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Hicks v. City of New York

United States District Court, S.D. New York

February 7, 2017

TYRONE HICKS, Plaintiff,

          OPINION & ORDER

          HON. PAUL A. CROTTY, United States District Judge

         Plaintiff TYRONE HICKS ("Hicks") was convicted in 1999 in Bronx Supreme Court of attempted rape and attempted sodomy of a woman, "T.T."[1] 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.

         At Mr. 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.

         Perhaps 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 suit.[2]

         Instead 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.

         Mr. 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).[3]

         Defendants the City of New York and Det. Marchman (“Marchman”) (collectively, “Defendants”)[4] move to dismiss all claims with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6).[5]The motion is GRANTED.

         The 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 motivation.

         I. Legal Standard

         In 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 citations omitted).

         In 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).

         II. Background

         The Complaint's factual allegations are taken as true.[6]

         In the 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 ¶ 32.

         Later 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.[7] Id. at ¶ 37. This CATCH photo array was not preserved. Id. at ¶ 40.

         On 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.

         Police 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 318:11-13.

         On 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 preserved.[8] Id.

         On 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.”[9] 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.

         On 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.

         On 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.

         Subsequently, T.T., along with two other sexual assault victims, viewed a line-up which included Hicks. Id. at ¶ 62; ECF 29 at 4.[10] The two women “who viewed the line-up without having first seen the suggestive photographic arrays declared that [Hicks] was not the rapist.”[11]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 at 4.

         Police allegedly “falsely reported” to the Prosecutors that Hicks “bragged he was the ‘Bronx Rapist, '” despite Hicks consistently having protested his innocence. Compl. at ¶ 64.

         A grand jury indicted Hicks on April 3, 1998. ECF 28, Ex. E.

         On 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 ¶ 79.

         On May 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.

         At 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 “worried ...

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