Simmons v. Ferrigno, II

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SILVON S. SIMMONS,

Plaintiff,

Case # 17-CV-6176-FPG

v.

DECISION AND ORDER

JOSEPH M. FERRIGNO, II et al.,

Defendants.

INTRODUCTION

On March 27, 2017, Plaintiff Silvon S. Simmons brought this action against the City of

Rochester and its employees Joseph M. Ferrigno, II, Samuel Giancursio, Michael L. Ciminelli,

Mark Wiater, Christopher Muscato, and Robert Wetzel (collectively, the “City Defendants”), and

against Shotspotter, Inc., SST, Inc., and Paul C. Greene (collectively, the “ShotSpotter

Defendants”),1 asserting claims under 42 U.S.C. § 1983 and various provisions of state law. ECF

No. 10.

The City Defendants moved for partial summary judgment on December 22, 2022. ECF

No. 132. The Shotspotter Defendants moved for summary judgment the same day. ECF No. 136.

Plaintiff filed his responses in opposition to both motions on February 8, 2023. ECF Nos. 142,

143. The Shotspotter Defendants and the City Defendants replied separately on March 15, 2023.

1 Plaintiff has also named several John Does as defendants. As an initial matter, the Court dismisses the claims against

the unnamed John Doe defendants (John Does 1-20 and John Does 21-30). Though discovery is complete in this case,

Plaintiff has failed to identify any of the John Doe defendants. Moreover, Plaintiff’s opposition filings to the

Defendants’ summary judgment motions do not specify the role of any unnamed defendants in the infringing conduct,

nor does Plaintiff indicate that he will be able to identify these unnamed defendants in the future. See Blake v. Race,

487 F. Supp. 2d 187, 187 n.1 (E.D.N.Y. 2007). Because Plaintiff had “an opportunity to pursue discovery to identify

the unknown defendants” but failed to do so, this Court “adheres to the ‘general rule’ that disfavors the use of ‘John

Doe’ to identify defendants.” Id. (citing Feliciano v. Cnty. of Suffolk, 419 F. Supp. 2d 302, 313 (E.D.N.Y. 2005)).

John Does 1-20 and John Does 21-30 are therefore dismissed without prejudice. See id.

ECF No. 148, 149. For the reasons explained below, the City Defendants’ motion for partial

summary judgment is GRANTED in part and DENIED in part. The ShotSpotter Defendants’

motion for summary judgment is GRANTED in its entirety.

FACTUAL BACKGROUND

I. The Immel Street Shooting

Shortly before 9:00 pm on the night of April 1, 2016, Plaintiff left his home on Immel

Street in the City of Rochester to accompany his neighbor to a nearby store. ECF No. 142-29 ¶¶

15-16; ECF No. 143-17 ¶¶ 15-16. Plaintiff got into the front passenger seat of his neighbor’s gray

Chevrolet Impala and the two men departed. Id. ¶¶ 16-17. As Plaintiff and his neighbor returned

to Immel Street, their car caught the attention of Defendant Ferrigno, who had learned that an

individual involved in an ongoing feud in the area drove a gray or tan Chevrolet Impala. ECF No.

136-5 at 2. When Plaintiff and his neighbor returned from the store, Ferrigno pulled up to the

neighbor’s driveway and shined a spotlight on the Impala. See ECF No. 132-2 ¶ 9; ECF No. 142-

28 ¶¶ 8-10.

Ferrigno then chased Plaintiff as he started running down the driveway towards his

backyard. ECF No. 132-2 ¶ 10; ECF No. 133-4 at 3; ECF No. 142-28 ¶¶ 11-12. As Plaintiff

recounts, Ferrigno fired four shots at him as he was running away, hitting him three times. ECF

No. 142-28 at 3 ¶ 13; ECF No. 142-29 ¶ 35; see also ECF No. 132-2 ¶13. Ferrigno, on the other

hand, maintains that he saw Plaintiff reach back, followed by a muzzle flash and a gunshot, before

he fired at Plaintiff. ECF No. 136-5 at 3. According to Ferrigno, Plaintiff shot first. Id.

After being hit by the third bullet, Plaintiff dove over the fence that led to his backyard and

tried to crawl to his back door. ECF No. 132-2 ¶ 14; ECF No. 142-28 at 4 ¶ 14. Physically unable

to crawl, he laid face down on the ground and played dead. ECF No. 132-2 ¶ 14; ECF No. 142-

28 at 4 ¶ 15.

After Defendant Giancursio arrived on the scene, he searched and handcuffed Plaintiff.

ECF No. 142-29 ¶¶ 50, 54. Eventually, RPD found a Ruger handgun a “few feet” from where

Plaintiff had fallen after being shot. ECF No. 142-28 at 27 ¶ 178. Although DNA was recovered

from the weapon, it did not match Plaintiff’s, and he was excluded as a possible contributor. Id.

at 43 ¶ 285, 51 ¶¶ 328-29; ECF No. 142-18 at 11. Witnesses differ as to whether a shell casing

was “stove-piped,” that is, stuck in the ejection port, or not. ECF No. 142-28 at 23 ¶ 151, 38 ¶

248, 41 ¶ 268.

After being taken into custody, Plaintiff was admitted to Strong Memorial Hospital. ECF

No. 142-29 ¶ 75; ECF No. 143-17 ¶ 78. Plaintiff had sustained several injuries in the shooting,

including a left hemopneumothorax, a fracture of the left acetabulum, a pseudoaneurysm of the

right superficial femoral artery, and fractures of the sixth, seventh, and tenth ribs. ECF No. 142-

29 ¶ 77; ECF No. 143-17 ¶ 77. He was intubated and remained on a ventilator until the morning

of April 4. ECF No. 142-29 ¶ 78; ECF No. 143-17 ¶ 78.

II. The ShotSpotter Evidence

Shortly after the shooting, Defendant Mark Wiater contacted ShotSpotter about the

incident. ECF No. 136-2 at 4. ShotSpotter provides a network of acoustic sensors, each of which

continuously records audio, that can detect, locate, and alert police departments to gunshot

incidents. ECF No. 136-2 at 4; ECF No. 136-10 at 2. The ShotSpotter system is made up of a

network of audio sensors, each of which continuously records audio. When the system detects

acoustic impulses typical of gunfire, it automatically generates a “ShotSpotter Incident,” which

includes audio clips and system-generated analysis of the incident. Id. When Wiater contacted

Shotspotter, he asked the ShotSpotter representative if someone could “pull the audio [of the

incident] and listen to a longer portion for additional shots.” ECF No. 136-13 at 2; see also ECF

No. 132-2 ¶ 17. Wiater did not tell ShotSpotter how many shots he thought had been fired. ECF

No. 135-2 at 2; ECF No. 143-5 at 13-14. ShotSpotter later informed Wiater that the system had

detected an earlier gunshot, which occurred two seconds before the subsequent four shots. ECF

No. 132-6 ¶¶ 23-24; ECF No. 136-13 at 4. Wiater denies ever asking ShotSpotter or any

ShotSpotter employee to “modify the audio content of a file or to fabricate evidence of a gunshot.”

ECF No. 132-6 ¶ 28.

At the time of Wiater’s request, Ralph Clark, President and CEO of ShotSpotter Inc.,

reviewed and approved the release of “extended audio clips” to customers. ECF No. 136-2 ¶ 33.

The purpose of Clark’s review was to ensure that extended audio clips did not contain incidental

sounds other than gunshot sounds. ECF No. 136-10 ¶ 17. ShotSpotter employee Robert Bresler

emailed Clark on April 1, 2016 and included as an attachment an audio file containing all five

shots. ECF No. 136-10 ¶ 14. Clark approved the audio file, and had no further communication

regarding the shooting with Bresler or members of the RPD. Id. ¶ 16.

About one week after the shooting, on April 8, 2016, then-Lead Customer Support

Engineer Defendant Paul C. Greene produced a “Detailed Forensic Report” on the incident, which

stated that the system “auto-acknowledged” the incident but did not alert RPD because “squelch

mode” was enabled. ECF No. 136-2 ¶ 43; ECF No. 136-17 at 5. The report also indicated that the

ShotSpotter system initially classified the incident as “Helicopter.” Id. Shortly before 1:00 am on

April 2, however, Bresler reclassified the incident to “Multiple Gunshots” “per customer” and

updated the number of rounds from three to four. Id. According to the report, there were five

shots. Id. at 7, 11. The first shot, which was not initially included in the incident, occurred

approximately two seconds before the second shot. Id. at 7. The report also depicts audio

waveforms of the incident, showing one impulse occurring relatively early, followed by four

impulses in rapid succession. See ECF No. 136-2 ¶ 45; ECF No. 136-16 ¶ 8.

Bresler, Clark, and Greene deny that they altered any of the audio data or files associated

with the shooting. See ECF No. 136-2 ¶¶ 24-26, 34-36, 49-51. They also deny that they know

how—or had any motivation—to do so. Id. ¶¶ 27-28, 39, 41, 53-54.

III. The Criminal Proceedings

Plaintiff was arraigned on April 5, 2016 while in custody at Strong Memorial Hospital, and

charged with attempted aggravated murder, attempted aggravated assault of a police officer, and

two counts of criminal possession of a weapon in the second degree. ECF No. 142-28 ¶ 81; ECF

No. 143-17 ¶ 81. On April 11, he was transferred from Strong Memorial Hospital to Monroe

County Jail, where he remained throughout the criminal proceedings. ECF No. 142-29 ¶ 87; ECF

No. 143-17 ¶ 87.

During Plaintiff’s October 2017 criminal trial, Defendant Greene testified that RPD asked

him to search for additional shots and that ShotSpotter found audio of a fifth shot “a few seconds

prior” to the other four shots. ECF No. 143-4 at 5. He also testified that ShotSpotter initially

detected three gunshots, that a technician updated the number from three to four after initial review,

and that the number of shots was “changed to five only after [his] analysis.” Id. at 8. Greene

maintains that he did not rely upon or reference any fabricated or falsified evidence. ECF No.

