Alvarez v. The City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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CARLOS ALVAREZ,

Plaintiff, 22-cv-8689 (PKC)

-against- OPINION AND

ORDER

THE CITY OF NEW YORK, ALEXIS SOTO, in

her individual and official capacity, JONATHAN

KATZ, in his individual and official capacity,

CARLOS RIVERA, in his individual and official

capacity, MUHAMMAD ABUHAIKAL, in his

individual and official capacity, and JENNIFER

KIM, in her individual and official capacity,

Defendants.

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CASTEL, U.S.D.J.

On May 15, 2010, the vehicle in which plaintiff Carlos Alvarez and three

companions were riding was hit from behind by another vehicle that fled the scene. (Fifth

Amended Complaint (“FAC”), ECF 59 at § 10.) Alvarez and his companions followed the car,

and when it stopped, they approached the driver and passenger in the vehicle. (Id. § 12.) They

returned to their vehicle after a brief conversation with the driver and passenger of the other car

and drove away, whereupon the vehicle in which Alvarez was travelling was stopped and he

alleges he was arrested without probable cause. (Id. fJ 13-14.) One officer of the New York

City Police Department (“NYPD”), Alexis Soto, is alleged to have fabricated a claim of a

knifepoint robbery by Alvarez of the driver and passenger of the other vehicle. (Id. J 16.)

At the trial of Alvarez, Officer Soto is alleged to have delivered false testimony.

(Id. 24). Officer Soto, according to the FAC, became “hysterical” on the stand when

confronted by Alvarez’s lawyer, and the Assistant District Attorney prosecuting the case

purposefully prompted a mistrial. (id. § 32). At his second trial, a jury found Alvarez guilty of

Robbery in the First Degree. (Id. § 38). In 2021, his conviction was reversed after an appellate

court determined that his retrial violated constitutional prohibitions against double jeopardy. (Id.

4 47).

Alvarez brings section 1983 claims against the City of New York (the “City”),

four NYPD Officers—Alexis Soto, Jonathan Katz, Carlos Rivera, and Muhammad Abuhaikal'—

in their individual and official capacity, and a Bronx County Assistant District Attorney, Jennifer

Kim, in her individual and official capacity, alleging that they deprived him of rights under

various constitutional provisions. (Id. fj 5-9). 42 U.S.C. § 1983. Defendants move to dismiss

all claims except for two claims against Officer Soto. For the reasons that will be explained, the

Court grants the defendants’ motion.

BACKGROUND

The Court accepts the well-pleaded allegations in the Fifth Amended Complaint

as true and draws all reasonable inferences in favor of Alvarez. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009).

On May 15, 2010, Alvarez was driving in a car with three companions when his

car was struck from behind by another driver. (FAC 4 10). The driver drove away without

stopping and providing his insurance information. (Id.). Alvarez followed the driver, and when

the driver stopped at an intersection, Alvarez and his companions got out of their car to confront

! Throughout the Fifth Amended Complaint, Alvarez incorrectly refers to Officer Muhammad Abuhaikal as Officer

Abuhaikal Muhammad. (ECF 61, at 1 n.1). The Court uses the defendant’s correct name in its Opinion and Order.

the driver that struck them. (Id. {J 12-13). Alvarez had a “brief conversation” with the driver

and then returned to his car and drove away. (Id. {ff 13-14).

Shortly thereafter, Alvarez and his companions were pulled over and arrested by

NYPD Officers Soto, Katz, Rivera, and Abuhaikal. (Id. § 13). Alvarez and his companions were

“forcefully extracted from their vehicle, handcuffed, and made to kneel execution style on the

street” while the officers had their guns drawn. (Id. § 14). The officers interviewed the driver of

the other car who told the officers that Alvarez and his companions were trying to steal his car by

threatening him with a knife. (Id. § 18). Officer Soto then “somehow found a knife and

abackpack [sic] with possessions worth no more than $80.” (Id. 19). The officers did not

interview Alvarez or his companions. (Id. § 15). Alvarez was arrested and transported to the

40th Precinct. (Id. {ff 15, 21).

There, Officer Soto told a detective that while on patrol, “she observed a ‘male

Hispanic in a vehicle with a knife and he was pointing the knife at the victim. That the other

three men were trying to force themselves into the vehicle and when they saw the police, they

forcibly removed [the victim’s] property and began to walk to their vehicle.’” (Id. ¥ 16).

Alvarez asserts that “[t]here was no evidence to prove arresting officer SOTO’s allegations that

Plaintiffs and his companions were following the hit-and-run driver they wanted to ‘carjack the

vehicle.’” (Id. § 17).

