Forte v. McNellis

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

DANIEL FORTE, :

:

Plaintiff, :

: 16-CV-560 (VSB)

- against - :

: OPINION & ORDER

:

THE CITY OF NEW YORK, et al. :

:

Defendants. :

:

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Appearances:

Daniel Forte

Stormville, New York

Pro se Plaintiff

Daniel L. Passeser

Nicholas D. Manningham

Ben N. Kuruvilla

John Edmund Schemitsch

New York City Law Department

New York, New York

Counsel for NYC Defendants

John J. Walsh, II

Paul E. Svensson

Hodges Walsh & Burke, LLP

White Plains, New York

Counsel for White Plains Defendants

VERNON S. BRODERICK, United States District Judge:

Pro se Plaintiff Daniel Forte (“Plaintiff” or “Forte”) brings this action against Defendants

City of New York, City of White Plains, Detective Brian McNellis (“McNellis”), Detective

Edward Garrity (“Garrity”), Officer Kenneth Tallevi (“Tallevi”), and Officer Jamar Cunningham

(“Cunningham”) (collectively, “Defendants”), alleging violations of 42 U.S.C. § 1983 for

unlawful search and seizure, malicious prosecution, false arrest, deprivation of the right to a fair

trial, fabrication of evidence, and conspiracy to violate civil rights. Before me are the motions

for summary judgment filed by Defendants City of White Plains, Tallevi, and Cunningham

(collectively, the “WP Defendants”) and Defendants City of New York, McNellis, and Garrity

(collectively, the “NY Defendants”). Because I find that no reasonable trier of fact could find for

Plaintiff on his § 1983 claims, Defendants’ motions for summary judgment are GRANTED, and

Plaintiff’s cross motion is DENIED.

Background1

In the spring of 2014, McNellis of the New York City Police Department (“NYPD”) was

assigned to investigate a complaint regarding a home invasion and robbery that occurred on

March 8, 2013, at an apartment in Manhattan. (R56.1 WP ¶ 1; R56.1 NY ¶ 1.)2 A cell phone

was among the items stolen during the robbery. (R56.1 NY ¶ 2.) In order to locate the stolen

cellphone, McNellis secured a court order to permit the Technical Assistance Response Unit

(“TARU”) of the NYPD to conduct “Trap and Trace” surveillance on the telephone number of

the cellphone stolen phone. (Id. ¶ 3.) On or about April 23, 2013, the TARU determined that the

cell number was in use in the City of White Plains. (Id. ¶ 4.) After a search in the NYPD

databases, McNellis found that Plaintiff submitted an insurance claim with the same cellphone

number as the stolen phone. (Id. ¶ 6.) McNellis further found that Plaintiff had a New York

state driver’s license which identified his address. (Id. ¶ 7.) On April 24, 2013, McNellis and

Garrity arrived at the address listed on Plaintiff’s license, along with members of the TARU; by

1 This section is drawn from the various submissions of the parties in order to provide background and context for

the motions and is not intended as a recitation of all material undisputed facts. Unless otherwise indicated, the facts

set forth in this section are undisputed.

2 “R56.1 WP” refers to WP Defendants’ statement of undisputed facts pursuant to Local Civil Rule 56.1. (Doc.

191.) “R56.1 NY” refers to NY Defendants’ statement of undisputed facts pursuant to Local Civil Rule 56.1. (Doc.

198.)

using electronic equipment, the TARU determined that the cell phone of interest was present in

the building, on either the fifth, sixth, or seventh floor. (Id. ¶¶ 8–9.)3 As the team proceeded up

the stairwell and reached the fifth-floor landing, they encountered a woman, who identified

herself as Plaintiff’s mother, Luisa Cohen, and reported that she lived on the fifth floor with her

son. (Id. ¶¶ 11–12.) The officers asked to speak with Plaintiff, and Cohen led the officers inside

her apartment. (Id. ¶¶ 13–14.) Upon entering the apartment, McNellis observed Plaintiff inside,

holding a cell phone sitting on the couch. (Id. ¶ 15.) The TARU detectives confirmed that

Plaintiff was in physical possession of the stolen cell phone by pinging the phone that Plaintiff

was holding. (Id. ¶ 16.) Garrity placed Plaintiff under arrest for criminal possession of stolen

property, even though Plaintiff voluntarily disclosed that he bought the phone on the website

Craigslist. (R56.1 NY ¶ 17; R56.1 WP ¶ 32.) “A search of plaintiff incident to arrest uncovered

ten (10) twists of crack cocaine in [his] pocket.” (R56.1 NY ¶ 18.) Plaintiff was then

transported to the Manhattan Robbery Squad for processing, (id. ¶ 19), where McNellis, after

reading Plaintiff his Miranda Rights, interrogated him for approximately 5 to 6 hours, (R56.1

WP ¶ 36). During the interrogation, Plaintiff told McNellis that “he had purchased the phone

from a person on Craig’s List [sic] somewhere near the Metro-North Train Station in

Mamaroneck,” but was unable to access his email on a computer to present his communication

with the phone seller. (Id. ¶¶ 42, 44.) Meanwhile, McNellis was unable to reach the victims of

the home invasion robbery to arrange a line-up. (Id. ¶ 40.) Eventually, after speaking with

McNellis, the New York County District Attorney’s Office declined to prosecute Plaintiff for the

home invasion robbery and indicated that the New York County District Attorney’s Office could

3 NY Defendants’ statement of undisputed facts lists the date as April 24, 2014, which given contextual information,

appears to be a typo.

not mount a prosecution for the stolen phone because Plaintiff possessed it in Westchester.

(R56.1 WP ¶¶ 48, 50; R56.1 NY ¶ 20.)

Thereafter, McNellis decided to transfer Plaintiff to White Plains. He contacted the

White Plains Police Department (“WPPD”) and talked with Lieutenant Dennis Doherty

(“Doherty”) of the WPPD on the phone. McNellis informed Doherty of Plaintiff’s arrest, as well

as the stolen phone and the crack found on him at the time of his arrest. (R56.1 WP ¶ 57.)

McNellis did not tell Doherty that Plaintiff claimed he bought the phone on Craigslist, or that the

New York County District Attorney’s Office had refused to press charges. (Id. ¶¶ 58, 60.)

