CALVIN HARRIS, Plaintiff, -v- TIOGA COUNTY, FORMER TIOGA COUNTY DISTRICT ATTORNEY GERALD KEENE, NEW YORK STATE POLICE INVESTIGATOR STEVEN ANDERSEN, NEW YORK STATE POLICE INVESTIGATOR SUSAN MULVEY, and BARBARA THAYER, Defendants.
3:17-CV-932
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 23, 2023
DAVID N. HURD, United States District Judge
Case 3:17-cv-00932-DNH-TWD Document 125
BARKET EPSTEIN & KEARON ALDEA & LOTURCO, LLP
Attorneys for Plaintiff Calvin Harris
666 Old Country Road, Suite 700
Garden City, NY 11530
GOLDBERG, SEGALLA LAW FIRM
Attorneys for Defendants Tioga County and Gerald Keene
5786 Widewaters Parkway
Syracuse, NY 13214
OF COUNSEL:
ALEXANDER R. KLEIN, ESQ.
BRUCE A. BARKET, ESQ.
DONNA ALDEA, ESQ.
MOLLY M. RYAN, ESQ.
New York State Attorney General
Attorneys for Defendants Steven Andersen and Susan Mulvey
The Capitol
Albany, NY 12224
BUTLER, BUTLER LAW FIRM
Attorneys for Defendant Barbara Thayer
231-241 Main Street
Vestal, NY 13850
ADRIENNE J. KERWIN, ESQ.
COLLEEN D. GALLIGAN, ESQ.
LAUREN ROSE EVERSLEY, ESQ.
Ass’t Attorneys General
MATTHEW C. BUTLER, ESQ.
DAVID E. BUTLER, ESQ.
DAVID N. HURD
United States District Judge
I. INTRODUCTION .................................................................................... 4
II. BACKGROUND ....................................................................................... 8
III. LEGAL STANDARD ............................................................................. 27
IV. DISCUSSION ......................................................................................... 28
A. Preliminary Issues ........................................................................ 28
1. Abandoned Claims .................................................................... 29
2. Investigator Lester ................................................................... 30
3. The Does .................................................................................... 31
4. The DA’s Office ......................................................................... 31
B. Remaining Claims ......................................................................... 32
1. Malicious Prosecution (Counts One and Nine) ....................... 33
i. Timeliness ............................................................................. 33
ii. The Merits ............................................................................. 41
a. State Defendants ........................................................ 42
b. County Defendants ..................................................... 45
2. Fabrication of Evidence (Count Two) ...................................... 51
i. State Defendants ................................................................. 52
ii. County Defendants .............................................................. 54
iii. Ms. Thayer ........................................................................... 55
3. Conspiracy (Count Five) ........................................................... 57
4. Municipal Liability (Count Seven) ........................................... 58
C. Qualified Immunity ....................................................................... 60
V. CONCLUSION ........................................................................................... 62
I. INTRODUCTION
On September 12, 2001, just after 7 o’clock in the morning, Barb Thayer, the family’s babysitter, made a short drive over to the Harris’s house to help get the kids off to school. When she arrived at the foot of the property’s long driveway, Ms. Thayer discovered Michele Harris’s van abandoned near the gated entrance. The keys were in the ignition. But Michele was nowhere to be found. And she has not been seen since.
Michele’s mysterious disappearance was reported to law enforcement later that day. Suspicion immediately fell on her husband, Calvin. Although the couple still shared a home with their four children, they were in the middle of a contentious divorce. And Calvin, a prominent local businessman, stood to lose a lot of money in the breakup.
With this working theory of a motive, State Police dug into the prospect of Calvin’s involvement in Michele’s disappearance. Their initial search turned up scant physical evidence. And four additional years of official scrutiny into Calvin’s life produced little else. Police eventually resorted to some deceptive tactics in the hopes that Calvin might incriminate himself. But nothing ever broke the case open. They never located a murder weapon. Or even a body.
With their leads exhausted and the case gone cold, investigators pressured the local District Attorney to move forward anyway. In the spring of 2005,
Investigators ran back to the drawing board. In February of 2007, the same District Attorney convinced a newly empaneled grand jury to return a second murder indictment. This time around, though, the grand jury heard some different evidence. According to Calvin, this change in the proof was the product of official misconduct: the prosecutor had conspired with the lead investigator and others to coerce key witnesses into changing their stories to better fit the murder narrative. What’s more, Calvin says, they conspired to fabricate or manipulate crucial physical evidence, too.
Misconduct or no, a trial jury finally heard the case and voted to convict Calvin for Michele’s murder. But right after the verdict, a local farmer came forward to say that he’d seen Michele and an unidentified man—a man who was definitely not Calvin—standing in the driveway of the Harris’s property just after daybreak on the morning she disappeared. The farmer’s testimony, if believed, would have blown up the prosecution’s timeline of the supposed murder and subsequent cleanup. So Calvin was granted a new trial.
Eventually, the Court of Appeals vacated the conviction on other grounds and ordered a new trial. By the time the case came back down to Tioga County for renewed proceedings, four more years had passed. A national media frenzy had come and gone. The lead investigator had retired. And the DA had leveraged his high-profile victory into a seat on the county bench.
Re-starting the case from scratch took just over a year of preparation. A third trial in a neighboring county with a new prosecutor ended with a hung jury. The case was re-tried to the bench a year later. That trial—the fourth, for those keeping score—ended in an acquittal on May 24, 2016.
Calvin claims he’d finally been able to show the fact-finder what his own private investigators had learned: that law enforcement had fabricated the evidence used to convict him. In fact, they were so busy doctoring the proof that they’d failed to take a good look at the two out-of-towners who’d been hanging around with Michele at the time of her disappearance.
On August 22, 2017, Calvin Harris filed this
The ten-count complaint asserts
On October 5, 2017, the County defendants moved under
On June 2 and June 3, 2022, the County defendants, the State Police defendants, and Ms. Thayer each moved separately for summary judgment on plaintiff’s various claims. Dkt. Nos. 97, 100, 101. Those three motions were fully briefed. Dkt. Nos. 110, 115, 117, 118, 119. Oral argument was heard on January 12, 2023 in Utica, New York. Decision was reserved.
II. BACKGROUND1
Calvin wed Michele on September 29, 1990. The couple soon welcomed four children into their lives. The family lived together at 381 Hagadorn Hill Road, a 200-acre estate in rural Spencer, New York. The property featured a long, gently curving driveway that ran up to the residence itself, which sat in the woods near the edge of Empire Lake.
Attorney Keene is relevant to this story for two reasons. First, she is the wife of DA Keene, who presented the murder case to the grand juries and prosecuted Calvin at the first two trials. Second, attorney Keene took notes of her meetings with Michele. Attorney Keene’s notes describe an instance in which Michele recounted being pushed to the ground during an argument with Calvin. Ex. F at 3. Michele reported to attorney Keene that when this happened, she “cut her hand on the ice,” which “caus[ed] it to bleed.” Id.