136-2 ¶ 47. Plaintiff’s criminal trial concluded on October 26, 2017 with a jury verdict acquitting

Plaintiff of all but one count: criminal possession of a weapon in the second degree.2 Id. ¶ 5 (citing

ECF No. 10 ¶¶ 250-53).

2 Plaintiff was charged with two counts of criminal possession of a weapon in the second degree. The jury found

Plaintiff guilty of possessing “any loaded firearm” under N.Y. Penal Law § 265.03(3). ECF No. 136-8 at 2. The jury

On February 13, 2018, the trial court set aside the verdict and vacated Plaintiff’s conviction.

Id. ¶ 8. The court concluded that it should have precluded the recording of five acoustic impulses

that the ShotSpotter system captured as well as Defendant Greene’s testimony that the impulses

were gunshots recorded at the time and place of the Immel Street shooting. ECF No. 136-8 at 8-

12. The court also explained that, in its view, the jury verdict “reflected a nearly complete rejection

of Ferrigno’s (and Giancursio’s) version of events.” In other words, it “reflected a determination

that [Plaintiff] did not point his gun at Ferrigno and fire it.” Id. at 8. The trial court therefore

ordered a new trial but limited Ferrigno to testifying that he “heard a shot, and fired.” Id. at 12;

see also ECF No. 143-17 ¶ 97. Because the prosecution indicated that, without the ShotSpotter

evidence, it could not establish that Plaintiff possessed a loaded firearm on the night of the

shooting, defense counsel moved to dismiss the indictment. ECF No. 143-17 ¶ 99-100. The trial

court granted the motion and dismissed the indictment. Id. ¶ 100.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment” if

the moving party “shows that there is no genuine issue as to any material fact and that [it] is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (“[T]he plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”). In deciding whether there is a genuine

dispute as to a material fact, the court is not to evaluate credibility, and must draw all reasonable

found Plaintiff not guilty of possessing a loaded firearm with the intent to use it unlawfully against another under N.Y.

Penal Law § 265.03(1)(b). See id.

inferences and resolve all ambiguities in favor of the non-moving party. Kaytor v. Elec. Boat

Corp., 609 F.3d 537, 454 (2d Cir. 2010).

Once the moving party has met its burden, the nonmoving party “must come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli

Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986)). The nonmoving party may not, therefore, “rely on mere speculation or

conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight

v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). Nor is a “mere scintilla of evidence” in support

of the nonmoving party enough. Anderson, 477 U.S. at 252. The nonmoving party must do more

than cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence

showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When

a motion for summary judgment is properly supported by documents or other evidentiary

materials, the party opposing summary judgment may not merely rest on the allegations or denials

of his pleading. . . .”). But, if “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party,” the court must deny summary judgment. Anderson, 477 U.S. at 248.

DISCUSSION

I. The City Defendants’ Motion

The City Defendants seek partial summary judgment. Specifically, they seek summary

judgment on Plaintiff’s § 1983 conspiracy claim (Count III); failure to intervene claim against

Defendant Muscato (Count VII); failure to implement policies, customs, and practices claim

against Defendant City of Rochester; (Count VIII); and a supervisory liability claim against

Defendant Ciminelli (Count IX). ECF No. 132-1.3 They also assert that Defendants Ferrigno and

Giancursio are entitled to qualified immunity from Plaintiff’s false arrest claim (Count I). ECF

No. 132-1. The Court begins with the City Defendants’ assertion of qualified immunity before

turning to their arguments in favor of summary judgment.

a. False Arrest (Count I)

The City Defendants assert that Ferrigno and Giancursio are entitled to qualified immunity

with respect to Plaintiff’s false arrest claim because it is undisputed that the officers believed the

car in which Plaintiff and his neighbor were traveling was the same make and model, and close in

color, to that of a “wanted suspect.” ECF No. 132-3 at 20. Moreover, when Ferrigno exited his

vehicle, shined a light on Plaintiff, and told him to stop, Plaintiff did not stop. Id. at 21. And,

because “their immediate Sergeant, the Professional Standards Section, the Chief of Police, and

the CRB” all concluded that the officers acted appropriately, no reasonable jury could conclude

that the officers’ actions were objectively unreasonable. Id.

Plaintiff contends that, because there are questions of fact for the jury to decide,

consideration of qualified immunity is premature. ECF No. 142-33 at 25. Specifically, Plaintiff

asserts that if the jury determines that Plaintiff did not display or fire a gun and that Ferrigno was

never in danger, it would not have been reasonable for him to believe that it was proper to shoot

at Plaintiff. Id. at 26. Plaintiff also argues that no reasonable police officer could believe it was

permissible to “move shell casings or plant a gun, let alone conspire with ShotSpotter to obtain

fabricated and falsified ShotSpotter audio and reports.” Id. The Court agrees with Plaintiff that

3 The City Defendants do not seek summary judgment on Plaintiff’s excessive force claim (Count II), malicious

prosecution claims (Counts IV and XII), fair trial claim (Count V), battery claim (Count X), and assault claim (Count

XI). While the City Defendants seek qualified immunity from Plaintiff’s false arrest claim (Count I), they do not

otherwise seek summary judgment on this claim. The Court previously dismissed Plaintiff’s malicious abuse of

process claim against the City Defendants (Count VI) and his failure to intervene claim (Count VII) against Defendants

Ferrigno, Giancursio, Wiater, and Ciminelli. See Simmons v. Ferrigno, No. 17-CV-6176, 2019 WL 12361880, at *6-

7 (W.D.N.Y. Aug. 5, 2019).

questions of fact preclude granting qualified immunity to Ferrigno and Giancursio at the summary

judgment stage.

“In order to sustain a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show

that the defendant intentionally confined him without his consent and without justification.”

Dufort v. City of New York, 874 F.3d 338, 347 (2d Cir. 2017) (internal quotation marks omitted).

“Because probable cause to arrest constitutes justification, there can be no claim for false arrest

where the arresting officer had probable cause to arrest the plaintiff.” Id. (quoting Escalera v.

Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “Whether probable cause exists depends upon the

reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the

arrest.” Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004). Generally, “probable cause to arrest

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.” Id. at 348 (quoting Weyant v. Okst,

101 F.3d 845, 852 (2d Cir. 1996)). Probable cause is a mixed question of law and fact. Id.

“Questions of historical fact regarding the officers’ knowledge at the time of arrest are to be

resolved by the jury.” Id. However, “where there is no dispute as to what facts were relied on to

demonstrate probable cause, the existence of probable cause is a question of law for the court.”

Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007).

“Qualified immunity establishes a defense for a government actor acting in his official

capacity.” Dufort, 874 F.3d at 354. It “provides ample protection to all but the plainly incompetent

or those who knowingly violate the law.” Id. (internal quotation marks omitted). “A police officer

is entitled to qualified immunity if (1) his conduct does not violate a clearly established

constitutional right, or (2) it was ‘objectively reasonable’ for the officer to believe his conduct did

not violate a clearly established constitutional right.” Hartline v. Gallo, 546 F.3d 95, 102 (2d Cir.

2008). A defendant is entitled to summary judgment on qualified immunity grounds if:

he adduces sufficient facts such that no reasonable jury, looking at the

evidence in light most favorable to, and drawing all inferences most

favorable to, the plaintiff[], could conclude that it was objectively

unreasonable for the defendant to believe that he was acting in a

fashion that did not clearly violate an established federally protected

right.

Hartline, 546 F.3d at 102. “Although a conclusion that a defendant official’s conduct was

objectively reasonable as a matter of law may be appropriate where there is no dispute as to the

material historical facts, if there is such a dispute, the factual questions must be resolved by the

factfinder.” Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) (internal citations

omitted); see also Dufort, 874 F.3d at 354 (denying summary judgment where plaintiff established

dispute of material fact as to whether defendants intentionally withheld or manipulated key

evidence during his arrest and prosecution).

In the context of a false arrest claim, an officer is entitled to qualified immunity if he had

either probable cause or “arguable” probable cause. Id. Arguable probable cause exists “if officers

of reasonable competence could disagree on whether the probable cause test was met.” Gonzalez

v. City of Schenectady, 782 F.3d 149, 157 (2d Cir. 2013) (quoting Jenkins v. City of New York, 478

F.3d 76, 87 (2d Cir. 2007)). However, “‘[a]rguable’ probable cause should not be misunderstood

to mean ‘almost’ probable cause.” Jenkins, 478 F.3d at 87. “If officers of reasonable competence

would have to agree that the information possessed by the officer at the time of arrest did not add

up to probable cause, the fact that it came close does not immunize the officer.” Id.