Doherty then told Sergeant Kevin Farrelly (“Farrelly”) of the WPPD about Plaintiff’s arrest, who

in turn directed Tallevi and Cunningham to prepare to take Plaintiff into custody. (Id. ¶¶ 61–64.)

McNellis then arrived at White Plains, released Plaintiff to the custody of the WPPD, and spoke

with Doherty in the general presence of Cunningham and Tallevi. (Id. ¶ 69.) McNellis also gave

a verbal statement to Tallevi, which Tallevi typed and McNellis signed under oath. (Id. ¶ 79.)

Subsequently, Westchester County charged Plaintiff with unlawful possession of stolen property

in the fifth degree and unlawful possession of a controlled substance in the seventh degree.4

(R56.1 NY. ¶ 25.) These unlawful possession charges were dismissed on November 18, 2013.

(Id. ¶ 32.)

During Plaintiff’s detention at the WPPD, detectives from Greenburg Township visited

him to investigate a homicide unrelated to the home robbery. (Id. ¶ 26.) On May 21, 2013,

Plaintiff was indicted for crimes related to the homicide of Kjutim Rushiti. (Id. ¶ 27.) During

that criminal proceeding, Plaintiff moved to suppress any evidence recovered from his person at

4 The NY Defendants state that the charge for possession of stolen property was in the second degree, which appears

to be a typographical error because the Superseding Misdemeanor Information they cite to shows that the charge

was possession of stolen property in the fifth degree. (Doc. 196 Ex. D.)

the time of his arrest on April 24, 2013, by the NYPD, on the basis that this arrest was

unconstitutional and the resulting evidence was tainted. (Id. ¶ 28.) On January 13, 2014, after a

three-day evidentiary hearing in which McNellis, Forte, and Forte’s mother testified, Justice

Barry E. Warhit of the Westchester County Supreme Court ruled that the arrest by the NYPD

was based on probable cause, and “that the arrest did not unconstitutionally occur within

Plaintiff’s home.” (Id. ¶¶ 29–30.) Plaintiff was subsequently convicted of murder in the first

degree and is currently serving a prison sentence of twenty-five years to life. (Id. ¶ 31.)

Procedural History

I assume familiarity with the procedural history set forth in my Opinion & Order granting

in part and denying in part Defendants’ motions to dismiss filed on September 28, 2018. (Doc.

114.) After I issued that Opinion & Order, the WP Defendants filed their answer on November

13, 2018.5 (Doc. 120.)

Following that Opinion & Order, the parties engaged in discovery. On June 11, 2021, the

WP Defendants filed their motion for summary judgement with supporting documents. (Docs.

190–92). On June 17, 2021, the NY Defendants filed their motion for summary judgement with

supporting documents. (Docs. 195–98). On June 21, 2021, Plaintiff filed his motion for

summary judgement with supporting documents. (Docs. 199–201). The WP Defendants filed

their opposition to Plaintiff’s cross motion on August 3, 2021. (Doc. 205.) The NY Defendants

filed their opposition to Plaintiff’s cross motion on August 13, 2021. (Doc. 208.) Plaintiff filed

his opposition to Defendants’ motions for summary judgement on October 7, 2021. (Docs. 213–

16.) The NY Defendants filed their reply to Plaintiff’s opposition on October 22, 2021. (Doc.

221.) The WP Defendants did not file a reply.

5 The NY Defendants had already filed their answer on August 23, 2017. (Doc. 94.)

Legal Standard

Summary judgment is appropriate when “the parties’ submissions show that there is no

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of

law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see also Fed. R. Civ. P.

56(a). “[T]he dispute about a material fact is ‘genuine[]’ . . . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit

under the governing law,” and “[f]actual disputes that are irrelevant or unnecessary will not be

counted.” Id.

On a motion for summary judgment, the moving party bears the initial burden of

establishing that no genuine factual dispute exists; if satisfied, the burden shifts to the

nonmoving party to “set forth specific facts showing that there is a genuine issue for trial,” id. at

256, and to present such evidence that would allow a jury to find in his favor, see Graham v.

Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). To defeat a summary judgment motion, the

nonmoving party “must do more than simply show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). “A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by . . . citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other

materials . . . .” Fed. R. Civ. P. 56(c)(1). Where “a party fails . . . to properly address another

party’s assertion of fact as required by Rule 56(c), the court may,” among other things, “consider

the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and

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

entitled to it.” Fed. R. Civ. P. 56(e)(2), (3).

In considering a summary judgment motion, a court must “view the evidence in the light

most favorable to the non-moving party and draw all reasonable inferences in its favor, and may

grant summary judgment only when no reasonable trier of fact could find in favor of the

nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotation marks

omitted); see also Matsushita, 475 U.S. at 587. “[I]f there is any evidence in the record that

could reasonably support a jury’s verdict for the non-moving party,” summary judgment must be

denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

Pro se litigants are afforded “special solicitude” on motions for summary judgment.

Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Courts read the pleadings, briefs, and

opposition papers of pro se litigants “liberally and interpret them to raise the strongest arguments

that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation

marks omitted); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980) (stating that the submissions of

pro se litigants are “held to less stringent standards than formal pleadings drafted by lawyers”

(internal quotation marks omitted)); Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d

567, 577 (S.D.N.Y. 2008) (“District courts should read the pleadings of a pro se plaintiff

liberally[,] and [the] same principles apply to briefs and oppositions submitted by pro se

litigants.” (internal quotation marks omitted)). However, “pro se status does not exempt a party

from compliance with relevant rules of procedural and substantive law.” Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted); see also

Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (stating that the obligation to

read pro se pleadings liberally “does not relieve plaintiff of his duty to meet the requirements

necessary to defeat a motion for summary judgment”). “[A] pro se party’s ‘bald assertion,’

completely unsupported by evidence, is not sufficient to overcome a motion for summary

judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v.

Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

Discussion

Section 1983 establishes liability for deprivation “of any rights, privileges, or immunities

secured by the Constitution” under the color of state law. 42 U.S.C. § 1983. Plaintiff brings §

1983 claims for false arrest/imprisonment, fabrication of evidence and deprivation of the right to

a fair trial, malicious prosecution, and conspiracy to violate civil rights. Defendants argue that

they are entitled to summary judgment on all of these claims. I will address each claim in turn.

