Fincher v. The City of New York

Opinion

Mata ELE USDC SDNY i ee DOCUMENT ie □□□ et ELECTRONICALLY FILED Rept or DOC #: wise DATE FILED:___ □□□□□□□□ THE CITY OF NEW YORK JAMES E. JOHNSON LAW DEPARTMENT EVAN J. GOTTSTEIN Corporation Counsel 100 CHURCH STREET Assistant Corporation Counsel NEW YORK, NY 10007 Phone: (212) 356-2262 Fax: (212) 356-3509 egottste □□□□□□□□□□□□

October 29, 2020 BY ECF Honorable Mary Kay Vyskocil United States District Court Southern District of New York 500 Pearl Street New York, New York 10007 Re: Sean Fincher v. City of New York, et al. 19 CV 6206 (MKV) Your Honor: I am the Assistant Corporation Counsel in the Office of James E. Johnson, Corporation Counsel of the City of New York (the “City”) assigned to the defense of the above- referenced matter. For the reasons set forth below, it is respectfully requested that the Court strike from the docket: (1) plaintiffs original complaint that was attached as an exhibit to his second amended complaint (ECF No. 66-2); (2) plaintiffs original complaint as initially filed on July 1, 2019 (ECF No. 2); and (3) plaintiff's first amended complaint (ECF No. 19). As set forth in further detail below, these complaints contain allegations which plaintiff has acknowledged are false and also that he knew them to be false at the time he initially filed these documents. On July 1, 2019, plaintiff commenced this action by filing a complaint regarding an incident that occurred at the Father Smith Homeless Shelter located in Bronx, New York, on May 4, 2018. (ECF No. 2) In that first complaint, plaintiff alleged that defendant NYPD officers threw him to the floor and placed their knees in his back, neck, and shoulder areas as they secured him in handcuffs — facts that plaintiff subsequently acknowledged that he knew to be false at the time he submitted this complaint. (See Exhibit A, Excerpts from Deposition of

Sean Fincher Conducted on September 21, 2020 (“Fincher Dep.”), 148:1-3, 148:20-149:8, 154:22-25, 155:20-156:6, 157:12-158:3)' On November 8, 2019, plaintiff filed a (first) amended complaint (“FAC”), which added new named defendants but kept the allegations that plaintiff knew were false.” (See ECF No. 19) On November 27, 2019, the City produced the defendant officers’ body-worn camera footage of the incident at issue, which clearly depicted the NYPD defendants placing handcuffs on plaintiff without throwing him to the floor or placing any of their knees on any part of plaintiff's body. (See Ex. A, Fincher Dep., 179:9-180:12) Plaintiff did nothing at that time to amend his pleading to remove the obviously false allegations. (Ex. A, Fincher Dep., 182:7-22) Following the post-discovery conference held before Your Honor on October 15, 2020, plaintiff agreed to file a second amended complaint (“SAC”) omitting any allegations of NYPD defendants throwing plaintiff to the floor or placing their knees on him. On October 23, 2020, the SAC was entered on the docket; however, annexed thereto as an exhibit was a copy of the original complaint which, of course, contained the false allegations at issue. (See ECF Nos. 66, 66-2) Plaintiff's reasons for including his original complaint at ECF No. 66-2 are unclear, but whatever the intended goal, including the deleted false material defeated the purpose of amending the complaint to omit the false allegations. Plaintiffs filing of the attachment has the effect of either re-alleging those same falsehoods, or, at a minimum, republicizing them. The attachment of the prior complaint should be stricken from the docket pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, which provides that the Court may strike “any redundant, immaterial, impertinent, or scandalous matter” from a pleading. The prior false pleading meets all of the criteria spelled out in Rule 12(f), because it is redundant and immaterial per se, and contains “scandalous” allegations that plaintiff acknowledges are false. Moreover, these false allegations are especially inflammatory in light of public outcry in the months following the death of George Floyd concerning the use of force by police, including the specific type of force that is falsely alleged in the prior complaints, e.g., placing knees on plaintiff's neck. Further, these knowingly false allegations egregiously harm defendants’ reputations by reiterating false allegations in a permanent and public record. Increasingly, litigation records are systematically processed and publicized in internet databases of allegations for the express purpose of impugning the credibility and character of police officers (including during cross examination in criminal cases). See, e.g., https://www.capstat.nyc/ (public database purporting to contain allegations in federal lawsuits against police officers). Moreover, these

' Defendants interpret § 5.B of Your Honor’s Individual Rules of Practice in Civil Cases to require a courtesy copy of the entire deposition transcript when defendants file their motion for summary judgment; therefore, we have attached only the relevant excerpts of that transcript as Exhibit A to this application. However, to the extent the Court so requires, defendants can forward a copy of the entire transcript before submitting their summary judgment motion. The FAC did not contain the original complaint attached as an exhibit.