Here, because Plaintiff has established a dispute of material fact as to the circumstances

his arrest, the Court concludes that it would be inappropriate to grant qualified immunity to

Ferrigno and Giancursio at the summary judgment stage.4 See Dufort, 874 F.3d at 354. “At the

time of the events in the present case, the legal principles governing [Ferrigno’s and Giancursio’s]

conduct . . . were well established.” Weyant, 101 F.3d at 858. Whether it was reasonable for

Ferrigno and Giancursio to believe that their conduct “met the standards set by those principles,”

however, “depends on whether one believes their version of the facts.” Id. But “that version is

sharply disputed,” id., and Plaintiff has introduced sufficient evidence to require a jury’s

consideration as to “what the facts were that the officer faced or perceived.” Kerman, 374 F.3d at

109 (internal quotation marks omitted). For example, two non-law enforcement witnesses have

testified that they only heard four shots that evening. ECF No. 142-28 ¶¶ 30-32, 63. One stated

that she saw Plaintiff running away from an officer and that his back was facing the officer when

the officer shot him, did not see Plaintiff fire a gun, and did not see “any type of flash,” like a

muzzle flash, coming from Plaintiff’s direction. ECF No. 142-28 ¶¶ 30-32, 39. On this record,

the only clearly established material facts known to Ferrigno and Giancursio at the time of the

incident are that Plaintiff was a passenger in a gray Chevrolet Impala that backed into a driveway

on Immel Street, that a wanted suspect was associated with a light-colored car of the same make

and model, and that Plaintiff fled after being ordered to stay put. Whether Plaintiff ever possessed

or fired a gun is in sharp dispute. Accordingly, “the matter of qualified immunity . . . cannot be

resolved as a matter of law.” Weyant, 101 F.3d at 858

With respect to Ferrigno’s initial approach, the City Defendants assert that it is

“undisputed” that Ferrigno and Giancursio believed that the car in which Plaintiff was a passenger

was “the same make and model and a close color to the wanted suspect they were looking for.”

4 It is worth noting that the City Defendants seek dismissal of the false arrest claim solely on qualified immunity

grounds. See ECF No. 132 at 1; ECF No. 132-1 ¶ 17. They therefore appear to acknowledge the genuine dispute of

material fact as to the substance of the false arrest claim. “[T]hose same questions of material fact preclude a grant of

qualified immunity at the summary judgment stage.” Dufort, 874 F.3d at 343.

ECF No. 132-3 at 20. Plaintiff does dispute the assertion that the vehicle “matched the description”

of the wanted suspect’s vehicle, however. ECF No. 142-28 ¶ 6; see ECF No. 132-2 ¶ 6 (“The

vehicle matched the description of a vehicle which a suspect wanted for Menacing in the Second

Degree had been known to drive.”). According to Plaintiff, Ferrigno had reason to believe that the

suspect drove a gold-colored Impala, not a gray one. ECF No. 142-28 ¶ 6; see ECF No. 142-2 at

12 (describing suspect’s vehicle as potentially “gold, champagne, [or] cream”). Other than being

somewhat similar in color, the Defendants have not presented any reason for the officers to believe

that the vehicle in which Plaintiff was a passenger was the menacing suspect’s vehicle. Cf.

LaLonde v. Bates, 166 F. Supp. 2d 713, 718 (N.D.N.Y. 2001) (investigator’s observation of dark

colored car matching the make and general description of suspect vehicle insufficient to hold, as a

matter of law, that investigator had probable cause to stop vehicle).

The City Defendants also point to the fact that when Ferrigno exited his car, shined a light

on the Impala and “said stop, Plaintiff did not stop.” ECF No. 132-3 at 21. Although the City

Defendants assert that it is “undisputed that Officer Ferrigno . . .. said stop,” whether Ferrigno

ordered Plaintiff to stop appears to be in dispute. See ECF No. 132-2 ¶¶ 5-12 (identifying

undisputed facts regarding the initial approach and stop); ECF No. 142-29 ¶¶ 24-33, 42 (Plaintiff’s

account of Ferrigno’s approach and chase). The City Defendants do not identify Ferrigno’s order

to stop as an undisputed fact. See ECF No. 132-2 ¶¶ 5-12. And, according to Plaintiff, he ran

because he could not see or identify the vehicle or the person who exited the vehicle that was

pointing a gun at him while running toward him. ECF No. 142-29 ¶ 28-29. Moreover, he states

that Ferrigno did not identify himself as a police officer in any way. Id. ¶ 42.

At this stage then, Plaintiff’s flight does not support the City Defendants’ assertion of

qualified immunity. While “a suspect’s flight may, under certain circumstances, provide

reasonable suspicion to warrant a Terry stop, it does not, without more, provide probable cause to

arrest.” Jenkins v. City of New York, 478 F.3d 76, 89 n.12 (2d Cir. 2007); Nixon v. City of New

York, No. 19-CV-5032, 2023 WL 2799920, at *4 (E.D.N.Y. Apr. 6, 2023). “Flight at the approach

of strangers,” too, is a “strong [indicium] of mens rea, and when coupled with specific knowledge

on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be

considered in the decision to make an arrest.” Nixon, 2023 WL 2799920, at *4 (quoting Sibron v.

New York, 392 U.S. 40, 66-67 (1968)) (emphasis added). Other than the disputed issues of the

Impala’s color and Plaintiff’s refusal to obey Ferrigno’s order to stop, the City Defendants point

to no other indicia of criminality, that would support a finding of either probable cause or arguable

probable cause at this stage of the proceedings. See id. Instead, there are two sharply differing

versions of events. The City Defendants assert that Plaintiff, who was a passenger in a car

matching the description of a potentially dangerous suspect, fled after Ferrigno ordered him to stop

and, shortly thereafter, shot at Ferrigno. Plaintiff, on the other hand, asserts that he fled, fearing

for his life, from a then-unidentifiable individual who was pointing a gun at him while chasing

him down a driveway toward his backyard. In light of this dispute, Ferrigno and Giancursio are

not entitled to qualified immunity at this stage of the proceedings. See id.

The City Defendants have failed to establish that Ferrigno and Giancursio are entitled to

qualified immunity as to Plaintiff’s false arrest claim as a matter of law. The Court therefore

denies their request to dismiss that claim on qualified immunity grounds.

b. § 1983 Conspiracy (Count III)

Plaintiff alleges that “all Defendants” conspired to falsely create additional gunshots in the

ShotSpotter audio files or reports, to fabricate and falsify evidence that they forwarded to the

prosecution, and participated in the prosecution “to cause Plaintiff to be wrongfully charged,

imprisoned[,] and prosecuted” and to “secure the exoneration of Defendant Ferrigno for using

excessive and deadly force against Plaintiff.” ECF No. 10 ¶ 307. The City Defendants assert that

they are entitled to summary judgment because there is no admissible evidence of conspiracy

between the City and ShotSpotter and because allegations of a conspiracy among RPD officers are

barred by the “intracorporate conspiracy” doctrine. ECF No. 132-3 at 8. As explained below, the

Court agrees that the City Defendants are entitled to summary judgment on Plaintiff’s § 1983

conspiracy claim.

To prove a § 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). The plaintiff must therefore show that

the “defendants acted in a willful manner, culminating in an agreement, understanding or meeting

of the minds, that violated [his] rights, privileges or immunities secured by the Constitution or

federal courts.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 507-08 (S.D.N.Y. 2008) (internal

quotation marks and citations omitted); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-

59 (1970). While conclusory, vague, or general allegations of conspiracy are insufficient, because

conspiracies are “by their very nature secretive operations, [they] may have to be proven by

circumstantial, rather than direct evidence.” Jean-Laurent, 540 F. Supp. 2d at 508 (citing

Pangburn, 200 F.3d at 72).

At the summary judgment stage, the nonmoving party’s evidence of a § 1983 conspiracy

“must, at least, reasonably lead to the inference that [the defendants] positively or tacitly came to

a mutual understanding to try to accomplish an unlawful plan.” Ivery v. Baldauf, 284 F. Supp. 3d

426, 439 (W.D.N.Y. 2018) (quoting Gustafson v. Village of Fairport, 106 F. Supp. 3d 340, 352

(W.D.N.Y. 2015)). Because Plaintiff has failed to come forward with evidence that reasonably

leads to such an inference, his § 1983 conspiracy claim cannot survive summary judgment.

Moreover, to the extent that Plaintiff alleges a conspiracy among RPD officers, the intracorporate

conspiracy doctrine bars his claim.

i. The ShotSpotter Conspiracy

The City Defendants contend that the communications between Wiater and ShotSpotter

and later Wetzel and ShotSpotter do not amount to an agreement to act in concert to inflict an

unconstitutional injury and therefore Plaintiff’s § 1983 conspiracy claim fails.5 ECF No. 132-3 at

7-9. Plaintiff argues in response that because there is evidence supporting the conclusion that RPD

contacted ShotSpotter “for the sole purpose of looking for a fifth shot to justify Ferrigno’s version

of events . . . [a] reasonable inference can be raised that defendants tacitly came to a mutual

understanding to create audio containing an additional shot.” ECF No. 142-33 at 17. The Court

disagrees.

Plaintiff’s conspiracy claim rests on the communications between RPD employees Wiater

and Wetzel on one hand and various ShotSpotter employees on the other. He points to the fact

that, following his communication with Wiater, ShotSpotter employee Robert Bresler reclassified

the incident as gunfire and updated the number of rounds from three to four. ECF No. 142-33 at

11. When Wiater asked if someone could listen to a longer portion of the audio fire for additional

shots, Bresler agreed to do so and to expedite the request. Id. Then, after conducting the audio

search, Bresler found an additional sound, which he identified as a gunshot. See id. Plaintiff also

points to Defendant Wetzel’s claim that he did not reach out to ShotSpotter until April 2, 2016

5 The City Defendants also assert that Plaintiff’s conspiracy claim fails because he has failed to allege or offer evidence

of class-based animus. See ECF No. 132-3 at 7. As the Court has already noted, because “Plaintiff alleges a civil

conspiracy under Section 1983, he is not required to allege a class-based animus.” Simmons v. Ferrigno, No. 17-CV-

6176, 2019 WL 12361880, at *5 (W.D.N.Y. Aug. 5, 2019).

despite acknowledging that he emailed ShotSpotter support on April 1, alerting them to potential

further requests related to an “officer-involved shooting.” Id. at 17. Finally, Plaintiff points to

inconsistencies between Bresler’s testimony in this case and Defendant Greene’s testimony at

Plaintiff’s criminal trial as to when ShotSpotter found the additional gunshot. Id. at 18.

