Ashley v. The City of New York et al

Filing 67

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff and Defendants' objections are OVERRULED. The R&R (Dkt. 59 ) is ADOPTED IN FULL. Defendants' Motion (Dkt. 39 ) is GRANTED IN PART and DENIED IN PART. Plaintiff's Motion (Dkt. 43 ) is DENIED. Plaintiff's false arrest, malicious prosecution, failure to intervene, illegal strip search, and excessive pre-arraignment detention claims are DISMISSED in their entirety and as to all Defendants. Plaintiff's denial of a f air trial claim is DISMISSED as it pertains to the City, Jones, and Denespolis. The only claim that survives summary judgment is Plaintiff's denial of a fair trial claim against Civil.The court DIRECTS the parties to complete any remaining discovery and follow the Court's Individual Rules for pre-trial procedures. So Ordered by Judge Nicholas G. Garaufis on 7/7/2017. (Lee, Tiffeny)

0/F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
-X

DUSHANNE ASHLEY,

Plaintiff,

MEMORANDUM & ORDER

14-CV-5559(NGG)
(SMG)
-againstTHE CITY OF NEW YORK,DETECTIVE
JASON JONES,shield #6490, DETECTIVE
MIKE CIVIL, shield #2114,SERGEANT LUKE
DENESOPOLIS,shield #392,and POLICE

OFFICER JANE/JOHN DOE(S)#'S 1-10,
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Dushanne Ashley brings this action pursuant to 42 U.S.C. § 1983 against

Defendants the City ofNew York (the "City"), Sergeant Luke Denesopolis, Detectives Mike
Civil and Jason Jones, and Police Officers Jane/John Doe(s)#1-10. (Am. Compl.(Dkt. 14).)
Plaintiffs lawsuit arises from his arrest on April 19,2013, and subsequent prosecution for
criminal possession of marijuana. He asserts the following causes of action against Defendants:
(1)false arrest;(2)malicious prosecution;(3)failure to intervene;(4)illegal strip search;(5)

excessive pre-arraignment detention; and(6) denial of a fair trial.

Defendants moved for summaryjudgment on all claims. (Defs. Mot. for Summ. J.
("Defs. Mot.")(Dkt. 39).) Plaintiff opposes Defendants' motion and cross-moves for partial
summaryjudgment on his false arrest and denial of a fair trial claims. (PI. Cross-Mot. for

Summ.J.("PI. Mot.")(Dkt. 43).) The court referred Defendants' motion for summaryjudgment

("Defendants' Motion") and Plaintiff's cross-motion for partial summary judgment("Plaintiff's
Motion" and together with Defendants' Motion, the "Cross-Motions")to Magistrate Judge
Steven L. Gold for a Report and Recommendation("R&R")pursuant to 28 U.S.C.

§ 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Nov. 28, 2016, Order Referring
Mot.) On April 17, 2017, Judge Gold issued an R&R,recommending that Defendants' Motion
be granted in part and denied in part and that Plaintiffs Motion be denied. (R&R(Dkt. 59)at 2.)
Plaintiff and Defendants each filed timely objections to the R&R. (Defs. Objs. to R&R("Defs.
Objs.")(Dkt. 64); PL Objs. to R&R ("PI. Objs.")(Dkt. 65).)

For the following reasons. Plaintiff and Defendants' objections are OVERRULED. The
R&R is ADOPTED IN FULL. Defendants' Motion is GRANTED IN PART and DENIED IN
PART. Plaintiffs Motion is DENIED.
I.

BACKGROUND

The court provides a short summary ofthe facts pertinent to the Cross-Motions for

summary judgment.^ Except as otherwise indicated, the facts in this section are not in dispute.
On November 28, 2012, Plaintiff was arrested by Jones inside of 125 East 18th Street,

Apartment 51, Brooklyn, New York (the "Apartment")for criminal possession of marijuana.

(Defs. R. 56.1 Statement("Defs. 56.1")(Dkt. 40)H 6.) Civil was also present for the arrest. (Id.
f 8.) The criminal complaint for this arrest states that Plaintiff lives at the Apartment and "stays"

in the living room. (Id 9.) On the day ofthe arrest, a blow-up bed was present in the living
room ofthe Apartment. (Id K 10.)
On December 13, 2012, Plaintiff was again arrested in the Apartment for criminal
possession of marijuana. (Id fK 13-14.) Although Civil was not the arresting officer, he was

present for the arrest. (Id f 15.) The criminal complaint for this incident states that on

December 28,2012,Plaintiff resided at the Apartment. (Id 116.)

The facts are set forth in greater detail in Judge Gold's R&R. (See R&R at 2-5.)

On April 19, 2013, Defendant Civil executed a search warrant at the Apartment.^
(Defs. 56.1 ^ 20.) The search warrant listed the address ofthe Apartment and the name of one
individual, Charles Patrick. (PI. R. 56.1 Statement("PI. 56.1")(Dkt. 44)^ 2.) Plaintiff was not
named on the search warrant and alleges that he did not reside at the Apartment on April 19,
2013. (Id nil 9, 13.)

Upon entering the Apartment on April 19, 2013, Civil observed two individuals, Charles
Patrick and Jose Carlos. (Defs. 56.1 ^ 22.) During his search. Civil found 18 small plastic bags
of marijuana in the living room ofthe Apartment. (Id 123.) Several ofPlaintiffs possessions,
including compact discs, a cat, and a dog, were in the Apartment. (Id 129.) Defendants allege
that"due to his prior involvement with plaintiff and [the][AJpartment," Civil "believed that the
room where the marijuana was found was [Plaintiffs] room." (Id ^ 24.) Plaintiff denies this
allegation. (PI. R. 56.1 Counter Statement("PI. 56.1 Counter Statement")(Dkt. 45)^ 24.)

Plaintiff was not present at the Apartment when the search was conducted but he arrived
shortly thereafter while officers were still in the Apartment and was placed under arrest.

