Calderon v. The City of New York et al

Filing 34

OPINION & ORDER #105484 re: 26 MOTION to Dismiss filed by The City of New York, James South. For the foregoing reasons, the Court grants defendants' motion to dismiss Calderon's SAC, without prejudice to Calderon& #039;s right to file a Third Amended Complaint ("TAC"). The Clerk of Court is directed to terminate the motion pending at docket number 26 and to close this case. However, the Clerk shall reopen the case if Calderon files a TAC by May 29, 2015. In the event Calderon files such a pleading, the defendants' response will be due two weeks later. In the event defendants respond with a motion to dismiss, Calderon's brief in opposition will be due two weeks later, and defendants' reply will be due one week after that. If Calderon elects not to file a TAC, the dismissal will then be with prejudice. (Signed by Judge Paul A. Engelmayer on 5/4/2015) (mro) Modified on 5/4/2015 (soh).

of the execution of the unjustified search of her apartment. She further alleges that the City of
New York (“the City”) failed to properly train and discipline its officers with respect to seeking
search warrants. Calderon seeks compensatory damages of $1 million, plus punitive damages.
Defendants the City and South move to dismiss Calderon’s Second Amended Complaint
(“SAC”) as to all claims. For the reasons that follow, the Court grants the motion to dismiss the
SAC, but without prejudice to Calderon’s right to replead.
I.

Background 1
A.

The Parties

Calderon resides in apartment 5F of 275 East 201st Street (“the building”) in the Bronx.
SAC ¶ 6. She has lived there since July 2012. Id. ¶ 17.
Calderon has sued 12 defendants. Id. ¶¶ 7–13. The first, the City, is responsible for the
NYPD. The second, South, swore out an affidavit in which he stated, inter alia, that he had
personally seen Perez, a narcotics trafficking suspect, exit apartment 5F shortly before selling
cocaine to a confidential informant outside the building, and that a fellow officer had seen Perez
enter apartment 5F immediately after such a sale. The other defendants are 10 John or Jane
Does—police officers and detectives “whose identities are currently unknown who are members
of the NYPD who took place in the incident described herein.” Id. ¶ 13. South and the 10 Does
are sued in their individual and official capacities. Id. ¶¶ 9, 13.

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For the purpose of resolving the motion to dismiss, the Court assumes all well-pled facts in the
Second Amended Complaint, Dkt. 25 (“SAC”), to be true, drawing all reasonable inferences in
favor of the plaintiff. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012). The
Court also considers “documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007); accord Halebian v. Berv, 644 F.3d 122, 130 n.7 (2d Cir. 2011).

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B.

Calderon’s Occupancy of Apartment 5F Before the August 27, 2013 Search

In or about June 2012, Calderon signed a lease with her landlord for apartment 5F. Id.
¶ 16. In or about July 2012, she moved into apartment 5F with her husband and her son. Id.
¶ 17. No one else lived with them. Id. “In July 2012, the Con Edison bill for the apartment was
put in [Calderon’s] name.” Id. ¶ 18.
As to access to the apartment, Calderon alleges that in July 2012, she “installed a top lock
and only [she], her husband, and her son had the key. The key cannot be duplicated unless you
have a special card. The building did not have a copy of the key or the card.” Id. ¶¶ 19–21.
Further, in August 2012, “ADT installed an alarm system that covered, among other places, the
entrance to the apartment.” Id. ¶ 22. This alarm “was always turned on when no one was in the
apartment.” Id. ¶ 23. If the alarm were activated, ADT would notify plaintiff by phone before
contacting the authorities. Id. ¶ 24.
C.

