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Deskovic v. City of Peekskill

August 13, 2009

JEFFREY DESKOVIC, PLAINTIFF,
v.
CITY OF PEEKSKILL, PUTNAM COUNTY, WESTCHESTER COUNTY, DAVID LEVINE, THOMAS MCINTYRE, WALTER BROVARSKI, EUGENE TUMOLO, JOHN AND JANE DOE SUPERVISORS, DANIEL STEPHENS, LOUIS ROH, MILLARD HYLAND, GEORGE BOLEN, PETER INSERO, LEGAL AID SOCIETY OF WESTCHESTER COUNTY, AND ALAN TWEED, DEFENDANTS.
CITY OF PEEKSKILL, DAVID LEVINE, THOMAS MCINTYRE, WALTER BROVARSKI, THIRD-PARTY PLAINTIFFS,
v.
STEVEN ORLIKOFF, MARCIA G. SHEIN, P.C., MARCIA G. SHEIN, PETER INSERO, LEGAL AID SOCIETY OF WESTCHESTER COUNTY, THIRD-PARTY DEFENDANTS.
LINDA MCGARR, PLAINTIFF,
v.
CITY OF PEEKSKILL, WESTCHESTER COUNTY, DAVID LEVINE, THOMAS MCINTYRE, WALTER BROVARSKI, EUGENE TUMOLO, JOHN AND JANE DOE SUPERVISORS, DANIEL STEPHENS, GEORGE BOLEN, LOUIS ROH, AND MILLARD HYLAND, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

In these two civil rights actions, Plaintiffs Jeffrey Deskovic ("Deskovic") and his mother, Linda McGarr ("McGarr") (together, "Plaintiffs"), bring claims against, inter alia, Defendants City of Peekskill, County of Westchester, and a number of police officers and other officials, in connection with the arrest, conviction, and incarceration of Deskovic for a rape and murder that he did not commit.*fn1 Deskovic filed his Amended Complaint on June 13, 2008 and his Second Amended Complaint on May 13, 2009, alleging claims under 42 U.S.C. § 1983 ("Section 1983") for numerous violations of his constitutional rights and under state law for malicious prosecution and intentional infliction of emotional distress. McGarr filed her Amended Complaint on July 7, 2008, alleging Section 1983 claims for violation of her constitutional right to familial association.*fn2 Of particular relevance to the instant matter before the Court, Deskovic alleges Section 1983 claims against Defendant George Bolen ("Bolen"), a former assistant district attorney for the County of Westchester, in his individual capacity, for malicious prosecution and unlawful prolonged detention; McGarr alleges Section 1983 claims against Bolen for violation of her constitutional right to familial association.

Bolen moves to dismiss Plaintiffs' claims as to him pursuant to Federal Rule of Civil Procedure 12(b)(6), claiming that his alleged conduct is protected by absolute immunity.*fn3

Because Bolen has submitted virtually identical memoranda in support of his motions to dismiss both Plaintiffs' claims, and because Plaintiffs rely on identical legal arguments in opposing Bolen's motions, the Court considers both motions together.*fn4

For the reasons discussed below, Bolen's motions to dismiss the claims against him in both actions are granted.*fn5

I. Background

The Court assumes the allegations in Plaintiffs' Complaints to be true for the purposes of deciding these motions and construes them in the light most favorable to Plaintiffs.

On November 17, 1989, the body of a fifteen-year-old girl (hereinafter "A.C." or the "victim"), was found in a heavily wooded area of Hillcrest Park, a park located in Peekskill, New York. (Second Am. Compl. of Jeffrey Deskovic ("Deskovic SAC") ¶ 37; Am. Compl. of Linda McGarr ("McGarr AC") ¶ 27.) A.C. had been missing since November 15, 1989. (Deskovic SAC ¶ 35; McGarr AC ¶ 25.) When A.C.'s body was found by members of the Peekskill Police Department ("PPD"), she was covered with leaves, and she was naked from the waist down. (Deskovic SAC ¶ 37; McGarr AC ¶ 27.) A.C. had been raped, and had died from asphyxiation and blunt trauma to the head. (Deskovic SAC ¶ 37; McGarr AC ¶ 27.)

