Jackson v. Nassau County et al

Filing 338

MEMORANDUM & ORDER granting in part and denying in part 288 Motion to Dismiss for Failure to State a Claim; For the reasons set forth herein, the County Defendants' motion is GRANTED in part and DENIED in part; and the Villages Defendants' motion is GRANTED. So Ordered by Judge Joanna Seybert on 7/28/2021. C/ECF (Valle, Christine)

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 1 of 72 PageID #: 2860

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JOSEPH JACKSON,
Plaintiff,

MEMORANDUM & ORDER
18-CV-3007(JS)(AKT)

-againstNASSAU COUNTY; THE INCORPORATED
VILLAGE OF FREEPORT; DETECTIVE
ROBERT DEMPSEY; DETECTIVE GARY
ABBONDANDELO; DETECTIVE JOHN M.
HOLLAND; DETECTIVE MICHAEL HERTS;
DETECTIVE MARTIN ALGER; POLICE
OFFICER ROBERT MELENDEZ; DETECTIVE
WALTER SWENSON; DETECTIVE ANTHONY
KOSIER; DETECTIVE SERGEANT DAN
SEVERIN; DORA MULLEN, AS
ADMINISTRATOR OF THE ESTATE OF JERL
MULLEN; JANE DOE, AS ADMINISTRATOR
OF THE ESTATE OF ARTHUR ZIMMER; and
JOHN and JANE DOE 1 through 20,

Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Gabriel Paul Harvis, Esq.
Baree N. Fett, Esq.
Elefterakis Elefterakis & Panek
80 Pine Street, 38th floor
New York, New York 10005
For Nassau
County Defendants:

For Village
of Freeport
Defendants:

Peter A. Meisels, Esq.
Janine A. Mastellone, Esq.
John Martin Flannery, Esq.
Lalit Kumar Loomba, Esq.
Allison Michelle Holubis, Esq.
Wilson Elser Moskowitz Edelman & Dicker
1133 Westchester Avenue
White Plains, New York 10604
Keith Michael Corbett, Esq.
Stephanie L. Tanzi, Esq.
Harris Beach PLLC
100 Wall Street, 23rd Floor
New York, New York 10005
1

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Plaintiff Joseph Jackson (“Plaintiff”) seeks damages
from the County of Nassau (the “County”), nine County detectives,
the Incorporated Village of Freeport (the “Village”), one Village
police

officer,

and

one

Village

detective

(collectively,

“Defendants”) for his alleged wrongful conviction and imprisonment
for murder.

In 2018, after more than twenty years in prison, the

Nassau County Conviction Integrity Unit (“CIU”) filed a motion to
vacate

Plaintiff’s

sentence,

Supreme Court granted.

which

motion

the

Nassau

County

Plaintiff subsequently filed this action,

alleging (1) nine federal causes of action, under 42 U.S.C. § 1983
(“Section 1983”), for malicious prosecution, denial of a fair
trial, Brady violations, coercion, supervisory liability, Monell
liability, conspiracy, failure to intervene, and prolonged pretrial

detention

against

various

individual

Defendants;

and

(2) three state law causes of action for malicious prosecution,
false imprisonment, and intentional and/or negligent infliction of
emotional distress against the County and Village.
Before this Court are the County Defendants’ partial
motion to dismiss (County Defs. Mot., ECF No. 288; County Defs.
Br., ECF No. 290; County Defs. Reply, ECF No. 308), and the Village
Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint
(Village Defs. Mot., ECF No. 291; Village Defs. Br., ECF No. 293;
Village Defs. Reply, ECF No. 306).
to both motions.

Plaintiff filed an opposition

(Pl. Opp. to Village Defs., ECF No. 300; Pl.
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Opp. to County Defs., ECF No. 301.)

For the reasons that follow,

the County Defendants’ motion is GRANTED in part and DENIED in
part; and the Villages Defendants’ motion is GRANTED.
BACKGROUND
I.

Factual History 1
A.

The Parties
At all relevant times, Plaintiff has been a resident of

Nassau County, New York.
No. 278, ¶ 12.)

(Second Amended Complaint (“SAC”), ECF

In addition to the County, Plaintiff names as

defendants the following individuals who served as detectives at
the County during the relevant period: Robert Dempsey (“Dempsey”);
Gary Abbondandelo (“Abbondandelo”); John M. Holland (“Holland”);
Michael Herts (“Herts”); Martin Alger (“Alger”); Walter Swenson
(“Swenson”); Anthony Kosier (“Kosier”); Dan Severin (“Severin”),
and Jerl Mullen (“Mullen”).

(Id. ¶ 16.)

Defendants Dempsey,

Abbondandelo, Holland, Herts, Alger, Swenson, Kosier, and Severin
are

sued

in

their

individual

capacity,

while

Mullen,

who

is

deceased, is being sued through the administrator of his estate,
Dora Mullen (the “Mullen Estate”).

(Id.)

The Court collectively

refers to these individuals as the “Individual County Defendants,”
and together with the County, the “County Defendants.”

For purposes of this Memorandum and Order, all facts are drawn
from the Second Amended Complaint and assumed to be true.
1

3

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In

addition

to

the

Village,

Plaintiff

names

as

defendants Robert Melendez (“Melendez”), a Village police officer
during the relevant period, and Arthur Zimmer (“Zimmer”), a Village
detective during the relevant period.

(Id. ¶ 15.)

Defendant

Melendez is being sued in his individual capacity, while Zimmer,
who

is

deceased,

is

being

sued

through

the

administrator of his estate (the “Zimmer Estate”).

unidentified
(Id.)

The

Court collectively refers to these individuals as the “Individual
Village Defendants,” and together with the Village, the “Village
Defendants.” 2
B.

The Murder of Steven Jason
This case arises from the murder of Steven Jason on March

20, 1994.

The following allegations are taken from Plaintiff’s

SAC:
In the early hours of March 20, 1994, Glenn Montes
(“Montes”) was driving his friend Maurice Larrea (“Larrea”), then
an off-duty New York Police Department (“NYPD”) officer, home from
a bachelor party they had attended that evening.

(SAC ¶¶ 21, 23.)

At approximately 2:00 a.m., while heading east on Sunrise Highway,
Montes observed two black men chasing Steven Jason in a parking
lot adjacent to a Blimpie’s restaurant on the corner of Sunrise
Highway and Guy Lombardo Avenue in Freeport, New York.
21.)

2

(Id. ¶

As Montes would later tell Individual County Defendant

Plaintiff also names John and Jane Doe Defendants.
4

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Holland, Jason reached the curb of Sunrise Highway and dove to the
ground, at which point Montes saw one of the men shoot him (the
“Montes Statement”).

(Id. ¶¶ 22, 42.)

Montes drove to a nearby payphone and Larrea stepped out
to call 911.

(Id. ¶ 25.)

After the call, Larrea encountered an

individual whom he believed to be the shooter running toward him
on the sidewalk of Sunrise Highway.

(Id. ¶ 27.)

Larrea drew his

firearm and ordered the suspected shooter to stop, calling out to
Montes, “that’s him, that’s the guy.”

(Id. ¶¶ 28-29.)

Montes

later stated that he is “100% sure” that the man Larrea stopped
was the shooter, whom he described as having a “dark brown face”
with “close cut dark short hair” and standing approximately 5’9”
to 5’10”.

(Id. ¶¶ 30, 32.)
The shooter dashed across Sunrise Highway and headed

north, with Larrea and Montes, still in his car, in pursuit.
¶ 33.)

(Id.

As they pursued the shooter, Larrea encountered Individual

Village Defendant Melendez, whom Larrea knew from growing up in
Freeport.

(Id. ¶ 34.)

locate the shooter.

The trio canvassed the area but could not

(Id. ¶ 35.)

Montes and Larrea returned to

the crime scene before proceeding to the Village Police Station,
where they remained until after 5:00 a.m.

(Id. ¶ 36.)

At least four other individuals were in the vicinity of
the shooting: Skwanitra Witherspoon (“Witherspoon”), Elisa Valdez
(“Valdez”) and her boyfriend, and Peddie Baldwin (“Baldwin”).
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First, Witherspoon was “in the vicinity of the shooting” and
provided an account of the incident to Individual County Defendants
Abbondandelo, Dempsey, and Mullen.

(Id. ¶¶ 45-47.)

identified Plaintiff as the shooter.
Plaintiff

alleges

that

She also

(See id. ¶¶ 102, 134.)

Abbondandelo,

Dempsey,

and

Mullen

“corrupted” the Witherspoon account “to suggest that Witherspoon
had been the sole eyewitness” of the shooting.

(Id. ¶¶ 45-47.)

Second, Valdez reported to Individual County Defendant Swenson
that “she and her boyfriend had heard shots fired and seen an
automobile in pursuit of a male suspect heading Northbound” the
night of the shooting (the “Valdez Statement”).

(Id. ¶ 48.)

Last,

Baldwin provided a recorded statement to Village Defendant Zimmer
(the “Zimmer-Baldwin Interview”).

(Id. ¶ 50.)

Plaintiff alleges

Baldwin was a “potential eyewitness to the homicide” who provided
“several leads that support [P]laintiff’s innocence” and described
the perpetrator as a 5’8” Puerto Rican.
C.

(Id. ¶ 51.)

The Investigation
As noted, Larrea “was acquainted with more than a half

dozen of the Village officers who responded to the Steven Jason
homicide.”
informed

(Id. ¶ 37.)
“multiple

While at the station, Larrea apparently

officers,”

including

Individual

Village

Defendant Melendez and Individual County Defendants Severin and
Herts,

who

took

Larrea’s

statement

that

night

(the

“Larrea

Statement”), that he was intoxicated that evening; in a call to
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his NYPD supervisors, however, Larrea stated that he was sober
when he drew his weapon.

(Id. ¶¶ 38, 40.)

The effort to cover up

Larrea’s intoxication and subsequent misrepresentation to his NYPD
supervisors is the driving force behind the SAC’s allegations of
wide-ranging police misconduct.

Because “it would have been

catastrophic for the budding law enforcement career of their
friend, off-duty Officer Larrea, if the NYPD was [sic] to learn
that Larrea had drawn his firearm while intoxicated and then lied
about it to commanding officers” (id. ¶ 41), Plaintiff claims that
Defendants
Larrea’s

(1) concealed
intoxication

evidence

and

that

might

(2) corrupted

have

the

revealed

statements

of

Witherspoon and Peddie Jenkins (“Jenkins”), Plaintiff’s cousin, to
facilitate the development of a theory of the crime that was at
odds with the accounts provided by Montes, Larrea and Valdez.
Plaintiff alleges four categories of concealed evidence.
First, Plaintiff alleges Individual County Defendants Herts and
Severin “altered the official narrative of the crime to omit any
reference to Montes, Larrea or the 911 call.”

(Id. ¶ 43.)

In

support of this allegation, Plaintiff points to the official
“Morning

Report,”

prepared

by

Severin,

Herts,

and

other

unidentified individuals the morning of the shooting, which made
no mention of the Montes and Larrea Statements.
Second,

Plaintiff

Abbondandelo,

alleges

Dempsey,

and

Individual
Mullen
7

County

corrupted

the

(Id. ¶ 44.)
Defendants
account

of

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Witherspoon

the

sole

eyewitness and had identified plaintiff as the perpetrator.”

(Id.

¶ 45.)

“to

suggest

that

Witherspoon

had

been

Third, Plaintiff alleges Individual County Defendant

Swenson “concealed the existence of Ms. Valdez” and her boyfriend,
whose account was consistent with the accounts provided by Montes
and Larrea.

(Id. ¶ 48-49.)

Last, Plaintiff alleges the Zimmer-

Baldwin Interview recording, dated June 6, 1994, was suppressed
and concealed.

(Id. ¶ 50.)

According to Plaintiff, Baldwin

described the perpetrator as a 5’8” Puerto Rican, but at the time
of the shooting, Plaintiff was a six-foot tall, light-skinned
African American with dreadlocks.

(Id. ¶ 53.)

Relatedly, Plaintiff alleges that Alger, Abbondandelo,
Mullen, Herts, Dempsey, and Swenson attempted to persuade Richard
“Woody” Miller, “a barber,” and brothers Tyrone and Roy Isaac to
falsely implicate Plaintiff as the murderer but, realizing their
testimony exonerated Plaintiff, suppressed it.

(Id. ¶¶ 64-65.)

The SAC does not provide any background on these individuals, such
as their connection to the shooting, let alone describe their
allegedly exculpatory statements.
Plaintiff further alleges Individual County Defendants
Mullen, Abbondandelo, Dempsey, and Alger “corruptly coordinated
the

accounts

manufacture

of

the

perpetrator.”

Peddie

Jenkins

identification

(Id. ¶ 60.)

and
of

Skwanitra

[Plaintiff]

Witherspoon
as

the

to

alleged

He claims that, in or about October
8

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1994, Peddie Jenkins, who is approximately 5’8” with darker skin,
was reported to police after he was overheard bragging that he had
been involved in the murder of Steven Jason.

(Id. ¶ 56.)

Jenkins

was arrested and provided a statement to Dempsey, Mullen, and
Abbondandelo on November 15, 1994.

