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Kendall Jitta v. P.O. Mark Polstein

September 13, 2011

KENDALL JITTA, PLAINTIFF,
v.
P.O. MARK POLSTEIN, P.O. ROWLEY AND COUNTY OF NASSAU, DEFENDANTS.



The opinion of the court was delivered by: Lindsay, Magistrate Judge:

MEMORANDUM AND ORDER

Before the court is the defendants' motion for summary judgment. For the reasons set forth herein, the motion is granted. The court declines to exercise pendent jurisdiction over any remaining state law claims.

BACKGROUND

The plaintiff, Kendell Jitta ("Jitta"), commenced this civil rights action on July 6, 2009, seeking damages based on the plaintiff's arrest for criminal trespass at the apartment of his former girlfriend, Shala Mohammed ("Mohammed") in July 2008. On March 29, 2010, the plaintiff filed an Amended Complaint, alleging (1) false arrest/false imprisonment, (2) malicious prosecution, (3) negligence by all defendants, including a Monell claim against the defendant Nassau County, (4) a violation of the Fourth Amendment by virtue of an improper search, and (5) due process and equal protection violations of the Fourteenth Amendment and New York State law. On June 4, 2010, the parties consented to the undersigned's jurisdiction. On January 20, 2011, the defendants filed the instant motion for summary judgment.

Jitta was romantically involved with Mohammed for a number of years.*fn1 Def. 56.1 Stmt. ¶¶9-15. In 2008, Mohammed was living at 98 Sewanee Avenue, Elmont. Id. at ¶13. Jitta had lived at 98 Sewanee Ave. with Mohammed for some period of time, but was told to move out in or about March 2008 because Mohammed believed he was seeing another woman.*fn2 Id. at ¶15. According to Mohammed, when Jitta moved out, he took all of his belongings with him and gave her back his key to the apartment. See Mohammed Tr. 37:12-23; Defs. 56.1 Stmt. ¶16. Jitta claims he retained a key and used it to enter the apartment on several occasions after he moved out. Pl. 56.1 Stmt. ¶3. Jitta states he left behind some tools and clothing. Def. 56.1 Stmt. ¶17; Pl. 56.1 Stmt. ¶4.

On July 10, 2008, Mohammed awoke to find Jitta in her apartment without her permission and without knowing how he had gotten in. Def. 56.1 Stmt. ¶18-19. Jitta claims that Mohammed knew he was coming but had expected him earlier, and that he let himself in with his key. Pl. 56.1 Stmt. ¶¶5-6. Mohammed says that she twice told Jitta to leave the apartment, but he refused. An argument ensued and Jitta struck her on the left ear breaking her eardrum before he ran out the door. Def. 56.1 Stmt. ¶¶ 20-21, Pl. 56.1 Stmt ¶7. After Jitta left, Mohammed called 911 and reported that Jitta had hit her. Def. 56.1 Stmt. ¶ 22. In response to her 911 call, a police car and ambulance were dispatched to Mohammed's apartment. Mohammed later refused medical attention. Pl. 56.1 Stmt. ¶ 8.

Jitta acknowledges that Mohammed was emotional and jealous during their encounter in the apartment, but that he left without any physical confrontation, and there is no evidence of a broken eardrum. Pl. 56.1 Stmt. ¶ 7.

A. Officer Rowley

The defendant, Police Officer Alexander Rowley ("Rowley"), responded to Mohammed's apartment after receiving a report of a domestic incident at 98 Sewanee Avenue that evening. Def. 56.1 Stmt. ¶24. He arrived at the scene one minute after receiving the radio transmission. Def. 56.1 Stmt. ¶ 25. Mohammed let Rowley into the apartment, where he interviewed her. Def. 56.1 Stmt. ¶ 26. Mohammed told Rowley that Jitta had entered her apartment without permission, refused to leave, and punched her in the face. Def. 56.1 Stmt. ¶ 27. Rowley entered this information in a Domestic Incident Report. Id.

Jitta refers to Rowley's deposition testimony, in which Rowley stated that when he responded to the incident, Mohammed was crying and it was difficult to put her story together, but he eventually pieced together that she had woken in the night, found Jitta in her apartment, had a verbal dispute about their getting back together, asked him to leave, and that he struck her before he left the apartment. Pl. 56.1 Stmt.¶9. Jitta notes that Mohammed later specifically denied that she told police officers that Jitta had "punched her." Pl. 56.1 Stmt. ¶ 10. In fact, Mohammed testified at her deposition that she had never used the word "punch," but instead said "hit." Defs. Ex. A, Mohammed Tr. 62:7-21; 72:2-5.

