Graham et al v. City of New York et al

Filing 34

MEMORANDUM OPINION AND ORDER re: 21 MOTION to Dismiss filed by City of New York, 26 MOTION to Dismiss the Amended Complaint. filed by City of New York. For the foregoing reasons, the City's motion to dismiss the Amended C omplaint is denied in its entirety. The scheduled initial pretrial conference in this case is hereby rescheduled from March 20, 2015, to February 27, 2015, at 9:45 a.m. in Courtroom 12D. The City is directed to supply Plaintiffs' counsel promptly with information identifying the Doe Defendants. This Order resolves docket entry numbers 21 and 26. SO ORDERED. (See Opinion.) (Signed by Judge Laura Taylor Swain on 1/20/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------x
DEBORAH GRAHAM, et al.,
Plaintiffs,
-v-

No. 13CV5173-LTS-AJP

THE CITY OF NEW YORK, et al.,
Defendants.
-----------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiffs Deborah Graham, Latosha Johnson (Individually and as Mother and
Natural Guardian of P.G.), Ruby Johnson (Individually and as Mother and Natural Guardian of
T.T. and K.S.), Nakyta Brown, and Nikia Everett (as Mother and Natural Guardian of M.J.)
bring this action against the City of New York (the “City”) and members of the New York City
Police Department (the “NYPD”) named in the Complaint as John and Jane Does for, inter alia,
false arrest pursuant to 42 U.S.C. § 1983. The City has moved pursuant to Federal Rule of Civil
Procedure 12(b)(6) to dismiss the Amended Complaint for failure to state a claim.
This Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367.
The Court has thoroughly reviewed the submissions of the parties and, for the
following reasons, the City’s motion is denied.
BACKGROUND
The following facts are taken from the Amended Complaint. A warrant was
executed at 5:30 a.m. on August 1, 2012, on Plaintiffs’ three-bedroom apartment, where
Plaintiffs Deborah Graham, Latosha Johnson, Ruby Johnson, and Nakyta Brown, along with four
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infant children, were sleeping. (Am. Compl. ¶¶ 50 and 53.) No fewer than five NYPD officers
entered the apartment, without knocking, using a battering ram to break through the door. Some
of the officers wore “police” vests and helmets and they entered behind a shield. (Am. Compl.
¶ 52.) Ms. Johnson was brought from her bedroom and slammed down face-first to the floor by
an officer. (Am. Compl. ¶ 61.) The adult Plaintiffs were each handcuffed and taken into the
dining room of the apartment, while the children were placed next to Plaintiffs. (Am. Compl.
¶¶ 72-73.) The officers did not respond to Plaintiffs’ demands to see a search warrant, and
searched the entire apartment, finding no contraband. (Am. Compl. ¶¶ 74, 75, and 77.)
While the residence was being searched, an officer showed Plaintiffs photographs
of three nephews of Ms. Graham, who were young males in their twenties (the “Suspects”).
(Am. Compl. ¶ 79.) The officer informed Ms. Graham that they would like to speak to the
Suspects. Ms. Graham informed the officer that the Suspects had not lived in the apartment for
years and that she did not know where they lived. (Am. Compl. ¶ 83.) One officer stated that an
informant had told police that the Suspects lived in the apartment. (Am. Compl. ¶ 85.) Plaintiffs
allege that none of the Suspects had lived in the residence for several years, and that at least one
of the men had been in prison for at least a year as of the date of the search. (Am. Compl. ¶¶ 83
- 86.) After failing to find the Suspects, the police announced that they were going to search for
“drugs and guns.” (Am. Compl. ¶ 89.)
After the second search produced no contraband or evidence, an NYPD officer
began photographing the infant children despite protests from Plaintiffs. Photographs were
taken of the children’s faces from a distance of one to two feet without consent of either the
children or their parents. (Am. Compl. ¶¶ 96-97.)
Following the search and photography, the officers left Plaintiffs’ residence
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without charging any person with a crime. (Am. Compl. ¶ 103.)
Plaintiffs allege that all of the officers’ actions were taken during the course, and
within the scope, of their NYPD employment. (Am. Compl. ¶¶ 110, 119, 130, 137, 148, and
154.) Plaintiffs assert that, because the Suspects did not live in the apartment and had not lived
there for some time, “law enforcement did not receive the address of the apartment from an
informant, and even if [the attribution of the information to an informant] were true, the
information was clearly untrustworthy.” (Am. Compl. ¶ 86.) Plaintiffs characterize the warrant
as “invalid or insufficient . . . (based on false or insufficient information).” (Am. Compl. ¶ 107.)
Defendants have proffered a copy of what they assert is the relevant warrant in
