# Forte v. McNellis

> District Court, S.D. New York · September 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10354596

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10354596

## How later opinions describe it (automated extraction)

- 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.”
- declining to find a prolonged detention where, among other factors, officers had not suppressed evidence
- holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue
- 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

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------- X
:
DANIEL FORTE, :
:
Plaintiff, :
: 16-CV-560 (VSB)
- against - :
: OPINION & ORDER
:
THE CITY OF NEW YORK, et al. :
:
Defendants. :
:
--------------------------------------------------------- X

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10354596. Public record. Not legal advice.