MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
This case involves claims for false arrest and malicious prosecution by Plaintiff Anthony Battisti ("Plaintiff") against Defendants Assistant District Attorney Michael Canty ("ADA Canty"), Assistant District Attorney Carolyn Kelly ("ADA Kelly"), Detective Jason Gaertner ("Detective Gaertner"), Sergeant Robert Galgano ("Sergeant Galgano") (collectively the "County Defendants"), and Timothy Gersbeck ("Gersbeck"). Currently pending before the Court is the County Defendants' motion for summary judgment. (Defs.' Mot., Docket Entry 52.) For the following reasons, the County Defendants' motion is GRANTED.
Factual Background 3
The Assault and Preliminary Investigation
On January 23, 2009, Plaintiff's ex-wife, Patricia Battisti, was assaulted outside her home in Franklin Square, New York. (Defs.' 56.1 Stmt., Docket Entry 52-2, ¶¶ 35, 38, 51.) After the attack, Detective Gaertner, a detective with the Nassau County Police Department, arrived at the scene. (Defs.' 56.1 Stmt. ¶ 35.) He learned that the suspected assailant, Gersbeck, had been apprehended by two men after he fled the scene of the assault. (Defs.' 56.1 Stmt. ¶ 36.) At least two people at the scene, Brian Dashner and Sergeant Joseph Pizzimenti, heard Gersbeck say something to the effect of "You should go back to the house before someone finishes the job" and "I was hired by Tony." (Defs.' 56.1 Stmt. ¶ 37; Supporting Dep., Defs.' Ex. C, Docket Entry 52-6, at 2; Pizzimenti Crim. Tr., Defs.' Ex. PPP, Docket Entry 52-71, 1226:10-20.)
After Gersbeck was arrested, Detective Gaertner searched the area and directed officers to call the Crime Scene Unit to gather evidence. (Defs.' 56.1 Stmt. ¶¶ 40-42.) Detective Gaertner discovered two blue latex gloves on the path Gersbeck took to flee the scene. (Defs.' 56.1 Stmt. ¶ 43.) Detective Gaertner also instructed that a black Jeep belonging to Gersbeck be impounded to preserve any evidence inside. (Defs.' 56.1 Stmt. ¶ 45.) At some point during the preliminary stages of the investigation, Sergeant Galgano arrived, although the parties dispute whether he provided any direction to Detective Gaertner or others regarding the conduct of the investigation. (Defs.' 56.1 Stmt. ¶ 44; Pl.'s 56.1 Counterstmt., Docket Entry 54-1, ¶ 44.)
Next, Detective Gaertner, Sergeant Galgano, and another officer went to Winthrop Hospital to speak to Ms. Battisti and photograph a wound she suffered to her neck. (Defs.' 56.1 Stmt. ¶ 46.) Ms. Battisti stated that she was opening the front door of her home after a shopping trip when "an unknown male put his hand around her mouth, stabbed her in the back of her neck with a sharp instrument, told her that `if you tell anyone, I'll kill your son and daughter,' pushed her to the ground and ran away." (Defs.' 56.1 Stmt. ¶ 47.) Afterward, she identified the individual as Timothy Gersbeck. (Defs.' 56.1 Stmt. ¶ 47.) When they returned to the scene, "a sharpened screwdriver was found inside a pair of white latex gloves" near where Gersbeck was apprehended, which was later determined to be the weapon used in the attack. (Defs.' 56.1 Stmt. ¶¶ 48-49.)
