Buari v. City of N.Y., 1:18-cv-12299-MKV

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: MARY KAY VYSKOCIL, United States District Judge
• Parties: CALVIN BUARI, Plaintiff, v. CITY OF NEW YORK; ANDREW DIETZ, New York City Police Department Detective; FNU TRACY, New York City Police Department Detective; VINCENT PRICE, New York City Police Department Detective; EUGENE GOTTWIN, New York City Police Department Detective; JOSEPH NEENAN, New York City Police Department Detective; CHRISTINE FORTUNE, New York City Police Department Detective; JOHN WALL, Bronx County District Attorney's Office Investigator; FNU SCHIFFMAN, Bronx County District Attorney's Office Investigator; FRANK VIGGIANO, Bronx County District Attorney's Office Investigator; ALLEN KAREN, Bronx County District Attorney's Office Assistant District Attorney; FELICITY LUNG, Bronx County District Attorney's Office Assistant District Attorney; PETER CODDINGTON, Bronx County District Attorney's Office Assistant District Attorney; GINA MIGNOLA, Bronx County District Attorney's Office Assistant District Attorney; JOHN AND/OR JANE DOES #1-10, who are currently unknown members of the New York City Police Department; and RICHARD AND/OR RACHEL ROES #1-10, who are currently unknown members of the Bronx County District Attorney's Office, Defendants.
• Docket Number: 1:18-cv-12299-MKV
• Decision Date: 30 March 2021

CALVIN BUARI, Plaintiff,
v.
CITY OF NEW YORK; ANDREW DIETZ, New York City Police Department Detective;
FNU TRACY, New York City Police Department Detective; VINCENT PRICE,
New York City Police Department Detective; EUGENE GOTTWIN,
New York City Police Department Detective; JOSEPH NEENAN, New York City Police Department Detective;
CHRISTINE FORTUNE, New York City Police Department Detective; JOHN WALL,
Bronx County District Attorney's Office Investigator; FNU SCHIFFMAN,
Bronx County District Attorney's Office Investigator; FRANK VIGGIANO,
Bronx County District Attorney's Office Investigator; ALLEN KAREN,
Bronx County District Attorney's Office Assistant District Attorney;
FELICITY LUNG, Bronx County District Attorney's Office Assistant District Attorney;
PETER CODDINGTON, Bronx County District Attorney's Office Assistant District Attorney;
GINA MIGNOLA, Bronx County District Attorney's Office Assistant District Attorney;
JOHN AND/OR JANE DOES #1-10, who are currently unknown members of the New York City Police Department;
and RICHARD AND/OR RACHEL ROES #1-10, who are currently unknown members
of the Bronx County District Attorney's Office, Defendants.

1:18-cv-12299-MKV

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 30, 2021

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

MARY KAY VYSKOCIL, United States District Judge:

In October 1995, a New York State Supreme Court jury convicted Plaintiff Calvin Buari ("Buari") of two counts of murder in the second degree in connection with a 1992 double homicide in the Bronx, New York, based solely on the testimony of alleged witnesses. Buari was sentenced to consecutive indeterminate terms of imprisonment of twenty-five years to life. In May 2017, a judge vacated Buari's conviction pursuant to New York Criminal Procedure Law Section

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440.10(1)(g) and ordered a new trial. The Bronx District Attorney's Office ("Bronx DA") declined to retry Buari and dismissed his indictment in March 2018. Buari has always maintained his innocence.

