The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CEON SIMON,
Plaintiff, MEMORANDUM & ORDER
16-CV-1017 (NGG) (RML)
-against-
CITY OF NEW YORK, DETECTIVE ERIC CRUZ,
and DETECTIVE TREMAYNE EVANS,
Defendants.
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Ceon Simon brings this action against Defendants the
City of New York, Detective Eric Cruz, and Detective Tremayne
Evans. (Am. Compl. (Dkt. 9).) Plaintiff asserts claims pursuant to
42 U.S.C. § 1983 for malicious prosecution, denial of his right to
a fair trial, and excessive detention. (Id.) Additionally, Plaintiff
asserts a malicious prosecution claim under New York law. (Id.)
Defendants move for summary judgment on all claims. (Def.
Mot. for Summ. J. (Dkt. 37).) For the reasons explained below,
Defendants’ motion for summary judgment is GRANTED with re-
spect to Plaintiff’s state and federal malicious prosecution claims
as well as his excessive detention claim and DENIED with respect
to his fair trial claim.
BACKGROUND
A. Facts
The court constructs the following statement of facts from the
parties’ Local Rule 56.1 Statements and the admissible evidence
they submitted. Except where otherwise noted, the following
facts are undisputed. Where the parties allege different facts, the
court notes the dispute and credits the Plaintiff’s version if it is
supported by evidence in the record. All evidence is construed in
the light most favorable to Plaintiff, as the non-moving party,
with all “reasonable inferences” drawn in his favor. ING Bank N.V.
v. M/V Temara, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir.
2018).1
On May 7, 2012, Jialing Ye was robbed at gunpoint at the inter-
section of Gold Street and Concorde Avenue in Brooklyn. (Defs.
R. 56.1 Statement (“Defs. 56.1”) (Dkt. 37-2) ¶¶ 1-2.) The assail-
ant took Ye’s cell phone and approximately fifteen dollars. (Id.
¶ 3.) The assailant then fled, quickly entering and exiting a build-
ing at 30 Prince Street as he left the scene. (Id. ¶ 4.) Omar
Santiago, a non-party New York Police Department (“NYPD”) of-
ficer who responded to the scene, observed a security camera at
30 Prince Street, which is a storage facility. (Id. ¶ 5.) The video
showed the assailant enter the building, place what appeared to
be a gun into his backpack, and leave the building. (Id. ¶ 6.) The
video also showed that a storage facility employee was present
when the assailant entered, but his identity was never docu-
mented and no NYPD officer ever obtained a statement from
him. ((Pl. R. 56.1 Statement (“Pl. 56.1”) (Dkt. 38-1) ¶ 51.)
What happened next is disputed. Defendants claim that Santiago
believes he was unable to recover the video, but do not dispute
that he “may” have recovered the video that day. (Defs. Reply in
Resp. to Pl. 56.1 Statement (Dkt. 39-1) ¶¶ 7-8.) Plaintiff asserts
that the video was recovered and shown by “two detectives” to
Gerald Latham, one of Plaintiff’s teachers, and Luis Caballero, a
school aide at Plaintiff’s school. (See Pl. 56.1 ¶¶ 66-78; see also
Decl. of Gerald Latham (“Latham Decl.”) (Dkt. 38-7); Decl. of
Luis Caballero (“Caballero Decl.”) (Dkt. 38-9).) Both Latham and
Caballero state that they know Plaintiff well; that the detectives
visited the school on May 7, 2012, and showed them the video;
and that they informed the detectives that the assailant in the
1 When quoting cases, unless otherwise noted, all citations and quotation
marks are omitted and all omissions and alterations are adopted.
video was not Plaintiff. (Latham Decl. at ¶¶ 2-6; Caballero Decl.
¶¶ 1-2.) Plaintiff asserts (and Defendants dispute) that these de-
tectives were Defendants Cruz and Evans, and that Cruz and
Evans did not document this exculpatory evidence. (Pl. 56.1
¶ 78.) Cruz did create a DD-52 documenting the existence of the
video, but the video was not vouchered or saved as evidence, for-
warded to the prosecutor, or produced to Plaintiff’s defense
attorney. (Id. ¶¶ 79-81.)
Later on May 7, 2012, Evans met Ye at the 84th Precinct and
instructed him to look through a series of mug shots on a NYPD
photo manager system; Ye identified Plaintiff as the assailant and
signed a photo of Plaintiff to document the identification. (Id.
