The opinion of the court was delivered by: Hurley, Senior District Judge
MEMORANDUM OF DECISION AND ORDER
Plaintiffs Alexandria Sargent ("Alexandria"), Janelle Sargent ("Janelle") and Shatavia Sargent ("Shatavia") (collectively "Plaintiffs") commenced this action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 alleging that the Defendants violated their constitutional rights when Plaintiffs were arrested and prosecuted for gang assault, assault, and robbery. Presently before the Court is the motion of Defendants The County of Nassau ('Nassau"), Nassau County Police Department ("Police Department"), Detective William T. O'Brien ("O'Brien"), Detective Joseph T. Heimbauer ("Heimbauer") and Lieutenant Daniel Gallagher ("Gallagher") (collectively "Defendants") for summary judgment. Plaintiffs have voluntarily withdrawn the claims against the Nassau County Police Department and therefore the action is dismissed as to the Police Department. For the reasons set forth below the motion for summary judgment is GRANTED as to the remaining Defendants.
The following facts are taken from the parties' submission and are undisputed, unless noted otherwise.*fn1 On October 22, 2002, while hospitalized at South Nassau Communities Hospital, Nynisha Preacely ("Preacely")*fn2 contacted the police and provided a written statement under penalty of perjury to Nassau County Police Officer D. Gibson. According to the statement, Preacely had been assaulted on October 21, 2002 by several girls at Woodfield Road and Champlain Avenue in Lakeview, Nassau County. In the statement, Preacely identified by first name a number of the girls. The statement reads in part: "I saw another girl, Shatavia, standing over me as she kicked me in my ribs. Other girls I recognized were Alex (Alexandria) Santana, and her sister Jenelle, (who are both sisters with Shatavia)." The statement indicated that one of the girls grabbed her white-gold chain and cross during the fight. Preacely further stated that her friend Tamika Campbell ("Campbell") who "had seen the whole thing" helped her home. Her family drove her to South Nassau Communities Hospital "where the doctors told [her she] had 2 broken ribs and a punctured lung on [her] right side in addition to bruising, swelling and pain to [the] right eye and a [nose] lacereration."
Heimbauer, a Nassau County Detective, was assigned the lead Detective on the Preacely case. Heimbauer and Detective Joel Mitchell interviewed Preacely on October 22, 2002 at her residence after she was discharged from the hospital. Preacely signed a medical release for her records.
Also on October 22, 2002, Heimbauer went to Campbell's residence and took a statement from her under penalty of perjury. According to that statement, she saw 6 or 7 girls across the street on Woodfield Road when "all of a sudden they all came running over" to where she and Preacely were. "One yelled 'B----- you f----ed my man' they all attacked [Preacely] I saw them punch & kick [Preacely]. When [she] fell to the ground they continued stomping her until she couldn't breath. . . . A younger girl who was with them that I know from school named Alexandria stood with them watching me. All of the other girls punched and stomped [Preacely]. I know all of the girls are related, and I think they live together. . . . I didn't see Alexandria hit [Preacely]. I followed [Preacely] home. Her friend Jonathan came over and brought us to Mercy Hospital. I had to leave."*fn3
Within the next week or so, as part of his investigation, Heimbauer went to the intersection of the alleged incident, faxed a copy of the medical records release to South Nassau and located police records for two of the alleged assailants.
On November 21, 2002, while she was shopping in Hempstead, Preacely saw Shatavia and one Letisha Fowler and contacted the Hempstead Police. When the Police arrived Preacely pointed the two women out as two of the persons that assaulted her on October 21, 2002. Preacely indicated that she was sure that Shatavia was one of the girls who attacked her on October 21, 2002 and that Shatavia had punched her a few times and kicked her in the ribs.
Shatavia was arrested by the Hempstead Police.
Shatavia was eventually brought to the Nassau County Police 5th Precinct. Detective O'Brien was assigned to process Shatavia's arrest. At the time of the arrest, Lieutenant Gallagher was the desk officer and reviewed all arrest paperwork. He discussed charges with the officers prior to the charges being filed and determined whether the charges were appropriate.
Prior to processing Shatavia's arrest, O'Brien and Gallagher were aware of Campbell's October 22 statement indicating that Preacely was attacked by a group of girls and Preacely's October 22 statement indicating that Shatavia was one of her assailants. Neither O'Brien nor Gallagher saw or verified Preacely's medical records.*fn4
Preacely was also brought to the Fifth Precinct and provided two written statements under penalty of perjury dated November 21, 2002. One statement is three pages long and explains that she was shopping when she saw two females who participated in the attack on her. In the statement Preacely identifies Latesha Fowler as one of her attackers. With respect to Shatavia, the statement reads: "The girl the Hempstead Police Officer grabbed that I knew as Shatavia, I am sure was one of the girls who attacked me on 10/21/02. That night I know Shatavia had punched me a few times and then after I fallen to the ground she came up to me and kicked me in my ribs about 4 or 5 times. . . . I now know Shatavia's full name is Shatavia Sargent and she is 23 years old. I want her arrested for her part in the attack upon me on 10/21/02." The second statement is a page and a half long. It also states that while shopping Preacely saw two females: "I knew as Latesha Fowler and the other I now know as Shatavia Sargent. . . . They were both involved in an assault upon me on 10/21/02 on Woodfield Rd. W. Hempstead." The statement continues to describe how she went to the Fifth Precinct and reviewed six photographs and positively identified the subject in one of the photos as Latesha Fowler, "the person who on 10/21/02 had grabbed me by the hair and was punching and kicking me along with four other girls."
