Debrosse v. The City of New York et al

Filing 95

MEMORANDUM DECISION AND ORDER: the defendants' motion for summary judgment is granted. SO Ordered by Judge Ann M Donnelly on 8/2/2017. (Ramesar, Thameera)

FILED
IN CLERK'S OFFK
OFFICE
TRICT
US DISTRICT COURT I
E.D.N.Y

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

5

AUG 0 2 2017 *

X

BROOKLYN OFFICE
DONALD DEBROSSE,
Plaintiff,
MEMORANDUM DECISION AND

- against -

ORDER

THE CITY OF NEW YORK, DETECTIVE
MICHAEL
GAYNOR,
Tax
#928363,
DETECTIVE DAVID ARVELO, Tax #895970,
DETECTIVE LORRAINE WINTERS, Tax
#921297, POLICE OFFICER PABLO DEJESUS,
Tax
#915572,
DETECTIVE
ANDREW
MENNELLA, Tax #922778, DETECTIVE
ROBERT AIELLO, Tax #901092, DETECTIVE
CLAUDE JEANPIERRE, Tax #91209, POLICE
OFFICERS JOHN/JANE DOE(S)#S1-10,

13 Civ. 3822(AMD)
(CLP)

Defendants.
X

ANN DONNELLY,District Judge.

The plaintiff, Donald Debrosse, brings this civil action for damages against seven
detectives—Michael Gaynor, David Arvelo, Lorraine Winters, Pablo DeJesus, Andrew Mennella,
Robert Aiello, and Claude Jean-Pierre. The plaintiff alleges that the defendants prosecuted him
maliciously, abused the criminal process, and denied him a right to a fair trial, in violation ofthe
Fourth, Fifth, and Fourteenth Amendments. The plaintiff also alleges municipal liability against
the City of New York. The defendants move for summary judgment. For the reasons that follow,
the defendants' motion is granted.

BACKGROUND

On September 3,2009,at approximately 8:20 p.m.,Peter Daleus was shot in the head while

sitting outside in the backyard ofPeople's Delight Express Jerk Chicken in Brooklyn,New York.'
(Defs.' 56.1 Statement K 1; PL's 56.1 Counterstatement ^ 1.) Chryl Williams, a 16-year-old girl,
was sitting next to Daleus at the time he was shot. (Defs.' 56.1 Statement ^ 2; PL's 56.1

Counterstatement ^ 2; Williams Dep. at 18.) New York City Police Detectives Michael Gaynor
and Lorraine Winters responded to the shooting. (Defs.' 56.1 Statement H 4; PL's 56.1
Counterstatement ^ 4.) At approximately 10:00 p.m.. Detective Winters interviewed Williams
about what she saw. (Defs.' 56.1 Statement H 7; Defs.' Ex.0at 12.) According to the defendants,
Williams told Detective Winters that an unknown man approached Daleus and fired three shots at
him. (Defs.' Ex.0 at 12.) Police reports show that Williams described the shooter as a black,
dark-skinned male, about five feet six inches tall, with a close haircut, wearing a black baseball
hat with a green design on the front, and a dark tee-shirt. (Jd.) Detective Winters recalled that
Williams also said that the shooter had a "mean, mean face." (Winters Dep. at 17,38.) Later that

evening, at the precinct, Williams looked at photographs on a computer program called Photo

Manager, but did not recognize anyone.^ {Id. at 43, 86; Defs.' 56.1 Statement ^ 8; PL's 56.1
Counterstatement ^ 8.)

Two days later, on September 5, 2009, Detective Gaynor learned from Detective Padro of

the 67"^ Precinct that there had been a previous shooting at Daleus' home, but that there were no
suspects in that shooting. (Defs.' 56.1 Statement 1[ 15.) Detective Gaynor was not able to interview
Daleus until September 12, 2009, because of Daleus' injuries. (Defs.' 56.1 Statement ^ 9; PL's

' facts are taken from the defendants' 56.1 Statement, the plaintiffs 56.1 Counterstatement, and my review ofthe
The
entire record.

^ Detective Winters testified that the plaintiffs photograph was not included in the photographs that she showed
Williams.(Winters Dep. at 86-87.)

