Parker v. Zugibe et al

Filing 114

OPINION AND ORDER: For the foregoing reasons, the Court grants Defendant's Motion for Summary Judgment. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 99), enter judgment for Defendant, close this case, and mail a copy of this Opinion and Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/2/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AARON E. PARKER, Jacket #20168,
Plaintiff,
v.

No. 16-CV-4265 (KMK)
OPINION & ORDER

OFFICER PHILLIP FANTASIA,
Defendant.

Appearances:
Aaron E. Parker
Comstock, NY
Pro se Plaintiff
Brian S. Sokoloff, Esq.
Gil Auslander, Esq.
Sokoloff Stern LLP
Carle Place, NY
Counsel for Defendant
KENNETH M. KARAS, United States District Judge:
Pro se Plaintiff Aaron E. Parker (“Plaintiff”) brings this Action against Defendant Officer
Phillip Fantasia (“Defendant”), pursuant to 42 U.S.C. § 1983, alleging that Defendant violated
his rights under the Fourth Amendment in connection with a September 15, 2015 search of
Plaintiff’s apartment. (See generally Compl. (Dkt. No. 1).) Before the Court is Defendant’s
Motion for Summary Judgment (the “Motion”). (See Not. of Mot. (Dkt. No. 99).) For the
reasons explained herein, the Motion is granted.

I. Background
A. Factual Background
The Court has described the allegations and procedural history of this case in a prior
Opinion & Order (the “Opinion”). (Sept. 26, 2017 Op. & Order (“Op.”) 2–3 (Dkt. No. 47).)
The Court therefore assumes familiarity with the dispute and will provide factual and procedural
background only as relevant to the instant Motion.
The following facts are taken from Defendant’s statement pursuant to Local Civil Rule
56.1, (Def.’s. Local Rule 56.1 Statement (“Def.’s 56.1”) (Dkt. No. 102)), Plaintiff’s Complaint,
and the admissible evidence submitted by the Parties. 1 Defendants have sent the required Rule
56.2 Notice to Plaintiff. (See Dkt. No. 103.)

1

Although “a plaintiff’s pro se status does not allow him to rely on conclusory
allegations or unsubstantiated speculation to overcome a motion for summary judgment,”
Almonte v. Florio, No. 02-CV-6722, 2004 WL 60306, at *3 n.10 (S.D.N.Y. Jan. 13, 2004)
(citation and italics omitted), where a plaintiff “verifie[s] his complaint by attesting under
penalty of perjury that the statements in the complaint [are] true to the best of his knowledge,”
the “verified complaint is to be treated as an affidavit for summary judgment purposes,” Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also Patterson v. County of Oneida, 375 F.3d
206, 219 (2d Cir. 2004) (“[A] verified pleading . . . has the effect of an affidavit and may be
relied upon to oppose summary judgment.”); Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d
Cir. 2001) (holding that the plaintiff “was entitled to rely on [his verified amended complaint] in
opposing summary judgment”).
Here, Plaintiff’s Complaint includes a signed and dated verification page stating that
Plaintiff declares the contents of the filing to be true under the penalty of perjury. (Compl. 4.)
Therefore, the Court will accept for purposes of this Motion all admissible facts set forth in
Plaintiff’s Complaint that are based on Plaintiff’s personal knowledge and about which Plaintiff
is competent to testify. See Colon, 58 F.3d at 872 (“A verified complaint is to be treated as an
affidavit for summary judgment purposes . . . provided that it meets the other requirements for an
affidavit under Rule 56(e) . . . requiring affidavits to be made on personal knowledge, to set forth
facts that would be admissible in evidence, and to demonstrate the affiant’s competency to testify
to the matters in the affidavit . . . .”); James v. Gage, No. 15-CV-106, 2019 WL 1429520, at *7
(S.D.N.Y. Mar. 29, 2019) (finding it appropriate to consider the pro se plaintiff’s first amended
complaint as well as opposition papers in deciding a motion to dismiss); Jenkins v. Chase Bank
USA, N.A., No. 14-CV-5685, 2015 WL 4988103, at *1 n.1 (E.D.N.Y. Aug. 19, 2015) (“The
Court may . . . draw on facts alleged in the [c]omplaint and [a]mended [c]omplaint because even
though the [s]econd [a]mended [c]omplaint is the operative pleading, the [c]ourt may still credit
2

