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Morgan v. County of Nassau

United States District Court, E.D. New York

February 17, 2017

JAMES G. MORGAN and JEREMY P. SAPERSTEIN, Plaintiffs,
v.
COUNTY OF NASSAU, MICHAEL J. LEONE, “FRANK” FUSAR, “MICHAEL” McGAR, and “JOHN DOE # 1-12 being and intended to be all the police officers involved in the arrest of plaintiffs, FRANK A. RUVOLO, “JOE” JACOBSON, and “RICHARD ROE # 1-12” being and intended to be all the police officers involved in the interrogation and processing of the arrest, and KATHLEEN M. RICE, Defendants.

          MEMORANDUM & ORDER

          Joan M. Azrack United States District Judge

         Plaintiffs have brought this action alleging false arrest, malicious prosecution, and other federal claims. Before the Court are defendants' motion for summary judgment on all claims and plaintiffs' cross-motion for summary judgment on their false arrest claim. Also before the Court are plaintiffs' motions seeking: (1) to reopen discovery; (2) to compel defendants to produce certain discovery; (3) an adverse inference based on defendants' alleged failure to produce that discovery; (4) to strike defendants' thirteen affirmative defenses; and (5) to amend the caption to add new defendants and correct spelling errors.

         For the following reasons, the Court denies plaintiffs' discovery motions, grants defendants' motion for summary judgment, denies plaintiffs' cross-motion for summary judgment, and denies plaintiffs' remaining motions.

         I. BACKGROUND

         On May 22, 2012, plaintiffs James Morgan and Jeremy Saperstein were arrested and charged with robbery in the second degree and criminal possession of a weapon in the fourth degree, in connection with the attempted armed robbery of Delroy Harris. (Pls.' 56.1 Statement ¶¶ 1, 9, ECF No. 37-2; Defs.' 56.1 Statement ¶¶ 4, 27, ECF No. 41.)[1]

         A. Attempted Armed Robbery and Complainant's 911 Call

         At 1:24 a.m. on May 22, 2012, the Nassau Emergency Operator received a 911 call from a man who was later identified as Delroy Harris. (911 Tr., Aff. of Harry Kutner (“Kutner Aff.”), Ex. 1, ECF No. 37.) Harris told the Operator that “three kids [had] just pulled out a shotgun” on him while he was sitting in his parked car on Locust and Front Street in Uniondale, New York. (Id. at 1:3-4, 3:17-19.) Harris reported that he had parked his car to drop off his friend. Once his friend exited, the “kids” came up to his car, hit his window with a gun, and demanded that he “Give it up!” (Id. at 1:10-11, 1:17-19, 2:1-2, 3:17-19.) He then started his car and drove away. (Id. at 1:20-2:2.) Harris reported that, while driving away, he saw his assailants take off on foot, “probably” towards Front Street. (Id. at 1:13, 2:5-7.) Harris then called 911 while en route to Compass Street and Leslie Lane-also in Uniondale. (Id. at 3:5-4:14, 5:4.)

         During the call, Harris described all three assailants as “black.” (Id. at 2:12.) He reported that all three were wearing black hoodies, while one was wearing khaki pants. (Id. at 2:12-20.) He estimated their ages to be between seventeen and twenty years old. (Id. at 3:1-2.) Although he initially described the weapon as a “shotgun, ” when prompted later, he confirmed only that the three assailants had a “gun.” (Id at 1:3, 2:8-9.)

         B. Police Dispatcher's Radio Communications

         At 1:25 a.m., the Operator reported the attempted robbery over the police communications system. (Nassau Cty. Police Dep't Event Search, Decl. of Pablo Fernandez (“Fernandez Decl.”), Ex. C, ECF No. 42.) The Operator reported “3 YOUTHS PULLED A GUN ON [Harris] TOLD HIM TO GIVE IT UP.” (Id at 1.) The Operator described the assailants as “3 MALES/BLACK, ALL HAD BLACK HOODIES ONE WEARING KHAKI PANTS APPROX 17-20 YOA.” (Id. at 2.) The Operator also reported that the assailants were “LAST SEEN HEADED TOWARD FRONT STREET.” (Id.) It does not appear from the record that the Operator ever communicated that the assailants had a shotgun or had fled the scene of the attempted robbery on foot. (Id at 1-3.) The Operator then helped a police unit locate Harris to get his statement and coordinate a show-up identification. (Id at 2.)