Here, even drawing all reasonable inferences in Plaintiff’s favor, the evidence does “no

more than demonstrate that [ShotSpotter] cooperated with [RPD’s] investigation into” the Immel

Street shooting. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). “[T]here is nothing in the

series of communications” between the City Defendants and ShotSpotter, “other than [Plaintiff’s]

unsubstantiated speculation, to suggest that anything untoward took place.” Id. at 115; cf. Dory v.

Ryan, 999 F.2d 679, 683 (2d Cir. 1993) (dismissal improper in § 1983 conspiracy action where

plaintiff presented affidavit by prosecution witness indicating existence of conspiracy between

prosecutor and witness), modified, 25 F.3d 81 (2d Cir. 1994).

The only fact conceivably suggestive of a potential agreement is that a ShotSpotter

employee asked Wiater “[h]ow many shots at this location?” ECF No. 135-2 at 2. Assuming “this

location” does in fact refer to Immel Street, and not the other locations that Wiater had asked about,

the fact that Wiater did not answer, would tend to show that each member of the alleged conspiracy

did not, in fact, share the conspiratorial objective of fabricating evidence of a first gunshot. Cf.

Buari v. City of New York, 530 F. Supp. 3d 356, 394 (S.D.N.Y. 2021) (“While a plaintiff ‘need not

produce direct evidence of a meeting of the minds, he must come forward with specific

circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial

objective.’” (quoting Gordon v. Emmanuel, No. 15-CV-2439, 2018 WL 4688935, at *9 (E.D.N.Y.

Sept. 28, 2018)). Because Plaintiff’s evidence cannot, therefore, “reasonably lead to the inference

that [the City Defendants and ShotSpotter] positively or tacitly came to a mutual understanding to

try to accomplish an unlawful plan,” the City Defendants are entitled summary judgment on his §

1983 conspiracy claim. Ivery, 284 F. Supp. 3d at 439.

ii. Intracorporate Conspiracy

The Court now turns to the allegations that the City Defendants conspired among

themselves to deprive Plaintiff of his constitutional rights. See ECF No. 10 ¶¶ 301-06. Although

Plaintiff asserts that the intracorporate conspiracy doctrine does not apply because “the Amended

Complaint alleges a conspiracy between the City Defendants and ShotSpotter,” ECF No. 142-33

at 17, the Court nevertheless considers it because he alleges in several places that members of the

RPD, including Defendants Ferrigno and Giancursio, conspired among themselves to violate

Plaintiff’s civil rights, see e.g., ECF No. 10 ¶ 301, 302 (alleging that Defendants Ferrigno and

Giancursio agreed to deprive Plaintiff of his rights by, among other things, falsely accusing him

of shooting at Ferrigno and by falsely arresting him).6

Under the intracorporate conspiracy doctrine, “officers, agents and employees of a single

corporate entity are legally incapable of conspiring together.” Ivery, 284 F. Supp. 3d at 440. A

narrow exception to this doctrine exists where individual defendants, “despite being a part of the

same entity, ‘are pursuing personal interests wholly separate and apart from the entity.’” Id.

(quoting McRae v. City of Hudson, No. 14-CV-236, 2015 WL 275867, at *8 (N.D.N.Y. Jan. 21,

2015)). Plaintiff asserts only that the intracorporate conspiracy doctrine is inapplicable; he does

not raise this exception. See ECF No. 142-33 at 16.

6 The Court acknowledges that a previous decision declined to dismiss Plaintiff’s conspiracy claim under the

intracorporate conspiracy doctrine because Plaintiff alleged his conspiracy cause of action against “All Defendants,”

and “the amended complaint contains allegations that the City Defendants conspired with the ShotSpotter Defendants

to violate Plaintiff’s civil rights. Simmons, 2019 WL 12361880, at *5. Because the Court has concluded that the City

Defendants are entitled to summary judgment on Plaintiff’s conspiracy claims to the extent that he alleges a conspiracy

between the City Defendants and ShotSpotter, the Court will address Plaintiff’s allegations of conspiracy amongst the

City Defendants as well.

In any event, the exception does not apply. Plaintiff’s “only interaction with the individual

defendant officers is through their professional duties, which they carried out under the color of

law.” McRae, 2015 WL 275867, at *8. Moreover, there is no evidence that the defendant officers

“had a personal connection to him or were motivated by personal reasons wholly separate and

apart from” their employment with the RPD. Id. Accordingly, to the extent Plaintiff alleges that

the City Defendants conspired amongst themselves, his claim is barred by the intracorporate

conspiracy doctrine. The City Defendants are therefore also entitled to summary judgment on

Plaintiff’s § 1983 conspiracy claim to the extent it alleges a conspiracy among RPD officers.

c. Failure to Intervene (Count VII)

The City Defendants assert that they are entitled to summary judgment on this claim

because Muscato did not have a realistic opportunity to intervene for two reasons. First, Muscato

was not the investigator or technician assigned to Plaintiff’s criminal case; his only role was to

treat him at the scene before the ambulance arrived. ECF No. 132-3 at 5-6. Second, neither RPD

nor the Monroe County District Attorney used gunpowder residue tests. Id. at 6. Plaintiff contends

that because there is evidence that Plaintiff asked Muscato to test him for gunpowder residue and

that Muscato could have requested such a test, he had sufficient time and a realistic opportunity to

prevent the violation of Plaintiff’s rights. ECF No. 142-33 at 14-15. The Court agrees with

Plaintiff and concludes that a genuine dispute of material fact as to whether Muscato had a realistic

opportunity to intervene precludes summary judgment.

“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.” Sloley v. VanBramer, 945 F.3d 30, 46-47 (2d Cir. 2019) (quoting Anderson v. Branen,

17 F.3d 552, 557 (2d Cir. 1994)). “An officer may be held liable for preventable harm caused by

the actions of other officers if (1) the officer had a realistic opportunity to intervene and prevent

the harm; (2) a reasonable person in the officer’s position would know that the victim’s

constitutional rights were being violated; and (3) the officer does not take reasonable steps to

intervene.” Jackson v. City of New York, 462 F. Supp. 3d 203, 226 (E.D.N.Y. 2020) (quoting

Jackson v. City of New York, 939 F. Supp. 2d 219, 232 (E.D.N.Y. 2013)) (internal quotation marks

omitted). “Whether the officer had a ‘realistic opportunity to intervene is normally a question for

the jury, unless, ‘considering all the evidence, a reasonable jury could not possibly conclude

otherwise.’” Sloley, 945 F.3d at 47 (2d Cir. 2019) (quoting Terebesi v. Torreso, 764 F.3d 217, 244

(2d Cir. 2014)).

Although the City Defendants argue that Muscato had no realistic opportunity to intervene

because the RPD and Monroe County District Attorney did not use gunpowder residue tests,

Plaintiff has pointed to evidence undermining this assertion. Defendant Ciminelli testified that,

although he believed that the RPD did not normally conduct gunpowder residue tests, he could

have “work[ed] through the investigating component of the [RPD] to determine whether such a

test was possible” and “which crime lab would have the ability to do it.” ECF No. 142-26 at 34-

35. Moreover, Monroe County Crime Lab firearm and toolmark section supervisor Eric

Freemesser testified that, along with examining firearms, the lab would also, among other things

perform “gunshot residue examinations” of clothing. ECF No. 142-17 at 3, 20. Finally, Muscato

acknowledged that he could have passed on Plaintiff’s request to his superiors, although he was

“not sure what the result would have been.” ECF No. 142-9 at 18. In light of this evidence, the

City Defendants have failed to demonstrate that “a reasonable jury could not possibly conclude”

that Muscato had a realistic opportunity to intervene by responding to Plaintiff’s alleged request

for a gun powder residue test. Terebesi, 764 F.3d at 244.

The City Defendants’ motion for summary judgment on Plaintiff’s failure to intervene

claim is therefore denied.

d. Monell Liability and Supervisory Liability against the City of Rochester (Counts

VIII and IX)

The City Defendants assert that they are entitled to summary judgment on Plaintiff’s

Monell and supervisory liability claims against Defendant City of Rochester because Plaintiff’s

collection of “unsubstantiated civilian complaint records of both named and unnamed police

officers” is insufficient to establish deliberate indifference and therefore cannot support a “failure

to train” cause of action. See ECF No. 132-3 at 11-12, 16-18. Plaintiff contends that the evidence

shows a pattern in which the Civilian Review Board (“CRB”) sustained findings of unnecessary

force, but the Chief of Police overturned those findings. ECF No. 142-33 at 21. In Plaintiff’s

view, this pattern, along with additional instances in which the City allegedly failed to respond to

misconduct demonstrates the “requisite deliberate indifference to establish a municipal policy or

custom.” ECF No. 142-33 at 21-22. The Court disagrees and concludes that the City Defendants

are entitled to summary judgment on Plaintiff’s Monell and supervisory liability claims against the

City of Rochester.7

A plaintiff seeking to impose liability on local governments under § 1983 cannot rely on a

theory of vicarious liability and must instead prove that “action pursuant to official municipal

policy” caused his injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-92 (1978). “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.”

7 Plaintiff asserts two claims against Defendant City of Rochester for failure to implement policies, customs, and

practices. See ECF No. 10-1 at 58, 61 (Counts VIII and IX of the amended complaint). These claims are duplicative,

and because the City Defendants are entitled to summary judgment on one, they are also entitled to summary judgment

on the other. See Colon v. City of Rochester, 419 F. Supp. 3d 586, 609 (W.D.N.Y. 2019).

Connick v. Thompson, 563 U.S. 51, 61 (2011). Monell’s policy or custom requirement may also

be satisfied “where a local government is faced with a pattern of misconduct and does nothing,

compelling the conclusion that the local government has acquiesced in or tacitly authorized its

subordinates’ unlawful actions.” Triano v. Town of Harrison, N.Y., 895 F. Supp. 2d 526, 534

(S.D.N.Y. 2012) (quoting Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)). “For example,

municipal inaction such as the persistent failure to discipline subordinates who violate civil rights

could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional

conduct within the meaning of Monell.” Crawley v. City of Syracuse, 496 F. Supp. 3d 718, 729

(N.D.N.Y. 2020) (internal quotation marks omitted).

