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Fichman v. Mercer

United States District Court, D. Nevada

October 31, 2019

ZYHERE L. FICHMAN, Plaintiff,
v.
JOSEPH MERCER, individually and in his official capacity as a Sparks Police Department Officer; CITY OF SPARKS, a municipal corporation, JOHN DOE Defendants 1-10; RED AND WHITE CORPORATIONS; BLACK AND BLUE MUNICPAL ENTITIES 2 - 10, Defendants.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Plaintiff Zyhere Fichman alleges that Defendant Joseph Mercer unlawfully arrested him in connection with an armed robbery. Before the Court is Defendants Mercer and City of Sparks' motion to dismiss the Complaint (“Motion”) (ECF No. 12). The Court has reviewed Plaintiff's response (ECF No. 16) and Defendants' reply (ECF No. 17). For the following reasons, the Court grants in part and denies in part Defendants' Motion.

         II. BACKGROUND

         The following allegations are taken from the Complaint (ECF No. 1) unless otherwise indicated.

         Kelly Kendrick, a 19-year-old woman, called 911 on June 2, 2017, to report that a group of men robbed her at gunpoint at her apartment in Sparks. (See Id. at 5, 7.) Kendrick called from the apartment of a neighbor-Yvonne Hernandez-because the men allegedly snapped her phone in half. (See id.)

         Officers Kimberly Hodge and Chris Rowe responded and interviewed Kendrick and some of her neighbors. (Id. at 5.) Kendrick said she believed the robber was her ex-boyfriend, a man named Sirmario De La Paz, with whom she had broken up earlier that day. (Id.) Kendrick also said that she was robbed because “they” had asked her for money to buy drugs and she had refused. (Id.) One of Kendrick's neighbors-Hernandez-told Hodge she did not hear anything until Kendrick came to her door. (Id. at 6.) Two other neighbors-Kennedy Garrett and Roderick Miller-said that Kendrick and her boyfriend fight all the time. (Id.) Garrett said she heard fighting, a door slamming about 20-30 minutes later, and then Kendrick knocking loudly on neighbors' doors asking for help. (Id.) Garrett and Miller both saw one man with dark hair and a white shirt jogging away from the building. (Id.)

         Defendant Mercer arrived at the scene after the first two officers, but he took over the investigation because he believed the suspects were affiliated with a gang. (Id. at 5.) Mercer brought up Plaintiffs name and said he thought Plaintiff was involved (Id. at 6.) Mercer claimed in his report that Kendrick told him she was “220% positive” that Plaintiff was the armed robber. (Id.) Mercer “put Plaintiff's name in Ms. Kendrick's head when it otherwise would not have been there.” (Id. at 7.) Kendrick told Mercer that she thought Plaintiff was the gunman because the gunman and the other men were dressed in all black; the gunman had an “‘afro'-style” haircut (like Plaintiff); and the gunman spoke in a low, smooth voice. (Id.) Kendrick told Mercer that she thought she saw De La Paz when she looked out the peephole of her apartment and that he was wearing a white shirt with Japanese letters on the side of the arm. (Id.)

         Kendrick believed that De La Paz and the other robbers were at a location on Grove Street in Reno, about 5 or 10 miles away from Plaintiff's residence. (See Id. at 8.) Kendrick went there with Hodge but was unable to identify any perpetrators. (Id.) Hodge called Mercer, who advised that he had located Plaintiff and “the others” at Plaintiff's residence. (Id.)

         Hodge drove Kendrick to Plaintiffs residence. (Id.) Plaintiff had been stopped in a vehicle with three other young men who were members of YLOC.[1] (See Id. at 9.) Kendrick testified at Plaintiffs preliminary hearing that these three were not involved. (Id.) Kendrick refused to make a written or oral report. (Id.)

         The state court took evidence at Plaintiffs preliminary hearing. (See Id. at 5.) Kendrick testified to the following at the preliminary hearing. Mercer was familiar with YLOC. (Id. at 6.) Mercer brought up Plaintiffs name and said he thought Plaintiff was involved. (Id.) When the police interviewed Kendrick, she said she was “220% certain that Fichman was there”-not “220% positive” that Plaintiff was the armed robber. (Id.) She did not see Plaintiffs vehicle at her apartment at or about the time of the robbery. (Id. at 8.) She identified Plaintiff and an individual named Anthony Henry when she went to Plaintiffs residence. (Id.) Plaintiff was wearing grey sweatpants, no shirt, and no boots. (Id. at 9.)

         Carlos Lee, one of the men in Plaintiffs car, testified that Plaintiff was with him and the others the entire day, including and especially during the timeframe of the alleged robbery. (Id.)

         Plaintiff alleges that a reasonable police officer would have been suspicious of Kendrick's identification of Plaintiff as the robber based on the following:

• Kendrick initially told Officers Hodge and Rowe that she believed De La Paz-not Plaintiff-was the robber. (Id. at 5-6.)
• Garrett and Miller's description of the man they saw jogging away from the building matched De La Paz-not Plaintiff. (Id. at 6.)
• The gunman could not have perpetrated the armed robbery using a “low, smooth voice” because he used harsh language such as: “Shut the fuck up. Don't say anything. Turn around.” (See Id. at 7.)
• Kendrick told Mercer that the gunman and the other man were wearing black pants, black boots, and big, black jackets, but she also told him that she saw a man with a white shirt printed with Japanese letters on the side of the arm when she looked out her apartment peephole. (Id.)
• The neighbors did not hear anything even though Kendrick claimed that the robbers carried out her 55” television, 32” television, Playstation, games, movies, Roku, and jewelry. (Id.)
• Nothing in Mercer's report corroborated the claim that Kendrick even owned the items she claimed were stolen. (Id. at 8.)
• Kendrick's cell phone could have been broken by just one person (e.g., De La Paz). (Id.)
• Kendrick did not know where Plaintiff resided and had never been to his home. (Id.)
• Plaintiff was wearing grey sweatpants, no shirt, and no boots when he was identified and arrested-not black pants, black boots, and a big, black jacket. (Id. at 9.)
• Kendrick refused to make a report, suggesting that she was afraid of perjuring herself. (Id.)

         Drawing all reasonable inferences in Plaintiffs favor at this stage of the litigation, Plaintiff also alleges that Mercer ...


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