Grega v. Pettengill (123 F. Supp. 3d 517, 2015)

OPINION AND ORDER RE: DEFENDANTS’ MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM (Docs. 25, 59) .

GEOFFREY W. CRAWFORD, District Judge.

Plaintiff John C. Grega brought this action under 42 U.S.C. § 1983 against defendants William Pettengill, Dan M. Davis, Glen Cutting, and Richard Holden in their individual capacities, and against the Town of Dover, Vermont. John Grega died in a motor vehicle accident on January 23, 2015. His executor, Jeff Grega, has been substituted as the plaintiff in this action. For simplicity, this order refers' to the claims and allegations made by John Gre-ga.

Grega claims that defendants violated his constitutional rights and state laws in connection with the investigation and prosecution of Grega for the murder of his ‘wife, Christine. Presently before the court are defendants’ motions to dismiss Grega’s claims for failure to state a claim. A motions hearing was held on June 16, 2015. For the reasons set forth below, the Town of Dover’s motion (doc. 59) is GRANTED, and the individual defendants’ motion (doc. 25) is GRANTED in part and DENIED in part.

I. Factual Background

Grega’s amended complaint alleges the following facts, which for purposes of this motion the court assumes to be true. (Doc. 53 at 6-49.)

A. Events Preceding Christine Grega’s Death

John and Christine Grega met as students at St. John’s University in 1983. They married in 1985, after each had graduated. The couple settled in New York in 1987, when Grega joined his family’s window cleaning business. The Gregas had their first and only child, John Henry Gre-ga, Jr., in 1992. In September 1994, the family was living in Lake Grove, New York.

On September 10,1994, the Grega family drove from Long Island, New York to the Timber Creek Condominium Complex in Dover, Vermont; for the first leg of a family vacation. They stayed in Unit 69, owned by a former business associate of the family window cleaning business. The Gregas planned to continue their vacation in a family cabin in upstate New York after their stay in Dover. On September 11, 1994 the Gregas shopped, attended a sld show, and dined at a local restaurant. On September 12, the Gregas went to Santa’s Land in Putney, Vermont, ate lunch at a McDonald’s, and returned to the condo in the mid-afternoon.

In the late afternoon of September 12, Grega took John Jr. out while Christine stayed in the condo alone. Grega and John Jr. went to a playground, and then drove around looking for a restaurant. Grega never stopped at a restaurant, and eventually John Jr. fell asleep in his car seat. Grega returned to the condo to prepare John Jr.’s .bed, leaving him asleep in the car. Grega discovered Christine motionless in the bathtub downstairs. He pulled her out of the bathtub, placed her face-up on the bathroom floor, and attempted to perform CPR on her.

Unit 69 had no telephone, so Grega ran to the closest occupied unit, Unit 72, in order to make an emergency call. The Unit 72 occupants-heard Grega yell something to the effect that his wife had fallen in the tub and his son was asleep in the ear. Fearing for their own safety, they refused to open the door to Grega until he. produced his son. Grega retrieved John Jr. from the car, handed him over to the Unit 72 occupants, told them to make an emergency call, and ran back to Unit 69. The Unit 72 occupants made an emergency call around 8:30 p.m.

B. The First Response .

A Dover police- officer (“Dover Officer”) arrived at Unit 69 at 8:36 p.m. He found Grega sobbing on the floor next to Christine. Upon noting Christine’s, pallid blue color, he determined — “contrary to standard operating procedure” — that attempting to resuscitate her would be of no use, and did not do so. (Id. at 12.) He "called dispatch to inform them there had been a fatality.

Around 8:40 p.m., an emergency medical technician .(“First EMT”) arrived. The First EMT evaluated Christine’s -.vital signs, thought he felt a pulse, and instructed the Dover officer to help him perform CPR. The initial chest compressions resulted in copious amounts of water flowing out of Christine’s nose and mouth, followed by large quantities of vomit. The First EMT then stopped attempting CPR.

A Deerfield Valley Rescue ambulance along with a senior EMT (“Senior EMT”) arrived a few minutes later. The Senior EMT entered the unit to hear -a man’s “primal scream,” which was Grega crying hysterically in the downstairs bedroom while the Dover Officer tried to console him. (Id.) Upon arrival, the Senior EMT was “shocked” that neither the Dover Officer nor the First EMT was performing CPR, and noted that the First EMT seemed overwhelmed and' disoriented. (Id.) The Senior EMT ordered that CPR recommence. CPR was unsuccessful, and Christine was carried to an ambulance, which departed for the’local hospital.

A regional medical examiner continued life-saving efforts in the ambulance, but was unsuccessful; He pronounced Christine Grega dead at 9:10 p.m., and rerouted the ambulance to the Deerfield Valley Health Center and then to a funeral home.

The Chief of the Dover Police (“Police Chief’) arriyed at Unit 69 at 9:10’ p.m. He observed no crime scene tape cordoning off the unit. However, he did not order the Dover Officer to secure the scene or restrict access to it, even after he -became suspicious that Christine’s death was not accidental. (Id. at 13-14.)

The Police Chief then ordered a detective (“Dover Detective”) to come to the unit and secure the scene. The Dover Detective arrived around 10:00 p.m. He designated only the downstairs bathroom as a crime scene, and responders “move[d] freely” through, the upstairs portion of the unit. (Id. at 15.) Consequently, the top floor :of the unit had been “contaminated” by around midnight that night, according to a Vermont State Police detective. (Id.) No log was- maintained recording the people who entered or exited the crime scene. Nor did the Dover Detective or Dover Officer preserve any evidence “of a temporary nature” in the downstairs section of the unit. (Id.) Grega alleges that this procedure did not comply with Dover Police Department training materials regarding identifying and-securing a crime scene. According to the Dover Detective’s testimony, “he was not aware of any protocol to secure a scene” and he did not recall “receiving any training on securing a crime scene.” (Id.)

An autopsy was performed. on Christine’s body on September 13; It revealed evidence of extreme trauma including blunt force head wounds, bruises and abrasions, evidence of choking, severe vaginal injuries, and multiple lacerations to the rectal area. An expert who subsequently, examined the autopsy results also identified a fractured hyoid bone.. A State forensics medical expert concluded that the rectal injuries were caused by an object the size of a fist, pipe, or bat.