Despite having called the police, Mohammed asked the police to take no action against Jitta and refused to sign the Supporting Deposition in the Domestic Incident Report. Mohammed explained to Officer Rowley that she wanted to avoid reprisal, specifically citing concern for her brother and noting that Jitta knew people in Trinidad who could "do things to her."*fn3 Def. 56.1 Stmt. ¶28. At her deposition, Mohammed testified that she told the police she did not want to press charges, but she did not know why. Defs. Ex. A, Mohammed Tr. 47:18-21. Jitta acknowledged telling the police that she did not want repercussions and that signing the supporting deposition would have "led [Jitta] to be vindictive," and that she did not want to deal with that. She denied telling the police that Jitta "had people in Trinidad" who would harm her if she cooperated. Instead, she said that she told Rowley that Jitta "knows people everywhere," and that she didn't want things "coming back" to her or her family or her younger brother. Defs. Ex. A, Mohammed Tr. 84:3 -85:3.

In the face of Mohammed's refusal to sign, Rowley, acting on behalf of the State of New York, signed the Supporting Deposition in order to file the Report and process Jitta's arrest. Def. 56.1 Stmt. ¶29*fn4 . Rowley testified at his deposition that he felt obligated to proceed with the complaint because "sometimes the victim is so afraid of the assaulter that they don't want to sign." Defs. Ex. C, Rowley Tr. at 37:18. Rowley further testified that it is his understanding of the rules that once a person calls the police for domestic harassment and says that her boyfriend or husband hit her, it is a "must-arrest situation", however verbal arguments are not "must-arrest" situation. Defs. Ex. C, Rowley Tr. at 37:18-39:9; Pl. 56.1 Stmt. ¶13. Mohammed also testified that the officers at the scene told her that the County had to press charges because a call had been made to 911. Pl. 56.1 Stmt. ¶14 (citing to Def. Ex. A, Mohammed Tr. 48:8-17).

Rowley then prepared a Misdemeanor Complaint-Domestic Violence form, entitled "DV-85," charging Jitta with criminal trespass in the second degree. Defs. 56.1 Stmt. ¶30. Rowley never met Jitta and was not involved in the physical processing of his arrest. Defs. 56.1 Stmt. ¶¶ 31-32. Nor did Rowley conduct a strip or body cavity search of Jitta. Defs. 56.1 Stmt. ¶¶ 33.

B. Detective Rogan

Non-party detective Edward Rogan also responded to the Sewanee Avenue address at about 1:30 a.m., the morning of July 11, 2008. Defs. 56.1 Stmt. ¶ 35. When Rogan arrived, he spoke to Rowley, who repeated Mohammed's allegations of finding Jitta in the apartment, telling him to leave, and the "ensuing scuffle." Defs. 56.1 Stmt. ¶ 36. After speaking with Rowley, Rogan spoke to Mohammed for about half an hour. Defs. 56.1 Stmt. ¶ 37. Mohammed told Rogan that she woke up and found Jitta in her bathroom, and he had no right to be there. Mohammed also told Rogan that they got into a pushing match and Jitta left. Id. Defs. 56.1 Stmt. ¶ 37. Rogan Tr. 11:9-24. The plaintiff adds that Rogan also testified that Mohammed had told him that she had last seen Jitta two weeks earlier, she had been away in Virginia, and she had sent Jitta a text telling him when she would return. Pls. 56.1 Stmt. ¶ 15 (citing to Defs. Ex. G, Rogan Tr. 11:8-12:5; 21:21-22:14). Rogan noted that Mohammed did not appear to have sustained any significant injury. Id. Rogan, confirmed that Mohammed refused to sign the forms because she did not want Jitta arrested. Pls. 56.1 Stmt. ¶ 16. Rogan made handwritten and typed notes of his interview of Mohammed. Defs. 56.1 Stmt. ¶ 38.

Rogan classified the offense by Jitta to be criminal trespass, in that he entered the apartment without permission and stayed there. Defs. 56.1 Stmt. ¶ 39; Pls. 56.1 Stmt. ¶ 39. Jitta notes however that Rogan testified at his deposition that Mohammed had told him that the door to the apartment did not lock properly and he thought that someone could open the door and walk in. Pls. 56.1 Stmt. ¶ 18 (citing to Rogan's Dep. Tr., Defs. Ex. G, 12:21-20:10. Jitta also notes that Rogan saw no sign of forced entry. Id. Mohammed denied ever telling the police that the door did not close properly and said that the door was not open and the only way to gain entry would be to use a key or jimmy the lock. Pl. 56.1 Stmt. ¶ 19 (citing Mohammed Dep. Tr., Defs. Ex. A, 88:11-90:25.

The next morning, the case was assigned to defendant Detective Polstein and Rogan played no further part in the investigation. Defs. 56.1 Stmt. ¶ 40.

C. Detective Polstein

The investigation was assigned to the defendant Mark Polstein ("Polstein") on the morning of July 11, 2008. Defs. 56.1 Stmt. ¶ 42. Detective Rogan turned over his notes to Polstein who reviewed the various domestic incident forms that had been prepared. Defs. 56.1 Stmt. ¶¶ 42-43. Ironically, Polstein knew Jitta having been his ...


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