Jackson v. Nassau County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSEPH JACKSON,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-3007(JS)(AKT)

NASSAU 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.

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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: 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

For Village Keith Michael Corbett, Esq.

of Freeport Stephanie L. Tanzi, Esq.

Defendants: Harris Beach PLLC

100 Wall Street, 23rd Floor

New York, New York 10005

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, which motion the Nassau County

Supreme Court granted. 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 pre-

trial 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). Plaintiff filed an opposition

to both motions. (Pl. Opp. to Village Defs., ECF No. 300; Pl.

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 History1

A. The Parties

At all relevant times, Plaintiff has been a resident of

Nassau County, New York. (Second Amended Complaint (“SAC”), ECF

No. 278, ¶ 12.) 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.”

1 For purposes of this Memorandum and Order, all facts are drawn

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 unidentified

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

21.) As Montes would later tell Individual County Defendant

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. (Id.

¶ 33.) As they pursued the shooter, Larrea encountered Individual

Village Defendant Melendez, whom Larrea knew from growing up in

Freeport. (Id. ¶ 34.) The trio canvassed the area but could not

locate the shooter. (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”).

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.) She also

identified Plaintiff as the shooter. (See id. ¶¶ 102, 134.)

Plaintiff alleges that 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. (Id. ¶ 51.)

C. The Investigation

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

dozen of the Village officers who responded to the Steven Jason

homicide.” (Id. ¶ 37.) While at the station, Larrea apparently

informed “multiple 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

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 (1) concealed evidence that might have revealed

Larrea’s intoxication and (2) corrupted the 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. (Id. ¶ 44.)

Second, Plaintiff alleges Individual County Defendants

Abbondandelo, Dempsey, and Mullen corrupted the account of

Witherspoon “to suggest that Witherspoon had been the sole

eyewitness and had identified plaintiff as the perpetrator.” (Id.

¶ 45.) 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 of Peddie Jenkins and Skwanitra Witherspoon to

manufacture the identification of [Plaintiff] as the alleged

perpetrator.” (Id. ¶ 60.) He claims that, in or about October

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.) In his second statement, Jenkins included the

allegation that he observed Plaintiff commit the murder; in

exchange for including this allegation, Jenkins received a

favorable sentence in a pending criminal case. (Id. ¶ 63.)

D. 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]

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 lied3 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.” (Id. ¶¶ 71-74.)

Plaintiff provides no further information 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. (Id. ¶ 106.) In connection

with his trial, Plaintiff alleges that Defendants failed to

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

3 The SAC alleges Kosier lied to Plaintiff but does not allege he

evidence of Larrea’s 911 call; the Valdez Statement; the recorded

Baldwin-Zimmer Interview; and that Defendants had coerced

Plaintiff’s statement, caused his 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. (Id.

¶ 107.) As a result, the CIU moved to vacate 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. (SAC ¶ 112.)

F. 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. (Id. ¶¶ 76-88.) Plaintiff also

claims the County and Village Defendants were aware of, but

ignored, unconstitutional customs, policies and practices,

including “failing to conduct reasonable criminal investigations,

conducting unconstitutional interrogations, fabricating evidence

including confessions and evidence supporting probable cause,

committing perjury, failing to investigate alibi evidence,

coercing confessions, failing to disclose exculpatory evidence and

covering up this unconstitutional misconduct.” (Id. ¶ 116.)

Plaintiff further alleges Defendants and the individual

supervisors in this case failed to adequately screen, train, or

supervise subordinates. (Id. ¶¶ 117-18.)

II. Procedural History

Plaintiff initiated this action on May 22, 2018, against

the County, Village, and forty-two individual defendants.

(Compl., ECF No. 1.) 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

schedule on any renewed motions to dismiss the SAC at a March 6,

2020 status conference before Magistrate Judge Tomlinson. (Feb.

26, 2020 Elec. Order.) 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

(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.”

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.” Twombly, 550 U.S. at 555 (cleaned up).

Moreover, the Court is “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

is paragraph 20 of the SAC, which lists fifty-six exhibits

Plaintiff appended to his SAC. According to Plaintiff, these

exhibits were filed in connection with his pending claim for unjust

conviction in the New York State Court of Claims. (Pl. Opp. to

County Defs. at 8.) 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.

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 between Swenson and Valdez (“Ex. N”); (15) the

“relevant” pages from Witherspoon’s testimony 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

(“Ex. R”). (See generally, Loomba Decl., ECF No. 289.4) 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.