(Id. ¶ 57.)

In his first

statement, Jenkins admitted that he “personally facilitated” the
murder and fled northbound on foot after the shooting, consistent
with the shooter’s direction reported by Montes, Larrea, and
Valdez.

(Id. ¶¶ 58-59.)

Rather than consult Montes and Larrea,

however, Plaintiff alleges that on November 18, 1994, Dempsey,
Mullen, Abbondandelo, and Alger “caused Peddie Jenkins to prepare
a second” statement that provided a wholly different account. (Id.
¶¶

60-62.)

allegation
exchange

In
that

for

his
he

second

observed

including

this

statement,
Plaintiff

Jenkins
commit

allegation,

D.

the

Jenkins

favorable sentence in a pending criminal case.

included

the

murder;

in

received

a

(Id. ¶ 63.)

Plaintiff’s Interrogation and Conviction
On December 17, 1994, Plaintiff was arrested and brought

to the Nassau County Homicide squad for interrogation by Dempsey,
Abbondandelo, Kosier, and Mullen.

(Id. ¶ 66.)

Plaintiff alleges

that “those defendants knew that [P]laintiff was represented by
counsel,” but nevertheless acted to deny Plaintiff his right to
counsel. (Id. ¶ 67.) Moreover, Plaintiff claims Individual County
Defendant Severin “provided false information to [Plaintiff’s]
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relatives while he was in custody to prevent them from learning
his whereabouts and obtaining counsel for him.”

(Id. ¶ 68.)

During his interrogation, which Plaintiff avers lasted
“thirty-nine

hours,”

Plaintiff

alleges

Dempsey,

Mullen,

and

Abbondandelo beat, threatened, and lied 3 to Plaintiff to coerce
him to sign a false confession written by Dempsey.

(Id. ¶ 69.)

He was forced to spend “several hours in a frigid interrogation
room while stripped to his underwear.”

(Id. ¶ 70.)

According to

Plaintiff, the allegedly false confession was contradicted by the
information provided by Larrea, Montes, Valdez, and “the polygraph
results of Takita Dorsey who, according to the false confession,
was a key player in the murder conspiracy.”
Plaintiff

provides

no

further

information

(Id. ¶¶ 71-74.)

regarding

Dorsey’s

involvement in the shooting or the polygraph results.
Following a jury trial in Nassau County, on December 9,
1996,

Plaintiff

was

convicted

of

second-degree

murder;

intimidating a victim or witness in the first degree; and hindering
prosecution in the second degree.

(Id. ¶ 105.)

Plaintiff was

sentenced to twenty-five years to life on the murder count and to
lesser sentences on the other charges.
with

his

trial,

Plaintiff

alleges

(Id. ¶ 106.)
that

In connection

Defendants

failed

to

disclose to him or prosecutors: the Montes and Larrea Statements;

The SAC alleges Kosier lied to Plaintiff but does not allege he
beat or threatened Plaintiff.
3

10

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evidence of Larrea’s 911 call; the Valdez Statement; the recorded
Baldwin-Zimmer
Plaintiff’s

Interview;
statement,

and

that

caused

Defendants

his

had

coerced

misidentification

by

Witherspoon, and fabricated inculpatory evidence from Jenkins.
(Id. ¶ 102.)
E.

Plaintiff is Exonerated
In 2017, at Plaintiff’s request, the Nassau County CIU

investigated Plaintiff’s case and confirmed that the Montes and
Larrea Statements had been suppressed but had been maintained in
the files of both the Village and County police departments.
¶

107.)

As

a

result,

the

CIU

moved

to

vacate

(Id.

Plaintiff’s

conviction, and on February 16, 2018, the Nassau County Supreme
Court vacated the conviction pursuant to New York Penal Code
§ 441.10(1)(h) and dismissed the indictment.

(Id. ¶ 109-11; Mot.

Vacate Hr’g, Loomba Decl., Ex. F, ECF No. 289-6.)

At the time of

his release, Plaintiff had served twenty-three years and two months
in custody.
F.

(SAC ¶ 112.)

Broader Allegations of Defendants’ Misconduct
The SAC includes allegations of prior similar misconduct

by certain Individual County Defendants.

First, Plaintiff alleges

the County failed to investigate or discipline Individual County
Defendant Dempsey for past instances of coercive interrogation
tactics and evidence fabrication.
claims the

County

and

Village

(Id. ¶¶ 76-88.)
Defendants

11

were

Plaintiff also
aware

of,

but

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 12 of 72 PageID #: 2871

ignored,

unconstitutional

customs,

policies

and

practices,

including “failing to conduct reasonable criminal investigations,
conducting unconstitutional interrogations, fabricating evidence
including

confessions

committing

perjury,

and

evidence

failing

to

supporting

investigate

probable
alibi

cause,

evidence,

coercing confessions, failing to disclose exculpatory evidence and
covering up this unconstitutional misconduct.”
Plaintiff

further

alleges

Defendants

and

(Id. ¶ 116.)
the

individual

supervisors in this case failed to adequately screen, train, or
supervise subordinates.
II.

(Id. ¶¶ 117-18.)

Procedural History
Plaintiff initiated this action on May 22, 2018, against

the

County,

Village,

(Compl., ECF No. 1.)

and

forty-two

individual

defendants.

At a January 16, 2019 pre-motion conference,

this Court directed the parties to meet and confer regarding
limiting the number of claims and defendants in the action.

(See

Min. Entry, ECF No. 159.) Consistent with the Court’s instruction,
Plaintiff filed an amended complaint on March 8, 2019 (see ECF No.
162), and the parties fully briefed Defendants’ respective motions
to dismiss.
On November 21, 2019, and again on February 25, 2020,
Plaintiff filed a motion seeking leave to file a second amended
complaint,

which

Defendants

opposed.

The

Court

granted

Plaintiff’s motion and directed the parties to discuss a briefing
12

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schedule on any renewed motions to dismiss the SAC at a March 6,
2020 status conference before Magistrate Judge Tomlinson.
26, 2020 Elec. Order.)

(Feb.

Following the status conference, which

stayed all party depositions pending resolution of Defendants’
anticipated motions to dismiss, Plaintiff filed his SAC.

(See

SAC, ECF No. 278.)
The SAC alleges twelve causes of action: (1) malicious
prosecution as against Abbondandelo, Dempsey, Mullen, and Severin
(Claim 1); (2) fabrication of evidence / denial of a fair trial as
against Abbondandelo, Dempsey, Mullen and Severin, Alger, and
Kosier (Claim 2); (3) coercion as against Abbondandelo, Dempsey,
Mullen, Kosier (Claim 3); (4) supervisory liability as against
Severin and Doe Defendants #1-20 (Claim 4); (5) Monell liability
as

against

the

County

and

Village

(Claim

5);

(6) malicious

prosecution in violation of New York law as against the County and
Village (Claim 6); (7) false imprisonment in violation of New York
law as against the County and Village (Claim 7); (8) intentional
or negligent infliction of emotional distress as against the County
and Village (Claim 8); (9) conspiracy as against the Individual
County and Individual Village Defendants (Claim 9); (10) evidence
suppression, Brady violations, spoliation and denial of access to
courts as against the Individual County and Individual Village
Defendants

(Claim

10);

(11) unlawful

pre-trial

detention

as

against the Individual County and Individual Village Defendants
13

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(Claim 11); and (12) failure to intervene as against the Individual
County and Individual Village Defendants (Claim 12).
The County Defendants filed a partial motion to dismiss
the

SAC,

specifically

moving

to

dismiss:

(1) the

malicious

prosecution claims arising under Section 1983 and New York law;
(2) the fabrication of evidence claim as against Severin and Alger;
(3) the coercion claim as against Kosier; (4) the supervisory
liability claim; (5) the Monell liability claim; (6) the false
imprisonment claim; (7) the intentional or negligent infliction of
emotional distress claims; (8) the evidence suppression claim;
(9) the unlawful pre-trial detention claim; (10) the failure to
intervene claim; and (11) all claims against the Mullen Estate.
Plaintiff opposes that motion.

The Village Defendants filed a

motion to dismiss all claims asserted against them, which Plaintiff
opposes.
DISCUSSION
I.

Legal Standard
To withstand a motion to dismiss, a complaint must

contain factual allegations that “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

A claim is plausible on its face “when the plaintiff

pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
14

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Id. (citing Twombly, 550 U.S. at 556).

This plausibility standard

is not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.”

Id. (internal

quotation marks and citation omitted). “While a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of
his

entitlement

to

relief

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
Moreover,

the

Court

is

Twombly, 550 U.S. at 555 (cleaned up).
“not

required

to

credit

conclusory

allegations or legal conclusions couched as factual allegations.”
Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019)
(quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)).

At

this stage, the Court’s role is “not to weigh the evidence that
might be presented at trial but merely to determine whether the
complaint itself is legally sufficient.”

Bertuglia v. City of New

York, 839 F. Supp. 2d 703, 713 (S.D.N.Y. 2012) (quoting Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985)).
II.

Analysis
A.

Consideration of Plaintiff’s and County Defendant’s
Exhibits
The

County

Defendants

ask

the

Court

to

dismiss

Plaintiff’s SAC under Rule 8(a) or, in the alternative and pursuant
to Rule 10(c) and/or Rule 12(f), strike certain exhibits Plaintiff
appended to his SAC. The ground for the County Defendant’s request
15

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is

paragraph

20

of

the

SAC,

which

Plaintiff appended to his SAC.

lists

fifty-six

exhibits

According to Plaintiff, these

exhibits were filed in connection with his pending claim for unjust
conviction in the New York State Court of Claims.
County Defs. at 8.)

(Pl. Opp. to

Included in the exhibits are dozens of sworn

statements and records made in connection with the underlying
investigation into the death of Steven Jason, depositions of Montes
and Larrea from February 2020, as well as “news articles” and
filings in unrelated actions, among other documents.
Relatedly, in an apparent effort to counter Plaintiff’s
factual allegations, the County Defendants filed a declaration in
support of their motion that attaches eighteen exhibits, ---i.e.,
(1) a certificate of conviction of Plaintiff’s narcotics charge
related to his sale of cocaine on or about August 9, 1993 (“Ex.
A”); (2) the Village Incident Report (“Ex. B”); (3) Plaintiff’s
FOIL request to the Nassau County District Attorney’s Office, dated
June 25 2007 (“Ex. C”); (4) a notice of motion and affirmation
filed by Plaintiff’s attorney in support of his motion to vacate
his conviction (“Ex. D”); (5) a notice of motion filed by the
Nassau County District Attorney’s Office to vacate Plaintiff’s
conviction (“Ex. E”); (6) the transcript of proceedings before the
Nassau

County

Supreme

Court

on

February

16,

2018

(“Ex.

F”);

(7) Plaintiff’s SAC (“Ex. G”); (8) the Montes Statement (“Ex. H”);
(9) the four statements Witherspoon provided investigators (“Ex.
16

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I”); (10) the March 20, 1994, statement of Martha Campbell provided
to investigators, which was referenced in Plaintiff’s amended
complaint but omitted from the SAC (“Ex. J”); (11) the “relevant”
pages from Larrea’s February 6, 2020 deposition (“Ex. K”); (12) the
Larrea Statement (“Ex. L”); (13) the “relevant” pages from Montes’
February 6, 2020 deposition (“Ex. M”); (14) a note reflecting a
conversation
“relevant”

between
pages

Swenson

from

and

Valdez

Witherspoon’s

(“Ex.

N”);

testimony

(15) the

provided

in

Plaintiff’s underlying criminal trial (“Ex. O”); (16) the final
account of the Mullen Estate received from the Estates Division of
the Wake County Superior Court in North Carolina (“Ex. P.”);
(17) the Affidavit of Publisher and Notice to Creditors for the
Mullen Estate, published in The Wake Weekly (“Ex. Q”); and (18) the
“relevant” pages from the testimony Abbondandelo provided at the
suppression hearing held in Plaintiff’s underlying criminal case
(See generally, Loomba Decl., ECF No. 289. 4)

(“Ex. R”).

The

County Defendants ask the Court to take judicial notice of these
documents

or,

for

certain

documents,

contend

that

they

are

referenced in and integral to the Amended Complaint or SAC.
Accordingly, the Court first addresses the scope of
materials

it

is

permitted

to

consider

in

connection

with

Defendants’ motions to dismiss.

The attached exhibits are found at ECF Nos. 289-1 through 28924, respectively. Hereafter, the Court will simply cite to the
relevant exhibits by their identified letters.

4

17

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1.

Applicable Law

The

Court

begins

Procedure (the “Rules”).

with

the

Federal

Rules

of

Civil

Rule 8(a) requires “a short and plain

statement of the claim showing that the pleader is entitled to
relief.”
attached

Rule 10(c) elaborates that any “written instrument”
as

complaint.

an

exhibit

to

a

complaint

is

also

part

of

the

Last, Rule 12(f) empowers the Court to strike from a

complaint “any redundant, immaterial, impertinent, or scandalous
matter.”
The Second Circuit has provided district courts with
guidance as to the universe of documents they should consider when
resolving a motion to dismiss.

At this stage, a court’s task “is

to assess the legal feasibility of the complaint; it is not to
assess the weight of the evidence that might be offered on either
side.”

Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020).

“The purpose of Rule 12(b)(6) is to test, in a streamlined fashion,
the formal sufficiency of the plaintiff’s statement of a claim for
relief
merits.

without

resolving

a

contest

regarding

its

substantive

The Rule thus assesses the legal feasibility of the

complaint, but does not weigh the evidence that might be offered
to support it.”

Global Network Commc’ns, Inc. v. City of New York,

458 F.3d 150, 155 (2d Cir. 2006) (emphasis in original).

As Global

Network explained, a motion for summary judgment, rather than a
motion to dismiss, “is the proper procedural device to consider
18

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matters

outside

discovery,

the

pleadings,

depositions,

such

affidavits,

relevant form of evidence.”

Id.

as

facts

statements,

unearthed
and

any

in

other

To the extent matters outside

the pleadings are considered by the court, the proper course is to
convert the motion to one for summary judgment under Rule 12(d).
FED. R. CIV. P. 12(d).
Thus, on a motion to dismiss, the court limits its
inquiry to the legal feasibility of the pleadings.

“[A] pleading

is deemed to include any ‘written instrument’ that is attached to
it as ‘an exhibit,’ or is incorporated in it by reference.”

Lynch,

952 F.3d at 79 (internal citations omitted). As the Second Circuit
explained
refers

to

in
a

Lynch,

“The

‘legal

term

document

‘written
that

instrument’

defines

rights,

generally
duties,

entitlements, or liabilities, such as a statute, contract, will,
promissory note, or share certificate.’”

Id. (citing Smith v.

Hogan, 794 F.3d 249, 254 (2d Cir. 2015) (quoting BLACK'S LAW DICTIONARY
(10th ed. 2014))).

Nevertheless, even when a plaintiff chooses

not to attach a written instrument as an exhibit or incorporate it
by reference, “if it is one ‘upon which’ the plaintiff ‘solely
relies and which is integral to the complaint,’ the court may take
the document into consideration in deciding the defendant’s motion
to dismiss.”

Doe v. New York Univ., No. 20-CV-01343, 2021 WL

1226384, at *11 (S.D.N.Y. Mar. 31, 2021) (quoting Lynch, 952 F.3d
at 79); see also Global Network, 458 F.3d at 156; DiFolco v. MSNBC
19

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Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010).

Moreover, “[a] court

may take judicial notice of a document filed in another court not
for the truth of the matters asserted in the other litigation, but
rather

to

filings.”

establish

the

fact

of

such

litigation

and

related

Global Network, 458 F.3d at 157 (quoting Int’l Star

Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d
66, 70 (2d Cir. 1998)).
Typically, this type of dispute arises when a defendant
asks the court to consider exhibits attached to its motion to
dismiss.

See, e.g., Doe, 2021 WL 1226384, at *9-15.

But the

dispute can also arise when a plaintiff attaches materials to his
complaint.

For example, in Smith v. Hogan, the Second Circuit

affirmed a district court’s decision to not consider an affidavit
contained in 170 pages of exhibits attached to the plaintiff’s
complaint, finding the affidavit was not a written instrument
within the meaning of Rule 10(c), “or otherwise properly considered
to be part of the complaint,” and reasoning that deeming the
affidavit part of the complaint “would do considerable damage to
Rule

8(a)’s

notice

requirement”

and

render

the

ability

of

defendants and the courts to determine what the complaint plausibly
alleges “a needlessly complicated adventure.”

794 F.3d at 254-

55.
It is true that the Smith panel acknowledged that it
“has permitted the consideration of other documents, apart from
20

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written instruments under Rule 10(c), at the motion to dismiss
stage,” and appeared particularly troubled that the plaintiff
“never even mentioned” the affidavit in his complaint.
254-55.

Id. at

However, more recently, another panel of the Second

Circuit held that a document cannot be considered “integral” to
the complaint unless it is a written instrument.
F.3d at 78.

See Lynch, 952

In Lynch, the Second Circuit had to decide whether a

memo book maintained by one of the defendants could be considered
“integral” to the complaint in that case.

Id.

There, the

plaintiff argued that one of the allegations in the plaintiff’s
amended complaint was based on an entry in the memo book.

Id.

The Lynch Court acknowledged that the plaintiff had relied on the
memo book entry in drafting his amended complaint, but nevertheless
concluded that it was not “integral” to the pleading because it
was not a “written instrument.”

Id. at 79; see also Madej v. Yale

Univ., No. 20-CV-0133, 2021 WL 148888, at *5 (D. Conn. Jan. 15,
2021)

(recognizing

Lynch

further

constrained

the

universe

of

documents district courts may consider on a motion to dismiss);
Doe, 2021 WL 1226384, at *10-12 (discussing Lynch). 5

While it is true that the Lynch panel did not explicitly disavow
other Circuit Court panel decisions using broader language to
describe the universe of documents that can be considered integral
to a complaint, as District Judge Woods noted in his opinion
recognizing Lynch’s impact, neither has the Second Circuit
published an opinion in which it “embraced as ‘integral’ a document
that cannot reasonably be characterized as a written instrument.”
Doe, 2021 WL 1226384, at 11, n.6 (collecting cases).
5

21

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In sum, and as Lynch instructs, at the pleading stage
the Court considers the SAC and any written instrument attached to
it as an exhibit, incorporated to it by reference, or integral to
Plaintiff’s allegations.

Doing so will enable the Court to assess

the feasibility of the SAC without weighing the evidence that may
support or undermine it.
2.

Application to SAC

Turning to the fifty-six exhibits Plaintiff has attached
to his SAC, the Court finds that they are not written instruments
properly attached or incorporated to the pleading, as they do not
define rights, duties, entitlements, or liabilities.

Rather, as

summarized supra, the exhibits consist of materials related to the
investigation into the death of Steven Jason and Plaintiff’s
underlying conviction, as well as news articles and documents filed
in separate court proceedings.

Plaintiff agrees, stating that he

will “gladly remove[] the exhibit list and references” from the
SAC.

(Pl. Opp. to County Defs. at 8 (further contending that the

exhibit materials are “uniformly relevant” at the summary judgment
stage).)

While Plaintiff is entitled to rely on these materials

in drafting his pleading, permitting Plaintiff to attach them as
exhibits

would

render

Rule

10(c)’s

“written

instrument”

requirement meaningless and raise the concerns identified by the
Second Circuit in Smith.

22

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3.

Application to the County Defendants’ Exhibits

As to the eighteen exhibits attached to the County
Defendants’ motion to dismiss, the Court finds that the majority
of them are not written instruments and, therefore, cannot be
considered at this stage, even acknowledging that Plaintiff has
relied on many of the documents in drafting his SAC.

See Madej,

2021 WL 148888, at *5 (“[T]he incorporation-by-reference exception
is not a mechanism for responding to all situations where a
plaintiff
Rather,

withholds
the

complaints

damaging

exception

invulnerable

information

prevents
to

from

plaintiffs

Rule

12(b)(6)

a

complaint.

from

generating

only

in

certain

situations, e.g., when plaintiffs have selectively quoted from
certain types of written instruments.

In many circumstances, the

proper recourse for a complaint that withholds other types of
information
discovery.”)

is

to

move

for

summary

judgment,

following

The County Defendants’ purpose in presenting this

volume of evidence in this context is clear: they ask the Court to
consider the evidence that was before the County when investigating
Steven Jason’s murder, to weigh that evidence, and to conclude
that the evidence contradicts Plaintiff’s allegations that, for
example, the County lacked probable cause to prosecute him.
Doe, 2021 WL 1226384, at *12.

Cf.

This is an invitation to error.

See Global Network, 458 F.3d at 156; cf. Shakespeare v. Compu-Link
Corp., 848 F. App’x 474, 475-76 (2d Cir. 2021) (vacating district
23

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court dismissal order for erroneously relying on materials outside
the pleadings “to draw inferences against [plaintiff] and resolve
factual disputes”); Lively v. WAFRA Investment Advisory Group,
Inc.,

2021

WL

3118943,

at

*6-7

(2d

Cir.

July

23,

2021)

(disapproving of the district court’s consideration of materials
outside the pleadings).
Even if the Court were to consider any “document” -rather than “written instrument” -- integral to the SAC under
caselaw predating Lynch, many of the County Defendants’ attached
exhibits still fail to meet that standard. For example, the County
Defendants reference Larrea’s deposition testimony that he did not
recall whether he called 911 or some other number after witnessing
the shooting (Ex. L) to cast doubt on Plaintiff’s allegation that
the County Defendants concealed the evidence of any such call.
(See County Defs. Br. at 7, 29; SAC ¶ 47.)

But “the argument that

a court can rely on previous testimony on a motion to dismiss for
the purpose of contradicting facts asserted in the complaint was
explicitly rejected by the Second Circuit in [Global Network].”
Johnson v. Levy, 812 F. Supp. 2d 167, 176 (E.D.N.Y. 2011).
Global

Network,

the

district

court

dismissed

the

In

plaintiff’s

complaint, relying, in part, on the testimony of the plaintiff’s
sole shareholder and president in an unrelated criminal matter.
Global Network, 458 F.3d at 153-54.

The Second Circuit reversed,

because “not only did the district court consider external material
24

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in its ruling, it relied on those materials to make a finding of
fact that controverted the plaintiff’s own factual assertions set
out

in

its

complaint.”

Id.

at

156

(emphasis

in

original).

Similarly, here, the County Defendants ask this Court to rely on
Larrea’s deposition testimony, which is by no means unambiguous,
to controvert Plaintiff’s allegation that Larrea called 911 the
night of the shooting.

In the same vein, the County Defendants

rely on Witherspoon’s statements and testimony at Plaintiff’s
underlying criminal trial to bolster their claim that they had
probable cause to prosecute Plaintiff.
19-20; Loomba Decl., Exs. I, O.)

(See County Defs. Br. at

At this stage, however, the Court

declines to consider these external materials to controvert the
factual assertions set forth in Plaintiff’s SAC.

The external

materials are not written instruments, see Lynch, 952 F.3d at 7879; they are not integral to the SAC under pre-Lynch case law, see
Joyner v. County of Cayuga, No. 20-CV-0060, 2020 WL 1904088, at *3
(N.D.N.Y. Apr. 17, 2020) (declining to consider police reports at
motion to dismiss stage and adopting the “better view . . . adopted
by a majority of courts in our Circuit, . . . that these kinds of
police records are not ‘integral’ to a false arrest complaint,”
because

“[t]o

accept

the

truth

of

the

documents

offered

by

Defendants at this stage would amount to a premature determination
that

the

arresting

officers

and

the

alleged

victim

are

more

credible than Plaintiff”); and, to the extent argued, the Court
25

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cannot take judicial notice of their content for the truth of the
matters asserted therein, see Global Network, 458 F.3d at 157.
Indeed, in moving to strike the exhibits attached to Plaintiff’s
SAC, the County Defendants undermine their request for the Court
to consider external materials.

Therefore, the Court declines to

consider the exhibits contained in the Loomba Declaration unless
otherwise noted.
4.

Consideration of Rule 12(d)

Last, the Court declines to convert Defendants’ motions
to dismiss into summary judgment motions.

See Madej, 2021 WL

148888, at *6 (declining, in its discretion, to convert Rule
12(b)(6) motion into one seeking summary judgment).
12(d),

converting

Defendants’

motions

requires

Under Rule

giving

“[a]ll

parties . . . a reasonable opportunity to present all material
that is pertinent to the motion.”

FED. R. CIV. P. 12(d).

However,

discovery in this case has been contentious (see, e.g., ECF Nos.
324, 325, 333 (most recent orders regarding various discovery
disputes)); thus, converting the motions would invite arguments
that Plaintiff has not yet obtained “all the material that is
pertinent to the motion,” thereby risking further delay.

Madej,

2021 WL 148888, at *6 (“conclude[ing] that the better course of
action is to give the parties the benefit of” ruling on the
dismissal motion “without consideration of materials beyond the
Second Amended Complaint, instead of risking delay”).
26

Indeed,

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 27 of 72 PageID #: 2886

this is the second time the parties have briefed their motions to
dismiss.

Therefore, the Court declines to convert Defendants’

motions.
B.

Claims against the Mullen Estate
Next, the Court considers another preliminary issue:

Whether Plaintiff can maintain his claims against the Mullen
Estate.
Jerl Mullen, a former County homicide detective, passed
away on January 4, 2015, more than three years before Plaintiff
initiated this action.

Therefore, Plaintiff alleges his claims

against the Mullen Estate, purportedly by way of substitution under
Rule 25.

(See Sept. 23, 2019 Elec. Order (the “Substitution

Order”) (granting Plaintiff’s motion to substitute the Mullen
Estate as a defendant).)

Rule 25 states that “[i]f a party dies

and the claim is not extinguished, the court may order substitution
of

the

proper

representative.”

party,”

i.e.,

the

decedent’s

“successor

FED. R. CIV. P. 25(a) (emphasis added).

or

However,

the plain meaning of Rule 25 “presupposes that substitution is for
someone who was a party to a pending action”; thus, “[s]ubstitution
is not possible if one who was named as a party in fact died before
the commencement of the action.”

