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Fleming v. Det. Wendell Stradford #3420

United States District Court, S.D. New York

February 22, 2018




         Plaintiff Robert Fleming brought this civil rights action in April 2010, seeking redress against the City of New York, the New York City Police Department (“NYPD”), and several NYPD officers for a variety of constitutional violations. By the time of trial in January 2017, his claims had been reduced to a single claim for excessive force at the hands of two NYPD detectives during an interview on October 23, 2008. The matter was tried to a jury, and the jury returned a verdict in favor of Defendants.

         Plaintiff has raised a host of post-trial claims for judgment in his favor as a matter of law or for a new trial. Several of these claims are predicated on fundamental errors of fact, while others are predicated on misconstructions of the relevant law. For the reasons set forth in the remainder of this Opinion, this Court sees no basis to disturb the jury's verdict, and will enter judgment in favor of Defendants.


         A. Factual Background

         In October 2008, Plaintiff was a detainee on drug possession charges at the George R. Vierno Center (“GRVC”) on Rikers Island. On October 23, 2008, two detectives with the NYPD Cold Case Squad, Defendants Wendell Stradford and Stefano (Steve) Braccini, visited Plaintiff at GRVC in order to interview him about the 1988 rape and murder of Plaintiff's former girlfriend and her nine-year-old daughter. What happened during that interview is a matter of considerable dispute: Plaintiff claims that one of the Defendants beat him severely, causing lasting damage to his face, neck, and teeth. Defendants claim that they had no physical contact with Plaintiff for various reasons, including the prison facility's use of a partition and a locked door between Plaintiff and Defendants in the room where the interview was conducted.

         Plaintiff's criminal prosecution is secondary to the issues in the instant lawsuit and is summarized here briefly for context. Plaintiff was indicted in January 2009 on two counts of murder in the second degree in New York State Supreme Court, Bronx County. He was convicted after a jury trial and sentenced to consecutive terms of 25 years' to life imprisonment. His conviction was upheld in 2016 by the Appellate Division, First Department, see People v. Fleming, 35 N.Y.S.3d 326 (1st Dep't 2016), and the Court of Appeals denied him leave to appeal later that same year, see People v. Fleming, 28 N.Y.3d 1027 (2016). See also People v. Fleming, 28 N.Y.3d 1124 (2016) (denying motion for reconsideration).

         During the pendency of his prosecution, Plaintiff filed a petition for habeas corpus relief in this District; the petition was dismissed in 2016 for Plaintiff's failure to exhaust his claims in state court. See Fleming v. Warden of Auburn Corr. Facility, No. 14 Civ. 5284 (PGG) (JLC), 2015 WL 7769204 (S.D.N.Y. Dec. 2, 2015) (report and recommendation), report and recommendation adopted, 2016 WL 3387300 (S.D.N.Y. June 15, 2016), appeal dismissed (Sept. 22, 2016). A second petition was filed in November 2017; it remains pending. See Fleming v. Noeth, No. 17 Civ. 9104 (LGS) (filed November 20, 2017).

         B. Procedural Background

         1. The Complaint and the Stay Order

         On April 20, 2010, Plaintiff filed a pro se complaint under 42 U.S.C. § 1983. (Dkt. #2). He named as defendants Detectives Stradford and Braccini, as well as the New York City Department of Corrections. In brief, Plaintiff alleged that he had declined to be interviewed by the two detectives on October 23, 2008, referring them instead to his appointed counsel for the drug possession charge for which he was then being detained. (Id. at 3). According to Plaintiff, Detective Stradford rejected Plaintiff's request that questioning cease, and instead presented him with a Miranda waiver form. Plaintiff reviewed the form, but refused to initial the waiver of his right to counsel. It is then, claimed Plaintiff, that Detective Stradford administered several blows to Plaintiff's head, while Detective Braccini failed to intervene. (Id.).

