Frascatore v. Blake

344 F.Supp.3d 481

James FRASCATORE, Plaintiff,

v.James BLAKE, Tracy Catapano-Fox, City of New York, New York City Police Department, New York City Civilian Complaint Review Board, and CCRB Employees John Doe #1-5, Defendants.

1:17-cv-7502-GHW

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

Signed September 25, 2018

Peter E. Brill, Brill Legal Group, New York, NY, for Plaintiff.

Paul Frederick Marks, New York City Law Department, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

On September 9, 2015, Officer James Frascatore was sent to the Grant Hyatt Hotel in New York City, tasked to take the potentially dangerous ringleader of a criminal conspiracy into custody. He was provided the criminal's photograph. The picture "portrayed a man bearing a striking resemblance to the way Defendant Blake appeared that day." They were both African-American. When he saw a man matching the description and picture of the ringleader, Frascatore tackled and detained the man. But Frascatore and fellow officers quickly determined that the man he had taken down was not a criminal, but, rather, a prominent former professional tennis player in town for the U.S. Open.

In the days and weeks that followed, the media lambasted Frascatore. He found his face plastered on the front page of the New York Post , depicted as a "psycho cop" with a "shocking" disciplinary record. In their stories, the media relied on information contained in files that Frascatore alleges the CCRB and its Executive Director, Tracy Catapano-Fox, had released in 2014, prior to the incident. Rather than standing behind him, the NYPD criticized and scapegoated him.

Years later, in 2017, Blake published a book called Ways of Grace in which Blake tells the story of his encounter with Frascatore (the "Incident"). In the book, and in media appearances in connection with the book's release, Frascatore asserts that Blake defamed him by mischaracterizing the incident and by implying that he was a racist. Frascatore asserts that the CCRB and the NYPD damaged his reputation and made his dreams of returning to being a teacher after his retirement from the NYPD impossible.

In this case, Frascatore asserts procedural due process "stigma-plus" claims against the NYPD, the City of New York, the CCRB, and Catapano-Fox. Frascatore also asserts that Catapano-Fox, the CCRB, and the NYPD intentionally discriminated against him on the basis of his race, in violation of 42 U.S.C. § 1981. Finally, Frascatore brings a claim against Blake for defamation. Frascatore's stigma-plus claims both fail because he did not allege that any statements made by the NYPD, the City of New York, the CCRB, and Catapano-Fox were false, or that any statements were made close enough in time to any adverse employment actions. The stigma-plus claim against the CCRB and Catapano-Fox fails for the additional reason that Frascatore did not allege the utterance of any statements at all by those defendants. Frascatore's stigma-plus claims against the City of New York and the NYPD fail for the additional reason that the statement he attributes to them is not sufficiently derogatory to state a claim. Frascatore's race discrimination claims fails because he did not plead sufficient facts to establish an inference of discriminatory intent. Frascatore's defamation claims fail because, inter alia , he does not allege that many of the statements are false, and several of the challenged statements are non-actionable statements of opinion. Accordingly, the motions to dismiss of Blake and the City Defendants are GRANTED.

I. BACKGROUND¹

A. Factual Background

James Frascatore is a white NYPD police officer who has had a number of CCRB complaints lodged against him. Am. Compl. (ECF No. 37) ¶¶ 11, 18. At some point in or before December 2014, the CCRB released Frascatore's personnel records to attorneys whose clients had CCRB complaints pending against Frascatore. Id. ¶ 18. In December of 2014, WNYC Radio broadcasted a story that portrayed Frascatore as a "problem police officer with an inordinate number of CCRB complaints and a troubling pattern of misconduct." Id. In September 2015, Frascatore was assigned to the NYPD's Financial Crimes Task Force (the "Task Force"), where he was working toward a promotion to detective. Id. ¶ 20.

James Blake is a former professional tennis player. Id. ¶ 12. He is African-American. Id. In September of 2015, Blake visited New York City to attend the U.S. Open and meetings for the United States Tennis Association Foundation, of which Blake had recently become chairman. Decl. of Kevin H. Marino ("Marino Decl.") (ECF No. 45), at 6. While in New York, Blake was staying at the Grand Hyatt Hotel in Midtown Manhattan. Id.