C. The State’s Investigation

Defendant William Pettengill, a Detective Sergeant with the Vermont State Police (“VSP”), and Defendant Glen Cutting, a VSP Detective Lieutenant, conducted the investigation of Christine Grega’s- murder. Cutting was in charge of the investigation, and Pettengill was the lead investigator working under Cutting’s supervision. Defendant Dan Davis, the Windham County-State’s Attorney, led the State’s prosecution. Davis “was intimately involved in all aspects of the investigation ... [and] there were continual discussions with ... Davis as to how to proceed.” (Id. at 24.)

Cutting and Pettengill arrivéd at Unit 69 at approximately 1:36 a.m. on September 13, 1994. The area was still not 'cordoned off upon their arrival. However, they “did not order that the scene be secured in any' fashion, that efforts be taken to preserve the evidence of a fleeting nature, or that individuals present in the upstairs of the [u]nit be removed so as to preserve the integrity of any evidence” upstairs — despite the fact that Pettengill “concluded almost immediately” that a homicide had occurred. (Id. at 14, 16-17.) Cutting did not declare the entire unit to be a crime scene until after taking a statement from Grega. Still, no crime scene tape was put up around the perimeter of the crime scene, nor was any tamper-proof tape affixed to the unit’s doors until after a search was conducted on September 13. (Id. at 27.) Grega alleges that Cutting’s and Pettengill’s conduct did not comply with VSP’s death investigation training manuals. (Id. at 17.)

Grega alleges that defendants’ investigation was additionally deficient in the following respects:

• Over the course of several hours, nearly two dozen local police officers, state troopers, EMTs (who remained in the condo long after Christine - was removed), and other individuals entered and exited the condo unit without reasonable limits;

• Doors, door knobs, faucets, and surfaces were touched without regard for the forensically destructive consequences of doing so;

• Some of the investigative team members did not wear gloves;

• Nobody wore protective booties;

• No photographs of Unit 69 were taken the night of September 12;

• Rooms were disturbed and personal items were moved;

• One EMT used the. bathroom and flushed the toilet;

• The fixtures and drain on the bathtub where Christine was found were fiddled with, even though they were at the epicenter of forensic inquiry;

• No forensic samples were collected from the bathtub or the floor of the downstairs bathroom despite the fact that this was the epicenter of forensic inquiry;

• Nothing was done to preserve and collect samples of what appeared to be dried vomit in the shape of a shoeprint in the downstairs bathroom, and no one attempted to identify the source of the vomit shoeprint;

• No forensic samples were taken from the downstairs toilet despite the fact that it appeared as though it had been recently used;

• An empty potato .chip bag was tossed into a bundle of the forensically sensitive sheets on which Christine had been carried out to the ambulance;

• No log was maintained to document exactly who entered and exited the scene and at what times;

• Several EMTs wiped down and cleaned up the area where Christine’s body was found and treated before any biological evidence was collected from that area. As a result, Deerfield Valley Rescue members failed to collect and preserve any blood from Christine’s rectal injuries that pooled onto the backboard on which she was treated;

• No investigator requested the recording of Grega’s emergency call to the police from the Unit 72 occupants’ phone before it was routinely destroyed.

(Id. at 12, 18-19, 21). Grega asserts that these actions and omissions indicate noncompliance with Dover Police Department and VSP training manuals as well as VSP written policies and procedures. (Id. at 19-20.)

On September 13, 2014, Detective Cutting assigned a VSP detective (“Search Detective”) to oversee the search, identification, collection, and preservation of evidence in the condo unit. His oversight was required due to “past issues of profés-sional misconduct among the technicians.” (Id. at 25.) Nevertheless, the Search Detective’s only supervisory act was to “may[be] have asked one of [the technicians] to check for prints on the washing machine.” (Id.) One of the lab technicians who collected and evaluated evidence in the investigation was subsequently decerti-fied as a fingerprint expert “for giving erroneous opinions” in a different trial. (Id. at 26.)

Defendants focused on Grega as the only suspect within a few hours of his emergency phone call. Defendants interviewed him at least five times during the thirty-six hours following his emergency phone call without informing him of his Miranda rights. Grega alleges that they also selectively tape-recorded the interviews in order to make Grega appear in the most culpable light possible. (Id. at 24.) Pettengill testified that he “never considered the possibility that someone other than ... Grega had entered Unit 69 and killed Christine.” (Id. at 31.)

Grega alleges that the focus on him as the primary suspect led to additional investigatory failures. Defendants only attempted to obtain fingerprints from the washing machine, which the State’s fingerprint expert testified matched Grega’s. Because they did not consider that the perpetrator could have been an intruder, defendants never attempted to fingerprint any doors or door knobs to the unit. They also never attempted to fingerprint the door or doorknob to the downstairs bathroom, the tub, the “switch for the ceiling heat fixture,” or the toilet in the downstairs bathroom. (Id. at 26.) Nor did defendants attempt to obtain fingerprints from Christine’s body. Cutting testified that he did not Imow what had been fingerprinted but that, “he would like to think the entire [u]nit was processed for fingerprints because that would be ‘good police practice.’” (Id. at 27.) Pettengill knew that only the washing machine had been fingerprinted but did not order anything else to be fingerprinted.

Defendants also allegedly ignored other leads. Two seasonal workers, Bryant Comi and Michael Carpenter, had been painting the building in which the condo unit was located on the day of Christine’s death. They provided false addresses to investigators and gave conflicting stories about their whereabouts- that day. Comi had a criminal record, “including a history of sexual aggression towards women”; smoked Marlboro cigarettes (a piece of a Marlboro cigarette carton had been found in a toilet in Unit 69); admitted to having previously burglarized a condo unit in that complex; and stated that he “‘may have joked about the death of a lady and joked that he ha,d killed the lady to his girlfriend.” (Id. at 29.) The testimony of Carpenter’s then-wife and of Comi’s then-girlfriend’s case worker corroborated Comi’s implication in the. murder. Moreover, the locks to Unit 69 could be opened by keys not meant for the locks; many workers had access to a lock box of keys to the condo units in the complex; and other condo units had recently been broken into. {Id. at 31.) Despite these facts, Comi and Carpenter were not interviewed until June 1995, two weeks before Grega’s trial. {Id. at 30.)

