Walker, Jr. v. The City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DARRYL BOYD,

Plaintiff, DECISION AND ORDER

v.

22-cv-00519

THE CITY OF BUFFALO, THE COUNTY

OF ERIE, MICHAEL G. GUADAGNO,

JOHN MONTONDO, LINDA J. FIAL AS

EXECUTOR FOR THE ESTATE OF ROBERT

GRABOWSKI, MARTIN BULLOCK AS

EXECUTOR FOR THE ESTATE OF JAMES E.

HUNTER, JENNIFER FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF

ROBERT F. ARNET, JENNIFER FLANNERY

AS ADMINISTRATOR FOR THE ESTATE OF

FRANK C. DEUBELL, JENNIFER FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF LEO J.

DONOVAN, JENNIFER FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF

FRANCIS M. MANISTA, AND DAWN

M. DIRIENZO AS EXECUTOR FOR THE

ESTATE OF PAUL R. DELANO,

Defendants.

JOHN WALKER, JR.,

Plaintiff, DECISION AND ORDER

Vv.

22.-cv-00520

THE CITY OF BUFFALO, THE COUNTY

OF ERIE, MICHAEL G. GUADAGNO,

JOHN MONTONDO, LINDA J. FIAL AS

EXECUTOR FOR THE ESTATE OF ROBERT

GRABOWSKI, MARTIN BULLOCK AS

EXECUTOR FOR THE ESTATE OF JAMES E.

HUNTER, JENNIFER FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF

ROBERT F. ARNET, JENNIFER FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF FRANK

C. DEUBELL, JENNIFER G. FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF LEO J.

DONOVAN, JENNIFER FLANNERY AS

ADMINISTRATOR FOR THE ESTATE OF

FRANCIS M. MANISTA, AND DAWN

M. DIRIENZO AS EXECUTOR FOR THE

ESTATE OF PAUL R. DELANO,

Defendants.

INTRODUCTION

Plaintiffs Darryl Boyd and John Walker, Jr. each spent over twenty years in

prison for the 1976 murder of William Crawford. In August 2021, the New York

Supreme Court in Erie County vacated the convictions of both men. Plaintiffs then

sued the City of Buffalo, the individual Buffalo Police Department (“BPD”) detectives

involved in the investigation of Crawford’s murder (collectively, the “City

Defendants”), and the County of Erie (“County”), alleging multiple violations of their

civil rights under federal law and multiple violations of New York state law. Plaintiffs

and the City Defendants reached a settlement that involved dismissal with prejudice

of all claims against the City Defendants. Therefore, the only remaining claims in

Plaintiffs’ Amended Complaints are against the County.

The County moved for summary judgment on Plaintiffs’ claims against it in

June 2024. Boyd ECF Nos. 166-71; Walker ECF Nos. 164—66. In a text order dated

December 18, 2024, the Court denied the County’s motion with respect to Count VIT

of Plaintiffs respective Amended Complaints, and granted it with respect to Count

X. Boyd ECF No. 206; Walker ECF No. 200. This Decision and Order memorializes

the Court’s reasons for the December 13, 2024 order.

FACTUAL BACKGROUND

The following facts are taken from the Statement of Material Facts Submitted

in Support of Defendant The County of Erie’s Motion for Summary Judgment (Boyd,

ECF No. 167-1); Plaintiffs’ Response to Defendants’ Rule 56(a) Statements and

Counterstatement of Additional Material Facts (Boyd, ECF No. 176-128); and

exhibits submitted by the parties, including the BPD’s homicide file (Boyd, ECF Nos.

165-4 and 165-5).1 Unless otherwise noted, these facts are undisputed.

I. The Investigation

William Crawford was robbed and murdered in the driveway of his house at

2041 Fillmore Avenue in Buffalo, New York, during the evening of January 2, 1976.

ECF No. 176-128 { 1.2 The detectives conducting the initial investigation on the night

of the murder reported that Crawford’s wife was the first to spot his body and call

911. ECF No. 165-4 at 3. The detectives inspected the driveway, the area of the house

and the adjoining homes, and the backyard, and reported finding a large pool of blood

about eight feet to the rear of the side door, as well as three spots of blood on the

1 The motion papers submitted by the parties in support of their positions are nearly identical in both

cases, though the docket entries are numbered slightly differently. For the sake of ease, unless

otherwise noted, the ECF entries referenced by the Court are from the Boyd docket though they also

appear on the Walker docket with slightly different numbering.

City Defendants submitted their own statement of facts in this matter before Plaintiffs sought

dismissal of their claims against them. Plaintiffs filed a single document (ECF No. 176-128) containing

their responses to the City Defendants’ and the County’s respective statements of material facts, each

of which is numbered independently of the other (e.g., J 1, { 2, J 3, et seq. for each). The paragraphs

referenced in this Decision and Order involve Plaintiffs’ responses to the County’s statements.

house three to four feet up from the sidewalk. Jd. at 3—5. Further, the detectives

reported that “there were no foot tracks noted, through the[ |]back yards, and it

appear|[ed] that the assailants came out the drive way the same way they came in.”

Id. at 5.

Shortly after Crawford’s body was discovered, detectives also spoke with the

owner, the bartender, and several patrons of the Golden Nugget, the tavern across

the street from Crawford’s house. Id. at 4-5. The initial investigation report stated

that the bartender, Debbie Jeffrey, said that Crawford had been at the bar on the

evening of his murder, carrying a lot of cash. Jd. at 5. She also stated that Crawford

left the bar at about 11:30 PM with a man named Larry Watson, who lived at 2049

Fillmore Avenue. Jd. The investigating detectives attempted to speak with Watson

that night, but his wife said she was unable to wake him because he had had too

much to drink. Jd.

The following day, investigators returned to interview Watson, who reported

being in the Golden Nugget from 4 PM until the time he left with Crawford on the

night of the murder. Jd. at 10. Watson said he walked out of the bar at the same time

as Crawford, but last saw Crawford in front of the tavern getting ready to cross the

street. Id. Watson said that he didn’t see whether Crawford actually made it across

the street because Watson noticed the storm door was open at his own house and

hurried away to make sure no one had broken-in. Jd. Watson told the detectives that

after he had ensured his house was secure, he used the restroom, went back to the

bar to get his wife, and came home and went to bed. Id.

A few days later, detectives noted that the bartender, Jeffrey, indicated in a

follow-up interview that she suspected Watson of harming Crawford.’ Jd. at 11.

Nevertheless, the investigation took a different turn on January 7, when the BPD

received an anonymous tip that the murder was committed by Darryn Gibson. ECF

No. 176-128 4 20.

After BPD detectives located Gibson, he denied involvement in the murder and

told police that he was at the Glenny Drive Apartments on the evening of January 2,

with Plaintiffs Boyd and Walker, and two other friends named Tyrone Woodruff and

Floyd Martin (collectively, the “Group”). Jd. Consequently, BPD detectives sought to

find and interview the other members of the Group to corroborate Gibson’s story. Id.

22.

