United States District Court, S.D. New York
REDACTED OPINION AND ORDER
KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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).
The Complaint and the Stay Order
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.).
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
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).
The Reassignment and the Lifting of the Stay
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).
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.).
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).
The Motion to Dismiss
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.
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.
The Answer, Discovery, and the Putative Settlement of the
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).
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).
The Completion of Discovery and the Summary Judgment
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).
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).
The Reassignment of the Case and the Appointment of
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)).
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
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
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).
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).
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).
week later, the Court issued an Order advising the parties as
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.
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)).
The Reopening of Discovery
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.
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. 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).
The Motions in Limine and Their Resolution
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 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).
The January 17, 2017 Conference
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.
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
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
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).
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 ...