Norales v. Acevedo

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

JAMES NORALES, : 20cv2044(DLC)

:

Plaintiff, : OPINION AND ORDER

-v- :

:

DETECTIVE WILFREDO ACEVEDO (N.Y.P.D) :

SHIELD #6499; DETECTIVE KENNETH :

FAULKNER (N.Y.P.D) SHIELD #4612; :

ASSISTANT DISTRICT ATTORNEY REBECCA :

DUNNAN; JOHN/JANE DOE POLICE OFFICERS :

AND PROSECUTORS #1-10 (THE NAME(S) :

JOHN/JOHN DOE BEING FICTICIOUS AS THE :

REAL NAME(S) ARE PRESENTLY UNKNOWN), :

:

Defendants. :

:

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APPEARANCES:

For the plaintiff:

Andrew L. Hoffman

Law Offices of Andrew L. Hoffman, PC

155 East 44th Street, 6th FL

New York, NY 10017

646-585-2838

For defendants Detectives Wilfredo Acevedo and

Kenneth Faulkner:

James Jimenez

New York city Law Department

100 Church Street

New York, NY 10007

212-356-2670

For defendant Assistant DA Rebecca Dunnan:

Susan C. Roque

New York County District Attorney’s Office

One Hogan Place

New York, NY 10013

212-335-9209

DENISE COTE, District Judge:

James Norales (“Norales”) was acquitted at trial of

attempted murder. He alleges that the defendants secured his

arrest and attempted to secure his conviction by coercing an

unreliable eyewitness to give false testimony. Each of the

defendants has filed a motion to dismiss the complaint in its

entirety. For the reasons that follow, the motions to dismiss

are granted.

Background

The following facts are taken from the first amended

complaint (“FAC”) and documents properly considered on these

motions to dismiss. The alleged facts are assumed to be true.

I. The Shooting

In the early morning hours of August 6, 2016, a male victim

(“M.G.”) was shot in front of 2843 8th Avenue in Manhattan.

M.G.’s girlfriend, who called 911 but did not witness the

shooting, drove M.G. to Harlem Hospital.1

“D.T.” also called 911 to report the shooting. A member of

the New York City Police Department (“NYPD”) interviewed D.T.

for two hours shortly after the shooting. D.T. was under the

influence of heroin, cocaine, and alcohol. During this

1 When members of the NYPD questioned M.G. at the hospital, M.G.

used a false name and refused to provide information about the

shooting.

interview, D.T. repeatedly stated that she was unable to

identify the shooter.

A surveillance camera captured the shooting in its

entirety. The video shows the victim, D.T. and the shooter in

the same frame. Defendant Detective Wilfredo Acevedo

(“Acevedo”) -- who led the investigation into the shooting --

and his team viewed the footage on the morning of the shooting.

An NYPD Preliminary Investigation Worksheet (“Worksheet”)

reflects that the video quality was “not good enough for facial

Recognition”.2 The Worksheet separately records, without

indicating the source of the information, that the perpetrator

was a 6’2” black male with a thin build and short hair. Norales

is only 5’4” tall.

II. Efforts to Interview D.T. Between August and October

Five days after the shooting, on or around August 11,

Acevedo texted D.T.: “I need to speak to [you] regarding that

incident. At the same time we can try to get you some money,

but I have to meet with you.” Ten days later, Acevedo had still

not met with D.T. and he threatened D.T. with arrest. Acevedo

2 The Worksheet is a single document that pulls together

information from a variety of sources regarding the

investigation of the shooting. It is a living document with

entries added to it over time as the investigation proceeds.

One of the early entries in the Worksheet contains a description

of the surveillance video.

was aware that D.T. had a history of criminal activity and

substantive abuse.

On or around September 10, before D.T. told law enforcement

officers that Norales was the shooter, Acevedo issued an

information card (“I-Card”) for Norales in connection with the

shooting of M.G. The I-Card identified Norales as a witness and

instructed members of the NYPD to contact Acevedo if they

encountered Norales.

On or around October 4, a warrant for D.T.’s arrest was

issued for her sale of cocaine to an undercover police officer.

D.T. was “essentially homeless,” and the police began “knocking

down the doors of D.T.’s relatives” in search of her.

