Hobbs v. Police officers of the City of New York et al

Filing 96

OPINION AND ORDER. For all the foregoing reasons in this Opinion and Order, plaintiff's motions are denied as meritless except that I grant his motion in docket item 77 for the limited purpose of having considered it in connection with defendant s' motion for summary judgment. The Clerk of Court is directed to close docket items 74, 76, 77, 79-81 and 84. re: 77 MOTION FOR COURT TO RECOGNIZE SELF SWORN TESTIMONY OF GEORGE CICENON AS AN AFFIDAVIT IN SUPPORT OF PLAINTIFF'S CLAIMS f iled by Richard P. Hobbs, 84 MOTION to Appoint Counsel filed by Richard P. Hobbs, 76 MOTION for Hearing filed by Richard P. Hobbs, 74 MOTION for Leave to File Second Amended Complaint filed by Richard P. Hobbs, 81 MOTION TO OBJECT TO INCORREC T ANSWERS GIVEN BY PLAINTIFF AT DEPOSITION & CORRECT ANSWERS AS THEY SHOULD HAVE BEEN SAID, ACCEPTED AS TRUE ANSWERS filed by Richard P. Hobbs, 80 MOTION FOR THE COURT TO NOTIFY THE FBI OF ALLEGED COPYRIGHT INFRINGEMENT BY THE DEFENDANTS AND 18: SE CTION 241, 242 & 247 MADE BY PLAINTIFF & THE COURT ALSO TO NOTIFY THE ATTORNEY GENERAL OF U.S. & N.Y.S. OF THE SAME filed by Richard P. Hobbs, 79 MOTION FOR COURT TO RECOGNIZE AS DISPOSITIVE ALL DOCUMENTS SUBMITTED AS AFFIRMATIONS OF STATEMENTS WITHIN filed by Richard P. Hobbs. (Signed by Magistrate Judge Henry B. Pitman on 2/6/2014). Copies sent (transmitted) By Chambers. (rjm) Modified on 2/7/2014 (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
RICHARD P. HOBBS,

:
Plaintiff,

-against-

:

10 Civ. 5717 (SHS)(HBP)

:

POLICE OFFICERS OF THE CITY
OF NEW YORK, et al.,

:

OPINION AND
ORDER

:
Defendants.
:
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PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff Richard P. Hobbs has filed seven purported
cross-motions (Docket Items 74, 76, 77, 79-81 and 84) in response
to defendants' motion for summary judgment (Notice of Motion for
Summary Judgment, dated June 26, 2013 (Docket Item 67)).

The New

York City Police Department, former Mayor Michael Bloomberg,
former Police Commissioner Raymond Kelly, the New York City
Council Members and the City of New York oppose plaintiff's
cross-motions on various grounds (Reply Memorandum of Law, dated
July 19, 2013 (Docket Item 88)).
For the reasons set forth below, plaintiff's motions
docketed as items 74, 76, 79-81 and 84 are denied and docket item
77 is granted for a limited purpose.

II.

Facts

A.

Background

The facts giving rise to this action are set forth in
my Report and Recommendation of even date, familiarity with which
is assumed.

B.

Present Motions

In response to defendants' notice of motion for summary
judgment, plaintiff filed the following cross-motions:
1.

Statement of Plaintiff to Preserve Right to Submit
a Second Amended Complaint, dated July 2, 2013
(Docket Item 74);

2.

Motion for Hearing to Have Oral Argument, dated
July 9, 2013 (Docket Item 76);

3.

Motion for Court to Recognize Self Sworn Testimony
of George Ciceron as an Affidavit in Support of
Plaintiff's Claims, dated July 9, 2013 (Docket
Item 77);

4.

Motion for Court to Recognize as Depositions all
Documents Submitted by Plaintiff and as Affirmations of Statements Within, dated July 9, 2013
(Docket Item 79);

5.

Motion for Court to Notify the FBI of Alleged
Copyright Infringement by the Defendants and 18
U.S.C. Section 241, 242 & 247 made by Plaintiff
and the Court Also to Notify the Attorney General
of United States and New York State of the Same,
dated July 9, 2013 (Docket Item 80);

2

6.

Motion to Object to Incorrect Answers Given by
Plaintiff at Deposition and Correct Answers as
They Should Have Been Said Accepted as True Answers, dated July 9, 2013 (Docket Item 81) and

7.

Motion for Court to Appoint a Lawyer or a Team of
Lawyers or Seek for Plaintiff Pro Bono Assistance
or that the Attorney's will be Paid by Defendants,
dated July 9, 2013 (Docket Item 84).

As I noted in my endorsement, dated July 16, 2013 (Docket Item 87
at 2), I deemed the foregoing documents to constitute plaintiff's
response to defendants' motion and have considered the assertions
contained therein in connection with defendants' motion for
summary judgment.