Detective South’s Affidavit in Support of a Search Warrant

On August 22, 2013, South swore out a seven-page affidavit in support of warrants to
search apartments 5F and 5K. See Dkt. 27 (“Siddiqi Decl.”), Ex. B. In it, South stated, among
other things, the following 2:

2

Calderon contests the truthfulness of some statements made in the affidavit, but not the fact that
South made them. Indeed, Calderon’s SAC, in claiming violations of § 1983 and state law, relies
on the fact that these statements, some of which she claims were false, were made to secure the
warrant to search apartment 5F. See, e.g., SAC ¶ 30 (“[T]he information that SOUTH provided
to the Court about Perez entering and exiting was false . . . .”). It is, therefore, proper to
consider, on defendants’ motion to dismiss, the statements made in the affidavit, for the fact that
they were made to secure the warrant. See generally Chambers v. Time Warner, Inc., 282 F.3d
147, 152–53 (2d Cir. 2002) (“‘[T]he complaint is deemed to include any written instrument
attached to it as an exhibit or any statements or documents incorporated in it by reference.’ Even
where a document is not incorporated by reference, the court may nevertheless consider it where
the complaint ‘relies heavily upon its terms and effect,’ which renders the document ‘integral’ to
the complaint.”) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d

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1. In approximately May 2013, NYPD’s Narcotics Borough Manhattan North unit
began investigating narcotics activity at 275 East 201st Street. Id. ¶ 4.
2. On two occasions in August 2013, South conducted “controlled” purchases using a
confidential informant (“CI”), id. ¶¶ 8, 9, who had a history of reliability, id. ¶ 5. In
each case, the CI purchased cocaine from a man inside a Ford Explorer situated
outside of 275 East 201st Street. Id. ¶¶ 8, 9. Before each purchase, the drug dealer
emerged from within 275 East 201st Street. Id. After each purchase, the CI exited
the Ford Explorer and met South, where the CI handed South a plastic twist bag
containing a white powdered substance. Id. Field tests were positive for cocaine
each time. Id. ¶¶ 8a, 9a.
3. After a car stop, South identified the drug seller as German Perez. Id. ¶ 7. Perez
showed South a New York State driver’s license bearing the name “German Perez”
and the address of “275 E 201st St #5F, Bronx, New York.” Id.; see also id., Ex. C.
4. As to the first purchase, after giving the CI money to buy drugs, South went to a
stairwell within 275 East 201st Street, “overlooking the fifth floor.” Id., Ex. B at ¶ 8.
From that position, South “observed Perez exit Apartment 5F, retrieve keys from his
pocket, and use the keys to enter Apartment 5K.” Id. South “then observed Perez
exit Apartment 5K and enter an elevator. A few minutes later, [South] observed
Perez exit an elevator on the fifth floor of 275 East 201st Street, retrieve keys from
his pocket, and use the keys to enter Apartment 5K.” Id. When South returned to his

Cir. 1995) (per curiam)); ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007). On this basis, the Court has considered the affidavits to search apartments 5F and 5K,
and the resulting warrants that issued to search those apartments. See Siddiqi Decl., Exs. B–E.

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vehicle, the CI handed him a plastic bag containing cocaine. Id. The CI reported to
South that he had seen Perez exit 275 East 201st Street before entering the Ford
Explorer, where Perez sold the cocaine to the CI. Id.
5. As to the second purchase, after giving the CI money to buy drugs, South, while near
275 East 201st Street, “observed Perez driving a grey Ford Explorer,” park the Ford
Explorer in front of 275 East 201st Street, and then enter that building. Id. ¶ 9. South
was “informed by Detective Alexander Sosa . . . who was located on the fifth floor of
275 East 201st Street, that he observed Perez exit an elevator on the fifth floor of [the
building], remove keys from his pocket, and use the keys to enter Apartment 5K.
Detective Sosa then observed Perez exit Apartment 5K and enter the elevator.” Id.
South “then observed Perez exit 275 East 201st Street and enter the Ford Explorer.
[South] observed CI enter the Ford Explorer and exit a short time later. [South] then
observed Perez park the Ford Explorer a short distance away, exit the Ford Explorer,
and enter 275 East 201st Street.” Id. Sosa informed South “that, a few moments
later, he observed Perez exit the elevator on the fifth floor of 275 East 201st Street,
retrieve keys from his pocket, and use the keys to enter Apartment 5F.” Id. Around
that time, the CI again handed South a plastic bag containing cocaine. Id.
6. Apartments 5F and 5K are located on the same floor, but are on different sides of the
hallway. Each door has a clearly marked apartment number. Id. ¶ 11.
On August 22, 2013, on the basis of South’s affidavit, the Honorable Steven M.
Statsinger of the Criminal Court of the City of New York issued no-knock search warrants for
apartments 5F and 5K. Id., Ex. D. The warrants authorized the officers to search for (among
other things) cocaine, proceeds from drug trafficking, and the person of German Perez. Id.

