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Gomez v. City of New York

United States District Court, S.D. New York

August 29, 2017

WARNER GOMEZ, Plaintiff,
CITY OF NEW YORK, et al., Defendants.



         Warner Gomez is a police officer employed by the New York City Police Department (“NYPD”). In his First Amended Complaint (“the Complaint”) (Dkt. No. 47 (“FAC”)), Gomez alleges that he was assaulted by a fellow police officer while on duty and that various NYPD sergeants and police officers subsequently pressured him to refrain from reporting the incident. (Id. ¶ 1.) Gomez claims that the City of New York (“the City”) and various individual defendants violated his rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution and engaged in unlawful discriminatory practices in violation of the New York City Human Rights Law (“NYCHRL”). (Id. ¶¶ 1-2.) Several of the defendants now move to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. (Dkt. No. 78.) For the reasons that follow, the motion is granted in part and denied in part.

         I. Background

         The following facts are taken from the Complaint and are presumed true for purposes of deciding the motion to dismiss under Rule 12(b)(6).

         The assault that prompted this suit occurred on the night of March 22, 2014. (FAC ¶ 13.) Around 10:15 p.m. that evening, four NYPD police officers responded to a call regarding an emotionally disturbed person (“EDP”): Officer Gomez, Officer Gomez's partner Officer Esteban Abreu, Officer Jacy Reese, and Officer Reese's partner Officer Taiwo Adeleke. (Id. ¶ 14.) The four officers and the EDP scuffled, and during the altercation Gomez discharged his oleoresin capsicum spray (“OC Spray”) in close proximity to the other three officers, causing them to receive some of the OC Spray's discharge. (Id. ¶¶ 15-17.) The officers eventually restrained the EDP using Reese's handcuffs, and Gomez and Abreu escorted the individual to the hospital. (Id. ¶¶ 18-20.) Gomez and Abreu recovered Reese's handcuffs at the hospital, and the four officers then arranged to meet so that Gomez and Abreu could return the handcuffs to Reese. (Id. ¶¶ 21- 22.)

         The four officers met again around 10:40 p.m. on Fifth Avenue between 135th and 136th Streets in Manhattan. (Id. ¶ 23.) Abreu pulled his police car next to Reese and Adeleke's and, at Reese's suggestion, parked in front of Reese and Adeleke's car. (Id. ¶¶ 25-26.) Reese indicated that Adeleke wanted to speak with Abreu, so Abreu exited his car and walked back toward Adeleke. (Id. ¶¶ 26-27.) At the same time, Reese exited his car and walked toward Gomez. (Id. ¶¶ 27, 30.)

         But Adeleke's request to talk to Abreu was a ruse meant only to distract Abreu so that Reese could assault Gomez with his OC Spray. (Id. ¶¶ 24, 28.) Reese approached the passenger side door of Abreu's parked car, where Gomez was seated, and stated: “Listen, let me tell you something. Do you think it's funny to spray other officers?” (Id. ¶ 30.) With that, Reese took out his department-issued OC Spray and discharged it into Gomez's face and eyes, saying “Now you know how it feels.” (Id. ¶ 32.) Reese pinned the door shut as Gomez struggled to exit the vehicle, causing Gomez to injure his knee. (Id. ¶¶ 35-36, 44.) Eventually, Abreu arrived at the vehicle, pushed Reese out of the way, and drove himself and Gomez away from the scene. (Id. ¶¶ 37-38.)

         Now several blocks away, Gomez and Abreu notified Defendant Sergeant Robyn Kreppel, the Sergeant in charge of Patrol Operations that night, and Desk Sergeant Jose Carabello of the incident. (Id. ¶¶ 39-40.) Shortly thereafter, four NYPD officers-all defendants in this action-arrived at Gomez and Abreu's location: Kreppel; Sergeant Alfred Gallichio, a delegate of the Sergeants Benevolent Association; Officer Ulysses Dadacay, a delegate of the Patrolman's Benevolent Association (“PBA”); and Officer John Doe, also a PBA delegate. (Id. ¶ 41.) Kreppel contacted the Emergency Service Unit, and Gomez received medical treatment on the scene and later at Mount Sinai-St. Luke's Hospital. (Id. ¶¶ 42-44.) Kreppel, Gallichio, Dadacay, and Doe accompanied Gomez and Abreu to the hospital. (Id. ¶ 43.)

