Galloway v. Cnty. of Nassau

538 F.Supp.3d 248

Josiah GALLOWAY, Plaintiff,

v.COUNTY OF NASSAU, Nassau County Police Department; Incorporated Village of Hempstead; P.O. Steven Horowitz (Shield # 144); Detective Matthew Ross (Shield # 834); Detective Charles DeCaro (Shield # 1047); Detective Thomas Bischoff (Shield # 1001); Detective Ronald Lipson (Shield # 1296); Detective Thomas D'Luginski (Shield # 7900); Detective George Darienzo (Shield # 1038); Detective Kevin Cunningham (Shield # 112); Kathleen Rice;assistant District Attorney Joseph LaRocca; Assistant District Attorney Robert Schalk; John Doe and Jane Doe #s 1 – 20 being and intended to be other parties from the County of Nassau, Nassau County Police Department, Incorporated Village of Hempstead And Incorporated Village of Hempstead Police Department whose names are presently unknown, all jointly and severally, Defendants.

19-CV-5026 (AMD) (ARL)

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

Signed May 10, 2021

Baree N. Fett, Gabriel Paul Harvis, Elefterakis Elefterakis & Panek, New York, NY, for Plaintiff.

Brian S. Sokoloff, Alexander Joseph Eleftherakis, Sokoloff Stern LLP, Carle Place, NY, for Defendants County of Nassau, Detective Matthew Ross (Shield # 834), Detective Charles DeCaro (Shield # 1047), Detecitve Ronald Lipson (Shield # 1296), Detective Thomas D'Luginski (Shield # 7900), Detective Sergeant Richard Dorsi, Detective Charles Olie, Detective Rene Yao, Detective Carl M. Strange.

Andrew Kenneth Preston, Michael Paul Siravo, Rhoda Yohai Andors, Bee Ready Fishbein Hatter & Donovan LLP, Mineola, NY, for Defendants Incorporated Village of Hempstead, P.O. Steven Horowitz (Shield # 144), Detective Kevin Cunningham (Shield # 112).

Brian S. Sokoloff, Sokoloff Stern LLP, Carle Place, NY, for Defendant Detective George Darienzo (Shield # 1038).

Andrew Kenneth Preston, Bee Ready Fishbein Hatter & Donovan LLP, Mineola, NY, for Defendant Detective Joseph Sortino.

ORDER

LINDSAY, Magistrate Judge:

Before the Court, on referral from District Judge Donnelly, is the plaintiff's motion for leave to file a fourth amended complaint. The County defendants oppose the motion. For the reasons stated below, the motion is granted.

BACKGROUND

A. Factual Averments

On September 4, 2019, the plaintiff, Josiah Galloway ("Galloway"), commenced this action against the County of Nassau ("County"), the Nassau County Police Department ("NCPD"), the Incorporated Village of Hempstead ("Hempstead"), several police officers and detectives, Kathleen Rice ("Rice"), who, at the time, was the Nassau County District Attorney, and two Assistant District Attorneys, alleging that he was wrongfully arrested on June 5, 2008, in connection with crimes committed on May 28, 2008. ECF No. 1. Since September 2019, Galloway has amended his complaint three times. ECF Nos. 9, 53, 80. However, in August 2020, before he filed the third amended complaint, Galloway sought to extend all of the discovery deadlines, including the deadline to file motions to amend, arguing that the defendants had failed to provide timely discovery. Judge Orenstein, who was assigned to the case at the time, denied the request for an extension without prejudice to Galloway's right to seek leave to amend if and when he succeed[ed] in securing disclosures from the defendants that reveal[ed] a basis for the proposed amendment. As a result, Galloway currently seeks leave to file a fourth amended complaint to add a claim pursuant to Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) pursuant to Rule 15(a). According to Galloway, recent deposition testimony has disclosed that the identification procedures used to secure his wrongful conviction were official policies of Nassau County at that time.

1. Events Leading up to Galloway's Incarceration

According to the proposed fourth amended complaint, on May 15, 2008, Jorge Anyosa ("Anyosa"), the victim of the crime for which Galloway was charged, was seated in his cab awaiting customers near a train and bus terminal in Hempstead. ECF 93-1 ¶ 19.¹ At approximately 1:30 a.m., Anyosa was shot in the face following a dispute with the driver of a vehicle that had approached his car twenty minutes earlier. Id. Anyosa and a witness observed the shooter and described him as a black male, 25-30 years old, approximately 5’10"-5’11", with close-cropped or shaved hair, an accent and no glasses or distinguishing facial features. Id. ¶ 20. Kenton Sherwood ("Sherwood"), who has since admitted to perpetrating the crime, matches the description provided by Anyosa and has a Jamaican accent. Id. ¶ 21. Witnesses described the vehicle Sherwood drove that night as a 2002-2005 gray Toyota Corolla with a missing front driver-side hubcap and dark tinted windows. Id. ¶ 22. Sherwood's girlfriend at the time, Natasha Cheney ("Cheney"), owned a gray 2003 Toyota Corolla. Id. ¶ 23.