On June 21, 2010, Alvarez was arraigned in Supreme Court, Bronx County, on 21

counts, including robbery, assault, unlawful imprisonment, and criminal possession of a weapon.

(Id. § 22). Alvarez’s case proceeded to trial. At trial, Officer Soto testified that she had “‘first

encountered [Alvarez] and his companions when they were in their vehicle,” allegedly

contradicting her statement to the detective at the 40th Precinct that she observed Alvarez and his

companions in the victim’s vehicle. (Id. 25). Officer Soto also stated that she did not wear

gloves when she handled the knife or backpack and neither she nor her supervisors “requested

any scientific tests” to determine if Alvarez had handled the knife and backpack. (Id. J 27-29).

According to the FAC, Assistant District Attorney Kim realized that the jury was going to acquit

Alvarez because “key witnesses could not identify [Alvarez] in court and arresting officer Soto

becamehyperactive [sic] and hysterical when she was confronted by the defense attorney

regarding the fact that [Officer] Soto did not preserve the integrity of the evidence (the knife).”

(Id. 30). She then “deliberately provoked a mistrial” by “suborning perjury” when she

“knowingly allowed [Officer] Soto to perjure herself regarding the fabricated crime and evidence

to the court.” (Id. 4] 31-32). The complaint further alleges that the court later learned Assistant

District Attorney Kim had “instructed the prosecuting witness to identify [Alvarez] by showing

her a single picture of [Alvarez].” (Id. § 34). The trial ended in a mistrial. (Id. ¥ 33).

A second trial took place, and on December 13, 2013, Alvarez was found guilty

of robbery in the first-degree. (Id. §] 37-38). The other charges resulted in a dismissal or an

acquittal. (Id.). Alvarez states that he “was incarcerated from the day of his arrest in 2010 until

2021 when the court reversed his convictions because it determined [Alvarez’s] retrial violated

constitutional prohibitions against double jeopardy.” (Id. § 47).

Alvarez sued New York City, NYPD Officers Soto, Katz, Rivera, and Abuhaikal,

and Assistant District Attorney Jennifer Kim under 42 U.S.C. § 1983. He asserts 1) a malicious

prosecution claim against the City, Assistant District Attorney Kim, and Officers Soto, Katz,

Rivera, and Abuhaikal; 2) a failure to intervene claim against Officers Katz, Rivera, and

Abuhaikal; 3) an “unconstitutional conviction” claim against New York City and Officer Soto’;

2 Alvarez’s Fifth Amended Complaint purports to assert the “unconstitutional conviction” claim against the Bronx

District Attomey’s Office. The Bronx District Attorney’s Office is no longer a defendant in this action. (See ECF

4) a claim alleging a “civil rights conspiracy” against Officers Soto, Katz, Rivera and Abuhaikal

and Assistant District Attorney Kim; 5) municipal liability claims pursuant to Monell v.

Department of Social Services of the City of New York, 436 U.S. 658 (1978) against the City,

and 6) a claim against all individual defendants for depriving him of his clearly established

constitutional right to a fair trial. Defendants have moved to dismiss all claims except “the

federal malicious prosecution and fair trial claims against defendant Soto.” (ECF 61, at 9).

DISCUSSION

I. Applicable Law

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6),

Fed. R. Civ. P., “a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In assessing a complaint,

the Court draws all reasonable inferences in favor of the non-movant. See In re Elevator

Antitrust Litigation., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam). Legal conclusions, however,

are not entitled to any presumption of truth, and a court assessing the sufficiency of a complaint

disregards them. Iqbal, 556 U.S. at 678. The Court examines only the well-pleaded factual

allegations, and then determines whether they plausibly give rise to an entitlement to relief. Id.

at 678-79.

Section 1983 does not expressly recognize any immunities. Bernard v. County of

Suffolk, 356 F.3d 495, 502 (2d Cir. 2004). But, the Supreme Court has held that section 1983 is

“to be read in harmony with general principles of tort immunities and defenses rather than in

56). Accordingly, the Court does not consider the claim of “unconstitutional conviction” against the Bronx District

Attorney’s Office.

derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418 (1976). The Court has recognized

two kinds of immunity to claims under section 1983—absolute and qualified. Buckley v.

Fitzsimmons, 509 U.S. 259, 268-69 (1993).

