Llerando-Phipps v. City of New York

• Decision Date: 29 September 2005
• Docket Number: No. 02 Civ. 9939(RLE).,02 Civ. 9939(RLE).
• Citation: 390 F.Supp.2d 372
• Parties: Arturo LLERANDO-PHIPPS, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

390 F.Supp.2d 372

Arturo LLERANDO-PHIPPS, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.

No. 02 Civ. 9939(RLE).

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

September 29, 2005.

COPYRIGHT MATERIAL OMITTED

Richard B. Cohen, Akabas & Cohen, New York, NY, for Plaintiff, Arturo Llerando-Phipps.

Brett Harris Klein, Leventhal & Klein, LLP, Staten Island, NY, Phillip Kim, Corp. Counsel, New York, NY, for Defendant, City of New York.

Phillip Kim, Corp. Counsel, New York, NY, for Defendants, Detectives James Albanese, Michael Mendez, John Doe No.1, a/k/a Undercover Police Officer No. 4999.

OPINION & ORDER

ELLIS, United States Magistrate Judge.

I. Introduction

On December 18, 2002, Arturo Llerandi-Phipps ("Phipps") brought this action against the City of New York, Detective James Albanese ("Albanese"), Detective Michael Mendez ("Mendez"), John Doe # 1 a/k/a Undercover Officer # 4999, and police officers John Does # 2-10 (collectively, the "Defendants"), claiming that Defendants violated his civil rights under 42 U.S.C. § 1983; his physical liberty and due process rights; and his Fourth, Fifth, and Fourteenth Amendment rights under the United States Constitution; as well as asserting claims for malicious prosecution, false arrest and false imprisonment, battery, and intentional infliction of emotional distress ("IIED").

In February 2005, Phipps submitted a motion in limine to exclude the testimony and report of Defendants' expert, Dr. Richard J. Kassner ("Kassner"). After Defendants submitted their opposition, Phipps submitted another motion in limine to exclude: (1) any evidence relating to his alleged prior drug or alcohol use, or, in the alternative, to bifurcate the liability and damages aspects of the trial because the evidence is impermissibly prejudicial to him; (2) any evidence relating to the alcohol and drug use for "other purposes" under Federal Rule of Evidence ("FRE") 404(b), claiming that it constitutes improper character evidence; and (3) a memorandum written by, and the testimony of, an alleged subordinate of Phipps while both were employees of Defendant City of New York because Defendants failed to identify the witness in sufficient time for Phipps to depose him.

For the reasons that follow, Phipps's motions to exclude Kassner's testimony and report, and his motion to exclude evidence of his alleged prior drug and alcohol abuse, or bifurcate the liability and damages aspects of the trial, are DENIED. Phipps's motion to exclude evidence of alleged prior drug or alcohol abuse for "other purposes" under 404(b) is GRANTED. Phipps's request to preclude a memorandum written by his previous workplace subordinate is DENIED.

Phipps also filed a motion for summary judgment and to dismiss and/or to strike Defendants' fifth and sixth affirmative defenses. This motion is GRANTED.

Defendants, for their part, submitted a motion for partial summary judgment to dismiss Phipps's claim for IIED as to all Defendants, and his § 1983 and malicious prosecution claims against Defendants Mendez, Albanese, and Undercover Officer # 4999. The motion is DENIED with respect to Phipps's malicious prosecution claim under federal and state law against Mendez, Albanese, and Undercover Officer # 4999, and his IIED claim against Defendants Mendez, Albanese, and Undercover Officer # 4999. The motion is also DENIED with respect to CPLR § 215 for Phipps's IIED and malicious prosecution claims against the individual police officers, and with respect to New York General Municipal Law § 50-e for Phipps's IIED claim as to all Defendants.

Defendants' motion for summary judgment with respect to Phipps's IIED and § 1983 claims against the City of New York is GRANTED.

II. BACKGROUND

A. Factual History, Plaintiff's Claims

On April 6, 2001, Phipps was arrested on Avenue C and East 5th Street in Manhattan for allegedly robbing a nearby bodega. Memorandum Of Law In Support Of Plaintiff's Motion In Limine to Exclude The Testimony And Report Of Defendants' Porported [sic] Expert, Dr. Richard J. Kassner ("Kassner In Limine Mem.") at 2. Detective Mendez was the arresting officer. Defendants' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Def's 56.1 Stmt"). Mendez placed Phipps in a police van with three other individuals who were suspected drug dealers. Phipps was strip-searched and imprisoned for one night in the "Tombs." Kassner In Limine Mem. at 3. Police later found thirteen glassine envelopes of a controlled substance next to where Phipps had been sitting in the police van, though no drugs had been discovered when Phipps was searched. Id. at 3. Phipps was not indicted for any criminal acts, and, on February 22, 2002, the court dismissed all charges against him under the "Speedy Trial Act," New York Criminal Procedure Law § 30.30. Kassner In Limine Mem. at 3; Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. SJ Opp.") at 2.

