Carmichael v. City of N.Y.

34 F.Supp.3d 252

Elle CARMICHAEL, as Administratrix of the Estate of Romona Moore, Plaintiff

v.The CITY OF NEW YORK, Robin D. Wallace, Adrianne R. Wallace, Kayson Pearson, and Troy Hendrix, Defendants.

No. 06–cv–1913 NGVVP.

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

Signed Aug. 1, 2014.

Robert J. Barsch, Levittown, NY, David Evan Gottlieb, Douglas Holden Wigdor, Tanvir Haque Rahman, Wigdor LLP, New York, NY, for Plaintiff.

Arthur G. Larkin, NYC Office of Corporation Counsel, Gabriel Paul Harvis, Harvis Wright & Fett LLP, Robyn Nicole Pullio, Shawn Fabian, Susan P. Scharfstein, The New York City Law Department, New York, NY, A. Lorenzo Bryan, Law Office of A. Lorenzo Bryan, LLC, Brooklyn, NY, for Defendants.

Robin D. Wallace, Brooklyn, NY, pro se.

Adrianne R. Wallace, Brooklyn, NY, pro se.

OPINION & ORDER

GERSHON, District Judge:

Plaintiff Elle Carmichael, as administratrix of the estate of her daughter, Romona Moore, identified in the complaint as African–American, brings this action pursuant to 42 U.S.C. §§ 1983 and 1981. She alleges that defendant City of New York, as part of a discriminatory city-wide practice, deprived Ms. Moore of her constitutional rights by failing to label her “missing” when her disappearance was first reported to the police, and then failing to conduct an immediate investigation, as it would have done for a white person reported missing. The City now moves for summary judgment on both claims. For the reasons explained below, the City's motion for summary judgment is granted.¹

BACKGROUND

Except where noted below, the historical facts are undisputed.

I. Romona Moore

Ms. Moore, born on October 8, 1981, lived with her mother, Ms. Carmichael, on Remsen Avenue in Brooklyn. On April 24, 2003, at approximately 7:00 p.m., Ms. Moore left home, telling her mother that she was going to the Burger King located half a block away. Ms. Moore did not return.

Around 9:00 a.m. the next morning, Ms. Carmichael called the NYPD's 67th Precinct to report her daughter missing. She was told to call 911 instead. Ms. Carmichael called 911, expressing concern that something was wrong because her 21–year–old daughter never returned from a trip to Burger King.

Officer Monique Richardson and another officer visited Ms. Carmichael's home in response to her 911 call. Ms. Carmichael repeated what she told the operator, further explaining that Ms. Moore was a “delicate child,” had registered for summer classes at Hunter College only the day before, was a successful student who never missed a lecture, and that it was uncharacteristic for her to go out and not call or return home. Ms. Carmichael informed Officer Richardson that she had since called her daughter's friend, “Gary” (Williams) and that he said that Ms. Moore had been at his house the evening before. The police later learned that Ms. Moore was at Mr. Williams's house, in the same neighborhood, very briefly, and then said she was going to Burger King and would call him when she got home.

Officer Richardson stated that she would file a report at the precinct for informational purposes, but that she could not file a “missing persons” report because Ms. Moore was not sixteen years old or younger. Officer Richardson said that, if Ms. Carmichael were still concerned, she could call the precinct that night at 7:00 p.m., since it takes twenty-four hours for any action to be taken for missing persons. Officer Richardson's informational report indicated Ms. Moore's race. Around 9:30 a.m. on April 25, 2003, the NYPD closed Ms. Moore's case.

As directed, Ms. Carmichael called the 67th Precinct at 7:00 p.m. that night, explaining to Detective Patrick Henn that two police officers who visited her house that day told her to call at 7:00 p.m., and she asked him whether there would be an investigation. In a “nasty manner,” Detective Henn stated that Ms. Carmichael's daughter was 21 years old; Officer Richardson had not followed proper procedure in taking the report; and that she should never call again. Ms. Carmichael also testified that Detective Henn told her that Ms. Moore could be anywhere with her boyfriend, and he did not know why Ms. Carmichael had called.

Ms. Carmichael returned to the 67th Precinct the next morning, on April, 26, 2003, with four family members. She complained to a Detective Hutchinson about how she was treated the night before, begged him for help, and asked him to call Mr. Williams's house to see if something was wrong when Ms. Moore visited him that evening. Detective Hutchinson stated that he could not call Mr. Williams's house and that there was nothing he could do because Ms. Moore was 21 years old.² Ms. Carmichael also testified that the detective told her to note the number of “missing person” posters hung up outside of the 67th Precinct: “[M]a'am you can check to see how many missing persons there are there. Do you think we can look for everyone.” Pl.'s Ex. B, Carmichael Tr. 27.