7C Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1951 (3d ed., Apr.
2021

update).

This

interpretation

of

established, including in this Circuit.
27

Rule

25(a)

is

well

See Automated Info.

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 28 of 72 PageID #: 2887

Processing, Inc. v. Genesys Sols. Grp., Inc., 164 F.R.D. 1, 3
(E.D.N.Y. 1995); Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir.
1969); Flick v. Vadlamudi, No. 09-CV-0647, 2010 WL 3061096, at *1
(W.D. Mich. July 16, 2010), report and recommendation adopted, No.
09-CV-0647, 2010 WL 3061021 (W.D. Mich. Aug. 3, 2010).
Accordingly,

the

Substitution

Order

is

VACATED,

see

Bruccoleri v. Gangemi, No. 17-CV-7443, 2019 WL 499769, at *6
(E.D.N.Y. Feb. 8, 2019) (ruling that where substitution order was
improperly entered it would be vacated), and the County Defendants’
motion to dismiss all claims against the Mullen Estate is GRANTED.
C.

Section 1983 Claims
Section 1983 provides a civil claim for damages against

any person who, acting under color of state law, deprives another
of

any

rights,

privileges,

or

immunities

Constitution or the laws of the United States.

secured

by

the

See 42 U.S.C. §

1983; Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).

“The

purpose of § 1983 is to deter state actors from using the badge of
their

authority

guaranteed

to

rights

deprive

and

deterrence fails.”

to

individuals

provide

of

relief

their

federally

to

victims

if

such

Wyatt v. Cole, 504 U.S. 158, 161 (1992).

Further, it is well settled that to establish liability under
Section

1983,

a

plaintiff

Government-official

must

defendant,

“plead
through

and
the

prove

‘that

each

official’s

own

individual actions, has violated the Constitution,’” that is,
28

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personally participated in the alleged constitutional deprivation.
Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)) (rejecting “special
rule

for

supervisory

liability”

and

holding

constitutional

violations “must be established against the supervisory official
directly”).
The Court turns to examining each of Plaintiff’s Section
1983 Claims.
1.

Malicious Prosecution (Claim 1) 6

The County Defendants and Plaintiff devote the lion’s
share of their briefs to arguing Plaintiff’s malicious prosecution
claim.

(County Defs. Br. at 19-21; Pl. Opp. to County Defs. at

12-23; County Defs. Reply at 2-6.)
that

the

evidence

provided

by

The County Defendants argue

Witherspoon

“establish[ed]

an

independent basis of probable cause to initiate and continue the
criminal
cause

prosecution

is

a

defense

against
to

Plaintiff’s claim fails.

a

Plaintiff,”
claim

for

and

because

malicious

probable

prosecution,

Relatedly, they assert that each of the

Individual County Defendants is entitled to qualified immunity
from the malicious prosecution claim, because a reasonable officer
could

have

concluded

there

was

probable

cause

to

prosecute

Plaintiff does not bring his Section 1983 malicious prosecution
claim against the Individual Village Defendants, but he does bring
a state law claim for malicious prosecution against the Village,
as discussed infra.
6

29

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Plaintiff based on Witherspoon’s evidence.

In response, Plaintiff

assails the reliability of the evidence Witherspoon provided and
asks

the

Court

[P]laintiff’s

to

view

it

uncontested

fabrication claims.”

“holistically

coercion,

and

in

conspiracy

light

and

of

evidence

(Pl. Opp. to County Defs. at 13; see also

id. at 12-13, 15-19.)

Because the parties dispute the extent to

which

can

probable

cause

serve

as

a

defense

to

a

malicious

prosecution claim under caselaw in this Circuit, the Court first
clarifies the standard before turning to merits of the parties’
arguments.
i.

Applicable Law

“In order to prevail on a Section 1983 claim against a
state actor for malicious prosecution, a plaintiff must show a
violation of his rights under the Fourth Amendment . . . and must
establish the elements of a malicious prosecution claim under state
law.”

Manganiello v. City of New York, 612 F.3d 149, 160–61 (2d

Cir. 2010) (internal citations omitted).

Under New York law, a

claim for malicious prosecution requires: “(1) the initiation or
continuation

of

a

criminal

proceeding

against

the

plaintiff;

(2) termination of the proceeding in plaintiff's favor; (3) lack
of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant’s actions.”

Id. at 161

(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)); see
also Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003).
30

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In

addition,

under

Section

1983,

the

plaintiff

must

further

demonstrate “a post-arraignment deprivation of liberty that rises
to the level of a constitutional violation.”

Bailey v. City of

New York, 79 F. Supp. 3d 424, 448 (E.D.N.Y. 2015) (citing Boley v.
Durets, No. 12–CV–4090, 2013 WL 6562445, at *5 (E.D.N.Y. Dec. 10,
2013)).
“[T]he existence of probable cause is a complete defense
to a claim of malicious prosecution in New York.”

Savino, 331

F.3d at 72; see also McClellan v. Smith, 439 F.3d 137, 145 (2d
Cir. 2006) (“The absence of probable cause is an essential element
to a claim for malicious prosecution.”)

This is the case because

“a malicious prosecution claim is rooted in the Fourth Amendment
right to be free from a baseless criminal prosecution.”

Hoyos v.

City of New York, 999 F. Supp. 2d 375, 390 (E.D.N.Y. 2013) (citing
Morse v. Spitzer, No. 07-CV-4793, 2012 WL 3202963, at *2 (E.D.N.Y.
Aug. 3, 2012) (interpreting Albright v. Oliver, 510 U.S. 266, 271
(1994), and Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d
Cir.

1995))).

But

importantly,

the

relevant

probable

cause

determination depends on the stage of the criminal proceeding.
At the arrest stage, the Second Circuit has described
probable cause to arrest as “knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the
person to be arrested has committed . . . a crime.”
31

Stansbury v.

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 32 of 72 PageID #: 2891

Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (quoting Jaegly v. Couch,
439 F.3d 149, 152 (2d Cir. 2006)); Ashley v. City of New York, 992
F.3d 128, 136 (2d Cir. 2021).

At the prosecution stage, however,

the probable cause standard is “slightly higher.”

Stansbury, 721

F.3d at 95; Hoyos v. City of New York, 650 F. App’x 801, 802 (2d
Cir. 2016) (summary order).

“Probable cause, in the context of

malicious prosecution, has also been described as such facts and
circumstances as would lead a reasonably prudent person to believe
the plaintiff guilty.”

Stansbury, 721 F.3d at 95 (quoting Boyd v.

City of New York, 336 F.3d 72, 76 (2d Cir. 2003)); Hoyos, 999 F.
Supp. 2d at 390 (“[T]he relevant probable cause determination is
whether there was probable cause to believe the criminal proceeding
could succeed and, hence, should be commenced.”).

As a result,

timing is key, with probable cause in the context of malicious
prosecution being measured “as of the time the judicial proceeding
is commenced (e.g., the time of the arraignment),” not the time of
the arrest.

Hoyos, 999 F. Supp. 2d at 390 (quoting Davis v. City

of New York, 373 F. Supp. 2d 322, 333 (S.D.N.Y. 2005)); id.
(“Information

obtained

‘after

the

arrest,

but

before

the

commencement of proceedings, is relevant to the determination of
probable

cause’

for

a

malicious

prosecution

claim.”

(quoting

Jackson v. City of New York, 939 F. Supp. 2d 235, 251 (E.D.N.Y.
2013)); Stone v. Port Authority, No. 11-CV-3932, 2014 WL 3110002,
at *9 (E.D.N.Y. July 8, 2014) (“[E]ven when probable cause is
32

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 33 of 72 PageID #: 2892

present at the time of arrest, evidence could later surface which
would eliminate that probable cause.”); Jean v. County of Nassau,
No. 14-CV-1322, 2020 WL 1244786, at *9 (E.D.N.Y. Mar. 16, 2020)
(citing McDermott v. City of New York, No. 94-CV-2145, 1995 WL
347041, at *5 (E.D.N.Y. May 30, 1995) (“In the absence of some
indication
evidence

that

the

between

prosecution

the

that

authorities
time

would

of

became

the

aware

arrest

undermine

the

and

of

exculpatory

the

probable

subsequent

cause

which

supported the arrest, no claim for malicious prosecution may
lie.”)).

And even where the arrest and prosecution are supported

by probable cause, thus defeating any claim for false arrest or
malicious prosecution, “a plaintiff can still prevail on a fair
trial

claim

if

fabricated

evidence

causes

deprivation’” of the plaintiff’s liberty.

some

‘further

Ross v. City of New

York, No. 17-CV-3505, 2019 WL 4805147, at *9 (E.D.N.Y. Sept. 30,
2019) (quoting Rowell v. City of New York, No. 16-CV-6598, 2019 WL
280469, at *2 (S.D.N.Y. Jan. 22, 2019) (citing Ganek v. Leibowitz,
874 F.3d 73, 91 (2d Cir. 2017)); see also Frost v. New York City
Police

Dep’t,

Undercover

980

Officer

F.3d

231,

C0039,

838

244

(2d

F.3d

Cir.

265,

2020);

278

(2d

Garnett
Cir.

v.

2016);

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).
Put simply, the existence of probable cause to arrest and prosecute
a plaintiff is not a defense to his claim for deprivation of a

33

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 34 of 72 PageID #: 2893

fair trial.

Morse, 2012 WL 3202963, at *5 (reconciling Ricciuti

and Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)).
ii.

Application

The Court first addresses the County Defendants’ claim
to qualified immunity.

Pearson v. Callahan, 555 U.S. 223 (2009);

Francis v. Fiacco, 942 F.3d 126, 139-40 (2d Cir. 2019).

Qualified

immunity

liability

shields

government

officials

from

civil

resulting from the performance of their discretionary functions
only where their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”

Wallace v. Suffolk County Police Dep’t, 396 F.

Supp. 2d 251, 265 (E.D.N.Y. 2005) (Seybert, J.) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).

To determine whether

qualified immunity applies, courts consider “whether the facts
shown make out a violation of a constitutional right and whether
the right at issue was clearly established at the time of the
defendant’s alleged misconduct.”

Tankleff v. County of Suffolk,

No. 09-CV-1207, 2017 WL 2729084, at *17 (E.D.N.Y. June 23, 2017)
(quoting Estate of Devine v. Fusaro, 676 F. App’x 61, 62 (2d Cir.
2017) (cleaned up)).
should

be

analyzed

Whether a right was clearly established
from

the

perspective

of

a

reasonable

law

enforcement officer, and the relevant inquiry is whether “it would
be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.”

Id.
34

Although “a qualified immunity

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 35 of 72 PageID #: 2894

defense

may

be

advanced

on

a

12(b)(6)

motion,

it

faces

a

‘formidable hurdle’ when advanced at such an early stage in the
proceedings.”

Wallace, 396 F. Supp. 2d at 265 (quoting Cathedral

Church of the Intercessor v. Incorporated Village of Malverne, 353
F. Supp. 2d 375, 391 (E.D.N.Y. 2005)).
In support of their argument that qualified immunity
should apply, the County Defendants argue that, “based on Ms.
Witherspoon’s evidence, a reasonable officer could conclude that
there was at least arguable probable cause to prosecute plaintiff.”
(County Defs. Br. at 20.)

But “[a]rguable probable cause should

not be misunderstood to mean almost probable cause.”

Walsh v.

City of New York, 742 F. App’x 557, 562 (2d Cir. 2018) (summary
order) (quoting Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir.
2016)).

Moreover, qualified immunity does not apply “when alleged

fabrication of evidence is key to the case,” as it is here. Bailey,
79 F. Supp. 3d at 458.
the

Witherspoon

In light of Plaintiff’s allegations that

evidence

was

itself

corrupted

by

certain

Individual County Defendants, and the “formidable hurdle” the
County Defendants face at this stage, the Court concludes that
qualified immunity is inappropriate at this juncture.
Turning to the parties’ arguments, the County Defendants
dispute only the lack of probable cause requirement.

However, at

this stage in the proceedings, the Court cannot find the County
Defendants had independent probable cause to believe the criminal
35

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 36 of 72 PageID #: 2895

proceeding against Plaintiff could succeed, as required to defeat
a malicious prosecution claim.

Instead, where, as here, facts are

contested and the court is without a record fully developed through
discovery,

it

cannot

make

a

probable

cause

finding

without

discrediting the SAC’s well-pleaded allegations of fabricated and
concealed

evidence,

dismissal stage.
(S.D.N.Y.

2016)

which

it

is

precluded

from

doing

at

the

Shabazz v. Kailer, 201 F. Supp. 3d 386, 397
(in

context

of

evidence

fabrication

claim,

distinguishing Hoyos “because it was decided on a motion for
summary judgment” and declining to conclude on motion to dismiss
“that

the

allegedly

fabricated

evidence

did

not

cause

the

prosecutor to initiate the prosecution against the plaintiffs when
she otherwise would not have proceeded with the prosecution”).
Indeed,

Plaintiff

alleges

facts

that

undermine

County Defendants’ probable cause determination.

the

Specifically,

Plaintiff alleges certain Individual County Defendants, namely,
Abbondandelo, Dempsey, Mullen, and Severin, became aware of key
statements from Larrea and Montes, which were omitted from the
Morning Report, that were at odds with the information provided by
Witherspoon,
Defendants

on

whose

attempt

determination.

to

statements
base

and

their

testimony
entire

the

probable

County
cause

Moreover, Plaintiff alleges that Individual County

Defendant Swenson received information from two other witnesses
who were in the vicinity of the shooting, Valdez and her unnamed
36

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 37 of 72 PageID #: 2896

boyfriend, that further contradicted Witherspoon’s information and
the story later developed by investigators and prosecutors.

