Price v. Simmons et al

Filing 179

ORDER: The Fifth Amended Complaint remains the operative pleading in this matter and discovery has proceeded as to the claims therein. During the November 5, 2020 conference, Ms. Price indicated to the Court that, in her view, discovery is not c omplete. Accordingly, Ms. Price is hereby ORDERED to submit to the Court, on or before December 30, 2020, a letter outlining the remaining discovery issues. She may also discuss in that letter the status of any negotiations she may have had with D efendants (including in particular the MTA Defendants) regarding settlement of some or all of her claims. Defendants shall file a response to Plaintiff's letter on or before January 11, 2021. Defendants shall also transmit a copy of this Order to counsel for the DANY Defendants on or before December 4, 2020. (Signed by Judge Katherine Polk Failla on 11/30/2020) (rro)

Case 1:15-cv-05871-KPF Document 179 Filed 11/30/20 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KELLY PRICE,
Plaintiff,
-v.-

15 Civ. 5871 (KPF)

THE CITY OF NEW YORK, et al.,

ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Kelly Price brings this pro se action under 42 U.S.C. § 1983,
alleging violations of her constitutional rights. This case has a long history,
with which the Court presumes familiarity. The operative pleading is Ms.
Price’s Fifth Amended Complaint. (Dkt. #153). She sues the City of New York
(the “City”), ten of its employees (collectively referred to as the “City
Defendants”), as well as two employees of the Metropolitan Transportation
Authority Police Department (the “MTA Defendants”).
The Court held a telephonic status conference in this matter on
November 5, 2020. This Order addresses several unresolved issues related to
discovery in this case.
BACKGROUND
Ms. Price initiated this action on July 24, 2015 (Dkt. #2), and filed a First
Amended Complaint shortly thereafter on August 13, 2015 (Dkt. #4). She
alleged myriad violations of her rights under the United States Constitution
and New York State law, including claims of malicious prosecution, improper
denial of public services, false arrest, and infringements of her First

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Amendment rights. Ms. Price’s core thesis is that, beginning in 2010, members
of the New York County District Attorney’s Office, the New York City Police
Department (the “NYPD”), and other City officials colluded to brand Ms. Price a
“fabricator” and on that basis to deny her access to public services, including
police assistance and support for victims of domestic violence. According to
Ms. Price, the goal of this scheme was to discredit Ms. Price in order to protect
her ex-partner, Raheem Powell, from Ms. Price’s accusations of domestic
violence and other abuse. (See Dkt. #4). Ms. Price alleges that Powell acted as
a confidential information for the NYPD. (See id.). Originally named as
Defendants were District Attorney Cyrus Vance, Jr., eight Assistant District
Attorneys, two NYPD officers, and the former Commissioner of the Mayor’s
Office to Combat Domestic Violence. (See id.). Ms. Price’s Second Amended
Complaint, filed May 9, 2016, largely reiterated these claims but added some
additional details. (See Dkt. #16).
Then-Chief Judge Loretta A. Preska dismissed the majority of Ms. Price’s
claims with prejudice as time-barred, as barred by prosecutorial immunity, and
as failing to state a claim on which relief could be granted. (See Dkt. #5, 17).
However, Judge Preska provided Ms. Price with multiple opportunities to
amend to remedy certain identified deficiencies in her pleadings. (See Dkt. #5,
17).
Ms. Price filed a Third Amended Complaint on September 2, 2016,
reasserting many of the previously dismissed claims and adding others against
existing and new Defendants. The case was reassigned to this Court on
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September 27, 2016. By Order dated October 3, 2016, this Court reinforced
that the claims previously dismissed by Judge Preska remained terminated,
and assessed the sufficiency of Ms. Price’s remaining claims. (See Dkt. #30).
Ms. Price’s failure to name proper defendants, to allege facts sufficient to
establish the elements of her claims, or to explain why untimely claims should
be equitably tolled, doomed all but a few of her claims. (See generally id.). The
claims that remained viable were (i) a false arrest claim against two NYPD
officers that accrued in 2015 and (ii) two First Amendment claims against City
officials who blocked Ms. Price from two government Twitter accounts in 2014.
(See id. at 13).
On April 21, 2017, the Court granted Ms. Price leave to file a Fourth
Amended Complaint, in light of Ms. Price’s presentation of new evidence and
arguments. (Dkt. #65). The Court specified in its Order that Ms. Price was
permitted to amend only the following claims: (i) certain § 1983 claims under
the First Amendment, against the City and three City officials, related to their
alleged blocking of Ms. Price from viewing City-run Twitter accounts; (ii) a
§ 1983 claim under the Fourth Amendment, against the City and two thenunnamed MTA police officers, related to their alleged false arrest of Ms. Price in
2015; (iii) a § 1983 malicious prosecution claim under the Fourth Amendment
against the City and NYPD Detective Linda Simmons, related to a prosecution
that allegedly terminated in Ms. Price’s favor on September 9, 2016; and (iv) a
Monell claim encompassing a number of underlying claims, including those
related to additional incidents in 2016 and 2017 involving alleged police use of
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excessive force against Ms. Price, denial of services, and malicious prosecution.
(Id. at 8-9). The Court denied Ms. Price leave to amend to add back in claims
against members of the District Attorney’s Office (the “DANY Defendants”),
crediting the DANY Defendants’ argument that they would be prejudiced by
being reintroduced into the case several years after being dismissed. (Id. at 1011). The Court also found that Ms. Price’s allegations that the DANY
Defendants colluded to undermine her credibility in order to protect Mr. Powell
unraveled in light of a sworn affidavit denying that Powell was an informant for
the District Attorney’s Office. (Id. at 10).
Ms. Price filed her Fourth Amended Complaint on May 26, 2017 (Dkt.
#69), which Complaint the City and the individual City Defendants then moved
to dismiss (Dkt. #107-08). On June 25, 2018, the Court issued an Opinion
granting in part and denying in part the motion to dismiss. (Dkt. #114). The
§ 1983 claims that remain are: (i) malicious prosecution, against Defendant
Simmons in her individual and official capacities and the City of New York;
(ii) false arrest, against three NYPD officers in their individual capacities, for
detaining Ms. Price and transporting her to Bellevue Hospital against her will
in 2015; and (iii) false arrest, excessive force, and malicious prosecution claims
against the MTA Defendants in their individual capacities. (Id. at 55).
The Court entered an initial Civil Case Management Plan and Scheduling
Order on July 30, 2018 (Dkt. #120), and the parties commenced discovery.
The Case Management Plan has since been modified several times. (Dkt. #133,
137, 139). On November 21, 2019, with the Court’s leave, Ms. Price filed a
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Fifth Amended Complaint that substituted in the true names of the two MTA
Defendants and was identical in all other respects to the Fourth Amended
Complaint. (Dkt. #153 (correcting Dkt. #146)). On February 28, 2020, the
parties requested a settlement conference before the Court, which conference
was scheduled for April 3, 2020. (See Dkt. #172). Due to the COVID-19
pandemic and the suspension of in-person proceedings, the Court adjourned
the conference sine die on March 25, 2020. (See Dkt. #177). The next, and
most recent, conference with the parties was held telephonically on
November 5, 2020. (Minute Entry for November 5, 2020).
DISCUSSION
A.