However, “such a failure to act, train or supervise can constitute municipal policy ‘only

where the need to act is so obvious, and the inadequacy of current practices so likely to result in a

deprivation of federal rights, that the municipality or official can be found deliberately indifferent

to the need.” Triano, 895 F. Supp. 2d at 534 (quoting Reynolds, 506 F.3d at 192). “Deliberate

indifference” is a “stringent standard of fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410

(1997). Such “[d]eliberate indifference may be inferred from the failure to train or supervise based

on proof of repeated complaints of civil rights violations that are followed by no meaningful

attempt on the part of the municipality to investigate or forestall.” Lawrence v. City of Rochester,

No. 09-CV-6078, 2015 WL 510048, at *7 (W.D.N.Y. Feb. 6, 2015) (quoting Vann v. City of New

York, 72 F.3d 1040, 1049 (2d Cir. 1995)); see also Hulett v. City of Syracuse, 253 F. Supp. 3d 462,

499-502 (N.D.N.Y. 2017); Grant v. City of Syracuse, No. 15-CV-445, 2017 WL 5564605, at *15-

16 (N.D.N.Y. Nov. 17, 2017).

Plaintiff contends that he has done just that. In his view, there is a clear pattern: citizens

complain about the unnecessary use of force and the City fails to meaningfully respond to such

complaints. ECF No. 142-33 at 21. The City Defendants argue, on the other hand, that Plaintiff

has failed to demonstrate that the City was “on notice of deficiencies in [its] training, investigative

or disciplinary programs” and that “the failure to address that flaw is what caused Plaintiff’s

purported injury.” ECF No. 132-3 at 11.

In support of their motion, the City Defendants point to—and Plaintiff admits—only one

relevant undisputed fact: that the Immel Street shooting “was investigated by the Rochester Police

Department’s Major Crimes Unit and the Professional Standards Section.” ECF No. 132-2 ¶ 18;

ECF No. 142-28 at 4 ¶ 18. The agreement ends there. Plaintiff goes on to analyze a raft of citizen

complaints dating from 2009 through 2017. He first notes that, from 2011 to 2013, “no

unnecessary force allegations were sustained” out of at least 124 complaints during that period.

ECF No. 142-33 at 21. He then identifies several instances in which the Civilian Review Board

(“CRB”) sustained force allegations, but the Chief of Police reversed the CRB’s finding. See e.g.,

ECF No. 142-28 at 99-100 ¶¶ 629, 633, 634.

Contrary to Plaintiff’s assertion, this evidence does not demonstrate that the City made no

meaningful attempt to investigate complaints of civil rights violations. See Lawrence, 2015 WL

510048, at *7. As Plaintiff acknowledges, at the time of the incident “[w]hen citizens [filed]

complaints against an RPD officer, those complaints are investigated by the Professional Standards

Section,” (“PSS”), an internal body comprising RPD officers who investigate the conduct of other

officers. ECF No. 142-28 at 94 ¶ 600. The PSS would then draft a “PSS Investigative Summary”

describing the investigation and recommending findings. Id. ¶ 601. The PSS would then turn over

to the CRB the PSS Investigative Summary along with “everything the PSS [has] gathered.” Id. ¶

602. A PSS representative would then brief the CRB. Id. After the CRB completed its review,

the Chief of Police would review the investigations and ultimately determined how to classify the

complaint. Id. ¶ 604. Complaints could be classified as “sustained,” meaning that the “conduct

occurred and constituted a violation of rules, policy [and] procedures”; “unprovable,” meaning

that “there was insufficient evidence to prove the allegation one way or the other”; “unfounded,”

meaning that the complained of act did not occur; or “exonerated,” meaning that the conduct did

occur but was “consistent with departmental policies and procedures.” Id. ¶ 605.

Annual PSS reports from 2011 to 2016 reveal that the number of unnecessary force

complaints that the PSS and CRB reviewed or had pending ranged from 16 to 123, a small number

of which were sustained. See ECF No. 142-28 ¶¶ 621-632. In one 2013 case, the CRB sustained

a force allegation, but the Chief of Police determined it to be “unprovable.” Id. ¶ 626. Likewise,

in a 2015 case, the CRB sustained three force allegations, which the Chief determined were

“unprovable.” Id. ¶ 629. However, at least one 2015 force allegation resulted in suspensions. See

ECF No. 142-27 at 18. In one 2016 case, the Chief of Police overturned a CRB finding of

“sustained,” reclassifying the allegation as “exonerated.” Id. ¶ 633. In another 2016 case,

however, the Chief sustained an allegation that the CRB found unprovable. ECF No. 142-27 at

23. According to the PSS reports, only one force allegation was sustained during the 2011 to 2016

period. See id. ¶¶ 622, 624, 625, 628, 630, 632.

As Plaintiff also points out, Defendant Ciminelli acknowledged that Defendant Ferrigno

“had some PSS history,” id. ¶ 607, that is, that he had been the subject of complaints in the past.

According to Ferrigno’s deposition testimony, he was subject to several complaints alleging the

unnecessary or excessive force prior to the Immel Street shooting. See ECF No. 152 ¶¶ 2-4, 6-8.

Ferrigno was never terminated or suspended. ECF No. 152-1 at 9-10. The only reprimand

Defendant Ferrigno recalled was a memorandum of record, although he could not recall its

contents. See id. at 10. PSS also investigated Ferrigno’s involvement in the Immel Street shooting,

and Defendant Ciminelli classified the finding as “exonerated, which reflects that he acted in

accordance with departmental policy, procedures and guidelines.” ECF No. 142-26 at 61-62.

Plaintiff also points to use of force complaints and lawsuits against several other RPD officers not

named in this action. See e.g., ECF No. 152 ¶¶ 17-21, 29-31.

While Plaintiff recognizes that the RPD and the CRB investigated citizen complaints, he

asserts that the small number of sustained findings demonstrates “the City’s continual failure to

respond to such complaints meaningfully.” See ECF No. 142-33 at 21. But, even when viewed in

the light most favorable to Plaintiff, the evidence cannot show that the City “consistently failed to

do anything” in response to citizen complaints of unnecessary or excessive force. Crawley, 496

F. Supp. 3d at 730. To the contrary, RPD had a program in place to review citizen complaints—

the internal PSS investigation and the independent external CRB review. While the Chief of Police

had the ultimate authority to make findings, and, as Plaintiff points out, overturned three findings

sustained by the CRB, without more, these discrepancies cannot establish a Monell claim, see

Crawley, 496 F. Supp. 3d at 731, especially where the evidence also reveals that the Chief of Police

sustained allegations that the CRB had deemed unprovable. Nor can the mere fact that many

complaints were deemed unfounded, unprovable, or exonerated, because “deliberate indifference

on a failure to supervise or a failure to discipline claim requires a consistent failure to meaningfully

investigate complaints or a consistent failure to discipline those involved in actual constitutional

violations.” Id. The evidence Plaintiff has marshaled in opposition to the City Defendants’ motion

establishes neither.

Accordingly, the City Defendants are entitled to summary judgment on Plaintiff’s Monell

claim. Further, to the extent that Plaintiff asserts a supervisory liability claim against the City of

Rochester, it is duplicative of his Monell claim as it is based on an alleged failure to implement

policies, customs, and practices and failure to train, supervise, and discipline RPD officers. See

ECF No. 10 ¶¶ 363-371, 372-411. The City Defendants are therefore also entitled to summary

judgment on Plaintiff’s supervisory liability claim against the City of Rochester. See Colon, 419

F. Supp. 3d at 609.

e. Supervisory Liability Claim against Defendant Ciminelli (Count IX)

The City Defendants contend that Plaintiff has failed to set forth any facts establishing that

Defendant Ciminelli was directly involved in violating Plaintiff’s rights, was made aware of the

alleged violation, created a policy that resulted in the alleged violation, directly supervised any of

the officers or exhibited “gross negligence” in supervising them, or was deliberately indifferent to

the possibility that Plaintiff would be harmed. ECF No. 123-3 at 15. Plaintiff counters, arguing

that the evidence reveals questions of fact “as to Ciminelli’s actual direct participation and his

failure to act on information indicating that unconstitutional acts were occurring.” ECF No. 142-

33 at 23.

“[T]here is no special rule for supervisory liability” in § 1983 actions. Tangreti v.

Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). “Instead, a plaintiff must plead and prove ‘that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). “‘The factors necessary

to establish a [§ 1983] violation will vary with the constitutional provision at issue’ because the

elements of different constitutional violations vary.” Id. (quoting Iqbal, 556 U.S. at 676) (alteration

in original).8 But in all cases, “the violation must be established against the supervisory official

directly.” Id. Accordingly, to survive summary judgment, Plaintiff must show that a genuine

dispute of material fact exists as to Defendant Ciminelli’s direct participation in each constitutional

violation that Plaintiff alleges. The Court considers each of Plaintiff’s remaining claims in turn.9

i. False Arrest and Excessive Force

In bringing a supervisory liability claim against Defendant Ciminelli, Plaintiff alleges that

Ciminelli has been aware of “widespread abuses of power, including but not limited to . . . false

arrest [and] use of excessive and/or deadly force.” Id. ¶ 375. He alleges that Ciminelli was

“deliberately indifferent” to those constitutional violations, has “condoned, encouraged, fostered,

and/or ratified] the unlawful conduct” of RPD officers, and has “acquiesced in or tacitly authorized

[his] subordinates’ unlawful actions.” Id. ¶ 377.

