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Rogers v. Miller

United States District Court, E.D. New York

December 21, 2017

MICHAEL ROGERS, Plaintiff,
v.
POLICE OFFICER JAMAAL MILLER; ANDREW HO; THE CITY OF NEW YORK, Defendant.

          MEMORANDUM AND ORDER

          VERA M. SCANLON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff filed this action against the Police Officer Jamaal Miller (“Officer Miller”), Police Office Andrew Ho (“Officer Ho”), and the City of New York (the “City”), asserting claims pursuant to 42 U.S.C. § 1983 and various state laws arising out of an incident that occurred on between August 2, 2013 and September 12, 2013. See Compl., ECF No. 1. Currently pending before this Court is Plaintiff's motion for leave to file an amended complaint. See Motion to Amend, ECF No. 31. Plaintiff seeks to add Police Office Michale Iovine as a defendant. See id. For the reasons discussed below, Plaintiff's motion is granted.

         I. FACTUAL BACKGROUND

         a. The Pending Complaint

         Appearing pro se, Plaintiff filed this action on July 1, 2016. See Compl., ECF No. 1. The following allegations are drawn from the Amended Complaint and are set forth solely for the purpose of this motion. On August 2, 2013, Officer Miller made “derogatory statements” and delivered “a tirade of obscenities” to Plaintiff when he encountered him on the street. Compl., ECF No. 1 ¶ 6. Plaintiff filed a civilian complaint with the Internal Affairs Bureau (“IAB”). Id. On August 5, 2013, Officer Miller and his “Partner” “stopped and frisked” Plaintiff “without provocation, expressing distaste with regards to the complaint” that Plaintiff had filed with IAB. Id. ¶ 7. Plaintiff complained to the sergeant on duty at the 79th Precinct. Id.

         On August 16, 2013, Officer Miller and his “Partner” arrested Plaintiff at gunpoint and handcuffed his hands behind his back. Id. ¶ 8. Officer Miller then “paraded” Plaintiff up and down the block in front of passersby and local gang members while shouting that Plaintiff was “[d]rug dealing scum” and “a [d]rug dealing piece of expletive.” Id. Plaintiff was taken to the 79th Precinct whereupon he was fingerprinted and strip searched. Id. ¶ 9. He was then transported to court and arraigned on an open container violation. Id.

         On August 17, 2013, Plaintiff's open container violation was dismissed, and he was released from custody. Id. ¶ 10. Upon his arrival home, he was confronted by local gang members. Id. Plaintiff filed another civilian complaint with IAB. Id. ¶ 11.

         On August 22, 2013, Plaintiff made a complaint to the Civilian Complaint Review Board (“CCRB”). ECF No. 38.

         On August 25, 2013, Officer Miller and his “Partner” stopped and frisked Plaintiff, leveled obscenities at him, and expressed their displeasure in his filing another complaint with IAB. Compl. ¶ 12.

         On September 12, 2013, after giving testimony to the CCRB, Plaintiff was robbed at gun point by the local gang members allegedly at the behest of Officer Miller. Id. ¶ 13.

         The complaint asserts claims against Defendants for constitutional violations under Section 1983 and state law claims of deprivation of liberty, slander, defamation of character, intentional infliction of emotional distress, false arrest, false imprisonment, battery and malicious prosecution. Id. ¶ 14; Letter, ECF No. 22.

         According to the CCRB report, Plaintiff's claims against Officer Miller for discourtesy and abuse of authority were substantiated. All of his other claims were unfounded or dismissed by the CCRB. ECF No. 38.

         The caption of the original complaint named Defendants Jamaal Miller and Andrew Ho. It did not name any John Doe defendants. See generally Id.

         b. Dismissal Of The Complaint Against Officer Ho

         On August 16, 2016, the Honorable Ann M. Donnelly issued a Memorandum and Order dismissing the action against the New York Police Department (“NYPD”) and the 79th Precinct (“Precinct”) pursuant to 28 U.S.C. §§ 1951A(b) and 1915(e)(2)(B), and giving Plaintiff leave to amend the complaint to state with specificity his factual allegations against Officer Ho. See generally Memorandum & Order, ECF No. 6. In the event that Plaintiff did not amend the complaint in accordance with the Memorandum & Order, the complaint would be dismissed against Officer Ho for failure to state a claim pursuant to 28 U.S.C. §§ 1951A(b) and 1915(e)(2)(B). See Memorandum & Order, ECF No. 6 at 5. Contrary to Defendants' contention, see Defendants' Memorandum of Law in Opposition, ECF No. 32 at 2, the Memorandum & Order did not require that Plaintiff amend the complaint.[1] Defendants misrepresent that Judge Donnelly ordered Plaintiff to amend his complaint, Def. Memo. in. Opp. at 6. In fact, Judge Donnelly afforded Plaintiff an opportunity to amend his complaint but never ordered him to do so. See Memorandum & Order, ECF No. 6 at 5.

         c. Discovery And Plaintiff's Motion To Amend

         An initial conference was held before this Court on May 25, 2017, during which Defendants were ordered to provide initial disclosures to Plaintiff by May 26, 2017. According to Plaintiff, it was from these initial disclosures that he first discovered that Officer Michael Iovine was the true identity of Officer Miller's “Partner.” July 6, 2017 Telephone Conference Transcript (“July Tr.”), ECF No. 30 5:11-6:8, 6:10-14. During a telephone conference on July 6, 2017, Plaintiff requested permission to substitute Officer Iovine for Officer Ho. See Minute Entry, ECF No. 24. This Court provided the parties with a briefing schedule for Plaintiff's motion to amend. See id. Plaintiff timely served his moving papers in accordance with this Court's briefing schedule. See Letter, ECF No. 25. As indicated above, Plaintiff seeks to add as a defendant Officer Michael Iovine. See Motion to Amend, ECF No. 31. According to Plaintiff, Officer Iovine was the “Partner” referenced in his original complaint, not Officer Ho. See id.

         Plaintiff maintains that but for a mistaken identity caused by the City Defendant providing Plaintiff with incorrect information at the time of his arrest, Office Iovine would have been named in the original complaint as one of the two arresting officers. See id. ¶¶ 5-8. According to Plaintiff, the City Defendant intentionally provided him with the incorrect information in an effort to mislead and sabotage him. Id. ¶¶ 9-11. Plaintiff also asserts that he made factual allegations against Officer Iovine, whom he referred to as Officer Miller's “Partner” in the complaint, in paragraphs 6-8 of the complaint. Id. ¶¶ 1-2. Specifically, Plaintiff alleges that Officer Iovine made derogatory and defamatory statements to Plaintiff, id. ¶ 1, and unlawfully stopped and frisked him, id. ¶ 2.

         Plaintiff contends Officer Iovine was on notice of the original complaint because Officer Iovine and Office Miller are both represented by Corporation ...


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