56.1 Counterstatement ^ 9.) When he did interview him, Daleus said that he was a member ofthe
Haitian Mafia Crips gang. (Defs.' 56.1 Statement

11-12.) Daleus did not see who shot him on

September 3"^^, but was involved in an ongoing dispute with someone named "Dutch," a fellow
gang member.^ (Defs.' 56.1 Statement

11-12.) According to Daleus, Dutch "shot up" Daleus'

home to retaliate against him for stabbing his brother. {Id.) Daleus also said that he saw Dutch's
friend, whom he knew as "Fruit Punch," staring at him from the yard behind the restaurant just
before the shooting. (Defs.'56.1 Statement^ 10.) Citing Daleus'deposition testimony from May
12, 2014—five years after the shooting—^the plaintiff denies that Daleus mentioned him to

Detective Gaynor, and claims that Daleus neither told Officer Gaynor that he had any problems

with "Dutch" or mentioned the plaintiff or Fruit Punch to the police. (PL's 56.1 Counterstatement
11-13; Defs.' Ex. E,Daleus Dep. at 40.)

On September 28,2009, Detective Gaynor spoke to Officer Paul Blanc ofthe 70^ Precinct
Anti-Crime Unit, who was knowledgeable about Hattian gang members. Officer Blanc told

Detective Gaynor that the plaintiff was the person known as "Dutch." (Defs.' 56.1 Statement ^
16.) On September 28,2009, Detective Gaynor obtained the plaintiffs photograph and showed it
to Officer Blanc, who confirmed that the plaintiff was Dutch. (Defs.' Ex. G at 53.) On that same
date. Detective Gaynor showed the plaintiffs photograph to Daleus, who also confirmed that the
plaintiff was Dutch. (Id.) Shortly thereafter. Detective Gaynor prepared a photographic array that
included the plaintiffs photograph and showed the array to Williams at her apartment; Williams

identified the plaintiff as the person she saw shoot Daleus."* (Defs.' 56.1 Statement H 21.)

^ Detective Gaynor also interviewed Daleus' brother, Michael, who confirmed the dispute between Daleus and Dutch,
but did not want the detective to tell Daleus that they spoke. (Gaynor Dep. at 54-55.)
^ The plaintiffclaims that Williams denied identifying the plaintiff in the photo array. (PL's 56.1 Counterstatement ^
20.) The portions of her testimony that the plaintiff cites do not support that claim.

Detective Gaynor made repeated attempts to locate the plaintiff; he visited the plaintiffs
home,spoke with the plaintiffs father and sister, prepared an "ICard" for naming the plaintiff as
a suspect, posted "wanted posters," conducted an "E Justice check," and contacted the plaintiffs
attorney, Patrick Megaro,to arrange a time for the plaintiffto tum himselfin. (Defs.' Ex. G at 55-

68, Defs.' Ex. M at 16.) Although the detective and the lawyer agreed on a date for the plaintiff
to surrender, the plaintiff did not appear at the precinct. The plaintiff was finally arrested five
months after the shooting on February 8, 2010 at the Brooklyn Family Court, and transported to

the TO^'' Precinct Detective Squad for questioning. (Defs.' 56.1 Statement ^ 24; PL's 56.1
Counterstatement ^ 24.)

Detective Gaynor told the plaintiff that he would be placed in a line-up. The plaintiff
responded that he wanted to speak to his lawyer, Mr. Megaro. (Defs.' Ex. M at 20-21.) The
plaintiff called Mr. Megaro, who then spoke to the detective. (Defs.' 56.1 Statement K 26; PL's
56.1 Counterstatement ^ 26.) When Detective Gaynor told Mr. Megaro that he was going to

conduct a line-up, Mr. Megaro said that he wanted to be at the line-up, but that it would take him
at least two hours to get to the precinct. (Defs.' 56.1 Statement ^ 28; PL's 56.1 Counterstatement
H 28.) Detective Gaynor said that he would not wait that long, to which Mr. Megaro replied,"you
do what you have to do." (Defs.' Ex. M at 86.) Detective Gaynor went ahead with the line-up and

Williams identified the plaintiff as the person who shot Daleus.^ (Defs.' Ex. M at 72; Defs.' 56.1
Statement

29-30.)