1. The Parties
Plaintiff is currently incarcerated at Washington Correction Facility. During the relevant
time period, Plaintiff had been arrested by members of the New York State Police and charged
with felony possession of controlled substances. (Def.’s 56.1 ¶ 17 (citing Aff. of Brian S.
Sokoloff, Esq. (“Sokoloff Aff.”) Ex. E (“Def.’s Aff.”) ¶ 13 (Dkt. No. 100-5)).) 2 Defendant,

admissions in the original complaint and attached exhibits.” (citation, alteration, and quotation
marks omitted)); Poindexter v. EMI Record Grp. Inc., No. 11-CV-559, 2012 WL 1027639, at *2
(S.D.N.Y. Mar. 27, 2012) (“[E]ven though the [a]mended [c]omplaint is the operative pleading,
the Court may still credit admissions in the original complaint and attached exhibits” (citation
omitted)); Johnson v. Doe, No. 00-CV-3920, 2001 WL 314618, at *1 (S.D.N.Y. Mar. 30, 2001)
(“Although a verified complaint may serve as an affidavit for summary judgment purposes . . .
mere verification does not transform rhetoric, conclusions, and other non-admissible statements
into admissible evidence.” (citation omitted)).
2

Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise
statement, in numbered paragraphs, of the material facts as to which the moving party contends
there is no genuine issue to be tried.” The nonmoving party must then submit “a
correspondingly numbered paragraph responding to each numbered paragraph in the statement of
the moving party, and if necessary, additional paragraphs containing a separate, short[,] and
concise statement of additional material facts as to which it is contended that there exists a
genuine issue to be tried.” Local Civ. R. 56.1(b). “If the opposing party . . . fails to controvert a
fact set forth in the movant’s Rule 56.1 statement, that fact will be deemed admitted pursuant to
the local rule.” Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (citation and quotation
marks omitted); see also T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same).
“A pro se litigant is not excused from this rule,” Brandever v. Port Imperial Ferry Corp., No. 13CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014) (citation and italics omitted).
Here, Defendant filed his 56.1 Statement, (Def.’s 56.1), in addition to a statement notifying
Plaintiff of the potential consequences of not responding to the Motion, as required by Local
Rule 56.2, (Dkt. No. 103). Despite this notice, Plaintiff failed to submit a response to
Defendant’s 56.1 Statement. Accordingly, the Court may conclude that the facts in Defendant’s
56.1 Statement are uncontested and admissible. See Brandever, 2014 WL 1053774, at *3
(concluding that because the pro se plaintiff did not submit a Rule 56.1 statement in response to
the defendant’s statement of facts, “there [were] no material issues of fact”); Anand v. N.Y. State
Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29,
2013) (same).
Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when
confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir. 1988) (citations omitted), the Court will “in its discretion opt to conduct an assiduous review
of the record” when deciding the instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001) (citation and quotation marks omitted); see also Houston v. Teamsters Local 210,
3

currently a detective at the Village of Spring Valley Police Department (“Spring Valley Police”),
was employed as a police officer with the Spring Valley Police during the relevant time period.
(Id. ¶¶ 1, 3 (citing Def’s Aff. ¶ 1).) Defendant has been a member of this police department for
approximately 11 years. (Id. ¶ 2 (citing Def.’s Aff. ¶ 1).) Prior to this position, Defendant was a
member of the Village of Tuxedo Park Police Department, Village of Chester Police
Department, and Town of Walkill Police Department. (Id. ¶ 3 (citing Def.’s Aff. ¶ 1).)
2. The Investigation and Warrant Application
Since 2013, Defendant has been assigned to the Rockland County Drug Task Force
(“RCDTF”), which “investigates and prosecutes people and organizations involved in trafficking
controlled substances and their illicit proceeds in Rockland County.” (Id. ¶¶ 4–5 (citing Def.’s
Aff. ¶ 2).) The RCDTF employs “investigative personnel from the Rockland County District
Attorney’s Office, the Rockland County Sheriff’s Department, and local police departments.”
(Id. ¶ 6 (citing Def.’s Aff. ¶ 3).) Since being assigned to the RCDTF, Defendant has “conducted
several investigations of state narcotics offenses,” and has “applied for and received courtordered authorization to search premises and to conduct electronic surveillance.” (Id. ¶ 7 (citing