(Defs. 56.1 ^ 27-28, 32-33.) Plaintiff was then transported to the police precinct where he
alleges he was subjected to a strip search. (Id K 34-35.) Plaintiff was in custody for
approximately 35 hours following his arrest. (Id K 38.)
Plaintiff was charged in state court with Criminal Possession of Marijuana in the Fourth
Degree, Criminal Possession of Marijuana in the Fifth Degree, and Unlawful Possession of
Marijuana. (Id U 39.) The criminal complaint(the "Original Complaint"), which was signed by
Civil, inaccurately stated that, at the time the marijuana was discovered. Civil observed Plaintiff

^ Jones was not present at the Apartment. (Id 21.) Denespolis does not recall assisting Civil with the search ofthe
Apartment. (Ex. 3 to Zelman Decl. in Supp. of PI. Objs.("Denespolis Dep. Tr.")(Dkt. 66-3)6:9-7:10.) Moreover,
Plaintiff does not know who Denesopolis is and cannot place him at the Apartment on April 19,2013. (Defs. 56.1
1147.)

and his co-defendant Carlos sitting in the room where the marijuana was recovered. (Id

H 40-42.) The prosecution filed a superseding information (the "Superseding Complaint")to
correct this error. (Id ^ 43.) The Superseding Complaint included the same charges as the

Original Complaint but stated that Plaintiff entered the Apartment only after the search was
conducted and added that upon his arrival, Plaintiff made the following statement: "this is what

happens when you let strange people into our apartment." (Id ^ 44.) Plaintiff denies having said
this. (PI. 56.1 f 27.) Plaintiff was required to make a number of court appearances in relation to
the Original and Superseding Complaint. (Id f 28-30.)

On July 18, 2014,the charges stemming from Plaintiffs April 19, 2013, arrest were
dismissed by the state court. (Defs. 56.1 K 45.) Defendant asserts that the charges were
dismissed due to "facial insufficiency" ofthe Superseding Complaint. (Id ^ 46.) Plaintiff

counters that the charges were "dismissed on the merits" and in dismissing the charges, the state

courtjust "happened to refer to the Superseding Criminal Court Complaint as facially
insufficient." (PI. 56.1 Counter Statement K 46.)
n.

LEGAL STANDARDS
A. Review of R&R

In reviewing an R&R regarding a dispositive matter firom a magistrate judge,the district
court"may adopt those portions ofthe Report to which no objections have been made and which
are not facially erroneous." Romero v. Bestcare Inc.. No. 15-CV-7397(JS)
(GRB),2017 WL

1180518, at *2(E.D.N.Y. Mar. 29,2017)(intemal citation omitted);

Impala v. U.S. Dep't of

Justice. 670 F' App'x 32,32(2d Cir. 2016)(summary order)("[FJailure to object timely to a
magistrate's report operates as a waiver ofany further judicial review ofthe magistrate's
decision ...."(intemal citation omitted)); Gesualdi v. Mack Excavation & Trailer Serv.. Inc..

No.09-CV-2502(KAM)
(JO),2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010)("Where no

objection to the[R&R]has been filed, the district court need only satisfy itself that there is no
clear error on the face of the record."(internal quotation marks and citation omitted)). "A

decision is 'clearly erroneous' when the Court is,'upon review ofthe entire record, left with the
definite and firm conviction that a mistake has been committed.'" DiPilato v. 7-Eleven,Inc.,

662 F. Supp. 2d 333,339-40(S.D.N.Y. 2009)(quoting United States v. Snow.462 F.3d 55, 72
(2d Cir. 2006)).

The district court must review de novo "those portions ofthe report...to which

objection is made." 28 U.S.C. § 636(b)(1). To obtain this de novo review, however, an objecting
party "must point out the specific portions ofthe[R&R]that they are objecting to." Sleepv's
LLC V. Select Comfort Wholesale Corp.,222 F. Supp. 3d 169,174(E.D.N.Y. 2016); see also
Fed. R. Civ. P. 72(b)(2)("[A] party may serve and file specific written objections to the

[R&R]."). If a party "makes only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the[R&R]only for clear error." Pall Corp. v. Entegris.
Inc.. 249 F.R.D. 48, 51 (E.D.N.Y. 2008)(citations omitted); see also Mario v. P&C Food Mkts..
Inc.. 313 F.3d 758,766(2d Cir. 2002)(holding that plaintiffs objection to an R&R was "not

specific enough" to "constitute an adequate objection under...Fed. R. Civ. P. 72(b)").
B. Summary Judgment

Summary judgment must be granted when "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). "A

'material' fact is one capable ofinfluencing the case's outcome under governing substantive law,
and a 'genuine' dispute is one as to which the evidence would permit a reasonable juror to find

for the party opposing the motion." Fieueroa v. Mazza. 825 F.3d 89,98(2d Cir. 2016)(citing
Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986)).

The moving party bears the initial burden to show an absence of genuine factual dispute.
See Adickes v. S.H. Kress & Co.. 398 U.S. 144,157(1970). Summary judgment will be granted

ifthe opposing party then "fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at
trial." Celotex Com, v. Catrett. 477 U.S. 317,322(1986). To defeat summary judgment, the

opposing party must do more than demonstrate "some metaphysical doubt as to the material
facts," Matsushita Elec. Indus. Co.. Ltd. v. Zanith Radio Corp.,475 U.S. 574,586(1986), and

may not rely on "conclusory allegations." Twin Labs.. Inc. v. Weider Health & Fitness.
900 F.2d 566,568(2d Cir.19901: see Joseph v. N. Shore Univ. Hosp.. 473 F. App'x 34, 36
(2d Cir. 2012)(summary order)("Conclusory allegations, conjecture, and speculation,... are
insufficient to create a genuine issue offact."(quoting Shannon v. N.Y. City Transit
Auth., 332 F.3d 95,99(2d Cir. 2003)). "[T]he Court'must construe the facts in the light most

favorable to the non-moving party and must resolve all ambiguities and draw all reasonable
inferences against the movant.'" Fireman's Fund Ins. Co. v. Great Am.Ins. Co. ofN.Y..
822 F.3d 620,631 n.l2(2d Cir. 2016) rquoting Sever v. Ctv. ofNassau, 524 F.3d 160, 163
(2d Cir. 2008)).
III.

DISCUSSION

In issuing his recommendations on the Cross-Motions, Judge Gold first considered
Plaintiffs six claims against the individual Defendants one by one, and then separately addressed
Plaintiff's claims for municipal liability. This decision is organized in the same manner.

A. False Arrest

1. Legal Standard

Claims for false arrest under Section 1983 "are analyzed pursuant to the same standards

as the applicable state law's false arrest tort." Nzegwu v. Friedman,605 F. App'x 27,29
(2d Cir. 2015)(summary order)(citing Jocks v. Tavemier. 316 F.3d 128,134(2d Cir, 2003)).
To prevail on a false arrest claim under New York law,"a plaintiff must show that(1)the
defendant intended to confine him,(2)the plaintiff was conscious ofthe confinement,(3)the

plaintiff did not consent to the confinement and(4)the confinement was not otherwise
privileged." Id (quoting Jocks. 316 F.3d at 134-35).