Gersbeck's Initial Statements
Gersbeck was taken to the police precinct for questioning and gave a statement to Detective Ronald Rispoli ("Detective Rispoli"). (Defs.' 56.1 Stmt. ¶¶ 51-52.) Gersbeck admitted that he "put stuff out of order," and the statement went through between six and eight drafts. (Pl.'s 56.1 Counterstmt. ¶ 52; Gersbeck Dep. Tr., Defs.' Ex. CCC, Docket Entry 52-58, 19:20-20:3.) The County Defendants allege that several drafts were prepared because "Gersbeck kept talking, told Rispoli things out of order/context, left some information out, and kept remembering other details." (Defs.' 56.1 Stmt. ¶ 53.) The parties dispute whether Gersbeck read the final statement before signing it. (Defs.' 56.1 Stmt. ¶ 52; Pl.'s 56.1 Counterstmt. ¶ 52.) Afterward, Detective Gaertner reviewed the statement and spoke with Gersbeck as part of the investigation, including to obtain Gersbeck's consent to search his impounded Jeep and cell phone. (Defs.' 56.1 Stmt. ¶¶ 54, 56.) During this time, Plaintiff's attorney called Sergeant Galgano and asked if Plaintiff should report to the precinct, and he responded that it was not necessary for several reasons, including because "the investigation was in the preliminary stages . . . and there was not enough at that point to look at Plaintiff as a suspect or take him into custody." (Defs.' 56.1 Stmt. ¶ 58.)
On January 24, 2009 at approximately 4:00 a.m., Detective Rispoli and Detective Gaertner took Gersbeck to the Nassau County District Attorney's Office ("NCDAO") for a videotaped statement. (Defs.' 56.1 Stmt. ¶ 59.) The parties agree that at this point, Gersbeck had "been up for about twenty-four hours with no sleep and was confused and nervous." (Defs.' 56.1 Stmt. ¶ 60; Pl.'s 56.1 Counterstmt. ¶ 60.) Gersbeck said that he met Plaintiff in 2002 or 2003 when they worked together at a container company and they "became friends because they both were interested in racing stock cars."
During 2008 and 2009, he said that Plaintiff mentioned killing Ms. Battisti approximately fifty times, and on a few occasions, discussed methods of killing Ms. Battisti at either Plaintiff's mother's house or the Franklin Square Fire Department firehouse. (Defs.' 56.1 Stmt. ¶¶ 72, 74, 75.) Gersbeck stated that, on one occasion, Plaintiff told him he had a shotgun Gersbeck could use to kill Ms. Battisti. (Defs.' 56.1 Stmt. ¶ 76.) Gersbeck said that Plaintiff offered him $5,000 to kill Ms. Battisti, and that in March 2008, Plaintiff made several payments to him in cash totaling $2,500 as partial payment for killing her. (Defs.' 56.1 Stmt. ¶¶ 79-80.) Gersbeck said that Plaintiff received the money from his cousin, the owner of Royal Carting Company. (Defs.' Stmt. ¶ 80.) After he received the money, Gersbeck stated that Plaintiff began harassing him to kill Ms. Battisti, but Plaintiff was "stalling and just wanted to give the money back." (Defs.' 56.1 Stmt. ¶ 82.) When he tried to give it back, he said that Plaintiff would not let him, and told him that he would get Gersbeck's warrants and tickets reinstated. (Defs.' 56.1 Stmt. ¶¶ 83-84.)
Later, in September 2008, Gersbeck said Plaintiff "got really serious about killing [her]" after Ms. Battisti sought reimbursement for $4,000 to $5,000 in medical expenses for the couple's children. (Defs.' 56.1 Stmt. ¶¶ 85-86.) Around Christmas, Gersbeck saw Ms. Battisti at a gas station in her neighborhood, and he followed her home with the intention of killing her. (Defs.' 56.1 Stmt. ¶ 90.) However, he saw an ambulance in the neighborhood and noticed that the volunteer fire department (including Plaintiff) was arriving on the scene. (Defs.' 56.1 Stmt. ¶¶ 90-91.) Gersbeck said that he told Plaintiff he was going to kill Ms. Battisti, but Plaintiff told him to leave and asked him to meet at the firehouse later; when they met, Plaintiff allegedly made an additional $300 payment for the murder. (Defs.' 56.1 Stmt. ¶ 91.)
Gersbeck said that about a week and a half before the attack, he met Plaintiff at the fire house to discuss killing Ms. Battisti, and Plaintiff indicated that he wanted to "get it done." (Defs.' 56.1 Stmt. ¶¶ 92-93; Gersbeck Video Stmt., Defs.' Ex. H, Docket Entry 52-11, at 7.) Gersbeck also mentioned that he saw a "blonde female police officer" at the firehouse during the meeting with Plaintiff. (Defs.' 56.1 Stmt. ¶ 113.)
