Cooper v. City of N.Y., 17-CV-1517 (NGG) (RLM)

• Decision Date: 05 August 2019
• Docket Number: 17-CV-1517 (NGG) (RLM)
• Parties: STEVEN COOPER, Plaintiff, v. CITY OF NEW YORK; DANIEL O'CONNOR; POLICE LIEUTENANT THOMAS JACOBS; POLICE OFFICER JESSICA SCHRELL SHIELD NO. 26482; POLICE SERGEANT BRENDAN RYAN; NEW YORK POLICE OFFICERS JOHN DOES 1-10 THE IDENTITY OF WHOM IS PRESENTLY UNKNOWN, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS NEW YORK CITY POLICE OFFICERS, Defendants.
• Court: U.S. District Court — Eastern District of New York

STEVEN COOPER, Plaintiff,
v.
CITY OF NEW YORK; DANIEL O'CONNOR; POLICE LIEUTENANT THOMAS JACOBS;
POLICE OFFICER JESSICA SCHRELL SHIELD NO. 26482; POLICE SERGEANT BRENDAN RYAN;
NEW YORK POLICE OFFICERS JOHN DOES 1-10 THE IDENTITY OF WHOM IS PRESENTLY UNKNOWN,
IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS NEW YORK CITY POLICE OFFICERS, Defendants.

17-CV-1517 (NGG) (RLM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 5, 2019

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Steven Cooper commenced this action on March 17, 2017, asserting claims under 42 U.S.C. § 1983 ("§ 1983") and state tort laws against Defendants Police Officer Jessica Schrell, Police Sergeant Brendan Ryan, Police Lieutenant Thomas Jacobs, unknown John Doe Police Officers 1-10, and Daniel O'Connor (collectively the "Individual Defendants"), and the City of New York ("the City"). (See Compl. (Dkt. 1).) On September 29, 2018, the court dismissed the First Amended Complaint ("FAC") (Dkt. 36) without prejudice. See Cooper v. City of New York, No. 17-CV-1517 (NGG) (RLM), 2018 WL 4762248, at *11 (E.D.N.Y. Sept. 29, 2018). Plaintiff now seeks leave to file a second amended complaint. (See Pl. Mot. to Amend ("Mot.") (Dkt. 69-2¹).) For the following reasons, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

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I. BACKGROUND

A. Factual Background

The court takes the following statement of facts largely from Plaintiff's PSAC, the well-pleaded allegations of which the court generally accepts as true for purposes of the motion to amend. See Ind. Pub. Ret. Sys. v. SAIC, Inc., 818 F.3d 85, 92 (2d Cir. 2016) ("We assess futility as we would a motion to dismiss, determining whether the proposed complaint contains enough facts to state a claim to relief that is plausible on its face." (citation and quotation marks omitted)).

Plaintiff alleges that on March 20, 2016 he was hit by a vehicle driven by Jacobs as he was crossing the street in Brooklyn, New York. (PSAC ¶¶ 26-28.) Jacobs is a New York Police Department ("NYPD") officer. (Id. ¶ 10.) O'Connor, a private citizen, Mona, a retired lieutenant of the NYPD, and "a number of John Doe defendants, at least three of whom are NYPD officers," were passengers in the vehicle. (Id. ¶ 27; see id. ¶ 17.) After Plaintiff was struck by the vehicle, Jacobs, O'Connor, and a John Doe exited the vehicle. (Id. ¶ 29.)

O'Connor and Jacobs approached Plaintiff and began to chase him as he attempted to flee. (Id. ¶¶ 30-31.) O'Connor struck Plaintiff on the head, choked him, grabbed him, and pushed him into the middle of the road. (Id. ¶ 31.) Jacobs joined O'Connor in "assaulting and battering" Plaintiff. (Id. ¶ 32.) Plaintiff alleges that he felt a firearm on Jacobs's person. (Id.) O'Connor and Jacobs chased Plaintiff and, at one point, Jacobs lost his balance while trying to pick up Plaintiff's hat from the sidewalk and "tumbled over and fell on the sidewalk face-first." (Id. ¶¶ 34-35.)

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Plaintiff alleges that he "initially escaped" and called 911 for help. (Id. ¶ 36.) During the call, O'Connor and Jacobs caught up to Plaintiff and could be "heard punching and otherwise assaulting" Plaintiff. (Id. ¶ 37.) The 911 operator advised Plaintiff that police were on the way. (Id. ¶ 38.)

Defendants Schrell and Horun, both officers of the NYPD (see id. ¶¶ 11-12), arrived shortly thereafter in a NYPD radio mobile patrol ("RMP") vehicle. (Id. ¶ 39.) Horun and Schrell ordered Plaintiff to get into the RMP. (Id. ¶ 40.) Plaintiff then told Horun and Schrell "what occurred," at which point Horun told Plaintiff to "shut the fuck up." (Id.) Plaintiff then "saw Jacobs display his badge to the other NYPD officer and heard Jacob's say that he was 'on the job.'" (Id. ¶ 41.)

Plaintiff then expressed his wish to go home and tend to his injuries (id. ¶ 41), but Katrincic and Morales, two additional NYPD officers (see id. ¶¶ 13, 15), told Plaintiff that he was not free to leave and insisted that he remain in the RMP vehicle (id. ¶ 41). Plaintiff alleges that "[w]ithout an arrest warrant or probable cause, and lacking any legal justification," Plaintiff was then "unlawfully detained, against his will, and transported in the RMP vehicle to the 90th Precinct." (Id. ¶ 42.)