Affiliated Health & Ins. Fund-Vacation Fringe Benefit Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y.
2014) (“Although [the] plaintiffs did not file a Rule 56.1 statement, the Court has independently
reviewed the record to ensure that there is uncontroverted evidence to support the paragraphs
referenced in [the] defendants’ Rule 56.1.”); Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013
WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013) (explaining that “[t]he [c]ourt ha[d] considered the
[motions for summary judgment] in light of the entirety of the record to afford [the pro se]
[p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed to submit a
Rule 56.1 response (citation omitted)); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872,
2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013) (“[W]here a pro se plaintiff fails to submit a
proper . . . Rule 56.1 statement in opposition to a summary judgment motion, the [c]ourt retains
some discretion to consider the substance of the plaintiff’s arguments, where actually supported
by evidentiary submissions.” (citation, italics, and quotation marks omitted)). The Court will
therefore consider whether any facts in the record or in Plaintiff’s Complaint contradict
Defendant’s 56.1 Statement.
4

Def.’s Aff. ¶ 4).) Defendant became the lead investigator of one such drug trafficking
investigation, nicknamed “Operation Money Mike,” around May 2015. (Id. ¶ 8 (citing Def.’s
Aff. ¶ 5).) The investigation involved “electronic surveillance and other law enforcement
investigative techniques,” and Plaintiff was one of the subjects of the investigation for possible
sale and distribution of heroin and cocaine. (Id. ¶¶ 9–10 (citing Def.’s Aff. ¶¶ 6–7; Sokoloff Aff.
Ex. F (“Warrant Application”) (Dkt. No. 100-6)).)
At some point during the investigation, Defendant “acquired reasonable cause to believe
Plaintiff was using his apartment[,] [located] at 220 Kearsing Parkway, Apartment F, Monsey,
New York, to store and sell cocaine and heroin.” (Id. ¶ 11 (citing Def.’s Aff. ¶ 8; Warrant
Application).) Defendant thus prepared a search warrant application (the “Warrant Application”)
for this address, which he submitted to Justice Alan Simon (“Justice Simon”) of the Village of
Spring Valley Justice Court (“Justice Court”) on September 14, 2015, along with “multiple
duplicate original copies of the proposed search warrant.” (Id. ¶¶ 12–14 (citing Def.’s Aff. ¶¶ 9–
11; Warrant Application; Sokoloff Aff. Ex. Q (“Simon Aff.”) ¶ 4 (Dkt. No. 100-17)).) 3
3. Warrant Application
On September 14, 2015, duplicate copies of Defendant’s proposed search warrant were
signed with Justice Simon’s name (the “Warrant”). (See Compl. 3; Def.’s 56.1 ¶ 16 (citing
Def.’s Aff. ¶ 12; Sokoloff Aff. Ex. G (“Search Warrant”) (Dkt. No. 100-7); Simon Aff. ¶¶ 5–6).)
Plaintiff states that Defendant and the RCDTF forged Justice Simon’s signature on the Warrant.

3

Justice Simon no longer serves in this capacity and is currently the Mayor of the Village
of Spring Valley. (See Compl. Ex. D; Simon Aff. ¶ 3.)
5

(Compl. 3; Sokoloff Aff. Ex. M (“Pl.’s Dep. Tr.”), at 74 (Dkt. No. 100-13).) According to
Plaintiff, the signature differs on the two copies of the Warrant that he has seen. (Id.) 4
According to Defendant, Justice Simon himself reviewed the Warrant Application and
signed each copy of the Warrant on September 14, 2015, thus authorizing the search. (Def.’s
56.1 ¶¶ 15–16 (citing Def.’s Aff. ¶ 12; Search Warrant; Simon Aff. ¶¶ 5–6).) The Warrant was
kept on file with the Justice Court, (id. ¶¶ 52, 55 (citing Sokoloff Aff. Ex. D (“Cheron Aff.”)
(Dkt. No. 100-4)), which provides search warrants directly to the Spring Valley Village Court
(“Village Court”), (id. ¶ 53 (citing Cheron Aff.)). Defendant avers that the search warrant on file
with the Justice Court is the same as the warrant signed by Justice Simon, the same as the
warrant received by Defendant from Justice Simon authorizing the search, and the same as the
warrant attached to the Complaint. (Id. ¶ 56 (citing Cheron Aff. ¶ 2 and attachments; Simon Aff.
¶ 6; Def.’s Aff. ¶ 12; Search Warrant; Compl. Ex. A).) 5
4. Warrant Execution
On September 15, 2015, Defendant and other members of RCDTF executed the Warrant
between approximately 1:30 a.m. and 2:00 a.m. (Compl. 3; Def.’s 56.1 ¶ 18 (citing Def.’s Aff.
¶ 13).) Plaintiff was not at his apartment during the search because he had been arrested for
felony possession of controlled substances on the previous day, (id. ¶¶ 17, 19 (citing Def.’s Aff.
¶ 13)), but contends that the Warrant was forged, and his “home was destroyed,” resulting in his