Plaintiff brings his Fourth Amendment false arrest and excessive force claims against

Defendants Ferrigno and Giancursio, not Defendant Ciminelli. See ECF No. 10 at 40-42, 43-44.

Plaintiff does not allege that Ciminelli participated in his arrest at the scene of the Immel Street

Shooting or that he used force against Plaintiff at any time. See ECF No. 10 ¶¶ 275, 291-295. As

Plaintiff notes, Ciminelli did not respond to Immel Street until after he learned, between 9:30 pm

8 Both parties frame their arguments in terms of the framework for supervisory liability set forth in the Second Circuit’s

decision in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). See ECF No. 132-3 at 15; ECF No. 142-33 at 22-23.

Under Colon, a government official could be “personally involved” in a violation of a person’s constitutional rights

not only by directly participating in that violation, but also through, for example, “failure to remedy the wrong after

being informed of the violation by report or appeal” or “gross negligence in supervising the subordinates who

committed the wrongful acts.” 58 F.3d at 873. In Tangreti, however, the Second Circuit repudiated the Colon

approach to supervisory liability in light of the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

A plaintiff now must establish “the violation . . . against the supervisory official directly.” Tangreti, 983 F.3d at 618.

The Court therefore declines to consider the additional grounds for supervisory liability that Plaintiff asserts.

9 To the extent that Plaintiff asserts a “supervisory liability” claim against the City of Rochester, it is duplicative of

his Monell claim and is therefore dismissed. Colon, 419 F. Supp. 3d at 609. To the extent Plaintiff argues that his

supervisory liability claim should survive summary judgment on the basis of Defendant Ciminelli’s failure to

intervene, see ECF No. 142-33 at 24, the Court previously dismissed Plaintiff’s failure to intervene claim against

Ciminelli for failure to state a claim, see Simmons, 2019 WL 12361880, at *8.

and 10:00 pm that night, that Ferrigno was involved in a shooting there. ECF No. 142-26 at 5;

ECF No. 142-28 ¶ 546. While there, he examined the scene before proceeding to the Public Safety

Building, where the investigation continued. ECF No. 142-26 at 6.

Plaintiff has therefore failed to come forward with any evidence demonstrating that

Ciminelli was personally involved in his allegedly false arrest and is therefore subject to liability

under § 1983. There is no evidence that he was either present during the arrest, in communication

with the arresting officers during the arrest, or otherwise directly involved in the arrest. Compare

Savarese v. City of New York, 547 F. Supp. 3d 305, 354 (S.D.N.Y. 2021) (granting summary

judgment where supervising officer wanted plaintiff arrested but did not effectuate or otherwise

cause the arrest), with Snead v. City of New York, 463 F. Supp. 3d 386, 401 (S.D.N.Y. 2020)

(denying summary judgment where there was testimony that supervising officer was present and

involved in the arrest), and Taylor v. City of New York, No. 19-CIV-6754, 2022 WL 744037, at

*11 (S.D.N.Y. March 11, 2022) (denying summary judgment where evidence supported claim that

supervising officer approved arrest at the scene). With respect to Plaintiff’s excessive force claim,

Plaintiff points to no evidence that Ciminelli ever used force against him. Rizk v. City of New

York, 462 F. Supp. 3d 203, 222 (E.D.N.Y. 2020) (dismissing claims at summary judgment where

there was no evidence that police officer used force against either plaintiff).

Because the evidence cannot show that Ciminelli violated Plaintiff’s Fourth Amendment

rights by his own conduct, and “not by reason of [his] supervision of others who committed the

violation,” Tangreti, 983 F.3d at 618, the City Defendants are entitled to summary judgment on

Plaintiff’s supervisory liability claim against Defendant Ciminelli arising out of the alleged false

arrest and excessive force.

ii. Malicious Prosecution and Denial of Right to a Fair Trial

Unlike his false arrest and excessive force claims, Plaintiff brings his malicious prosecution

and fair trial claims against “All Defendants,” including Ciminelli. See ECF No. 10 at 47, 53.

These claims are grounded in the alleged fabrication of ShotSpotter data and falsification of

accounts of the Immel Street Shooting in police reports. See ECF No. 10 ¶¶ 316, 340. As

explained below, Plaintiff has failed to point to evidence demonstrating a genuine dispute of

material fact as to whether Ciminelli fabricated or falsified evidence against him.

Plaintiff argues that the evidence shows questions of fact as to Ciminelli’s “actual direct

participation and his failure to act on information indicating that unconstitutional acts were

occurring,” in that he “responded to the scene, went to the Public Safety Building where the

investigation was ongoing, and spoke with officers regarding information they obtained from

ShotSpotter.” ECF No. 142-33. But this limited involvement cannot reasonably give rise to the

inference that Ciminelli “played an active role in Plaintiff’s prosecution or had a hand in passing

along fabricated information to the District Attorney.” Taylor, 2022 WL 744037, at *16.

Plaintiff points to some evidence indicating at most that Ciminelli may have “failed to

remedy a wrong” of which he was aware, but this falls short of raising a genuine dispute of material

fact as to whether Ciminelli, through his own conduct, violated Plaintiff’s rights. See Tangreti,

983 F.3d at 618. Further, even if, as Plaintiff argues, the evidence demonstrates that Ciminelli

knew that his subordinates were engaged in unconstitutional behavior, that would not be enough

to establish Ciminelli’s liability as a supervisory official. Taylor, 2022 WL 744037, at * 11 (citing

Tangreti, 983 F.3d at 616-17) (“A supervisor’s ‘mere knowledge’ of a subordinate’s

unconstitutional behavior is insufficient ‘because that knowledge does not amount to the

supervisor’s violating the Constitution.’”).

The City Defendants are therefore also entitled to summary judgment on Plaintiff’s

supervisory liability claim against Ciminelli arising out of the City Defendants’ alleged malicious

prosecution and denial of Plaintiff’s right to a fair trial.

f. Conclusion

For the foregoing reasons explained above, the City Defendants’ motion for summary

judgment is GRANTED in part and DENIED in part. The Court declines to grant Defendants

Ferrigno and Giancursio qualified immunity as to Plaintiff’s false arrest claim (Count I) at this

stage of the proceedings and denies summary judgment on Plaintiff’s failure to intervene claim

against Defendant Muscato (Count VII).

The Court grants summary judgment in favor of the City Defendants on Plaintiff’s § 1983

conspiracy claim (Count III), supervisory liability claim against Defendants Ciminelli and City of

Rochester (Count IX), and Monell claim against Defendant City of Rochester (Counts VIII, IX).

Accordingly, Plaintiff’s false arrest (Count I), excessive force (Count II), malicious prosecution

(Count IV and XII), fair trial (Count V), failure to intervene (Count VII), battery (Count X), and

assault (Count XI) claims against the City Defendants may proceed.

II. The ShotSpotter Defendants’ Motion

The ShotSpotter Defendants seek summary judgment on Plaintiff’s § 1983 conspiracy

claim (Count III), state and federal malicious prosecution claims (Counts IV and VII), and fair trial

claim (Count V). They seek dismissal of Plaintiff’s malicious abuse of process claim (Count VI).

For the reasons set forth below, the ShotSpotter Defendants’ motion is granted in its entirety.

a. Malicious Abuse of Process (Count VI)

The ShotSpotter Defendants assert that this claim must be dismissed because Plaintiff has

not alleged or produced evidence of a “collateral objective.” ECF No. 136-1 at 24. According to

the Shotspotter Defendants, even if they did fabricate evidence, without allegation or evidence of

its use to achieve something besides Plaintiff’s conviction, Plaintiff has not established an element

of malicious abuse of process. For his part, Plaintiff does not oppose dismissal of the malicious

abuse of process claim against the ShotSpotter Defendants. ECF No. 143 ¶ 3; ECF No. 143-21 at

16.

In New York, “a malicious abuse-of-process claim lies against a defendant who (1)

employs regularly issued legal process to compel performance or forbearance of some act (2) with

intent to do harm without excuse of justification, and (3) in order to obtain a collateral objective

that is outside the legitimate ends of the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d

Cir. 2003) (quoting Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994)). A “collateral objective is not

the same as a malicious motive and must exist beyond or in addition to [the] criminal prosecution,

but it is usually characterized by personal animus. Such an objective may include infliction of

economic harm, extortion, blackmail [or] retribution.” Folk v. City of New York, 243 F. Supp. 3d

363, 375 (E.D.N.Y. 2017) (internal citations omitted) (alterations in original).

As explained in a previous decision dismissing this claim against the City Defendants,

Plaintiff “has not plausibly alleged the ‘collateral purpose’ element of such a claim.” Simmons,

2019 WL 12361880, at *6. This applies equally to Plaintiff’s claim against the ShotSpotter

Defendants. Plaintiff has alleged that all Defendants “caused him to be arrested and prosecuted in

order to obtain a collateral objective outside the legitimate ends of the legal process; namely, to

cover up and avoid discipline for their abuse of authority and acts of brutality, and to retaliate

against him for the injuries they caused to themselves.” Id.; see also ECF No. 10-1 ¶ 348. Such

allegations, however, support at most an “improper motive—not an improper purpose.” Simmons,

2019 WL 12361880, at *6. Because Plaintiff has failed to state a plausible claim for malicious

abuse of process as to the ShotSpotter Defendants, and because he does not oppose dismissal of

this claim, the Court dismisses Plaintiff’s malicious abuse of process claim as to the ShotSpotter

Defendants.

b. § 1983 Conspiracy (Count III)

The ShotSpotter Defendants contend that summary judgment is warranted because Plaintiff

can establish neither the fabrication of evidence nor an agreement between the ShotSpotter

Defendants and the City Defendants. ECF No. 136-1 at 33. Plaintiff, along with asserting that

there is evidence of fabrication, also argues that the communications between Bresler and Wiater

provide evidence of an agreement sufficient to survive summary judgment. ECF No. 143-21 at

16. The Court agrees with the ShotSpotter Defendants and concludes that the ShotSpotter

Defendants are entitled to summary judgment on Plaintiff’s § 1983 conspiracy claim.

