SCOTT v. ROMANO (2025)

DECISION AND ORDER

INTRODUCTION

Plaintiff Kenneth Scott (“Scott”) brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Rochester Police Department (“RPD”) Officer Paul Romano (“Officer Romano”), RPD Officer Matt Bennetti (“Officer Bennetti”), and New York State Trooper Sergeant John C. Ninfo (“Sergeant Ninfo”) (collectively “Defendants”) violated his constitutional rights when they illegally performed a traffic stop and fabricated evidence in Scott's criminal prosecution. (Dkt. 29). Before the Court are motions to dismiss the amended complaint by the RPD Defendants ¹ (Dkt. 32) and Sergeant Ninfo (Dkt. 30) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons explained below, the Court dismisses the official capacity claims, but otherwise denies both motions.

BACKGROUND

The following facts are taken from Scott's amended complaint. As required at this stage of the proceeding, Scott's well-pleaded facts are taken as true.

While on patrol, Officer Romano encountered Scott driving a vehicle in Rochester, New York and followed him for a brief period. (Dkt. 29 at ¶¶ 7, 9-10). Officer Romano then performed a “felony traffic stop” with the assistance of Officer Bennetti and Sergeant Ninfo. (Id. at ¶ 10). During the traffic stop, Officer Romano directed Scott to drop the vehicle's keys out of the car window and Scott complied. (Id. at ¶ 11). The vehicle's glovebox was locked at the time of the stop, and the key to the glovebox was on the key ring that Scott dropped out of the window. (Id.). There were two passengers in the vehicle and Defendants ordered them out of the vehicle and handcuffed them. (Id. at ¶¶ 13, 17). Officer Bennetti handcuffed Scott as well and searched him. (Id. at ¶ 15). Scott was not carrying a firearm or marijuana, and Officer Bennetti did not discover any contraband when he searched Scott. (Id. at ¶¶ 12, 16). The vehicle also did not contain a firearm or marijuana. (Id. at ¶ 12). But when Officer Romano searched one of the passengers, he recovered a firearm. (Id. at ¶¶ 18-19). Officer Bennetti and Sergeant Ninfo observed the search of that passenger. (Id. at ¶ 20). At the time, Scott did not know that the passenger was carrying a firearm. (Id. at ¶ 21).

Sergeant Ninfo then searched the vehicle, and he and Officer Romano later documented that a 9mm handgun and marijuana were discovered in the vehicle's glovebox. (Id. at ¶¶ 22-26). Scott alleges that they fabricated this information. (Id. at ¶ 23). Shortly after Sergeant Ninfo searched the vehicle, Scott was transported to a local police precinct and held there. (Id. at ¶ 31). Officer Romano and Sergeant Ninfo forwarded the allegedly false information about the handgun and marijuana to the Monroe County District Attorney's Office for the purpose of criminally prosecuting Scott. (Id. at ¶ 28). Officer Romano and Sergeant Ninfo testified before a grand jury and at a pre-trial suppression hearing that the handgun and marijuana were discovered in the vehicle's glovebox. (Id. at ¶¶ 34-37). At the suppression hearing, all three Defendants provided false information to retroactively justify the traffic stop. (Id. at ¶ 36).

The case proceeded to a jury trial, and Officer Romano and Sergeant Ninfo once again testified that they recovered a handgun and marijuana from the vehicle's glovebox. (Id. at ¶ 39). The jury returned a guilty verdict on two counts of criminal possession of a weapon and Scott was sentenced to seven years incarceration with five years post-release supervision. (Id. at ¶¶ 42-43). On appeal, the New York State Supreme Court, Appellate Division, Fourth Department vacated Scott's conviction because the physical evidence should have been suppressed. (Id. at ¶ 45). Scott was incarcerated from July 23, 2017, until his conviction was vacated on June 11, 2021. (Id. at ¶ 44).