PPD personnel canvassed the area where A.C.'s body was found, collecting and vouchering the following evidence: a torn note found underneath A.C.'s body, a white bra left along a dirt path leading to A.C.'s body, and a 35-millimeter camera left on a paved path in the park. (Deskovic SAC ¶ 40; McGarr AC ¶ 30.) The note found underneath A.C.'s body was written in her handwriting, and included the name "Freddy." (Deskovic SAC ¶ 42; McGarr AC ¶ 32.) After the evidence at the crime scene was collected, A.C.'s body was taken from the crime scene and examined by Westchester County Deputy Medical Examiner Dr. Louis Roh ("Roh"), a Defendant in this case, and his assistant. (Deskovic SAC ¶ 47; McGarr AC ¶ 37.) During Roh's examination of A.C.'s body, he found loose hairs on A.C.'s right breast, right leg, left arm, and in A.C.'s pubic region, which he submitted to the Westchester County Department of Laboratories and Research ("Westchester County Lab") for analysis. (Deskovic SAC ¶ 48; McGarr AC ¶ 38.) Roh also prepared oral, rectal, and vaginal swabs and submitted them along with A.C.'s bra, jeans, and underwear for serological analysis by the Westchester County Lab. (Deskovic SAC ¶ 48; McGarr AC ¶ 38.)

Based upon the note found under A.C.'s body, PPD officers developed a theory that "A.C. had been in a romantic relationship with . . . Peekskill High School student . . . Freddy Claxton [('Claxton')], and that her rape and murder was connected to that relationship." (Deskovic SAC ¶ 42; McGarr AC ¶ 32.) PPD officers pursued this theory by questioning Claxton in the days after A.C.'s body was found, but Claxton repeatedly stated that "he knew A.C. but never spoke with her." (Deskovic SAC ¶ 53; McGarr AC ¶ 43.) Other Peekskill High School students also confirmed to PPD officers that "[Claxton] and A.C. had not had any romantic relationship," and that "A.C. had never been involved in any relationship -- let alone a sexual relationship -- prior to her death." (Deskovic SAC ¶¶ 57-58; McGarr AC ¶¶ 46-47.) It is unclear from Plaintiffs' allegations whether Bolen was aware of the PPD officers' theory regarding Claxton's relationship with A.C. during this stage in the investigation. Plaintiffs do allege, however, that Bolen was never made aware that Claxton or other Peekskill High School students denied the existence of a relationship between A.C. and Claxton. (Deskovic SAC ¶ 58; McGarr AC ¶ 47.)

At the time of A.C.'s death, Deskovic was a sixteen-year-old Peekskill High School sophomore who struggled socially, academically, and emotionally. (Deskovic SAC ¶¶ 60-61; McGarr AC ¶¶ 49-50.) From a young age, Deskovic "received emotional and psychological counseling and treatment . . . . for a variety of psychological symptoms, including anxiety, depression, and, for a time, complaints of hearing voices." (Deskovic SAC ¶ 62; McGarr AC ¶ 51.) Deskovic had been acquainted with A.C. as a classmate at Peekskill High School, and he was "deeply affected by A.C.'s death." (Deskovic SAC ¶¶ 60, 64; McGarr AC ¶¶ 49, 53.) He "visited the crime scene shortly after A.C.'s body was found -- following a map that had been published in the local newspaper, as well as other public descriptions of the area, which he was generally familiar with from prior visits to Hillcrest Park." (Deskovic SAC ¶ 64; McGarr AC ¶ 53.) PPD officers first questioned Deskovic after they received reports that "he had been extremely emotional at A.C.'s wakes and funeral, and appeared to be taking an unusual interest in A.C.'s death." (Deskovic SAC ¶ 65; McGarr AC ¶ 54.) Once PPD officers began investigating Deskovic, they immediately learned of his emotional, academic, social, and psychological difficulties, as well as the fact that he had a troubled family life. (Deskovic SAC ¶ 66; McGarr AC ¶ 55.) In fact, Deskovic's "known difficulties in these regards were . . . significant factors in causing the PPD [officers] to view [him] as a suspect, and to initiate questioning of [him] in connection with the crime." (Deskovic SAC ¶ 66; McGarr AC ¶ 55.)

