Walker v. City of N.Y.
| Decision Date | 07 May 2021 |
| Docket Number | 20-CV-5240 (PKC) (LB) |
| Parties | MICHAEL WALKER, Plaintiff, v. CITY OF NEW YORK; BROOKLYN PUBLIC DEFENDERS OFFICE; DANIELLE REGIS; NEW YORK CITY POLICE DEPARTMENT; Detective COURTNEY WINSTON; Detective RAYMOND HIGGINS; Detective JASON GUZMAN; Detective PATRICK JEAN PIERRE; Ranking Detective DANIEL PIERRINO; CIVIL COMPLAINT REVIEW BOARD; Chairman FRANK DAVIE; Field Investigator A. WASSIM; Panel Member S. CARCETERRA; Panel Member M. RIVADENE; Records Access Officer GEORGE ALEXANDER; INTERNAL AFFAIRS BUREAU; Captain BRIAN WHITE; Lt. DWAYNE WATSON; Sgt. MOODE; Detective CARMELO RIVERA; Detective RASHAD VANDROSS; CORPORATION COUNSEL LAW DEPT.; Supervisor NELSON GENEVIEVE; DANIEL OLINER; ALLYSON NICOLE BROWN; CHRISTOPHER D. DELUCA, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Michael Walker, incarcerated at the Eastern New York Correctional Facility, brings this pro se action under 42 U.S.C. §§ 1983, 1985, and 1986, the Americans with Disabilities Act ("ADA") and Rehabilitation Act, and various state-law provisions. Plaintiff's request to proceed in forma pauperis ("IFP") is granted pursuant to 28 U.S.C. § 1915. For the reasons discussed below, Plaintiff's Amended Complaint (Dkt. 24-1) is dismissed in its entirety. Plaintiff is granted sixty (60) days' leave to file a Second Amended Complaint as set forth below.
This case is related to Plaintiff's pending action in Walker v. Raja, No. 17-CV-5202 (PKC) (LB) (E.D.N.Y. Aug. 22, 2017).2 On January 8, 2017, Plaintiff was arrested following an attempted armed robbery of a jewelry store. Walker v. Raja, No. 17-CV-5202 (PKC) (LB), 2020 WL 606788, at *1 (E.D.N.Y. Feb. 7, 2020). After an altercation during which Plaintiff threatened the store owner and an employee with a gun, Plaintiff fled the store with the jewelry and firearm. Id. The store owner followed Plaintiff and wrestled him to the ground, where the pair exchanged blows until civilian bystanders intervened, grabbing Plaintiff and restraining him on the pavement. Id.
Soon thereafter, several police officers from the New York City Police Department ("NYPD") arrived at the scene. Id. In their attempts to subdue and arrest Plaintiff, an officer struck Plaintiff several times, and a female officer "began repeatedly punching him in the face." Id. Plaintiff was charged with, inter alia, robbery, assault, grand larceny, criminal possession of a weapon, and criminal possession of stolen property. Id. at *2. He pled guilty to attempted robbery in the second degree pursuant to New York Penal Law § 160.10(2)(a), and was sentenced to 12 years to life as a "persistent violent felony offender." Id.
Plaintiff had advanced glaucoma and distorted vision prior to the January 8, 2017 arrest, but his vision became completely impaired following the arrest. Id. Plaintiff is now legally blind,and "cannot see, write, type, nor navigate himself without the assistance of" auxiliary aids. (Amended Complaint ("Am. Compl."), Dkt. 24-1, at 10.) Plaintiff also suffers from post-traumatic stress disorder following the arrest and, upon admission to the New York Department of Corrections and Community Supervision ("DOCCS") local county jail, was hospitalized in the medical unit due to medical complications. (Id. at 14-15.)
Attorney Danielle Regis from the Brooklyn Defender Services3 ("BDS") was assigned to represent Plaintiff in his criminal proceeding. (Id. at 15.) Around April 2017, Regis visited Plaintiff in DOCCS confinement, accompanied by a social worker. (Id.) During the visit, Regis played back the surveillance tape from Plaintiff's arrest, verbally describing the video to Plaintiff due to his visual impairment. (Id. at 16.) In the video, the arresting officers were subduing Plaintiff and striking him "until incoherent," including NYPD Officer Elisa Battista, who was "seen repeatedly striking [P]laintiff's head[.]" (Id. at 16.) Regis "immediately shut[] off [the] video" in the middle of playback, which Plaintiff characterizes as "a conscious disregard in preventing [P]laintiff any further information due to overwhelming exculpatory impeaching evidence, enough for criminal charges being brought on [the] seven arresting officers." (Id.) Plaintiff thereafter requested access to the surveillance tape several times to "[n]o avail," which he claims is due to Regis's "derelict tactics to insulate [the] seven arresting officers." (Id.)