On December 19, 1994, Davis and Pet-tengill filed an information against Grega that charged him with the murder of Christine Grega. Grega was arrested on December 21,1994.

D. Claims that Fabricated Evidence Was Introduced at Trial

The Search Detective wrote a report detailing the results of his September 13, 1994 inspection of Unit 69. According to his report, the contents of the refrigerator included “ ‘a full six pack of Long Trail Ale bottles in their container.’ ” {Id. at 33.) At a deposition that took place in 2012, during Grega’s re-prosecution, the Search Detective confirmed that he found all six bottles in the six-pack container in the refrigerator during his search. He also testified that he pulled one bottle out of the six-pack, placed it on the counter, and photographed it there, in order to show that the brand was Long Trail Ale. {Id. at 34.) The Search Detective replaced the bottle on a shelf in the refrigerator, and'wf >back inside the six-pack container. A‘photograph was subsequently taken of the contents of the refrigerator. This photograph was introduced at trial as Trial Exhibit 84; {Id. at 34 n. 4.)

Davis conducted the direct- examination of the Search Detective at Grega’s .trial. To prepare himself and witnesses for trial, as a general practice Davis reads all of the witnesses’ written reports and prior statements. Therefore, Davis knew or should have known that at the time of the Search Detective’s search of the condo unit on September 13, 1994, all six Long Trail Ale bottles were inside their container. At trial, the Search Detective testified that “ ‘[t]here was a 6 pack of Long Trail Ale bottles.’” (Id. at 35.) Davis did not ask the Search Detective to elaborate on the location of all six of the Long.Trail Ale bottles. Davis questioned the Search Detective about a video and other photographs that had been taken at the time of the search under the Search Detective’s supervision. However, Davis did not question the Search Detective about Trial Exhibit 84.

Instead, Davis questioned Detective Pettengill about Trial Exhibit 84. Davis asked Pettengill if the photograph accurately depicted the contents of the refrigerator as he had observed them on September 19 and not on September 13, before the Search Detective had removed the Long Trail Ale bottle and replaced it in a different location.

The State’s forensic medical expert had concluded'that the object-that had caused Christine Grega’s severe' rectal injuries was the size of a fist, pipe, or bat. In closing, Davis argued to the jury that Gre-ga had used a Long Trail Ale bottle to assault Christine Grega and that the very Long Trail Ale bottle used was the one depicted in Trial Exhibit 84 standing on a shelf in the refrigerator apart from the others inside the six-pack container. Davis argued:

The photo of the Long Trail Ale, there is one out of the six pack on the shelf of the refrigerator. The. state submits that the Defendant when he came back put the Long Trail Ale.there. Ask yourself why is the one beer off to the side there? Looks just a little smaller than the head of a baseball bat.

(Id. at 33.) Defendants never fingerprinted the Long Trail Ale bottle, nor did they run any forensic tests oh it. •

Grega was convicted of aggravated murder on August 4, 1995. He was sentenced to life imprisonment without parole.

E. The Re-Investigation and Re-Prosecution

In the spring of 2010, Grega filed a petition for post-conviction DNA testing under Vermont’s Innocence Protection Act. After a bench trial on September 2, 2011, the Windham County Superior Court ordered the State to perform testing on eight items, including'swabs from the rape kit. On May 14, 2012, DNA testing revealed the presence of an unknown male’s DNA on rectal swabs from the kit. Grega was excluded as the source of that DNA. As a result, the Windham County Superior Court vacated Grega’s conviction on August 21, 2012. After serving seventeen years and eight months in prison, Grega was freed on August 22, 2012.

The Windham County State’s Attorney continued the prosecution against Grega for Christine’s murder after his conviction was vacated. Defendant Richard Holden, a VSP Detective Sergeant, had responsibility for re-investigating Christine Grega’s murder. The reinvestigation centered on attempting additional testing of DNA evidence preserved from the crime scene.

A laboratory identified by Grega as “Strand” tested the DNA evidence from Grega’s case. Grega alleges that an Assistant Attorney General involved in the case falsely told Strand that the rectal swab containing the unknown male’s. DNA was “ ‘negative for seminal fluid.’ ” (Id.) Consequently, the laboratory “discarded the extract,” rendering it impossible to conclusively determine whether the unknown male’s DNA came from sperm cells. (Id.) Dr. Buel, Director of the Vermont Crime Laboratory, stated in part in an email to the Windham County State’s Attorney:

[T]he extraction techniqüb [Strand] used would not have lysed the sperm cells so the profile they generated is probably mostly epithelial cells (the DNA from the sperm — if they were present on this swab — was thrown away.) I was quite surprised by this— Was I involved in having this swab analyzed by Strand? ’

(Id. at 41.) Two minutes later,-the State’s Attorney responded: “The sperm, if any, was thrown away!?!?!?!?!!? No, neither you nor I was involved- in the Strand -analysis. The AG’s office, working with the VFL, got me into this mess.” (Id.)

Detective Holden testified that there were three possible explanations for the presence of the unknown male’s DNA on the rectal swab: the DNA belonged to the perpetrator; the swab was contaminated; or the DNA was transferred to Christine’s rectum from some object of assault such as the Long Trail Ale bottle. (Id. at 42.)

Grega- alleges that the possibility of contamination was ruléd out by the collection of buccal swabs from thirty males. who were involved in the investigation of Christine’s murder; none of .the "thirty males’ DNA matched the unknown male’s, so the rectal swab was likely not contaminated by a responder or investigator. Grega asserts that the third option was ruled out by Detective Holden’s own. statement that the transference theory was “ ‘water cooler talk’ ” and “ ‘a long shot’ ”; the fact that the theory was “so far-fetched and without scientific basis” that Holden and the State’s Attorney could not find a forensic expert willing to support it; and the fact that Holden never had the Long Trail Ale bottle forensically tested or DNA-tested to determine whether it contained the unknown male’s DNA. (Id. at 41-43.) Therefore, Grega asserts that according to Holden’s own testimony, the only explanation that remained was that the unknown male — clearly not Grega — was the perpetrator.

Grega alleges that Detective Holden also failed to realize that the Long Trail Ale bottle evidence was fabricated. (Id. at 40-41.)

