too long.'" Id. Exh. G at 44:7-17.
UC 0039 further testified at Garnett's criminal trial that in response to Garnett's statements, Roper and Cintron "started hurrying up, moving faster... they looked to be moving quicker than they were before." Id. Exh. C at 95:14-21. UC 0039 also testified that Garnett engaged in a transaction with the store clerk (although at his deposition UC 0039 could not recall whether Garnett brought anything from the store clerk, id. Exh. G at 47:21-48:3), before moving to the doorway, looking around, saying "let's go, " then exiting the store. Id. Exh. C at 97:1-9, 97:5-11. UC 0039 testified that Roper and Cintron then exited the store, by which time Garnett had crossed the street into a music store. Id. at 97:11-17.
UC 0243 testified at the criminal trial that during the transaction, Garnett walked into the store and said something loud that "grabbed Mr. Cintron's attention" and caused Cintron to look over UC 0243's shoulder. Id. at 23:3-6; Pl. Resp. 56.1 ¶ 26. Though Garnett was standing about four feet away from UC 0243 when he made the statement, UC 0243 claims that he did not hear what Garnett said. Aroubas Decl. Exh. C at 48:1-4, 55:4-23, 60:12-8. At his deposition, UC 00243 said he did not know whether Garnett's statement was loud or not, but that it appeared to "alarm" Cintron. Id. Exh. F at 54:6-14.
Garnett testified at his deposition that he was not involved in the narcotics transaction; rather, he says he placed an order at Crown Fried Chicken next door to Lexington Grocery, and that while waiting for his chicken, he walked to Lexington Grocery to buy a soda, but decided not to enter because the store appeared too crowded. Aroubas Decl. Exh. H at 74:3-5, 78:19-79:4, 79:9-81:24. In his 56.1 Statement, however, Garnett does not dispute Roper's testimony that there were no other customers inside the store at the time Roper entered with Cintron and UC 0243. Pl. Resp. 56.1 ¶ 22; see also Aroubas Decl. Exh. I at 32:16-33:1. Garnett claims that he then returned to Crown Fried Chicken to buy the chicken, put the chicken in his pocket, then crossed the street and entered the music store. Aroubas Decl. Exh. I at 81:22-82:2, 84:5-7. He also testified that he had spent the day at his sister's house and then at his grandmother's house, and that the first time he saw Roper and Cintron that day was inside the prisoner van following their arrests. Id. at 74:6-78:25, 130:4-17.
In seeming contradiction to Garnett's testimony, Roper testified at his deposition that earlier in the evening, he, Garnett, and Cintron had been hanging out at a friend's house nearby for several hours before leaving together to walk towards the area around Lexington Grocery, but that Garnett left to buy chicken at Crown Fried Chicken before the drug transaction took place. Id. Exh. I at 30:2-31:8, 58:5-59:1, 59:4-62:3, 67:19-68:25, 104:11-105:2. However, Roper said that Garnett never entered the store, never made any statements inside the store, and that he did not have any involvement in the narcotics transaction. Id. at 34:16-35:18. Roper also said that while he was inside the store engaging in the transaction, he saw Garnett walk from Crown Fried Chicken to the music store across the street with a brown bag in his hand. Id. at 38:1-40:19.
Cintron, on the other hand, stated under oath at his plea hearing that he "acted in concert with Garnett to knowingly and unlawfully sell cocaine to a police officer on that evening." Id. Exh. N at 6:17-22, Pl. Resp. 56.1 ¶ 60.
2. The Arrest
After the narcotics transaction was completed, UC 0243 signaled to UC 0039 that the transaction yielded a purchase of narcotics. Pl. Resp. 56.1 ¶ 32. Both undercover officers then exited the store with Cintron and Roper. Id. ¶ 33. UC 0039 began transmitting radio communication to the field officers, informing them that the narcotics transaction was successful and involved three individuals. Id. ¶ 34. UC 0039 testified, however, that during this time he never communicated anything about Garnett to UC 0243, Aroubas Decl. Exh. C at 18:7-2; Garnett does not allege otherwise.
As the field officers moved onto the block on Lexington Avenue between 115th and 116th Streets, UC 0039 transmitted a description of the three individuals along with their possible locations to the field officers. Pl. Resp. 56.1 ¶ 35. UC 0039 provided a description of Garnett as "gray hoodie with hoodie on, blue jeans, male black five ten, 170, across the street inside electronics store." Id. ¶ 37. It is undisputed that UC 0243 did not communicate to the field officers any information about Garnett. Id. ¶ 38.
Upon receiving the transmission from UC 0039, the field officers drove their vehicles to the block between 115th and 116th streets on Lexington Avenue and arrested Roper and Cintron. Id. ¶¶ 39-42. In addition, based on UC 0039's description and directions over the radio, Officer Betances entered the El Barrio music store on Lexington Avenue and apprehended Garnett. Id. ¶ 43. Upon exiting the store, UC 0039 confirmed to Officer Betances that he had apprehended the right individual. Id. ¶ 44. UC 0243 was not involved in confirming the identity of Garnett. Id. Officer Betances then arrested Garnett. Id. ¶ 45.
3. Post-Arrest Events
Following Garnett's arrest, Officer Viruet prepared the relevant arrest papers and criminal court complaint charging Garnett with criminal offenses relating to the narcotics transaction. The complaint states, in relevant part, that Officer Viruet was informed by UC 0039 that UC 00039 observed the marijuana and cocaine transaction between UC 0243, Roper, and Cintron inside 1865 Lexington Avenue, and that UC 0039 immediately thereafter observed Garnett enter the grocery store and state "YO HURRY UP, Y'ALL AIN'T DONE YET, GET THAT MONEY, I'M NOT LOOKING TO GET ...