JOHN DOE Case No. ___________
Plaintiff,
-against- VERIFIED COMPLAINT
THE CITY OF NEW YORK,
DETECTIVE SAM SMITH &
DETECTIVE BOB BLUE, Plaintiff demands trial by jury
individually and in their official capacities
as detectives of The New York City Police Department,
Defendants.
__________________________________ )
Introduction
1. Plaintiff JOHN DOE brings this action against the individual detectives and the Defendant City of New York ("City") for damages arising out of an assault and battery, sexual harassment, other unconstitutional policies and actions, and state and common law claims of emotional distress and assault and battery, all arising from Defendant Detective BOB BLUE's (" BLUE") sexual harassment during and after Plaintiff's arrest on October 26, 2002, Defendants' refusal to provide Plaintiff's constitutional guarantees during his arrest as well as other allegations herein stated.
Jurisdiction
2. Plaintiff brings this action against Defendants to redress the deprivation of rights secured him by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §1983, and the common law.
3. Plaintiff is a citizen of Virginia. Each defendant is, upon information and belief, a citizen of New York. Defendant City is, and at all times mentioned was, a municipal corporation existing by virtue of the laws of the State of New York. The matter in controversy exceeds the sum o$75,000, exclusive of interest and costs.
4. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§1331, 1332, and 1343(a)(3), and 42 U.S.C. §1983.
5. Plaintiff also invokes supplemental jurisdiction of this Court over his state claims against Defendants for common law violations pursuant to 28 U.S.C. §1367 as the common law claims form part of the same case or controversy.
6. Venue is proper in this District pursuant to 28 U.S.C. §1391 as the cause of action occurred in this District. Parties
7. At all times mentioned herein, Plaintiff was a resident of New Jersey up until on or about November 2, 2003 and then was a resident of Virginia.
8. Defendant City operates and governs the New York City Police Department pursuant to the laws of the State of New York.
9. Defendants BLUE and Detective SAM SMITH ("SMITH") are sued both individually and in their official capacity. At all times pertinent hereto, Defendants BLUE and SMITH were employed by the New York City Police Department.
10. Defendants BLUE and SMITH were acting as police officers and detectives in the scope of their employment for Defendant City at some times mentioned herein and at other times mentioned herein Defendant BLUE acted beyond the scope of his employment.
11. At the time of the alleged incident and at all times pertinent hereto, Defendants acted under color of law, of a statute, ordinance, regulation, custom, or usage.
12. On January 23, 2003 a Notice of Claim was served. More than thirty (30) days have elapsed since the service of said Notice of Claim upon Defendants and adjustment or payment thereof has been neglected or refused; that the within action was commenced within one (1) year and ninety (90) days after the cause of action herein accrued; that on or about April 22, 2003, Plaintiff appeared for a 50-H hearing and that all conditions precedent to the commencement of the within action have been fulfilled.
FACTS
13. On October 25, 2002 at about 9:00 p.m., Plaintiff appeared at the Midtown North Precinct located in New York City for an appointment with Defendant SMITH to discuss a stolen vehicle report made by Plaintiff.
14. Plaintiff was lawfully present, not under arrest, has no history of arrest and was unarmed.
15. Defendant SMITH interviewed Plaintiff and directed Plaintiff to write a statement of the crime he was reporting. Defendant SMITH then accused Plaintiff of fabricating the story of a stolen vehicle and said a witness saw Plaintiff and a woman running from the car Plaintiff reported stolen.
16. Plaintiff responded that it would be untrue he was with a woman because he was gay and he does not go out with women. Defendant BLUE was in the room when Plaintiff stated he was gay. At that point Plaintiff stated he would not answer any more questions unless he had his attorney present and requested to call his attorney.
17. Rather than permit Plaintiff to call his attorney, Defendant SMITH responded "I'm going to have to put you in the holding cell then." Plaintiff asked why and he said, "Once you don't want to answer anymore questions and want an attorney present, I have the right to hold you here." and then locked Plaintiff in a holding cell across from where Detective BLUE sat at a desk. Defendant BLUE then proceeded to smile at Plaintiff flirtatiously while he was locked up.