Grega also claims that Detective Holden and the State’s Attorney intentionally obstructed and delayed the pre-trial process. At the November 6, 2012 pre-trial conference, the Vermont Superior Court set a ninety-day deadline for additional DNA testing. . The State’s Attorney twice requested and received an extension in which Holden could complete testing, with a final deadline of August 23, 2013. However, during this time Holden’s testing activity produced nothing but unhelpful buccal swabs. Additionally, Holden continually changed his mind about the number of items he planned to get tested, ending with only an intention to confirm that the swabs to be tested came from Christine Grega— which was, according to Grega, “a completely useless exercise without evidentia-ry significance.” (Id. at 44.) Nonetheless, Holden continued to advocate for Grega’s re-prosecution until August 21, 2013, two days before the DNA testing deadline set by the court.

Defendant Davis reappeared on the scene during Grega’s re-prosecution, even though he had returned to private life. He was quoted in a July 28, 2012 article published in Newsday, a Long Island newspaper in wide circulation in Grega’s hometown. The article recounted how Davis “remained stalwart in his victory in convicting Mr. Grega despite the significance of the recently discovered unknown male DNA.” (Id. at 46.)

The State was unable to determine the source of the unknown male DNA found on the rectal swabs. The re-prosecution ended on August 21, 2013, when the Wind-ham County State’s Attorney filed a notice of dismissal without prejudice.

F. Grega’s Legal Claims

On July 14, 2014 Grega filed this action alleging that defendants deprived him of various constitutional rights in violation of 42 U.S.C. § 1983. Grega also makes several state law claims.

Specifically, Grega claims: defendants Pettengill and Davis failed to investigate and destroyed exculpatory evidence in violation of § 1983 (Count 1); defendant Pet-tengill falsified evidence and failed to disclose the false evidence in violation of § 1983 (Count 2); defendant Pettengill conspired with at least one other individual to violate Grega’s civil rights through falsification of evidence in violation of § 1983 (Count 5); defendants Pettengill and Holden maliciously prosecuted Grega, in violation of § 1983 and state law (Counts 3, 7, 9); defendants Pettengill and Holden falsely imprisoned Grega in violation of § 1983 and state law (Counts 4, 8, 10, 12); defendants Cutting and Pettengill failed to train inferiors and failed to supervise the investigation of Christine Grega’s murder, in violation of § 1983 (Count 6); defendant Town of Dover failed to train its employees and failed to supervise the investigation of Christine Grega’s murder in violation of § 1983 (Count 6); defendants Pettengill, Davis, and Holden intentionally inflicted emotional distress upon Grega (Count 11); and defendant Davis defamed Grega (Count 13).

Grega alleges various injuries resulting from defendants’ alleged unconstitutional and tortious behavior, including: seventeen years and eight months of wrongful incarceration; a damaged relationship with his son; emotional distress, including post-traumatic stress disorder (PTSD); and physical and mental health problems due to his time in prison. He requests compensatory and punitive damages. Defendants have moved to dismiss all of Grega’s claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. Standard of Review

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint need not contain “detailed factual allegations,” Bell Atl Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), but to survive a motion to dismiss it must contain “sufficient factual matter, accepted as'true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). “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.”. Id. -While “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do ..., when there are well-pleaded factual allegations, a court should assume their veracity- and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 678-79, 129 S.Ct. 1937. This is a context-specific task that draws on both “judicial experience and common sense.” Id. If a plaintiff has failed to “nudge[ ] [his] claims across the line from conceivable to plausible,” Twombly, 550 U.S. at 570, 127 S.Ct. 1955, the claims must be dismissed.

When reviewing a Rule 12(b)(6) motion to dismiss, the court’s consideration is limited to “the facts as presented within the four corners of the complaint ... or to documents incorporated within the complaint by reference.” Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002). The court may also consider documents in the public record. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998).

III. Analysis and Conclusions A. Failure to Investigate and Destruction of Exculpatory . Evidence (Count 1)

Grega first claims that Pettengill’s and Davis’s response to the crime scene and their subsequent investigation were riddled with errors and that these errors wrongly caused defendants to charge Gre-ga with Christine’s murder; negatively affected his ability to defend himself at trial; and ultimately led to his wrongful conviction and incarceration. He claims defendants violated his constitutional right to due process by “deliberately and/or recklessly failing] to investigate adequately, as any minimally competent officer would have, whether someone other than Mr. Grega was the Perpetrator_” (Doc. 53 at 49.) He specifically alleges that defendants:

(a) fail[ed] to fully and appropriately investigate the evidence- of the death of Christine Grega; (b) fail[ed] to discover and preserve the vast majority of evidence present at the crime scene, including any exculpatory evidence, even though Mr. Grega’s Innocence Protection Act proceedings clearly demonstrate. that such exculpatory evidence existed at the time; (c) destroyed] ex.culpatory evidence of the Perpetrator by failing to follow procedures with regard to securing the scene, avoiding contamination of the scene, preserving evidence, collecting evidence, and conducting, .an adequate canvass of potential witnesses and/or suspects; and/or (d) fail[ed] to follow through on obvious leads into suspects other than Mr. Grega. Moreover, they prematurely ended their investigar tion even though another person with a -history of violence confessed to being involved in the murder.

(Id. at 49-50.)

The court construes Grega’s Count 1 to make a claim of failure to investigate and an additional 'claim of destruction of exculpatory'evidence.

i. Failure to Investigate

Section 1983 is not a source of substantive rights but is “a method for vindicating federal rights elsewhere conferred.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir.2004). To state a claim under § 1983, a plaintiff must allege: (1) the deprivation of aright, privilege, or immunity secured by the Constitution or laws, (2) by a person acting under color of state law. 42 U.S.C. § 1983. Defendants contend that Grega’s failure-to-investigate claim fails because the Due Process Clause does not- confer upon potential criminal defendants a right to an investigation that meets a minimum standard. (Doc. 25-1 at 22,). They point to cases in which coui’ts rejected failure-to-investigate claims and incorporated allegations of failure to investigate into claims of false arrest or malicious prosecution — conduct which violates the Fourth Amendment. See, e.g., Russo v. City of Bridgeport, 479 F.3d 196, 208 (2d Cir.2007) (concluding.the right to be protected from a sustained detention, “stemming directly from the law enforcement officials’ refusal to investigate available exculpatory evidence .fits comfortably under the coverage of the Fourth Amendment” rather than under substantive due process).