As the description of this event might suggest, the couple’s separation and divorce proceedings were contentious. The marriage had been in trouble for a while. Both parties had been unfaithful. Michele’s decision to file for the divorce had sparked arguments, and there were accusations that some of these disputes had become physical. Calvin had also reportedly cut Michele off from the family’s bank accounts.
During the spring and into the summer of 2001, the Harris’s divorce case slowly worked its way toward a conclusion. Calvin and Michele continued to share the Hagadorn Hill Road house with their four kids. Near the end of that summer, the divorce court set a trial date for October. But that date was likely to be little more than a placeholder. As attorney Miller later explained to law enforcement during the investigation, discovery was incomplete. For one thing, the parties were waiting for the divorce court to rule on attorney Miller’s request for an accounting of Calvin’s businesses. Ex. Q at 3. For another, there was the budding possibility that Calvin and Michele might reach an amicable settlement. See, e.g., Ex. R at 108. After all, Michele had just bought her own house and told others that she planned to move out. Id.
On September 11, 2001, at about 2:30 in the afternoon, Ms. Thayer headed over to the house to watch the children. Michele was getting ready to leave
Early the next morning, at about 4:30 a.m., a local farmer named Kevin Tubbs started his day before the sunrise. Ex. T ¶ 6. It was still dark outside when Farmer Tubbs left his house and headed over to a neighboring farm to finish loading up some hay. Id. ¶¶ 6–7. His route took him right past the entrance to the Harris’s property on Hagadorn Hill Road. Id.
Farmer Tubbs “noticed nothing out of the ordinary” on his outbound trip past the Harris’s place that morning. Ex. T ¶¶ 6–7. He spent some time loading up his wagon and hitching it to his truck. Id. He isn’t sure precisely how long that took. Id. But he recalls that his return trip was planned to coincide with daybreak: he waited until it was “light enough out” that he “could be seen by any other drivers that [he] might meet” on the road. Id.
On his way back home with a wagonload of hay, Farmer Tubbs observed a more interesting scene as he passed by the Harris’s property. Ex. T ¶ 9. He saw a “vehicle stopped or parked cockeyed, with the front of the vehicle in the end of the driveway and the rear extending into the roadway and partially blocking the roadway.” Id. He recalls that it was a “Chevrolet pick-up truck, either a dark blue or black in color.” Id. In fact, Farmer Tubbs says, he
As he maneuvered carefully around the truck, Farmer Tubbs:
looked over and observed two individuals outside of the truck, both standing on the passenger side. One was a blonde woman who looked like the woman whom [he] had previously seen at the Harris property. She was leaning on the box of the pick-up truck; she appeared to be crying, and did not look up at [him] while [he] was looking at her. The other individual, who stared directly at [him] as [he] passed, was a young whitе (but tanned) male, who [he] would estimate to be early to mid-20’s, with a muscular build and brown hair.
Ex. T ¶ 10. He did not recognize the man. Id. But he was sure it was not Calvin. Id. And while he didn’t get a very good look, Farmer Tubbs reported he also saw a second vehicle—an SUV or maybe a van—parked in the Harris family’s driveway just ahead of the dark pickup truck. Id. ¶ 11.
What happened over the next few hours is unknown.3 However, at around 7 o’clock that morning, Ms. Thayer prepared to head back over to the Harris’s house to help get the children ready for school. Before she left her own place,
When Ms. Thayer arrived at the foot of the Harris’s long driveway, she saw something out of the ordinary: Michele’s van was parked near the gated entrance. Ms. Thayer got out to investigate. Ex. Z at 4. She peeked in the driver’s side window, where she saw that the keys were still in the van’s ignition. Id. She also saw a pack of cigarettes and a makeup container, but noticed that Michele’s purse was missing. Ex. AA at 3. Ms. Thayer opened the back of the van to see if perhaps Michele had a rough night and was just sleeping it off inside. Id. But Michele was not there. Id. So Ms. Thayer closed the van back up, returned to her car, and headed up the driveway.
By now it was 7:14 a.m. Calvin wanted to leave for work. But neither Michele nor Ms. Thayer had shown up to help him with the kids. Calvin had already talked to Ms. Thayer, so he knew she was on her way over. But he also expeсted Michele to be home by now. So Calvin placed a call from the house phone to Michele’s cell phone. Ex. AB at 3; Ex. AC at 3. Michele did not pick up. Id. And Calvin hung up without leaving a message. See id.
asked him if Michele was there and he said no. [She] told him that her van was at the end of the driveway. He said that [they’d] better go get it. Cal and [Ms. Thayer] got in his truck and drove to the end of the driveway. While [they] drove down to the van, [she] said to Cal that maybe Michele had been drinking and got out of the van and started walking in the wrong direction. Cal said that Michele had been partying a lot.
Ex. S at 4. Ms. Thayer drove the van back up to the house. Id.
At about 8:00 a.m., Calvin left the house with the three eldest children in tow. He dropped them off at school on his way into work. Around 8:20 a.m., Ms. Thayer fielded a telephone call from Nikki Burdick, one of Michele’s close friends. Ms. Thayer told Burdick that Michele hadn’t come home last night and that they’d found her van abandoned near the driveway. Hearing this news, Ms. Burdick concluded that “something was wrong” and said that she planned to call the police and make a report. Ex. S at 4–5.
Ms. Burdick also called attorney Miller, Michele’s attorney, and filled him in with the news about Michele’s disappearance. Ex. Q at 3. Attorney Miller contacted the State Police. Id. Senior Investigator Mulvey fielded attorney
The State Police began an extensive investigation that seemed to focus almost еxclusively on Calvin. They interviewed Calvin’s friends, relatives, and colleagues. Ex. K at 33. They searched the home, the woods around the 200-acre property, and the land adjacent to those holdings. Id. at 61. They searched the lake. Id. at 62. They searched his computers, his truck, the driveway, the property’s boat dock, and even some underground pipelines they found running near the house. Id. They went through his trash. Id. at 63. They attached a GPS tracking unit to his car. Id. at 67–68.
When those efforts failed, investigators got creative. They flew helicopters over Calvin’s house, the adjacent lake, and the rest of the large property at a height that barely cleared the tree line. Ex. K at 78–80. They set up cameras outside his home just “[t]o see what he did.” Id. at 70. They surprised him at the airport when he returned home from a trip with his children “to see what he would do or who he would call.” Id. at 72. They even lied to him about the status of the investigation just to see “how he reacted.” Id. at 69.