"The existence of probable cause to arrest constitutes justification and is a complete
defense to an action for false arrest." Gonzalez v. Citv of Schenectadv. 728 F.3d 149,155

(2d Cir. 2013)(quoting Wevant v. Okst, 101 F.3d 845, 852(2d Cir. 1996)). "Probable cause to
arrest exists when the authorities have knowledge or reasonably trustworthy information

sufficient to warrant a person ofreasonable caution in the beliefthat an offense has been
committed by the person to be arrested." Schwartz v. Marcantonatos. 567 F. App'x 20,22

(2d Cir. 2014)(summary order)(quoting Lennon v. Miller. 66 F.3d 416,424(2d Cir. 1995)).

"The question of whether or not probable cause existed may be determinable as a matter oflaw if
there is no dispute as to the pertinent events and the knowledge ofthe officers." Wevant
101 F.3dat 852.

Moreover,"under both New York and federal law,summary judgment dismissing a

plaintiffs false arrest claim is appropriate ifthe undisputed facts indicate that the arresting
officer's probable cause determination was objectively reasonable," entitling an officer to

qualified immunity. Jenkins v. Citv of N.Y.. 478 F.3d 76, 87-88(2d Cir. 2007). "An officer's

determination is objectively reasonable if there was 'arguable' probable cause at the time of
arrest—^that is, if'officers ofreasonable competence could disagree on whether the probable
cause test was met.'" Id at 87(quoting Lennon v. Miller. 66 F.3d 416,423-24(2d Cir. 2005)).

A person is guilty of criminal possession of marijuana in the fourth degree when he
"knowingly and unlawfully possesses" more than two ounces of marijuana. N.Y. Penal Law

§ 221.15. A person is guilty ofcriminal possession of marijuana in the fifth degree when he
"knowingly and unlawfully possesses" more than 25 grams of marijuana. Id § 221.10. Finally,

a person is guilty ofthe lesser charge of unlawful possession of marijuana when he "knowingly
and unlawfully possesses" marijuana. Id § 221.05. To "possess" marijuana means to "have
physical possession or otherwise exercise dominion or control" over the marijuana. Id
§ 10.00(8). Knowing possession of marijuana(or other contraband) can be inferred where an
individual has "dominion or control" over the area where the drugs are found. Chalmers v.

Mitchell. 73 F.3d 1262,1272(2d Cir. 1996)(discussing N.Y. Penal Law § 10.00(8)).
2. Analysis

Plaintiff and Defendants have each moved for summary judgment on Plaintiffs false

arrest claim. ISee Defs. Mem.in Supp. of Defs. Mot.("Defs. Mem.")(Dkt. 42)at 5-12; PI.

Mem.in Supp. ofPI. Mot. and in Opp'n to Defs. Mot.(Dkt. 46)("PI. Mem.")

11-15.) Judge

Gold determined that there was probable cause for Plaintiffs arrest and therefore recommends
that the court grant summary judgment in favor ofDefendants on this count. (R&R at 8-9.) He
noted that even ifthe court were to find that there was not probable cause to arrest Plaintiff, the
individual Defendants would be entitled to qualified immunity because there was at least
arguable probable cause to make the arrest. (Id. at 11.)

Plaintiff objects to this portion ofthe R&R,arguing that there is a genuine dispute of
material fact as to whether the arresting officer, Civil, was "in possession of sufficient facts

which would lead a reasonable police officer to believe there was probable cause to arrest

Plaintiff." (PI. Objs. at 7.) In Plaintiffs view. Judge Gold "engaged in improper and unfounded

judicial-fact finding in favor ofthe [Defendants]" where he attributed knowledge of certain facts
to Civil. (Id. at 8.J

The court reviews this portion ofthe R&R de novo. See 28 U.S.C. § 636(b)(1). The

relevant question is whether there exists a genuine dispute of material fact as to what Civil knew
at the time ofthe arrest. At his deposition. Civil testified that on April 19, 2013, he recovered
drugs firom Plaintiffs room in the Apartment. fSee Ex. 1 to Zelman Decl. in Supp. ofPI. Objs.

("Civil Dep. Tr.")(Dkt. 66-1)20:21-24.) Civil explained that he knew the room was Plaintiffs
because (1) he had arrested Plaintiff in that room on two prior occasions and Plaintiff had been

"sleeping in the bed both times";(2)he knew the "whole setup of[Plaintiffs] room"; and
(3)Plaintiffs possessions, including his clothes, weights. Aero bed, and a "picture of him and a
girl" were in the room. (Id. 46:10-47:8, 71:4-22.) Based on these facts, the court finds that it
was reasonable for Civil to conclude that Plaintiff exercised dominion and control over the area

where the marijuana was found and, accordingly, that there was probable cause to believe that
Plaintiff constructively possessed the marijuana.

Chalmers. 73 F.3d at 1272.

Plaintiff challenges the veracity of Civil's testimony, arguing that:(1) Civil could not

recall "a litany of obvious facts" concerning the April 19,2013, arrest; and(2)the Original

Complaint, which was signed by Civil, contained false allegations against Plaintiff.^ fSee PI.

^ Plaintiff also argues that the sworn affidavit Civil had drafted in support ofthe search warrant did not identify
Plaintiff as a resident ofthe Apartment, indicating that Civil "knew or should have known that [P]laintiff no longer

resided in the [A]partment." ^1. Objs. at 8.) The fact that prior to executing the search warrant Civil supposedly
knew Plaintiff did not live in the Apartment does not negate the fact that upon executing the warrant. Civil

Objs. at 6.) Plaintiff argues that "[b]ased on these undisputed facts alone, ajury would be
entitled to find Civil's testimony incredible, and disregard Civil's professed recollections about
Plaintiffs belongings being inside the apartment." (Id at 7.)

