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Keith v. City of New York

United States District Court, S.D. New York

December 1, 2014

CITY OF NEW YORK, et al., Defendants.



On June 23, 2010, a woman was brutally raped in Brooklyn.[1] Several weeks later, on July 9, 2010, the woman saw Plaintiff Richard Keith on a public street and identified him as the perpetrator of the rape. Detectives from the New York City Police Department (the "NYPD") questioned Plaintiff at his home on July 12, 2010, and invited him to participate in a lineup later that day; when the victim again identified Plaintiff as her attacker during the lineup, he was arrested. The next day, Plaintiff was arraigned on felony and misdemeanor sexual offense and robbery charges. A few days later, on July 16, 2010, Plaintiff was released from custody after a DNA test exonerated him.

Plaintiff brought suit against the City of New York and NYPD Detective Jarret Brown; he later named additional NYPD personnel, Lieutenant Francis Morrissey and Detectives Evelyn Gutierrez, Elizabeth Murray, and Sarah Mathers. Plaintiff alleged deprivation of his civil rights under 42 U.S.C. § 1983, as well as false arrest, malicious prosecution, failure to intervene, and respondeat superior under New York State law.

Defendants now move for summary judgment as to all of Plaintiff's claims. The Court grants the motion as to Plaintiff's federal and state false arrest and malicious prosecution claims, as well as his federal denial of fair trial claim, for the reasons discussed in this Opinion. Because Plaintiff has raised an issue of material fact as to the foreseeability of his assault while in custody, the Court denies the motion as to the state law failure to intervene and respondeat superior claims against the City of New York. However, because the Court declines to exercise supplemental jurisdiction, these state law claims are likewise dismissed.


A. Factual Background

1. The Sexual Assault

Early in the morning of June 23, 2010, a 61-year-old woman (the "Victim") was raped in an alleyway near her home in Brooklyn, New York. (Pl. 56.1 Opp. ¶ 7; Pl. Br. 2). The Victim did not know her attacker before the assault (Pl. 56.1 Opp. ¶ 8), and she did not get a good look at his facial features while being raped ( id. at ¶ 9).

After the rape, the attacker took the Victim from the alleyway into her nearby apartment building and to the door of her apartment, demanding money. (Pl. 56.1 Opp. ¶¶ 10-12; Pl. Br. 2).[3] At some point during this sequence of events, the Victim did get a good look at her attacker. (Def. 56.1 Reply ¶ 8; Victim Dep. 9). Once at her front door, the Victim was able to escape into her apartment and close the door behind her. (Pl. 56.1 Opp. ¶ 10). The Victim called out to her son for help, and her daughter called 911. (Pl. Br. 2). The attacker fled.

Police responded to the scene, and the Victim provided a description of her attacker that was included in the NYPD "Unusual Occurrence Report": "Male, Black, 6'2", 200 lbs, bald, dark skin..., big muscular, blue jeans, red/blk jacket, blk tee shirt, 30's." (Zelman Aff. Ex. A at NYC 92). The Victim was taken to the hospital where the medical examiner used a sexual assault kit to collect evidence, from which the examiner was able to obtain a DNA profile of the attacker. ( Id. at NYC 29).

2. The Investigation

Defendant Francis Morrissey, a sergeant in the Brooklyn Special Victims

Squad (the "BSVS") with 19 years' experience, assigned the rape investigation to Defendant Jarret Brown, a detective in the BSVS with 16 years' experience. (Pl. 56.1 Opp. ¶¶ 1, 2, 14).[4] On the day of the rape, Det. Brown conducted a follow-up interview of the Victim. (Myrvold Decl. Ex. N at DEF 673-74). The interview paperwork indicates that the Victim described the attacker as a 30year-old black male, wearing jeans and a multi-colored jacket. ( Id. ). The Victim met later that day with an NYPD sketch artist, who prepared a sketch that described the attacker below the image as "MALE, BLACK, DARK COMPLEXION, APPROX. 40YRS. OLD, 6'0" TALL, APPROX. 200-220LBS., WEARING A BLACK AND RED JACKET[, ] BLACK T-SHIRT, LIGHT BLUE JEANS." (Myrvold Decl. Ex. O at NYC 106).[5]