Then,

when confronted with information from Jenkins that corroborated
Montes and Larrea’s account, Plaintiff alleges Dempsey, Mullen,
Abbondandelo, and Alger caused Jenkins to change his story and
implicate

Plaintiff.

according

to

discovered
cause

the

Thus,

allegations,

“intervening

determination

Witherspoon.

unlike

the

here,

fact[s]”

defendants

the

County

that
by

evidence

supported

dissipated

in

Jean,

Defendants

any

probable

furnished

by

2020 WL 1244786, at *9.

The Court declines the County Defendants’ invitation to
turn

a

blind

eye

to

these

allegations

and

rely

entirely

Witherspoon to find probable cause existed to prosecute.

on
As

Plaintiff aptly points out, each of the cases cited by the County
Defendants was decided at the summary judgment stage.
Opp. to County Defs. at 20-22.)

(See Pl.

The County Defendants fail to

identify a single case decided on motion to dismiss where the
district

court,

confronted

evidence

fabrication,

with

dismissed

well-pleaded
a

malicious

allegations

prosecution

of

claim

based on a finding that the defendants had probable cause to
prosecute independent of that allegedly fabricated evidence.
e.g.,

Hoyos,

999

F.

Supp.

2d

at

390

(dismissing

See,

malicious

prosecution claim based on independent probable cause on summary
judgment); Morse, 2012 WL 3202963 (same); Torres v. City of New
37

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 38 of 72 PageID #: 2897

York, No. 16-CV-6719, 2017 WL 4325822, at *5 (Sept. 27, 2017)
(same).
Last, the County Defendants rely on Morse and its progeny
for the proposition that “even where plaintiff alleges, as here,
that the malicious prosecution is based on fabricated evidence,
‘the existence of probable cause independent of the fabricated
evidence is a defense to that claim.’”

Hoyos, 999 F. Supp. 2d at

390 (quoting Morse, 2012 WL 3202963, at *5); (County Defs. Br. at
20-21; County Defs. Reply at 2-4).

The Court agrees with the legal

proposition, which “tethers” the malicious prosecution claim to
its Fourth Amendments roots and ensures it remains legally distinct
from the fair trial claim, but declines to apply it here on a
motion to dismiss, because according to the SAC’s allegations, the
evidence the County Defendants claim supported their probable
cause judgment was not “independent” of the alleged fabrication.
“[I]nherent to the exception of independent probable cause is that
the

probable

fabrication.”
Defendants
independent
(County

cause

must

independent

Ross, 2019 WL 4805147, at *8.

point

to

the

probable

Defs.

be

Br.

at

evidence

cause

provided

supporting

19-20),

from

alleged

While the County
by

Witherspoon

Plaintiff’s

Plaintiff

the

alleges

as

prosecution
that

certain

Individual County Defendants corrupted the account of Witherspoon
to pin the murder on him (SAC ¶ 60).

38

As a result, at this stage,

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 39 of 72 PageID #: 2898

the evidence Witherspoon provided cannot be considered separate or
independent from the allegedly fabricated or concealed evidence.
2.

Fabrication of Evidence / Deprivation of Fair
Trial (Claim 2)

Plaintiff asserts his claim for fabrication of evidence
against Individual County Defendants Abbondandelo, Dempsey, Mullen
and Severin, Alger, and Kosier.

The County Defendants move to

dismiss this claim as against Severin and Alger, arguing the SAC
fails to adequately allege they personally participated in the
alleged fabrication of evidence.
“The

Due

Process

(County Defs. Br. at 21-22.)
Clause

guarantees

defendant’s ‘right to a fair trial.’”

a

criminal

Frost, 980 F.3d at 244

(quoting Ramchair v. Conway, 601 F.3d 66, 73 (2d Cir. 2010)).

A

defendant’s violation of this right is “redressable in action for
damages under 42 U.S.C. § 1983.”
at 130).
claim

Id. (quoting Ricciuti, 124 F.3d

The elements of a denial of the right to a fair trial

are:

“an

(1) investigating

official

(2) fabricates

information (3) that is likely to influence a jury’s verdict,
(4) forwards

that

information

to

prosecutors,

and

(5) the

plaintiff suffers a deprivation of life, liberty, or property as
a result.”

Garnett, 838 F.3d at 279.
First, as to Severin, whom Plaintiff describes as a

“high-ranking” supervisor (SAC ¶ 38), the Court finds the SAC
adequately

pleads

his

direct

participation

in

the

alleged

fabrication of evidence, because Plaintiff alleges that Severin
39

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“altered the official narrative of the crime” by excluding from
the

Morning

Statements

Report
and

police.

The

any

reference

mischaracterizing
Second

Circuit

to

the

Montes

Witherspoon’s

has

clarified

and

Larrea

statements
that

to

fraudulent

omissions, like the one alleged here, can serve as fabricated
evidence for the purposes of a claim for denial of a fair trial.
Morse v. Fusto, 804 F.3d 538, 550 (2d Cir. 2015); see also Hutchins
v. Solomon, No. 16-CV-10029, 2018 WL 4757970, at *17 (S.D.N.Y.
Sept. 29, 2018) (“[I]n the context of a fabrication of evidence
claim, the Second Circuit equates ‘the fraudulent omission of
factual information . . . with the affirmative perpetration of a
falsehood,’

and

expressly

disclaims

any

‘plausible

legal

distinction between misstatements and omissions’” (quoting Fusto,
804 F.3d at 550)).

In short, Plaintiff has “identif[ied] the

actual fabrication” Severin is alleged to have perpetrated, i.e.,
omitting key statements from the Morning Report.
WL 4757970, at *16.

Hutchins, 2018

At this juncture, that is enough to plausibly

plead direct participation.
Second, as to Alger, the Court similarly finds that the
SAC adequately pleads his direct participation in the alleged
fabrication

of

evidence.

Plaintiff

alleges

Alger

and

other

Individual County Defendants “corruptly coordinated the accounts
of Peddie Jenkins and Skwanitra Witherspoon to manufacture the
identification

of

[Plaintiff]

as
40

the

alleged

perpetrator,”

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 41 of 72 PageID #: 2900

notwithstanding evidence to the contrary.

(SAC ¶¶ 60-63.) 7

Thus,

unlike those cases in which courts have dismissed denial of fair
trial claims for lack of personal participation, Plaintiff has
“state[d]

with

requisite

specificity

the

evidence

that

was

purportedly fabricated” and Alger’s direct involvement in the
fabrication.

See Longo v. Ortiz, No. 15-CV-7716, 2016 WL 5376212,

at *6 (S.D.N.Y. Sept. 26, 2016) (dismissing denial of fair trial
claim

where

fabricated

plaintiff’s

evidence,

extrajudicial

allegations

gave

statements

to

false
the

that

testimony,
Manhattan

“the
and

District

defendants
made

false

Attorney’s

Office to be used against Mr. Longo at trial as well as to a
Supreme Court judge in an effort to secure a search warrant,
indictment

and

conviction

against

[the

plaintiff]”

lacked

specificity); Lewis v. City of New York, 591 F. App’x 21, 22 (2d
Cir. 2015) (summary order) (“[A]gree[ing] with the district court
that because Lewis has provided no detail regarding the evidence
purportedly fabricated by the defendant officers, he has not stated
a plausible claim for denial of the right to a fair trial.”).

Plaintiff further alleges that Alger and other County Defendants
attempted to persuade Richard “Woody” Miller, “a barber,” and
brothers Tyrone and Roy Isaac to falsely implicate Plaintiff as
the murderer but, realizing their testimony exonerated Plaintiff,
suppressed it. (SAC ¶¶ 64-65.) These conclusory allegations “are
not entitled to the assumption of truth,” Hayden v. Patterson, 594
F.3d 150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)), since Plaintiff does not provide any background
on these individuals’ involvement in the shooting, let alone
describe their allegedly exculpatory statements. For that reason,
the Court declines to consider them.
7

41

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Accordingly, the County Defendants’ motion to dismiss
Plaintiff’s fabrication of evidence claim as against Severin and
Alger is DENIED.
3.

Brady Violations (Claim 10)

Plaintiff asserts that the Individual County and Village
Defendants violated Brady by suppressing the following pieces of
evidence: (1) the Montes and Larrea Statements; (2) the 911 call
recording; (3) the notes from Swenson’s interview with Valdez; and
(4) the Zimmer-Baldwin Interview.

The County Defendants argue

that Plaintiff did receive the Montes and Larrea Statements at his
suppression hearing in the underlying criminal case; that the 911
call may not have occurred; and that the Valdez interview notes
and the Zimmer-Baldwin Interview are not Brady materials.
Defs. Br. at 28-29.)

(County

The Village Defendants argue that they did

not prosecute Plaintiff in his underlying criminal case, and that
Plaintiff does not allege they failed to turn over any evidence.
(Village Defs. Br. at 17.)
“A

Brady

violation

has

three

components:

‘(1) The

evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; (2) that evidence
must

have

been

suppressed

by

the

State,

either

willfully

inadvertently; and (3) prejudice must have ensued.’”

or

Paulin v.

City of Beacon, No. 17-CV-5105, 2019 WL 4274211, at *5 (S.D.N.Y.

42

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Sept. 10, 2019) (quoting United States v. Jackson, 345 F.3d 59, 71
(2d Cir. 2003)).
First, as alleged, Plaintiff can proceed with his Brady
claims against the Individual County Defendants, based upon their
involvement in the investigation and prosecution of Plaintiff.
Rosario v. City of New York, No. 18-CV-4023, 2019 WL 4450685, at
*5 (S.D.N.Y. Sept. 16, 2019) (“Although the Complaint does not
specify which Defendants interviewed Ms. Torres, it pleads that
all

individual

Defendants,

except

Defendant

witnesses or documented their interviews.”)

Monks,

questioned

While the County

Defendants argue that Plaintiff did receive the Larrea and Montes
Statements in one of the state court pre-trial submissions (see
Ex. B) and that the 911 call may not have occurred as alleged, “no
materials that may be properly considered on this [dismissal]
motion

undermine

the

allegations

that

Defendants

failed

to

disclose [the Larrea and Montes S]tatements or [their] identity as
the source of the statements in a timely manner.”

Id.

The County

Defendants’ remaining arguments are without merit. 8
As for Individual Village Defendants, Plaintiff admits
he received the audio file of the Zimmer-Baldwin Interview from
the County Defendants.

(ECF No. 242 at 2.).

Tellingly, in his

Because the Court finds it unnecessary to address Plaintiff’s
estoppel argument, the Court declines to consider the arguments
relating to this issue raised in supplemental briefing submitted
by the parties (see ECF Nos. 317, 318).
8

43

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SAC, Plaintiff does not explicitly attribute the suppression to
the Village.

(E.g., SAC ¶ 54 (“Defendants’ suppression of the

Zimmer-Baldwin Interview . . . .” (emphasis added”).)

In light of

Plaintiff’s concession and his general allegation regarding the
suppression of the Zimmer-Baldwin Interview, Plaintiff has not
plausibly alleged a Brady claim against the Individual Village
Defendants.
Accordingly, the Individual County Defendants’ motion to
dismiss the Brady violation claim is DENIED, and the Individual
Village County Defendants’ motion to dismiss the Brady violation
claim is GRANTED.
4.

Coercion (Claim 3)

Plaintiff asserts his coercion claim against Individual
County

Defendants

Abbondandelo,

Dempsey,

Mullen,

and

Kosier,

alleging that, while in custody, they extracted a false confession
from him by lying to his family in order to “circumvent” his right
to representation, and beating, threatening and lying to him during
the course of a thirty-nine hour interrogation that was partly
conducted in a “frigid interrogation room.”

(SAC ¶¶ 67-71.)

The

County Defendants move to dismiss this claim as against Kosier,
arguing

the

SAC

fails

to

adequately

participated in the alleged coercion.
22.)

44

allege

he

personally

(County Defs. Br. at 21-

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 45 of 72 PageID #: 2904

A Section 1983 coercion claim may arise “if coercion was
applied to obtain a waiver of the plaintiff’s rights against selfincrimination and/or to obtain inculpatory statements, and the
statements thereby obtained were used against the plaintiff in a
criminal proceeding.”

Hincapie v. City of New York, 434 F. Supp.

3d 61, 76 (2020) (quoting Deshawn E. by Charlotte E. v. Safir, 156
F.3d 340, 346 (2d Cir. 1998)); see also Sedunova v. City of New
York, 652 F. App’x 29, 31 (2d Cir. 2016) (summary order), as
corrected (June 29, 2016).
The Court finds Plaintiff adequately pleads Kosier’s
direct

involvement

in

the

alleged

coercion

that

extracted

Plaintiff’s false confession. It is true, as the County Defendants
point out, that the SAC does not allege that Kosier, unlike
Abbondandelo, Dempsey, and Mullen, threatened and beat Plaintiff
during his interrogation.