false allegations can result in prejudice to the defendant officers by tainting the jury pool as against these specific officers. The same is true for the two prior iterations of plaintiff's complaint (ECF No. 2 and No. 19), which contained the same false and scandalous allegations, at a time when plaintiff knew them to be false. Therefore, these prior complaints should be stricken as well, for the same reasons. When mere allegations in federal lawsuits seeking money damages are systematically publicized to impugn the character of police officers, the Courts should not allow the reckless seeding of the public record with defamatory statements against public servants. That is especially so when those allegations are admitted by the plaintiff to be false. Accordingly, defendants respectfully request that the Court strike and remove the plaintiff's prior complaints, filed at ECF No. 66-2, No. 19, and No. 2) from the docket, leaving only the second amended complaint, at ECF Nos. 66 and 66-1, as the only operative and publicly available pleading in this case. Defendants thank the Court for its time and consideration in this matter. Respectfully submitted, Evan G. Gettitein Is) Evan J. Gottstein Assistant Corporation Counsel Special Federal Litigation Division cc: (Via E-Mail) Sean Fincher Plaintiff Pro Se 28-66 College Point Boulevard, Rm. 217 Flushing, New York 11354 Finchersean243 @ gmail.com

The request to strike from the record Plaintiff's earlier pleadings is DENIED. The First Amendment and the common law establish a strong presumption of public access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). Moreover, the Second Circuit has long instructed courts "not [to] tamper with the pleadings unless there is a strong reason for so doing." Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976). The falsity of allegations is not sufficient. See Acco, Ltd. v. Rich Kids Jean Corp., No. 15-cv-7425 (JSR), 2016 WL 3144053, at *3 (S.D.N.Y. Apr. 11, 2016). Rather, the movant must show that failing to strike the pleading "would result in prejudice." Roe v. City of New York, 151 F. Supp. 2d 495, 510 (S.D.N.Y. 2001). Insofar as the record reflects that Plaintiff filed a superseding pleading and admitted the falsity of his earlier allegations, the mere existence of his earlier pleadings in the record does not prejudice the defendants. Date: July 7, 2021 eg Vpehre New York, New York Mary|Kay V¥skocil nited States District Judge

EXHIBIT A Page 98 1 UNITED STATES DISTRICT COURT: SOUTHERN DISTRICT OF NEW YORK 2 --------------------------------------------------X SEAN FINCHER, 3 PLAINTIFF, 4 -against- Index No: 5 19 Civ. 6206 (LGS) 6 THE CITY OF NEW YORK; NYPD OFFICER LAUREN MORIARTY (Shield #14377) (In Her Individual and Official 7 Capacities); NYPD OFFICER JOSEPH MESARIS (Shield #16202) (In Her Individual and Official Capacities); NYPD 8 SERGEANT MICHAEL URENA (Shield #1095)(In His Individual and Official Capacities); NYPD OFFICER STEPHANIE ALBA 9 (Shield #: 19604)(In Her Individual and Official Capacities); FDNY/EMT STEPHEN GUTTMAN (Shield #5287)(In 10 His Individual and Official Capacities); FDNY/EMT ANDREW ZUCKER (Shield #1463)(In His Individual and Official 11 Capacities) 12 DEFENDANTS. ---------------------------------------------------X 13 DATE: September 21, 2020 14 TIME: 10:09 A.M. 15 16 17 CONTINUED EXAMINATION BEFORE TRIAL of the 18 Plaintiff, SEAN FINCHER, taken by the Defendant, 19 pursuant to a Notice, held at the offices of JAMES E. 20 JOHNSON, CORPORATION COUNSEL, 100 Church Street, New 21 York, New York 10007, before Jasmin Omozusi, a Notary 22 Public of the State of New York. 23 24 25 1 do to get you into handcuffs? 1 actually put their knees on you at any point; is that 2 A. They pulled my arms apart and put them 2 correct? 