Fowler-Washington v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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IKEEM FOWLER-WASHINGTON,

PLAINTIFF, MEMORANDUM & ORDER

-against- 19-CV-6590(KAM)(RER)

CITY OF NEW YORK, ET AL.,

DEFENDANTS.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Ikeem Fowler-Washington (“Mr. Fowler-

Washington”) brought this action against New York City Police

Officers Lawrence Avvenire, Kai Babb, Derrick Coleman, Roderick

Dantini, Brian Donoghue, Thomas Gagliardi, James Geissler, Shawn

Hayes, Vincent Hoosack, Steven Humburg, Jason Mayo, Jaipaul

Ramdat, Derek Sambolin, James Sgaglione, Timothy Terrillion,

Michael Tierney (collectively, the “Officer Defendants”), and

the City of New York (with the Officer Defendants,

“Defendants”), pursuant to 42 U.S.C. §§ 1981 and 1983, alleging

violations of his Fourth, Fifth, Sixth,1 and Fourteenth Amendment

1 The Court notes that though Plaintiff alleges a denial of his constitutional

right to fair trial claim, he only references the right to a fair trial under

the Due Process Clause of the Fifth and Fourteenth Amendments of the United

States Constitution, however, the claim of a denial of the right to a fair

trial finds its roots in the Sixth Amendment, as well as the due process

clauses of the Fifth and Fourteenth Amendments. See Holbrook v. Flynn, 475

U.S. 560, 567 (1986) (recognizing that the Sixth and Fourteenth Amendments

secure the constitutional right to a fair trial); United States v. Ruiz, 536

U.S. 622, 628 (2002) (recognizing that the Fifth and Sixth Amendments form

“part of [the Constitution’s] basic ‘fair trial’ guarantee”).

rights, specifically, the denial of the right to a fair trial

and excessive force. (ECF Nos. 1, Compl.; 14, First Amended

Compl.) Plaintiff’s denial of fair trial claim is predicated on

his contention that officers falsely stated that Plaintiff

resisted arrest.

Defendants move for partial summary judgment with

respect to the Plaintiff’s denial of the right to a fair trial

claim, first as to Officer Defendants Sgaglione, Ramdat,

Sambolin, and then as to all Defendants.2 In his opposition

memorandum, Plaintiff agrees that the denial of the right to a

fair trial can be dismissed against Defendant Sambolin (ECF No.

109, Pl. Opp’n Mem. at p. 3) for lack of personal involvement.

The Court agrees and dismisses the fair trial claim against

Defendant Sambolin with prejudice. For the reasons set forth

below, Defendants’ motion for partial summary judgment is

GRANTED IN PART AND DENIED IN PART.

BACKGROUND

In the instant action, Mr. Fowler-Washington claims

that in the early morning of December 16, 2017, Defendants

executed a search warrant at his home in Queens, attacked him,

and fabricated evidence about his resisting arrest, which led to

criminal charges. The Court has taken the relevant facts for

2 See ECF Nos. 108, Defs. Mot.; 109, Pl. Opp’n Mem.; 111, Defs. Reply.

Defendants’ partial motion for summary judgment from the

parties’ respective Rule 56.1 statements of undisputed material

facts, declarations, depositions, and exhibits.3 Defendants’

counsel Peter Brocker attaches to his declaration true and

correct copies of exhibits and relevant portions of the

deposition transcripts of Mr. Fowler-Washington and of the

Officer Defendants. (See ECF Nos. 95, Brocker Decl.; 103,

Brocker Decl.) The declaration of Plaintiff’s counsel, Michael

Lumer, attaches true and accurate copies of relevant portions of

the deposition transcripts of Mr. Fowler-Washington. (See ECF

No. 98, Lumer Decl.) Based on the parties’ 56.1 statements, the

Court recounts the undisputed facts in the light most favorable

to the nonmoving party. See Capobianco v. City of New York, 422

F.3d 47, 50 n.1 (2d Cir. 2005). The Court also notes where

facts are disputed by the parties.

3 See ECF Nos. 94, Defs. 56.1 Statement; 95, Decl. of Peter Brocker; 95-1, Ex.

A, Search Warrant No. Q1375-17; 95-2, Ex. B, New York City Laboratory Report

No. 2017-109826; 95-3, Ex. C, Arrest Report No. Q17655530; 95-4, Ex. D,

Criminal Complaint; 95-5, Ex. E, Criminal Court Docket Sheet; 95-6, Ex. F,

Deposition of Ikeem Fowler-Washington (“Fowler-Washington Dep.”); 95-7, Ex.

G, Certificate of Disposition; 98, Decl. of Michael Lumer; 98-1, Ex. 1,

Deposition of Ikeem Fowler-Washington (“Fowler-Washington Dep.”); 93, Defs.

Pre-Motion Conference Letter; 99, Pl. Response to Defs. Pre-Motion Conference

Letter; 100, Pl. 56.1 Counter Statement; 102, Defs. 56.1 Reply; 103, Decl. of

Peter Brocker; 103-1, Ex. A, Deposition of Jaipaul Ramdat (“Ramdat Dep.”;

103-2, Ex. B, Deposition of Lawrence Avvenire (“Avvenire Dep.”); 108, Defs.

Mot.; 109, Pl. Opp’n Mem.; 110, Decl. of Andrew Spears in Supp. Partial Summ.

J.; 110-1, Defs. Ex. A, Deposition of James Sgaglione (“Sgaglione Dep.”);

111, Defs. Reply.

I. Factual Background

On December 16, 2017, Defendants executed a search

warrant for illegal drugs at 14-30 Red Fern Avenue, Apt. 1E,

Queens, NY, where Mr. Fowler-Washington resided. (ECF No. 100,

Pl. 56.1 Counter Statement ¶ 1.) Defendant James Sgaglione had

obtained a search warrant from Queens County Judge John Zoll on

December 13, 2017. (ECF No. 95-1, Brocker Decl., Ex. A, Search

Warrant No. Q1375-17.)