Grega-argues that the Second Circuit cases that connect “failure to investigate” claims with claims.of Fourth Amendment violations are distinguishable from his because he alleges a different harm. Grega contends that defendants’ shoddy investigation caused not his physical detention-r-which is Fourth Amendment territory — but his inability to mount an effective defense at trial — a harm that is rooted in due process. (Doe. 37 at 16-20.) The Second Circuit has recognized that “ensuring the reliability of any criminal verdict” is within the purview of the Due Process Clause. United States v. Coppa, 267 F.3d 132, 139 (2d Cir.2001) (holding that due process requires disclosure of Brady material in time for effective use by‘ defense). Grega claims that defendants’ investigation damaged the integrity of the trial process. Defendants accuse Grega of attempting to “.shoe-horn” his allegations into a cause of action which necessarily fails. (Doc. 45 at 3.) In fact, Grega attempts to distinguish other similar causes of action from his own. He does not seek to use a shoehorn; he seeks to develop new shoes by’ creating á new basis for relief.

Decisional law within the Second Circuit recognizes that the due process right to a fair trial may be impaired by a Brady violation or by destroying or fabricating evidence. See Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir.2000); United States v. Bakhtiar, 994 F.2d 970, 975 (2d Cir.1993). Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” A Brady violation has three components: “‘[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.’ ” United States v. Jackson, 345 F.3d 59, 71 (2d Cir.2003) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Grega’s allegations in support of his “failure to investigate” claim fall short of alleging a Brady violation. He does not point to any exculpatory evidence that defendants possessed and suppressed. Likewise, Grega’s failure-to-investigate claim is distinct from a" claim of evidence fabrication, which he alleges separately in Count 2.

Grega instead argues that a criminal defendant’s right to mount a proper defense at trial — the due . process concern that leads to. the duty to disclose announced in Brady — also imposes a duty on those conducting a crime scene investigation to do so without recklessness or intentional misconduct. The “new shoes” which Grega seeks to develop is essentially a malpractice standard based upon “reckless” conduct. In so doing, Grega advocates for an expansion of the range of government conduct that amounts to a violation of a criminal defendant’s right to a fair trial in this circuit.

The Eighth Circuit has recognized the cause of action that Grega asserts. In Wilson v. Lawrence County, 260 F.3d 946 (8th Cir.2001), it extended the due process rights of criminal suspects by imposing upon investigators a duty to follow up potential leads such that potentially existing exculpatory material is not recklessly overlooked. Id. at 957 (“Law enforcement officers, like prosecutors, have a responsibility to criminal defendants to conduct their investigations and prosecutions fairly as illustrated by the Brady line of cases requiring the state to disclose exculpatory evidence to the defense.”) It is easy to see how a recklessly conducted investigation later impairs the criminal defendant’s ability to defend himself at trial. After all — as the Vermont State training manuals cited by Grega emphasize — the investigation can only be done once, and it is in the State’s, and not the criminal defendant’s, hands. (Doc. 53 at 17) (“ ‘In every death investigation enter the scene and assume that it is a homicide.... Remember: you can never go back and do- it over!’ ”) (quoting VSP death investigation training manuals, dated 1990); see also id. at 19-20 (“ ‘What an officer does, or fails to' do, in protecting and preserving the crime scene may materially affect the outcome of a case.’”) (quoting Criminal Investigations Introduction, 4-6.0 (Oct.1983)).

In .Wilson, investigators elicited a false murder confession from Wilson, a mentally disabled individual, and secured a guilty plea from him in the absence of'reliable corroborating evidence and despite leads indicating that another individual was involved in the murder. 260 F.3d at 949, 957. After nine years in jail, Wilson was pardoned. Id. at 949. The Eighth Circuit recognized Wilson’s liberty interest in obtaining fair criminal proceedings. Id. at 956 n. 8. It then found “no countervailing equally important governmental interest that would excuse the [defendants-appellants] from fulfilling their responsibility to investigate these leads when faced with an involuntary confession and no reliable corroborating evidence.” Id. at 957. The court concluded that, while “[negligent failure to investigate other leads or suspects does not violate due process,” reckless failure to investigate does. Id. at 955, 957. The Eighth Circuit thus “recognized a substantive due process cause of action for reckless investigation ... where [it] identified the liberty interest at stake as the interest in obtaining fair criminal proceedings.” Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir.2008) (internal citation and quotation omitted).

However appealing the Eighth Circuit’s reasoning may appear, the Second Circuit has yet to recognize a claim that a state officer’s reckless failure to investigate all aspects of a crime violates the due process rights of the accused. This point alone does not preclude this court from recognizing such a cause of action. Developments in the law must start somewhere. However, to allow this claim to go forward would alter existing standards of governmental liability in ways that case law indicates the Second Circuit would deem unwise. See United States v. Okatan, 536 Fed.Appx. 18, 20 (2d Cir.2013) (noting that right to due process is. violated by failure to preserve evidence only if the evidence’s exculpatory value was apparent before it was destroyed); Martinsky v. City of Bridgeport, 504 Fed.Appx. 43, 46 (2d Cir. 2012) (“[PJolice officers are not required conclusively to eliminate all alternative explanations offered by a suspect where the evidence reasonably indicates that the suspect may have committed a crime,”); Virgil v. Town of Gates, 455 Fed.Appx. 36, 40 (2d Cir.2012) (“If probable cause is established, there is no constitutional right, whether under the Fourth or Fourteenth Amendment, to demand further investigation before arrest or prosecution.”); see also Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (declining to “impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary signifi-canee in a particular prosecution” and requiring showing of bad faith to state claim that police’s “failure to preserve potentially useful evidence ... constitute^] a denial of due process-of law”).