In searching for Boyd on January 8, detectives went to the apartment of

Thelma Green, who introduced the detectives to her foster son, Andre Hough. Id.

{| 23. Hough told detectives that he was with the Group at the Glenny Drive

Apartments on the evening of January 2, and gave a sworn statement that he

overheard Walker or Gibson refusing to let Hough go out with them that evening

because, “he might tell someone or say something.” Id. § 25.

BPD detectives ultimately found Boyd on January 8 and transported him to

BPD headquarters to give a statement. Id. {| 27. In his sworn statement, Boyd denied

3 By contrast, Jeffrey's testimony at Boyd's trial suggested that Crawford had not shown the large

quantities of cash in his possession to anyone other than her, and although she did testify that she

asked Watson to walk Crawford home, there is no suggestion in her testimony that she believed

Watson to have committed the crime. ECF No. 168-6 at 281—96. In her testimony in Walker’s trial,

Jeffrey suggested that Watson offered to walk Crawford home, but again there is no suggestion that

she believed Watson to have committed the crime. Walker ECF No. 164-7 at 102~—14.

involvement in the murder, and — like Gibson ~— said he spent the evening playing

cards with the Group. Id.4

On January 11, BPD detectives found and questioned Walker, who denied

involvement in the murder. Id. § 28. At some point during the interrogation, Walker

told police that he left the Glenny Drive Apartments in a cab with Woodruff around

midnight. Jd. {| 51. This was consistent with what Gibson and Martin had at various

times told the BPD. Id. {4 49-50.

BPD detectives also found and questioned Woodruff on January 11. Id. § 32.

He, too, denied involvement in the murder and provided an alibi similar to Gibson’s,

Walker’s, and Boyd’s. Id. On January 12, however, Woodruff gave a second sworn

statement changing his story. In his second statement, Woodruff told BPD detectives

that at some point in the evening on January 2, the Group left the Glenny Drive

Apartments and walked down Fillmore Avenue looking for money. ECF No. 165-5 at

15. He further stated that he had observed Gibson find a pipe, approach a man —

Crawford — in his driveway, and strike the man in his face and head with the pipe.

Id. Woodruff stated that he served as a look-out while Gibson and Boyd dragged the

man into the driveway, and Boyd took his wallet. Id.; ECF No. 176-128 § 33. He said

that the Group then ran back to the Glenny Drive Apartments before he and Walker

took a cab to their respective homes. ECF No. 165-5 at 15~-16.5 At some point,

‘Plaintiffs do not dispute that Boyd gave police a sworn statement, but point out that at his deposition,

Boyd testified that the typed statement did not accurately reflect what he told the detectives. ECF No.

176-128 ¥ 78.

5 Plaintiffs assert that Woodruff sworn statement implicating the Group in Crawford’s murder was

coerced by BPD detectives. ECF No. 176-128 4 33(c)-(d). In 1985, Woodruff gave a sworn statement

recanting his testimony. ECF No. 176-19 at 6. Woodruff indicated at that time that he was not involved

Woodruff agreed to testify against the other members of the Group in exchange for

prosecutorial immunity. ECF No. 176-128 § 36.

In addition to Woodruffs second sworn statement, Hough also gave a more

incriminating sworn statement on January 12. Jd. § 35. Hough told the BPD that,

besides the exchange in the hallway in which either Walker or Gibson expressed

concern that Hough might “tell someone,” he saw Boyd the following day with “a lot

of money.” Id.; see also ECF No. 165-5 at 6. Hough said that after he asked Boyd

where the money came from, Boyd ultimately told him that the Group “had killed

that man,” and that Boyd had gone through his pockets and took his money. ECF No.

165-5 at 6.6

Boyd, Walker, Gibson, and Martin were arrested on January 12, 1976, and

charged with second degree murder and criminal possession of a weapon. Id. § 37.

They were arraigned on January 18, and a preliminary hearing was held on January

16. Id. |] 88-39. Woodruff testified at the preliminary hearing and confirmed the two

statements that he had given to BPD. Id. | 40. Specifically, Woodruff stated that the

Group went out looking for money, saw a man crossing the street from the Golden

Nugget, ran up and surrounded him, and then Gibson beat him with a pipe and Boyd

in the murder and did not witness any others of the Group commit the murder, and that he falsified

his testimony because he was scared of the armed police officers conducting his interrogation and the

possibility of going to jail for a long time. ECF No. 176-19 at 6-12.

§ Plaintiffs also contend that Hough’s statements to BPD detectives were coerced. ECF No. 176-128

{| 25(b). They argue that BPD detectives had a practice of typing witness statements after the

interrogation concluded, thus including only a reconstructed portion of the interview. Id. at J 35(d).

Hough testified by affidavit in 1982 that his testimony against Darryl Boyd was “false and a lie.” ECF

No. 176-18. He recanted his testimony, and said that he lied because he was scared and had been

threatened with being charged with the crime himself if he didn’t implicate Boyd. Id.

checked his pockets. ECF No. 168-8 at 8. On February 11, Woodruff testified before

the grand jury, and again implicated the other four members of the Group in

Crawford’s murder. ECF No. 176-128 § 45.

Il. The Trials

The first member of the group to stand trial was Gibson, who was tried and

convicted in January 1977. Id. §| 58. The prosecutor in that case was Assistant

District Attorney (“ADA”) Timothy Drury, who was also the prosecutor for Boyd. Id.

58, 61. Woodruff and Hough both testified against Gibson. Id.

Boyd’s trial came second, and he was convicted in April 1977 after the jury

heard testimony from — among others — Larry Watson, Emergency Medical

Technician (“EMT”) David Donnelly, Detective Gerald O. Dove, Woodruff, and Hough.

Id. 61. In addition to testimony from both Woodruff and Hough that was more or

less consistent with their respective second sworn statements to police, Larry Watson

testified that he lived “two doors away” from Crawford and, consistent with his prior

statement to police, that he and his wife had drinks with Crawford at the Golden

Nugget on the evening he was murdered, did not see Crawford with any large sums

of money, and last saw Crawford outside of the Golden Nugget. ECF No. 168-6 at 63—

84. Further, EMT Donnelly testified that he responded to the initial 911 call, found

Crawford laying in his driveway with “a very deep gash or tear in his head, [and an]

enormous loss of blood,” and was surprised that he even found a pulse. Jd. at 87. He

noted there was a pool of blood in two different places, about two feet apart, “like

maybe he had dragged himself or something like that.” Id. at 91. Lastly, Detective

Dove testified that on the night of the murder, he made a search of the backyard and

adjoining yard, and did not find a weapon or observe any footprints. [d. at 110-11.

Walker was tried third and was convicted in June 1977. ECF No. 176-128 □ 70.

After ADA Drury handled most of the pretrial discovery in the case, ADA David

Henry took over as primary prosecutor and was supported by ADA James Verrastro.