On December 12, 1989, PPD officers approached Deskovic as he walked to school and asked him "to accompany them to the PPD stationhouse to speak with them about A.C." (Deskovic SAC ¶¶ 68, 71; McGarr AC ¶¶ 59, 62.) Bolen was notified that Deskovic was being questioned. (Deskovic SAC ¶ 71; McGarr AC ¶ 62.) Deskovic was alone during the December 12, 1989 interrogation; his mother, McGarr, was not present, and he did not yet have counsel. (Deskovic SAC ¶ 72; McGarr AC ¶¶ 56, 63.) In the interrogation, Deskovic revealed to the officers that "he had visited the crime scene within twenty-four hours of A.C.'s body being found, and that he had learned certain facts about the crime from the newspaper and other public sources." (Deskovic SAC ¶ 72; McGarr AC ¶ 63.) PPD officers responded by accusing Deskovic of the rape and murder of A.C., showing Deskovic "one or more photographs of the deceased A.C. and of the crime scenes," and "shar[ing] with [him] details of the crime and the investigation that had not been made public," including their theory that Claxton and A.C. had been romantically involved. (Deskovic SAC ¶¶ 73-74; McGarr AC ¶¶ 64-65.) Deskovic denied involvement in A.C.'s rape and murder. (Deskovic SAC ¶ 73; McGarr AC ¶ 64.)

Following the interrogation, Deskovic informed one of his teachers at Peekskill High School that he had been questioned by PPD officers. (Deskovic SAC ¶ 79; McGarr AC ¶ 70.) The school convened a meeting that included McGarr, Deskovic, one of Deskovic's teachers, several school administrators, and the high school principal. (Deskovic SAC ¶ 79; McGarr AC ¶ 70.) McGarr expressed to those at the meeting that she would retain counsel for Deskovic, and she explained that she did not want Deskovic to speak with PPD officers again. (Deskovic SAC ¶ 81; McGarr AC ¶ 72.) One or more of the Peekskill High School officials present at the meeting subsequently informed PPD officers that McGarr did not want PPD officers interrogating Deskovic and that she would be retaining counsel. (Deskovic SAC ¶ 82; McGarr AC ¶ 73.) On or shortly after December 13, 1989, Deskovic retained attorney Lou Ecker ("Ecker") as counsel. (Deskovic SAC ¶ 83; McGarr AC ¶ 74.) Within days of December 13, 1989, Ecker contacted the PPD to inform them that he would be representing Deskovic, and that Deskovic should not be questioned again outside of the presence of counsel. (Deskovic SAC ¶ 84; McGarr AC ¶ 75.) Subsequently, Ecker ceased representing Deskovic, referring him to the Legal Aid Society of Westchester County ("Legal Aid"). (Deskovic SAC ¶ 85; McGarr AC ¶ 76.) Deskovic was not assigned counsel by Legal Aid, however, until January 25, 1990, the date of his arrest. (Deskovic SAC ¶ 116.)

When PPD officers next contacted Deskovic, he recited Ecker's instructions that he should not speak to PPD officers without counsel present. (Deskovic SAC ¶ 85; McGarr AC ¶ 76.) By this time, Ecker had ceased representing Deskovic, but Deskovic was apparently confused about the status of his representation. (Deskovic SAC ¶ 85; McGarr AC ¶ 76.) Despite PPD officers' awareness of Deskovic's confusion regarding the status of his representation, PPD Officer David Levine, a Defendant in these actions, coerced Deskovic into waiving his right to counsel, and thereafter PPD officers interrogated Deskovic on numerous other occasions, also outside the presence of McGarr or counsel. (Deskovic SAC ¶¶ 84-87; McGarr AC ¶¶ 75-78.) During these interrogations, PPD officers provided Deskovic with "numerous non-public details and investigative theories concerning A.C.'s death," and they "encouraged and coerced [Deskovic] to incorporate those details into his own statements concerning the crime." (Deskovic SAC ¶ 75; McGarr AC ¶ 66.) Later, "[t]he PPD [officers] . . . falsely represented, in police reports, [in] conversations with prosecutors before trial, [at] pretrial hearings, and at trial that these public facts were actually the product of [Deskovic's] independent knowledge about the crime." (Deskovic SAC ¶ 76; McGarr AC ¶ 67.) Details that PPD officers falsely represented that Deskovic learned through independent knowledge of the crime included the following:

(1) that a note referring to "Freddy" was discovered under A.C.'s body;

(2) that a ripped bra was found away from A.C.'s body;

(3) that A.C.'s body was covered in leaves;

(4) that the perpetrator had asphyxiated A.C. by covering his ...


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