Anilao v. Spota (340 F. Supp. 3d 224, 2018)

Plaintiffs are represented by James Druker, Kase & Druker, Esqs., 1325 Franklin Avenue, Suite 225, Garden City, NY 11530; Paula Schwartz Frome, Esq., 1325 Franklin Ave., Suite 225, Garden City, NY 11530; and Oscar Michelen, Cuomo LLC, 200 Old Country Road, Suite 2 South, Mineola, NY 11501.

Plaintiff Felix Vinluan is also represented by Sherri Anne Jayson, Cuomo LLC, 9 East 38th Street, 3rd Floor, New York, NY 10016.

Defendant Thomas J. Spota is represented by Brian C. Mitchell, Suffolk County Dept. of Law, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, NY 11788 and Garrett W. Swenson, Jr., Esq., 76 Bay Road, Brookhaven, NY 11719.

Defendants Leonard Lato and the County of Suffolk are also represented by Brian C. Mitchell.

Defendants Sentosa Care, LLC, Avalon Gardens Rehabilitation and Health Care Center, Prompt Nursing Employment Agency, LLC, Francris Luyun, Bent Philipson, and Berish Rubinstein are represented by Matthew Didora, Sarah C. Lichtenstein, and John Scanlan Cahalan, Abrams Fensterman, 1111 Marcus Avenue, Suite 107, Lake Success, NY 11042.

Sarah C. Lichtenstein also represents defendants Susan O'Connor and Nancy Fitzgerald.

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

Juliet Anilao, Harriet Avila, Mark Dela Cruz, Claudine Gamaio, Elmer Jacinto, Jennifer Lampa, Rizza Maulion, James Millena, Theresa Ramos, Ranier Sichon (the "nurse plaintiffs"), and Felix Q. Vinluan ("Vinluan") (collectively "plaintiffs") brought this action against Thomas J. Spota, III, individually and as District Attorney of Suffolk County ("District Attorney Spota" or "Spota"); the Office of the District Attorney of Suffolk County ("the DA's Office"), Leonard Lato, individually and as an Assistant District Attorney of Suffolk County ("Lato"), and the County of Suffolk (collectively the "County defendants"); Sentosa Care, LLC ("Sentosa"), Avalon Gardens Rehabilitation and Health Care Center ("Avalon"), Prompt Nursing Employment Agency, LLC ("Prompt"), Francris Luyun ("Luyun"), Bent Philipson ("Philipson"), Berish Rubinstein ("Rubinstein"), Susan O'Connor ("O'Connor"), and Nancy Fitzgerald ("Fitzgerald") (collectively the "Sentosa defendants"), alleging that the County defendants and the Sentosa defendants violated plaintiffs' constitutional rights pursuant to 42 U.S.C. § 1983 (" Section 1983").

As set forth in more detail below, the claims in this case stem from what was originally an employment dispute between the nurse plaintiffs and the Sentosa defendants. Based upon the undisputed facts, the record demonstrates that Sentosa recruited the nurse plaintiffs to work in the United States, and they were placed at the Avalon facility. Many of the nurse plaintiffs were specifically assigned to work in Avalon's pediatric ventilator unit, a unit whose patients required intensive medical care. The nurse plaintiffs had a number of complaints about their employment conditions. They voiced these complaints several times, beginning at the latest on February 16, 2006. By letter dated March 3, 2006 and addressed to Bent Philipson, an owner of Avalon and Sentosa who was also involved in the management of the facility during the relevant time period, and Susan O'Connor, the Administrator of Avalon, the nurse plaintiffs outlined their complaints. They further stated that, if they did not "have positive results"

by March 6, 2006, they would not work until they were "treated with fairness and respect." The nurse plaintiffs also consulted Felix Vinluan, an immigration and employment attorney, about their complaints. Vinluan advised the nurse plaintiffs that, in his opinion, Sentosa breached its employment contract with them and that the nurse plaintiffs were legally free to resign.

On the afternoon of April 7, 2006, the nurse plaintiffs submitted resignation letters to Nancy Fitzgerald, Director of Nursing at Avalon. At the time of their resignation, only one of the plaintiff nurses, Theresa Ramos, was completing a shift at the facility. Ramos finished her shift. None of the nurse plaintiffs returned to work at Avalon after tendering their resignation.

There is a factual dispute as to how difficult (if at all) it was to secure coverage for the post-resignation shifts the nurse plaintiffs had been assigned to before they resigned, as well as whether any of the nurse plaintiffs' patients were ever in danger because of the need to secure coverage. However, it is undisputed that the Sentosa defendants did ultimately secure coverage for these shifts, and no patient was harmed as a result of the resignation.

In response to the resignation, O'Connor filed a complaint with the New York Department of Education and a police report with the Suffolk County Police Department ("SCPD"). The police report states that Avalon "wishe[d] to document that 11 workers ... walked out of work and never returned without notice." The police did not take any action against plaintiffs in response to O'Connor's police report, and the Department of Education declined to revoke the nurses' licenses.

Sentosa's counsel, Howard Fensterman, secured a personal meeting with the District Attorney of Suffolk County, Thomas Spota. According to Leonard Lato, an assistant district attorney whom Spota later assigned to work on the case, Spota had given Fensterman "an audience" because they knew each other. At the meeting, the Sentosa defendants presented information concerning the resignation to Spota and some of his staff, including that the nurse plaintiffs had resigned without notice and that there had been concern on the part of the Sentosa defendants that something horrific could have happened to the patients because of the resignation. At some point, Spota became aware of O'Connor's contact with the SCPD. Spota agreed to investigate the case, and subsequently assigned it to Lato.

In the course of his investigation, Lato visited the Avalon facility twice, and he and investigators from the DA's Office interviewed several of the plaintiffs. Ultimately, Lato decided to present the case to the Grand Jury. According to plaintiffs, in the course of the Grand Jury presentation, several of the Sentosa defendants made false statements. Moreover, plaintiffs assert, among other things, that the Grand Jury was misled to believe that the nurse plaintiffs may have resigned during their shifts (as opposed to at the end of their shifts). On March 6, 2007, the Grand Jury returned an indictment against plaintiffs, charging them with endangering the welfare of a child, endangering the welfare of a physically disabled person, conspiring to do the same, and solicitation.

The prosecution of plaintiffs was halted, however, when the New York State Appellate Division granted plaintiffs' Article 78 petition for a writ of prohibition based upon the fact that plaintiffs were being "threatened with prosecution for crimes for which they cannot constitutionally be tried." Matter of Vinluan v. Doyle , 60 A.D.3d 237, 873 N.Y.S.2d 72, 83 (2d Dep't 2009). Specifically, the Appellate Division found that the prosecution sought to punish the nurse plaintiffs for resigning from their employment at will, and to punish Vinluan for providing legal advice to the nurses in connection with their resignation. As such, the court found that the prosecution violated plaintiffs' First and Thirteenth Amendment rights.