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On August 26, 2013, South presented a modified affidavit to correct a typographical error
pertaining to the borough of the premises (the original affidavit mistakenly said “New York,
New York,” not “Bronx, New York”). Id., Ex. D at ¶ 3. On the same date, Judge Statsinger
issued a search warrant based on the corrected affidavit. Id., Exs. D, E.
D.

The August 27, 2013 Search and Aftermath

On August 27, 2013, South and other unidentified NYPD officers went to Calderon’s
apartment, 5F, to execute the search warrant. She was inside the apartment when, between 3 and
4 p.m., she heard banging at the door as she was leaving the shower. SAC ¶ 33. She “grabbed a
towel and looked through the peephole” of the door, where she saw “people in dark clothing
breaking down her door.” Id. She “opened her door and the police entered waiving [sic] a piece
of paper.” Id. ¶ 34. She was handcuffed while wearing only a towel; she did not consent to
being handcuffed. Id. ¶¶ 35–36. The handcuffs were momentarily removed to permit Calderon
to clothe herself. Id. ¶ 37. Police then showed Calderon a photocopy of German Perez’s driver’s
license (which showed his address as apartment 5F in that building); Calderon replied that he did
not live in the apartment. Id. ¶ 38. An officer told Calderon that Perez still paid her Con Ed bill;
Calderon responded that this was impossible, because she had been living in the apartment for 13
months and the bill was in her name. Id. ¶ 40. Calderon also “informed the police that the
building’s Superintendent had previously told her that a lady who used to live in the apartment
[i.e., apartment 5F] now lived in apartment 5K.” Id. ¶ 42. The police then went to apartment 5K
“and arrested the male and seized drugs.” Id. ¶ 43. No evidence of contraband was found in
apartment 5F. Id. ¶ 45. Calderon “was eventually released from custody.” Id. ¶ 46. When
entering Calderon’s apartment, the police officers damaged her door, which took three days to
repair. Id. ¶ 54.

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E.

Procedural History

On February 20, 2014, Calderon filed a Complaint. Dkt. 2. On May 9, 2014, the City
answered. Dkt. 4. On November 5, 2014, after settlement discussions pursuant to the District’s
§ 1983 Plan, and after an initial pretrial conference, Dkt. 18, Calderon filed a First Amended
Complaint (“FAC”). Dkt. 19. On December 15, 2014, Calderon sought leave to file a Second
Amended Complaint (“SAC”), Dkt. 21, which the Court granted, Dkt. 23. On December 19,
2014, Calderon filed the SAC. Dkt. 25.
The SAC brings four causes of action: (1) a § 1983 claim against South and the Doe
officers for wrongful arrest and false imprisonment during the execution of the search warrant;
(2) a Monell claim against the City, based on its alleged failure to train, supervise, and discipline
employees with respect to obtaining search warrants; (3) a state-law claim, mirroring the § 1983
claim, for false arrest and imprisonment; and (4) a claim for attorneys’ fees under 42 U.S.C.
§ 1988. See SAC pp. 9–16.
On January 9, 2015, defendants moved to dismiss, Dkt. 26, and filed a supporting
memorandum of law, Dkt. 29 (“Def. Br.”), and an accompanying declaration, Dkt. 27. On
January 26, 2015, Calderon filed an opposition brief. Dkt. 30 (“Pl. Br.”). On February 6, 2015,
the defendants filed a reply brief. Dkt. 31 (“Def. Reply Br.”). On February 20, 2015, the Court
held argument. See Dkt. 23.
II.