A. False Arrest/Imprisonment

1. Applicable Laws

“Under New York law, false arrest and false imprisonment are one and the same, and the

elements for both are the same as for a false arrest claim under § 1983.” Hershey v. Goldstein,

938 F. Supp. 2d 491, 515 (S.D.N.Y. 2013); see also Ackerson v. City of White Plains, 702 F.3d

15, 19 (2d Cir. 2012). To establish a false arrest claim under New York law, a plaintiff needs to

show that “the defendant intentionally confined him without his consent and without

justification.” Dancy v. McGinley, 843 F.3d 93, 107 (2d Cir. 2016) (citation omitted).

Probable cause “is an absolute defense to a false arrest claim.” Jaegly v. Couch, 439 F.3d

149, 152 (2d Cir. 2006). Probable cause is “evaluated on the totality of the circumstances,”

Jenkins v. City of New York, 478 F.3d 76, 90 (2d Cir. 2007), and exists “when the officers 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;” it “depends, in the first instance, on state law.” Dancy, 843 F.3d at

107 (citations omitted). Probable cause “‘does not demand hard certainties or mechanistic

inquiries’; nor does it ‘demand that an officer’s good-faith belief that a suspect has committed or

is committing a crime be correct or more likely true than false.’” Fernandez v. City of New York,

457 F. Supp. 3d 364, 384 (S.D.N.Y. 2020) (quoting Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir.

2016)). “Rather, it requires only facts establishing ‘the kind of fair probability’ on which a

‘reasonable and prudent’ person, as opposed to a ‘legal technician,’ would rely.” Id. In a § 1983

false arrest case, the defendant bears the burden of proving probable cause. Savino v. City of

New York, 331 F.3d 63, 76 (2d Cir. 2003).

“Collateral estoppel, or issue preclusion, prevents parties or their privies from relitigating

in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior

proceeding.” Marvel Characters, Inc., 310 F.3d at 288. “Because the Full Faith and Credit Act,

28 U.S.C. § 1738, requires federal courts to accord state judgments the same preclusive effect

those judgments would have in the courts of the rendering state, New York preclusion law

applies.” Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005). “In New

York, collateral estoppel has two essential elements. First, the identical issue necessarily must

have been decided in the prior action and be decisive of the present action, and second, the party

to be precluded from relitigating the issue must have had a full and fair opportunity to contest the

prior determination.” Jenkins, 478 F.3d at 85 (citation omitted).

“The party asserting collateral estoppel bears the burden of showing that the identical

issue was previously decided, while the party against whom the doctrine is asserted bears the

burden of showing the absence of a full and fair opportunity to litigate the issue in the prior

proceeding.” Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995); see also Lawtone-Bowles v.

City of N.Y., Dep’t of Sanitation, 22 F. Supp. 3d 341, 348 (S.D.N.Y. 2014).

2. Application

Plaintiff asserts that he was arrested three times on April 24, 2013, initially at his

apartment, then at the Manhattan Robbery Squad, and lastly by the WP Defendants. (Mem.

Forte 4–5.)6 He asserts false imprisonment and arrest only based on the second arrest and

detention at the Manhattan Robbery Squad. (Id. 5.)

a. Collateral Estoppel

The NY Defendants argue that Plaintiff’s false arrest claim is barred by the doctrine of

collateral estoppel, because the same issue—whether the NYPD had probable cause to arrest the

Plaintiff—has been litigated before Judge Warhit of the Westchester County Supreme Court

during Plaintiff’s suppression hearing in state court. (See R56.1 NY ¶¶ 29–30.) I agree.

“It is well-settled that collateral estoppel may bar a plaintiff from bringing an action in

federal court pursuant to 42 U.S.C. § 1983.” Barnes v. City of Monroe, 85 F. Supp. 3d 696, 723

(W.D.N.Y. 2015). A state court’s determination that an arrest was supported by probable cause

is generally entitled to preclusive effect. See, e.g., Hayes v. County of Sullivan, 853 F. Supp. 2d

400, 426 (S.D.N.Y. 2012) (“Settled authority establishes that where, as here, a state court has

determined that the warrantless search or seizure was supported by probable cause, the defendant

may not relitigate that determination in a federal Section 1983 action.” (citation omitted));

Mitchell v. Hartnett, 262 F. Supp. 2d 153, 155 (S.D.N.Y. 2003) (finding a § 1983 false arrest

claim barred because the plaintiff had a full and fair opportunity to litigate this claim in the state

court during a suppression hearing, and failed to prevail); Brown v. De Fillipis, 717 F. Supp. 172,

6 “Mem. Forte” refers to the memorandum of law in support of Plaintiff’s motion for summary judgement. (Doc.

201.)

179 (S.D.N.Y. 1989) (same).

Plaintiff raised the question of whether his arrest was supported by probable cause before

Judge Warhit and is barred from relitigating the question here. Both components of New York’s

collateral estoppel test are satisfied. An “identical issue necessarily . . . [was] decided in the

prior action,” Jenkins, 478 F.3d at 85, because Judge Warhit had to resolve the issue of probable

cause presented by Plaintiff’s suppression motion as part of the criminal case against Plaintiff.

The question in that matter, whether the Plaintiff’s April 24, 2013 arrest and detention was

supported by probable cause, (Decision 13 (“[T]his court’s probable cause analysis relates solely

to Defendant’s arrest on April 24, 2013, for criminal possession of stolen property and criminal

possession of a controlled substance”)),7 is the same issue on which the NY Defendants seek to

invoke collateral estoppel, (Mem. NYC 10–13 (asserting there was probable cause for the April

24, 2013 arrest).8 This question is also decisive of this action. “[A]n issue is decisive in the

present action if it would prove or disprove, without more, an essential element of any of the

claims set forth in the complaint.” Curry v. City of Syracuse, 316 F.3d 324, 332 (2d Cir. 2003)

(internal quotation marks omitted). Probable cause is a complete defense to Plaintiff’s false

arrest claims. Jenkins, 478 F.3d at 84.

