Garcia et al v. City of New York et al

Filing 61

MEMORANDUM AND OPINION re: 46 MOTION to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by Patricio Ovando, Michael Smyth, City of New York: For the reasons set forth above, Defendants' motion is GRANTED in part and DENIED in part. The denial is solely with respect to Defendants' request that the Court dismiss sua sponte all claims against Rojas and Larson. Plaintiffs are directed to serve Rojas and Larson in accordance with FRCP 4(m) no later than Tuesday, June 27, 2017. The Amended Complaint survives to the extent that it asserts Fourth Amendment unreasonable search and seizure claims against the Officer Defendants. The parties are directed to appear for an initial pre-trial c onference on April 21, 2017 at 11:30 AM. The Clerk of Court is respectfully directed to terminate the motion, Doc. 46. Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Initial Conference set for 4/21/2017 at 11:30 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 3/28/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KENNETH GARCIA, JUDITH FADUL, YAZMIN
DELAROSA, and CELESTE CRESPO,
OPINION AND ORDER
Plaintiffs,
15 Civ. 7470 (ER)
-againstCITY OF NEW YORK, NEW YORK POLICE
DEPARTMENT OFFICERS MICHAEL SMYTH,
DAVID ROJAS, PATRICIO OVANDO and GREG
LARSON,
Defendants.

Ramos, 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

1

Although Rojas and Larson have yet to be served, because Plaintiffs’ claims against them are the same as the
claims against Ovando and Smyth and suffer from the same deficiencies, the Court will treat the instant motion as if
it were brought on behalf of all Defendants. See Hamilton v. Broomfield, No. 95 Civ. 3241 (MBM), 1998 WL
17697, at *1 n.1 (S.D.N.Y. Jan. 20, 1998) (dismissing claims against unserved defendants because they were
identical to claims against defendants who filed the motion to dismiss); see also Johnson v. New York City, No. 12
Civ. 4379 (KBF), 2013 WL 950870, at *3 (S.D.N.Y. Mar. 7, 2013) (“As the same conviction underlies plaintiff’s
claims against defendant Thomas Woods (who has not yet been served in this action), the Court dismisses the
Complaint with respect to Woods sua sponte.”).

(“FRCP”). For the reasons outlined below, Defendants’ motion is GRANTED in part and
DENIED in part.
I. FACTUAL BACKGROUND 2
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.

2

The following facts are taken from the Complaint (Doc. 2), and the Amended Complaint (Doc. 9), which the Court
accepts as true for the purposes of the instant motion. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.
2012). Because the Court may consider documents that are in the public record, referenced in the complaint, or
integral to the complaint, the Court also considers: (1) the April 18, 2014 opinion and order issued by Judge Furman
(“Furman Order”) granting defendants’ (here, Plaintiffs’) motion to suppress in the underlying criminal case, United
States v. Fadul, et al., 13 Cr. 0143 (S.D.N.Y.), Doc. 149; and (2) the indictments filed against defendants (here,
Plaintiffs’) and judgments of conviction in the underlying criminal docket. Id. at Docs. 7, 18, 62, 206, 283, 290, 312.
DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010); Wims v. N.Y.C. Police Dep’t, No. 10 Civ. 6128
(PKC), 2011 WL 2946369, at *2 (S.D.N.Y. July 20, 2011) (quoting Vasquez v. City of New York, 99 Civ. 4606 (DC),
2000 WL 869492, at *1 n.1 (S.D.N.Y. June 29, 2000)) (noting that “‘a district court may rely on matters of public
record in deciding a motion to dismiss under Rule 12(b)(6),’ including arrest reports, criminal complaints,
indictments and criminal disposition data”).

3

However, Crespo testified that she had not lived in the apartment for four to five years, and was just visiting on
September 10, 2012. Furman Order at 13. Additionally, the Furman Order describes Garcia as “an overnight guest,”
not a resident. Furman Order at 28.