On the morning of December 16, 2017, Mr. Fowler-

Washington was awakened by a loud sound inside his apartment.

(ECF No. 102, Defs. 56.1 Reply ¶ 12.) Mr. Fowler-Washington

opened his bedroom door to see what was causing the noise, and

saw Defendants in his apartment, executing their search warrant.

(Id. ¶ 13.) From there, the parties’ accounts of their

encounter differ in significant ways. Though the Defendants

have moved for summary judgment only against Plaintiff’s denial

of fair trial claim, facts regarding Plaintiff’s excessive force

claim are included to complete the record.

Mr. Fowler-Washington asserts that the Defendants did

not mention anything about a search warrant and immediately

began to strike him in the head and face. (ECF Nos. 100, Pl.

56.1 Counter Statement ¶¶ 14-15; 98-1, Lumer Decl., Ex. A,

Fowler-Washington Dep. at pp. 33-34.) In his deposition,

Plaintiff stated that by the time he got up out of his bed, the

officers were in front of his bedroom door. (ECF No. 98-1,

Lumer Decl., Ex. A, Fowler-Washington Dep. at pp. 31-32.) He

then testified how they “just attacked” and “started hitting”

him. (Id. at p. 34.) Mr. Fowler-Washington could not see which

police officer hit him, he “just felt a lot of hits” on the left

side of his face, top of his head, and his back. (Id. at pp.

34-37.) He described the police officers “all around” him and

that, in response to the officers hitting him, he “just stood

there and put [his] head down.” (Id. at p. 36.)

Mr. Fowler-Washington was unable to provide more

details on exactly which Officer Defendants participated in

allegedly attacking him, and how many, because he explained that

once his face was struck, his vision became blurry, blood from

the cuts on his face dripped into his eyes, and he was unable to

“do anything.” (Id. at pp. 37-38.) Mr. Fowler-Washington

maintains under oath that he did not resist arrest or fight back

in any way. (ECF Nos. 100, Pl. 56.1 Statement ¶¶ 15, 17; 109,

Pl. Opp’n Mem. at p. 7.) It is undisputed between the parties

that Mr. Fowler-Washington suffered cuts on his face that

required nineteen sutures to close. (ECF No. 102, Defs. 56.1

Reply ¶ 16.)

Although Defendants admit that Mr. Fowler-Washington

suffered cuts requiring sutures, they deny that any Officer

Defendants struck Mr. Fowler-Washington. (ECF No. 102, Defs.

56.1 Statement ¶¶ 14-15.) Defendants assert that Mr. Fowler-

Washington physically resisted officers’ attempts to place him

in handcuffs. (Id.) Defendant Sgaglione testified in his

deposition that Defendant Avvenire told him that Mr. Fowler-

Washington had kicked his legs and flailed his arms while

Defendant Avvenire attempted to arrest him. (ECF 110-1, Andrew

Spears Decl., Ex. A, Sgaglione Dep. at p. 89.) Defendant

Sgaglione, who swore out the criminal complaint, also said that

he was told by Defendant Avvenire that Mr. Fowler-Washington

resisted to such an extent that Defendant Avvenire suffered a

laceration to his left middle finger. (Id. ¶ 17.) The parties

do not provide evidence of whether Defendant Sgaglione witnessed

any of the interaction between Mr. Fowler-Washington and

Defendant Avvenire, but Defendant Sgaglione testified that he

and Defendants Avvenire had a conversation regarding Plaintiff’s

arrest at the precinct, after the Plaintiff’s arrest. (See

generally ECF No. 110-1, Spears Decl., Ex. A, Sgaglione Dep.)

Defendant Sgaglione did not remember whether or not Defendant

Avvenire told him that Mr. Fowler-Washington kicked various

Officer Defendants. (Id. at 90.)

Defendant Ramdat testified to having to defend himself

and the other police officers against Mr. Fowler-Washington.

(Id. at p. 171.) Defendant Ramdat stated that though he saw Mr.

Fowler-Washington “struggling with Detective Sambolin,” he “did

not see” Mr. Fowler-Washington “kick and punch Detective

Sambolin.” (Id.) Defendant Avvenire described Defendants

Ramdat and Sambolin “trying to restrain [Plaintiff], trying to

grab his arms to handcuff him, but he was kicking and punching.”

(ECF No. 103-2, Spears Decl., Ex. B, Avvenire Dep. at p. 58.)

As to the nature and source of Mr. Fowler-Washington’s

injuries, Defendant Ramdat stated in his deposition that he

witnessed at least one laceration on Mr. Fowler-Washington’s

head and that it was bleeding. (ECF No. 103-1, Spears Decl.,

Ex. A, Ramdat Dep. at p. 128.) Defendant Ramdat described Mr.

Fowler-Washington as “conscious and alert, but he did have

visible injuries to his forehead.” (Id.) Defendant Ramdat

stated Mr. Fowler-Washington caused his own head to strike the

bedpost due to “his resistance and erratic movements” and that

Defendant Ramdat had to “us[e] force by putting [his] hands on

[Mr. Fowler-Washington] to prevent him from sustaining any more

injuries.” (Id. at p. 172.)

Mr. Fowler-Washington was arrested on December 16,

2017, while inside of his home. (ECF No. 100, Pl. 56.1 Counter

Statement ¶ 3.) Plaintiff contends that the arrest report

falsely stated, inter alia, that Mr. Fowler-Washington “did

actively flail his arms and legs, and grabbed the handcuffs of

officers in an attempt not to be placed under arrest.” (ECF No.