The plaintiff was arrested and, on February 11, 2010, Williams and Detective Gaynor

testified before the grand jury, which charged the plaintiff with attempted murder in the second
degree, assault in first, second,and third degrees, attempted assault in the first and second degrees,

^ The plaintiffs claim that Williams did not identify the plaintiff as the shooter, PL's 56.1 Counterstatement If 30, is
not supported by the record. (Williams Dep. at 19, 27, 35, 39.)

and criminal possession of a weapon in the second and fourth degrees.^ (Defs.' 56.1 Statement ^
33; Pl.'s 56.1 Counterstatement K 33; Defs.' Ex. L at 3.)

Subsequently, the plaintiff moved to suppress Williams' photographic and line-up
identifications. The Honorable Raymond Guzman of the Kings County Supreme Court held a

Wade hearing at which Detective Gaynor described the photographic array and the line-up. Both
he and Mr. Megaro testified about the circumstances leading up to the line-up. (Defs.' 56.1
Statement T|36; Pl.'s 56.1 Counterstatementf 36.) Justice Guzman credited the testimony of both
witnesses, and "found no suggestiveness in either the photos or [] the conduct ofthe police prior
to the witness viewing it...and absolutely found no suggestiveness in the procedures used by the
police department to secure the line-up." (Defs.' Ex. N at 13, 18.) Nevertheless, Justice Guzman

granted the motion to suppress the line-up because "as a matter of law, the police department did

not give defense counsel under these circumstances a reasonable time to appear."' {Id. at 17.)
On February 7, 2012—^two and a half years after the shooting—^Justice Gustin Reichbach

held an independent source hearing at which Chryl Williams testified, to determine there was an
independent basis for Williams' identification of the plaintiff as the shooter. (Defs.' 56.1
Statement ^ 40; Pl.'s 56.1 Counterstatement f 40.) Williams remembered describing the shooter
to the police on the night ofthe shooting, but, at the time ofthe hearing, could not give a detailed

description of the shooter, (Defs.' Ex. P at 10-12.) Because Williams only gave a "generic

® The plaintiff moved to unseal the grand jury minutes. (ECF 34.) In a decision dated February 10, 2015, Judge
Pollak, who reviewed the minutes in camera, denied the plaintiffs motion, ruling that the plaintiff did not show
"particularized need." Judge Pollak observed that the testimony was "extremely short and utterly unremarkable."
(ECF 42.)

' the time ofthe hearing. New York law did not permit the introduction of photographic identifications, except in
At
circumstances not pertinent here. See People v. Caserta, 19 N.Y.2d 18 (N.Y. 1966); see also People v. Stanislous,
967 N.Y.S.2d 911,914(N.Y. Sup. Ct. 2013).

description" at the hearing and was"unable to identify any distinctive features," Justice Reichbach
ruled that there was no independent source for her identification. {Id. at 22.)

The rulings left prosecutors with no admissible evidence on the issue of identification.
Accordingly, the prosecutor moved to dismiss the indictment on February 10, 2012, stating that
"the People are left at this time with a case that we cannot prove beyond a reasonable doubt."
(Defs.' 56.1 Statement 42.) Subsequently, the plaintiff brought this action for malicious
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prosecution, abuse of the criminal process, and denial of a right to a fair trial.
DISCUSSION

Summary judgment is appropriate if the parties' submissions, taken together, show that
there is"no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a)&(c);see also Anderson
V. Liberty Lobby, Inc., All U.S. 242, 247-48 (1986). A court considering a motion for summary

judgment does not evaluate witness credibility, and must draw reasonable inferences and resolve
all ambiguities in favor of the plaintiff. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir.

2010);

also Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010) ("Credibility

determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those ofajudge ... Thus, although the court should review the record
as a whole,it must disregard all evidence favorable to the moving party that thejury is not required
to believe.").

However,the plaintiff may not "rely on mere speculation or conjecture as to the true nature

ofthe facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co.,804 F.2d
9, 12 (2d Cir. 1986). A "scintilla of evidence in support of the [non-movant's] position" is

insufficient. Hayut v. State Univ. ofNew York,352 F.3d 733,743(2d Cir. 2003)(citation omitted).

While a plaintiff is entitled "to the assumption that ajury would believe his testimony," a plaintiff

is only entitled to the reasonable inferences that can be drawn from this testimony. Richardson
V. City ofN.Y, No. 02-cv-3651, 2006 WL 2792768, at *3 (E.D.N.Y. Sept. 27, 2006). If "the
evidence is such that a reasonable jury could return a verdict for the nonmoving party," the court
must deny the motion for summary judgment. Anderson^ All U.S. at 248.

