Vasquez v. Fredericks et al

Filing 46

OPINION & ORDER re: 18 MOTION to Dismiss , filed by Town of Clarkstown, 38 MOTION to Dismiss , filed by Michael Feltham, Robert Reilly, Police Officer John Doe, Lt. Weisenberg, John Fredricks, Scott M. Rios, Town o f Clarkstown. The Motion is granted in part and denied in part. The Motion is granted with respect to Plaintiff's false arrest and First Amendment claims against all Defendants; that dismissal is with prejudice. The Motion is further granted w ith respect to all claims against Rios; that dismissal is also with prejudice. The Motion is denied in all other respects. This Order terminates all claims against Defendants John Doe and Scott M. Rios. The Court will hold an initial conference to set a schedule for discovery on April 24, 2017 at 3:30 PM. The Clerk of Court is respectfully requested to terminate the pending Motions. (Dkt. Nos. 18, 38.) SO ORDERED., (Initial Conference set for 4/24/2017 at 03:30 PM before Judge Kenneth M. Karas.), Police Officer John Doe (Clk 374, in their own individual capacities of police officers employed by the Clarkstown Police Dept. ) and Scott M. Rios terminated. (Signed by Judge Kenneth M. Karas on 3/9/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

KIM VASQUEZ,
Plaintiff,
v.
POLICE OFFICER ROBERT REILLY;
POLICE OFFICER MICHAEL FELTHAM;
POLICE OFFICER JOHN FREDRICKS;
POLICE OFFICER LT. WEISENBERG;
POLICE OFFICER JOHN DOE #CLK374, in
their own individual capacities of police
officers employed by the Clarkstown Police
Department; SUPERVISOR SCOTT M.
RIOS,

No. 15-CV-9528 (KMK)
OPINION & ORDER

Defendants.

Appearances:
Kim Vasquez
Marcy, NY
Pro Se Plaintiff
John J. Walsh, II, Esq.
Paul E. Svensson, Esq.
Hodges Walsh & Messemer, LLP
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Kim Vasquez (“Plaintiff”) brings this Action against Defendants Police Officer
Robert Reilly, Police Officer Michael Feltham, Police Officer John Fredericks, Police Officer Lt.
Weisenberg, Police Officer John Doe, and Supervisor Scott M. Rios (“Defendants”), pursuant to
42 U.S.C. § 1983 and the New York State constitution, alleging violations of his constitutional
rights in connection with a search of his home and a subsequent arrest and prosecution. (See

Second Am. Compl. (Dkt. No. 33).)1 Before the Court is Defendants’ Motion To Dismiss. For
the reasons to follow, the Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Second Amended Complaint and are taken
as true for purposes of resolving the Motion.
On June 7, 2014, at approximately 9:15 PM, Defendants Reilly, Feltham, Weisenberg,
and Fredericks entered the home of Plaintiff without a warrant and without the consent of
Plaintiff. (See id. ¶ 10.) Plaintiff alleges that the search was conducted without lawful authority.
(See id. ¶ 11.) During the search, Reilly seized a cologne box containing $5,700. (See id. ¶ 12.)
Reilly also brought a dog (“King”) onto the premises to assist with the search. (See id. ¶ 13.)
Plaintiff was not present at the time of the search, had no knowledge of the search, did not
consent to it, and had no knowledge of any illegal items that were allegedly found at the scene.
(See id. ¶ 14.)
Plaintiff acknowledges that his wife gave consent to search the premises without a
warrant, but alleges that the consent did not give Defendants authority to search or seize
Plaintiff’s property. (See id. ¶ 16.) Plaintiff alleges also that Weisenberg, Fredericks, and King
were not named on the consent-to-search form signed by his wife. (See id. ¶ 17.) Despite this,
Fredericks entered the premises and took photographs of Plaintiff’s home. (See id. ¶ 18.)
Sometime thereafter, Fredericks filed an accusatory instrument, falsely accusing Plaintiff
of possessing drugs and paraphernalia that were found at the scene, despite knowing that

1

Plaintiff misspells “Fredricks,” and the record indicates his name should be spelled
“Fredericks.” (See Decl. in Supp. of Mot. To Dismiss Ex. F (Dkt. No. 39).) The Court will use
the spelling offered by the record.
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Plaintiff could not have possessed the items, as he was not at the scene of the search. (See id.
¶ 15.) On June 13, 2014, a warrant was issued for Plaintiff’s arrest. (See id. ¶ 20.) Plaintiff was
unaware for approximately three months that there was a warrant for his arrest. (See id.) On or
about September 24, 2014, Plaintiff was arrested by Defendant “John Doe” for the felonies and
misdemeanors alleged by Fredericks in his accusatory instrument. (See id. ¶ 21.) All of the
felonies were dismissed, Plaintiff was never indicted, and the charges were dismissed on or about
April 9, 2015. (See id. ¶ 22.) Plaintiff had to serve two days in jail, go to numerous court
appearances, and pay $15,000 in attorney fees. (See id. ¶ 23.)
Plaintiff also names Supervisor Scott M. Rios as a Defendant. (See id. ¶ 19.) He alleges
that Rios “reviewed these actions, and gave his consent to the actions performed by the officers,
and is negligent for these actions having been occur[r]ed in escalation to criminal charges against
. . . Plaintiff.” (See id.)
B. Procedural History
Plaintiff filed his Complaint on December 4, 2015. (See Dkt. No. 2.) On January 20,
2016, then-Chief Judge Preska issued an Order to Amend, directing Plaintiff to file an Amended
Complaint correcting various deficiencies in his Complaint. (See Dkt. No. 5.) On March 7,
2016, Plaintiff sent a letter indicating that he wanted his case transferred to a judge in White
Plains. (See Letter from Plaintiff to Court (Mar. 7, 2016) (Dkt. No. 7).) On March 18, 2016, in
accordance with Judge Preska’s prior order, Plaintiff filed his Amended Complaint. (See Dkt.
No. 8.) The case was reassigned to this Court on March 29, 2016, (see Dkt. (Notice of Case
Reassignment Mar. 29, 2016)), and on April 7, 2016, the Court issued an Order of Service,
which, among other things, dismissed the claims against Jena Vasquez (Plaintiff’s wife) and

