# Batista Reyes v. Paul

> District Court, N.D. New York · March 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10315641

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

LUIS BATISTA REYES,

Plaintiff,

v. 1:21-CV-569
(FJS/CFH)
ROBERT PAUL, Former City of Troy
Police Department Sergeant,

Defendant.

APPEARANCES OF COUNSEL

BARKET EPSTEIN KEARON ALDEA ALEXANDER R. KLEIN, ESQ.
& LOTURCO, LLP BRUCE A. BARKET, ESQ.
666 Old Country Road
Suite 700
Garden City, New York 11530
Attorneys for Plaintiff

PATTISON, SAMPSON, GINSBERG RHIANNON I. GIFFORD, ESQ.
& GRIFFIN, PLLC MICHAEL E. GINSBERG, ESQ.
22 First Street
P.O. Box 208
Troy, New York 12180
Attorneys for Defendant

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER
I. BACKGROUND
This action stems from an incident that occurred in 1993, when an individual named
Bryan Patterson (hereinafter "the victim") reported an assault and robbery that took place inside
his room at a Super 8 motel in Troy, New York. See Dkt. No. 16-1, Def's Stmt. of Material
Facts, at ¶ 3.1 The victim reported to police that, in the early morning of December 2, 1993, he
was awoken in his hotel room to find an individual on top of him demanding money, the
assailant cut him on the ear and on his neck, and his wallet, credit cards, rug cutting knife, hat,
Nintendo gaming system, and video games were missing. See id. at ¶¶ 5-8. Defendant Robert

Paul, a former sergeant with the City of Troy Police Department, was assigned as the lead
investigator on the case. See id. at ¶ 9.
On the night and morning in question, Plaintiff Luis Batista-Reyes had rented the room
across the hall from the victim's room. See id. at ¶¶ 10-11. According to Defendant's case
narrative, Plaintiff rented the room with a "blonde 'hooker' named 'Ashley,'" also known as
Laura Pullen/White (hereinafter referred to as "Ms. Pullen"), and an individual named Shannon
Houser. See id. at ¶¶ 14-15, 18.2 Ms. Houser provided Defendant with a Deposition of a
Witness on December 8, 1993, in which she attested that Plaintiff assaulted the victim and stole
a white bag containing a gaming console. See id. at ¶¶ 19-20.3 The next day, Ms. Pullen
provided Defendant with a Deposition of a Witness, in which she also attested that she rented a

room at the Super 8 motel with Plaintiff from December 1, 1993 to December 2, 1993; and, at
some point while there, Plaintiff returned to the motel room "'looking crazy' and holding a knife
with blood on it." See id. at ¶¶ 24-26.4

1 The facts in this section are taken from Defendant's statement of material facts and, unless
otherwise noted, are undisputed. See Dkt. No. 16-1.

2 Plaintiff admits that these facts come from Defendant's case narrative but denies the
underlying nature of them. See Dkt. No. 22-23, Pl's Response to Stmt. of Facts, at ¶ 14.

3 Plaintiff admits that Ms. Houser made these allegations but denies the content of the
allegations. See Dkt. No. 22-23 at ¶ 20.

4 Plaintiff admits that Ms. Pullen signed a statement containing such contents but denies the
underlying allegations. See Dkt. No. 22-23 at ¶ 26.
Defendant, the victim, and Ms. Pullen testified before the grand jury about the incident;
and the grand jury indicted Plaintiff on January 18, 1994, on seven counts, including robbery in
the first degree, robbery in the second degree, two counts of burglary in the first degree, two
counts of assault in the second degree, and petit larceny. See id. at ¶¶ 29, 31. Plaintiff

proceeded to trial on December 13, 1994, in which the victim, Ms. Pullen, and Investigator
Christian Lamberston from the City of Troy Police Department testified. See id. at ¶¶ 33-34.
Defendant did not testify at the criminal trial. See id. at ¶ 35. The jury returned a verdict on
December 14, 1994, finding Plaintiff guilty on all seven counts of the indictment. See id. at
¶ 37. The criminal court ultimately sentenced Plaintiff as a second felony offender to a term of
25 years to life in a New York State Correctional Facility. See id. at ¶ 38. The New York State
Supreme Court, Appellate Division, Third Judicial Department upheld Plaintiff's conviction and
sentence upon his appeal in January 1997. See id. at ¶ 40.
Sometime between 2000 and 2003, while incarcerated in a New York State Correctional
Facility, Ms. Pullen exchanged letters with a prison minister named Robert Lawrenz

