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Mitchell v. Kugler

August 12, 2009


The opinion of the court was delivered by: 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's complaint alleges violations of numerous provisions of the United States Constitution, including the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as corresponding supplemental claims under New York law. His complaint seeks damages for false arrest, unlawful search and seizure, excessive force, and malicious prosecution.

On January 23, 2009, I granted defendants' motion for judgment on the pleadings with respect to the unlawful search and seizure, excessive force and supplemental state law claims. However, with respect to Mitchell's claims of false arrest and malicious prosecution, I found it appropriate to convert the motion into a motion for summary judgment and to allow Mitchell an opportunity to file a supplemental opposition brief.

For the reasons stated below, the defendants' converted motion for summary judgment on the false arrest and malicious prosecution claims is granted.


I assume familiarity with the facts set forth in my January 23, 2009 opinion, Mitchell v. Kugler, No. 07-CV-1801, 2009 WL 160798 (E.D.N.Y. January 23, 2009) ("Mitchell I") and recite only the relevant details here.

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, surrounded and detained by four Spanish-speaking strangers. One of Mitchell's victims, LD, testified before the grand jury that she had been walking down the street when she identified Mitchell to her friends as the man who had tried to rape her two days earlier. Grand Jury Minutes from Dec. 10, 2002 ("Grand Jury Minutes"), at 11-12. The friends called 9-1-1 and detained Mitchell until the police arrived on the scene, when LD herself told the police that Mitchell had tried to rape her. Id. Kugler and John Doe #4, who had arrived at the scene in an unmarked patrol car, 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, Mitchell was moved to a marked patrol car and then transported to the precinct, where he was searched and locked in a holding cell.

On December 10, 2002, the grand jury indicted Mitchell for two counts of burglary in the first degree,*fn1 each pertaining to a different victim. 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. During the grand jury proceedings, LD described the perpetrator as having "black dark skin, freckles," and as being "a little chubby." Grand Jury Minutes, at 9. As mentioned above, two days after the incident, LD told the defendants that Mitchell was the one who had tried to rape her.

The second victim, MR, had reported that at approximately 4:15 PM on November 6, 2002, she was subjected to a similar attack to the one LD had been subjected to earlier that day. Specifically, MR said that while she was in an elevator at 99-004 57th Avenue, a man 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.

B. Mitchell's Trials

Mitchell's first trial commenced on June 2, 2003. The jury found him guilty of two counts of burglary in the first degree. On August 1, 2003, Mitchell was sentenced to 25 years to life. Mitchell successfully appealed and was ordered a new trial. People v. Mitchell, 789 N.Y.S.2d 185 (2d Dep't 2005). In Mitchell's second trial, which began on December 6, 2005, the trial judge did not permit LD to testify.*fn2 On January 31, 2006, Mitchell was found guilty of burglary in the first degree in connection with the assault of MR, and sentenced as a persistent violent felony offender to 25 years to life in prison. The Appellate Division, Second Department affirmed the conviction on January 29, 2008. People v. Mitchell, 849 N.Y.S.2d 445, 445 (2d Dep't 2008). On May 12, 2008, the New York Court of Appeals denied Mitchell leave to appeal. People v. Mitchell, 890 N.E.2d 256 (2008).

C. The Instant Action

On April 25, 2007, Mitchell filed his pro se complaint, a request to proceed in forma pauperis and a motion to appoint counsel. On May 4, 2007, I granted his request for in forma pauperis status and denied without prejudice his motion to appoint counsel because Mitchell had not demonstrated "likely merit," as required under Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 174 (2d Cir. 1989). On August 3, 2007, I granted the defendants' motion to stay the action until the resolution of ...

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