In total, this discovery amounted to no more than an eighth of a teaspoon of blood, which equaled about ten drops. Ex. BE at 7. Thinking that maybe the rest of the blood had been cleaned up or washed down a drain, the State Police used sensitive chemical tests throughout the surfaces in the house and in the plumbing. Ex. I at 21–22. But thеy did not find any more traces of blood. Id. According to plaintiff, the small amount of blood that all these forensic tests actually managed to detect is easily explained by Michele’s story to attorney Keene about having cut her hand after a fall on the ice.
The State Police had always kept the DA in the loop. Ex. K at 101–02. But DA Keene also played an active role in the investigation. He traveled with Senior Investigator Mulvey to Albany to help her present the case to a State Police Forensic Unit. Id. at 102. He traveled with State Police to help present the case to the Federal Bureau of Investigation. Id. He traveled with Senior Investigator Mulvey to Boston, where they interviewed Calvin’s
By the spring of 2005, the case had gone cold. Senior Investigator Mulvey began pushing DA Keene to present the case to a grand jury anyway. Ex. R at 205–06. When DA Keene asked investigators to “be patient with [him],” State Police leadership suggested that maybe their own prosecutors should take the case off DA Keene’s hands. Id. at 206–08.
In September of 2005, DA Keene presented the case to a grand jury, which indicted Calvin for second-degree murder. People v. Harris, 838 N.Y.S.2d 345 (Co. Ct. 2007). Calvin moved to dismiss the indictment as legally insufficient or otherwise defective. Id. After that motion was denied, DA Keene turned over to the defense the grand jury minutes. Id. Calvin renewed his motion to dismiss the indictment based on what he discovered in that transcript. Id.
On Friday, December 15, 2006, the presiding judge, “apparently as a courtesy to counsel,” called the prosecutor аnd defense counsel into chambers and advised them that he planned to grant Calvin’s motion to dismiss the indictment. Harris, 838 N.Y.S.2d at 347. But before the judge could file a written decision dismissing the indictment, and in “an apparent effort to avoid that decision by the court,” DA Keene moved on an emergency basis for an order of recusal. Id. The presiding judge called the request “baseless,” but decided to recuse himself because the “sworn allegations” in DA Keene’s
On January 28, 2007, the newly assigned judge dismissed the indictment against Calvin. Harris, 838 N.Y.S.2d at 350. In doing so, the court concluded that DA Keene had “intentionally” presented an “overwhelming” amount of “improper” hearsay evidence that had prejudiced the grand jury proceedings:
Twenty-seven witnesses testified before this Grand Jury. Most of those witnesses were permitted, improperly, to offer their opinions as to the state of defendant’s marriage, Michele Harris’ intent with regard to the divorce. They gave personal opinions concerning the defendant, his wife, his wife’s boyfriend, the defendant’s net worth, what type of employer the defendant was/is, his character, whether he had or did not have a propensity to commit the alleged crime, whether he was/is a “good” father or a good husband, and in contrast, whether Michele Harris was a good mother, or a good wife. One witness gave what amounted to his opinion as to whether the defendant committed the crime charged.
. . . .
Ms. Harris’ attorney (in the divorce proсeeding) was permitted to testify as to statements made to him by her which did not fall into any exception to the hearsay rule. He was allowed to testify about the state of his client’s marriage to the defendant, the status of the divorce action then pending. In this regard he offered his inadmissible opinion about several matters relating to that litigation. He was also permitted to testify concerning the content of the divorce file
including allegations being made by Michele Harris in that action, none of which is admissible evidence. That there was an action for divorce pending, filed by Michele Harris, was admissible as it goes to the issue of a possible motive on the part of the defendant to commit the alleged crime. Not permissible, however, was opinion testimony and speculation by Ms. Harris’ attorney regarding the divorce action and proceedings therein, particularly whether or not the defendant and his attorney were being forthright in their efforts to settle the divorce action. His testimony, amounting to nothing more than his opinion, as to how divorce actions generally proceed, was clearly inadmissible.
Id. at 351–52. The trial court went on to fault DA Keene for his “patently improper” comments to the grand jury. Id. at 353. Ultimately, the trial court dismissed the indictment “with leave to the District Attorney to apply for an order permitting resubmission of the charge to another Grand Jury.” Id.
With their first indictment thrown out, the State Police and the District Attorney were forced back to the drawing board. According to Calvin, they worked to gin up some evidence that would better fit a murder narrative:
The Status of the Divorce. In early interviews, attorney Miller told State Police that the October 2001 trial date in the divorce case was probably just a placeholder, since the parties were still waiting for the court to rule on their request for an audit of Calvin’s businesses. Ex. Q at 3. Even so, defendants
A Threatening Phone Call. On September 25, 2001, the State Police interviewed a man named Jerome Wilczynski, Michele’s hair stylist at a local salon. Ex. AS at 3. In this first interview, Mr. Wilczynski reported that he had overheard a telephone call between Michele and Calvin in which Calvin told her to “drop the divorce proceedings and come back to the Harris family fortune” or else “he would make it very difficult on her.” Id. Mr. Wilczynski told substantially the same version of events during a second interview with State Police a short time later. Ex. K at 141.
Notably absent from Mr. Wilczynski’s original descriptions of this phone call is any mention of an overt threat from Calvin. Later, however, after a conversation with Senior Investigator Mulvey, Mr. Wilczynski’s testimony changed in a big way. Ex. K at 142. Now, Mr. Wilczynski claimed, Calvin had told Michele “that he could make her disappear, and she was to stop all of this divorce nonsense.” Ex. C at 73. Mr. Wilczynski would later testify to that much more damaging version of events.
Ms. Thayer’s Contributions. In her interviews and conversations with the State Police in the days and weeks shortly after Michele’s disappearance, Ms.
For some reason, though, Ms. Thayer later took credit for this telephone call during her testimony to the grand jury. Ex. C at 13; Ex. D at 16, 107. As plaintiff points out, the change in Ms. Thayer‘s story came after she began regularly communicating with Senior Investigator Mulvey. Ex. AP. One plausible explanation for Ms. Thayer‘s change in tune would be to minimize the exculpatory value a jury might attach to this call if they learned Calvin had made it. As DA Keene later acknowledged, if Calvin was trying to create a “fake alibi” with this call, you would have expected him to leave a voicemail evincing false concern for Michele‘s whereabouts. Ex. R at 133.
Ms. Thayer also changed her story about the fate of Michele‘s clothing and personal effects. Investigators obtained a copy of Ms. Thayer‘s diary early on in their investigation. There, Ms. Thayer wrote down that she had bagged up Michele‘s clothes and put them in the laundry room shortly after Michele‘s disappearance. Ex. AQ at 18. However, in her later testimony, Ms. Thayer
Blood Evidence. Without a weapon or a body, the blood evidence was the centerpiece of any case against Calvin. But investigators knew right from the start that there was a perfectly plausible explanation for the miniscule blood staining found around the entryway to the house—Michele‘s cut to her hand, which was recorded in the notes from attorney Keene that had been turned over by attorney Miller as part of the divorce file.