To demonstrate a § 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, 200 F.3d at 72. The plaintiff must therefore show that the “defendants acted in a willful

manner, culminating in an agreement, understanding or meeting of the minds, that violated [his]

rights, privileges or immunities secured by the Constitution or federal courts.” Jean-Laurent, 540

F. Supp. 2d at 507-08 (internal quotation marks and citations omitted). To survive summary

judgment, the nonmoving party’s evidence of a § 1983 conspiracy “must, at least, reasonably lead

to the inference that [the defendants] positively or tacitly came to a mutual understanding to try to

accomplish an unlawful plan.” Ivery, 284 F. Supp. 3d at 439 (quoting Gustafson, 106 F. Supp. 3d

at 352).

Even drawing all reasonable inferences in Plaintiff’s favor, his evidence is not enough to

demonstrate a genuine dispute of material fact, as it does “no more than demonstrate that

[ShotSpotter] cooperated with [RPD’s] investigation into” the Immel Street shooting. Scotto, 143

F.3d at 114. Although Plaintiff asserts the conversation between ShotSpotter and RPD is “not as

innocent as it sounds,” ECF No. 143-21 at 16, nothing in the communications between the City

Defendants and the ShotSpotter Defendants, “other than [Plaintiff’s] unsubstantiated speculation,

. . . suggest[s] that anything untoward took place,” id. at 115; cf. Dory, 999 F.2d at 683. Contrary

to Plaintiff’s insinuations, nothing in these communications could “reasonably lead to the inference

that [the City Defendants and ShotSpotter] positively or tacitly came to a mutual understanding to

try to accomplish an unlawful plan.” Ivery, 284 F. Supp. 3d at 439. Accordingly, the ShotSpotter

Defendants are entitled summary judgment on Plaintiff’s § 1983 conspiracy claim.

c. Malicious Prosecution (Counts IV and XII)

The ShotSpotter Defendants assert that there is no evidence that they “knowingly and

intentionally provided false or fabricated information for the purpose of inducing [the District

Attorney] to prosecute Plaintiff.” ECF No. 136-1 at 27-28. Plaintiff, on the other hand, asserts

that the genuine dispute as to the number of shots fired during the Immel Street shooting precludes

summary judgment. See ECF No. 143-21 at 6, 10. The Court agrees with the ShotSpotter

Defendants and grants summary judgment on Plaintiff’s federal and state malicious prosecution

claims.

To prevail on a § 1983 claim for malicious prosecution, “a plaintiff must show a violation

of his rights under the Fourth Amendment and must establish the elements of a malicious

prosecution claim under state law.” Frost v. New York City Police Dep’t, 980 F.3d 231, 242 (2d

Cir. 2020) (quoting Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010)). “To

establish a malicious prosecution claim under New York law, a plaintiff must prove (1) the

initiation or continuation of a criminal proceeding against [him]; (2) termination of the proceeding

in [his] favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as

a motivation for defendant’s actions.” Id.

To initiate or continue a criminal proceeding, “a defendant must do more than report the

crime or give testimony. He must play an active role in the prosecution, such as giving advice and

encouragement or importuning the authorities to act.” Manganiello, 612 F.3d at 163. In addition

to, for example, signing a felony complaint, a defendant may initiate a prosecution “by creating

material, false information and forwarding that information to a prosecutor or by withholding

material information from a prosecutor.” Costello v. Milano, 20 F. Supp. 3d 406, 415 (S.D.N.Y.

2014)); see also Manganiello, 612 F.3d at 163 (“A jury may permissibly infer that a defendant

initiated a prosecution where he “fil[ed] the charges” or “prepar[ed an] alleged false confession

and forwarded it to prosecutors.”); Chimurenga v. City of New York, 45 F. Supp. 2d 337, 343

(S.D.N.Y. 1999) (“Where a party is responsible for providing false information or manufactured

evidence that influences a decision whether to prosecute, he may be held liable for malicious

prosecution.”).

Here, the summary judgment record is devoid of evidence that would permit a reasonable

jury to return a verdict for Plaintiff on the issue of fabrication. See Greene v. City of New York,

No. 08-CV-243, 2017 WL 1030707, at *25 (E.D.N.Y. March 15, 2017) (claim of fabrication

grounded in speculation cannot survive summary judgment), aff’d 742 F. App’x 532, 534 (2d Cir.

2018) (summary order). Instead, it shows that, following the Immel Street shooting, Wiater

contacted ShotSpotter and asked Bresler to “pull the audio and listen to a longer portion for

additional shots.” ECF No. 143-2 at 4; see also ECF No. 143-16 at 7 ¶ 19. Bresler agreed to do

so, and Wiater then asked Bresler if he could report back within the next hour, to which Bresler

responded that he would “do [his] best” to see what he could find that night. ECF No. 143-2 at 4;

ECF No. 143-5 at 12. Bresler also listened to the audio, reclassified the incident from helicopter

to gunshots, and updated the number of shots detected from three to four. ECF No. 143-1 at 2-3;

see also ECF No. 143-16 at 7 ¶ 17. During their conversation, Wiater and Bresler were discussing

multiple incidents. Bresler stated he would look into one of the other incidents and asked “How

many shots at this location?” before stating that he would look for an incident at 9 Immel Street at

approximately 9:09 pm. ECF No. 136-13 at 2. Wiater did not tell Bresler, “and [he] did not

otherwise know, how many additional or total shots were involved in the incident.” ECF No. 136-

13 ¶ 6; see also ECF No. 143-16 at 7 ¶ 20 (“Wiater did not say how many shots he thought had

been fired and did not answer when ShotSpotter asked him this.”). Nor did he know anything

about who allegedly fired or in what order any of the alleged shooters had done so. Id.

Bresler later informed Wiater by email that the audio search revealed an additional gunshot,

which was fired about two seconds before the subsequent four gunshots. ECF No. 136-13 ¶ 10.

He indicated that he was waiting on Clark’s approval to send the full audio recording in accordance

with ShotSpotter policies. Id. ¶¶ 10-11. Clark later approved the request at 6:52 AM on April 2,

2016 and Bresler sent the full audio clip to Wiater about twenty minutes later. Id. ¶¶ 11-12.

Bresler had no further communication with Wiater, Clark, or anyone else regarding the audio

recording associated with the incident. Id. ¶ 13.

Plaintiff suggests that Wiater’s request for a further audio search is “not as innocent as it

sounds” and “could well be interpreted” as a request to “make such shots show up in the record.”

ECF No. 143-21 at 16. But such conjecture—unsupported by specific facts in the record—is not

enough to create a genuine dispute of material fact as to fabrication. See Greene, 2017 WL

1030707, at *25 (no material issue of fact for trial where plaintiff relied on “sheer speculation” to

support claim); see also Reyes v. Paul, No. 21-CV-569, 2023 WL 2306134, at *7 (N.D.N.Y. March

1, 2023) (no question of fact where plaintiff merely relied on conjecture and speculation).

As for the evidence that Plaintiff asserts creates a genuine issue of fact, it largely supports

the ShotSpotter Defendants’ story. Plaintiff asserts that Wiater told Bresler that a police officer

was involved in the shooting and asked him to search for additional gunshots. ECF No. 143-16 at

7 ¶18. Wiater requested a response as soon as possible. Id. ¶ 19. And, although Bresler appears

to have asked how many shots were fired for at least one of the incidents the two discussed, Wiater

never provided that information. Id. ¶ 20. Ultimately, Bresler found an additional gunshot in the

audio and requested approval from Clark to send the audio to Wiater. Id. ¶¶ 21-23. No jury could

reasonably conclude from this evidence that Bresler or any other ShotSpotter employee fabricated

the evidence of the first gunshot.

Moreover, rather than controverting the facts as Bresler, Wiater, and Clark tell them,

Plaintiff agrees, agrees with caveats, or attempts to downplay the statements as “self-serving” or

“conclusory.” See ECF No. 143-16 ¶¶ 15-29, 32-41, 44-54, 58-59. “There is no law, however,

preventing a court from relying on ‘self-serving’ affidavits—indeed, parties in a litigation routinely

submit affidavits on their own behalf whose only purpose is to substantiate the claims alleged.”

Kuhbier v. McCartney, Verrino & Rosenberry Vested Producer Plan, 239 F. Supp. 3d 710, 737

(S.D.N.Y. 2017). Bresler, Clark, and Greene have consistently denied altering the audio or

otherwise fabricating the evidence of the fifth shot. See e.g., ECF No. 136-10 ¶ 21; ECF No. 136-

13 ¶ 14; ECF No. 136-16 ¶ 12. Their statements to that effect cannot be disregarded “merely

because they are self-serving,” Dye v. Kopiec, No. 16-CIV-2952, 2016 WL 7351810, at *3

(S.D.N.Y. Dec. 16, 2016), especially where, as here, they are unrefuted by any evidence that

Plaintiff has submitted, see Shami v. Nat’l Enter. Sys., 914 F. Supp. 2d 353, 358 (E.D.N.Y. 2012).

Plaintiff also raises certain discrepancies in the testimony in this case and his criminal trial,

including that Greene testified at the criminal trial that the fifth shot was found two days after the

incident and that the shot count was not raised to five until after his analysis. ECF No. 143-16 at

8 ¶ 26. He also points to two non-law-enforcement witnesses who heard only four shots at the

time of the Immel Street shooting. Id. at 5 ¶ 1. He also notes that there is divergent testimony

about the condition of the weapon recovered from the scene of the shooting and whether a casing

was in the chamber, stuck in the ejection port, or missing altogether. Id. ¶ 5.