95-3, Brocker Decl., Ex. C, Arrest Report No. Q17655530 at p. 1

(capitalization omitted).) Defendant Sgaglione was listed as

the arresting officer and Defendant Ramdat was listed as the

officer who entered the arrest report. (Id. at p. 3.)

Defendants assert that they recovered marijuana from

their search of Mr. Fowler-Washington’s apartment on December

16, 2017. (ECF Nos. 95, Defs. 56.1 Statement ¶ 2; ECF 95-2, New

York City Laboratory Report No. 2017-109826.) The New York City

Laboratory Report analysis indicated that the collected

contraband from Mr. Fowler-Washington’s apartment was identified

as four bags of marijuana – with a total weight of 466.8 grams.

(ECF No. 95-3, New York City Laboratory Report No. 2017-109826.)

Defendant Sgaglione invoiced the drugs that were sent for

analysis. (Id.)

Defendant Sgaglione then swore in a criminal complaint

stating in relevant part, “on or about December 16, 2017 . . .

[Mr. Fowler-Washington] committed the offenses of: Criminal

Possession of Marijuana in the Fourth Degree; Criminal

Possession of a Controlled Substance in the Seventh Degree;

Criminally Using Drug Paraphernalia in the Second Degree; and

Resisting Arrest.” (ECF Nos. 100, Pl. 56.1 Counter Statement ¶

5; 95-4, Brocker Decl., Ex. D, Criminal Compl. (capitalization

omitted).) With respect to the resisting arrest offense, the

criminal complaint states Defendant Sgaglione was “informed by

Detective Avvenire that when [Defendant Avvenire] was attempting

to place handcuffs on the defendant [Mr. Fowler-Washington], the

defendant pulled his arms, pushed Detective Avvenire, and

attempted to remove handcuffs from Detective Avvenire’s hand,

causing a laceration to Detective Avvenire’s left middle finger,

in attempt to avoid being handcuffed and placed under arrest.”

(Id. (capitalization omitted))

Mr. Fowler-Washington’s criminal complaint, which was

presented at his arraignment on December 16, 2017, charged him

with two drug-related felonies and four misdemeanors, including

resisting arrest. (ECF Nos. 100, Pl. 56.1 Counter Statement ¶¶

4-5.) Mr. Fowler-Washington was released on his own

recognizance at arraignment. (Id. ¶ 7.) He made multiple

additional court appearances post-arraignment on January 29,

March 21, April 4, May 16, July 18, and September 18, 2018.

(Id. ¶ 8.)4 On May 16, 2018, Mr. Fowler-Washington pled guilty

to Criminal Possession of Marijuana, and the remaining charges,

including the Resisting Arrest charge, were dismissed. (Id. ¶¶

9-10; ECF No. 95-7, Brocker Decl., Ex. G, Certificate of

Disposition.)

4 Defendants state in their 56.1 Statement that Plaintiff made four additional

court appearances post-arraignment, Plaintiff disputed the number of

appearances with reference to Defendants’ Exhibit E and without any other

information. (ECF No. 100, Pl. 56.1 Counter Statement ¶ 8.) The Court

counts at least four dates on the Plaintiff’s Record of Court Action and has

included others from the record when the Plaintiff may likely have attended a

post-arraignment court appearance. (ECF No. 95-5, Brocker Decl., Ex. E,

Record of Criminal Court.)

II. Procedural Background

Mr. Fowler-Washington commenced this action on

November 21, 2019, and filed a First Amended Complaint on May 4,

2020. (ECF Nos. 1, Compl; 14, First Amended Compl.) On

February 11, 2022, pursuant to Federal Rule of Civil Procedure

56, Defendants filed a letter and Local Rule 56.1 Statement with

the Court seeking a pre-motion conference to file an anticipated

motion for partial summary judgment on the deprivation of fair

trial claim. (ECF Nos. 93-95.) On February 11, 2022, the

parties stipulated, and the Court ordered the (1) dismissals,

with prejudice, of all claims against the City of New York, Kai

Babb, Derrick Coleman, Roderick Dantini, Brian Donoghue, Thomas

Gagliardi, James Geissler, Shawn Hayes, Vincent Hoosack, Stevem

Humburg, Jason Mayo, Timothy Terrillion, and Michael Tierney;

(2) withdrawal with prejudice of Plaintiff’s first cause of

action, entitled Ҥ 1983 Claim Against the Individual

Defendants,” in the First Amended Complaint against Officer

Defendants Lawrence Avvenire, Derek Sambolin, Jaipaul Ramdat,

and James Sgaglione; and (3) the withdrawal with prejudice of

Plaintiff’s claims for excessive force and failure to intervene

against Defendant James Sgaglione. (ECF Nos. 92, 96.)

The remaining claims in Plaintiff’s First Amended

Complaint are the denial of right to fair trial regarding the

resisting arrest charge, the use of excessive force in arresting

Plaintiff, and failure to intervene under § 1983. (ECF No. 14,

First Amended Compl. at pp. 9-11.) The parties did not

stipulate to dismiss Plaintiff’s right to fair trial claim in

the First Amended Complaint against Officer Defendants Lawrence

Avvenire, Derek Sambolin, Jaipaul Ramdat, and James Sgaglione

for which Defendants have moved for summary judgment. (Id.)

On March 1, 2022, Plaintiff responded with his Rule

56.1 Counter Statement and opposition to Defendants’ 56.1

Statement. (ECF No. 99-100.) On March 15, 2022, the Defendants

responded with their Rule 56.1 Reply Statement and opposition to

Plaintiff’s Counter Statement. (ECF No. 102-03.) The parties

held an unsuccessful settlement conference before Magistrate

Judge Reyes on April 5, 2022. (Minute Entry for April 5, 2022.)

On June 3, 2022, the parties fully briefed Defendants’ motion

for partial summary judgment on the right to fair trial claim.

(ECF No. 107-111.)

