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Green v. City of Mount Vernon

United States District Court, S.D. New York

March 31, 2015

IVAMAE GREEN, individually and as parent and natural guardian of FITZROY BARNES, FATIMA BARNES, and EUSTACE BARNES, infants, Plaintiffs,

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For Plaintiffs: Andrew C. Risoli, Esq., Eastchester, NY.

For Defendants: Hina Sherwani, Esq., Joana Helen Aggrey, Esq., City of Mount Vernon Corporation Counsel, Mt. Vernon, NY.

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Plaintiffs Ivamae Green (" Green" ), Fitzroy Barnes, Fatima Barnes, and Eustace Barnes (collectively, " Plaintiffs" )[1]

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bring this Action under 42 U.S.C. § 1983 and New York State law, alleging that Defendants Sergeant Glenn Scott (" Scott" ), Sergeant Chris Gallagher (" Gallagher" ), Richard Fox (" Fox" ), Michael Kushner (" Kushner" ), Leonard Cooper (" Cooper" ),[2] Eugene Wilson (" Wilson" ), Richard Azron (" Azron" ), Jared Kmiotek (" Kmiotek" ), Jane Doe a/ka Jean Jerome (" Jane Doe" ) (collectively, the " Police Officer Defendants" ), and the City of Mount Vernon (" Mount Vernon" ) violated the U.S. Constitution and committed a number of state torts. Defendants move to dismiss all claims. For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from Plaintiffs' Fourth Amended Complaint (" FAC" ), and certain documents the Parties submitted that the Court considers, as explained below, and are taken as true for the purpose of resolving the instant Motion. This action arises out of a search of Plaintiffs' home that occurred on June 3, 2009 at approximately 10:30 p.m. pursuant to a search warrant that relied in part on information from a confidential informant (" CI" ) and that identified two people allegedly involved in the sale of cocaine. ( See Fourth Am. Compl. (" FAC" ) ¶ 10 (Dkt. No. 47).) At the time of the search, Green was " home in her apartment with her three infant children." ( Id. ) Scott, Fox, and Kushner, acting " with a purported[ly] valid search warrant," broke down the door to Plaintiffs' apartment " without any prior warning," entered the apartment with guns drawn, and " threatened bodily harm" to Plaintiffs if they did not comply with police demands. ( Id. ; see also id. ¶ 27 (alleging that Scott, Fox, and Kmiotek " intentionally placed [Plaintiffs] in fear of imminent harm or contact" when they drew their guns, pointed the guns at all three Plaintiffs, and threatened them with immediate harm (internal quotation marks omitted)).) Scott, Fox, and Kushner then " handcuffed and arrested" Green and separated her from her children. ( Id. ¶ 10.) Plaintiffs allege that the Police Officer Defendants " intended to confine Plaintiffs," that " Plaintiffs objected to and were conscious of the confinement at gun point," and that the confinement " was not privileged" because the search warrant was invalid. ( Id. ¶ 49.)

After Green was handcuffed, Cooper, Wilson, Azron, Kmiotek, Jane Doe, and McKennie entered the apartment. ( Id. ¶ 10.) Plaintiffs allege that McKennie forced Green to strip off all of her clothing, and that Jane Doe and McKennie performed two vaginal searches of Plaintiff. ( Id. ¶ 10.)[3] Plaintiffs allege that Jane Doe and McKennie " completely ransacked Plaintiff[s'] apartment[,] destroying much of [their] property[.]" ( Id. ) Furthermore, Plaintiffs allege that the Police Officer Defendants searched Green's apartment, but did not find drugs or either of the two

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individuals described in the search warrant. ( Id. )

Plaintiffs allege that " [d]uring the search," Scott told Green that " they had entered the wrong apartment." ( Id. ¶ 11.) However, Plaintiffs allege that even after Scott stated that they were in the wrong place, the apartment search continued, as did " the imprisonment" of Plaintiffs and the " further destruction of" Plaintiffs' property. ( Id. )[4] Plaintiffs also allege that Mount Vernon and the Police Officer Defendants " negligently or intentionally caused personal injuries and traumatic emotional distress to all Plaintiffs." ( Id. ¶ 41.) In particular, Plaintiffs allege that they were " rendered sick, sore, lame, and disabled," and have incurred medical expenses as a result of the Police Officer Defendants' actions. ( Id. ¶ 54.) Finally, Plaintiffs allege that Defendants did not " perform repairs" on Plaintiffs' apartment. ( Id. ¶ 18.)