18. Plaintiff felt uncomfortable and asked Detective BLUE to let him call his lawyer. Rather than permit Plaintiff to call his attorney, Detective BLUE placed the keys to the cell on a bar in front of Plaintiff and sadistically stated, "If you can get these keys and unlock the cell then you can leave, but you might get shot."
19. At that point Plaintiff feared for his safety and again asked to call his attorney. Rather than permit Plaintiff to call his attorney, Defendant BLUE sadistically stated, "We can hold you for a total of 72 hours, I can let you make your phone call now or 10 minutes before you leave, it's up to us. We could also lock you up downstairs in the tombs so no one could ever find you."
20. About 1 a.m. Defendant BLUE escorted Plaintiff to be fingerprinted. He badgered Plaintiff to "just tell Defendant SMITH what he wants to hear and you can get out of here." He stated that Plaintiff had "felony charges" against him and that the police would drop them to misdemeanors if Plaintiff would just tell the police what they wanted to hear. Plaintiff had no idea what the charges were.
21. About 3 a.m. Plaintiff was escorted to a room where Defendant SMITH insisted he write another statement. Defendant SMITH left the room and then Defendant BLUE arrived, stating flirtatiously, while smiling, "You have the most beautiful eyes and smile," then left.
22. Plaintiff again felt intimidated, uncomfortable and pressured to get out of that Precinct. Defendant SMITH appeared again and insisted Plaintiff write certain statements; specifically ordering Plaintiff to write that he called an insurance company to make a fraudulent insurance claim despite Plaintiff stating there was no insurance on his vehicle.
23. After writing what Detective SMITH directed, Plaintiff waited to be transported to Central Booking. Defendant BLUE told Defendant SMITH to give him his handcuffs because he wanted to cuff Plaintiff. Defendant SMITH provided his handcuffs to Defendant BLUE.
24. As Defendant BLUE proceeded to cuff Plaintiff, Plaintiff felt his hands being pulled into Defendant BLUE's crotch. Plaintiff at that point was aware of and feared Defendant BLUE's next advance which was clearly sexual, knowing that Defendant BLUE was purposely pulling Plaintiff's hands into his crotch.
25. Defendant BLUE held Plaintiff's cuffed hands between his legs for some 15 seconds, forcing Plaintiff to touch Defendant BLUE's genitals against Plaintiff's will and without his consent.
26. Defendant BLUE then transported Plaintiff to Central Booking. While in line at Central Booking, Defendant BLUE harassed Plaintiff about his sexuality, repeatedly asking for his own personal and perverted satisfaction, and each time louder than the first, "How do you take it?", meaning sexually from other men.
27. Plaintiff was released from custody on or about October 27, 2003 after being arraigned and pleading not guilty. From on or about October 27 through on or about January 15, 2003, while Plaintiff was still under the jurisdiction of the New York City Criminal Court, Defendant BLUE repeatedly called Plaintiff on his private cell number which Defendant BLUE obtained for his own personal use from Plaintiff's arrest records.
28. Plaintiff felt harassed and intimidated as he was in a precarious position because Defendant BLUE was an authority figure as one of the arresting officers, he was some 25 years older than Plaintiff (Plaintiff was only 20 years old and Defendant BLUE was about 45 or older) and Defendant BLUE's involvement in Plaintiff's criminal case caused Plaintiff to fear more negative consequences regarding his ongoing criminal case if he ignored Defendant BLUE's advances.
29. After ignoring some ten calls by Defendant BLUE to Plaintiff's cell phone, Plaintiff finally answered one call. Defendant BLUE prefaced the calls with a fake concern about Plaintiff's car that was in the custody of Defendant City but always ended the call by asking Plaintiff out for a dinner date or drink.
30. Plaintiff taped subsequent calls to confirm Detective BLUE was abusing his power by calling Plaintiff during an ongoing criminal case so Defendant BLUE can have an intimate relationship and homosexual sex with Plaintiff.
