United States District Court, S.D. New York
OPINION & ORDER
PAUL A. CROTTY, United States District Judge
TYRONE HICKS ("Hicks") was convicted in 1999 in
Bronx Supreme Court of attempted rape and attempted sodomy of
a woman, "T.T." He was sentenced to eight years and
served his time. Four years after his release, however,
Hicks' conviction was vacated; he had been exonerated by
exculpatory DNA evidence.
Hicks' trial, T.T. was the central witness; she
identified Mr. Hicks as her assailant. Mr. Hicks asserts (as
he did throughout his criminal proceedings) that the New York
Police Department (NYPD) used improper lineup and
identification procedures which led to T.T.'s
identification and his subsequent wrongful conviction. He
seeks $10 million in damages.
Mr. Hicks should be compensated by some public entity for the
eight years of his life he lost due to his conviction. But
who is to be held responsible; on what theory; and which
public entity should pay? No member of the grand jury which
indicted him; nor the Bronx Assistant District Attorneys who
prosecuted him; nor the jurors who convicted him; nor the
judge who conducted pre-trial hearings and the trial; nor the
appellate judges who reviewed and affirmed Mr. Hicks'
conviction can be held accountable - all are immune from
Mr. Hicks brings this 42 U.S.C. § 1983 action against
Defendants the City of New York, three NYPD Detectives
(Marchman, Catalano, and Lynch), and John and Jane Does. But
it appears anomalous to hold the police officers responsible
for an erroneous conviction, in the absence of any
constitutional or other federal law violations, when all of
those who initiated, and subsequently prosecuted, the case
against Mr. Hicks are immune from liability.
Hicks alleges five claims: Malicious Prosecution (Count I),
Denial of Fair Trial (Count II), Failure to Intercede (Count
III), and Civil Rights Conspiracy (Count IV); and State Law
Malicious Prosecution (Count V).
the City of New York and Det. Marchman
“Defendants”) move to dismiss all claims with
prejudice, pursuant to Fed.R.Civ.P. 12(b)(6).The motion is
allegations are insufficient to support any of the five
claims. The allegations concerning the malicious prosecution
claim (Counts I and V) are not sufficient to overcome the
presumption of probable cause to prosecute created by Mr.
Hicks' grand jury indictment. The claim of denial of a
fair trial (Count II) fails for several reasons. First, the
prosecutors and the judge who conducted pre-trial
Wade and independent source hearings were aware of,
and not misled by, the photo array and line-up identification
procedures used with T.T.; thus, the prosecutors'
decision to continue prosecution and/or the judge's
determination to permit T.T.'s line-up and in-court
identifications at trial constituted superseding causes that
severed any liability of the officers. Accordingly, the claim
cannot rest on any alleged suggestive identification
procedures or fabricated evidence in the form of a
manufactured identification. Second, none of the alleged
Brady violations support a denial of fair trial
claim. Neither the analysis results of a latent fingerprint
obtained from T.T.'s doorframe nor other sexual assault
victims' “non-identifications” of Mr. Hicks
were suppressed, as Mr. Hicks' counsel knew of the
essential facts regarding this evidence. The absence of proof
here is not exculpatory. Further, the officers turned over a
second threatening note to the Bronx District Attorney's
Office, and thus cannot be liable under Brady for
its failure to be disclosed to Mr. Hicks. Third, there is no
constitutional right to an “adequate
investigation.” The failure to intercede claim (Count
III) fails as Mr. Hicks does not present any specific facts
showing that any officer failed to intercede in his arrest
and prosecution, nor does he allege that any officer was
aware of any constitutional violations other than those that
the officer himself is alleged to have committed. Finally,
the civil rights conspiracy claim (Count IV) must be
dismissed as Mr. Hicks does not plead facts demonstrating an
agreement between any defendants to deprive him of his
rights, and even if he had, the intracorporate conspiracy
doctrine would bar liability as no facts demonstrate that any
alleged conspiring officers acted due to an improper personal
considering a motion to dismiss, a court accepts a
complaint's factual allegations as true and draws all
inferences in Plaintiff's favor. See McCarthy v. Dun
& Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). A court must only “‘assess the legal
feasibility of the complaint, not  assay the weight of the
evidence which might be offered in support
thereof.'” GVA Mkt. Neutral Master Ltd. v.
Veras Capital Partners Offshore Funds, Ltd., 580
F.Supp.2d 321, 327 (S.D.N.Y. 2008) (quoting Eternity
Global Master Fund Ltd. v. Morgan Guar. Trust Co. of
N.Y., 375 F.3d 168, 176 (2d Cir. 2004)). But the factual
allegations must “raise a right to relief above the
speculative level” and cross “the line from
conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). Thus, a pleading
must allege more than “labels and conclusions” or
a “formulaic recitation of the elements of a cause of
action;” facts “merely consistent with a
defendant's liability” are insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555) (internal quotations and
considering a Rule 12(b)(6) motion to dismiss, a court may
consider documents referenced in the complaint, documents
relied on by the plaintiff in bringing the action and are
either in plaintiff's possession or of which plaintiff
knew when bringing suit, or matters of which judicial notice
may be taken. Shabazz v. Kailer, No. 15-CV-2798
(JGK), 2016 WL 4258134, at *1 (S.D.N.Y. Aug. 12, 2016);
Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776
(2d Cir. 2002). Thus, a court “need not accept as true
an allegation that is contradicted by documents on which the
complaint relies.” In re Bristol-Myers Squibb Secs.