3 behind my back. 3 A. That's correct. 4 Q. And did they use any type of force 4 Q. So the statement in your amended 5 against you when they were doing that? 5 complaint at paragraph 27 that the officers had their 6 A. Well, yeah, if you put your arms--if you 6 knees in Plaintiff's back, neck and shoulder areas, that 7 forcibly put somebody arms behind their back, that's 7 statement is not true? 8 force. That is force. 8 A. Not true. 9 Q. And once they got the handcuffs --once 9 Q. Then why did you include that in your 10 they got your hands into the handcuffs, were you still 10 complaint if it wasnot true? 11 sitting on your bed? 11 A. Felt like it at the time. These are big 12 A. Yes. 12 officers, at least Mesaris is like built like a 13 Q. And what happened once the handcuffs were 13 fullback. Sergeant Urena isn't a small guy either. 14 on you? 14 Q. Now, at what point in the sequence did it 15 A. Well, they lifted me up and then we 15 feel like that officers had placed their knees on you? 16 walked out. 16 A. When they put my arms behind my back. 17 Q. Did they ever throw you to the ground at 17 Q. When they first got your hands behind 18 any point? 18 your back? 19 A. It felt like it. It felt like I was 19 A. Yeah. 20 going to the ground. 20 Q. How long were your hands behind your back 21 Q. But did you ever go from sitting on your 21 before the handcuffs were on? 22 bed to the floor of the dorm room that you were in? 22 A. Couldn't have been no more than three 23 A. Idon't know if I actually completely 23 seconds. 24 went down. I think I partially went down, like kind of 24 Q. Once the handcuffs were on, did it still 25 to the knee. But almost touching the floor. 25 feel like someone had placed a knee on you? Page 148 Page 150 1 Q. And did any officers place any knees on 1 A. I was in a lot of pain. 2 you at any point? 2 Q. But did it feel like someone had placed a 3 A. No. 3 knee on you once the handcuffs wereon? 4 Q. Now, do you still have a copy of the 4 A. No. 5 amended complaints in front of you that was marked at 5 Q. Once the handcuffs were on, you said you 6 Exhibit E? 6 were still feeling pain? 7 A. Yes. 7 A. Yes. 8 Q. I'd like to direct your attention to 8 Q. Where on your body were you feeling pain 9 paragraph 27, and starting at the second sentence you 9 once the handcuffs were on? 10 wrote: Plaintiff who was at this time, or who at this 10 A. My neck and my back. 11 time was seated at the edge of his bed with his hands 11 Q. What side? 12 clasped together was then grabbed and forcefully thrown 12 A. Primarily the left side. 13 to the floor by all of the NYPD Defendants. 13 Q. What position were you in when it felt 14 Now, are you claiming that any of the NYPD 14 like someone's knee was on you? 15 Defendants officers threw you to the ground? 15 A. When you say position, it felt like 16 A. Close to it. 16 basically I was kind of like bent over. 17 Q. But to be clear, none of the police 17 Q. Were you still sitting on the bed? 18 officers actually threw you to the ground? 18 A. Sitting, yes. 19 A. No. 19 Q. And other than your feet, was any part of 20 Q. Now, the next sentence of that paragraph 20 you touching the ground? 21 reads "with their knees in Plaintiff's back, neck and 21 A. No. 22 shoulder areas, they then placed his hands behind his 22 Q. Did you complain of pain at any point? 23 back and proceeded to rear handcuff him extremely 23 A. No, I'm an athlete. Athletes don't 24 tight." 24 complain about pain. 25 Now, you just stated that the officer did not 25 Q. So you didn't tell the police officers 1 that anything that they were doing was hurting you? 1 thrown to the floor by all of the NYPD Defendants." 2 A. They wouldn't care. If they did, they 2 Now, when you wrote this in your amended 3 wouldn't have done it in the first place. 