STANDARD OF REVIEW

Summary judgment shall be granted to a movant who

demonstrates “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for

these purposes when it ‘might affect the outcome of the suit

under the governing law.’” Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). No genuine

issue of material fact exists “unless there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party.” Anderson, 477 U.S. at 249. “If the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Id. at 249-50 (citations

omitted).

When bringing a motion for summary judgment, the

movant carries the burden of demonstrating the absence of any

disputed issues of material fact and entitlement to judgment as

a matter of law. Rojas, 660 F.3d at 104. In deciding a summary

judgment motion, the court must resolve all ambiguities and draw

all reasonable inferences against the moving party. Flanigan v.

Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)). A moving party may indicate the absence

of a factual dispute by “showing . . . that an adverse party

cannot produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1)(B). Once the moving party has met its

burden, the nonmoving party “must come forward with admissible

evidence sufficient to raise a genuine issue of fact for trial

in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser

Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986)). Finally, the “mere

existence of a scintilla of evidence in support of the

[nonmoving party’s] position will be insufficient; there must be

evidence on which the jury could reasonably find for the

[nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). When considering a motion for summary

judgment, the Court must decide whether, drawing all inferences

in favor of the nonmoving party, the evidence would “permit a

reasonable juror to find for the party opposing the motion.”

Figueroa v. Mazza, 825 F.3d 89, 98 (2d Cir. 2016).

The Court notes that Defendants respond to a

significant number of Plaintiff’s factual statements in his 56.1

Counter Statement, by “[admit[ting] that Plaintiff so testified

but deny[ing] that this is a material fact.” (See, e.g., ECF

No. 103, at ¶¶ 14-15, 18). See also Major League Baseball

Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 312 (2d Cir.

2008) (“Under Rule 56, it is the court’s responsibility to

determine whether the opposing party's response to the assertion

of a material fact presents a dispute that is genuine.”); see

also United States v. Gentges, 531 F. Supp. 3d 731, 735 n.1

(S.D.N.Y. 2021) (“Any party’s failure to provide record support

for its challenge to another party’s factual statement could

allow the Court to deem the challenged facts undisputed.”).

Plaintiff does not dispute certain facts put forth by

Defendants, but nonetheless speculates about the veracity of

those facts. (ECF No. 109, Pl. Opp’n Mem. at p. 3.)

Accordingly, unless the Court has identified evidence

in the record supporting a dispute of fact, the Court will

consider the statements as undisputed admissions of the stated

fact. See Fed. R. Civ. P 56(e)5; Baity v. Kralik, 51 F. Supp. 3d

414, 418 (S.D.N.Y. 2014) (collecting cases) (holding that

“responses that do not point to any evidence in the record that

may create a genuine issue of material fact do not function as

denials and will be deemed admissions of the stated fact.”

(alteration, citation, and internal quotation marks omitted)).

DISCUSSION

I. DENIAL OF RIGHT TO FAIR TRIAL (FABRICATION OF EVIDENCE)

CLAIM

Plaintiff asserts a number of constitutional claims

arising out of the December 16, 2017 search of his home.

Defendants move for partial summary judgment only on Plaintiff’s

denial of a right to fair trial claim, leaving Plaintiff’s

excessive force and failure to intervene claims for trial.

Plaintiff’s denial of the right to a fair trial claim is

5 Federal Rule of Civil Procedure 56(e)(2) and (3) specifically provide that:

“If a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required by Rule 56(c),

the court may . . . . (2) consider the fact undisputed for purposes of the

motion [or] (3) grant summary judgment if the motion and supporting materials

— including the facts considered undisputed — show that the movant is

entitled to it[.]”

premised on his assertion of fabricated information or evidence

regarding resisting arrest that led to a deprivation of his

liberty. Garnett v. Undercover Officer C0039, 838 F.3d 265, 277

(2d Cir. 2016). To prevail, a plaintiff must demonstrate that

“an (1) investigating official (2) fabricates evidence (3) that

is likely to influence a jury’s decision, (4) forwards that

information to prosecutors, and (5) the plaintiff suffers a

deprivation of liberty as a result.” Jovanovic v. City of New

York, 486 F. App’x 149, 152 (2d Cir. 2012); Garnett 838 F.3d at

279. A plaintiff need not have proceeded to trial to have an

actionable § 1983 claim based on the denial of the right to a

fair trial, but rather need only show that the allegedly false

information is material, such that it would “likely influence a

jury’s decision[.]” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d

123, 130 (2d Cir. 1997).

A. Defendants Jaipaul Ramdat, Derek Sambolin, and James

Sgaglione and the Right to a Fair Trial Claim

Defendants assert that because Mr. Fowler-Washington

has not demonstrated the personal involvement of Officer

Defendants Jaipaul Ramdat, Derek Sambolin, or James Sgaglione in

his claim for denial of the right to a fair trial, summary

judgment should be granted as to these Officer Defendants.

Defendants argue that only Defendant Lawrence Avvenire stated

that Plaintiff had resisted arrest, and thus only he could have

potentially fabricated any evidence, and that the other three

Officer Defendants were not personally involved in any allegedly

false statement. (ECF Nos. 108, Defs. Mot. at p. 3-4; 95-4,

Criminal Complaint.) Plaintiff’s opposition asserts that only

Defendant Sambolin is entitled to dismissal of the “denial of

the right to a fair trial” claim because there is no evidence of

his involvement in either the arrest report or the criminal

complaint at all. (ECF No. 109, Pl. Opp’n Mem. at p. 3.)

Plaintiff, however, argues that there is evidence Defendants

Ramdat and Sgaglione were directly involved in providing false

information to the prosecutor. (Id.)

Because the parties agree that the right to fair trial

claim against Defendant Sambolin should be dismissed, this Court

dismisses the fair trial claim again Officer Defendant Sambolin.