¶¶ 17-22; see also Photo Viewing Report (Dkt. 37-11).) Plaintiff
disputes this, and submits evidence showing that while one may
print a log of a photo manager session, or upload the log to the
NYPD electronic case management system, Defendants did not
do so in this case. (Pl. 56.1 ¶¶ 17-22; Aff. of Charles Burke (Dkt.
38-16) ¶¶ 3-8.) However, Plaintiff has not produced evidence to
support his assertion that the lack of these optional, electronically
produced records means that the photo viewing session never
happened. Accepting that good practice would be to use these
features of the photo management system, Plaintiff’s submitted
evidence does not create a dispute of material fact as to whether
Ye used the photo manager to identify Plaintiff as his assailant.
(See Photo Viewing Report at 2.)
Cruz obtained an interpreter and interviewed Ye in Ye’s native
Mandarin. (Defs. 56.1 ¶ 26.) Ye stated that his assailant was
someone with whom he attended high school. (Id. ¶ 27.) Both Ye
and Simon attended Science Skills High School. (Id. ¶ 29.) On
May 9, 2012, Cruz went to the school and arrested Plaintiff. (Id.)
After Plaintiff was in custody, Ye identified him in a line-up. (Id.
2 A DD-5, or complaint follow-up form, is used to document steps taken as
part of an investigation. (See, e.g., DD-5 (Dkt. 37-22).)
¶¶ 31-32.) Plaintiff points out, and Defendants do not dispute,
that the other people in the line-up were of different ages and
builds. (Pl. 56.1 ¶¶ 99-102.) Only one other person was under
20 years old, like Plaintiff, and that person was five inches shorter
and 20 pounds lighter than Plaintiff. (Id.)
The Parties dispute whether Plaintiff made an incriminating
statement to his mother during a phone call made in Cruz’s pres-
ence. Defendants assert that Plaintiff called his mother from
Central Booking in the presence of Cruz, and, during the call,
stated “I did not rob the guy at the school park on Monday.”
(Defs. 56.1 ¶¶ 34-35; see also DD-5 (Dkt. 37-22).) Defendants al-
lege that Plaintiff had not been informed of the location of the
robbery or the gender of the victim when he made this statement.
(Defs. 56.1 ¶ 34.) Cruz documented Plaintiff’s alleged statement
in a DD-5 that was later provided to the prosecutor. (Id. ¶ 35;
DD-5.) Plaintiff, however, denies making this statement. (Pl. 56.1
¶ 34; Tr. of Oct. 12, 2017 Dep. of Ceon Simon (“Simon Dep.”)
(Dkt. 38-3) at 53:14-54:9.) While Defendants assert that the
phone call was made from Central Booking (see Defs. 56.1 ¶ 34),
the DD-5 indicates that the call was made from the 84th Precinct
(see DD-5). Plaintiff testified that he did not make any phone calls
from the precinct. (Simon Dep. at 53:16-17.)
Ye testified before a grand jury about the incident, and the grand
jury indicted Plaintiff for robbery in the first degree, robbery in
the third degree, petit larceny, and attempted assault in the third
degree. (Defs. 56.1 ¶¶ 40, 42.) Plaintiff was incarcerated at
Rikers Island for a little more than one month before bail was
posted on his behalf. (Pl. 56.1 ¶¶ 106, 108.) In April 2015, all
charges against Plaintiff were dismissed in “the interest of jus-
tice.” (Tr. of April 22, 2015 Proceedings (Dkt. 43-1); see also Defs.
56.1 ¶ 44.)
B. Procedural History
Plaintiff filed his complaint on March 1, 2016 (Compl. (Dkt 1)),
and amended it on June 29, 2016 (Am. Compl.). Defendant City
of New York filed its answer on July 13, 2016 (City of New York
Answer (Dkt. 10)) and Defendants Cruz and Evans filed their an-
swer on December 16, 2016 (Cruz & Evans Answer (Dkt. 17)).
After discovery, the Defendants filed a fully briefed motion for
summary judgment on September 28, 2018. (See Mot. for Summ.