On January 23, 2009, Gersbeck said that Plaintiff called him and asked if they were "on" for that day. (Defs.' 56.1 Stmt. ¶ 95.) When Gersbeck asked what he meant, he said that Plaintiff stated that he was going upstate with his children and Ms. Battisti would be home alone. (Defs.' 56.1 Stmt. ¶ 95.) Later that afternoon, Gersbeck said that Plaintiff called him to tell him to wait until after 7:00 p.m. to go to Ms. Battisti's home because he was leaving later than expected to travel upstate. (Defs.' 56.1 Stmt. ¶ 96.) Gersbeck told Plaintiff he needed money for gas, and Plaintiff told him he would leave $20 outside his mother's house, which according to Gersbeck, he never retrieved. (Defs.' 56.1 Stmt. ¶ 97.)
Gersbeck stated that he arrived at Ms. Battisti's home around 5:45 p.m. and waited for her to come home. (Defs.' 56.1 Stmt. ¶¶ 98-99.) When she arrived, Gersbeck put on a pair of blue surgical gloves and approached her while she was walking to the front door. (Defs.' 56.1 Stmt. ¶¶ 101-02.) After he came up behind her, he "accidentally stepped on her leg and caused her to fall into the front door" and after the front door opened, she fell onto the floor.
Gersbeck was charged and arraigned for Attempted Murder in the Second Degree, Criminal Possession of a Weapon in the Third Degree, and Petit Larceny. (Defs.' 56.1 Stmt. ¶ 114.)
The Investigation and Indictments
Detective Gaertner attempted to verify the information provided by Gersbeck. Along with Detective Galgano and Detective Gregory Celantano ("Detective Celantano"), he went to Plaintiff's mother's home and discovered "a $20 bill under a Belgium block at the top of the driveway," which was photographed and taken into evidence. (Defs.' 56.1 Stmt. ¶ 116.) Detective Gaertner confirmed that the owners of Royal Carting Company, from whom Plaintiff allegedly obtained Gersbeck's fee, were Plaintiff's relatives. (Defs.' 56.1 Stmt. ¶ 117.) He learned that Plaintiff visited Gersbeck while he was incarcerated at NCCC in 2007. (Defs.' 56.1 Stmt. ¶ 119.) Further, video footage corroborated that Plaintiff and Gersbeck met on January 16, 2009 at the fire house and a female police officer was there as well. (Defs.' 56.1 Stmt. ¶ 120.) Records also showed that an EZ Pass registered to Plaintiff crossed the Throgs Neck Bridge into the Bronx at approximately 7:04 p.m. the day of the attack and that Plaintiff had withdrawn $7,000 from his bank account in February 2008, a month before Gersbeck claimed to have received $2,500 from Plaintiff to kill Ms. Battisti. (Defs.' 56.1 Stmt. ¶¶ 80, 126, 128; Pl.'s 56.1 Counterstmt. ¶ 126.) The parties dispute whether either the NCDAO or Detective Gaertner confirmed that Gersbeck had previous traffic tickets which he alleged Plaintiff threatened to reinstate if he did not kill Ms. Battisti. (Defs.' 56.1 Stmt. ¶¶ 69, 143; Pl.'s Counterstmt. ¶ 143.)
Detective Gaertner became aware that Family Court proceedings between Plaintiff and Ms. Battisti were initiated during the fall of 2008, which was consistent with Gersbeck's earlier statement that in September 2008, Plaintiff "got really serious about killing [her]." (Defs.' 56.1 Stmt. ¶¶ 85, 147; Pl.'s 56.1 Counterstmt. ¶ 147; Gaertner Dep. Tr., Defs.' Ex. DDD, Docket Entry 52-59, 135:16-136:2.) The NCDAO obtained cell phone records and cell site data which confirmed that Gersbeck and Plaintiff had communicated on the day of the attack around the times Gersbeck indicated. (Defs.' 56.1 Stmt. ¶¶ 150-51.) Statements were obtained from Franklin Square volunteer firefighters regarding conversations with Plaintiff the night of the attack, including a statement indicating that Plaintiff told one individual that he was upstate, when according to cell site data, he was in Queens, and another statement indicating that after that call, he said "I am home with the kids what do you mean" even though he already knew about the incident at his ex-wife's home. (Defs.' 56.1 Stmt. ¶¶ 206-07.) Records from the Franklin Square Fire House also confirmed that the Fire Department (and Plaintiff) responded to a call on Ms. Battisti's street on December 15, 2008, consistent with Gersbeck's statement that he followed Ms. Battisti home with the intention of killing her before Christmas, but left after speaking to Plaintiff. (Defs.' 56.1 Stmt. ¶¶ 90-91, 162.)