The court finds that Plaintiffs attack on Civil's credibility does not create a genuine

dispute of material fact sufficient to defeat summaryjudgment. "Broad, conclusory attacks on
the credibility ofa witness will not, by themselves, present questions of material fact." Island
Software and Comput. Serv.. Inc. v. Microsoft Corp..413 F.3d 257, 261 (2d Cir. 2005). If a

defendant "has made a properly supported [summary judgment] motion,the plaintiff may not

respond simply with general attacks upon the defendant's credibility, but rather must identify
affirmative evidence from which ajury could find that the plaintiff has carried his or her
burden." Crawford-El v. Britton, 523 U.S. 574,600(1998)(emphasis added); see
McCullough V. Wvandanch Union Free Sch. Dist.. 187 F.3d 272,280(2d Cir. 1999)(holding

that a party cannot defeat summary judgment "merely by impugning [a witness]'s honesty").
Plaintiff has not identified facts or counter-evidence from which ajury could conclude

that Civil lacked knowledge to support a probable cause determination. To the contrary,Plaintiff
does not contest that Civil was present when Plaintiff was arrested at the Apartment on
November 28,2012, and December 13,2012. (Defs. 56.1

8,15; PI. 56.1 Counter Statement

8,15.) Plaintifffurther admits that(1)several of his possessions were in the Apartment on

April 19,2013;"^ and(2)he entered the Apartment after the search was complete and Civil then

discovered evidence suggesting that Plaintiff did in fact reside in the Apartment or, at the very least, exercised
dominion and control over the marijuana discovered therein.

Plaintiff argues that Civil "never mentioned observing a cat, a dog, or compact discs in the [A]partment"—^items
that Plaintiff admits he left in the Apartment. (PI. Objs. at 5.) He appears to suggest that because Civil did not
remember seeing these specific items, Civil's testimony that he recognized Plaintiffs clothes, sneakers, weights.
Aero bed, and photo is unbelievable. (See id. 5-6.) The court finds this argument unavailing. It is plausible that
Civil recognized some but not all ofPlaintiffs belongings.

10

arrested him. (Defs. 56.1

29,31, 32; PI. 56.1 Counter Statement

29, 31, 32.) As such,

Plaintiffs generalized attack on Civil's credibility is insufficient to create a dispute of material
fact.^

Accordingly, the court finds that the unconverted evidence establishes that Civil had

knowledge of sufficient facts which would lead a reasonable officer to believe there was
probable cause to arrest Plaintiff. The individual Defendants are therefore, at a minimum,

entitled to qualified immunity as to Plaintiffs false arrest claim.^ Jenkins, 478 F.3d at 87
(holding that qualified immunity is available to an officer accused offalse arrest where "it was

objectively reasonable for the officer to conclude that probable cause existed").^ Accordingly,
the court adopts Judge Gold's recommendation and grants summary judgment in favor of
Defendants on Plaintiffs false arrest claim. Plaintiffs Motion is denied as it relates to this
claim.
B. Malicious Prosecution

1. Legal Standard

To state a claim for malicious prosecution, a plaintiff is required to establish "(1)that the
defendant commenced or continued a criminal proceeding against him;(2)that the proceeding

^ Strikingly, Plaintiff simultaneously urges the court to find that a reasonable jury could believe Civil's testimony
that he did not have probable cause until Plaintiff entered the Apartment on April 19, 2013.(Id at 7.) Civil's
subjective belief as to whether, and at what point, he had probable cause to make the arrest is irrelevant, however.
See Jaeglv v. Couch.439 F.3d 149, 154(2d Cir. 2006)(holding that the probable cause inquiry is "objective rather
than subjective" and "depends upon the reasonable conclusion to be drawn from the facts known to the arresting
officer at the time ofthe arrest").

® The court adds that there is no record evidence that Jones or Denespolis were personally involved in Plaintiffs
arrest, a prerequisite to an award of damages under § 1983. See Farrell v. Burke. 449 F.3d 470,484(2d Cir. 2006).

'
"'Qualified immunity' protects an official from liability under federal causes of action but is not generally
understood to protect officials from claims based on state law." Id at 86. Notwithstanding,"a similar doctrine
exists under New York common-law" and because the individual Defendants are "entitled to qualified immunity

under federal law, summaryjudgment [is] similarly appropriate on [plaintiffs] state law false arrest claim." Id
at 86-87.

11

was terminated in the plaintiffs favor;(3)that there was no probable cause for the proceeding;
and (4)that the proceeding was instituted with malice." Kinzer v. Jackson, 316 F.3d 139, 143

(2d Cir. 2003). "A malicious prosecution claim can rest on a prosecution that is continued
notwithstanding the discovery ofinformation that exculpates the defendant[.]" Id at 143-44.
[E]ven when probable cause is present at the time ofarrest, evidence
could later surface which would eliminate that probable cause. In
order for probable cause to dissipate, the groundless nature of the
charge must be made apparent by the discovery ofsome intervening
fact.

Id. at 144 (citing Lowth v. Town of Cheektowaga. 82 F.3d 563,571 (intemal quotation marks
and citations omitted)). "[CJontinuing probable cause is a complete defense to a constitutional
claim of malicious prosecution," however. Betts v. Shearman. 751 F.3d 78,82(2d Cir. 2014).
2. Analvsis

Judge Gold recommends that Defendants' motion for summary judgment be granted as to
Plaintiffs malicious prosecution claim. (R&R at 12.) Judge Gold found that "Civil had ample
probable cause to attribute constructive possession ofthe marijuana he found in the [AJpartment

to [PJlaintiff, even though [PJlaintiff was not present in the [AJpartment when the marijuana was
discovered." (Id) He further noted that Plaintiff has not identified any facts that came out after
Plaintiff's arrest that dissipated that probable cause. (Id.)

Plaintiff objects to this portion ofthe R&R,arguing that Judge Gold "erred by conflating
the standard of probable cause to arrest with the standard of probable cause to prosecute." (PL
Objs. at 11.) Plaintiff avers that had Judge Gold "properly analyzed the malicious prosecution
standard, he would have concluded that there was no probable cause to believe the prosecution
would succeed when Civil knew that Plaintiff was not in the apartment when the officers arrived,

and falsely informed the District Attorney that [Plaintiff] was present." (Id.) In addition.
Plaintiff argues that there was no probable cause to believe that the Superseding Complaint

12

would succeed "where Civil falsely informed the District Attorney that the Plaintiff made an

incriminating statement, to wit 'see this is what happens when you let strangers into our
apartment.'" (Id at 12.)

The court reviews this portion ofthe R&R de novo. See 28 U.S.C. § 636(b)(1). At the

outset, the court notes that Plaintiff is correct that "the probable cause standard in the malicious

prosecution context is slightly higher than the standard for false arrest cases." Stansburv v.
Wertman.721 F.Bd 84,95(2d Cir. 2013). "Probable cause, in the context of malicious

prosecution, has ... been described as such facts and circumstances as would lead a reasonably
prudent person to believe the plaintiff guilty." Id (citing Bovd v. Citv of N.Y., 336 F.3d 72,76

(2d Cir. 2003)). Despite the revelation that Plaintiff was not in the Apartment during the search,
the court finds that there existed "continuing probable cause" supporting the continuing

prosecution ofPlaintiff.