After the prosecution of plaintiffs was accordingly prohibited, on January 6, 2010, plaintiffs commenced this action in federal court, alleging that defendants violated their constitutional rights in a variety of respects and seeking to vindicate those rights under Section 1983 and state law.

On March 23, 2010, the County defendants and the Sentosa defendants moved to dismiss the Amended Complaint. (ECF Nos. 14-15, respectively.) On March 31, 2011, the Court granted in part and denied in part the motions. (ECF No. 31.) As to the County defendants, the Court concluded that (1) the individual County defendants were entitled to absolute immunity for conduct in their role as advocates in connection with the presentation of the case to the Grand Jury; (2) the individual County defendants were not entitled to absolute immunity for alleged misconduct during the investigation of plaintiffs; (3) plaintiffs sufficiently pled Section 1983 claims against the individual County defendants for alleged Due Process violations in the investigative stage; and (4) plaintiffs sufficiently pled a claim for municipal liability against the County of Suffolk. As to defendants Philipson, Luyun, Rubinstein, Sentosa, Prompt, and Avalon, the Court concluded that (1) plaintiffs sufficiently alleged that they were acting under color of state law; and (2) plaintiffs sufficiently pled claims for malicious prosecution and false arrest under both Section 1983 and state law, as well as a Section 1983 conspiracy claim. The Court dismissed the claims against defendants O'Connor and Fitzgerald.

The County defendants, the Sentosa defendants, and defendant Spota now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF Nos. 115-117.) For the reasons set forth below, the Court grants the County defendants' motion for summary judgment in its entirety. With respect to the Sentosa defendants' summary judgment motion, to the extent that plaintiffs have asserted a Section 1983 conspiracy claim against the Sentosa defendants for conspiring to fabricate evidence in the investigative stage with the County defendants, the motion for summary judgment is granted as to that claim. However, the Court denies the Sentosa defendants' motion for summary judgment on the malicious prosecution and false arrest claims under federal and state law.

The County defendants are granted summary judgment because, as noted above, Spota and Lato are absolutely immune for conduct relating to the Grand Jury proceeding (including the initiation of the charges), and the Court concludes that they are entitled to summary judgment for their other conduct. The Court reaches this conclusion because there is simply no evidence in the record that they engaged in any constitutional wrongdoing in the investigative phase of the case. In particular, plaintiffs' only allegation that pertains to conduct outside the scope of the Grand Jury (and the charging decision itself) is that Lato fabricated evidence. However, this allegation is not supported by any evidence in the record (including any reasonable inferences from the record), and thus it constitutes mere speculation. Because speculation cannot create an issue of fact, Spota and Lato are entitled to summary judgment for their conduct in the investigative phase and, thus, the Court grants the County defendants' motion for summary judgment as to them.

The Sentosa defendants who testified before the Grand Jury are also entitled to absolute immunity insofar as that testimony is concerned. However, as private actors, they do not have the benefit of absolute or qualified immunity with respect to their other conduct in connection with the alleged malicious prosecution and false arrest. They have moved for summary judgment on a number of other grounds. However, construing the facts (and all reasonable inferences from those facts) in the light most favorable to plaintiffs, the Court concludes that there are genuine disputes as to material facts such that summary judgment is not warranted as to the malicious prosecution and false arrest claims against the Sentosa defendants.

As a threshold matter, the Court concludes that plaintiffs have created a material issue of disputed fact as to whether the Sentosa defendants were willful participants in joint activity with the Suffolk County District Attorney's Office, such that they may be considered state actors for purposes of Section 1983. Construing the evidence in the light most favorable to plaintiffs, a rational jury could find that the Sentosa defendants exerted influence over the DA's Office through Spota, that the Sentosa defendants encouraged the bringing of charges against the plaintiffs, and that the judgment of the Sentosa defendants as to the evidence and as to whether charges should be brought was substituted for the judgment of the DA's Office.

With respect to the malicious prosecution claim, there are disputed issues of fact that preclude summary judgment on each of the elements. First, it is undisputed for purposes of this motion that the prosecution was terminated in plaintiffs' favor. Second, with respect to the "initiation" element, there is evidence that the Sentosa defendants did more than simply supply information and cooperate with the investigation of the DA's Office. Instead, construing the evidence in the light most favorable to plaintiffs (including drawing all reasonable inferences in their favor), the Court concludes that a reasonable jury could find that the Sentosa defendants, through their meetings with Spota and Lato, instigated and actively urged the alleged unlawful prosecution of the plaintiffs. The Court likewise concludes that the evidence could lead a reasonable jury to find that Lato's investigation and decision to bring the case before the Grand Jury was influenced by the Sentosa defendants' conduct, and that the resulting Grand Jury indictment did not sever any chain of causation between the conduct by the Sentosa defendants and plaintiffs' prosecution because it was a continuation of the effects of their conduct.

Third, the Court concludes that there are material issues of fact that preclude summary judgment as to whether there was probable cause to prosecute plaintiffs. The Court reaches this conclusion first by examining whether there is any material issue of disputed fact as to whether the Grand Jury indictment creates a presumption of probable cause. Having reviewed the Grand Jury transcript, the Court concludes that plaintiffs have raised a material issue of disputed fact as to whether there was false testimony in the Grand Jury, whether critical evidence was suppressed in the Grand Jury proceeding, and whether there were other irregularities such that the indictment was the result of bad faith. Upon such a determination, there would be no presumption that there was probable cause to prosecute plaintiffs, and the jury would need to resolve whether probable cause existed independently of the indictment. The Court also concludes that there are material issues of disputed fact on this point because, in light of the evidence in the record that plaintiffs gave notice of their intention to resign, that the Sentosa defendants were able to secure coverage for their shifts, and that the nurse plaintiffs did not "walk off" during a shift, a reasonable jury could determine that there was no probable cause to believe plaintiffs were guilty of endangering the welfare of a child, endangering the welfare of a physically disabled person, conspiring to do the same, or solicitation. Moreover, there are issues of disputed fact that preclude summary judgment on the issue of whether the Sentosa defendants were motivated by malice.

In short, given these factual disputes, the Court denies the Sentosa defendants' motion for summary judgment as to the malicious prosecution claim against them under federal and state law.

Finally, the Court concludes that these same factual disputes also preclude summary judgment on the false arrest claim against the Sentosa defendants. Construing the evidence in the light most favorable to plaintiffs, a rational jury could conclude that the Sentosa defendants affirmatively instigated, encouraged, and caused plaintiffs' arrest. Accordingly, the Court also denies the Sentosa defendants' motion for summary judgment as to the false arrest claim against them under federal and state law. Thus, the case will proceed to trial against the Sentosa defendants as to the malicious prosecution and false arrest claims under federal and state law.