J.; Mem. in Supp. of Mot. for Summ. J. (“Mem.”) (Dkt. 37-1);
Mem. in Opp. to Mot. for Summ. J. (“Opp.”) (Dkt. 38); Reply in
Further Supp. of Mot. for Summ. J. (“Reply”) (Dkt. 39).) In Au-
gust 2019, the Parties filed supplemental briefing on two cases—
Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018) and
McDonough v. Smith, 139 S. Ct. 2149 (2019)— that were decided
after the original briefing for the instant motion was complete.
(See Suppl. Mem. in Support of Mot. for Summ. J. (“Suppl.
Mem.”) (Dkt. 43); Suppl. Opp. to Mot. for Summ. J. (Dkt. 44);
Suppl. Reply (Dkt. 45).)
LEGAL STANDARD
A court must grant summary judgment when “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
Pro. 56(a). “A ‘material’ fact is one capable of influencing the
case’s outcome under governing substantive law, and a ‘genuine’
dispute is one as to which the evidence would permit a reasona-
ble juror to find for the party opposing the motion.” Figueroa v.
Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The movant may dis-
charge its initial burden by demonstrating that the non-movant
“has ‘failed to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” Lantheus Med. Imag-
ing, Inc. v. Zurich Am. Ins. Co., 255 F. Supp. 3d 443, 451 (S.D.N.Y.
2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986).
“To determine whether an issue is genuine, ‘[t]he inferences to
be drawn from the underlying affidavits, exhibits, interrogatory
answers, and depositions must be viewed in the light most favor-
able to the party opposing the motion.’” Mikhaylov v. Y & B Trans.
Co., No. 15-CV-7109 (DLI), 2019 WL 1492907, at *3 (E.D.N.Y.
Mar. 31, 2019) (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196,
202 (2d Cir. 1995)). While the court must draw all inferences in
favor of the non-movant, the non-movant “may not rely on mere
speculation or conjecture as to the true nature of the facts to over-
come a motion for summary judgment.” Fletcher v. Atex, Inc., 68
F.3d 1451, 1456 (2d Cir. 1995)).
DISCUSSION
A. Federal and State Malicious Prosecution Claims
1. Section 1983 Malicious Prosecution Claim
“In the absence of federal common law, the merits of a claim for
malicious prosecution under § 1983 are governed by state law.”
Dufort v. City of New York, 874 F.3d 338, 350 (2d Cir. 2017). In
New York, the elements of a malicious prosecution claim are “(1)
the commencement or continuation of a criminal proceeding by
the defendant against the plaintiff, (2) the termination of the pro-
ceeding in favor of the accused, (3) the absence of probable cause
for the criminal proceeding and (4) actual malice.” Id. (quoting
Smith-Hunter v. Harvey, 734 N.E.2d 750, 752-53 (N.Y. 2000)). In
Lanning, the Second Circuit reaffirmed its holding in Singleton v.
City of New York, 632 F.2d 185, 195 (2d Cir. 1980), that a plain-
tiff alleging malicious prosecution under § 1983 can only satisfy
the favorable termination element by showing that “the prosecu-
tion terminated in some manner indicating that the person was
not guilty of the offense charged.” Lanning, 908 F.3d at 26 (quot-
ing Singleton, 632 F. 3d at 194-95). Lanning is explicit that “a
dismissal in the interest of justice [that] leaves the question of
guilt or innocence unanswered . . . cannot provide the favorable
termination required” for a § 1983 malicious prosecution claim.
Id. at 28-29 (quoting Hygh v. Jacobs, 961 F.2d 359, 367-68
(2d Cir. 1992)).
Here, the charges against Plaintiff were dismissed “in the interest
of justice,” and the dismissal did not affirmatively indicate Plain-
tiff’s innocence. (See Tr. of April 22, 2015 Proceedings); see also
Lanning, 908 F.3d at 28-29. Therefore, Plaintiff’s malicious pros-
ecution claim under § 1983 fails as a matter of law, and
Defendants’ motion for summary judgment on this claim is
GRANTED.
2. New York Malicious Prosecution Claim
“[F]or malicious prosecution claims brought under New York
law, federal courts must faithfully apply New York tort law.” Lan-
ning, 908 F.3d at 28. While the elements for malicious
prosecution under New York law are identical to those under §
1983, see Smith-Hunter, 734 N.E.2d at 752-53, the standard for
a favorable termination is different. In Cantalino v. Danner, 754
N.E.2d 164 (N.Y. 2001) the New York Court of Appeals held that
“any termination of a criminal prosecution, such that the criminal
charges may not be brought again, qualifies as a favorable termi-
nation, so long as the circumstances surrounding the termination
are not inconsistent with the innocence of the accused.” Id. at
167.