Plaintiff also had a full and fair opportunity to litigate the issue. Although it is Plaintiff’s

burden, he offers nothing to suggest that he was prevented from fully and fairly contesting the

lawfulness of his arrest in state court. Moreover, the record demonstrates that Plaintiff had a full

and fair opportunity to litigate the issue, as Judge Warhit came to this conclusion after a three-

7 “Decision” refers to the Decision and Order by Judge Warhit in Plaintiff’s criminal case, People v. Forte,

Indictment No. 13-0573. It is submitted in this case as an exhibit attached to the declaration of John Schemitsch in

support of the NY Defendants’ motion for summary judgement. (Doc. 196 Ex. E.)

8 “Mem. NYC” refers to the NYC Defendants’ memorandum of law in support of their motion for summary

judgment. (Doc. 197.)

day evidentiary hearing during which McNellis, Forte, and Forte’s mother testified and during

which Forte was represented by counsel.9 Although “‘[a] full and fair opportunity to litigate’ an

issue is not had if appellate review is unavailable,” Blue v. City of New York, 14-CV-7836

(VSB), 2018 WL 1136613, at *9 (S.D.N.Y. Mar. 1, 2018) (citing Johnson v. Watkins, 101 F.3d

792, 794 (2d Cir. 1996)), here, Plaintiff does not indicate that there was any barrier to appealing

his conviction and my own review of the record has revealed no such barrier to appeal.10 Cf.

Daniel v. Orlando, 16-CV-1418 (PKC) (RML), 2019 WL 1791517, at *4 (E.D.N.Y. Apr. 24,

2019) (findings in the state court pre-trial suppression hearing not given preclusive effect

because the plaintiff was ultimately acquitted and could not appeal the finding). Plaintiff is thus

collaterally estopped from contesting Judge Warhit’s probable cause determination.

9 In the Rule 56.1 Statement in support of his motion for summary judgment, Plaintiff, for the first time, asserts that

his counsel “was not prepared and did not argue a proper defense of [Plaintiff’s] arrest and seizure by N.Y.P.D.”

(Doc. 213 (“R56.1 Forte”) ¶ 5.) “Courts in this circuit . . . have held that an allegation of ineffective assistance of

counsel cannot bar the application of collateral estoppel principles to a claimant’s Fourth Amendment claims.”

Santagata v. DiGregorio, No. 17CV3053PKCCLP, 2023 WL 2613606, at *8 (E.D.N.Y. Mar. 23, 2023). While

there may be cases where counsel is so ineffective as to deprive a person of a full and fair opportunity to litigate the

issues, Plaintiff’s conclusory and unsupported assertions do not provide grounds to reach this question. Although

Plaintiff cites to the “Criminal Court Pretrial Hearing” attached to his declaration, (which is a portion of the

transcript of a hearing before Judge Warhit, (Doc. 215, Ex. Y)), Plaintiff does not explain why this portion of the

transcript demonstrates that his counsel was not prepared. After examining the transcript, I find nothing that

suggests that Plaintiff’s counsel was “not prepared and did not argue a proper defense.” (R56.1 Forte ¶ 5.)

Additionally, nothing in Plaintiff’s submissions suggests that he or counsel raised the issue of ineffective assistance

in state court proceedings.

10 It appears that Forte initiated an appeal, see The People, etc., respondent, v. Daniel L. Forte, appellant., No. 2014-

06918, 13-00573, 2014 WL 5470923 (N.Y. 2d Dep’t App. Div. Oct. 29, 2014), but I have found no evidence that

this appeal was actually prosecuted or that any decision reversed or otherwise considered Judge Warhit’s probable

cause determination. Additionally, while the criminal possession charges against Forte were dismissed, (R56.1 NY

¶ 32), this is not a barrier to the application of collateral estoppel here. The fact that charges against a defendant are

dropped in one case (and so render findings in that case not fully and fairly litigated under Johnson, 101 F.3d at 792)

does not prevent a court in a matter from giving preclusive effect to determinations in a separate case about the

conduct in that dismissed case, such as the existence of probable cause in that dismissed case, so long as the issue

was fully and fairly litigated in that separate case. See, e.g., Blue, 2018 WL 1136613, at *9 (dismissal of charges did

not preclude application of collateral estoppel where a determination of probable cause to arrest on those charges

was made in the context of a separate, appealable proceeding). Thus, the fact that Judge Warhit made the probable

cause determination about an arrest based on criminal possession charges that were later dismissed in the context of

his ruling in a separate murder proceeding against Plaintiff is no barrier to giving that finding preclusive effect.

b. Probable Cause

Even if Plaintiff’s false arrest claim was not precluded by collateral estoppel, it still must

be dismissed, because I find that there was probable cause for his arrest and detention. The facts

that support a probable cause determination include: (1) the search conducted by the NYPD in

the database revealed that the cellular phone number Plaintiff used was the same phone number

of the cellphone that was stolen during the home invasion robbery, (R56.1 NY ¶ 6); (2) upon

arriving at the address shown on Plaintiff’s driver’s license, the TARU determined that the cell

phone of interest was present inside the building, (id. ¶ 9); and (3) after being let into the

apartment by Plaintiff’s mother, the NYPD found Plaintiff sitting on the couch with a cell phone

determined by the TARU to be the stolen cellphone, (id. ¶¶ 15–16). Given the totality of

circumstances, I find that the decision of the NYPD, particularly of McNellis and Garrity, to

arrest and detain Plaintiff was based on reliable, trustworthy evidence from investigation, and

that an officer of reasonable caution would be justified in believing, with “fair probability” that

Plaintiff was in knowing possession of stolen property. Dancy, 843 F.3d at 107; Fernandez, 457

F. Supp. 3d at 384.

Plaintiff argues that McNellis and Garrity “upon investigation realized that plaintiff did

not steal the cell phone, nor did he have knowledge of the cell phone being stolen.” 11 (Mem.