Betts, 751 F.3d at 82. In reaching this holding, the court relies on

only the unconverted facts.^
Civil discovered marijuana in an area ofthe Apartment where items that he recognized as

Plaintiff's belongings were located and where, based on his two prior interactions with Plaintiff,
Civil believed Plaintiff slept. (Civil Dep. Tr. 20:21-24,46:10-47:8, 71:4-22.) Although Plaintiff
was not in the Apartment during the search, there is no dispute that he entered the Apartment
shortly thereafter, further linking Plaintiffto the area where the marijuana was found. The court
finds that these facts establish probable cause for the purpose of malicious prosecution. Plaintiff
has not identified any facts that negate this probable cause. As such,the court adopts this portion
of Judge Gold's R&R and grants summaryjudgment in favor of Defendants on Plaintiffs
malicious prosecution claim.

® Because the parties dispute whether Plaintiff actually made the alleged incriminating statement "see this is what
happens when you let strangers into our apartment," the court declines to consider it here. See Fed. R. Civ. P. 56(a).

13

C. Denial of a Fair Trial

1. Legal Standard

Claims of denial ofthe right to a fair trial "based on fabrication ofinformation" arise in
cases where "(1)[an]investigating official(2)fabricates information(3)that is likely to

influence ajury's verdict,(4)forwards that information to prosecutors, and(5)the plaintiff
suffers a deprivation oflife, liberty, or property as a result." Gamett v. Undercover Officer
C0039,838 F.3d 265,279(2d Cir. 2016)(describing the standard established in Ricciuti v.

N.Y.C. Transit Auth.. 124 F.3d 123(2d Cir. 1997)). "A plaintiff need not have been tried or
convicted to assert a fair trial claim, as the constitutional violation occurs when the false

information is transmitted to prosecutors." Nnodimele v. Derienzo, No. 13-CV-3461(ARR)

(RLM),2016 WL 337751 (E.D.N.Y. Jan. 27,2016)(citing Rkduti, 124 F.3d at 127,130). A

plaintiff must show that he suffered a deprivation of liberty "as a result" ofthe forwarded false
information. Gamett, 838 F.3d at 279 (citing Ricciuti, 124 F.3d at 123).

A "Section 1983 claim for the denial of a right to a fair trial based on an officer's

provision offalse information to prosecutors can stand even ifthe officer had probable cause"
for the arrest. Id at 277-78. Moreover, because "fabrication ofevidence violate[s] a 'clearly

established constitutional right,"' defendant "officers [are] not entitled to qualified immunity."
Id. at 276 (alteration omitted)(quoting Ricciuti, 124 F.3d at 130).
2. Analvsis

a. Fair Trial Claim Against Civil

Judge Gold recommends that both Cross-Motions for summaryjudgment as to Plaintiffs
fair trial claim against Civil be denied because Plaintiff"has raised a question offact with

respect to whether he suffered a deprivation ofliberty that was proximately caused by ... Civil's

14

allegedly false incriminating statements." (R&R at 18.) Specifically, Judge Gold found that
there is a factual question about(1)"whether the District Attorney would have decided to

prosecute [PJlaintiff absent the contested incriminating allegations in the two criminal
complaints"; and(2)whether the charges against Plaintiff would have been dismissed by the
state court earlier "ifthe original complaint had accurately reported when,in the sequence of
events,[P]laintiff arrived at the apartment." (Id at 16-17.)

Defendants object to this portion ofthe R&R,arguing that Civil's original false statement
and second allegedly false statement were immaterial to and did not cause the District Attorney's
Office (the "DA")to prosecute Plaintiff. (Defs. Objs. at 1.) In support ofthis argument.
Defendants assert that the DA continued to prosecute the case after the first false statement was

discovered. (Id) Defendants similarly argue that the second allegedly fabricated statement—

"see this is what happens when you let strange people into our apartment"—^was also immaterial
to the decision to arrest and prosecute Plaintiff. (Id at 2.) In Defendants' view,the decision to
arrest and prosecute Plaintiff was based on the officers' "undisputed observations and prior

experiences with plaintiff." (Id) In addition. Defendants assert that Judge Gold "engaged in
speculation by inferring that the charges may have been dismissed earlier had the Superseding
Criminal Complaint been filed initially" and this speculation created a factual question that does
not in fact exist. (Id)

Plaintiff also objects to this portion ofthe R&R,arguing that Judge Gold "conflated two
related, but critically distinct issues," i.e. the false statement in the Original Complaint and the
allegedly false statement in the Superseding Complaint. (R&R at 16.) He asserts that because
the false statement in the Original Complaint is admittedly untrue and Plaintiff sustained a

deprivation of liberty by making multiple court appearances over the course of a year based on

15

that false statement, Plaintiff is entitled to summary judgment on his fair trial claim, irrespective
ofthe second false statement, which Plaintiff admits is in dispute. (PL Objs. at 16,19.)

The court reviews this portion ofthe R&R de novo. 28 U.S.C. § 636(b)(1). The

undisputed facts establish that(1)on at least one occasion. Civil provided the DA with false

information;^ and(2)Plaintiff suffered a deprivation ofliberty.^® The parties' Cross-Motions for
summary judgment therefore turn on the question of causation—^that is, whether Plaintiffs
deprivation ofliberty came "as a result" of Civil's actions. Gamett,838 F.3d at 279. The court
determines that there is a genuine dispute as to key facts such that ajury could reasonably decide
either way on the question of causation. Summary judgment is therefore inappropriate.
Anderson. 477 U.S. at 252.

Defendants assert that the DA would have prosecuted Plaintiffs case absent the false
statement in the Original Complaint. They argue that the fact that the DA continued to prosecute
Plaintiff after the first false statement was discovered proves this point. Defendants' argument
ignores the possibility that the DA may have dropped the charges against Plaintiff v^thout the
second allegedly false statement. As such, a reasonable jury could find first, that the second
statement was false and second,that without the false statements,the charges against Plaintiff

would have been dropped by the DA and/or dismissed by the state court because there was
insufficient evidence ofPlaintiffs dominion and control over the marijuana. A reasonable jury
could also reach the opposite conclusion as to either question, and could believe that Plaintiffs

' parties agree that Civil signed the Original Complaint, which contained false information he provided to the
The
DA. CSee PI. 56.1
16.)

