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Coggins v. County of Nassau

United States District Court, E.D. New York

May 26, 2017

Darryl T. Coggins, Plaintiff,
v.
County of Nassau, Nassau County Police Department, Police Officer James Vara, in his individual and official capacity, Police Officer Craig Buonora, in his individual and official capacity, and John Does 1-10, in their individual and official capacities, Defendants.

          Plaintiff is represented by Frederick K. Brewington and Cathryn A. Harris of the Law Offices of Frederick K. Brewington.

          Defendants are represented by Andrew K. Preston of Bee Ready Fishbein Hatter & Do-novan LLP, and Diane C. Petillo from the Of-fice of the Nassau County Attorney.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge.

         Plaintiff Darryl T. Coggins (“Coggins” or “plaintiff”) brought this action against defendants County of Nassau (“Nassau County” or “the County”); Nassau County Police Department (“NCPD”); Police Officers James Vara (“Vara”) and Craig Buonora (“Buonora”), in their individual and official capacities; and John Does 1-10, in their individual and official capacities (collectively, “defendants”), pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, and New York State tort law.

         A grand jury empaneled by the Nassau County District Attorney's Office (“DA's Office”) indicted Coggins on March 17, 2005, on charges of unlawful possession of a weapon and resisting arrest. After the DA's Office dismissed the criminal charges against Coggins, it indicted Buonora for perjury.

         Buonora pled guilty. In this action, Coggins contends that defendants actively prosecuted him despite knowing he was innocent. Specifically, he alleges that Buonora and Vara conspired to and did, inter alia, falsify police reports, affidavits, and memorandum books; fabricate evidence; and commit perjury during grand jury proceedings.

         Presently before the Court are two motions. First, Coggins moves to file a Fourth Amended Complaint (“FAC”) to add a 28 U.S.C. § 1983 (“Section 1983”) excessive force claim (and related state law claims) in light of newly discovered evidence. Defendants oppose, arguing, inter alia, that plaintiff has inexcusably delayed in asserting the claims he now seeks to add to the complaint.

         Second, defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56.

         As set forth below, the Court denies plaintiff's motion to amend and grants in part and denies in part defendants' motion for summary judgment. Specifically, the Court concludes that defendants are entitled to summary judgment on plaintiff's 42 U.S.C. § 1981 (“Section 1981”) claim, federal and state abuse of process claims, 42 U.S.C. § 1985 (“Section 1985”) claim, and state law negligence claims, but not on his remaining claims.

         I. Background

         The following facts are taken from the parties' depositions, affidavits, and exhibits, and the parties' respective Rule 56.1 statements of fact.[1] (See Defs.' Rule 56.1 Statement (“Defs.' 56.1”), ECF No. 232-2; Pl.'s Resp. to Defs.' Rule 56.1 Statement (“Pl.'s 56.1 Resp.”), ECF No. 236-1, 1-8; Pl.'s Rule 56.1 Statement (“Pl.'s 56.1”), ECF No. 236-1, 9-31.) Unless otherwise noted, the facts are undisputed. Upon consideration of the motion for summary judgment, the Court shall construe the facts in the light most favorable to plaintiff as the nonmoving party, and will resolve all factual ambiguities in his favor. See Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir. 2001).

         A. Facts

         Coggins is an African-American male. (Pl.'s 56.1 ¶ 18.) Early on October 9, 2004, plaintiff was driving with two other African American individuals, Jovan Miles and Aaron Simmons, when Vara effectuated a stop on plaintiff's car. (Defs.' 56.1 ¶¶ 1-2, 4; Pl.'s 56.1 Resp. ¶¶ 1-2, 4; Pl.'s 56.1 ¶¶ 9, 11, 18.) When plaintiff asked why he was being pulled over, Vara gave no reason but instructed plaintiff to step out of the vehicle. (Pl.'s 56.1 ¶¶ 19-20.) Vara then administered a breathalyzer. (Id. ¶ 22; Defs.' 56.1 ¶ 5.) Plaintiff denies that any of the occupants of the vehicle had been drinking before the stop. (Pl.'s 56.1 ¶¶ 11-15.) Vara does not recall-and did not record-the results of the field sobriety tests. (Id. ¶ 120.)

