The opinion of the court was delivered by: Seybert, District Judge:
This Memorandum and Order addresses Defendants' pending motion for partial summary judgment (Docket Entry 222). Defendants' motion is GRANTED IN PART AND DENIED IN PART in accordance with the following discussion.
Summary judgment is only appropriate where the moving party can demonstrate that there is "no genuine dispute as to any material fact" and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); FED. R. CIV. P. 56(c). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Defendants argue that (1) the individual Defendants are entitled to qualified immunity; (2) Plaintiffs cannot prove municipal liability; (3) Restivo and Halstead cannot prove a Section 1983 conspiracy; and (4) Kogut cannot hold the police Defendants responsible for the decision to re-try Kogut in 2005. The Court addresses each argument in turn.
Defendants argue that the individual Defendants are entitled to qualified immunity on Plaintiffs' due process claims to the extent that those claims are premised on (1) a supposed right to a constitutionally-adequate investigation of the Fusco homicide; (2) an obligation that police officers disclose exculpatory and impeaching evidence to prosecutors; or (3) an obligation to provide Miranda warnings during a custodial interrogation. (Def. Br. 5.)
As to the first and third of these theories, Plaintiffs clarify that these are not the bases of liability on which their due process claims rest. (R/H Opp. 6 n.5; Kogut Opp. 3.) Rather, they explain that the scope of Defendants' investigation and their alleged failure to read the Miranda warnings are evidence of Defendants' overall attempt to frame Plaintiffs for the Fusco murder. (See R/H Opp 6 n.5.) The individual Defendants do not enjoy qualified immunity from these claims. See Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004) (concluding "without serious question" that, based on Supreme Court precedent, reasonable law enforcement officers knew at least as early as 1967 "that framing innocent persons would violate the constitutional rights of the falsely accused").
Similarly, as to the second theory, the individual Defendants are not entitled to qualified immunity on claims that they deliberately or recklessly suppressed or withheld favorable evidence. See, Newsome v. McCabe, 260 F.3d 824 (7th Cir. 2001) ("But if the right characterization of the defendants' conduct is that they deliberately withheld information, seeking to misdirect or mislead the prosecutors and the defense, then there is a genuine constitutional problem."); Blake v. Race, 487 F. Supp. 2d 187, 216 n.21 (E.D.N.Y. 2007) (noting that notwithstanding Walker v. City of N.Y., 974 F.2d 293 (2d Cir. 1992), a Second Circuit case decided in 1992, it was clearly established that police had Brady obligations at least as early as 1990).
The Court finds that Plaintiffs have proffered enough evidence to raise a jury question as to municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Although isolated incidents by non-policymaking employees are insufficient to hold the County liable under Section 1983 for those incidents, Plaintiffs can prevail against the County if they can establish that the alleged wrongdoing was done pursuant to a County policy, was sufficiently widespread and persistent that it constituted a custom or policy of which supervisory authorities must have been aware, or occurs under circumstances evidencing supervisory officials' deliberate indifference to such wrongdoing. Jones v. Town of E. Haven, --- F.3d ----, 2012 WL 3104523, at *6 (2d Cir. Aug. 1, 2012). One way to satisfy these requirements is by establishing that policymakers acquiesced in the unconstitutional behavior of their subordinates. See, e.g., Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 439-440 (2d Cir. 2009).
Here, whether County policymakers constructively acquiesced in the alleged constitutional abuses of its homicide detectives is an issue for the jury. Plaintiffs' evidence demonstrates the following: the County had almost immediate notice that Restivo had been physically assaulted during his interrogation, yet no investigation was made into Restivo's allegations (R/H Stmt. of Disputed Facts ¶¶ 59-65); credible allegations that detectives planted hair evidence in Restivo's van surfaced at Restivo and Halstead's 1986 criminal trial, yet the County conducted no investigation (id. ¶¶ 67-70); in 1995, the County learned that Volpe elicited a false confession from a murder suspect (which eventually resulted in a civil settlement) but did not investigate or discipline him (id. ¶¶ 71-76); in 2004, a civil jury found that Dempsey was responsible for malicious prosecution of a suspect from whom Dempsey had elicited a false confession, but Dempsey was never investigated or disciplined (id. ¶¶ 77-87); the County settled a 2002 civil suit arising out of an alleged 2001 false confession of a suspect in a different murder investigation (id. ¶¶ 88); see also Martinez v. Cnty. of Nassau, No. 02-CV-4985 (JS)(WDW)); and, prior to the Fusco investigation, a manslaughter conviction was reversed because of an illegal confession obtained by NCPD detectives, see People v. Evans, 70 A.D.2d 886, 888, 417 N.Y.S.2d 99, 101 (2d Dep't 1979).
This evidence--especially the failure to investigate or discipline detectives involved in false confessions--suggests that the County had a "custom whereby it acquiesced in unconstitutional conduct by its officers." Okin, 577 F.3d at 440. Defendants chiefly argue that evidence concerning the three false confession cases that followed the Fusco investigation cannot establish what the County's policy was years earlier in 1985. (Def. Reply 12-13.) In the Court's view, however, these later cases can be probative of policymakers' attitudes at the time of the Fusco case. Jones, 2012 WL 3104523, at *10 ("It is not unreasonable to infer that Town officials who were indifferent to such abuse in 2000 might have held similar attitudes three years earlier."); see also Chepilko v. City of N.Y., No. 06-CV-5491, 2012 WL 398700, at *15 (E.D.N.Y. Feb. 6, 2012) ("Subsequent or contemporaneous conduct can be circumstantial evidence of the existence of preceding municipal policy or custom."). Obviously the gap between the initial Fusco investigation and the later false confession cases is greater than the three-year gap discussed in Jones, but at least two of the later cases involved detectives (Volpe and Dempsey, respectively) who had a hand in the Fusco case. And, in any event, the timing is a matter of weight for the jury.
Plaintiffs also assert Monell liability on failure-to-supervise and failure-to-train theories. These theories are distinct from one another, see Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 (2d Cir. 2004) (Sotomayor, J.), and although the failure-to-supervise claim survives, the failure-to-train claim does not. The failure-to-supervise theory may proceed to trial for reasons similar to the ones already mentioned; policymakers had notice of serious wrongdoing beginning with Restivo's lawyer's complaint that Restivo was physically assaulted during his interrogation. See id. at 127-29 (holding that police chief's ...