Scott initiated this action on June 11, 2024, asserting claims for alleged violations of his constitutional rights. (Dkt. 1). RPD Defendants and Sergeant Ninfo moved to dismiss the complaint (Dkt. 18; Dkt. 19), which the Court granted because the complaint engaged in impermissible “group pleading,” but gave Scott leave to file an amended complaint (Dkt. 28). Scott timely filed an amended complaint, asserting claims for fabrication of evidence, malicious prosecution, and failure to intervene in the violation of his constitutional rights. (Dkt. 29). Defendants now move to dismiss the amended complaint. (Dkt. 30; Dkt. 32).

DISCUSSION

I. Rule 12(b)(6) Legal Standard

“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). This consideration also includes “documents upon which the complaint relies and which are integral to the complaint.” Subaru Distributors Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005). A court should evaluate the motion by “accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N. Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

II. Official Capacity Claims

The amended complaint asserts claims against all Defendants in their individual and official capacities (Dkt. 29 at ¶¶ 2-4), and Defendants move to dismiss the official capacity claims brought against them. (Dkt. 30-1 at 6; Dkt. 32-1 at 7). Scott concedes that the official capacity claim against Sergeant Ninfo is barred by Eleventh Amendment immunity and the allegations in the amended complaint are insufficient to state official capacity claims against the RPD Defendants, and accordingly withdraws his official capacity claims. (Dkt. 34 at 13; Dkt. 35 at 10). The official capacity claims against Defendants are therefore dismissed.

III. Fabrication of Evidence

Scott asserts a fabrication of evidence claim in violation of his Fourteenth ² Amendment rights against Officer Romano and Sergeant Ninfo. (Dkt. 29 at ¶ 46-50). Officer Romano and Sergeant Ninfo each argue that the amended complaint fails to allege all the necessary elements of a fabrication of evidence claim. (Dkt. 30-1 at 7-8; Dkt. 32-1 at 8-9). The Court disagrees.

“A § 1983 plaintiff ‘may sue for denial of the right to a fair trial based on a police officer's fabrication of information ․ when the information fabricated is the officer's own account of his or her observations of alleged criminal activity, which he or she then conveys to a prosecutor.’ ” Barnes v. City of New York, 68 F.4th 123, 129 (2d Cir. 2023) (quoting Garnett v. Undercover Officer C0039, 838 F.3d 265, 274 (2d Cir. 2016)). “To succeed on a fabricated-evidence claim, a plaintiff must establish that ‘an (1) investigating official (2) fabricate[d] information (3) that is likely to influence a jury's verdict, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffe[red] a deprivation of life, liberty, or property as a result.’ ” Id. at 128 (quoting Ashley v. City of New York, 992 F.3d 128, 139 (2d Cir. 2021)).

Officer Romano and Sergeant Ninfo argue that the amended complaint does not plausibly allege that the fabricated information about the firearm and drugs in the vehicle glovebox was likely to influence the jury's verdict because—as alleged in the amended complaint—a firearm was also recovered from one of the vehicle passengers. (Dkt. 30-1 at 7-8; Dkt. 32-1 at 8-9; see Dkt. 29 at ¶ 19). According to Officer Romano and Sergeant Ninfo, this allegation is fatal to Scott's fabrication of evidence claim because New York Penal Law § 265.15(3) provides that a firearm discovered in a vehicle is presumed to be possessed “by all persons occupying such automobile at the time” the firearm is discovered. (Dkt. 30-1 at 7-8; Dkt. 32-1 at 8-9). Defendants contend that the location of the firearm—either in the glovebox or held by one of the passengers—was therefore immaterial to Scott's weapons conviction and that because of the statutory presumption, the jury's verdict “did not turn on the location of the gun within [Scott's] vehicle.” (Dkt. 32-1 at 9; see also Dkt. 30-1 at 7).

But the statute itself provides that the presumption does not apply “if such weapon, instrument or appliance is found upon the person of one of the occupants․” N.Y. Penal Law § 265.15(3). Indeed, Scott argues in response that the presumption is rebuttable and does not apply in situations, such as this one, “where the weapon is secreted under one person's shirt or under other items of clothing or in a pocket.” (Dkt. 34 at 8; Dkt. 35 at 7 (quoting People v. Lemmons, 40 N.Y.2d 505, 511-12, 387 N.Y.S.2d 97, 354 N.E.2d 836 (1976))). The statutory presumption is also not mandatory. Lemmons, 40 N.Y.2d at 510, 387 N.Y.S.2d 97, 354 N.E.2d 836 (“[T]he presumption is not conclusive, but may be rejected by the jury.”). The Court therefore cannot say as a matter of law at this stage of the proceeding that the allegedly false information played no role in influencing the jury's conviction.