Thereafter, Det. Brown took the Victim to the BSVS offices at the 77th Precinct in Prospect Heights, where she viewed photographs that were selected based on her description of her attacker. (Pl. 56.1 Opp. ¶ 19). In his contemporaneous notes regarding the display of these photographs, Det. Brown wrote that the Victim "seemed to pay particular attention to an individual who is identified as Buster Singleton, " and that she "state[d] that this individual looks just like the one who attacked her." (Pl. 56.1 Opp. ¶ 20; Myrvold Decl. Ex. N at DEF 680). The Victim did not identify Buster Singleton as the attacker, but she said he "looks a lot like" the attacker. (Pl. 56.1 Opp. ¶ 21; Brown Dep. 34).[6] At this point, Det. Brown designated Singleton, who had a criminal history and a previous arrest in the neighborhood of the rape, as a "person of interest" and filled out an NYPD Investigation Card (or "I-Card") indicating as much. (Pl. 56.1 Opp. ¶ 22).[7]

Singleton was not arrested based on the Victim's statement, but, when he was picked up later that month on an unrelated incident, Det. Brown was notified that Singleton was in custody. (Pl. 56.1 Opp. ¶ 23; Brown Dep. 34-36). Det. Brown interviewed Singleton and obtained a DNA sample from him with his consent. (Brown Dep. 35-36). A variety of factors, including Singleton's alibi, Singleton's reactions to questions, and Singleton's mannerisms, led Det. Brown to eliminate Singleton as a suspect in the rape. (Pl. 56.1 Opp. ¶ 23). Ultimately, the DNA test results would confirm this elimination. (Myrvold Decl. Ex. N at DEF 732).

On June 24, 2010, Det. Brown interviewed an eyewitness to the rape, Paul Thomas. (Pl. 56.1 Opp. ¶ 24).[8] At the time Thomas witnessed the rape, he believed he was seeing "two people having consensual sex, " noting that "[t]here was no screaming or crying out." (Thomas Decl. ¶ 2). Thomas told Det. Brown that he "did briefly see" the attacker and described him as "in shape but slim in physical appearance... possibly 6 to 6 ft 3 inches in height with a slim face, and dark skinned." (Myrvold Decl. Ex. N at DEF 717). Det. Brown took Thomas to the BSVS offices, where Thomas viewed a photograph array that had been assembled based on both his own and the Victim's descriptions of the attacker. (Pl. 56.1 Opp. ¶ 26). Thomas could not identify any individual pictured as the rapist. ( Id. ).

3. The Victim's First Identification of Plaintiff

On the morning of July 10, 2010, the Victim called Det. Brown, and told him either that she had seen her attacker, or that she had seen someone who "looked like" her attacker, walking in her neighborhood on the evening of July 9, 2010. (Pl. 56.1 Opp. ¶ 27).[9] The Victim told Det. Brown that she had seen this individual in the company of a woman whom the Victim recognized from the neighborhood, but whose name she did not know. (Myrvold Decl. Ex. N at DEF 725). The Victim also told Det. Brown that she saw the individual enter a grocery store. ( Id. ). Det. Brown conducted further investigation, which included following up with the grocery store owner and obtaining surveillance video, and determined that the woman accompanying the individual the Victim saw was Kim Gorman. ( Id. at DEF 725-26).

At this point, Sgt. Morrissey asked Steven Litwin, another BSVS detective with 30 years' experience (Pl. 56.1 Opp. ¶ 6), to get involved with the investigation (Litwin Dep. 7-9).[10] Sgt. Morrissey related to Det. Litwin that the Victim had seen a man - a man whom she claimed had recently raped her - in the company of a woman, Kim Gorman; Det. Litwin was tasked with locating and interviewing Gorman to determine who the man was. ( Id. at 7).

On July 12, 2010, BSVS detectives, including Det. Litwin, canvassed the Victim's neighborhood, found Gorman, interviewed her, and determined that Plaintiff Richard Keith was the man whom the Victim had seen on the evening of July 9, 2010. (Myrvold Decl. Ex. N at DEF 729; Pl. 56.1 Opp. ¶¶ 31-32). Later that afternoon, Det. Litwin and two other detectives went to Plaintiff's home, asked him questions, and went with him to the grocery store where he had been seen a few days prior. (Pl. Opp. 56.1 ¶ 33). Afterwards, Plaintiff went home and the detectives returned to the BSVS offices. ( Id. ). Det. Litwin testified that when he first met Plaintiff, he believed he had probable cause to arrest him based on the Victim's spontaneous identification; however, after speaking to Plaintiff, Det. Litwin did not think that Plaintiff was the rapist and so left without taking him into custody at that time. ( Id. at ¶ 59).

