VALERIE CAPRONI, United States District Judge

OPINION & ORDER

:

Plaintiff Vincent Longo brings this action pursuant to 42 U.S.C. § 1983 against Sergeant Frederic Ortiz, Detective Anthony Manuzza, and Unidentified Police Officers (collectively, "Defendants"), all in their individual capacities as employees of the New York City Police Department ("NYPD"). Plaintiff asserts claims for malicious prosecution and denial of a fair trial. Defendants have moved to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim (the "Motion") (Dkt. 14). For the following reasons, Defendants' Motion is GRANTED.

BACKGROUND

On October 12, 2010, plain-clothes police officers, including Defendant Ortiz, stopped Plaintiff while he was walking with some acquaintances and his dog outside his home in Manhattan. Compl. ¶¶ 10-13. Plaintiff was allegedly unaware that Defendant Ortiz was a plain-clothed police officer and was startled by the stop. He quickly entered his building and closed the door. Id. ¶ 14. According to Plaintiff, the building door was glass and, through the door, he saw that Defendant Ortiz was pointing a gun at him. Id. ¶¶ 15.

As Plaintiff ran to his apartment on the third floor, Defendant Ortiz broke through the glass door of the building and, still pointing his gun, followed Plaintiff. Id. ¶¶ 16-20. Plaintiff entered his apartment and attempted to close the door, but Ortiz used his weapon to block the door from closing. Id. ¶¶ 21-22. As Plaintiff tried to push the weapon out of the way and wrestle the door shut, additional police officers arrived. Id. ¶¶ 22-25. At some point, a black NYPD radio was used to prevent the door from closing. Id. ¶ 25. Plaintiff grabbed the radio and was able to close the door. Id. ¶¶ 26-27.

After the door was shut, Plaintiff realized, allegedly for the first time, that he held a police radio and that the individuals outside his door were police officers. Id. ¶ 27. At that point, Plaintiff climbed down his fire escape to the street and surrendered to officers who had gathered outside of his apartment building. Id. ¶¶ 28-32.

Police took Plaintiff to the police station and charged him with: (1) Attempted Criminal Possession of a Weapon in the Second Degree, (2) Assault in the Second Degree, (3) Criminal Mischief in the Second Degree, (4) Robbery in the Third Degree, (5) Attempted Robbery in the Third Degree, (6) Reckless Endangerment in the Second Degree, (7) Criminal Possession of a Controlled Substance in the Seventh Degree, and (8) Unlawful Possession of Marijuana. Id. ¶ 34. Plaintiff was incarcerated for approximately two weeks before being released on bail. Id. ¶ 38.

Plaintiff alleges that, in relation to the incident, Defendants fabricated facts "in order to justify the bad stop, seizure, illegal search, reckless[] destr[uction of] property by crashing through a glass door and having drawn a gun without any legal justification." Id. ¶ 35. According to Plaintiff, Defendants "swore to and signed a search warrant affidavit based on information they fabricated" and, after a Supreme Court judge approved the warrant, "tore through" Plaintiff's apartment. Id. ¶¶ 36-37. Moreover, Plaintiff asserts that "[D]efendants provided false information to the District Attorney," which led to criminal charges being brought against him, id. ¶ 39, and "false testimony . . . during the Manhattan District Attorney's grand jury presentation," which led to a grand jury indicting him for Robbery in the Third Degree, Attempted Robbery in the Third Degree, and three counts of Attempted Assault in the Second Degree, id. ¶¶ 40-41. Plaintiff also contends that Defendants "gave false testimony" during pre-trial hearings and jury trial, id. ¶ 44, and harassed one of Plaintiff's primary witnesses by "temporarily seizing and searching the witness on the street" the day that the witness was scheduled to testify, commenting that it was a "big day." Id. ¶¶ 42-43. On July 22, 2015, Plaintiff was acquitted of all charges. Id. ¶ 46.

DISCUSSION

Defendants move to dismiss the Complaint arguing that Plaintiff has (1) failed to state a claim for malicious prosecution because he has not sufficiently pled facts to overcome the presumption of probable cause created by the indictment or to support his allegation that the Defendants acted with the requisite malice, and (2) failed to state a claim for denial of his right to a fair trial because his allegations are conclusory and the fabricated evidence he alleges cannot properly form the basis for such a claim.

I. Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief." Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Federal Rule of Civil Procedure 8(a)(2) requires "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level." Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted). Plaintiff's allegations must nudge his claims "'across the line from conceivable to plausible.'" Iqbal, 556 U.S. at 683 (quoting Twombly, 550 U.S. at 570).

II. Malicious Prosecution

To prevail on a malicious prosecution claim under Section 1983, a plaintiff must establish the elements of a state law malicious prosecution claim and also show a violation of his rights under the Fourth Amendment. See Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009). To establish a malicious prosecution claim under New York law, a plaintiff must prove "(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions." Manganiello v. New York City, 612 F.3d 149, 161 (2d Cir. 2010) (citations and internal quotations omitted); see also Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998). Defendants argue that Plaintiff fails sufficiently to plead factual allegations to meet the third and fourth elements.

A. Probable Cause

The existence of probable cause is a complete defense to a claim for malicious prosecution. Manganiello, 612 F.3d at 161-62. An "'indictment by a grand jury creates a presumption of probable cause'" that a plaintiff may rebut 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 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 (1983))); see also Rothstein v. Carriere, 373 F.3d 275, 283 (2d Cir. 2004) ("'The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith.'" (quoting Colon, 60 N.Y.2d at 82-83)).

Defendants argue that Plaintiff fails to plead factual allegations sufficient to overcome the presumption of probable cause created by the indictment. See Defs. Mem. at 5-8; Defs. Reply at 2-6. Plaintiff responds that he has alleged sufficient facts as to "other police conduct undertaken in bad faith." Pl. Opp. at 15. The crux of Plaintiff's argument appears to be that the charges on which Plaintiff was ultimately indicted—Robbery in the Third Degree, Attempted Robbery in the Third Degree and three counts of Attempted Assault in the Second Degree—all arose in response to an unjustified hot pursuit of Plaintiff into his apartment building. Plaintiff contends that the officers, to cover up what was otherwise an unjustified hot pursuit that resulted in damage to his apartment and to the apartment building, "manufactur[ed] facts and evidence and pass[ed] those along to the prosecutors" and the grand jury; in particular, Ortiz fraudulently created and executed affidavits in support of the search warrant for Plaintiff's apartment and in the criminal complaint. Id. at 13.

The grand jury's indictment presumptively established that probable cause existed for the charges of Robbery in the Third Degree, Attempted Robbery in the Third Degree and three counts of Attempted Assault in the Second Degree. Accordingly, Plaintiff is required to rebut that presumption and must establish that the alleged circumstances "warrant a finding of misconduct sufficient to erode the 'premise that the Grand Jury acts judicially.'" Rothstein, 373 F.3d at 283-84 (quoting Colon, 60 N.Y.2d at 82).

Plaintiff's allegations in his Complaint are insufficient to overcome the presumption of probable cause created by the indictment. He alleges that his indictment "was secured by the suppression of exculpatory evidence and by dishonest statements made by the defendants to the prosecutor as well as to the grand jury." Id. ¶ 52. He further alleges that Defendants "swore to and signed a search warrant affidavit based on information they fabricated," id. ¶ 36; Defendants "provided false information to the District Attorney," id. ¶ 39; and Defendants harassed one of Plaintiff's primary witnesses by "temporarily seizing and searching the witness on the street" the day that the witness was scheduled to testify, commenting that it was a "big day," id. ¶¶ 42-43.