Litig., 312 F.Supp.2d 549, 555 (S.D.N.Y. 2004).
Complaint's factual allegations are taken as
early morning hours of February 23, 1998, a man attempted to
rape T.T., a 27-year-old female, while she was standing in
front of an apartment building at 2303 Valentine Ave., Bronx,
NY; he threatened to “put her to sleep, ” while
squeezing her throat. Compl. at ¶¶ 24-26, 30.
T.T.'s vigorous resistance attracted tenants'
attention, one of whom called 911 and described the
perpetrator as “male, black . . . bald, with a
mustache.” Id. at ¶¶ 27-29. The
perpetrator ran away, and T.T. described him to responding
police as “male/black, large-in-build . . . between
5'11” and 6'0” tall[, ] 25 years old[,
]” with a “bald head and mustache” and a
“‘pocked mark' face.” Id. at
¶ 30. T.T. was taken to a hospital where technicians
collected biological material from underneath her
fingernails, which she had used to resist her attacker.
Id. at ¶¶ 31-32. At this time, however,
the amount was insufficient to test for DNA. Id. at
that morning, Marchman brought T.T. to the
“CATCH” unit to review photographs. Id.
at ¶ 34. Marchman directed the CATCH officer to select
and show T.T. photographs of “large-in-build black men
arrested in the 46th precinct” for any crime
within the past six years. Id. at ¶ 35. If his
directions were followed, the selection would have included
Hicks, as he was convicted of drug offenses within that time
period. Id. at ¶ 36. But Marchman later
“false[ly] and misleading[ly]” testified at a
pre-trial hearing that Hicks' photograph was
“definitely not in the group of photographs T.T.
viewed, ” despite admitting that “he did not
select . . . [nor] view the photographs, ” and
“was only in the room with T.T. intermittently, and
thus would have had no way to ascertain what CATCH
photographs T.T. saw.” Id. at ¶¶
38-39, 41. T.T. did not identify anyone from these
photographs as her assailant. Id. at ¶ 37. This
CATCH photo array was not preserved. Id. at ¶
February 27, 1998, T.T. helped a police artist create a
sketch of her attacker, subsequently enlarged into a poster,
that showed “a bald man with a round face and
distinctively narrow eyebrows . . . and note[d] that the
perpetrator was between 30-35 years old, 5'11”, 200
pounds, and bald.” Id. at ¶ 43.
were concurrently investigating two other rapes that had
occurred around the same time and in the same area, which
they believed T.T.'s attacker, referred to as the
“Bronx Rapist, ” had also committed. Id.
at ¶¶ 45-50; see ECF 28, Ex. I at
March 6 and 11, 1998, Marchman showed T.T. additional photo
arrays from which she did not identify anyone as her
assailant. Compl. at ¶ 51. These photo arrays were not
March 11, 1998, T.T told police that someone had left a note
under her apartment door, written in pencil on torn brown
paper, threatening: “I know where you are. I will put
you to sleep. Remember.” Id. at ¶¶
68-69. As this language was similar to that used by
T.T.'s assailant during her attack, police determined
that the attacker had left the note. Id. at ¶
70. The police checked the paper note for fingerprints, but
that procedure “destroyed the graphite
lettering.” Id. at ¶ 73. This precluded
any handwriting analysis. Id. Thus, Hicks “was
prevented from showing the jury he did not write the
note.” Id. Detectives obtained a
“latent fingerprint” from T.T.'s doorframe
that purportedly did not match Hicks' prints.
Id. at ¶¶ 71, 74. Police failed to
disclose the exclusionary results, see Id. at ¶
75, but at least by the time of trial, Hicks' counsel
possessed a police report “that noted that a
fingerprint was lifted from [T.T.'s] door and that it was
being sent for analysis.” ECF 29 at 20.
March 13, 1998, Detective Catalano informed Marchman that a
“source” had “called in a tip alleging Mr.
Hicks resembled the poster.” Compl. at ¶ 52.
“[N]o information about the tipster was provided to the
Office of the [Bronx] District Attorney” (hereinafter,
the “Prosecutors”). Id. at ¶ 53.
Defendants told the Prosecutors that “the tipster was
Mr. Hicks' mother, ” which was a “total
fabrication.” Id. at ¶ 60. Newspapers
later reported that the Hicks' “parents had called
in the tip.” Id.
March 17, 1998, Marchman showed T.T. twelve photographs,
including one of Hicks, despite “conducting no
investigation regarding Mr. Hicks, ” who had been
placed on parole approximately three months prior for selling
drugs and had never been arrested nor charged with a sexual
assault or violent crime. Id. at ¶¶ 54-56.
Due to Hicks' parole status, the photograph was current
and would have depicted Hicks as 41 years old and not bald.