Moreover, courts in this circuit have held that allegedly false statements presented to a jury by an officer are likely to influence a jury's verdict. See Smith v. Barr, No. 21-CV-02280 (HG) (PK), 2024 WL 4957281, at *2 (E.D.N.Y. Nov. 12, 2024) (“[A]llegedly false information provided by an officer is ‘particularly likely to be believed by a jury’ and thus likely to influence the jury's decision” (quoting Collins v. City of New York, 295 F. Supp. 3d 350, 372 (S.D.N.Y. 2018))). Because Scott alleges that Officer Romano and Sergeant Ninfo's false statements served as the basis for his prosecution and that this false information was provided to the jury at his criminal trial (Dkt. 29 at ¶¶ 28, 39), the requests to dismiss the fabrication of evidence claims are denied.³

IV. Malicious Prosecution

Scott also asserts a malicious prosecution claim pursuant to the Fourth Amendment ⁴ against Officer Romano and Sergeant Ninfo. (Dkt. 29 at ¶¶ 51-56). Officer Romano and Sergeant Ninfo both argue that Scott's allegations fail to meet the requisite elements of a malicious prosecution claim and that there was probable cause to believe that Scott's prosecution could succeed. (Dkt. 30-1 at 8; Dkt. 32-1 at 10).

“To prevail on a claim of malicious prosecution, four elements must be shown: (1) the defendant initiated a prosecution against plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice and, (4) the matter terminated in plaintiff's favor.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997).⁵ But “[n]o claim for malicious prosecution can survive if there was probable cause for the prosecution.” Buari v. City of New York, 530 F. Supp. 3d 356, 384 (S.D.N.Y. 2021) (citing Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003)). “Probable cause is ‘described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.’ ” Id. (quoting Boyd, 336 F.3d at 76). Furthermore, “[a] grand jury indictment creates a presumption of probable cause that ‘may be rebutted only by evidence that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.’ ” Id. (quoting Manganiello v. City of New York, 612 F.3d 149, 162 (2d Cir. 2010)).

Scott has plausibly alleged a claim for malicious prosecution against Officer Romano and Sergeant Ninfo. The amended complaint alleges that the two defendants knowingly made false statements in their investigatory material and forwarded that false information to the district attorney's office for the purpose of prosecuting Scott (Dkt. 29 at ¶¶ 27-30), and that the prosecution terminated in his favor when the conviction was vacated on appeal (id. at ¶ 45). Officer Romano and Sergeant Ninfo make two arguments that the probable cause element is not met: (1) Scott's allegation that a passenger had a firearm establishes probable cause due to the statutory presumption of possession under N.Y. Penal Law § 265.15(3) (Dkt. 30-1 at 8; Dkt. 32-1 at 10); and (2) the grand jury indictment created a presumption of probable cause (Dkt. 30-1 at 9; Dkt. 32-1 at 10). Both arguments fail.

First, as noted above, Penal Law § 265.15(3) provides an exception to the statutory presumption when the weapon is discovered on an occupant of the vehicle, which is exactly what the amended complaint alleges (see Dkt. 29 at ¶ 19), and therefore, taking the allegations as true, the presumption does not apply. See also Smith v. City of New York, No. 21-CV-02280 (HG) (PK), 2024 WL 2133321, at *3 (E.D.N.Y. May 13, 2024) (holding that “ ‘[D]efendants’ contention that the application of the automobile presumption provides probable cause as a matter of law’ is insufficient to defeat a claim for malicious prosecution.” (quoting Shabazz v. Kailer, 201 F. Supp. 3d 386, 394 (S.D.N.Y. 2016))).