I address the merits of each of plaintiff's

purported motions as follows.

III.

Analysis

A.

Motion to Amend
the Complaint

Plaintiff moves, once again, to amend the complaint
(Docket Item 74).1

On March 27, 2013, plaintiff made a prior

application requesting leave to amend his complaint (Docket Item

1

Specifically, plaintiff states that he intends to submit a
"second amended complaint within 20 day[s] . . . much of which is
contained [t]here[in]" (Docket Item 74 at 1). Despite six months
having passed since plaintiff filed this motion, plaintiff has
not supplemented this motion. As a result, I consider docket
item 74, as it is, to constitute plaintiff's renewed motion to
amend the complaint.
3

57).

In an Opinion and Order, dated June 14, 2013 (Docket Item

66), I denied that motion, finding that granting plaintiff leave
to file his amended complaint would be futile.
Unlike his earlier motion to amend, plaintiff now
identifies the two police officers who allegedly placed the
"Russian man" under arrest for busking without a Certificate of
Authority ("COA") (Docket Item 74 at 10-11).

However, having

already considered those assertions in connection with plaintiff's opposition to defendants' motion for summary judgment, it
is unclear what purpose amending the complaint to include these
details would serve.

Plaintiff does not seek to include the two

police officers as defendants in this action and discovery is now
closed, barring plaintiff from taking their depositions.

The

remainder of plaintiff's renewed application fails to remedy the
defects of his first application.

For example, plaintiff again

seeks to amend the complaint to include defendants who have
nothing to do with the alleged violation of plaintiff's rights,
including the "Tax department" and "The AG of NY" (Docket Item 74
at 14, 15).

And, the majority of the proposed amended complaint

"is little more than a rambling diatribe on the putative rights
of 'buskers,'" as was plaintiff's first proposed amended complaint (Docket Item 66 at 9-10).

4

Accordingly, for substantially the reasons stated in my
Opinion and Order, dated June 14, 2013 (Docket Item 66 at 11-24),
this motion is denied.

B.

Motion for
Oral Hearing

Plaintiff's motion for an oral hearing (Docket Item 76)
in connection with defendants' motion for summary judgment is
denied.

Plaintiff has already been provided an opportunity to

present his views to the court -- as indicated by the extensive
number of documents he has filed in response to defendants'
motion -- and I find no need for an oral hearing at this time.
See McCall v. City of Danbury, 16 F. App'x 77, 80 (2d Cir. 2001)
(oral hearing is not necessary in connection with a motion for
summary judgment);

AD/SAT, Div. Of Skylight, Inc. v. Associated

Press, 181 F.3d 216, 226 (2d Cir. 1999) ("We have held that a
district court's decision whether to permit oral argument rests
within its discretion." (citation omitted)).

C.

Motion to
Recognize Affidavit

Plaintiff moves for the "Court to Recognize [the] Self
Sworn Testimony of George Ciceron as an Affidavit in Support of
Plaintiff's Claims" (Docket Item 77).
5

Plaintiff has submitted

what he purports to be an affidavit from George Ciceron,2 dated
December 30, 2011, in which Ciceron attests to a conversation
plaintiff had with police officers on December 30, 2011 regarding
COAs (Docket Item 77 at 2).

Defendants argue that plaintiff's

failure to identify Ciceron as a witness in his initial disclosures should preclude consideration of the affidavit, pursuant to
Fed.R.Civ.P. 26(a)(1)(A)(i) and 37(c)(1) (Docket Item 88 at 3).
It does appear that plaintiff unjustifiably failed to
disclose Ciceron as a potential witness in his initial disclosures (see Plaintiff's Rule 26(a)(1) Disclosures, annexed as
Exhibit E to the Reply Declaration of Nicholas R. Ciappetta,
dated July 19, 2013 (Docket Item 89)).

Fed.R.Civ.P. 37(c)(1)

provides that a party that fails to identify a witness under Rule
26(a) may not rely on the testimony of that witness "unless the
failure was substantially justified or is harmless."

See also

Haas v. Del. & Hudson Ry. Co., 282 F. App'x 84, 85–86 (2d Cir.
2008).

"Failure to comply with [Fed.R.Civ.P. 26(a)(1)(A)(i)] is

2

Plaintiff contends that the affidavit is a self-sworn
affidavit. However, the affidavit fails to conform with the
requirements of 28 U.S.C. § 1746 in that it fails to certify that
its content is being offered under "penalty of perjury." 28
U.S.C. § 1746 (1976); see Silverman v. Miranda, 918 F. Supp. 2d
200, 218 (S.D.N.Y. Jan. 4, 2013) (Jones, D.J.) (Section 1746
"mandates that a declaration executed within the United States
certify that the contents is (1) true and correct; (2) offered
under penalty of perjury; (3) dated; and (4) signed.").
6

harmless when there is no prejudice to the party entitled to the
disclosure."