The plaintiff concedes that he cannot not sustain the malicious abuse of process claim or
the Monell claims of municipal liability against the City ofNew York. The plaintiff also concedes
that he had no good faith basis to oppose summary judgment on the claims against Detectives
Arvelo, DeJesus, Mennella, Aiello, and Jean-Pierre. Accordingly, I grant the defendants' motion

for summary judgment on these claims and consider only the remaining claims against Detective

Gaynor and Detective Winters.^ See Darboe v. Staples, Inc., 243 F. Supp. 2d 5, 10 (S.D.N.Y.
2003)(granting defendants' motion for summary judgment where the plaintiff states in briefing
that he cannot maintain his burden).
1. Malicious Prosecution

To state a claim for malicious prosecution under Section 1983,the plaintiff must show "(1)
the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the

proceeding in plaintiffs favor;(3)lack of probable cause for commencing the proceeding; and(4)
actual malice as a motivation for defendants' actions." Hicks v. City ofNew York, No. 15-CV-

04888, 2017 WL 532304, at *6 (S.D.N.Y. Feb. 8, 2017)(citing Murphy v. Lynn, 118 F.3d 938,
947(2d Cir. 1997)).

® The defendants argue that the plaintiff has not alleged that Detective Winters was personally involved in the alleged
constitutional deprivations as required to state a claim under Section 1983. See Faridv. Ellen, 593 F.3d 233,249(2d
Cir. 2010). The plaintiffs claim that Detective Winters "begged" Daleus to identify the plaintiff as the shooter, if
true, sufficiently alleges personal involvement to state a claim under Section 1983.

a. Probable Cause

"[T]he existence of probable cause constitutes a complete defense to a claim of malicious
prosecution in New York." Savino v. City ofNew York,331 F.3d 63,72(2d Cir. 2003). Generally,
a grand jury indictment "creates a presumption of probable cause that can only be overcome by
evidence that the indictment was the product offraud, perjury, the suppression ofevidence by the

police, or other police conduct undertaken in bad faith." Bermudez v. City ofNew York, 790 F.3d
368, 377 (2d Cir. 2015)(internal quotation marks omitted). Bad faith may be shown "through
evidence that police witnesses have not made a complete and full statement of facts" or through
evidence that the prosecutor "misrepresented, falsified or suppressed evidence." Hicks,2017 WL
532304, at *7; Brown v. City ofNY., 306 F. Supp. 2d 473, 479-80 (S.D.N.Y. 2004). However,
"mere conjecture and surmise" are insufficient to rebut the presumption afforded by a grand jury's
indictment.

Savino,

331

F.3d

at

73.

"The burden of

rebutting

the presumption of probable cause requires the plaintiff to establish what occurred in
the grand jury, and to further establish that those circumstances warrant a finding of misconduct
sufficient to erode the premise that the Grand Jury actsjudicially." Rothstein v. Carriere,373 F.3d
275, 284(2d Cir. 2004).

Here,a grandjury indicted the plaintiffafter hearing from two witnesses: Detective Gaynor
and the eye witness, Chryl Williams. The defendants argue that the indictment is presumptive
evidence of probable cause, which is a complete defense to the plaintiffs meilicious prosecution

claim. The plaintiff's efforts to rebut that presumption are not persuasive.
For example, the plaintiff relies on Cox v. County of Suffolk, 827 F. Supp. 935, 937

(E.D.N.Y. 1993)for the proposition that the presumption of probable cause does not apply when
a court dismisses the case for lack of evidence. Cox is a different case. Unlike Cox, the hearing

court in this case did not dismiss the indictment for legal insufficiency;^ rather, the government
dismissed the case after adverse rulings having nothing to do with the sufficiency of the evidence

before the grand jury. The plaintiff has not cited nor is the Court aware of any authority holding
that the presumption of probable cause does not apply when the government dismisses a criminal
case. See Felmine v. City ofNew York, No. 09-CV-3768, 2011 WL 4543268, at *12(E.D.N.Y.
Sept. 29,2011)("[T]he dismissal ofthe case against [the plaintiff] did not pertain to the evidence
adduced at the grand jury, but rather resulted from the ADA's voluntary motion to dismiss due the
difficulty of ascertaining trial testimony from the victim."); Hadid v. City ofNew York, 182 F.