3

substituted the Town of Clarkstown as a Defendant in place of the Clarkstown Police
Department, (see Dkt. No. 10).
On May 3, 2016, the Town of Clarkstown—then, the only remaining Defendant—filed a
letter requesting leave to file a motion to dismiss. (See Letter from Paul E. Svensson, Esq., to
Court (May 3, 2016) (Dkt. No. 15).) The Court granted leave and set a schedule, (see Memo
Endorsement (Dkt. No. 17)), and on June 13, 2016, the Town of Clarkstown filed its Motion To
Dismiss and supporting documents, (see Dkt. Nos. 18–22). Plaintiff responded on July 11, 2016,
objecting that he had not consented to the substitution of the Town of Clarkstown, arguing that
the case should be adjourned because he was unable to litigate the case due to issues he faces at
the correctional facility where he is housed, and requesting that the Court appoint a pro bono
attorney for him. (See Letter from Plaintiff to Court (July 11, 2016) (Dkt. No. 23).) The Town
of Clarkstown filed a reply affirmation in support of its Motion. (See Dkt. No. 24.) On August
8, 2016, the Court informed Plaintiff that he needed to be more specific about the relief he
sought, but that it was not inclined to grant Plaintiff’s requests. (See Memo Endorsement (Dkt.
No. 26).) Plaintiff filed another letter on September 24, 2016, requesting leave to file a second
amended complaint and asking the Court to issue an order pursuant to Valentin v. Dinkins, 121
F.3d 72 (2d Cir. 1997). (See Letter from Plaintiff to Court (Sept. 24, 2016) (Dkt. No. 27).) The
Court denied Plaintiff’s request because the proposed second amended complaint concerned
facts unrelated to the current case. (See Memo Endorsement (Dkt. No. 29).) On October 22,
2016, Plaintiff wrote again, explaining that he intended only to add the police officers who were
involved in the search and arrest. (See Letter from Plaintiff to Court (Oct. 22, 2016) (Dkt. No.
31).) The Court granted Plaintiff two weeks to file the proposed amended complaint. (See
Memo Endorsement (Dkt. No. 32).)

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On November 15, 2016, Plaintiff filed a Second Amended Complaint. (See Dkt. No. 33.)
Upon application from the Town of Clarkstown, the Court declared the Second Amended
Complaint a nullity because it went beyond the parameters set forth by the Court in its order
permitting Plaintiff to amend. (See Memo Endorsement (Dkt. No. 35).) The Court shortly
thereafter revised its determination, holding that the Second Amended Complaint should be
accepted for filing and informing Defendants, not including the Town of Clarkstown (which had
been removed from the case), that they could supplement the pending Motion To Dismiss. (See
Order (Dkt. No. 36).) Defendants thereafter supplemented their Motion. (See Dkt. Nos. 38–42.)
Plaintiff filed a letter responding to the Motion, (see Dkt. No. 43), and Defendants filed a reply,
(see Dkt. Nos. 44–45).
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the

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complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of

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Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517
F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.” (italics and internal quotation marks
omitted)).
B. Analysis
Defendants set forth a number of grounds for dismissing the Second Amended
Complaint. The Court will address each in turn, but must first determine which materials it may
consider in adjudicating the Motion.
1. Materials Considered
Defendants urge the Court to consider two sets of materials outside of the Second
Amended Complaint in deciding the Motion: (1) the allegations made in Plaintiff’s earlier
Complaints, but omitted in the current version, and (2) documents produced by Defendants
(including police reports and the consent-to-search form signed by his wife) during this
litigation. (See Mem. of Law Submitted by Defs. in Supp. of Their Rule 12(b)(6) Mot. To
Dismiss Pl.’s Second Am. Compl. (“Defs.’ Mem.”) 6–7 (Dkt. No. 41).)
With respect to the allegations made in Plaintiff’s earlier pleadings, Defendants are
correct that “[w]here a ‘plaintiff blatantly changes his statement of the facts in order to respond
to the defendant’s motion to dismiss and directly contradicts the facts set forth in his original
complaint,’ a court is authorized ‘to accept the facts described in the original complaint as true.’”
Colliton v. Cravath, Swaine & Moore LLP, No. 08-CV-400, 2008 WL 4386764, at *6 (S.D.N.Y.

7

Sept. 24, 2008) (alterations omitted) (quoting Wallace v. N.Y.C. Dep’t of Corr., No. 95-CV4404, 1996 WL 586797, at *2 (E.D.N.Y. Oct. 9, 1996)), aff’d, 356 F. App’x 535 (2d Cir. 2009);
see also Dozier v. Deutsche Bank Trust Co. Ams., No. 09-CV-9865, 2011 WL 4058100, at *2
(S.D.N.Y. Sept. 1, 2011) (“[T]he court need not accept as true allegations that conflict with a
plaintiff’s prior allegations.”). “Where, however, an amended pleading is not in ‘direct’
contradiction with the original pleading, courts apply the general rule recognizing that an
amended pleading completely replaces the original pleading.” Brooks v. 1st Precinct Police
Dep’t, No. 11-CV-6070, 2014 WL 1875037, at *3 (E.D.N.Y. May 9, 2014); see also Bernadotte
v. N.Y. Hosp. Med. Ctr. of Queens, No. 13-CV-965, 2014 WL 808013, at *6 (E.D.N.Y. Feb. 28,
2014) (“Taken as a whole, while not congruous, [the] [p]laintiff’s allegations are not in such
direct contradiction that the [c]ourt is moved to abandon the usual deference afforded to an
[a]mended [c]omplaint and therefore accepts all factual allegations in the complaint as true, and
draws all reasonable inferences in the [p]laintiff’s favor.” (alterations and internal quotation
marks omitted)). Thus, “[w]hile courts are free to deny leave to amend a complaint if the
proposed amended complaint attempts to omit certain previously-alleged facts without adequate
explanation or in bad faith, once an amended pleading is filed, a court may not import
information that was contained in the prior pleading but omitted from the amended pleading.”
Kilkenny v. Law Office of Cushner & Garvey, L.L.P., No. 08-CV-588, 2012 WL 1638326, at *5
(S.D.N.Y. May 8, 2012) (citations omitted); see also Tho Dinh Tran v. Alphonse Hotel Corp.,
281 F.3d 23, 32 (2d Cir. 2002) (“A statement in a withdrawn complaint that is superseded by an
amended complaint without the statement is no longer a conclusive judicial admission.”),
overruled on other grounds by Slayton v. Am. Express Co., 460 F.3d 215 (2d Cir. 2006).

