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Mahran v. Strozyk

United States District Court, Second Circuit

April 8, 2013

MAHMOUD MAHRAN, Plaintiff,
v.
DANIEL E. STROZYK, et al., Defendants.

REPORT AND RECOMMENDATION

JEREMIAH J. McCARTHY, Magistrate Judge.

Plaintiff Mahmoud Mahran seeks relief in this action pursuant to 42 U.S.C. §§1983 and state law in connection with his allegedly false arrest in June 2009. Complaint [1].[1] Before me is defendants' motion for summary judgment [50]. For the following reasons, I recommend that the motion be granted in part and denied in part.

BACKGROUND

On February 19, 2009, defendant Michael Ballow, a New York State Trooper, responded to a complaint call from a woman named Anna Cieri, who informed him that someone had opened a credit card account in her name and used it to make numerous purchases. Defendants' Statement of Undisputed Facts [52-1], §§7-9. Cieri provided him with a report of activity on the credit card, which falsely indicated that she resided at 1256 Brighton Road, Tonawanda, New York. Id., §§10-11; Strozyk Declaration [50-5], Ex. A, pp.00013, 0092-95. Internet records indicated that Jennifer Arnold resided at 1256 Brighton Road. Strozyk Declaration [50-5], Ex. A, p.00101.

Following his initial investigation, Ballow referred the investigation to defendant Daniel Strozyk, a New York State Police Investigator, who took a sworn statement from Cieri on March 5, 2009. Id., p.00006. Strozyk ran a computer search which revealed that there was an Elizabeth Arnold residing in Amherst (id., §15), and obtained video and photographic surveillance from some of the stores where the credit card had been used. Id., §14(d). Strozyk alleges that surveillance footage from several stores contained images of the same woman using the credit card (id., §16), and that photographs taken on February 14, 2009 at Kohl's in Amherst, New York show the woman using the plaintiff's credit card, and the man behind her subsequently using a gift card purchased with the illegally obtained credit card. Id., §§17-18, Ex. B.[2]

Believing that plaintiff was a potential victim, on June 9, 2009 Strozyk asked Ballow to contact plaintiff and have him come to the State Police station in Clarence, New York for an interview. Id . §19. Plaintiff arrived at the barracks at approximately 5:00 p.m. that day. Defendants' Statement of Undisputed Facts [52-1], §29. He was taken to a room and questioned with the door shut. Id., §§30-32. Plaintiff alleges that he was immediately subjected to a "rather vigorous interrogation", and was never treated as a possible victim. Plaintiff's Declaration [58-1], §6.

During the interview, plaintiff identified Elizabeth Arnold as his girlfriend. Defendants' Statement of Undisputed Facts [52-1], §43. Plaintiff also identified himself as the man depicted in the February 14, 2009 surveillance photograph from Kohl's. Id., §38; Plaintiff's Statement in Response [56], §38. However, plaintiff denies using any gift cards at Kohl's. Plaintiff's Declaration [58-1], §12, and denies telling Strozyk that he had ever used gift cards which had been purchased with a stolen credit card. Plaintiff's deposition [58-5], p. 58. The parties also dispute whether plaintiff was also shown a surveillance video depicting a man using the illegally obtained card at Barnes and Noble in Hamburg, New York on January 3, 2009, and whether plaintiff identified himself as the individual in that video. Defendants' Statement of Undisputed Facts [52-1], §§40-41; Plaintiff's Statement in Response [56], §§40-41.

Plaintiff claims that Strozyk threatened him with deportation, at which point he requested a lawyer. Plaintiff's Declaration [58-1], §14. Although Strozyk states that all questioning ceased once plaintiff requested a lawyer (Strozyk Declaration [50-5], §28), plaintiff states that the interrogation continued throughout the evening, and that he was handcuffed to a chair. Plaintiff's Declaration [58-1], §§15, 17.[3] Plaintiff was told that he was under arrest for possession of stolen property and other unnamed charges. Defendants' Statement of Undisputed Facts [52-1], §53.[4] All of these events occurred between 15 and 30 minutes of plaintiff's arrival at the police station. Id., §54.

Upon learning from plaintiff that his girlfriend shared the same last name as the individual who resided at the address used for the illegally obtained credit card, Strozyk had Elizabeth Arnold come to the barracks for an interview that same day. Id., §§55-56, 58. After she admitted her involvement with the illegally obtained credit card, she was Mirandized and later signed a consent to search her residence, which resulted in the discovery of gift cards purchased with the illegally obtained credit card and receipts. Strozyk Declaration [50-5], §§36-38.[5] Strozyk did not recall whether plaintiff arrested prior to Arnold's interview, but testified that her statements were among the facts used to support the charges against him. Strozyk deposition transcript [58-1], pp. 43-44, 46.

Strozyk testified that plaintiff was at the barracks "less than a half hour" before being placed under arrest. Strozyk deposition [58-1], pp. 46-47. Plaintiff alleges that after he was placed under arrest, his request to perform his daily prayers was denied, and that when he requested water, Strozyk gave him a cup containing only one millimeter of water. Id., §§62-65.

In the early morning hours on June 10, 2009 plaintiff was formally charged in two felony complaints with Criminal Possession of Stolen Property in the fourth degree, in violation of NY Penal Law §165.45[2], and with Forgery in the second degree, in violation of NY Penal Law §170.10[1], both charges arising from the use of the illegally obtained credit card at Barnes & Noble on January 3, 2009. Strozyk Declaration [50-5], Ex. A, ##00014-00015. He was issued an appearance ticket and released at approximately 3:30 a.m. Defendants' Statement of Undisputed Facts [52-1], §§72-74. The charges were eventually dismissed as a result of an Adjournment in Contemplation of Dismissal. Id., §77.

Although plaintiff is now represented by counsel, [6] his pro se Complaint [1], which has not been amended, alleges "false arrest, intentional infliction of emotional distress, libel, slander, violation of plaintiff's right to due process under U.S. and N.Y.S. constitution, [and] violation of plaintiff's civil rights in violation of 42 U.S.C. sections 1981 and 1983". Id., §13. However, plaintiff subsequently discontinued his claims for libel, slander, violation of 42 U.S.C. §1981, and all claims against New York State (sued as the New York State Police). Stipulation of Partial Discontinuance [59].

ANALYSIS

A. Summary Judgment ...


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