Even so, the State Police went ahead with a scheme to make the blood evidence more compelling. They “corrected the exposure” on photographs of the blood to lighten its color. See, e.g., Ex. K at 215. Senior Investigator Mulvey claimed this was done simply to “try and see more detail.” Id. at 216. But Investigator Andersen would later testify that the lighter coloration of the blood in the photographs meant that it was “fresher in nature.” Ex. C at 49; Ex. D at 44. The prosecution elicited this testimony from Investigator Andersen despite being aware that the idea of “aging blood“—especially from intentionally altered photographs—was “junk science.” Ex. I at 43.
Investigator Andersen also testified that the pattern of the blood staining captured in the various photographs indicated that it was generated by a blunt force trauma. Ex. C at 42–43; Ex. D at 38. But just like the idea of
Worse still, the photographs of the blood were not taken until after the blood itself had already been manipulated. In violation of forensic protocol, Investigator Andersen swabbed the stain with distilled water for analysis before photographing it. Ex. AY at 6–23; Ex. AW at 8. But protocol called for exactly the opposite—photographs of the unadulterated blood were supposed to be taken first, followed by the swab for later analysis. Id.
Other Explanations. Finally, defendаnts elicited testimony tending to show that Michele had never cut her hand around the Hagadorn Hill Road house despite knowing about the incident recorded in the divorce file. Ex. C at 10 (Barbara Thayer); 22 (Brian Earley); 30 (Nicole Burdick); Ex. D at 12 (Barbara Thayer); 48 (Nicole Burdick); 116–17 (Taylor Harris).
In February of 2007, a second grand jury returned a second indictment after hearing this evidence. Beginning in late May of 2007, the murder case went to a trial. The jury heard roughly this same body of evidence and voted to convict Calvin for murder. But within hours of the verdict, Kevin Tubbs, the local farmer, contacted Calvin‘s attorney to share his story.
This new witness threw a wrench in the prosecution‘s timeline of the supposed murder and cleanup. As the Appellate Division later explained:
It was the People‘s theory at trial that defendant had at least eight hours to kill the victim, clean up the crime scene and dispose of her body before he called the babysitter, who arrived a little after 7:00 a.m. Tubbs‘s testimony, had it been presented at trial and credited by the jury, would have served to undermine the People‘s theory inasmuch as it would have established that a woman matching the victim‘s description was observed in the company of an unidentified male several hours after the time that the People argued that defendant had killed her, leaving defendant less than two hours to commit the crime and dispose of the body.
People v. Harris, 865 N.Y.S.2d 386, 387 (3d Dep‘t 2008).
Calvin moved to set aside the verdict on the basis of this newly discovered evidence; i.e., Farmer Tubbs‘s account of what he saw as he passed by the Harris‘s property that morning. The trial court conducted a hearing, took some evidence, and then grаnted Calvin‘s request. The prosecution appealed, claiming that Farmer Tubbs‘s testimony was “patently incredible.” But the Appellate Division rejected that argument. Harris, 865 N.Y.S.2d at 388.
In July of 2009, a second jury heard substantially the same case, but this time with the benefit of Farmer Tubbs‘s testimony. Ultimately, the second jury also voted to convict. Calvin was sentenced to twenty-five years to life in prison. On direct appeal, a three-to-one majority of the Appellate Division affirmed. People v. Harris, 928 N.Y.S.2d 114 (3d Dep‘t 2011). In rejecting a challenge to the sufficiency of the evidence, the majority‘s opinion walked
For instance, the Appellate Division concluded that the prosecutor had identified a likely motive: Calvin‘s desire to avoid “the expensive, impending appraisal of his business and the trial scheduled for October 2001.” Harris, 928 N.Y.S.2d at 120. But according to Calvin, everyone knew the trial date was just a placeholder and that the parties were on the road to a settlement.
The Appellate Division also concluded that the prosecution had shown Calvin‘s intent; i.e., the murder “was the culmination of a cycle of abusive, controlling behavior that intensified after [Michele] rebuffed his attempts to prevent the divorce.” Harris, 928 N.Y.S.2d at 120. In fact, the majority noted, the “most notable evidence” of Calvin‘s “threatening and intimidating behavior” came from Michele‘s hairdresser, who testified to overhearing the call where Calvin threatened to make her disappear. Id. But according to Calvin, Mr. Wilczynski‘s story did not include that damning thrеat until Senior Investigator Mulvey directed him to spice it up.
The Appellate Division also recounted the “troubling” physical evidence presented by the prosecution; i.e., the “recent stains” of Michele‘s spattered blood that, as Investigator Andersen testified to the jury, were “still moist” and could be considered fresh based on their coloration. Harris, 928 N.Y.S.2d at 123. But according to Calvin, the blood evidence had been manipulated
Notably, the Appellate Division‘s dissenting Justice argued that even this prosecution-friendly retelling of the evidence against Calvin was legally insufficient to support a conviction for murder. Harris, 928 N.Y.S.2d at 126 (Malone, Jr., J., dissenting). The dissenter emphasized that important leads had been ignored by investigators. For instance, despite the fact that Stacy Stewart lacked an alibi and that his truck matched the description offered by Farmer Tubbs, State Police had failed to meaningfully investigate the possibility of Stewart‘s involvement. Id. at 133 (noting the “the only forensic examinations conducted” were done on and around Calvin‘s property).
In fact, the dissent noted, DA Keene had apparently deliberately avoided an inquiry into a second witness who could have corroborated Farmer Tubb‘s story. Harris, 928 N.Y.S.2d at 138–39. That second witness, a man named John Steele, died in October of 2008 without ever being interviewed as part of the case. Id. at 139. Luckily for Calvin, the dissenting Justice granted him leave to further appeal. People v. Harris, 932 N.Y.S.2d 28 (2011).
On October 18, 2012, the Court of Appeals vacated the murder conviсtion and ordered a new trial. People v. Harris, 954 N.Y.3d 679 (2012). In a short, six-to-one opinion, the Court of Appeals held, inter alia, the trial court had erred during voir dire when it failed to “elicit from a prospective juror an
With a re-trial in the works, Calvin was let out on bail. He moved for a change of venue, which was granted. A third trial in a different county with a new prosecutor ended with a hung jury on May 15, 2015. The case was re-tried to the bench about a year later. That trial ended in an acquittal on May 24, 2016. This civil rights action followed.
III. LEGAL STANDARD
The entry of summary judgment is warranted “if 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.”
