Deskovic v. City of Peekskill

• Decision Date: 25 September 2012
• Docket Number: Case Nos. 07–CV–8150 (KMK), 07–CV–9488 (KMK).
• Citation: 894 F.Supp.2d 443
• Parties: Jeffrey DESKOVIC, Plaintiff, v. CITY OF PEEKSKILL, Putnam County, David Levine, Thomas McIntyre, Eugene Tumolo, John and Jane Doe Supervisors, and Daniel Stephens, Defendants. Linda McGarr, Plaintiff, v. City of Peekskill, David Levine, Thomas McIntyre, Eugene Tumolo, John and Jane Doe Supervisors, and Daniel Stephens, Defendants.
• Court: U.S. District Court — Southern District of New York

894 F.Supp.2d 443

Jeffrey DESKOVIC, Plaintiff,

v.CITY OF PEEKSKILL, Putnam County, David Levine, Thomas McIntyre, Eugene Tumolo, John and Jane Doe Supervisors, and Daniel Stephens, Defendants.

Linda McGarr, Plaintiff,

v.City of Peekskill, David Levine, Thomas McIntyre, Eugene Tumolo, John and Jane Doe Supervisors, and Daniel Stephens, Defendants.

Case Nos. 07–CV–8150 (KMK), 07–CV–9488 (KMK).

United States District Court, S.D. New York.

Sept. 25, 2012.

Nick J. Brustin, Esq., Chloe Francis Cockburn, Esq., Deborah L. Cornwall, Esq., Jennifer Elizabeth Laurin, Esq., Sarah A. Crowley, Esq., Anna Benvenutti Hoffmann, Esq., Neufeld Scheck & Brustin LLP, New York, NY, for Plaintiff Jeffrey Deskovic.

Eric Hecker, Esq., Elora Mukherjee, Esq., Emery Celli Brinckerhoff & Abady, LLP, New York, NY, for Plaintiff Linda McGarr.

James A. Randazzo, Esq., Gaines, Gruner, Ponzini & Novick, LLP, White Plains, NY, for Defendants Daniel Stephens and Putnam County.

Stephen Wellinghorst, Esq., Robert Louis Delicate, Esq., Harwood, Lloyd, LLC, Hackensack, NJ, for Defendants Daniel Stephens and Putnam County.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

In these two civil rights actions, Plaintiffs Jeffrey Deskovic (“Deskovic”) and his mother, Linda McGarr (“McGarr”) (together, “Plaintiffs”), bring claims against the City of Peekskill and a number of police officers and other officials, in connection with the wrongful arrest, conviction, and incarceration of Deskovic.¹ Deskovic brings claims under 42 U.S.C. § 1983 (“ Section 1983”) for numerous violations of his constitutional rights and under state law for malicious prosecution as well as negligent and intentional infliction of emotional distress. (Dkt. No. 268.) McGarr alleges a Section 1983 claim for violation of her constitutional right to familial association.

Defendants Stephens and Putnam County move for summary judgment on the claims against them. For the reasons discussed below, Defendants' motions for summary judgment are denied as to Deskovic's claims, and granted as to McGarr's claim. ²

I. Background

A. Factual Background

The facts of the case have been summarized in this Court's prior opinions in this case, notably Deskovic v. City of Peekskill, No. 07–CV–8150, 2009 WL 2475001 (S.D.N.Y. Aug. 13, 2009). The Court presumes familiarity with its prior opinions, and will briefly summarize the underlying facts, then focus on the facts relevant to the instant motions. A fifteen-year-old classmate of Deskovic, A.C., was raped and murdered on November 15, 1989. (Deskovic 56.1 ¶ 1.) At the time of A.C.'s death, Deskovic was a sixteen-year-old Peekskill High School sophomore who struggled socially, academically, and emotionally. Deskovic, 2009 WL 2475001, at *2. Two weeks later, the Peekskill police began focusing their investigation on Deskovic, as he seemed “extremely distraught” at A.C.'s wake and funeral, and “appeared to have become infatuated” with A.C. (Pls.' Opp'n Ex. 1, at 57.) ³ Peekskill officers had several meetings with Deskovic, and in mid-January 1990 twice sought permission from the District Attorney's office to make an arrest, but were told their evidence was insufficient to support an arrest. ( Deskovic 56.1 ¶¶ 9–11.) Peekskill officers then met with Deskovic and asked him to take a polygraph exam, to which request Deskovic agreed. ( Id. ¶ 12.)

Stephens was an investigator with the Putnam County Sheriff's Department at all times relevant to the Complaints. (Deskovic Third Am. Compl. ¶ 28.) Defendants David Levine (“Levine”), Thomas McIntyre (“McIntyre”), and Eugene Tumolo (“Tumolo”) were Peekskill police officers (collectively, “Peekskill officers”). ( Id. ¶¶ 23, 24, 26.) In December 1989 or January 1990, Stephens first met Tumolo at a narcotics task force Christmas party, where Stephens offered Tumolo his services as a polygraph operator. (Deskovic 56.1 ¶ 14.) Stephens was known in his department as being skilled at getting confessions, and he described himself as having a “knack” for it. ( Id. ¶ 13; Pls.' Opp'n Ex. 19, at 192–93.) ⁴ Tumolo stated in a letter to the Putnam County Sheriff, written after the polygraph, that he asked Stephens to polygraph Deskovic after “[s]everal interviews with [Deskovic] failed to produce a confession vital to this case as a lack of physical evidence, witnesses or investigative leads had critically hampered its progress.” ( Deskovic 56.1 ¶ 16; Pls.' Opp'n Ex. 53, at 2.) ⁵ By the time of Deskovic's polygraph exam, Stephens had performed more than 100 polygraphs and had worked with seven or eight police departments. ( Deskovic 56.1 ¶ 27.)

