United States District Court, S.D. New York
KENNETH GARCIA, JUDITH FADUL, YAZMIN DELAROSA, and CELESTE CRESPO, Plaintiffs,
CITY OF NEW YORK, NEW YORK POLICE DEPARTMENT OFFICERS MICHAEL SMYTH, DAVID ROJAS, PATRICIO OVANDO and GREG LARSON, Defendants.
OPINION AND ORDER
Edgardo Rarnos, U.S.D.J.
Kenneth Garcia, Judith Fadul, Yasmin Delarosa and Celeste
Crespo, acting pro se and in forma
pauperis (“IFP”), bring this action against
the City of New York (the “City”) and New York
City Police Officers Michael Smyth, David Rojas, Patricio
Ovando, and Greg Larson (collectively, the “Officer
Defendants”) pursuant to 42 U.S.C. § 1983.
Specifically, Plaintiffs allege violations of their Fourth,
Fifth, and Fourteenth Amendment rights arising from a
warrantless search of their apartment and subsequent arrests,
as well as state law claims arising from the same incident.
Before the Court is the City and Officers Smyth and
Ovando's motion to dismiss pursuant to Rules 12(b)(5) and
12(b)(6) of the Federal Rules of Civil Procedure
(“FRCP”). For the reasons outlined below,
Defendants' motion is GRANTED in part and DENIED in part.
allege that on September 10, 2012, the Officer Defendants
entered apartment 4K of 2825 Claflin Avenue in the Bronx
without a warrant. Complaint (Doc. 2) ¶ 3, 6. Plaintiffs
refer to themselves as “residents” of the
apartment. Complaint ¶ 8. Plaintiffs Crespo and
Delarosa, who were in the apartment at the time, were
immediately questioned. Id. ¶¶ 6, 14.
Plaintiffs Garcia and Fadul were at a store when the Officer
Defendants entered the apartment. Id.¶ 6.
Plaintiffs allege that when Garcia and Fadul returned to the
apartment, an argument with the Officer Defendants ensued and
they began to search Plaintiffs' residence. Id.
¶¶ 6-7. The Officer Defendants discovered
counterfeit money, two pounds of marijuana, and a firearm.
Id. ¶ 7. Plaintiffs were then arrested and
taken to the 50th Precinct, charged with multiple crimes,
detained for two days, and then released. Id. ¶
8. During the time Plaintiffs were detained at the 50th
Precinct, the apartment door was left unlocked, property was
stolen, and the apartment was vandalized. Id.
Plaintiffs allege that the Officer Defendants intentionally
left the door open. Id.
result of the September 10 search, Fadul, Garcia, and
Delarosa were indicted for, inter alia, conspiracy
to distribute narcotics. See United States v. Fadul, et
al., 13 Cr. 0143 (S.D.N.Y.), Docs. 7, 18, 62, 206. The
indicted Plaintiffs moved to suppress the evidence that the
Officer Defendants seized during the September 10 search.
Id. at Docs. 47, 57, 59.
three-day suppression hearing was held in February 2015
before Judge Furman. The Officer Defendants testified that
they reported to the apartment “after receiving an
anonymous complaint about marijuana smoking.” Furman
Order at 5. There was disagreement between the parties about
whether Plaintiff Delarosa consented to the Officer
Defendants' initial entry, as well as disagreement
regarding the sequence of events once the Officer Defendants
entered the apartment. Id. In fact, Judge Furman
noted that the testimony among the Officer Defendants
themselves was “not entirely consistent.”
Id. at 8. Officer Defendant Smyth testified that
upon entering the apartment, he noticed someone (later
identified as R.D., a minor) heading towards the bedroom
area. Id. He thus conducted a “protective
sweep” of the back area of the apartment,
particularly the bathroom and three bedrooms. Id. at
8-9. In one of the bedrooms, Officer Defendant Smyth
discovered a gun, counterfeit money, and drug paraphernalia.