In December 2018, Buari commenced this action against the City of New York ("City"); New York City Police Department ("NYPD") Detectives ("Det.") Andrew Dietz, Fnu Tracy, Vincent Price, Eugene Gottwin, Joseph Neenan, and Christine Fortune, (collectively, the "NYPD Defendants"); Bronx County Assistant District Attorneys ("ADA") Allen Karen, Felicity Lung, Peter Coddington, and Gina Mignola (collectively, the "ADA Defendants"); Investigators Frank Viggiano, Stanley Schiffman, and John Wall (collectively, the "Investigator Defendants"); John and/or Jane Does #1-10, who are unidentified officers, detectives, supervisors, and other agents and employees of the NYPD ("Does #1-10"); and Richard and/or Rachel Roes #1-10, who are unidentified investigators, agents, and employees of the Bronx DA's Office ("Roes #1-10"). (Am. Compl. ¶¶ 23-36 [ECF No. 58].)¹ Buari brings claims under 42 U.S.C. § 1983 and New York State law for malicious prosecution, due process violations, failure to intercede, conspiracy, supervisory liability, municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and respondeat superior. (Id. ¶¶ 274-363.) Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss ("Mot.") [ECF No. 61].)

Buari alleges serious misconduct by members of the NYPD and the Bronx DA's Office. Until proven at trial with competent evidence, Buari's allegations of course remain unproven allegations. Some of Buari's claims may ultimately be difficult to prove. But at this early stage in the litigation, the Court is constrained to accept Buari's allegations as true and to draw all

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reasonable inferences in Buari's favor. For the reasons discussed below, Defendants' Motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Factual Background²

A. The Underlying Crime and Investigation

On September 10, 1992, at approximately 9:00 p.m., Buari was walking through his neighborhood, the Wakefield section of the Bronx, to visit a friend. (Am. Compl. ¶¶ 37-40.) As he crossed the intersection of 213th Street and Bronxwood Avenue, Buari saw Dwight Robinson ("Robinson") and his brother Peter. (Id. ¶ 41.) Buari met his friend near the intersection. (Id. ¶ 43.) As they were talking, they heard gunshots. (Id. ¶ 45.) They ran down 213th Street (id. ¶ 46), but later returned to the intersection to see what had happened (id. ¶ 48). Buari learned that two males, the Harris brothers, had been shot and killed while sitting in a white BMW (the "Harris Murders"). (Id. ¶ 51.)

Police officers of the 47th Precinct secured the crime scene, but failed to locate any eyewitnesses. (Id. ¶¶ 54-56.) They eventually located a witness who claimed to have observed Kintu Effort ("Effort") and another individual fleeing the scene. (Id. ¶ 58.) On November 4, 1992,

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Det. Dietz interviewed Effort, who stated that he did not see who committed the Harris Murders. (Id. ¶¶ 59-61.)

On January 29, 1993, police arrested Alrick Griffiths, a drug-dealing associate of Robinson, for possession of narcotics and a loaded handgun. (Id. ¶¶ 63-65.) Suspecting that Griffiths was involved with the Harris Murders, Det. Dietz tried to find evidence linking him to the crime. (Id. ¶ 66.) Finding no such evidence, Det. Dietz sought to coerce Griffiths into implicating someone else by spreading a false rumor that Griffiths was a "snitch" and "talked to police." (Id. ¶ 41.) As the rumor spread, Griffiths' girlfriend visited the 47th Precinct and advised Det. Dietz that Griffiths was at the 213th Street and Bronxwood Avenue intersection when one of the "Yankee guys that deal crack shoot [sic] two guys in the head who were sitting in a pretty white BMW." (Id. ¶ 69.)

On March 22, 1993, Buari was arrested for marijuana possession. (Id. ¶ 71.) Det. Tracy attempted to elicit from him information about recent criminal activity in the 47th Precinct. (Id. ¶¶ 72-73.) Buari declined to offer any information. (Id. ¶ 74.)

Knowing Buari lived near the 213th Street and Bronxwood Avenue intersection, Dets. Dietz and Tracy coerced Griffiths into falsely implicating Buari for the Harris Murders. (Id. ¶ 76.) In exchange for his false testimony, Dets. Dietz and Tracy offered Griffiths favorable treatment, leniency, and release from custody. (Id. ¶ 77.) As a result of Griffiths' false statements, Buari was arrested for the Harris Murders. (Id. ¶ 78.)