The Court agrees with Plaintiff, however, there is at least a

genuine dispute of material fact as to how involved Defendant

Ramdat was in providing the alleged fabricated evidence, but

finds that Defendant Sgaglione relied on a fellow officer

regarding information to support the resisting arrest charge and

grants summary judgment in favor of Defendant Sgaglione.

“It is well settled in this Circuit that personal

involvement of defendants in alleged constitutional deprivations

is a prerequisite to an award of damages under § 1983.” Brandon

v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019) (quotations omitted).

The participation of each defendant is a requirement, because

defendants in a § 1983 action cannot be “held liable for damages

for constitutional violations merely because [they] held a high

position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d

Cir. 1996); see also Brandon at 36 (“Most cases addressing

personal involvement do so in the context of supervisory

defendants.”) The Court notes that here, there is no evidence

in the record that the Officer Defendants Sgaglione and Ramdat

are supervisors who were merely tangentially named in

Plaintiff’s claims as a result of their authoritative positions.

Since personal involvement is a question of fact we

are governed by the general rule that summary judgment may be

granted only if no issues of material fact exist and the

defendant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); Williams v. Smith, 781 F.2d 319, 323 (2d Cir.

1986) (citing Hayden Pub. Co., Inc. v. Cox Broadcasting Corp.,

730 F.2d 64, 67 (2d Cir. 1984).) The party seeking summary

judgment bears the burden of establishing that no such dispute

exists. Gutwein v. Roche Laboratories, 739 F.2d 93, 95 (2d Cir.

1984). The Court addresses this standard as to Defendants

Ramdat and Sgaglione.

In the record before the Court, Defendant Ramdat was

the investigating official who entered the arrest report into

the NYPD’s computer system. In his narrative statement,

Defendant Ramdat wrote, in part, that Mr. Fowler-Washington “did

actively flail his arms and legs, and grabbed the handcuffs of

officers in an attempt not to be placed under arrest” and

answered “No” as to the question of whether force was used by

the officers. (ECF No. 95-3, Brocker Decl., Ex. C, Arrest

Report No. Q17655530 at 1 (capitalization omitted).) Yet, as

discussed above, Mr. Fowler-Washington attests that he did not

resist arrest. (ECF No. 100, Pl. 56.1 Counter Statement ¶¶ 15,

17.) And Defendant Ramdat further testified to using at least

some force while attempting to arrest Plaintiff “by putting

[his] hands on [Mr. Fowler-Washington] to prevent him from

sustaining any more injuries.” (ECF No. 103-1, Spears Decl.,

Ex. A, Ramdat Dep. at p. 172.) Given that a reasonable jury

could find that Defendant Ramdat’s testimony is at odds with Mr.

Fowler-Washington’s testimony and that Defendant Ramdat

fabricated a differing narrative in his arrest report, the Court

finds it premature to grant summary judgment to Defendant Ramdat

based on his lack of personal involvement.

As to Defendant Sgaglione, Defendants argue that the

“fellow officer” rule applies to Defendant Sgaglione, because

although he personally swore under oath in support of the

criminal complaint that Plaintiff had resisted arrest, the sole

basis of Defendant Sgaglione’s statement was information that

had been provided to him by Defendant Avvenire, rather than on

the basis of his actual personal knowledge. (Id.) Crucially,

Plaintiff does not dispute that Defendant Sgaglione relied on

Defendant Avveniere’s statements that Plaintiff resisted arrest,

but instead claims, that either or both officers fabricated the

resistance.

The “fellow officer” rule provides that “an arresting

officer might not be aware of all the underlying facts that

provided probable cause or reasonable suspicion, but may

nonetheless act reasonably in relying on information received by

other law enforcement officials.” United States v. Colon, 250

F.3d 130, 135 (2d Cir. 2011); see also, Charles v. City of New

York, 2014 U.S. Dist. LEXIS 46741, at *17 (S.D.N.Y. Mar. 31,

2014).

As an initial matter, the Court notes that the Second

Circuit has rejected the argument in right to fair trial cases

that the existence of probable cause excuses an officer’s

deliberate manufacturing of false evidence to support an arrest.

See Garnett, 838 F.3d at 277-78; Ricciuti, 124 F.3d at 130 (2d

Cir. 1997) (“No arrest, no matter how lawful or objectively

reasonable, gives an arresting officer or his fellow officers

license to deliberately manufacture false evidence against an

arrestee.”); see also Biswas v. City of N.Y., 973 F. Supp. 2d

504, 521 (S.D.N.Y. 2013) (denying New York qualified immunity to

defendants on summary judgment where they allegedly deliberately

fabricated evidence against plaintiff to have probable cause to

arrest). Defendants do not argue to the contrary. Rather, the

Defendants contend that Defendant Sgaglione reasonably relied on

statements by his fellow officer, Defendant Avvenire, regarding

Plaintiff’s purported resistance to arrest. (ECF No. 108, Defs.

Mot. at p. 4.) Moreover, Plaintiff presented no evidence that

Defendant Sgaglione knew that Defendant Avvenire’s statements

regarding Plaintiff’s resisting arrest were allegedly false.

This Court applies the fellow officer rule and finds

based on the undisputed record that Defendant Sgaglione is

entitled summary judgment. Defendant Sgaglione was the officer

who swore out the criminal complaint, after he spoke with

Defendant Avvenire about the arrest, and was the investigating

official who directly communicated to the District Attorney.

(ECF Nos. 100, Pl. 56.1 Counter Statement ¶¶ 5, 15, 17; 95-4,

Brocker Decl., Ex. D, Criminal Compl.) In the criminal

complaint, Defendant Sgaglione describes the recovery of drugs

during the search, which support the drug charges, and he also

stated that he “[was] informed by Detective Avvenire that when

he was attempting to place handcuffs on the defendant, the

defendant flailed his arms, pushed [Defendant] Avvenire, and

attempted to remove handcuffs from [Defendant] Avvenire’s hand,”

and caused injury to Defendant Avvenire (which Mr. Fowler-

Washington denies happened). (Id.)