Id. at ¶ 54. Marchman allegedly told T.T.
“that a credible tipster - perhaps even a family member
- suggested Mr. Hicks was the person depicted in [her] sketch
. . . [and that he] was on parole.” Id. at
¶ 56. Marchman did not tell the Prosecutors that he had
given T.T. this information. Id. at ¶ 60. T.T.
subsequently selected Hicks' photo. Id. at
¶ 56. This photo array was not preserved nor recorded;
Hicks alleges that “police destroyed all evidence and
documentation of the identification procedures.”
Id. at ¶¶ 58-59.
T.T., along with two other sexual assault victims, viewed a
line-up which included Hicks. Id. at ¶ 62; ECF
29 at 4. The two women “who viewed the
line-up without having first seen the suggestive photographic
arrays declared that [Hicks] was not the
rapist.”Compl. at ¶¶ 61-62, 65; ECF 29
at 4. T.T. identified Hicks as her perpetrator, and Hicks was
charged with her attempted rape. Compl. at ¶ 62; ECF 29
allegedly “falsely reported” to the Prosecutors
that Hicks “bragged he was the ‘Bronx Rapist,
'” despite Hicks consistently having protested his
innocence. Compl. at ¶ 64.
jury indicted Hicks on April 3, 1998. ECF 28, Ex. E.
April 23, 1998, T.T. found a second threating note, similarly
written and constructed as the first note, about which
Detective Lynch interviewed T.T. Compl. at ¶¶
76-78. This note was found in 2010 in the Prosecutors'
files, pursuant to a search requested by Hicks'
post-conviction counsel. Id. at ¶ 76; Oral Arg.
Tr. at 32:10-16. It was not in the original trial file and
was not disclosed to Hicks or his counsel prior to its
discovery in 2010. Compl. at ¶ 76. Hicks was thus unable
to request a handwriting analysis or forensic testing;
provide an alibi for the time during which it was left at
T.T.'s apartment; or argue that he did not write nor
leave the note. Id. at ¶ 80. The Prosecutors
prepared a report alleging witness tampering. Id. at
13, 14, and June 24, 1999, the court held pre-trial
Wade and independent source hearings (collectively,
the “Pre-Trial Hearings”). Id. at ¶
38; ECF 29 at 4-5. The Wade hearing sought to
determine the admissibility of the pre-trial identification
procedures used. Compl. at ¶ 38; ECF 29 at 4-5. Marchman
testified about the various photos used and the line-up
procedures, as well as the sketch. Compl. at ¶¶
38-40; ECF 29 at 4-5. The judge deemed the March 17, 1998
unpreserved photo array suggestive as a matter of law. ECF
28, Ex. B 112:5-9; ECF 29 at 5. An independent source hearing
was then held. See ECF 28, Ex. B. at 68-123. T.T.
testified about the attack; that Marchman did not tell her
anything, other than to review the photo array; and that
Defendants did not tell her anything about the individuals in
the line-up. ECF 28, Ex. B at 95-97, 112, 115. The judge
determined that the sketch was sufficiently similar to Hicks,
notwithstanding certain discrepancies, that he could possibly
be the perpetrator, and the question of whether T.T.
“clearly identified the wrong person” was for the
trier of fact to resolve. ECF 28, Ex. B at 147:8-10,
148:12-13; ECF 29 at 5. The judge found (a) T.T. credible;
(b) that the line-up was fair; and (c) an independent source
for T.T.'s line-up and in-court identifications of Hicks
based on her ability to observe her assailant during the
attack. ECF 28, Ex. B at 148:17-20, 150:16-21, 152:2-18; ECF
29 at 5. The judge allowed T.T.'s in-court and line-up
identifications to be introduced at trial. ECF 28, Ex. B at
152:11-15; ECF 29 at 5.
Hicks' trial in October 1999, “T.T.'s testimony
was the only evidence of Mr. Hicks' guilt.” Compl.
at ¶¶ 81, 88. Immediately after the attack, T.T.
told the police that that her assailant had “a bald
head and mustache, . . . was between 5'11” and
6'0” tall; 25 years old; and had a ‘pocked
mark' face.” Id. at ¶ 30. At trial,
T.T. testified that the perpetrator was “perhaps
between 5'8” and 5'10” and that he might
have weighed only between 160 and 170 pounds.”
Id. at ¶ 83. Hicks did not match either
description; at the time of his arrest, Hicks was
“6'2” . . .weighed 210 pounds . . . 41 years
old . . . did not have a mustache . . . [nor] a pock-marked
face . . . not bald . . . [and has] Alopecia Areata, ”
which “leaves bald patches unevenly distributed on the
afflicted person's cranium” that “create a
distinct and unique look.” Id. at ¶¶
84-86. Indeed, “[a]rresting police officers described
Mr. Hick's head hair as ‘short' . . . not . . .
bald.” Id. at ¶ 86. Hicks' son-in-law
and grandfather testified as alibi witnesses. Id. at
¶ 89. Hicks maintained his innocence throughout, and
after a jury convicted Hicks, the sentencing judge