(hereinafter referred to as "Pastor Lawrenz"), in which she stated that she "'wanted to right a
wrong regarding Luis'" and "'to convey her apologies regarding what had happened with her
testimony during his [criminal] trial.'" See id. at ¶¶ 41-42. Pastor Lawrenz gave a statement
regarding those letters to the Albany County District Attorney's Office in 2017, and that office
was ultimately appointed as a special prosecutor to investigate Plaintiff's claims of innocence.
See id. at ¶¶ 42-43. As part of that investigation, Ms. Pullen signed a statement in 2017
essentially stating that she stood by her December 9, 1993 Statement "100%" and that it was
entirely true and accurate. See id. at ¶ 45. Ultimately, after concluding its investigation, the
Albany County District Attorney's Office consented to Plaintiff's request to vacate his
conviction pursuant to N.Y. Crim. Proc. L. § 440.10(g) "'[b]ecause of [Ms. Pullen's] shifting
accounts, [her] credibility ha[d] been undermined to the extent that if the letters had been
introduced at trial the result likely would have been different . . .'" See id. at ¶ 46. Plaintiff was
released from prison in 2018. See id.

On May 19, 2021, Plaintiff commenced this action against Defendant in his personal
capacity, alleging claims of false arrest, malicious prosecution, and fabrication of evidence
pursuant to 42 U.S.C. § 1983.5 See Dkt. No. 1, Compl., at ¶¶ 6, 32-57. In his complaint,
Plaintiff alleges that, after the assault, the victim identified the perpetrator as having been a
"Black male," with an afro, no distinctive accent, and wearing a long black jacket. See id. at
¶¶ 15, 17, 19, 21. Plaintiff, however, alleges that he is light-skinned, Hispanic, with a thick
Spanish accent, did not have an afro in December 1993, and was wearing a waist-high royal
blue jacket sporting the insignia of the New York Giants on the date in question. See id. at
¶¶ 16, 18, 20, 22. Although the victim did not identify the perpetrator's height or weight on the
incident report, Plaintiff asserts that Defendant later coerced the victim to identify the

perpetrator's height within two inches and the perpetrator's weight within ten pounds of
Plaintiff's attributes. See id. at ¶ 27. Plaintiff also alleges that the victim was coerced to
"accentuate his injuries" between the time of the incident and his testimony at trial. See id. at
¶¶ 28-29. Additionally, Plaintiff alleges that the victim reported that law enforcement returned
his Nintendo console to him and claimed that it was recovered from Plaintiff when he was
arrested, which was a "complete falsehood." See id. at ¶ 31.

5 Although Defendant raised the affirmative defense of statute of limitations in his answer,
neither party addresses the issue with respect to the pending motion. See Dkt. No. 8, Answer, at
¶ 65. The Court cannot find Plaintiff's exact release date from New York State custody in any
of the parties' submissions; however, for purposes of this motion, the Court assumes that he was
released after May 19, 2018.
In addition to allegedly coercing the victim's statements, Plaintiff alleges that Defendant
did not recover any fingerprints from the scene – despite Plaintiff's fingerprints being on file
and available to law enforcement for comparison – and Defendant did not recover any security
camera evidence from the Super 8 motel. See id. at ¶¶ 23-24. Plaintiff also alleges that the only

witness to identify him as the perpetrator before the grand jury or at trial was "a drug-addicted
prostitute[.]" See id. at ¶ 25. Based on all of these facts, Plaintiff claims that Defendant falsely
arrested him, maliciously prosecuted him, and fabricated evidence by coercing witnesses and
failing to investigate the matter properly. See id. at ¶¶ 32-57.
Pending before the Court is Defendant's motion for summary judgment brought pursuant
to Rule 56 of the Federal Rules of Civil Procedure seeking to dismiss Plaintiff's complaint in its
entirety. See Dkt. No. 16. Plaintiff opposes the motion with respect to his malicious
prosecution and fabrication of evidence claims. See Dkt. No. 22. Plaintiff withdrew his cause
of action for false arrest in his memorandum of law in response to Defendant's motion. See id.
at 30.