Id. { 72. The jury heard much the same testimony as in the Boyd case from — among

others — Woodruff, Hough, Watson, Donnelly, and Dove. Walker ECF Nos. 164-7, 165-

23. In addition, the jury heard testimony from Joseph Tatar, a fellow inmate at the

Erie County Holding Center while Gibson, Boyd, Walker, and Martin were awaiting

trial. ECF No. 176-128 § 76. Tatar testified that while playing cards with Walker and

Gibson, Walker said to Gibson, “[W]hy you hit the man so hard in the head, you know,

we've been in here all summer... .” Id. J 77.

The last of the Group, Floyd Martin, was tried in July 1977, with ADA Henry

as one of the prosecutors and Martin represented by attorney James McLeod. Id. § 79.

Woodruff and Hough testified against Martin, and Martin testified in his own

defense. Id. 4 80. Unlike the three members of the Group tried and convicted before

him, Martin was acquitted. Id. 4 79.

Ill. Post-Conviction Relief

Boyd and Walker were sentenced on August 3, 1977. Id. § 83. Boyd was

represented at sentencing by Martin’s trial attorney, McLeod, who confirmed to the

court that his office had withdrawn a motion challenging Boyd’s conviction filed under

Criminal Procedure Law (“CPL”) § 440.10. Id. § 84. Thereafter, Boyd and Walker

challenged their convictions on multiple occasions. Boyd’s direct appeal alleging an

improper Sandoval ruling, improper summation leading to an unfair trial, and

erroneous jury instructions, was denied in 1981. Id. {| 86; see People v. Sandoval, 34

NY 2d 371 (1974) (defendant has the right to a prospective ruling on the scope of his

cross-examination concerning prior commission of specific criminal, vicious and

immoral acts). Walker’s direct appeal was denied in 1989. ECF No. 176-128 J 94.

Further, Boyd filed a CPL § 440.10 motion in 1984 alleging Brady violations,

but that motion was denied. Jd. {J 87-89. Boyd and Walker, represented by McLeod,

filed a CPL § 440.10 motion together in 1986 alleging newly discovered evidence —

1.e., Woodruffs recantation of his testimony — that was also denied. Id. § 91-93.

Boyd and Walker filed another unsuccessful CPL § 440.10 motion in 2012, arguing

additional Brady violations, and again pointing to Woodruff recantation of his trial

testimony. Id. {| 100-04.

Boyd and Walker again filed a joint CPL § 440.10 motion in October 2020, this

time alleging ineffective assistance of counsel for failing to request photographs as

part of their discovery and also a Brady violation for the County’s failure to disclose

photographs. Id. 4] 106-07. At the hearing on this motion, McLeod testified that he

recalled two photographs (the “McLeod photos”) being part of the Martin trial that

were not among the photographs produced to Gibson, Boyd, or Walker, or any of the

photographs that had been produced to that point in evidence. ECF No. 165-8 at 6.

The state court considering the motion described McLeod’s testimony:

[One] photo depicted “footprints in the back of the house” where the

deceased, Mr. Crawford was found. Mr. McLeod asserted that the photo

“would have shown footprints in the rear” and that those footprints led

to the home of the last person seen with Mr. Crawford at the bar. Mr.

10

McLeod also testified that there was another photo that clearly showed

there had been no dragging of Mr. Crawford’s body as suggested by the

People’s witness Tyrone Woodruff .... Mr. McLeod also testified that

the detective who testified in the [Martin] case suggested the footprints

defense counsel was referring to were made by a heavyset individual.

ECF No. 165-8 at 6-7.

After considering the evidence presented, the state trial court noted that “it

[wa]s impossible for this Court to say definitively that the photos described by Mr.

McLeod existed.” Jd. at 7. Despite this uncertainty, the court decided that “the scales

tip[ped] ever so slightly in favor of? Boyd and Walker, and therefore it vacated their

convictions and granted them a new trial. Jd. at 9. The court made clear that its

decision did not exonerate Boyd and Walker, but merely provided that they were

entitled to a new trial. Id. The County elected not to appeal the state court’s decision

or retry Plaintiffs’ cases. ECF No. 176-128 § 520.

Boyd and Walker filed the present case in July 2022, articulating 10 causes of

action and naming multiple defendants, including the City Defendants and the

County of Erie. ECF No. 1. Of those defendants, only the County remains. ECF Nos.

160, 210. The County sought summary judgment on the two claims that Plaintiffs

have alleged against it: a Monell claim under 42 U.S.C. § 1983 for violations of their

civil rights (Count VII), and a New York state law claim for negligent hiring,

supervision, and discipline (Count X). ECF No. 164. .

STANDARD OF REVIEW

“The role of the court on a motion for summary judgment is not to try issues of

fact but only to determine whether there are issues of fact to be tried.” Vann v. City

11

of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (citations omitted). Rule 56 of the

Federal Rules of Civil Procedure provides that summary judgment should be granted

if the moving party establishes “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The Court should grant summary judgment if, after considering the evidence in the

light most favorable to the non-moving party, the Court finds that no rational jury

could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007).

“The moving party bears the burden of showing the absence of a genuine

dispute as to any material fact.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d

473, 486 (2d Cir. 2014). Once the moving party has met its burden, the opposing party

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

material facts and may not rely on conclusory allegations or unsubstantiated

speculation.” Robinson v. Concentra Health Serus., Inc., 781 F.8d 42, 44 (2d Cir. 2015)

(quotation omitted). Specifically, the non-moving 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).

“Tf, as to the issue on which summary judgment is sought, there is any evidence

in the record from which a reasonable inference could be drawn in favor of the non-

moving party, summary judgment is improper.” Vann, 72 F.3d at 1049. Thus, □□□□□

assessing [a summary judgment] motion, a court need not analyze or articulate every

legal or factual theory on which the plaintiff could potentially prevail at trial.” Ortiz

v. Stambach, 657 F. Supp. 3d 248, 257 (W.D.N.Y. 2023). Rather, “[i]f the court is

12

satisfied that at least one material factual dispute exists, summary judgment must

be denied.” Id. (citing Bonnie & Co. Fashions v. Bankers Tr. Co., 170 F.R.D. 111, 121

(S.D.N.Y. 1997) (“[I]t is basic, black-letter law that the existence of even one disputed

issue of material fact renders a grant of summary judgment inappropriate ... .”)).

DISCUSSION

I. Count VII: Monell Liability for Prosecutorial Misconduct

_ Boyd and Walker each allege that ADA Drury and ADA Henry, respectively,

violated their constitutional rights by each (1) failing to disclose certain materials to

the defense as required pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963); and

(2) delivering improper summations to the jury at their trials. See 42 U.S.C. § 1983;

ECF No. 176 at 61; Boyd ECF No. 78 9 375-91, 524-32, 648-50; Walker ECF No. 78

{| 518-24. As the parties acknowledge, the individual prosecutors here are immune

from suit under section 19838. See, e.g., Boyd ECF No. 176 at 50; see also Giraldo v.

Kessler, 694 F.3d 161, 165 (2d Cir. 2012). Plaintiffs have therefore sued the County

pursuant to what is known as “Monell” liability, which requires a showing that a

policy or widespread practice of the County caused the prosecutors’ alleged

misconduct. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).