On December 18, 2002, Phipps brought this action based on his April 6, 2001 arrest and subsequent imprisonment. Memorandum of Law in Support of Plaintiff's Motion in Limine to Exclude at Trial (1) Any Evidence Relating to Plaintiff's Alleged Prior Drug or Alcohol Use, and (II) a Memorandum Written by, and the Testimony of an Alleged Subordinate of Plaintiff While Both Were Employed With Defendant City of New York ("Substance In Limine Mem.") at 2. On September 23, 2003, Phipps filed an amended complaint, alleging that Mendez, Albanese, and Undercover Officer # 4999 had deprived him of his constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution, and asserting malicious prosecution and IIED claims against all Defendants. Phipps voluntarily agreed to discontinue, with prejudice, all of his state law claims for false arrest; false imprisonment; and battery against all Defendants; all of his federal and state law claims against police officers John Does # 2-10; and his Fifth Amendment claims against all Defendants.

Phipps claims that police planted the drugs near where he sat in the police van to disguise his unlawful arrest and subsequent imprisonment. Substance In Limine Mem. at 3. He asserts that the police did not have probable cause to believe that he had committed or was committing a crime when they arrested him. Id. at 4. Additionally, he asserts that, as a result of Defendants' conduct, he suffered severe emotional stress and trauma, which resulted in severe depression and abuse of alcohol and illegal drugs. Id. He maintains that, after the incident, he began consuming one liter of cognac a day, cocaine on a monthly basis, and marijuana intermittently. Richard J. Kassner, M.D. Psychiatric Examination ("Kassner Report"), attached to Noah Shapiro Affidavit, dated February 14, 2005 ("Shapiro Aff."), as Exhibit A, at 15. Phipps also claims that he was unable to complete his graduate program at Columbia University, that he was terminated from his employment at the New York State Department of Health ("DOH"), and that his physical and mental health, already compromised by HIV, was further damaged. Substance In Limine Mem. at 4.

Defendants contend that Phipps has a history of psychiatric problems and of abusing alcohol and illegal drugs that began before the April 6, 2001 arrest. Memorandum of Law in Opposition to Plaintiff's In Limine Motion to Preclude Dr. Richard J. Kassner's Expert Opinion Testimony at Trial ("Kassner In Limine Opp.") at 8. To support their claim, Defendants offer the testimony and expert report of Kassner, concerning Phipps's overall psychological and psychiatric status. Id. at 4, 8. Defendants also propose to offer evidence disputing the cause of Phipps's psychological distress and substance abuse, and the extent of damages allegedly caused by his arrest. Id. at 4, 8. In his report, Kassner concludes that Phipps's own misconduct and history of alcohol and substance abuse, not the April 6, 2001 arrest, caused his job loss, persistent alcohol and substance problem, and his deteriorated health condition. Kassner Report at 1, 15. Kassner also indicates that Phipps's conduct and his poor academic record, not the arrest, caused him to discontinue his graduate studies. Id. at 17. To support their theory of causation, Defendants offer a memorandum from a workplace subordinate of Phipps complaining of his behavior at work. Declaration of Phillip Kim ("Kim Decl."), Exh. H.

B. Motions in Limine

Phipps argues that Kassner's testimony and expert report fails to meet the requirements of FRE 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Kassner In Limine Mem. at 5-16. He submits that Kassner lacks the required expertise and factual information to render a reliable opinion, and that Kassner offered a legal conclusion when he stated that there "is no evidence to support Mr. Llerandi-Phipps' claims." Id.

Phipps's second motion in limine challenges the admissibility of any evidence related to prior alcohol or substance use. He argues that the proposed evidence is irrelevant to the instant action, impermissibly prejudicial to him, and inadmissible character evidence under FRE 404(b). Substance In Limine Mem. at 6-10. Phipps also requests that, if the Court allows in the evidence, the liability and damages aspects of the trial should be bifurcated to minimize the prejudice to his case. Id. at 10-11.

Phipps asserts that his co-worker's memorandum should be excluded because Defendants failed to identity the co-worker in sufficient time to depose him or her, the unredacted and redacted versions of the memorandum were not produced to Phipps, and because the memorandum was introduced after the discovery deadline. Id. at 11-12; Pl. Substance Reply at 4-5.

Defendants maintain that Kassner's testimony is relevant, reliable, and does not make legal conclusions. Kassner In Limine Opp. at 6-16. They assert that Phipps's argument relying on FRE 702 and Daub...