4 The attached exhibits are found at ECF Nos. 289-1 through 289-

24, respectively. Hereafter, the Court will simply cite to the

1. Applicable Law

The Court begins with the Federal Rules of Civil

Procedure (the “Rules”). Rule 8(a) requires “a short and plain

statement of the claim showing that the pleader is entitled to

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

attached as an exhibit to a complaint is also part of the

complaint. 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 without resolving a contest regarding its substantive

merits. 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

matters outside the pleadings, such as facts unearthed in

discovery, depositions, affidavits, statements, and any other

relevant form of evidence.” Id. 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 in Lynch, “The term ‘written instrument’ generally

refers to a ‘legal document that defines rights, 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

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 establish the fact of such litigation and related

filings.” 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

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. Id. at

254-55. 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. See Lynch, 952

F.3d at 78. 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

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.”

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.

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 withholds damaging information from a complaint.

Rather, the exception prevents plaintiffs from generating

complaints invulnerable to Rule 12(b)(6) 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 is to move for summary judgment, following

discovery.”) 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. Cf.

Doe, 2021 WL 1226384, at *12. 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

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). In

Global Network, the district court dismissed the 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

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. (See County Defs. Br. at

19-20; Loomba Decl., Exs. I, O.) 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 78-

79; 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

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.

C onsideration 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). Under Rule

12(d), converting Defendants’ motions requires 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”). Indeed,

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 party,” i.e., the decedent’s “successor or

representative.” FED. R. CIV. P. 25(a) (emphasis added). 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 Rule 25(a) is well

established, including in this Circuit. See Automated Info.

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 secured by the

Constitution or the laws of the United States. 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 to deprive individuals of their federally

guaranteed rights and to provide relief to victims if such

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

Further, it is well settled that to establish liability under

Section 1983, a plaintiff must “plead and prove ‘that each

Government-official defendant, through the official’s own

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

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.) The County Defendants argue

that the evidence provided by Witherspoon “establish[ed] an

independent basis of probable cause to initiate and continue the

criminal prosecution against Plaintiff,” and because probable

cause is a defense to a claim for malicious prosecution,

Plaintiff’s claim fails. 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

6 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,

Plaintiff based on Witherspoon’s evidence. In response, Plaintiff

assails the reliability of the evidence Witherspoon provided and

asks the Court to view it “holistically and in light of

[P]laintiff’s uncontested coercion, conspiracy and evidence

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

id. at 12-13, 15-19.) Because the parties dispute the extent to

which probable cause can 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).

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.” Stansbury v.

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

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 that the authorities became aware of exculpatory

evidence between the time of the arrest and the subsequent

prosecution that would undermine the probable 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 some ‘further

deprivation’” of the plaintiff’s liberty. 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, 980 F.3d 231, 244 (2d Cir. 2020); Garnett v.

Undercover Officer C0039, 838 F.3d 265, 278 (2d Cir. 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

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 shields government officials from civil liability

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)). Whether a right was clearly established

should be analyzed 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. Although “a qualified immunity

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. In light of Plaintiff’s allegations that

the Witherspoon 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

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, which it is precluded from doing at the

dismissal stage. Shabazz v. Kailer, 201 F. Supp. 3d 386, 397

(S.D.N.Y. 2016) (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 the

County Defendants’ probable cause determination. 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, on whose statements and testimony the County

Defendants attempt to base their entire probable cause

determination. 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

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. Thus, unlike the defendants in Jean,

according to the allegations, here, the County Defendants

discovered “intervening fact[s]” that dissipated any probable

cause determination supported by evidence furnished by

Witherspoon. 2020 WL 1244786, at *9.

The Court declines the County Defendants’ invitation to

turn a blind eye to these allegations and rely entirely on

Witherspoon to find probable cause existed to prosecute. As

Plaintiff aptly points out, each of the cases cited by the County

Defendants was decided at the summary judgment stage. (See Pl.

Opp. to County Defs. at 20-22.) The County Defendants fail to

identify a single case decided on motion to dismiss where the

district court, confronted with well-pleaded allegations of

evidence fabrication, dismissed a malicious prosecution claim

based on a finding that the defendants had probable cause to

prosecute independent of that allegedly fabricated evidence. See,

e.g., Hoyos, 999 F. Supp. 2d at 390 (dismissing malicious

prosecution claim based on independent probable cause on summary

judgment); Morse, 2012 WL 3202963 (same); Torres v. City of New

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 cause must be independent from the alleged

fabrication.” Ross, 2019 WL 4805147, at *8. While the County

Defendants point to the evidence provided by Witherspoon as

independent probable cause supporting Plaintiff’s prosecution

(County Defs. Br. at 19-20), Plaintiff alleges that certain

Individual County Defendants corrupted the account of Witherspoon

to pin the murder on him (SAC ¶ 60). As a result, at this stage,

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

“The Due Process Clause guarantees a criminal

defendant’s ‘right to a fair trial.’” 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.” Id. (quoting Ricciuti, 124 F.3d

at 130). The elements of a denial of the right to a fair trial

claim 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

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

the Morning Report any reference to the Montes and Larrea

Statements and mischaracterizing Witherspoon’s statements to

police. The Second Circuit has clarified that 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. Hutchins, 2018

WL 4757970, at *16. 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 the alleged perpetrator,”

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 plaintiff’s allegations that “the defendants

fabricated evidence, gave false testimony, and made false

extrajudicial statements to the Manhattan District 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.”).