Applicable Legal Standards Governing Motions to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. 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

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alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where,
as a matter of law, “the allegations in a complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at 558.
In considering a motion to dismiss, a district court must “accept[] all factual claims in the
complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Lotes Co. v. Hon
Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting Famous Horse Inc. v. 5th
Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010)). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. “[R]ather, the complaint’s factual allegations must
be enough to raise a right to relief above the speculative level, i.e., enough to make the claim
plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citing Twombly,
550 U.S. at 555, 570) (internal quotation marks omitted) (emphasis in Arista Records).
III.

Discussion
Calderon’s claims of wrongful arrest and false imprisonment turn on whether the search

of her apartment was lawful. If the search was lawful, all of Calderon’s claims necessarily fail,
because it is well established that officers may briefly detain occupants of an apartment during a
lawful search, see Michigan v. Summers, 452 U.S. 692, 705 (1981), and Calderon does not allege
here that a valid search was improperly executed (e.g., that she was detained for too long during
the search). Instead, she asserts that the search was unlawful because South knowingly or
recklessly made false statements in his application for a search warrant, and based on those false
statements, the state court judge found probable cause and issued the search warrant. See, e.g.,
SAC ¶¶ 1, 48, 55, 57, 60. If Calderon has adequately so pled, then (subject to challenges specific

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to particular claims or defendants) her claims may proceed to discovery. The Court therefore
considers at the outset whether the SAC adequately pleads that the warrant was improperly
procured so as to make the resulting search unlawful.
The requirement of a search warrant derives from the Fourth Amendment. It provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV.
The Supreme Court has recognized exceptions to the Fourth Amendment’s warrant
requirement, including where a person voluntarily consents to the search of his person or
premises. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973); accord Fernandez v. California, 134 S. Ct. 1126, 1133 (2014). 3 But the
Court has expressed a clear preference for searches conducted pursuant to warrants issued by
neutral magistrates, based on a finding of probable cause. See Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (“It is a ‘basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.’”) (quoting Groh v. Ramirez,
540 U.S. 551, 559 (2004)); Payton v. New York, 445 U.S. 573, 586 (1980) (same); Illinois v.
Gates, 462 U.S. 213, 236 (1983).

3

Other recognized exceptions include to prevent the imminent destruction of evidence, see
Kentucky v. King, 131 S. Ct. 1849, 1858 (2011); to enable officers to render emergency
assistance, see Michigan v. Fisher, 558 U.S. 45, 47 (2009); to seize evidence in plain view, see
Horton v. California, 496 U.S. 128, 136–40 (1990); to fight a fire and investigate its cause, see
Michigan v. Tyler, 436 U.S. 499, 509 (1978); and to engage in “hot pursuit” of a fleeing suspect,
see United States v. Santana, 427 U.S. 38, 42–43 (1976).

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Where a search has been conducted pursuant to a court-authorized warrant, “great
deference” is due to a magistrate’s determination that there is probable cause to search a
premises. United States v. Leon, 468 U.S. 897, 914 (1984) (citations omitted). “Normally, the
issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause,
creates a presumption that it was objectively reasonable for the officers to believe that there was
probable cause.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (citing United
States v. Ventresca, 380 U.S. 102, 109 (1965)).
Deference to the magistrate’s finding of probable cause, however, “is not boundless,”
Leon, 468 U.S. at 914, and while a party challenging a warrant on the ground that it was issued
on less than probable cause bears a “heavy burden,” Golino, 950 F.2d at 870, that burden can be
met. In particular, it is appropriate to inquire whether the affidavit on which the probable cause
determination was based was knowingly or recklessly false. Under Franks v. Delaware, 438
U.S. 154 (1978), a criminal defendant who seeks to suppress the fruits of a search warrant must
show that (1) the affiant knowingly and deliberately, or with a reckless disregard of the truth,
made false statements or omissions in his application for a warrant, and (2) such statements or
omissions were necessary to the finding of probable cause. Id. at 155–56; United States v.
Martin, 426 F.3d 68, 73 (2d Cir. 2005); United States v. Canfield, 212 F.3d 713, 717–18 (2d Cir.
2000).
This same standard applies in civil cases, like this one, brought pursuant to § 1983, in
which a plaintiff seeks to challenge a warranted search as unlawful. See, e.g., Velardi v. Walsh,
40 F.3d 569, 573 (2d Cir. 1994) (citing Franks, 438 U.S. at 171–72; Golino, 950 F.2d at 870–
71); Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990) (applying Franks standard to issues of
qualified immunity in § 1983 action). In such cases, a plaintiff must make a “substantial