Supp.3d 4,14(E.D.N.Y.2016)
("[T]he evidence was legally insufficient to establish Hadid's guilt
ofthe crime of perjury in the first degree ... Such a dismissal does not rebut the 'general rule ...

that a Grand Jury Indictment is prima facie evidence of probable cause' under New York state
law.").

Equally unpersuasive is the plaintiffs argument that Detective Gaynor and Detective

Winters acted in bad faith during the course of the investigation. According to the plaintiff.
Detective Gaynor "coerced" Chyrl Williams to identify the plaintiff, even though she did not see
the shooter. The plaintiff quotes isolated snippets of Williams' deposition testimony to support

his theory that she neither saw the shooter nor identified the plaintiff as the shooter. In fact, the
thrust of Williams' deposition was that she either did not remember what she saw or what she told

detectives five years earlier, or was trying to forget it.^® (Williams Dep. at 23, 38, 41, 63.)
Williams' failure of memory at her 2014 deposition, however, does not mean that the defendants
lacked probable cause to arrest and prosecute the plaintiff in 2009.

' New York, courts review indictments for legal sufficiency as a matter of routine.
In
For example, Williams stated that the shooting was "something that [she did] not want to relive," that she "never
kept up with any of it because it's not something that [she] want[ed] to be a part of... or ever tried to remember,"
and that she "always tried [to] block [it] out of[her] memory."(Williams Dep. at 10, 31,46.)

More signific£int, Williams was clear that the detectives neither pressured her to identify
the plaintiffor suggested that he was the shooter. On the contrary, she specified that the detectives
"followed procedure"(Williams Dep. at 40), that they never told her whom to identify {id. at 3637), and that they did not pressure her. {Id. at 55.) Even viewing the facts in the light most

favorable to the plaintiff, as I am required to do on summary judgment, the plaintiffs selective
reading of Williams' deposition testimony does not support his claim that Detective Gaynor
coerced Williams to identify the plaintiff.

The plaintiff also argues that the detectives "fabricated" Peter Daleus' statements to them

after the shooting. Daleus testified at his deposition that he never told the detectives that he
suspected that the plaintiff"shot at" his home or that he saw "Fruit Punch" at the restaurant on the

night ofthe shooting. Even accepting Daleus' deposition testimony at face value, it has no effect
on the indictment. Daleus did not testify before the grand jury, and there is no evidence that

Detective Gaynor testified about Daleus' statements before the grand jury, much less that the grand

jury relied on anj^hing Daleus said. See e.g. Hicks., 2017 WL 532304, at *8 (holding that
"fabricated evidence" does not vitiate probable cause when a prosecutor is able to gain sufficient
probable cause through other evidence.) Or course, even if Detective Gaynor had relayed the
contents of his interview with Daleus to the grand jury, it does not necessarily follow that he was

acting in bad faith. See e.g., Alvarado v. City ofNew York, No. 04-CV-2558, 2009 WL 510813,
at *2(E.D.N.Y. Feb. 27, 2009)("even if the grand jury minutes showed that the 'testimonies of
the police witnesses and Complainant differ[ed] from the contents of the Complaint report and
their deposition testimonies'...this would not provide the type ofevidence necessary for plaintiff

'' Peter Daleus claimed that Williams reported to him that the police told her that the plaintiff was the suspect. (Daleus
Dep. at 57.) Williams denied telling Daleus any such thing. (Williams Dep. at 35-36.) In any event, his testimony
about her statements is hearsay, and not admissible for its truth.
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rebut the presumption of probable cause in this case."); Watson v. Grady, No. 09-CV-3055, 2015
WL 2168189, at *16(S.D.N.Y. May 7,2015), aff'dsub nom. Watson v. Sims,648 F. App'x 49(2d
Cir. 2016), cert, denied, 137 S. Ct. 626, 196 L. Ed. 2d 516 (2017)(holding that inconsistencies

between a witnesses' deposition testimony and what the officer allegedly reported the witness said
during the investigation did not establish bad faith).