Also in September 2015, the NYPD's Financial Crimes Task Force was poised to take down a fraud ring that had been targeting the company GoButler, a technology startup that offered a service which customers could use to order on-demand delivery of a wide range of items. Id. ¶¶ 20-22. GoButler had fallen victim to a "sophisticated ring of fraudsters" who used stolen identities and credit card information to order high-end items and use GoButler's couriers to deliver the items to members of the fraud ring at hotels. Id. ¶ 20. Acting on a tip from GoButler employees, members of the Task Force, including Frascatore, set up a "ruse to intercept and arrest the perpetrators" at the Grand Hyatt Hotel. Id. ¶ 21. Frascatore was tasked with making the delivery, and was provided photographs of the suspected members of the fraud ring. Id. One of the suspected members of the fraud ring bore a "striking resemblance to the way Defendant Blake appeared" on the day in question. Id. ¶ 22. Among other things, both Blake and the "ringleader" were African-American. E.g., id. ¶ 12.

On September 9, 2015, the Task Force converged on the Grand Hyatt, and Frascatore saw an individual who "match[ed] the description and picture of the ringleader" who was "standing outside, exactly as the GoButler employees indicated he would be." Id. ¶¶ 22-23. Frascatore ran up to the individual, identified himself as a police officer, and placed his hands on the individual. Id. ¶ 23. Observing that the individual was pulling away, Frascatore tackled and detained the individual. Id. ¶¶ 2, 23. After Frascatore tackled the individual, the individual began acting inconsistently with how Frascatore expected the suspect to act. Id. ¶ 24. As the detectives in charge of the operation arrived, they realized that Frascatore had taken down the wrong man. Id. The individual was Blake, not the target of the investigation. After a total of approximately 10 minutes in handcuffs, Blake was released. Id. ¶ 25.

Something of a media firestorm followed. Police Commissioner Bratton and other NYPD sources made comments to the press, as did Blake. Id. ¶ 29. Newspapers ran such headlines as "Psycho Cop: Shocking Record in Blake Case." Id. Among other information cited in these articles were Frascatore's personnel records, which, as discussed above, Frascatore alleges the former Executive Director of the CCRB and other CCRB employees had released in 2014. See id. ¶ 18.

Subsequently, Frascatore was reassigned to a different precinct, had his overtime cut, and was ordered not to conduct investigations that involved public contact. Id. ¶ 35. Following a disciplinary hearing, Frascatore's departmental charges were "resolved in late 2017 with a penalty that did not include termination," and did include the loss of five vacation days. Id. ¶ 37; Decl. of Paul Marks ("Marks Decl.") (ECF No. 41), Ex. B.

In 2017, Blake co-wrote a book called Ways of Grace. Id. ¶ 41. Ways of Grace bills itself as a book about "Stories of Activism, Adversity, and How Sports Can Bring Us Together." Id. ¶ 47. In it, Blake tells the story of the Incident. Id. ¶ 42. In the course of recounting the Incident and his reactions to it, Blake discusses, among other things, racial profiling, police misconduct, discrimination, and Frascatore's disciplinary history. See id. ¶¶ 45-47. Frascatore contends that a series of statements in the book, the majority of which are made in the introduction, are defamatory. Blake promoted his book widely through media appearances, including on multiple television shows. Id. ¶ 48-51. On August 30, 2017, Blake appeared on The Daily Show on Comedy Central and discussed Ways of Grace in general and the Incident in particular. Several weeks later, Blake appeared on PBS NewsHour to discuss the same topics. Id. ¶ 50. Frascatore asserts that Blake made various defamatory statements about him during his Daily Show and NewsHour appearances.

B. Procedural Background

On October 2, 2017, Frascatore filed a complaint against James Blake, HarperCollins Publishers, LLC, Tracy Catapano-Fox, the City of New York, the NYPD, the CCRB, and five John Doe CCRB Employees. See generally Compl. (ECF No. 1). On November 6, 2017, Frascatore voluntarily dismissed HarperCollins Publishers, LLC. ECF No. 22. On January 16, 2018, Frascatore filed an amended complaint. See generally Am. Compl. On February 16, 2018, Catapano-Fox, the NYPD, the CCRB, and the City of New York (collectively, the "City Defendants") moved to dismiss the amended complaint, Mot to Dismiss the Am. Compl. (ECF No. 40), as did Blake, Mot. To Dismiss the Am. Compl. (ECF No. 43). Frascatore submitted an affirmation in opposition to Defendants' motions to dismiss, Aff. in Opp'n to Mots. to Dismiss (ECF No. 48), and Blake submitted a reply in support of his motion to dismiss on April 6, 2018, Reply Mem. Of Law in Supp. of Mot. to Dismiss (ECF No. 49).

II. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167...