Evidence Presented During the November 5, 2020 Conference
The Court first commends Ms. Price for her diligence in pursuing this

litigation. The Court is attentive to the facts she has alleged and the trauma
she has suffered over many years. Ms. Price, like any other person, is
deserving of dignity, respect, and fair treatment by government officials. She
should not be treated by City officials as if she is unworthy of their attention
or, in the case of police officers, their protection. Accepting Ms. Price’s
allegations as true at this stage of the litigation, the Court understands that
Ms. Price has borne substantial and repeated maltreatment by a variety of City
officials.
Of particular concern to the Court, during the November 5, 2020
conference, Ms. Price brought forth information that the District Attorney’s
Office had in its possession — for nearly nine years — two cell phones on
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which there was evidence supporting Ms. Price’s allegations of various forms of
abuse by Mr. Powell and undermining false reporting charges leveled against
Ms. Price. Not only did the Office not act on this evidence or return the phones
in a timely manner despite Ms. Price’s repeated requests, but a forensic
examination of the phones conducted by Ms. Price’s former counsel after the
phones were finally returned indicates that someone in the District Attorney’s
Office attempted to delete the evidence from the phones. This suggests that the
District Attorney’s Office affirmatively impeded Ms. Price’s ability to pursue
justice, allegedly to protect Mr. Powell. Perhaps there is some benign
explanation for such troubling conduct by members of the District Attorney’s
Office, but no such explanation is immediately obvious to the Court. It should
go without saying that the Court expects that any material relevant to this
matter in the possession of the District Attorney’s Office or any current
Defendant, to which Ms. Price is entitled in discovery, will be produced to her
without delay.
Nonetheless, the Court does not believe that this newly presented
evidence undermines the earlier dismissal of certain of Ms. Price’s claims as
time-barred by the three-year statute of limitations or for failure to state a
claim upon which relief can be granted. Even if it is now more plausible that
members of the District Attorney’s Office sought to discredit Ms. Price and
maneuvered to stigmatize her as ineligible for police assistance, Ms. Price’s
substantive due process claim still is not viable as alleged. As a general
matter, “a State’s failure to protect an individual against private violence simply
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does not constitute a violation of the Due Process Clause.” DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). There is an
exception to this rule when the State actively creates or increases the danger to
the person. See Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993),
overruled on other grounds by Leatherman v. Tarrant Cty. Narc. Intelligence &
Coordination Unit, 507 U.S. 163 (1993). However, there is no evidence that Ms.
Price’s alleged placement by Defendants on a “do not serve” list increased the
danger to her. Instead, her claims suggest only that “police officers had failed
to act upon reports of past violence,” and such allegations do “not implicate the
victim’s rights under the Due Process Clause[.]” Id.
B.

Next Steps
The Fifth Amended Complaint remains the operative pleading in this

matter and discovery has proceeded as to the claims therein. During the
November 5, 2020 conference, Ms. Price indicated to the Court that, in her
view, discovery is not complete. Accordingly, Ms. Price is hereby ORDERED to
submit to the Court, on or before December 30, 2020, a letter outlining the
remaining discovery issues. She may also discuss in that letter the status of
any negotiations she may have had with Defendants (including in particular
the MTA Defendants) regarding settlement of some or all of her claims.
Defendants shall file a response to Plaintiff’s letter on or before January 11,
2021. Defendants shall also transmit a copy of this Order to counsel for the
DANY Defendants on or before December 4, 2020.

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SO ORDERED.
Dated: November 30, 2020
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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