United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, District Judge.
Josias Tchatat filed this action against Defendants NYPD
Officers Liam O'Hara and Harry Arocho, among others,
alleging false arrest, malicious prosecution, denial of the
right to a fair trial (i.e., fabrication of evidence) and
conspiracy under 42 U.S.C. § 1983. O'Hara and
Arocho, the only remaining Defendants, move for summary
judgment. Plaintiff cross-moves for leave to amend the
Complaint to reinstate his Monell claim against
Defendant the City of New York (the “City”).
Plaintiff also objects to Magistrate Judge Gabriel W.
Gorenstein's Opinion and Order denying his motion for
spoliation sanctions. For the reasons below, Defendants'
motion is granted as to Arocho and denied as to O'Hara.
Plaintiffs cross-motion is denied and his objection is
facts below are drawn from the parties' 56.1 statements
and other submissions on this motion, and are construed in
Plaintiffs favor. See Soto v. Gaudett, ___ F.3d.
___, No. 15-3764, 2017 WL 2854323, at *5 (2d Cir. July 5,
September 20, 2011, Plaintiff was in a Best Buy store. At his
request, Best Buy employee Jessica Deleston opened the
bathroom door for him. After leaving the bathroom, Plaintiff
purchased a USB drive.
Plaintiff was exiting the store, a security guard, Shwon
Edmonds, and several Best Buy employees, including Richard
Castellano, stopped Plaintiff and accused him of stealing
something. They brought him to a security holding room.
Castellano left the room to summon the police. Edmonds
ordered Plaintiff to turn around so that he could handcuff
him. When Plaintiff refused, Edmonds and several employees
attacked Plaintiff. They repeatedly punched and kicked him.
Plaintiff did not fight back and was ultimately handcuffed
while in a fetal position on the ground.
Officers O'Hara and Arocho arrived at the store after the
altercation had ended. Although O'Hara and Arocho did not
know any of the staff working that day, O'Hara had been
to the same Best Buy store many times in response to reports
of shoplifting. When the officers entered the security room,
Plaintiff was handcuffed and on the ground. O'Hara left
with Castellano, while Arocho stayed in the room with
Plaintiff. While in the room, Arocho spoke with Edmonds and
the other employees, discussing “personal things that
had nothing to do with the events.” When Arocho asked
Plaintiff why he was sweaty, Plaintiff responded that he
“had just been attacked” and had been handcuffed
“for having done nothing at all.” Plaintiff also
said that he was in pain, and Arocho replied that they would
take him to the hospital. Arocho remained in the room with
Plaintiff the entire time until Plaintiff was removed. While
he was at the store, Plaintiff, and by implication Arocho,
never heard anyone tell the police officers that Plaintiff
had stolen something or that Plaintiff had hit someone.
spoke with Edmonds and the Best Buy employees about what had
happened. He asked them to show him the property that
Plaintiff allegedly had tried to steal along with a receipt
for its value, and “to sign affidavits swearing that
their version of events were true.” These were
“routine questions” and the staff was
“aware of the procedure.” In O'Hara's
presence, Best Buy employee Van Mobley executed two forms
under penalty of perjury, which O'Hara described as
“the routine affidavit signing.” On one form, an
NYPD Complainant's Report of Lost or Stolen Property,
Mobley stated that the stolen article was “1
Sandisk” valued at $9.99. On the second form, a
“Shoplifting/Trespass Supporting Deposition, ”
Mobley attested that he had observed Plaintiff remove
“1 camera memory card” from a rack and conceal
the memory card in his “[f]ront right pants
pocket.” Mobley also attested that he recovered the
memory card from the “front right pants pocket.”
Edmonds apparently did not sign any forms the day of the
O'Hara came back into the room, Plaintiff asked if he had
the receipt from Plaintiff's purchase. O'Hara said
yes, but that no one “is going to believe you because
you're a criminal.” Using his personal cell phone,
O'Hara took photographs of Edmonds' face, but did not
take any photographs of Plaintiff, even though O'Hara was
aware that Edmonds did not require medical attention from the
incident. Arocho recorded in his memo book Edmonds' name
and contact information. Neither officer asked to see any
in-store surveillance footage.
placed police handcuffs on Plaintiff and the officers took
him to the precinct for processing. Arocho and O'Hara
took Plaintiff to the hospital, where he was treated, and
then brought him back to the precinct.
at the store, O'Hara had collected memory card packaging,
which was torn, and the receipt that the Best Buy staff had
generated to show the memory card's value. After taking a
photograph of the packaging at the precinct, O'Hara
vouchered the photograph and receipt as arrest evidence. He
returned the packaging to the store. Although Edmonds gave
the officers the memory card, O'Hara does not remember
what happened to it, and it was never returned to the store.
day of his arrest, Plaintiff did not steal or attempt to
steal a memory card, nor did he touch any product other than
the USB drives that he was interested in buying.
