United States District Court, E.D. New York
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Plaintiff Alexander Riley, brings this action against Defendants City of New York, Police Officer Joseph DeSantis, Detective Wilmar Mejia, Undercover Officer 27598 and Sergeant Robert Fernandez, alleging violations of the Fourth and Sixth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983. Plaintiff alleges claims of false arrest, excessive force, unlawful search, "fabrication of evidence, " and municipal liability against the City of New York. (Am. Compl. ¶¶ 30-54.) Defendants moved before Magistrate Judge Robert M. Levy pursuant to Rules 37 and 41(b) of the Federal Rules of Civil Procedure and the Court's inherent power for dismissal of the Amended Complaint as a sanction against Plaintiff for Plaintiff's alleged witness tampering in violation of 18 U.S.C. § 1512(b)(1). By Report and Recommendation ("R&R") dated November 4, 2013, Judge Levy recommended that the Court dismiss the Amended Complaint as a sanction against Plaintiff for witness tampering. Plaintiff timely filed objections to the R&R. For the reasons set forth below, the Court adopts the R&R in part and declines to adopt it in part. The Court adopts Judge Levy's conclusion that Plaintiff engaged in witness tampering, but denies Defendants' motion to dismiss the Complaint.
a. Allegations in the Amended Complaint
On February 27, 2008, at approximately 6:15 PM, Plaintiff left a barbershop on Neptune Avenue in Brooklyn and entered his car which was parked in front of the barbershop. (Am. Compl. ¶ 7.) Before Plaintiff could leave the location in his car, DeSantis, Mejia and Fernandez arrived in a police van. (Id. ¶ 9.) One of the Defendants "violently pulled" Plaintiff out of his car and "struck" him in the head with a "blunt object, causing [him] to fall to the ground." (Id. ¶ 10.) While Plaintiff was on the ground, the same Defendant handcuffed him "excessively tight[ly] causing pain and bruising." (Id. ¶ 11.) DeSantis then "punched and kicked [Plaintiff] numerous times on the head, face and body" while the other Defendants watched and "failed to intervene to protect" Plaintiff. (Id. ¶¶ 12-13.) Defendants subsequently "arrested [P]laintiff for no reason." (Id. ¶ 14.)
After arriving at the 60th Precinct, Plaintiff was taken to Coney Island Hospital where he received five stitches. (Id. ¶ 16.) "[P]ursuant to an agreement with the other [D]efendants, " DeSantis misrepresented in police reports and to the Kings County District Attorney's Office that "[P]laintiff was found in possession of a controlled substance and pre-recorded buy money and had resisted arrest." (Id. ¶¶ 17, 19.) Plaintiff was charged with possession of a controlled substance and resisting arrest. (Id. ¶ 20.) After being admitted to Rikers Island Correctional Facility, correction officers "illegally strip searched [P]laintiff with a group of other inmates." (Id. ¶ 23.) The strip search was improper because "[P]laintiff was a pre-trial detainee charged only with misdemeanors, the correction officers had no reason to believe that [P]laintiff was hiding illegal items under his clothes, and the search was not conducted in private." (Id. ¶ 25.)
b. Relevant procedural issues
On September 23, 2010, Plaintiff provided Defendants with his initial disclosures "pursuant to F.R.C.P. 26(a)." (Pl. Disclosures, annexed to Declaration of Raju Sundaran in Support of Defendants' Prop. Findings of Fact & Conclusions of Law ("Sundaran Decl.") as Ex. E.) Plaintiff identified the "Coney Island Hospital doctors and nurses" and "Woodhull Hospital doctors and nurses" as non-party witnesses to the alleged incident. (Id. )
On November 26, 2010, Plaintiff responded to Defendants' First Set of Interrogatories and Requests for Production of Documents, which requested the identification of "all persons who witnessed, were present at, or have knowledge of the incident." (Pl. Resp. to Def. First Set of Interrog. 1, annexed to Sundaran Decl. as Ex. F.) Plaintiff identified "Coney Island Hospital doctors and nurses including Dr. Alfredo Wong, Radiologist Deepak Naran, M.D. and triage nurse Susan George" and "Woodhull Hospital doctors and nurses, including physician assistant Neena." (Id. )
On March 12, 2012, Plaintiff submitted supplemental disclosures, providing the names and contact information of three eyewitnesses to the incident: "Romaine Dindyal, Dei Colon, and Traymain Jergin." (Pl. Supp. Disclosures, annexed to Sundaran Decl. as Ex. G.) Plaintiff also gave Defendants handwritten eyewitness statements from these three witnesses. (Statement by Romain Dindyal ("Romain Dindyal Stmt."), annexed to Sundaran Decl. as Ex. H; Statement by Deirdre Colon ("Colon Stmt."), annexed to Sundaran Decl. as Ex. I; Statement by Tremaine Jernigan ("Jernigan Stmt."), annexed to Sundaran Decl. as Ex. J.) Each of the handwritten statements indicate that on February 27, 2008, the affiant observed certain police officers hitting Plaintiff with a walkie-talkie and kicking and punching Plaintiff before later arresting him. ( See Romain Dindyal Stmt.; Colon Stmt.; Jernigan Stmt.)