But Plaintiff's allegations as to false or fabricated information are entirely conclusory and generalized and do not contain the specificity required to state a claim for malicious prosecution. See Abdul-Rahman v. City of New York, No. 10 CV 2778 (ILG), 2012 U.S. Dist. LEXIS 45653, at *29 (E.D.N.Y. Mar. 30, 2012) (finding that allegations that officers "falsely and maliciously told" the District Attorney's Office that plaintiff had committed various crimes or "provided false testimony" were "conclusory and generalized allegations . . . insufficient to overcome the presumption of probable cause created by the indictment."); Lewis v. City of New York, No. 12-CV-2836 (RRM) (RML), 2013 WL 6816615, at *9 (E.D.N.Y. Dec. 24, 2013) (finding Plaintiff had failed to rebut the presumption of probable cause when Plaintiff did "not allege any facts concerning the form or substance of the evidence or information he claims [was] fabricated"), aff'd, 591 F. App'x 21 (2d Cir. 2015). Plaintiff's allegation of "harassment" of one of his primary witnesses is particularly irrelevant because, among other reasons, the alleged harassment occurred after the Plaintiff was indicted; even if true, such conduct entirely fails to call into question the validity of the indictment.

Moreover, the Court will not consider factual allegations that Plaintiff raised for the first time in his opposition brief to Defendants' Motion to Dismiss. There, Plaintiff asserted that the false information he is alleging in the search warrant affidavit and criminal complaint are Ortiz's representations that: (1) Ortiz personally observed motions indicative of a drug hand off, Pl. Opp. at 4, 10, 15-16, 19-21; (2) Ortiz found glassine envelopes allegedly containing heroin residue that he connected to Plaintiff, id. at 4, 17; (3) Plaintiff caused damage to Plaintiff's apartment, apartment building, and water pipes, id. at 4, 6-8; and (4) Plaintiff injured Ortiz's right leg and foot, id. at 20-21. Nowhere in the Complaint, however, does Plaintiff allege facts regarding the alleged drug-hand off, the discovery of the glassine envelopes, the extent of damage to the Plaintiff's apartment, or any injuries to Ortiz. "'[T]he Court does not rely on factual assertions made for the first time in Plaintiff's opposition brief . . . as it is 'axiomatic that the Complaint cannot be amended by briefs in opposition to a motion to dismiss.'" Troy v. City of New York, No. 13-CV-5082 (AJN), 2014 WL 4804479, at *1 (S.D.N.Y. Sept. 25, 2014), aff'd, 614 F. App'x 32 (2d Cir. 2015).

Plaintiff also urges the Court separately to analyze probable cause for the charges on which the grand jury did not indict him: Attempted Criminal Possession of a Weapon, Criminal Mischief, Reckless Endangerment, Criminal Possession of a Controlled Substance, and Unlawful Possession of Marijuana. See Pl. Opp. at 17-18. Relying on Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991), and Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989), Plaintiff argues that "[a]s the indicted and not indicted charges are entirely distinguishable, at a bare minimum plaintiff's malicious prosecution claim for the felonies he was not tried on must be allowed to move forward." Pl. Opp. at 18.

In Posr, the Second Circuit held that a finding of probable cause on one charge does not foreclose a malicious prosecution claim based on charges requiring different, and more culpable, behavior. 944 F.2d at 100 (citing Janetka, 892 F.2d at 189). In Janetka, the Second Circuit held that an unfavorable termination on one charge should not preclude a finding of liability for a malicious prosecution claim on a separate charge. Janetka, 892 F.2d at 190. In Janetka, the Second Circuit emphasized that the elements of each charge were different, neither charge was a lesser included offense of the other, and the charges arose out of distinct facts. Id. ("[Plaintiff] was charged with two distinct offenses involving distinct allegations"—the disorderly conduct charge involved plaintiff's actions toward an unidentified individual, while the other involved plaintiff's actions toward the officers attempting to arrest him); see also Posr, 944 F.2d at 100 (noting with approval the finding in Janetka that the charges "arose out of distinct facts and should be analyzed separately" and, from that, the jury could have concluded there was probable cause to charge plaintiff with disorderly conduct but not with resisting arrest or assault.). Both cases highlight the need for courts to analyze separately the charges claimed to have been maliciously prosecuted. Posr, 944 F.2d at 100 ("While [Janetka is] not precisely on point here, where the issue is whether the officers had probable cause to commence proceedings against [plaintiff], not with whether the charges were terminated in plaintiff's favor, Janetka is useful in highlighting the need to separately analyze the charges claimed to have been maliciously prosecuted.").

