White v. City of N.Y.

• Decision Date: 11 September 2016
• Docket Number: 1:15-cv-6696-GHW
• Citation: 206 F.Supp.3d 920
• Parties: Marlow WHITE, Plaintiff, v. The CITY OF NEW YORK, NYPD Officer Ureiba, Officer Garcia, Lieutenant Cautter, Officer Rosendary-Phillips, Officer Abrue, Detective Thomas, Detective Vrlic, and Officers Doe 1-3, Defendants.
• Court: U.S. District Court — Southern District of New York

206 F.Supp.3d 920

Marlow WHITE, Plaintiff,

v.The CITY OF NEW YORK, NYPD Officer Ureiba, OfficerGarcia, Lieutenant Cautter, OfficerRosendary-Phillips, OfficerAbrue, Detective Thomas, Detective Vrlic, and Officers Doe 1-3, Defendants.

1:15-cv-6696-GHW

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

Signed September 11, 2016

Filed September 12, 2016

Donald Robert Dunn, Jr., Law Office of Donald Dunn, Jr., Bronx, NY, for Plaintiff.

Jeffrey Loperfido, Melissa Wachs, Kimberly Joyce, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

In the spring of 2015, PlaintiffMarlow White and his partner, Nathalie Lewis, were threatened and intimidated by Napoleon Monroe, a pattern of harassment that culminated in a 911 call on May 6, 2015.According to White, the police repeatedly refused to take his complaint, smiled and smirked as Monroe harassed him, and treated him with obvious disdain after learning that he is a man of trans experience.Monroe's harassment continued, and White alleges that the police discriminated against him because he is a transgender man when they failed to respond to his subsequent requests for intervention.He brings this action under 42 U.S.C. § 1983, alleging that the NYPD's discrimination against him violated his Fourteenth Amendment rights.Although White alleges discriminatory intent with respect to a subset of the individual defendants, those defendants are shielded by qualified immunity and White has failed to state a claim against the City of New York.Therefore, the motion to dismiss is GRANTED.

I.Background¹

White and Lewis reside in a co-operative building located on West 111th St. (the "co-op").White has lived in the co-op for approximately twenty years, including while he transitioned.Amended Complaint ("AC")¶ 37, ECF No. 68.He serves on the co-op board with several of his neighbors, including Ana Amezquita.AC¶¶ 38, 40.

On March 20, 2015, White delivered some documents to Amezquita and she invited him into her apartment and introduced him to her "paramour,"Monroe. AC¶ 38.During the course of that meeting, Monroe told White that he, Monroe, was uncomfortable with Amezquita discussing "their business" with White.AC¶ 39.White told Monroe that there was nothing to be concerned about, to which Monroe responded "I don't want to hear that s**t!Because I'm a real man with a real d**k!"AC¶ 41.Once White understood that Monroe's hostility was motivated by the fact that White is a transgender man, White asked Monroe not to speak to him anymore and left.AC¶¶ 42-43.

Thereafter, when Monroe and White saw each other around the co-op Monroe would make a point to stop and say hello to White "as if nothing happened."AC¶ 44.Each time, White would ignore Monroe, and over time Monroe became increasingly agitated by these encounters.Id.

On May 3, 2015, White received several text messages sent from Amezquita's phone that White asserts were sent by Monroe.AC¶ 45.The messages appear to relate to Monroe's perception that White wanted to protect Amezquita from Monroe, who, as discussed below, was eventually arrested on domestic violence charges.In the text messages, Monroe said that he was going to speak to White's partner, Lewis, "and see if she needs my company when you and her go threw [sic] things," and that he would treat Lewis "way better than Ana."Ex. A, ECFNo. 71-1;AC¶ 48.Monroe then said "You wanna play dumb, let's play motherf**ker!I just slapped Ana.Come protect her!I'll cut your f**king head off lil man."Ex.A;AC¶ 49.

White understood these text messages to be a threat to his life.AC¶ 49.He and his family made a safety plan that included frequent communication with White's children in anticipation of a physical attack by Monroe.AC¶ 52.White also requested an emergency meeting with the co-op board and shareholders regarding Monroe.AC¶ 53.At the meeting, which was held on May 5, 2015, the shareholders decided to change the co-op's locks "to provide its residents with some measure of security against [Monroe]."Id.White alleges that Amezquita told Monroe about this meeting.AC¶ 54.

On May 6, 2016 at approximately 8:15 a.m., Monroe stopped Lewis as she was leaving for work and asked if she was White's wife.AC¶ 56.Lewis told Monroe to not ask her questions and to leave her alone, and Monroe shouted at her that he was "going to f**k you up" and "going to f**k your transsexual husband up."AC¶¶ 57-58.Monroe followed Lewis when she went back inside the co-op to ask Amezquita to "come get"Monroe. AC¶ 61.After hearing Lewis yelling "leave me alone" through the apartment intercom, White went downstairs; other neighbors also began to gather, and several called 911.AC¶¶ 62-64, 66.Monroe repeatedly asked Lewis if she wanted to see his penis and shouted "transsexual" at White.AC¶ 65.