II. DISCUSSION
A. Summary judgment standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that no genuine issue of material fact exists. See Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970). The movant may satisfy this burden "by pointing
out the absence of evidence to support the non-movant's claims." Citizens Bank of Clearwater
v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325,
106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).
Once the movant meets this initial burden, the non-moving 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, 477 U.S. at 322-23, 106 S. Ct. 2548; Raskin v. Wyatt Co., 125 F.3d 55, 65-66 (2d Cir.
1997)). Specifically, the moving party must cite to "particular parts of materials in the record"
or show "that the materials cited [by the non-movant] do not establish the absence or
presence of a genuine dispute" as to any material fact. Fed. R. Civ. P. 56(c)(1)(A)-(B). The
party opposing a motion for summary judgment "may not rely on conclusory allegations or
unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing
D'Amico, 132 F.3d at 149) (other citation omitted), as "unsupported allegations do not create a
material issue of fact," Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citations
omitted). "Rather, the nonmoving party must present 'significant probative evidence tending to

support the complaint.'" Smith v. Menifee, No. 00 Civ. 2521 (DC), 2002 U.S. Dist. LEXIS
4943, *9 (S.D.N.Y. Mar. 26, 2002) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391
U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).

B. Plaintiff's malicious prosecution claim
Defendant contends that the Court must dismiss Plaintiff's malicious prosecution claim
because probable cause existed to prosecute Plaintiff, and he cannot satisfy the malice element.
See Dkt. No. 16-2 at 15-20. "To prevail on a malicious prosecution claim under New York law
and federal law, a plaintiff must show '(1) the commencement or continuation of a criminal
proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor
of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual
malice.'" Kee v. City of New York, 12 F.4th 150, 161-62 (2d Cir. 2021) (quoting Smith-Hunter
v. Harvey, 95 N.Y.2d 191, 734 N.E.2d 750, 752, 712 N.Y.S.2d 438 (N.Y. 2000) (internal

quotation marks omitted)) (other citation omitted). "'[T]he existence of probable cause is a
complete defense to a claim of malicious prosecution in New York . . . .'" Bertuglia v.
Schaffler, 672 F. App'x 96, 99 (2d Cir. 2016) (quoting [Manganiello v. City of New York, 612
F.3d 149,] 161-62 [(2d Cir. 2010)]). "Where . . . a grand jury indicted the plaintiff on the
relevant criminal charge, New York law creates a presumption of probable cause that can only
be overcome by evidence that the indictment 'was the product of fraud, perjury, the suppression
of evidence by the police, or other police conduct undertaken in bad faith.'" Bermudez v. City of
New York, 790 F.3d 368, 377 (2d Cir. 2015) (quoting Green v. Montgomery, 219 F.3d 52, 60
(2d Cir. 2000) (quoting Marshall v. Sullivan, 105 F.3d 47, 54 (2d Cir. 1996)); accord Gisondi v.
Town of Harrison, 72 N.Y.2d 280, 528 N.E.2d 157, 532 N.Y.S.2d 234, 236 (1988)).

The third and fourth elements are at issue in this case. There is no dispute that the grand
jury indicted Plaintiff on seven counts, which included one count of robbery in the first degree,
one count of robbery in the second degree, two counts of burglary in the first degree, two counts
of assault in the second degree, and one count of petit larceny. See Dkt. No. 16-28, Indictment.
As such, a presumption of probable cause to prosecute exists. To overcome that presumption,
Plaintiff must point to evidence showing that fraud, perjury, police suppression of evidence, or
other bad faith police conduct caused him to be indicted. To meet this burden, Plaintiff makes
the following arguments: (1) Defendant improperly coerced Ms. Pullen to identify Plaintiff as
the assailant, as evidenced by letters she sent Pastor Lawrenz and by evidence that Defendant
also coerced Ms. Houser and the victim to identify Plaintiff as the assailant; (2) Defendant
failed to investigate the matter thoroughly; and (3) the prosecutor engaged in misconduct by
withholding exculpatory information from the grand jury. See Dkt. No. 22 at 17-26.
To support his coercion argument, Plaintiff points to Ms. Pullen's letters that she wrote