         After administering the breathalyzer, Vara allegedly became aggressive, verbally threatening plaintiff and grabbing him. (Id. ¶¶ 23, 25; Pl.'s 56.1 Resp. ¶ 5.) Plaintiff claims he asked Vara to stop grabbing him and Vara responded by stating “he would do more than that.” (Pl.'s 56.1 ¶ 26.) At some point, Vara placed his hand on his firearm. (Id. ¶ 27.) Nervous, plaintiff fled on foot just as Buonora was pulling up in his patrol car. (Id. ¶¶ 28-31; Defs.' 56.1 ¶¶ 5-6.) As he was fleeing, plaintiff heard Buonora yell, “shoot him in the back.” (Pl.'s 56.1 ¶ 31.) Buonara and Vara chased plaintiff, who ran through some nearby yards, but they could not catch him. (Defs.' 56.1 ¶ 7; Pl.'s 56.1 Resp. ¶ 7; Pl.'s 56.1 ¶ 30.) Vara then searched the yards through which plaintiff had ran, but he found no evidence. (Pl.'s 56.1 ¶¶ 40-41.)

         Meanwhile, Floral Park Police Officer John Wilson (“Wilson”) discovered an empty magazine[2] next to plaintiff's vehicle. (Defs.' empty ¶ 9; Defs.' Resp. 56.1 ¶ 9.) Wilson asked passengers Miles and Simmons where the gun was, and they told him there was no gun. (Preston Decl., Ex. AB, at 19-20.) Wilson ordered them to show their hands, the passengers complied, and more officers subsequently arrived on the scene. (Id. at 20- 21.) Later, Wilson found a loaded, 9 millimeter pistol next to a fence near the scene. (Id. at 30; Defs.' 56.1 ¶ 10; Pl.'s 56.1 ¶ 10.) Officers then ordered Miles and Simmons to exit the vehicle, told them a gun had been found, handcuffed them, patted them down, and placed them in separate squad cars. (Pl.'s 56.1 ¶¶ 35-37, 39.)

         Later that day, plaintiff appeared at the police station with his attorney to surrender himself. (Defs.' 56.1 ¶ 12; Pl.'s 56.1 Resp. ¶ 12; Pl.'s 56.1 ¶ 48.) While plaintiff was handcuffed to a bench at the precinct, Vara entered and made a comment about plaintiff's escape. (Pl.'s 56.1 ¶ 50.) Plaintiff alleges that Vara then punched him in the face twice and other officers had to pull Vara away. (Id.; see also FAC ¶ 34.)

         Detective Alexander Barnych and Sergeant Mitchell Tepperman subsequently filed two felony complaints against plaintiff, charging him with two counts of criminal possession of a weapon in the third degree. (Defs.' 56.1 ¶ 13; Pl.'s 56.1 Resp. ¶ 13.) After arraignment, Buonora falsely testified before the grand jury that he “heard a noise when [plaintiff] jumped the fence which sounded like metal hitting the ground . . . . And [he] looked down to see what it was and found the gun there.” (Pl.'s 56.1 ¶ 99; see also Defs.' 56.1 ¶ 17; Pl.'s 56.1 Resp. ¶ 17.) Buonora had spoken with the Assistant District Attorney (“ADA”) who handled the case prior to his grand jury testimony, and Buronora only testified about the gun. (Pl.'s 56.1 ¶¶ 100, 102.) Buonora's sworn handwritten statement to the NCPD Internal Affairs Unit (“Internal Affairs”) also states that he, not Wilson, found the magazine next to plaintiff's vehicle. (Id. ¶ 103.)

         In addition, the arrest report completed by Detective Barnych indicated that Vara had reported hearing the sound of a gun hit the ground when plaintiff jumped over a chain link fence and that Vara had secured the gun. (Id. ¶ 83.) His Standard Requisition Request Form also indicates that he “safeguarded the wepon [sic].” (Id. ¶ 86.) At his deposition, however, Vara testified that he never told Detective Barnych that he had heard the sound of a gun hitting the ground or secured the gun. (Id. ¶ 84.) Vara later admitted to investigators that he falsified the Requisition Form. (Id. ¶ 88.)

         The criminal case against plaintiff was dismissed when Buronora's false testimony came to light. (Defs.' 56.1 ¶ 18; Pl.'s 56.1 Resp. ¶ 18.) On October 29, 2005, NCPD's Forensic Evidence Bureau discovered that the handgun Wilson recovered at the scene had been reported missing from the Orange-burg Department of Public Safety in South Carolina. (Pl.'s 56.1 ¶ 108.)