Plaintiffs claim that there were defects with the search warrant and the affidavit submitted by Detective Fegan in support of the search warrant (the " Fegan Affidavit" or the " Affidavit" ).[5] First, Plaintiffs allege that Defendants' search warrant was " defective on its face," because it " described the premises to be searched as '15 South 5th Avenue, 1st floor apartment,'" and therefore " does not state with particularity what is meant by the '1st' floor." ( Id. ¶ 14.) More specifically, the warrant states that it authorizes a search and seizure " FOR THE FOLLOWING RESIDENTIAL PREMISES: 15 SOUTH 15TH AVENUE, 1ST FLOOR APARTMENT WITH SIDE ENTRANCE ON NORTH SIDE OF HOUSE." (Aff'n of Hina Sherwani (" Sherwani Aff'n" ) Ex. B (First Floor Search Warrant) (" Search Warrant" ), at unnumbered 1 (Dkt. No. 52).) Additionally, Plaintiffs allege that the " warrant describes two . . . individuals[--]FNU LNU[] 'Blue[,]' a male black, and FNU LNU[] 'Jan[,]' a female black," as residing in or being present in the apartment to be searched, but that " [n]either of these individuals resides [in] or was present in [the] apartment." (FAC ¶ 14.) In addition to providing for the search and seizure of those two individuals, the warrant also states that it authorizes a search and seizure of " ANY INDIVIDUALS ON THE PREMISES AT THE TIME OF THE SEARCH WARRANT EXECUTION INCLUDING BUT NOT LIMITED TO THOSE EXERCISING CONTROL AND OR DOMINION OVER SAID PREMISES, ACTING IN THE ROLE OF A LESSEE, SUB-LESSEE AND/OR OWNER." (Search Warrant at unnumbered 1.) The warrant further provides, " You are therefore commanded at any hour of the day or night, without first announcing your purpose or authority, to make a search of the above listed Premises and person(s) for cocaine as described in Penal Law Sections 220.00." ( Id. at unnumbered 2 (emphasis added).) Furthermore, the warrant lists the items to be seized. ( Id. )

In addition to alleging that the warrant was defective on its face, Plaintiffs allege

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that after the warrant was issued, the Defendant Police Officers and Mount Vernon " as a matter of policy did no investigation to [e]nsure that, prior to [the] execution of [the] warrant, the facts [underlying the] warrant were reasonably correct, and that [the] persons named in the warrant actually resided there." (FAC ¶ 21; see also id. ¶ 33 (alleging that the search warrant lacked probable cause because the Defendant Police Officers and Mount Vernon " did no investigation[,] as a matter of policy, to [e]nsure that the information they obtained from their informant was true, reliable, and credible." ).)[6] Plaintiffs conclude that all of the above facts are " proof that the Affidavit submitted to the [c]ourt to obtain [the] search warrant was not credible, and the 'informant' who provided the information was unreliable." ( Id. ¶ 14.)

With regard to the Fegan Affidavit, Plaintiffs submit that the affiant, Detective Fegan, who the Court notes is not named as a Defendant in the FAC, stated that " he received information from a registered and reliable confidential informant," that the Mount Vernon Police " sent the informant" to 15 South 15th Ave. to " purchase drugs with marked money," that the " police witnessed the transaction, obtained the drugs purchased from the informant, and field tested the drugs," and found that they were cocaine. ( Id. ¶ 25.) Plaintiffs allege that " [they] may presume that [the informant] has some problems [with] the law that cause[d] him to be an informant." ( Id. ) Furthermore, Plaintiffs allege that because " [n]o arrest was made" following the controlled drug buy, " it must be concluded that the police surmised that there was not sufficient probable cause to make such an arrest," and therefore there could not have been sufficient " probable cause to grant the search warrant." ( Id. ) In addition to what Plaintiffs allege, the Affidavit also states that Detective Fegan received information from a " registered and reliable" CI,[7] that an

unknown male black in his 40's--50's who wears his hair in long dreadlocks and who identifies himself as " Blue" was selling powder cocaine from his apartment located on the first floor of 15 S 15th Ave, CI further states that " Blue" lives with his wife, an unknown female black in her 30's--40's who identifies herself as " Jan", CI states that " Jan" also sells powder cocaine when " Blue" is not around. CI states that " Blue" and " Jan" conduct their drug transactions at all times of the day and night, including but not limited to the times between 2100--0600 Hrs. CI further states that although " Blue" and " Jan" live in the first floor apartment of 15 S 15th Ave they frequently hang out in the 2nd floor apartment of 15 S 15th Ave, and do conduct drug transactions from the 2nd floor apartment. CI also stated that he/she has purchased powder cocaine from " Blue" and " Jan" 3 times in the past two weeks and has observed " Blue" and " Jan" conduct drug transactions with unknown individuals approx. 7--10 in the past two weeks.