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preliminary showing” that the affiant knowingly and intentionally, or with reckless disregard for
the truth, made a material false statement in applying for the warrant. Rivera v. United States,
928 F.2d 592, 604 (2d Cir. 1991) (quoting Franks, 438 U.S. at 155–56). “Unsupported
conclusory allegations of falsehood or material omission” cannot support a challenge to the
validity of the warrant; rather, the plaintiff must make “specific allegations” supported by an
offer of proof. Velardi, 40 F.3d at 573. The Franks standard is, thus, “a high one.” Rivera, 928
F.2d at 604.
In such challenges, as to the first Franks element, it is insufficient for a plaintiff to allege
that there were errors in the affidavit, as “misstatements or omissions caused by ‘negligence or
innocent mistake[s]’” do not establish falsity or reckless disregard. United States v. Rajaratnam,
719 F.3d 139, 153 (2d Cir. 2013), cert. denied, 134 S. Ct. 2820 (2014) (quoting Franks, 438 U.S.
at 171); accord Rodriguez, 497 U.S. at 184 (“If a magistrate, based upon seemingly reliable but
factually inaccurate information, issues a warrant for the search of a house in which the soughtafter felon is not present, has never been present, and was never likely to have been present, the
owner of that house suffers one of the inconveniences we all expose ourselves to as the cost of
living in a safe society; he does not suffer a violation of the Fourth Amendment.”). Instead, it
must be alleged that any misrepresentations or omissions were “designed to mislead, or that
[they were] made in reckless disregard of whether they would mislead.” Rajaratnam, 719 F.3d
at 154 (quoting United States v. Awadallah, 349 F.3d 42, 68 (2d Cir. 2003)) (emphasis omitted).
Recklessness may be inferred when information omitted from an affidavit was “clearly critical”
to the determination of probable cause. McColley v. County of Rensselaer, 740 F.3d 817, 823
(2d Cir. 2014) (quoting Rivera, 928 F.2d at 604).

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As to the second Franks element, a false statement is material when “the alleged
falsehoods or omissions were necessary to the [issuing] judge’s probable cause finding.” Martin,
426 F.3d at 73 (quoting Awadallah, 349 F.3d at 64–65). Courts assess materiality using the
“corrected affidavits” approach. McColley, 740 F.3d at 823 (citing Escalera v. Lunn, 361 F.3d
737, 743–44 (2d Cir. 2004)). A court looks “to the hypothetical contents of a ‘corrected’
application to determine whether a proper warrant application, based on [all] existing facts
known to the applicant,” would have sufficed to support probable cause. Escalera, 361 F.3d at
743–44 (citing Franks, 438 U.S. at 171–72; Loria v. Gorman, 306 F.3d 1271, 1289 (2d Cir.
2002); Smith v. Edwards, 175 F.3d 99, 105 (2d Cir. 1999)). Issues are not material if, after
eliminating any allegedly false information and adding any omitted facts, the corrected affidavit
would still have supported a finding of probable cause. See Velardi, 40 F.3d at 573 (citing
Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993); Cartier v. Lussier, 955 F.2d 841, 845 (2d
Cir. 1992)). In conducting the corrected affidavit inquiry, as in assessing a search warrant
application in the first instance, a court is not to be overly strict or technical in assessing whether
there is probable cause. A judge must instead “simply . . . make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him, including the
veracity and basis of knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Martin,
426 F.3d at 74 (quoting Gates, 462 U.S. at 238) (internal quotation marks omitted) (emphasis in
Martin). 4