4

It bears noting that Plaintiff acknowledged in his deposition that he has not taken
classes on handwriting analysis, does not have training in this field, and has not consulted with a
handwriting analysis expert. (Pl.’s Dep. Tr. 74.)
5

Justice Simon’s Affidavit purports to attach a copy of the Warrant signed by Justice
Simon. However, no such document was attached. On November 12, 2019, at the request of the
Court, counsel for Defendant separately submitted the document that was intended to be attached
to Justice Simon’s Affidavit to the Court. (Letter from Brian S. Sokoloff, Esq. to Court (Nov.
12, 2019) (“Sokoloff Nov. 12 Letter”) (Dkt. No. 113).)
6

eviction by his landlord, (Compl. 3). Plaintiff further states that his property was seized during
the search, including a safe deposit box and U.S. currency. (Id.)
During the search, Defendant and the other RCDTF members recovered “contraband and
other evidence” from Plaintiff’s apartment, including bags of white pills, tan powder, and a
“white chunky substance.” (Def.’s 56.1 ¶ 20 (citing Def.’s Aff. ¶ 14); Sokoloff Aff. Ex. H
(“Warrant Inventory”) 1 (Dkt. No. 100-8); id. Ex. P (“Warrant Receipt”) (Dkt. No. 100-16).)
Defendant and the other RCDTF members also found and confiscated three handguns, two of
which were in a safe, and one of which was on top of the safe. (Def.’s 56.1 ¶ 21 (citing Def.’s
Aff. ¶ 14; Warrant Inventory; Sokoloff Aff. Ex. J (“Judge Zuckerman Order”), at 9 (Dkt. No.
100-10)).) Upon leaving the premises, Defendant left a Search Warrant Property Recovery
Receipt (the “Warrant Receipt”) at Plaintiff’s apartment, which listed some of the property
seized during the search. (Id. ¶ 22 (citing Def.’s Aff. ¶ 14; Warrant Receipt).)
After the search, Defendant delivered to Justice Simon one copy of the Warrant, the
original Warrant Application, and an inventory of property seized during the search (the
“Warrant Inventory”). (Id. ¶ 23 (citing Def.’s Aff. ¶ 15; Warrant Inventory).) On October 1,
2015, Defendant appeared before Justice Simon, who asked Defendant whether he “had received
a search warrant from the court,” “executed the search warrant in accordance with its terms,”
“inventoried items found during the search,” and whether Defendant swore to this inventory.
(Id. ¶¶ 24–27 (citing Def.’s Aff. ¶¶ 16–19; Warrant Inventory; Sokoloff Aff. Ex. O (“Oct. 1,
2015 Tr.”) (Dkt. No. 100-15)).) Defendant responded in the affirmative to all of Justice Simon’s
questions. (Id. (citing Def.’s Aff. ¶¶ 16–19; Warrant Inventory; Oct. 1, 2015 Tr.).) Justice
Simon then directed the court officer to “[a]sk the [c]lerk to put [the Warrant Inventory] in the
file or file it appropriately.” (Oct. 1, 2015 Tr. 2; Def.’s 56.1 ¶ 28 (citing Def.’s Aff. ¶ 19; Oct. 1,
7