When New York City Police Department("NYPD") Officers Ureiba and Garcia arrived they began to speak with Lewis, but as soon as Lewis explained that Monroe had harassed White because he is a man of trans experience the officers "expressed obvious distaste for Plaintiff, their entire demeanor changed, and they became completely uncooperative."AC¶¶ 67-69.Officers Ureiba and Garcia refused to take complaints from Lewis and White, and refused to look at the text messages from Monroe on White's phone.AC¶ 70.

As White, Lewis, and their neighbors tried to tell the officers what had happened, Monroe continued harassing White and Lewis in view and earshot of the assembled neighbors and officers.Specifically, he walked up and down the block shouting "transsexual" and reaching into his pants to grab his penis while shouting at Lewis asking if she wanted to see his penis and proclaiming that he was a "real man with a real d**k."AC¶¶ 72-73.He also purported to place a telephone call to a "grandmaster," and asked the grandmaster to "take care of this transsexual and these people."AC¶ 74.At one point, Monroe went into Amezquita's apartment and came out wearing an apron as he taunted and mocked White.AC¶ 75.According to White, Officers Ureiba and Garcia "did nothing but smirk" when Monroe came out in the apron.Id.In addition, when Monroe said "officer you know me, I'm Napoleon," Officer Garcia turned around and smiled.AC¶ 76.

When someone asked the officers if they were going to take a report, Officer Ureiba responded that Monroe "just said the same thing," and the officers said that they would wait until "someone is dead and then come pick up the pieces."AC¶ 77.Only when Monroe approached Lewis—who was standing next to Officer Garcia—and again asked if she wanted to see his "real d**k," which he began to remove from his pants, did Officer Garcia direct Monroe to step back and take Lewis's complaint.AC¶¶ 88-89.

As Officers Ureiba and Garcia were preparing to leave, White approached them and again asked to show them the text messages.AC¶ 91.Officer Ureiba shouted "Step back you, I don't know if you have a weapon on you or something."Id.Amezquita also approached the officers and informed them that she wished to file a criminal complaint against Monroe.AC¶ 92.Although they refused to look at the texts on White's phone, Officers Ureiba and Garcia took Amezquita with them to the 28th Precinct (the "police station") where they took her complaint, and later that day arrested Monroe on domestic violence charges.AC¶¶ 93, 96.

Around noon on May 6, 2015, White and Lewis went to the police station and asked Lieutenant Cautter, the commanding officer, for help filing a criminal complaint.AC¶ 94.White alleges that Lt. Cautter was aware of the nature of his complaint against Monroe and that Lt. Cautter treated White "with obvious disdain."AC¶ 95. Lt. Cautter sent White to speak with Officer Ureiba, who again refused to look at the text messages or take White's criminal complaint, as did the other officers at the police station.AC¶¶ 96-98.

On May 15, 2016, White—with the assistance of counsel—obtained a temporary restraining order ("TRO") directing the 28th Precinct's commanding officer to accept White's complaint and to assist with White's application for an order of protection against Monroe.AC¶¶102-04.Two days later, White's counsel served the TRO and White's Verified Petition in support of the TRO on Lt. Cautter, who mockingly exclaimed "man of trans experience" as he read the papers.AC¶¶ 106-08. Lt. Cautter directed Officer Rosendary-Phillips to take White's statement.AC¶ 109.Officer Rosendary-Phillips reviewed the text messages from Monroe and interviewed White, interrupting the interview at several points to leave the interview room and speak with Lt. Cautter and Officer Abrue, the Integrity Officer on duty that afternoon.AC¶¶ 26, 109-113.White asserts that throughout the interview Officer Rosendary-Phillips had a hostile attitude toward him, and that ultimately Lt. Cautter and Officers Rosendary-Phillips and Abrue refused to file a criminal complaint based on White's allegations.AC¶¶ 109, 115.

On May 18, 2015, White's counsel informed the NYPD's attorney that White would seek to hold the NYPD in contempt for failing to comply with the TRO.AC¶ 116.That evening, NYPD officers went to the co-op to take White's complaint, but White alleges that the complaint does not reflect the totality of the criminal conduct he reported.AC¶¶ 118, 123-24.White told Detective Thomas, the lead detective investigating White's complaint, that he wanted to apply for an order of protection, but Detective Thomas told White that he could not obtain an order of protection unless Monroe was arrested in connection with White's complaint—and Monroe was released from NYPD custody a week later without being arrested for any crimes against White.AC¶¶ 130-32.

After Monroe was released, he resumed harassing White.AC¶ 135.Monroe would walk up and down the street outside the co-op without acknowledging...