to Pastor Lawrenz while she was incarcerated. In those letters, Ms. Pullen indicated that she
told Plaintiff "how the D.A. threatened [her], gave [her] a script [etc.]," she "wanted to make it
right," and she knew Plaintiff was "doing a 25-Life for something he didn't do!" See Dkt. No.
22-14, Pullen 8/14/02 Letter, at 3-4. In another letter, Ms. Pullen indicated that she had not
heard back from Plaintiff, but she wanted to "Right the WRONGS" she had done, see Dkt. No.
22-15, Pullen Letter 10/2, at 3, and maybe "the Lord has other plans for him" in prison, see Dkt.
No. 22-15, Pullen 10/31/02 Letter, at 2. In a separate letter that Ms. Pullen sent Plaintiff, she
stated that she was "SO sorry," and had "lived with this guilt over [Plaintiff] for years now," but
she "was TOLD to say everything" and "was even made to rehearse [her] responses." See Dkt.
No. 22-17, Pullen Letter to Plaintiff, at 1. Ms. Pullen further told Plaintiff that "[t]hey gave

[her] a script," and "[s]aid it would be either [Plaintiff] or [her]." See id. According to Ms.
Pullen, "[t]hey even told [her] to say [she] was scared of [Plaintiff]." See id. However, she
"tried to help" and "contradicted [her]self 1,000 xs." See id.
Plaintiff also pointed to Ms. Houser's deposition testimony, in which she stated she was
not in the victim's motel room, did not see anything happen, and anything contrary to that in her
1993 statement to the police was because she was "using drugs" and "told the police what they
wanted to hear," "[w]hether it was true or not." See Dkt. No. 22-13, Houser Depo, at 102:5-19.
In her original statement, Ms. Houser described having used crack cocaine several times on the
night in question, including with Plaintiff, that she was in the victim's room with Plaintiff and
witnessed the assault and robbery, and that she knew that a prostitute named "Ashley" was in
the room across the hall, which she confirmed after Defendant showed her a photograph of Ms.
Pullen. See Dkt. No. 22-12, Houser Stmt.
Relatedly, in the victim's deposition testimony, he stated that he believed the police

arrested the right person because Plaintiff had rented a room across the hall from him and the
police told the victim that they had found Plaintiff with his possessions, "[s]o the numbers
add[ed] up." See Dkt. No. 22-18, Patterson Depo, at 32:4-18. The victim explained that, if he
learned that Plaintiff did not have his possessions when he was arrested, that information could
change his opinion of whether the police arrested the right suspect. See id. at 33:9-16. Plaintiff
also notes that Defendant denied having lied to the victim about the fact that Plaintiff was not in
possession of his Nintendo or wallet when arrested. See Dkt. No. 22 at 25 (citing Dkt. No. 22-
11, Def's Depo, at 108:6-10).
Plaintiff argues that there is a question of fact as to whether this "pattern of coercion"
between Defendant and Ms. Houser, as well as Defendant and the victim, evidences Defendant's

coercion of Ms. Pullen, the only eyewitness who testified at trial and identified Plaintiff as the
assailant. See Dkt. No. 22 at 22. Plaintiff also points out that each of the above-described
inconsistencies poses questions for a jury as to the witnesses' credibility that is inappropriate for
summary judgment. See id. at 25.
Notably, this is not a retrial of the criminal matter. The issue of credibility does not go
to the question of whether Ms. Pullen – or Ms. Houser or the victim – properly identified
Plaintiff as the assailant, but whether Defendant coerced Ms. Pullen to identify Plaintiff as the
assailant in her 1993 statement to the police, before the grand jury, or at trial. To withstand
summary judgment, the non-movant cannot rely on mere conjecture but must come forward
with some evidence in the record that supports his argument.
In this case, even looking at the facts in the light most favorable to Plaintiff, the Court
finds that Plaintiff has not proffered sufficient evidence to show that Defendant coerced Ms.

Pullen to testify to rebut the presumption that probable cause supported the prosecution. In Ms.
Pullen's letters, she stated that the District Attorney – not Defendant – "threatened" her and
"gave [her] a script" to read, although she did not explain how the District Attorney threatened
her. See Dkt. No. 22-14 at 3. In her letter to Plaintiff, she vaguely stated that "they" told her to
say everything she said in her 1993 statement, gave her a script, and told her to say that she was
scared of Plaintiff. See Dkt. No. 22-17 at 1. Ms. Pullen did not identify who "they" were that
threatened her in such a way, or what those threats constituted other than vaguely asserting that
she believed she was identifying Plaintiff to keep herself from being arrested. See id. Ms.
Pullen never identified Defendant in her letters, nor did she specifically identify the police or
other law enforcement officers as those who coerced her. See generally Dkt. Nos. 22-14, 22-15,