Defendants argue that Janetka and Posr do not apply to this case because "[a]ll charges, both indicted and unindicted, arise from the same factual circumstances involving the same individuals and here, plaintiff was indicted on felony charges of similar degree." Defs. Reply at 7. The Court is skeptical of Defendants' position, but need not resolve the issue at this juncture. Plaintiff's Complaint is devoid of allegations sufficient to state a malicious prosecution claim on the basis of the unindicted offenses. In his Complaint, Plaintiff stated in conclusory fashion that Ortiz stopped him "[w]ithout probable cause, reasonable suspicion, nor an announcement of who he was," Compl. ¶ 13; see also id. ¶ 48 ("[D]efendants . . . caused and continued his arrest, without probable cause, nor a reasonable suspicion he had committed the crimes alleged"), mentioned in passing that he was charged with "Criminal Possession of a Controlled Substance" and "Unlawful Possession of Marijuana," id. ¶ 34, and described the incident as a "bad stop," id. ¶ 35. But other than those vague and conclusory allegations, Plaintiff's Complaint lacks any factual assertions about the events giving rise to the unindicted charges or to support his position that, as to those charges, there was no probable cause.

B. Actual Malice

Defendants also urge the Court to dismiss Plaintiff's malicious prosecution claim because Plaintiff has not alleged adequately actual malice. Defs. Mem. at 8-9. "Under New York law, malice does not have to be actual spite or hatred, but means only 'that the defendant must have commenced the criminal proceeding due to a wrong or improper motive, something other than a desire to see the ends of justice served.'" Pinter v. City of New York, 976 F. Supp. 2d 539, 559 (S.D.N.Y. 2013) (quoting Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996)); see also Manganiello, 612 F.3d at 163-64 ("'[M]alice may be shown by proving that the prosecution complained of was undertaken from improper or wrongful motives, or in reckless disregard of the rights of the plaintiff.'" (quoting Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996))).

Plaintiff asserts in his opposition brief that to cover up what was otherwise an unjustified hot pursuit that resulted in damage to his apartment and apartment building, the officers "manufacture[d] facts and evidence and pass[ed] those along to the prosecutors" and the grand jury. Pl. Opp. at 13. As currently drafted, however, Plaintiff's Complaint is conclusory and merely alludes to an improper or wrongful motive. Plaintiff asserts that "[t]he acts alleged by the defendants were fabricated in order to justify the bad stop, seizure, illegal search, recklessly destroying property by crashing through a glass door and having drawn a gun without any legal justification." Compl. ¶ 35. He later alleges, again in a conclusory fashion, that "[t]he individual defendants acted intentionally, willfully, maliciously, negligently and with reckless disregard for and deliberate indifference to Mr. Longo's rights." Id. ¶ 56. Plaintiff must do more than offer speculation and conclusion that Defendants' motives were improper. Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level . . . .")

III. Denial of Right to Fair Trial

Plaintiff also claims he was denied a fair trial. A person is denied the right to a fair trial when an investigating official provides to the prosecutor fabricated evidence that is likely to influence a jury's decision, and the plaintiff suffers a deprivation of liberty as a result. Perez v. Duran, 962 F. Supp. 2d 533, 543 (S.D.N.Y. 2013) (quoting Jovanovic v. City of New York, 486 F. App'x 149, 152 (2d Cir. 2012) (summary order)). "A plaintiff need not have proceeded to a full trial on the merits in order to have an actionable section 1983 claim based on the denial of a fair trial." Marom v. City of New York, No. 15-CV-2017 (PKC), 2016 WL 916424, at *9 (S.D.N.Y. Mar. 7, 2016) (citing Ricciuti v. New York City Transit Auth., 124 F.3d 123, 127 (2d Cir. 1997); Canario v. City of New York, 05 CIV 9343 (LBS), 2006 WL 2015651, at *1 (S.D.N.Y. July 12, 2006)). "[T]he claim accrues when the officer forwards the false information to the prosecutors." Garnett v. Undercover Officer C0039 , No. 1:13-CV-7083 (GHW), 2015 WL 1539044, at *4 (S.D.N.Y. Apr. 6, 2015).