31. During various conversations, Defendant BLUE acknowledged that he wanted to have sex with Plaintiff and that he would bring his handcuffs and "I might bring my gun too." Defendant BLUE eagerly wanted to know "Who was giving and who was receiving?" If he and plaintiff would have sex and when Plaintiff described a dream about the handcuffs Defendant BLUE used when he forced Plaintiff to touch him in the Precinct on October 26, 2002, Defendant BLUE laughed. Defendant BLUE also told Plaintiff he liked him when Plaintiff asked what were his feelings toward him.
32. Plaintiff reported Defendant BLUE's misconduct to the District Attorney's office and Internal Affairs, a department of Defendant City, providing them with 2 detailed interviews each and tapes of BLUE acknowledging the handcuff incident at the precinct and documents confirming Defendant BLUE's calls to Plaintiff's cell; however, both offices have failed to correct and prevent Defendant BLUE's misconduct and their failure to do so confirms their consent to such misconduct within the police department and their support of officers as against civilians even in the face of their violating constitutional guarantees.
33. Upon information and belief, Defendant SMITH had knowledge of Defendant BLUE's perverted and predatory tendencies toward homosexual men.
34. Upon information and belief, Defendant SMITH had knowledge of and knew that Defendant BLUE would force Plaintiff to touch his genitals when he gave Defendant BLUE his handcuffs.
35. Defendants SMITH and BLUE throughout the arrest process purposely ignored Plaintiff's demands to call his attorney and instead they subjected him to a course of cruel and unusual punishment by locking him up and interrogating him for some 6 hours without food or sleep, never reading him his rights, ignoring his right to speak to counsel, making sexual advances and harassing Plaintiff during and after the arrest by flirting with him, forcing him to touch Defendant BLUE's genitals, demanding Plaintiff to describe his sexual life and forcing him to write a statement against his will.
36. At no time pertinent hereto did Defendant SMITH nor any other defendant have probable cause to believe Plaintiff had committed or was committing the crime of insurance fraud yet they allowed that charge to stand against Plaintiff from October, 2002 through April, 2003, causing Plaintiff to defend against a false charge for 6 months, making appearances in criminal court until it was finally dismissed by the court.
37. Defendants acted with actual malice toward Plaintiff and with willful and wanton indifference to and deliberate disregard for the statutory and constitutional rights of Plaintiff.
38. Defendants' actions constitute unreasonable and excessive use of force, deprivation of liberty and punishment without due process of law.
39. Upon information and belief, at all times pertinent hereto, Defendant City permitted and tolerated a pattern and practice of unreasonable use of force, punishment and deprivation of Constitutional Guarantees by its police officers so they can effect an arrest.
40. Upon information and belief, Defendant City has maintained a system of review of police conduct through its departments, including Internal Affairs, which is so untimely and cursory as to be ineffective and to permit and tolerate the unreasonable and excessive use of force, punishment and denial of Constitutional rights by police officers.
41. The acts, omissions, systemic flaws, policies, and customs of Defendant City caused police officers to believe that their misconduct, abuse of power, and denial of civilian rights would not be aggressively, honestly, and properly investigated, with the foreseeable result that officers are more likely to use excessive or unreasonable force, ointment and denial of rights against Plaintiff and others in the future.
42. As a direct and proximate result of the acts and omissions of defendants, Plaintiff was mentally and physically sick, suffering nightmares, stomach pain, headaches, sleeplessness, anxiety and continues to feel pain and was forced to suffer pain and mental cruelty, was deprived of his physical liberty, and was forced to incur medical and legal expenses.
COUNT I: VIOLATION OF CONSTITUTIONAL RIGHTS UNDER §1983
43. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 42.