“{A|bsolute immunity protects a prosecutor from § 1983 liability for virtually all

acts, regardless of motivation, associated with his function as an advocate.” Dory v. Ryan, 25

F.3d 81, 83 (2d Cir. 1994). State prosecutors are entitled to absolute immunity for their conduct

“yntimately associated with the judicial phase of the criminal process,” including their actions “in

initiating a prosecution and in presenting the State’s case.” Imbler, 424 U.S. at 430. “Once the

court determines that the challenged prosecution was not clearly beyond the prosecutor’s

jurisdiction, the prosecutor is shielded from liability for damages for commencing and pursuing

the prosecution, regardless of any allegations that his actions were undertaken with an improper

state of mind or improper motive.” Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir.

2005).

Qualified immunity, in contrast, balances “the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The doctrine of qualified immunity “shields officials from

civil liability so long as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Mullenix v. Luna, 577

U.S. 7, 11 (2015) (per curiam) (internal quotations omitted). “The dispositive question is

whether the violative nature of particular conduct is clearly established.” Id. at 12 (internal

quotation omitted). This specificity is particularly important in the Fourth Amendment context

in which “[iJt is sometimes difficult for an officer to determine how the relevant legal

doctrine . . . will apply to the factual situation the officer confronts.” Saucier v. Katz, 533 U.S.

194, 205 (2001). For that reason, qualified immunity will protect “all but the plainly

incompetent or those who knowingly violate the law.” Ziglar v. Abassi, 582 U.S. 120, 152

(2017) (internal quotation omitted). If “officers of reasonable competence could disagree on the

legality of the action at issue in its particular factual context, the officer is entitled to qualified

immunity.” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (internal quotation omitted).

Absolute and qualified immunity “spare a defendant not only unwarranted

liability, but unwarranted demands customarily imposed upon those defending a long drawn out

lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). For that reason, the Supreme Court

“repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible

stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). It is appropriate to address the

issue of absolute immunity before considering whether the plaintiff has sufficiently alleged a

constitutional violation. Pinaud v. County of Suffolk, 52 F.3d 1139, 1148 n.4 (2d Cir. 1995): see

also Imbler, 424 U.S. at 419 n.13 (‘An absolute immunity defeats a suit at the outset, so long as

the official’s actions were within the scope of the immunity.”). Likewise, “[b]ecause qualified

immunity is an immunity from suit—not merely an immunity from judgment—assertions of

qualified immunity should be addressed as early as possible in the judicial process.” Savino v.

City of New York, 331 F.3d 63, 72 (2d Cir. 2003). “The Supreme Court has made clear that

qualified immunity can be established by the facts alleged in a complaint.” Garcia v. Does, 779

F.3d 84, 97 (2d Cir. 2015).

Il. Assistant District Attorney Kim is Entitled to Absolute Immunity from Alvarez’s Claims

The FAC alleges that Assistant District Attorney Kim initiated the prosecution

against Alvarez based on evidence she knew was insufficient to obtain a conviction and then

purposefully obtained a mistrial. Specifically, Assistant District Attorney Kim “realized that the

jury was going to acquit [Alvarez] because key witnesses could not identify [him] in court and

arresting officer Soto becamehyperactive [sic] and hysterical when she was confronted by the

defense attorney regarding the fact that SOTO did not preserve the integrity of the evidence (the

knife) that [Alvarez] allegedly used in the crime of Robbery in the First Degree.” (FAC 4 30).

Kim then deliberately provoked a mistrial by knowingly allowing Officer Soto to “perjure

herself regarding the fabricated crime and evidence to the court.” (Id. 31-32).

Initiating the prosecution against Alvarez, even based on allegedly scant evidence,

and conducting the direct examination of Officer Soto during Alvarez’s trial “lie[s] at the very

core of a prosecutor’s role as an advocate engaged in the judicial phase of the criminal process.”

Bernard, 356 F.3d at 503 (collecting cases). Assistant District Attorney Kim is entitled to

absolute immunity for all acts alleged in the FAC, and the Court dismisses all claims against her.

Ill. Officers Katz, Rivera, and Abuhaikal are Entitled to Qualified Immunity from Alvarez’s

Malicious Prosecution and Failure to Intervene Claims

The “gravamen” of a malicious prosecution claim is “the wrongful initiation of

charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022). To state a claim

for malicious prosecution under section 1983, the plaintiff must show “(1) the commencement or

continuation of a criminal proceeding against her; (2) the termination of the proceeding in her

favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was

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

quotations omitted).

Alvarez has adequately pleaded the first two requirements of the claim. The

Bronx District Attorney’s Office commenced a criminal proceeding against him that terminated

3 The defendants have not moved to dismiss the malicious prosecution claim against Officer Soto.

in his favor. See Thompson, 596 U.S. at 49 (“[W]e hold that a Fourth Amendment claim under

§ 1983 for malicious prosecution does not require the plaintiff to show that the criminal

prosecution ended with some affirmative indication of innocence. A plaintiff need only show

that the criminal prosecution ended without a conviction.”)