Finally, the plaintiff argues that the presumption of probable cause was rebutted by the
hearing court's determination, more than a year and a half after the indictment, to suppress the
line-up identification, followed by a second court's determination that there was no independent
source for Williams' line-up identification. However,the "later suppression ofcertain witnesses'
out-of-court identifications is irrelevant to a determination of whether probable cause supported
the arrest warrant and the indictment." Woodyard v. County ofEssex, No. 12-2945, 2013 WL

791634, at *5 (3d Cir. March 5, 2013); see also Miller v. Carney, No. 12-cv-0972, 2014 WL

4677054, at *10(N.D.N.Y. Aug. 7, 2014)("The fact that the Plaintiffs statements to police and

the drugs found on his person were later suppressed as the fruit of an unconstitutional entry does
not undermine our conclusion that Defendant Prior had probable cause to charge Plaintiff.").
In Restivo v. Hessemann, 846 F.3d 547, 571 (2d Cir. 2017), the trial court held that a co-

conspirator's confession was inadmissible at the plaintiffs criminal trial. After the government

voluntarily dismissed the case, the plaintiff brought a claim of malicious prosecution, arguing that
the government lacked probable cause to prosecute because the key evidence—^the confession—
was found to be inadmissible. Id. The Second Circuit held that if a piece of evidence "looked at

The plaintiff also argues that Detective Gaynor acted in bad faith because he did not specify on a DD5 that the
plaintiff was represented by counsel. This omission "has no bearing whatever in and of itself on want of probable
cause," and therefore, does not factor into the bad faith analysis. Bradley v. Nolan,No.03-cv-1616,2007 WL 959160,
at ♦S (S.D.N.Y. Mar. 30, 2007) (citing Warren v. Byrne, 699 F.2d 95, 98 (2d Cir. 1983)).
11

ex ante'' supports a probable cause determination,"even if ultimately deemed inadmissible," it is
a defense to a claim ofmalicious prosecution. Id. The same is true in this case. Williams identified
the plaintiff both in the photographic array and at the line-up, which gave Detective Gaynor

probable cause to initiate the prosecution. The fact that the identification was later suppressed—
for reasons having nothing to do with the reliability ofthe identification—does not undermine the
initial determination ofprobable cause. Accordingly,I find that the defendants had probable cause
to prosecute the plaintiff, which is a complete defense to the plaintiffs claim of malicious
prosecution.
b. Favorable Termination and Actual Malice

Because there was probable cause to arrest and prosecute the plaintiff, it is not necessary
to address the issues offavorable termination and actual malice. Nonetheless,I address both issues

and conclude that the plaintiff cannot satisfy the favorable termination and actual malice elements
of his malicious prosecution claim. Under New York law,"a criminal proceeding is terminated
favorably to the accused when there can be no further proceeding upon the complaint or

indictment, and no further prosecution ofthe alleged offense." Harris v. City ofNew York, No. 15CV-06467, 2017 WL 59081, at *3 (E.D.N.Y. Jan. 4, 2017)(internal citations omitted). "[E]ven

where a termination is final, it will only be a favorable termination if the termination 'is not
inconsistent with innocence.'" Id. (citing Rothstein v. Carriere, 373 F.3d 275,286(2d Cir. 2004)).
The determination of whether a termination is "not inconsistent with innocence" depends on the
"circumstances of each case." Id.

Where a dismissal is premised on the suppression of evidence, it is not a favorable
termination because it "does not establish or imply [the plaintiffs] innocence," since the dismissal
"was not related to or based upon the reliability or unreliability ofthe evidence." Miller v. Cuccia,

12

201 F. 3d 431 (2d Cir. 1999); Harris, 2017 WL 59081, at * 4("[A] dismissal of a conviction or a

dismissal ofa case because evidence is suppressed, particularly when the evidence was suppressed

on appeal, is not a favorable termination."). Here, the prosecution moved to dismiss the charges

against the plaintiff because it could not meet its burden of proof after the pre-trial rulings
suppressing Williams' line-up identification and finding no independent source. In suppressing

the line-up. Judge Guzman specifically held that he suppressed Williams' line-up identification
not because there was anything suggestive about the line-up, but because Detective Gaynor did

not give the plaintiffs lawyer a reasonable opportunity to appear. Thus, the dismissal does not
satisfy the favorable termination element.