44. The intentional sexual harassment, coercion, intimidation and sexual assault of Plaintiff by forced sexual touching of Defendant BLUE and his further sexually harassing calls in attempting to meet Plaintiff for sex violated the rights of Plaintiff as guaranteed by the Fourth, Fifth, and Eighth Amendments to the United States Constitution and such misconduct constituted a departure from the evolving standards of decency that mark the progress of a maturing society, where Defendant BLUE acted with intent to harm the Plaintiff as a prisoner and then as a civilian awaiting trial of the charges Detective BLUE was involved with, evincing Defendant BLUE's sadistic state of mind, for which Defendant BLUE is individually liable and Defendant City is liable for tolerating such misconduct.
45. The intentional touching of Plaintiff by forcing him to touch Defendant BLUE's genitals, when Defendant BLUE had no lawful authority to force Plaintiff to touch him, was done with actual malice toward Plaintiff and with willful and wanton indifference to and deliberate disregard for the constitutional rights of Plaintiff. Plaintiff is thus entitled to exemplary damages.
COUNT II: VIOLATION OF CONSTITUTIONAL RIGHTS TO COUNSEL & DUE PROCESS
46. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 45.
47. It was the policy and practice of the Defendant City to authorize certain officers, including Defendants SMITH and BLUE to cover up the use of (a) denying arrestees their constitutional right to counsel and (b) unusual punishment in the form of intimidation and coercion tactics of verbal and physical.
48. It was the policy and practice of the Defendant City to authorize certain officers, including Defendants SMITH and BLUE to cover up the use of (a) denying arrestees their constitutional right to counsel and (b) unusual punishment in the form of intimidation and coercion tactics of verbal and physical abuse to force a confession to a crime not committed, in this case "insurance fraud" which would justify charges on a prosecutor's information.
49. This policy and practice of Defendant City encouraged and caused constitutional violations by police officers, including the violation of plaintiff's constitutional rights by Defendants SMITH and BLUE described in the foregoing paragraphs.
50. At all times pertinent hereto, the supervisors who supervised the Defendant officers who unlawfully violated Plaintiff's rights encourage and tolerate the policies and practices described in the foregoing paragraphs.
51. Defendant City refused adequately to train, direct, supervise, or control Defendant officers so as to prevent the violation of Plaintiff's constitutional rights.
52. At all times pertinent hereto, Defendants SMITH and BLUE were acting within the scope of their employment and pursuant to the aforementioned policies and practices of Defendant City. These policies and practices were enforced by Defendant City and its employee supervisors, and were the moving force, proximate cause, or affirmative link behind the conduct causing Plaintiff's injury. Defendant City is therefore liable for the violation of Plaintiff's constitutional rights by Defendants BLUE and SMITH.
COUNT III: CONSPIRACY TO VIOLATE CIVIL RIGHTS
53. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 52.
54. Defendants BLUE and SMITH conspired to violate Plaintiff's statutory civil rights by acting in concert to ignore his requests for counsel and together creating an environment of intimidation and coercion, including the use of verbal and physical abuse, as more fully described in the foregoing paragraphs, all in violation of 42 U.S.C. § 1983, for which Defendants BLUE and SMITH are individually liable.
COUNT IV: ASSAULT AND BATTERY
55. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 54.
56. The pulling of Plaintiffs hands and then holding them under Defendant BLUE's genitals by Defendant BLUE when he had no lawful authority or consent of Plaintiff to do so, was without justification, was excessive, and constitutes assault and battery for which Defendant BLUE is individually liable.
57. As a proximate result of the assault and battery committed by Defendant BLUE, Plaintiff has sustained permanent injuries and has incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff great pain and suffering, both mental and physical.
58. The intentional sexual and verbal abuse of Plaintiff by Defendant BLUE while Plaintiff was in his care and custody was done with actual malice toward Plaintiff and with willful and wanton indifference to and deliberate disregard for human life and the rights of Plaintiff as a civilian in the public population. Plaintiff is thus entitled to exemplary damages.
COUNTY V: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
59. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 58.
60. Defendants SMITH and BLUE's intentional abuse of Plaintiff's constitutional rights to speak with counsel while detained and Defendant BLUE's verbal and sexual abuse after Plaintiff made his request to speak with counsel and continued calls to Plaintiff while he was in the jurisdiction of the criminal courts for some two months after the arrest as well as their conduct described herein above all abused Plaintiff in a manner that was extreme, outrageous, and unjustified, and caused Plaintiff to suffer physical and emotional distress for which Defendants SMITH and BLUE are individually liable.