Forte 6.) There is nothing to support this assertion. First, there is nothing to suggest that, at the

time of the arrest, McNellis or Garrity knew for certain that Plaintiff had no knowledge of the

phone being stolen; the only information McNellis or Garrity had was Plaintiff’s self-serving

11 Under New York Penal Law § 165.40, “[a] person is guilty of criminal possession of stolen property in the fifth

degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner

thereof or to impede the recovery by an owner thereof.”

assertion that he “bought the phone off ‘Craigslist.’”12 (R56.1 WP ¶ 32.) Second, “while intent

is an element of the crime which must be proved at trial, it is not necessary in order to establish

probable cause to arrest.” Grant v. City of New York, 500 F. Supp. 2d 211, 215 (S.D.N.Y. 2007)

(finding probable cause to arrest the § 1983 plaintiff for possession of forged instrument based

solely on the victims’ identification that the plaintiff purchased phone cards with the counterfeit

bills). In other words, it was not necessary for the NYPD officers to establish that Plaintiff had

knowledge that the phone was stolen in order to lawfully arrest him. See, e.g., Diop v. City of

New York, 50 F. Supp. 3d 411, 424 (S.D.N.Y. 2014) (finding probable cause to arrest the § 1983

plaintiff for possession of stolen property “based solely on the robbery victim’s identification of

the purse recovered from [the plaintiff]’s vehicle as the purse that had been stolen from her.”).

Plaintiff also challenges McNellis’ decision to transfer him to the WPPD for arrest after

the New York District Attorney declined to prosecute him for robbery. (Mem. Forte 5.) Plaintiff

alleges that after McNellis told him that he would be brought to White Plains, Plaintiff asked

McNellis whether he was under arrest, and McNellis stated that he was not, but still placed

Plaintiff in handcuffs and ankle shackles. (Id. 4.) However, Plaintiff does not identify the

evidence that supports these allegations; nor are these facts in Plaintiff’s Rule 56.1 statement or

12 Even if McNellis or Garrity credited Plaintiff’s assertion that he bought the phone off Craigslist, the mere

assertion that a person legitimately obtained property need not defeat a finding of probable cause where other factors

suggest the property may be stolen. Probable cause may exist to arrest someone for the receipt or possession of

stolen property, despite an innocent explanation for the property, where other factors support a finding of probable

cause. Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989). In People v. Thurman, for example, defendants’

conduct and possession of likely contraband supported a finding of probable cause to arrest defendants for

possession of stolen property notwithstanding defendants’ assertion that they had found the items in question, 438

N.Y.S.2d 312, 314 (4th Dep’t 1981); see also Rodriguez v. City of New York, No. 97 CIV. 0217 (MGC), 1999 WL

58911, at *5 (S.D.N.Y. Feb. 8, 1999)(“[P]ossession of goods that were allegedly stolen recently strengthens the

inference that he knew they were stolen”). Similarly, Plaintiff’s assertion that he received the recently stolen phone

off Craigslist does not defeat a finding of probable case given the other factors known to the police, including that

the stolen cell phones telephone number continued to be used after it was stolen. In any event, later in the

investigation the NYPD provided Plaintiff with a computer so that he could show them his communication with the

Craigslist seller, but Plaintiff was unable to access his email. (R56.1 WP ¶ 44.)

readily identified in supporting declarations or papers. I find that the conclusory allegations are

not sufficient to show that the NYPD unlawfully detained Plaintiff so that he could be arrested

and processed by WPPD. See Lee, 902 F. Supp. at 429 (“[A] pro se party’s ‘bald assertion,’

completely unsupported by evidence, is not sufficient to overcome a motion for summary

judgment.”) Consequently, Plaintiff’s false imprisonment claims based on the transfer of

custody also fail.13

Alternatively, to the degree that Plaintiff’s claim is based on unreasonably prolonged

pretrial detention as set out in Russo v. City of Bridgeport, 479 F.3d 196, 205 (2d Cir. 2007), that

claim is unsupportable. Russo sets out a right to be protected “from a sustained detention

stemming directly from the law enforcement officials’ refusal to investigate available

exculpatory evidence.” Id. at 208. “Russo has been narrowly construed to involve situations

where a law enforcement official has mishandled or suppressed readily available exculpatory

evidence, which resulted in the plaintiff’s unreasonably long incarceration.” Jackson v. City of

New York, 29 F. Supp. 3d 161, 179 (E.D.N.Y. 2014). Thus, prolonged detention claims based on

police officers’ conduct have consistently failed when there is no evidence that officers

concealed evidence from either the prosecutor or defendant. See, e.g., Harewood v. Braithwaite,

64 F. Supp. 3d 384, 403 (E.D.N.Y. 2014) (declining to find a prolonged detention where, among

other factors, officers had not suppressed evidence); Clase v. United States, No.

17CV02247MKBST, 2020 WL 6438757, at *7 (E.D.N.Y. Nov. 2, 2020), report and

13 Even if Plaintiff’s arrest was without probable cause, the police officers would still be immune from liability

under the doctrine of qualified immunity, which protects an officer “so long as he had arguable probable cause to

arrest, which exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or

(b) officers of reasonable competence could disagree on whether the probable cause test was met.” Dancy, 843 F.3d

at 107. I find that given the circumstances, it would be objectively reasonable for McNellis to believe that probable

cause existed. For a similar reason, qualified immunity applies to Plaintiff’s malicious prosecution claim. See Diop,

50 F. Supp. at 422 (S.D.N.Y. 2014) (applying qualified immunity to a malicious prosecution claim).

recommendation adopted, No. 17CV2247MKBST, 2020 WL 7021593 (E.D.N.Y. Nov. 30, 2020)

(same); Gutierrez v. New York, No. 18-CV-3621 (MKB), 2021 WL 681238, at *21 (E.D.N.Y.

Feb. 22, 2021) (“The Court grants Defendants’ motion for summary judgment because there is

no evidence in the record indicating that Defendants mishandled or suppressed any exculpatory

evidence.”); Brightman v. NYC Police Officer Zuel Clement, No. 16 CIV. 2507 (LGS), 2017 WL

1417301, at *3 (S.D.N.Y. Apr. 20, 2017) (“The Amended Complaint does not allege facts that, if

true, would show that law enforcement officials mishandled or suppressed exculpatory

evidence”); Benn v. City of New York, No. 18 CIV. 722 (LGS), 2021 WL 3193022, at *5

(S.D.N.Y. July 28, 2021) (“Plaintiff has not adduced evidence sufficient for a reasonable jury to

conclude that exculpatory evidence was mishandled or suppressed.”).

Plaintiff has identified no mishandled or suppressed evidence. Indeed, his own

memorandum indicates that the New York County District Attorney’s Office declined to

prosecute him, (Forte Mem. 4–5), and Defendants’ Rule 56.1 statements indicate that this was

because of the evidence officers provided to prosecutors, (R56.1 WP ¶¶ 48–49; R56.1 NY ¶ 20).