Deskovic arrived at the police station on January 25, 1990, a Thursday and a school day, at the Peekskill officers' request. ( Id. ¶ 29.) Deskovic's mother was not informed that he would be with the Peekskill officers that day, or that he would be taking a polygraph. ( Id.) Deskovic was accompanied by his friend Martin Burrett, who planned to go with him to the polygraph. ( Id. ¶ 30.) Tumolo “said in a loud voice” that Martin could not accompany Deskovic to the polygraph, “which appeared to frighten [Martin], and he left.” ( Id.) Deskovic then drove with the Peekskill officers to Stephens' private polygraph office in Brewster, New York. ( Id. ¶ 31.) Stephens did not tell Deskovic at any point that he was a police officer. ( Id.) Deskovic told Stephens at the beginning of the day that he was taking the polygraph exam so that he could have a more active role in the investigation into A.C.'s murder, echoing what the Peekskill officers allegedly had told Deskovic to encourage his participation. ( Id. ¶¶ 17–18.) Stephens later testified at a suppression hearing prior to Deskovic's criminal trial that he did not believe that the Peekskill Police Department would allow Deskovic to investigate the homicide, but Stephens did not ask any follow-up questions or correct Deskovic's impression. ( Id. ¶ 18; Pl.'s Opp'n Ex. 35, at 309–10.)

The polygraph examination was roughly eight hours long, by Deskovic's estimate, and six hours long, by Stephens' estimate. (Deskovic 56.1 ¶ 33; Pls.' Opp'n Ex. 19, at 131, 198.) Deskovic was hooked up to the polygraph machine during the entire examination.⁶ (Deskovic 56.1 ¶ 40.) Stephens and Deskovic were alone in the polygraph room during the examination, and the Peekskill officers were in a second room, where a speaker allowed them to monitor the audio of what was taking place in the polygraph room. (Pls.' Opp'n Ex. 1, at 107–08.) Stephens conducted the exam using the “Arther method,” an allegedly unreliable way to conduct a polygraph examination, due to its high error rate. (Deskovic 56.1 ¶ 23; Pls.' Opp'n Ex. 36, at 5.) ⁷ Deskovic did not eat any food during the polygraph examination, but did drink several cups of coffee. (Deskovic 56.1 ¶¶ 37–38.) Deskovic alleges that Stephens was “very aggressive in his questioning,” and that Stephens invaded Deskovic's personal space, yelled at him, repeatedly asked the same questions, accused Deskovic of murder several times, and did not accept Deskovic's protestations of innocence. ( Id. ¶ 41.) There was no tape recording made of the polygraph examination. ( Id. ¶ 46.)

After concluding the polygraph examination, which allegedly indicated Deskovic's deception, Stephens told Deskovic that he had failed the test, and stated, “You just told me within yourself, through the polygraph results, that you committed it. All we want you to do is verbalize it.” ( Id. ¶ 53; Pls.' Opp'n Ex. 30, at 219.) ⁸ Stephens then left the room, and McIntyre entered and interrogated Deskovic for two more hours. (Deskovic 56.1 ¶ 54.) Plaintiffs allege that Stephens listened to McIntyre's interrogation from the second room, ( id. ¶ 64), while Stephens denies that he heard the interrogation, (Defs.' Resp. to Deskovic 56.1 ¶ 64). McIntyre allegedly threatened Deskovic and promised him leniency if he confessed, and Deskovic then falsely confessed. (Deskovic 56.1 ¶¶ 58–63.) Stephens and Tumolo entered the room and asked Deskovic, who was sobbing on the floor in a fetal position, to repeat the confession. ( Id. ¶ 66.) Deskovic was then arrested for A.C.'s murder and brought back to the Peekskill police department. ( Id. ¶ 67.)

Deskovic was tried before a jury and on December 7, 1990. He was convicted of A.C.'s rape and murder, and, on January 18, 1991, he was sentenced to fifteen years to life. ( Id. ¶ 2) In 2006, a new DNA analysis of evidence from A.C.'s murder was performed, and the results were run through an FBI database; the DNA matched the DNA of Steven Cunningham, who was serving a life sentence for sexually assaulting and murdering another Peekskill woman three years after A.C.'s murder. ( Id. ¶ 4.) On September 18, 2006, Cunningham confessed to raping and murdering A.C., and swore under oath that he had acted alone and that he had never met Deskovic. ( Id. ¶ 5.) Deskovic's conviction was vacated, and he was released from prison on September 20, 2006. ( Id. ¶ 7.) Cunningham later pleaded guilty to A.C.'s rape and murder on March 14, 2007. ( Id. ¶ 5.)

B. Procedural History

Deskovic initiated his action on September 18, 2007, and McGarr initiated her action on October 24, 2007. Deskovic filed his Amended Complaint on June 13, 2008, his Second Amended Complaint on May 13, 2009, and his Third Amended Complaint on March 17, 2010. (Dkt. Nos. 49, 200, 268.) ⁹ McGarr filed her Amended Complaint on July 7, 2008, and her Second Amended Complaint on April 9, 2010. (Dkt. Nos. 33, 119 (07–CV–9488 docket).)

Stephens and Putnam County filed summary judgment motions in both cases on December 19, 2011. (Dkt. No. 428 (07–CV–8150 docket); Dkt. No. 223 (07–CV–9488 docket).)

Defendants argue that summary judgment should be granted on Deskovic's claims against Stephens, because “discovery has revealed no evidence giving rise to the allegations,” and, in the alternative, that Stephens is entitled to qualified immunity.¹⁰ (Defs.' Mem. 1.) Defendants further argue...