61. The intentional verbal and sexual abuse of Plaintiff was unjustified and done with actual malice and wanton indifference to and deliberate disregard for human life and the rights of plaintiff. Plaintiff is thus entitled to exemplary damages.
COUNT VI: NEGLIGENCE
62. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 61.
63. Defendants SMITH and BLUE, while acting as agents and employees for Defendant City in their capacity as police officers for Defendant City, owed a duty to Plaintiff to perform their police duties without the use of intimidation, coercion and verbal and sexual abuse and refusing Plaintiff his constitutional rights. Defendants' use of intimidation, coercion and verbal and sexual abuse upon Plaintiff and refusing to abide by his constitutional rights, when Plaintiff was unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others constitutes negligence for which Defendants BLUE and SMITH are individually liable.
64. As a proximate result of Defendants' negligence, Plaintiff has sustained permanent injuries and he has incurred medical bills and other expenses. These injuries have caused and will continue to cause plaintiff pain and suffering, both mental and physical.
65. At all times of the alleged incident, Defendants BLUE and SMITH were acting within the scope of their employment as officers of the Defendant City Police Department.
66. Defendant City is liable for compensatory damages under the doctrine of respondeat superior for the negligence of defendants committed within the scope of their employment.
COUNT VII: NEGLIGENCE
67. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 66.
68. Defendant City owed a duty to Plaintiff to train and supervise and otherwise control its police officers in the use of coercion, intimidation, violation of constitutional guarantees and other matters incidental to the exercise of police functions.
69. Defendant City failed to provide adequate training, supervision, and control of Defendants BLUE and SMITH, which failure constitutes negligence.
70. As a proximate result of Defendant City's negligent failure to provide adequate training, supervision, and control of Defendants BLUE and SMITH, Plaintiff has sustained permanent injuries and he has incurred and will continue to incur medical bills and other expenses. These injuries have caused and will continue to cause plaintiff pain and suffering, both mental and physical.
71. Defendant City's failure to provide adequate training and supervision to its police officers constitutes a willful and wanton indifference and deliberate disregard for human life and the rights of private citizens, including Plaintiff. Plaintiff is thus entitled to exemplary damages.
COUNT VIII: MALICIOUS ABUSE OF PROCESS, FALSE ARREST, AND FALSE IMPRISONMENT
72. Plaintiff incorporates herein by reference the allegations contained in paragraphs 1 through 71.
73. Defendants SMITH and BLUE used the criminal process against Plaintiff in order to intimidate him into a forced confession and to dissuade him from asserting his rights against Defendants and in order to cover up their own wrongdoing to avoid civil and criminal liability for their own acts.
74. Defendants SMITH and BLUE falsely arrested and falsely imprisoned Plaintiff for charges of insurance fraud that never existed and was in fact dismissed by the court.
75. As a proximate result of this malicious abuse of process, false arrest, and false imprisonment, Plaintiff suffered the damages as aforesaid.
WHEREFORE, Plaintiff requests that this Court enter judgment against the Defendants and award the following amounts:
a. Two Hundred Thousand Dollars compensatory damages in favor of Plaintiff;
b. One Million Dollars exemplary damages in favor of Plaintiff;
c. Costs of this action, including reasonable attorney fees to the Plaintiff pursuant to The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988 (1976); and
d. Such other and further relief as the court may deem appropriate.
Dated: New York, New York _____________________________
May 23, 2003 Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
STATE OF NEW YORK, COUNTY OF NEW YORK ) ss.: JOHN DOE, being duly sworn, states that he is the plaintiff in this action and that the foregoing complaint is true to his own knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters he believes it to be true. Sworn to and Subscribed before me this 23rd day of May, 2003
___________________________________ _____________________________________
NOTARY PUBLIC JOHN DOE