         On May 25, 2010, United States District Judge Richard J. Sullivan, to whom the case was then assigned, issued a referral order to United States Magistrate Judge Ronald L. Ellis for general pretrial purposes. (Dkt. #5). On August 18, 2010, Judge Ellis issued an order staying the case until the completion of Plaintiff's criminal proceedings. (Dkt. #6). Among other things, Defendants' obligation to answer or otherwise respond to the complaint was stayed until 45 days after Plaintiff advised the Court that his criminal proceedings had concluded. (Id.).

         In a submission docketed in May 2011, Plaintiff sought a lifting of the stay, arguing principally that his criminal case could be disaggregated from the excessive force claims in his civil complaint. (Dkt. #12). Judge Ellis denied the request by Order dated May 25, 2011. (Dkt. #13).

         2. The Reassignment and the Lifting of the Stay

         In May 2013, the case was transferred to United States District Judge Analisa Torres, although the referral to Judge Ellis for general pretrial supervision remained in place. (Dkt. #21). On September 26, 2013, Judge Ellis issued an order lifting the stay, citing Plaintiff's conviction and sentencing in his homicide prosecution. (Dkt. #22). Judge Ellis then scheduled a telephone conference with the parties to take place on December 10, 2013. (Dkt. #25).

         The parties contemplated dispositive motion practice in early 2014. Defendants advised Plaintiff of their intention to file a motion to dismiss in a letter dated January 15, 2014, prompting Plaintiff to file papers in support of a motion for summary judgment while simultaneously announcing his intention to amend his complaint. (See, e.g., Dkt. #38 (outlining history); Dkt. #26-28, 32-33, 36 (Plaintiff's post-conference submissions)). To regain control of her docket, Judge Torres issued a scheduling order on April 3, 2014. (Dkt. #39). In it, she required Plaintiff to file his amended complaint by May 5, 2014; specified a schedule for Defendants' motion to dismiss; and denied without prejudice Plaintiff's motions in limine and for summary judgment. (Id.).[2]

         Plaintiff filed what he styled as the Third Amended Complaint on April 21, 2014. (Dkt. #43). This Complaint added as defendants the City of New York and the NYPD Cold Case Squad. However, in addition to factual allegations, Plaintiff also included arguments for summary judgment pursuant to Federal Rule of Civil Procedure 56; default judgment pursuant to Federal Rule of Civil Procedure 55; suppression of his interview statements pursuant to New York state law; and the applicability of the parol evidence rule to prove the content of certain unspecified writings. (See, e.g., id. at 2-6). Similarly, in addition to the excessive force allegations that had been raised in his initial complaint, Plaintiff now included claims for violation of the First Amendment (id. at 10-11); improper custodial interrogation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments (id. at 8); denial of due process under the Fourteenth Amendment (id. at 10-11); various forms of estoppel under New York law (id. at 5-6, 15); and violations of New York's Criminal Procedure Law (id. at 13-14). Plaintiff also raised a variety of challenges to his criminal prosecution, apparently under the impression that the Court had the ability to vacate his convictions. (See Id. at 24-26; Dkt. #43-1 at 1-10).

         3. The Motion to Dismiss

         Defendants filed a motion to dismiss on May 20, 2014. (Dkt. #50-53). Broadly speaking, Defendants contended that Plaintiff's claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and the Rooker-Feldman doctrine; that the claims were not plausible under Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); that the NYPD Cold Case Squad was not a separate, suable entity; and that Plaintiff had failed to state a claim for municipal liability. (See Dkt. #52). Plaintiff filed his opposition papers on July 16, 2014; in them, Plaintiff argued that Defendants' failure to file an answer in the matter (which failure, of course, was the result of their filing the motion to dismiss) warranted the entry of a default judgment against them. (Dkt. #58). Defendants filed a reply memorandum on August 1, 2014. (Dkt. #61).