2

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 910. 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

4

Judge Furman defined a protective sweep as “a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others.” Furman Order at 17.

3

[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.
II. PROCEDURAL HISTORY
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

4

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.
5

The court-view only designation was removed on January 27, 2017.

6

The Order instructed the Court “that any documents showing the full names of R.D. and B.D. be docketed as courtview only.” (Doc. 15)

7

Defendants reiterate that pursuant to Judge Preska’s order, R.D. and B.D. were dismissed and those portions of the
Amended Complaint bringing claims on their behalf are now moot. Defendants’ Supplemental Memorandum of
Law in Support of Defendants’ Motion to Dismiss (“Def. Supp. Mem.”) (Doc. 60) at 2.

8

However, each of these Declarations is “in response to the Court’s order dated October 20, 2015” which related to
the Original Complaint. (Docs. 16-18)
9

USM-285 is the U.S. Marshals Service Process Receipt and Return form.

5

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)

6

III. LEGAL STANDARDS
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.
10

Effective December 1, 2015, FRCP 4(m) decreased the time to serve defendants from 120 to 90 days.

7

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).

8

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. DISCUSSION 11
A. Insufficient Service under Rule 12(b)(5)
Defendants argue that service on Rojas and Larson was insufficient and the Court should
sua sponte dismiss Plaintiffs’ claims against them. 12 Defendants’ Supplemental Memorandum
of Law in Support of Defendants’ Motion to Dismiss (“Def. Supp. Mem.”) (Doc. 60) at 7-8.
Plaintiffs, in turn, have requested that the Court order defense counsel to provide the mailing

11

Plaintiffs purport to bring this suit as a class action. The Amended Complaint alleges that “[t]he same occurrence
was experienced by all in this action (Multiple Plaintiffs), against the same Defendants, in which qualifies as a Class
Action.” Amended Complaint ¶ 1. However, a pro se party may not pursue class claims. Jaffe v. Capital One Bank,
No. 09 Civ. 4106 (PGG), 2010 WL 691639, at *10 (S.D.N.Y. Mar. 1, 2010) (“It is well settled law that a pro se
plaintiff may not represent the interests of third parties. Thus, a pro se plaintiff may not bring an action in which he
will serve as both class representative and class counsel.”) (citations omitted). Accordingly, Defendants’ motion to
deny class certification is GRANTED.
12

In their opening memorandum in support of their motion to dismiss the Complaint, Defendants argued that service
upon Smyth and Ovando was also untimely. However, they withdrew that argument in their supplemental brief.
Def. Supp. Mem. at 7.

9

addresses of Larson and Rojas so that Plaintiffs may “cure this [service] deficiency.” Plaintiffs’
Response to Defendants’ Motion to Dismiss (“Pl. Response”) (Doc. 54) at 5.
At the time of the filing of the Complaint, FRCP 4(m) required that a plaintiff serve a
copy of the complaint and summons within 120 days of filing the complaint. Fed. R. Civ. P.
4(m). If service was not made within 120 days after filing the complaint, Rule 4(m) requires
dismissal without prejudice. Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007).
However, “if a plaintiff shows good cause for the failure, the court must extend the time for
service.” Fed. R. Civ. P. 4(m). Courts place the burden of proving good cause on the plaintiff.
See Beauvoir v. United States Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y. 2006) (“[A] party
seeking a good cause extension bears a heavy burden of proof.”). Ultimately, the determination
of good cause is left to the discretion of the Court. Zapata, 502 F.3d at 197.
Even in the absence of good cause, under Rule 4(m), the Court has the discretion to grant
an extension of time. See Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012); Tabb v. Rosemary,
No. 12 Civ. 1520 (PAE), 2014 WL 240266, at *6-7 (S.D.N.Y. Jan. 22, 2014) (granting pro se
plaintiff a 60-day extension for service where plaintiff did not timely request an extension of
time or offer an explanation for his failure to do so, and instead requested the court’s assistance
in effectuating service over one year after the summons for those defendants was returned
unexecuted). The Court considers the following four factors when determining to grant an
extension of time absent a showing of good cause: (1) whether any applicable statutes of
limitations would bar the action once refiled; (2) whether the defendant had actual notice of the
claims asserted in the complaint; (3) whether defendant attempted to conceal the defect in service;
and (4) whether defendant would be prejudiced by extending plaintiffs’ time for service. Deluca
v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 67 (S.D.N.Y. 2010); Tabb, 2014 WL 240266 at *7.

