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Rhooms v. City of New York

United States District Court, E.D. New York

March 31, 2017

SHANE RHOOMS, Plaintiff,
CITY OF NEW YORK, ROBERT ORTLIEB, Individually, ROBERT HENDERSON, Individually, JOSEPH SEMINARA, Individually, DEVON FREED, Individually, and JOHN DOE 1, Individually, the name John Doe being fictitious, as the true name is presently unknown, Defendants.


          PAMELA K. CHEN, United States District Judge.

         Plaintiff Shane Rhooms filed this action pursuant to 42 U.S.C. § 1983 and New York common law to seek damages based on his arrest, detention, and prosecution in September 2010. Rhooms alleges that one detective and three field officers of the New York Police Department (“NYPD”)-Detective Devon Freed, Sergeant Joseph Seminara, Lieutenant Robert Henderson, and Lieutenant Robert Ortlieb (“Individual Defendants”)-violated his civil rights by arresting him, detaining him, and maliciously prosecuting him without probable cause. Rhooms also alleges that the City of New York (“City”) is vicariously liable for the Individual Defendants' misconduct.

         Before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. The Court DENIES Defendants' motion in its entirety, except as to Plaintiff's failure to intervene claim, which he has withdrawn in response to Defendants' motion. The parties shall submit a proposed joint pretrial order no later than May 15, 2017.

         I. Background

         A. Relevant Facts[1]

         On September 5, 2010, Rhooms, his cousin, and some friends went to a Manhattan nightclub, arriving at the club sometime around midnight. (Pl. 56.1 ¶ 1.) Rhooms was continuously present at the club from approximately midnight until 5:00 a.m. on September 6, 2010. (Pl. 56.1 ¶ 2.)

         Meanwhile, at approximately 12:40 a.m. that night, four officers of the NYPD- Defendants Henderson, Seminara, and Ortlieb (“Officer Defendants”), and a fourth officer not named as a defendant-were on patrol in a police vehicle in the vicinity of 222 Lenox Road in Brooklyn. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 3.) Henderson was seated in the front passenger seat of the vehicle, Seminara was seated in the rear passenger-side seat of the vehicle, Ortlieb was seated in the rear driver's-side seat of the vehicle, and the fourth non-defendant officer was driving the vehicle. (Pl. 56.1 ¶¶ 5, 11, 18.) The vehicle was traveling at approximately 10 miles per hour down Lenox Road when Henderson's attention was drawn by the smell of marijuana to a group of individuals standing close to an alley near 222 Lenox Road. (Def. 56.1 ¶ 7; Pl. 56.1 ¶ 5.) Henderson testified that the group consisted of three men and a woman (Def. 56.1, Ex. G, at 122:20-24); Ortlieb testified that the group consisted of four men (Pl. 56.1, Ex. 3, at 116:15 117:3); and Seminara testified that the group consisted of some number of individuals “in the realm of one, two, three, four, five, however many there were” (Pl. 56.1, Ex. 4, at 149:6-14).

         As the Officer Defendants' vehicle approached the group, one of the men adjusted his waistband and stepped behind the group, shielding his face from the officers' view. (Pl. 56.1 ¶ 6.) According to the Officer Defendants, the man adjusted his waistband in a manner that suggested he was carrying a knife or firearm. (Def. 56.1, Ex. G, at 128:12-25.) After adjusting his waistband, the man stepped forward again, facing the officers. (Pl. 56.1, Ex. 4, at 145:13-22.) In the span of this few seconds, while the officers' vehicle was still moving, each Officer Defendant had a brief opportunity to view the man's face in the dim lighting of a nearby street lamp.[2] The driver then stopped the vehicle, and Officer Henderson exited, stating in substance, “police, hold up.” (Def. 56.1 ¶ 9.)

         As Henderson exited the vehicle, the man who had adjusted his waistband turned away and began running down an alleyway, with his back towards the officers. (Def. 56.1 ¶¶ 9-10; Pl. 56.1 ¶ 8.) Defendants Henderson, Seminara, and Ortlieb, in that order, pursued the man down the alleyway. (Pl. 56.1 ¶ 26.) In the course of that pursuit, the three officers fired a total of nineteen rounds at the man as he fled. (Pl. 56.1 ¶ 35.) According to the officers, they fired because, as the man was running away, he pulled out a black revolver and fired six rounds in their direction, some of which hit the alley walls around them. (Def. 56.1 ¶ 10; Pl. 56.1 ¶¶ 27-36.) The pursuit ended when the man entered a nearby building and the officers did not follow him in. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 31.)