After leaving Plaintiff's home, Det. Litwin spoke with the Victim on the phone. (Litwin Dep. 11). The purpose of the call was to hear the specifics of the identification from the Victim, and to let her know that the police had identified the man she had seen with Gorman. ( Id. ). Det. Litwin summarized the phone call, in part, as follows:

I asked her about the identification first and I asked her [] if she was sure that that was the person that had raped her. And she said that she was. I then asked her if there was any possibility that perhaps she had recognized him just from the neighborhood, that he may have been familiar to her from the neighborhood and may, in fact, not be the rapist. And she said, "No, I [] recognized him as the person that attacked me, " or whatever term she used.... I explained to her that we had identified the person and that he was her neighbor, and it appeared that possibly she could be confused and maybe she just recognized him from the neighborhood and not from the crime.... I asked her specifically at that point, "Are you certain? [...] Could it be that you recognize him from the neighborhood and maybe you're a bit confused?" And she said, "No, I recognize him [] from the attack." And then she added [] something to the effect of, if we had spoken to him and investigated and if we were confident that he was not the attacker, that she understood that.

( Id. at 12-13). This last statement - that the Victim would be satisfied if the police investigated Plaintiff and determined he was not the perpetrator - gave Det. Litwin additional doubts about the Victim's certainty in her identification. ( Id. at 14).

Det. Litwin later learned from Sgt. Morrissey that the Chief of the BSVS had ordered that Plaintiff be put into a lineup. (Litwin Dep. 35-36). Det. Litwin told Sgt. Morrissey that he had doubts about the Victim's identification. ( Id. at 37). He then explained to another one of his superiors, Captain Joseph White, that he was "convinced" Plaintiff was not the rapist; that the Victim was confused; and that he did not believe Plaintiff should be put into a lineup. ( Id. ). Capt. White disagreed with Det. Litwin, telling Det. Litwin that he had been "wrong to make the judgment in the street" after questioning Plaintiff; that "there was probable cause [to arrest Plaintiff] because of [the Victim's] prior statement to Detective Brown"; and that Plaintiff "should have been brought in initially, " that is, earlier that day after Det. Litwin had first interviewed him. ( Id. at 38).

Later in the evening of July 12, 2010, Sgt. Morrissey, along with Defendant Elizabeth Murray, a detective in the BSVS with seven years' experience (Pl. 56.1 Opp. ¶ 3), went to Plaintiff's home and asked him to come to the BSVS offices in Prospect Heights to participate in a lineup ( id. at ¶¶ 35-36). Plaintiff agreed, and Sgt. Morrissey and Det. Murray took Plaintiff to the BSVS. ( Id. at ¶ 37). After dropping him off, Sgt. Morrissey and Det. Murray picked up fillers for the lineup from a local homeless shelter. ( Id. at ¶ 40; Murray Dep. 15). Meanwhile, Defendants Evelyn Gutierrez and Sarah Mathers, detectives in the BSVS with twenty and seven years' experience, respectively, picked up the Victim from her home and brought her to the BSVS for the lineup. (Pl. 56.1 Opp. ¶¶ 4, 5, 42).

4. The Victim's Second Identification of Plaintiff at the Lineup

Sgt. Morrissey and Det. Mathers conducted the lineup. (Pl. 56.1 Opp. ¶ 41). The lineup had five "fillers" in addition to Plaintiff. (Myrvold Decl. Ex. P). These men: (i) were all African American; (ii) had ages of 26, 28, 35, 45, and 48; (iii) weighed 170, 165, 170, 200, and 175 pounds, respectively; and (iv) were either 5'10" or 5'11" in height. ( Id.; Keith Dep. 23). During the lineup, the men wore the same white T-shirts and the same black baseball caps (Myrvold Decl. Ex. P; Keith Dep. 25); the men were all seated and held signs each bearing a number one through six (Myrvold Decl. Ex. P).

Det. Litwin spoke to the Victim prior to the lineup, emphasizing to her that it was "very important, " and explaining that if she recognized someone, it was important for her to be sure that she recognized him from the crime, and not just from her neighborhood. (Litwin Dep. 18). He told her to be "very careful" viewing the lineup. ( Id.; Pl. 56.1 Opp. ¶ 46).[11] The Victim identified Plaintiff in the lineup as her attacker. (Def. 56.1 Reply ¶ 48).