         C. Officer Edward Jacobsen's In-Person Interview With Complainant

         According to the Crime Report, defendant Officer Edward Jacobsen located Harris in front of 408 Leslie Lane in Uniondale at approximately 1:25 a.m. (Nassau Cty. Police Dep't Crime Report (“Crime Report”), Fernandez Decl., Ex. G at 3, ECF No. 42.) Harris reported the following facts to Jacobsen:

• While parked in his vehicle, Harris had been approached by two black males.
• One of the assailants had a firearm and was wearing a “hoodie” and khaki pants. That assailant had pointed the firearm at Harris and stated “Give it up!”
• The second assailant was wearing a “hoodie” and grey sweatpants. That assailant had approached the driver-side door and shouted “Get out of the car! Get out of the car!”
• Harris then put his car in drive and drove away.

(Id.)

         D. The Initial Detention

         At 1:31 a.m., while one police unit was locating Harris, another unit observed the plaintiffs sitting in a car, idling in front of 1066 Front Street in Uniondale. (Id.) The car was parked with its lights on, windows open, and engine running. (Id.) As they approached, Officer Gregory Holgerson and defendant Officer Michael Leone observed three passengers-one driver (later identified as Saperstein), one front seat passenger (not a party in this action), and one rear seat passenger (later identified as Morgan). (Id.) The officers further observed that the driver was white and the two passengers were black. (Id.) As they got closer to the vehicle, the police saw that the rear seat passenger (Morgan) was wearing a black ski mask covered by a blue hooded sweatshirt. (Id.) That passenger was also wearing grey sweatpants. (Nassau Cty. Police Dep't Arrest Report of James Morgan (“Morgan Arrest Report”), Kutner Aff., Ex. 8 at ¶ 000194, ECF No. 37.). They also saw that the driver (Saperstein) was wearing a black and white hooded sweatshirt and black sweatpants, [2] while the front seat passenger (who is not a plaintiff in this action) was wearing a gray hooded sweatshirt and khaki colored pants.[3] (Crime Report at 4; Nassau Cty. Police Dep't Arrest Report of Jeremy Saperstein (“Saperstein Arrest Report”), Kutner Aff., Ex. 8 at ¶ 000011, ECF No. 37.) The three passengers were eating food from McDonald's when the police approached the car. (Grand Jury Testimony of James Morgan (“Morgan Tr.”), Fernandez Decl., Ex. D at 14:14-16, ECF No. 42.)

         All three men were removed from the car and patted down. (Crime Report at 4.) According to the Crime Report, the police then conducted a search of the vehicle, which revealed a black firearm contained in the vehicle's unlocked glove compartment. The police later determined that this firearm was a BB gun. (Id.) According to the Crime Report, the police then handcuffed all three men and brought Harris to the scene for a show-up identification, which is discussed below. (Id.) During this time, multiple police officers had their weapons drawn. (Pls.' 56.1 Statement ¶ 4.)

         E. The Show-Up Identification and Arrest

         At 1:35 a.m., the police escorted Harris to the site where plaintiffs were being detained. (Crime Report at 4.) First, Harris identified the front seat passenger (not a party here) as the assailant who had approached him with a gun and stated “Give it Up!” (Id.) Then Harris identified the driver (Saperstein) as being a “subject in the robbery committed against him” and “one of the three men that walked past [his] car.” (Id.; Supporting Dep. of Delroy Harris (“Harris Dep.”), Kutner Aff., Ex. 8 at ¶ 000045, ECF No. 37.) Lastly, Harris identified the rear seat passenger (Morgan) as the assailant who had approached the driver-side door and shouted “Get out of the car! Get out of the car!” (Crime Report at 4.) Harris later confirmed his identifications via a signed supporting deposition. (Harris Dep.)