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Defendants raise a qualified immunity defense, under which, “[a]s government officials
performing discretionary functions, the defendants enjoy a qualified immunity that shields them
from personal liability for damages under section 1983 ‘insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have

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Applying these principles here, the Court notes that South’s application with respect to
apartment 5F, considered on its face, clearly articulated probable cause to believe that evidence
or proceeds of narcotics trafficking would be found in that apartment. The affidavit alleged that
the CI had reported purchasing controlled substances in the vicinity of the building and had twice
in the preceding two weeks bought cocaine from Perez immediately outside the building. As to
the first cocaine sale, South attested that he had seen Perez exit apartment 5F, then enter
apartment 5K, and then proceed outside the building to sell cocaine to the CI. As to the second
sale, South, reporting what he had been told by Sosa, attested that Sosa, following the sale, had
observed Perez, using keys, enter apartment 5F. Significantly, Perez, when his car was pulled
over for a stop, had produced a driver’s license (issued in September 2012) on which his address
was listed as 275 East 201st Street, apartment 5F. These facts, taken in combination, supplied
probable cause to believe that Perez was using apartment 5F to house narcotics or related
paraphernalia. See, e.g., United States v. Klump, 536 F.3d 113, 119 (2d Cir. 2008) (“In
determining whether there is probable cause, our task is ‘simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit[,] . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’”) (quoting
Gates, 462 U.S. at 238).

known,’ or insofar as it was objectively reasonable for them to believe that their acts did not
violate those rights.” Velardi, 40 F.3d at 573 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)) (some citations omitted). In the context of a claim of unlawful search, “[w]here an
officer knows, or has reason to know, that he has materially misled a magistrate on the basis for a
finding of probable cause, as where a material omission is intended to enhance the contents of
the affidavit as support for a conclusion of probable cause, the shield of qualified immunity is
lost.” Golino, 950 F.2d at 871 (citing, inter alia, Malley v. Briggs, 475 U.S. 335, 344 (1986)).

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Calderon, however, argues that South’s statements in the affidavit to the effect that he
and Sosa had each seen Perez exiting or entering apartment 5F immediately before or after each
of the two cocaine sales were false. See Pl. Br. 3 n.1 (stating that South “flat out” misled the
state-court judge as to these observations). Assuming that South’s statements about these
observations were both excised from the affidavit, Calderon argues, the remaining allegations
would not have supplied probable cause to search apartment 5F, because (1) the only item then
tying Perez to apartment 5F would be his driver’s license, and (2) the affidavit identified an
obvious and far more plausible situs within the building out of which Perez was operating his
narcotics business—apartment 5K, which Perez had also been seen entering and/or exiting in
close proximity to each transaction.
The SAC’s basis for alleging that South lied in claiming that Perez entered or exited
apartment 5F appears to be one of physical impossibility. See, e.g., SAC ¶ 31 (stating that it was
“not possible” for Perez to have entered the apartment). Specifically, the SAC alleges that Perez
did not live in that apartment, id. ¶ 1; that a new top lock to that apartment was installed in July
2012 and that Calderon, her husband, and her son were the only persons who had the key to that
lock, id. ¶ 19; that the key cannot be duplicated without use of a “special card,” id. ¶ 20; that the
building did not have a copy of either the key or the card, id. ¶ 21; and that in August 2012, an
ADT alarm system was installed in the apartment that was “always on when no one was in the
apartment,” id. ¶ 23. Because Perez “did not have a key and ADT did not report that the
apartment’s alarm had ever been activated,” the SAC alleges, “it was not possible” for Perez to
have entered the apartment in August 2013, and therefore, when South claimed to have seen
Perez exit apartment 5F and when Sosa (via South) claimed to have seen Perez enter that
apartment, those claims were necessarily false, and necessarily knowingly so. Id. ¶¶ 30–31.