Second, as noted above, the presumption of probable cause established by a grand jury indictment may be rebutted “by evidence that the indictment was procured ‘by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.’ ” Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 83, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)). Scott alleges the indictment was procured by fraudulent evidence fabricated by Officer Romano and Sergeant Ninfo. See Shabazz, 201 F. Supp. 3d at 392 (“In this case, the plaintiffs were indicted, but their allegation is precisely that the indictment was procured by the evidence [defendant] fabricated․ That allegation suffices to overcome the presumption created by the indictment at this stage.”). Thus, the amended complaint plausibly alleges rebuttal of the probable cause presumption created by return of the indictment, and the motions to dismiss the malicious prosecution claim are denied.

V. Failure to Intervene

Scott's third cause of action asserts a failure to intervene claim against all Defendants in violation of the Fourteenth Amendment based on the alleged fabrication of evidence and malicious prosecution. (Dkt. 29 at ¶ 57-61). “A[n] ․ officer may be liable for failure to intervene under Section 1983 where ‘(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene.’ ” Werkheiser v. County of Broome, 655 F. Supp. 3d 88, 108 (N.D.N.Y. 2023).

The RPD Defendants and Sergeant Ninfo both argue that this claim is barred by the applicable statute of limitations. (Dkt. 30-1 at 4-5; Dkt. 32-1 at 6). “The statute of limitations for claims brought under Section 1983 is governed by state law, and in this case is the three-year period for personal injury actions under New York State law.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009); see also Barnes, 68 F.4th at 127 (holding that a failure to intervene claim was properly dismissed by application of the three-year statute of limitations). Although state law determines the statute of limitations, federal law governs the accrual of claims, and “[a] Section 1983 claim ordinarily ‘accrues when the plaintiff knows or has reason to know of the harm.’ ” Shomo, 579 F.3d at 181 (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)). The Supreme Court has made clear that a fabricated-evidence challenge to a criminal proceeding accrues for statute of limitations purposes when the criminal proceeding ends in favor of the defendant. McDonough v. Smith, 588 U.S. 109, 119-20, 139 S.Ct. 2149, 204 L.Ed.2d 506 (2019). The same is true for a malicious prosecution claim. Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017).

Although a failure to intervene claim normally accrues when the failure to intervene occurs, Watt v. City of New York, 740 F. Supp. 3d 212, 227 (E.D.N.Y. 2024), in the case of a claim involving an ongoing constitutional violation, such as a claim for fabrication of evidence or malicious prosecution, the accrual for the failure to intervene claim accrues when the ongoing constitutional violation claim accrues, see Werkheiser, 655 F. Supp. 3d at 108 (“Failure to intervene claims based on malicious prosecution accrue when the malicious prosecution claims accrue, and malicious prosecution claims accrue when there is a decision not inconsistent with innocence.”); see also Roland v. City of New York, No. 20-CV-05392 (TMR), 2024 WL 2832691, at *8 n.10 (S.D.N.Y. June 3, 2024) (although many claims based on failure to intervene were time barred, such as failure to intervene in false arrest, the failure to intervene claims based on malicious prosecution and deprivation of the right to a fair trial were not time barred “as the statute of limitations for those claims ‘does not accrue until there is a favorable termination of the plaintiff's criminal proceedings.’ ” (citations omitted)).

The date Scott's criminal proceedings terminated in his favor was June 11, 2021, when his conviction was vacated. (Dkt. 29 at ¶ 6); see People v. Scott, 195 A.D.3d 1452, 145 N.Y.S.3d 508 (4th Dep't 2021). Scott filed his complaint three years later on June 11, 2024, within the limitations period. (Dkt. 1). Thus, if the failure to intervene claim relates back to his initial pleading, it is timely.

The RPD Defendants and Sergeant Ninfo argue that Scott did not assert a failure to intervene claim in his initial complaint and therefore the claim cannot relate back to the original pleading. (Dkt. 30-1 at 4-5; Dkt. 32-1 at 6). Indeed, Scott asserted all his claims in a single paragraph in the initial complaint, and he did not include a claim for failure to intervene. (See Dkt. 1 at ¶ 59) (“Defendants, individually and collectively, subjected [Scott] to false arrest and imprisonment, unlawful searches of his person and property, denial of a fair trial through the fabrication of evidence, and malicious prosecution, in violation of [Scott's] rights under the United States Constitution.”). Scott argues in response that the new claim relates back to the date of the original pleading because it “arises from the exact same nucleus of operative facts as the original complaint.” (Dkt. 34 at 13; see also Dkt. 35 at 9-10).