their papers in support of their motion to dismiss the complaint. The warrant recites that it was
issued upon “[P]roof by affidavit . . . by Detective Martin Campos, Manhattan North Narcotics
. . . that there is reasonable cause to believe that . . . evidence tending to demonstrate the
existence, membership and activities of a narcotics distribution organization . . . and evidence of
a conspiracy to commit narcotics offenses . . . including but not limited to” records of
communications among organization members, communications equipment and electronically
stored information referring to the organization or its members, images of organization
members, transaction records, drug trafficking proceeds and records thereof, electronic
communication equipment and information information stored on such equipment, and evidence
of ownership and use of the apartment “by any person” could be found at Plaintiffs’ apartment.
No names of any individuals other than Detective Campos and the issuing judge are mentioned
in the warrant, which includes no arrest authorization, and there is no specific reference to guns.
The general no-knock search authorization portion of the warrant directs the police officer
executing the warrant to search “for evidence tending to demonstrate the existence, membership,
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and activities of a narcotics distribution organization . . . , and evidence of the possession and
sale of cocaine, and conspiracy to commit those crimes, including but not limited to the
[specifically described] property.” It additionally authorizes “law enforcement personnel to
videotape and photograph the interior of the target apartment, and process the target apartment
and property therein for fingerprints.” (Ex. A to Decl. of Elissa B. Jacobs (the “Warrant”).)
Plaintiffs’ Amended Complaint seeks compensatory and punitive damages against
Defendants for false arrest or unlawful detention (detention in the apartment pursuant to what
Plaintiffs claim was an invalid warrant), unconstitutional search and seizure (principally
searching the apartment pursuant to what Plaintiffs claim was an invalid warrant, searching
outside of what Plaintiffs claim was the authorized scope of the warrant, questioning of the
occupants concerning the Suspects, the photographing of the children, and the detention of the
Plaintiffs in connection with the allegedly unauthorized additional activities), failure to intervene
in the aforementioned violations, assault, battery, and negligent hiring, training, and supervision
by the City. It also asserts that the City is liable for the individual Defendants’ actions on the
basis of respondeat superior.
DISCUSSION
In order “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id., at 1949.
“A § 1983 claim for false arrest, resting on the Fourth Amendment right of an
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individual to be free from unreasonable seizures . . . is substantially the same as a claim for false
arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Singer v.
Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)) (internal quotation marks omitted). To
state a false arrest claim, a plaintiff must allege that: 1) the defendant intended to confine her, 2)
she was conscious of the confinement, 3) she did not consent to the confinement and 4) the
confinement was not otherwise privileged. Broughton v. State, 37 N.Y.2d 451, 456 (1975).
“[A] warrant to search for contraband founded on probable cause implicitly carries with it the
limited authority to detain the occupants of the premises while a proper search is conducted.”
Michigan v. Summers, 452 U.S. 692, 705 (1981) (quoting Payton v. New York, 445 U.S. 573,
602 (1980)).
The City seeks the dismissal of all of Plaintiffs’ claims, asserting that the Warrant
was facially valid and that Plaintiffs have failed to allege facts sufficient to raise a question as to
the actual validity of the warrant. However, Plaintiffs allege in essence that the only apparent
basis for a search of the apartment was the proposition that the Suspects lived there and were
participants in the drug organization, and there could not have been any reliable information
supporting any allegation that any of the Suspects was a current resident of the apartment.
A plaintiff may state a claim of false arrest notwithstanding the prior issuance of a
facially valid search warrant by demonstrating that the “officer submitting the probable cause
affidavit ‘knowingly and intentionally, or with reckless disregard for the truth, made a false
statement in his affidavit’ or omitted material information, and that such false or omitted
information was ‘necessary to the finding of probable cause.’” See McColley v. Cnty. of
Rensselaer, 740 F.3d 817, 823 (2d Cir. 2014) (internal quotation marks omitted). “Recklessness
is inferred when the omitted information was ‘clearly critical’ to the determination of probable