With respect to the constitutional violations under Brady, the County

maintains 1n its motion for summary judgment that Plaintiffs are unable to establish

that any violation occurred in their cases, and that “[nJothing in the record raises a

question of fact to even suggest, let alone establish by proof in admissible form, the

existence of any custom or practice to commit prosecutorial misconduct in the form of

13

Brady violations.” ECF No. 170 at 14—15. For the reasons discussed below, the Court

finds that an examination of the record in light of the parties’ arguments reveals the

existence of genuine disputes of material fact regarding whether the prosecution

violated Plaintiffs’ constitutional rights by failing to disclose the McLeod photos, and

whether such failure was caused by widespread customs and practices 1n the Erie

County District Attorney’s Office (“DA’s Office”) during the same time period.

Accordingly, Count VII survives summary judgment.

A. 42 U.S.C. § 1983 and Municipal Liability Under Monell

Under 42 U.S.C. § 19838, “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State .. . subjects, or causes to be

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

privileges, or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law... Under a Supreme Court decision that has come

to be known simply as “Monell,” municipalities may be held liable as “persons” under

§ 1983 if the plaintiffs can establish that a municipal custom, policy, practice or usage

of the municipality caused their injury. Monell, 436 U.S. at 690-91; see Connick v.

Thompson, 563 U.S. 51, 60-61 (2011) (municipalities can be held liable under § 1983

for “practices so persistent and widespread as to practically have the force of law”).

The threshold inquiry of any Monell analysis is whether an underlying

constitutional violation occurred. See Oliver v. City of New York, 540 F. Supp. 3d 434,

436 (S.D.N.Y. 2021) (“In a lawsuit containing a Monell claim, if the plaintiff cannot

show that his or her constitutional rights were violated by any individual defendants,

14

the Monell claim will also fail.” (citing Askins v. Doe No. 1, 727 F.3d 248, 253-54 (2d

Cir. 2018)). If the threshold issue is satisfied, “[a] municipality may be liable under

§ 1983 when, by implementation of ‘a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that municipality’s officers’ or through

practices that are so ‘permanent and well settled’ as to constitute governmental

‘custom, it deprives the plaintiff of a constitutional right.” Miller v. Cnty. of Monroe,

No. 23-CV-06649-FPG, 2024 WL 2804435, at *4 (W.D.N.Y. 2024) (brackets omitted)

(quoting Monell, 486 U.S. at 690).

Monell liability is not a theory of respondeat superior, where an employer may

be held vicariously lable for the tort of its employees. See Monell, 436 U.S. at 691;

Connick, 536 U.S. at 60. Rather, under § 1983, local governments are responsible only

for “their own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986). In other

words, the municipality must be the “the moving force” causing the underlying

constitutional violation. Monell, 436 U.S. at 694. Causation may be proven either by

showing that a final policymaker directly committed or commanded the violation of

the plaintiffs federal rights, “or that while the policymaker himself engaged in

‘facially lawful . .. action,’ he indirectly caused the misconduct of a subordinate

municipal employee.” Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000) (quoting Bd. of

the Cnty. Comm’s v. Brown, 520 U.S. 397, 405-07 (1997)). Provided it is adequately

alleged, “the issue of whether the relevant conduct of the pertinent policymaking

official caused the injury of which the plaintiff complains is a question of fact for the

jury.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).

15

Over the years, courts have commonly recognized that there are several

theories by which a plaintiff can establish that a municipality caused — directly or

indirectly — the misconduct of its employees:

(1) a formal policy officially endorsed by the municipality; (2) actions

taken by government officials responsible for establishing the municipal

policies that caused the particular deprivation in question; (3) a practice

so consistent and widespread that, although not expressly authorized,

constitutes a custom or usage of which a supervising policy-maker must

have been aware; or (4) a failure by policymakers to provide adequate

training or supervision to subordinates to such an extent that 1t amounts

to deliberate indifference to the rights of those who come into contact

with the municipal employees.

Jones v. Westchester Cnty., 182 F. Supp. 3d 134, 158 (S.D.N.Y. 2016) (quotations

omitted); see also Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 18 (2d Cir.

2015); Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012).

B. The Alleged Underlying Constitutional Violations

Because the threshold inquiry of any Monell analysis is whether an underlying

constitutional violation occurred, the Court’s first task is to determine if any genuine

disputes of material fact exist as to whether ADA Drury and ADA Henry violated

Plaintiffs’ constitutional rights by failing to disclose Brady material in their

respective cases.

Plaintiffs each detail multiple possible Brady violations that appear for the

most part to be common to both of their cases, including the failure to disclose two

County is incorrect that the determination of whether ADA Drury and ADA Henry violated Boyd

and Walker's constitutional rights, respectively, is “not relevant to the instant motion as Plaintiffs

only make claims against the County pursuant to Monell.” ECF No. 182 at 2 (reply brief); see, e.g.,

Brown, No. 2016 WL 616396, at *2 (“To establish lability against municipal defendants in a Monell

claim, a plaintiff must prove both that he suffered a constitutional violation and that the constitutional

harm suffered was a result of a municipal policy or custom.”).

16

crime scene photographs (the McLeod photos) and a variety of “P-73”8 police reports

drafted by the BPD, tending to undermine the credibility of Woodruffs and Hough’s

testimony, or point to viable alternative suspects. See, e.g., Walker ECF No. 78 □□

495-694. For purposes of the instant motion, the alleged failure to disclose the two

McLeod photos raises a genuine issue of material fact regarding whether Plaintiffs’

constitutional rights were violated.?

A prosecutor’s failure to turn over evidence rises to the level of a constitutional

violation under Brady when the following three elements are satisfied:

The evidence at issue must be favorable to the accused, either because

it is exculpatory, or because it 1s impeaching; that evidence must have

been suppressed by the State, either willfully or inadvertently; and

prejudice must have ensued. To establish prejudice, a plaintiff must

show the evidence was material; 1.e, whether the evidentiary

suppression undermines confidence in the outcome of the trial.

Materiality is assessed in light of the evidence adduced against the

defendant at trial.

Rodriguez v. City of New York, 607 F. Supp. 38d 285, 297-98 (E.D.N.Y. 2022)

(quotations and citations omitted).

“The government is obligated to turn over Brady material no later than the

point at which a reasonable probability will exist that the outcome [of defendant’s

8 See, e.g., Guinyard v. Kirkpatrick, No. 11-CV-06352 MAT, 2012 WL 2450767, at *6 (W.D.N.Y. 2012),

aff'd, 554 F. App'x 61 (2d Cir. 2014) (“At trial, Detective Evans testified that a ‘P-73’ report form ‘is a

memorialization of whatever activity [a BPD detective] might have done that day.”).

9 The Court’s analysis should not be construed as a complete recitation of Boyd’s and/or Walker’s

evidence of possible Brady violations, from the preliminary hearing through post-trial, or evidence of

possible summation misconduct, but rather what the Court deems sufficient to decide the County’s

motion for summary judgment. See Bonnie & Co. Fashions, 170 F.R.D. at 121 (declining as

unnecessary to consider other alleged breach of a contract in an order denying summary judgment

because a genuine dispute of material fact with respect to one alleged breach was sufficient to deny

the motion).