I. BACKGROUND

A. Factual Background

The following facts are taken from the parties' depositions, affidavits, and exhibits, and the parties' respective Rule 56.1 statements of fact. Unless otherwise noted, the facts are uncontroverted. Upon consideration of the motion for summary judgment, the Court shall construe the facts in the light most favorable to plaintiffs as the nonmoving party, and will resolve all factual ambiguities in their favor. See Capobianco v. New York , 422 F.3d 47, 50 n.1 (2d Cir. 2005).

1. The Parties and the Avalon Facility

Defendant Avalon operates a private nursing home located in Smithtown, New York, which has multiple nursing units, including a long-term pediatric care center. (Sentosa's 56.1 ¶ 1.) Avalon opened its pediatric unit in or around February 2004, and thereafter opened a pediatric ventilator unit to serve disabled children who required ventilator care. (Sentosa's 56.1 ¶ 2; Dep. Tr. Susan O'Connor ("O'Connor Dep."), ECF Nos. 115-9, 116-4, 123-6.) Defendant Sentosa is a company formed to provide shared services among various nursing homes located in the New York metropolitan area, including shared consultants and financial services. (Sentosa's 56.1 ¶ 3; Philipson Dep. 12.) Defendant Philipson has an ownership interest in both Avalon and Sentosa. (Sentosa's 56.1 ¶ 4; Philipson Dep. 9-12.) Philipson was also the chief operating officer of Sentosa and Avalon, and was involved in the management of Avalon during 2005 and 2006, the relevant time period for the instant case. (Sentosa's 56.1 ¶ 5; Philipson Dep. 16.) Defendant Prompt is an agency that provided payroll services to Avalon for nurses it employed, as well as other services to nurses recruited from other countries who worked for Avalon. (Sentosa's 56.1 ¶ 6; Philipson Dep. 63-65.) Defendant Luyun was involved in the recruitment of nurses in the Philippines for employment in nursing homes in the United States, including Avalon. (Sentosa's 56.1 ¶ 7; O'Connor Dep. 28-29.) Defendant O'Connor was the Administrator of Avalon, and oversaw the entire operation of the facility during the relevant time period. (Sentosa's 56.1 ¶ 8; O'Connor Dep. 17.)

Plaintiff Vinluan acted as an attorney and provided legal advice to the nurse plaintiffs in March and April 2006. (Sentosa's 56.1 ¶ 11; Dep. Tr. Vinluan Dep. 24, 27, 43-44, 49-52.) The nurse plaintiffs are nurses who were recruited from the Philippines to work in the United States by Sentosa. (Sentosa's 56.1 ¶ 10; O'Connor Dep. 20-21; Pls.' 56.1 ¶¶ 1, 3-4.)

2. The Nurse Plaintiffs' Employment and Resignation

As noted, Sentosa recruited the nurse plaintiffs from the Philippines to work in the United States. In the course of recruiting them, Sentosa made various representations to the nurse plaintiffs as to the conditions of employment in the United States. (See Pls.' 56.1 ¶¶ 4-16.) Plaintiffs allege that many of those conditions were not fulfilled during their subsequent employment, and they voiced their complaints about this failure on several occasions. (Id. ¶¶ 21-22; 28-33.) This included submitting a letter dated February 16, 2006 to Philipson outlining their complaints (Ex. X); a letter dated March 3, 2006 to Philipson and O'Connor that stated that, if they did not "have positive results by Monday, March 6, 2006," the nurse plaintiffs would "have to opt not to work until [they were] treated with fairness and respect" (Pls.' 56.1 ¶ 33; Ex. Y; Ex. Z.)

The nurses also voiced their concerns to the Philippine Consulate in New York, which recommended that the nurse plaintiffs consult with Vinluan, an attorney with experience in corporate and immigration issues. (Id. ¶¶ 38-43.) The nurse plaintiffs subsequently consulted Vinluan, and he advised them that, in his opinion, their contract had been breached. (Id. ) Vinluan did not advise them to resign, but he did advise that, if they elected to resign, they would not be liable for the penalties set forth in their contract. (Id. ¶¶ 43-44; Ex. BB 28-29, 39-40; O'Connor Dep. 74-75; Ex. H 48-49.) Vinluan further advised that, although the nurse plaintiffs were legally free to resign, they should not immediately do so because he intended to file legal proceedings on their behalf that he hoped might lead to a less drastic resolution of the issues. (Pls.' 56.1 ¶ 45; Ex. BB 46-47.) In addition, Vinluan specifically informed the nurse plaintiffs that, if they chose to resign, they must complete their shifts before leaving their employment. (Pls.' 56.1 ¶ 46; Pls.' Ex. BB 45, 183-84, 202, 235.)

According to plaintiffs and the County defendants, during the relevant time, the nurse plaintiffs were employed by Prompt and assigned to the Avalon facility. (Cnty.'s 56.1 ¶¶ 1-2; Pls.' 56.1 ¶ 23; Pls.' Resp. Cnty.'s 56.1 ¶ 1; Cnty.'s 56.1 ¶¶ 1-2; Pls.' 56.1 ¶ 23; Pls.' Resp. Sentosa's 56.1 ¶ 6.) However, the Sentosa defendants have described the nurse plaintiffs as being employed by Avalon. (Sentosa's 56.1 ¶ 6; Philipson Dep. 63-65.) There is also a factual dispute as to whether all of the nurse plaintiffs were assigned to the pediatric ventilator unit. According to the County defendants, all nurse plaintiffs worked in the pediatric ventilator unit. (Cnty.'s 56.1 ¶ 2.) According to plaintiffs, plaintiffs Maulion, Ramos, Anilao, Sichon, Gamaio, and Lampa (as well as two non-plaintiff nurses) worked with ventilator patients, while plaintiffs Avila, Jacinto, and Millena (as well as seven other non-plaintiff nurses) worked with non-ventilator pediatric patients, and plaintiff Dela Cruz was assigned to the geriatric units. (Pls.' 56.1 ¶ 24.)