However, even assuming Plaintiff’s dismissal meets the favorable
termination requirement, his New York malicious prosecution
claim fails because he is unable to show the absence of probable
cause for the criminal proceeding. See Smith-Hunter v. Harvey,
734 N.E.2d at 752-53. “[T]he existence of probable cause is a
complete defense to a claim of malicious prosecution in New
York.” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003).
When a malicious prosecution plaintiff has been indicted by a
grand jury, “New York law creates a presumption of probable
cause that can only be overcome by evidence that the indictment
was the product of fraud, perjury, the suppression of evidence by
the police, or other police conduct undertaken in bad faith.” Ber-
mudez v. City of New York, 790 F.3d 368, 377 (2d Cir. 2015). A
malicious prosecution plaintiff must “establish what occurred in
the grand jury, and [] further establish that those circumstances
warrant a finding of misconduct sufficient to erode the premise
that the Grand Jury acts judicially.” McClennon v. New York City,
No. 13-CV-128 (KAM), 2018 WL 2943565, at *17 (E.D.N.Y. June
11, 2018) (quoting Rothstein v. Carriere, 373 F.3d 275, 284 (2d
Cir. 2004)).
Here, Plaintiff asserts, inter alia, that Defendants’ failed to
properly voucher, save, and produce the security video; that they
failed to document and forward the exculpatory statements of
Latham and Caballero; and that Cruz fabricated evidence that
was later sent to the prosecutor. However, none of this alleged
misconduct relates to “what occurred in the grand jury,” McClen-
non, 2018 WL 2943565, at *17, which was limited to Ye’s
testimony identifying Plaintiff as his assailant.
Plaintiff relies on McClellan v. Smith, 439 F.3d 137, 146 (2d Cir.
2006) for the proposition that the presumption of probable cause
arising from an indictment “is rebuttable, and may be overcome
by evidence establishing that the police witnesses have not made
a complete and full statement of facts [or] that they have misrep-
resented or falsified evidence or otherwise acted in bad faith.” Id.
Plaintiff argues that Defendants’ actions in withholding evidence
from the prosecutor—including the video of the incident—over-
come the presumption here. (See Opp. at 12-14.) McClellan does
not help Plaintiff. There, the police officer acted “solely in order
to further the officer's own personal goals,” and the resulting in-
dictment was a product of that officer’s bad acts. McClellan, 439
F.3d at 146. Here, the indictment was based not on the bad acts
of Evans or Cruz, but on the eyewitness testimony of Ye. (See
Defs. 56.1 ¶¶ 40-42.) Even crediting Plaintiff’s assertion that Ev-
ans and Cruz withheld significant evidence from the prosecutor,
that evidence would not have been enough to “conclusively es-
tablish [] [P]laintiff's innocence” in light of Ye’s first-hand
eyewitness account. See Stukes v. City of New York, No. 13-CV-
6166 (NGG), 2015 WL 1246542, at *5 (E.D.N.Y. Mar. 17, 2015).
Because Plaintiff has not overcome the presumption of probable
cause arising from the grand jury indictment, Defendants’ motion
for summary judgment on Plaintiff’s state law malicious prosecu-
tion claim is GRANTED.
B. Fair Trial Claim
“When a police officer creates false information likely to influ-
ence a jury's decision and forwards that information to
prosecutors, he violates the accused's constitutional right to a fair
trial, and the harm occasioned by such an unconscionable action
is redressable in an action for damages under 42 U.S.C. § 1983.”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).
To prevail on a fair trial claim based on the fabrication of infor-
mation, a plaintiff must show that “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 re-
sult.” Garnett v. Undercover Officer C0039, 838 F.3d 265, 277 (2d
Cir. 2016).
1. Effect of McDonough on Fair Trial Claims
Before addressing Plaintiff’s claim in full, the court first considers
the threshold issue of whether McDonough introduced a favora-
ble termination element for fair trial claims based on fabrication
of evidence, and, if so, whether favorable termination for fabri-
cation of evidence claims is analyzed under the same standard as
the favorable termination requirement for malicious prosecution
claims. As explained below, the court assumes without deciding
that McDonough introduced a favorable termination element into
Plaintiff’s fair trial claim and finds that Plaintiff’s dismissal in the
interest of justice meets the favorable termination requirement.