17

trial] would have been different if an earlier disclosure had been made.” United States

v. Hamilton, 373 F. App’x 95, 97 (2d Cir. 2010) (quotation omitted). Therefore,

“suppression” of favorable evidence is not limited to the wholesale withholding

thereof, but also includes delayed disclosure that prevents the defendant from

making beneficial use of the evidence at trial. See United States v. Kelly, 91 F. Supp.

2d 580, 585 (S.D.N-Y. 2000).

In the years before Plaintiffs’ 1977 trials, the United States Supreme Court

expanded the requirements under Brady in two notable ways. In Giglio v. United

States, the Supreme Court expressly included impeachment evidence within Brady’s

disclosure rule. 405 U.S. 150, 154 (1972) (“When the reliability of a given witness may

well be determinative of guilt or innocence, nondisclosure of evidence affecting

credibility falls within [Brady’s disclosure] rule.”). Additionally, the year before

Plaintiffs’ trials, the Supreme Court in United States v. Agurs clarified that

prosecutors have an obligation to voluntarily turn over Brady materials even absent

a specific request by the defense. 427 U.S. 97, 107-14 (1976).

The record in the present case reflects that McLeod represented Floyd Martin

at trial — who was the only member of the Group acquitted of Crawford’s murder.

ECF No. 176-128 488, 490-91. McLeod testified before the state court that

vacated Plaintiffs’ convictions in 2021, and at his deposition in this litigation, that he

based his successful theory of Martin’s defense on the use of two crime scene

photographs (the McLeod photos), which showed (1) a single set of footprints leading

away from Crawford’s body through the backyard of Crawford’s house in the direction

18

of Larry Watson’s home; and (2) an absence of drag marks in the driveway. Id.

495, 535.

There is no transcript of Martin’s trial. ECF No. 165-8 at 5. However, McLeod

stated that the photograph of the footprints “would have shown footprints in the rear

and that those footprints led to the home of the last person seen with Mr. Crawford

at the bar.” ECF No. 165-8 at 6 (internal quotation marks omitted). In addition,

McLeod testified “that there was another photo that clearly showed there had been

no dragging of Mr. Crawford’s body as suggested by the People’s witness Tyrone

Woodruff.” Jd. Neither Boyd’s nor Walker’s trial counsel had these two photographs,

and they are not now part of the BPD’s Crawford homicide file. See, e.g., ECF No.

176-6 (Plaintiffs’ exhibit of photos from the BPD homicide file).

In arguing for summary judgment, the County contends that the McLeod

photos never existed.49 ECF No. 170 at 8-9. To be sure, the photographs themselves

are not part of the record, nor, again, is there a trial transcript from Martin’s trial to

decidedly confirm that they did in fact exist. ECF No. 165-8 at 4. Further, the County

accurately points out that the state court decision vacating Plaintiffs’ convictions did

not definitively conclude that the photographs existed, and it argues that the

reliability of McLeod’s testimony can be called into question given other evidence in

the record. ECF No. 170 at 89. For example, the County observes that McLeod

represented Boyd at his sentencing but did not address the missing photographs, and

10 The County does not argue in the alternative that even if the photographs existed and were not

disclosed to Boyd and Walker, that such failure to disclose did not rise to the level of constitutional

violation.

19

that Boyd and Walker each attempted to challenge their convictions multiple times

but did not raise an issue about the McLeod photos until 2020. Id. at 8.

Nevertheless, the question of the existence of the two McLeod photos is a

genuine dispute of fact for a jury to resolve at trial. See Fischl v. Armitage, 128 F.3d

50, 55 (2d Cir. 1997) (reversing grant of summary judgment, stating that “[c]redibility

assessments, choices between conflicting versions of the events, and the weighing of

evidence are matters for the jury, not for the court on a motion for summary

judgment”). For the purposes of summary judgment, the Court finds that, viewing

the evidence in the light most favorable to the non-movant Plaintiffs, a reasonable

jury could find that the McLeod photos existed.

A jury could also find that Drury and Henry failed to disclose the photographs

to the defense, “either willfully or inadvertently.” See Rodriguez, 607 F. Supp. 3d at

298. Each member of the Group tried for Crawford’s murder had different defense

attorneys. Yet McLeod was the only trial counsel of the four to specifically request all

“photographs” in discovery, and, if McLeod’s testimony is credited, was the only trial

counsel to receive the two photographs at issue. ECF No. 165-8 at 5—9. Only 10

photographs were introduced as exhibits in Boyd’s trial and only nine in Walker’s,

and ADA Drury admitted in his deposition for these cases that there were more

photographs in the BPD records than he disclosed to Gibson and Boyd. ECF No. 176-

128 97 349, 373; ECF No. 168-14 at 155:6-158:23. ADA Henry testified that he has

no recollection of making any Brady disclosures before Walker’s trial beyond a

statement concerning another witness, Tatar, because he had taken the case over

20

from Drury and “assumed” Drury had sufficiently handled pretrial discovery. Id. □

365-66, 386.

Further, neither Boyd’s nor Walker’s trial counsel attempted to impeach

Woodruffs or EMT Donnelly’s testimony that Crawford’s body was dragged. There

was no cross-examination of Detective Dove’s observation that there were no

footprints in the backyard, or any other questioning that would suggest the McLeod

photos were in the defendants’ possession. ECF No. 176-128 4 356, 358, 378, 383.

Plaintiffs’ expert, Zeidman, opined that reasonably skilled defense counsel would

have likely used the two McLeod photos to, among other things, cast reasonable doubt

on the Group’s guilt and point to Watson as a more likely perpetrator. Id. { 411.

The third element needed to demonstrate a constitutional violation under

Brady is prejudice, meaning that the suppressed evidence was “material” in light of

the evidence adduced against the defendant at trial such that “the evidentiary

suppression undermines confidence in the outcome of the trial.” Rodriguez, 607 F.

Supp. 3d at 298. Here, neither the weapon used in the murder nor Crawford’s wallet

were ever recovered, and there was no physical evidence tying either Boyd or Walker

to the crime. Hence, Woodruffs testimony incriminating Boyd and Walker was

“indispensable” to the cases against both Plaintiffs. See, e.g., ECF No. 168-14 at 101

(ADA Drury agreeing that Woodruff was an “indispensable witness” for the

prosecution). In light of the lack of physical evidence, the McLeod photos were clearly

material insofar as what they depicted could seriously undermine the prosecution’s

21

theory of the case by raising questions as to Woodruff’s credibility, and Watson as a

potential suspect.

Furthermore, Plaintiffs’ cases are unusual in the sense that while three of the

four defendants were convicted, the other co-defendant — Martin — was acquitted after

a trial based on similar evidence. ECF No. 176-28 §{ 58, 61, 70, 79. According to

McLeod, he was the only trial counsel to receive the McLeod photos, which were

critical to his theory of the case leading to Martin’s acquittal. ECF No. 165-8 at 5-9.