On October 27, D.T.’s sister coordinated D.T.’s surrender

at the 32nd precinct. At the time of her surrender, D.T. was

under the influence of heroin, cocaine, and alcohol. D.T. was

arrested and interrogated by police officers for two hours and

forty-five minutes. Acevedo was not on duty at the time of

D.T.’s arrest but was in contact with officers interrogating

D.T. Acevedo told the officers of his theory that Norales was

the August 6 shooter and instructed the officers to ask D.T.

about the shooting.

III. D.T. Identifies Norales in October.

After the initial interrogation, D.T. was interrogated for

an additional hour by defendant Detective Kenneth Faulkner

(“Faulkner”) and Detective Vasquez. Prior to this interview,

Acevedo had conferred with Faulkner by telephone and conveyed

his theory that Norales had shot M.G. Acevedo instructed

Faulkner to prepare a photo array that included Norales.

D.T. began experiencing signs of drug withdrawal about 20

to 30 minutes into the second interrogation on October 27.

Around this time, D.T. stated that Norales, whom she had known

since he was a child, shot M.G. Approximately 30 minutes later,

Faulkner showed D.T. a photo array that contained a photograph

of Norales and D.T. identified Norales as the shooter. D.T. was

sent to Rikers Island (“Rikers”) where she was treated for

heroin and alcohol withdrawal.

IV. The ADA Interviews D.T.

On or around November 21 and again on December 21, 2016,

defendant Assistant District Attorney Rebecca Dunnan (the “ADA”)

and other prosecutors conducted proffer sessions with D.T. “to

establish probable cause to arrest Norales.” The prosecutors’

notes indicate that D.T. knows Norales as “Tyson” but do not

indicate that D.T. witnessed Norales shoot anyone.

The FAC explains that the prosecutors were aware as of

these sessions that D.T. had a long history of mental health

problems, including hospitalizations and hallucinations, as well

as an extensive history of drug and alcohol addiction. The

prosecutors also learned that D.T. was using crack cocaine and

heroin on the day she was arrested and had a criminal history

that included incidents of lying to police.

The prosecutors offered D.T. a deal: if D.T. would testify

truthfully, D.T.’s drug case would be resolved with a

misdemeanor and time served. If D.T. rejected the deal, she

faced up to nine years in prison for her drug sale. On February

21, 2017, D.T. and her attorney signed the deal. She was

released from custody the same day. D.T. was also offered a

telephone, several meals, transportation to and from the

District Attorney’s office, and housing assistance.

V. The Arrest of Norales

On March 8, a few weeks after D.T. agreed to testify,

Norales was arrested and charged with the attempted murder of

M.G. The ADA drafted the criminal complaint against Norales,

and Acevedo signed the complaint. The complaint omits any

reference to D.T. or D.T.’s identification of Norales. In the

complaint, Acevedo states in part:

The factual basis for these charges are [sic] as follows:

I have reviewed video from outside of 2843 8th Avenue from

August 6, 2016 at approximately 3:40AM. The video depicts

the defendant approach an individual known to the District

Attorney’s Office and pull out what appears to be a

firearm. I observed the defendant fire the weapon in the

direction of [that] individual . . . .

(Emphasis added.)

Prosecutors requested that bail be set at a six-figure

amount. The transcript of the bail argument reflects that the

state justified its bail request by referring to Norales’

criminal history, the strength and seriousness of the case, his

prior criminal contacts, and his history of not coming to court.

Both Acevedo and D.T. testified before the Grand Jury, which

indicted Norales for the shooting.

VI. The January 2018 Trial

Norales remained imprisoned for nearly a year as he awaited

trial. At the trial, which was held in January of 2018, Acevedo

admitted offering money to D.T. if she would speak with him, and

he admitted threatening D.T. with arrest. In her testimony,

D.T. described her drug and alcohol history, criminal history,

history of mental illness, and use of multiple intoxicants on

the day of the shooting and the day of her arrest and

identification of Norales. D.T. repeatedly identified Norales

as the shooter during her trial testimony. But the FAC contends

that D.T. also testified “that she didn’t know who shot M.G.,

stating unequivocally: ‘Up to this day I still say I don’t

know.’” The jury acquitted Norales.

VII. Procedural History

On March 6, 2020, Norales filed this § 1983 action. On

August 6, defendants filed motions to dismiss and on September

11, Norales responded by filing the FAC.