3 complaint, you knew that it was false? 4 Q. Well, did you tell them that you were in 4 A. I don't know it was false. It just felt 5 pain while they were handcuffing you? 5 like it at the time. 6 A. No. 6 Q. But when you wrote this complaint, you 7 Q. You said once the handcuffs were on you, 7 didn't write that it felt like you were thrown to the 8 you said the officers stood you up off the bed. 8 ground, right? 9 A. Yes. 9 A. Right. 10 Q. What happened after that? 10 Q. You wrote that you were, in fact, thrown 11 A. They marched me outside of the room down 11 to the floor by all of the NYPD Defendants. 12 the stairs outside the shelter into an ambulance. 12 A. Right. 13 Q. And at any point during that walk from 13 Q. And you knew that regardless of what you 14 the room to the ambulance, did you tell any of the 14 felt like was happening, that they did not actually 15 officers that you were in any pain? 15 throw you to the ground. 16 A. No. 16 A. You have to rephrase the question. 17 Q. Did you say anything to the officers 17 Q. Now, you said that it felt like you were 18 during that walk from the room to the ambulance? 18 thrown to the ground? 19 A. No. 19 A. Right. 20 Q. Did you say anything to the defendants 20 Q. When you wrote this complaint, this 21 after you were handcuffed? 21 amended complaint, you did not write that it felt like 22 A. I believe once we got inside, I went 22 officers threw you to the ground. 23 into --I was escorted into the ambulance, and I rode in 23 A. Correct. 24 the ambulance with--well, the two EMS workers and 24 Q. What you wrote wasthat they did, in 25 Mesaris. 25 fact, grab you and forcefully throw you to the floor. Page 152 Page 154 1 Q. Did you say anything to them in the 1 A. Correct. 2 ambulance? 2 Q. So you knew when you wrote this that they 3 A. I believe I said why --I said --it had 3 did not actually throw you to the ground? 4 something to do with my bag, but I couldn't remember 4 A. Well, it felt like it. 5 what it was. I had a backpack. I had a backpack on. 5 Q. But you knew that it didn't actually 6 Q. Oh, did you say you said something about 6 happen? 7 your bag or your back? 7 A. I actually couldn't remember whether it 8 A. The bag. The bag. The actual backpack. 8 actually happened. 9 Q. How long when you got into the ambulance 9 Q. So are you saying that when you wrote the 10 outside of the shelter until you got tothe hospital, 10 amended complaint, you believed that you were, in fact, 11 how long did it take? 11 thrown to the floor? 12 A. Wow, I thought it was a little too long. 12 A. Well, it felt like it. 13 I don't know. It could have been like fifteen minutes 13 Q. Well, I'm asking if you knew if that is, 14 maybe. 14 in fact, what happened? 15 Q. What hospital did you go to? 15 A. It happened so fast, I couldn't even 16 A. Lincoln, I think. 16 remember. 17 MR. GOTTSTEIN: Off the record. 17 Q. So when you wrote this complaint, you 18 (Whereupon, an off-the-record discussion was 18 weren'tsure if you were, in fact, thrown to the floor? 19 held.) 19 A. It felt like I was thrown to the floor, 20 Q. Now, Mr. Fincher, I want to go back to 20 like close to the floor. They were all like leaning-- 21 some of the statements that are alleged in the complaint 21 putting all their weight on me. 22 of the amended complaint that is marked as Exhibit E 22 Q. But when you wrote your amended 23 now. In paragraph seven, you wrote, "Plaintiff, who at 23 complaint, you didn't know if you were, in fact, thrown 24 this time was seated at the edge of his bed with his 24 to the ground. 25 hands clasped together was then grabbed and forcefully 25 A. I can't-- yeah, I could say that. 1 Q. So when you wrote your amended complaint, 1 A. Well, all of their weight was on top of 2 what did you remember about the incident when you were 2 me. 3 placed in handcuffs? 