In assessing whether there are any genuine disputes of material fact, “a court must resolve any ambiguities and draw all inferences from the facts
IV. DISCUSSION
Plaintiff has named as defendants thе County, the DA‘s Office, DA Keene, Senior Investigator Mulvey, Investigator Anderson, Investigator Lester, Ms. Thayer, and two groups of Does. As noted supra, the ten-count complaint asserts
A. Preliminary Issues
As an initial matter, however, plaintiff has abandoned half of these claims. Plaintiff has also abandoned all of his claims against Investigator Lester and both groups of Does. Finally, plaintiff‘s claims against the DA‘s Office are redundant of his claims against the County and/or DA Keene.
In his opposition memorandum, plaintiff defends five claims: (1)
However, plaintiff has not opposed dismissal of his
“Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way.” Frantti v. New York, 414 F. Supp. 3d 257, 291 (N.D.N.Y. 2019) (citation omitted). As the Second Circuit has explained:
Generally, but perhaps not always, a partial response [to a motion for summary judgment] reflects a decision by a party‘s attorney to pursue some claims or defenses and to abandon others. Pleadings often are designed to include all possible claims or defenses, and parties are always free to abandon some of them. Moreover, preparation of a response to a motion for summary judgment is a particularly appropriate time for a non-movant party to decide whether to pursue or
abandon some claims or defenses. Indeed, Rule 56 is known as a highly useful method for narrowing the issues for trial.
Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014).
Upon review, plaintiff has abandoned the undefended claims. In his opposition papers, plaintiff has not mounted a defense against the arguments in favor of dismissal that were advanced by defendants in their opening briefs as to these five counts. Accordingly, plaintiff‘s claims alleging a failure to investigate (Count Three), the suppression of evidence (Count Four), supervisory liability (Count Six), defamation (Count Eight), and emotional distress (Count Ten) have been abandoned and will be dismissed.
2. Investigator Lester
Plaintiff has also named as a defendant “Unidentified Lester, New York State Police Investigator.” Unlike the Does, plaintiff readily ascertained this person‘s identity: Mark Lester. Dkt. No. 20 (joining issue on this defendant‘s behalf). The complaint references this defendant in a single paragraph:
Realizing that it was “now or never” and that “the case wasn‘t getting any better” (as Defendant Investigator Lester was quoted in a 48 Hours Mystery, A Time to Kill segment [link omitted], the Defendants set out to compile a case against Calvin Harris.
Compl. ¶ 33. But it is unclear what, if anything, discovery in this action might have unearthed against Lester. Plaintiff‘s responsive statement of facts does not attribute any particular misconduct to him. Pl.‘s Facts, Dkt.
3. The Does
Third, plaintiff has named two groups of Does: “Unidentified Jane/John Doe #1-10 Tioga County Employees” and “Unidentified Jane/John Doe #11-20 New York State Police Employees.” Dkt. No. 1. Of course, the use of “Doe” as a placeholder for a defendant‘s true identity is appropriate “until the plaintiff has had some opportunity for discovery to learn the identities of responsible officials.” Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998).
However, if the plaintiff has failed to identify and serve the real party in interest before the close of discovery, the placeholder defendant must be dismissed without prejudice. Kenney v. Clay, 172 F. Supp. 3d 628, 642 (N.D.N.Y. 2016); Coward v. Town & Vill. of Harrison, 665 F. Supp. 2d 281, 300 (S.D.N.Y. 2009) (collecting cases). That is the scenario presented in this action. Accordingly, the Does will be dismissed without prejudice.
4. The DA‘s Office
Fourth, plaintiff has named as a defendant the Tioga County District Attorney‘s Office. The capacity of the District Attorney‘s Office to be sued is
Courts have routinely applied this rule to conclude that “the District Attorney‘s Office is not a suable entity.” Woodward v. Office of Dist. Att‘y, 689 F. Supp. 2d 655, 658 (S.D.N.Y. 2010); Ayers v. Suffolk Cnty. Dist. Att‘y Off., 2022 WL 4539580, at *3 (E.D.N.Y. Sept. 28, 2022). Where, as here, a plaintiff names both the municipality and the department as defendants, “courts routinely have dismissed the claims against the department.” In re Dayton, 786 F. Supp. 2d 809, 818 (S.D.N.Y. 2011). Accordingly, the DA‘s Office must be dismissed as a defendant.6
B. Remaining Claims
This leaves for consideration plaintiff‘s claims for (1)
In Counts One and Nine, plaintiff asserts malicious prosecution claims under
i. Timeliness
As an initial matter, the State defendants argue that plaintiff‘s
“Claims under section 1983 are governed by the statute of limitations and tolling rules provided by analogous state law.” Bailey v. City of N.Y., 79 F. Supp. 3d 424, 440 (E.D.N.Y. 2015) (citing Bd. of Regents v. Tomanio, 446 U.S. 478, 483–92 (1980)). “In New York, the statute of limitations applicable to section 1983 claims is three years.” Id. Generally speaking, a
Importantly, however, the question of when this
Measured against this general body of law, the State defendants are right about the first indictment: any
This might seem to be an unusual result. But it rests on binding Second Circuit precedent, which is focused on the technical distinction between the two accusatory instruments rather than society‘s colloquial understanding of a criminal “case.” In Spak v. Phillips, the Second Circuit considered the
Under Connecticut law, a prosecutor may decline to prosecute a case by entering a nolle prosequi. The effect of a nolle is to terminate a particular prosecution against the defendant. However, a nolle prosequi is not the equivalent of a dismissal of a criminal prosecution with prejudice, because jeopardy does not attach. The statute of limitations on the nolled charge continues to run, and the prosecutor may choose to initiate a second prosecution at any time before the limitations period expires. A prosecution can only be reinstituted following a nolle, however, by the filing of a new charging document and a new arrest.
857 F.3d 458, 463 (2d Cir. 2017) (cleaned up).
As relevant here, the prosecutor‘s decision to nolle a criminal charge does not preclude the prosecutor from initiating a second prosecution against the defendant based on the same alleged conduct. Spak, 857 F.3d at 463. The prosecutor just has to obtain a second charging instrument, such as another grand jury indictment. Id.
With that in mind, the filing of a nolle prosequi does not really sound like the kind of “favorable termination” that “conclusively” ends an underlying prosecution for purposes of
As the Circuit explained, “[s]o long as a particular prosecution has been ‘conclusively’ terminated in favor of the accused, such that the underlying indictment or criminal information has been vacated and cannot be revived, then the plaintiff has a justiciable claim for malicious prosecution.” Spak, 857 F.3d at 464. “At that point, all of the issues relevant to the claim—such as malice and lack of probable cause—are ripe for adjudication.” Id.
In the Circuit‘s view, it was irrelevant that a nolle prosequi leaves open the possibility that the
Of course, this case involves a criminal prosecution under the laws of the State of New York, not those of Connecticut. And unlike the fact pattern in Spak, the first indictment in this case was dismissed by the trial court, not by some unilateral act of DA Keene. But the result is the same.