Rule 15(c) provides that “[a]n amendment to a pleading relates back to the date of the original pleading when ․ the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading[.]” Fed. R. Civ. P. 15(c)(1)(B). But “claims that are based on an ‘entirely distinct set’ of factual allegations will not relate back.” Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006) (citation omitted), as amended (Oct. 3, 2006). “Provided the amended pleading is based on the same series of transactions and occurrences alleged in the original pleading, the revised pleading will relate back to the original pleading, even where the revised pleading contains legal theories not included in the original.” White v. White Rose Food, a Div. of DiGiorgio Corp., 128 F.3d 110, 116 (2d Cir. 1997)

“Under Rule 15, the ‘central inquiry is whether adequate notice of the matters raised in the amended pleading has been given to the opposing party within the statute of limitations by the general fact situation alleged in the original pleading.’ ” Slayton, 460 F.3d at 228 (quoting Stevelman v. Alias Rsch. Inc., 174 F.3d 79, 86 (2d Cir. 1999)). The Second Circuit has noted that “[t]he purpose of ‘Rule 15 “is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities.” ’ ” Id. (quoting Siegel v. Converters Transp., Inc., 714 F.2d 213, 216 (2d Cir. 1983)).

With that guidance from the Second Circuit in mind, the Court concludes that Scott's failure to intervene claim relates back to the original complaint. The allegations of the amended complaint are substantially the same as the allegations in his original pleading. Although Scott did not explicitly state a claim for failure to intervene in his original complaint, he alleged that “[a]t no time during the arrest or [Scott's] criminal prosecution, or the subsequent years in which [Scott] was incarcerated, did the Defendants intervene in [Scott's] false arrest or wrongful prosecution[.]” (Dkt. 1 at ¶ 51). The failure to intervene claim is therefore not wholly derived from altered factual claims, and the original pleading was sufficient to give Defendants notice of this claim. Cf. DeJesus v. Ramirez, No. 3:23-CV-54 (SRU), 2025 WL 857371, at * 3 (D. Conn. Mar. 19, 2025) (holding that a new claim did not relate back where the plaintiff “drastically alter[ed] both his legal and factual claims in his amended complaint and assert[ed] an alternative theory of liability.”).

The Court is mindful that its prior Decision and Order on the motions to dismiss the original complaint directed that Scott may file an amended complaint “to replead his constitutional claims for fabrication of evidence and malicious prosecution” (Dkt. 28 at 14), and that Defendants now argue that the failure to intervene claim goes outside the bounds of that order (Dkt. 30-1 at 5; Dkt. 32-1 at 6). But the Court does not believe that instruction should necessarily foreclose Scott's failure to intervene claim given Rule 15’s preference for “resolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Scott's failure to intervene claim relates back to the date the original complaint was filed and is therefore timely. See S.A.R.L. Galerie Enrico Navarra v. Marlborough Gallery, Inc., No. 10-CV-7547, 2013 WL 1234937, at *4 (S.D.N.Y. Mar. 26, 2013) (concluding that a new claim related back to the original complaint because the conduct alleged in the amended complaint was part of the factual situation alleged in the original complaint). Defendants do not otherwise contest the sufficiency of the allegations in the amended complaint to state a claim for failure to intervene.⁶

VI. Proximate Causation

Finally, Sergeant Ninfo argues that the fabrication of evidence and malicious prosecution claims must be dismissed because the grand jury's independent indictment “broke the chain of causation for purposes of § 1983 liability.” (Dkt. 30-1 at 10-11) (citing Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999)). But as Scott points out, Townes also provides that the causal chain is not broken where there is “evidence that the police officer misled or pressured the official who could be expected to exercise independent judgment.” (Dkt. 34 at 10-11) (quoting Townes, 176 F.3d at 147). Indeed, § 1983 defendants “cannot avoid liability by pointing a finger at the prosecutor that [they] allegedly deceived and misled.” Shabazz, 201 F. Supp. 3d at 397; see also Zahrey v. Coffey, 221 F.3d 342, 352 (2d Cir. 2000) (“[I]t is not readily apparent why the chain of causation should be considered broken where the initial wrongdoer can reasonably foresee that his misconduct will contribute to an ‘independent’ decision that results in a deprivation of liberty.”).