The FAC asserts claims pursuant to § 1983. Against all

defendants, it alleges claims for (1) malicious prosecution; (2)

denial of Norales’ right to a fair trial due to fabrication of

evidence in violation of the Fifth, Sixth, and Fourteenth

Amendments; (3) conspiracy to violate his constitutional rights;

and (4) failure to intervene. The FAC alleges a claim for false

arrest in violation of the Fourth Amendment against Acevedo.

On October 6, the defendants renewed their motions to

dismiss. The ADA moves to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) and on grounds of Eleventh Amendment

immunity, absolute prosecutorial immunity, and qualified

immunity. The two detective defendants move to dismiss pursuant

to Rule 12(b)(6) and on the ground of qualified immunity. The

motions became fully submitted on November 24, 2020.

Discussion

When deciding a motion to dismiss under Rule 12(b)(6), Fed.

R. Civ. P., a court must “constru[e] the complaint liberally,

accept[] all factual allegations as true, and draw[] all

reasonable inferences in the plaintiff’s favor.” Coal. for

Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41, 48–49

(2d Cir. 2018) (citation omitted). To survive a motion to

dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citation omitted). A complaint must do more than offer “naked

assertions devoid of further factual enhancement,” and a court

is not “bound to accept as true a legal conclusion couched as a

factual allegation.” Id. (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 (2007)).

In determining the adequacy of a complaint, “a district

court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents

incorporated by reference in the complaint.” DiFolco v. MSNBC

Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). In addition,

“when a plaintiff chooses not to attach to the complaint or

incorporate by reference a [document] upon which it solely

relies and which is integral to the complaint, the court may

nevertheless take the document into consideration in deciding

the defendant's motion to dismiss, without converting the

proceeding to one for summary judgment.” Int'l Audiotext

Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.

1995) (citation omitted). A court may also take judicial notice

of facts that are publicly available if their accuracy cannot

reasonably be questioned. See Fed. R. Evid. 201(b); Apotex Inc.

v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016).

“[W]hen the complaint alleges that . . . a document made a

particular representation, the court may properly look at the

document to see whether that representation was made.” Roth v.

Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

In their motions, the defendants have presented and relied

on the following exhibits: (1) the surveillance video of the

shooting; (2) the NYPD Preliminary Investigation Worksheet; (3)

D.T.’s proffer agreement; (4) the transcript of D.T.’s plea

allocution; (5) the criminal court complaint against Norales;

(6) grand jury testimony related to the indictment of Norales;

(7) the transcript of Norales’ arraignment; (8) excerpts of the

transcript of a pretrial hearing for Norales; (9) excerpts of

the Norales trial transcript; and (10) arrest photos of Norales.

Of relevance to this Opinion, Norales contends that the

Court should not consider the surveillance video, D.T.’s proffer

agreement or the excerpts of the trial testimony.3 The FAC,

however, contains assertions about the video, the substance of

D.T.’s agreement and the trial testimony. As a result, these

exhibits are properly considered as incorporated by reference

and, in the case of the trial testimony, as also publicly

available facts.4

3 Norales objects as well to the submission of D.T.’s plea

allocution, the excerpts from the pre-trial hearing, and the

arrest photographs of Norales. Because this Opinion does not

rely on those exhibits, it is unnecessary to discuss them

further.

4 The trial testimony has only been relied upon to add that D.T.

did identify Norales repeatedly at trial as the person she

observed shooting M.G. This fact, which was omitted from the

FAC, does not appear to be in dispute.

I. ADA Dunnan

The ADA contends that she has absolute immunity for the

claims in the FAC. She is correct.

“Absolute immunity bars § 1983 suits against prosecutors

for their role in initiating a prosecution and in presenting the

State’s case.” Ogunkoya v. Monaghan, 913 F.3d 64, 69 (2d Cir.

2019) (citation omitted). Prosecutors receive absolute immunity

when they perform functions that are “intimately associated with

the judicial phase of the criminal process.” Van de Kamp v.

Goldstein, 555 U.S. 335, 343 (2009) (citation omitted)).

“Instead of relying on strict categories of actions with respect

to which absolute immunity attaches, the relevant question is”

whether a prosecutor “acts as an advocate” either in a pending

court proceeding or in preparation for one. Ogunkoya, 913 F.3d

at 69 (citation omitted). “[T]he duties of the prosecutor in

his role as advocate for the State involve actions preliminary

to the initiation of a prosecution,” as well as “actions apart

from the courtroom.” Id. (citation omitted).