         Internal Affairs charged Vara with per-jury, making a false sworn statement, making a false written statement, and harassment for his false statements made in connection with the arrest and prosecution of plaintiff. (Pl.'s 56.1 ¶ 90.) Vara accepted immunity in ex-change for his testimony against Buonora. (Id. ¶ 92.) Internal Affairs ultimately found Vara guilty of issuing a false communication, but the perjury charge was left “undetermined” based on his immunity. (Id. ¶¶ 94-95.) Ten vacation days were revoked as punishment on the false communication charge. (Id. ¶ 96.) He was not suspended or demoted, his salary was not reduced, and the County has indemnified him in the current action for the counts in the Third Amended Complaint (“TAC”). (Id. ¶¶ 97-98.)

         Internal Affairs charged Buonara with submitting false official communications. (Id. ¶ 110.) He was also arrested, criminally charged with first-degree perjury (a felony), and suspended without pay for one month in September 2005. (Id. ¶¶ 109, 113.) Buonora did not challenge the Internal Affairs charges and entered into a Disciplinary Stipulation and Agreement on August 15, 2006. (Id. ¶ 111.) As punishment, he lost 100 vacation days, was put on desk duty, and was put on probation for one year. (Id. ¶¶ 111-12.) In the criminal case, he pled guilty to third-degree perjury (a misdemeanor) and was sentenced to three years' probation. (Id. ¶¶ 114; see also Defs.' 56.1 ¶ 19; Pl.'s 56.1 Resp. ¶ 19.)

         B. Procedural History

         Coggins filed the Complaint on August 28, 2007. (ECF No. 1.) The case has undergone extensive motion practice since that time, including two motions to dismiss and multiple appeals to the Second Circuit. (See, e.g., ECF Nos. 28, 70, 170.) The Court dismissed several of plaintiff's claims on defendants' motion to dismiss the TAC, see Coggins v. Cnty. of Nassau, 988 F.Supp.2d 231 (E.D.N.Y. 2013), and the following causes of action remain: (1) violations of Section 1981; (2) violations of Section 1983; (3) municipal liability; (4) violations Section 1985; (5) violations of 42 U.S.C. § 1986; (6) state law fraudulent misrepresentation; (7) state law abuse of process and malicious prosecution; (8) state law false arrest and false imprisonment; (9) negligence; and (10) state law intentional infliction of emotional distress (“IIED”) (see ECF No. 178). The FAC seeks to add a Section 1983 claim for excessive force and a state law assault and battery claim based on Vara's alleged assault of plaintiff at the police station when plaintiff surrendered himself. (ECF No. 241-1 at ¶¶ 137-41, 179-84.)

         The parties completed discovery on September 1, 2016 (see ECF No. 226), and defendants moved for summary judgment on the claims in the TAC on December 5, 2016 (ECF No. 232). Plaintiff filed his opposition on February 13, 2017 (ECF No. 236), and defendants replied on March 13, 2017 (ECF No. 238). The Court heard oral argument on March 24, 2017 and set a briefing schedule for plaintiff's motion to amend. (ECF No. 239.) Plaintiff filed the motion, along with the FAC, on April 3, 2017 (ECF No. 241), and defendants opposed on April 17, 2017 (ECF No. 243). The Court has fully considered the parties' submissions.

         II. Motion to Amend

         A. Standard of Review

         Federal Rule of Civil Procedure 15 applies to motions to amend the pleadings. A motion to amend “shall be freely granted when justice so requires.” Fed.R.Civ.P. 15(a). Such a motion should be denied “only for reasons such as undue delay, bad faith, futility of the amendment or prejudice to the other party.” Crippen v. Town of Hempstead, No. 07-CV-3478(JFB)(ARL), 2013 WL 2322874, at *1 (E.D.N.Y. May 22, 2013); see also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 125 (2d Cir. 2008) (per curiam) (“[M]otions to amend should generally be denied in instances of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to the non-moving party.”).

         In the Second Circuit, “[m]ere delay . . . absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) (quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). Nevertheless, “leave to amend may be denied where the moving party knows or should have known of the facts upon which the proposed amendment is based, but failed to include them in the original pleading.” Priestley v. Am. Airlines, Inc., No. 89 CIV. 8265 (JMC), 1991 WL 64459, at *1 (S.D.N.Y. Apr. 12, 1991). In addition, “the longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice.” Block, 988 F.2d at 350 (quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)).

         In determining whether the party opposing the amendment has been prejudiced, courts consider “whether the assertion of the new claim would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.” Id. Furthermore, “[a] court may also consider whether the motion comes on the eve of trial after many months or years of pre-trial activity, or witnesses have become unavailable for examination and the memories of others may have dimmed.” Gem Glob. Yield Fund, Ltd. v. Surgilight, Inc., No. 04-CV-4451 (KMK), 2006 WL 2389345, at *10 (S.D.N.Y. Aug. 17, 2006) (brackets and citations omitted).

