Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vasquez v. Reilly

United States District Court, S.D. New York

March 9, 2017

KIM VASQUEZ, Plaintiff,
v.
POLICE OFFICER ROBERT REILLY; POLICE OFFICER MICHAEL FELTHAM; POLICE OFFICER JOHN FREDRICKS; POLICE OFFICER LT. WEISENBERG; POLICE OFFICER JOHN DOE #CLK374, in their own individual capacities of police officers employed by the Clarkstown Police Department; SUPERVISOR SCOTT M. RIOS, Defendants.

          Kim Vasquez Marcy, NY Pro Se Plaintiff

          John J. Walsh, II, Esq. Paul E. Svensson, Esq. Hodges Walsh & Messemer, LLP White Plains, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE.

         Plaintiff Kim Vasquez (“Plaintiff”) brings this Action against Defendants Police Officer Robert Reilly, Police Officer Michael Feltham, Police Officer John Fredericks, Police Officer Lt. Weisenberg, Police Officer John Doe, and Supervisor Scott M. Rios (“Defendants”), pursuant to 42 U.S.C. § 1983 and the New York State constitution, alleging violations of his constitutional rights in connection with a search of his home and a subsequent arrest and prosecution. (See Second Am. Compl. (Dkt. No. 33).)[1] Before the Court is Defendants' Motion To Dismiss. For the reasons to follow, the Motion is granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are taken from Plaintiff's Second Amended Complaint and are taken as true for purposes of resolving the Motion.

         On June 7, 2014, at approximately 9:15 PM, Defendants Reilly, Feltham, Weisenberg, and Fredericks entered the home of Plaintiff without a warrant and without the consent of Plaintiff. (See Id. ¶ 10.) Plaintiff alleges that the search was conducted without lawful authority. (See Id. ¶ 11.) During the search, Reilly seized a cologne box containing $5, 700. (See Id. ¶ 12.) Reilly also brought a dog (“King”) onto the premises to assist with the search. (See Id. ¶ 13.) Plaintiff was not present at the time of the search, had no knowledge of the search, did not consent to it, and had no knowledge of any illegal items that were allegedly found at the scene. (See Id. ¶ 14.)

         Plaintiff acknowledges that his wife gave consent to search the premises without a warrant, but alleges that the consent did not give Defendants authority to search or seize Plaintiff's property. (See Id. ¶ 16.) Plaintiff alleges also that Weisenberg, Fredericks, and King were not named on the consent-to-search form signed by his wife. (See Id. ¶ 17.) Despite this, Fredericks entered the premises and took photographs of Plaintiff's home. (See Id. ¶ 18.)

         Sometime thereafter, Fredericks filed an accusatory instrument, falsely accusing Plaintiff of possessing drugs and paraphernalia that were found at the scene, despite knowing that Plaintiff could not have possessed the items, as he was not at the scene of the search. (See Id. ¶ 15.) On June 13, 2014, a warrant was issued for Plaintiff's arrest. (See Id. ¶ 20.) Plaintiff was unaware for approximately three months that there was a warrant for his arrest. (See id.) On or about September 24, 2014, Plaintiff was arrested by Defendant “John Doe” for the felonies and misdemeanors alleged by Fredericks in his accusatory instrument. (See Id. ¶ 21.) All of the felonies were dismissed, Plaintiff was never indicted, and the charges were dismissed on or about April 9, 2015. (See Id. ¶ 22.) Plaintiff had to serve two days in jail, go to numerous court appearances, and pay $15, 000 in attorney fees. (See Id. ¶ 23.)

         Plaintiff also names Supervisor Scott M. Rios as a Defendant. (See Id. ¶ 19.) He alleges that Rios “reviewed these actions, and gave his consent to the actions performed by the officers, and is negligent for these actions having been occur[r]ed in escalation to criminal charges against . . . Plaintiff.” (See id.)

         B. Procedural History

         Plaintiff filed his Complaint on December 4, 2015. (See Dkt. No. 2.) On January 20, 2016, then-Chief Judge Preska issued an Order to Amend, directing Plaintiff to file an Amended Complaint correcting various deficiencies in his Complaint. (See Dkt. No. 5.) On March 7, 2016, Plaintiff sent a letter indicating that he wanted his case transferred to a judge in White Plains. (See Letter from Plaintiff to Court (Mar. 7, 2016) (Dkt. No. 7).) On March 18, 2016, in accordance with Judge Preska's prior order, Plaintiff filed his Amended Complaint. (See Dkt. No. 8.) The case was reassigned to this Court on March 29, 2016, (see Dkt. (Notice of Case Reassignment Mar. 29, 2016)), and on April 7, 2016, the Court issued an Order of Service, which, among other things, dismissed the claims against Jena Vasquez (Plaintiff's wife) and substituted the Town of Clarkstown as a Defendant in place of the Clarkstown Police Department, (see Dkt. No. 10).

         On May 3, 2016, the Town of Clarkstown-then, the only remaining Defendant-filed a letter requesting leave to file a motion to dismiss. (See Letter from Paul E. Svensson, Esq., to Court (May 3, 2016) (Dkt. No. 15).) The Court granted leave and set a schedule, (see Memo Endorsement (Dkt. No. 17)), and on June 13, 2016, the Town of Clarkstown filed its Motion To Dismiss and supporting documents, (see Dkt. Nos. 18-22). Plaintiff responded on July 11, 2016, objecting that he had not consented to the substitution of the Town of Clarkstown, arguing that the case should be adjourned because he was unable to litigate the case due to issues he faces at the correctional facility where he is housed, and requesting that the Court appoint a pro bono attorney for him. (See Letter from Plaintiff to Court (July 11, 2016) (Dkt. No. 23).) The Town of Clarkstown filed a reply affirmation in support of its Motion. (See Dkt. No. 24.) On August 8, 2016, the Court informed Plaintiff that he needed to be more specific about the relief he sought, but that it was not inclined to grant Plaintiff's requests. (See Memo Endorsement (Dkt. No. 26).) Plaintiff filed another letter on September 24, 2016, requesting leave to file a second amended complaint and asking the Court to issue an order pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). (See Letter from Plaintiff to Court (Sept. 24, 2016) (Dkt. No. 27).) The Court denied Plaintiff's request because the proposed second amended complaint concerned facts unrelated to the current case. (See Memo Endorsement (Dkt. No. 29).) On October 22, 2016, Plaintiff wrote again, explaining that he intended only to add the police officers who were involved in the search and arrest. (See Letter from Plaintiff to Court (Oct. 22, 2016) (Dkt. No. 31).) The Court granted Plaintiff two weeks to file the proposed amended complaint. (See Memo Endorsement (Dkt. No. 32).)

         On November 15, 2016, Plaintiff filed a Second Amended Complaint. (See Dkt. No. 33.) Upon application from the Town of Clarkstown, the Court declared the Second Amended Complaint a nullity because it went beyond the parameters set forth by the Court in its order permitting Plaintiff to amend. (See Memo Endorsement (Dkt. No. 35).) The Court shortly thereafter revised its determination, holding that the Second Amended Complaint should be accepted for filing and informing Defendants, not including the Town of Clarkstown (which had been removed from the case), that they could supplement the pending Motion To Dismiss. (See Order (Dkt. No. 36).) Defendants thereafter supplemented their Motion. (See Dkt. Nos. 38-42.) Plaintiff filed a letter responding to the Motion, (see Dkt. No. 43), and Defendants filed a reply, (see Dkt. Nos. 44-45).

         II. Discussion

         A. Standard of Review

         The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Rather, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint, ” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face, ” id. at 570, if a plaintiff has not “nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed, ” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” (second alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

         “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and “draw[] all reasonable inferences in favor of the plaintiff, ” Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (same).

         Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.” (italics and internal quotation marks omitted)).

         B. Analysis

         Defendants set forth a number of grounds for dismissing the Second Amended Complaint. The Court will address each in turn, but must first determine which materials it may consider in adjudicating the Motion.

         1. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.