         All three suspects were then placed under arrest and transported to the Nassau County Police Department's First Precinct for processing.[4] (Crime Report at 4; Saperstein Arrest Report at ¶ 00011, ECF No. 37; Morgan Arrest Report at ¶ 000194.) At the Precinct, plaintiffs were questioned by the police. (Morgan Tr. at 14:19-22; Grand Jury Testimony of Jeremy Saperstein (“Saperstein Tr.”), Fernandez Decl., Ex. E at 12:22-13:6, ECF No. 42.) Although plaintiffs participated in the interview, (Saperstein Tr. at 12:22-13:20), the police did not obtain any admissions from them, (Crime Report at 3). At some point during the questioning, the officers yelled at the plaintiffs and referred to Saperstein as a “retard.” (See Morgan Tr. at 19:17-19; Aff. of James Morgan dated February 29, 2016 (“Morgan Aff. 2/29/16”) ¶ 6, ECF No. 37.) Plaintiffs contend that Saperstein has a learning disability. (Pls.' 56.1 Statement ¶ 8.)

         F. Indictment and Dismissal

         On June 18, 2012, a Nassau County Grand Jury indicted plaintiffs for robbery in the second degree, New York Penal Law § 160.10, and criminal possession of a weapon in the fourth degree, New York Penal Law § 265.01. (Grand Jury Indictment, Fernandez Decl., Ex. F, ECF No. 42.) Morgan, Saperstein, and the other criminal defendant all testified before the grand jury.[5] (Morgan Tr.; Saperstein Tr.)

         Plaintiffs' indictment was dismissed on September 17, 2012. (Pls.' 56.1 Statement ¶ 14.) However, nothing in the record indicates why the indictment was dismissed.

         G. The “Alibi Evidence”

         In their moving papers, plaintiffs refer to several pieces of allegedly exculpatory evidence. Specifically, plaintiffs mention: (1) a McDonald's receipt bearing a time stamp of 1:17 a.m.; (2) surveillance footage from the McDonald's showing the plaintiffs and bearing a time stamp of 1:20-1:26 a.m.; and (3) surveillance footage along the route from plaintiff Morgan's house to the McDonald's on Front Street showing the plaintiffs (collectively, the “alibi evidence”). If such evidence did, in fact, exist, it would support an alibi for plaintiffs. Plaintiffs could not have conducted the attempted armed robbery at Locust and Front Street at 1:24 a.m. if they were at the McDonald's from 1:20 a.m. until 1:26 a.m. (See 911 Tr. at 1:3-4, 3:17-19.)

         Neither the receipt nor any of the surveillance footage is in the record. Instead, plaintiffs cite to various pieces of indirect evidence concerning the receipt and surveillance footage. For example, Morgan testified, in the grand jury, that defendant Detective Frank Ruvolo told Morgan that he had seen the McDonald's surveillance video and that the plaintiffs were on the video. The Court will address this evidence more fully below, in the discussion of plaintiff's malicious prosecution claim.[6] See infra II.D.4.i.

         H. Procedural History

         Plaintiffs Morgan and Saperstein commenced this action on November 25, 2013. (Compl., ECF No. 1.) Plaintiffs bring claims against the County of Nassau, Michael J. Leone, Matthew Fusaro (named as “Frank” Fusar in the complaint), “Michael” McGar, John Does 1-12, Frank A. Ruvolo, Edward Jacobsen (named as “Joe” Jacobson in the complaint), Richard Roes 1-12, and Kathleen Rice (collectively, the “County defendants”). Plaintiffs assert violations of the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983.[7] Specifically, plaintiffs contend: (1) that they were falsely arrested and imprisoned, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments; (2) that they were maliciously prosecuted in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments; (3) that their rights to freedom of speech and association were infringed in violation of the First and Fourteenth Amendments; and (4) that they were subjected to unreasonable searches in violation of the Fourth and Fourteenth Amendments.

