Patterson v. City of N.Y.

TAJ PATTERSON, Plaintiff, v. THE CITY OF NEW YORK et al. Defendants.

16-CV-3525 (NGG) (SMG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 8, 2017

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Taj Patterson initiated this civil rights action on June 27, 2016, asserting claims under 42 U.S.C. §§ 1983 and 1985 against the following groups of Defendants:

• The "Municipal Defendants," consisting of the City of New York ("the City") and three New York City Policy Department ("NYPD") officers (the "Officer Defendants"), Police Officer Rodrigo Fernandez, Sergeant Ivan Furda, and Sergeant Joseph Zaikowski, sued in their individual capacities;

• The "WSP Groups," consisting of the Williamsburg Safety Patrol, Inc., and the Shmira Volunteer Patrol Corp; and

• The "WSP Individual Defendants," consisting of Pinchas Braver, Mayer Herskovic, Abraham Winkler, Aharon Hollender, Joseph Fried, Yoeli Itzkowitz, and John Does #1 through #10.

(See Compl. (Dkt. 1); Am. Compl. (Dkt. 43).) Plaintiff asserts that Defendants violated his constitutional rights in connection with an alleged assault on Plaintiff and the NYPD's investigation thereof. Pending before the court are three dispositive motions:

• A motion to dismiss filed by the Municipal Defendants (Dkt. 50);

• A motion for judgment on the pleadings filed by WSP Individual Defendant Braver (Dkt. 52); and

• A motion to dismiss filed by WSP Individual Defendant Herskovic (Dkt. 63).

The WSP Groups and the non-moving WSP Individual Defendants have neither answered nor appeared.

For the reasons set forth below, all three pending dispositive motions are GRANTED. Accordingly, all claims against the Municipal Defendants, Defendant Braver, and Defendant Herskovic are DISMISSED WITH PREJUDICE.

I. BACKGROUND

A. Plaintiff's Allegations

1. The Relationship Between the City and the WSP Groups

The WSP Groups are "two of several neighborhood safety patrols organized and operated by volunteer orthodox Jews in different neighborhoods throughout Brooklyn," collectively referred to as the "Shomrim Groups." (Am. Compl. ¶ 10.) "The City [has] substantially [] funded and continues to fund the Shomrim groups," including by "purchas[ing] specific law enforcement equipment such as bullet proof vests, police radios for WSP to communicate directly with NYPD precincts, 'search and rescue command posts', and vehicles and uniforms that are virtually indistinguishable from NYPD vehicles." (Id. ¶ 11.) The WSP Individual Defendants named in this case were, at all relevant times, "members and employees of the Shomrim, or were working on behalf of the Shomrim." (Id. ¶ 21.)

Plaintiff alleges that the WSP Groups have a close relationship with various City and NYPD officials, including a "uniquely close working relationship" with the NYPD's 90th Precinct in the Williamsburg neighborhood of Brooklyn, New York. (Id. ¶ 24; see also id. ¶¶ 11-21, 52-56.) "Within the communities where the Shomrim groups operate, the majority of the orthodox Jewish citizens report law enforcement issues to the Shomrim groups first and usually exclusively, in lieu of the NYPD." (Id. ¶ 28.) "The Shomrim groups, including [the WSP Groups], often make arrests for and with the NYPD, and enjoy ready access to areas of NYPD precincts not otherwise open to the public." (Id. ¶ 12.) "When arresting individuals, the [WSP Groups] profess to act pursuant to" New York's statutory authority for citizens' arrest. (Id. ¶ 13 (citing N.Y. Crim. Proc. Law § 140.30).)

Further, "Orthodox Jewish communities and the Shomrim groups have well known 'fixers' and '[liaisons]' to the NYPD, with desks within the very precincts." (Id. ¶ 53.) "[T]hose 'fixers' . . . assist in avoiding and voiding arrests of Jewish crime suspects, undercharging Jewish crime suspects, giving preferential treatment to those Jewish [c]rime suspects who are actually arrested by issuing discretionary 'desk appearance tickets' . . . , and intervening with the Kings County District Attorney's office." (Id.) The District Attorney's office, too, allegedly maintained a "full-time 'liaison' to the Hasidic community . . . , who had to be kept in the loop in virtually every case involving either orthodox Jewish victims or defendants." (Id. ¶ 54.) "The office had no such councils or liaison[s] to any other religious or racial community." (Id.)

2. The Assault

Plaintiff is a Black, gay, non-Jewish man who lives in a Brooklyn neighborhood with a large population of Orthodox Jews. (Id. ¶¶ 7, 23.) Plaintiff was walking through Brooklyn early in the morning on December 1, 2013, when he was spotted by two individuals, a Shomrim "enthusiast" and a former Shomrim employee.¹ (Id. ¶ 25.) Those individuals "believed Plaintiff was acting suspiciously"—one of the individuals later testified "that he believed . . . Plaintiff was vandalizing cars"—so they called the Williamsburg Safety Patrol "to report the suspicious behavior." (Id. ¶¶ 26-27.)