10

Here, even construing Plaintiffs’ Amended Complaint liberally, the Court finds that no
good cause has been shown for the failure to timely serve Rojas and Larson. The docket shows
that the Marshals unsuccessfully attempted to personally serve all four of the Officer Defendants
on February 17, 2016. Plaintiffs did not bring this issue to the Court’s attention until seven
months later, when they submitted their Response to Defendants’ motion to dismiss. Further,
Plaintiffs offer no explanation for their failure to serve Larson and Rojas, simply stating that
“although the U.S. Marshal was unable to locate, the cause of action should not be dismissed.”
Pl. Response at 5. Although a pro se litigant proceeding in forma pauperis is entitled to rely on
service by the Marshals, Plaintiffs’ reliance goes beyond what they are entitled to under Second
Circuit law. See Meilleur, 682 F.3d at 63 (“If . . . it becomes apparent that the Marshals will not
accomplish [service] by the Rule 4(m) or court-ordered deadline, [plaintiff] must advise the
district court that she is relying on the Marshals to effect service and request a further extension
of time for them to do so.”).
However, in the exercise of its discretion, the Court will grant an extension even in the
absence of good cause. On balance, the factors weigh in favor of granting an extension. First,
although there is no evidence that Larson and Rojas have actual notice of the claims against them,
defense counsel was aware of the claims well within the time frame allowed by FRCP 4(m) and
contended that they “anticipated representing” Larson and Rojas. Defendants’ June 24, 2016
Letter to the Court (Doc. 43). “[T]he ‘core function’ of service is to supply notice ‘in a manner
and at a time that afford the defendant a fair opportunity to answer the complaint and present
defenses and objections.’” Bunim v. City of New York, Nos. 05 Civ. 1562-1574 (KMK), 2006
WL 2056386, at *4 (S.D.N.Y. July 21, 2006) (quoting AIG Managed Mkt. Neutral Fund v. Askin
Capital Mgmt., LP, 197 F.R.D. 104, 111 (S.D.N.Y. 2000)) (finding that this factor favored

11

plaintiffs even though “some of the individually named Defendants may not have had notice”
because “the City has had actual notice”).
Second, Larson and Rojas would not be prejudiced by an extension. As noted above,
Corporation Counsel has had an opportunity to prepare a defense for the Officer Defendants, and
indeed, has already begun to prepare a defense for Smyth and Ovando. Bunim, 2006 WL
2056386, at *4 (noting that the opportunity to prepare a defense was a factor to consider when
determining if defendants will be prejudiced by an extension). No evidence has been presented
to suggest that the four individual Officer Defendants’ defense would differ substantially.
Further, discovery has not begun, no witnesses are alleged to have become unavailable during
this time, and Defendants may still file a motion for summary judgement. AIG, 197 F.R.D. at
111 (noting that witness availability, extent of discovery, and ability to file a motion for
summary judgment are factors to consider when determining if defendants will be prejudiced by
an extension).
Lastly, based on the face of the Complaint and absent any tolling, the statute of
limitations would bar the action once refiled. 13 Plaintiffs’ intentional infliction of emotional
distress claim is subject to either a one year or a one-year-and-90-day statute of limitations,
which accrued on the date of the injury. Rentas v. Ruffin, 816 F.3d 214, 226 (2d Cir. 2016)
(noting that the statute of limitations for an intentional infliction of emotional distress claim is
normally one year, but one-year-and-90-days when suing the City or an individual whom the
City must indemnify). Here, Plaintiffs first filed their original Complaint on September 21, 2015.
Because the injury took place on September 10, 2012, Plaintiffs’ claim would be barred if refiled.