Am. Stock Exch., LLC v. Mopex, LLC, 215 F.R.D. 87,

93 (S.D.N.Y. 2002) (Scheindlin, D.J.) (inner quotation marks and
citation omitted); accord Williams v. Boulevard Lines, Inc., 10
Civ. 2924 (DF), 2013 WL 5652589 at *3 (S.D.N.Y. Sept. 30, 2013)
(Freeman, M.J.).
I have considered the contents of the Ciceron "Affidavit" in connection with defendants' motion for summary judgment.
Because Ciceron's "Affidavit" does not affect the conclusions I
reached in my Report and Recommendation, there is no prejudice to
defendants from my consideration of it.3

Plaintiff's non-compli-

ance is, thus, harmless in this instance, and I decline to preclude the purported affidavit.

Therefore, plaintiff's motion is

granted to the extent that the Ciceron "Affidavit" is offered in
opposition to defendants' motion for summary judgment.

4.

Motion to Recognize
Documents as Depositions

Plaintiff moves the court "to Recognize as Depositions
all Documents Submitted by Plaintiff and as Affirmations of

3

Notwithstanding my consideration of the purported affidavit, I conclude that defendants' motion for summary judgment
should be granted regarding the time period and Monell claim
addressed in the Ciceron "Affidavit".
7

Statements Within [sic]" (Docket Item 79).

Essentially, plain-

tiff requests that the court deem all of his court papers filed
in connection with this case to constitute sworn deposition
testimony.

There being no legal basis for this request, this

motion is denied.

5.

Motion to Notify
the Justice Department
and the FBI

Plaintiff next requests that the court "notify the
Justice Department and the FBI of the defendants['] criminal acts
in violation of 18 U.S.C. §§ 241, 242 & 247" (Docket Item 80).
There is no legal basis for this request as well, and it too is
denied.4

6.

Motion to Object
to Deposition

Plaintiff next moves to "Object to Incorrect Answers
Given by Plaintiff at Deposition and Correct Answers as They
Should Have Been Said Accepted as True Answers [sic]" (Docket
Item 81).

Plaintiff contends that defendants' counsel confused

him during his deposition by focusing on "busking" instead of the

4

Plaintiff does, of course, remain free to make any truthful
report to any federal agency that he deems appropriate.
8

actual issue, which plaintiff now argues is "posing for pictures
for pay" (Docket Item 81 at 1).

It is not clear whether this

redefinition of the principal issue in the case substantively
effects any of the claims or defenses.

Moreover, plaintiff's

contention that this action is not about "busking" is directly
contradicted by his own deposition testimony (see Tr. of Deposition of Richard P. Hobbs, dated November 16, 2012 ("Hobbs
Depo."), at 78, 107, portions of which are annexed as Exhibit C
to the Declaration of Nicholas Ciappetta, Assistant Corporation
Counsel, dated June 26, 2013 (Docket Item 70) and annexed to
Plaintiff's Opposition, dated July 3, 2013 (Docket Item 73)).
In any event, Fed.R.Civ.P. 30(e) allows a deponent 30
days after being notified that the transcript of a deposition is
available to submit a signed statement listing changes in the
form or substance of the deponent's answers and the reasons for
such changes.

Here, defendants provided plaintiff with a cour-

tesy copy of the transcript of plaintiff's deposition on February
21, 2013 (Letter from Nicholas Ciappetta to Richard P. Hobbs,
dated February 21, 2013, annexed as Exhibit F to the Reply
Declaration of Nicholas R. Ciappetta, dated July 19, 2013 (Docket
Item 89)).

Plaintiff did not submit any changes within the time

period afforded under Fed.R.Civ.P. 30(e) and has not provided any
explanation for his delay in attempting to amend his testimony.
9

Plaintiff's belated attempt to raise an issue of fact by submitting new testimony that contradicts his previous testimony is
simply improper.

See Palazzo ex rel. Delmage v. Corio, 232 F.3d

38, 43 (2d Cir. 2000) ("[I]f a party who has been examined at
length on deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior testimony,
this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact." (inner quotation marks and citation omitted)).
Accordingly, this motion, too, is denied.

See Winston

v. Marriott Intern., Inc., 03-CV-6321 (ARR)(JO), 2006 WL 1229111
at *6 (E.D.N.Y. May 8, 2006) ("Numerous courts have rejected
changes to depositions when the procedural requirements of Rule
30(e) were not met.").

7.

Application for
Appointment of Counsel

Finally, plaintiff requests appointment of counsel
(Docket Item 84).

In determining whether to grant a request for

counsel, the Court must consider "the merits of plaintiff's case,
the plaintiff's ability to pay for private counsel, his efforts
to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if

10

unassisted by counsel."