Detective Gaertner also learned additional information about the nature of Ms. Battisti and Plaintiff's relationship after he accompanied Ms. Battisti to Family Court to file a family offense petition. (Defs.' 56.1 Stmt. ¶ 121.) The petition stated that Plaintiff allegedly stalked Ms. Battisti and contacted her regularly after she requested that he stop. (Defs.' 56.1 Stmt. ¶ 121; Family Offense Pet., Defs.' Ex. N, Docket Entry 52-17, at 1.) It also stated that Plaintiff had threatened to kill her in 2003 and told her he would be able to get away with it. (Family Offense Pet. at 3-4.) Thereafter, Ms. Battisti filed for an Order of Protection. (Family Offense Pet. at 3-4.) Detective Gaertner and NCDAO subsequently received a copy of Plaintiff's Internal Affairs Bureau ("IAB") file which also contained information about allegations of domestic violence. (Defs.' 56.1 Stmt. ¶ 127.)
In February 2009, the NCDAO entered into a debriefing agreement with Gersbeck and conducted several debriefing sessions with him. (Defs.' 56.1 Stmt. ¶ 133.) Detective Gaertner was notified that the NCDAO was taking over the investigation and, afterward, periodically assisted NCDAO with its investigation. (Defs.' 56.1 Stmt. ¶¶ 135-36; Gaertner Dep. Tr. 61:2-10.) At one of the debriefing sessions, Gersbeck learned that Ms. Battisti had sustained an injury to the back of her neck during the attack. At that point, Gersbeck contradicted his earlier statements and said that he had the screwdriver in his hand when he approached her and that he tried to stab her. (Defs.' 56.1 Stmt. ¶ 138; Gaertner Dep. Tr. 82:5-88:12; Gersbeck Admin. Tr., Defs.' Ex. WWW, Docket Entry 52-78, 228:8-16.) At another session, Gersbeck for the first time mentioned a video of his family which Plaintiff used to threaten him and intimidate him. (Defs.' 56.1 Stmt. ¶ 139; Gersbeck Dep. Tr. 104:20-106:9.) Gersbeck stated that Plaintiff showed him the video, and he was scared that Plaintiff would harm his family if he did not kill Ms. Battisti.
The NCDAO obtained DNA samples from Plaintiff and Gersbeck, and the medical examiner detected Gersbeck's DNA and DNA from an unknown individual on the white gloves that held the screwdriver used in the attack.
On February 24, 2009, Gersbeck wrote a letter to his girlfriend, Deanna Kani (the "Belle Letter"). (Defs.' 56.1 Stmt. ¶ 156.) In the letter, Gersbeck discussed several interactions with Plaintiff, and stated: (1) "But back to the Anthony stuff I will start with the money[.] I sold [h]im one of my race motors and [h]e still owes me $5200.00 bucks[.] So now that Im [sic] working with the system they said that money is money for hire the way it went down but [h]e actually owes me more then [sic] that and I'm still out of the money and the motor."; (2) "He showed me two different tapes of [h]im following Melissa and the girls when she was going back and forth from school and [h]er job[.] Followed [h]er to Miller Ale House a few times and which not like I cared about [h]er but still didn't want anything to [h]appen to [h]er [b]ecause of me."; and (3) "[I]t sounds like it was nothing but the two times [h]e pulled his gun on me definetly [sic] made it very serious . . . so I really didn't know what to do anymore and [h]ad no where to turn. . . ." (Belle Ltr., Defs.' Ex. GG, Docket Entry 52-36, at 1.)