For instance, in Sharp v. County of Putnam, 2019 WL 2250412 (S.D.N.Y. May 24, 2019), the
As relevant here, the district court concluded that the plaintiff‘s
The district court relied on this Circuit‘s decision in Spak to conclude that the plaintiff‘s
The same thing happened with the first indictment in this case. The state court dismissed the 2005 indictment “with leave to the District Attorney to apply for an order permitting resubmission of the charge to another Grand Jury.” Harris, 838 N.Y.S.2d at 353. For purposes of claim accrual, the state court‘s dismissal of the first indictment “terminate[d] a specific prosecution by vacating [the] charging instrument.” Spak, 857 F.3d at 464. Under this rule, it does not matter that DA Keene could have (and quickly did) obtain
Importantly, though, this conclusion about the first indictment does not lead to the dismissal of plaintiff‘s
The criminal prosecution on the second indictment dragged on until plaintiff received a conclusive, “favorable termination“; i.e., the acquittal in 2016. And there is no dispute that plaintiff filed this
To hold otherwise would leave plaintiff without a remedy for official misconduct just because it was causally related to what, in retrospect, could be parsed as multiple or perhaps repetitive constitutional harms giving rise to distinct
But imagine too that, as was the case here, the prosecutor sought and obtained a second indictment by presenting some of the same or similar evidence (along with perhaps some additional evidence) to a second grand jury. Plaintiff could not have brought a
The fact that one or more of the defendants might have engaged in the same or similar misconduct in both “prosecutions” would not be a defense to a
This argument is also rejected. It too runs afoul of our Circuit precedent, which is not concerned with the prosecutor‘s employment status. Instead, we measure accrual on a
Although the New York Court of Appeals vacated plaintiff‘s conviction in 2012, it did not dismiss the indictment against him. Harris, 19 N.Y.3d at 679. Plaintiff was tried twice more on this indictment before he was finally acquitted in 2016. This “favorable termination” is what “conclusively” ended
ii. The Merits
To prevail on a claim for malicious prosecution under
The State defendants argue that plaintiff‘s malicious prosecution claims must be dismissed because plaintiff “cannot establish that any of the State Defendants took an active role in the prosecution.” State Mem. at 15. As they point out, DA Keene testified that “the deсision to present the case against Plaintiff to the grand jury was his alone.” Id. The State defendants also argue that plaintiff cannot rebut the presumption of probable cause that arises from the second indictment. Id. at 16–18. Finally, defendants argue that “the record is devoid of any admissible evidence of malice.” Id. at 19.
Upon review, these arguments must be rejected. “A claim for malicious prosecution against a police officer ‘requires some showing that the defendant distorted the process by which [the] plaintiff was brought to trial.‘” Buari, 530 F. Supp. 3d at 383 (quoting Bailey, 79 F. Supp. 3d at 449). Viewed in the light most favorable to plaintiff, the record evidence is sufficient to establish that one or both of the State defendants initiated the criminal proceedings against plaintiff in the absence of probable cause and with actual malice.
First, plaintiff has identified evidence from which a rational jury could conclude that one or both of the State defendants “initiated” the prosecution against him. “Showing that the police ‘failed to make a complete and full statement of facts to the District Attorney, misrepresented or falsified evidence, withheld evidence or otherwise acted in bad faith’ satisfies the
For instance, there is evidence tending to show that Senior Investigator Mulvey pressured DA Keene into presenting the case to a grand jury after four years of investigation and delays. That conclusion might be supported, in part, by DA Keene‘s apologetic e-mail sent after this conversation. Townes v. City of N.Y., 176 F.3d 138, 147 (2d Cir. 1999) (holding this element can be satisfied with evidence the police “misled or pressured” the prosecutor).
In addition, therе is evidence tending to show that Investigator Andersen, possibly with the involvement of Senior Investigator Mulvey, fabricated material evidence related to the blood discovered near the entryway to the house. There is also some evidence tending to show that Senior Investigator Mulvey instigated or possibly coerced witnesses into changing their stories in material ways. This misrepresented and/or falsified evidence was forwarded to DA Keene and used in the prosecution.
Second, plaintiff has identified evidence from which a jury could conclude that the State defendants acted in the absence of probable cause and with actual malice. “Probable cause to prosecute exists when there are such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff is guilty.” Bailey, 79 F. Supp. 3d at 450 (cleaned up). As relevant here, “[a] grand jury indictment creates a presumption of probable cause that
Viewed in the light most favorable to plaintiff, a rational jury could find that plaintiff has rebutted this presumption. Plaintiff has identified evidence tending to show that Investigator Andersen, with the involvement of Senior Investigator Mulvey, generated false or misleading forensic evidence related to the blood spatter found in the house and staged misleading photographs of this forensic evidence. This evidence was shared with DA Keene, presented to the grand jury, and used at trial. There is also evidence tending to show that the potentially exculpatory information related to the blood evidence; i.e., attorney Keene‘s handwritten notes about Michele cutting her hand on some ice, were withheld or suppressed.
For purposes of summary judgment, plaintiff‘s showing related to the misleading or fabricated evidence is also sufficient to create a fact question on actual malice, which is established when “the defendant . . . commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.” Buari, 530 F. Supp. 3d at 385 (citation omitted). As relevant here, “[a] lack of probable cause generally
b. County Defendants
The County defendants argue that plaintiff‘s malicious prosecution claims must be dismissed because DA Keene is entitled to absolute prosecutorial immunity. County Mem. at 11–13. Alternatively, the County defendants argue that plaintiff did not suffer a liberty restraint after 2012 because he was released from prison after the New York Court of Appeals vacated his conviction. Id. at 27. In opposition, plaintiff acknowledges the broad scope of prosecutorial immunity but argues the doctrine does not shield DA Keene from certain pre-indictment “investigative” conduct. Pl.‘s Opp‘n at 59–63.
“The doctrine of absolute immunity applies broadly to shield a prosecutor from liability for money damages (but not injunctive relief) in a
This immunity “attaches to prosecutorial functions that are intimately associated with initiating or presenting the State‘s case.” Flagler v. Trainor, 663 F.3d 543, 547 (2d Cir. 2011). The doctrine covers “virtually all acts, regardless of motivation, associated with [the prosecutor‘s] function as an advocate.” Anilao, 27 F.4th at 864 (citing Hill v. City of N.Y., 45 F.3d 653, 661 (2d Cir. 1995)). “For example, a prosecutor enjoys absolute immunity when determining which offenses to charge, initiating a prosecution, presenting a case to a grand jury, and preparing for trial.” Id.