15,16; Defs. R. 56.1 Counter Statement("Defs. 56.1 Counter Statement")(Dkt.48)Tflf 15,

Defendants concede that Plaintiff was required to make at least four court appearances because ofthe charges
stemming from his April 19,2013, arrest. (See PI. 56.1 ^ 29; Defs. 56.1 Counter Statement ^ 29.) The Second
Circuit has "consistently held that a post-arraignment defendant who is 'obligated to appear in court in connection
with criminal charges whenever his attendance is required' suffers a Fourth Amendment deprivation of liberty."
Swartz V. Insoena. 704 F.3d 105, 112(2d Cir. 2013)(quoting Murohv v. Lvnn. 118 F.3d 938, 947(2d Cir. 1997)).

16

case was dismissed because the Superseding Complaint was facially insufficient and not, as
Plaintiff argues, dismissed on the merits.
Because there is sufficient evidence to allow a rational trier offact to find for Plaintiff or

Defendant on this claim, summary judgment is inappropriate.

Anderson. 477 U.S. at 255.

The court therefore denies the parties' Cross-Motions as to Plaintiffs fair trial claim against
Civil.

b. Fair Trial Claim Against Denesopolis and Jones
Judge Gold further recommends that Defendants' Motion be granted with respect to

Plaintiffs fair trial claim against Denesopolis and Jones because Plaintiff attributes the allegedly
false statements only to Civil and "has not presented any evidence suggesting that Denesopolis

or Jones had any role in fabricating any evidence." (R&R at 18.) Plaintiff objects to this portion
ofthe R&R,arguing that the evidence viewed in the light most favorable to Plaintiff establishes

that Denesopolis and Jones knew or should have known that Civil perjured himselfin violation
ofPlaintiffs civil rights. (PI. Objs. at 19-20.)

The court reviews this portion ofthe R&R de novo. See 28 U.S.C. § 636(b)(1). Even

assuming Plaintiff is correct that(1)Denesopolis and Jones were present for Plaintiffs arrest on

April 19,2013, and(2)Denespolis saw and approved Civil's paperwork, there is no record
evidence that either Denesopolis or Jones was involved in preparing the Original or Superseding
Complaint or that these officers were aware ofthe false statements made by Civil in those
complaints.

Accordingly,the court grants summary judgment in favor of Denesopolis and

"The so-called "collective knowledge doctrine" allows knowledge possessed by one police officer to be imputed to
others working on the same team,see United States v. Colon. 250 F.3d 130, 135(2d Cir. 2001), but this doctrine
"has traditionally been applied to assist officers in establishing probable cause—not to impute bad faith to one
member ofan enforcement team on the basis of another member's knowledge," Simone v. United States.
642 F. App'x 73, 75(2d Ch.2016)
(summaiy order)(quoting Savino v. Citv of New York. 331 F.3d 63,74
(2d Cir. 2003)).

17

Jones on Plaintiffs fair trial claim. See, e.g., Buie v. City ofN.Y.. No. 12-CV-4390(RJD)

(CLP),2015 WL 6620230, at *9(E.D.N.Y. Oct. 30,2015)(granting summary judgment on
denial of a fair trial claim in favor of detective where there w£is no record evidence that the

detective "was involved in preparing the criminal complaint," which allegedly contained false
information); Struthers v. Citv ofN.Y.. No. 12-CV-242(JG),2013 WL 2390721, at *13
(E.D.N.Y, May 31,2013)(granting summary judgment in favor of officer where there was no
record evidence that the officer was involved in preparing the criminal complaint that contained
allegedly fabricated information).
D. Failure to Intervene

1. Legal Standard

"A law enforcement officer has an affirmative duty to intercede on the behalf ofa citizen

whose constitutional rights are being violated in his presence by other officers." Porter v. Goord.
467 F. App'x 21,23(2d Cir. 2012)(summary order)(emphasis added)(quoting O'Neill v.
Krzeminski. 839 F.2d 9,11 (2d Cir. 1988)). "In order for liability to attach, there must have
been a realistic opportunity to intervene to prevent the harm from occurring," however.
Anderson v. Branen. 17 F.3d 552,557(2d Cir. 1994).
2, Analvsis

Judge Gold recommends that Defendants' Motion be granted as to Plaintiffs claims of
failure to intervene against Jones and Denespolis. (R&R at 20.) He determined that Plaintiff has

"failed to identify any evidence indicating that... Jones and Denespolis... were aware ofthe
false statements made by Civil in the two criminal complaints or that either ofthem had any

opportunity to correct those statements." (Id at 19.) Because Plaintiffs allegations concerning
Jones and Denespolis' supposed knowledge are "based on mere speculation," Judge Gold held

18

that these allegations are insufficient to support Plaintiffs claim that Jones and Denespolis
should be held liable for failing to intervene. (Id.)

Plaintiffs objections to this portion ofthe R&R are outlined supra in Section III.D.2.b.
The court overrules Plaintiffs objections for the same reasons outlined above and grants

Defendants' Motion with respect to Plaintiffs failure to intervene claim. Plaintiffs arguments

that Jones and Denespolis "should have" or "must have" known that Civil had allegedly violated
Plaintiffs rights are speculative and cannot defeat Defendants' Motion.
E. Excessive Pre-Arraignment Detention
1. Legal Standard

The Fourth Amendment requires ajudicial determination of probable cause "either before

or promptly after arrest." Gerstein v. Pugh,420 U.S. 103, 125 (1975). A determination of
probable cause made within 48 hours of arrest "will, as a general matter, comply with the

promptness requirement of Gerstein." Ctv. of Riverside v. McLaughlin. 500 U.S. 44,56(1991).
A delay of48 hours or less can be unreasonable, however,ifthe plaintiff demonstrates a delay
"for the purpose of gathering additional evidence to justify the delay, a delay motivated by ill
will against the arrested individual, or delay for delay's sake." Id.
2. Analvsis

Judge Gold recommends that the court grant Defendants' Motion with respect to

Plaintiffs excessive pre-arraignment detention claim because "Plaintiff has failed to identify any
evidence suggesting that his arraignment was unreasonably delayed." (R&R at 20-21.) Plaintiff
objects to this portion ofthe R&R,arguing that there exists a "substantial issue of material fact"

19

regarding whether his detention was unreasonable because Defendants lacked probable cause to
arrest him. (PI. Obj. at 22.)

Because Plaintiff simply reiterates arguments he already made in his opposition to
Defendants' Motion(s^ PI. Mem. at 29-30),the court reviews this portion ofthe R&R for clear
error.