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The SAC, however, does not plead adequate facts to plausibly make it a physical
impossibility for Perez to have entered or exited apartment 5F.
With respect to Sosa’s report (conveyed in the warrant affidavit by South) that he had
seen Perez enter apartment 5F with keys, the SAC’s allegations of physical impossibility are
quite incomplete. Significantly, South’s affidavit for the warrant did not anywhere allege that
Sosa saw Perez use a key to the top lock of that apartment. The affidavit stated only that Sosa
saw Perez “retrieve keys from his pocket, and use the keys to enter Apartment 5F.” Siddiqi
Decl., Ex. B at ¶ 9. The SAC, however, addresses only the top lock of the apartment. The SAC
does not say how many other locks there were in August 2013 to the door of that apartment.
And the SAC does not allege that the top lock was consistently or even generally locked (so as to
require use of a top-lock key to enter the apartment). Thus, even if the SAC could be read to
adequately allege that Perez could not have possessed a top-lock key—and it cannot, see infra—
the SAC does not allege any facts on which a top-lock key was needed for Perez to unlock the
door. Taking the allegations in the SAC as true, Perez could equally have used keys to open
another lock or locks on the door. Because Calderon’s only basis for claiming that South’s
statement in the affidavit was knowing or reckless falsity is that the statement described an
impossible act, the SAC’s pleading is inadequate to the task. Moreover, even if the warrant
affidavit were read to attribute to Sosa the statement that Perez was seen unlocking the top lock
to the apartment door, the SAC states that only Calderon, her husband, and her son “had the
key.” It does not allege that none of those persons ever loaned such a key to Perez, who, as the
apparent occupant of apartment 5K, was their fifth-floor neighbor.
With respect to South’s statement that he personally saw Perez exit apartment 5F, no key
of course was need to effect such an exit, and South did not allege that he had seen Perez use any

15

such key. The SAC, tellingly, does not allege that, in August 2013, Perez was never inside that
apartment, which is all that would have been needed to make his exit (as observed by South) a
physical possibility. Such an allegation is presumably one that, if true, Calderon could easily
make, by alleging that neither she, nor her husband, nor her son, had ever permitted Perez entry
to the apartment that month, or seen him in the apartment that month. Absent such an allegation,
however, there is nothing impossible or even implausible about South’s claim to have seen Perez
exit the apartment, and therefore no basis on which to conclude that his statement to that effect
was false, let alone intentionally or recklessly false. Thus, Calderon fails to make the required
“substantial preliminary showing” of a deliberate or reckless falsehood, Rivera, 928 F.2d at 604
(quoting Franks, 438 U.S. at 155–56), needed to justify excision of this aspect of the affidavit. 5
In light of the SAC’s failure to adequately plead that the search of Calderon’s apartment
was unlawful, each of her claims must be dismissed. As noted, officers executing a valid search
warrant in a home have “the limited authority to detain the occupants of the premises while a
proper search is conducted.” Summers, 452 U.S. at 705; accord Muehler v. Mena, 544 U.S. 93,
98 (2005) (“An officer’s authority to detain incident to a search is categorical; it does not depend
on the quantum of proof justifying detention or the extent of the intrusion to be imposed by the
seizure.”) (internal quotation marks and citation omitted). Because Calderon does not allege that
her detention exceeded these bounds, her claims for false arrest and wrongful imprisonment

5

Perhaps reflecting awareness of this shortcoming, the SAC at several points incorrectly utilizes
a negligence standard to describe the necessary showing, stating that South “knew or should
have known” that apartment 5F was wrongly identified as Perez’s apartment. SAC ¶¶ 48, 49,
50. As noted, however, a negligent misstatement in a warrant is an insufficient basis to
challenge a search. See Franks, 438 U.S. at 171; Rajaratnam, 719 F.3d at 153.