The parties dispute when the police department and the NCDAO became aware of the content of the Belle Letter. Ms. Kani testified at Gersbeck's trial that she sent a copy of the letter to Detective Gaertner or his partner in April 2009. (Defs.' 56.1 Stmt. ¶ 156; Pl.'s 56.1 Counterstmt. ¶ 156; Kani Crim. Tr., Defs.' Ex. KKK, Docket Entry 52-66, 1571:8-16, 1575:12-20.) At his deposition, Detective Gaertner testified that he learned in February or March 2009 that Gersbeck was writing to his girlfriend from ADA St. Bernard, but he did not read the letter at that time. (Defs.' 56.1 Stmt. ¶ 158; Gaertner Dep. Tr. 93:18-94:24.) ADA Canty, who took over the investigation from ADA St. Bernard in June 2009, testified that he did not read the letter until December 2009 when he was preparing the case for trial.
The Nassau County Police Department's Forensic Evidence Bureau analyzed the screwdriver used by Gersbeck and "determined that it was a Craftsman #2 screwdriver, had toolmarks on the base consistent with a gripping tool with opposing jaws, [and] had marks on the tip consistent with a grinding or abrasive tool. . . ." (Defs.' 56.1 Stmt. ¶ 161.) Afterward, Detective Gaertner and Sergeant Galgano executed a search warrant on Plaintiff's garage and collected, among other items, "26 screwdrivers, 24 gripping devices, 1 pair of pliers, 2 files, a bench vice, [and] a free standing grinder." (Defs.' 56.1 Stmt. ¶ 170.) Subsequent analysis revealed that the marks on the screwdriver could not be matched to any tools seized from Plaintiff's garage. (Defs.' 56.1 Stmt. ¶ 174.) Specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") concluded that "the sharpened tip of the screwdriver was made with an abrading type tool . . . such as a grinding wheel, disc or belt that left no toolmarks of value for comparison," however "the impressions on the screwdriver handle were not made by the tools seized at Plaintiff's garage." (Defs.' 56.1 Stmt. ¶ 212.) The NCDAO later received records indicating that Plaintiff purchased a set of Craftsman screwdrivers approximately ten months before Ms. Battisti was attacked. (Defs.' 56.1 Stmt. ¶ 208.)
On August 3, 2009, Gersbeck was indicted for Attempted Murder in the First Degree, Conspiracy in the Second Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. (Defs.' 56.1 Stmt. ¶ 176.) After the indictment, ADA Canty met with Gersbeck and asked him about the inconsistencies between his statements; Gersbeck responded that he was "confused" and "made some mistakes" but during his deposition, he said "the testimony that [he] gave later to ADA Canty was more accurate." (Defs.' 56.1 Stmt. ¶¶ 178-79; Gersbeck Dep. Tr. 130:18-132:7.) During these sessions (and contrary to some of his previous statements), Gersbeck said that he did use the sharpened screwdriver to stab Ms. Battisti and again mentioned the threatening video of his family. (Defs.' 56.1 Stmt. ¶¶ 180-81.) Thereafter, Gersbeck signed a cooperation agreement for his testimony against Plaintiff, and in exchange, the NCDAO agreed to ask the judge to sentence Gersbeck to eight years. (Defs.' 56.1 Stmt. ¶ 182.)
On September 3, 2009, Plaintiff was indicted on charges of Attempted Murder in the First Degree, Conspiracy in the Second Degree, Assault in the Second Degree, and Criminal Possession of a Weapon in the Fourth Degree. (Defs.' 56.1 Stmt. ¶ 190.) A warrant was issued for his arrest, and Detective Gaertner and Sergeant Galgano participated in the arrest. (Defs.' 56.1 Stmt. ¶ 191.) While in the squad car, the County Defendants allege that Plaintiff stated "I threw away my life. I threw away 17 and a half years," and Detective Gaertner wrote the statement down immediately. (Defs.' 56.1 Stmt. ¶¶ 195-96; Gaertner Dep. Tr. at 113:13-15; Defs.' Ex. SS, Docket Entry 52-48, at 1.) Sergeant Galgano recalled that he said "I wasted 17 and a half years of my life." (Pl.'s 56.1 Counterstmt. ¶ 195; Galgano Dep. Tr., Defs.' Ex. EEE, Docket Entry 52-60, 13:15-21.) Plaintiff alleges that he actually said "I can't believe this is the way they treat me after seventeen and a half years on this job." (Pl.'s 56.1 Counterstmt. ¶ 195; Battisti Dep. Tr., Ex. VVV, Docket Entry 52-77, 235:5-8.) Plaintiff denied making this statement in subsequent proceedings, and it was later confirmed that Plaintiff had been a NYPD officer for approximately seventeen and a half years at that time. (Pl.'s 56.1 Counterstmt. ¶¶ 195, 197.)