Rather, Plaintiff limits his allegation

against Kosier, alleging only that he lied during Plaintiff’s
interrogation.

However, the County Defendants fail to explain why

that distinction warrants dismissing these claims against Kosier,
especially where the SAC explicitly alleges Kosier was part of the
team

of

Individual

County

Defendants

that

coerced

Plaintiff

through “inhumane treatment” into signing a false confession that
was used at trial to secure his conviction.

See Hincapie, 434 F.

Supp. 3d at 71 (finding complaint adequately alleged personal
involvement in conduct giving rise to the plaintiff’s Section 1983
45

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claim

for

coercion).

Moreover,

to

the

extent

the

County

Defendants’ attempt to controvert the timeline of events as alleged
by relying on external materials, as discussed supra, that reliance
is improper at this stage of the proceedings. 9
Accordingly, the County Defendants’ motion to dismiss
Plaintiff’s coercion claim as against Kosier is DENIED.
5.

Supervisory Liability (Claim 4)

Plaintiff

asserts

a

claim

for

supervisory

liability

under Section 1983 as against Individual County Defendant Severin
and John Doe supervisory defendants.
Circuit

recently

made

clear,

“there

However, as the Second
is

no

special

rule

for

supervisory liability” and, in order “[t]o hold a state official
liable under § 1983, a plaintiff must plead and prove the elements
of the underlying constitutional violation directly against the
official

without

liability.”

relying

on

a

special

Tangreti, 983 F.3d at 620.

test

for

supervisory

As a result, Plaintiff

cannot proceed against Severin under Section 1983 based purely on
his

supervisory

role

at

the

County.

Nevertheless,

because

In connection with his coercion claim, Plaintiff references the
polygraph results of Takita Dorsey who, according to the allegedly
false confession, was a key player in the murder conspiracy. (SAC
¶ 74.) Plaintiff claims, without alleging any facts regarding
Dorsey’s involvement in the shooting or the results of Dorsey’s
polygraph test, that the polygraph test result contradicted
Plaintiff’s allegedly false confession.
These conclusory
allegations “are not entitled to the assumption of truth,” and the
Court declines to consider them. Hayden v. Patterson, 594 F.3d
150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009)).
9

46

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Plaintiff has adequately pleaded Severin’s direct participation in
certain constitutional violations, see supra, Plaintiff’s claims
may proceed under that theory.
Accordingly, the County Defendants’ motion to dismiss
Plaintiff’s Section 1983 supervisory claim as against Severin and
John Doe supervisory defendants is GRANTED.
6.

Monell (Claim 5)

Next, Plaintiff brings a Section 1983 claim against the
County and Village under Monell.

Plaintiff asserts three distinct

theories of Monell liability: (1) a de facto policy or custom
through

a

widespread

practice;

(2) failure

(3) failure to supervise and discipline.
18, 150-55.)

to

train;

and

(See SAC ¶¶ 76-88, 113-

In connection with his Monell claim, Plaintiff first

alleges that the County and Village maintained unofficial policies
of

conducting

constitutionally

inadequate

investigations,

fabricating inculpatory evidence, committing perjury, failing to
obtain probable cause to ensure that suspects would not be falsely
arrested and maliciously prosecuted, suppressing from prosecutors
material information favorable to criminal defendants, failing to
comply

with

Brady

obligations,

interrogation tactics.

and

employing

(See id. ¶ 150.)

unconstitutional

Plaintiff next alleges

that the County and Village demonstrated deliberate indifference
in failing to train, supervise, and discipline employees with
respect to these alleged unconstitutional practices.
47

(See id. ¶¶

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 48 of 72 PageID #: 2907

151-53.)

In support of these allegations, Plaintiff relies on

allegations of misconduct, including fabrication of evidence and
coercive interrogation tactics, by County investigators, including
Dempsey, cited in this Court’s August 27, 2012 decision in Kogut
v. County of Nassau, No. 06-CV-6695, 2012 WL 3704710, a case that
ended without imposing Monell liability.

(Id. ¶¶ 76-88.)

It is well established that a municipality such as the
County and the Village cannot be held liable under Section 1983 on
a respondeat superior theory.

See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 691 (1978); Roe v. City of Waterbury, 542 F.3d 31,
36 (2d Cir. 2008).
where

‘execution

of

“Rather, municipalities may be liable only
a

government’s

constitutional violations.”

policy

or

custom’

causes

Buari v. City of New York, No. 18-

CV-12299, 2021 WL 1198371, at *21 (S.D.N.Y. Mar. 30, 2021) (quoting
Monell, 436 U.S. at 694).
“To prevail against a municipality in a Section 1983
action, a plaintiff must plead and prove three elements: (1) an
official policy or custom that (2) caused the plaintiff to be
subjected to (3) a denial of a constitutional right.”

Kogut v.

County of Nassau, No. 06-CV-6695, 2009 WL 5033937 (E.D.N.Y. Dec.
11, 2009) (citing Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir.
2008)).

“For a Monell claim to survive a motion to dismiss, a

plaintiff must allege ‘sufficient factual detail’ and not mere
‘boilerplate allegations’ that the violation of the plaintiff’s
48

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 49 of 72 PageID #: 2908

constitutional rights resulted from the municipality’s custom or
official policy.”

Ying Li v. City of New York, 246 F. Supp. 3d

578, 636 (E.D.N.Y. 2017) (quoting Plair v. City of New York, 789
F. Supp. 2d 459, 469 (S.D.N.Y. 2011) (collecting cases)); see also
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (“The
mere assertion . . . that a municipality has such a custom or
policy is insufficient in the absence of allegations of fact
tending

to

support,

at

least

circumstantially,

such

an

inference.”), overruled on other grounds by Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163
(1993). The plaintiff can satisfy the municipal policy requirement
by alleging:
(1) a formal policy officially endorsed by the
municipality; (2) actions or decisions made by
municipal
officials
with
decision-making
authority; (3) a practice so persistent and
widespread that it constitutes a custom
through which constructive notice is imposed
upon policymakers; or (4) a failure by
policymakers to properly train or supervise
their subordinates, such that the policymakers
exercised ‘deliberate indifference’ to the
rights of the plaintiff.
Ying Li, 246 F. Supp. 3d at 636 (citing Second Circuit decisions).
“To demonstrate a de facto policy or custom through a
widespread practice, a plaintiff must ‘show that the policymaker
was

aware

consciously

of

a

chose

subordinate’s
to

ignore

unconstitutional

them,

effectively

actions,

and

ratifying

the

actions.’” Buari, 2021 WL 1198371, at *22 (quoting Amnesty America
49

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 50 of 72 PageID #: 2909

v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004)).

To

do so, the plaintiff can “cit[e] to complaints in other cases that
contain similar allegations,” provided those complaints “involve
factually

similar

misconduct,

[are]

contemporaneous

to

the

misconduct at issue in the plaintiff’s case, and result in an
adjudication of liability.”

Id. (first quoting Gaston v. Ruiz,

No. 17-CV-1252, 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018);
then quoting Isaac v. City of New York, No. 16-CV-4729, 2018 WL
5020173, at *17 (E.D.N.Y. Aug. 6, 2018), and Calderon v. City of
New York, 138 F. Supp. 3d 593, 613 (S.D.N.Y. 2015)).
The plaintiff can also base his Monell claim on a showing
of “deliberate indifference” to a risk that a recurring situation
will likely result in a constitutional violation.

Davis v. City

of New York, 75 F. App’x 827, 829 (2d Cir. 2003).

To support a

claim that a municipality’s failure to train amounts to deliberate
indifference, the plaintiff must show:
(1) that a policymaker of the municipality
knows to a moral certainty that its employees
will confront a given situation; (2) that the
situation either presents the employee with a
difficult choice of the sort that training or
supervision will make less difficult or that
there is a history of employees mishandling
the situation; and (3) that the wrong choice
by the employee will frequently cause the
deprivation of a citizen’s constitutional
rights.
Young v. County of Fulton, 160 F.3d 899, 903–04 (2d Cir. 1998)
(citing Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir.
50

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 51 of 72 PageID #: 2910

1992) (internal quotations and alterations omitted)).

Liability

for deliberate indifference can be based on two distinct theories:
failure to train or failure to supervise/discipline.

Amnesty

America, 361 F.3d at 127.
Under the failure-to-train theory, the plaintiff must
“allege facts that support an inference that the municipality
failed to train its police officers, that it did so with deliberate
indifference,

and

that

constitutional injuries.”

the

failure

to

train

caused

his

Tieman v. City of Newburgh, No. 13-CV-

4178, 2015 WL 1379652, at *20 (S.D.N.Y. Mar. 26, 2015).

While

“[r]ecurring civil rights complaints can put a municipality on
notice of deficiencies in its training program . . . [t]here is no
bright-line rule for how many civil rights complaints there must
be, or how recent the complaints must be, to put a municipality on
notice.”

Buari, 2021 WL 1198371, at *23 (first citing Breton v.

City of New York, 404 F. Supp. 3d 799, 818 (S.D.N.Y. 2019); then
citing Tieman, 2015 WL 1379652, at *20).
Under the failure-to-supervise theory, a plaintiff must
plead “(1) there was a pattern of allegations of or complaints
about, or a pattern of actual, similar unconstitutional activity,
and (2) the municipality consistently failed to investigate those
allegations.”

Treadwell v. County of Putnam, No. 14-CV-10137,

2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (citing Tieman,
2015 WL 1379652, at *21-22).

While an obvious need for greater
51

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supervision to protect against unconstitutional conduct “may be
demonstrated through proof of repeated complaints of civil rights
violations” that are not followed by a “meaningful attempt . . .
to investigate or to forestall further incidents,” Vann v. City of
New

York,

72

requirement

F.3d

that

1040,

1049

complaints

(2d

Cir.

result

in

1995),
a

“there

formal

is

no

finding

of

misconduct for such complaints to support findings of failure to
supervise.”

Felix v. City of New York, 344 F. Supp. 3d 644, 662

(S.D.N.Y. 2018).
i.

The County Defendants
(a)

Widespread Practice Theory

First, Plaintiff fails to plausibly allege that there is
a

County

practice

investigations,

of

conducting

fabricating

constitutionally

inculpatory

evidence,

inadequate
committing

perjury, failing to obtain probable cause to ensure that suspects
would

not

be

falsely

arrested

and

maliciously

prosecuted,

suppressing from prosecutors material information favorable to
criminal defendants, failing to comply with Brady obligations, and
employing unconstitutional interrogation tactics “so widespread as
to have the force of law.”

Board of County Comm’rs v. Brown, 520

U.S. 397, 404 (1997); see also City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988) (“[T]he Court has long recognized that a
plaintiff may be able to prove the existence of a widespread
practice that, although not authorized by written law or express
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municipal

policy,

is

‘so

permanent

and

well

settled

as

to

constitute a “custom or usage” with the force of law.’” (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–168 (1970)).

As

noted, in support of these allegations, Plaintiff relies upon this
Court’s August 27, 2012 decision in Kogut, discussing allegations
of misconduct by County investigators, including Dempsey, for
fabrication of evidence and coercive interrogation tactics.
¶ 76 (block quoting Kogut, 2012 WL 3704710, at *2-3).)

(SAC

He further

alleges other similar claims of Dempsey’s misconduct which, upon
further review, are allegations copied and pasted from certain
plaintiffs’ Local Rule 56.1 Statements in Kogut.

(Compare SAC ¶¶

78-88), with Kogut v. County of Nassau, No. 06-CV-6695, Pls. 56.1
Stmt., ECF No. 243, ¶¶ 77-87.

However, the lawsuits cited in Kogut

and the other complaints alleged are insufficient to plausibly
support an inference of a widespread custom in this instance.

See

Tieman, 2015 WL 1379652, at *17 (concluding allegations of nine
lawsuits in five years, plus “public forum comments” and a thirdparty report on the defendant-city’s misconduct, were insufficient
to plausibly allege a Monell claim for widespread custom).
To begin, even if the lawsuits and complaints involved
similar

conduct

to

that

alleged

here,

only

two

ended

in

adjudication of liability -- one for malicious prosecution and the
other for malicious prosecution and fabrication of evidence -- and
none resulted in adjudication of Monell liability.
53

As a result,

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 54 of 72 PageID #: 2913

these

lawsuits

widespread

de

cannot
facto

support
custom

Plaintiff’s

of

allegation

conducting

of

a

constitutionally

inadequate investigations, committing perjury, suppressing from
prosecutors material information favorable to criminal defendants,
failing

to

comply

unconstitutional

with

Brady

interrogation

obligations,

tactics,

and

because

employing

they

do

not

involve factually similar misconduct.

Nor can they support an

inference

fabricating

evidence

of
or

a

widespread

failing

to

custom

obtain

of

probable

cause

to

inculpatory
ensure

that

suspects would not be falsely arrested and maliciously prosecuted.
The fact that on two occasions two of the County’s investigators,
only one of whom is an Individual Defendant here, were found liable
for unconstitutional conduct over a ten year period “during which
hundreds,

if

not

thousands,

of

arrests

were

made”

does

not

plausibly demonstrate that fabricating evidence and maliciously
prosecuting

individuals

constitute a custom.”