7 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,

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. (County

Defs. Br. at 28-29.) 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 or

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

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

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 Monks, questioned

witnesses or documented their interviews.”) 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

8 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

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 allege he personally

participated in the alleged coercion. (County Defs. Br. at 21-

22.)

A Section 1983 coercion claim may arise “if coercion was

applied to obtain a waiver of the plaintiff’s rights against self-

incrimination 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

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. However, as the Second

Circuit recently made clear, “there 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 relying on a special test for supervisory

liability.” Tangreti, 983 F.3d at 620. As a result, Plaintiff

cannot proceed against Severin under Section 1983 based purely on

his supervisory role at the County. Nevertheless, because

9 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,

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 to train; and

(3) failure to supervise and discipline. (See SAC ¶¶ 76-88, 113-

18, 150-55.) 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, and employing unconstitutional

interrogation tactics. (See id. ¶ 150.) 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. (See id. ¶¶

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). “Rather, municipalities may be liable only

where ‘execution of a government’s policy or custom’ causes

constitutional violations.” 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

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 of a subordinate’s unconstitutional actions, and

consciously chose to ignore them, effectively ratifying the

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

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.

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 the failure to train caused his

constitutional injuries.” 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

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 F.3d 1040, 1049 (2d Cir. 1995), “there is no

requirement that complaints result in a formal 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 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, 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

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. (SAC

¶ 76 (block quoting Kogut, 2012 WL 3704710, at *2-3).) 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 third-

party 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. As a result,

these lawsuits cannot support Plaintiff’s allegation of a

widespread de facto custom of conducting constitutionally

inadequate investigations, committing perjury, suppressing from

prosecutors material information favorable to criminal defendants,

failing to comply with Brady obligations, and employing

unconstitutional interrogation tactics, because they do not

involve factually similar misconduct. Nor can they support an

inference of a widespread custom of fabricating inculpatory

evidence or failing to obtain probable cause to 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 “was so frequent and pervasive to

constitute a custom.” 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.’” Buari, 2021 WL

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-to-

Supervise 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

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.” 361 F.3d at 130, n.10.10 Moreover, Plaintiff has alleged,

and this Court concluded in 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. Unlike the multiple

constitutional violations alleged against the County, the

10 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.)

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.” Paulin, 2019 WL 4274211, at *7

(collecting cases where 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 theories; and the

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. (SAC ¶ 172.) In support of

that claim Plaintiff highlights: (1) the 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). Because the conspiracy allegations against

the Individual 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,

11 The Individual County Defendants do not move to dismiss the

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 Defendants to act in concert to violate

Plaintiff’s rights. 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

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 that Melendez was motivated to

conspire is not enough. 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 conspiracy-

related 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,

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 Individual County

Defendants subject to the conspiracy claim. 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 of depriving [the plaintiff] of his constitutional

rights.”) There are no facts in the SAC supporting Plaintiff’s

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

conspiracy claim against the Individual Village Defendants

untenable. Even when confronted with 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

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.” Anderson v. Branen, 17

F.3d 552, 557 (2d Cir. 1994). 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,

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).

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 first-

degree 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. Id. However, the plaintiff had prominent tattoos on

his forearms, hands, neck, and legs. Id. at 199-200.

Nevertheless, during the subsequent seven months 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

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.”). Rather, “most of the evidence was testimonial, and

while the evidence was conflicting, some of it specifically

identified [Plaintiff]” as the shooter. Wilson v. City of New

York, 480 F. App’x 592, 595 (2d Cir. 2012). Because “Russo has

been narrowly construed to involve situations where a law

enforcement official has mishandled or suppressed readily

available exculpatory evidence,” like the 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.

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 the Village initiated the prosecution against

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

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 with Plaintiff’s claim for malicious

prosecution, i.e., the County had probable cause to arrest

Plaintiff based on the Witherspoon statements. 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.

12 The Court clarifies that Plaintiff’s false imprisonment claim

relates to the time he spent incarcerated for the murder of Steven

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, 06-

CV-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

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 distress claims where they “overlap[ped]” with

traditional tort claims for false arrest and malicious

prosecution). 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

13 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.

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 wrongdoing that resulted in a miscarriage or

stillbirth”). 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 of emotional distress

claims are GRANTED.

* * *

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 failure-

to-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

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