13

The Court notes that absent any tolling, Plaintiffs’ claims appear to have been time barred when the Complaint
was first filed on September 21, 2015. However, Defendants have not argued for dismissal based on statute of
limitations, and the Court will not raise the issue sue sponte. Kropelnicki v. Siegal, 290 F.3d 118, 131 n.7, (2d Cir.
2002) (“[A] district court ‘ordinarily’ should not raise a statute of limitations defense sua sponte.”).

12

Plaintiffs’ false arrest and illegal search and seizure claims brought under § 1983 are subject to a
three-year statute of limitations, which accrued “‘when the plaintiff kn[ew] or ha[d] reason to
know of the injury.’” Allen v. Antal, No. 15 Civ. 3252, 2016 WL 7234682, at *1 (2d Cir. Jan. 14,
2016) (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980)). Absent any
tolling, Plaintiffs had reason to know of their injuries, at the latest, when they were released from
NYPD custody on September 12, 2012. Therefore, the action would be time barred if refiled.
Plaintiffs’ false arrest claim brought under New York State law is subject to a one year statute of
limitations, which accrued when Plaintiffs were released from jail on September 12, 2012. Id. at
*2. Therefore, it would be time barred as well. “‘Where, as here, good cause is lacking, but the
dismissal without prejudice in combination with the statute of limitations would result in a
dismissal with prejudice . . . the district court [should] weigh[ ] the impact that a dismissal or
extension would have on the parties.’” Vaher v. Town of Orangetown, 916 F. Supp. 2d 404, 420
(S.D.N.Y. 2013) (quoting Zapata, 502 F.3d at 197). Because of this, “[c]ourts often consider the
fact that the statute of limitations has run on a claim as favoring the plaintiff.” Id.
While there is no evidence suggesting that Larson or Rojas attempted to conceal a defect
in service, that is not dispositive here. Jordan v. Forfeiture Support Assoc., 928 F. Supp. 2d 588,
599 (E.D.N.Y. 2013) (“Defendant has not attempted to conceal the defect in plaintiff's attempted
service. Nevertheless, this factor alone does not offset the numerous reasons that support
granting plaintiff additional time to correct service of process.”). Accordingly, the request that
the Court sua sponte dismiss for insufficient service as to Rojas and Larson is DENIED.
Plaintiffs are hereby directed to properly serve Rojas and Larson in accordance with FRCP 4(m)
no later than Tuesday, June 27, 2017.

13

B. Section 1983 Claims
Plaintiffs assert that the warrantless search, false arrest, and unreasonable search and
seizure violated their Fourth, Fifth, and Fourteenth Amendment rights. Amended Complaint ¶ 7.
Plaintiffs also allege due process violations. Id. Defendants move only to dismiss the Fourth
Amendment false arrest claims. However, as discussed below, the Court will sua sponte dismiss
the Fifth and Fourteenth Amendment claims. Webster v. Penzetta, 458 F. App’x. 23, 25 (2d Cir.
2012) (“A district court has inherent authority to dismiss meritless claims sua sponte”); Perl v.
American Exp., No. 12 Civ. 4380 (ER), 2012 WL 2711270, at *1 (S.D.N.Y. July 9, 2012) (“The
Court has the authority to screen sua sponte an in forma pauperis complaint at any time pursuant
to 28 U.S.C. § 1915(e)(2)(B).”).
1. Fifth Amendment Claim
Plaintiffs make no allegations or offer any facts in support of their Fifth Amendment
claim nor do they describe how their Fifth Amendment rights were violated. Although the basis
of Plaintiffs’ Fifth Amendment claim is not clear, construing the Amended Complaint liberally,
Plaintiffs’ allegation that their Fifth Amendment rights were violated is likely based on an
alleged due process violation. Despite Defendants’ failure to address the Fifth Amendment
claim anywhere in their motion papers, the Court concludes that it must be dismissed because the
Fifth Amendment only applies to claims against the federal government, and Plaintiffs have not
named any federal defendants. Barua v. City of New York, No. 14 Civ. 584 (NRB), 2016 WL
7494875, at *13 (S.D.N.Y. Dec. 29, 2016) (citing Dusenbery v. United States, 534 U.S. 161, 167
(2002)) (“The Fifth Amendment’s Due Process clause . . . applies only to the federal government,
not to the states.”).

