Lopez v. Zouvelos

Decision Date23 September 2015
Docket Number13-CV-6474 (MKB)
CourtU.S. District Court — Eastern District of New York

RAMON LOPEZ, Plaintiff,

13-CV-6474 (MKB)


September 23, 2015


MARGO K. BRODIE, United States District Judge:

Plaintiff Ramon Lopez, currently incarcerated at Mid-State Correctional Facility, commenced the above-captioned action on November 14, 20131 and, by his Second Amended Complaint filed on April 19, 2014,2 asserts claims pursuant to 42 U.S.C. § 1983 against Defendants George Zouvelos, Viny Conwell and the City of New York for alleged violations of his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States

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Constitution.3 (Am. Compl., Docket Entry No. 12.) Defendants the City of New York and Zouvelos move to dismiss Plaintiff's Amended Complaint for failure to state a claim.4 (City Not. of Mot. to Dismiss, Docket Entry No. 40; City. Mem. in Support of Mot. to Dismiss ("City Mem."), Docket Entry No. 41; Conwell Not. of Mot. to Dismiss, Docket Entry No. 39; Conwell Mem. in Support of Mot. to Dismiss ("Conwell Mem."), Docket Entry No. 39.)

For the reasons set forth below, the Court grants Zouvelos' motion to dismiss and dismisses the Amended Complaint as to him. The Court also sua sponte dismisses the Amended Complaint as to Conwell. The Court grants the City of New York's motion to dismiss the Amended Complaint against the City of New York but directs the Clerk of Court to substitute Jane Doe # 3, John Doe # 4 (Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6 (Badge # 11511) as Defendants. The Court orders the City of New York to ascertain the full names and service addresses of Jane Doe # 3 and John Does # 4, 5 and 6 and to provide this information to Plaintiff and the Court within thirty (30) days from the date of this Memorandum and Order. Upon receipt of the foregoing information, the Clerk of Court is directed to amend the caption to substitute the names for Jane Doe # 3 and John Does # 4, 5 and 6 and to forward copies of the following documents to the United States Marshal Service for service upon Jane Doe # 3 and John Does # 4, 5 and 6: (1) the Amended Complaint; (2) summonses for Jane Doe # 3 and John Does # 4, 5 and 6; and (3) this Memorandum and Order.

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I. Background

a. Plaintiff's apprehension and surrender to custody

On May 22, 2012, New York City Police Department ("NYPD") Officer John Doe # 1 of the 83rd Precinct, Warrant Squad, visited Plaintiff's home to arrest Plaintiff pursuant to an "erroneous warrant" that appeared to be outstanding in online records of active bench warrants maintained by the New York State Unified Court System.5 (Am. Compl. 7.)6 The warrant had been vacated by Judge William Garnett of the New York State Supreme Court, Criminal Term, on May 21, 2012, but, Plaintiff claims, the warrant still appeared to be outstanding on the system due to a clerical error by the Kings County Supreme Court Clerk. (Id.) After arriving at Plaintiff's home, John Doe # 1 determined that the warrant had been vacated. (Id.) Plaintiff received confirmation from John Doe # 1 that the warrant had been vacated and John Doe # 1 explained to Plaintiff that the warrant erroneously appeared to be outstanding due to "a lapse in the system." (Id.) John Doe # 1 then left Plaintiff's home without apprehending him. (Id.)

On May 24, 2012, Zouvelos, a bail bondsman and the owner of a bail bonds agency then known as NYC Pay Bail, instructed his partner, Conwell, to "unlawfully arrest" Plaintiff on the basis of the erroneous online records. (Id.) Conwell, who is a bounty hunter, prepared to apprehend Plaintiff with the help of Conwell's "four-man crew." (Id.) Before going to Plaintiff's home to take Plaintiff into custody, Conwell and the agents under his supervision went to the 83rd Precinct to "state why his team was in the area" and provide notification about "who

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he was arresting." (Id.) Upon reporting to the 83rd Precinct, Conwell spoke with "command[ing] officer" John Doe # 2 who "authorized Conwell to illegally arrest Plaintiff and "act[ed] in concert" with Conwell "without inquiring into the basis of [Conwell's] claim" that Plaintiff's arrest was warranted. (Id.)

Although on May 22, 2012, John Doe # 1 had created and logged a "known report" indicating that the warrant pertaining to Plaintiff was erroneous, John Doe # 2 did not retrieve the report and failed to verify Conwell's claim that there was an outstanding bench warrant as to Plaintiff. (Id. at 7-8.) John Doe # 2 did not check the "internal record source and external databases" that were available to John Doe # 2. (Id.) Instead, John Doe # 2 sent Conwell and his crew, unescorted, to Plaintiff's home. (Id. at 8.)