On April 6, 2006, Vinluan filed complaints with the Office of the Chief Administrative Hearing Officer concerning the conditions of the nurse plaintiffs' employment. (Pls.' 56.1 ¶¶ 47-48; Ex. BB 48-49.) The following day, the nurse plaintiffs resigned en masse at some point between 3:00 p.m. and 6:00 p.m. (the "resignation"). (Sentosa's 56.1 ¶¶ 12, 14; O'Connor Dep. 92; Ex. E, ECF No. 116-8; Cnty.'s 56.1 ¶ 7; Ex. A, ECF No. 115-5; Pls.' Resp. Cnty.'s 56.1 at 3.) They effectuated their resignation by submitting identical resignation letters directly to defendant Fitzgerald, the Director of Nursing Services at Avalon (Sentosa's 56.1 ¶ 9; Philipson Dep. 19), at the Avalon facility. (Sentosa's 56.1 ¶¶ 12, 14; O'Connor Dep. 92; Ex. E, ECF No. 116-8; Cnty.'s 56.1 ¶ 7; Ex. A, ECF No. 115-5.) The resignation letters stated: "In view of the substantial breach of your company of our contract, I hereby tender my resignation effective immediately." (Sentosa's 56.1 ¶ 14.) April 7, 2006 was six days before Passover began, and one week before Easter weekend. (Sentosa's 56.1 ¶ 13; O'Connor Dep. 108-109; Pls.' Resp. Sentosa's 56.1 ¶ 13.)

Before their resignation, the nurse plaintiffs had discussed whether their simultaneous resignation would impair the ability of Avalon to provide adequate care for its patients. (Cnty.'s 56.1 ¶ 9; Dela Cruz Dep. 148; Pls.' Resp. Cnty.'s 56.1 at 4.) They were aware that it was absolutely necessary to have someone cover shifts after their resignation. (Cnty.'s 56.1 ¶ 23; Jacinto Dep. 136-37.) The children in that unit required 24-hour care and supervision to ensure their health and safety. (Cnty.'s 56.1 ¶ 3; Pls.' Resp. Cnty.'s 56.1 at 2.) A shortage of nurses available to care for the children would be unsafe for the children. (Cnty.'s 56.1 ¶¶ 4-6; Jacinto Dep. 136; Ramos Dep. 118; Pls.' Resp. Cnty.'s 56.1 at 2.) In particular, skilled nurses were necessary because the duties and responsibilities associated with taking care of the children were so great. (Cnty.'s 56.1 ¶ 6; Jacinto Dep. 136; Pls.' Resp. Cnty.'s 56.1 at 3.) There was a minimum staffing requirement of four nurses total for the two pediatric units. (Pls.' 56.1 ¶ 26.) According to plaintiffs, they believed there were staffing options that would enable the Sentosa defendants to avoid any lapses in the patients' care.

None of the nurse plaintiffs walked off during a shift. (Pls.' 56.1 ¶ 57.) None of the nurse plaintiffs covered any of their scheduled shifts after their resignation. (Sentosa's 56.1 ¶ 19; O'Connor Dep. 109.) The Sentosa defendants assert that there was some difficulty in covering their shifts following the resignation, which created a sense of urgency because there was a possibility that patients would be harmed if the shifts were not covered. (Sentosa's 56.1 ¶ 18; Cnty.'s 56.1 ¶ 13; O'Connor Dep. 186-89, 197.) Plaintiffs, however, deny that there was real potential that their resignation would impair the delivery of adequate care to the patients, citing Sentosa's ability to cover the shifts. (Pls.' Resp. Cnty.'s 56.1 ¶ 13; Pls.' Resp. Sentosa's 56.1 ¶ 18; Gamaio Dep. 70-73; Ramos Dep. 24; Sichon Dep. 191-93.) Ultimately, the shifts in the pediatric unit were all covered, and no patient was harmed by the resignation. (Pls.' 56.1 ¶¶ 60-61.) Avalon was able to staff the pediatric unit through various means, including by securing nurses from other units, calling staff back from vacation, and obtaining staff from other facilities who they trained on Avalon-specific policies and procedures, including those regarding the pediatric issues and ventilators. (Sentosa's 56.1 ¶ 19; O'Connor Dep. 109.)

3. Post-Resignation Events Preceding District Attorney's Involvement

By letter dated April 10, 2006, O'Connor complained to the New York Department of Education about the resignation and requested that the nurse plaintiffs' licenses and/or limited permits be revoked. (Pls.' 56.1 ¶ 69; Ex. W.)

Shortly after the resignation, Philipson held meetings with Filipino nurses in various facilities. (Pls.' 56.1 ¶ 72; Ex. NN.) At one of those meetings, Philipson stated that "we already know who misled [the nurse plaintiffs]. We are fully aware. And we are going to go after that person as well." (Id. ) He went on to say that "we will be contacting the District Attorney tomorrow because what they did is actually a criminal offense, abandoning the patients the way they did. It's irresponsible of them to just walk off." (Id. ) Philipson allegedly added, "But I feel we can extend an amnesty until tomorrow, as I've said, because after, after that time, I cannot do anything to pull it back. Once we pull the trigger, it's done." (Id. )

On April 26, 2006, O'Connor filed a police report with the SCPD regarding the resignation. (Sentosa's 56.1 ¶ 20; Ex. F ("Field Report"), ECF No. 116-9; Cnty.'s 56.1 ¶ 14.; Pls.' Resp. Cnty.'s 56.1 ¶ 14; Pls.' 56.1 ¶ 78.) The report stated that Avalon "wishe[d] to document that 11 workers ... walked out of work and never returned without notice." (Pls.' Resp. Sentosa's 56.1 ¶ 20.) At her deposition, O'Connor explained that she went to the police department because she "felt what transpired was not right," and she wanted to explore avenues by which the nurse plaintiffs could be held accountable for "creating what was really a very risky situation." (Sentosa's 56.1 ¶ 21; O'Connor Dep. 112-13.) She said that she understood that one of those avenues was to file a police report so that their conduct could be investigated. (Sentosa's 56.1 ¶ 21; O'Connor Dep. 112-13.) Other than the Avalon facility's counsel, O'Connor never discussed filing a police report with anyone. (Sentosa's 56.1 ¶ 22; O'Connor Dep. 113-14.)

The police assigned the complaint to the Crime Control Unit, which took no action against the nurses. (Pls.' 56.1 ¶¶ 79-80; Ex. VV 55-57, 63; Ex. XX 74-75.)

4. The District Attorney's Office's Involvement

Howard Fensterman, counsel for Avalon and Sentosa, subsequently scheduled a meeting with Spota. (Pls.' 56.1 ¶ 81; Ex. VV 48.) On May 31, 2006, Spota, investigators from the DA's Office, Philipson, O'Connor, and Fensterman met at the DA's Office for approximately forty-five minutes. (Sentosa's 56.1 ¶ 23; Philipson Dep. 169-70; Spota Dep. 47-53; O'Connor Dep. 120-24; Fensterman Dep. 76-82; Pls.' 56.1 ¶ 83; Ex. FF 120; Ex. WW; Ex. VV 49.) Plaintiffs also allege that Luyun was present. (Pls.' Resp. Sentosa's 56.1 ¶ 23; Ex. FF.)