The Criminal Prosecution
after the incident, O'Hara signed a criminal complaint
prepared by the District Attorney's Office. It charged
Plaintiff with petit larceny, criminal mischief in the fourth
degree and attempted assault in the third degree. In the
criminal complaint, O'Hara recounted the facts as
described on the forms that Mobley had signed the day before.
O'Hara further attested in the criminal complaint that
Edmonds had informed him that:
after defendant was stopped by [Mobley] for the
above-described conduct, [Edmonds] observed the defendant
forcibly strike [Edmonds'] head with defendant's head
one (1) time, causing [Edmonds'] eye glasses to break and
[Edmonds] to suffer from redness and pain to his head.
Mobley and Edmonds signed forms called Supporting Depositions
affirming the truthfulness of the statements attributed to
them in the criminal complaint. Edmonds added a note to his
form that Plaintiff had head-butted him three times.
was indicted by a grand jury on charges of robbery in the
second degree and robbery in the third degree. O'Hara
testified in the grand jury only about Edmonds'
appearance and that he had arrested Plaintiff. He did not
testify about what Edmonds or any Best Buy employee had told
him about the events leading up to Plaintiff's arrest.
Plaintiff's criminal trial, O'Hara lost the cell
phone that contained the photographs of Edmonds' face.
O'Hara testified in this case that he did not recall how
he lost his cell phone or whether he ever intended to voucher
the photographs into evidence.
April 5, 2013, Plaintiff was tried before a jury and
acquitted of all charges. O'Hara testified at
Plaintiff's criminal trial about Edmonds' appearance,
the lost cell phone with the Edmonds photographs, the
photograph that O'Hara vouchered of the memory card
packaging, returning the empty packaging to the store
“as it was their merchandise and I guess they hoped to
sell it, ” the receipt that he vouchered to show the
value of the property and his lack of recollection as to
whether he ever had the actual memory card. He apparently did
not testify about what anyone had told him about what
transpired before he arrived at the Best Buy the day of the
Mobley's and Deleston's Depositions in this
deposition testimony contradicts the affidavit he signed on
the date of Plaintiff's arrest and the statements
attributed to him in the criminal complaint. Mobley testified
that he did not personally see Plaintiff put a memory card in
his pants nor did he personally recover a camera memory card
from him. Rather, as Mobley testified, his co-worker,
Deleston, had said to him that “she had let somebody in
the bathroom and he had a product in his hand.” Mobley
attested that after hearing this, he went into the bathroom
and heard “packaging being wrestled with” in one
of the stalls.
testified in her deposition that she saw Plaintiff put one
SanDisk memory card in his pants. She further testified that
after she saw him place the memory card there, Plaintiff
“turned around, ” “noticed that there was
an employee” and asked her if he could use the
bathroom. Deleston left the Best Buy store before O'Hara
and Arocho arrived. Deleston did not testify at Plaintiffs
criminal trial, although she had been subpoenaed, and the
prosecution at one point had expected her to testify.
commenced this lawsuit against the City, O'Hara, Arocho,
Best Buy, Castellano, Deleston, Mobley and Edmonds, among
other parties. The City was dismissed on the ground that the
Complaint failed to state a claim for municipal liability
under Monell. See Tchatat v. City of New York, No.
14 Civ. 2385, 2015 WL 5091197, at *9-11 (S.D.N.Y. Aug. 28,
2015) (citing Monell v. Dep't of Social Servs. of the
City of New York,436 U.S. 658, 691 (1978)). Plaintiff
eventually resolved his claims against all the remaining
Defendants, except O'Hara and Arocho. Plaintiff moved for
spoliation sanctions against O'Hara and Arocho. Judge
Gorenstein, who had supervised discovery, denied the motion.
Tchatat v. O'Hara, No. 14 Civ. 2385, 2017 WL
1379097 (S.D.N.Y. ...