If credited at trial, this is strong evidence of prejudice to Plaintiffs.

Beyond the disputed facts surrounding suppression of the McLeod photos,

which the Court finds are alone sufficient, the record reveals genuine disputes of fact

as to whether several additional pieces of favorable evidence were suppressed by ADA

Drury and ADA Henry, which a jury could reasonably find further undermines

confidence in the outcomes of Boyd’s and Walker’s trials. For example, it 1s disputed

whether multiple P-73s, which contained a range of content favorable to Boyd and

Walker, were turned over. One such P-73 stated that, before Hough testified to the

grand jury, he admitted that his January 12 statement to police—which included a

statement that Boyd had confessed his role in Crawford’s murder to Hough—was a

lie. ECF No. 165-5 at 48; see also ECF No. 168-21 at 135, 140, 149 (McLeod testifying

that he did not see at the time of trial the P-73 report documenting Hough’s purported

recantation). Another documented a statement by Golden Nugget bartender Debbie

Jeffrey confiding that she suspected Watson of Crawford’s murder. ECF No. 165-4 at

11. □

22

The County argues that these P-783s and others were undisputedly disclosed

because “Drury stated at the Huntley [hjearing that he had turned over all P-73s to

the defense.” ECF No. 170 at 9. However, Boyd’s and Walker’s trial transcripts show

that their defense counsel did not, for example, use Hough’s recantation or Jeffery’s

documented suspicions at trial. ECF Nos. 168-6 (Boyd’s trial), 168-7 (Walker’s trial).

When deposed, neither ADA Drury nor ADA Henry could recall disclosing the P-73

containing Hough’s recantation or the P-73 containing Jeffery’s suspicions of an

alternative suspect. ECF Nos. 168-14 at 215-18 (ADA Drury); 168-17 at 313:14—

316:22 (ADA Henry). ADA Henry further testified that Jeffery’s suspicions and

Hough’s waffling did not amount to Brady material at all. ECF No. 168-17 at 368:10—

370:22.

On the record before the Court, a reasonable jury could find that Plaintiffs’

constitutional rights were violated as a result of ADA Drury’s and ADA Henry’s

failure to disclose certain Brady material.

C. The Alleged Municipal Practices Causing the Brady Violations

Plaintiffs maintain that they “have pled, and there is evidence to support, at

least three theories of Monell liability,” including that the DA’s Office “tolerated an

affirmatively illegal series of practices regarding Brady compliance.” ECF No. 176 at

72. Because this Court “need not analyze or articulate every legal or factual theory

on which the plaintiff could potentially prevail at trial” to adequately address the

present motion, the Court considers only this latter theory here. See Ortiz, 657 F.

Supp. 3d at 257. After a thorough review of the evidence, the Court finds that there

23

are genuine disputes of fact as to whether there were widespread customs and

practices in the DA’s Office during the relevant period that resulted in widespread

failures to turn over Brady material that caused the alleged violations of Plaintiffs’

constitutional rights detailed above.!!

“It is well settled that a policy or custom can be found in ‘an act performed

pursuant to a custom that has not been formally approved by an appropriate

decisionmaker . . . but is so widespread as to have the force of law.” See Miller, 2024

WL 2804435, at *4 (brackets omitted) (quoting Bd. of Cnty. Comm’rs, 520 U.S. at

404); Kern v. City of Rochester, 938 F.3d 38, 44 (2d Cir. 1996) (“persistent and

widespread” practices of city officials may constitute a municipal custom). “A practice

is ‘widespread’ when it 1s ‘common or prevalent throughout the entity.” Miller, 2024

WL 2804435, at *4 (brackets omitted) (quoting Gleeson v. Cnty. of Nassau, No. 15-

CV-6487 (AMD) (RL), 2019 WL 4754826, at *16 (E.D.N.Y. 2019)).

In the present case, a reasonable juror could interpret the record evidence to

suggest that there were widespread practices showing a misunderstanding across the

11 The County argues in its reply brief that Plaintiffs “have abandoned their theory that there ‘was a

practice that was so persistent or widespread as to carry the force of law’ and [that] they instead rely

on the theory that the ‘misconduct of subordinate employees [| ] was so manifest as to imply the

constructive acquiescence of senior policy-making officials.” ECF No. 182 at 4. In support of this

contention, the County points to Plaintiffs’ opposition to its motion for summary judgment, which notes

that because Plaintiffs have evidence of “testimony admitting or establishing that a given unlawful

act was consistent with municipal practice,” they do not need to rely on “the alternative method of

proof the County argues is lacking in this case: an overwhelming number of demonstrably prior similar

acts” to prove the existence of a practice. Id. at 4, n.4. (quoting ECF No. 176 at 61). The Court does not

agree with the County. Much of Plaintiffs’ opposition focused on the “widespread practices” of the DA’s

Office during the relevant period, and the language the County quotes in support of its theory of

“abandonment” explicitly states that the testimony Plaintiffs are referencing “can meet this standard

and establish the existence of an unlawful practice.” See ECF No. 176 at 61-67. Plaintiffs are simply,

and correctly, pointing out that the fact that the record does not contain a laundry list of decided cases

showing similar constitutional violations occurred is not fatal to their theory that the underlying

constitutional violations in their cases were caused by widespread practices of the DA’s Office.

24

DA’s Office of Brady’s requirements. For instance, when asked whether the DA’s

Office should have disclosed to defense counsel the police report documenting Hough’s

statements that he lied in his January 12 sworn statement, ADA Henry maintained

that the police report was not Brady material because Hough eventually testified

under oath consistent with his January 12 statement. ECF No. 168-17 at 313:14—

316:22. ADA Henry testified that his judgment about Brady material at the time was

consistent with the Brady policies of the DA’s Office. Id. at 355:8-11. But see, e.g.,

Giglio, 405 U.S. at 154 (decided in 1972, holding that evidence that may be used to

impeach a witness’s testimony falls under Brady’s “favorable” requirement).

This flawed understanding of the requirements of Brady was consistent with

that of ADA Drury, who also indicated that he believed the decisions he made to

produce documents or information under Brady were consistent with the practices

and policies of the DA’s Office. ECF No. 168-14 at 160-61. The County’s expert

testified that “in the ‘70s and ‘80s” the DA’s Office’s position was that evidence “had

to be exculpatory” to constitute Brady material and that evidence that could be used

only for impeachment purposes did not need to be disclosed. ECF No. 176-128 4] 775—

76. Ajury could reasonably find that ADA Drury’s and ADA Henry’s actions in Boyd’s

and Walker’s trials were consistent with that view. ADA Drury had no recollection of

turning over to defense counsel in the Gibson trial or the Boyd trial the police report

documenting Hough’s recantation. ECF No. 168-14 at 215-18. Nothing at Boyd’s trial

suggests that defense counsel was aware of that information. See ECF No. 168-6

(transcript of Boyd’s trial).