Courts apply a “functional approach” in determining whether

absolute immunity attaches. Victory v. Pataki, 814 F.3d 47, 65

(2d Cir. 2016). “[P]rosecutors receive only qualified immunity

when performing administrative duties and those investigatory

functions that do not relate to an advocate's preparation for

the initiation of a prosecution or for judicial proceedings.”

Simon v. City of New York, 727 F.3d 167, 172 (2d Cir. 2013)

(citation omitted).

In contrast, “administrative or investigative acts” that

are “integral to the overarching advocacy function” are

protected by absolute immunity. Ogunkoya, 913 F.3d at 70

(citation omitted). See also Giraldo v. Kessler, 694 F.3d 161,

166 (2d Cir. 2012) (investigative acts reasonably related to

decisions whether or not to begin a prosecution entitled to

absolute immunity). The relevant question is “whether a

reasonable prosecutor would view the acts challenged by the

complaint as reasonably within the functions of a prosecutor.”

Ogunkoya, 913 F.3d at 69. This is true “even in the face of a

complaint’s allegations of malicious or corrupt intent behind

the acts.” Giraldo, 694 F.3d at 166.

The FAC asserts that the ADA first interviewed D.T. about

one month after D.T. had identified Norales as the shooter when

shown a photospread with his photograph. By the time of the

interview, D.T. had detoxed while at Rikers. After the ADA’s

proffer sessions with D.T., at which D.T. apparently confirmed

the identification, Norales was arrested on a complaint that the

ADA drafted. The ADA then called D.T. and Acevedo as witnesses

before the Grand Jury and at trial. Each of these activities

embodies a core prosecutorial function, and the ADA is entitled

to absolute immunity for each of them. The proffer sessions

with D.T. informed the decision whether to institute the

prosecution of Norales. Drafting a criminal complaint against

Norales is “intimately associated with the judicial phase of the

criminal process.” Van de Kamp, 555 U.S. at 343 (citation

omitted). Finally, the examinations of Acevedo and D.T. before

the grand jury and at trial fall squarely within the

prosecutor’s role. See Simon, 727 F.3d at 171.

Norales contends that the ADA is not entitled to absolute

immunity since, in essence, D.T.’s identification testimony was

unreliable. The doctrine of absolute immunity rests, however,

on a determination of what function the ADA was performing at

each of these stages in the Norales prosecution. Nothing

presented in the FAC or even in the plaintiff’s brief in

opposition to these motions suggests that the ADA was

functioning other than as a prosecutor in connection with each

of these activities.

II. Detectives Acevedo and Faulkner

Acevedo and Faulkner have moved to dismiss each of the §

1983 claims against them. Section 1983 provides a cause of

action for damages against “[e]very person who, under color of

any statute . . . of any State . . . subjects, or causes to be

subjected, any citizen . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws.”

42 U.S.C. § 1983. In other words, “[t]o state a claim under §

1983, a plaintiff must allege that defendants violated

plaintiff's federal rights while acting under color of state

law.” McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir.

2014).

Acevedo and Faulkner move to dismiss each of the claims

pursuant to Rule 12(b)(6) and on the ground of qualified

immunity. “[O]fficers are entitled to qualified immunity

under § 1983 unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct

was clearly established at the time.” D.C. v. Wesby, 138 S. Ct.

577, 589 (2018) (citation omitted). See also Jones v. Treubig,

963 F.3d 214, 224 (2d Cir. 2020). “To be clearly established, a

legal principle must have a sufficiently clear foundation in

then-existing precedent.” Wesby, 138 S. Ct. at 589. “The

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Hurd v. Fredenburgh, 984 F.3d 1075, 1089 (2d Cir.

2021) (citation omitted).

A. False Arrest

Norales alleges that Acevedo violated his Fourth Amendment

rights by arresting and detaining him without probable cause and

by manufacturing evidence against him to justify the arrest. A

false arrest claim requires a plaintiff to allege “(1) the

defendant intended to confine the plaintiff, (2) the plaintiff

was conscious of the confinement, (3) the plaintiff did not

consent to the confinement and (4) the confinement was not

otherwise privileged.” Liranzo v. United States, 690 F.3d 78,

95 (2d Cir. 2012) (citation omitted). “To avoid liability for a

claim of false arrest, an arresting officer may demonstrate that

either (1) he had probable cause for the arrest, or (2) he is

protected from liability because he has qualified immunity.”

Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015).

Officers have “probable cause when they have 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 or is

committing a crime.” Hernandez v. United States, 939 F.3d 191,

199 (2d Cir. 2019) (citation omitted). A law enforcement

official has probable cause to arrest if the officer “received

information from some person, normally the putative victim or

eyewitness, unless the circumstances raise doubt as to the

person's veracity.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir.

2014) (citation omitted). Information from a person who was

present when shots are fired can support a finding of probable

cause to arrest. See, e.g., Frost v. New York City Police

Dep't, 980 F.3d 231, 243-44 (2d Cir. 2020) (collecting cases).

“Probable cause is determined on the basis of facts known to the

arresting officer at the time of the arrest.” Shamir v. City of

New York, 804 F.3d 553, 557 (2d Cir. 2015) (citation omitted).

See also Wesby, 138 S. Ct. at 586 (“To determine whether an

officer had probable cause for an arrest, we examine the events

leading up to the arrest, and then decide whether these

historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to probable cause.” (citation

omitted)). The arresting officer is “not required to explore

and eliminate every theoretically plausible claim of innocence

before making an arrest.” Garcia v. Does, 779 F.3d 84, 93 (2d

Cir. 2015) (citation omitted).

An officer is entitled to qualified immunity so long as

“arguable probable cause existed to arrest.” Dufort v. City of

New York, 874 F.3d 338, 354 (2d Cir. 2017) (citation omitted).

A police officer has arguable probable cause if “(a) it was

objectively reasonable for the officers to believe that probable

cause existed, or (b) officers of reasonable competence could

disagree on whether the probable cause test was met.” Franco v.

Gunsalus, 972 F.3d 170, 176 (2d Cir. 2020) (citation omitted).

“Put another way, an arresting officer will find protection

under the defense of qualified immunity unless no reasonably

competent officer could have concluded, based on the facts known

at the time of arrest, that probable cause existed.” Figueroa

v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (citation omitted).

Based on the allegations in the FAC and the documents

integral to it, probable cause existed to arrest Norales. An

eyewitness who knew Norales, who was at the scene of the

shooting, and who called 911 at the time of the shooting

identified Norales as the shooter. D.T. identified Norales as

the shooter when shown a photospread with Norales’ photograph

and, following detoxification, confirmed the identification when

interviewed by the ADA. It was only after D.T. was interviewed

by the ADA, executed a proffer agreement, and agreed to testify

at trial, that the ADA authorized the arrest of Norales. At the

very least, arguable probable cause existed for the arrest of

Norales, and Acevedo is entitled to qualified immunity because

officers of reasonable competence could disagree on whether the

probable cause existed.

Norales concedes that D.T. was a longstanding acquaintance

of Norales and that D.T. even knew his nickname but contends

that D.T.’s identification of him as the shooter did not supply

probable cause for his arrest since D.T. was on drugs at the

time of the shooting, had denied at first the ability to

identify the shooter, and had a history of lying to the police.

An officer’s knowledge that a witness to a crime may have lied

in the past, even about the person who is arrested, and that the

witness was under the influence of drugs or alcohol at the time

of the crime, does not mean that the officer cannot rely on the

witness in determining whether there is probable cause to make

an arrest. Based on the facts alleged in the FAC and the

documents integral to that pleading, Acevedo had probable cause

to arrest Norales, and certainly had arguable probable cause to

do so. See Garcia, 779 F.3d at 93; Betts, 751 F.3d at 82-83.

Norales next contends that D.T.’s pre-arrest

identifications of Norales do not provide even arguable probable

cause for his arrest because they were coerced. Norales points

to the threats made to D.T. that the police would arrest her for

her sale of drugs, their alleged harassment of D.T.’s relatives

while they searched for D.T., and the threat that she was facing

nine years in prison for her drug dealing. Again, information

supporting probable cause to make an arrest may be supplied from

witnesses with criminal records of their own, witnesses who are

facing their own criminal charges, and witnesses who have agreed

to cooperate with prosecutors in the hope of reducing their

exposure to imprisonment. See United States v. Rollins, 522

F.2d 160, 164 (2d Cir. 1975) (“Specific allegations of

reliability or past reliable contact are not required when the

informant in question was an eyewitness to the crime.”) Cf.