3 Q. What do you mean by all of their weight 4 A. I remember all of their weight, or most-- 4 was on top of you? 5 at least two of them, their weight like all ontop of 5 A. That's what it felt like. 6 me. 6 Q. If you were sitting on the bed, where on 7 Q. And specifically why did it feel like you 7 your body did it feel like all of their weight was on? 8 were thrown to the floor? 8 A. My back and my neck. 9 A. I mean, Officer Mesaris is a big guy. 9 Q. And is that while you were sitting 10 Q. So is it your claim that it felt like 10 upright? 11 Officer Mesaris threw you to the floor? 11 A. Yes. 12 A. It's not my claim. I'm saying that's 12 Q. Now, in your complaint, you also wrote: 13 what it felt like, yeah. 13 "With their knees in Plaintiff's back, neck and shoulder 14 Q. When you wrote this amended complaint, 14 area, they then placed his hands behind his back and 15 based on your recollection at the time, did it feel like 15 proceeded to rear handcuff him extremely tight." 16 you were laid out flat on the ground? 16 When you wrote this amended complaint, you 17 A. No, no. No. 17 knew that that statement was false, that there--about 18 Q. Did it feel like your head was against 18 the officers' knees being in Plaintiff's back, neck and 19 the grounds? 19 shoulder areas? 20 A. No, I was just --I was bent over like 20 A. Well, that's what it felt like. 21 bent over like going over toward the floor, or it felt 21 Q. But you didn't write in your complaint 22 like kind of like, you know, on the floor. 22 that it felt like they had knees in your back, neck, and 23 Q. No, I'm just trying to get the details of 23 shoulder areas. 24 how it felt you were on the floor. So ifit didn't feel 24 A. No. 25 like you were flat on the floor, what position did it 25 Q. When you wrote this complaint, you knew Page 156 Page 158 1 feel like you were in on the floor? 1 that it didn't actually happen, that their knees were on 2 A. Well, not on the floor. It just felt 2 you? 3 like I was bent over going to the floor. 3 A. Yeah, I knew that. 4 Q. So it didn't feel like you were actually 4 Q. Now, have you seen officer's body-worn 5 on the floor at all? 5 camera video that was produced to you for this case? 6 A. No. 6 A. Yes. 7 Q. Now, earlier when you said that Officer 7 MR. GOTTSTEIN: I'll go up to the computer 8 Mesaris is a big guy, does that just mean that he could 8 screen to play some of those videos. 9 have thrown you to the ground if he tried? 9 Q. I'm going to take you through some of 10 A. If he tried? Wait, just say the question 10 those videos which include body-worn camera video of 11 again. 11 Officer Mesaris, Lieutenant Urena who was Sergent Urena 12 Q. Earlier when you said that Officer 12 at the time, and Officer Alba. 13 Mesaris is a big guy, do you mean that he would have 13 These videos were designated with the Bates 14 been able to throw you to the ground? 14 stamp number D18 through D21. This first clip that I'm 15 A. I have to object. All I said was Officer 15 playing is from Lieutenant Urena's body camera video, 16 Mesaris was a big guy. Could he have thrown me to the 16 and that video had the Bates stamp number D18. And I 17 ground? That's just like --that's --you know, that's 17 will be playing from the elapsed time 18 just speculation. I don't understand. 18 six-minutes-and-37-seconds through seven minutes. 19 Q. Well, I was asking what you meant when I 19 [Whereupon, video is played.] 20 had asked why did you believe that --of why did it feel 20 Q. Mr. Fincher, doyou agree that in that 21 like they had thrown you to the floor. And you said 21 portion of the video Lieutenant Urena had told the EMTs 22 Officer Mesaris was a big guy. I'm tryingto understand 22 that: "From what we got, he's an intox and was acting 23 what you meant when you said that Officer Mesaris was a 23 violently towards staff"? 