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2. Fourteenth Amendment Claim
Likewise, Plaintiffs make no allegations or offer any facts in support of their Fourteenth
Amendment claim, which is mentioned just once in the Amended Complaint, nor do they
describe how their Fourteenth Amendment rights were violated. Amended Complaint ¶ 7.
Despite Defendants’ failure to address the Fourteenth Amendment claim anywhere in their
motion papers, the Court concludes that the claim must be dismissed because “[w]here a
particular Amendment ‘provides an explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.’” Hamilton v. City of New
York, No. 07 Civ. 3633, 3825 (DGT), 2009 WL 2226105, at *7 n.11 (S.D.N.Y. July 23, 2009)
(quoting Graham v. Conner, 490 U.S. 386, 395 (1989)) (internal quotation marks omitted). To
the extent Plaintiffs’ Fourteenth Amendment claim is based upon an alleged due process
violation stemming from the September 10 search, seizure, or arrest, “it is the Fourth
Amendment that provides the proper analytical framework.” Cucuta v. City of New York, 25 F.
Supp. 3d 400, 417 (S.D.N.Y. 2014). Therefore, the Court will analyze Plaintiffs’ claims as
Fourth Amendment violations.
3. Fourth Amendment False Arrest Claim 14
Plaintiffs bring a false arrest claim pursuant to § 1983 for their arrests on September 10,
2012. 15 “[A] § 1983 claim for false arrest derives from the Fourth Amendment right to remain
free from unreasonable seizures, which includes the right to remain free from arrest absent

14

Plaintiffs also claim injuries stemming from the initial search of their apartment. Complaint ¶ 14. (“[T]heir
warrantless, nonconsensual search . . . caused the injury claims herein creating not only financial los[s], but
emotional distress.”). Defendants have not moved to dismiss the unreasonable search claim.

15

Defendants argue that Plaintiffs’ false arrest claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Def.
Supp. Mem. at 4. Because the Court dismisses Plaintiffs’ false arrest claim on the basis of probable cause, the Court
need not decide whether Heck bars their claim.

15

probable cause.” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). In order to establish a §
1983 claim for false arrest, Plaintiff must allege: (1) the defendant intended to confine the
plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to
the confinement; and (4) the confinement was not otherwise privileged.” Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994). Thus, if the Officer Defendants had probable cause to
arrest Plaintiffs, then the confinement is privileged because the existence of probable cause
constitutes a complete defense to a § 1983 false arrest claim. See Covington v. City of New York,
171 F.3d 117, 122 (2d Cir. 1999).
“Probable cause to arrest exists when the arresting officer has knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a
crime.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted).
“[T]he probable cause inquiry is based upon whether the facts known by the arresting officer at
the time of the arrest objectively provided probable cause to arrest.” Jaegly, 439 F.3d at 153
(citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). The test is “objective rather than
subjective.” Id. at 154. As long as probable cause existed that any crime has been committed,
the false arrest claim will fail. Rodriguez v. Vill. of Ossining, 918 F. Supp. 2d 230, 240-41
(S.D.N.Y. 2013) (“Thus, as long as the Defendant officers had probable cause to arrest Plaintiff
for any crime, the arrests were privileged and cannot form the basis for a false arrest claim under
Section 1983.”); see also Devenpeck, 543 U.S. at 154.
Defendants do not contest that Plaintiffs have properly alleged the first three elements of
their false arrest claim. Thus, the only disputed element is whether the arrests were otherwise
privileged; i.e., whether the Officer Defendants had probable cause to arrest Plaintiffs. Here,