On January 28, 2003, Detective Heimbauer went to Preacely's residence and presented her with a photo array. Preacely identified Alexandria and Janelle from the photo array as two of the girls who assaulted her on October 21, 2002.
On March 31, 2003, Shatavia, Alexandria and Janelle, together with Ivory Washington and Latesha Fowler were indicted for First and Second Degree Gang Assault; First Degree Robbery; and Second Degree Assault. On that same day arrest warrants were issued for Alexandria and Janelle, as well as Ivory Washington and Latesha Fowler.
Prior to the issuance of the indictment, Heimbauer left several messages for Janelle. She admittedly only returned one call and that was on November 27, 2002. During that telephone conversation, she told Heimbauer that she worked at Home Depot and was working there on October 21, 2002 during the time the alleged assault on Preacely took place. Heimbauer testified that he went down to Home Depot and spoke with the night manager who advised him to speak to Mr. Jack. Heimbauer made at least two phone calls but was unable to get in touch with Mr. Jack. Heimbauer did not attempt to subpoena Janelle's employment records nor did he ask her to sign a release to allow him access to her employment records. Her work records demonstrate that she was signed into work on October 21, 2002 from 1:50 to 6:42 p.m., when she took her break and from 7:31 to 10:43 p.m.
On April 25, 2003, Janelle was taken down to a precinct by two detectives for mug shots and fingerprinting. Janelle Dep. at 23-25.
On April 13, 2003, Alexandria was arrested on an unrelated matter. While in custody, a warrant check was done and revealed that Alexandria had an outstanding arrest warrant for the crime against Preacely. Alexandria was also charged with crimes against Preacely.
Nassau County Assistant District Attorney David Haber ("ADA Haber") was assigned to prosecute the criminal case against the Plaintiffs, Ivory Washington and Latesha Fowler. Prior to Plaintiff's indictment, ADA Haber was aware that Janelle claimed to be at work during the assault on Preacely and that Campbell's statement indicated that she did not see Alexandria hit Preacely.
On or about August 21, 2003, subsequent to the indictment and arrests of the Plaintiffs, ADA Haber spoke with one Gary McGraw, who was sexually involved with both Preacely and Ivory Washington. During that conversation, McGraw claimed that he may have been responsible for Preacely's injury due to an altercation that he had with her. Haber advised McGraw to speak with an attorney who could advise him of his rights and then if he still wished he could give a statement to the police. Haber gave McGraw's contact information to Heimbauer. On September 8, 2003, McGraw called Haber again and advised Haber that he received a call from a detective but could not find the name and number. Haber gave McGraw Heimbauer's information. Heimbauer testified that he did not try to contact McGraw as he understood that McGraw was going to contact him.
On September 23, 2003, the criminal bench trial was held for the Plaintiffs, together with Ivory Washington and Latesha Fowler. McCraw exercised his Fifth Amendment right against self incrimination during the trial. The Plaintiffs' attorney twice moved to have a statement of McGraw admitted into evidence during the criminal trial. Both applications were denied.
At the close of the prosecution's case, the defense attorneys, including Plaintiffs', made a motion to dismiss the charges against their clients on the grounds that the People had failed to prove a prima facie case. The motion was denied. On or about September 30, 2006, the Plaintiffs were acquitted on all charges while Ivory Washington and Latesha Fowler were convicted of the crimes.
Plaintiffs contend that in fact the altercation between Preacely and Ivory Washington --that they saw but did not participate in -- occurred on October 7, 2002. According to the Plaintiffs, at the time the fight began, Alexandria was in a deli across the street. Preacely attacked Shatavia, ripping her sweater in the process. Shatavia, however, did not fight back. Preacely threatened Plaintiffs and exclaimed "all you bitches are going down." Preacely then filed a false report that the fight took place on October 21, 2002. Alexandria was not involved in and did not witness any incident involving Preacely on October 21, 2002. Janelle was at Home Depot on October 21, 2002 at the time of the alleged incident. Although both Alexandria and Shatavia admitted to the police that they were present during an altercation involving Preacely, they told the police they were not involved and that the fight did not occur on October 21, 2002.
After their acquittal, Plaintiffs brought this action pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 alleging false ...