HARGROVES v. City of New York, No. 03-CV-1668 (RRM)(ALC)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: Concepcion A. Montoya, Corporation Counsel of the City of NY, New York, NY
• Citation: 694 F. Supp.2d 198
• Parties: Tyree HARGROVES, Lavar Hargroves, Brandon Hargroves, and Kenneth Wright, Plaintiffs, v. The CITY OF NEW YORK, New York City Police Department, Barry Culpepper, and Joseph Liotta, Defendants. David Allen, Plaintiffs, v. The City of New York, New York City Police Department, Barry Culpepper, Joseph Liotta, and John Warner, Defendants.
• Decision Date: 04 March 2010
• Docket Number: 03-CV-5323 (RRM)(ALC),No. 03-CV-1668 (RRM)(ALC),03-CV-3869 (RRM)(ALC),03-CV-4646 (RRM)(ALC).

694 F. Supp.2d 198

Tyree HARGROVES, Lavar Hargroves, Brandon Hargroves, and Kenneth Wright, Plaintiffs,
v.
The CITY OF NEW YORK, New York City Police Department, Barry Culpepper, and Joseph Liotta, Defendants.
David Allen, Plaintiffs,
v.
The City of New York, New York City Police Department, Barry Culpepper, Joseph Liotta, and John Warner, Defendants.

Nos. 03-CV-1668 (RRM)(ALC), 03-CV-3869 (RRM)(ALC), 03-CV-5323 (RRM)(ALC), 03-CV-4646 (RRM)(ALC).

United States District Court, E.D. New York.

March 4, 2010.

694 F. Supp.2d 202

Michael B. Lumer, Steven Mark Weiner, Reibman & Weiner, Michael Levine, Brooklyn, NY, Michael R. Scolnick, Law Office of Michael R. Scolnick, P.C., Blavelt, NY, for Plaintiffs.

Elizabeth M. Daitz, Jennifer Angela Coyne, The City of New York Law Department Office of Corporation Counsel, Frances Sands, Lisa Susan Rabinowitz, Corporation Counsel for the City of New York, New York, NY, for Defendants.

Concepcion A. Montoya, Corporation Counsel of the City of NY, New York, NY.

MEMORANDUM & ORDER

MAUSKOPF, District Judge.

Plaintiffs Tyree Hargroves, Lavar Hargroves, Brandon Hargroves, and Kenneth Wright (collectively, the "Hargroves Plaintiffs"), as well as David Allen (together with the Hargroves Plaintiffs, "Plaintiffs"), bring these actions,¹ now consolidated, alleging

694 F. Supp.2d 203

that on the night of March 20, 1998, around midnight, Plaintiffs were unlawfully arrested by Police Officers Barry Culpepper, Joseph Liotta, and John Warner. Plaintiffs' claims, brought pursuant to 42 U.S.C. § 1983, are for illegal stop and detention, false arrest, malicious prosecution, and violation of plaintiffs' equal protection rights because of alleged racial profiling. Plaintiffs also bring various state law claims based on similar allegations. Plaintiff Allen additionally alleges conspiracy under 42 U.S.C. § 1985 and excessive force claims. Defendants the City of New York (the "City"), the New York City Police Department (the "NYPD"), and Police Officers Barry Culpepper, Joseph Liotta, and John Warner move for summary judgment primarily on the issue of qualified immunity, but also argue (1) that Plaintiffs' false arrest, illegal stop and detention, racial profiling, and conspiracy claims are time-barred; (2) that Plaintiffs' malicious prosecution claims fail on the merits; (3) that there is no basis for Plaintiffs' § 1983 claim to proceed against the City; (4) that there is no actionable claim against Defendant Warner; and (5) that the Hargroves Plaintiffs' state law claims against the City must be dismissed for failure to comply with the notice requirements of New York General Municipal Law § 50-e. Plaintiffs cross-move for summary judgment on Defendants' affirmative defense of qualified immunity, arguing that the defense should be stricken, and that they are therefore entitled to summary judgment on the malicious prosecution claims against the Individual Defendants. For the reasons set forth below, the Court grants Defendants' motion for summary judgment as to Defendant Warner and as to Plaintiff Allen's § 1983 claims for excessive force, and all of his § 1985 claims, but denies their motion with respect to all other claims. The Court denies Plaintiffs' motion for summary judgment in its entirety

BACKGROUND²

A. The Events of March 20-21, 1998

On March 20, 1998, at approximately 11:30 p.m., Zhi Wu, a Chinese food delivery man, was attacked and robbed by a group of black men near 100-41 196th Street in Queens, New York. The men in the group hit, punched, and kicked Wu, stealing cash and food from him. After attacking Wu, the attackers fled toward Jamaica Avenue. Wu did not recognize his attackers, but later told police officers that he had seen their faces and clothing during the attack. At some time after 11:50 p.m., Defendants Culpepper and Liotta heard a radio call regarding a robbery, and drove to 100-41 196th Street, where they spoke with Wu. As relevant here, Wu told Culpepper that he had been attacked by a large group of male black youths, and that one of the men who had attacked him was wearing a very big overcoat or "fluffy" jacket that was orange in color. Wu also told Culpepper that he would be able to identify the attackers.