2015 Tr.).) Also on October 1, 2015, Justice Simon signed a Disposition of Seized Property
pursuant to New York Criminal Procedure Law § 690.55(1) at the end of the Warrant Inventory.
(Id. ¶ 29 (citing Def.’s Aff. ¶ 20; Warrant Inventory).) Justice Simon’s signature
“acknowledg[ed] receipt of the property seized pursuant to the search warrant, and direct[ed] the
property to be held in custody as set forth therein.” (Id.) Defendant signed below Justice
Simon’s signature to “acknowledge receiving the property in accordance with Justice Simon’s
directive.” (Id. ¶ 30 (citing Def.’s Aff. ¶ 20; Warrant Inventory).)
5. Indictments and Convictions
Based upon his arrest, Plaintiff was first charged under Indictment No. 2015-395 with
criminal possession of a controlled substance in the first degree and criminal possession of a
controlled substance in the third degree. (Id. ¶¶ 31, 40 (citing Def.’s Aff. ¶ 21; Sokoloff Aff. Ex.
L (“Jan. 17, 2017 Tr.”), at 4 (Dkt. No. 100-12); Letter from Pl. to Court (Oct. 13, 2018) Ex. A
(“Proposed Am. Compl.”), at 38 (Dkt. No. 60-1)).) 6 Plaintiff does not specify the date on which
he was charged under this indictment.
On November 9, 2015, Plaintiff was charged in Rockland County Court under Indictment
No. 2015-449 with two counts of conspiracy in the fourth degree, N.Y. Penal Law § 105.10(1),
and under Indictment No. 2015-445 with criminal sale and possession of a controlled substance
in the third degree, N.Y. Penal Law §§ 220.16(1), 220.39(1). (Def.’s 56.1 ¶¶ 32–33 (citing
Def.’s Aff. ¶ 22; Sokoloff Aff. Ex. I (“Indictments”) (Dkt. No. 100-9)).) These indictments were
ultimately consolidated. (Id. ¶ 38 (citing Proposed Am. Compl. 32).)

6

For ease of reference, the Court refers to the ECF page numbers stamped at the top of
each page of Plaintiff’s October 13, 2018 letter to the Court, which includes a proposed amended
complaint and accompanying exhibits.
8

On November 10, 2015, Plaintiff was charged under Indictment No. 2015-450 with
criminal sale and criminal possession of a controlled substance in the third degree, N.Y. Penal
Law §§ 220.16(1), 220.41(1), and under Indictment No. 2015-451 with conspiracy in the second
degree, N.Y. Penal Law § 105.15. (Def.’s 56.1 ¶¶ 34–35 (citing Def.’s Aff. ¶ 22; Indictments).)
These indictments were ultimately consolidated. (Id. ¶ 39 (citing Proposed Am. Compl. 34).)
On the same day, Plaintiff was also charged under Indictment No. 2015-455 with operating as a
major drug trafficker, N.Y. Penal Law § 220.77(2). (Def.’s 56.1 ¶ 36 (citing Def.’s Aff. ¶ 22;
Indictments).)
Due to the recovery of three handguns during execution of the Warrant, Plaintiff was also
charged under Indictment No. 2015-457 on November 10, 2015 with criminal possession of a
weapon in the second degree, New York Penal Law § 265.03(3), two counts of criminal
possession of a weapon in the third degree, New York Penal Law § 265.02(1), and criminal
possession of a weapon in the third degree, New York Penal Law § 265.02(3). (Def.’s 56.1 ¶ 37
(citing Def.’s Aff. ¶ 23; Indictments).) This indictment, however, was dismissed by Judge David
Zuckerman of Rockland County Court (“Judge Zuckerman”) on March 30, 2016. (Id. ¶ 48
(citing Judge Zuckerman Order 14).) Plaintiff states that these charges were dismissed “once
Judge Zuckerman found out about the forgery and the unlawful search.” (Compl. 3.) Patricia
Mortel (“Mortel”), who, according to Defendant’s Warrant Application, is Plaintiff’s girlfriend,
(Warrant Application 3), also avers in a sworn statement that “Indictment 2015-457 . . . was
dismissed by Judge Zuckerman pertaining to the illegal search on May 3[], 2016,” (Compl. Ex. C
(“Civilian Complaint Report”), at 1.) According to Defendant, however, the indictment was
“deemed . . . defective due solely to the prosecutor’s omission of a constructive possession
charge to the grand jury.” (Def.’s 56.1 ¶ 48.) According to the court’s order, Judge Zuckerman
9

