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June 21, 1985

NATHANIEL CARTER, Plaintiff, against HENRY HARRISON, Police Officer, New York City Police Department; WILLIAM C. FREDERICKS, Detective, New York City Police Department; WARREN A. STEELE, Police Officer, New York City Police Department; THOMAS AHEARN, Lieutenant, New York City Police Department; STANLEY ANDRON, Sergeant, New York City Police Department; ROBERT J. McGUIRE, former Police Commissioner of the City of New York; and MICHAEL MIELE, Detective, New York City Police Department; SIX UNKNOWN POLICE OFFICERS, AGENTS, SERVANTS AND EMPLOYEES OF THE CITY OF NEW YORK, Individually and in their official capacities and THE CITY OF NEW YORK, Defendants

The opinion of the court was delivered by: MCLAUGHLIN


McLAUGHLIN, District Judge

 Plaintiff filed this civil rights action, 42 U.S.C. § 1983, after spending 28 months in prison for a murder he did not commit. He claims the individual defendants, all members of the New York City Police Department, suppressed exculpatory evidence during their investigation of the murder, and that the City of New York fails to train its police officers properly in the gathering and handling of evidence.

 Defendants City of New York and Robert McGuire, former City Police Commissioner, moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment. Fed. R. Civ. P. 56. The motions were referred to Hon. Shira A. Scheindlin, United States Magistrate, for Report and Recommendation. 28 U.S.C. § 636(b)(1)(B); she treated the motions as ones for summary judgment.

 After her customary thorough analysis of the issues, Magistrate Scheindlin recommended that both motions be denied, with leave to renew at the completion of discovery. A copy of the Report and Recommendation is attached to this opinion. Defendant City of New York objects to that part of the Report and Recommendation concerning the adequacy of the City's policy for training police officers.


 An essential element of a § 1983 plaintiff's claim against a municipality is that the denial of plaintiff's constitutional rights be caused by an official policy or custom of the municipality. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). A failure to properly train or supervise police officers may satisfy this requirement if that failure is so severe as to constitute "gross negligence" or "deliberate indifference" to plaintiff's constitutional rights. Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980, 100 S. Ct. 483, 62, L. Ed. 2d 407 (1979).

 In its objection to the Report and Recommendation, the City has furnished numerous excerpts from the Police Department's Investigators' Guide that instruct detectives in the gathering and handling of evidence. The Court is at a loss to understand why this Guide was not submitted when this motion was filed. Although it provides the Court with a clearer picture of the City's custom and policy then did the exhibits available to Magistrate Scheindlin, I nevertheless conclude the City's objection must be overruled.

 The Investigators' Guide, the affidavit of Chief of Detectives Richard Nicastro, and the exhibits thereto, disclose that the City does indeed have an established policy for the gathering and handling of evidence during an investigation. The evidence adduced by plaintiff to date, however, suggests that the investigation leading to plaintiff's conviction was conducted so shoddily as to cast serious doubt on the adequacy of that policy. As Magistrate Scheindlin found, "the alleged failure to train and supervise is sufficiently egregious to be labelled grossly negligent or to warrant a finding of a deliberate indifference to plaintiff's constitutional rights." Report and Recommendation at 11; see Owens v. Haas, supra.

 Magistrate Scheindlin found, and I agree, that plaintiff has raised triable issues of fact "as to the City's failure either to adopt an adequate policy or to provide adequate training with regard to the handling of exculpatory evidence." Report and Recommendation at 11. Because triable issues of fact exist, defendant's objection to Magistrate Scheindlin's Report and Recommendation is overruled; and the Report and Recommendation is adopted in its entirety.

 The parties are directed to continue discovery under the guidance of Magistrate Scheindlin. At the close of discovery, defendants are free to renew the motion for summary judgment. Any such motion, by either party, shall be submitted to Magistrate Scheindlin for a Report and Recommendation, 28 U.S.C. § 636(b)(1)(B).



 Plaintiff, Nathaniel Carter brings this civil rights action pursuant to 42 U.S.C. § 1983 ("1983"). Plaintiff seeks compensatory damages, punitive damages and reasonable attorney's fees for his wrongful conviction and confinement under color of state law in violation of the Sixth, Eight and Fourteenth Amendments. This case was referred to me by the Honorable Joseph M. McLaughlin for a Report and Recommendation on defendants' motion pursuant to Fed.R.Civ.P. 12(b)(6) for an order dismissing the complaint against defendants Maguire and the City of New York, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56.


 On September 15, 1981, Clarice Herndon was stabbed to death in her home in Cambria Heights, New York. Numerous wounds were inflicted, and the police officers who responded to the scene reported that the interior of her home was covered with blood. *fn1"

 On his way to the scene, defendant Walter Steele, a police officer, observed a black male running down the street whose shirt was covered with blood and whose description did not match that of plaintiff. (P14). *fn2" Police officers Henry Harrison, William Fredericks and Michael Miele, all named defendants who were investigating the murder under the supervision of defendants Lieutenant Thomas Ahearn and Sergeant Stanley Andron, interviewed a young witness who also saw a black man running down the street near the victim's home soon after the incident. (P15). This man also wore bloody clothes and his description did not match that of plaintiff.