No claim for malicious prosecution can survive, however, if probable cause for

the prosecution existed. Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003). Ifa grand

jury returned an indictment against a defendant, it gives rises to a presumption that probable

cause for the prosecution existed. Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016). “The

burden of rebutting the presumption of probable cause requires the plaintiff to establish what

occurred in the grand jury, and to further establish that those circumstances warrant a finding of

misconduct sufficient to erode the premise that the Grand Jury acts judicially.” Rothstein v.

Carriere, 373 F.3d 275, 284 (2d Cir. 2004) (internal quotation omitted). This requires the

plaintiff to “establish that the indictment was produced by fraud, perjury, the suppression of

evidence or other police conduct undertaken in bad faith.” Rios v. City of New York, 687 F.

App’x. 88, 90 (2nd Cir. 2017) (summary order). A “plaintiff's mere conjecture and surmise are

insufficient to overcome the presumption of probable cause resulting from the indictment.”

Debrosse v. City of New York, 739 F. App’x. 48, 50 (2d Cir. 2018) (summary order) (internal

quotation omitted).

Alvarez fails to rebut the presumption that probable cause for the prosecution

existed. The FAC alleges that Officer Soto “falsely stated” to a detective of NYPD’s 40th

Precinct that she observed a “male Hispanic in a vehicle with a knife and he was pointing the

knife at the victim. That the other three men were trying to force themselves into the vehicle and

when they saw the police they forcibly removed c/v’s property and began to walk to their

vehicle.” (FAC § 16). The FAC does not allege that Officer Soto testified falsely in the grand

jury proceeding. Likewise, it does not allege that Officer Soto’s allegedly false statement to a

detective on the night of Alvarez’s arrest was introduced at the grand jury proceeding or

transmitted to the prosecutor before the grand jury proceeding. Indeed, it does not address the

grand jury proceeding at all. In Rothstein v. Carnere, 373 F.3d 275, 284 (2d Cir. 2004), the

Second Circuit concluded that a plaintiff had failed to rebut the presumption of probable cause

created by a grand jury’s indictment when the content of the grand jury proceeding was

unknown. See also Savino v. City of New York, 331 F.3d 63, 74-75 (2d Cir. 2003). The Court

concludes that Alvarez has failed to rebut the presumption of probable cause created by the

grand jury’s indictment.

Even assuming that Alvarez had successfully rebutted the presumption that

probable cause for the prosecution existed, the Court concludes that Officers Katz, Rivera, and

Abuhaikal are entitled to qualified immunity. Of course, “[f]reedom from malicious prosecution

is a constitutional right that has long been clearly established.” Kinzer v. Jackson, 316 F.3d 139,

143 (2d Cir. 2003). However, “continuing probable cause is a complete defense to a

constitutional claim of malicious prosecution.” Betts v. Shearman, 751 F.3d 78, 83 (2d Cir.

2014). The FAC alleges that these officers participated in Alvarez’s arrest, but does not allege

that they participated in Alvarez’s prosecution at any point afterwards. (FAC ff 13-15).

Accordingly, if “officers of reasonable competence could disagree” on whether probable cause

for these officers’ role in Alvarez’s prosecution existed—that is, whether probable cause to arrest

Alvarez existed—Officers Katz, Rivera, and Abuhaikal are shielded from suit by qualified

immunity. See Betts, 751 F.3d at 83 (“Plaintiff's . . . malicious prosecution claim|[] therefore

turn[s] on whether the defendant officers’ probable cause determination was objectively

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reasonable—that is, whether there was ‘arguable’ probable cause to arrest.”). “Probable cause

requires an officer to have knowledge or reasonably trustworthy information sufficient to warrant

a person of reasonable caution in the belief that an offense has been committed by the person to

be arrested.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation omitted).

The FAC alleges that Officers Soto, Katz, Rivera, and Abuhaikal “approached the

complaining victim and took his statement” without interviewing Alvarez or his companions.

(FAC 4 15). The victim told the officers that Alvarez and his companions were trying to steal his

car and other possessions by threatening him with a knife. (Id. § 18). The officers then

“somehow found a knife and abackpack [sic] with possessions worth no more than $80.” (Id.

4 19). Based on these facts, it was objectively reasonable for Officers Katz, Rivera, and

Abuhaikal to conclude that probable cause to arrest Alvarez existed. The victim provided

information to the officers at the scene that Alvarez and his companions had committed the

offense, and “it is well-established that a law enforcement official has probable cause to arrest if

he received his information from some person, normally the putative victim or eyewitnesses.”

Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (internal quotation omitted). The

victim’s statement to the officers was then corroborated by Officer Soto’s discovery of a knife

and a backpack with the driver’s possessions in it.

The FAC alleges that had the officers interviewed him or his companions about

the incident, “they would have realized that there was no probable cause to arrest [him].” (FAC

4 15). However, “[i]t is well established that a police officer aware of facts creating probable

cause to suspect a prima facie violation of a criminal statute is not required to explore and

eliminate every theoretically plausible claim of innocence before making an arrest.” Garcia v.

Does, 779 F.3d 84, 93 (2d Cir. 2015) (internal quotation omitted). Even if the officers had

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interviewed Alvarez, they would simply have faced two competing narratives of events:

Alvarez’s explanation that he was confronting a driver that had hit his car and driven away and

the driver’s statements—corroborated by Officer Soto’s discovery of the knife and backpack—

that Alvarez was trying to steal his car and other possessions. Based on the totality of

circumstances, it was objectively reasonable for Officers Katz, Rivera, and Abuhaikal to

conclude that probable cause supported Alvarez’s arrest, entitling them to qualified immunity.

The FAC also alleges that Officers Katz, Rivera, and Abuhaikal are liable under

section 1983 for failing to intervene to prevent the malicious prosecution of Alvarez. (ECF 58 {

99). “It is widely recognized that all law enforcement officials have an affirmative duty to

intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

A police officer cannot be held liable in damages for failure to intervene unless the failure

“permitted fellow officers to violate a suspect’s clearly established statutory or constitutional

rights of which a reasonable person would have known” and did so “under circumstances making

it objectively unreasonable for him to believe that his fellow officers’ conduct did not violate

those rights.” Riccuiti v. N.Y.C. Transit Authority, 124 F.3d 123, 129 (2d Cir. 1997) (internal

quotation omitted).

The FAC alleges that the officers “had reason to know .. . that a malicious

prosecution and unconstitutional imprisonment was being made and occurring thereto in their

presence....” (ECF 58 999). Assuming that Alvarez was maliciously prosecuted by someone,

the FAC fails to plausibly allege that it was “objectively unreasonable” for Officers Katz, Rivera,

and Abuhaikal to believe that Officer Soto’s conduct did not violate Alvarez’s clearly established

constitutional rights. As alleged in the FAC, Officers Katz, Rivera, and Abuhaikal were present

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at Alvarez’s arrest, but played no role in his subsequent prosecution. And as discussed above, it

was objectively reasonable for these officers to conclude that probable cause supported Alvarez’s

arrest. Their “failure to intervene” thus did not occur under circumstances in which it was

objectively unreasonable for them to believe that Officer Soto’s arrest of Alvarez violated his

clearly established constitutional nights.

V. Alvarez Fails to State a Civil Rights Conspiracy Claim

Against Officers Soto, Katz, Rivera, and Abuhaikal*

In order to survive a motion to dismiss his section 1983 conspiracy claim, Alvarez

must allege “(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). “[C]onspiracies are by their very nature secretive operations, and may have to be proven

by circumstantial, rather than direct, evidence.” Id. (internal quotation omitted). However, “[a]

complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a

person of constitutional rights cannot withstand a motion to dismiss.” Boddie v. Schnieder, 105

F.3d 857, 862 (2d Cir. 1997) (internal quotation omitted). In order to plead a conspiracy,

Alvarez must plead “some factual basis supporting a meeting of the minds, such that defendants

entered into an agreement, express or tacit, to achieve the unlawful end.” Webb v. Goord, 340

F.3d 105, 110 (2d Cir. 2003) (internal quotation omitted).

The FAC alleges that Officers Soto, Katz, Rivera, and Abuhaikal and Assistant

District Attorney Kim agreed “to deprive [ Alvarez] of his clearly established Fourth and

Fourteenth Amendment rights to be free from unreasonable searches and seizures, false

* Alvarez also asserts a claim under section 1983 for an “unconstitutional conviction.” (FAC { 110). This claim is

duplicative of his malicious prosecution claim. See Heck v. Humphrey, 512 U.S. 477, 484-86 (1994). For that

reason, it will be dismissed.