         This case was initially assigned to District Judge Joseph F. Bianco and Magistrate Judge Gary R. Brown. On February 25, 2014, Judge Brown issued a Scheduling Order setting October 31, 2014 as the deadline for completion of all discovery. (ECF No. 13.) On May 15, 2014, plaintiffs submitted a letter asking the Court to adjourn a settlement conference because certain records related to the “underlying criminal prosecution” had not been provided. (ECF No. 15). Plaintiffs, however, never filed a motion to compel before Judge Brown to obtain such records. On September 19, 2014 defendants filed a letter motion to compel plaintiffs to furnish “complete and satisfactory responses to County Defendants First Combined Demands.” (ECF No. 20.) This letter motion was withdrawn on September 23, 2014 after the parties conferred and agreed to a new deadline for production of those responses. (ECF No. 21.) Discovery then closed on October 31, 2014. During discovery, plaintiffs never moved to compel defendants to produce any discovery, including the “alibi evidence” or any evidence related to the post-arrest investigation of plaintiffs. It also appears that plaintiffs never deposed the County defendants or Harris, the victim.

         On November 21, 2014, defendants submitted a pre-motion conference letter to Judge Bianco requesting leave to file a motion for summary judgment. (ECF No. 22.) Plaintiffs opposed in a letter dated December 15, 2014. (ECF No. 23.) Plaintiffs' opposition rested on the merits of each of their claims and did not mention any outstanding discovery requests. (Id.) After a conference held on December 16, 2014, Judge Bianco set a briefing schedule for defendants' motion for summary judgment and scheduled oral argument on the motion. (ECF No. 24.) The case was then reassigned to the undersigned on January 16, 2015.

         Defendants appear to have served their summary judgment motion on plaintiffs on January 20, 2015. (ECF No. 40.) Plaintiffs submitted a letter on April 17, 2015, requesting an adjournment of the briefing schedule, citing plaintiffs' counsel's health. (ECF No. 27.) This request did not mention any outstanding discovery issues. The Court granted plaintiffs' request and adjourned oral argument indefinitely, to be scheduled only if necessary. Plaintiffs then requested eight more adjournments of the briefing schedule, extending the deadline for the fully briefed motion to March 15, 2016. (ECF No. 36). Plaintiffs cited various reasons for the requested extensions, but did not once mention outstanding discovery issues.

         On March 2, 2016, plaintiffs submitted a cross-motion for summary judgment. This cross-motion included, inter alia, several motions to compel the production of evidence from defendants. Plaintiffs also moved to amend the complaint to name new defendants in the place of certain “John Doe” and “Richard Roe” defendants.

         On May 9, 2016, defendants filed additional briefing for the various motions filed by the parties. (ECF Nos. 40-45.) Then, after requesting four more extensions, plaintiffs filed additional briefing on September 22, 2016. (ECF No. 51-52.)

         After reviewing the submissions in the pending motions, the Court noticed that defendants' opening brief in support of their summary judgment motion was missing several pages. (ECF No. 43.) At a conference with all parties, the Court ordered defendants to submit the omitted pages and permitted plaintiffs an opportunity to respond to the arguments contained therein. (ECF No. 55.) This additional briefing was completed on December 27, 2016.

         II. DISCUSSION

         A. Plaintiffs' Motion to Reopen Discovery and Motions to Compel

         Plaintiffs have asked the Court to reopen discovery and stay decision on the summary judgment motions. In particular, plaintiffs move to compel defendants to produce: (1) the alibi evidence; and (2) materials related to the post-arrest investigation and decision to dismiss the indictment against plaintiffs, including the complete grand jury testimony (collectively, the “post-arrest investigation evidence”). Plaintiffs allege that defendants have “concealed” these materials. (Pls.' Att'y Aff. in Reply ¶ 1, ECF No. 51.) Plaintiffs also request an opportunity to depose the defendants, who apparently were never deposed during discovery.

         Plaintiffs also argue that, if the Court denies their request to reopen discovery, the Court should draw an adverse inference against defendants because of their non-production of the alibi and post-arrest investigation evidence. Plaintiffs also request that defendants' affirmative defenses be stricken because of defendants' alleged discovery violations.

         Defendants oppose plaintiffs' discovery motions, arguing: (1) that plaintiffs have failed to demonstrate good cause why discovery should be reopened and (2) that plaintiffs have not established that defendants failed to comply with their discovery obligations.

         The Court denies plaintiffs' request to reopen discovery because plaintiffs have failed to demonstrate good cause. Additionally, the Court declines to draw an adverse inference against defendants or to strike defendants' affirmative defenses.