On April 28, 2003, Ms. Carmichael sought the help of public officials, who contacted the 67th Precinct about Ms. Moore's disappearance. Ms. Carmichael testified that, around 2:00 p.m. that day, someone from the 67th Precinct called her, asking, “[W]hy are you calling all these officials to call this office looking for your daughter? Why are you bothering us? Why are you just reporting us to everyone you feel like reporting us to look for your daughter?” Id., Carmichael Tr. 34.

Under Section 207–23 of the NYPD Patrol Guide (the “Patrol Guide”), a “missing person” is defined as follows:

MISSING PERSON —Person missing from a NEW YORK CITY RESIDENCE and:

a. Under eighteen (18) years of age, OR

b. Mentally or physically impaired to the extent that hospitalization may be required, OR

c. Senile, retarded or disabled and not capable of self-care or clear communication, OR

d. Sixty-five (65) years of age or older, OR

e. Possible victim of drowning, OR

f. Indicated an intention of committing suicide, OR

g. Absent under circumstances indicating unaccountable or involuntary disappearance (“Category G”).

Pl.'s Ex. A, Patrol Guide, NYC 806. “Persons eighteen (18) years of age or older, who have left home voluntarily because of domestic, financial or similar reasons” are excluded from the definition of a missing person. Id. The Patrol Guide expressly states that “[t]here are no minimum time limits that must be observed before accepting a report of a missing person.” Id., Patrol Guide, NYC 807. An “immediate investigation and/or search is required” for certain “ ‘special category’ missing persons cases”:

a. Child under sixteen (16) years of age, OR

b. Mental/physically impaired to the extent that hospitalization may be required, OR

c. Senile, retarded or disabled and not capable of self-care or clear communication, OR

d. Sixty-five (65) years of age or older, OR

e. Unique/unusual case, OR

f. Missing under circumstances indicating unaccountable or involuntary disappearance, OR

g. Possible drowning victim.

Id., Patrol Guide, NYC 808.

Under the Patrol Guide, a variety of actions are authorized when conducting an immediate investigation, including the two that plaintiff focuses on here—a door-to-door canvass of a missing person's travel route starting with where she was last seen and the use of NYPD-trained bloodhounds to assist in a search.

The parties do not dispute that, until April 28, 2003, the NYPD did not consider Ms. Moore to be a “Category G” “missing person” who was “[a]bsent under circumstances indicating unaccountable or involuntary disappearance.” Pl.'s Ex. A, Patrol Guide, NYC 806.

After public officials called the precinct on April 28, 2003, Detective Wayne Carey was assigned to the case. That evening, Detective Carey visited and interviewed Ms. Carmichael, asked to see Ms. Moore's room, and took Ms. Moore's social security card and bank card from the house. He did not ask whether Ms. Carmichael wanted publicity for her daughter's absence. Ms. Moore gave the detective Mr. Williams's phone number.

Detective Carey visited Mr. Williams's home shortly after interviewing Ms. Carmichael. Mr. Williams stated that Ms. Moore dropped off CDs and was at his home for approximately ten or fifteen minutes. She told him she was going to Burger King, but would return home afterward and would call Mr. Williams. She never called. When Detective Carey visited Burger King, a cashier who knew Ms. Moore told him that she did not come in on April 24, 2003.

Over the next several days, Detective Carey also called other of Ms. Moore's friends, searched her bedroom, conducted searches using the NYPD database, canvassed hospitals and morgues, put out a description over the NYPD central radio and reported her as a “missing person,” canvassed Ms. Moore's neighborhood, requested a bloodhound search, subpoenaed banks records, arranged for a search of Mr. Williams's house, and conducted various interviews.

The NYPD canvassed Ms. Moore's neighborhood on April 30, 2003. The search area included the house on Snyder Avenue in which it was later determined Ms. Moore had been held. The person who answered the door told the police that he or she had not seen Ms. Moore.³ On April 30, 2003, Officer Jonathan Figueroa of the NYPD canine unit and his bloodhound, Kojak, ran three “trails” using Ms. Moore's shirt as a “scent article.” The bloodhound-assisted search was unsuccessful.⁴

On April 29, 2003, Detective Carey interviewed a woman (“Victim 2”) who had been kidnapped by two men the day before. Victim 2 had been held captive and raped in the basement of a house on Snyder Avenue, which is located approximately one block away from Mr. Williams's house, also on Snyder Avenue, and approximately three blocks away from Ms. Carmichael's house.

On May 10, 2003, the police found Ms. Moore's body lying along the side of a hotdog truck on Kings Highway, located about one block from both Snyder Avenue houses. On May 21, 2003, Detective Carey interviewed Kayson Pearson in connection with his investigation of the kidnapping and rape of Victim 2. Pearson admitted...