The primary question in McDonough was when the statute of lim-
itations for a § 1983 fabrication of evidence claim begins to run.
McDonough, 139 S. Ct. at 2153. The Court’s analysis relied heav-
ily on its prior decision in Heck v. Humphrey, 512 U.S. 477
(1994), specifically on Heck’s “pragmatic concerns . . . [of] avoid-
ing parallel criminal and civil litigation over the same subject
matter and the related possibility of conflicting civil and criminal
judgments.” McDonough, 139 S. Ct. at 2157 (citing Heck, 512
U.S. at 484-85). Seeking to respect “core principles of federalism,
comity, consistency, and judicial economy,” id. at 2158, the Court
concluded that the statute of limitations for a fabrication of evi-
dence claims “does not begin to run until the criminal
proceedings against the defendant (i.e., the § 1983 plaintiff) have
terminated in his favor.” Id. at 2154-55.
Only a few district courts in this circuit have considered
McDonough’s impact on § 1983 fair trial claims. In Ross v. City of
New York, No. 17-CV-3505 (PKC), 2019 WL 4805147 (E.D.N.Y.
Sept. 30, 2019), the court “assume[d] without deciding[] that a
favorable termination of Plaintiff’s underlying criminal prosecu-
tion is necessary to permit her to bring a fair trial claim,” but
found that an Adjournment in Contemplation of Dismissal
(“ACD”) qualified as a favorable termination. Id. at *8; see also
Colon v. City of Rochester, No. 17-CV-6160L (DGL), --- F. Supp.
3d ---, 2019 WL 6629276, at *16 n.7 (W.D.N.Y. Dec. 6, 2019)
(following Ross); Wellner v. City of New York, 393 F. Supp. 3d 388,
397 (S.D.N.Y. 2019) (finding that a plaintiff met McDonough’s
favorable termination requirement based on the dismissal of cer-
tain charges in exchange for a guilty plea on another charge); but
see Goldring v. Donawa, No. 16-CV-5651 (KAM), 2019 WL
4535507, at *4 (E.D.N.Y. Sept. 19, 2019) (a guilty plea is not a
favorable termination).
The court in Miller v. Terrillion, No. 16-CV-52 (ENV), ---
F. Supp. 3d ---, 2020 WL 549356 (E.D.N.Y. Jan. 30, 2020)
reached a different conclusion. In that case, an allegedly fabri-
cated statement was the “sole basis for the trespassing charge
brought against” the plaintiff, a charge that was eventually dis-
missed pursuant to an ACD. Id. at *6. Miller noted that, prior to
McDonough, “courts in this circuit . . . were of accord that ACDs
did not preclude fair trial claims of any stripe” and that
McDonough “did not go as far as to impose wholesale a favorable
termination requirement on all fair trial claims.” Id. at *4. How-
ever, because the court determined that the fair trial claim would
“attack[] . . . the legality of the prosecution against” the plaintiff,
it held that, post-McDonough, he “may not bring [his] fair trial
claim, the success of which would necessarily undermine the va-
lidity of a prosecution settled only by his acceptance of an ACD.”
Id. at *6 (citing Lanning, 908 F.3d at 26).
The court finds Ross’s approach more persuasive. Assuming, as
did Ross, that the dicta in McDonough introduced a favorable ter-
mination element into Plaintiff’s fair trial claim, it does not follow
that the strict “affirmative indication of innocence” standard nec-
essarily applies.3 To hold otherwise would be to abandon the
3 Defendants argue that because the Court in McDonough used the words
“favorable termination,” the court must apply the malicious prosecution
“affirmative indication of innocence” standard to Plaintiff’s fair trial claim.