After notifying the 83rd Precinct, Conwell and his agents went to Plaintiff's home to apprehend him. (Id.) "[W]ithout a warrant or court order," Conwell and his agents "forced themselves inside the home" and all those present, including senior citizens and children, were horrified by the "harsh treatment and lethal weapons" of Conwell and his agents. (Id.) Plaintiff also alleges that Conwell and his agents brought a photographer who took unauthorized photographs of Plaintiff's family and posted them on social media to "publicize and circumscribe humiliation" to Plaintiff and his family. (Id.)

Plaintiff claims that, in failing to escort Conwell, John Doe # 2 failed to "acknowledge the significance of the public's 'safety, peace, and order'" and the NYPD's responsibility to "protect and serve" in violation of NYPD custom or policy. (Id.) Plaintiff also alleges that John Doe # 2 did not adhere to the NYPD's custom or policy by disregarding the NYPD motto "Courtesy, Professionalism, Respect" when he failed to intervene and come to Plaintiff's aid and instead "act[ed] in concert" with Conwell. (Id.) Plaintiff claims Lieutenant Arsenio Camilo of

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the 83rd Precinct was also on duty the night of Plaintiff's arrest and witnessed the events at the 83rd Precinct as they unfolded. (Id.)

Following Plaintiff's apprehension by Conwell and his crew, Plaintiff was placed in handcuffs and taken to the 83rd Precinct by Conwell and his agents. (Id. at 9) While Plaintiff waited in Conwell's Jeep outside of the 83rd Precinct in handcuffs, and under the supervision of Conwell's agents, Conwell completed paperwork inside the 83rd Precinct. (Id.) Plaintiff remained with Conwell and his agents until about 4:30 AM on May 25, 2012, at which point Conwell transported Plaintiff to Rikers Island. (Id.)

Upon his arrival at Rikers Island, Plaintiff overheard John Doe # 3, a correction officer stationed at the "front desk" of the "intake area," tell Conwell, "I'm going to charge you a fee for each body brought in." (Id.) Plaintiff alleges that this comment evidences a "conspiracy" to "obstruct justice and hold Plaintiff against his will" and, Plaintiff claims, the intake officer accepted Conwell's "frivolous paperwork" without confirming that Plaintiff was, in fact, a fugitive from justice. (Id.)

On May 29, 2012, Plaintiff was brought before New York State Supreme Court Judge John P. Walsh for a bail hearing. (Id.) Judge Walsh set bail and Plaintiff was returned to Rikers Island following the hearing. (Id.) At an unspecified time thereafter, Plaintiff was transferred from Rikers Island to the Brooklyn Detention Center ("BK Detention Center"). (Id.)

b. Ankle and knee injuries sustained while incarcerated

On an unspecified date, Plaintiff fractured his ankle and sprained his knee while he was incarcerated at BK Detention Center. (Id. at 4, 10.) Plaintiff sustained these injuries during recreation and they were caused by a deteriorated rubber mat with a non-visible hole. (Id. at 10.) Plaintiff alleges that, although BK Detention Center was "renovated and reopened in early

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2012," it "appears the [mats] were overlooked by the assigned contractors." (Id.) As a result of DOC's "failure to maintain a safe environment," Plaintiff suffers from "severe pain" to his knee and ankle and "constantly feels the aftermath" of these injuries and, at times, is "unable to sit or stand for long periods" or jump as he used to prior to the injuries. (Id.) Plaintiff alleges that he sought immediate medical attention for his knee and ankle injuries but was only "provided the bare minimum, an [ACE] bandage and pain medication." (Id. at 4, 10.) Plaintiff claims that he received no "follow up" treatment from the medical staff. (Id. at 4.)

c. Strip search while incarcerated

On October 12, 2012, while Plaintiff was incarcerated in "the 4 building (4 Main Lower)" on Rikers Island, Plaintiff was improperly strip searched by "special unit correction officers" John Doe # 4 (Badge # 665), John Doe # 5 (Badge # 1683), and John Doe # 6 (Badge # 11511). (Id. at 10.)

Plaintiff alleges that, in the course of an argument between Jane Doe # 3 and an inmate who did not speak English, "Plaintiff offered to assist the captain" by translating.7 (Id.) In response, "the captain threatened and racially stereotyped Plaintiff as being a gang member" and Jane Doe # 3 stated, "You are going to see what's going to happen to you F*** spic," and dispatched the "special unit," a team of officers consisting of John Does # 4, 5 and 6. (Id. at 11.) The "special unit" was "sent by Jane Doe # 3...

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