On or about May 12, 2017, Plaintiff filed a Notice of Claim with the New York State Office of the Comptroller concerning state-law claims arising from his January 2017 arrest.4 (See id. at 17); see also Walker, 2020 WL 606788, at *2. Plaintiff also filed a "[p]etition with the (DOJ) Dept[.] of Justice (Southern District)" on May 6, 2017, a citizen's complaint with the Civilian Complaint Review Board ("CCRB")5 on May 18, 2017, and a citizen's complaint with the NYPD's Internal Affairs Bureau ("IAB")6 on June 6, 2017. (See Am. Compl., Dkt. 24-1, at 17.) On August 22, 2017, Plaintiff filed a pro se action against NYPD Officers Taimur Raja, David Vazquez, Estharlin Lopez, and Kyle Brown, advancing claims under 42 U.S.C. § 1983 and state law in connection with his January 2017 apprehension and arrest. See Complaint, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Aug. 22, 2017), ECF No. 2; see also Walker, 2020 WL 606788, at *2.
The New York City Office of Corporation Counsel ("Corporation Counsel") represents the arresting officers in Walker v. Raja, which is still pending before this Court. Previously, Allyson Brown, an attorney with Corporation Counsel, requested a stay of the proceedings in light of the pending CCRB investigation. (Am. Compl., Dkt. 24-1, at 18); see also Motion to Stay, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Nov. 2, 2017), ECF No. 19; 11/6/2017 Order, Walker v. Raja,No. 17-CV-5202 (E.D.N.Y. Nov. 6, 2017), ECF No. 21. On June 12, 2018, following an 18-month investigation and hearing in front of a three-member panel,7 the CCRB "exonerated [the] five arresting officers[,]" Raja, Brown, Vazquez, Lopez, and Sgt. Rahman. (Am. Compl., Dkt. 24-1, at 18.) The stay in Walker v. Raja was lifted, and the case proceeded to discovery. (Id. at 18); see also 8/7/2018 Order, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Aug. 7, 2018), ECF No. 51.
During discovery, Plaintiff received the CCRB investigative records and learned that there were seven NYPD officers involved in his arrest, not five, as he had previously thought. (Am. Compl., Dkt. 24-1, at 19.) According to Plaintiff, when questioned by the Court as to whether there were other arresting officers that should have been added to the complaint, Corporation Counsel attorney Brown "strategically respon[ded][] by mentioning only[] (Sgt. Rahman) with a conscious disregard [in] excluding arresting officers . . . [William Chow and Elisa Battista] . . . when having constructive knowledge of direct participation [by] all seven arresting officers." (Id. at 19.) Plaintiff claimed that Brown failed to mention Officers Chow and Battista in order to cover up the CCRB's "mishandling [of] investigations in disavowing information while deleting arresting officers police misconduct . . . which result[ed] in [the] same two arresting officers [being] intentionally excluded from the" CCRB decision. (Id. at 19-20.) Plaintiff also alleged that BDS attorney Regis had seen Officers Chow and Battista on the surveillance tape during her visit with Plaintiff in April 2017, but hid their involvement from Plaintiff. (Id. at 20.) Plaintiff further claimed that he later learned through discovery that "the video surveillance tape, audio and investigative records sent by [the City], [BDS], Brooklyn District Attorney['s] Office and Corporation Counsel law dept [had been] doctor[ed], deleting [the] arresting officers['] policemisconduct[.]" (Id.) Plaintiff believed that the "records, videos, and audio[]" provided to Plaintiff and the Court were "doctored when sent during discovery." (Id. at 21-22 ().) According to Plaintiff, the original video surveillance tape showed Officer Battista "kneeling over [P]laintiff in a malicious assault," and an audio file depicted Officer Vazquez stating that "he [had] used physical force on [P]laintiff," but both files had been deleted, "along with missing investigative records concerning direct participation[.]" (Id. at 20.)
On November 6, 2018, the Court granted Plaintiff leave to file an amended complaint. (Dkt. 62.) The Amended Complaint additionally named as defendants NYPD Officers William Chow and Elisa Battista, Sergeant Sazedur Rahman, and the City of New York (the "City").8 Amended Complaint, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Oct. 31, 2018), ECF No. 61; 11/6/2018 Order, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Nov. 6, 2018), ECF No. 62. On February 7, 2019, Plaintiff filed a motion to compel, in which he raised the issue of the allegedly altered videos, asserting that the "CCRB and Corporation Counsel have in their po[ss]ession video record evidence of . . . facts of police criminal misconduct." Motion to Compel, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Feb. 7, 2019), ECF No. 86, at 1. In response, Corporation Counsel explained that:
Defendants produced copies of these videos to Plaintiff in their original form as received by [Corporation Counsel], and were not altered in any way by this Office. Additionally, Defendants attach hereto as Exhibit B a video of the underlying incident received from the Kings County District Attorney's Office, which is an incomplete version of the video from Brooklyn Defender Services that was previously provided to Plaintiff during discovery and to the Court on December 22, 2017.
Response to Motion to Compel, Walker v. Raja, No. 17-CV-5202 (E.D.N.Y. Feb. 22, 2019), ECF No. 91...
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