(See Suppl. Mem. at 3; Suppl. Reply at 2-3.) This follows neither from
McDonough nor from Lanning. In McDonough, the Court was careful to
note that “[b]ecause McDonough’s acquittal was unquestionably a favora-
ble termination, we have no occasion to address the broader range of ways
a criminal prosecution (as opposed to a conviction) might end favorably to
the accused.” McDonough, 139 S. Ct. at 2160 n.10. The Court further
longstanding distinction between malicious prosecution claims
and fair trial claims based on the fabrication of evidence. As the
Second Circuit explained in Lanning, “[a] § 1983 claim for mali-
cious prosecution essentially alleges a violation of the plaintiff’s
right under the Fourth Amendment to be free from unreasonable
seizure.” Lanning, 908 F.3d at 28. Because “[t]he touchstone of
the Fourth Amendment is reasonableness,” an affirmative indica-
tion of innocence is necessary to allege malicious prosecution
because, “absent an affirmative indication that the person is in-
nocent of the offense charged, the government’s failure to
proceed does not necessarily imply a lack of reasonable grounds
for the prosecution.” Id.
In contrast, a fair trial claim based on the fabrication of evidence
arises out of the principle that “[n]o arrest, no matter how lawful
or objectively reasonable, gives an arresting officer or his fellow
officers license to deliberately manufacture false evidence
against an arrestee” and that to find otherwise “would make a
mockery of the notion that Americans enjoy the protection of due
process of the law and fundamental justice.” Ricciuti, 124 F.3d at
130. Because the fabrication of evidence is definitionally unrea-
sonable, the favorable termination requirement for a fair trial
acknowledged the potential need for “a context-specific and more capa-
cious understanding of what constitutes favorable termination for
purposes of a § 1983 false-evidence claim.” Id.
Also, Lanning did not seek to enshrine a single favorable termination stand-
ard for all § 1983 claims, but instead sought “to dispel any confusion
among district courts about the favorable termination element of a § 1983
malicious prosecution claim.” Lanning, 908 F.3d at 25; see also id. (“Our
prior decisions requiring affirmative indications of innocence to establish
‘favorable termination’ . . . govern § 1983 malicious prosecution claims . .
. .”); id. at 28-29 (reiterating that an affirmative indication of innocence is
required to establish favorable termination for a “the constitutional tort of
malicious prosecution in an action pursuant to § 1983”).
claim does not stem from the nature of the constitutional viola-
tion, but from the prudential best practice of avoiding conflicting
civil and criminal judgments resulting from parallel civil and
criminal litigation.4 McDonough, 139 S. Ct. at 2157 (citing Heck,
512 U.S. at 484-85).
In sum, McDonough does not alter the enduring distinction be-
tween malicious prosecution and fair trial claims; the two claims
arise out of different constitutional rights, protect against differ-
ent constitutional injuries, and implicate different constitutional
concerns. Favorable termination is required for a fair trial claim
insofar as it is necessary to avoid the risk that a judgment for the
plaintiff on his civil claim would conflict with or impugn the va-
lidity of the earlier criminal proceeding against him. McDonough,
139 S. Ct. at 2157-58. Here, the risk is nonexistent. A jury verdict
that Cruz violated Plaintiff’s due process right to a fair trial by
falsifying evidence would not conflict with or challenge the va-
lidity of the dismissal of charges against Plaintiff in the interest
of justice. Therefore, Plaintiff’s dismissal in the interest of justice
is a favorable termination for the purposes of his § 1983 fair trial
claim.
1. Application
Defendants primarily assert that Plaintiff cannot successfully es-
tablish the third element of his fair trial claim, that the falsified
statement was “likely to influence a jury’s verdict.” Garnett, 838
F.3d at 279; (see also Mem. at 18-19). They contend that the fab-
ricated statement was not material because it did not appear in
4 At least one other court in this district has made a similar distinction.
Months after holding that an ACD constitutes a favorable termination for
a fair trial claim, see Ross, 2019 WL 4805147, ay *7, Judge Chen held in
Turyants v. City of New York, No. 18-CV-841 (PKC), 2020 WL 804900
(E.D.N.Y. Feb. 18, 2020) that “[i]t is settled law in the Second Circuit that
an ACD . . . is not a favorable outcome for purposes of malicious prosecu-
tion claims.” Id. at *6.
the criminal complaint, and that because “it could never have
been presented to the jury” because it wasn’t properly disclosed,
“ipso facto, it could not have influenced the jury.” (Mem. at 19.)
This misconstrues the law around the materiality of fabricated
evidence. “Whether fabricated evidence is likely to influence a
jury’s decision can be satisfied by showing that the fabricated ev-
idence was material to the prosecutor’s case.” Ashley v. Civil, No.
