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GREEN v. CITY OF PATERSON

June 26, 1997

OWEN GREEN, Plaintiff,
v.
CITY OF PATERSON, DETECTIVE TIMOTHY JORDAN, DETECTIVE ADOR FLORES, DETECTIVE GLORIA McMILLAN, individually and as a police officer for the City of Paterson, John Does 1-10 unknown police officers for City of Paterson, Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is a civil rights action brought by plaintiff, Owen Green ("Green") against Detective Timothy Jordan ("Jordan"), Detective Ador Flores ("Flores")(together, the "Detectives"), Detective Gloria McMillan ("McMillan") and the City of Paterson ("City of Paterson"), (collectively, the "Defendants"). Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331 and 1343(3).

 Green alleges his constitutional rights were violated when he was wrongfully arrested by the Defendants. Green filed a seven count complaint ("Complaint") asserting claims pursuant to 42 U.S.C. § 1983 ("Section 1983"), *fn1" as well as various state law causes of action. Green seeks compensatory and punitive damages, attorney's fees and any further relief deemed appropriate. Complaint, P 44.

 The Defendants filed a motion for summary judgment ("Motion for Summary Judgment") pursuant to Rule 7.1(f), formally Rule 12N, of the Local Rules for the District of New Jersey. *fn2" For the reasons set forth below, the Motion for Summary Judgment is granted.

 A. Parties

 1. Plaintiff

 Green is a citizen of the State of New Jersey residing in the City of Paterson. See Complaint, P 3.

 2. Defendants

 Detectives Jordan, Flores and McMillan are residents of the state of New Jersey and are agents, servants and/or employees of City of Paterson. Id., P 5. At all relevant times, Jordan, Flores and McMillan were acting pursuant to and under color of state law. Id.

 The City of Paterson is a body corporate and politic organized under the laws of the state of New Jersey. Id., P 4. The City of Paterson owns, manages, directs and controls the Paterson Police Department. Id.

 B. Background

 1. Before the Shooting

 On the evening of 20 November 1994, Green was attending church services. See Plaintiff's Answers to Defendant's Interrogatories ("Plaintiff's Interrogatory Answers"), attached to Arseneault Cert. as Exhibit A, at 1. Following services, at approximately 10:00 p.m., Green drove another church parishioner, Violet Ramnan ("Ramnan"), to her residence on 25th Avenue in the City of Paterson Id. After dropping Ramnan at her residence, Green proceeded to his home. Id. He drove down 15th Street, turned right on East 18th Street then turned left on Van Houten Street, where he stopped at a red light at its intersection with Main Street. Deposition of Green ("Green Dep."), attached to Arseneault Cert. as Exhibit J, 28-30.

 2. The Shooting

 At approximately 10:27 p.m. on the same date, a shooting occurred at 174 12th Avenue in the City of Paterson. Voluntary Statement of David Allen Carlswell ("Carlswell Statement"), attached to Arseneault Cert. as Exhibit D, at 1. Two witnesses, David Allen Carlswell ("Carlswell") and Alton Fitts ("Fitts"), were playing basketball with some friends in a playground on 12th Avenue. Voluntary Statement of Fitts ("Fitts Statement"), attached to Arseneault Cert. at Exhibit E, 1. They heard a gunshot and then observed a black man push a black female, later determined to be Arlene Session ("Session"), out of a car. Id. Fitts ran to the fence in the front of the playground to view the license plate number of the vehicle. Id. Fitts was unable to see the license plate but was able to get "a good look" at the driver. Id.

 Carlswell and Fitts jumped into Carlswell's car, a red Audi, in an attempt to follow the vehicle to obtain a license plate number. Id. at 2. The two witnesses drove down 12th Avenue, made a right onto East 16th Street and another right onto East 18th Street. Once on East 18th Street, the car they were following ran a red light at the intersection of East 18th Street and Broadway and then turned right onto Van Houten Street. Id. It was at the intersection of Van Houten Street and Main Street that the two witnesses pulled along side the vehicle and viewed the driver. Id. The two witnesses stated they never lost sight of the car except when it made a turn. Voluntary Statement of Fitts ("Fitts Statement"), attached to Arseneault Cert. as Exhibit E, at 2.

 While at the stoplight, Green noticed two men in a red car pointing at him. Plaintiff's Interrogatory Answers at 1. In fear of his safety, Green continued to drive while the red car followed. Id. at 2. After several turns, the red Audi stopped following Green and Green continued home. Id at 2. Carlswell and Fitts returned to the crime scene to report the license plate number to the police. Fitts Statement at 2.

 3. The Investigation

 Jordan and Flores left the crime scene at approximately 11:00 p.m. for St. Joseph's Hospital. Deposition of Flores ("Flores Dep."), attached to Connell Cert. as Exhibit H, attached to Arseneault Cert. as Exhibit K, at 22, 25. The attending nurse indicated Session had been communicating by blinking her eyes -- one blink for yes, two blinks for no. Deposition of Jordan ("Jordan Dep."), attached to Connell Cert. as Exhibit I, attached to Arseneault Cert. as Exhibit L, 141. Jordan asked Session if she knew the individual who shot her; Session blinked once for yes. Id. Jordan then asked Session whether the suspect was Ian Green, a major drug dealer in the City of Paterson area; Session blinked twice for no. Id. Jordan and Flores were unable to question Session further due to her medical condition. Id.