Plaintiff was then chased by a group that included WSP Individual Defendant Itzkowitz and "[m]any other individuals." (Id. ¶¶ 30-31.) "As Plaintiff struggled to escape the WSP members, he was attacked and beaten so severely it left him blind in one eye. As they were assaulting Plaintiff, defendants were using homophobic slurs." (Id. ¶ 33.) "Witnesses at the scene" called 911. (Id. ¶ 34.) The assault "ceased" once witnesses "got involved." (Id.) The Officer Defendants arrived and "gathered witness names and contact phone numbers," as well as witness accounts of "the assailants and their clothing, which consisted of some in official looking uniforms, and many in traditional orthodox Jewish clothing," as well as a license plate number for a car used by the assailants. (Id. ¶ 35.) An ambulance delivered Plaintiff to a hospital, where he received medical treatment. (Id. ¶¶ 36-37.)

3. The City's Investigation of the Assault

"While Plaintiff was being treated at the hospital," Shomrim members made "[c]alls to the precinct." (Id. ¶ 37.) "[T]he case was closed out, marked 'Final, No Arrests.'" (Id.) All three Officer Defendants "personally participated in the decision not to pursue an investigation into crimes committed against Plaintiff." (Id. ¶ 9.) Defendant Furda was "directly involved" in the decision "to close the case out with no further investigation or arrests," and ultimately had "disciplinary charges [] brought against him and he lost ten days' vacation in a negotiated disposition of the disciplinary matter." (Id. ¶ 46.) "Although witnesses [had] described the assailants in detail to the police at the scene of the incident, including that they appeared in every way to be orthodox Jews based on their clothing and hairstyles, Sergeant Furda claims he was the first officer to respond, and further claims that he did not even know the assailants appeared to be Jewish." (Id.)

After Plaintiff and his mother generated "press coverage of the matter," they "were contacted by the Hate Crimes Unit of the NYPD." (Id. ¶ 38-39.) The Hate Crimes Unit "worked the case up" and "develop[ed] probable cause to arrest [WSP Individual Defendants] Winkler, Hollender, Herskovic, Fried, and Braver." (Id. ¶ 40.) Plaintiff asserts, however, that

[h]ad the case been properly immediately forwarded to the Detective Squad at the 90th Precinct, [] further suspects would have been identified, and the evidence against the suspects that were identified would have been much stronger. Instead, evidence quickly disappeared, witnesses were able to prepare to be confronted by questioning, and as the criminal case proceeded, witnesses who were close to the Shomrim, who had identified some of the suspects, began to recant their statements, including their sworn Grand Jury testimony.

(Id. ¶¶ 41-42.)

Ultimately, the criminal cases against Hollender and Fried were dismissed, Braver and Winkler each "pled guilty to misdemeanor unlawful imprisonment for their roles in the matter," and Herskovic was convicted of gang assault in the second degree and unlawful imprisonment.² (Id. ¶¶ 43-44.)

In May 2015, "while [Braver's] criminal case was still pending, Braver received a special tour of the NYPD's 19th Precinct station house, where he was granted access to the 'muster room'—an area of the precinct that is not open to members of the public." (Id. ¶ 47 (footnote omitted).)

B. Plaintiff's Causes of Action

Plaintiff asserts four causes of action under 42 U.S.C. § 1983:

(1) Fourth Amendment violations by the WSP Individual Defendants on the grounds that they acted under color of law while subjecting Plaintiff to false arrest, false imprisonment, and excessive force. (Am. Compl. ¶¶ 57-62.)

(2) Fourth Amendment violations by the City and the WSP Groups on the grounds that the City "essentially created a private police force with special connections to the NYPD, funded and outfitted by the City, without any supervision of that force," and so the City "is liable for the damages suffered by Plaintiff because it has created policies or customs under which unconstitutional practices regularly occur." (Id. ¶¶ 63-68.)

(3) Fourteenth Amendment violations by the Officer Defendants on the grounds that "the unequal treatment they gave Plaintiff as a gay Black gentile, as opposed to the more favorable treatment they would have accorded similarly situated crime victims who were straight, Caucasian and Jewish, as well as the more favorable treatment they gave Plaintiff's assailants, who they knew to be straight, white Jews." (Id. ¶¶ 75-77.)

(4) Fourteenth Amendment violations by the City and the WSP Groups on the grounds that "[t]he unequal treatment Plaintiff received from the NYPD was based upon the fact that he was a gay Black gentile, as opposed to the more favorable treatment accorded similarly situated crime victims who were straight, Caucasian and Jewish." (Id. ¶¶ 69-74.)

Plaintiff asserts two causes of action under 42 U.S.C. § 1985:

(5) Conspiracy to violate Plaintiff's civil rights by the WSP

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