         1. Standard

         Federal Rule of Civil Procedure 16(b)(4) permits a Court to modify an existing scheduling order “only for good cause . . . .” Fed.R.Civ.P. 16(b)(4). “A finding of good cause depends on the diligence of the moving party.” Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)); see also Rent-A-Center Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (“In other words, the movant must show that deadlines cannot be reasonably met despite its diligence.”). In the exercise of its discretion under 16(b), a court may also consider prejudice to the non-moving party. Kassner v. 2d Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007). District courts regularly deny proposed modifications of scheduling orders that would require the reopening of discovery. See, e.g., Kenny v. Cty. of Suffolk, 05-CV-6112, 2008 WL 4936856, at *1-2 (E.D.N.Y. Nov. 17, 2008) (declining to reopen discovery where counsel had “ample opportunity to pursue discovery” but made a motion to reopen discovery ten months after the discovery deadline); cf. Grochowski, 318 F.3d at 86 (affirming denial of leave to amend complaint under Rule 16 when movant had delayed over a year, discovery was complete, and a summary judgment motion was pending); Morritt v. Stryker Corp., 973 F.Supp.2d 177, 194-96 (E.D.N.Y. 2013) (finding prejudice where proposed amended complaint would require further discovery, discovery was already complete, and summary judgment motion was pending).

         2. Plaintiffs Have Not Demonstrated Good Cause to Reopen Discovery

         Pursuant to Judge Brown's February 24 Scheduling Order, discovery closed on October 31, 2014. (ECF No. 13.) Plaintiffs did not move to compel production of additional discovery until March 2, 2016. (ECF No. 37.)

         Plaintiffs have failed to demonstrate good cause because they were not diligent in their pursuit of the requested discovery. Plaintiffs communicated with the Court numerous times during the discovery period and after it closed, but waited over a year and half to raise the instant discovery requests. (See ECF Nos. 15, 23, 26, 27, 28, 29, 30, 32, 33, 35, 36, 37.) Plaintiffs had “ample opportunity to pursue discovery;” they were simply delinquent in doing so. See Kenny, 2008 WL 4936856, at *2. Furthermore, because the discovery deadline has already passed and defendants have submitted a motion for summary judgment, the Court finds that reopening discovery at this point would unduly prejudice defendants. See Morritt, 973 F.Supp.2d 177.

         Accordingly, plaintiffs' motions to reopen discovery and compel defendants to produce additional evidence are denied.[8]

         3. Plaintiffs' Requests for an Adverse Inference and Motion to Strike Defendants' Defenses are Denied

         In the event their discovery motions are denied, plaintiffs request an adverse inference against defendants based on their alleged failure to produce the alibi and post-arrest investigation evidence. Plaintiffs also request that defendants' affirmative defenses be stricken.

         To the extent that plaintiffs contend that defendants engaged in spoliation, that argument is meritless. Plaintiffs offer no evidence that defendants have destroyed relevant evidence that was in their possession.[9]

         Plaintiffs also assert that they are entitled to an adverse inference because defendants allegedly breached their discovery obligations by not adequately responding to plaintiffs' discovery demands. This argument is similarly meritless.

         Once plaintiffs served their discovery requests on defendants, defendants had thirty days to respond or object to those requests. Fed.R.Civ.P. 34(b)(2)(A) & (C). There is no dispute that defendants' objections to plaintiffs' requests were timely. If plaintiffs wished to pursue the requested discovery over defendants' objections, plaintiffs should have moved to compel pursuant to Rule 37 before the deadline to complete discovery. Plaintiffs failed to do so during the discovery period. Instead, plaintiffs first moved to compel in their cross-motion for summary judgment, filed on March 2, 2016, more than one year and five months after discovery had closed. (ECF Nos. 13 & 37.) The notion that plaintiffs should receive an adverse inference, or that the Court should strike defendants' affirmative defenses, when plaintiffs failed to timely pursue a motion to compel is absurd. The Court denies plaintiffs' request for an adverse inference and motion to strike defendants' affirmative defenses.

         In light of the Court's decision to deny plaintiffs' motion to reopen discovery, motions to compel, and request for an adverse inference, the Court will decide the pending ...


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