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 (NG)(VVP).

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

Signed Aug. 1, 2014

Motion granted. 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

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 that he and Troy Hendrix had kidnapped, raped, tortured, and ultimately murdered Ms. Moore, at the Snyder Avenue house where she had been held. Both defendants were subsequently convicted and sentenced to life in prison.

The parties agree, for purposes of this motion, that Ms. Moore's death occurred at approximately 2:00 a.m. on April 27, 2003.

II. Svetlana Aronov

Plaintiff compares the City's response to Ms. Moore's disappearance to its response to the disappearance of Svetlana Aronov.

On March 3, 2003, Ms. Aronov, an approximately forty-four year old white woman who lived on the Upper East Side of Manhattan, reportedly left home to walk her dog and never returned, leaving behind her wallet, money, and identification. Her husband reported her missing around 11:20 p.m. on March 3, 2003.

The NYPD opened an investigation into Ms. Aronov's case that same night, and, by around 1:00 a.m. on March 4, 2003, Ms. Aronov's disappearance was designated as a “Category G” case. Around two-and-a half hours after Ms. Aronov was reported missing, an officer conducted a preliminary search for her. Within approximately four-and-a-half hours of Mr. Aronov calling the police, the NYPD had conducted an unsuccessful search with a bloodhound. And within twenty-four hours, the NYPD had conducted an area hospital and morgue search and conducted shoreline and rooftop searches by aviation. Additionally, the NYPD reviewed security tapes from the lobby in Ms. Aronov's building and other buildings nearby, held a press conference, handed out flyers, assigned two detectives to the case full-time to look into various potential leads, and hung up posters on the Upper East Side. It is undisputed that Ms. Aronov's body was found a few months later in the East River.⁵

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate where the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In assessing a motion for summary judgment, a court is required to construe the facts in the light most favorable to the non-moving party, resolving all reasonable inferences and ambiguities against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). But the non-moving party cannot “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). It instead must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (emphasis in original) (internal quotation marks omitted).

II. Liability Under 42 U.S.C. § 1983

To establish a § 1983 claim, plaintiff must show that (1) a person acting under color of state law (2) deprived her of rights, privileges, or immunities secured by the Constitution and its laws.⁶ 42 U.S.C. § 1983; ...