United States v. Canfield, 212 F.3d 713, 721 (2d Cir. 2000)

(probable cause existed to issue search warrant despite witness’

criminal record, and witness’ criminal history did not reflect

on his/her veracity).

Finally, Norales contends that D.T.’s renunciation of her

identification during the trial shows that there was no probable

cause for his arrest. This ex post facto event does not alter

the conclusion that Norales has failed to allege that his arrest

was not “otherwise privileged”. Judged from the date of his

arrest on March 8, 2017, the FAC and documents integral to it

indicate that Acevedo had ample probable cause to arrest

Norales.

B. Malicious Prosecution

A plaintiff bringing a malicious prosecution claim must

allege “(1) the initiation or continuation of a criminal

proceeding against 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.” Frost, 980 F.3d at 242 (citation

omitted). “[T]he existence of probable cause is a complete

defense to a claim of malicious prosecution.” Id. (citation

omitted). “The probable cause standard in the malicious

prosecution context is slightly higher than the standard for

false arrest cases.” Stansbury v. Wertman, 721 F.3d 84, 95 (2d

Cir. 2013). “Probable cause, in the context of malicious

prosecution, has . . . been described as such facts and

circumstances as would lead a reasonably prudent person to

believe the plaintiff guilty.” Frost, 980 F.3d at 243 (citation

omitted).

“[P]olice officers do not generally commence or continue

criminal proceedings against defendants.” Bermudez v. City of

New York, 790 F.3d 368, 377 (2d Cir. 2015) (citation omitted).

A plaintiff can maintain a claim for malicious prosecution

against a police officer “if the officer is found to play an

active role in the prosecution, such as giving advice and

encouragement or importuning the authorities to act.” Id.

Additionally, “when a plaintiff pursues a claim of malicious

prosecution against police officers based on an unlawful arrest,

the intervening exercise of independent judgment by a prosecutor

to pursue the case usually breaks the chain of causation unless

the plaintiff can produce evidence that the prosecutor was

misled or pressured by the police.” Dufort v. City of New York,

874 F.3d 338, 352 (2d Cir. 2017) (citation omitted).

As with false arrest, “probable cause is a complete

defense” to malicious prosecution. Mara v. Rilling, 921 F.3d

48, 73 (2d Cir. 2019). As a result, police officers are

entitled to qualified immunity against a malicious prosecution

claim if probable cause exists. Id. Officers are also

entitled to qualified immunity if there was “arguable” probable

cause to arrest. Betts v. Shearman, 751 F.3d 78, 83 (2d Cir.

2014).

As explained above, the FAC alleges that the prosecution of

Norales did not commence until D.T. had undergone a detox at

Rikers, was interviewed by the ADA on two separate occasions,

and had executed a proffer agreement with the District

Attorney’s Office in which D.T. agreed to testify at trial.

After D.T. testified before the grand jury, Norales was

indicted. The ADA’s exercise of independent judgment,

therefore, broke the chain of causation for any malicious

prosecution claim against either defendant Detective. The FAC

states as well that even before Norales was arrested, the ADA

was aware that D.T.’s initial identification of Norales occurred

while D.T. was still under the influence of drugs and aware as

well of D.T.’s history with mental health issues, addiction, and

crime. There is no allegation that the police misled the ADA

about D.T.’s reliability as a witness. But even if the chain of

causation had not been broken, the claims against the defendant

Detectives for malicious prosecution would have to be dismissed

because there was probable cause for the Norales prosecution and

certainly arguable probable cause for that prosecution.

Norales argues in opposition to this motion to dismiss that

the Detective defendants misled the ADA. The FAC, however, has

not alleged that they misled the ADA or explained how they did

so. The FAC describes instead an independent interview of D.T.

by an ADA who had a full understanding of the difficulties in

assessing D.T.’s credibility and the challenges that would be

presented in using D.T. as the sole eyewitness to the shooting.