Trial Preparation and Trial
At some point between Plaintiff's indictment and trial and after a request from Plaintiff's criminal counsel, Gersbeck's vehicle was searched and a grinder was located in the trunk of the vehicle. (Defs.' 56.1 Stmt. ¶ 214.) Detective Gaertner testified that the grinder was never sent to ATF for comparison testing because "it was explained to [him] by a district attorney that it would not be possible." (Defs.' 56.1 Stmt. ¶¶ 215; Pl.'s 56.1 Stmt. ¶ 215; Gaertner Dep. Tr. 75:22-76:2.) Plaintiff alleges that none of the detectives or ADAs "ever attempted to compare the sharpened screwdriver . . . with the grinding tools that were in the very vehicle Gersbeck drove to [Ms. Battisti's] house." (Pl.'s 56.1 Counterstmt. ¶ 271.) The County Defendants allege that "the ATF's report . . . concluded that the screwdriver had no toolmarks for comparison to any grinder (whether Plaintiff's or Gersbeck's)." (Defs.' 56.1 Counterstmt., Docket Entry 56-1, ¶ 271.)
Immediately prior to trial, ADA Kelly took over the case against Plaintiff and prepared the case for trial. (Defs.' 56.1 Stmt. ¶¶ 217, 234.) During her meetings with Gersbeck, he told that when he approached Ms. Battisti, he tried to stab her but then "the door opened and she fell into the house." (Pl.'s 56.1 Counterstmt. ¶ 222; Kelly Dep. Tr., Ex. GGG, Docket Entry 52-62, 26:19-27:5.) He also mentioned the threatening video of his family. (Defs.' 56.1 Stmt. ¶ 220.) When ADA Kelly asked Gersbeck about his statements in the Belle Letter, he explained that "he didn't want his girlfriend to know that he had done this . . . [t]hat he accepted money in exchange for trying to kill someone." (Kelly Dep. Tr. 34:18-24; Defs.' 56.1 Stmt. ¶ 224.) ADA Kelly also spoke with Joe Massone, Gersbeck's boss, who conveyed to her that Gersbeck told him about the plan to kill Ms. Battisti. (Defs.' 56.1 Stmt. ¶ 228; Kelly Dep. Tr. 15:17-16:11.)
From May 17, 2010 to June 2, 2010, ADA Kelly conducted Plaintiff's trial, and the jury acquitted Plaintiff on all charges. (Defs.' 56.1 Stmt. ¶¶ 234, 237.) In November 2011, a NYPD administrative proceeding was held, after which the Assistant Deputy Commissioner found it was more likely than not that Plaintiff: (1) "with the intent to cause of the death of another person . . . attempted to cause the death of Patricia Battisti by entering into an agreement with Timothy Gersbeck whereby Timothy Gersbeck would cause the death of Patricia Battisti in exchange for a sum of United States currency"; (2) "while acting in concert with and or aiding and abetting and being aided and abetted by Timothy Gersbeck . . . with the intent to cause physical injury to another person, caused such injury to Patricia Battisti by stabbing her in the neck with a sharp metal object"; (3) while acting in concert with and or aiding and abetting and being aided and abetted by Timothy Gersbeck . . . possessed a sharp metal object with the intent to use it unlawfully against Patricia Battisti"; and (4) being "wrongfully in possession of a Department radio previously reported missing." (Defs.' Ex. BBB, Docket Entry 52-57, at 2-3.) He pleaded guilty to two other charges and was found not guilty on one charge. (Defs.' Ex. BBB, at 3.) Plaintiff was subsequently terminated from the NYPD. (Defs.' 56.1 Stmt. ¶ 243.)