         From this point forward, Kreppel, Gallichio, Dadacay, and Doe engaged in various attempts to cover up the assault. First was the discussion at the hospital. Dadacay and Doe spoke to Gomez in his hospital room, attempting to dissuade him from filing an internal report or bringing a criminal charge. (Id. ¶ 46-47.) Dadacay informed Gomez that if he filed a complaint, he would be transferred and likely placed on modified duty, Abreu's promotion would be jeopardized, and Gomez would be labeled a “rat.” (Id. ¶ 48.) Before departing, Dadacay stated that he would delay notifying the Internal Affairs Bureau (“IAB”) of the assault so that the incident could be kept “in-house.” (Id. ¶ 51.)

         Second was the discussion at the stationhouse. Upon their return to the 32nd precinct stationhouse, Gomez and Abreu were met by Dadacay. (Id. ¶ 53.) Dadacay told Gomez, Abreu, Reese, and Adeleke that they would each be interviewed by Captain Garcia, the Executive Officer of the 32nd precinct, and Dadacay instructed the four officers to tell Captain Garcia that Reese accidentally discharged his OC Spray while instructing Gomez on its use. (Id. ¶¶ 54-55.) Captain Garcia interviewed each of the four officers individually, but Dadacay was present at each interview, in Gomez's words, “to ensure that [Gomez] told Captain Garcia the cover story.” (Id. ¶¶ 56-57.)

         Third was the paperwork. Following his interview with Captain Garcia, Gomez received “Line of Duty” paperwork, prepared by Gallichio and Kreppel, that omitted Gomez's eye injury and falsely attributed his knee injury to his earlier altercation with the EDP. (Id. ¶¶ 58-59.) Gomez signed the report. (Id. ¶ 60.) Kreppel also failed to file a “Pepper Spray Aided Report” and other documents that were necessary to protect Gomez's pension rights with respect to line-of-duty injuries. (Id. ¶¶ 63-64.)

         Fourth was the IAB interview. Neither Gomez nor any of the individual defendants notified the IAB of the incident. (Id. ¶¶ 62, 68.) The IAB was notified, however, by both Carabello and Abreu (id. ¶¶ 66-67), and Gomez was ordered to attend an IAB interview scheduled for August 1, 2014 (id. ¶¶ 71, 74). Before Gomez's interview, Dadacay spoke with Gomez and reminded him to “stick to the story.” (Id. ¶ 72.) But Gomez did not follow Dadacay's admonishment, and he told the IAB the truth. (Id. ¶¶ 73-75.) After he reported the assault, Gomez was subjected to a hostile work environment (id. ¶ 76), including verbal abuse from his fellow officers (id. ¶¶ 84-91) and an unsuccessful Civilian Complaint Review Board investigation prompted by Reese (id. ¶¶ 78-82). At his Commanding Officer's encouragement, Gomez requested and received a transfer to a different precinct in October 2014. (Id. ¶¶ 76-77.)

         Gomez filed this action on September 23, 2015. (Dkt. No. 1.) In his Complaint, Gomez asserts three sets of claims: (1) violations of his Fourth and Fourteenth Amendment rights, arising out of Reese's alleged assault (see FAC ¶¶ 92-99 (“Count One”); id. ¶¶ 100-07 (“Count Two”)); (2) violations of his First and Fourteenth Amendment rights, arising out of the alleged cover-up (see Id. ¶¶ 108-14 (“Count Three”)); and (3) unlawful discrimination based on Gomez's perceived race or ethnicity, in violation of the NYCHRL (see Id. ¶¶ 115-23 (“Count Four”)). Arguing that Gomez has failed to state a claim upon which relief can be granted, Defendants Adeleke, Dadacay, Gallichio, and the City (collectively, “Movants”) filed the instant motion to dismiss pursuant to Rule 12(b)(6). (Dkt. No. 78.)

         II. Legal Standard

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a motion to dismiss, courts “must accept as true all of the factual allegations contained in the complaint, ” Twombly, 550 U.S. at 572 (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)), and must draw “all inferences in the light most favorable to the non-moving party[], ” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (Sotomayor, J.). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a plausible claim for relief. Iqbal, 556 U.S. at 678. A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court may “look[] only to the complaint; documents that are attached as exhibits to, incorporated by reference, or integral to the complaint; and matters of which judicial notice may be taken.” Rhee-Karn v. Burnett, No. 13 Civ. 6132, 2014 WL 4494126, at *3 ...

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