None of these discrepancies raises a genuine dispute of material fact as to whether

ShotSpotter falsified information or fabricated evidence. To start, Greene’s testimony at the

criminal trial that the shot count was not raised to five until after his analysis is not inconsistent

with Bresler’s declaration and deposition testimony. Contrary to Plaintiff’s assertion, Greene did

not testify that the fifth shot was “found by a search two days after the incident.” ECF No. 143-

16 at 8 ¶ 26. Instead, he testified that the description of the incident was updated to five shots only

after his analysis. ECF No. 143-4 at 8 (“It was changed to five only after my analysis”). This is

consistent with Bresler’s statements that he updated the incident classification to reflect four

gunshots, but heard the first gunshot in the longer audio clip and updated the incident notes

accordingly. ECF No. 136-13 ¶¶ 7-8. Bresler sought Clark’s approval to release that audio to

RPD. Id. ¶ 11. Greene, however, prepared the Detailed Forensic Report describing the incident

as capturing five gunshot sounds. ECF No. 136-17 at 2.

The inconsistencies that do exist are not enough to allow Plaintiff’s claim to survive

summary judgment. See Greene, 2017 WL 1030707 at *25. Greene testified during Plaintiff’s

criminal trial that ShotSpotter found the fifth shot after RPD asked him to search for additional

shots. ECF No. 143-4 at 5. Bresler, on the other hand, has stated that he heard the first gunshot

when he listened to the extended audio clip. ECF No. 136-13 ¶¶ 7-8. This discrepancy as to who

found the first gunshot is not enough to create a genuine dispute as to whether the ShotSpotter

Defendants fabricated the evidence of that gunshot. See e.g., Bennett v. Vidal, 267 F. Supp. 3d

487, 498 (S.D.N.Y. 2017) (“But a mere difference in testimony between the defendant, the

plaintiff, and the plaintiff’s mother of what occurred on the day of the arrest is not sufficient

evidence to create a genuine dispute of material fact as to whether [the officer] intentionally

falsified information or fabricated evidence.”); Waddlington v. City of N.Y., 971 F. Supp. 2d 286,

297 (E.D.N.Y. 2013) (“Plaintiff’s mere recitation of inconsistencies in certain officers’

testimonies, without more, does not establish liability under section 1983 for providing false

information to prosecutors.”)

Plaintiff also makes much of the fact that the ShotSpotter Defendants’ expert was not able

to examine the spool file, arguing that his testimony is therefore insufficient to support summary

judgment. See ECF No. 143-21 at 5-7. However, he has not pointed to any facts supported by

admissible evidence from which a reasonable juror could infer that ShotSpotter altered that spool

file in a way that the expert could not identify. While he criticizes ShotSpotter for insisting that

its procedures guard against fabrication, he offers no factual support for his assertion that someone

could have altered the audio data and avoided detection. Plaintiff notes that the “MD5” tags, which

are used to detect corruption, are generated only when an audio file is downloaded, so the original

files on the spool do not have such tags. ECF No. 143-16 at 8 ¶¶ 27-28. This may show that

alteration is possible, but it does little more. Without evidence from which a reasonable jury could

infer that ShotSpotter did in fact alter the audio at this stage, Plaintiff’s claim cannot survive

summary judgment. See Reyes, 2023 WL 2306134, at *6-7.

Finally, Plaintiff’s assertion that the dispute as to whether there were four or five gunshots

on the night of the Immel Street shooting precludes summary judgment is unpersuasive. Plaintiff

presents the testimony of two non-law enforcement witnesses who are adamant that they heard

only four shots. See ECF No. 143-7 at 3-4; 143-8 at 2; 143-16 at 5 ¶ 1. Plaintiff then asserts that

because this testimony “must be taken as accurate,” it precludes summary judgment on the issue

of fabrication. ECF No. 143-21 at 6. Contrary to Plaintiff’s assertion, the dispute as to whether

four or five shots were fired is not enough to create a genuine dispute of material fact as to whether

the ShotSpotter Defendants fabricated evidence of the first shot. See Bennett, 267 F. Supp. 3d at

498. While this may raise an issue as to whether ShotSpotter correctly identified the sound as a

gunshot, Plaintiff points to no evidence that this discrepancy reflects a “deliberate falsification of

evidence” on the part of the ShotSpotter Defendants. Greene, 2017 WL 1030707, at *25; see also

Duna v. City of New York, No. 17-CIV-5371, 2019 WL 4735354, at *6 (S.D.N.Y. Sept. 27, 2019)

(denying summary judgment where plaintiff did not adduce any evidence of intentional

fabrication, rather than reasonable error).

Because Plaintiff has failed to point to evidence from which a reasonable jury could

conclude that the ShotSpotter Defendants forwarded false or fabricated evidence to the

prosecution, his malicious prosecution claim against the ShotSpotter Defendants must fail. The

ShotSpotter Defendants are therefore entitled to summary judgment on this claim.

d. Denial of Right to a Fair Trial (Count V)

As with Plaintiff’s malicious prosecution claims, the ShotSpotter Defendants argue that the

undisputed facts fail to establish falsification. Accordingly, they argue that Plaintiff’s fair trial

claim likewise cannot survive summary judgment. Plaintiff argues that the dispute as to whether

there were four or five shots fired on April 1, 2016 precludes summary judgment. However, the

dispute over the number of shots fired is insufficient to raise a genuine issue of fact as to whether

the ShotSpotter Defendants fabricated the evidence of the first gunshot. The Court therefore

concludes that the ShotSpotter Defendants are entitled to summary judgment on Plaintiff’s fair

trial claim.

A defendant’s right to due process under the Fourteenth Amendment encompasses “the

right to have one’s case tried based on an accurate evidentiary record that has not been manipulated

by the prosecution.” Dufort, 874 F.3d at 354; see also Ramchair v. Conway, 601 F.3d 66, 73 (2d

Cir. 2010) (“The right to a fair trial[] [is] guaranteed to state criminal defendants by the Due

Process Clause of the Fourteenth Amendment.” (quoting Cone v. Bell, 556 U.S. 449, 451 (2009)

(alterations in original)). Section 1983 therefore permits suits for violations of the “right not to be

deprived of liberty as a result of the fabrication of evidence by a government officer acting in an

investigatory capacity.” Willis v. Rochester Police Dep’t, No. 15-CV-6284, 2018 WL 4637378,

at *8 (W.D.N.Y. Sept. 27, 2018) (citing Dufort, 874 F.3d at 354). “A person is deprived of [his]

constitutional right to a fair trial when ‘an (1) investigating official (2) fabricates evidence (3) that

is likely to influence a jury’s decision, (4) forwards that information to prosecutors, and (5) the

plaintiff suffers a deprivation of liberty as a result.” Folk, 243 F. Supp. 3d at 374 (quoting

Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012) (summary order)). For fair

trial claims, liability under § 1983 attaches “for knowingly falsifying evidence even where there

simultaneously exists a lawful basis for a deprivation of liberty.” Victory v. Pataki, 814 F.3d 47,

64 (2d Cir. 2016). Therefore, unlike a malicious prosecution claim, probable cause is not a defense

to a fair trial claim. Jovanovic, 486 F. App’x at 152.

As explained above, Plaintiff has failed to identify any evidence from which a reasonable

jury could conclude that the ShotSpotter Defendants fabricated evidence in his criminal case. He

has not pointed to any evidence suggesting that ShotSpotter deliberately altered the audio clip to

include the first gunshot or deliberately misidentified that sound as a gunshot, and thereby

fabricated evidence that Plaintiff fired at Ferrigno first. Cf., e.g., Robinson v. City of New York,

No. 15-CV-5850, 2017 WL 241481, at *2 (S.D.N.Y. June 2, 2017) (denying summary judgment

where witness signed two declarations recanting statement that he had bought drugs from the

plaintiff and testified at his deposition that a police officer promised to release him from custody

if he stated that he had purchased drugs from plaintiff); Harris v. City of New York, 222 F. Supp.

3d 341, 351-52 (S.D.N.Y. 2016) (denying summary judgment where police officer told a

prosecutor that the plaintiff “possessed” a weapon, even though the plaintiff did not have it on his

person, and was not wearing and denied owning the jacket in which the weapon was found). And,

while he has pointed to inconsistencies in witness testimony that suggest the first sound was not

in fact a gunshot, evidence of inconsistency is not, without more, evidence of fabrication. See

Bennett, 267 F. Supp. 3d at 498.

In this case, all that Plaintiff has adduced, construing the evidence in his favor, is that

ShotSpotter was mistaken in in identifying the first sound as a gunshot. See id. There is no

evidence that ShotSpotter deliberately misclassified that sound, and thereby fabricated false

evidence of gunfire for the prosecution. /d. Accordingly, the ShotSpotter Defendants are entitled

to summary judgment on Plaintiff’s fair trial claim.

CONCLUSION

For the foregoing reasons, the City Defendants’ Motion for Partial Summary Judgment,

ECF No. 132, is GRANTED IN PART and DENIED IN PART. Plaintiffs false arrest claim

(Count I), excessive force claim (Count II), malicious prosecution claims (Counts IV and XII), fair

trial claim (Count V), failure to intervene claim (Count VII), battery claim (Count X), and assault

claim (Count XI) may proceed.

The ShotSpotter Defendants’ Motion for Summary Judgment, ECF No. 136, is GRANTED

in its entirety. The Clerk of Court is directed to terminate ShotSpotter, Inc., SST, Inc., and Paul

C. Greene as defendants.

The Clerk of Court is further directed to terminate John Does 1-20 and John Does 21-30

as defendants.

IT IS SO ORDERED.

Dated: September 13, 2023

Rochester, New York f! ]

RANK P. mR

United States District Judge

Western District of New York

4]