         In a Memorandum and Order dated November 26, 2014, Judge Torres granted in part and denied in part Defendants' motion. (Dkt. #63). See also Fleming v. City of N.Y., No. 10 Civ. 3345 (AT)(RLE), 2014 WL 6769618 (S.D.N.Y. Nov. 26, 2014). In particular, the Court rejected Defendants' various challenges to Plaintiff's excessive force claim, but dismissed without prejudice his deliberate indifference and deprivation of counsel claims. Id. at *4-5. The Court also dismissed Plaintiff's claims against the Cold Case Squad with prejudice based on Section 396 of the New York City Charter, and dismissed his claims against the City of New York without prejudice for failure to allege an official policy, practice, or custom. Id. at *6-7. Finally, Judge Torres rejected Plaintiff's efforts to vacate his conviction through this civil lawsuit. Id. at *8.

         4. The Answer, Discovery, and the Putative Settlement of the Case

         Defendants submitted their answer to the Third Amended Complaint on February 2, 2015. (Dkt. #75). Thereafter, Magistrate Judge Ellis scheduled a telephone conference with the parties for February 24, 2015. (Dkt. #74-75). During the conference, Judge Ellis ordered that discovery be produced on or before May 26, 2015, although this date was subsequently extended because, among other reasons, Plaintiff was delayed in providing the requisite medical authorization forms. (Dkt. #83-84, 87-88). Ultimately, Judge Ellis scheduled a post-discovery telephonic conference to occur on November 10, 2015. (Dkt. #94).

         By letter dated November 16, 2015, counsel for Defendants advised the Court that the parties had agreed on that day to settle the matter without further litigation, and that counsel had forwarded the appropriate settlement documents to Plaintiff for his signature. (Dkt. #95). That same day, Judge Torres issued a conditional order of discontinuance (referred to colloquially as a “30-day order”). (Dkt. #96). But reports of the settlement were premature: Plaintiff returned his copy of the Court's 30-day order with a letter “rescind[ing]” his acceptance of Defendants' “arbitrary and irrational” settlement offer (Dkt. #97), and the case was restored to the Court's docket (Dkt. #99).[3]

         5. The Completion of Discovery and the Summary Judgment Motions

         The matter was referred again to Magistrate Judge Ellis, who convened a telephone conference for January 14, 2016. (Dkt. #100). At the conference, Judge Ellis confirmed that discovery had concluded and, thus, that the bases for referral to him had been satisfied. (Dkt. #102). Plaintiff filed, and then withdrew, a motion for summary judgment in February 2016. (Dkt. #105-07). Defendants filed their own summary judgment motion on March 1, 2016. (Dkt. #108-12; see also Dkt. #104 (scheduling order)). Plaintiff filed an affirmation in opposition, and then a cross-motion for summary judgment. (Dkt. #113-16; see also Dkt. #123 (second cross-motion, docketed May 2, 2016)). Defendants filed their reply on April 29, 2016 (Dkt. #117), and filed additional materials in response to a Court order on June 30, 2016 (Dkt. #129-30).

         By Order dated September 30, 2016, Judge Torres denied Defendants' motion for summary judgment. (Dkt. #135). Of note, the Court found a disputed issue of material fact as to whether Detective Stradford ever struck Plaintiff; it further found the absence of corroborating medical records not to be dispositive of the issue, inasmuch as (i) the records did not “directly contradict[]” Plaintiff's allegations of injury and (ii) the Court could not find that “Fleming's deposition testimony [was] so full of improbabilities or inconsistencies so as to justify the Court's rejection of Plaintiff's version of the facts.” (Id. at 5-6).

         6. The Reassignment of the Case and the Appointment of Counsel

         This case was reassigned to the undersigned in the fall of 2016. (Dkt. #136). By Order dated October 12, 2016, the Court scheduled a telephone conference with the parties to occur on November 4, 2016. (Id.; see also Dkt. #160 (transcript of conference)).