Id. at 9-10. The Officer Defendants then waited for
Plaintiff Fadul to return from the store to request her
permission to conduct a more thorough search. Id. at
12. She gave oral consent and subsequently signed a consent
form. Id. at 13. The Officer Defendants then
searched the apartment again and discovered “even more
evidence.” Id. At this point, they arrested
all of the individuals within the apartment and transported
them to the precinct. Id. When the Officer
Defendants obtained a search warrant later that night, they
returned to the apartment and “seized [a] gun, [a]
photocopy machine and paper cutter, drugs, drug
paraphernalia, and counterfeit United States currency, among
other evidence.” Id.
contrast to the Officer Defendants version of events, the
indicted Plaintiffs testified that Delarosa did not consent
to their entry, that no one was smoking marijuana, and that
R.D. was not in the apartment at all when the Officer
Defendants entered. Id. at 5-6.
deciding whether the protective sweep was lawful, Judge
Furman did not credit Officer Defendant Smyth's testimony
that he observed R.D. heading towards the bedroom area, or
the testimony of the other Officer Defendants to the extent
it was consistent with Smyth's Id. at 29. Judge
Furman also noted that “this is not the first case in
which colorable questions have been raised about the conduct
and credibility of some of the officers involved in the
search.” Id. at n.7. Judge Furman concluded
that in the absence of evidence that someone ran to the back
of the apartment, the evidence did “not even come close
to justifying a protective sweep.” Id. at 35.
Consequently, Judge Furman granted the motion to suppress.
Id. at 39-40.
Garcia, and Delarosa subsequently pleaded guilty to
conspiracy to distribute narcotics on November 25, 2014,
March 17, 2015, and December 22, 2014, respectively.
Id. at Docs. 283, 290, 312. Based on the underlying
criminal docket, it does not appear that Crespo was ever
filed a Complaint against the City and the Officer Defendants
on September 21, 2015. Complaint (Doc. 2). Plaintiffs also
filed an Amended Complaint as of right on October 29, 2015,
signed by only Garcia. Amended Complaint (Doc. 9). Although
the Amended Complaint largely mirrors the Complaint, the
Amended Complaint includes: (1) two additional plaintiffs;
(2) a request for class certification; (3) an excerpt of the
Furman Order granting Plaintiffs' motions to suppress in
the underlying criminal case; and (4) additional allegations
in support of Plaintiffs' intentional infliction of
emotional distress claim. Because Crespo, Delarosa, and Fadul
failed to sign the Amended Complaint, on November 19, 2015,
then Chief Judge Preska issued an Order directing them to
submit signed declarations within 30 days. (Doc. 15 at 3)
Judge Preska also directed the Clerk to docket the Amended
Complaint as court-view only,  amend the caption of the case to
list the newly added Plaintiffs solely as ‘R.D.'
and ‘B.D.' because they were minors, and to dismiss
R.D. and B.D. from the Amended Complaint. Id.
Crespo, Delarosa, and Fadul timely submitted declarations on
December 1, 2015. (Docs. 16-18) Because counsel for
Defendants did not enter an appearance until January 12,
2016, they did not have access to the Amended Complaint, as
it was designated as court-view only.
applications were granted on December 7, 2015. (Doc. 19) On
December 14, 2015, the Court issued an Order of Service,
designating the U.S. Marshals Service
(“Marshals”) to effect service on all Defendants
and instructing the Clerk to complete a USM-285
for each Defendant and issue a summons. (Doc. 21) The Order
also gave Plaintiffs (through the Marshals) 120 days from the
date the summons was issued to effect service. On December
22, 2015, a summons for each Defendant was issued and a
USM-285 Form for each Defendant was hand delivered to the
Marshals for service upon each Defendant. The last day for
timely service was April 20, 2016.
docket indicates that the City received service by mail on
January 21, 2016. (Doc. 26) However, it provides no
information regarding whether the original Complaint or the
Amended Complaint was served. The docket also indicates that
the Marshals unsuccessfully attempted to serve all four of
the Officer Defendants by mail. Marshal's Receipts (Docs.
28-31). The Marshals subsequently attempted to personally
serve the Officer Defendants on February 17, 2016, noting on
each process receipt that “As per Desk sgt. No officer
with that name works at 50 pct.” Id. In
contrast with the Marshal's receipts, defense counsel
concedes that Ovando and Smyth were served on February 9,
2016 and February 12, 2016 respectively. (Doc. 49)
on a series of letters to the Court from both parties in
January and February of 2016, it became apparent that
Defendants were unaware of the Amended Complaint, which had
been filed four months earlier. (Docs. 25, 27, 35) However,
Garcia attached a copy of the Amended Complaint to a March
16, 2016 letter to the Court, thus likely providing
Defendants with a copy of it for the first time. (Doc. 35)
1, 2016, Garcia filed a motion for leave to amend the
Complaint to remove Plaintiff Crespo from the case for
failure to provide the City with unsealing releases for the
underlying police records. (Doc. 40) The Court denied the
motion and instead directed Crespo to show cause why she
should not be dismissed for failure to provide the releases,
which she later did. (Docs. 45, 56, 57) On July 21, 2016,
Defendants filed the instant motion to dismiss the Complaint.