“was

so

frequent

and

pervasive

to

Id. (citing Walker v. City of New York, No.

12–CV–5902, 2014 WL 1259618, at *3 (S.D.N.Y. Mar. 18, 2014)).
“Even drawing reasonable inferences in [Plaintiff’s] favor, such
a relatively small number of cases over the course of [one]
decade[] in such a large municipality does not plausibly suggest
that the alleged practice is ‘so widespread as to have the force
of law’ . . . or ‘so manifest as to imply the constructive
acquiescence of senior policy-making officials.’”
54

Buari, 2021 WL

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 55 of 72 PageID #: 2914

1198371, at *26 (first quoting Brown, 520 U.S. at 404; then quoting
Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 871 (2d Cir. 1992)).
(b)

Failure-to-Train and Failure-toSupervise Theories

However, Plaintiff can proceed with his Monell claim
under the failure-to-train and failure-to-supervise theories.

In

this context, the lawsuits pleaded by Plaintiff and discussed supra
were sufficient to put the County on notice of the need for more
supervision and deficiencies in its training program.

See Tieman,

2015 WL 1379652, at *20; see also McCants v. City of Newburgh, No.
14–CV–556,

2014

WL

6645987,

at

*4

(S.D.N.Y.

Nov.

21, 2014),

clarified on denial of reconsideration, 2014 WL 7398910 (S.D.N.Y.
Dec. 9, 2014) (denying motion to dismiss Monell claim on deliberate
indifference grounds where the plaintiff’s pleadings referred to
seventeen other excessive force claims in the seven-year period
preceding the at-issue conduct, thus placing the municipality “on
notice to the possible use of excessive force by its police
officers”); Farrow v. City of Syracuse, No. 12–CV–1401, 2014 WL
1311903, at *8, n.7 (N.D.N.Y. Mar. 31, 2014) (observing, obiter
dictum, that plaintiff’s Monell claim would have survived motion
to dismiss based on fifteen excessive force claims filed against
the municipality in the five-year period preceding the at-issue
conduct).

As the Second Circuit stated in Amnesty America, to

state a claim for a municipality’s failure to train its employees,
the plaintiff “need only plead that the city’s failure to train
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caused the constitutional violation,” because “[i]t is unlikely
that a plaintiff would have information about the city’s training
programs or about the cause of the misconduct at the pleading
stage.”
and

361 F.3d at 130, n.10. 10

this

Court

concluded

in

Moreover, Plaintiff has alleged,
Kogut

based

on

uncontroverted

statements of fact filed in connection with summary judgment
motions, that the County failed to investigate and discipline
officers for their conduct.

Kogut, 2012 WL 3704710, at *2-3.

Stated differently, Plaintiff has plausibly pleaded deliberate
indifference by alleging enough facts to support an inference that
the

County

persistently

failed

to

investigate

complaints

or

discipline officers whose conducted prompted the complaints.
ii.

The Village

Conversely, Plaintiff has not alleged enough facts to
establish Monell liability as to the Village.
constitutional

violations

alleged

against

Unlike the multiple
the

County,

the

The Court recognizes that other district courts in this Circuit
interpret Twombly and Iqbal, which post-date Amnesty America, as
requiring plaintiffs to “provide more than a simple recitation of
their theory of liability, even if that theory is based on a
failure to train.”
Simms v. City of New York, No. 10-CV-3420,
2011 WL 4543051, at *2 n.3 (collecting cases), aff’d Simms v. City
of New York, 480 F. App’x 627 (2d Cir. 2012). But as this Court
has explained, the Twombly/Iqbal standard is “context specific,”
and a plaintiff has “no realistic way to learn about a
municipality’s training programs without discovery.” Michael v.
County of Nassau, No. 09-CV-5200, 2010 WL 3237143, at *4 (E.D.N.Y.
Aug. 11, 2010) (Seybert, J.); see also Ferrari v. County of
Suffolk, 790 F. Supp. 2d 34, 46 (E.D.N.Y. 2011) (Seybert, J.)
(same).
10

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allegations

against

the

Village

are

boilerplate.

In

one

representative example, Plaintiff alleges, without specificity,
that the Village “failed to train or supervise investigators to
ensure they complied with constitutional requirements in eliciting
confessions . . . .”

(SAC ¶ 117.)

But by the SAC’s own

allegations, the Individual Village Defendants were not involved
in

Plaintiff’s

interrogation.

Moreover,

Plaintiff

offers

no

evidence of similar lawsuits, grievances or complaints against the
Village; “[t]he absence of such detail dooms Plaintiff’s [cause of
action].”

Rivera v. Westchester County, No. 18-CV-8354, 2019 WL

3958425, at *5 (S.D.N.Y. Aug. 22, 2019).

“Although Plaintiff

alleges that policymakers ‘tolerated’ a policy or custom of Brady
violations, he provides no examples beyond what occurred in his
own case, which is insufficient.”
(collecting

cases

where

Paulin, 2019 WL 4274211, at *7

plaintiffs

made

boilerplate

Monell

allegations); Tieman, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26,
2015) (“[M]ere allegations of a municipal custom, a practice of
tolerating

official

misconduct,

or

inadequate

training

and/or

supervision are insufficient to demonstrate the existence of such
a custom unless supported by factual details.”).
Accordingly, the County’s motion to dismiss Plaintiff’s
claim for Monell liability is GRANTED IN PART as to Plaintiff’s
widespread practice theory, and DENIED IN PART as to Plaintiff’s
failure-to-train

and

failure-to-supervise
57

theories;

and

the

Case 2:18-cv-03007-JS-AKT Document 338 Filed 07/28/21 Page 58 of 72 PageID #: 2917

Village’s motion to dismiss Plaintiff’s claim for Monell liability
is GRANTED.
7.

Conspiracy (Claim 9) 11

Plaintiff alleges that the Individual County and Village
Defendants conspired to violate Plaintiff’s constitutional rights
and cause his wrongful conviction.
that

claim

Plaintiff

highlights:

(SAC ¶ 172.)
(1) the

In support of

suppression

of

the

Zimmer-Baldwin Interview, recorded by Individual Village Defendant
Zimmer,

and

(2) Individual

Village

Defendant

Melendez’s

interactions with Montes and Larrea the night of the incident.
(SAC ¶¶ 41-42, 174).
the

Individual

Because the conspiracy allegations against

Village

Defendants

are

conclusory,

Plaintiff’s

conspiracy claim asserted against them cannot survive the Village
Defendants’ motion to dismiss.
To establish a conspiracy claim under Section 1983,
Plaintiff must allege “(1) an agreement between two or more state
actors, or between a state actor and a private party; (2) to act
in concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.”

Tankleff

v. County of Suffolk, No. 09-CV-1207, 2010 WL 5341929, at *11
(E.D.N.Y. Dec. 21, 2010) (quoting Pangburn v. Culbertson, 200 F.3d
65, 72 (2d. Cir. 1999)); see also Ciambrello v. County of Nassau,

The Individual County Defendants do not move to dismiss the
conspiracy claims.
11

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292 F.3d 307, 324–25 (2d Cir. 2002).

Additionally, to survive a

motion to dismiss, the complaint must allege facts that plausibly
suggest a “meeting of the minds, such that defendants entered into
an agreement, express or tacit, to achieve the unlawful end.”
Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)
(quoting Warren v. Fischl, 33 F. Supp. 2d 171, 177 (E.D.N.Y.
1999)); see also Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003).
While “conspiracies are by their very nature secretive operations,
and may have to be proven by circumstantial, rather than direct,
evidence,” Pangburn, 200 F.3d at 72, the plaintiff must still
allege facts beyond “conclusory, vague, or general allegations” to
assert the existence of an agreement to inflict constitutional
injury, Ciambriello, 292 F.3d at 324-25. Thus, dismissal is proper
if the complaint “contain[s] only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to
deprive the plaintiff of his constitutional rights.”

Ciambriello,

292 F.3d at 325 (citation omitted).
The SAC fails to allege an agreement among the Individual
County

and

Village

Plaintiff’s rights.

Defendants

to

act

in

concert

to

violate

Indeed, taking a step back, more than three

years into this litigation, and after amending his complaint twice,
Plaintiff’s allegations against the Village remain sparse.

As to

Melendez, Plaintiff alleges that Melendez was aware that Larrea,
an acquaintance, lied to his NYPD supervisors about the fact he
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was intoxicated the night of the incident, thus providing Melendez
a motive to cover up Larrea’s intoxication and blame Plaintiff for
the

murder.

But

speculation

conspire is not enough.

that

Melendez

was

motivated

to

See Rosario, 2019 WL 4450685, at *7

(finding allegations that an eyewitness was motivated to conspire
with

law

enforcement

to

incriminate

plaintiff

in

shooting

insufficient to make out conspiracy claim at pleading stage).
Rather,

Plaintiff

must

“allege

with

at

least

some

degree

of

particularity overt acts which [Defendant Melendez] engaged in
which were reasonably related to the promotion of the alleged
conspiracy.”

Myers v. County of Nassau, 825 F. Supp. 2d 359, 368

(E.D.N.Y. 2011).

Plaintiff does not allege Melendez took any acts

to further the supposed conspiracy, and his additional conspiracyrelated allegations, with the exception of the Zimmer-Baldwin
interview,

all

relate

to

investigative

actions

undertaken

by

Individual County Defendants.
Nor can the alleged suppression of the Zimmer-Baldwin
Interview

establish

a

conspiracy.

Plaintiff

alleges

“[t]he

Zimmer-Baldwin Interview proves the existence of a conspiracy
between Freeport and Nassau that extended from immediately after
the homicide for many months through [P]laintiff’s conviction.”
(SAC ¶ 174.)

This is the type of vague and conclusory assertion

that cannot survive a motion to dismiss.

See Sharp v. Town of

Greece, No. 09-CV-6452, 2010 WL 1816639, at *7 (W.D.N.Y. May 3,
60

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2010) (finding allegation that defendant “took action pursuant to
an

agreement”

insufficient

to

make

out

a

conspiracy

claim).

Plaintiff does not allege any facts to tie Zimmer to the alleged
conspiracy to deprive Plaintiff of a fair trial, such as contact
or

coordination

between

Zimmer

and

other

Defendants subject to the conspiracy claim.

Individual

County

See Buari, 2021 WL

1198371, at 19 (“The Court cannot infer that these individuals,
without having spoken to one another, all acted in concert with
the

goal

rights.”)

of

depriving

[the

plaintiff]

of

his

constitutional

There are no facts in the SAC supporting Plaintiff’s

allegation that there was a meeting of the minds, rendering his
conspiracy
untenable.

claim

against

Even

when

the

Individual

confronted

with

Village

Defendants

plausibly

alleged

constitutional violations, courts routinely dismiss conspiracy
claims where the plaintiff fails to allege facts from which a
meeting of the minds can be inferred. See, e.g., Hickey-McAllister
v. Brit. Airways, 978 F. Supp. 133, 139 (E.D.N.Y. 1997) (“Because
plaintiff has alleged no facts at all from which a meeting of the
minds between Anton and Smith on a course of action intended to
deprive plaintiff of her constitutional rights can be inferred,
her

allegations

are

insufficient

to

survive

a

motion

for

dismissal.”); Warren, 33 F. Supp. 2d at 177 (finding insufficient
allegation of conspiracy despite plaintiff’s specific claims of
conspiracy to alter tapes and create illegal search warrants, where
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there was no basis for the assertion that defendants actually
conspired together to bring about these actions); Romer, 119 F.
Supp. 2d at 364.
Accordingly,

the

Village’s

motion

to

dismiss

Plaintiff’s conspiracy claim is GRANTED.
8.

Failure to Intervene (Claim 12)

“It

is

widely

recognized

that

all

law

enforcement

officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law
enforcement officers in their presence.”
F.3d 552, 557 (2d Cir. 1994).

Anderson v. Branen, 17

To plead a failure to intervene

claim, a plaintiff must allege “(1) the officer had a realistic
opportunity to intervene and prevent the harm; (2) a reasonable
person in the officer’s position would know that the victim’s
constitutional rights were being violated; and (3) the officer
does not take reasonable steps to intervene.”

Guerrero v. City of

New York, No. 16-CV-0516, 2017 WL 2271467, at *3 (S.D.N.Y. May 23,
2017) (quoting Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512
(S.D.N.Y. 2008), aff’d sub nom. Jean-Laurent v. Wilkerson, 61 F.
App’x 18 (2d Cir. 2012)).

Further, the Court recognizes that “a

failure to intervene theory of liability is inapplicable where a
defendant

is

a

direct

participant

in

the

alleged

primary

violation,” but aligns itself with other courts that have permitted
plaintiffs to plead failure to intervene claims in the alternative,
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as Plaintiff does here.