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cause.” Id. (quoting Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991)). “The
materiality of a misrepresentation or an omission in this context is a mixed question of law and
fact. The legal component depends on whether the information is relevant to the probable cause
determination under controlling substantive law.” Id., at 823 (quoting Velardi v. Walsh, 40 F.3d
569, 574 (2d Cir. 1994)). As pleaded, Plaintiffs’ claim places the question of the connection
between the Suspects and the apartment as central to the probable cause issue. They plead facts
that, if proven as to one or more of the Doe Defendants, could lead a reasonable fact finder to
determine that the Warrant was procured through reckless or deliberately deceptive conduct.
Plaintiffs have thus pleaded plausibly their false arrest and illegal search claims insofar as they
are premised on invalidity of the Warrant.
The City further argues that the Doe Defendants are, in any event, entitled to
qualified immunity and that dismissal of the complaint is appropriate at this stage, because the
warrant was facially valid. “An arresting officer is entitled to qualified immunity from a suit for
damages on a claim for arrest without probable cause if either (a) it was objectively reasonable
for the officer to believe that probable cause existed, or (b) officers of reasonable competence
could disagree on whether the probable cause test was met.” Golino v. City of New Haven, 950
F.2d 864, 870 (2d Cir. 1991) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). “The right not
to be arrested or prosecuted without probable cause has, of course, long been a clearly
established constitutional right.” Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979). In
order to defeat a claim of qualified immunity, a plaintiff must allege that “the affiant knowingly
and deliberately, or with a reckless disregard of the truth, made false statements or material
omissions in his application for a warrant, and that such statements or omissions were necessary
to the finding of probable cause.” See Velardi, 40 F.3d at 573. For the reasons explained above,

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the Complaint is sufficient to raise factual questions as to the knowledge and involvement of the
individual defendants in connection with the procurement of the warrant and thus the objective
reasonableness of the officers’ reliance on the warrant. Dismissal on the basis of qualified
immunity is inappropriate at this juncture.
The City further asserts that Plaintiffs’ negligent hiring claim must be dismissed,
as such a claim against the City is viable only to the extent the tortious conduct of its employees
was outside of the scope of their employment. See Colodney v. Continuum Health Partners,
Inc., No. 03CV7276, 2004 WL 829158, at *8 (S.D.N.Y. Apr. 15, 2004) (“A claim for negligent
hiring or supervision can only proceed against an employer for an employee acting outside the
scope of her employment.”). Although Plaintiffs allege that the actions complained of were
within the scope of the Doe Defendants’ employment, the Doe Defendants have not yet been
identified or served, and the City’s Corporation Counsel has not made its own determination as
to whether it will represent the Defendants, a decision that requires a determination as to whether
the action complained of was within the scope of the Defendant’s employment. The dismissal
request is thus premature and is denied without prejudice. See Plair v. City of New York, 789 F.
Supp. 2d 459, 468 (S.D.N.Y. 2011) (citing N.Y. Gen. Mun. Law § 50-k(2)).
Plaintiffs’ remaining claims – for failure to intervene, assault and battery, and
against the City on the basis of respondeat superior – are pleaded sufficiently, as Plaintiffs have
successfully framed an issue as to the validity of the warrant and, thus, whether the search and
related steps taken by the officers were privileged.
CONCLUSION
For the foregoing reasons, the City’s motion to dismiss the Amended Complaint
is denied in its entirety.

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The scheduled initial pretrial conference in this case is hereby rescheduled from
March 20, 2015, to February 27, 2015, at 9:45 a.m. in Courtroom 12D. The City is directed to
supply Plaintiffs’ counsel promptly with information identifying the Doe Defendants.
This Order resolves docket entry numbers 21 and 26.
SO ORDERED.
Dated: New York, New York
January 20, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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