(Sherwani Aff'n Ex. D (Aff. for Search Warrant) (" Fegan Affidavit" ), at unnumbered 2.) Furthermore, with respect to the controlled drug buy, Detective Fegan averred that he met with the CI, that the CI made a phone call to " Blue" to place an order for $50 of cocaine, that " Blue" advised the CI he was not home but told him to call " Jan," and that he placed an order

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with " Jan" for $50 of cocaine. ( Id. ) Detective Fegan also averred that he monitored those phone calls. ( Id. ) Furthermore, Detective Fegan averred that he searched the CI and found him to be free of contraband, then gave the CI $50. ( Id. ) The CI was then dropped off " at a predetermined location and while under constant surveillance walked to 15 S 15th Ave," and " at no time did" the CI " stop or talk to anyone." ( Id. at unnumbered 2.)

CI . . . approached the front door, which leads to the second floor of 15 S 15th Ave. A female black later identified as " Jan" answered the door and then stepped out on the porch with the CI. Both " Jan" and the CI then walked down the stairs and into the side entrance of 15 S 15th Ave. CI . . . and " Jan" exited the first floor side entrance of 1S S 15th Ave approx. 3 minutes later. " Jan" then returned upstairs and the CI met the undersigned at a predetermined location, at no time while in route to that location did CI . . . who was under constant surveillance, stop or talk to anyone. At 1945 Hrs. CI . . . turned over to the undersigned one white plastic knotted twist containing an amount of cocaine. A field test was conducted and the results were positive for the presence of cocaine, both the white plastic twist containing cocaine and the field test kit were placed into evidence.

( Id. ) Additionally, the

CI stated to the undersigned that when she/he knocked on the front door of 15 S 15th Ave, 2nd floor apartment, the door was answered by " Jan" who stated she had no more cocaine with her on the 2nd floor but instructed CI to follow her to the 1st floor. CI and " Jan" both walked into the 1st floor side entrance of 15 S 15th Ave, CI states that " Jan" had him/her wait in the living room as she walked toward the back of the apartment, " Jan" returned moments later with the cocaine and gave it to the CI in exchange for the Fifty (50) dollars in U.S. Currency.

( Id. at unnumbered 3.) Furthermore, the Fegan Affidavit stated that the CI " has given information that has led to" arrests under N.Y. Penal Law § 220.16 in three cases--including five arrests in one case. ( Id. )

Plaintiffs also make a number of allegations regarding customs and policies of Mount Vernon. Plaintiffs allege that the Police Officer Defendants " were engaged in what was the custom of the Mt. Vernon Police Department in search warrant cases . . . to arrest and confine individuals for prolonged periods on 'open' charges." (FAC ¶ 16.) Additionally, Plaintiffs allege that " the[] Police Officers and the City of Mt. Vernon did no investigation[,] as a matter of policy, to [e]nsure that the information they obtained from their informant was true, reliable, and credible[.]" ( Id. ¶ 33.) Further, Plaintiffs allege that Defendants were acting " under a color of existing ordinances, regulations, customs and usage of the State of New York," ( id. ¶ 17), that the " acts by [the Defendant Police Officers] were done by executing a Government Policy and/or custom[] inflicting the injuries and deprivation of constitutional rights to Plaintiffs," ( id. ¶ 19), and that " [s]aid actions [were] unconstitutional since they [were] a policy statement, ordinance and/or regulation, a decision officially adopted or promulgated by the City of Mt. Vernon as official policy, and [because] the [Defendant Police Officers] represented said policy when inflicting injury on Plaintiffs," ( id. ). Plaintiffs also allege that Mount Vernon is " responsible for the supervision[,] . . . management, control[,] and conduct of its police officers." ( Id. ¶ 24; see also id. ¶ 30 (" That said facts as previously stated, exhibit a custom of the Mt. Vernon Police Department in search warrant cases. These acts by the named