Guerrero, 2017 WL 2271467, *4 (collecting

cases).
The Court finds Plaintiff has plausibly alleged that
the Individual County Defendants had a reasonable opportunity to
intervene to prevent various constitutional harms, including, for
example,

undue

coercion

in

connection

with

Plaintiff’s

interrogation, but failed to take reasonable steps to intervene.
However, because Plaintiff fails to allege any facts showing either
of

the

Individual

Village

Defendants,

given

their

limited

involvement in the investigation according to the SAC, had a
“realistic

opportunity

to

intervene

and

prevent”

the

alleged

constitutional harm, Plaintiff’s claim against the Village is
dismissed.
Accordingly, the County’s motion to dismiss Plaintiff’s
failure to intervene claim is DENIED, and the Village’s motion to
dismiss Plaintiff’s failure to intervene claim is GRANTED.
9.

Unlawful Pre-Trial Detention under Russo (Claim 11)

Although false arrest and unlawful detention
claims generally may be considered together,
see, e.g., Little v. City of New York, 487 F.
Supp. 2d 426, 437 (S.D.N.Y. 2007) (“False
arrest is simply an unlawful detention or
confinement brought about by means of an
arrest rather than in some other way and is in
all other respects synonymous with false
imprisonment,”), the two claims have grown to
be distinct in the Second Circuit, under
certain circumstances. See Russo v. City of
Bridgeport, 479 F.3d 196 (2d Cir. 2007).

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Jackson v. City of New York, 29 F. Supp. 3d 161, 178 (E.D.N.Y.
2014).

To prevail on an unlawful pre-trial detention claim, a

plaintiff must show “(1) that he has a right to be free from
continued

detention

stemming

from

law

enforcement

officials’

mishandling or suppression of exculpatory evidence, (2) that the
actions of the officers violated that right, and (3) that the
officers’ conduct shocks the conscience.”

Delamota v. City of New

York, 683 F. App’x 65, 67 (2d Cir. 2017) (summary order) (quoting
Russo, 479 F.3d at 205 (internal quotation marks omitted)).
In Russo, the police arrested the plaintiff for firstdegree robbery based on a cashier’s identification of the plaintiff
in a photo line-up.

Russo, 479 F.3d at 199.

The crime was also

recorded on videotape by a security camera, in which the robber’s
left arm and parts of his forearms, all free of tattoos, were
depicted.
his

Id.

forearms,

Nevertheless,

However, the plaintiff had prominent tattoos on
hands,
during

neck,
the

and

legs.

subsequent

seven

Id.

at

months

199-200.
that

the

plaintiff was incarcerated, the officers did not provide the
plaintiff with a copy of the videotape, despite numerous requests,
and misrepresented that the videotape showed the perpetrator had
body tattoos in an effort to secure the plaintiff’s confession.
Id. at 200.

When an attorney for the city finally went to retrieve

the videotape, he found it locked in one of the officer’s desk
drawers.

Id. at 201.

After viewing it, the city dropped the
64

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charges.

Id. at 202.

Based on these facts, the Second Circuit

held the defendants violated the plaintiff’s Fourth Amendment
right to be free from “sustained detention stemming directly from
the law enforcement officials’ refusal to investigate available
evidence.”

Id. at 208.
This case does not fit within the Russo framework, as

there was no “definitive evidence” in the Village’s or County’s
possession that could have proven that Plaintiff was not the
shooter.

Husbands ex rel. Forde v. City of New York, 335 F. App’x

124, 129 (2d Cir. 2009); see also Harewood v. Braithwaite, 64 F.
Supp. 3d 384, 403 (E.D.N.Y. 2014) (“A failure to investigate
evidence that is only arguably exculpatory does not shock the
conscience.”).
while

the

Rather, “most of the evidence was testimonial, and

evidence

was

conflicting,

some

identified [Plaintiff]” as the shooter.

of

narrowly

enforcement
available

construed

official
exculpatory

to

has

involve
mishandled

evidence,”

specifically

Wilson v. City of New

York, 480 F. App’x 592, 595 (2d Cir. 2012).
been

it

Because “Russo has

situations
or

like

where

suppressed
the

a

law

readily

videotape

that

definitively exonerated the plaintiff in Russo, the Court finds
Plaintiff has not plausibly alleged a claim for unlawful pre-trial
detention.

Jackson, 29 F. Supp. 3d at 179 (emphasis added).
Accordingly, Defendants’ motion to dismiss Plaintiff’s

claim for unlawful pre-trial detention is GRANTED.
65

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D.

New York State Law Claims
1.

Malicious Prosecution (Claim 6)

In arguing for dismissal of the New York state law
malicious

prosecution

claim,

the

County

reiterates

the

same

arguments it made in connection with Plaintiff’s Section 1983
malicious prosecution claim.

Because those arguments failed, and

because the County does not explain why the outcome should be
different under New York state law, the County’s motion to dismiss
this claim is DENIED.
The Village Defendants move for dismissal of Plaintiff’s
malicious prosecution claim on different grounds, arguing that the
County,

not

Plaintiff.

the

Village

initiated

the

(Village Defs. Br. at 23-24.)

prosecution

against

Plaintiff argues in

response that dismissal “would be premature.” (Pl. Opp. to Village
Defs. at 19.)

However, the Court finds that it is well established

under New York law that a village is not liable for malicious
prosecution where it does not prosecute the plaintiff.

See Roche

v. Village of Tarrytown, 309 A.D.2d 842, 843, 766 N.Y.S.2d 46, 47
(N.Y. App. Div. 2d Dep’t 2003) (“[S]ince the Village did not
prosecute Roche, the Village cannot be charged with malicious
prosecution.”); O’Dell v. County of Livingston, 174 A.D.3d 1307,
1308, 103 N.Y.S.3d 730, 732 (N.Y. App. Div. 4th Dep’t 2019)
(“Inasmuch as the Village did not prosecute plaintiff, the Village

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cannot be sued for malicious prosecution.”).

Accordingly, the

Village’s motion to dismiss this claim is GRANTED.
2.

False Imprisonment (Claim 7)

Arguing for dismissal of Plaintiff’s common law false
imprisonment claim, 12 the County reiterates the arguments that it
made

in

connection

prosecution,

i.e.,

with

the

Plaintiff’s

County

had

claim

probable

Plaintiff based on the Witherspoon statements.

for
cause

malicious
to

arrest

Having found that

Plaintiff has plausibly alleged the County did not have probable
cause to defeat Plaintiff’s malicious prosecution claim, the Court
concludes the same outcome is warranted as to Plaintiff’s common
law false imprisonment claim, even though the probable cause
showing necessary to defeat a false arrest claim is less than that
necessary to defeat a malicious prosecution claim.

Accordingly,

the County’s motion to dismiss the false imprisonment claim is
DENIED.
Because the Village did not arrest or detain Plaintiff,
however,

the

Village’s

motion

to

dismiss

Plaintiff’s

false

imprisonment claim is GRANTED.

The Court clarifies that Plaintiff’s false imprisonment claim
relates to the time he spent incarcerated for the murder of Steven
Jason, not for any prior drug offenses.
12

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3.

Intentional and/or Negligent Infliction of Emotion
Distress (Claim 8)

Plaintiff

asserts

a

claim

for

intentional

and/or

negligent infliction of emotional distress against the County and
Village.

Under New York state law, the tort of intentional

infliction of emotional distress has four elements: “(1) extreme
and

outrageous

conduct,

(2) intent

to

cause

severe

emotional

distress, (3) a causal connection between the conduct and the
injury, and (4) severe emotional distress.”

Grice v. McMurdy, 498

F. Supp. 3d 400, 414 (W.D.N.Y. 2020) (quoting A.M. ex rel. J.M. v.
N.Y.C. Dep’t of Educ., 840 F. Supp. 2d 660, 690 (E.D.N.Y. 2012)).
As this Court has recognized in earlier wrongful conviction suits,
it is well settled under New York law that the “circumstances under
which recovery may be had for purely emotional harm are extremely
limited . . . .”

Tankleff v. County of Suffolk, No. 09-CV-1207,

2010 WL 5341929, at *14 (E.D.N.Y. Dec. 21, 2010) (quoting Jason v.
Krey, 60 A.D.3d 735, 875 N.Y.S.2d 194, (N.Y. App. Div. 2d Dep’t
2009)); see also Kogut v. County of Nassau, Nos. 06-CV-6695, 06CV-6720, 2009 WL 5033937, at *12-13 (E.D.N.Y. Dec. 11, 2009)
(Seybert, J.).

Moreover, the New York Court of Appeals has

“questioned whether the doctrine of liability for intentional
infliction of extreme emotional distress should be applicable
where the conduct complained of falls well within the ambit of
other traditional tort liability,” such as claims for false arrest
or malicious prosecution, a proposition that has been consistently
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applied by lower state courts and federal courts applying New York
law.

Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375, 404

(S.D.N.Y. 2009) (quoting Fischer v. Maloney, 43 N.Y.2d 553, 557,
402 N.Y.S.2d 991, 992–93, 373 N.E.2d 1215 (N.Y. 1978)); see also
Moore v. City of New York, 219 F. Supp. 2d 335, 339 (E.D.N.Y.
2002).
Here, Plaintiff alleges conduct that fits well within
traditional

tort

theories

of

false

arrest

and

malicious

prosecution. Thus, his claim for intentional infliction of emotion
distress “will not fly.”

Yang Feng Zhao, 656 F. Supp. 2d at 405;

Moore, 219 F. Supp. 2d at 340 (dismissing intentional infliction
of

emotional

traditional
prosecution).

distress
tort

claims

claims

where

for

they

false

“overlap[ped]”

arrest

and

with

malicious

The Court finds unpersuasive the cases cited by

Plaintiff because they fail to address the New York Court of
Appeals’ concern that intentional infliction of emotional distress
claims

are

not

the

appropriate

vehicle

when

a

plaintiff’s

allegations fit within the mold of traditional tort theories. (Pl.
Opp. to County Defs. at 29-30.) 13
Plaintiff’s claim for negligent infliction of emotional
distress is an even greater stretch.

In general, New York courts

have exhibited a “longstanding reluctance to recognize causes of

See Newton v. City of New York, 566 F. Supp. 2d 256, 281 (S.D.N.Y.
2008); Hincapie, 2020 WL 362705 at *10; see also Grega v.
Pettengill, 123 F. Supp. 3d 517, 550–51 (D. Vt. 2015).
13

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action for negligent infliction of emotional distress, especially
in cases where the plaintiff suffered no independent physical or
economic injury . . . . [because] tort liability is not a panacea
capable of redressing every substantial wrong.”

Broadnax v.

Gonzalez, 2 N.Y.3d 148, 153, 809 N.E.2d 645, 648, 777 N.Y.S.2d
416, 419 (N.Y. 2004) (carving out an exception to the general rule,
and allowing expectant mothers to recover damages for emotional
distress

in

cases

involving

medical

malpractice

resulting

in

miscarriage or stillbirth); see also Mobley v. King, 4 N.Y.3d 627,
637, 830 N.E.2d 301, 304, 797 N.Y.S.2d 403, 406 (N.Y. 2005)
(recognizing the holding in Broadnax as “a narrow one, intended to
permit a cause of action where otherwise none would be available
to

redress

the

stillbirth”).

wrongdoing

that

resulted

in

a

miscarriage

or

Here, Plaintiff alleges intentional, not negligent,

police misconduct.

(See SAC ¶ 168 (alleging “deliberate conduct

of defendants” caused Plaintiff emotional distress).)

As such,

the conduct alleged here does not fit within the narrow band of
negligent emotional distress cases recognized under New York law.
Accordingly, Defendants’ motions to dismiss Plaintiff’s
intentional

and/or

negligent

infliction

claims are GRANTED.
* * *

70

of

emotional

distress

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The

Court

has

considered

the

parties’

remaining

arguments and finds them to be without merit or mooted by this
Memorandum and Order.
CONCLUSION
Thus, for the foregoing reasons, IT IS ORDERED that the
Court:
(1) GRANTS the Village Defendants’ motion to dismiss in
its entirety; and
(2) GRANTS

IN

PART

and

DENIES

IN

PART

the

County

Defendants’ motion to dismiss, with the motion:
(a) GRANTED with respect to all claims asserted
against the Mullen Estate;
(b) GRANTED with respect to Claims 4, 8, and 11;
(c) GRANTED IN PART with respect to Claim 6, such
that the Plaintiff’s claim based on the widespread
practice theory is dismissed, but that Plaintiff’s
claim based on the failure-to-train and failureto-supervise theories remains; and
(d) DENIED with respect to Claims 1, 2, 3, 5, 6, 7,
10, and 12.
IT IS FURTHER ORDERED that WITHIN FIFTEEN (15) DAYS FROM
THE DATE OF THIS ORDER, Plaintiff is directed to file a third
amended

complaint

that

omits

the

stricken

exhibits

and

any

reference to them in the body of the complaint, along with a
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redline version (filed as an attachment) reflecting the changes.
Plaintiff is not permitted to amend his pleadings to remedy the
deficiencies

identified

herein;

rather,

the

third

amended

complaint is to reflect the Court’s rulings, consistent with this
Memorandum and Order.

SO ORDERED.
/s/ JOANNA SEYBERT _____
Joanna Seybert, U.S.D.J.
Dated:

July
28 , 2021
Central Islip, New York

72