         Shortly after the incident, officers in the NYPD Crime Scene Unit conducted a thorough search of the crime scene. (Pl. 56.1 ¶ 37.) The search revealed nineteen shell casings and bullet fragments, all of which were consistent with the Officer Defendants' firearms. (Pl. 56.1 ¶ 37.) The search did not uncover any other bullet casings or fragments at the scene-in other words, the search did not uncover any casings or fragments corresponding to the six shots that were purportedly fired at the officers by the man they were pursuing. (Pl. 56.1 ¶¶ 37-38.) Other than the deposition testimony and other statements by Officers Henderson, Seminara, and Ortlieb, Defendants do not identify any record evidence indicating that the man whom the officers pursued at 222 Lenox Street fired at them.

         After the incident, the Officer Defendants were unable to provide a detailed description of the man they had pursued. The most detailed description provided by the three officers was from Ortlieb, who could only describe the man as a black male wearing dark clothing. (Pl. 56.1 ¶¶ 40-42.)

         Within an hour of the incident, Defendant Freed was assigned as the lead investigator for the incident. (Pl. 56.1 ¶ 44.) Freed examined the scene and interviewed witnesses who were in the vicinity of 222 Lenox Street at the time of the incident. (Pl. 56.1 ¶¶ 45-46.) In the hours after the incident, Freed interviewed approximately ten witnesses, in addition to the Officer Defendants. (Def. 56.1, Ex. M.)

         None of the interviewed witnesses identified Plaintiff Rhooms as the person who fled from the police at 222 Lenox Street. (Pl. 56.1 ¶ 57.) The only link between the incident and Rhooms was that: (1) in an interview with non-defendant Detective Gregory Barrett within a few hours after the incident, a witness named Hopeton Clarke said that he'd been hanging out earlier in the day near 222 Lenox Street with someone named Jason Brown (Def. 56.1 ¶ 23; Def. 56.1, Ex. M, at NYC209); and (2) in a later interview that night with Defendant Freed, Jason Brown stated that he had been hanging out with someone named “Shane” “earlier in the day” (Pl. 56.1 ¶ 57; see also Pl. 56.1, Ex. 6, at 154:13-20). Brown did not tell Detective Freed how much “earlier in the day” he had hung out with “Shane, ” nor did he tell Freed where the two had hung out. (Pl. 56.1, Ex. 6, at 153:13-154:25.) What was clear, however, is that Brown said nothing to indicate that the “Shane” he had seen “earlier in the day” was the man whom the police pursued at 222 Lenox Street. (Pl. 56.1, Ex. 6, at 154:13-20.) Based on Brown's statements, Defendant Freed ran a search of police records for any “Shane” associated with the area around 222 Lenox Street. (Def. 56.1 ¶ 25.) The search yielded a record for Plaintiff Rhooms associated with a prior arrest, which contained an arrest photo of Rhooms. (Def. 56.1 ¶ 25.) Freed showed the photograph to Brown, who stated that the man depicted in the photograph was the “Shane” with whom he had been hanging out “earlier in the day.” (Def. 56.1 ¶ 29.)

         After interviewing Brown, Detective Freed interviewed Trevor Perez, a resident of 222 Lenox Road who was in the vicinity of his residence when the shooting incident occurred. (Def. 56.1 ¶¶ 31-32.) Perez knew Rhooms and knew that Rhooms was not in the vicinity of 222 Lenox Street at the time of the shooting. (Def. 56.1 ¶ 31.) During the interview, which took place in the early morning of September 6 in the presence of at least one other police officer, Freed took unlawful, coercive actions to force Perez into signing a false statement identifying Rhooms as the man who fled from the Officer Defendants at 222 Lenox Street. (Def. 56.1 ¶ 31.) The coercive actions included holding Perez handcuffed on the ground for an extended period of time, keeping Perez in an interrogation room, interrogating Perez in loud and aggressive tones, touching Perez in a threatening and intimidating manner, and denying Perez food and drink. (Pl. 56.1 ¶¶ 48-49.) Perez was shown a single photograph-the arrest photo of Plaintiff Rhooms that had been shown to Jason Brown-and was told that he would not be allowed to leave the police precinct until he identified the man in the arrest photo as the shooter at 222 Lenox Street. (Pl. 56.1 ¶¶ 51-53.) Feeling threatened and without any reasonable alternatives, Perez wrote and signed the following statement on Plaintiff Rhooms's arrest photo: “This is the guy that I saw running from the cops with the gun. Dress [sic] in all black.” (Def. 56.1, Ex. N.)