Here, the undisputed record establishes that

Defendants Sgaglione does not state that he was present at the

interaction between Defendant Avvenire and Plaintiff during the

arrest, but he instead relied on Defendant Avvenire’s account as

discussed at the precinct. In the criminal complaint that

Defendant Sgaglione swore out, he detailed recovering drug

paraphernalia from the first bedroom, and then “further states

he is informed by [Defendant Avvenire . . . that he observed

[Plaintiff] inside of a second bedroom . . . .” (ECF No. 95-4,

Brocker Decl., Ex. D, Criminal Compl. at p. 2 (capitalization

omitted).) Defendant Sgaglione’s criminal complaint also

details that he “observed [and] apprehended other Charlene

Fowler . . . and apprehended other Dominque Fowler . . . inside

of a third bedroom[.]” (Id. at 3 (capitalization omitted).)

Defendant Sgaglione’s careful account of his own observations

and actions in the criminal complaint, contrasted with the

account of facts that Defendant Avvenire specifically conveyed

to him, demonstrates that Defendant Sgaglione was occupied with

other conduct during the execution of the search warrant and

relied on his fellow officer’s account of the interaction

between Defendant Avvenire and Plaintiff. Defendant Sgaglione

reasonably relied on Defendant Avvenire’s statements regarding

Plaintiff’s resistance to arrest, and swore to these facts in

the criminal complaint. See, e.g., Martinez v. Simonetti, 202

F.3d 625, 635 (2d Cir.2000) (concluding that officers were

entitled to rely on accounts narrated by other officers at the

scene of an arrest).

Moreover, Plaintiff offers no evidence that Defendant

Sgaglione had knowledge of the alleged fabrication of Defendant

Avvenire’s statements. That is, Plaintiff provides no contrary

evidence from which a jury could find that Defendant Sgaglione

knowingly fabricated information regarding the charge that

Plaintiff resisted arrest. Rather the record before the Court

shows Defendant Sgaglione was reasonable in “relying on

information received by other law enforcement officials,” when

he prepared and forwarded the criminal complaint. Colon at 135.

Though Defendant Sgaglione is the officer who signed the

criminal complaint, there is no evidence he was aware of the

alleged constitutional violation regarding the fabrication of

evidence, and consequently the Court grants summary judgment to

Defendant Sgaglione on the right to fair trial claim.

In short, only Defendant Ramdat has not shown that he

was not personally involved in the denial of Mr. Fowler-

Washington’s right to fair trial claim. Defendant Sgaglione has

shown that he did not witness the interaction between Defendant

Avvenire and Mr. Fowler-Washington and reasonably relied on his

fellow officer’s account, without any evidence that he knew the

account was false. With regards to Defendant Ramdat, “[i]t is

for a jury to decide if these facts give rise to personal

involvement sufficient for liability to attach under § 1983.”

Rodriguez v. City of New York, 291 F. Supp. 3d 396, 411

(S.D.N.Y. 2018); see also Williams v. Smith, 781 F.2d 319, 323

(2d Cir. 1986).

The parties agree there is no evidence of any

involvement whatsoever by Defendant Sambolin in making allegedly

false statements to the prosecution. Nor is there evidence that

Defendant Sgaglione had knowledge that the information from

Defendant Avvenire upon which he relied in drafting the criminal

complaint was allegedly false. The Court therefore grants

summary judgment and dismisses Mr. Fowler-Washington’s right to

fair trial claim against Defendants Sambolin and Sgaglione.

B. Causation of the Deprivation of Liberty

Defendants also ask the Court to grant summary

judgment on Plaintiff’s claim for denial of the right to a fair

trial, based on their primary contention that Mr. Fowler-

Washington cannot prove the fifth factor of the claim—

specifically, that Defendants alleged fabrication of evidence

caused Mr. Fowler-Washington a deprivation of liberty. The

Court disagrees.

The Court first addresses Defendants’ brief assertion

that Plaintiff was in fact resisting arrest and therefore,

Defendants did not fabricate any evidence to prosecutors. (ECF

No. 108, Defs. Mot. at pp. 3-4.) A plaintiff need only produce

sufficient evidence to create an issue of fact from which a

reasonable jury could find that the officer’s statement or

evidence is false. See Garnett, 838 F.3d at 269–70, 279

(holding that the plaintiff’s and the officer’s conflicting

accounts of the events underlying the charges created an issue

of fact as to falsity); Jocks v. Tavernier, 316 F.3d 128, 138

(2d Cir. 2003) (holding that the plaintiff’s testimony that the

information was false was sufficient evidence to create an issue

of fact as to falsity).

Plaintiff’s deposition testimony creates an issue of

fact whether the Defendant Officers fabricated evidence, that

was likely to influence a jury’s decision, and forwarded that

information to prosecutors. Jovanovic v. City of New York, 486

F. App’x 149, 152 (2d Cir. 2012). It is undisputed that

Plaintiff was charged with resisting arrest along with drug-

related offenses. (ECF No. 100, Pl. 56.1 Counter Statement ¶

6.) Though Mr. Fowler-Washington pleaded guilty to the charge

of Criminal Possession of Marijuana, he denied the allegations

of Officer Defendants, their resulting reports, and resulting

criminal charge that he resisted arrest. (ECF Nos. 100, Pl.

56.1 Statement ¶¶ 15, 17.) Moreover, the resisting arrest

charge was ultimately dismissed, albeit after Plaintiff pleaded

guilty to marijuana possession. (ECF Nos. 100, Pl. 56 Counter

Statement ¶¶ 9-10; 95-7, Brocker Decl., Ex. G, Certificate of

Disposition.) On this record, given the conflicting testimony

regarding whether Mr. Fowler-Washington resisted arrest, a

reasonable jury could find that the remaining Officer Defendants

submitted false information about Plaintiff’s resisting arrest.