16

Plaintiffs acknowledge that they were arrested after the Officer Defendants discovered
counterfeit money, marijuana, and a gun inside the apartment. Complaint ¶¶ 3, 6, 7. Upon
discovery of those items, the Officer Defendants could reasonably have concluded that Plaintiffs
were committing, or had committed a crime. Therefore, Plaintiffs’ own allegations establish
probable cause. See El v. City of New York, No. 14 Civ. 9055 (GHW), 2015 WL 1873099, at *6
(S.D.N.Y. Apr. 23, 2015) (“To the extent that Plaintiff's complaint can be understood as alleging
that he was arrested after the discovery of narcotics in his vehicle, his allegations establish that
there was probable cause for his arrest.”).
Moreover, even if, as Judge Furman noted, the Officer Defendants “lacked an objectively
reasonable basis to conduct [the] protective sweep,” Furman Order at 39, after the Officer
Defendants discovered the contraband, probable caused existed for Plaintiffs’ arrest. See Townes
v. City of New York, 176 F.3d 138, 149 (2d Cir. 1999) (holding that although officers lacked
probable cause for the initial search, “they certainly had probable cause to arrest [plaintiff] upon
discovery of the handguns”); McDermott v. City of New York, No. 00 Civ. 8311 (LAK), 2002
WL 265127, at *5-6 (S.D.N.Y. Feb. 25, 2002) (finding that even if police officers’ initial stop
was unlawful, “once the [contraband] was revealed . . . there existed probable cause” to believe
the plaintiff committed a crime).
Because the Officer Defendants had probable cause to arrest Plaintiffs once they found
the contraband, Defendants’ motion to dismiss the false arrest claim is GRANTED.
C. Monell Claim
“[T]o prevail on a claim against a municipality under section 1983 based on acts of a
public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an

17

official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658,
690-91 (1978)). “The fifth element reflects the notion that ‘a municipality may not be held liable
under § 1983 solely because it employs a tortfeasor.’” Hayes v. Cty. of Sullivan, 853 F. Supp. 2d
400, 438-39 (S.D.N.Y. 2012) (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997)).
Thus, a plaintiff must allege that such a municipal policy or custom is responsible for his injury.
Brown, 520 U.S. at 403-04; see also Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A
municipality or other local government may be liable under [§ 1983] if the governmental body
itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.”) (quoting Monell, 436 U.S. at 692).
Courts in this Circuit apply a two prong test for § 1983 claims brought against a
municipality. Johnson v. City of New York, No. 06 Civ. 09426 (GBD), 2011 WL 666161, at *3
(S.D.N.Y. Feb. 15, 2011). First, the plaintiff must “prove the existence of a municipal policy or
custom in order to show that the municipality took some action that caused his injuries beyond
merely employing the misbehaving officer.” Id. (quoting Vippolis v. Vill. of Haverstraw, 768
F.2d 40, 44 (2d Cir. 1985)). Second, the plaintiff must establish “‘a causal connection . . .
between the policy and the deprivation of his constitutional rights.’” Id. (quoting Brandon v.
City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010)). To satisfy the first
requirement, a plaintiff must allege the existence of:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that
caused the particular deprivation in question; (3) a practice so consistent and
widespread that, although not expressly authorized, constitutes a custom or usage
of which a supervising policy-maker must have been aware; or (4) a failure by
policymakers to provide adequate training or supervision to subordinates to such