Plaintiff commenced this lawsuit on September 10, 2010 against ADA Canty, ADA Kelly, Detective Gaertner, Sergeant Galgano, Gersbeck, Kathleen Rice ("Rice"), unidentified ADAs, unidentified officers, and the County of Nassau ("the County"). (Compl., Docket Entry 1, at 1.) The Complaint asserted five causes of action: (1) false arrest against Detective Gaertner, Sergeant Galgano, ADA Canty, ADA Kelly, Gersbeck, unknown officers and unknown ADAs; (2) malicious prosecution against Detective Gaertner, Sergeant Galgano, ADA Canty, ADA Kelly, and Gersbeck; (3) violation of his fourteenth amendment rights due to a unconstitutional "perp walk" policy against the County; (4) defamation against Rice; and (5) interference with his parental rights against ADA Kelly, ADA Canty and unknown ADAs. (Compl. ¶¶ 107-163.) Specifically, Plaintiff alleged that Sergeant Galgano, Detective Gaertner, and Gersbeck "testified falsely before the grand jury," (Compl. ¶ 112); ADA Canty and ADAs John Doe 1-5 "knowingly offered perjured testimony before the grand jury," (Compl. ¶ 113); "[t]he criminal prosecution was commenced despite . . . [the County Defendants'] knowledge that [Plaintiff] was not involved in Gersbeck's attack on Patricia and that probable cause for the initiation and continuation of the prosecution did not exist," (Compl. ¶ 123); and the County Defendants "continued to participate in the criminal prosecution, even after they learned that there was no evidence linking [Plaintiff] to Gersbeck's actions against Patricia and that Gersbeck was lying about [Plaintiff's] involvement in order to obtain a more favorable plea bargain." (Compl. ¶ 124.) Plaintiff sought $32,000,000 in compensatory damages, as well as exemplary damages, punitive damages, and attorneys' fees. (Compl. at 27.) On December 6, 2010, the County Defendants answered and asserted cross-claims against Gersbeck. (Answer, Docket Entry 7.)
After engaging in discovery, Plaintiff agreed to discontinue the third, fourth, and fifth causes of action, and the County and Rice were terminated as defendants. (
Summary judgment will be granted where the movant demonstrates 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). A genuine factual issue exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
The movant bears the burden of establishing that there are no genuine issues of material fact.
The County Defendants argue that Plaintiff's false arrest claim must be dismissed because Plaintiff "was arrested pursuant to a Superior Court arrest warrant issued after a grand jury indictment." (Defs.' Br., Docket Entry 52-1, at 15.) The Court agrees. A false arrest claim must be dismissed when the "arrest is made pursuant to a warrant issued after a grand jury indictment."
Malicious Prosecution 11
The County Defendants argue that they are entitled to summary judgment on the malicious prosecution claim for the following reasons: (1) Plaintiff has not demonstrated that ADA Kelly or Sergeant Galgano were personally involved; (2) Detective Gaertner and Sergeant Galgano did not initiate or continue a criminal proceeding against Plaintiff; (3) there was probable cause to indict, arrest, and prosecute Plaintiff; and (4) Plaintiff has failed to show that any Defendant acted with malice. (Defs.' Br. at 15.)
Plaintiff advances two theories.
To sustain a section 1983 malicious prosecution claim, plaintiff must show "a violation of his rights under the Fourth Amendment" and establish "the elements of a malicious prosecution claim under state law."
"Although the existence of probable cause must be determined with reference to the facts of each case,"
The Second Circuit has held that "even when probable cause is present at the time of the arrest, evidence could later surface which would eliminate that probable cause."
Initiation or Continuation of a Criminal Proceeding
As a preliminary matter, the County Defendants argue that Plaintiff cannot establish that Sergeant Galgano or Detective Gaertner initiated or continued a criminal proceeding against Plaintiff.
Sergeant Galgano's role in the investigation was limited to executing search warrants and assisting with Plaintiff's arrest. (Defs.' Br. at 12.) Detective Gaertner was the primary detective investigating this incident; however, after the NCDAO took over the investigation, he assisted the NCDAO with questions and corroborated certain information in advance of the grand jury. (Defs.' Br. at 12-13.) There is no evidence that either officer importuned ADA Canty to prosecute Plaintiff or that either officer fabricated or withheld evidence from ADA Canty.