         After coercing Perez to falsely identify Rhooms, Defendant Freed asked Detective Barrett to construct a six-photo array that included Rhooms's arrest photo. (Pl. 56.1 ¶ 60; Def. 56.1 ¶ 39.) Had Perez not been coerced into implicating Rhooms, there would have been no basis to construct a photo array that contained Rhooms's photograph. (Pl. 56.1 ¶ 61.) Freed showed the photo array to Defendant Seminara at approximately 5:00 a.m. that same morning, September 6, 2010. (Pl. 56.1 ¶ 62.) There were no other officers present when Freed showed the photo array to Seminara. (Id.) Defendant Seminara picked Rhooms's photograph out of the lineup, identifying him as the man who fled from the Officer Defendants at 222 Lenox Street. (Pl. 56.1 ¶ 65.)

         Later that morning, based purportedly on the photo array identification, Detective Freed prepared a “wanted” poster with Rhooms's arrest photo displayed prominently in the center. (Pl. 56.1 ¶ 66; Pl. 56.1, Ex. 27.) Above the photograph, in large lettering, the poster stated, “WANTED FOR Attempted Murder of a POLICE OFFICER.” (Pl. 56.1, Ex. 27.) Beneath the photograph, the poster stated, “On 09/06/2010 at approximately 0030 hours at 222 Lenox Road Shane Rhooms did exchange gunfire with uniformed members of the service who were attempting to stop him. Above perpetrator is known to be armed and dangerous.” (Pl. 56.1, Ex. 27.) The poster was displayed in the police precinct later that morning, i.e., the morning of September 6, 2010, and Defendants Ortlieb, Henderson, and Seminara all had access to the area where it was displayed. (Pl. 56.1 ¶ 70.) Officer Henderson saw the poster on September 6, 2010. (Pl. 56.1 ¶ 69.)

         Later in the day on September 6, 2010, Plaintiff Rhooms learned through a third party that he was wanted for questioning by the police. (Def. 56.1 ¶ 46.) At around 6:00 p.m. that day, Rhooms reported voluntarily to the NYPD's 67th precinct, where he was arrested. (Pl. 56.1 ¶ 72.) Rhooms's cousin had accompanied Rhooms to the precinct to verify that Rhooms had been at a Manhattan nightclub during the 222 Lenox Street incident in Brooklyn, and, therefore, could not possibly be the man who fled from the Officer Defendants the night before. (Pl. 56.1 ¶ 71.) The police questioned Rhooms and his cousin separately, and both Rhooms and his cousin gave consistent accounts of Rhooms's whereabouts the night before. (Pl. 56.1 ¶ 76.) Plaintiff also informed the detectives who questioned him (including Detective Freed) that the nightclub in question had surveillance cameras that would confirm Plaintiff's whereabouts the night before. (Pl. 56.1 ¶ 77.) Rhooms also turned over his subway pass and cellphone to the police. (Pl. 56.1 ¶¶ 77-79.) The detectives, including Defendant Freed, did not obtain security footage from the nightclub, did not examine Rhooms's subway travel history, and did not examine the location history of Rhooms's cellphone. (Pl. 56.1 ¶¶ 79-81.)