As to the fifth factor concerning causation of the

deprivation of Plaintiff’s liberty, Defendants argue that Mr.

Fowler-Washington has failed to show a causal connection between

the fabrication discussed above and the deprivation of his

liberty, and that he must demonstrate that he suffered an

“independent”6 liberty deprivation separate from the deprivation

resulting from the drug-related charges. (ECF No. 108, Defs.

6 The Court notes that Defendants may have confused the standards under

malicious prosecution and right to fair trial in their arguments about the

relevance of “independent charges”. (ECF No. 108, Def. Mot. at pp. 5-6.)

Indeed, in malicious prosecution claims, the contested criminal charge

allegedly causing the deprivation of liberty must be independent from other

legally sufficient charges arising out of the same incident. Coleman v. City

of New York, No. 16-915, 2017 WL 1422485, at *1, 3 (2d Cir. Apr. 21, 2017)

(“Because a malicious prosecution claim brought under § 1983 is grounded in

the Fourth Amendment . . . the plaintiff must also establish . . . [an

independent] deprivation of liberty that rises to the level of a

constitutional ‘seizure.’”); see also Walker v. Sankhi, 494 Fed. Appx. 140,

143 (2d Cir. 2012) (summary order) (dismissing claim of malicious prosecution

because plaintiff could not show an independent deprivation of liberty where

he was already in custody for a burglary charge for which he was later

convicted); Othman v. City of New York, No. 13-CV-4771, 2015 WL 1915754, at

*6 (E.D.N.Y. Apr. 27, 2015) (dismissing claim of malicious prosecution

because plaintiff failed to allege a “deprivation of liberty that stems

exclusively from those charges that may have terminated in his favor.”) A

right to fair trial claim, however, is already grounded in the Fourteenth

Amendment, requiring “a deprivation of life, liberty, or property”, and has

no separate requirement for plaintiffs to demonstrate deprivation for each

independent charge, as Defendants attempt to assert. See Baron v. Lissade,

No. 19CV6256RPKSMG, 2021 WL 4407836, at *4 (E.D.N.Y. Sept. 27, 2021)(“The

Second Circuit has recognized a Fourteenth Amendment right to a fair criminal

trial . . . because [it] involve[s] the deprivation of liberty. (citing

Zahrey, 221 F.3d at 348, 355)).

Mot. at p. 5.) To prove a cognizable claim for the denial of

the right to a fair trial, Plaintiff must establish a causal

connection between the fabricated evidence and his deprivation

of liberty. See Zahrey v. Coffey, 221 F.3d 342, 348, 355 (2d

Cir. 2000) (“The manufacture of false evidence, in and of itself

. . . does not impair anyone’s liberty, and therefore does not

impair anyone’s constitutional right,” and the “deprivation of

liberty of which [plaintiff] complains [must] be shown to be the

result of [the defendant’s] fabrication of evidence.” (quotation

omitted)). Importantly, a Section 1983 claim for the denial of

a right to a fair trial based on an officer’s provision of false

information to prosecutors can stand even if the officer had

probable cause to arrest the plaintiff. Garnett 838 F.3d at

277-79; Kee v. City of New York, 12 F.4th 150, 168–69 (2d Cir.

2021).

Courts have found that the causation of deprivation of

a liberty in a right to fair trial claim is satisfied where a

plaintiff has shown that the plaintiff would not have been

charged with a particular crime absent the fabrication. See

Ricciuti, 124 F.3d at 126-27 (plaintiffs alleged that

fabrication caused them to be charged with a more serious crime,

felony assault in the second degree, rather than misdemeanor

assault, and caused the prosecutors to add another charge); see

also Torres v. City of New York, 2017 WL 4325822, at *5

(E.D.N.Y. Sept. 27, 2017) (finding a lack of causation in part

because “nothing in the criminal complaint” supported “even an

inference that [the officer’s fabrication] factored into the . .

. decision to bring charges against plaintiffs”). If fabricated

evidence is the basis of the charges brought against an

individual, a jury could reasonably conclude that this evidence

caused the prosecutor to pursue charges. Loftin v. City of New

York, No. 15-CV-5656 (MKB), 2017 WL 3614437, at *9 (E.D.N.Y.

Aug. 21, 2017) (“[B]ecause the information provided by the

officers was the basis for the charges against Plaintiff, the

officers’ statements influenced the decision of the District

Attorney’s Office to charge Plaintiff in the Criminal

Complaint.”); Ashley v. City of New York, No. 14-CV-5559 (NGG),

2017 WL 2972145, at *7-9 (E.D.N.Y. July 12, 2017) (even where

sufficient probable cause for prosecution existed to deny a

malicious prosecution claim, because a jury could conclude that

a prosecutor might have dropped the charges after discovering

that some of the statements relied on in the complaint were

false, plaintiff’s fair trial claim survived a motion for

summary judgment); Thompson v. Clark, No. 14-CV-7349 (JBW), 2018

WL 3128975, at *14-15 (E.D.N.Y. June 26, 2018) (plaintiff’s fair

trial claim survived summary judgment because the allegedly

false evidence was “forwarded to the prosecutor . . . , placed

in the criminal court complaint, used as the basis for charging

him with resisting arrest, and served to deprive him of his

liberty”). Moreover, the Second Circuit held that a further

deprivation of liberty can result from the fabrication of

evidence even if the initial arrest is lawful. Garnett, 838

F.3d 265 at 277.