Cooper v. A. Sargenti Co., Inc., 877

F.2d 170, 172 (2d Cir. 1989) (per curiam).

Further, as the Court

of Appeals for the Second Circuit opined:
For many reasons courts should not grant such
applications [for appointment of counsel] indiscriminately. Volunteer lawyer time is a precious commodity.
Courts are given a major role in its distribution.
Because this resource is available in only limited
quantity, every assignment of a volunteer lawyer to an
undeserving client deprives society of a volunteer
lawyer available for a deserving cause. . . .
*

*

*

A claim that could not command a lawyer's acceptance if
possessed by an employed middle-class property owner
should not command a pro bono lawyer. The poverty of
the claimant may often be irrelevant to his ability to
secure counsel. If the claim is promising and relates
to an injury that can be expected to produce substantial damages, a contingency lawyer will often be motivated to take it regardless whether the claimant is
indigent or has property.
Cooper v. A. Sargenti Co., Inc., supra, 877 F.2d at 172, 173.
If my Report and Recommendation is accepted, the only
issue remaining in the case is whether the City's policy prior to
November 2011 had a chilling effect on plaintiff's First Amendment rights.

Given my recommendation, plaintiff has met the

threshold requirement of showing "likely merit" on at least one
claim.

Cooper v. A. Sargenti Co., Inc., supra, 877 F.2d at 174.

Plaintiff contends that he is indigent and that his efforts to
reach out to attorneys on his own have been unsuccessful; how-

11

ever, he does not set forth details concerning his efforts to
retain counsel (Docket Item 84 at 1).

In addition, plaintiff's

lone surviving claim is not a particularly complex one and has
been further narrowed by the restriction on the time period in
issue; plaintiff does not allege that he cannot or is unable to
pursue the remaining claim on his own.

See Hodge v. Police

Officers, 802 F.2d 58, 61-62 (2d Cir. 1986) (listing factors for
a trial judge to consider in assessing party's request for
appointment of counsel, which includes the complexity of the
legal issue).

Plaintiff merely argues that it would be "good for

all persons that competent attorneys try" his case (Docket Item
84 at 1).
Finally, it appears unlikely that plaintiff's remaining
claim "relates to an injury that can be expected to produce
substantial damages."
877 F.2d at 173.

Cooper v. A. Sargenti Co., Inc., supra,

If the evidence shows that there is no reason-

able probability that the City will return to its former practices, plaintiff's application for injunctive relief may well be
moot.

See Allee v. Medrano, 416 U.S. 802, 810-11 (1974); Dodge

v. Cnty. of Orange, 208 F.R.D. 79, 85 (S.D.N.Y. May 29, 2002)
(McMahon, D.J.).

And, because plaintiff testified that he either

does not accept any money for his busking or gives away any money
that he may get (Hobbs Depo. at 109), there does not appear to be
12

any basis for an award of compensatory damages because plaintiff
suffered no lost income.

Last, while plaintiff testified that he

has felt "depressed and discouraged" as a result of defendants'
actions (Hobbs Depo. at 94), awards for First Amendment chilling
violations tend to be modest where the evidence of emotional
distress is particularly weak, as is the case here.

See United

Yellow Cab Drivers Ass'n, Inc. v. Safir, 98 Civ. 3670 (WHP), 2002
WL 461595 at *12 (S.D.N.Y. Mar. 22, 2002) (Pauley, D.J.) (awarding $250 each to plaintiffs who suffered "emotional distress" as
a result of the chilling effect that City policy had on plaintiffs' First Amendment rights); see also Patrolmen's Benevolent
Ass'n of N.Y. v. City of New York, 310 F.3d 43, 55 (2d Cir. 2005)
("A plaintiff's subjective testimony, standing alone, is generally insufficient to sustain an award of emotional distress
damages" in Section 1983 case. (citations omitted)).
Mindful of the Second Circuit's concern regarding the
availability of resources and considering the factors set forth
in Cooper, I deny plaintiff's application without prejudice to
its renewal.

Any renewed application should address all of the

factors listed above.

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V.

Conclusion

For

1 the foregoing reasons, plaintiff's motions are

denied as meritless except that I grant his motion in docket item
77 for the limited purpose of having considered it in connection
with defendants' motion for summary judgment.
The Clerk of Court is directed to close docket items
74, 76, 77, 79-81 and 84.
Dated:

New York, New York
February 6, 2014

SO ORDERED

HENRY PI?MAN
United States Magistrate Judge
Copies transmitted to:
Mr. Richard P. Hobbs
Apt #6
1 Caryl Ave.
Yonkers, New York 10705
Nicholas R. Ciappetta, Esq.
Assistant Corporation Counsel
City of New York
100 Church Street
New York, New York 10007

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