         The next day, September 7, 2010, Rhooms was placed in three identification lineups, one for each of the Officer Defendants. (Def. 56.1 ¶ 47.) Before the lineups, Rhooms was asked which position in the lineup he wanted, and he selected the third position. (Def. 56.1 ¶ 48.) Rhooms was the only man in the lineup wearing dark pants. (Pl. 56.1 ¶ 83; Def. 56.1, Ex. M, at 4085-4087.) In succession, Defendants Henderson, Ortlieb, and Seminara each positively identified Rhooms as the man who fled from them at 222 Lenox Street. (Def. 56.1 ¶ 47.) The identifications occurred within minutes of one another, all in the same identification room, without rearranging the men in the lineup. (Def. 56.1 ¶¶ 47-48.)

         Later that day, a criminal court complaint was issued by the Kings County District Attorney's Office based on information provided to that office by Defendant Ortlieb. (Def. 56.1 ¶ 49.) Defendants Henderson, Seminara, and Freed also provided information to the District Attorney's Office that played a role in its decision to prosecute Rhooms. (Pl. 56.1 ¶¶ 97-99.) In particular, Defendant Freed falsely told the prosecutor assigned to the case that a confidential informant had identified Rhooms as the shooter at 222 Lenox Street. (Pl. 56.1 ¶ 101.) None of the Defendants told the District Attorney's Office about Freed's coercion of Perez, or the fact that a “wanted” poster was posted before the lineup identifications by Defendants Henderson, Seminara, and Ortlieb.

         Later that week, Rhooms was indicted on twenty criminal counts, including multiple counts of attempted murder in the first degree. (Def. 56.1 ¶ 50.) Defendants Freed, Henderson, and Seminara all testified before the grand jury in the course of obtaining the indictment. (Def. 56.1 ¶¶ 50-53.) After the indictment was returned by the grand jury, Rhooms was formally arrested and arraigned, and then imprisoned at the Rikers Island Prison Complex (“Rikers Island”). (Pl. 56.1 ¶ 94.) Plaintiff was subject to handcuffing during the arrest. (Pl. 56.1 ¶ 95.)

         Weeks after Rhooms was indicted, the Assistant District Attorney (“ADA”) handling Rhooms's prosecution obtained video surveillance footage from the Manhattan night club where Rhooms was during the 222 Lenox Street incident in Brooklyn. (Def. 56.1 ¶ 54; Pl. 56.1 ¶ 106.) The video surveillance footage confirmed that Rhooms was at the club in Manhattan at the time of the shooting. (Pl. 56.1 ¶ 107.) Around this time, Rhooms also submitted to a lie detector test, which indicated that he was telling the truth about his whereabouts during the 222 Lenox Street shooting. (Pl. 56.1 ¶ 108.) On September 24, 2010, sometime shortly after viewing the surveillance footage, the ADA consented to Rhooms's release from Rikers Island. (Pl. 56.1 ¶ 109.) The criminal charges against Rhooms were dismissed on December 21, 2010. (Pl. 56.1 ¶ 110.)

         B. Plaintiff's Claims

         Plaintiff Rhooms commenced this action on December 2, 2011. (Dkt. 1.) Following several amendments to the complaint, the operative complaint in this action is Rhooms's Second Consolidated Amended Complaint. (Dkt. 65.) As to the Individual Defendants-Detective Freed and Officers Ortlieb, Henderson, and Seminara-Rhooms asserts the following causes of action: (i) false arrest and unlawful imprisonment in violation of 42 U.S.C. § 1983, (ii) malicious prosecution in violation of 42 U.S.C. § 1983, (iii) denial of a fair trial in violation of 42 U.S.C. § 1983, (iv) failure to intervene in violation of 42 U.S.C. § 1983, (v) false arrest under New York law, (vi) battery under New York law, and (vii) malicious prosecution under New York law. As to the City, Rhooms asserts claims of false arrest, battery, and malicious prosecution under New York law, each of which is asserted against the City on a theory of respondeat superior. Defendants move for summary judgment on all of Rhooms's claims.

         II. Summary Judgment Standard

         Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006). “To grant the motion, the court must determine that there is no genuine issue of material fact to be tried.” Id. (citing Celotex Corp. v. Catrett,477 U.S. 317, 322-23 (1986)). A genuine factual issue exists where the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). The nonmoving party cannot defeat summary judgment by “simply show[ing] that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986), or by a factual argument based on “conjecture or surmise, ” Bryant v. Maffucci,923 F.2d 979, 982 (2d Cir.1991). “[What] is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at ...

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