In support of the malicious prosecution claim, Norales

principally contends that the FAC states such a claim against

Acevedo when it alleges that the ADA and Acevedo conspired

together to create the “false” criminal complaint that initiated

this prosecution. The FAC alleges that the ADA drafted the

complaint that Acevedo signed and that the complaint falsely

asserts that Acevedo recognized Norales as the shooter in the

surveillance video. The FAC explains that this was a false

statement since the Worksheet indicates both that the

surveillance video was “not good enough for facial Recognition”

and that the black male shooter was almost a foot taller than

Norales.5

The facts alleged in the FAC do not permit any fair

inference to be drawn that Acevedo’s statement in the arrest

complaint that the video depicts Norales firing a weapon is

false. The relevant passages from the Worksheet and the arrest

complaint, which are incorporated by reference in the FAC, have

been quoted above. First, the arrest complaint is clear that

5 As noted above, the Worksheet’s entry at an early stage of the

investigation describing the shooter as “6’2 wearing all black

thin build short hair” does not indicate the source of that

information. The Worksheet’s separate entry regarding the

surveillance video does not contain any estimate of the

shooter’s height other than to say he is “tall and thin”.

Acevedo is describing his observation of the video as of the

date he signed the complaint, which is seven months after the

shooting. In those intervening months, D.T. had identified

Norales as the shooter and identified his photograph in a

photospread. The Worksheet’s indication at the beginning of the

investigation that the video’s quality was not good enough for

facial “Recognition”, an apparent reference to the likelihood of

identifying an unknown suspect from the application of facial

recognition software, does not indicate that the video’s quality

was so poor that, once the suspect was identified, his firing of

a weapon could not be observed in the video. Notably, the FAC

does not assert that someone who knows Norales could not

recognize him as the shooter in the surveillance video.

At its core, the malicious prosecution claim asserts that

the arrest complaint did not identify D.T. as the person who

identified him as the shooter. There was no obligation to

include that information in the arrest complaint, and it was not

misleading or “false” to omit it. The omission of the witness’s

identity cannot serve as a basis for this malicious prosecution

claim.

C. Denial of Fair Trial Based on Fabrication of Evidence

The defendant Detectives also move to dismiss the claim

that they denied Norales a fair trial by fabricating evidence

against him. “The Due Process Clause guarantees a criminal

defendant's right to a fair trial.” Frost, 980 F.3d at 244

(citation omitted). This right is violated “[w]hen a police

officer creates false information likely to influence a jury's

decision and forwards that information to prosecutors.”

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir.

1997). Violations of a defendant's right to a fair trial are

redressable under § 1983. Id.

Fair trial claims based on fabrication of evidence are

restricted to those cases in which 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 v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir.

2016). “[U]nlike a malicious prosecution claim, 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 Section 1983 plaintiff.” Frost, 980 F.3d at 245 (citation

omitted). “[A] prosecutor's decision to pursue charges rather

than to dismiss a complaint without further action may depend on

the prosecutor's assessment of the strength of the case, which

in turn may be critically influenced by fabricated evidence.”

Id. at 248 (citation omitted). Thus, a “deprivation of liberty

can result from the fabrication of evidence even if the initial

is lawful.” McDonough v. Smith, 139 S. Ct. 2149, 2160 n.9

(2019) (citation omitted).

A plaintiff must allege causation when bringing claims

under § 1983. See Roe v. City of Waterbury, 542 F.3d 31, 36 (2d

Cir. 2008). A defendant's conduct must be a proximate cause of

the claimed violation in order to find that the defendant

deprived the plaintiff of his rights. Higazy v. Templeton, 505

F.3d 161, 175 (2d Cir. 2007). Proximate cause analysis under §

1983 incorporates common-law tort causation principles. Id.

“[Q]ualified immunity is unavailable on a claim for denial

of the right to a fair trial where that claim is premised on

proof that a defendant knowingly fabricated evidence and where a

reasonable jury could so find.” Morse v. Fusto, 804 F.3d 538,

550 (2d Cir. 2015). “When a police officer creates false

information likely to influence a jury’s decision and forwards

that information to prosecutors, he violates the accused’s

constitutional right to a fair trial.” Garnett, 838 F.3d at 275

(citation omitted). “[T]here is a clearly established

constitutional right not to be deprived of liberty as a result

of the fabrication of evidence by a government officer acting in

an investigatory capacity.” Id. (citation omitted). See also

Frost, 980 F.3d at 249.