22-16, 22-17.
Additionally, although Ms. Houser testified that she told the police "what they wanted to
hear," "whether or not it was true," she admitted that she had been using a substantial amount of
drugs in December 1993, and she did not state that law enforcement – or Defendant in particular
– coerced her to tell them "what they wanted to hear." There are many reasons other than
coercion that could have caused Ms. Houser to tell the police what they wanted to hear. There
is also no evidence that the police made threats to Ms. Houser, used physical violence, or
otherwise "coerced" her. Even if a jury found that Defendant had somehow coerced Ms.
Houser, such evidence would not establish that Defendant coerced Ms. Pullen, who testified
against Plaintiff.
With respect to the victim, he remarked in his 1993 statement to the police that
Defendant told him that the police arrested Plaintiff for assaulting and robbing him. See Dkt.

No. 22-5 at 2. The victim stated that he did not know Plaintiff, so presumably he would not
have known if the police arrested the true assailant. See id. However, as shown in his
deposition, the victim believed that Plaintiff assaulted him because the police allegedly told him
that they arrested Plaintiff in possession of the victim's gaming system and wallet. See id.
Defendant denies that he told the victim this information. See Dkt. No. 22-11 at 108: 6-10.
Notwithstanding Defendant's denial, it is undisputed that such underlying information was false;
the police did not recover those items from Plaintiff upon his arrest. Even if a jury found that
Defendant had lied to the victim about his items being in Plaintiff's possession upon his arrest,
that evidence would not show that Defendant coerced Ms. Pullen, who testified against Plaintiff
in the prosecution. That conclusion could only come from conjecture and speculation.

Accordingly, the Court finds that Plaintiff has not met his burden to establish a question of fact
as to whether Defendant coerced Ms. Pullen to identify Plaintiff as the assailant to overcome the
presumption of probable cause.
The Court further rejects Plaintiff's claim that Defendant failed to investigate the assault
and robbery. In Defendant's case narrative, which Plaintiff attached as evidence, Defendant
identified his entire procedure in investigating the victim's assault. See Dkt. No. 22-4, Case
Narrative. For example, Defendant remarked in that narrative that the victim was woken at 6:30
A.M. by an individual demanding money, a struggle ensued, the victim's wallet and rug cutting
knife were stolen, and the victim could not identify the perpetrator. See id. at 1. Defendant
further noted that law enforcement was aware of a "lot of activity" in the room that Plaintiff
rented, and the cleaning staff found apparent drug paraphernalia in the room. See id. When
Defendant spoke with Plaintiff after he was arrested in an unrelated incident, Plaintiff admitted
he had rented the room with "a blond hooker named Ashley," and "after he was 'done with his

business' he left her with the room at 2:30AM." See id. at 2. Defendant also explained that the
victim's wallet was found Friday, December 3, 1993, at approximately 10:20 A.M. outside, but
after discussing the possibility of latent fingerprints being obtained from the wallet with Captain
Mahar, Defendant felt such recovery would be improbable. See id.
Defendant further explained that, while investigating an unrelated burglary, Ms. Houser
told Defendant that she was with Plaintiff at the Super 8, along with many other prostitutes,
they left and returned when the sun was up, "they saw the victim's door open and they all
entered the room and looked around as the victim slept, the others left her and [Plaintiff] in the
room," she saw Plaintiff wake the victim up using the victim's knife, demand money, and tell
the victim he would cut him. See id. at 3. Defendant further reported that Ms. Houser informed

him that she "got scared and left," and Plaintiff ran out of the room a few minutes later and told
her he cut the victim. See id. Defendant left Ms. Houser with another investigator and wanted
her to be reinterviewed the next morning. See id.
In addition to Ms. Houser's statement, Defendant noted that he obtained depositions
from Ms. Pullen and two other individuals, Deborah Arm and Lester Tillman. See id.
Defendant also reported that Plaintiff turned himself into the Watervliet Police Department,
wherein Defendant obtained a written waiver from him. See id. at 4. Defendant also obtained a
deposition from the victim "for future reference" after he went to Troy to testify in a scheduled
preliminary hearing, even though the hearing was ultimately canceled. See id. at 5.
Plaintiff additionally faults Defendant for not asking the Super 8 motel for its video
footage; however, in 1993, it is unlikely any such footage existed. Furthermore, although
Plaintiff argues that Defendant should have tested the wallet for fingerprints, Defendant
considered and discussed this with his captain, who decided it probably would not render any