18

an extent that it amounts to deliberate indifference to the rights of those who come
into contact with the municipal employees.
Id. (citations omitted). A plaintiff can establish Monell liability on the basis of a practice so
persistent and widespread that it constitutes a custom or usage by alleging that the municipality
was aware of a “pattern of misconduct” but did not take any action, “compelling the conclusion
that” the municipality “acquiesced in or tacitly authorized its subordinates’ unlawful actions.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). To allege the existence of a pattern of
misconduct, plaintiffs “often point to the filing of other complaints and/or lawsuits bringing
similar claims.” Calderon v. City of New York, 138 F. Supp. 3d 593, 611-12 (S.D.N.Y. 2015).
These types of documents can be used to allege that a municipality was aware of or had notice
“of possible or actual constitutional violations.” Id.; see also Edwards v. City of New York, No.
14 Civ. 10058 (KBF), 2015 WL 5052637, at *6 n.3 (S.D.N.Y. Aug. 27, 2015) (“It is certainly
not always the case that the fact of a series of suits alleging similar claims supports a Monell
claim. . . . Here, however, the point is one of notice. . . . [T]hey support the inference that the
City was aware of the possible use of excessive force by officers prior to the incident at issue.”).
The Court finds that Plaintiffs cannot satisfy the first prong necessary to establish Monell
liability. The Amended Complaint lacks any allegations to indicate the existence of a formally
recognized policy adopted by the City. Further, Plaintiffs do not allege that any of the Defendant
Officers involved have policymaking authority, nor do they allege that the City failed to properly
train and supervise its employees.
Construing the Amended Complaint liberally, Plaintiffs seem to allege that the Officer
Defendants engaged in a practice of illegal actions so persistent and widespread that it constitutes
a custom or usage and implies the constructive knowledge of policy-making officials. Amended
Complaint ¶ 5. In support of their claim, Plaintiffs attach an excerpt of the Furman Order.
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While Judge Furman notes 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,” in each
instance, Judge Furman recognizes that the Officer Defendants were in some way reprimanded.
Id. at 29 n.7. For example, Judge Furman notes that Larson had been placed on modified duty in
July 2012 for potentially committing perjury in an unrelated case, and Ovando had been under
investigation for failure to properly supervise Larson. Id. Additionally, in connection with a
separate narcotics arrest in August 2012, the Civilian Complaint Review Board (“CCRB”) found
that Ovando and Rojas had “unlawfully engaged in a warrantless search,” and that Rojas later
gave the CCRB false information regarding that search, id., putting the City on notice of the
conduct. See Floyd v. City of New York, 959 F. Supp. 2d 540, 617-18 (S.D.N.Y. 2013) (noting
that civilian complaints, including those made with the CCRB, are sources of notice to the
NYPD). Plaintiffs themselves allege that based upon the CCRB investigations, the Officer
Defendants were suspended or terminated. 16 Complaint ¶ 8. Thus, even if the Court were to find
that Plaintiffs sufficiently alleged that the City was aware of numerous instances of improper
conduct by the Officer Defendants, the Court cannot find that in the face of that conduct, the
municipality did nothing. See Pluma v. City of New York, No. 13 Civ. 2017 (LAP), 2015 WL
1623828, at *11 (S.D.N.Y. Mar. 31, 2015) (finding that plaintiff’s Monell claim on the basis of a
widespread custom failed because the officers in questions “were either disciplined, brought to a
hearing, or seriously investigated”). By acknowledging that the Officer Defendants’ behavior
was investigated and that they were punished as a result, Plaintiffs concede that senior policy-

16
Presumably, the CCRB conducted investigations, reported its findings to the appropriate NYPD authority, and
then the NYPD suspended or terminated the Officer Defendants. See Koulkina v. City of New York, 559 F. Supp. 2d
300, 317 (S.D.N.Y. 2008) (“The CCRB is an independent board composed of thirteen members and vested with the
‘power to receive, investigate, hear, make findings and recommend action upon complaints by members of the
public against members of the [NYPD] that allege misconduct. . . . The CCRB's findings and recommendations are
submitted to the NYPD's Police Commissioner.”) (internal citations omitted).