Indeed, this grant of immunity even shields improper advocacy activities, such as “the falsification of evidence and the coercion of witnesses,” Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981), “conspiring to present false evidence at a criminal trial,” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994), “the knowing use of perjured testimony,” Imbler, 424 U.S. at 431 n.34, “the deliberate withholding of exculpatory information,” id., and the making or eliciting of “false or defamatory statements in judicial proceedings,” Burns v. Reed, 500 U.S. 478, 490 (1991).
“In determining whether a prosecutor is entitled to absolute immunity, courts apply a ‘functional’ test, ‘looking to the function being performed rather than to the office or identity of the defendant.” Buari, 530 F. Supp. 3d
Importantly, however, “absolute immunity does not thwart every claim against prosecutors.” Buari, 530 F. Supp. 3d at 379. “Under the functional test, ‘absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in other tasks, say, investigative or administrative tasks.‘” Id. (quoting Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009)). “Investigative tasks beyond the scope of absolute immunity are those ‘normally performed by a detective or police officer.‘” Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)).10
Measured against this body of law, DA Keene is absolutely immune from a significant amount of the alleged misconduct identified in plaintiff‘s version of events. This would include things such as DA Keene‘s role as an advocate
However, plaintiff emphasizes that the “investigative phase” of the case against him dragged on for four years before DA Keene even attempted to seek the first indictment. During that prolonged period of time, DA Keene traveled with State Police to Albany, where they presented their case to a Forensic Unit “to evaluate the need for further investigations.” Pl.‘s Opp‘n at 61. DA Keene also traveled with Senior Investigator Mulvey to Boston, where they interviewed Calvin‘s ex-wife. Id.
In addition, plaintiff points out that DA Keene testified that he “instigated witness interviews independent from police prompting,” and that he “had a general practice of speaking with witnеsses before they testified in the grand jury.” Pl.‘s Opp‘n at 61–62. Plaintiff also argues there is evidence tending to show that DA Keene was a participant in the manipulation or fabrication of material blood evidence and of certain key witness testimony. Id. at 37.
“There is no bright line for absolute immunity based on the stage of a criminal proceeding.” Buari, 530 F. Supp. 3d at 379. As a general matter, though, the doctrine applies “where some type of formal proceeding had been commenced or was being commenced by the conduct at issue.” Id. (citation omitted). However, the doctrine is generally inapplicable “where formal
[t]here is a difference between the advocate‘s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective‘s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspected be arrested, on the other hand.
Viewed in the light most favorable to plaintiff, prosecutorial immunity would not attach to DA Keene‘s pre-indictment investigative activity because it occurred before the existence of probable cause. Generally speaking, “[t]he investigative acts that are entitled to only qualified immunity are those undertaken in the phase of law enforcement that involves the gathering and piecing together of evidence for indications of criminal activities and determination of the perpetrators.” Giraldo, 694 F.3d at 166 (citing Smith, 694 F.3d at 166).
As discussed in more detail infra, DA Keene‘s alleged miscоnduct during the four-year pre-indictment investigative phase gives rise to jury questions on plaintiff‘s
It is worth recognizing that in the ordinary case it would be impossible to satisfy the “initiation” element of a malicious prosecution claim against the prosecutor. After all, “a prosecutor unquestionably acts as an advocate—and therefore receives absolute immunity—when she initiates and pursues a criminal prosecution.” D‘Alessandro v. City of N.Y., 713 F. App‘x 1, 5 (2d Cir. 2017) (summary order); see also Shmueli v. City of N.Y., 424 F.3d 231, 236–38 (2d Cir. 2005) (finding prosecutor absolutely immune from claim for malicious prosecution “based solely on events following . . . arraignment“).
However, courts have also held that the “initiation” element of a malicious prosecution claim may be satisfied if a defendant fabricates evidence that is material to the probable cause determination. McDaniel v. City of N.Y., 585 F. Supp. 3d 503, 516–17 (S.D.N.Y. 2022) (collecting cases). Accordingly, obtaining false witness statements and participating in the fabrication of material physical evidence for the purpose of obtaining probable cause would be sufficient to sustain this claim; i.e., a jury could conclude that DA Keene, acting in a pre-indictment investigative capacity, “initiated” the proceeding against plaintiff in the absence of probable cause and with actual malice. Cf. Milstein v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001) (rejecting immunity defense where prosecutor allegedly fabricated evidence material to probable
As a final matter, the County defendants argue that plaintiff did not suffer a sufficient liberty restraint because he was released from prison after the New York Court of Appeals vacated his conviction in 2012. But plaintiff was still under indictment, which required him to attend court proceedings and obey the conditions of his release. Those obligations are enough to satisfy this element for purposes of
2. Fabrication of Evidence (Count Two)
In Count Two, plaintiff asserts a
The State defendants argue that this claim must be dismissed because plaintiff has not identified any affirmative evidence to support his theory of harm. State Mem. at 19–22. Even assuming otherwise, the State defendants argue the existence of probable cause independent of any allegedly fabricated evidence would defeat this claim. Id. at 22. In opposition, plaintiff responds that “the record evidence in this case creates an inference of several different instances of fabrication by the State defendants.” Pl.‘s Opp‘n at 49.
In particular, plaintiff points to: (1) “the adulteration of blood before it was photographed, whose shape was then relied upon to indicate blunt force“; (2) “the fabrication of photographs themselves, which were manipulated to enhance the redness of blood to make it appear new“; and (3) “the tampering of several witnesses, whose accounts were then relied upon in the grand jury and at trial.” Pl.‘s Opp‘n at 49.
Upon review, the State defendants’ motion for summary judgment on this claim must be denied. As relevant here, liability on a fabricated-evidence claim hinges on the “knowing creation of false or misleading evidence by a government officer acting in an investigative capacity.” Morse v. Fusto, 804 F.3d 538, 541 (2d Cir. 2015). Importantly, “probable cause is not a defense to a fair trial claim based on the fabrication of evidence.” Frost v. N.Y. City Police Dep‘t, 980 F.3d 231, 248 (2d Cir. 2020).
Without a murder weapon, a body, or an eyewitness, the forensic and photographic evidence about the blood as well as the witness testimony used to establish a timeline, motive, and intent were all crucial to the State‘s case and were therefore highly likely to influence a jury‘s verdict.11 As plaintiff
ii. County Defendants
The County defendants argue that this claim is also barred by absolute immunity because it involves DA Keene‘s conduct as an advocate during the criminal proceedings. See County Mem. at 11–13. But as explained supra, to the extent that evidence in the record would permit a fact-finder to conclude that DA Keene was acting in a pre-indictment investigative capacity for the first four years, he is shielded only by qualified immunity.