Norales’ fair trial claim rests on the allegation that the

officers created false evidence when they offered D.T. benefits

and used coercion to elicit D.T.’s identification of Norales as

the shooter. Norales also alleges that this claim rests on

Acevedo’s false statement in the criminal complaint that the

surveillance video depicts Norales shooting a weapon.

For the reasons already explained, Norales’ claim that

Acevedo’s statements in the criminal complaint violated his

right to a fair trial fails. That theory relies on a series of

arguments without a sufficiently pleaded factual basis.

While the contours of the fair trial claim are still being

elucidated by our Court of Appeals, allegations that officers

threatened an eyewitness with arrest for crimes they had

committed and offered benefits to the eyewitness in exchange for

testimony, including leniency on pending charges, do not by

themselves state a claim. Here, there is no dispute that D.T.

was present at the shooting, knew Norales, identified him as the

shooter and selected his photograph from a photospread. As the

FAC also pleads, D.T. was independently interviewed by the ADA

to establish that there was indeed probable cause to arrest

Norales. D.T., represented by counsel, agreed to testify at

trial and did so, identifying Norales as the shooter. The FAC

indicates that at some point in her trial testimony, D.T. also

testified that she did not know who the shooter was. Taken

together, the allegations in the FAC fail to state a claim that

the defendant Detectives deprived Norales of his right to a fair

trial.

The FAC has also failed to allege that the alleged

fabrication of evidence against Norales was the proximate cause

of his damages. See Higazy, 505 F.3d at 175. Before Norales

was arrested, the ADA had already conducted two proffer

interviews with D.T. and secured a proffer agreement. Before

Norales was indicted, D.T. testified in the grand jury. The FAC

does not plead that the ADA was “critically influenced” by the

officers’ conduct in making the key prosecutorial decisions.

See Frost, 980 F.3d at 248. The FAC explains that the ADA was

aware of all of the credibility issues associated with D.T.’s

testimony. And, of course, D.T. again identified Norales as the

shooter during the trial.

Finally, Norales argues that this case is indistinguishable

from Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), which held

that a plaintiff, who also had been acquitted at trial,

adequately stated a claim under § 1983 for denial of a right to

a fair trial due to an alleged fabrication of evidence. Id. at

348. The relatively straight-forward allegations here of

threats and benefits offered to an admitted eyewitness to a

violent crime are not equivalent to the complex allegations of a

conspiracy to fabricate evidence that were found adequate in

Zahrey. Norales has not sufficiently pleaded that the defendant

Detectives fabricated evidence that was the proximate cause of

his incarceration.

D. Conspiracy to Violate § 1983

The defendant Detectives move to dismiss the conspiracy

claim against them. To survive a motion to dismiss a § 1983

conspiracy claim, Norales must “allege (1) an agreement 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.” Ciambriello v. Cty.

of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Complaints

“containing only conclusory, vague, or general allegations that

the defendants have engaged in a conspiracy to deprive the

plaintiff of his constitutional rights are properly dismissed;

diffuse and expansive allegations are insufficient.” Id. at 325

(citation omitted). A plaintiff alleging a § 1983 conspiracy

must allege a predicate violation of constitutional rights. See

Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009); Singer v.

Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995).

Norales’ conspiracy claim under § 1983 is dismissed. The

FAC does not allege agreements among the defendant Detectives or

between ADA and Acevedo with any specificity. Rather, the

allegations of an agreement among the defendants are vague and

conclusory. Additionally, the FAC fails to plead a violation of

Norales’ constitutional rights. Finally, the FAC does not

allege a meeting of minds by the state actors and a private

person to violate the plaintiff’s constitutional rights.

E. Failure to Intercede

The defendant Detectives move to dismiss the final claim

against them, which asserts that they failed to intervene to

prevent a violation of Norales’ rights. A “police officer has

an affirmative duty to intercede on the behalf of a citizen

whose constitutional rights are being violated in his presence

by other officers.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d

123, 129 (2d Cir. 1997) (citation omitted). Because the FAC

fails to plead a violation of Norales’ constitutional rights, it

fails to plead a claim that any defendant failed to intervene to

prevent that violation.

Conclusion

The defendants’ October 6, 2020 motions to dismiss are

granted. The Clerk of Court shall enter judgment for the

defendants and close the case.

Dated: New York, New York

February 24, 2021