Culpepper and Liotta then canvassed the neighbourhood surrounding the crime scene in their vehicle, during which time Culpepper heard a radio broadcast describing Wu's attackers as being armed with a firearm, and one of them wearing an orange jacket. Liotta claimed that he received a radio broadcast describing a male black suspect with an orange and black jacket. After approximately ten minutes of canvassing the area, Culpepper

694 F. Supp.2d 204

noticed a group of black males walking down Jamaica Avenue near 198th Street toward the site of the attack, reportedly the only group that Culpepper saw during the canvass. Jamaica Avenue at 198th Street is less than eight blocks from where the attack occurred. At approximately 12:10 a.m., Culpepper and Liotta pulled over in front of the group of men, stopped the group, and called for backup. Notably, the group of men did not attempt to flee when the police stopped them

It is here that the accounts of Defendants and Plaintiffs diverge significantly. Culpepper claimed that he stopped the group of black males because "they were close to the scene of the crime, the time of night, the fact that the males were the only persons that Culpepper observed during the canvass, the fact that one of the males wore a jacket matching the description provided to him by Wu and what he heard over the radio run, the age of the males and the fact that they were black." (Defs.' L.R. 56.1 Stmt. (Doc. No. 103) ¶ 35.) Culpepper also claims that he saw that one of the persons in the group, whom he later identified as Lavar Hargroves, was wearing what he described as "like an orange jacket" or "a jacket with some orange on it" or a "red orange jacket." (Id. ¶ 34.) Liotta claimed that he observed one of the individuals wearing a black and orange jacket. (Id. ¶ 36.) Plaintiffs, on the other hand, argue that the evidence establishes that no member of their group was wearing anything that could be termed an orange jacket, whether orange or black and orange. They claim that the only possible reason Culpepper and Liotta had for stopping them was because they were male and black. Moreover, Plaintiffs maintain that, prior to a show-up, described below, Defendants expressed the belief to Chikosi Kidd, another member of the group who was not arrested, that Plaintiffs were guilty of attacking Wu.³ (Pls.' L.R. 56.1 Resp. Stmt. (Doc. No. 113) ¶ 47.)⁴

Following the stop, Culpepper arranged to have Wu brought to 198th Street and Jamaica Avenue so that Culpepper could conduct a show-up identification. Wu arrived within forty-five minutes of the attack, and he attempted to identify whether any of the group had been his attackers. Wu viewed each individual from the rear passenger seat of the police car, while Culpepper stood next to him outside the car. The parties disagree as to whether each member of the group was presented to Wu or whether only the seven individuals eventually identified as attackers were presented. The parties agree that the area was lit by streetlights, police car headlights, and police car spotlights, but disagree as to the quality of the lighting or the visibility. The parties also disagree as to Wu's ability to see, with the Plaintiffs arguing that Wu had been badly beaten during the attack, that his face was "puffed up really bad," and that his eyeglasses, which he needed to see beyond one foot, had been "punched in." (Pls.'

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L.R. 56.1 Resp. Stmt. ¶ 47.) Furthermore, Plaintiffs argue that Wu could not communicate well in English, and so cast doubt on his understanding of what was going on, and his communications with Culpepper during the show-up. (Id.) Defendants dispute that Wu's vision was impaired, or that he had any difficulty in communicating with Culpepper. Finally, it is undisputed that Wu had in fact been shot in the leg during the earlier attack, but apparently did not realize his injury until after the show-up, at the police station.⁵

The parties agree that Wu eventually identified seven members of the group as having been among the group that attacked him: the four Hargroves Plaintiffs, Allen, Lawrence Strickland, and Delroy Ridley. Two other members of the group, Chikosi Kidd and Quame Riley, were released following the show-up procedure. The seven members of the group identified as having participated in the attack were arrested and eventually taken to Central Booking. It is undisputed that the only role Defendant Warner played in the events of March 20-21 was in taking the statements of Brandon and Tyree Hargroves and possibly taking photographs of some of the Plaintiffs at the precinct house after they were arrested.

B. Lavar Hargroves' Jacket

The key factual dispute between the parties turns on the appearance of Lavar Hargroves' jacket. As noted above, complainant Wu told Culpepper that one of the attackers wore an orange jacket, and Culpepper noted that his observation of Lavar Hargroves wearing what he described as "like an orange jacket" or "a jacket with some orange on it" or a "red orange jacket" was one of the reasons that he stopped the group of individuals on Jamaica Avenue and 198th Street. (Defs.' L.R. 56.1 Stmt. ¶ 34.) Plaintiffs, however, deny that Lavar Hargroves, or any other member of the group, was wearing an orange jacket. Unfortunately, the record on this point is unclear; two separate pictures taken the night of the arrest depict a jacket that is blue and red, with what appears to be a reflective, lighter red inner lining. Notably the appearance of the lining differs from one picture to the next; in a Polaroid taken the night of the arrest (Pls.' Ex. 41)⁶, the lining appears almost beige, and in the photograph taken at Central Booking (Pls.' Ex. 40), it appears as...