25

Beyond ADA Henry’s uncertainty regarding whether he disclosed the police

report detailing Hough’s waffling with respect to his statements indicating Boyd’s

guilt, ADA Henry admitted he did not disclose a police report that may have

supported a theory of an alternate suspect. As noted above, in the early days of the

investigation into Crawford’s murder, bartender Debbie Jeffrey confided to

investigators that she suspected Watson was responsible for harming Crawford. See

ECF No. 165-4 at 11. Yet when asked at his deposition whether he believed the police

report documenting her suspicions was Brady material that should have been turned

over to defense counsel in the Walker trial, ADA Henry indicated that the report was

not Brady material, and that there was no policy in the DA’s Office that would have

required him to turn over the report. ECF No. 168-17 at 368:10—370:22. ADA Drury

also could not recall turning over the police report detailing Jeffrey's suspicions. ECF

No. 168-14 at 215-18.

In addition to providing testimony supporting allegations that he failed to turn

over the potentially useful evidence regarding Hough and Jeffery, ADA Drury also

testified to questionable handling of photographic evidence. He indicated that there

were at least 18 photographs of the Crawford crime scene taken by the police

photographer. ECF No. 165-9 at 146-48. Yet he admitted that he only turned over 10

photographs to Boyd’s defense counsel, and 12 photographs to Gibson’s counsel

because he made the decision that the others “were irrelevant to any proper use in a

trial.” Id.

26

Viewing the evidence in the light most favorable to Plaintiffs, the two photos

at issue that McLeod testified to were instrumental to Martin’s acquittal and could

have been among those that Drury deemed “irrelevant.” As particularly germane to

the McLeod photos, ADA Henry testified that his understanding of Brady, in 1977,

was that the obligation to disclose was triggered by a request from the defense. ECF □

No. 168-17 at 216:6—218:21, 223:7-12. But see, eg., Agurs, 427 U.S. at 107-14

(decided in 1976, holding that material need not be specifically requested by defense

counsel to fall under the auspices of Brady material). McLeod testified that when he

wrote to Henry to request Brady materials in Martin’s case, Henry responded that

McLeod needed to specify what material he was asking for. ECF No. 176-128 4 808.

It was only after McLeod asked for all “photographs” that the McLeod photos were

disclosed to him for use in Martin’s defense. Id. 493, 495.

Although then-District Attorney Ed Cosgrove testified that he recalled that the

DA’s Office “operated under ... the theory that the police file was open to the

defendant .. .,” Plaintiffs offered additional evidence beyond that described above to

support their claims and raise a question of fact as to the practices in the DA’s Office

at that time. ECF No. 166-16 at 46; see also Miller, 2024 WL 28044385, at *4

(explaining that a plaintiff may show the existence of de facto customs or policies by

citing to other cases that involve factually similar misconduct, 1s contemporaneous to

the misconduct at issue, and result in an adjudication of liability) (citations omitted)).

For example, Plaintiffs have submitted a newspaper clipping from the same time

period reporting an Erie County Supreme Court decision to call a mistrial in an

27

unrelated 1976 homicide case, where another ADA — ADA Quinlan — failed to timely

disclose to defense counsel the incriminating testimony he would elicit from a state

police trooper. See, e.g., ECF No. 176-87 at 2. Plaintiffs also point to the New York

State appellate division’s decision in People v. Cadby, 75 A.D.2d 713, 714 (1980),

which reversed a sexual abuse conviction obtained during DA Cosgrove’s tenure in

which it was discovered that prosecutors had failed to turn over to defense counsel a

police report that contained statements of the complainant to which they were

entitled. Id. at 714.

Were a jury to find that there was a widespread practice in the DA’s Office

during that time period of not properly disclosing Brady material, the “direct causal

link between [the] municipal policy or custom and the alleged constitutional

deprivation” would be evident. City of Canton, 489 U.S. at 385. In particular, a jury

could find that the practices demonstrating widespread misunderstanding of Brady

requirements within the DA’s Office caused the constitutional violations described in

the previous section. See, e.g., Rutherford v. City of Mount Vernon, 698 F. Supp. 3d

574, 613-15 (S.D.N.Y. 2023) (denying summary judgment on plaintiffs Monell claim

because a reasonable jury could find that the police department had a “widespread

practice of conducting strip and body cavity searches that did not comport with

acceptable police practices” given evidence of civilian complaints, evidence suggesting

insufficient police investigations, and officers’ testimony of “an overbroad and

inaccurate understanding of when it was permissible to conduct strip searches’).

28

In sum, viewed in the light most favorable to Plaintiffs, there are genuine

disputes of fact as to whether there were widespread practices in the DA’s Office of

failing to disclose Brady material that caused the violations of Plaintiffs’

constitutional rights detailed above. Accordingly, the County is not entitled to

summary judgment on Plaintiffs’ Monell claims in Count VII of the Amended

Complaints. See Ortiz, 657 F. Supp. 3d at 257 (explaining it is not necessary to

analyze every legal or factual theory on which plaintiff could potentially prevail at

trial at summary judgment). The narrow finding of this sub-section does not preclude

Plaintiffs from presenting other evidence to support this or any other properly

pleaded theories of a municipal policy at trial. Bonnie & Co. Fashions, 170 F.R.D. at

121 (‘Once this Court found that there existed one material issue of disputed fact

regarding Count One, this Court did not need to consider any of BTC’s other alleged

violations of the Factoring Agreement in order to deny summary judgment, and

therefore, did not consider them .... As a result, all of BTC’s conduct which was

alleged by plaintiffs in Count One to violate the Factoring Agreement survived BTC’s

summary judgment motion.”).

Thus, the County’s motion for summary judgment on Plaintiffs’ Monell claims

under § 1983 (Count VID) must be denied.

II. Count X: State Law Negligent Failure to Hire, Train, Supervise, and

Discipline

In their Amended Complaints, Plaintiffs allege that under New York law, the

County is liable for “its intentional, deliberately indifferent, careless, reckless, and/or

negligent failure to adequately hire, train, supervise, and discipline its agents,

29

servants and/or employees with regard to their .. . duties.” ECF No. 78 4] 702-03.

In other words, they suggest that the County’s failure to properly train, supervise,

and discipline its prosecutors caused the alleged prosecutorial misconduct committed

by ADA Drury and ADA Henry that led to Plaintiffs’ respective convictions. Id.

In its motion for summary judgment, the County maintains that the record

lacks any evidence to suggest that it was negligent in hiring, training, supervising,

and disciplining its employees, and that, in any event, the alleged improper conduct

occurred within the scope of ADA Drury’s and ADA Henry’s employment, thus

precluding Plaintiffs’ claims as a matter of law. ECF No. 170 at 23.

In response, Plaintiffs argue that “the County has not conceded (or denied) in

any binding pleading or stipulation that its prosecutors acted at all relevant times in

the scope of their employment.” ECF No. 176 at 87. They also contend that, because

respondeat superior is not available to them, their negligent hiring theory should be

allowed to proceed. Id. Plaintiffs’ arguments are unpersuasive. The Court finds that

the County has demonstrated an absence of evidence on an essential element of

Plaintiffs’ state law claims, namely, that County employees were acting outside the

scope of their employment when committing the complained-of actions.