         At the conference, the Court introduced itself to the parties and discussed the single claim of excessive force that was proceeding to trial. After hearing from Plaintiff about his understanding of the case, the Court engaged in the following colloquy:

THE COURT: I want to make sure that you understand what this case can and cannot do, and what this case is and what this case is not.
The case that I have, the 10 CV 3345 case, is a civil rights case that you brought against the City of New York and two of its agents for conduct that happened while you were incarcerated at Rikers Island. Now that the case has come to me, sir, it's come to me in the following form. I have a case that deals with a single incident; that is, an incident, an encounter that you had with two officers of the New York City Police Department on October 23rd of 2008. It is your allegation, sir, that during that encounter, during that questioning, they used excessive force and caused injury to you and thereby deprived you of your constitutional rights.
Your adversaries, represented by [the Law Department], indicate that they did not touch you and that they did not cause any injuries, and that they, therefore, did not deprive you of your constitutional rights. So the trial that I plan to have on this case is limited to this incident and whether or not you were subjected to excessive force.
Now, sir, this is a “yes” or “no” question. Do you understand what I've just said?
MR. FLEMING: Yes, I do, ma'am.
THE COURT: Terrific, sir. Now, let me tell you what this case is not because, as you might imagine, sir, courts have limits on their jurisdiction. A judge in one place cannot decide all things in all other places, and judges have to also give a certain degree of deference to decisions by other judges in other jurisdictions.
So my case, sir, is a civil case. You are asking for compensatory and punitive damages caused by the excessive force, or not, that you were subjected to. So at this trial, you're going to be telling the jury that you were subjected to this excessive force and you believe that there is money that can compensate you for these damages.
Here's what my case is not about, sir. My case does not impact the criminal prosecutions to which you have been subjected. So I don't have the ability and, therefore, I wouldn't be doing this. I don't have the ability to affect the criminal sentences or criminal convictions that have been imposed on you. ... And so I just want to be clear that if you are asking me, sir, for things like the vacatur or the removal of your criminal convictions or your release from custody or - you may have heard the term expungement - the expungement of your convictions, I can't do that, sir, because that's not what I've been given.
All I've been given is your civil rights lawsuit about this one incident. Do you understand that, sir?
MR. FLEMING: Can I respond to that?
THE COURT: You can, sir.
MR. FLEMING: I mean, I understand, but I need to respond.

(Dkt. #160 at 4-6).

         Plaintiff's subsequent discussions with the Court suggested a degree of confusion with legal precepts - for instance, referring to the Court's role as one of “amicus curiae, ” perceiving Judge Torres's summary judgment decision as a finding in his favor as a matter of law, and, perhaps most significantly, reasoning that the settlement offer he had refused from the Law Department amounted to an admission on Defendants' part that his criminal convictions should be vacated. (Dkt. #160 at 7-8, 10-11). In consequence, the Court inquired whether Plaintiff would like the Court's assistance in obtaining pro bono counsel to aid him at his trial. Initially, Plaintiff rejected the Court's offer, noting his prior pro se representation in various facets of his civil and criminal cases. (Id. at 11-14).

         The Court announced its intention to schedule a trial date in January 2017; obtained confirmation that such a trial date would be convenient for both sides; and began to discuss with the parties the logistics of the trial. (Dkt. #160 at 14-18). In response to inquiries from Plaintiff, the Court then addressed certain evidentiary issues, such as the relevance (if any) of the parol evidence rule to Plaintiff's claim at trial and the possible introduction of other acts evidence. (Id. at 19-28). At the conclusion of the conference, Plaintiff asked the Court if he would be permitted to speak with potential counsel before the entry of any appearance on his behalf; the Court agreed to discuss the matter with the District's Office of Pro Se Litigation. (Id. at 31-32).

         One week later, the Court issued an Order advising the parties as follows:

During a November 4, 2016 telephonic pre-trial conference, the Court informed Plaintiff, currently proceeding pro se, that per his request, the Court would explore whether pro bono counsel might be available to represent him at trial. The Court has looked into the matter and has learned from the law firm of Quinn Emanuel Urquhart & Sullivan, LLP, that it is interested in so doing. In light of Plaintiff's previously expressed concerns regarding past representation by other counsel, the Court believes it best that Quinn Emanuel attorneys meet with Plaintiff to discuss the prospects of representation. Accordingly, the Court expects that Quinn Emanuel will meet with Plaintiff in the month of November, and advise the Court by December 5, 2016, whether such representation is mutually desirable for Plaintiff and Quinn Emanuel.

(Dkt. #140).