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Here, Defendants have not directed the Court to any statements in the Second Amended
Complaint that contradict earlier statements. While Defendants point out that Plaintiff has
omitted in the Second Amended Complaint any mention of how the police officers arrived at
Plaintiff’s residence, (see Defs.’ Mem. 6–7), this omission does not contradict earlier facts. And
the mere fact that a plaintiff has chosen to omit, for strategic reasons, a fact alleged in an earlier
pleading does not entitle the Court to consider that fact once it has accepted the amended
pleading for filing. See, e.g., Brooks, 2014 WL 1875037, at *3 (“[The] [p]laintiff’s [a]mended
[c]omplaint omits a fact that was included in his original [c]omplaint, but does not ‘directly
contradict’ any factual allegations made in the original [c]omplaint. The [c]ourt therefore finds
that the [a]mended [c]omplaint replaces the original complaint . . . .”). The Court therefore takes
the allegations in the Second Amended Complaint as true, and does not consider the facts alleged
in earlier iterations of the Complaint.
Next, Defendants argue for the consideration of certain documents produced by them to
Plaintiff as part of their Rule 26 disclosures. While Defendants cite the principle that “it is well
established that a district court must confine its consideration to facts stated on the face of the
complaint, and in documents appended to the complaint or incorporated in the complaint by
reference,” (Defs.’ Mem. 6 (citing Leonard F., 199 F.3d at 107)), this barebones statement of law
does not address the issues present here.
On a Rule 12(b)(6) motion, extrinsic evidence may be considered only if it is “deemed
part of the pleadings.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 59 (S.D.N.Y. 2010).
The complaint is deemed to include “any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir. 2002) (internal quotation marks omitted). “Even where a document is not

9

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.” Id.
at 153 (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.
1995)). To be incorporated by reference, “the complaint must make ‘a clear, definite and
substantial reference to the documents.’” DeLuca, 695 F. Supp. 2d at 60 (quoting Helprin v.
Harcourt, Inc., 277 F. Supp. 2d 327, 330–31 (S.D.N.Y. 2003)). “Limited quotation does not
constitute incorporation by reference.” Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985).
“[W]here [a] plaintiff has actual notice of all the information in the movant’s papers and has
relied upon these documents in framing the complaint, the necessity of translating a Rule
12(b)(6) motion into one under Rule 56 is largely dissipated.” Chambers, 282 F.3d at 153
(internal quotation marks omitted). “[A] plaintiff’s reliance on the terms and effect of a
document in drafting the complaint is a necessary prerequisite to the court’s consideration of the
document on a dismissal motion; mere notice or possession is not enough.” Id.
Here, the Court agrees with Defendants that consideration of the consent-to-search form
signed by Plaintiff is appropriate. Plaintiff is in possession of the consent-to-search form, (see
Decl. in Supp. of Mot. To Dismiss (“Decl.”) ¶ 6 (Dkt. No. 39)), and Plaintiff references not just
his wife’s consent, but the actual information listed on the form, (see Second Am. Compl. ¶¶ 16–
17). Likewise, the felony complaint prepared by Fredericks has been produced to Plaintiff, (see
Decl. ¶ 7), and the content of the felony complaint is referenced in the Second Amended
Complaint, (see Second Am. Compl. ¶ 15). Accordingly, these documents may be properly
considered in deciding the Motion. See King v. City of New York, No. 12-CV-2344, 2013 WL
2285197, at *3 (E.D.N.Y. May 23, 2013) (considering, on a motion to dismiss, “the criminal
complaint, a copy of the signed statement by the victim, the [p]laintiff’s indictment, a state court

10

decision denying a motion to suppress the [p]laintiff’s identity, and an arrest report,” because the
“[p]laintiff had actual notice of these documents and, presumably, relied upon them in drafting
the [c]omplaint”).
The other documents, however, may not be considered. The police report and
supplemental report are not mentioned by Plaintiff in the Second Amended Complaint, and while
Plaintiff may have relied on those documents in drafting the Second Amended Complaint, the
Court cannot discern that merely by examining the allegations. Similarly, although the arrest
warrant is referenced by Plaintiff, (see id. ¶ 20), “[s]uch limited references are insufficient to
incorporate documents or exhibits into the complaint,” Sahu v. Union Carbide Corp., 548 F.3d
59, 67 (2d Cir. 2008); see also Baines v. City of New York, No. 10-CV-9545, 2015 WL 3555758,
at *2 (S.D.N.Y. June 8, 2015) (“In this case, the police reports at issue were neither attached as
exhibits to, nor referenced in, the [second amended complaint], and [the] [p]laintiff’s passing
mention of [a defendant’s] assault allegations, which were detailed in one of the police reports, is
insufficient to incorporate it into the [second amended complaint] such that it may be considered
on a motion to dismiss.” (citation omitted)).
Accordingly, the Court will consider the consent-to-search form filled out by Plaintiff’s
wife and the felony complaint prepared by Fredericks, but no other extraneous documents. The
Court will now turn to the merits of Plaintiff’s claims.
2. Fourth Amendment Claim
Plaintiff’s first claim is best construed as raising a claim that his Fourth Amendment
rights were violated when Defendants unlawfully entered and searched his home. (See Second
Am. Compl. ¶¶ 24–25.)