Scott alleges that Sergeant Ninfo's false statements and fraudulent evidence formed the basis, at least in part, of the prosecution and indictment. (Dkt. 29 at ¶¶ 23-25, 27-29, 33-34). Thus, at least at this stage of the proceedings, Sergeant Ninfo's arguments concerning proximate cause do not warrant dismissal of the amended complaint. See Werkheiser, 655 F. Supp. 3d at 106 (rejecting chain of causation argument based on a grand jury indictment where plaintiff alleged that defendants engaged in bad faith to procure the indictment). The Court therefore denies Sergeant Ninfo's request to dismiss Scott's fabrication of evidence and malicious prosecution claims on these grounds.

CONCLUSION

For the foregoing reasons, the RPD Defendants’ motion to dismiss (Dkt. 32) and Sergeant Ninfo's motion to dismiss (Dkt. 30) are denied.

SO ORDERED.

FOOTNOTES

1.   Officers Romano and Bennetti will be referred to together as “RPD Defendants.”

2.   Scott also alleges a violation of his Fifth Amendment rights in both the first cause of action for fabrication of evidence and the third cause of action for failure to intervene. But “[i]t is well-established that ‘the Fifth Amendment appl[ies] to and restrict[s] only the Federal Government.’ ” Griffin v. City of New York, 880 F. Supp. 2d 384, 404 (E.D.N.Y. 2012) (quoting Pub. Utils. Comm'n of D.C. v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 96 L.Ed. 1068 (1952)). Because there are no allegations that Defendants are federal employees, there is no basis for a Fifth Amendment claim.

3.   Sergeant Ninfo separately argues that he is entitled to absolute immunity based on any testimony he provided as a witness before a jury, grand jury, or at a hearing. (Dkt. 30-1 at 10) (citing Rehberg v. Paulk, 566 U.S. 356, 369, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012)). While he may be entitled to immunity for witness testimony, this does not foreclose Scott's fabrication of evidence claim. The Second Circuit has instructed that “[w]hen a police officer claims absolute immunity for his grand jury testimony under Rehberg, the court should determine whether the plaintiff can make out the elements of his § 1983 claim without resorting to the grand jury testimony.” Coggins v. Buonora, 776 F.3d 108, 113 (2d Cir. 2015). As discussed above, Scott's claim for fabrication of evidence is not based solely on Sergeant Ninfo's allegedly false testimony but it is also based on the allegedly false statements in the investigative material. (Dkt. 29 at ¶ 25). Scott alleges that this material served as the basis for his prosecution and can therefore be used to independently support his fabrication of evidence claim.

4.   Scott also relies on the Fourteenth Amendment in support of his malicious prosecution claim, but this reliance is misplaced. See Moore v. Town of Webster, No. 24-CV-6062-MAV, 2025 WL 1549029, at *7 (W.D.N.Y. May 30, 2025) (“[T]he Fourteenth Amendment itself is not a sufficient Constitutional ground for a malicious prosecution claim.” (citing Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 115 (2d Cir. 1995))).

5.   “Though section 1983 provides the federal claim, [federal courts] borrow the elements of the underlying malicious prosecution tort from state law.” Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).

6.   As discussed in footnote 4, supra, the Fourteenth Amendment does not serve as a basis for a malicious prosecution claim; rather the Fourth Amendment serves as the grounds for such a claim. But Scott only cites the Fourteenth Amendment in support of his third cause of action for failure to intervene (as well as the Fifth Amendment, which is plainly inapplicable, see footnote 2, supra). (Dkt. 29 at 9). Although insufficiently pleaded, Defendants have not argued that the third cause of action should be dismissed on this basis, and thus the Court will not sua sponte dismiss the claim based on a ground not raised by Defendants.

ELIZABETH A. WOLFORD, Chief Judge