At the meeting, the attendees discussed the nurse plaintiffs' simultaneous, unexpected resignation on April 7, 2006, and that the individuals charged with running the Avalon facility were concerned at that time about patient safety given that they needed to cover multiple shifts on the pediatric ventilator unit. (Sentosa's 56.1 ¶ 25; O'Connor Dep. 121-22; Philipson Dep. 171-72; Spota Dep. 50-52.) In particular, according to the defendants, the fact that the nurses resigned without notice and walked out en masse was discussed (Philipson Dep. 172), as was the difficulty Sentosa had with staffing due to the holidays and the fact that nurses from multiple facilities resigned immediately (Spota Dep. 51-54). O'Connor was very emotional during the meeting and stated that she had been very concerned that something horrible or horrific could have happened to the patients because of the resignation. (Id. at 51-58.) According to the defendants, the attendees did not agree on a specific course of action at the conclusion of the meeting. (Sentosa's 56.1 ¶ 29; O'Connor Dep. 124.) More specifically, Spota, while having some idea as to how the case would progess, did not discuss or communicate how the it would at the meeting (Sentosa's 56.1 ¶ 30; Spota Decl. 60.) No further meetings were contemplated. (Sentosa's 56.1 ¶ 30; Spota Decl. 60.)

O'Connor later described the meeting as "a follow-up to the police report ...." (O'Connor Dep. 123.) At his deposition, Spota stated that he had learned about the complaint to the police department, but he did not remember who had informed him of it. (Spota Dep. 55.) Spota directed investigators from the DA's Office to inquire about the police report, and he learned that the case had been assigned to the Crime Control Unit of the 4th Precinct. (Id. at 56.)

At Lato's deposition, he stated that his understanding was that Fensterman knew Spota and that Spota "gave Mr. Fensterman an audience" in light of their acquaintance, but that he was not aware of any other special consideration given to the case. (Sentosa's 56.1 ¶ 39; Lato Dep. 69.)

Spota oversaw some initial investigative work performed by the DA's Office following the meeting, including requesting that an investigator from the DA's Office speak to the police and an investigator from Department of Education. (Spota Dep. 67.)

In his deposition, Spota testified that, approximately a couple of months after the May 31, 2006 meeting took place, he independently decided that defendant Lato would be appointed to investigate the resignation and determine whether any crime had been committed. (Sentosa's 56.1 ¶ 31; Spota Dep. 60-66.) According to defendants, Spota never contacted any of the Sentosa defendants or their counsel in advance of making this decision to appoint Lato, nor did he seek any input in the decision. (Sentosa's 56.1 ¶ 32; Spota Decl. 67.)

Spota then called Fensterman to report on his office's progress and plans regarding the prosecution. (Pls.' 56.1 ¶ 84; Ex. QQ 67-68; Ex. XX 57, 64-65.) Spota also arranged a meeting to introduce Lato to Fensterman. (Sentosa's 56.1 ¶ 33; Spota Decl. 60.) The meeting was attended by Lato, Fensterman, and the investigators who were assisting Lato. (Sentosa's 56.1 ¶ 34; Spota Decl. 68-69; Decl. Leonard Lato ("Lato Decl."), Ex. I, ECF No. 116-12 at 56-57, 59.) At the meeting, the nature of the case and the fact that Lato would conduct an investigation were discussed. (Sentosa's 56.1 ¶ 34; Spota Dep. 68-69; Lato Dep. 56-57, 59.) However, according to Lato, he "paid little attention" to what Fensterman had to say. (Sentosa's 56.1 ¶ 35; Lato Dep. 58-59.) Fensterman never represented to Lato that any of the patients at Avalon had been injured due to the resignation. (Sentosa's 56.1 ¶ 36.) According to defendants, no agreement was made between the parties as to how the investigation should proceed, and no representations were made as to what the ultimate outcome would be. (Sentosa's 56.1 ¶ 37; Spota Dep. 69.) At a later date, Lato paid a shiva call after Fensterman's father died, but that was the only other time that they met. (Sentosa's 56.1 ¶ 40; Lato Dep. 82-83.)

Lato subsequently conducted an investigation into plaintiffs' conduct. (Sentosa's 56.1 ¶ 41; Lato Dep. 62-63.) According to the Sentosa defendants, during that time, the investigation was entirely up to Lato. (Sentosa's 56.1 ¶ 46.) Plaintiffs dispute this, stating that, although Spota testified as such, Lato undermined this claim. (Pls.' Resp. Sentosa's 56.1 ¶ 46.)

The investigation lasted six months. (Sentosa's 56.1 ¶ 41; Lato Dep. 62-63; Pls.' Resp. Cnty.'s 56.1 ¶ 17.) During this time, Lato's only contacts with any individuals associated with Avalon were the two visits to the Avalon facility and a fax he received from counsel for Avalon and Sentosa. (Sentosa's 56.1 ¶¶ 42-43; O'Connor Dep. 124-26; Lato Dep. 384; Email, Ex. L (ECF No. 116-15.) )

During the first visit to Avalon, Lato met with O'Connor to discuss the facility and the circumstances surrounding the nurse plaintiffs' resignation on April 7, 2006. (Sentosa's 56.1 ¶ 42; O'Connor Dep. 124-26.) At that meeting, Lato told O'Connor that he did not know whether they were going to continue with the action. (Cnty.'s 56.1 ¶ 30; O'Connor Dep. 125-26; Cnty.'s 56.1 ¶ 31.) The second visit was a follow-up visit to discuss documents that he requested from the facility and to take a tour of the pediatric unit. (Sentosa's 56.1 ¶ 42; O'Connor Dep. 124-26; see Pls.' Resp. Cnty.'s 56.1 ¶ 31.) On another occasion, counsel for Avalon and Sentosa faxed Lato an advertisement that purportedly showed an interest that Vinluan had in a competitor of Sentosa in the Philippines. (Sentosa's 56.1 ¶ 43; Ex. L, ECF No. 116-15.)

Lato's investigation also included multiple meetings, conducted by himself or detectives from the DA's Office, with a number of the nurse plaintiffs and with Vinluan to discuss the circumstances of the nurse plaintiffs' resignation. (Sentosa's 56.1 ¶ 45; Lato Dep. 369-71; Pls.' 56.1 ¶ 85; Lampa Dep. 84-87; Lato Dep. 81.) According to plaintiffs, Lato told the interviewees that the interviews were routine and were needed to close the investigations. (Pls.' 56.1 ¶ 85; Ex. K 79-80; Ex. XX 81.) During that time, Lato controlled the investigation. (Sentosa's 56.1 ¶ 46; Spota Dep. 129-30.) He also kept Spota informed, in both formal and informal meetings, of all of the facts of the case, including the later Grand Jury presentation and indictment. (Pls.' 56.1 ¶ 89; Ex. XX 47, 53, 63-64, 103, 164-65, 184-85, 373-74.)