According to the complaint, Cheney, other civilians, including Nadine and Vashtine Johnson, knew that Sherwood was responsible for the Anyosa shooting. Id. ¶ 25. In fact, on the day of the incident, Vashtine Johnson called the police tip line to report that Sherwood was the shooter but neither the NCPD not the Hempstead police investigated the lead. Id. ¶ 26. Instead, on May 19, 2008, a sketch artist met with the victim, who was still in the hospital, and generated a composite rendering of the perpetrator. Id. ¶ 28. The sketch resembles Sherwood. Id. ¶ 29.

In any case, on June 5, 2008, Hempstead police officers arrested Galloway on charges unrelated to the Anyosa shooting. Id. ¶ 33–34. 32. According to Galloway, the composite sketch does not resemble him. Id. ¶ 32. Galloway is a 5’5" black man with no accent. Id. ¶ 30. In addition, at the time of the incident, Galloway was 21 years old, had long hair and was missing a front tooth. Id. Galloway also wore glasses to drive and, due to his poor vision, did not drive at night. Id. Galloway claims that he had no access to the type of vehicle used in the crime and, at the time of the shooting, was at home with his family watching a movie. Id. ¶¶ 30-1.

Nevertheless, after Galloway was arrested, several of the defendant officers allegedly coerced a friend of Galloway's into signing a statement which implicated Galloway in the Anyosa shooting. Id. ¶ 37. The defendants then constructed photo array, using an old photograph of Galloway during a time period in which he had short hair, despite the fact that Galloway, who had longer hair, was present in the precinct for identification purposes. Id. ¶ 38. Anyosa selected the photograph of Galloway and was allegedly advised by the defendants that he had selected "the right guy." Id. ¶¶ 39-40. Following Anyosa's identification, the defendants prepared a felony complaint charging Galloway with, among other things, attempted murder. Id. ¶ 43. Galloway was remanded without bail. Id. ¶ 45.

On June 16, 2008, Galloway was indicted. Id. ¶ 45. Two weeks later, the criminal court issued an order requiring Galloway to "stand in" a lineup procedure and prohibited the alteration or removal of "any scalp or facial hair." Id. ¶ 47. Galloway was not brought to the precinct for the court-ordered line-up until August 5, 2008. Id. ¶ 48. Galloway claims that the length of his hair still did not match the victim's description of perpetrator," so, in defiance of the court's order, the defendants demanded that he shave his head. Id. ¶¶ 48-9. Galloway refused and the lineup was canceled. Id. ¶ 50.

The lineup was rescheduled for August 14, 2008. Id. ¶ 51. On that date, pursuant to what Galloway now claims is official County policy, several of the defendants concealed his long hair under a hat and disguised his height by using a "seated lineup" with Galloway sitting on two phone books and draping his body with a sheet. Id. The defendants also filled the lineup with older police officers. Id. ¶ 52. Anyosa and the other witness both identified Galloway as the perpetrator. Id. ¶ 53.

In June, Galloway's criminal defense attorney then filed an alibi notice. Id. ¶ 54. As indicated above, Galloway claims that he was watching a movie during the incident with his girlfriend, mother and cousin. Id. ¶ 55. However, the defendants made no effort to investigate it or confirm the veracity of his alibi. Id. ¶ 56. Galloway then moved to suppress the photo-array and lineup identifications. Id. ¶ 60; Sokoloff Decl. Exs. B and C. During the hearing, Galloway's criminal defense attorney argued the photo-array and lineup identification procedures were unduly suggestive. Sokoloff Decl. Ex. C. 257:14–266:5. Among other things, he challenged the use of an outdated photo in the photo array that better matched the description of the perpetrator. Id. 259:6–7. He also argued that the lineup "robbed [Galloway] of his ability to defend himself in his lineup by taking away the distinguishing factor that didn't match the description [of the perpetrator] but set him apart." Id. 265:5–8. Nevertheless, the criminal court denied Galloway's suppression motion. ECF No. 93-1 ¶ 60.

During the trial, Robert Ogletree, who had signed the statement implicating Galloway, testified that he was coerced into signing a false statement. Id. ¶ 61. Nevertheless, in March 2009, after reporting that they were deadlocked several times, the jury returned a verdict finding Galloway guilty. Id. ¶¶ 65-6. Galloway's motion to set aside the conviction was thereafter denied and, in November 2009, Galloway was sentenced to twenty-five years. Id. ¶ 68.

2. Galloway's Innocence is Confirmed

In July 2018, a woman contacted the Nassau County District Attorney's office stating that she could no longer remain silent regarding Galloway's wrongful conviction. Id. ¶ 69. The Chief of the Nassau County Conviction Integrity Unit ("CIU"), ADA Sheryl H. Anania ("Anania"), reinvestigated Galloway's conviction and declared him innocent. Id. ¶ 70. Indeed, the CIU investigation confirmed that Sherwood was the actual perpetrator and uncovered the 2008...