In the absence of any evidence of suppression or mishandling of evidence, Plaintiff’s detention

claims predicated on Russo cannot lie.

B. Fabrication of Evidence and Fair Trial

“It is firmly established that a constitutional right exists not to be deprived of liberty on

the basis of false evidence fabricated by a government officer.” Zahrey v. Coffey, 221 F.3d 342,

355 (2d Cir. 2000). Where “an officer’s post-arrest fabrication of evidence results in a restraint

on the plaintiffs liberty,” the plaintiff can bring a § 1983 claim for violation of the constitutional

right to fair trial based on fabrication of evidence “even where no trial took place.” Harris v.

City of New York, 222 F. Supp. 3d 341, 351 (S.D.N.Y. 2016). “[T]o establish a section 1983

fair-trial claim based on fabrication of evidence, a plaintiff must demonstrate that ‘an (1)

investigating official (2) fabricates information (3) that is likely to influence a jury’s verdict, (4)

forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty,

or property as a result.’” Smalls v. Collins, 10 F.4th 117, 132 (2d Cir. 2021) (quoting Garnett v.

Undercover Officer C0039, 838 F.3d 265, 279–80 (2d Cir. 2016)). A plaintiff can bring a fair-

trial claim based on fabricated evidence as long as the dismissed criminal proceeding “does not

impugn an ongoing prosecution or outstanding conviction.” Id. at 139 (citing McDonough v.

Smith, 139 S. Ct. 2149, 2158, 2160 (2019)).

Here, the NY Defendants argue that I should dismiss Plaintiff’s fair trial claim because

the criminal charges on which this claim is based did not result in “favorable termination,” as

they were simply dismissed without affirmative indication of innocence. (Mem. NYC 15–16.)

However, the Second Circuit has clarified that a fair trial claim does not require an affirmative

indication of innocence, but only a showing that the dismissed criminal proceeding “does not

impugn an ongoing prosecution or outstanding conviction.” Smalls, 10 F.4th. at 139. There is

no evidence suggesting that the dismissal of Plaintiff’s criminal charges impugned an ongoing

prosecution or outstanding conviction; therefore, I will not dismiss Plaintiff’s fair trial claim for

that reason.

However, the claim will be dismissed because Plaintiff has not produced sufficient

evidence to show that the alleged “fabricated evidence” was fabricated. Plaintiff claims that

“Defendant McNellis . . . signed a witness statement stating false material of facts,” (Forte Mem.

7),14 concerning the statement McNellis signed upon arriving at the WPPD, (see R56.1 WP ¶ 79;

14 “Forte Mem.” refers to the Memorandum of Law Submitted on behalf of Plaintiff Daniel Forte – Pro Se In

Support of Motion for Summary Judgment. (Doc. 201.)

see also Doc. 196 Ex. C (“Statement”)). In the Statement, McNellis described the investigation

of the location of the stolen phone and the incidents on the day of Plaintiff’s arrest; he

specifically stated that when he entered the apartment, Plaintiff “was sitting on the couch with

the [suspect stolen] phone in hand,” that he subsequently put Plaintiff “under arrest for Criminal

Possession of Stolen Property,” and that he recovered from Plaintiff “a clear piece of plastic

containing . . . an off white chunky substance believed to be cocaine” during a search.

(Statement 3.)15 Plaintiff seems to suggest that McNellis falsely stated that Plaintiff knew the

cellphone was stolen, (see Mem. Forte 9 (“During the investigation it was established plaintiff

did not . . . have any knowledge that cell phone was stolen”)); however, nothing in the statement

mentioned whether Plaintiff had knowledge that the phone was stolen. Further, the record shows

that during the hearing before Judge Warhit, McNellis truthfully acknowledged that Plaintiff told

him, during the interrogation, that the phone was “bought . . . off of Craigslist” and that he

“wasn’t involved in any home invasion robbery.” (McNellis State Tr. 26:22-23)16 Nothing in

the record shows that McNellis, or any of the other Defendants, made false statements of fact, or

otherwise fabricated evidence. Therefore, Plaintiff’s allegation that McNellis somehow misled

the prosecution in his criminal case is not supported by sufficient evidence, and I find that no

reasonable jury could find for him on this claim.

C. Malicious Prosecution

In order to prevail on a § 1983 malicious prosecution claim, a plaintiff must demonstrate

“(i) the commencement or continuation of a criminal proceeding against her; (ii) the termination

of the proceeding in her favor; (iii) that there was no probable cause for the proceeding;” “(iv)

15 The page numbers cited to for this document refer the page of the PDF document on ECF.

16 “McNellis State Tr.” refers to the transcript of the proceeding in the New York state court before Judge Warhit

where McNellis testified. (Doc. 196 Ex. A.)

that the proceeding was instituted with malice;” and (v) “a seizure or other perversion of proper

legal procedures implicating the claimant’s personal liberty and privacy interests under the

Fourth Amendment.” Mitchell v. City of New York, 841 F.3d 72, 79 (2d Cir. 2016) (internal

quotation marks omitted). As with false arrest, probable cause is a complete defense to a claim

of malicious prosecution. Manganiello v. City of New York, 612 F.3d 149, 161–62 (2d Cir.

2010). “Probable cause, in the context of malicious prosecution, has also been described as such

facts and circumstances as would lead a reasonably prudent person to believe the plaintiff

guilty.” Soomro v. City of New York, 174 F. Supp. 3d 806, 814 (S.D.N.Y. 2016) (quoting Boyd

v. City of New York, 336 F.3d 72, 76 (2d Cir. 2003)). “Where probable cause existed for the

arrest itself, a plaintiff pursuing a malicious prosecution claim must establish that probable cause

somehow ‘dissipated’ between the time of arrest and the commencement of the prosecution.”

Gaston v. City of New York, 851 F. Supp. 2d 780, 793 (S.D.N.Y. 2012).