5. Grand Jury Proceeding and Subsequent Events

According to Lato, without any input from the Sentosa defendants, he ultimately decided to present the case to the Grand Jury at the end of January 2007. (Sentosa's 56.1 ¶ 47; Lato Dep. 546-50.)

Plaintiffs have submitted evidence from which they argue that, in the course of the Grand Jury proceeding, individuals affiliated with Sentosa made false statements. In addition to alleging perjurious testimony, plaintiffs assert that there were a number of irregularities in the presentation of evidence. (Pls.' Opp. Br. 35-49.) For example, plaintiffs point out that Lato and Grand Jury witnesses repeatedly used terms such as "walked out" or similar phrases when referring to the nurses' conduct, thereby creating the false impression to the Grand Jury that the nurses walked out during a shift. (See, e.g. , Ex. T 1/30 at 7-9; 2/1 at 59-62; 2/8 at 3.) To demonstrate the confusion caused by the phrasing, plaintiffs further note that, at the beginning of the Grand Jury presentation, a grand juror asked a question about the use of that phrase: "He [Investigator Warkenthein] uses the term 'walked out' several times which seems to indicate they walked out in the middle of their shifts. I would like to know if they did in fact walk off the job during their shift." (Ex. T 1/30 at 61.) Lato responded that such evidence would have to come from other witnesses. (Id. ) Plaintiffs also argue that Lato presented excessive and inflammatory evidence regarding the medical conditions of residents in the ventilator and non-ventilator units, including details of the children's conditions along with enlarged color photographs of the children. (Pls.' Opp. Br. 42.) Moreover, plaintiffs assert that Lato incorrectly instructed the jurors that, under New York law, co-conspirators are liable for acts in furtherance of a conspiracy. (Id. at 43.) Plaintiffs further argue that Lato gave the Grand Jury misleading instructions regarding the Department of Education laws that defined unprofessional conduct, and did not advise the Grand Jury that the Department of Education had issued a decision exonerating the nurses of any misconduct. (Id. at 43-46.)

On March 6, 2007, the Grand Jury returned an indictment against all of the plaintiffs. (Sentosa's 56.1 ¶ 61; Vinluan Dep. 114-17; Jacinto Dep. 94-95; Avila Dep. 97-98; Maulion Dep. 81-82; Ramos Dep. 90; Millena Dep. 96-97; Dela Cruz Dep. 66-67; Gamaio Dep. 91-92; Anilao Dep. 111-12; Lampa Dep. 103-104; Sichon Dep. 139-40; Cnty.'s 56.1 ¶ 37; Pls.' Resp. Cnty.'s 56.1 ¶¶ 37-38.)

On April 22, 2007, plaintiffs surrendered at the Suffolk County Courthouse, where they were arrested, sequestered, fingerprinted, and processed. (Pls.' 56.1 ¶ 91; Ex. BB 117.) They subsequently moved to dismiss on the grounds that the prosecution violated their constitutional rights and that the evidence before the Grand Jury was insufficient. (Pls.' 56.1 ¶ 92.) The motions were denied. (Id. ; Ex. BBB.) Plaintiffs then requested that the New York State Governor appoint a special prosecutor. The request was ignored. (Pls.' 56.1 ¶ 92; Ex. CCC.)

Plaintiffs then applied to the Appellate Division, Second Department ("Appellate Division") for a writ of prohibition pursuant to New York C.P.L.R. Article 78. On January 13, 2009, the Appellate Division issued a writ of prohibition enjoining further prosecution of plaintiffs on the ground that the indictment violated their constitutional rights. (Pls.' 56.1 ¶ 93.)

B. Procedural Background

On May 9, 2016, the County defendants, the Sentosa defendants, and defendant Spota moved for summary judgment and filed their respective memoranda of law ("Cnty.'s Br.," "Sentosa's Br.," and "Spota's Br."). (ECF Nos. 115-4; 116-2; and 117, respectively.) Plaintiffs filed their response in opposition and accompanying memorandum of law ("Pls.' Br.") on September 29, 2016. (ECF No. 128.) The defendants filed their reply briefs on November 21, 2016 ("Cnty. Repl. Br.," "Sentosa Repl. Br.," and "Spota Repl. Br."). (ECF Nos. 132-134, respectively.) Oral argument was held on November 30, 2016. (ECF No. 136.) That day, plaintiffs filed supplemental exhibits with the Court. (ECF No. 135.) The County defendants then filed a supplemental letter with the Court on December 2, 2016, enclosing an opinion issued by the Honorable Sandra Feuerstein in Kanciper v. Lato , CV-13-0871. (ECF No. 137.) On May 16, 2017, plaintiffs filed a supplemental letter containing two Newsday articles (ECF No. 138), and the County defendants responded on May 17, 2017 (ECF No. 139). On October 30, 2017, plaintiffs filed a supplemental letter regarding the indictment of Thomas Spota (ECF No. 140), and the County defendants responded on October 31, 2017 (ECF No. 141). On December 6, 2017, the County defendants filed a supplemental letter, advising the Court that the Second Circuit had affirmed Judge Feuerstein's decision in Kanciper (ECF No. 142), and plaintiffs responded on December 7, 2017 (ECF NO. 143). On March 6, 2018, the County defendants filed a supplemental letter regarding the Supreme Court's decision in District of Columbia v. Wesby , --- U.S. ----, 138 S.Ct. 577, 199 L.Ed.2d 453 (2018) (ECF No. 144), and plaintiffs responded on March 9, 2018 (ECF No. 145). The Court has fully considered the parties' submissions.

II. STANDARD OF REVIEW

The standard for summary judgment is well-settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Gonzalez v. City of Schenectady , 728 F.3d 149, 154 (2d Cir. 2013). The moving party bears the burden of showing that he is entitled to summary judgment. See Huminski v. Corsones , 396 F.3d 53, 69 (2d Cir. 2005).

Rule 56(c)(1) provides that:

[A] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). The court " 'is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.' " Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst , 101 F.3d 845, 854 (2d Cir. 1996) ); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

Once the moving party has met its burden, the opposing party " 'must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial .' " Caldarola v. Calabrese , 298 F.3d 156, 160 (2d Cir. 2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). As the Supreme Court stated in Anderson , "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties alone will not defeat an otherwise properly supported motion for summary judgment." Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth " 'concrete particulars' " showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co. , 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp. , 585 F.2d 31, 33 (2d Cir. 1978) ). Accordingly, it is insufficient for a party opposing summary judgment " 'merely to assert a conclusion without supplying supporting arguments or facts.' " BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn. , 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp. , 585 F.2d at 33 ).