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Mt. Vernon Police Officers acting in their official capacities, performing their duties were committed under the color of existing ordinances, regulations, custom and usage of [t]he State of New York[] and the City of Mt. Vernon[,] subjecting Plaintiffs to the deprivation of the rights, privileges, and immunities secured to them by the U.S. Constitution." ); id. ¶ 47 (" These named Police Officers executed a government policy or custom, of the City of Mt. Vernon, whether made by its law makers or by these Police officers whose acts or edicts represent official policy, and inflicted the injury to Plaintiffs that the City of Mt. Vernon is responsible for under 42 U.S.C. § 1983." ); id. ¶ 53 (" There exists a direct causal link between the City of Mt. Vernon, its policies and customs, with the deprivation of Plaintiff's constitutional rights under § 1983. The municipal policy as previously stated was the force behind these constitutional violations. The facts previously stated as to the custom and policy of the City of Mt. Vernon in search warrant cases, demand an inference of said wrongful conduct by the City of Mt. Vernon." ).) Furthermore, Plaintiffs allege that the City of Mount Vernon is liable for inadequate supervision under New York law and § 1983 from the facts alleged above, as well as the fact that Scott " was supervising the other officers, directing the handcuffing and arrest[] of [Green], directing a vaginal search of [Green] by . . . Jane Doe with . . . Fox and . . . Kushner threatening [Plaintiffs] with harm by pointing guns at them." ( Id. ¶ 37; see also id. ¶ 39 (" The City of Mt. Vernon is liable under § 1983 and under New York [l]aw for failing to properly supervise [the Police Officer Defendants] who were acting in their official capacities under the custom and usage of the City of Mt. Vernon." ).)

Finally, Plaintiffs allege that the Police Officer Defendants are not immune from suit because it was " apparent to each individual officer [that their actions] were inconsistent with acceptable police practice." ( Id. ¶ 42; see also id. ¶ 43 (same).)

B. Procedural Background

Plaintiffs originally filed suit in New York State Court, and Defendants removed to Federal Court based on the existence of a federal question on January 29, 2010. ( See Dkt. No. 1.) Plaintiffs filed an Amended Complaint on December 23, 2010, ( see Dkt. No. 11), which was dismissed without prejudice on September 23, 2011 by an Order that addressed various deficiencies with Plaintiffs' pleadings, ( see Dkt. No. 21). Plaintiffs then filed a Second Amended Complaint, ( see Dkt. No. 23), which Defendants again moved to dismiss, ( see Dkt. No. 27). Following oral argument, the Motion To Dismiss was denied without prejudice to allow Plaintiffs to further amend their Complaint consistent with the instructions provided by the Court at argument. ( See Dkt. No. 33.) Plaintiffs filed a Third Amended Complaint in December 2012. ( See Dkt. No. 34.) Finally, Plaintiffs filed the Fourth Amended Complaint on June 6, 2013. ( See Dkt. No. 47.) Pursuant to a scheduling order entered by the Court, ( see Dkt. No. 50), Defendants filed their Motion To Dismiss and accompanying papers on September 20, 2013, ( see Dkt. Nos. 51--53), Plaintiffs filed their Opposition on October 4, 2013, ( see Dkt. Nos. 54--56), and Defendants filed their Reply on October 25, 2013, ( see Dkt. No. 57).

II. Discussion

A. Rules 8 and 10

Defendants first move to dismiss Plaintiffs' claims on the ground that the FAC violates Federal Rules of Civil Procedure 8 and 10. As relevant here, Rule 8 provides that " [a] pleading that states a claim for relief 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),

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and that " [e]ach allegation must be simple, concise, and direct," id. at 8(d)(1). Rule 10 provides that " [a] party must state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed.R.Civ.P. 10(b). Nonetheless, Rule 8 also provides that " [n]o technical form is required" to comply with the rules, Fed.R.Civ.P. 8(d)(1), and that " [p]leadings must be construed so as to do justice," id. at 8(e).

From these rules emerge two legal standards relevant to Defendants' Motion. First, the latter part of Rule 8(a)(2) contains what the Supreme Court in Twombly called the " Rule 8 entitlement requirement," which is that " the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief.'" Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). Second, the first part of Rule 8(a)(2) contains what may be termed the " short-and-plain-statement requirement," which has been independently interpreted, perhaps along with the requirement in Rule 8(d)(1) that allegations be " simple, concise, and direct," to protect interests separate from the entitlement requirement. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (discussing the interests underlying the short-and-plain-statement requirement); cf. Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (noting the " critical distinction between the notice requirements of Rule 8(a) and the requirement, under Rule 12(b)(6), that a plaintiff state a claim upon which relief can be granted" ). The first requirement asks, " how short is too short?" The second requirement asks, " how long is not short enough?"

In support of their Motion To Dismiss, Defendants quote Salahuddin v. Cuomo, wherein the Second Circuit identified the reasoning underlying the ...

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