Plaintiff states that his "face, body, and right eye were so swollen and bleeding that he repeatedly pleaded with Schrell, Horun, Katrincic, Morales, Barnhart [(an NYPD officer who works at the 90th Precinct (see id. ¶ 14))], and Joe Doe Police Officers for medical assistance." (Id. ¶ 43.) Plaintiff sat at the 90th precinct for several hours while his right eye was bleeding and received no medical treatment. (Id. ¶ 44.) Plaintiff alleges that he was "told by Schrell, Horun, Katrincic, Morales, Branhart, and Joe Doe Police Officers" that he could not leave because the

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NYPD Internal Affairs Bureau ("IAB") was on its way, but no members of IAB interviewed Plaintiff that day. (Id. ¶ 45.)

At approximately 8:00 p.m., four hours after the assault, Plaintiff told Barnhart that he wanted to press charges against Jacobs, O'Connor, and all the John Doe police officers involved. (Id. ¶ 47.) Barnhart allegedly responded by asking if Plaintiff was sure. (Id.) Plaintiff said, "yes, don't you think I should based on what happened?" (Id.) Barnhart then told Cooper he would be right back. (Id.) Plaintiff avers that Schrell, Ryan, Jacobs, Horun, Katrincic, Morales, Barnhart, and the John Doe Police Officers "thereafter . . . fabricated a scenario designed to result in the arrest of [Plaintiff]." (Id. ¶ 48.)

At approximately 10:30 p.m., Barnhart allegedly informed Plaintiff that he was under arrest, placed Plaintiff in a holding cell, and fingerprinted him. (Id. ¶ 49.) Plaintiff asserts that he was arrested "based on Schrell, Ryan, Jacobs, Horun, Katrnic, Morales, Barnhart, and the John Doe Police Officers['] false allegations and/or omissions." (Id. ¶ 49.) The next day, March 21, 2016, Plaintiff was given a desk appearance ticket charging him with assault in the third degree and ordering him to appear in court on April 25, 2016. (Id. ¶ 51.)

On March 23, 2016, the New York Post published an article about the incident that included an allegedly false statement by Ryan to the effect that Plaintiff punched Jacobs in the face, causing bruising and swelling to Jacobs. (Id. ¶ 52.) Plaintiff claims this statement was per se "false and defamatory." (Id.)

On April 25, 2016, Cooper was arraigned under docket number 2016KN023559. (Id. ¶ 53.) He was charged with "[a]ssault in the third degree, [c]riminal [m]ischief in the fourth degree, [a]ttempted assault in the third degree, menacing in the third degree and [h]arassment in the second degree." (Id. ¶ 57.) Plaintiff alleges that "[t]he documents filed by Schrell, Ryan,

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Jacobs, Horun, Katrincic, Morales, Barnhart and the John Doe Police Officers with the Criminal Court . . . were false, perjurious and filed in order to shield the defendants from liability and continue the malicious prosecution" of Plaintiff. (Id. ¶ 54.) Plaintiff does not, however, identify or otherwise describe these "documents." Similarly, Plaintiff references "aforementioned sworn allegations and documents [that] were filed by Schrell, Ryan, Jacobs, Horun, Katrincic, Morales, Barnhart and the John Doe Police Officers" (id. ¶ 55), without identifying or describing those allegations or documents.

Plaintiff alleges that "[d]espite receiving video evidence that showed the true aggressors, the Kings County District Attorney relentlessly continued the malicious prosecution of [Plaintiff] and continued to ignore the criminal acts committed by Schrell, Ryan, Jacobs, Horun, Katrincic, Morales, Barnhart and the John Doe Police Officers." (Id. ¶ 56.) The criminal case against Plaintiff was ultimately "dismissed on the merits" on June 20, 2016. (Id. ¶ 57.)

In March 2016, O'Connor was charged with assault, menacing, and harassment as a result of the physical altercation with Plaintiff. (Id. ¶ 58.) The court issued an order of protection, ordering O'Connor to stay away from Plaintiff. (Id.) On November 21, 2016, "O'Connor was allowed to negotiate a plea of disorderly conduct and sealing of the record." (Id. ¶ 59.) The order of protection remained in effect until November 20, 2018. (Id. ¶ 60.)

Plaintiff alleges that, "[a]s a direct result of the assault, battery and tortious conduct committed by Schrell, Ryan, Jacobs, Horun, Katrincic, Morales, Barnhart, the John Doe Police Officers and O'Connor," he has been "permanently injured both physically and mentally" (Id. ¶ 61.) Specifically, Plaintiff's right eye was "badly damaged," "requiring a procedure of cataract extraction with intraocular lens implantation." (Id. ¶ 63.)

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B. Procedural History

On June 30, 2017, Plaintiff filed the FAC. (See FAC; May 31, 2017 Order (explaining that because no defendant has answered the complaint, Defendant may amend as a matter of course).) Three separate motions to dismiss were filed: (1) by the City, Ryan, and Schrell (collectively, the "City Defendants") (see City of New York Notice of Mot. to Dismiss ("City Mot. to Dismiss") (Dkt. 56)); (2) by Jacobs (Jacobs Notice of Mot. to Dismiss ("Jacobs Mot. to Dismiss") (Dkt. 54)); and (3) by O'Connor (O'Connor Mot. to Dismiss ("O'Connor Mot. to Dismiss") (Dkt. 55)). On September 29, 2018, the court granted all three motions and dismissed the FAC without prejudice. See Cooper, 2018 WL 4762248.

Plaintiff filed a second amended complaint on November 28, 2018 and a subsequent motion to amend the complaint on December 4, 2018. (See Second Am. Compl. (Dkt. 63); Letter Mot. to Amend Compl. (Dkt. 64).) The December 4 motion was denied without prejudice pursuant to the court's individual rules, which require any party who wishes to amend a pleading pursuant to Federal Rule of Civil Procedure 15(a)(2) to first request a pre-motion conference. (See Dec. 13, 2018 Order.)

On December 17, 2018, Plaintiff filed a...