The underlying crimes that form the basis for Plaintiff’s malicious prosecution claims are

unlawful possession of stolen property in the second degree and unlawful possession of a

controlled substance in the seventh degree filed by the County of White Plains. (R56.1 NY ¶ 25;

Forte Mem. 8–12). Plaintiff’s malicious prosecution claims fail because, as discussed, there was

probable cause for his arrest on these offenses. See, e.g., Jeanty v. Cerminaro, No. 21-1974-CV,

2023 WL 325012, at *6 (2d Cir. Jan. 20, 2023) (declining to address Thompson’s favorable

termination analysis where appellant could not establish the absence of probable cause); Jessamy

v. Jakasal, No. 21-214, 2022 WL 1669512, at *2 (2d Cir. May 26, 2022) (noting that the

existence of probable cause provide a complete defense to a claim of malicious prosecution).

With regard to the possession of stolen property claim, as I found above, there was probable

cause for the prosecution because (1) there was probable cause for the arrest; (2) Defendants did

not submit any false evidence to support the prosecution; and (3) Plaintiff does not present

evidence that suggests that the probable cause “‘dissipated’ between the time of arrest and the

commencement of the prosecution.” Gaston, 851 F. Supp. 2d at 793.

To the degree Plaintiff suggests that new information obtained in the investigation about

the weight of drugs found on his person dissipated the probable cause, that argument is

unfounded. The NYPD found 10 “twists” of crack cocaine in Plaintiff’s pocket during the search

incident to the arrest. (R56.1 NY ¶ 18.) Plaintiff does not argue that this was not contraband.

Instead, Plaintiff contends that “McNellis never states or dictates how much the narcotics seized

weighed nor did he ever state to weighing the drugs seized.” (Mem. Forte 11.) However, the

record includes a laboratory test done on the seized material that showed that the cocaine found

on Plaintiff was less than 500 milligrams, (R56.1 WP ¶ 119); subsequently, “McNellis signed a

Supplemental Information as to the drug charge, based on the lesser weight of cocaine,” (id. ¶

118), and Plaintiff was charged accordingly with possession of a controlled substance in the

seventh degree, (see Doc. 190 Ex. J). Based on these facts, I find that the “facts and

circumstances as would lead a reasonably prudent person to believe” that Plaintiff is guilty of

that offense, see Soomro, 174 F. Supp. 3d at 814, and that nothing in the record suggests the

dissipation of the initial probable cause.

D. Monell Liability

Section 1983 applies by its terms “only to individual ‘persons’ responsible for violating

plaintiffs’ rights.” Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (citation omitted). In

other words, it does not impose vicarious liability, and a plaintiff can establish liability against a

municipality only if “the challenged acts were performed pursuant to a municipal policy or

custom,” Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004), or if the

constitutional injury was caused by the municipal “organization’s failure to train.” Segal v. City

of New York, 459 F.3d 207, 219 (2d Cir. 2006); see also Claudio v. Sawyer, 675 F. Supp. 2d 403,

408 (S.D.N.Y. 2009) (“The failure to train or supervise a municipal employee may be properly

thought of as a city policy or custom that is actionable under § 1983.” (internal quotation marks

omitted)).

Here, Plaintiff alleged in his Second Amended Complaint that “NYPD is aware of and

tolerate practices by its subordinates . . . which are inconsistent with afforded constitutional

allowance” and that “[t]hese policies and practice . . . are widespread and . . . constitute

unwritten NYPD policy & customs.” (SAC ¶ 4).17 Plaintiff made similar allegations against the

WPPD. (Id. ¶ 10). These conclusory allegations are not enough to support a Monell claim.

Moreover, Plaintiff fails to identify any evidence that demonstrates the existence of such a

custom or unwritten policy. Nor has he provided evidence to show that either the City of White

Plains or the City of New York failed to train its police officers. In fact, apart from his own

arrest and prosecution, Plaintiff does not point to any other incidents where the City of New

York or the City of White Plains violated someone’s rights due to a municipal policy or failure to

train. As such, this claim must be dismissed. See Holland v. City of New York, 197 F. Supp. 3d

529, 552 (S.D.N.Y. 2016) (finding the “conclusory allegations that a municipality failed to train

and supervise its employees” insufficient to establish municipal liability under § 1983 without

factual support); Thompson v. City of White Plains, No. 13-cv-6602 (NSR), 2015 WL 4597433,

at *5 (S.D.N.Y. July 29, 2015) (finding the § 1983 claim against the municipality fails because it

was based on “conclusory, boilerplate allegations” that “relates only to a single incident”).

17 “SAC” refers to Plaintiff’s Second Amended Complaint. (Doc. 86)

E. Conspiracy

“To prove a Section 1983 conspiracy, a plaintiff must show: (1) an agreement between

two or more state actors or between a state actor and a private entity; (2) to act in concert to

inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing

damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Thus, there must be “some

factual basis supporting a meeting of the minds.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir.

2003). To survive a motion for summary judgment, a plaintiff “must provide some factual basis

supporting a meeting of the minds, such that defendants entered into an agreement, express or

tacit, to achieve the unlawful end.” Id. A claim of conspiracy cannot be grounded on vague and

conclusory allegations. Brenner v. Heavener, 492 F. Supp. 2d 399, 404 (S.D.N.Y. 2007).

Additionally, “although the pleading of a conspiracy will enable a plaintiff to bring suit

against purely private individuals, the lawsuit will stand only insofar as the plaintiff can prove

the sine qua non of a § 1983 action: the violation of a federal right.” Singer v. Fulton Cnty.

Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). Thus, where a plaintiff fails to plead a constitutional

violation, a conspiracy claim based on the unsubstantiated constitutional violation must fail as

well. See, e.g., Gaston v. Gavin, No. 97 CIV. 1645 (JGK), 1998 WL 7217, at *5 (S.D.N.Y. Jan.

8, 1998), aff’d, 172 F.3d 37 (2d Cir. 1998) (“[T]he plaintiff has failed to allege sufficient facts to

support a claim that his First Amendment rights were violated. Therefore, he cannot succeed on

a conspiracy theory because he has failed to allege a sufficient substantive violation.”); Johnson

v. Barney, No. 04 CIV. 10204 (LBS), 2006 WL 3714442, at *3 (S.D.N.Y. Dec. 13, 2006)

(“[P]laintiff does not allege any actual violation of his constitutional rights. Therefore, even if the

Court were to read an assertion of conspiracy into the complaint, it would also have to be

dismissed.”) Thus, as a preliminary matter, Plaintiff’s conspiracy allegations fail because, for

the reasons discussed supra in § IV.A–D, he cannot maintain an action for a substantive

violation of his constitutional rights.