Palh 249 F.R.D. at 51. Finding none,the court adopts Judge Gold's recommendation

and grants Defendants' Motion as to Plaintiffs excessive pre-arraignment detention claim.
F. Illegal Strip Search
1. Legal Standard

"[T]o bring an illegal strip search claim under Section 1983,'[i]t is well settled in this
Circuit that personal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.'" Anderson v. Citv of N.Y., 817 F. Supp. 2d
77,93(E.D.N.Y. 2011)fauoting Colon v. Coughlin. 58 F.3d 865,873(2d Cir. 1995).
Personal involvement can be shown by evidence that the defendant

'participated directly in the alleged constitutional violation'; or that
the defendant acted in a supervisory capacity by creating a policy or
custom under which violations occurred, by negligently supervising
subordinates,or by failing to act or remedy wrongs after being aware
ofthem.

Id.(quoting Coughlin, 58 F.3d at 873).
2. Analvsis

Judge Gold recommends granting summaryjudgment in favor of Defendants on
Plaintiffs strip search claim because Plaintiff is unable to identify the officers who participated
in the strip search, as is required to sustain a Section 1983 claim. (R&R at 21.) Plaintiff

objects to this portion ofthe R&R. (PI. Objs. 23-25.) He concedes that he cannot name the

Judge Gold determmed in the alternative that Plaintiffs claim fails because his arrest was supported by probable
cause. (R&R at 21.)

20

officers that personally subjected him to the search. tSee Defs. 56.1 H 37; PI. 56.1 Coimter

Statement ^ 37.) Nonetheless, he argues that Civil and Denespolis "proximately caused" him to
be strip searched and this is sufficient to impose liability. (PI. Objs. at 23-24.) In Plaintiffs
view. Civil arrested him and therefore "knew or should have known that it was standard

operating procedure to strip search persons arrested for drug offenses." (Id. at 24.) Moreover,
because strip searches have to be approved by a supervisor. Plaintiff argues that Denespolis,
CiviPs supervisor,"must have approved the strip search." (Id at 25.)
Because Plaintiffs objections simply reiterate arguments that were previously made in

support ofhis Motion fsee PI. Mem. UK 42-43), the court reviews this portion ofthe R&R for
clear error.

Pall Corp.. 249 F.R.D. at 51. The court finds that Plaintiffs speculative

allegations that Civil "should have known" Plaintiff was strip searched and Denespolis "must

have" approved the search(see PI. Objs. at 24-25) are insufficient for the claim to survive
summary judgment. Plaintiff has failed to put forth any evidence supporting either Civil or

Denespolis's alleged personal involvement in the strip search, not to mention evidence sufficient
to raise a triable issue offact. Finding no clear error in this portion ofthe R&R,the court adopts
Judge Gold's recommendation and grants Defendants' summary judgment motion as to
Plaintiff's illegal strip search claim.
G. Municipal Liability
1. Legal Standard

"A municipality may not be held liable under § 1983 solely on the basis of resnondeat
superiorf:! rather, to establish municipal liability,'a plaintiff must show that that the violation of
his constitutional rights resulted from a municipal custom or policy.'" McGee v. Doe.
568 F. App'x 32, 41 (2d Cir. 2014), as amended (July 2, 2014)(summary order)(quoting

21

DeCarlo v. Fry. 141 F.3d 56,61 (2d Cir. 199811: see also Monell v. Dep^t of Soc. Servs..
436 U.S. 658 (1978).

"[I]solated acts ... by non-policymaking municipal employees are generally not

sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal
liability." Jones v. Town ofE. Haven. 691 F.3d 72,81 (2d Cir. 2012) Cciting Villante v. Dep't.

of Corr.. 786 F.2d 516,519(2d Cir. 1986)). "[S]uch acts would justify liability," however, if

they "were sufficiently widespread and persistent to support a finding that they constituted a
custom, policy, or usage of which supervisory authorities must have been aware, or if a

municipal custom, policy, or usage would be inferred from evidence of deliberate indifference of
supervisory officials to such abuses." Id (emphasis added)(citing Amnesty Am. v. Town of W.
Hartford. 361 F.3d 113,125-26(2d Cir. 2004)).

"[A]local government's decision not to train certain employees about their legal duty to
avoid violating citizens' rights may rise to the level of an official government policy" only ifthe
failure to train "amount[s] to 'deliberate indifference to the rights ofpersons with whom the

[untrained employees] come into contact.'" Connick v. Thompson. 563 U.S. 51,61 (2011)
(second alteration in original)(quoting Canton v. Harris. 489 U.S. 378,388(1989)). "Only then
'can such a shortcoming be properly thought of as a city 'policy or custom' that is actionable
under § 1983.'" Id.(quoting Canton. 489 U.S. at 389). Deliberate indifference is a "'stringent
standard offault,"' which requires "'proof that a municipal actor disregarded a known or obvious

consequence'" ofthe particular failure in training. Id.(quoting Bd. of Ctv. Comm'rs v. Brown.
520 U.S. 397,410(1997)). "A pattern of similar constitutional violations by untrained
employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes offailure
to train." Id. at 62(quoting Brown. 520 U.S. at 409). The Supreme Court has cautioned that a

22

"municipality's culpability for a deprivation ofrights is at its most tenuous where a claim turns
on a failure to train." Id. at 61.
2. Analysis

In his Amended Complaint, Plaintiff asserts claims for municipal liability with respect to

his false arrest, malicious prosecution, failure to intervene, and pre-trial excessive detention
claims. (Am. Compl.

26-29, 38-42, 49-53,66-70; see also PI. Mem.K 45.) Judge Gold

recommends that this court grant Defendants' Motion with respect to all municipal liability

claims. (R&R at 22.) He first notes that Plaintiff has not alleged municipal liability with respect
to his fair trial claim—^the only claim that Judge Gold recommends should survive summary

judgment—and "[e]ven if[Pjlaintiff had asserted a claim for municipal liability in connection
with his fair trial cause of action,[he] would recommend that the claim be dismissed on

summary judgment." (Id.) Construing Plaintiffs claim as a failure to train claim. Judge Gold
found that the "sole evidence" submitted by Plaintiff iu opposition to Defendants' Motion on this

claim—a list of 31 civilian complaints and nine lawsuits brought against Civil—^was insufficient
to defeat Defendants' Motion. (Id. at 22-23.) He ruled that "[ajbsent substantiated prior

allegations of misconduct similar to [the misconduct] at issue here and evidence that responsible
supervisory officials failed to take appropriate responsive action,[P]laintiffs claims of
municipal liability cannot survive." (Id)

In objecting to this portion ofthe R&R,Plaintiff asserts that he "specifically alleged

municipal liability with respect to all causes of action," including with respect to his fair trial
claim. (PL Objs. at 25-26.) Plaintiff does not appear to object to Judge Gold's interpretation of
his claim against the City as one for "failure to train," however. With respect to that claim.
Plaintiff argues that the "sheer volume of complaints" against Civil "put the City on notice that

23

there was a possibility that Civil had violated civilians' civil rights, and whether the City failed

to effectively respond, were issues offact properly left to the jury." (Id at 27.) Plaintiff avers
that he is not required to show that the complaints were substantiated. (Id.)