Moreover, other district courts in this circuit have consistently declined to recognize a claim of “failure to investigate” as a violation of due process giving rise to a damages action. See, e.g., McCaffrey v. City of New York, No. 11 Civ. 1636(RJS), 2013 WL 494025, at *5 (S.D.N.Y. Feb. 7, 2013) (“[A] ‘failure to investigate’ claim is not independently cognizable as a standalone claim.... ”); Edwards v. City of New York, No. 10-CV-01047(ARR)(LB), 2011 WL 5024721, at *2 (E.D.N.Y. Oct. 18, 2011) (“[P]laintiffs failure to investigate claim does not assert an independent ground for relief.... ”); Newton v. City of New York, 566 F.Supp.2d 256, 278 (S.D.N.Y.2008) (noting “there is no constitutional right to an adequate investigation” and dismissing claim that defendants deliberately or recklessly failed “to conduct a constitutionally adequate investigation”); Blake v. Race, 487 F.Supp.2d 187, 212 n. 18 (E.D.N.Y.2007) (rejecting claim of failure to investigate as a violation of due process). Grega attempts to distinguish these cases for various reasons, such as pleading failures on the part of plaintiffs or because the court did not consider whether the cause of action could exist under the Fourteenth Amendment specifically. (Doc. 37 at 18-19.) Even so, the court finds it persuasive that other district courts within the Second Circuit have uniformly declined to recognize the cause of action Grega advocates.

Along with other courts in this circuit, this court is not willing to recognize the claim Grega advocates in the face of precedent indicating it should be rejected. “Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” California v. Trombetta, 467 U.S. 479, 486, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). It would be imprudent to announce the arrival of a new legal standard and potentially broad remedy without clear guidance from the appellate courts.

Because in this circuit failure to investigate is not a recognized basis for relief under the Due Process Clause, Grega’s version of the proposed claim — while forceful — fails. His cause of action against defendants Pettengill and Davis for “failure to investigate” as a violation of due process is dismissed.

ii. Destruction of Exculpatory Evidence

In the same count as his failure-to-investigate claim, Grega also alleges that defendants violated his right to due process by destroying exculpatory evidence. Grega asserts two bases for a due process violation: that defendants destroyed exculpatory evidence and that defendants destroyed, in bad faith, evidence that had exculpatory potential. Both claims fail.

The State’s duty to preserve exculpatory evidence is a natural extension of its duty under Brady to provide access to criminal defendants of all evidence that is “material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. “[T]his right would be empty if the government could trump it by the simple expedient of destroying evidence harmful to its theory of the case.” Magraw v. Roden, 743 F.3d 1, 7 (1st Cir.2014).

Grega argues that the evidence that was inadvertently destroyed by the State’s careless investigation necessarily included exculpatory evidence such as additional DNA from the unknown male. (Doc. 37 at 24-25.) This claim bears a strong resemblance to Grega’s failure-to-investigate claim. But the State is not required to preserve and disclose exculpatory evidence it never possessed. Morgan v. Salamack, 735 F.2d 354, 358 (2d Cir. 1984) (holding that the government is not required to disclose evidence it does not possess or of which it is not aware). Grega argues that defendants should have known that exculpatory evidence could be found in, for example, the pool of blood they wiped up, given that the DNA of an unknown male was found inside Christine Grega’s body. (Doc. 37 at 25.) However, defendants were not aware on September 12, 1994 that the crime scene before them contained traces of another male’s DNA; this fact would not be discovered until nearly two decades later. The State does not have “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance.” Youngblood, 488 U.S. at 58, 109 S.Ct. 333.

Grega also fails to state a claim that defendants destroyed potentially exculpatory evidence in bad faith. When the exculpatory value of evidence was unknown at the time of its destruction, a criminal defendant’s due process right is only violated if the State destroyed the evidence in bad faith. Illinois v. Fisher, 540 U.S. 544, 547-48, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004).

A criminal defendant is entitled to relief based on the government’s pre-trial destruction of (or failure to preserve) potentially exculpatory, evidence where: (1) the government acted in bad faith in destroying the evidence; (2) the evidence possessed an exculpatory value that was apparent before it was destroyed; and (3) the defendant was unable to obtain comparable evidence by other reasonably available means..

United States v. Hunley, 476 Fed.Appx. 897, 898-99 (2d Cir.2012) (Summary Order) (citing Youngblood, 488 U.S. at 58, 109 S.Ct. 333) (internal quotations and modifications omitted).

Again, the State is only required to retrain from destroying or losing in bad faith potentially exculpatory evidence that it has already gathered or collected. See Neil v. Walsh, No. 07 Civ. 6685(DLC), 2009 WL 382637, at *5 (S.D.N.Y. Feb. 17, 2009) (The State “is not, however, required to disclose evidence it does not possess or of which it is not aware, and there is no due process requirement that the government use any particular investigatory tool, including quantitative testing, tosecure'exculpatory evidence.”); United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998) (“The Brady obligation extends only to material evidence ... that is known to the prosecutor. An individual prosecutor is presumed' ... to have knowledge of all information gathered in connection with his office’s investigation _”) (emphasis added) (citations onjitted).

To the extent Grega alleges that defendants destroyed potentially exculpatory evidence as a result of their reckless investigation, this claim covers the same ground ’’ as Grega’s failüre-to-investigate claim. The failure to conduct an adequate investigation cannot itself be a basis for bad faith, as Grega urges. (Doc. 37 at 25.) To so allow would impose a duty on the State to gather evidence it did not possess or even knew existed. This court -has already rejected imposing such-a duty in dismissing Grega’s failure-to-investigate claim. Additionally, “bureaucratic error alone is not a sufficient basis to infer bad faith on the part of the government in its destruction of potentially exculpatory evidence.” Hunley, 476 Fed.Appx. at 899; see also Youngblood, 488 U.S. at 58, 109 S.Ct. 333 (concluding that negligent failure to refrigerate item of clothing and failure to forensically test semen samples did not amount to bad faith destruction of potentially exculpatory evidence).

Further,. as noted above, Grega has failed to allege facts tending to show that any exculpatory value of the evidence not collected would have been readily apparent to defendants. See Trombetta, 467 U.S. at 489, 104 S.Ct. 2528 (holding that the State has a duty to preserve only evidence which “possesses] an exculpatory value that was apparent before the evidence was destroyed”); see also Kelley v. Penny, No. 94-CV-830S, 1996 WL 1015418, at *22 (W.D.N.Y. Sept. 11, 1996) (concluding that recordings of emergency phone calls had only.potential exculpatory value and their destruction did not violate due process). Obviously if the plaintiff does not know what was not found, the court cannot determine what effect it may have had at trial. For these reasons, Grega has failed to state a claim of destruction of exculpatory or potentially exculpatory evidence.