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The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
“A warrantless search is per se unreasonable under the Fourth Amendment, unless the search can
be justified by one of the narrowly drawn exceptions to the warrant requirement.” United States
v. Turner, 23 F. Supp. 3d 290, 303 (S.D.N.Y. 2014) (italics omitted); see also Steagald v. United
States, 451 U.S. 204, 211 (1981) (“Except in . . . special situations, we have consistently held
that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth
Amendment unless done pursuant to a warrant.”). One exception to the warrant requirement is
where “proper consent” is “voluntarily given.” United States v. Matlock, 415 U.S. 164, 166
(1974). “Consent may validly be granted by the individual whose property is to be searched, or
by a third party who possesses common authority over the premises.” United States v. Elliott, 50
F.3d 180, 185 (2d Cir. 1995) (citation omitted) (citing Matlock, 415 U.S. at 171).
When examining whether a third party may consent to the search of a common premises,
the inquiry is “whether the third party possessed ‘a sufficient relationship to the searched
premises to validate the search.’” Id. (quoting United States v. Trzaska, 859 F.2d 1118, 1120 (2d
Cir. 1988)). Accordingly, “a third party may validity grant the requisite consent if [s]he has joint
access or control of the property for most purposes,” id. at 186; see also United States v. McGee,
564 F.3d 136, 139 (“Authority to consent to a search rests on ‘mutual use of the property by
persons generally having joint access or control for most purposes . . . .’” (quoting Matlock, 415
U.S. at 171 n.7)), or “if it was reasonable for the officers to believe [the third party] had the
requisite relationship,” Elliott, 50 F.3d at 186 (citing Illinois v. Rodriguez, 497 U.S. 177, 179
(1990)). Moreover, “if the search exceeded the scope of the consent given, an officer’s
objectively reasonable belief that the search was within the scope of that consent is sufficient to

12

validate the search.” Id. The Second Circuit has held that a third-party will have actual authority
“if two prongs are present: first, the third party had access to the area searched, and, second,
either: (a) common authority over the area; or (b) a substantial interest in the area; or (c)
permission to gain access.” United States v. Davis, 967 F.2d 84, 87 (2d Cir. 1992).
Determinations about whether a third-party had actual or apparent authority to consent to
a search are typically made upon a more developed record than that present here. For instance,
in McGee, the Second Circuit held that a woman whose boyfriend had locked her out of the
home they cohabited had apparent authority to consent to a search of the home. See 564 F.3d
136. The court pointed to the fact that the record showed that the reason the woman was locked
out of the home was not to keep her out, but rather to make her temporarily stay by denying her
access to her personal belongings in the home. See id. at 141. Similarly, in Trzaska, the Second
Circuit held that a criminal defendant’s estranged wife had apparent authority to consent to the
search of the home she formerly shared with the defendant because she had only recently moved
out of the home, she still possessed a key to the home, and some of her personal belongings were
still in the home. See 859 F.2d at 1120.
Finally, in Turner, the court held that a criminal defendant’s ex-girlfriend had apparent
authority to consent to a search of the defendant’s apartment because the record revealed that the
ex-girlfriend had told the officers that she had lived with the defendant for several months prior
to the search and that she had possessed a set of keys to the apartment up until a few hours before
the search. See 23 F. Supp. 3d at 305. The court held, however, that this consent did not entitle
the police officers to enter the residence by force. See id. at 307.
Here, the facts alleged in the Second Amended Complaint do not allow the Court to
conclude, with legal certainty, that Plaintiff’s wife had actual or apparent authority to consent to

13

the search. There are no facts indicating that Plaintiff’s wife shared, or ever shared, the home
with Plaintiff, that she had a key or other access to the home, or that she had any personal
belongings in the home. This may very well be a straight-forward case at summary judgment,
but where, as here, the only allegation is that a consent-to-search was executed by someone other
than the person challenging the search, the Court cannot say as a matter of law that Plaintiff’s
Fourth Amendment rights were not violated. See Young v. Suffolk County, 705 F. Supp. 2d 183,
203 (E.D.N.Y. 2010) (“[T]he existence of common authority over or a substantial interest in
property is not necessarily demonstrated by ownership of the property; rather, it is a factual
question that cannot be determined at this stage based on the pleadings in this case. Accordingly,
the [c]ourt cannot make this determination on [the] defendants’ motion to dismiss.”); Sullivan v.
Stein, No. 03-CV-1203, 2005 WL 2209301, at *4 (D. Conn. Sept. 12, 2005) (“While the facts
may well show that [the] [d]efendants reasonably believed that [the owner] had authorized [the
owner’s nephew] to grant them permission to enter and search the premises, the [c]ourt cannot
make this determination on the basis of the current record.”); see also United States v. Munoz,
590 F.3d 916, 922 (8th Cir. 2010) (“Common authority is determined by mutual use, joint
access, and control, and is a question of fact.” (internal quotation marks omitted)). Plaintiff has
alleged that his wife’s consent “did not grant authority for . . . Plaintiff[’]s property,” (Second
Am. Compl. ¶ 16), and that allegation is sufficient to withstand a motion to dismiss.2

2

Defendants argue also that the search was justified as a “protective sweep,” based on the
fact that the officers were responding to a burglar alarm. (See Defs.’ Mem. 10–11.) However,
because the Second Amended Complaint contains no mention of a burglar alarm and the Court
has already determined it will not consider the allegations raised in prior Complaints, this
argument is not supported by the facts currently before the Court.
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Moreover, while the Court will not consider police reports submitted by Defendants in
support of their Motion, (see Decl. Exs. D, H), even were the Court to consider those documents,
there may still be a question, given the circumstances of the consent allegedly provided by
Plaintiff’s wife, as to whether consent was voluntary. See, e.g., United States v. Real Prop. &
Premises Known as 90-23 201st St., Hollis, N.Y., 775 F. Supp. 2d 545, 556 (E.D.N.Y. 2011)
(“Various factors can contribute to a finding that law enforcement created coercive surroundings.
For example, ‘it is significant if consent has been obtained while the consenting party was
confronted by many police officers. . . . Additionally, an attempt by law enforcement to enter a
home at an unusually late or early hour may contribute to a finding of coercion. Likewise,
coercion may be present if law enforcement agents persist in attempting to gain entry in the face
of a suspect’s refusal to consent.” (citations and alterations omitted) (quoting 4 Wayne R.
LaFave, Search and Seizure § 8.2(b) (4th ed. 2004)); United States v. Echvarria, 692 F. Supp. 2d
322, 336–37 (S.D.N.Y. 2010) (“Some of the factors that bear upon the voluntariness of the
consent include ‘whether the defendant was in custody and in handcuffs, whether there was a
show of force, whether the agents told the defendant that a search warrant would be obtained,
whether the defendant had knowledge of the right to refuse consent, and whether the defendant
previously had refused to consent . . . .” (quoting United States v. Lavan, 10 F. Supp. 2d 377, 384
(S.D.N.Y. 1998)). In light of the fact that officers “pursued” Plaintiff’s wife’s vehicle, then
“pulled the vehicle over” and “escorted” the wife back to the residence, (Decl. Ex. D), the Court
cannot say, at this stage, that there could not be at least an allegation that the consent was not
voluntary.
Accordingly, the Court denies the Motion with respect to Plaintiff’s Fourth Amendment
claim. Moreover, because there are no facts on the record supporting Defendants’ contention