14-CV-5559 (NGG), 2019 WL 3428522, at *4 (E.D.N.Y. July 30,
2019) (M&O on Mot. for J. as a Matter of L.). “[F]abricated evi-
dence is material when it may affect the prosecutor’s decision to
pursue charges rather than to dismiss the complaint without fur-
ther action or [when it] could influence the prosecutor’s
assessments of the strength of the case.” Id. (quoting Garnett, 838
F.3d at 277). Plaintiff’s purported statement, implying that he in-
dependently knew the location of the robbery and the gender of
the victim (see DD-5), is powerfully incriminating.5 It could have
easily “influence[d] the prosecutor’s assessments of the strength
of the case” and may well have “affect[ed] the prosecutor’s deci-
sion to pursue charges rather than to dismiss the complaint.”
Ashley, 2019 WL 3428522, at *4.
Defendants’ argument that Plaintiff cannot establish a causal con-
nection between the fabricated statement and Plaintiff’s
deprivation of liberty is similarly flawed. If a jury were to find
that the falsified statement influenced the prosecutor’s decision
to pursue charges, it could also find that Plaintiff suffered a dep-
rivation of liberty “as a result of” the fabricated statement. See
Ashley v. City of New York, No. 14-CV-5559 (NGG), 2018 WL
5 In their brief, Defendants cite several cases standing for the proposition
that there is no constitutional violation when a police officer fabricates a
piece of evidence but then does not use it against a criminal defendant.
(See Mem. at 19 (citing, e.g., Zahrey v. Coffee, 221 F.3d 342, 348 (2nd Cir.
2000)).) This argument is somewhat perplexing, as Defendants do not dis-
pute that the allegedly fabricated statement was sent to the prosecutor.
(See Defs. 56.1 ¶ 35.)
6419951, at *3 (E.D.N.Y. Dec. 6, 2018) (M&O on Mot. for Re-
cons. of Partial Grant of Summ. J.) (citing Garnett 838 F.3d at
279-80).
Because Defendants have not demonstrated that they are entitled
to judgment as a matter of law on Plaintiff’s fair trial claim, their
motion for summary judgment is DENIED as to that claim.
C. Excessive Detention Claim
Plaintiff alleges in his opposition to the instant motion that he
“has established a prima facie case of . . . excessive detention.”
(Opp. at 20.) As an initial matter, it is not immediately clear that
this claim was included in the amended complaint. There, Plain-
tiff alleges that Defendants “violated the Plaintiff’s . . . rights
under the Fourth . . . Amendement[] . . . [by] unreasonably
seiz[ing] the Plaintiff.” (Am. Compl. ¶ 60.) It is questionable
whether this is a “short and plain statement” of an excessive de-
tention claim as required by Federal Rule of Civil Procedure 8(a).
However, even assuming that Plaintiff stated a claim for exces-
sive detention under the Fourth Amendment, he is incorrect that
he has established a prima facie case. In Russo v. City of Bridge-
port, 479 F.3d 196 (2d Cir. 2007), the Second Circuit held that
the Fourth Amendment protects against a “sustained detention
stemming directly from the law enforcement officials’ refusal to
investigate available exculpatory evidence.” Id. at 208. There, the
plaintiff was in custody for over two months despite the fact that
police officers had sole possession of and deliberately lied about
a video that clearly exonerated him. Id. Here, drawing all reason-
able inferences in favor of Plaintiff, if Cruz possessed and
withheld the video of the assailant and the statements from Lat-
ham and Caballero, Plaintiff still does not state a prima facie case
for an excessive detention claim. Because Ye identified Plaintiff
as the assailant on multiple occasions, Plaintiff’s detention did
not “stem[] directly from the law enforcement officials’ refusal to
investigate available exculpatory evidence,” id., and his excessive
detention claim therefore fails as a matter of law.
CONCLUSION
For the reasons explained above, Defendants’ (Dkt. 37) motion
for summary judgment is GRANTED with respect to Plaintiff’s
state and federal malicious prosecution claims as well as his ex-
cessive detention claim and DENIED with respect to his fair trial
claim. The Parties are DIRECTED to contact the chambers of
Magistrate Judge Robert M. Levy regarding next steps in the case
SO ORDERED.
Dated: Brooklyn, New York
March 19, 2020
_/s/ Nicholas G. Garaufis__
NICHOLAS G. GARAUFIS
United States District Judge