B. Fabrication of Evidence (Count 2)

Grega claims in Count 2 of his amended complaint that defendant Pettengill fabricated evidence that Grega used a Long Trail Ale bottle to commit the assault on Christine and that Pettengill faded to disclose this false evidence. (Doc. 53 at 50.) A criminal defendant has a constitutional right “not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.” Zahrey, 221 F.3d at 349. “When a police officer ere-ates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial,” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir.1997).

A plaintiff who makes a falsified evidence claim must allege that “an (1) investigating official (2) fabricate[d] evidence (3) that [was] likely to influence a jury’s decision, (4) forward[ed] that information to prosecutors, and (5) the plaintiff suffered] a- deprivation of liberty as. a result.” Jovanovic v. City of New York, 486 Fed.Appx. 149, 152 (2d Cir.2012). Because “ § 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions,” Malley v. Briggs, 475 U.S. 335, 345 n. 7, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the deprivation of liberty must be caused by the evidence falsification.

Defendants .-take issue with various aspects of Grega’s claim. First, they argue that it is barred by absolute witness immunity. (Doc. 25-1 at 27-28.) It is true that police officers are absolutely immune from liability for damages under § 1983 for giving perjured testimony. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing Briscoe v. LaHue, 460 U.S. 325, 326, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)). Defendants’ argument, however, misunderstands Grega’s claim. He does not allege that Pettengill gave false testimony at Grega’s trial. Rather, he alleges that Pettengill fabricated evidence which led to a deprivation of Grega’s liberty. The testimony and argument regarding the fabricated evidence, and the resulting effect on the jury, were necessarily the causal mechanism by which it led to a constitutional violation. The alleged unconstitutional behavior, however, is the fabrication of evidence prior to trial and not the specific testimony offered by a police officer regarding the alleged false evidence at trial. “[A] police officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable corruption of the truth-seeking function of the trial process.” Ricciuti 124 F.3d at 130 (internal quotation omitted)/ The fact that Pettengill testified as a witness does not cloak him in absolute immunity from liability for actions taken, before trial commenced or outside of the courtroom. See Paine v. City of Lompoc, 265 F.3d 975, 978 (9th Cir.2001) (“[T]here is no reason that [a witness’s] participation should be insulated from liability simply because of his dual roles as witness and fabricator.... ”).

Defendants next argue' that the Long Trail Ale bottle evidence, even if falsified, was immaterial to the jury’s ‘ decision to convict Grega. (Doc. 25-1 at 29.) Defendants contend that it “hardly matters ... whether the beer bottle was inside or outside of the six-pack holder for purposes of determining whether it could have been used as an instrument of sexual assault.” (Id.) Grega has alleged, however, that the fabricated Long Trail Ale bottle evidence was likely to influence the jury’s decision, and the allegation is not implausible. Gre-ga ’points out that Davis drew special attention to the position of the single Long Trail Ale bottle during his closing argument to the jury.' The assertion that Gre-ga used that particular' Long Trail Ale bottle — or indeed any Long Trail Ale bottle at all — to assault Christine becomes compelling largely to the extent a jury believes that the bottle had been removed iron; the six-pack container and then replaced on the refrigerator shelf by the perpetrator. The court cannot conclude as a matter of law that the- jury would have convicted Grega in the absence of the allegedly fabricated .Long Trail Ale bottle evidence. See Maldonado v. City of New York, No. 11 Civ. 3514(RA), 2014 WL 787814, at *10 (S.D.N.Y. Feb. 26, 2014) (declining to conclude as a matter of law that allegedly fabricated police report was not a legal cause of plaintiffs confinement). ■

Finally, defendants argue that Grega has failed to state a claim for evidence fabrication because there was no fabricated evidence. (Doc. 45 at 9-11.) They contend that Grega’s factual allegations describe at most “an innocent mistake by a prosecutor in closing argument.” (Id.) They-also argue that the photographic evidence itself was not false and that Petten-gill gave no false testimony concerning its authenticity. (Id. at 10-11.) .In other words, even though the photograph did not portray the contents of the refrigerator as they appeared when first responders arrived at the scene of the crime, it did indeed portray the contents of the refrigerator on September 19, 1994, when Pet-tengill viewed it. The essence of defendants’ argument is that an unretouched photograph can never constitute false evidence outside of the context given it; and in this case, the context was provided by immunized and truthful witness testimony.

This argument fails because a misleading photograph may constitute fabricated evidence. See Willis v. Blevins, 966 F.Supp.2d 646, 658 (E.D.Va.2013) (concluding that plaintiff stated a claim for fabrication of evidence where blue-light forensic photographs showed “imperfections” in crime scene wall and plaintiff alleged the wall was not damaged at the time of the crime); Lisker v. City of Los Angeles, No. CV09-09374 AHM (AJWx), 2013 WL 1276047, at *24 (CD.Cal. Feb. 4, 2013) (concluding that photographs of reconstructed crime scene constituted false evidence and denying summary judgment on fabrication of evidence claim). Were that not the case then police officers could manipulate a crime scene; photograph the manipulated crime scene; and introduce the photograph, through truthful testimony, as an accurate portrayal of the crime scene at a time certain after it had been manipulated. A plaintiff would have little recourse from such unjust trial tactics except to seek to establish that the photograph did not accurately depict the scene of the crime before any manipulation occurred. The court does not believe the evidence fabrication case law does or should place such an unfair burden on the defendant In the case of a doctored crime scene.

Grega alleges that Detective Pettengill falsified evidence — in the form of a falsely contextualized photograph — that Grega used a certain Long Trail Ale bottle to commit an assault on Christine. Grega further alleges that the false evidence that a beer bottle had been found outside of the six-pack container on a shelf in the refrigerator likely influenced the jury’s decision. He claims not only that Pettengill provided the false evidence to Davis, but also that Davis was aware the evidence was false and agreed to present it to the jury. Finally, Grega alleges that he suffered a deprivation of liberty as a result of the fabricated Long Trail Ale bottle evidence. He has therefore sufficiently alleged a claim of fabrication of evidence. Grega’s claim of evidence fabrication against Pet-tengill survives defendants’ motion to dismiss.