15

that Plaintiff’s wife “reside[d] in the marital residence,” (Defs.’ Mem. 13), the Court declines to
grant Defendants qualified immunity without the benefit of a more developed record.3
3. False Arrest Claim
Plaintiff also brings a claim for false arrest. (See Second Am. Compl. ¶¶ 24, 28.)
Defendants argue that the existence of probable cause for the arrest warrants dismissal of the
claim. (See Defs.’ Mem. 13–16.)
“A [§] 1983 claim for false arrest is substantially the same as a claim for false arrest
under New York law.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). “The
common law tort of false arrest is a species of false imprisonment,” and under New York law,
the elements of a false imprisonment claim are: “(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.” Singer v. Fulton Cty.
Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (alteration and internal quotation marks omitted).
“There can be no federal civil rights claim for false arrest where the arresting officer had
probable cause.” Id.
“An arrest made pursuant to a facially valid warrant is presumptively made with probable
cause.” Justice v. Kuhnapfel, No. 13-CV-659, 2014 WL 2434139, at *3 (E.D.N.Y. May 29,
2014); see also Walczyk v. Rio, 496 F.3d 139, 155–56 (2d Cir. 2007) (“Ordinarily, an arrest or
search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such
warrants may issue only upon a showing of probable cause.”); Cogswell v. Cty. of Suffolk Deputy
Sheriff’s Dep’t, 375 F. Supp. 2d 182, 187 (E.D.N.Y. 2005) (“In general, ‘an arrest pursuant to a

3

Because the Plaintiff has adequately alleged that Defendants engaged in a warrantless
search without valid consent, the Court sees no need to engage his argument that the consent-tosearch form did not grant consent for all Defendants to search.
16

valid warrant is presumptively made with probable cause.’” (quoting Martinetti v. Town of New
Hartford Police Dep’t, 112 F. Supp. 2d 251, 252–53 (N.D.N.Y. 2000)). Accordingly, “[a]
magistrate’s finding of probable cause in issuing a warrant creates a presumption that probable
cause existed, and is rebuttable only through proof of fraud, perjury or the misrepresentation or
falsification of evidence.” Artis v. Liotard, 934 F. Supp. 101, 103 (S.D.N.Y. 1996).
Here, the Court assumes that Plaintiff has adequately alleged the first three elements of a
false arrest claim. Where Plaintiff’s claim falters, however, is on the fourth element. Because
Plaintiff’s arrest was effected pursuant to an arrest warrant, Plaintiff may rebut the presumption
of probable cause and state a claim only if he alleges facts suggesting that the arrest warrant was
facially invalid or that it was procured through fraud, perjury, or the misrepresentation or
falsification of evidence. See Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993) (“A plaintiff
can demonstrate that [his right to be protected against false arrests] was violated where 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.’”
(quoting Golino v. City of New Haven, 950 F.2d 864, 870–71 (2d Cir. 1991)); Sheikh v. City of
N.Y., Police Dep’t, Nos. 03-CV-6326, 05-CV-4718, 2008 WL 5146645, at *7 (E.D.N.Y. Dec. 5,
2008) (“In the face of a valid warrant where there is no showing of fraud, misrepresentation or
falsification of evidence, there is no claim for false arrest, either under New York law or as a
matter of Federal Civil Rights.” (internal quotation marks omitted)). Plaintiff has offered no
facts suggesting that the arrest warrant was procured by fraud, misrepresentation, or falsification
of evidence. While Plaintiff has alleged that the underlying search giving rise to the arrest
warrant was impermissible, he has not alleged that the circumstances of that search were

17

misrepresented to the judge or magistrate judge who issued the warrant, or that the arrest warrant
was otherwise procured by fraud. In the absence of such allegations, Plaintiff cannot rebut the
presumption of probable cause created by the issuance of a valid arrest warrant, and Plaintiff has
thus failed to state a claim for false arrest under either federal or New York law.
4. Malicious Prosecution Claim
Plaintiff’s next claim is for malicious prosecution. (See Second Am. Compl. ¶¶ 24, 26.)
Defendants again argue that the existence of probable cause warrants dismissal of the claim.
(See Defs.’ Mem. 16–17.)
“In order to prevail on a § 1983 claim against a state actor for malicious prosecution, a
plaintiff must show a violation of his rights under the Fourth Amendment, and must establish the
elements of a malicious prosecution claim under state law.” Manganiello v. City of New York,
612 F.3d 149, 160–61 (2d Cir. 2010) (citations omitted). To prevail on a malicious prosecution
claim under New York law, the plaintiff must show: “(1) the defendant initiated a prosecution
against [the] plaintiff, (2) without probable cause to believe the proceeding can succeed, (3) the
proceeding was begun with malice, and (4) the matter terminated in [the] plaintiff’s favor.”
Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir. 2016) (alterations and internal quotation marks
omitted). “[A] grand jury indictment gives rise to a presumption that probable cause exists and a
claim for malicious prosecution in relation to the crimes described in the indictment thereby is
defeated.” McClellan v. Smith, 439 F.3d 137, 145 (2d Cir. 2006). To transform a state law claim
for malicious prosecution into a § 1983 claim, the plaintiff must allege “some deprivation of
liberty consistent with the concept of ‘seizure.’” Singer, 63 F.3d at 116.
Plaintiff has adequately alleged that Fredericks initiated a prosecution against Plaintiff,
(see Second Am. Compl. ¶ 15), and that the matter terminated in Plaintiff’s favor, (see id. ¶ 22).