found that although “the presentation [of the charges] was defective due to [] improper
instructions given to the [g]rand [j]ury[,] the [p]eople [were] . . . granted leave to re-present to a
new [g]rand [j]ury.” (Judge Zuckerman Order 13.)
On June 20, 2016, Plaintiff was convicted by a jury of criminal possession of a controlled
substance in the first degree and criminal possession of a controlled substance in the third degree,
pursuant to Indictment No. 2015-395. (Def.’s 56.1 ¶ 40 (citing Jan. 17, 2017 Tr. 4; Proposed
Am. Compl. 38).) On October 16, 2016, Plaintiff pled guilty to two counts of conspiracy in the
fourth degree and criminal sale and possession of a controlled substance in the third degree under
the consolidated Indictment Nos. 2015-449 and 2015-445, (id. ¶ 42 (citing Sokoloff Aff. Ex. K
(“Oct. 16, 2016 Tr.”), at 44 (Dkt. No. 100-11))), and criminal sale and possession of a controlled
substance in the third degree and conspiracy in the second degree under consolidated Indictment
Nos. 2015-450 and 2015-451, (id. ¶ 44 (citing Oct. 16, 2016 Tr. 44)). Plaintiff also pled guilty to
operating as a major drug trafficker under Indictment No. 2015-455. (Id. ¶ 46 (citing Oct. 16,
2016 Tr. 44).)
On January 17, 2017, Plaintiff was sentenced by Judge Zuckerman for each of the above
offenses. With respect to Indictment No. 2015-395, Plaintiff was sentenced to ten years in
prison, three years of post-release supervision, and a concurrent term of nine years in prison and
two years of post-release supervision. (Id. ¶ 41 (citing Jan. 17, 2017 Tr. 7–8).) With respect to
Indictment Nos. 2015-445 and 2015-449, Plaintiff was sentenced to nine years in prison and two
and a half years of post-release supervision, a concurrent term of ten years in prison and two and
a half years of post-release supervision, and a concurrent term of one to three years in prison.
(Id. ¶ 43 (citing Jan. 17, 2017 Tr. 8–9).) With respect to Indictment Nos. 2015-450 and 2015451, Plaintiff was sentenced to ten years in prison and two and a half years of post-release
10

supervision, a concurrent term of nine years in prison and two and a half years of post-release
supervision, and a concurrent term of three to nine years in prison. (Id. ¶ 45 (citing Jan. 17, 2017
Tr. 9).) Finally, with respect to Indictment No. 445, Plaintiff was sentenced to ten years in
prison and two and a half years of post-release supervision. (Id. ¶ 47 (citing Jan. 17, 2017 Tr. 8–
9).)
B. Procedural Background
The procedural background of this Action until Defendants filed their Motion To Dismiss
is addressed in this Court’s previous Opinion. (Op. 3.)
At the Motion To Dismiss stage, the Court dismissed all claims against District Attorney
Thomas P. Zugibe and Assistant District Attorney Maria T. Gaston-Desimone (the “DA
Defendants”) based on the Eleventh Amendment and the doctrine of prosecutorial immunity, (id.
at 5–8, 18), all claims against Justice Simon based on judicial immunity, (id. at 15–16), and
Plaintiff’s state law and Eighth Amendment claims, (id. at 16–17). The Court also dismissed
Plaintiff’s claim against Defendant that the Warrant contained false statements, (id. at 10–11),
but declined to dismiss Plaintiff’s Fourth Amendment claims against Defendant based on the
validity of the Warrant and damage of Plaintiff’s property, (id. at 13–14). The Court gave
Plaintiff leave to file an amended complaint within 30 days of the date of the Opinion, and
advised that “[i]f Plaintiff does not file an amended pleading, the case will proceed only on the
claim that [Defendant] violated Plaintiff’s Fourth Amendment rights by forging [Justice]
Simon’s signature on a search warrant and searching Plaintiff’s residence in reliance on the
forged warrant.” (Id. at 18.) The Court instructed that if Plaintiff failed to file an amended
complaint, Defendant should file an answer within 60 days of the date of the Opinion. (Id.)