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imprisonment, malicious prosecution, and deprivation of liberty without due process of law, and

also deprived Plaintiff of his right to a fair trial.” (FAC § 126). It alleges that Officers Soto,

Katz, Rivera, and Abuhaikal “agreed to deprive [Alvarez] of his clearly established Fourth

Amendment right to be free from unreasonable searches and seizures, prior to making the arrest

and after receiving information from the witness. This agreement was implicit.” (Id. § 127). In

furtherance of this conspiracy, the FAC alleges that the defendants “falsely arrest[ed| and

imprison[ed] [Alvarez] knowing that they lacked probable cause; fabricat[ed] inculpatory

evidence in reports, statements, and pretrial communications with the prosecution, inculpating

[Alvarez]; suborn[ed] perjury during hearings and trials, and [i]intentionally or with deliberate

indifference fail[ed] to comply with their duty to disclose Brady material during the pendency of

the case.” (Id. 130). Alvarez has pleaded only that Officers Katz, Rivera, and Abuhaikal were

present with Officer Soto at the scene of his arrest. He failed to plead, except in the most

conclusory fashion, that an agreement, either tacit or explicit, to violate Alvarez’s constitutional

rights existed between any or all of the defendants. Accordingly, this claim will be dismissed.

V. Alvarez Fails to State a Claim Against Officers Katz,

Rivera, and Abuhaikal for Denial of his Right to a Fair Trial

The Due Process Clause of the Fourteenth Amendment guarantees state criminal

defendants the right to a fair trial. Cone v. Bell, 556 U.S. 449, 451 (2009). A claim alleging the

deprivation of the right to a fair trial is thus distinct from a claim alleging a malicious

prosecution in violation of the Fourth Amendment. Garnett v. Undercover Officer C0039, 838

F.3d 265, 278 (2d Cir. 2016) (“[F]Jair trial claims cover kinds of police misconduct not addressed

by false arrest or malicious prosecution claims.”). To prevail on this claim, the plaintiff must

show that “an (1) investigating official (2) fabricate[d] information (3) that is likely to influence

a jury’s verdict, (4) forwarded that information to prosecutors, and (5) the plaintiff suffe[red] a

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deprivation of life, liberty, or property as a result.” Barnes v. City of New York, 68 F.4th 123,

129 (2d Cir. 2023) (internal quotation omitted). Fabricated information includes a police

officer’s own account of his observations of the alleged criminal activity. Id.

Defendants Officers Katz, Rivera, and Abuhaikal have moved to dismiss this

claim, and the Court concludes that the FAC fails to state a denial of a fair trial claim.° “[A]

plaintiff must establish a given defendant’s personal involvement in the claimed violation in

order to hold that defendant liable in his individual capacity under § 1983.” Patterson v. County

of Oneida, 375 F.3d 206, 229 (2d Cir. 2004). The FAC fails to allege that Officers Katz, Rivera,

or Abuhaikal were personally involved in the alleged deprivation of Alvarez’s right to a fair trial.

It alleges that only Officer Soto fabricated her account of witnessing Alvarez threatening the

other driver with a knife while his companions attempted to force their way into the driver’s car.

(FAC 4 16). It does not allege that Officers Katz, Rivera, or Abuhaikal fabricated any

information, or played any role, in the prosecution of Alvarez. This claim will thus be dismissed

against Officers Katz, Rivera, and Abuhaikal for failing to plead their personal involvement.

Alvarez Has Failed to Plausibly Allege a Claim for Monell Liability

A municipal liability claim under section 1983 must be premised upon an

underlying constitutional violation. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per

curiam). Because the defendants have not moved to dismiss the malicious prosecution (Count

One) and deprivation of the right to a fair trial (Count S1x) claims against Officer Soto, the Court

assumes for the sake of analysis that a constitutional violation has been adequately pleaded.

Alvarez asserts two section 1983 claims against the City under Monell, one premised upon the

> The FAC also asserts this claim against Assistant District Attomey Kim. (FAC 195-96). As discussed, Assistant

District Attorney Kim is entitled to absolute immunity from this claim. Officer Soto has not moved to dismiss this

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actions of the Bronx District Attorney’s Office and the other premised upon the actions of NYPD

officers.

In Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), the

Supreme Court held that a municipality is a “person” that can be held liable under section 1983.

At the same time, the Court concluded that a municipality may not be found liable “unless action

pursuant to official municipal policy of some nature caused a constitutional tort.” Id. at 691. A

municipality cannot be held liable on a respondeat superior theory, that is, solely because it

employs a tortfeasor. Id.

To state a claim, Alvarez must allege that “action pursuant to official municipal

policy” caused his injury. “Official municipal policy includes the decisions of a government’s

lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Additionally,

a municipality’s failure to supervise or train its employees can give rise to Monell liability when

a municipal policy can be “inferred from evidence of deliberate indifference of supervisory

officials to such abuses.” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012).