As noted above, summary judgment may not be granted unless “the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Nevertheless, “[w]hen

the nonmoving party will bear the ultimate burden of proof at trial, the moving

party’s burden is satisfied if it can point to an absence of evidence to support an

30

essential element of the nonmoving party’s claim.” Pavel v. Plymouth Mgmt. Grp.,

Inc., 198 F. App’x 38, 40 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986)). Once a movant has made that showing, the opposing party “must

show the presence of a genuine issue by coming forward with evidence that would be

sufficient, if all reasonable inferences were drawn in his favor, to establish the

existence of that element at trial.” Ross v. New Canaan Env’t Comm’n, 532 F. App’x

12, 13 (2d Cir. 2013) (quoting United States v. Rem, 38 F.3d 634, 643 (2d Cir. 1994)).

Under New York law, there are two ways that a municipal employer can be

held liable for negligence based on the acts of an employee. Baumeister v. Erie Cnty.,

No. 23-CV-1150-LJV, 2024 WL 4362311, at *13 (W.D.N.Y. 2024). On the one hand, if

the employee acted within the scope of his or her employment, the employer and the

employee’s supervisors may be held liable for the employee’s negligence only under a

theory of respondeat superior. Id. (citing Velez v. City of New York, 730 F.3d 128, 136—

37 (2d Cir. 2013) (italics omitted)). “A claim for negligent hiring or supervision,” on

the other hand, “can only proceed against an employer for an employee acting outside

the scope of her [or his] employment.” Jd. (quoting Colodney v. Continuum Health

Partners, Inc., 2004 WL 829158, at *8 (S.D.N-Y. 2004)).

Here, Plaintiffs allege only negligent hiring, supervision, training, and

retention. ECF No. 78 □ 302-03. “To maintain a claim against a municipal employer

for the ‘negligent hiring, training, and retention’ of a tortfeasor under New York law,

a plaintiff must show that the employee acted ‘outside the scope of her employment.”

Velez, 730 F.3d at 136-87 (citing Gurevich v. City of New York, No. 06 Civ. 1646(GEL),

31

2008 WL 113775, at *6 (S.D.N.Y. 2008) Gnternal quotation marks omitted) (collecting

cases)). “[A]n employee will be considered within the scope of his employment so long

as he is discharging his duties, no matter how irregularly, or with what disregard of

instructions.” Powell v. City of Jamestown, No. 1:21-CV-721, 2022 WL 1913581, at

*20 (W.D.N.Y. 2022) (quoting White v. Montesano, 466 F. Supp. 3d 331, 335 (W.D.N.Y.

2020) Gnternal quotation marks omitted)). By contrast, an employee will not be

considered within the scope of employment “if, for purely personal reasons unrelated

to the employer’s interests, the employee engages in conduct which is a substantial

departure from the normal methods of performing his duties.” Id.

In the present case, all of the tortious acts that Plaintiffs allege regarding

County prosecutors relate to their prosecution. For instance, Plaintiffs maintain that

ADA Henry and ADA Drury failed to disclose Brady material during Plaintiffs’

preliminary hearing and during Plaintiffs’ trials, and engaged in summation

misconduct that deprived Plaintiffs of a fair trial. ECF No. 172 at 51-61. There are

no allegations that the County prosecutors acted for purely personal reasons

unrelated to the County’s interests. See, e.g., Magassouba v. City of New York, 2024

WL 2979825, at *38—-4 (S.D.N.Y. 2024) (dismissing claims for negligent supervision

where “the acts Plaintiff alleges relate to his prosecution, all of which seem to have

occurred in the course of their employment as prosecutors.”). Indeed, Plaintiffs’

Amended Complaints specifically allege that the County was liable for its “failure to

adequately train, supervise, and discipline its ... employees with regard to their

aforementioned duties... .” ECF No. 78 § 708; see, e.g., Jones v. City of New York,

32

988 F. Supp. 2d 305, 319 (E.D.N.Y. 2018) (dismissing claim where the plaintiff did

“not allege defendants acted outside the scope of their employment. The conduct

complained of was attributable to prosecutors ... acting properly within the scope of

their employment.”).

Plaintiffs make the ambiguous suggestion that their claims should survive

even though there is no allegation that ADA Drury and ADA Henry acted outside the

scope of their employment because respondeat superior is not available to them, and

therefore their negligent hiring claim is not “superfluous” or “duplicative” of any other

claim. ECF No. 176 at 87-90. However, the only support Plaintiffs cite for this point

is the New York Court of Appeals case of Hall v. Smathers, 240 N.Y. 486, 490 (1925),

which is silent on the issue as to whether the facts demonstrated that the tortfeasor

was acting within the scope of his employment, and did not directly address the

theory of respondeat superior. See ECF No. 172 at 87. In other words, the 1925 ruling

in Hall does not alter the fact that respondeat superior on the one hand, and negligent

failure to hire, train, supervise, and discipline on the other hand, are two different

claims with distinct elements. Only one of the claims would be appropriate,

depending upon the underlying facts alleged regarding the scope of employment. If a

plaintiff were to plead both claims, under alternative theories, the claims would not

be “duplicative” or “superfluous” of each other as Plaintiffs suggest; instead, each

would require different forms of proof.

Further, Plaintiffs have not argued why and whether a respondeat superior

claim was not available to them, nor do they explain why — notwithstanding the

33

Second Circuit’s distinction between respondeat superior and negligent supervision

claims — it is or should be necessarily true that a negligent supervision claim would

be available to Plaintiffs because respondeat superior is not available. See Velez, 730

F.3d at 137 (providing that respondeat superior is the appropriate claim if the

employee acted within the scope of her employment). The Court has “no obligation to

review issues that are raised, but not independently and sufficiently developed, in [a

party]’s main brief.” Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994).

Accordingly, the Court declines to further consider Plaintiffs’ ambiguous and

underdeveloped argument on this point. See, e.g., Johnson v. Panetta, 953 F. Supp.

2d 244, 250 (D.D.C. 2018) (“It is not the obligation of this Court to research and

construct the legal arguments available to the parties .... To the contrary,

perfunctory and undeveloped arguments, and arguments that are unsupported by

pertinent authority, are deemed waived.”).

Therefore, the County’s motion for summary judgment on Plaintiffs’ claim

under New York state law for negligent hiring, supervision, training, and discipline

(Count X) must be granted.

CONCLUSION

For the reasons set forth above, the County’s motion for summary judgment

[Boyd ECF No. 166; Walker ECF No. 164] was granted as to each Plaintiffs state law

claim for negligent failure to hire, train, supervise, and discipline set forth in Count

X of the Amended Complaints, and was otherwise denied. See Boyd ECF No. 206;

Walker ECF No. 200.

34

SO ORDERED.

Dated: January 14, 2025

Rochester, New York

-~ nt

| □□□ wallth VAL.

HON. REDITH A. VACCA

United States District Judge

35