 During the investigation of Ms. Herndon's murder, defendant William Fredericks, a detective, interviewed Judith Cooper, a neighbor of the victim. (P17). Ms. Cooper told Detective Fredericks that shortly after the murder, she had hear Delissa Durham, plaintiff's ex-wife and the victim's foster daughter, talking to two men, neither of whom matched plaintiff's description. (P17). Ms. Cooper claimed that she overheard Ms. Durham ask these two men to pick up Nathaniel Carter, Jr., plaintiff's son, from school. (P17). Ms. Cooper then observed the men leaving, presumably to carry out this task. (P17). Soon after the murder, a black male arrived at the local elementary school to pick up Nathaniel Carter, Jr. (P18). At the trial, plaintiff claimed that he did not pick up the child, and that he was in Ossining, New York at the time of the crime. In refuting plaintiff's alibi, the prosecution presented testimony that the black male who picked up Nathaniel Carter, Jr. at the school was the plaintiff. (P18).

 Defendant Harrison interviewed Delissa Durham on September 15, 16 and 18, 1981. (P20). On September 18th, Ms. Durham accused the plaintiff of the murder. Defendant Harrison arrested the plaintiff of the murder. Defendant Harrison arrested the plaintiff on september 19, 1981, (P20), and on September 23, 1981 a Queens County Grand Jury indicted plaintiff on charges of Second Degree Murder, Third Degree Assault and Three Counts of First Degree burglary. (P12).

 At the trial, defendant Harrison testified about his his [sic] investigation of the crime and the questioning of Ms. Durham. (P21). Plaintiff alleges that certain information concerning Harrison was deliberately not disclosed to Carter's attorneys. This information may have affected Harrison's credibility. (P21).

 On June 5, 1982, after a jury trial before Hon. John J. Leahy, plaintiff was convicted of Second Degree Murder for the death of Clarice Herndon. (P12). On September 13, 1982, Justice Leahy sentenced the plaintiff to twenty-five years to life imprisonment. (P12).

 After plaintiff was convicted, the Commissioner of the Peekskill Police Department, Walter Kirkland, conducted an independent investigation of the murder. (P25). In late 1982, after uncovering what the though was substantial evidence that the plaintiff was not involved in the crime, he met with defendants Ahearn and andron. (P25). Mr. Kirkland urged them to reopen the case, and made the information he had acquired available to them. (P25). They refused and undertook no further investigation. (P25).

 Finally, on January 25, 1984, after plaintiff had been incarcerated for twenty-eight months, Delissa Durham admitted under oath in Supreme Court, Queens County that she, not plaintiff, had murdered Ms. Herndon. (P13). She further testified that plaintiff had no involvement in the crime. (P13). On the basis of this testimony and an investigation by the Queens County District Attorney's office and the Legal Aid Society, Justice Leahy granted plaintiff's motion to set aside his conviction and vacated his sentence. (P13).

 Plaintiff alleges that the evidence concerning the fleeing males was exculpatory in nature. (P16). He further claims that he was entitled to production of such evidence prior to his trial. (P16). Moreover, plaintiff asserts that the evidence was deliberately and purposefully suppressed by defendants Harrison, Fredericks, Miele, Steele, Ahearn, Andron and other unknown agents and employees of the City of New York because it was not delivered in useable form to either the District Attorney or to plaintiff before or during the trial. (P16).

 Plaintiff also alleges that the statements of Judith Cooper, the neighbor, were exculpatory. The police, therefore, were also required to produce these statements either to plaintiff or to the district Attorney before or during trial and failed to do so. (P19).

 In addition, plaintiff claims that defendants City of New York and former Commissioner MaGuire failed to set forth rules and regulations concerning the proper handling of exculpatory evidence. (P23). They also allegedly failed to properly train and supervise the defendant officers to ensure that they followed the proper procedure of recording exculpatory evidence and delivering it to the District Attorney. (P22).

 Finally, plaintiff alleges that defendants' investigation of the murder was so inept that it constituted either a reckless disregard for or a deliberate indifference to plaintiff's mental and physical well-being and his right to be free from wrongful confinement, or both. (P24). As a result of the shoddy investigative work, plaintiff claims he suffered severe psychological, physical and personal damages, some of which may be permanent. (P26).

 Plaintiff has also brought two pendent state claims against defendants. He alleges that defendants' suppression of and failure to disclose exculpatory evidence and their inept investigation constituted a failure to use reasonable care in performing their official duties, which in turn resulted in plaintiff's wrongful conviction and imprisonment. (P30). He also claims that such activities constitute ...

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