Lack of Probable Cause
As to the remaining claims against ADA Canty and ADA Kelly, to defeat summary judgment, Plaintiff must either (1) demonstrate a genuine issue of material fact that the indictment was procured by bad faith or fraudulent conduct, or (2) demonstrate a genuine issue of material fact that probable cause dissipated between the indictment and trial.
Rebutting the Presumption of Probable Cause
The Court finds that Plaintiff is unable to rebut the presumption of probable cause because he has failed to show evidence of "fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith."
Plaintiff argues that ADA Canty's failure to present the Belle Letter to the grand jury constitutes sufficient evidence to overcome the presumption of probable cause. (Pl.'s Opp. at 21.) The Court recognizes that the parties dispute when ADA Canty learned about the content of Belle Letter. Nevertheless, even assuming
Dissipation of Probable Cause
The Court also finds that Plaintiff has not raised a material issue of fact related to the dissipation of probable cause. The grand jury voted to indict Plaintiff on September 3, 2009, and the trial was conducted from May 17, 2010 to June 7, 2010. (Defs.' 56.1 Stmt. ¶¶ 190, 234.) The appropriate inquiry is whether facts arose between September 2009 and May 2010 that clearly demonstrated "the groundless nature of the charges."
Plaintiff relies on two facts that came to light prior to the indictment: (1) Gersbeck's admission in February 2009 that he had the screwdriver in his hand during the attack, (Defs.' 56.1 Stmt. ¶¶ 133, 138) and (2) DNA testing completed in March 2009 that excluded Plaintiff as a source of the DNA on the gloves. (Defs.' 56.1 Stmt. ¶ 154; Pl.'s 56.1 Counterstmt. ¶ 154; Feb. 16, 2009 Police Dep't Rep. at 5.) Neither of these facts can be considered because they occurred before the presumption of probable cause arose.
Plaintiff argues that ATF testing completed in March 2010—which showed that the marks on the handle of the screwdriver were not a match to any of Plaintiff's tools—destroyed probable cause. (Pl.'s Opp. at 26; Defs.' 56.1 Stmt. ¶ 174.) Although the impressions on the handle did not match any of Plaintiff's tools, ATF was unable to determine if any of Plaintiff's tools sharpened the screwdriver. (Defs.' 56.1 Stmt. ¶ 212; Defs.' 56.1 Counterstmt. ¶ 271.) As the County Defendants point out, the tool that sharpened the screwdriver left "no toolmarks for comparison" and as a result, those marks could not be matched to any tool—-not just Plaintiff's. (Defs.' 56.1 Stmt. ¶ 212; Defs.' 56.1 Counterstmt. ¶ 271.) The results of ATF's testing merely illustrate that the authorities would never be able to determine the particular tool that was used to alter the screwdriver; they do not demonstrate that the charges against Plaintiff were groundless.
Plaintiff further argues that the failure to follow-up on the video of Gersbeck's family and his contradictory statements in the Belle Letter support the dissipation theory and that "other evidence which could have served to corroborate Gersbeck's story or exonerate the Plaintiff w[as] never pursued." (Pl.'s Opp. at 26.) However, "the police are not obligated to pursue every lead that may yield evidence beneficial to the accused."
Finally, Plaintiff contends that the discovery of the grinder in Gersbeck's vehicle destroyed probable cause and faults the County Defendants for failing to submit the grinder for comparison testing. (Pl.'s Opp. at 27-28; Pl.'s 56.1 Counterstmt. ¶ 271.) However, the discovery of the grinder in Gersbeck's car, standing alone, is not sufficient to establish that probable cause dissipated before Plaintiff's trial.
Because Plaintiff cannot demonstrate a genuine issue of fact that the prosecution lacked probable cause, the remaining claims against ADA Canty and ADA Kelly are DISMISSED.
The County Defendants' motion for summary judgment (Docket Entry 52) is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE. To the extent the County Defendants' cross-claims against Gersbeck relate to the claims dismissed herein, their cross-claims are also DISMISSED WITH PREJUDICE. Additionally, Plaintiff's claim against Gersbeck is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED.