Forney v. Forney et al

Filing 38

DECISION AND ORDER: Accordingly, the Court GRANTS Defendants' 28 motion to dismiss in its entirety. Further, the Court sua sponte dismisses Plaintiff's claims against private actor Demetrious Forney because Plaintiff has failed to, and cannot, allege that Defendant Forney acted under color of state law as required for a Section 1983 claim. The Clerk of Court is hereby directed close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any a ppeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge William F. Kuntz, II, on 3/30/2015. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ALFONZO FORNEY,
Plaintiff,

DECISION AND ORDER
13-CV-7193 (WFK) (LB)

-againstDEMETRIOS FORNEY, POLICE OFFICER
JEFFREY SOTO, POLICE OFFICER
ARRINDELL, POLICE OFFICER KEVIN
DELEON, SERGEANT BERGAMO, SERGEANT :
ZOLLO, and JOHN DOE,
Defendants.

---------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge
Pro Se Plaintiff Alfonzo Forney ("Plaintiff') brings this action against private actor
Demetrios Forney (Plaintiffs half-brother), Police Officer Jeffrey Soto, Police Officer Arrindell,
Police Officer Kevin Deleon, Sergeant Bergamo, and Sergeant Zollo for violations of his civil
rights under 42 U.S.C. § 1983 as well as potential New York state law claims. Specifically,
Plaintiff alleges claims of false arrest, malicious prosecution, unlawful search and seizure, failure
to intervene, and state law claims. City employee defendants Police Officer Jeffrey Soto, Police
Officer Arrindell, Police Officer Kevin Deleon, Sergeant Michael Bergamo, and Sergeant Zollo
(collectively "Defendants" for the purposes of this motion) 1 filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) because: (1) Plaintiff has failed to
plausibly allege any of the claims he raises, (2) Defendants are protected by qualified immunity,
and (3) a claim cannot be sustained against the Defendants under Monell v. Dep 't of Soc. Servs.,
436 U.S. 658, 690-91 (1978). Plaintiff contests Defendants' motion. For the reasons set forth
below, Defendants' motion is hereby GRANTED.

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Private actor Demetrios Forney is not a party to Defendants' motion. Dkt. 29 ("Ds' Memo of
Law") at 1 n. l.

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BACKGROUND
On May 20, 2012, Plaintiffs half-brother Demetrios Forney called 911 and informed the
New York Police Department ("NYPD") that Plaintiff had threatened to kill him, Plaintiff was
storing counterfeit bills in a plastic container in their apartment, and Plaintiff was producing
counterfeit bills on the home computer and printer. Dkt. 1 ("Compl.") at ~1; Dkt. 30-2 ("NYPD
Complaint Report") at 1. Officers Jeffrey Soto and Arrindell responded to the call and went over
to Plaintiffs home, which he shared with Demetrios Forney. Compl. at ~l. Upon the officers'
arrival at the home, Demetrios Forney gave the two officers some of Plaintiffs personal
property, such as counterfeit bills, without Plaintiffs consent. Id at ~2; NYPD Complaint
Report at 1. The two officers also searched Plaintiffs room without Plaintiffs consent and
seized property belonging to Plaintiff without his consent, namely, a container containing
counterfeit bills. Id. at ~2-3; Dkt. 32 ("Mot. in Opp."). at 8. In addition to the two officers,
Sergeant Michael Bergamo was also "on the scene." Compl. at ~7.
As a result of the officers' search, which was conducted subsequent to Demetrios
Forney's complaint, Plaintiff was charged with Criminal Possession of a Forged Instrument and
Harassment. Compl. at ~4. Plaintiff was arrested on May 20, 2012 by Officer Kevin Deleon. Id
at ~8. Plaintiff alleges that Sergeant Zollo was supervising Officer Deleon at the time. Id at ~9.
Plaintiff also alleges that John Doe, Police Commissioner, "failed to properly train officers and
supervisors ... and that this failure directly resulted in a violation of Plaintiffs rights." Id. at
~10.

Plaintiff was jailed at Riker's Island until August 27, 2012. Id. at ~11. On August 20,
2012, the Honorable Desmond Green of the Kings County Criminal Court held a full day hearing

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on the issue of the seizure of the counterfeit bills. Id. at ~12. Judge Green ruled that the seizure
violated Plaintiffs Fourth Amendment rights and suppressed the evidence obtained. Id. On
August 27, 2012, the King's County District Attorney's Office moved for an Adjournment in
Contemplation of Dismissal of the charges against Plaintiff. Id. at ~13.
On August 28, 2012, Plaintiff was turned over to the United States Marshals Service to
appear before the United States District Court for the District of New Jersey to determine
whether Plaintiffs May 20, 2012 arrest violated the terms of his supervised release. Id. at ~1415. At no point was Plaintiff released following his transfer to the custody of the United States
Marshals Service. Id. at ~14. On January 23, 2013, after a hearing held on November 27, 2012,
the Honorable Noel L. Hillman of the United States District Court for the District of New Jersey
found that Plaintiff had committed a crime during his term of supervised release, in clear
violation of the terms of his supervised release. Id. at ~15; Dkt. 30-4 ("Dist. ofN.J. Judgment")
at 1. Plaintiff was sentenced to 18 months' incarceration for violating the terms of his supervised
release. Dist. OfN.J. Judgment at 2.
Plaintiff filed his complaint in this action on December 16, 2013. Compl. at 1. The Court
reads Plaintiffs complaint to raise the following claims: (1) false arrest; (2) malicious
prosecution; (3) unlawful search and seizure; (4) failure to intervene; (5) municipal liability
against the City of New York under Monell, 436 U.S. at 690-91; and (6) possible state law
claims. Compl. at ~~l-16.
On February 18, 2015, Defendants submitted a motion to dismiss the complaint for failure
to state a claim under Federal Rule of Civil Procedure Rule 12(b)(6). Dkt. 29 ("Ds' Memo of
Law"); Dkt. 34 ("Ds' Reply"). Defendants argue that Plaintiff has failed to allege facts sufficient

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to state a claim for any of the issues Plaintiff raised in his complaint. Plaintiff opposed
Defendants' motion. Mot. in Opp. The Court considers each of Plaintiffs claims in tum, in the
order they were pled.

DISCUSSION
I.

Legal Standard
To survive a motion to dismiss under Federal Rules for Civil Procedure Rule 12(b)(6),

each claim must set forth sufficient factual allegations, accepted as true, "to state a claim to relief
that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation
marks omitted). In applying this standard, the Court is guided by "[t]wo working principles."

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). First, the Court
must "accept[] all factual allegations in the complaint as true, and draw[] all reasonable
inferences in the plaintiffs favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002). However, the Court need not credit "legal conclusions" in a claim or "threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements." Harris, 572 F.3d
at 72 (quoting Iqbal, 556 U.S. at 678) (internal quotations and alteration omitted). "Second, only
a complaint that states a plausible claim for relief survives a motion to dismiss," and
"[ d]etermining whether a complaint states a plausible claim for relief will ... be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense." Id. (quoting Iqbal, 556 U.S. at 679) (internal quotations omitted).
When considering a motion to dismiss brought against a pro se litigant, the complaint and
pleadings of a pro se plaintiff must be liberally construed in favor of that party and held to a less
rigorous standard of review than pleadings drafted by an attorney. See Angulo v. Nassau Cnty.,

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10-CV-1500, 2015 WL 993459, at *4 (E.D.N.Y. Mar. 6, 2015) (Bianco, J.). The Second Circuit
"liberally construe[s] pleadings and briefs submitted by prose litigants, reading such submissions
to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d
Cir. 2007) (internal quotation marks and citations omitted).

II.

Analysis
The Court reads Plaintiffs complaint and response in opposition to the motion to dismiss

to raise the following claims pursuant to Section 1983 and related state law claims: ( 1) false
arrest; (2) malicious prosecution; (3) unlawful search and seizure; (4) failure to intervene; (5)
municipal liability against the City of New York under Monell, 436 U.S. at 690-91; and (6)
possible state law claims. Compl. at if~!l-16; Mot. in Opp. at ifif3, 7, 11-16.
Defendants move to dismiss all of Plaintiffs claims on the basis that Plaintiff has failed to
allege facts that would support any of his claims. Defendants also move for a finding that the
individual state employee Defendants are entitled to qualified immunity and state law immunity.
Ds' Memo of Law at 22-24. The Court will address Defendants' motion vis

a vis each of the

Plaintiffs claims in turn.

A. Section 1983 and Related State Law Claims
Plaintiffs first four substantive claims (false arrest, malicious prosecution, unlawful
search and seizure, and failure to intervene), as well as Plaintiffs claim of municipal liability
against Defendants, are all claims alleged under Section 1983. Defendants' motion on the issue
of qualified immunity is also alleged under Section 1983.

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To maintain a cause of action under 42 U.S.C. § 1983, a plaintiff must show that the
defendant, acting under color of state law, denied the plaintiff a constitutional or federal statutory
right. 42 U.S.C. § 1983; Bryant v. Maffucci, 923 F.2d 979, 982-83 (2d Cir. 1991). "Section 1983
itself creates no substantive rights; it provides only a procedure for redress for the deprivation of
rights established elsewhere." Codrington v. City of New York, 12-CV-1650, 2015 WL 893567,
at *3 (E.D.N.Y. Feb. 27, 2015) (Townes, J.) (citing Sykes v. James 13 F.3d 515, 519 (2d Cir.
1993)) (internal quotation marks omitted). The Court will address each of Plaintiffs claims in
tum in the order they were raised by the parties.

1. False Arrest, Malicious Prosecution, and Municipal Liability
The Court reads Plaintiffs complaint as asserting federal law claims of false arrest,
malicious prosecution, and municipal liability against the Defendants. Plaintiff, however, fails to
substantively address these claims in his opposition to Defendants' motion to dismiss. Mot. in
Opp. at 2. Since Plaintiff fails to oppose Defendants' arguments on these claims, the Court
deems them abandoned and GRANTS Defendants' motion as to those claims. See Harte v.

Ocwen Fin. Corp., 13-CV-5410, 2014 WL 4677120, at *8 (E.D.N.Y. Sept. 19, 2014) (Brodie, J.)
(citation omitted); Silverman v. Household Fin. Realty Corp. of NY., 979 F. Supp. 2d 313, 317
(E.D.N.Y. 2013) (Wexler, J.).
The Court notes, however, that even if Plaintiff had addressed these claims, the Court
would have dismissed them. Plaintiff has failed to state a claim for false arrest or malicious
prosecution because Defendants had probable cause to arrest Plaintiff and initiate prosecution of
Plaintiff given Demetrios Fomey's complaint. See, e.g., Codrington v. City of New York, 12-CV1650, 2015 WL 893567, at *4 (E.D.N.Y. Feb. 27, 2015) (Townes, J.); Dukes v. City of New York,

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879 F. Supp. 335, 342 (S.D.N.Y. 1995) (Leisure, J.) (internal citations omitted). Plaintiffs claim
of municipal liability is moot given the dismissal of his additional Section 1983 claims discussed
below. Further, because Officer Deleon, Sergeant Zollo, and John Doe are only implicated in
these claims, the complaint as to them is DISMISSED.

2. Unlawful Search and Seizure
The Court reads Plaintiffs papers as raising a Section 1983 claim based on a Fourth
Amendment violation of unlawful search and seizure. See, e.g., Mot. in Opp. at 2. Reading
Plaintiffs papers "to raise the strongest arguments they suggest," the Court finds Plaintiff alleges
that a container of counterfeit bills was unlawfully seized from his room by Officers Soto and
Arrindel!. Compl. at ~2; Mot. in Opp. at 7-9
Defendants argue that Plaintiffs unlawful search and seizure claim should be dismissed
because Plaintiff had a diminished expectation of privacy, if any expectation of privacy at all, in
his person, his home, and his effects given his status as someone on supervised release and
subject to a search condition at the time of the search and seizure at issue. Ds' Reply at 4-6.
Plaintiff does not contest, nor can he, that he was on supervised release and subject to a search
condition at the time of the search and seizure. See Dist. ofN.J. Judgment at l; U.S. Prob. Office
- Dist. OfN.J, Standard Conditions of Probation/ Supervised Release, available at
http://www.njp.uscourts.gov/services/supervision/conditions-overview/standard-conditions.php.
The Fourth Amendment protects "[t]he right of the people to be secure in their person,
houses, papers and effects against unreasonable searches and seizures" U.S. Const. Amed. IV.
"Whether a search is reasonable is determined by assessing, on the one hand, the degree to which
it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the

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promotion of legitimate government interests." United States v. Quinones, 457 F. App'x 68, 69
(2d Cir. 2012) (internal quotation marks and citation omitted).
In evaluating that balance, the Supreme Court has held that "the Fourth Amendment does
not prohibit a police officer from conducting a suspicionless search of a parolee," and further
noted that "parolees have fewer expectations of privacy than probationers, because parole is more
akin to imprisonment than probation is to imprisonment." Samson v. California, 547 U.S. 843,
850, 857 (2006). Addressing the issue of persons on supervised release specifically, the Second
Circuit has stated:
Supervised release, parole, and probation lie on a continuum. The most severe is
"supervised release," which is "meted out in addition to, not in lieu or,
incarceration," United States v. Reyes, 283 F.3d 446, 461 (2d Cir. 2002) (internal
quotation marks omitted); supervised release is followed, in descending order, by
parole, then probation, id.

United States v. Lifshitz, 369 F.3d 173, 181 n.4 (2d Cir. 2004).
Thus, persons on supervised release "have severely diminished expectations of privacy by
virtue of their status alone." Quinones, 457 F. App'x at 69 (internal quotation marks and
citations omitted). This finding is further supported when the person, as Plaintiff was here, has
been made aware of a limit on their constitutional rights because "persons on supervised release
who sign [] documents [permitting searches of their homes] manifest an awareness that
supervision can include intrusions into their residence and, thus, have a severely diminished
expectation of privacy." Id. (internal quotation marks and citation omitted).
The Supreme Court has held, and the Second Circuit has reiterated, that '" [w ]hen an
officer has reasonable suspicion that a probationer subject to a search condition is engaged in
criminal activity,' the officer's search of the probationer's residence without a warrant does not

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violate the Fourth Amendment." Haynes v. Zaporowski, 521 F. App'x 24, 26 (2d Cir. 2013)
(quoting United States v. Knights, 534 U.S. 112, 121 (2001)) (additional citations omitted).
While it may be possible that the standard for search of an individual on supervised release is
even lower than the reasonable suspicion standard articulated for search of a probationer, the
Court need not decide that issue as it is evident that Officers Soto and Arrindell had reasonable
suspicion to search Plaintiffs room.
Here, Officers Soto and Arrindell arrived at Plaintiffs residence after receiving a 911 call
from Plaintiffs half-brother, Demetrios Forney. NYPD Complaint Report at l. In that 911 call,
Demetrios Forney reported that Plaintiff had threatened to kill him, Plaintiff was storing
counterfeit bills in a plastic container in their apartment, and Plaintiff was producing counterfeit
bills on the home computer and printer. Id.; Compl. at ii 1. Merely from the allegations in the
911 call, the officers had reasonable suspicion that Plaintiff was engaged in a criminal activity
involving counterfeit bills. Then, upon the officers' arrival at Plaintiffs and Demetrious
Forney's shared residence, Demetrios Forney presented Officers Soto and Arrindell with
counterfeit bills and then showed the officers the container in Plaintiffs room in which Plaintiff
kept other counterfeit bills. Compl. at ii 2; Mot. in Opp. at 8 ("[Demetrios Forney] points to a
plastic container that he seen the brother go into that [sic] money[.]"). At that point, the officers
had more than reasonable suspicion that Plaintiff was engaged in a criminal activity involving
counterfeit bills given Demetrios Fomey's presentation of counterfeit bills to them. Further, the
officers had specific reasonable suspicion that the container contained more counterfeit bills
given the counterfeit bills already in their possession and Demetrios Fomey's specific
identification of the container.

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Officers Soto and Arrindell had reasonable suspicion to search Plaintiffs residence, and
the container of counterfeit bills in particular, as a result of Demetrios Fomey's allegations and
his presentation to the officers of counterfeit bills. Given Plaintiffs status as an individual on
supervised release, reasonable suspicion was all the officers needed to justify their search of
Plaintiffs residence. Therefore, Defendants' motion to dismiss Plaintiffs Fourth Amendment
claim of unreasonable search and seizure is GRANTED.

3. Failure to Intervene
The Court reads Plaintiffs complaint as asserting failure to intervene claims against
Sergeant Zollo and Sergeant Bergamo. Compl. at ~7, 9. However, there can be no failure to
intervene claim without a primary constitutional violation. See Posner v. City of New York, 11CV-4859, 2014 WL 185880, at *8 (S.D.N.Y. Jan. 16, 2014) (Furman, J.) (citing Matthews v. City
of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012) (Matsumoto, J.)). As all of

Plaintiffs primary Section 1983 claims have been dismissed, Defendants' motion to dismiss
Plaintiffs failure to intervene claim is also GRANTED.

4. Qualified Immunity
The Court hereby GRANTS Defendants' motion to dismiss as it relates to all of the
claims arising under Section 1983. The Court will not address the Defendants' motion for
summary judgment on the issue of qualified immunity as the issue is MOOT, seeing as there are
no more substantive Section 1983 claims at issue.

B. Claim Unrelated to Section 1983

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Plaintiffs papers could also be read to state claims under New York state law. Compl. at
4.
5. State Law Claims

As an initial matter, there are certain procedural hurdles that a plaintiff must cross before
he is able to sue employees of the City of New York. Under New York law, an individual suing
city employees must file a notice of claim. New York's General Municipal Law provides in
pertinent part:
No action ... shall be ... maintained against a city ... or of any officer, agent or
employee thereof ... unless, (a) a notice of claim shall have been made and
served upon the city ... in compliance with section fifty-e of this article[.]
N.Y. Gen. Mun. Law§ 50-i(l). Section 50-e provides in pertinent part that for a "case founded
upon tort," notice of the claim must be served "within ninety days after the claim arises." N.Y.
Gen. Mun. Law§ 50-e(l)(a). "A plaintiffs state law tort claims in a federal civil rights action
against ... police officers employed by the city should be dismissed when plaintiffs notice of
claim is filed more than 90 days after the claims arose." Bender v. Alvarez, 06-CV-3378, 2009
WL 112716, at *10 (E.D.N.Y. Jan. 16, 2009) (Amon, J.) (citing Brogdon v. City of New Rochelle,
200 F. Supp. 2d 411, 428 (S.D.N.Y. 2002) (McMahon, J.)) (internal quotation marks omitted).
The incident giving rise to the state law claims suggested by Plaintiffs complaint
occurred on May 20, 2012, when Defendants searched Plaintiffs room and seized certain of his
possessions. Compl. at 4-4b. Plaintiff did not file his notice of claim until October 22, 2013.
Mot. in Opp. at 11-12, 15. The period of time between May 20, 2012 and October 22, 2013 is
longer than ninety days. As a result, Plaintiffs notice was untimely. Therefore Defendants'
motion to dismiss Plaintiffs state law claims must be GRANTED.

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6. State Law Immunity
The Court hereby GRANTS Defendants' motion to dismiss Plaintiffs state law claims.
The Court will not address the Defendants' motion for summary judgment on the issue of state
law immunity as the issue is MOOT, seeing as there are no more state law claims at issue.

CONCLUSION
Accordingly, on the basis of the record and law as set forth above, the Court GRANTS
Defendants' motion to dismiss in its entirety. Further, the Court sua sponte dismisses Plaintiffs
claims against private actor Demetrious Forney because Plaintiff has failed to, and cannot, allege
that Defendant Forney acted under color of state law as required for a Section 1983 claim. 42
U.S.C. § 1983; Bryant, 923 F.2d at 982-83. The Clerk of Court is hereby directed close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not
be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

/S/ Judge William F. Kuntz, II
HON. WILLIAMF/ KUNTZ, II
United States Disty{ct Judge

Dated:

4J Jo, 2015
Brooklyn, New York

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