18

Plaintiff’s allegation that he was imprisoned for two days as a result of the prosecution
unquestionably alleges a seizure potentially in violation of the Fourth Amendment. The
remaining question, then, is whether Plaintiff has adequately alleged that Fredericks initiated the
proceeding without probable cause and with malice.4
The Second Circuit has clarified that “probable cause” in the malicious prosecution
context means “probable cause to believe that [the prosecution] could succeed.” Boyd v. City of
New York, 336 F.3d 72, 76 (2d Cir. 2003). Thus, although the arrest warrant gave Officer John
Doe probable cause to arrest Plaintiff, the Court must be careful not to “conflate probable cause
to arrest with probable cause to believe that [a criminal defendant] could be successfully
prosecuted. Only the latter kind of probable cause is at issue with respect to [a] malicious
prosecution claim.” Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999). On
this reasoning, the Second Circuit has held that if the evidence giving rise to the prosecution
“would clearly not be admissible,” then “there [is] no probable cause to believe [a] prosecution
could [have] succeed[ed].” Boyd, 336 F.3d at 77. Courts applying this standard have largely
held that, accordingly, evidence obtained in violation of a plaintiff’s Fourth Amendment rights
cannot be relied on in arguing that there was probable cause to believe the plaintiff could be
successfully prosecuted. See, e.g., Penree v. City of Utica, No. 13-CV-1323, 2016 WL 915252,
at *18 (N.D.N.Y. Mar. 4, 2016) (“[E]vidence obtained illegally that ‘would clearly not be
admissible’ cannot then be the basis for probable cause to believe the prosecution could succeed”
(quoting Boyd, 336 F.3d at 77)), appeal filed, No. 16-828 (Mar. 17, 2016); Gannon v. City of
New York, 917 F. Supp. 2d 241, 244–45 (S.D.N.Y. 2013) (citing Boyd and denying the

4

As above, Defendants’ argument about the statements Plaintiff’s wife made to the
police is irrelevant, as the Court may not consider those statements at this stage.
19

defendants’ motion to dismiss where the “[p]laintiff clearly allege[d] that [the defendant] filed
charges against [the] [p]laintiff after the arrest pursuant to an unlawful search and that a criminal
proceeding was terminated in [the] [p]laintiff’s favor”); Mazyck v. Johnson, No. 08-CV-548,
2009 WL 2707360, at *5 (E.D.N.Y. Aug. 25, 2009) (noting that “the question is not whether
there exists probable cause to prosecute, but rather whether there is probable cause to believe that
a prosecution will succeed,” and holding that the defendants “had no probable cause to believe
that the prosecution would succeed, given that the [evidence against the plaintiff] would be
suppressed”).
The Court recognizes that some courts have interpreted the Second Circuit’s decision in
Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), as holding otherwise. See, e.g.,
Mangum v. City of New York, No. 15-CV-8810, 2016 WL 4619104, at *7 (S.D.N.Y. Sept. 2,
2016) (holding that “[t]he Second Circuit, however, has squarely rejected the theory that
evidence that is a ‘fruit of the poisonous tree’ so as to warrant suppression in a criminal trial
must be excluded for purposes of assessing probable cause in a civil § 1983 action”); Cyrus v.
City of New York, No. 06-CV-4685, 2010 WL 148078, at *4 (E.D.N.Y. Jan. 14, 2010) (“The
court’s conclusion that the exclusionary rule does not apply to the probable cause determination
in malicious prosecution claims is fully supported by the decisions cited for support.” (internal
quotation marks omitted)). These cases misstate the holding of Townes.
In Townes, the Second Circuit held that in a § 1983 action, traditional causation analysis
was not supplanted by the “fruit of the poisonous tree” doctrine, an evidentiary doctrine used in
criminal law to suppress the fruits of an unlawful search. See 176 F.3d at 146. The court said
nothing about whether illegally obtained evidence could be used to support a defense of probable
cause in connection with a malicious prosecution claim—in fact, the claim at issue in Townes

20

was not even malicious prosecution, it was false arrest, and there was no dispute that the officers
lacked probable cause for the underlying arrest and seizure. Id. at 145. The plaintiff, however,
sought to expand his measure of damages by arguing that the subsequent prosecution and
detainment, which allegedly arose from the fruits obtained from the false arrest, should be
considered in determining the amount of damages. Id. at 145–46. The court rejected the notion
that the fruit of the poisonous tree doctrine could be used to “elongate the chain of causation,”
holding that “constitutionally invalid police conduct that by itself causes little or no harm is
assessed on ordinary principles of tort causation and entails little or nominal damages.” Id. at
146. Nowhere did the court say, or even suggest, that illegally obtained evidence could be used
to establish probable cause in defense of a malicious prosecution claim.
Accordingly, the principle established in Boyd, decided four years after Townes, controls
the disposition of this Motion. Because, as set forth above, Plaintiff has adequately alleged that
the search of his home was done without a warrant and without valid consent, the Court holds
that there are sufficient allegations that, if true, would support the conclusion that when
Fredericks filed the felony complaint, he lacked probable cause to believe the prosecution would
be successful. Discovery may show that the search was not illegal, or it may show that the
search, while illegal, was not so clearly illegal as to give rise to the conclusion that Fredericks
knew or should have known that the evidence against Plaintiff would be suppressed. But these
determinations are best left either for summary judgment or for trial. At this stage, the Court is
satisfied that Plaintiff has adequately alleged that Fredericks lacked probable cause to believe the
prosecution against Plaintiff would succeed.
With respect to malice, “lack of probable cause generally raises an inference of malice.”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997); see also Boyd, 336 F.3d at 78