Additionally, no reasonable jury could find for the Plaintiff on his conspiracy claims

based on the undisputed facts in the record. When denying Defendants’ motion to dismiss the

conspiracy claim, I specifically looked to Plaintiff’s allegations that “McNellis engaged in

several phone calls while Plaintiff was being interrogated,” and noted that there was “a plausible

inference that at least one of the calls was with Tallevi or Cunningham and involved an

agreement, express or tacit, to bring Plaintiff to White Plains to arrest him.” (Doc. 114 at 23.)

Now that discovery has completed, however, I find that, even reviewing the evidence “in the

light most favorable” to Plaintiff, Allen, 64 F.3d at 79, no reasonable jury could find that

Defendants “entered into an agreement, express or tacit, to achieve the unlawful end.” Webb,

340 F.3d at 110.

Discovery has uncovered that the “phone calls” that Plaintiff referred to was actually one

phone call made by McNellis with Doherty from WPPD. Specifically, McNellis testified that he

called to transfer Plaintiff to the WPPD because the arrest in connection with Plaintiff’s

possession of the stolen phone and narcotics could not be processed by the City of New York.

(McNellis Dep. Tr. 238:2-25.)18 Doherty picked up the call from McNellis and was told that

Plaintiff “was in possession of a stolen phone and narcotics and the arresting process would be in

White Plains.” (Id. 238:21-239:13; 242:20-243:2.) This is confirmed by the testimony from

other Defendants. (See Tallevi Dep. Tr. 87:23-88:7 (stating that McNellis and Garrity “would

have spoken to Doherty”)19; Cunningham Dep. Tr. 96:22-97:6 (confirming that Doherty spoke

18 “McNellis Dep. Tr.” refers to the transcript of the deposition of McNellis. (Doc. 190 Ex. E.)

19 “Tallevi Dep. Tr.” refers to the transcript of the deposition of Tallevi. (Doc. 190 Ex. C.)

with McNellis prior to Plaintiff’s arrival at WPPD)).20 Tallevi further testified that he first

learned of Plaintiff’s arrest from Sergeant Farrelly of WPPD, who took orders from Doherty and

assigned work to Tallevi and Cunningham regarding Plaintiff’s arrest processing. (See Tallevi

Dep. Tr. 81:23-82:15 (Tallevi stating that Farrelly told him and Cunningham that the “New York

City had a subject in custody [who was] in possession of crack cocaine and a stolen cell phone,

and that they needed to process the arrest here in White Plains”); 90:9-19 (Tallevi explaining that

Farrelly was the supervisor of him and Cunningham, and took orders from Doherty); see also

Cunningham Dep. Tr. 80:17-82:7 (confirming Tallevi’s statement regarding Farrelly).) Both

McNellis and Garrity stated that they did not talk to anyone in the WPPD—besides Doherty,

with whom McNellis talked over the phone—before Plaintiff’s arrival in White Plains.

(McNellis Dep. Tr. 242:3-9 (McNellis stating that he was not aware of anyone else from NYPD

who talked to WPPD regarding Plaintiff’s case); Garrity Dep. Tr. 76:4-11 (Garrity stating that he

did not participate in any telephone conversations with WPPD while Plaintiff was under the

custody of NYPD)).21 Neither Tallevi nor Cunningham talked to anyone from the NYPD before

Plaintiff’s arrival at WPPD. (Tallevi Dep. Tr. 88:18-24; Cunningham Dep. Tr. 85:8-13.)

Without evaluating the credibility of the Defendants’ testimony, I find that Defendants’

statements are consistent with each other. Moreover, Plaintiff does not refute any of these

statements; nor does he offer any evidence in support of his conspiracy claim. Nothing suggests

that the Defendants formed a conspiratorial objective. Although the record shows

communications between the NYPD and the WPPD, (see e.g. Tallevi Dep. Tr. 94:6-13),

“evidence of communications between various defendants [is] not, by itself, sufficient to defeat

20 “Cunningham Dep. Tr.” refers to the transcript of the deposition of Cunningham. (Doc. 190 Ex. D.)

21 “Garrity Dep. Tr.” refers to the transcript of the deposition of Garrity. (Doc. 190 Ex. F.)

summary judgment on [a] § 1983 conspiracy claim,” Schultz v. Inc. Vill. of Bellport, No. 08-CV-

0930 (JFB) (ETB), 2010 WL 3924751, at *11 (E.D.N.Y. Sep. 30, 2010) (citing Scotto v.

Almenas, 143 F.3d 105, 114–15 (2d Cir. 1998)).

Plaintiff also points to Tallevi’s statement that he did not conduct any independent

investigation into Plaintiff’s arrest, (Tallevi Dep. Tr. 101:18-21), and the discrepancy between

the model of the cell phone initially believed to be stolen and the model of the cell phone

Plaintiff possessed when he was arrested, (id. 136:2-137:9).22 First, these statements at most

suggest a non-material error by the police, but do not override my previous finding of probable

cause for Plaintiff’s arrest and prosecution. Second, and more importantly, these statements are

not sufficient to show a meeting of the minds among McNellis, Garrity, Tallevi and

Cunningham. As a result, the conspiracy claims must be dismissed. See Savarese v. City of New

York, 547 F. Supp. 3d 305, 343 (S.D.N.Y. 2021) (“Participation in a conspiracy or the fabrication

of evidence . . . cannot be based upon unsubstantiated speculation and conjecture about what

could have been said at a certain meeting or in a particular discussion”).

Conclusion

For the reasons explained above, the motions for summary judgment of the NY

Defendants and the WP Defendants are GRANTED, and Plaintiff’s motion for summary

judgment is DENIED. The Clerk of Court is respectfully directed to mail a copy of this order to

the pro se Plaintiff, close all outstanding motions, and terminate the case.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf.

22 Tallevi’s statements during deposition suggests that officers initially believed that the stolen phone was a

Samsung Galaxy SII but than later determined that the phone was a Samsung Galaxy III. (Tallevi Dep. Tr. 136:21-

137:5.)

Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates

good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Dated: September 26, 2023

New York, New York / f

Vernon S. Broderick

United States District Judge

26