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Garcia v. City of New York

United States District Court, S.D. New York

March 28, 2017



          Edgardo Rarnos, U.S.D.J.

         Plaintiffs 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[1] 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.


         Plaintiffs 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.[3] 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.

         As a 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.

         A 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”[4] 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.

         In 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.

         In 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.

         Fadul, 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 charged.


         Plaintiffs 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, [5] amend the caption of the case to list the newly added Plaintiffs solely as ‘R.D.' and ‘B.D.' because they were minors, [6]and to dismiss R.D. and B.D. from the Amended Complaint.[7] Id. Crespo, Delarosa, and Fadul timely submitted declarations on December 1, 2015.[8] (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.

         The IFP 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 Form[9] 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.

         The 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)

         Based 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)

         On June 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)


         A. 12(b)(5) Motion to Dismiss Standard

         In 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 adequacy.” Id.

         To 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).[10] 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).

         B. 12(b)(6) Motion to Dismiss Standard

         On a 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 omitted).

         Though 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).

         In the 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).

         IV. ...

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