(Doc. 46) Plaintiffs responded to Defendants' motion on
September 27, 2016. (Doc. 54) Defendants replied on October
5, 2016. (Doc. 55) Given Defendants' apparent lack of
knowledge of the Amended Complaint, the Court sua
sponte granted Defendants leave to file supplemental
briefing to address additional allegations included in the
Amended Complaint. (Doc. 59) On February 14, 2017, Defendants
filed a supplemental brief. (Doc. 60)
12(b)(5) Motion to Dismiss Standard
considering a motion to dismiss pursuant to Rule 12(b)(5) for
insufficient service of process, a court may look to matters
outside the complaint to determine whether it has
jurisdiction. Mende v. Milestone Tech., Inc., 269
F.Supp.2d 246, 251 (S.D.N.Y. 2003). “When a defendant
challenges the sufficiency of service pursuant to Rule
12(b)(5), the plaintiff bears the burden of proving its
evaluate a 12(b)(5) motion, the Court looks to FRCP 4, which
governs service of process. Pursuant to FRCP 4(m):
If a defendant is not served within 120 days after the
complaint is filed, the court- on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m). The Second Circuit has held that FRCP
4 is to be construed liberally “‘to further the
purpose of finding personal jurisdiction in cases in which
the party has received actual notice.'”
Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311
(2d Cir. 1986) (quoting Grammenos v. Lemos, 457 F.2d
1067, 1070 (2d Cir. 1972)). Incomplete or improper service
may lead a court to dismiss an action “‘unless it
appears that proper service may still be
obtained.'” Id. (quoting
Grammenos, 457 F.2d at 1070).
12(b)(6) Motion to Dismiss Standard
motion to dismiss pursuant to Rule 12(b)(6), district courts
are required to accept as true all factual allegations in the
complaint and to draw all reasonable inferences in the
plaintiff's favor. Gonzalez v. Caballero, 572
F.Supp.2d 463, 466 (S.D.N.Y. 2008). However, this requirement
does not apply to legal conclusions, bare assertions or
conclusory allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678, 681 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy
the pleading standard set forth in FRCP 8, a complaint must
contain sufficient factual matter to state a claim to relief
that is plausible on its face. Id. at 678 (citing
Twombly, 550 U.S. at 570). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Accordingly, a plaintiff is required to support
his claims with sufficient factual allegations to show
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. “Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Twombly, 550 U.S. at 557) (internal quotation marks
a plaintiff may plead facts alleged upon information and
belief, “where the belief is based on factual
information that makes the inference of culpability
plausible, ” Arista Records, LLC v. Doe 3, 604
F.3d 110, 120 (2d Cir. 2010), such allegations must be
“‘accompanied by a statement of the facts upon
which the belief is founded.'” Navarra v.
Marlborough Gallery, Inc., 820 F.Supp.2d 477, 485
(S.D.N.Y. 2011) (quoting Prince v. Madison Square
Garden, 427 F.Supp.2d 372, 385 (S.D.N.Y. 2006)); see
also Williams v. Calderoni, No. 11 Civ. 3020 (CM), 2012
WL 691832, at *7-8 (S.D.N.Y. Mar. 1, 2012) (finding pleadings
on information and belief insufficient where plaintiff
pointed to no information that would render his statements
anything more than speculative claims or conclusory
assertions). A complaint that “tenders naked assertions
devoid of further factual enhancement” will not survive
a motion to dismiss under Rule 12(b)(6). Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted) (brackets omitted).
case of a pro se plaintiff, the Court is obligated
to construe the complaint liberally, Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and to
interpret the claims as raising the strongest arguments that
they suggest. Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006); Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citing
Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010)). The obligation to read a pro se
litigant's pleadings leniently “applies with
particular force when the plaintiff's civil rights are at
issue.” Jackson v. N.Y.S. Dep't of Labor,
709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (citing McEachin
v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
“However, even plaintiffs asserting civil right claims
cannot withstand a motion to dismiss unless their pleadings
contain factual allegations sufficient to raise a
‘right to relief above the speculative
level.'” Id. (quoting Twombly,
550 U.S. at 555).