The Supreme Court has cautioned that deliberate indifference is a “stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Board of County Commissioners v. Brown, 520 U.S. 397, 410

(1997). Indeed, a section 1983 claim “is at its weakest” when it is based on alleged failure to

train or supervise. Greene v. City of New York, 742 F. App’x. 532, 536 (2d Cir. 2018)

(summary order). Proving deliberate indifference “generally requires a plaintiff to prove that the

constitutional violation underlying his claim was preceded by ‘[a] pattern of similar

constitutional violations.”” Id. (quoting Connick, 563 U.S. at 61). Additionally, for a municipal

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actor to have disregarded a known or obvious consequence of his action, the plaintiff cannot

point to “contemporaneous or subsequent” violations. Connick, 563 U.S. at 63 n.7.

The Second Circuit recently held that New York City is the proper defendant for

constitutional violations resulting from allegedly unlawful policies of the Queens County District

Attorney’s Office. Bellamy v. City of New York, 914 F.3d 727, 761 (2d Cir. 2019). In Bellamy,

the City had argued that it could not be held liable for any constitutional harms inflicted by the

policies of the Queens County District Attorney’s Office because the City was not responsible

for those policies. Id. at 756-57. The Second Circuit recounted its precedent on the subject,

noting that “when a Monell claim challenges policies of the City of New York’s ‘constituent

counties,’ the City is a proper defendant.” Id. at 758. It held that “the actions of county

prosecutors in New York are generally controlled by municipal policymakers for purposes of

Monell, with a narrow exception . . . being the decision of whether, and on what charges, to

prosecute. Thus, in this case, the rule from these cases requires the conclusion that the conduct

[the plaintiff] challenges is a result of municipal rather than state policymaking.” Id. at 759.

Following Bellamy, district courts in this Circuit have consistently concluded that

New York City may be held liable for the policies of the District Attorney’s offices of its

constituent counties. See, e.g., Fraser v. City of New York, 2021 WL 1338795, at *11 (S.D.N_Y.

Apr. 9, 2021) (“The conclusion to be drawn from these cases is that the City can be liable under

Monell for policies of the Manhattan District Attorney’s Office.”); O’Hara v. City of New York,

2019 WL 2326040, at *8 (E.D.N.Y. May 31, 2019) (“Second Circuit precedent plainly teaches

that the City may be held liable under Monell for the alleged [Kings County District Attorney’s

Office] conduct at issue.”). “It is anomalous that under Monell and New York law, while the

City has no control over what happens in the District Attorney’s office respecting prosecutions, it

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must pay the bill if the prosecutor violates Monell.” Bailey v. City of New York, 79 F. Supp. 3d

424, 453 (E.D.N.Y. 2015). Despite this anomaly, the question for this Court is whether Alvarez

has adequately pleaded that the Bronx District Attorney’s Office had a “policy or custom” that

was unconstitutional.

The FAC does not identify a formal policy adopted by the City or actions directed

by the City’s “authorized decisionmakers.” Alvarez alleges that the City is liable for his

malicious prosecution because the Bronx District Attorney’s Office had a persistent and

widespread practice “amounting to deliberate indifference to the constitutional rights of persons”

of 1) initiating criminal prosecutions that were not based on probable cause, 2) using “false,

misleading or unreliable evidence, testimony, statements or arguments during criminal

proceedings,” 3) failing to “correct false, inaccurate, incomplete or misleading evidence,

testimony, statements and argument whenever such misconduct is discovered to have occurred,”

4) failing to timely and fully disclose material to the defense as required under Brady v.

Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 450 U.S. 152 (1972) and 5)

“knowingly making false and misleading arguments during summation.” (FAC § 158).

As an initial matter, two of the alleged practices of the Bronx District Attorney’s

Office are, on their face, unrelated to Alvarez’s prosecution. Alvarez alleges the Bronx District

Attorney’s Office had a custom of failing to comply with its requirements under Brady and

Giglio and a custom of “knowingly making false and misleading arguments during summation.”

He does not allege, however, that the prosecutors failed to comply with their disclosure

obligation or made knowingly false or misleading arguments during summation in his

prosecution.

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With respect to the alleged practices that could conceivably relate to Alvarez’s

prosecution, he has not plausibly alleged a persistent or widespread practice that establishes a

custom or a pattern of similar constitutional violations that New York City’s policymakers were

deliberately indifferent to. Alvarez has pleaded in “the civil rights litigation in Ramos v. City of

New York, 285 A.D.2d 284 (1st Dept 2001) . . . discovery of Bronx DA’s Office personnel

records, together with deposition testimony, showed that in approximately 72 cases where courts

had found prosecutorial misconduct occurred . . . officials could only identify one prosecutor

from between 1975 and 1996 who had been disciplined.” (FAC § 169). Alvarez also states that

“further evidence of the Bronx County District Attorney’s deliberate indifference to

prosecutorial misconduct was uncovered in the companion lawsuits Poventud v. City of New

York, 07 Civ. 3998 (DAB)(THK) (U.S.D.C. $.D.N.Y.) and Maldonado v. City of New York,

No. 17568- 2004 (N.Y. Sup. Ct. Bronx Co. filed June 14, 2004), which also involved the

knowing use of false evidence and argument and committing Brady violations by the Bronx

DA’s Office.” (FAC § 170).