Viewing that record evidence in the light most favorable to plaintiff, a reasonable jury could conclude that DA Keene, acting in a pre-indictment investigative capacity, participated in the fabrication of certain material evidence, including the manipulation of the blood evidence and the elicitation of misleading or false testimony from certain witnesses. As the Supreme Court has observed, “[a] prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively
Indeed, the Second Circuit has repeatedly concluded that a prosecutor can be held liable for the kind of misconduct claimed here. Morse v. Fusto, 804 F.3d 538, 547–48 (2d Cir. 2015) (affirming verdict against prosecutors who “knowingly created false or misleading” evidence that was later “determined to be material to the grand jury‘s decision to indict“); Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000) (reversing trial court‘s application of qualified immunity where the complaint alleged that prosecutor fabricated evidence while acting in an investigative capacity). Accordingly, the County defendants’ motion for summary judgment on this claim will be denied.
iii. Ms. Thayer
Ms. Thayer argues this claim must be dismissed because her conduct did not amount to “state action,” a prerequisite to any civil rights claim brought under
As the Supreme Court has recognized, “there is no single test to identify state actions and state actors.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass‘n, 531 U.S. 288, 294 (2001). Although a host of factors can bear on this question, three main tests have emerged:
For purposes of section 1983, the actions of a nominally private entity are attributable to the state when: (1) the entity acts pursuant to the “coercive power” of the state or is “controlled” by the state (“the compulsion test“); (2) when the state provides “significant encouragement” to the entity, the entity is a “willful participant in joint activity with the state,” or the entity‘s functions are “entwined” with state policies (“the joint action test” or “close nexus test“); or (3) when the entity “has been delegated a public function by the state (“the public function test“).
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (cleaned up).
Measured against this body of law, Ms. Thayer‘s motion for summary judgment on this claim must be denied. “The touchstone of joint action with
3. Conspiracy (Count Five)
In Count Five, plaintiff asserts a
“To prove a
A conspiracy is the kind of secretive operation that “may have to be proven by circumstantial, rather than direct, evidence.” Moroughan v. Cnty. of Suffolk, 514 F. Supp. 3d 479, 529 (E.D.N.Y. 2021). However, “[t]o survive a motion for summary judgment, a plaintiff‘s evidence of a
Viewed in the light most favorable to plaintiff, a reasonable jury could conclude that Senior Investigator Mulvey, DA Keene, and/or Ms. Thayer conspired to fabricate material evidence intended to deprive plaintiff of his liberty. As before, plaintiff correctly notes that defendants’ arguments to the contrary rely on the kind of credibility determinations that are forbidden on summary judgment. Accordingly, defendants’ motions for summary judgment on this claim will be denied.
4. Municipal Liability (Count Seven)
In Count Seven, plaintiff asserts a
In Monell v. Dep‘t of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court held that a municipality can be liable under
“[T]o establish municipal liability under
Measured against this body of law, the County defendants’ motion for summary judgment on this claim must be denied. “It is well-established that Monell liability attaches ‘where a single act is taken by a municipal employee who, as a matter of [s]tate law, has final policymaking authority in the areas in which the action was taken.‘” Galgano v. Cnty. of Putnam, 2020 WL 3618512, at *11 (S.D.N.Y. July 2, 2020) (quoting Newton v. City of N.Y., 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008)). As relevant here, the Second Circuit has held that “the actions of county prosecutors in New York are generally controlled by municipal policymakers for purposes of Monell, with a narrow
Viewed in the light most favorable to plaintiff, there is sufficient evidence in the record from which a rational jury could conclude that DA Keene, the final policymaker for Tioga County, partiсipated in or directed the fabrication or manipulation of material blood evidence and engaged in or led an effort to coerce key witnesses into modifying or falsifying their stories prior to giving their testimony at grand jury or at trial. Accordingly, the County defendants’ motion for summary judgment on this claim will be denied.
C. Qualified Immunity
As a final matter, the State defendants argue they are entitled to qualified immunity from plaintiff‘s
The doctrine of “[q]ualified immunity protects government officials from civil damages liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person
To help clarify the qualified immunity analysis, the Second Circuit has sometimes broken it into three discrete inquiries: (1) whether the plaintiff has established that the defendant violated a constitutional right; (2) if so, whether that right was “clearly established“; and (3) even if that right was “clearly established,” whether it was still “objectively reasonable” for the officer to believe his conduct was lawful. Gonzalez v. Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (citing Taravalla v. Town of Wolcott, 599 F.3d 129, 133–34 (2d Cir. 2010)).
Upon review, the State defendants’ motion for summary judgment on the basis of qualified immunity must be denied as premature. As plaintiff notes, the constitutional rights at stake are “clearly established.” See, e.g., Kinzer v. Jackson, 316 F.3d 139, 143 (2d Cir. 2003) (malicious prosecution); Zahrey, 221 F.3d at 355 (fabricated-evidence). Right now, however, there are a series of live disputes over whether one or more of the defendants engaged in conduct that amounted to the violation of one or more of these constitutional rights. Accordingly, summary judgment on this ground must be denied.
V. CONCLUSION
Although the defendants insist that they acted in good faith, a jury could conclude that one or more of them chose to burnish a relatively weak murder case by fabricating material evidence used to obtain probable cause.
Therefore, it is
ORDERED that
- The State defendants’ motion for summary judgment is GRANTED in part and DENIED in part;
- The County defendants’ motion for summary judgment is GRANTED in part and DENIED in part;
- Defendant Barbara Thayer‘s motion for summary judgment is GRANTED in part and DENIED in part;
- Plaintiff‘s
§ 1983 claims alleging a failure to investigate (Count Three), the suppression of evidence (Count Four), supervisory liability (Count Six), and stigma-plus defamation (Count Eight) are DISMISSED; - Plaintiff‘s claim for emotional distress (Count Ten) is DISMISSED;
Defendant Investigator Lester is DISMISSED as a defendant; - The Jane/John Does are DISMISSED without prejudice;
- Tioga County District Attorney‘s Office is DISMISSED as a defendant;
- Plaintiff‘s claims for malicious prosecution under
§ 1983 and state law (Counts One and Nine) against Senior Investigator Mulvey, Investigator Andersen, and DA Keene REMAIN for trial; - Plaintiff‘s
§ 1983 fabrication of evidence claim (Count Two) against Senior Investigator Mulvey, Investigator Andersen, DA Keene, and Ms. Thayer REMAIN for trial; - Plaintiff‘s
§ 1983 conspiracy claim (Count Five) against Senior Investigator Mulvey, DA Keene, and Ms. Thаyer REMAIN for trial; - Plaintiff‘s
§ 1983 municipal liability claim (Count Seven) against the County REMAINS for trial.
The Clerk of the Court is directed to terminate the pending motions and amend the caption accordingly.
IT IS SO ORDERED.
David N. Hurd
U.S. District Judge
Dated: March 23, 2023
Utica, New York.