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Rogers v. Miller

United States District Court, E.D. New York

March 2, 2018



          ANN M. DONNELLY, District Judge.

         The pro se plaintiff, Michael Rogers, who currently is incarcerated at Downstate Correctional Facility, filed an action against Officer Jamaal Miller. Officer Andrew Ho, the New York Police Department ("NYPD"), the 79th Precinct, and the City of New York, alleging that the officers harassed, intimidated, and falsely arrested him, in violation of 42 U.S.C. § 1983, as well as various state laws. After the defendants served their initial disclosures on the plaintiff, which revealed that Officer Michael Iovine-not Officer Ho-was involved in the plaintiffs arrest, the plaintiff moved to amend his complaint and add Officer Iovine as a defendant. In a Report and Recommendation dated December 21, 2017, the Honorable Vera Scanlon granted the plaintiffs motion to amend the complaint. Before me is the defendants' objections to Judge Scanlon's recommendation. For the reasons that follow, I affirm Judge Scanlon's Report and Recommendation, and grant the plaintiffs motion to amend his complaint.


         1. Initial Complaint

         The plaintiff filed his initial complaint on July 1, 2016. (ECF 1.) He brought causes of action for false arrest, battery, defamation, slander, unlawful detention, false imprisonment, malicious prosecution, and emotion distress against Officer Miller, Officer Ho, the NYPD, the 79th Precinct, and the City of New York. (ECF Nos. 1, 22.) The plaintiff alleged that between August 2, 2013 and September 12, 2013, Officer Miller and "his partner" made ''derogatory and defamatory statements" to the plaintiff and, because of their "personal vendetta" against the plaintiff, falsely arrested him.[1] (ECF No. 1 ¶¶ 1-2.)

         According to the plaintiff, on August 2, 2013, Officer Miller approached the plaintiff and his girlfriend while they were kissing on the street and told the woman, "You can do better ma'am." (ECF No. 1 ¶ 6.) Officer Miller then aimed a spotlight at the plaintiff, and unleashed "a tirade of obscenities." (Id.) The plaintiff filed a complaint with the New York City Police Department's Internal Affairs Bureau ("IAB") against Officer Miller. (Id.)

         Three days later, Officer Miller and "his partner" stopped the plaintiff again and frisked him. (ECF No. l¶ 7.) Officer Miller expressed "distaste" for the plaintiff. (Id.) In response, the plaintiff went to the 79th Precinct and told the sergeant at the front desk that Officer Miller was harassing him. The plaintiff filed a second complaint against Officer Miller. (Id.)

         On August 16, 2013, the plaintiff was in his girlfriend's car which was parked outside 349 Monroe Street in Brooklyn, New York. (ECF No. 1 ¶ 8.) According to the plaintiff, Officer Miller and "his partner, " "without warrant, suspicion, or provocation, " kicked the driver side door of the car, and arrested the plaintiff. (Id.) Officer Miller put the plaintiff in handcuffs, and paraded him around the neighborhood, yelling "obscenities" at him.[2] (Id.) While the allegations are somewhat unclear, the plaintiff claims that Officer Miller intentionally paraded him in front of gang members, took him to the 79th Precinct, and charged him with having an open container, a violation. (Id.) The plaintiff was arraigned in Kings County Criminal Court. (ECF No. 1 ¶ 9.) The next day, the court dismissed the violation, and released the plaintiff. (ECF No. 1 ¶ 10.) When the plaintiff got home, gang members confronted him "regarding his drugs and territory." (Id.) The plaintiff contacted IAB and the Civilian Complaint Review Board ("CCRB"), and filed a third complaint against Officer Miller. (ECF No. 1 ¶ 11.)

         On August 25, 2013, Officer Miller and "his partner" stopped and frisked the plaintiff again, and yelled obscenities at him. (ECF No. 1 ¶ 12.) According to the plaintiff, the officers were upset that the plaintiff filed additional complaints against them. (Id.)

         On September 12, 2013, the plaintiff testified before the CCRB about the August 16th arrest. (ECF No. 1 ¶ 13.) According to the CCRB file, [3] Officer Miller, Officer Wanda Chalar, Sergeant David Leonardi, and other unnamed officers, were the "subjects" of the CCRB investigation. (ECF 38.) Officers Michael lovine, Argelis Rodriquez, and Maurice Fyffe were "witnesses" to the incident. (Id.) After concluding its investigation, the CCRB substantiated the plaintiffs claims of "discourtesy" and "abuse of authority" against Officer Miller; the CCRB determined that the remaining claims against Sergeant Leonardi, Officer Chalar, and the unnamed officers were unfounded. (Id.)

         The day after the plaintiffs CCRB testimony, gang members robbed the plaintiff at gunpoint in his home, allegedly at the behest of Officer Miller. (ECF No. 1 ¶ 13.)

         Sometime later, the plaintiff claims that he called the 79th Precinct and asked for the name of Officer Miller's partner, intending to ascertain the name of the other officer involved in his August 16th arrest.[4] An individual in the 79th Precinct told the plaintiff that Officer Ho was Officer Miller's partner. (ECF 31.) As a result, the plaintiff named Officer Miller and Officer Ho as defendants in this action.

         2. Sua Sponte Motion to Dismiss On

         August 16, 2016, I dismissed the claims against the NYPD and the 79th Precinct because both entities lack the capacity to be sued. (ECF 6.) I also dismissed the claims against Officer Ho because the plaintiff did not sufficiently allege Officer Ho's personal involvement in any of the incidents. However, because the pleading indicated that the plaintiff could state a valid claim against Officer Ho. 1 granted the plaintiff leave to file an amended complaint within 30 days of my order. The plaintiff did not file an amended complaint within the timeframe I set.

         3. Discovery

         Judge Scanlon held an initial conference on May 25, 2017, and ordered the defendants to provide initial disclosures to the plaintiff by May 26, 2017. (ECF 21.) The initial disclosures listed Officer Miller as the "officer who transported Plaintiff from scene of arrest to 79th Precinct, " and Sergeant David Leonardi as the "supervisor who approved arrest and present at scene of arrest." (ECF 47 Ex A.) In addition, the initial disclosures listed Officer lovine as the "arresting ...

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