The FAC does not specify what the instances of “prosecutorial misconduct”

uncovered during discovery in these cases were. Without specifying what the instances of

“prosecutorial misconduct” were, this allegation does not establish that the Bronx District

Attorney’s Office had a custom of, or was deliberately indifferent to, prosecutors initiating

criminal proceedings that were not based on probable cause, using false evidence, or failing to

correct false evidence. Alvarez also cites four “civil rights cases brought against the [Bronx

District Attorney’s Office]” that show its “continued deliberate indifference to unconstitutional

prosecutorial practices.” (FAC § 172). The Bronx District Attorney’s Office’s conduct after

Alvarez’s prosecution, however, does not necessarily establish a pattern of conduct that preceded

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Alvarez’s prosecution. See Connick, 563 U.S. at 63 n.7. Additionally, the FAC does not plead

the total number of prosecutions conducted by the Bronx District Attorney’s Office during

Alvarez’s surveyed time period of 1975 to 2024, but the small number of incidents “uncovered”

during discovery and the four cited cases represent such a small fraction of such prosecutions

that the Court cannot conclude they evidence a “persistent and widespread pattern.” See Nunez

v. City of New York, 735 F. App’x. 756, 760-61 (2d Cir. 2018) (summary order) (affirming the

dismissal of a section 1983 claim against the City because 48 alleged instances of prosecutorial

misconduct by the Bronx District Attorney’s Office over 23 years did not support a reasonable

inference of a “custom” or deliberate indifference).

The FAC also relies on the conclusory statement that “aforesaid policymaking

officials” had received “credible allegations” of similar misconduct substantiated by unnamed

judicial decisions. (FAC § 160). Alvarez then proceeds with further speculation about the

internal operations of the Bronx District Attorney’s Office and its practices “encouraging

prosecutors to win at any cost.” (Id. § 162-68). These vague and conclusory allegations will be

disregarded. See Vasquez v. City of New York, 20-cv-4641 (ER), 2023 WL 8551715, at *5

(S.D.N.Y. Dec. 11, 2023).

Alvarez’s Monell claim against New York City based on the NYPD 1s similarly

deficient. Alvarez claims that the NYPD “maintained a custom and pattern of promoting,

facilitating, or condoning, improper, illegal and unconstitutional investigative techniques” that

included the following: using coercive tactics in interviews and to interfere with a defendant’s

right to call witness, fabricating inculpatory evidence, intentionally failing to adequately

investigate crimes, and concealing this misconduct. (FAC 4 135).

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His factual showing in support of this claim is insufficient to plausibly plead a

widespread or persistent pattern of unconstitutional investigative techniques. The lengthy

quotation from The Report on the Commission to Investigate Allegations of Police Corruption

and the Anti-Corruption Procedures of the Police Department was written in 1994,

approximately sixteen years before Alvarez’s arrest and does not plausibly support a pattern or

practice of the New York Police Department existed at Alvarez’s arrest. (FAC § 147). He also

points broadly to the large number of settlements New York City has paid in cases allegedly

involving “corruption, misconduct, and other allegations of such,” and directs the Court to a

Wikipedia link on “New York City Police Department corruption and misconduct.” (Id.). This

allegation does not show facts that point to a pattern, practice or custom of the City. Thus,

Alvarez has failed to plausibly allege a pattern of similar constitutional violations to either

establish a municipal policy or put New York City on notice.

CONCLUSION

For the reasons discussed above, the Court grants the defendants’ motion to

dismiss the complaint in part. Count One is dismissed against all defendants except for Officer

Soto. Counts Two, Three, and Four are dismissed. The Monell claims against the City relating

to the conduct of the Bronx District Attorney’s Office and the NYPD, both denoted as the “Fifth

Cause of Action,” are dismissed. Count Six is dismissed against all defendants except for

Officer Soto. The Clerk of Court is respectfully requested to terminate the motion. (ECF 60.)

SO ORDERED.

LZ Boeoon

LZ Rows Lol

United States District Judge

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Dated: New York, New York

March 15, 2024

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