Here, there is at least a material dispute as to

whether Plaintiff would have been charged at all with resisting

arrest, absent the purported fabrication of evidence. That is,

a reasonable jury could at least find that Defendants would not

have subjected Plaintiff to criminal prosecution, had

Plaintiff’s only offense been the plain possession of marijuana.

See Loftin, 2017 WL 3614437, at *9; Ashley, 2017 WL 2972145, at

*7-9; Thompson, 2018 WL 3128975, at *14-15. Indeed, Defendants

have provided no evidence to this Court regarding how the

prosecution might have proceeded absent a resisting arrest

charge. The Court cannot find on the current record that

Defendants satisfied their burden on summary judgment of

demonstrating that the resisting arrest charge did not factor

into the charging decisions, the prosecution of Mr. Fowler-

Washington, or discussions regarding his guilty plea. A

reasonable jury could find that statements about Mr. Fowler-

Washington resisting arrest and causing injury to an officer

were important to the prosecutor’s charging decisions or likely

to influence a jury in the plaintiff’s criminal case.

Furthermore, Defendants more broadly claim that

“plaintiff must show that the fabrication caused a deprivation

above and beyond the fact of the prosecution itself.” (ECF No.

108, Def. Mot. at p. 5.) The Court notes that the Defendants

incorrectly interpret two Second Circuit opinions. In Caravalho

v. City of New York, the Second Circuit focused on the fact that

the plaintiffs had no evidence they were charged or detained for

any crime related to the alleged fabrication—which is not the

case here. 732 F. App’x 18, 24 (2d Cir. 2018). In Ganek v.

Leibowitz, the Second Circuit held that there must be “separate

harms” from the fabricated evidence, other than the harm of

arrest itself. 874 F.3d 73, 91 (2d Cir. 2017). In Ganek, the

Second Circuit expressly stated that if the “fabrication

allegedly informed post-arrest charging and bail

determinations,” these circumstances would suffice as “separate

harms.” Id. at 91.

The Second Circuit has held that a plaintiff can

establish a deprivation of liberty by demonstrating a number of

post-arraignment court appearances, bail requirements, a period

of incarceration, or travel restrictions. See Swartz v.

Insogna, 704 F.3d 105, 112 (2d Cir. 2013) (“We have consistently

held that a post-arraignment defendant who is obligated to

appear in court in connection with criminal charges whenever his

attendance is required suffers a . . . deprivation of liberty.”

(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997))); see

Jocks at 136. Plaintiff fits within these precedents.

Here, Mr. Fowler-Washington indeed was subjected to

multiple post-arrest proceedings in which he was required appear

and defend himself from criminal prosecution. (ECF No. 95-5,

Brocker Decl., Ex. E, Record of Criminal Court.) This

undisputed evidence is sufficient to demonstrate a deprivation

of a liberty interest. See Rohman v. New York City Transit

Authority, 215 F.3d 208, 215–16 (2d Cir. 2000) (finding that the

plaintiff sufficiently demonstrated a liberty deprivation where

he was required to make five court appearances and because he

was released on his own recognizance, he was required to “render

himself at all times amenable to the orders and processes of the

court”); Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117 (2d

Cir. 1995); Arbuckle v. City of New York, No. 14-CV-10248, 2016

WL 5793741, at *10–11 (S.D.N.Y. Sept. 30, 2016) (collecting

cases); Ashley, 2017 WL 2972145, at *7 (holding that appearing

in court on seven occasions could constitute a deprivation of

liberty); see also Perez v. Duran, 962 F. Supp. 2d 533, 540–43

(S.D.N.Y. 2013) (holding that requiring the plaintiff to make

two court appearances and comply with travel restrictions could

constitute a “post-arraignment liberty restraint”).

Construing the evidence in the light most favorable to

Mr. Fowler-Washington and drawing all reasonable inferences in

his favor, a jury could find that Mr. Fowler-Washington’s

criminal charge of resisting arrest, post-arrest detention, and

his four post-arraignment court appearances resulted from the

resistance of arrest charge brought against him. Accordingly,

Mr. Fowler-Washington’s claim for denial of his right to fair

trial against Defendants Ramdat and Avvenire survives summary

judgment.

II. NOMINAL DAMAGES

Finally, Defendants argue in the alternative that if

Plaintiff’s claim for denial of the right to a fair trial is not

dismissed on summary judgment, Plaintiff should be limited as a

matter of law to recovering only nominal damages. Defendants

assert that Plaintiff cannot point to evidence that he suffered

a deprivation of liberty as a result of the alleged fabrication

of evidence in this matter (i.e., that the officers alleged he

resisted arrest), because he was also charged with, and pleaded

guilty to narcotics offenses. (ECF No. 108, Defs. Mot. at pp.

6-7.) Defendants assert that Plaintiff cannot demonstrate that

he was harmed in any way, even if the information regarding

resisting arrest was false, and he cannot recover compensatory

damages.

Because the Court finds that there are disputes of

material fact whether Plaintiff suffered a deprivation of

liberty as a result of the alleged fabrication of evidence, the

Court cannot conclude that Plaintiff suffered no harm that could

be subject to compensatory damages. Therefore, the Court

reserves for trial the decision to limit Plaintiff to nominal

damages on his right to fair trial claim.

CONCLUSION

For the foregoing reasons, Defendants’ motion for

partial summary judgment is GRANTED in part and DENIED in part.

The Court GRANTS the Defendants summary judgment on Mr. Fowler-

Washington’s denial of right to fair trial claim, as to

Defendants Sambolin and Sgaglione. The Court DENIES Defendants’

motion for partial summary judgment on Mr. Fowler-Washington’s

denial of right to fair trial claim, as to Defendants Avvenire

and Ramdat. The parties are directed to schedule a settlement

conference with Magistrate Judge Reyes and/or complete the

remaining discovery in this case.

SO ORDERED.

/s/ Kiyo A. Matsumoto______

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

March 7, 2023