C. Section 1988 Conspiracy to Fabricate Evidence (Count 5)

Grega claims that defendant Pettengill conspired with Davis and perhaps others to introduce the alleged fabricated evidence at trial, to withhold exculpatory and impeachment evidence, and to conduct an inadequate investigation of the crime scene. (Doe. 53 at 53.) The éíements of a § 1983 conspiracy are: “(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act doné in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999). “[Complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 325 (2d Cir.2002).

First, Grega cannot state a claim of conspiracy to violate his constitutional rights by failing to investigate because the Second Circuit does not recognize a failure-to-investigate claim. Therefore, Pet-tengill’s alleged failure to adequately investigate the crime scene could not inflict an unconstitutional injury on Grega. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (“[Á] plaintiff alleging a § 1983 conspiracy claim must prove an actual violation of constitutional rights.”).

Second, Grega has not adequately pled a claim of conspiracy to withhold exculpatory and impeachment evidence because his .allegations supporting the claim are too conclusory to survive a Rule 12(b)(6) motion. To adequately plead a claim of failure to disclose exculpatory or impeachment evidence — a Brady violation — a plaintiff must allege that the evidence is favorable to the accused; it was willfully or inadvertently suppressed by the state; and prejudice ensued. Jackson, 345 F.3d at 71. Grega, however, does not identify any exculpatory material that Pettengill withheld. He only alleges that Pettengill and Davis agreed to and did “withhold and conceal information from Grega.” (Doc. 53 at .53.) Nor can Grega’s conspiracy claim be founded on the alleged destruction of exculpatory evidence, for which Grega has also failed to state a claim.

Regarding the claim of conspiracy to fabricate evidence, defendants first argue that “Grega has not alleged any underlying constitutional or statutory violation that could serve as the basis for a section 1983 conspiracy claim.” (Doc. 25-1 at 42.) However, as concluded above, Grega has sufficiently pled a claim that Pettengill fabricated evidence and that the false evidence led to a violation of Grega’s Fourteenth Amendment right to due process.

Defendants next argue that “Grega’s allegations of a conspiracy simply are not plausible” because he has offered only con-clusory allegations of a conspiracy that fall short of “suggesting any ‘meeting of the minds’ or ‘concerted action’ on the part of Davis and Pettengill to violate his constitutional rights.” (Doc. 25-1 at 43.) Grega alleges:

Pettengill and Davis, and perhaps others, agreed to introduce" evidence of a single Long Trail Ale bottle — which, in the photograph introduced at trial'was not in the six pack container ... — in the refrigerator of Unit 69 as the assault weapon, even though they had no basis whatsoever for believing that the Long Trail Ale bottle was the assault weapon.

(Doc. 53 at 32.) Grega supports these allegations with well-pleaded, detailed facts regarding the creation of the misleading photograph and Pettengill’s and Davis’s access to the Search Detective’s report indicating that the photograph falsely depicted the crime scene.' Grega further 'alleges that Davis" “was intimately involved” in the investigation and investigatory decisions were made with his input. (Doc. 53 at 24.) Accepted as true, these allegations render plausible Grega’s claim that Pettengill and Davis agreed to introduce fabricated evidence that a Long Trail Ale bottle was found conspicuously outside of the six-pack container in order to suggest that Grega had used it to assault Christine. See Coggins v. Cnty. of Nassau, 988 F.Supp.2d 231, 238-39, 247 (E.D.N.Y.2013) (holding that plaintiff adequately pled § 1983 conspiracy to fabricate evidence where his complaint alleged detailed facts concerning police officers’ agreement to “an altered version” of events and to “omit and falsify information in their reports”). Grega has sufficiently alleged all of the elements of a § 1983 conspiracy claim, including that an agreement was made to violate his constitutional rights.

D. Malicious Prosecution (Counts 3> 7, and 9)

i. Defendant Pettengill

Grega asserts a claim of malicious prosecution against defendant Pettengill under § 1983, alleging violations of the Fourth and Fourteenth Amendments. He also makes, a claim of malicious prosecution against Pettengill under Vermont law.

A malicious prosecution claim under § 1983 follows the state law standard, see Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002), so the federal and state law claims are analyzed together. In Vermont, “a plaintiff must demonstrate that the defendant initiated the prosecution (1) without probable cause (2) with a malicious intent, and (3) the proceeding terminated in [the] plaintiffs favor.” Kent v. Katz, 146 F.Supp.2d 450, 460-61 (D.Vt. 2001), off'd in part, 312 F.3d 568 (2d Cir. 2002); see also Czechorowski v. State, 178 Vt. 524, 872 A.2d 883, 895 (2005) (“To state a common law claim for malicious prosecution, a plaintiff must demonstrate that a legal proceeding was instituted with malice and without probable cause, that it terminated "in favor of the plaintiff, and that it resulted in damages to the plaintiff’). “Malicious prosecution claims are ‘routinely brought against state and local prosecutors, law enforcement officers, and investigators for their actions in connection with the filing of criminal proceedings.” Czechorowski, 872 A.2d at 895-96.

Defendants argue that Grega fails to state a claim of malicious prosecution because he has not sufficiently alleged a lack of probable cause to prosecute him or that the underlying criminal proceeding terminated in his favor. Defendants also argue that Pettengill, is entitled to qualified inn-munity on the .malicious prosecution claims. (Doc. 25-1 at 30-38; Doc. 45 at 11-16.) . ; , ,

“Probable cause, in the context of malicious'prosecution, has .been described as such facts and circumstances as would lead a reasonably prudent person to believe the plaintiff guilty.” Boyd v. City of New York, 336 F.3d 72, 76 (2d Cir.2003). “Put simply, the issue with respect to malicious prosecution is whether probable cause exists as of the time the judicial proceeding is commenced, as opposed to at the time of the arrest.” Fanelli v. City of New York, No. 13 Civ. 1423(KBF), 2013 WL 6017904, at *4 (S.D.N.Y. Nov. 1, 2013).

“The mere fact that a criminal tribunal found probable cause normally provides a presumption thát' probable cause existed in the context of a subsequent wrongful prosecution Claim;” Lay v. Pettengill, 191 Vt. 141, 38 A.3d 1139, 1147 (2011). “That presumption may be rebutted 'only by evidence that the [probable cause finding] was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Manganiello v. City of New York, 612 F.3d 149, 162 (2d Cir.2010); see also Lay, 38 A.3d at 1147 (“This presumption.- of probable cause is rebuttable only if a plaintiff can demonstrate that th