Defendants urge this Court to dismiss Plaintiff's claim arguing, first, that Plaintiff's allegations lacked specificity regarding in what way Defendants' statements, information, or testimony were false or in what material respect the charges against him were false. Defs. Mem. at 10-11. As with the malicious prosecution claims, the Court agrees. Plaintiff alleges that he was "denied the right to a fair trial . . . when the defendants fabricated evidence, gave false testimony, and made false extrajudicial statements to the Manhattan District Attorney's Office to be used against Mr. Longo at trial as well as to a Supreme Court judge in an effort to secure a search warrant, indictment and conviction against Mr. Longo." Compl. ¶ 59. But those allegations fail to state with the requisite specificity the evidence that was purportedly fabricated. See Lewis, 591 F. App'x at 22 ("[A]gree[ing] with the district court that because Lewis has provided no detail regarding the evidence purportedly fabricated by the defendant officers, he has not stated a plausible claim for denial of the right to a fair trial."); Waddlington v. City of New York, 971 F. Supp. 2d 286, 297 (E.D.N.Y. 2013) ("Plaintiff at no point alleges with specificity what false information [police officers] created or forwarded to the D.A.'s Office"); Wright v. Orleans Cty., No. 14-CV-00622 (AF), 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) ("[A]lthough Plaintiffs allege unidentified Defendants presented falsified information to the Grand Jury as well as at trial, the failure to specify what constituted the allegedly falsified information is fatal to Plaintiffs' fair trial claim."). As with his malicious prosecution claim, the Court declines to consider the somewhat more specific factual allegations that Plaintiff introduced for the first time in his opposition brief. See Pl. Opp. at 19-22.

Defendants also argue, however, that Plaintiff fails to allege that the fabricated evidence was material - that is, would have been likely to influence a jury. According to Defendants, the search warrant affidavit and the criminal complaint cannot form the basis of a denial of fair trial claim because those documents constitute inadmissible hearsay and could never be admitted into evidence at trial. Defs. Reply at 8-9. The Court need not decide the issue at this stage but notes that the fact that the allegedly fabricated information was incorporated into documents that were not themselves admissible (a criminal complaint and a search warrant affidavit) is of no moment. Soomro v. City of New York, No. 13CV0187 (LTS), 2016 WL 1266069, at *6 (S.D.N.Y. Mar. 30, 2016) ("[T]he fact that allegedly fabricated evidence would be inadmissible at trial by itself is not a bar to the claim."); see Marom v. City of New York, No. 15-CV-2017, slip op. at 4 (S.D.N.Y. July 29, 2016) (reinstating plaintiff's fair trial claims on a Motion for Reconsideration and holding that materiality does not require admissible evidence); Buie v. City of New York, No. 12 CV 4390 (RJD) (CLP), 2015 WL 6620230, at *11 (E.D.N.Y. Oct. 30, 2015) (holding false information in a criminal complaint could form the basis of a § 1983 denial of a right to fair trial claim, even though the complaint was inadmissible and the allegedly fabricated evidence could only otherwise reach the jury through defendants' immunity-cloaked testimony). That said, the Defendants are correct that to form the basis of a denial of a fair trial right the allegedly false information must be material, a standard Plaintiff may well have difficulty meeting.

IV. Leave to Amend

Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, the Court has discretion to grant leave to Plaintiff to amend his complaint when justice so requires. Fed. R. Civ. P. 15(a)(2). If Plaintiff wishes to amend his complaint, he must move for leave to do so on or before October 14, 2016, and the motion must attach a proposed amended complaint. Defendants shall have until October 28, 2016 to oppose Plaintiff's motion, and Plaintiff's reply shall be due November 4, 2016.

CONCLUSION

For the foregoing reasons, the Defendants' Motion to Dismiss (Dkt. 14) is GRANTED. If Plaintiff wishes to seek leave to file an Amended Complaint, he must make a motion for leave to amend his Complaint on or before October 14, 2016. Defendants must file a response to the motion on or before October 28, 2016, and Plaintiff's reply must be filed on or before November 4, 2016. The Clerk of Court is respectfully requested to close Docket Entry 14.

SO ORDERED.

Date: September 26, 2016

New York, New York

/s/ _________

VALERIE CAPRONI

United States District Judge