5. Plaintiff's Arrest and Interactions with Fellow Prisoners

As a result of the identification, Det. Mathers processed Plaintiff's arrest that same evening, July 12, 2010, and he was taken into custody. (Pl. 56.1 Opp. ¶ 50). The arrest report described Plaintiff as a black male, 45 years old, 5'10" tall, 170 pounds in weight, bald, and having a medium skin tone. ( Id. at ¶ 51). Plaintiff voluntarily provided a DNA sample. ( Id. at ¶ 55). At some point, Det. Litwin called the Kings County District Attorney's Office and requested that the DNA testing be expedited. ( See Litwin Dep. 21-22 ("[I]n this type of case where somebody is sexually assaulted on the street by a stranger, it's a high priority case, and there's always a request made to expedite the testing of the rape kit, in the idea that maybe we could identify the rapist fairly quickly and prevent another crime.")).

The next day, on July 13, 2010, Det. Brown brought the Victim to the Kings County District Attorney's Office, where they met with a prosecutor. (Pl. 56.1 Opp. ¶ 74). The criminal complaint was prepared based on information provided by the Victim. ( Id. at ¶ 77; Myrvold Decl. Ex. R (Crim. Ct. Compl.)). Det. Brown signed the criminal complaint, which contained a top charge of rape in the first degree in violation of New York Penal Law § 130.35(1). (Pl. 56.1 Opp. ¶ 77). Plaintiff was arraigned on July 13, 2010, and remanded into custody on $100, 000 bail. ( Id. at ¶ 78).

After the arraignment, Plaintiff suffered a panic attack and was sent to the hospital, where he received treatment for chest pain. (Pl. 56.1 Opp. ¶ 84; Pl. Opp. 6). Plaintiff claims that his lawyer requested that he be put into protective custody once taken to prison. (Keith Dep. 34). It is not clear from the record to whom this request was made, or who was aware of this request. When he returned from the hospital, Plaintiff was not placed in protective custody, but was placed in a cell with 20-25 other inmates in Central Booking. (Pl. 56.1 Opp. ¶ 84). Because some of these inmates had been present in the courtroom during his arraignment, Plaintiff believed that the other prisoners knew he was charged with raping a 61-year-old woman. ( Id. at ¶ 87). While in this cell, Plaintiff was assaulted by the other inmates. ( Id. at ¶ 84). The assault lasted about two to three minutes, and Plaintiff was punched 10 to 20 times, before correction officers intervened to stop the assault and placed Plaintiff in a cell by himself. ( Id. at ¶ 85; Keith Dep. 34-35). As a result of the assault, Plaintiff sustained a "knot" on his head, and testified that his body was sore from all of the punches. (Pl. 56.1 Opp. ¶ 86).

Plaintiff suffered another incident during his transport to the Rikers Island Correctional Facility. Plaintiff claims that he overheard a female corrections officer saying to another corrections officer that he (Plaintiff) should not be placed on the bus to Rikers Island with the prisoners who had already assaulted him. (Keith Dep. 35). According to Plaintiff, a male officer handcuffed Plaintiff and put him on the bus before the other prisoners were loaded, in a cell at the front of the bus that was isolated from the seats in the back where the other prisoners would sit. ( Id. ). As the other prisoners boarded the bus, they verbally threatened and spit on Plaintiff. ( Id. at 35-36; Pl. 56.1 Opp. ¶ 88).[12] When Plaintiff arrived at Rikers Island, he was placed in a cell by himself, although apparently the other prisoners could still see Plaintiff and continually taunted him as a purported rapist. (Keith Dep. 36).

6. Plaintiff Is Exonerated by DNA Evidence

On July 15, 2010, at about 4:30 p.m., Det. Brown, Det. Litwin, and the District Attorney's Office were informed that DNA testing identified Devon Lloyd as the rapist and excluded Plaintiff as the rapist. (Pl. 56.1 Opp. ¶ 79). Plaintiff was released from custody at approximately 2:35 a.m. on July 16, 2010. ( Id. at ¶ 82). The prosecution against Plaintiff was dismissed on August 24, 2010. ( Id. at ¶ 83).

B. Procedural Background

A notice of claim was filed on Plaintiff's behalf on July 30, 2010. (Pl. 56.1 Opp. ¶ 91). The Complaint in this action was filed on May 25, 2011, and a Second Amended Complaint (or "SAC") was filed on June 14, 2013. ( Id. at ¶¶ 92-93; Dkt. #1, 45). All answers were filed by August 8, 2013. (Dkt. #47, 54). Pending before the Court is the Defendants' ...

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