24 big guy in response to the question why it felt like you 24 A. That's what I heard him say. 25 were thrown to the ground. 25 Q. And do you agree that Officer Moriarty 1 left wrist? 1 A. No. 2 A. Right. 2 Q. Now, in any of the videos that we've just 3 Q. And at that point, both of your arms were 3 watched, you did not complain that you were in any pain? 4 behind your back? 4 A. No. 5 A. Yes. 5 Q. And you also did not say anything to the 6 Q. Now, once both of those --both handcuffs 6 officers about the handcuffs being too tight? 7 were on, the officers stopped using any type of force? 7 A. No. 8 A. Yes. 8 Q. And you did not say anything about a knee 9 Q. So you were not on the floor at any time 9 being in your back or neck or shoulder, right? 10 while the police were with you, correct? 10 A. No, not in front of them. 11 A. No. 11 Q. Did you say it to someone else that 12 Q. And do you agree that this video shows 12 night? 13 that the police never threw you to the ground? 13 A. No. 14 A. Yes. 14 Q. Now, when was the first time that you 15 Q. Sorry, just to clarify, you agree that 15 watched these body camera videos that were produced to 16 the video does not show that? 16 you in this case? 17 A. Right, the video doesn't show that. 17 A. When you produced them to me. 18 Q. So that never happened, correct? 18 Q. Would that be--so did you watch them the 19 A. Right, never happened. 19 same date that I produced them to you? 20 Q. And the video also does not show any 20 A. Oh, yeah. 21 officers placing knees on your back? 21 Q. Could you remember what date that was? 22 A. No, it don't. 22 A. No. 23 Q. And it also doesn't show officers placing 23 Q. Do you remember the month? 24 any knees on your neck? 24 A. It could have been December. 25 A. No. 25 Q. So it's fair to say that you first Page 180 Page 182 1 Q. And it doesn't show them placing knees on 1 watched these videos in December of 2001 nine? 2 either of your shoulders. 2 A. Right. 3 A. No. 3 Q. When you watched these videos for the 4 Q. So they did not, in fact, place any knees 4 first time, did you watch all of the videos in their 5 on your back? 5 entirety? 6 A. No. 6 A. Oh, yes. 7 Q. And they didn't place any knees on your 7 Q. Now, when you watched these videos, you 8 shoulders? 8 saw that you were not, in fact, thrown to the ground by 9 A. No. 9 police officers at any point, correct? 10 Q. And they didn't place any knees on your 10 A. Correct. 11 neck? 11 Q. And you also saw that none of them placed 12 A. No. 12 any of their knees on you at any point? 13 Q. Now, I'm going to play Officer Alba's 13 A. Correct. 14 body camera video, which was Bates stamp number D21, and 14 Q. And from December of 2019 when you first 15 designated as Exhibit I. I will be playing from the 15 saw these videos until now, you have not amended your 16 elapsed time of thirteen-minutes-and-zero-seconds until 16 complaint to correct the statement that they had put 17 the end of the video. 17 their knees in your back, neck and shoulder areas? 18 [Whereupon, the video is played.] 18 A. No. 19 Q. Now, Mr. Fincher, the rest of that video 19 Q. And you also did not amend your complaint 20 that I just played doesn't show any officers using force 20 after seeing these videos to correct the statement about 21 on you after you were placed in handcuffs, correct? 21 officers grabbing and throwing you to the ground? 22 A. Correct. 22 A. No. 23 Q. Now, after that video stops recording, 23 Q. Now that you have seen the video evidence 24 when you were outside the ambulance, did any Defendants 24 that directly contradicts the allegations of the force 25 use any physical force on you after that? 25 used that you stated in youramended complaint, will you