B. Buari's Prosecution

The Bronx DA began prosecuting Buari for the Harris Murders based solely on Griffiths' statements. (Am. Compl. ¶ 82.) On March 26, 1993, a grand jury indicted Buari on charges of second-degree murder, first-degree manslaughter, first-degree criminal use of a firearm, and second- and third-degree criminal possession of a weapon. (Id. ¶ 85.)

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Buari retained counsel, Kenneth Schreiber, Esq., who investigated the charges and discovered several witnesses, including Robinson, Effort, Clarence Lamont Seabrook ("Seabrook"), and Jerry Connor ("Connor"). (Id. ¶ 88.) These witnesses advised Schreiber that Buari did not commit the Harris Murders. (Id. ¶ 90.) The Bronx DA offered Buari a plea bargain of three years' imprisonment on the murder charges (id. ¶ 92), but Buari rejected the offer, maintaining his innocence (id. ¶ 93). He was later released on bail. (Id. ¶ 94.)

In the summer of 1995, drug violence in the 47th Precinct intensified. (Id. ¶¶ 95-97.) Robinson's brother, Peter, was murdered that summer. (Id. ¶ 98.) Believing Buari was involved, Robinson attempted to kill him by shooting at him while he was sitting in a parked car. (Id. ¶¶ 99-100.) Buari survived the attack but sustained serious injuries. (Id. ¶ 101.) Police took Robinson into custody. (Id. ¶ 102.)

Dets. Price, Gottwin, Neenan, and Fortune met with Robinson to discuss the drug violence in the 47th Precinct. (Id. ¶ 103.) The detectives proposed allowing Robinson to operate his drug trade without interference, or "heat," from the police if he implicated Buari for the Harris Murders. (Id. ¶¶ 108-09.) Robinson accepted and agreed to testify against Buari. (Id. ¶ 110.) Dets. Price, Gottwin, Neenan, and Fortune advised ADA Alan Karen, the lead prosecutor on Buari's case, of this arrangement. (Id. ¶ 111.) Those detectives, together with ADA Karen, then coerced Robinson's drug-dealing associates Connor, Seabrook, Johnson, and Kenya Holder ("Holder"), to implicate Buari falsely. (Id. ¶¶ 113, 115.) The Bronx DA offered Connor, Seabrook, and Holder recommendations for leniency for open drug and weapon charges in exchange for their testimony. (Id. ¶ 114.) Dets. Price, Gottwin, Neenan, and Fortune and ADA Karen also coerced Effort into falsely implicating Buari by threatening to charge him as an accessory to the Harris Murders and offering him leniency on his current prison sentence. (Id. ¶¶ 118-20.)

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At a suppression hearing, Dets. Price, Fortune, and Neenan falsely testified that Buari became a suspect after they interviewed Robinson, who claimed Buari was trying to kill him. (Id. ¶ 121.) The detectives did not testify to the arrangements with Robinson and the other witnesses. (Id. ¶ 125.) The judge denied Buari's request to suppress Robinson's identification of him. (Id. ¶ 126.)

In October 1995, Buari was tried before a jury and convicted of two counts of second-degree murder. (Id. ¶¶ 127, 138.) The only evidence linking him to the Harris Murders was the testimony of Robinson, Seabrook, Holder, Connor, Johnson, and Effort. (Id. ¶ 128.) At trial, ADA Karen elicited the testimony from the witnesses but did not disclose the leniency arrangements with them. (Id. ¶¶ 129-37.) Buari was sentenced to consecutive indeterminate terms of imprisonment from twenty-five years to life. (Id. ¶ 138.)

In June 1997, Robinson was arrested for the murder Leroy McClennon. (Id. ¶¶ 139, 143.) He was convicted and sentenced to a term of imprisonment of twenty-five years to life. (Id. ¶ 143.)

C. Post-Conviction...