         The docket reflects, and the Court's recollection confirms, that Plaintiff initially rejected Quinn Emanuel's offer of representation, but later changed his mind. (Compare Dkt. #141, 147, 149, with Dkt. #143, 144 (“We are pleased to inform the Court that Quinn Emanuel and Mr. Fleming spoke by telephone on Wednesday November 23, then met on Tuesday November 29, 2016, following which Mr. Fleming agreed to retain Quinn Emanuel and signed a retainer agreement to that effect. We have today filed the appropriate notices of appearance.”); see also Dkt. #204 at 59 (Court observing that four times Plaintiff had sought to proceed pro se, before changing his mind and continuing with counsel)).

         7. The Reopening of Discovery

         On December 20, 2016, counsel for Plaintiff moved to reopen discovery. (Dkt. #153-54; see also Dkt. #156 (Defendants' opposition letter)). In particular, counsel sought (i) to depose each Defendant; (ii) “any records in [Defendants'] files regarding their use (or alleged use) of excessive force against inmates in interrogation situations, such as warnings, cautions, or evidence of disciplinary action”; (iii) “records of any official investigations, inquiries, or reviews regarding use of excessive force during interrogations at Rikers Island Correctional Center during 2007 or 2008”; (iv) blueprints or other schematics for the relevant interrogation room at Rikers Island; and (v) records regarding any surveillance of the interrogation room at Rikers Island. (Dkt. #154).

         The Court scheduled a telephone conference for December 23, 2016, to resolve the matter (Dkt. #155), at which time it granted in part Plaintiff's motion (Dkt. #182 (transcript of conference)). The parties had previously agreed to schedule depositions of each Defendant.[4] On the separate issue of Defendants' disciplinary histories, defense counsel related that there were no responsive materials for the ten years prior to the 2008 incident, but that there were potentially responsive materials that postdated the incident. Accordingly, the Court agreed to conduct an expedited in camera review of certain personnel and disciplinary files, after which it ordered the production of additional materials to Plaintiff's counsel. (Dkt. #182 at 5-7; see also Dkt. #157 (order following review)). On the broader issue of discovery into practices at Rikers Island generally for the time period of 2007 to 2008, the Court found as follows:

Knowing the case as I do and knowing the allegations, I have said to Mr. Fleming on occasion that what I believe this case pertains to is what happened on a particular day. I don't believe that any sort of more expansive, more comprehensive evaluation of investigations regarding the use of excessive force during interrogations would be of assistance to me, particularly because this case involves two officers who are not themselves resident at Rikers Island who may or may not have engaged in misconduct.
I find it difficult to reason from the facts of this case that there would be a broader policy or practice of allowing law enforcement officers who are not resident at Rikers Island to come in and exhibit or apply excessive force to folks there. And even if there were that information, I'm not sure that I would allow it at trial.
So on several grounds, including the lateness of the request and the [short time] until trial and the fact that I think this would be stuff that I would very likely exclude on [Federal Rule of Evidence] 403 grounds, I am not going to require the production of it.
I say to the folks who have come on board [i.e., the Quinn Emanuel attorneys], I know that there was some time trying to understand and get the facts of this case, but the application for additional discovery was made very, very recently. I think I will be burdening the defense counsel enough without having to go into this issue, which I'm not sure would be worth it.

(Dkt. #182 at 8-9).

         8. The Motions in Limine and Their Resolution

         a. The Motions

         The parties filed motions in limine on January 13, 2017. (Dkt. #172-76; see also Dkt. #179, 181). Only a few of these motions are relevant to Plaintiff's post-trial applications, and only they are discussed in this section. Of note, Plaintiff moved to preclude introduction of evidence, argument, or jury consideration of his prior convictions, including in particular the two homicides that were the subject of the October 23, 2008 interview. (Dkt. #176). Defendants, by contrast, sought to introduce evidence of the murder convictions and of Plaintiff's written statements[5] implicating himself in those murders, reasoning in part that such evidence was proper impeachment material and in part that the introduction of such detailed confessions would undercut Plaintiff's arguments that he had been subjected to excessive force by Defendants. (Dkt. #174). Defendants also sought to preclude inquiry by Plaintiff into their respective disciplinary histories or prior lawsuits. (See Id. at 10-12).

