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Deskovic v. City of Peekskill

September 22, 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, 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.



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

OPINION AND ORDER

In this civil rights action, Plaintiff Jeffrey Deskovic ("Plaintiff") brings 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 Plaintiff for a rape and murder that he did not commit. Plaintiff 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, inter alia, malicious prosecution and intentional infliction of emotional distress. Of particular relevance to the instant motion before the Court, Plaintiff alleges claims against Defendant Alan Tweed ("Tweed"), a corrections officer for the New York Department of Correctional Services ("DOCS"), in his individual capacity under Section 1983 for alleged violations of Plaintiff's right to be free from unreasonable searches and wanton infliction of pain pursuant to the Fourth, Eighth, and Fourteenth Amendments.

Tweed moves for severance of Plaintiff's claims as to him, contending that the claims against him are improperly joined with Plaintiff's claims against the other Defendants.*fn1 Tweed also argues that if the Court severs Plaintiff's claims against him, Plaintiff's action as to him should be dismissed for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). For the reasons discussed below, Tweed's motion is granted in part and denied in part.

I. Background

A. Plaintiff's Arrest, Prosecution, and Incarceration

The following facts, taken from Plaintiff's Second Amended Complaint, are assumed to be true for purposes of this motion. 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. ("SAC") ¶ 37.) A.C. had been raped and murdered. (Id.) In the early stages of the investigation into A.C.'s rape and murder, certain officers of the Peekskill Police Department ("PPD Defendants") turned their suspicions on Plaintiff, who was then a sixteen-year-old classmate of A.C.'s at Peekskill High School. (Id. ¶¶ 60-66.) Over the course of numerous interviews and interrogations of Plaintiff between November 1989 and January 1990, PPD Defendants manipulated and fabricated evidence to implicate Plaintiff in A.C.'s rape and murder. (Id. ¶¶ 65-94.) On January 25, 1990, PPD Defendants, together with Defendant Daniel Stephens of the Putnam County Sheriff's Department, allegedly subjected Plaintiff to harsh interrogation tactics to obtain Plaintiff's confession. (Id. ¶¶ 95-119.) Over the course of the eight-hour interrogation, these Defendants allegedly denied Plaintiff food, threatened him with physical injury, and told him that he could go home if he confessed. (Id. ¶¶ 100-14.) In the course of the interrogation, Plaintiff "provided information that drew upon details concerning the crime that had been provided to him by PPD

[D]efendants -- many of which were inaccurate." (Id. ¶ 113.) Plaintiff was then placed under arrest. (Id. ¶ 115.) He was indicted on February 27, 1990 for murder in the second degree, rape in the first degree, and possession of a deadly weapon in the fourth degree. (Id. ¶ 125.)

Days after Plaintiff's indictment, DNA tests run on semen found in the victim's body excluded Plaintiff as the source of the semen. (Id. ¶ 127.) Analysis of hairs found on the victim's body also showed that at least one hair found on the victim was consistent with a "negroid-type" hair, typically shed by an African American individual. (Id. ¶ 128.)

Plaintiff was tried before a Westchester County Jury by George Bolen ("Bolen"), a prosecutor with the Westchester County District Attorney's Office and a named Defendant in this case.*fn2 (Id. ¶ 137.) At trial, Bolen allegedly offered the false testimony of Defendant Louis Roh ("Roh"), the Deputy Medical Examiner, to support the prosecution's theory that the victim had engaged in consensual sex before her death with a high school student named Freddy Claxton ("Claxton"), and that the semen came from Claxton. (Id. ¶¶ 137-43.) Bolen also argued that the "negroid-type" hair found on the victim's body "had been shed by Roh, his African American assistant, and[/or]... Claxton." (Id. ¶ 140.) Bolen offered at trial evidence that PPD Defendants had manipulated and fabricated, including Plaintiff's false confession. (Id. ¶ 143.) PPD Defendants allegedly concealed from prosecutors and from the jury material, exculpatory, and impeachment evidence that supported Plaintiff's innocence. (Id. ¶ 144.)

On December 7, 1990, Plaintiff was convicted by a Westchester County jury of murder, rape, and possession of a weapon. (Id. ¶ 157.) He was sentenced to fifteen years to life imprisonment. (Id.) For the next sixteen years, Plaintiff fought to vindicate his innocence through the state and federal habeas processes, to no avail. (Id. ¶¶ 157-60.)

B. Alleged Physical and Sexual Assault by Defendant Tweed

Plaintiff served all or part of his incarceration at Elmira Correctional Facility ("Elmira"), located in Chemung County, New York.*fn3 (Id. ¶ 161.) On multiple occasions on or subsequent to September 18, 2004, Tweed, "in the course of conducting routine searches of [Plaintiff's] person outside the confines of his prison cell, [is alleged to have] repeatedly, routinely, and deliberately conducted pat-down searches of [Plaintiff] in a manner that was contrary to prison policy for the purpose of subjecting [Plaintiff] to unnecessary, invasive, assaultive, and violative physical contact, including contact of a sexual nature." (Id.) Specifically, Tweed allegedly would "violat[e] policies and procedures for pat-down searches that required prisoners to remove items from their own pockets prior to pat-down, and instead remov[e] items from [Plaintiff's] pockets himself, for the purpose of groping [Plaintiff's] sexual organs and otherwise assaulting and harassing [Plaintiff]." (Id. ¶ 162.)

C. Plaintiff's Exoneration

In 2006, the Westchester County District Attorney consented to conduct DNA tests on the semen found in the victim's body and to compare the results of those tests against the available DNA databases of convicted offenders. (Id. ¶ 164.) In September 2006, the DNA obtained from the semen was matched to Steven Cunningham ("Cunningham"), who was then incarcerated in New York for the 1993 murder of a Peekskill school teacher. (Id.) In March 2007, Cunningham pled guilty to the rape and murder of A.C., and on May 2, 2007, he was sentenced to an additional twenty years in prison for the crime. (Id.)

On September 20, 2006, Deskovic's conviction was vacated, and he was released from prison upon a motion pursuant to New York Criminal Procedure Law § 440.10, submitted jointly by the Westchester County District Attorney's Office and Deskovic's counsel. (Id. ¶ 167.) Thereafter, on November 2, 2006, on a motion by the Westchester County District Attorney, the indictment against Deskovic was dismissed on the ground of actual innocence. (Id. ¶ 168.)

II. Discussion

A. Severance

Tweed argues that Plaintiff's claims against him were improperly joined with the remaining claims in this action in violation of Federal Rule of Civil Procedure 20 ("Rule 20"), and moves for severance of the claims against him under Federal Rule of Civil Procedure 21 ("Rule 21"). (Def. Tweed's Mem. in Supp. of Mot. to Dismiss ("Def.'s ...


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