United States District Court, E.D. New York
Darryl T. Coggins, Plaintiff,
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.
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
F. BIANCO United States District Judge.
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.
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
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.
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.
defendants move for summary judgment pursuant to Federal Rule
of Civil Procedure 56.
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
following facts are taken from the parties' depositions,
affidavits, and exhibits, and the parties' respective
Rule 56.1 statements of fact. (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.
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.)
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.)
Floral Park Police Officer John Wilson (“Wilson”)
discovered an empty magazine 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.)
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.)
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.)
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.)
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.)
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. ¶¶
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.)
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.)
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.
Motion to Amend
Standard of Review
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
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.
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).
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”).
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
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.
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.
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 ...