         b. The January 17, 2017 Conference

         On January 17, 2017, the Court held a conference at which counsel for all parties appeared. (Dkt. #187). While the majority of the motions were resolved, certain of them were tabled so that the parties could obtain or evaluate additional evidence. (See, e.g., id. at 8-9 (references to NYPD Patrol Guide)). Among other motions, the Court addressed Defendants' application to preclude inquiry into their disciplinary histories and prior litigations. As to the former category, counsel for Plaintiff acknowledged receipt of additional disciplinary information that had been produced as a result of the Court's in camera review, and disclaimed any intent to use that information at trial. (Id. at 9). As to the latter category, however, counsel for Plaintiff indicated an intent to question Detective Braccini about the substance and resolution of a prior litigation involving a claim of excessive force that had begun in federal court and ended in state court. See Felder v. City of N.Y., No. 04 Civ. 2564 (AKH) (S.D.N.Y.); Felder v. City of N.Y., 938 N.Y.S.2d 226 (Table) (Sup. Ct. N.Y. Cty. Sept. 13, 2011). (Id. at 10). Counsel agreed to provide additional information concerning the lawsuit to the Court, since it had not been discussed in the papers. (Id. at 10-11).

         The bulk of the Court's time was spent resolving the parties' disputes concerning the degree to which the details of Plaintiff's convictions could be introduced. The Court prefaced its discussion of these issues thusly:

I guess the issue that has caused me the most concern this weekend is the degree to which the specific facts of the offense that was the subject of the questioning need to come out into the record, the degree to which the convictions need to come out into the record and how I am going to cabin in this trial so that both sides are treated fairly at this trial.
Let me say this. There are a couple of things that are just sort of principles with which perhaps we can all agree. And one is that in any trial there is a degree of artificiality that's occasioned by the use of the Federal Rules of Evidence. So, in trying to say we want this to be the truth, I don't mean to say we're [past] that point. We are not [past] that point. It's that the rules of evidence embody the resolution of the number of policy choices including the concerns that sometimes information might come out that … is just so either irrelevant or prejudicial or something untrustworthy that it just shouldn't make it into the record.
Here is another thing to consider though. In my conversations with Mr. Fleming which all predate - well, with one exception - predate your representation of him. Mr. Fleming has been, one might use the term “hell-bent” on getting before the jury the fact of his convictions and how inappropriate they are. And he does - he did on some level believe that this case was an opportunity to vindicate and deal with his criminal convictions. It is not. He should not be mentioning his convictions. He should not be suggesting that somehow anything in this trial has any bearing at all on his convictions.
Let me now move to my next point. … I conceived of this trial as a representation or discussion of a single snapshot in the photo album that is the … plaintiff's case … where he is questioned on another offense and something either happens or doesn't happen. But once the plaintiff starts talking about motivations, why these officers might have done things, and once he starts getting into more granularity or detail, then I think the defendants' arguments for the introduction of the confession or the interview notes have more traction.

(Id. at 11-12). Counsel for Plaintiff agreed with the Court's framing of the case, and committed to explaining to Plaintiff the ways in which he might inadvertently open the door to the introduction of this information at trial. (Id. at 12-13). In return, the Court admonished defense counsel concerning the manner into which Plaintiff could be questioned concerning his prior convictions. (Id. at 13-17).

         The parties then discussed the degree to which Plaintiff could be questioned regarding his written statements to Defendants during their interview of him at Rikers Island. (Dkt. #187 at 17-24). Defendants proposed to redact the statements for introduction to the jury; Plaintiff responded that high-level questions concerning the preparation of the statements would be a less prejudicial means of permitting Defendants to make their arguments concerning voluntariness. (Id.). The Court agreed to let the parties attempt to reach accord on a redacted statement, and deferred a final decision. (Id. at 24). At the conclusion of the conference, Defendants raised, off ...

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