On July 3, 2012, Defendants moved to compel the contact information for Jernigan and Romain Dindyal, and to preclude Colon from testifying at trial. (Def. Sec. Mot. to Compel, Docket Entry No. 32.) Defendants informed Judge Levy that while Plaintiff purported to provide the current contact information for Jernigan and Romain Dindyal, Defendants had been unable to locate them in order to serve them with subpoenas to appear for depositions. Defendants also told Judge Levy that Colon informed counsel for the City that she did not want to be involved in the case. Defendants requested that Colon's testimony be precluded at trial, because of her unwillingness to testify. (Id. at 2.)
On July 13, 2012, Judge Levy ordered Plaintiff to provide the contact information for Jernigan and Romain Dindyal. (Minute Entry dated July 13, 2012.) Judge Levy further ordered Defendants to serve a subpoena on Colon directing her to appear at a deposition. (Id. )
c. Allegations of witness tampering
At an October 18, 2012 status conference before Judge Levy, Defendants informed him that Colon provided conflicting affidavits and witness statements. (Minute Entry dated Oct. 18, 2012.) Judge Levy reopened discovery for the purpose of deposing Colon, her attorney, and nonparty witness Felicia Dindyal regarding this allegation.
Two months later, Defendants told Judge Levy of possible witness tampering and solicitation allegations by Colon. (Def. Mot. to Compel 1-2, Docket Entry No. 33.) According to Defendants, Colon admitted that she never witnessed Plaintiff's arrest or his interaction with police officers on the date of the incident. (Id. at 1.) Colon alleged that Felicia Dindyal, Plaintiff's fiancee, "fraudulently induced" her to sign the eyewitness statement corroborating Plaintiff's claims against Defendants. (Id. ) Defendants further advised Judge Levy that Colon's new allegations that she did not witness the incident were corroborated by Colon's attorney. (Id. ) Defendants requested that the Court compel Plaintiff to provide Felicia Dindyal's contact information and for an extension of the discovery deadline to fully explore these allegations. (Id. at 3.)
Plaintiff objected to Defendants' request for an extension of the discovery deadline. (Pl. Resp. to Mot. to Compel, Docket Entry No. 34.) Plaintiff asserted that Defendants' allegations constituted "triple hearsay" and that there was no evidence that Felicia Dindyal improperly procured Colon's contested statement. (Id. at 1-2.) Plaintiff also argued that Colon had been unable to identify who allegedly induced her to write the statement and challenged Defendants' conclusion that it was Felicia Dindyal. (Id. ) Judge Levy granted Defendants' motion to extend discovery and noted that information obtained from Colon's attorney at his deposition "justif[ied] deposing" both Colon and Felicia Dindyal. (Minute Entry dated Dec. 20, 2012.)
Colon was deposed by the parties on February 26, 2013. (Def. Mem. of Law in Opp'n to Pl. Objections ("Def. Opp.") 8, Docket Entry No. 60.) After her deposition, Defendants "noted glaring similarities in the statements offered by Ms. Colon, Mr. Dindyal [and] Mr. Jernigan." (Id. ) According to Defendants, the similarities "strongly suggested that all three statements were concerted and coordinated by [P]laintiff and others working on his behalf." (Id. )
d. June 6, 2013 hearing
On June 6, 2013, Judge Levy heard testimony from Colon and Felicia Dindyal regarding the witness tampering allegations. (Transcript of June 6, 2013 Hr'g ("Tr."), Docket Entry No. 48.) Colon testified that she did not observe the incident between Plaintiff and Defendants, (Tr. 18:2-4), and had not written the eyewitness statement regarding the incident, (Tr. 16:21-23). Colon admitted that she did sign the statement, had it notarized, and provided it to Plaintiff at the behest of Felicia Dindyal, (Tr. 16:14-17:6), but could not recall who provided her with the statement for her signature, (Tr. 96:11-14). Colon did not know who wrote the statement. ( See Tr. 15:15-17.) Colon testified that she had agreed to serve as a "character witness" in support of Plaintiff's case but had been promised by both Plaintiff and Felicia Dindyal that she would not have to testify in court or at a deposition. (Tr. 40:4-42:22.) Felicia Dindyal testified ...