         Courts in this Circuit have repeatedly found that a proposed amendment will prejudice the nonmoving party where it would require the court to reopen discovery. See, e.g., Instinet Inc. v. Ariel (UK) Ltd., No. 08 CIV. 7141 JFK RLE, 2011 WL 4444086, at *3 (S.D.N.Y. Sept. 26, 2011) (“Permitting Ariel to amend at this late juncture would result in substantial prejudice to Instinet, as it would require the reopening of discovery and further delay the resolution of this lawsuit.” (citations omitted)); Re-Source Am., Inc. v. Corning Inc., No. 07-CV-6048 CJS, 2009 WL 2179254, at *7 (W.D.N.Y. July 22, 2009) (“The Court also finds that the proposed amendment would prejudice Defendant, since the Court would need to reopen discovery, which would further delay the resolution of the case.”); Travelers Ins. Co. v. Buffalo Reinsurance Co., No. 86 CIV. 3369 (JMC), 1990 WL 116741, at *2 (S.D.N.Y. Aug. 7, 1990) (“The burden of additional discovery is adequate justification for denial of leave to amend . . . where the amendment would reopen discovery concerning an event that happened many years ago.” (citations omitted)). Similarly, courts have found prejudice resulting from a delay when that delay has either rendered witnesses unavailable or caused their memories of the relevant events to fade. See, e.g., Zubulake v. UBS Warburg LLC, 231 F.R.D. 159, 162 (S.D.N.Y. 2005) (denying motion to amend in part because “[w]itnesses to these events may not [have been] available” and, “[e]ven if the knowledgeable witnesses [were] available, their recollection of events [would] undoubtedly be diminished compared to two years earlier”). Prejudice can also exist where a proposed amendment could raise a conflict of interest that would require the nonmoving party to retain separate counsel. See, e.g., Media Sport & Arts s.r.l. v. Kinney Shoe Corp., No. 95 CIV. 3901 (PKL), 1999 WL 946354, at *5 (S.D.N.Y. Oct. 19, 1999) (denying motion to amend where the amendment “would create a conflict of interest with the potential to require [the nonmoving parties] to retain separate counsel”).

         B. Discussion

         Here, the FAC seeks to add claims based on Vara's alleged assault on plaintiff in the police station, which occurred when plaintiff surrendered himself on October 9, 2004. Thus, plaintiff clearly knew of “the facts upon which the proposed amendment is based” at the time the original complaint was filed “but failed to include them in the original pleading.” Priestley, 1991 WL 64459, at *1. Instead, plaintiff waited to file the present motion to amend for almost thirteen years after the alleged assault took place, almost ten years after the original complaint was filed, and over eight months after counsel learned of the assault at plaintiff's deposition. Plaintiff provides no explanation for this delay, and, given its length, “less [is] required of the nonmoving party in terms of a showing of prejudice.” Block, 988 F.2d at 350.

         Under this standard, defendants have made an adequate showing of prejudice. First, permitting the amendment would require the court to reopen discovery, and defendants would have to expend substantial resources in conducting such discovery. In addition to re-deposing both plaintiff and Vara, defendants would also need to investigate and question additional witnesses, given plaintiff's allegation that other officers had to intervene to stop Vara's alleged assault. See Ariel, 2011 WL 4444086, at *3; Re-Source Am., 2009 WL 2179254, at *7.

         Second, based on how much time has passed since the alleged assault, these same witnesses may not be available or even ascer-tainable, and, to the extent they are, they may not adequately remember the events in question. See Zubulake, 231 F.R.D. at 162. Had plaintiff included these allegations in the original complaint, defendants could have identified and questioned the officers who allegedly intervened to stop the assault. Permitting plaintiff to add these substantial claims at this juncture would thus greatly prejudice defendants because, if these witnesses had been identified and questioned in a timely manner, they would have been in a better position to provide all relevant information on this issue.

         Third, the County has only agreed to indemnify Vara on the counts in the TAC, and, therefore, if the Court permitted plaintiff to amend, Vara would need to seek indemnification on the newly added claims from the Indemnification Board, resulting in further delay. Relatedly, given the nature of the allegations, there is a distinct possibility that the Indemnification Board would decline to indemnify Vara on the excessive force and assault and battery claims. Because defense counsel only represents Vara by virtue of his indemnification from the County, a conflict of ...


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