Because Plaintiffsimply reiterates arguments he already made in his opposition to
Defendants' Motion (see PI. Mem.^ 44), the court reviews this portion ofthe R&R for clear
error.

PalL 249 F.R.D. at 51. As an initial matter, the court need only adjudicate whether

Plaintiff can sustain a claim for municipal liability in conjunction with his fair trial claim—^the

only claim that survives summary judgment. See Deraffele v. Citv ofNew Rochelle,
No. 15-CV-282(KMK),2016 WL 1274590, at *17(S.D.N.Y. Mar. 30, 2016)("It is well
established that a Monell claim cannot lie in the absence of an underlying constitutional

violation."(citing Segal v. Citv ofN.Y..459 F.3d 207,219(2d Cir. 2006)("Monell does not
provide a separate cause of action for the failure by the government to train its employees; it
extends liability to a municipal organization where that organization's failure to train, or the

policies or customs that it has sanctioned, led to an independent constitutional violation.")).
While Plaintiff has not expressly alleged municipal liability with respect to his fair trial claim, he
does refer to "Defendants" in his allegations, which plausibly could include the City. (See id.

74-75.) As such,the court will analyze the Monell claim as if it had properly been alleged.
The court finds that Judge Gold did not commit clear error in recommending that
Plaintiffs fair trial claim against the City be dismissed. The evidence in the record could not
lead a rational trier offact to find for Plaintiff on his failure to train claim, as the evidence is

insufficient to plausibly support an inference of deliberate indifference. While Plaintiff
submitted a list of complaints and lawsuits that have been filed against Civil, Plaintiff has not
provided any information as to the nature or substance ofthese complaints. Critically, Plaintiff

24

has not shown that the cited complaints relate to prior instances of similar misconduct, i.e.
peijury or fabrication of evidence.

Connick, 563 U.S. at 62(holding that "[a] pattern of

similar constitutional violations by untrained employees is ordinarily necessary to demonstrate

deliberate indifference for purposes offailure to train"(internal quotation marks and citation
omitted)(emphasis added)).

Moreover,Plaintiff has failed to put forth evidence that the City

ignored these complaints against Civil. Plaintiff points out that Civil testified before the Civilian
Complaint Review Board (the "CCRB")on multiple occasions but the CCRB only recommended
that disciplinary action be taken against him once. (See PL Objs. at 27; Civil Dep. Tr.) This
evidence does not, as Plaintiff suggests, establish that the City "failed to seriously investigate or

appropriately address the many complaints against Civil." (PI. Objs. at 27.) In fact, it tends to
show that the City confronted the allegations against Civil, as opposed to ignoring the

complaints, as Civil was called before the CCRB on numerous occasions.
In sum,the evidence in the record provides an insufficient basis for a reasonable jury to
fmd for Plaintiff on his municipal liability claim against the City.

Anderson,477 U.S.

Cf Strauss v. City of Chi.. 760 F.2d 765,768 69(7th Cir. 1985)("[T]he number of complaints filed, without
more,indicates nothing. People may file a complaint for many reasons, or for no reason at all.").
The court declines to decide whether evidence ofunsubstantiated complaints is sufficient to show deliberate
indifference in the context of a failure to train claim. Compare, e.g.. Fiacco v. City of Rensselaer. 783 F.2d at 328

("Whether or not the claims had validity, the very assertion ofa number ofsuch claims put the City on notice that
&ere was a possibility that its police officers had used excessive force. The City's knowledge ofthese allegations
and the nature and extent ofits efforts to investigate and record the claims were pertinent to Fiacco's contention that
the City had a policy of nonsupervision ofits policemen that reflected a deliberate indifference to their use of .
excessive force."), with, e.g.. Pacheco v. Citv of N.Y.. 234 F.R.D. 53, 55(E.D.N.Y. 2006)(holding that "it is
doubtful whether unsubstantiated instances of any kind of misconduct can ever be used to prove a Monell claim");
Frails v. Citv ofNew York. 236 F.R.D. 116, 118(E.D.N.Y. 2006)(holding that unsubstantiated allegations of
similar misconduct are unlikely to prove a Monell claim); Sealev v. Fishkin. No. 96-CV-6303(RR),
1998 WL 1021470, at *3(E.D.N.Y. Dec. 2, 1998)(holding that unsubstantiated allegations of misconduct do not
prove City's deliberate indifference^: Marcel v. Citv ofN.Y.. No. 88-CV-7017(LLS), 1990 WL 47689 at *9
(S.D.N.Y. Apr. 11,1990)("Unsubstantiated CCRB reports do not demonstrate a breach ofa municipality's duty to
train or supervise its police.").

25

at 252. Plaintiffs objections are therefore overruled and Judge Gold's recommendation is
adopted. Defendants' Motion is granted as to Plaintiffs municipal liability claims.
IV.

CONCLUSION

For the following reasons, Plaintiff and Defendants' objections are OVERRULED. The
R&R(Dkt. 59)is ADOPTED IN FULL. Defendants' Motion(Dkt. 39)is GRANTED IN PART
and DENIED IN PART. Plaintiffs Motion(Dkt. 43)is DENIED.

Plaintiffs false arrest, malicious prosecution, failure to intervene, illegal strip search, and
excessive pre-arraignment detention claims are DISMISSED in their entirety and as to all
Defendants. Plaintiffs denial of a fair trial claim is DISMISSED as it pertains to the City, Jones,

and Denespolis. The only claim that survives summaryjudgment is Plaintiffs denial of a fair
trial claim against Civil.

The court DIRECTS the parties to complete any remaining discovery and follow the
court's Individual Rules for pre-trial procedures.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

NICHOLAS G. GARAUHS
IICHOLAS

July ^,2017

United States District Judge

26