11

On November 7, 2017, Defendant subsequently filed an Answer to Plaintiff’s Complaint,
(Dkt. No. 49), and on June 8, 2018, the Court adopted a discovery schedule, (Dkt. No. 53). On
September 19, 2018, Plaintiff docketed a letter requesting leave to amend the Complaint. (Dkt.
No. 58.) The Court ordered Plaintiff to provide a copy of the proposed amended complaint and
an explanation of what he sought to amend, (Dkt. No. 59), which Plaintiff filed on October 15,
2018, (the “Proposed Amended Complaint”) (Dkt. No. 60). The Court construed Plaintiff’s
submission as a request to file an amended complaint, (Dkt. No. 63), thereafter referring the case
to Magistrate Judge Lisa M. Smith (“Judge Smith”) on January 8, 2019 for general pretrial
matters, (Dkt. No. 74). Judge Smith subsequently deemed the Proposed Amended Complaint to
be Plaintiff’s Amended Complaint. (See Dkt. (minute entry for Feb. 7, 2019).) However, on
March 19, 2019, at a status conference before Judge Smith, Plaintiff withdrew his Amended
Complaint. (Dkt. (minute entry for Mar. 19, 2019); Hr’g Tr. 19–20 (“Mar. 19, 2019 Hr’g”) (Dkt.
No. 108).) During the conference, Plaintiff acknowledged that his sole remaining claim was “the
Fourth Amendment claim that [Defendant] got a forged search warrant and conducted the search
based on that forged search warrant.” (Id. at 20.)
On April 22, 2019, Defendant requested leave to file a motion for summary judgment.
(Dkt. No. 94.) The Court granted the request and ordered that Defendant file any such motion by
June 1, 2019, Plaintiff submit a response by July 1, 2019, and Defendant file a reply by July 22,
2019. (Dkt. No. 97.) On May 7, 2019, Plaintiff sent the Court a letter reiterating his position on
the Warrant and stating that “the motion by [Defendant] should be dismissed for summary
judgment.” (Letter from Pl. to Court (May 7, 2019) (“Pl.’s Opp’n”) 1 (Dkt. No. 98).) 7 Given

7

To avoid confusion, the Court cites the ECF page numbers stamped on the top of each
page of this submission.
12

that Plaintiff is pro se, the Court construes this submission liberally to be Plaintiff’s Response in
Opposition to Defendant’s Motion (the “Opposition”. Although filed before Defendant’s
Motion, Plaintiff’s Opposition addresses arguments raised in Defendant’s request for leave to file
this Motion.
Defendant filed the instant Motion on May 31, 2019. (Not. of Mot.; Def.’s Mem. of Law
in Supp. of Mot. for Summary Judgment (“Def.’s Mem.”) (Dkt. No. 101); Sokoloff Decl.; Def.’s
56.1.) Plaintiff submitted no response after the Motion was filed, and Defendant submitted no
reply. The Court now deems the Motion fully submitted.
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River
v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). “It is the
movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v. Marchinkowski, 137 F. Supp.
3d 495, 521 (S.D.N.Y. 2015) (same).
“However, when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
13

essential element of the nonmovant’s claim,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a [summary
judgment] motion . . ., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility
that his allegations were correct; he need[s] to ‘come forward with specific facts showing that
there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the pleadings,”
Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks
omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for
summary judgment is properly supported by documents or other evidentiary materials, the party
opposing summary judgment may not merely rest on the allegations or denials of his pleading
. . . .”). And, “[w]hen opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v.
Harris, 550 U.S. 372, 380 (2007).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role
of the court is not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.” Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court’s goal should
be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr
14

Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
323–24 (1986) (quotation marks omitted). However, a district court should consider only
evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,
164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the
statements ‘must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso,
691 F.3d at 230 (quoting Fed. R. Civ. P. 56(c)(4)).
As a general rule, “district courts may not weigh evidence or assess the credibility of
witnesses at the summary judgment stage.” Jeffreys v. City of New York, 426 F.3d 549, 551 (2d
Cir. 2005); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (noting that at the
summary judgment stage, the court is not to “weigh the evidence and determine the truth of the
matter”); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999) (“Assessments of
credibility and choices between conflicting versions of the events are matters for the jury, not for
the court on summary judgment.” (quotation marks omitted).) Where the evidence presents “a
question of ‘he said, she said’” the court “cannot . . . take a side at the summary judgment stage.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010); see also Kassel
v. City of Middletown, 272 F. Supp. 3d 516, 535 (S.D.N.Y. 2017) (noting that “it is not the role
of the [c]ourt at summary judgment to resolve [a] factual clash”); Bale v. Nastasi, 982 F. Supp.
2d 250, 258–59 (S.D.N.Y. 2013) (stating that “[w]here each side . . . tells a story that is at least
plausible and would allow a jury to find in its favor, it is for the jury to make the credibility
determinations and apportion liability, and not for the court.”). And, even if the non-movant’s
evidence is “thin, [a non-movant’s] own sworn statement is adequate to counter summary
judgment.” Scott v. Coughlin, 344 F.3d 282, 290–91 (2d Cir. 2003) (holding that “[t]he
15