III. DISCUSSION

The County defendants, the Sentosa defendants, and defendant Spota each move for summary judgment. Specifically, the Sentosa defendants argue that: (1) the Section 1983 claims fail because the Sentosa defendants were not acting under the color of state law; (2) the Section 1983 and state law malicious prosecution claims fail because the Sentosa defendants did not initiate the criminal proceeding and, in any event, there was probable cause that a crime occurred; and (3) the Section 1983 and state law false arrest claims fail because the Sentosa defendants did not confine plaintiffs. The County defendants argue that: (1) there was no evidence of any wrongdoing by Lato; (2) Spota and Lato are entitled to qualified immunity regarding the investigative stage; and (3) the Monell claims against the County fail because there were no underlying constitutional violations, Lato is a state actor, not a county actor, and the conduct at issue was not caused by a municipal policy, custom, or usage. Finally, defendant Spota argues that plaintiffs have failed to show that Spota was personally involved in any constitutional violations.

A. The County Defendants

As noted above, in its Memorandum and Order on defendants' motions to dismiss, the Court reached two conclusions concerning whether Lato and Spota were entitled to immunity for their actions. First, the Court concluded that they were absolutely immune from liability on claims based upon their initiation of the prosecution against plaintiffs and their conduct in front of the Grand Jury. (Memorandum and Order, ECF No. 31 at 18.) Second, the Court held that, based upon the allegations in the amended complaint, it was unable to determine at that time whether Lato and Spota were entitled to absolute or qualified immunity for their conduct during the investigative phase. (Id. at 22.) In reaching this conclusion, the Court reasoned that plaintiffs sufficiently alleged that wrongdoing occurred during the investigation that caused a deprivation of their constitutional rights. (Id. at 21-22.)

The County defendants now move for summary judgment in part on the ground that there is no evidence of any wrongdoing by Lato, particularly with respect to the investigation of plaintiffs. Defendant Spota separately filed a motion for summary judgment on the ground that there is no evidence that Spota was personally involved in any constitutional deprivation, even assuming one had taken place. Moreover, both defendants argue that they are entitled to absolute and/or qualified immunity. For the following reasons, the Court concludes that Spota and Lato are entitled to summary judgment because there is no evidence that they violated the constitutional rights of plaintiffs in the investigative stage of the case (and, as previously discussed, they are entitled to absolute immunity with respect to their conduct in connection with the Grand Jury presentation and initiation of charges).

1. Legal Standard

"It is by now well established that 'a state prosecuting attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution' 'is immune from a civil suit for damages under § 1983.' " Shmueli v. City of New York , 424 F.3d 231, 236 (2d Cir. 2005) (quoting Imbler v. Pachtman , 424 U.S. 409, 410, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ). "In determining whether absolute immunity obtains, we apply a 'functional approach,' looking to the function being performed rather than to the office or identity of the defendant." Hill v. City of New York , 45 F.3d 653, 660 (2d Cir. 1995) (quoting Buckley v. Fitzsimmons , 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) ). In applying this functional approach, the Second Circuit has held that prosecutors are entitled to absolute immunity for conduct " 'intimately associated with the judicial phase of the criminal process.' " Fielding v. Tollaksen , 257 F. App'x 400, 401 (2d Cir. 2007) (quoting Imbler , 424 U.S. at 430, 96 S.Ct. 984 ); Hill , 45 F.3d at 661 (same). In particular, "[s]uch immunity ... extends to 'acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as advocate for the State.' " Smith v. Garretto , 147 F.3d 91, 94 (2d Cir. 1998) (quoting Buckley , 509 U.S. at 273, 113 S.Ct. 2606 ). On the other hand, "[w]hen a district attorney functions outside his or her role as an advocate for the People, the shield of immunity is absent. Immunity does not protect those acts a prosecutor performs in administration or investigation not undertaken in preparation for judicial proceedings." Hill , 45 F.3d at 661 ; see also Carbajal v. Cty. of Nassau , 271 F.Supp.2d 415, 421 (E.D.N.Y. 2003) ("[W]hen a prosecutor supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest-that is, when he performs functions normally associated with a police investigation-he loses his absolute protection from liability." (citation omitted) ).

The Second Circuit has noted that "[t]he line between a prosecutor's advocacy and investigating roles might sometimes be difficult to draw." Zahrey v. Coffey , 221 F.3d 342, 347 (2d Cir. 2000). Courts, however, may rely on certain established distinctions between these roles. For example, the Supreme Court has explained that "[t]here is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand." Buckley , 509 U.S. at 273, 113 S.Ct. 2606. In addition, the Second Circuit has identified the juncture in the criminal process before which absolute immunity may not apply. Specifically, "[t]he majority opinion in [ Buckley ] suggests that a prosecutor's conduct prior to the establishment of probable cause should be considered investigative: 'A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.' " Zahrey , 221 F.3d at 347 n.2 (quoting Buckley , 509 U.S. at 274, 113 S.Ct. 2606 ); see also Hill , 45 F.3d at 661 ("Before any formal legal proceeding has begun and before there is probable cause to arrest, it follows that a prosecutor receives only qualified immunity for his acts."). Thus, in interpreting Buckley , the Second Circuit has distinguished between "preparing for the presentation of an existing case," on the one hand, and attempting to "furnish evidence on which a prosecution could be based," on the other hand. Smith , 147 F.3d at 94. Only the former entitles a prosecutor to absolute immunity. Id.

Notably, the mere fact that a prosecutor might later convene a grand jury and obtain an indictment does not automatically serve to cloak his prior investigatory actions with the protection of absolute immunity. As the Supreme Court stated in Buckley :

That the prosecutors later called a grand jury to consider the evidence this work produced does not retroactively transform that work from the administrative into the prosecutorial. A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as 'preparation' for a possible trial ....

Buckley , 509 U.S. at 275-76, 113 S.Ct. 2606. Furthermore, "a determination of probable cause does not guarantee a prosecutor absolute immunity from liability for all actions taken afterwards. Even after that determination ... a prosecutor may engage in 'police investigative work' that is entitled to only qualified immunity." Id. at 274 n.5, 113 S.Ct. 2606 ; see Zahrey , 221 F.3d at 347 n.2 ("All members of the Court [in Buckley ] recognized ... that a prosecutor's conduct even after probable cause exists might be investigative.").

If absolute immunity does not apply, government actors may be shielded from liability for civil damages by qualified immunity, i.e. , if their "conduct did not violate plaintiff's clearly established rights, or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Mandell v. Cty. of Suffolk , 316 F.3d 368, 385 (2d Cir. 2003) ; see also Fielding , 257 F. App'x at 401 ("The police officers, in turn, are protected by qualified immunity if their actions do not violate clearly established law, or it was objectively reasonable for them to believe that their actions did not violate the law."). As the Second Circuit has also noted, "[t]his doctrine is said to be justified in part by the risk that the 'fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.' " McClellan v. Smith , 439 F.3d 137, 147 (2d Cir. 2006) (quoting Thomas v. Roach , 165 F.3d 137, 142 (2d Cir. 1999) ).

