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Tchatat v. O'Hara

United States District Court, S.D. New York

July 25, 2017

POLICE OFFICER LIAM O'HARA, et al., Defendants.


          LORNA G. SCHOFIELD, District Judge.

         Plaintiff 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 overruled.

         I. BACKGROUND

         The 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, 2017).

         A. The Arrest

         On 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.

         As 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.

         Defendant 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.

         O'Hara 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 incident.

         When 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.

         Arocho 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.

         While 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.

         On the 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.

         B. The Criminal Prosecution

         The day 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.

         Both 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.

         Plaintiff 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.

         Before 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.

         On 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 incident.

         C. Mobley's and Deleston's Depositions in this Action

         Mobley's 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.

         Deleston 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.

         D. Procedural History

         Plaintiff 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. ...

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