21

(“A lack of probable cause generally creates an inference of malice.”). Because Plaintiff has
adequately alleged lack of probable cause, malice may be inferred at this stage. Thus, Plaintiff
has pled all the elements of a claim for malicious prosecution under both § 1983 and New York
law.
For the reasons set forth above, the Court denies Defendants’ Motion To Dismiss
Plaintiff’s claim against Fredericks for malicious prosecution.
5. First Amendment Claim
Plaintiff additionally sets forth a claim under the First Amendment related to the use of a
dog to search the premises in “violation of . . . Plaintiff[’]s Muslim religion.” (Second Am.
Compl. ¶ 25.) Defendants argue that they are entitled to qualified immunity on this claim. (See
Defs.’ Mem. 18–20.)
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (internal quotation marks omitted). “[Qualified] immunity protect[s] government’s
ability to perform its traditional functions . . . by helping to avoid unwarranted timidity in
performance of public duties, ensuring that talented candidates are not deterred from public
service, and preventing the harmful distractions from carrying out the work of government that
can often accompany damages suits.” Filarsky v. Delia, 566 U.S. 377, 389–90 (2012) (second
alteration in original) (internal quotation marks omitted). Qualified immunity shields a
defendant from standing trial or facing other burdens of litigation “if either (a) the defendant’s
action did not violate clearly established law, or (b) it was objectively reasonable for the
defendant to believe that his action did not violate such law.” Johnson v. Newburgh Enlarged

22

Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001) (internal quotation marks omitted). Application of
qualified immunity is appropriate at the motion-to-dismiss stage where “the defense is based on
facts appearing on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.
2004).
The Supreme Court has held that when evaluating an asserted qualified immunity
defense, a court may begin by examining whether a reasonable law enforcement officer in the
defendant’s position would have believed his or her conduct would violate the asserted
constitutional right. See Pearson, 555 U.S. at 236 (overruling Saucier v. Katz, 533 U.S. 194
(2001), and explaining that judges are no longer required to begin by deciding whether a
constitutional right was violated but are instead “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first”).
The Supreme Court has further instructed that “[t]o be clearly established, a right must be
sufficiently clear that every reasonable official would [have understood] that what he is doing
violates that right. In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(second alteration in original) (citations and internal quotation marks omitted). Furthermore,
“the right allegedly violated must be established, not as a broad general proposition, but in a
particularized sense so that the contours of the right are clear to a reasonable official.” Id. at
2094 (citations and internal quotation marks omitted). Otherwise stated, to determine whether a
right is clearly established, courts must determine “whether (1) it was defined with reasonable
clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and
(3) a reasonable defendant would have understood that his conduct was unlawful.” Doninger v.
Niehoff, 642 F.3d 334, 345 (2d Cir. 2011).

23

Here, even assuming Plaintiff’s First Amendment rights were violated and that those
rights were defined with reasonable clarity, it is not the case that any reasonable officer would
have understood that the use of a dog to search a suspect’s home was unlawful. To be sure, First
Amendment claims for strip-searches or pat-downs in violation of a prisoner’s religious freedom
have been sustained by a number of courts in the Second Circuit. See, e.g., Forde v. Zickefoose,
612 F. Supp. 2d 171, 178 (D. Conn. 2009) (denying summary judgment where “regular crossgender pat-down searches would place a substantial burden on [a prison inmate’s] exercise of her
religion”); Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 324 (S.D.N.Y. 2006) (denying a
motion to dismiss where the plaintiff’s “second strip search as alleged furthered no legitimate
penological goal”), aff’d, 461 F. App’x 18 (2d Cir. 2012); Show v. Patterson, 955 F. Supp. 182,
190 (S.D.N.Y. 1997) (denying summary judgment where the “defendants ha[d] not established
that the simultaneous strip search of [the] plaintiffs with other inmates was reasonable in light of
[the] plaintiffs’ allegations that (1) on other occasions Muslim inmates had been searched
separately; and (2) approximately fifteen guards were present when the inmates were ordered to
remove their clothes”). But the conduct alleged in those cases is far different from that alleged
here. For one, the plaintiffs in the cited cases were inmates at correctional facilities, subjected to
policies that, allegedly, systematically deprived inmates’ of their religious freedom. Here, by
contrast, Plaintiff merely takes umbrage with the use of a dog during a one-time search of his
home. Additionally, unlike the plaintiffs in other cases, Plaintiff has not alleged that the use of a
dog during the search was unreasonable or unjustified, or that it burdened or otherwise impeded
the exercise of his religion. Plaintiff’s only allegation is that the use of a dog was done in
“violation of . . . [P]laintiff[’]s Muslim religion.” (Second Am. Compl. ¶ 25.) The Court has
conducted a thorough review of existing case law and has found nothing suggesting that such

24

conduct is unlawful, and certainly nothing that would alert “every reasonable official” that the
search was unlawful. Accordingly, Defendants’ Motion is granted with respect to Plaintiff’s
First Amendment claim, as Defendants are entitled to qualified immunity.
6. Supervisory Liability
Finally, Plaintiff brings a claim against Supervisor Rios because he “signed off and
reviewed and condoned the unlawful police procedures and violations of . . . [P]laintiff[’]s rights
secured under the Constitution.” (Second Am. Compl. ¶ 27.)
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (italics omitted). As this Court has already recognized, see Lebron v. Mrzyglod, No. 14CV-10290, 2017 WL 365493, at *3–5 (S.D.N.Y. Jan. 24, 2017); Samuels v. Fischer, 168 F.
Supp. 3d 625, 634–36 (S.D.N.Y. 2016), there is a conflict in the Second Circuit as to whether the
five categories of supervisory liability under § 1983 announced in Colon v. Coughlin, 58 F.3d
865 (2d Cir. 1995), survive the Supreme Court’s decision in Iqbal, compare, e.g., Hollins v. City
of New York, No. 10-CV-1650, 2014 WL 836950, at *13 (S.D.N.Y. Mar. 3, 2014) (holding that
only the first and part of the third categories in Colon survive Iqbal), and Bellamy v. Mount
Vernon Hosp., No. 07-CV-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (same),
aff’d, 387 F. App’x 55 (2d Cir. 2010), with Marom v. City of New York, No. 15-CV-2107, 2016
WL 916424, at *15 (S.D.N.Y. Mar. 7, 2016) (“The holding in Iqbal does not stand for the
proposition that a supervisor can never be found personally liable for a constitutional deprivation
on a showing that he was ‘grossly negligent’ or ‘deliberately indifferent.’”), reconsideration
granted in part, 2016 WL 5900217 (S.D.N.Y. July 29, 2016), and Sash v. United States, 674 F.