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making officials did not acquiesce or tacitly authorize the improper conduct of the Officer
Defendants. Sorlucco v. N.Y.C. Police Dep’t., 971 F.2d 864, 871 (2d Cir. 1992) (“[B]efore the
actions of subordinate city employees can give rise to § 1983 liability, their discriminatory
practice must be so manifest as to imply the constructive acquiescence of senior policy-making
officials.”). Because of this, Plaintiffs have failed to allege a policy or custom to warrant
liability pursuant to § 1983.
Lastly, Plaintiffs claim that “[t]he City of New York is responsible as the Respondeat
Superior.” Amended Complaint ¶ 4. However, it is well settled that a municipality cannot be
held liable pursuant to § 1983 on a theory of respondeat superior. Monell, 436 U.S. at 691;
Reynolds, 506 F.3d at 191.
Accordingly, Defendants’ motion to dismiss Plaintiffs’ Monell claim is GRANTED.
D. Notice of Claim Requirements Under N.Y. General Municipal Law
Defendants argue that Plaintiffs’ state law claims of intentional infliction of emotional
distress, false arrest, and illegal search and seizure should be dismissed for failure to comply
with New York General Municipal Law § 50-i, which requires that before a plaintiff asserts state
tort law claims against a municipal entity or its employees,
(a) a notice of claim shall have been made and served . . . in compliance with
section fifty-e of this article; (b) it shall appear by and as an allegation in the
complaint or moving papers that at least thirty days have elapsed since the service
of such notice; and (c) the action . . . shall be commenced within one year and
ninety days after the happening of the event upon which the claim is based
N.Y. Gen. Mun. L. § 50–i. In order to comply with New York General Municipal Law § 50-e, a
plaintiff must serve of a notice of claim within ninety days after the claim arises. See N.Y. Gen.
Mun. Law § 50-e(1)(a). The notice of claim must include the name and address of the plaintiffs,
details of the claims, and the damages sought. N.Y. Gen. Mun. Law § 50-e(2). Federal courts
exercising supplemental jurisdiction over state law claims must strictly construe New York’s
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notice of claim requirements. Matthews, 889 F. Supp. 2d at 448; see also Hardy v. New York
City Health & Hosp. Corp., 164 F.3d 789, 794 (2d Cir. 1999) (“Failure to comply with these
requirements ordinarily requires a dismissal for failure to state a cause of action.”).
Plaintiffs’ false arrest, illegal search and seizure, and intentional infliction of emotional
distress tort claims are subject to Sections 50-e and 50-i, and therefore Plaintiffs were required to
file a notice of claim. Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 384 (S.D.N.Y.
2005) (applying New York’s notice of claim requirements to intentional infliction of emotional
distress claims); Eberle v. Town of Southampton, 985 F. Supp. 2d 344, 348 (E.D.N.Y. 2013)
(“[T]his requirement applies with full force to the Plaintiff’s causes of action sounding in
unreasonable search and seizure.”); Aponte v. City of New York, No. 14 Civ. 3989 (KMK), 2016
WL 5394754, at *8 (S.D.N.Y. Sept. 26, 2016) (“This provision applies to the false imprisonment
claims brought against the City.”).
Here, nothing in the Amended Complaint indicates that Plaintiffs filed the requisite
notice of claim. See Naples v. Stefanelli, 972 F. Supp. 2d 373, 390 (E.D.N.Y. 2013) (“To
survive a motion to dismiss, a plaintiff must affirmatively plead that a notice of claim was
filed.”). Even assuming that the Court could grant Plaintiffs leave to make an application to the
proper state court, the notice would be filed after the expiration of the statute of limitations and
would thus be improper. In re Dayton, 786 F. Supp. 2d 809, 825 (S.D.N.Y. 2011) (concluding
that after the statute of limitations has expired, a state supreme or county court does not have the
authority to grant an extension of time to serve a notice of claim).
Because federal courts must construe New York State notice of claim requirements strictly,
and Plaintiffs have failed to allege compliance, Plaintiffs’ state law false arrest, intentional
infliction of emotional distress, and illegal search and seizure claims are DISMISSED.

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