16

necessarily fail. 6 And Calderon’s Monell claim also necessarily fails. “Monell [v. Dep’t of
Social Services, 436 U.S. 658, 694–95 (1978)] does not provide a separate cause of action for the
failure by the government to train its employees; it extends liability to a municipal organization
where that organization’s failure to train, or the policies or customs that it has sanctioned, led to
an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.
2006); see also Kajoshaj v. N.Y.C. Dep’t of Educ., 543 F. App’x 11, 16–17 (2d Cir. 2013)
(summary order) (“Having failed plausibly to plead that DOE employees violated their
constitutional rights to equal protection and due process, plaintiffs’ Monell claim against DOE
necessarily fails as well.”) With the Court’s having held that Calderon has “failed to establish
any constitutional injury, no municipal liability attaches.” Zherka v. DiFiore, 412 F. App’x 345,
348 (2d Cir. 2011) (summary order).
However, the Court grants Calderon leave to replead one final time. As the discussion
above reflects, the facts on which the physical impossibility of Perez’s entry into or exit from
apartment 5F might be adequately pled are uniquely in the possession of Calderon (and her
husband and son). Guided by this decision, Calderon may be able, in a Third Amended
Complaint, to adequately plead the physical impossibility of the Perez sightings by the detectives
as recounted in the warrant affidavit. If so, the argument would then be available to Calderon
that, with the affidavit remedied pursuant to a corrected affidavits inquiry, there was no probable
cause to justify a search of apartment 5F. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

6

Calderon’s cursory description of property damage to her door does not state a claim. “[I]t is
well recognized that ‘officers executing search warrants on occasion must damage property in
order to perform their duty.’” Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995) (quoting Dalia v.
United States, 441 U.S. 238, 258 (1979)). “Before any due process liability can be imposed for
property damage occurring in a lawful search, it must be established that the police acted
unreasonably or maliciously in bringing about the damage.” Id.

17

2000) (“[T]he court should not dismiss without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid claim might be stated.” (quoting
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)); id. (court should deny “a
futile request to replead”) (citing Hunt v. Alliance N. Am. Gov’t Income Trust, 159 F.3d 723, 728
(2d Cir. 1998)). 7
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion to dismiss Calderon’s
SAC, without prejudice to Calderon’s right to file a Third Amended Complaint (“TAC”). The
Clerk of Court is directed to terminate the motion pending at docket number 26 and to close this
case. However, the Clerk shall reopen the case if Calderon files a TAC by May 29, 2015. In the
event Calderon files such a pleading, the defendants’ response will be due two weeks later. In
the event defendants respond with a motion to dismiss, Calderon’s brief in opposition will be due
two weeks later, and defendants’ reply will be due one week after that. If Calderon elects not to
file a TAC, the dismissal will then be with prejudice.

7

This case thus contrasts with others where complaints were dismissed with prejudice,
presumably because there was no prospect that an amended complaint could call into question
the basis for finding probable cause. See, e.g., Jordan v. Fed. Bureau of Prisons, No. 09 Civ.
8561 (ALC), 2013 WL 1143617, at *7 (S.D.N.Y. Mar. 19, 2013), appeal dismissed (Feb. 4,
2014) (dismissing where complaint “fail[ed] to allege why the[] false statements were necessary
to probable cause,” and attempted to attack plaintiff’s “underlying criminal conviction whose
validity cannot be challenged in the absence of expungement, reversal or invalidation”) (citing
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)); Moore v. City of New York, No. 08 Civ. 2449
(RRM) (LB), 2011 WL 795103, at *6 (E.D.N.Y. Feb. 28, 2011) (dismissing where complaint
contained only a “conclusory and speculative allegation, standing alone, and unsupported by
facts”); Cherry v. Jorling, 31 F. Supp. 2d 258, 269 (W.D.N.Y. 1998) (dismissing where
complaint “made no allegation that [defendant’s] testimony . . . during the application for the
search warrant contained false information as required by Franks”).

18