results. Plaintiff also asserted that Defendant should have interviewed more witnesses.
However, based on his case narrative, Defendant had statements from Ms. Houser and Ms.
Pullen identifying Plaintiff as the assailant, he interviewed two other individuals, and Plaintiff
admitted he had rented the motel room across from the victim for illegal activities on the night
in question. "The Constitution does not require police to follow every lead, 'explore and
eliminate every theoretically plausible claim of innocence,' or resolve all doubts about a victim's
story before effecting an arrest or pursuing a prosecution." Virgil v. Town of Gates, 455 F.
App'x 36, 40 (2d Cir. 2012) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d
Cir. 1997); see Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)). The Court
therefore finds that no reasonable jury could conclude that Defendant failed to investigate the

matter such that it would rebut the presumption that probable cause supported the prosecution,
and Plaintiff's speculation to the contrary does not create a question of fact.
Finally, with respect to Plaintiff's argument that prosecutorial misconduct in withholding
information from the grand jury rebuts the presumption of probable cause, such argument is
inapplicable in this matter because Plaintiff only brought this action against Defendant, a former
police sergeant, rather than against the prosecutor. It is well-established that "[t]he personal
involvement of a defendant in alleged constitutional deprivations is a prerequisite to an award
of damages under § 1983." Clark v. DiNapoli, No. 1:09-cv-1037, 2011 U.S. Dist. LEXIS
118980, *16 (N.D.N.Y. Oct. 13, 2011) (McAvoy, S.J.) (citing Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994)). Plaintiff does not allege that Defendant was at all responsible for the
evidence that the Rensselaer County District Attorney's Office chose to present before the grand
jury, nor could he make such an allegation because it would not be reasonably foreseeable that
Defendant's alleged failures in investigating the assault and in coercing Ms. Pullen would result

in the prosecutor's independent decision not to present exculpatory evidence to the grand jury.
See Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007).
Because the Court finds that Plaintiff has failed to satisfy his burden of rebutting the
presumption that his prosecution was supported by probable cause, it need not consider whether
Defendant acted with "actual malice." As such, the Court grants Defendant's motion for
summary judgment with respect to Plaintiff's malicious prosecution claim.

C. Plaintiff's fabrication of evidence claim
"Fabrication of evidence claims relate to the right 'not to be deprived of liberty as a
result of the fabrication of evidence by a government officer acting in an investigative
capacity.'" Jeanty v. City of Utica, No. 6:16-cv-00966 (BKS/TWD), 2021 U.S. Dist. LEXIS
7737, *62 (N.D.N.Y. Jan. 14, 2021) (Sannes, J.) (quoting Zahrey v. Coffey, 221 F.3d 342, 349
(2d Cir. 2000)). "The traditional elements for such a claim are: '(1) [an] 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.'" Id.
at *62-*63 (quoting Jovanovic v. City of New York, 486 F. App'x 149, 152 (2d Cir. 2012)).
The second element is the only element in dispute. Plaintiff made clear in his
memorandum of law that his fabrication of evidence claim is solely based on his belief that
there are questions of fact about whether Defendant coerced Ms. Pullen and Ms. Houser to
provide inculpatory statements to law enforcement — and, in Ms. Pullen's case, to the grand and
petit juries — which led to the deprivation of his liberty. See Dkt. No. 22 at 27. However, as the
Court found, above, Plaintiff has not raised a question of fact as to whether Defendant coerced
Ms. Houser's or Ms. Pullen's police statements and testimony because he merely relies on
conjecture and speculation to support his argument. For the same reasons, the Court finds that
there is no question of fact regarding such coercion to sustain Plaintiff's fabrication of evidence
claim. As such, the Court grants Defendant's motion for summary judgment with respect to this
claim. See id.

Ill. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant's motion for summary judgment, see Dkt. No. 16, is
GRANTED in its entirety;° and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and
close the case.

IT IS SO ORDERED.
Dated: March 1, 2023 ng fafa —
yracuse, New York Senior United States District Judge

6 Since the Court dismisses each of Plaintiff's remaining causes of actions on the merits, it does
not need to address Defendant's argument that he is entitled to qualified immunity.
-15-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315641. Public record. Not legal advice.