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Mitchell v. Kugler

January 23, 2009


The opinion of the court was delivered by: John Gleeson, U.S.D.J.



JOHN GLEESON, United States District Judge

Barry Mitchell brings this pro se action under 42 U.S.C. § 1983 against Sergeant John Kugler, Sergeant Nelson Villafane, Police Officer James Lee, John Doe #1-5, District Attorney Richard A. Brown, and the City of New York. Mitchell has alleged violations of numerous provisions of the United States Constitution, including the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, and he has brought corresponding supplemental claims under New York law. Mitchell is seeking damages for false arrest, unlawful search and seizure, excessive force, and malicious prosecution. Defendants have moved for a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the motion is granted in part and denied in part. Specifically, it is denied with respect to Mitchell's claims of false arrest and malicious prosecution. As to those claims, I am converting the motion into a motion for summary judgment, and Mitchell shall have the opportunity to file a supplemental opposition to the converted motion, as discussed more fully below.


The following facts are drawn from the plaintiff's complaint, filed April 25, 2007, amended complaint, filed November 13, 2007,*fn1 and documents attached to the pleadings, and are assumed to be true for the purposes of this motion.

A. The November 8, 2002 Arrest and Charges

On November 8, 2002, at approximately 1:30 p.m., Mitchell was walking down Elmhurst Avenue in Queens County, New York, when he was approached and surrounded by four Spanish-speaking strangers. Mitchell asked them in English what the problem was but received no answer. Afraid for his safety, Mitchell attempted to free himself from the group but was grabbed from behind and thrown to the ground by one of the individuals. Mitchell told them that he did not do anything wrong.*fn2 After approximately five minutes of sitting on the ground, Mitchell was approached by defendants Kugler and John Doe #4, who had arrived to the scene in an unmarked patrol car. Kugler and John Doe #4 handcuffed and arrested Mitchell. They then put him in the unmarked patrol car and returned to the group that had detained him to speak with them. Approximately ten minutes later, Kugler and John Doe #3 moved Mitchell to a marked patrol car. When Mitchell inquired as to the reason for his arrest, John Doe #3 told him that "he would find out at the station house." Defendant Villafane then drove Mitchell to the precinct, where he was searched and locked in a holding cell.

Over the next twenty minutes, Villafane questioned Mitchell about his age, height and weight, fingerprinted him, and transferred him to a different cell before ultimately moving him to an interrogation room. John Doe #2 and Villafane then questioned Mitchell about a burglary. When Mitchell responded that he had nothing to say, John Doe #2 became angry and handcuffed Mitchell to a metal pipe against the wall and left the room with Villafane. In pain from the handcuffs, Mitchell yelled to the officers, who uncuffed him after approximately 25 minutes.

Some time later, Villafane and Kugler resumed questioning Mitchell. When asked why he was in the neighborhood in which he was arrested, Mitchell said that he was visiting a friend. Villafane and Kugler offered to help Mitchell if he would cooperate. Again, Mitchell told them that he had nothing to say but this time he also asked for a lawyer. Before leaving the room, Kugler told Mitchell that he knew he had been in the neighborhood the day of the crime, and that he could prove Mitchell was a liar.

Mitchell was returned to a holding cell and then photographed by Villafane for a photo array for an unrelated crime. When Mitchell asked again why he was under arrest, Villafane told him that he did not know. Mitchell was then approached by another officer, John Doe #5, who wanted to speak with him, but Mitchell refused. Fifteen minutes later, Mitchell was moved back to the interrogation room, where an oral swab to collect DNA was administered to him. After waiting another hour in a holding cell, Villafane told Mitchell that he would probably be charged with burglary. Sometime later that evening, Mitchell was taken to central booking, where he was fingerprinted, photographed and subjected to other arrest processing.

The next day, November 9, 2002, Mitchell was arraigned and charged with burglary in the second degree and harassment in the second degree. Mitchell pled not guilty and was remanded to Rikers Island.

The grand jury indicted Mitchell for two counts of burglary in the first degree*fn3 -- each pertaining to a different victim -- on December 10, 2002, to which Mitchell pled not guilty on January 6, 2003. The first victim, LD, had reported to the police on November 6, 2002 that at approximately 1:30 PM that day, a man standing behind her in an elevator at 40-050 Denman Street grabbed her neck with his left arm and covered her mouth with his right hand. The perpetrator directed her to get out on the third floor because they were "going to do something." When the elevator opened, LD started to scream and the perpetrator fled via a stairway. The second victim, MR, had reported that at approximately 4:15 PM on November 6, 2002, she was similarly attacked in an elevator at 99-004 57th Avenue, by a man who pushed her against the wall, told her that he had a gun, and directed her to get out on the third floor. As with LD, when the elevator door opened and MR started screaming, the perpetrator fled via the stairs.

During the grand jury proceedings, LD described the perpetrator as having "black dark skin, freckles," and as being "a little chubby." Mitchell's January 17, 2003 motion to dismiss and for a review of the grand jury minutes for insufficiency of the evidence before the grand jury was denied.

B. Mitchell's First Criminal Trial

Mitchell's trial commenced on June 2, 2003. LD first testified on direct examination that she did not see the perpetrator in the courtroom. In response to a follow-up question by the trial judge, she then said that Mitchell "look[ed] like" the person who accosted her, that Mitchell was "like that color, yes, he looks like him," and that "it seems to me that yes, it's him. His way of looking, his look." Trial Tr. 44-45. After a sidebar, the ADA was permitted to continue to question LD until she testified that Mitchell was her attacker by pointing to him in the courtroom. Trial Tr. 50. On cross-examination, defense counsel challenged the identification by repeatedly asking LD whether she had described her attacker to the police as being a 28 year-old "Hispanic white man." Trial Tr. 92-93. Mitchell himself is dark-skinned, and he was 44 years old at the time of trial.

At the conclusion of LD's testimony, the ADA produced a handwritten police complaint report setting forth LD's post-crime description of the perpetrator. The description in this new report differed significantly from the one set forth in the typed complaint report that was turned over to Mitchell before trial. Specifically, during a pretrial Wade hearing (see United States v. Wade, 388 U.S. 218 (1967)), the prosecutor had disclosed to Mitchell's counsel copies of a typed report that stated that LD had described the perpetrator as a 28-year-old Hispanic/white male, who was 5'11", 160 pounds, and wearing a grey jacket and blue jeans. The report that was disclosed for the first time at trial was the handwritten "worksheet" from which the previously-disclosed report was created (defense counsel described it at trial as the "scratch copy" of the typewritten report, see Trial Tr. 135). It contained more details of the description provided by LD, including the critical fact that the perpetrator had "dark skin" and also that he was wearing a hat. It was used to rehabilitate LD's testimony identifying Mitchell. See, e.g., Trial Tr. 347 (noting that handwritten report said LD described perpetrator as dark-skinned). After defense challenged ...

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