As to actual malice element, the plaintiff makes the same arguments that he makes in
connection with his bad faith claim. These arguments are no more persuasive in the actual malice

context than they were in the fad faith context. For the reasons explained above, I reject the

plaintiffs claim that the defendants were motivated by actual malice. Because the plaintiffcannot
establish the necessary elements, the defendants' motion for summary judgment on the malicious
prosecution claim is granted.
2. Right to a Fair Trial

A person's right to a fair trial is violated if an investigating official fabricates evidence that
is likely to influence a jury's decision, forwards that information to prosecutors, and the plaintiff
suffers a deprivation ofliberty as a result. See Garnett v. Undercover Officer C0039,13-CV-7083,
2015 WL 1539044, at *4 (S.D.N.Y. Apr. 6, 2015), affd, 838 F.3d 265 (2d Cir. 2016)(citing
Ricciuti V. N.Y.C. Transit Auth, 124 F.3d 123, 130 (2d Cir. 1997)). As with the malicious

prosecution claim, the plaintiff argues that the defendants fabricated evidence by telling

13

prosecutors that: (1) Williams identified the plaintiff as the shooter, (2) Daleus said that the

plaintiff"shot up" his home,and (3)Daleus saw "Fruit Punch" at on the night ofthe shooting.
The defendants' first response is that the plaintiffs right to a fair trial could not be violated

for the simple reasons that there was no trial. This argument appeals to common sense. Indeed,
several courts in this district have adopted it. See e.g. Hope v. City ofNew York,No. CV-08-5022,

2010 WL 331678, at *4(E.D.N.Y. Jan. 22, 2010)("Plaintiffs claim that he was denied a right to
a 'fair trial' is similarly without merit. There was no trial."); Derosa v. City ofNew York, 12-CV3114, 2014 WL 3908111, at *2(E.D.N.Y. Aug. 11, 2014)("Since there was no trial,[] Section
1983 claims for denial of the right to a fair trial cannot succeed if there was no trial.") The only

apparent Second Circuit authority—Ricciuti v. New York City Transit Authority, 124 F.3d 123,
130 (2d Cir.1997)—seems to hold otherwise.

There, the Second Circuit permitted

Ricciuti's Section 1983 fair trial claim to proceed, even though the charges against him were
dismissed before trial; the Second Circuit held that when a police officer "creates false information

likely to influence a jury's decision and forwards that information to prosecutors, he violates the
accused's constitutional right to a fair trial." Id. Even though Ricciuti "appears to be the only
[Second Circuit] case permitting such a claim to proceed even where a trial did not take place, it
is binding precedent." Douglas v. City ofNew York, 595 F. Supp. 2d 333,347(S.D.N.Y. 2009).
Under either view, however, the plaintiff has not cited any evidence that the defendants
fabricated evidence. Rather, as discussed above, the plaintiff makes only conclusory and

unsupported allegations that the defendants lied about Williams' identification and about what
Daleus told them, and his allegations are not supported by the record. See e.g. Culpepper v. City
ofNew York, No. 14-CV-6585, 2016 WL 5334978, at *6 (S.D.N.Y. Sept. 21, 2016)(summary

judgment is appropriate where the "plaintiffs allegations are conclusory and devoid of detail and

14

he provides no evidentiary support for them."). A review of Williams' deposition testimony shows
that at most, five years after the shooting, she did not remember the details of the shooting or her
interactions with the detectives. While Daleus made certain claims—^that the detectives urged him

to identify the plaintiff—^he also claimed that he did not accede to their suggestions, and did not

identify the plaintiff.'^ Thus, the plaintiff has cited no evidence that the defendants falsified
testimony or coerced witnesses at the time of the shooting or during its investigation. See

Alvarado,2009 WL 510813,at *2(holding that various "discrepancies" between the identification

evidence provided to the police and subsequent sworn was "irrelevant to the question of whether
there was fraud, perjury, suppression of evidence, or other bad faith.") Accordingly, the
defendants' motion for summary judgment on the fair trial claim is granted.
3. Qualified Immunity

The doctrine of qualified immunity "shields government officials from liability for civil
damages when their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Duamutefv. Hollins, 297 F.3d 108, 111 (2d

Cir. 2002). Because I find that the defendants did not prosecute the plaintiff maliciously or violate

his right to a fair trial, I also find that the defendants have not violated any clearly established
constitutional rights. Therefore,the defendants are protected by qualified immunity.

In addition, Daleus testified at his deposition that due to complications from the shooting, including a stroke,"there
might be certain things he cannot remember." (Daleus Dep. at 6.)
15

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is granted. The
Clerk ofthe Court is respectfully directed to close this case.
SO ORDERED.

s/ AMD
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
August 2,2017

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