25

Supp. 2d 531, 544 (S.D.N.Y. 2009) (“Where the constitutional claim does not require a showing
of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference
standards of the Fourth and Eighth Amendments, the personal involvement analysis set forth in
Colon v. Coughlin may still apply.”), and Delgado v. Bezio, No. 09-CV-6899, 2011 WL
1842294, at *9 (S.D.N.Y. May 9, 2011) (holding that if “the claim does not require a showing of
discriminatory intent, the Colon analysis should still apply, insofar as it is consistent with the
particular constitutional provision alleged to have been violated” (internal quotation marks
omitted)). While the Court has already expressed its general agreement with those courts
holding that the five categories announced in Colon are still valid, see Lebron, 2017 WL 365493,
at *4–5, resolution of the split in authority is not necessary here.
“Conclusory accusations regarding a defendant’s personal involvement in the alleged
violation, standing alone, are not sufficient, and supervisors cannot be held liable based solely on
the alleged misconduct of their subordinates.” Lindsey v. Butler, 43 F. Supp. 3d 317, 329
(S.D.N.Y. 2014) (internal quotation marks omitted), reconsideration granted in part on other
grounds, No. 11-CV-9102, 2014 WL 5757448 (S.D.N.Y. Nov. 5, 2014), reconsideration denied,
2015 WL 1501625 (S.D.N.Y. Apr. 1, 2015); see also Vogelfang v. Capra, 889 F. Supp. 2d 489,
502 (S.D.N.Y. 2012) (“[T]he mere fact that a defendant possesses supervisory authority is
insufficient to demonstrate liability for failure to supervise under § 1983.” (internal quotation
marks omitted)). Similarly, “merely recit[ing] the legal elements of a successful § 1983 claim
for supervisory liability” “does not meet the plausibility pleading standard.” Dotson v. Farrugia,
No. 11-CV-1126, 2012 WL 996997, at *6 (S.D.N.Y. Mar. 26, 2012), reconsideration denied,
2012 WL 1864278 (S.D.N.Y. May 22, 2012).

26

Here, Plaintiff has offered only conclusory allegations as to Rios’s liability, alleging
merely that because Rios possessed supervisory authority, he is responsible for “sign[ing] off and
review[ing] and condon[ing] the unlawful police procedures.” (Second Am. Compl. ¶ 27.) Such
conclusory allegations, devoid of any detail as to how Rios actually participated in the alleged
constitutional violations, are insufficient to state a claim for supervisory liability. See Parris v.
N.Y. State Dep’t of Corr. Servs., 947 F. Supp. 2d 354, 364 (S.D.N.Y. 2013) (“Allegations as to
[the] defendants’ knowledge of alleged constitutional violations are insufficient to impose
supervisory liability under § 1983 unless accompanied by allegations that the defendants had
direct responsibility for monitoring the alleged violation or that there had been a history of
previous episodes putting the defendants on notice of the problem.” (alterations and internal
quotation marks omitted)). Accordingly, Plaintiff’s claims against Rios are dismissed.
7. Dismissal With Prejudice
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that she has inadequately or inartfully pleaded and that she
should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better pleading
will not cure [them],” “[s]uch a futile request to replead should be denied.” Id. (citing Hunt v.
All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Even pro se plaintiffs are not
entitled to file an amended complaint if the complaint “contains substantive problems such that
an amended pleading would be futile.” Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173,
2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff’d, 523 F. App’x 32 (2d Cir. 2013).

27

Here, Plaintiff has already amended his Complaint twice, once in response to an Order to
Amend. (See Dkt. No. 5.) Moreover, although the various iterations of Plaintiff’s Complaint
have all addressed the same core set of facts, his theory of liability has been ever-shifting. (See
Dkt. Nos. 2, 8, 33.) Defendants are generally not required to defend against a “moving target.”
See Ma’at el v. Doe, No. 15-CV-6581, 2016 WL 6205795, at *1 n.2 (E.D.N.Y. Oct. 24, 2016)
(noting that the court had denied leave for a fourth amended complaint because it “would have
continued this ‘moving target’ litigation”), appeal filed, No. 16-3767 (Nov. 7, 2016); Kraebel v.
N.Y.C. Dep’t of Hous. Preservation & Dev., No. 90-CV-4391, 2002 WL 31016654, at *2
(S.D.N.Y. Sept. 9, 2002) (noting that the court had denied leave to file supplemental papers
because “it was unfair to require a party to shoot at a constantly moving target” (internal
quotation marks omitted)). As the Court is not persuaded that a third amendment could cure the
deficiencies identified above, and as the Court is similarly not confident that offering Plaintiff
another opportunity to amend will not result in yet another new theory of the case, the dismissal
of the claims identified is with prejudice.

28

III. Conclusion
For the foregoing reasons, the Motion is granted in part and denied in part. The Motion
is granted with respect to Plaintiffs false arrest and First Amendment claims against all
Defendants; that dismissal is with prejudice . The Motion is further granted with respect to all
claims against Rios; that dismissal is also with prejudice. The Motion is denied in all other
respects . This Order terminates all claims against Defendants John Doe and Scott M. Rios . The
Court will hold an initial conference to set a schedule for discovery on April 24, 2017 at 3:30
PM. The Clerk of Court is respectfully requested to terminate the pending Motions. (Dkt. Nos.
18, 38.)
SO ORDERED.
DATED:

Marchj _, 2017
White Plains, New York

29