 At approximately 11:30 p.m., Flores and Jordan proceeded to 30 Ryerson Avenue in search of the suspect vehicle. Supplemental Police Report at 3. They located a gray four door Volkswagen with a New Jersey license plate FX912P in front of 21 Ryerson Avenue. Id. Jordan and Flores observed the engine of the car was warm. Id. They looked inside the vehicle and did not see any blood, bullet holes or bullet casings. Flores Dep. at 40-41. Jordan and Flores radioed the Detective Bureau and requested the two witnesses who had chased the vehicle, later determined to be Carlswell and Fitts, be transported to Ryerson Street for a vehicle identification. Supplemental Police Report at 3; Flores Dep. at 41. Detective Carl Popewiny ("Popewiny") transported Fitts and Carlswell to Ryerson Avenue where they identified the Y. Green Vehicle as the suspect vehicle. Id.

 Popewiny joined Jordan and Flores outside of 30 Ryerson Avenue. Deposition of Popewiny ("Popewiny Dep."), attached to Connell Cert. as Exhibit O, attached to Arseneault Cert. as Exhibit N, 14. Jordan and Flores asked Popewiny to watch outside the house. Id. at 15. Jordan and Flores knocked on the door, which was answered by the wife of Green, Yvonne Green ("Yvonne Green"). Supplemental Police Report at 4. Moments later, Green came to the door. Id. Green told Jordan and Flores he drove the Y. Green Vehicle that evening and that "two guys were following [him] downtown." Id. ; Deposition of Green ("Green Dep."), attached to Connell Cert. as Exhibit Q, attached to Arseneault Cert. as Exhibit J, 45. Jordan and Flores responded that Green had to "come downtown" with them. Green Dep. at 45. Green repeated that "two guys were following me downtown." Id.3

 While Green went to his bedroom to dress, he overheard Yvonne Green tell Jordan and Flores of the two men who were following Green that evening. Id. at 48. One of the Detectives asked Yvonne Green for the keys to the Y. Green Vehicle. Id. The officer returned the key and advised they did not open the car. Id. at 56. Green, who was never handcuffed, was taken to police headquarters. Id. at 52.

 During this period Carlswell and Fitts had been sitting in the back seat of the Popewiny's vehicle parked on Ryerson Avenue. Popewiny Dep. at 14. Carlswell and Fitts viewed and identified Green to Popewiny as "the guy" who committed the shooting. Id. at 16-17. Popewiny had not asked either Carlswell or Fitts to identify Green; rather it was offered by the two witnesses voluntarily. Id. at 35. Popewiny informed Jordan and Flores of the identification by radio. Id. at 17.

 4. At the Detective Bureau

 At approximately 12:10 a.m. on 21 November 1994 in the Detective Bureau, Green signed a Miranda Form and was placed in an interview room. See Supplemental Police Report, 4; Signed Miranda Form, attached to Connell Cert. as Exhibit S. Green, Carlswell and Fitts were interviewed. Deposition of Jordan ("Jordan Dep."), attached to Connell Cert. as Exhibit I, 177.

 During his interview, Green explained he had been at church that evening. Supplemental Police Report at 5. On his way home he dropped off another parishioner, Ramnan. Thereafter, while at the intersection of Main Street and Van Houten Street, a red car occupied by two black males pulled up along side of the Y. Green Vehicle and were pointing at him. Green said he became frightened, drove off and went home. Id. Green offered that Flores could search the Y. Green Vehicle. Green Dep. at 72. In addition, Green provided the address and telephone number of Ramnan, id., and submitted to a paraffin test for traces of gun powder. Id. at 89. No written statement from Green was taken because it was "not going to help [the] case." Deposition of Sergeant Raymond Reid ("Reid Dep."), attached to Connell Cert. as Exhibit D, 62; Flores Dep. at 94.

 Carlswell and Fitts were interviewed separately. Flores Dep. at 76. Both witnesses provided similar information. Id. at 75-76, 81. While they were playing basketball in the park, Carlswell and Fitts heard a shot and then observed Session being pushed from a car. Id. The witnesses attempted to read the license plate number of the car but could not do so because it pulled away. Id. They followed the vehicle in Carlswell's Audi. They were able to pull along side the car, view the driver, and obtain the license plate number. Id. at 77. Both witnesses stated they never lost sight of the vehicle during the chase. Id. at 81. Fitts indicated he had seen Green before in the area of the shooting buying drugs. Jordan Dep. at 180-81.