In considering a defense of qualified immunity to a Section 1983 claim, courts generally "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson v. Layne , 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert , 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) ); Zahrey , 221 F.3d at 346-48 (extending analysis to prosecutors). The right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigative capacity has been established by the Second Circuit. Zahrey , 221 F.3d at 349.

2. Analysis

As a threshold matter, the Court concludes that Lato and Spota are not entitled to absolute immunity for the investigative stage. Applying the functional approach, it is clear that Spota's and Lato's conduct during this phase was not " 'intimately associated with the judicial phase of the criminal process.' " See Fielding , 257 F. App'x at 401 (quoting Imbler , 424 U.S. at 430, 96 S.Ct. 984 ); Hill , 45 F.3d at 661. Indeed, these acts, including listening to the complaints of the Sentosa defendants, visiting the facility, interviewing the Sentosa defendants, and interviewing the nurse plaintiffs, fall squarely into the category of acts "perform[e]d in ... investigation not undertaken in preparation for judicial proceedings." See Hill , 45 F.3d at 661 ; see also Carbajal , 271 F.Supp.2d at 421 (E.D.N.Y. 2003) ("[W]hen a prosecutor supervises, conducts, or assists in the investigation of a crime, or gives advice as to the existence of probable cause to make a warrantless arrest-that is, when he performs functions normally associated with a police investigation-he loses his absolute protection from liability." (citation omitted) ). Lato's investigation is particularly the type of "searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested" that the Supreme Court and the Second Circuit have explained do not entitle a prosecutor to absolute immunity. See Buckley , 509 U.S. at 273, 113 S.Ct. 2606 ; see also Smith , 147 F.3d at 94 (interpreting Buckley to distinguish between "preparing for the presentation of an existing case" and attempting to "furnish evidence on which a prosecution could be based"). Thus, Lato and Spota are not entitled to absolute immunity for their conduct during the investigative phase.

The Court concludes, however, that Lato and Spota are entitled to summary judgment because, even construing the facts in the light most favorable to plaintiff, no rational jury could find that they knowingly fabricated evidence during the investigation, or otherwise violated plaintiffs' constitutional rights in the investigative phase of the case. Plaintiffs argue that Lato violated their constitutional rights because he fabricated evidence while acting in an investigative capacity, especially "in his zeal to assure that Mr. Vinluan, was indicted along with his clients." (Pls.' Br. 78.) In particular, plaintiffs state that "[i]t is clear that Lato assisted in suborning [ ] wholly false, and legally inadmissible, testimony." (Id. at 80.) Plaintiffs further argue that, at the very least, Lato's conduct raises an issue of fact as to whether the investigative phase included the creation of evidence in an effort to aid Sentosa's prosecutorial goals. (Id. )

The County defendants argue that these allegations are wholly unsupported and conclusory, and are exactly the type of evidence that is insufficient to overcome a motion for summary judgment. (Cnty.'s Repl. Br. 7.) They assert that testimony and documentary evidence establish that there was no wrongdoing by Spota or Lato during the investigative phase, and that there is no evidence that Lato presented any false evidence during the presentation to the Grand Jury, nor that he learned of any false evidence (or conspired to create it) during the investigative stage of the case. (Id. at 5-13.) As such, they argue, it cannot be said that Lato and Spota violated plaintiffs' constitutional rights. See Mandell , 316 F.3d at 385.

Having carefully analyzed the record, the Court concludes that there is no evidence in the record from which a rational jury could find that Spota or Lato violated plaintiffs' constitutional rights during the investigative phase. Although plaintiffs assert that the evidence shows that Lato participated in manufacturing evidence and fabricated a case (Pls.' Br. 78-79), plaintiffs point to no evidence in the record that would support such assertions. Indeed, the only evidence plaintiffs cite concerns Grand Jury testimony provided by the Sentosa defendants, and an inference cannot be drawn from that testimony alone that Lato or Spota had any involvement in the knowing fabrication of evidence prior to the Grand Jury proceedings, despite plaintiffs' conclusory assertions to the contrary. Plaintiffs appear to draw this conclusion based on the mere fact that the witnesses who allegedly gave this false testimony met with Lato before they testified. (Id. at 80.) Plaintiffs argue that, "[a]t the very least, [Lato's] conduct raises an issue of fact as to whether the investigative phase included the creation of evidence in an effort to assure that Sentosa's especial target was included in the indictment." (Pls.' Br. 80.) However, plaintiffs are incorrect. An issue of fact cannot be created by mere speculation, and plaintiffs' allegations are just that. Plaintiffs have failed to set forth "concrete particulars" showing that a trial is needed, as they are required to do. See Anderson , 477 U.S. at 247-50, 106 S.Ct. 2505. Although the Court recognizes that plaintiffs may rely on circumstantial evidence (and reasonable inferences drawn from such evidence), there is simply insufficient evidence in the record for a rational jury to reasonably infer that Lato and/or Spota conspired with the Sentosa defendants to fabricate evidence during the investigative phase. Thus, their argument fails, and Lato and Spota are entitled to summary judgment for their conduct during the investigative phase because no rational jury could find that their conduct during that phase violated plaintiffs' rights. Moreover, given the absence of any underlying constitutional violation in the investigative stage, no municipal liability can exist against Suffolk County as a matter of law. See Segal v. City of New York , 459 F.3d 207, 219 (2d Cir. 2006). B. The Sentosa Defendants

1. Malicious Prosecution

As set forth below, a malicious prosecution claim involves, inter alia , the following elements: (1) the initiation or continuation of a criminal proceeding against plaintiff, and (2) lack of probable cause for commencing the proceeding. Further, to find a private defendant liable for malicious prosecution, plaintiff must show that the defendant was acting under color of state law. The Sentosa defendants argue that plaintiffs' Section 1983 and state law malicious prosecution claims cannot survive summary judgment because there is insufficient evidence in the record to allow plaintiffs to meet these requirements at trial. (Sentosa's Br. 4-22.) For the following reasons, the Court disagrees.

a. Legal Standard

Claims for malicious prosecution brought under Section 1983 are substantially the same as claims for malicious prosecution under state law. Lanning v. City of Glens Falls , 908 F.3d 19 (2d Cir. 2018) ; Jocks v. Tavernier , 316 F.3d 128, 134 (2d Cir. 2003). "A malicious prosecution claim under New York law requires the plaintiff prove: '(1) the initiation or continuation of a criminal proceedi