 Carlswell and Fitts identified Green from a single photo taken of Green at the Detective Bureau. Jordan Dep. at 157. Both Carlswell and Fitts provided sworn written statements. See Fitts Statement; Carlswell Statement. McMillan took the statement of Carlswell while Jordan took the statement of Fitts. Id. Although three additional witnesses at the crime scene saw a black male push Session out of the car, none of these witnesses could identify the car or driver. See Supplemental Police Report at 6. The Detectives did not take statements from these witnesses.

 Sergeant Raymond Reid ("Reid") made a decision to show Session a single photograph of Green for identification. Reid Dep. at 54. Reid considered this procedure to be reasonable. Id. at 54-55. Popewiny took a photograph of Green to Session. Popewiny Dep. at 20. A nurse advised Popewiny that Session was paralyzed and not able to speak, but could respond by blinking to yes and no response questions. Id. at 22-23. Session blinked yes to the questions of whether she was well enough to make an identification, whether the person who shot her was male, and whether the person who shot her was Green, the person in the photograph. Id. at 25-26. The nurse corroborated that Session responded yes to the questions. Id. at 27. Popewiny informed Reid of the identification. Id.

 5. The Arrest

 Green was arrested and charged with the shooting of Session on 21 November 1994 at 12:50 a.m. See Arrest Report, attached at Connell Cert. as Exhibit W. Prior to the arrest, Jordan, Flores and Reid discussed the evidence and agreed there was probable cause for the arrest. See Jordan Dep. at 190-91. Green was transferred from the Detective Bureau to the cell block of the Paterson Police Department. Arrest Brief, attached to Connell Cert. as Exhibit X.

 Green was arraigned on 21 November 1994 by Paterson Municipal Court Judge DelaCarrea, who referred the issuance of bail to the Bail Unit of the Passaic County Superior Court. Passaic County Jail Admittance Form, attached to Connell Cert. as Exhibit AA. Bail was set at $ 100,000 on 23 November 1994 by Passaic County Superior Court Judge Subryan. Bail Notice, attached to Connell Cert. as Exhibit BB. Green was released on bail on 28 November 1994. Plaintiff's Interrogatory Answers at 2.

 6. Post-Arrest Investigation

 Between 21 November 1994 and 2 February 1994 the Detectives continued to conduct their investigation. See Supplemental Police Report Update ("Supplemental Police Report Update"), attached to Arseneault Cert. as Exhibit C., 1. On 21 November 1994, Flores responded to St. Joseph's Hospital to retrieve the clothing of Session but was informed it had been discarded. Id. On that date, Flores obtained a sworn statement from Ramnan, id., and returned to St. Joseph's Hospital to speak with Session, but was unable to do so because of her physical condition. Id.

 On 22 November 1994, Jordan and Flores went to investigate the residence of Session. *fn4" Id. Caroline Merritt ("Merritt") confirmed Session lived at the residence and informed Jordan and Flores that Session was using drugs and selling drugs to support her habit. Id. at 3. Merritt was shown a photograph of Green, who indicated she had not seen him before. Id.

 On 23 November 1994, Jordan and Flores obtained a search warrant for the Y. Green Vehicle. The Y. Green Vehicle was towed to the State Police Crime Scene Unit in Totowa, New Jersey. A search of the Y. Green Vehicle was conducted. No blood stains or shell casings were found. Id.

 Following the search of the Y. Green Vehicle, Jordan and Flores spoke with two individuals at the North Jersey Developmental Center, Green's place of employment. Robert C. Lowe II ("Lowe"), the Administrative Director, and David Dohrman ("Dohrman"), the immediate supervisor, stated they were surprised Green was "involved in such a heinous crime" and described Green as hard working and responsible. Id. Lowe and Dohrman had no record of Session ever working as an employee at the North Jersey Developmental Center. Id.

 Jordan and Flores went to St. Joseph's Hospital where they presented six photographs of black males to Session, including a photo of Green. Id. at 4. Session was unable to identify any of the photos in the line-up. Id. Jordan, Flores and another detective, Richard Reyes ("Reyes") attempted to re-enact the actions taken by the two witnesses but were unable to follow the suspect vehicle, obtain the license plate or observe the driver as he passed the playground. Id. Only when the suspect vehicle was driving approximately fifteen to twenty miles per hour were the Detectives able to catch up to the suspect vehicle. Id. On 28 November 1994, Jordan and Flores attempted to interview Session again, but were unable to due to her physical condition. Id. at 5.

 On 30 November 1994, Jordan and Flores canvassed the area of the crime scene with a photo of Green attempting to determine if anyone knew Green. After speaking with numerous individuals, they were unable to find anyone that was familiar with him. Id. Jordan and Flores conducted a search of the Green residence, but found no evidence pertaining to the shooting. Id.

 Based on the following, Jordan and Flores began to have suspicions as to whether Green was responsible for the shooting:

 
1) no evidence of the shooting was found in the Y. Green Vehicle;
 
2) the re-enactment of the crime scene demonstrated that it was unlikely the witnesses were able to follow the suspect vehicle without losing sight of it;

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