credibility of [Plaintiff’s] statements and the weight of contradictory evidence may only be
evaluated by a finder of fact.”).
Finally, the Second Circuit has instructed that when a court considers a motion for
summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham, 848
F.2d at 344; accord Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at
*7 (S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se
litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest,”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and quotation
marks omitted). Moreover, “the failure to oppose a motion for summary judgment alone does
not justify the granting of summary judgment.” Vt. Teddy Bear Co., 373 F.3d at 244; see also
Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination of the
legal validity of an entry of summary judgment should . . . be[] made in light of the opposing
party’s pro se status” (italics omitted)). “Nonetheless, proceeding pro se does not otherwise
relieve a litigant of the usual requirements of summary judgment, and a pro se party’s bald
assertions unsupported by evidence . . . are insufficient to overcome a motion for summary
judgment.” Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund-Vacation Fringe
Ben. Fund, 27 F. Supp. 3d 346, 351 (E.D.N.Y. 2014) (alterations, italics, and quotation marks
omitted); see also Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2
(S.D.N.Y. July 31, 2017) (same).
B. Analysis
Defendant argues that Plaintiff has failed to state a viable claim that his Fourth
Amendment rights were violated when Defendant executed a search of Plaintiff’s home pursuant
to the allegedly forged Warrant.
16

1. Request for Additional Discovery
Plaintiff requests a “graphologist” in his Opposition “to clear up the forging of the
handwriting,” stating that he has a “gut feeling . . . that Ju[stice] [] Simon did not issue his
signature on the[] allege[d] [W]arrants.” (Pl.’s Opp’n 2.) The Court construes this statement as
a request to allow Plaintiff to conduct further discovery. See Palacio v. Ocasio, No. 02-CV6726, 2006 WL 2372250, at *13 (S.D.N.Y. Aug. 11, 2006) (determining the same when the
plaintiff requested, inter alia, additional depositions in an opposition to a motion for summary
judgment). Under Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, [he] cannot present facts essential to justify [his] opposition, the court may: (1)
defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Any such
affidavit or declaration “must describe: (1) what facts are sought and how they are to be
obtained, (2) how such facts are reasonably expected to raise a genuine issue of material fact, (3)
what efforts the affiant has made to obtain them, and (4) why the affiant’s efforts were
unsuccessful.” Walden v. Sanitation Salvage Corp., No. 14-CV-112, 2015 WL 1433353, at *2
(S.D.N.Y. Mar. 30, 2015) (citation omitted); see also Paddington Partners v. Bouchard, 34 F.3d
1132, 1138 (2d Cir. 1994) (same).
Here, Plaintiff has not submitted an affidavit or declaration. Although Plaintiff is pro se,
he has been served with a Local Rule 56.2 Notice, which attached Rule 56(d) and set forth the
requirements for an affidavit supporting a Rule 56(d) discovery request. (See Dkt. No. 103.)
“Nor [has] Plaintiff provide[d] the information necessary under Rule 56(d), even in a conclusory
fashion.” Berry v. Marchinkowski, 137 F. Supp. 3d 495, 522 (S.D.N.Y. 2015). Thus, to the
extent that Plaintiff intends to seek additional discovery under Rule 56(d), his request is denied.
17

See Gumbs v. Dynan, No. 11-CV-857, 2012 WL 3705009, at *17 (E.D.N.Y. Aug. 26, 2012)
(denying a pro se plaintiff’s request for relief under Rule 56(d) because he failed to submit an
affidavit, which would be sufficient grounds for denial on its own, and he also did not provide
information on the “four categories of information requisite to [the] [c]ourt’s permission to
conduct Rule 56(d) discovery”); Arriaga v. City of New York, No. 06-CV-2362, 2008 WL
11411816, at *3 (S.D.N.Y. May 20, 2008) (denying a pro se plaintiff’s request for additional
discovery because the defendants complied with their discovery obligations, and the plaintiff had
a “full and fair opportunity to conduct discovery[,] demonstrated an ability to obtain orders from
[the] [m]agistrate [j]udge] . . . [, and] allowed the discovery period to close . . . without
pressing . . . for further relief”); see also Roswell Capital Partners LLC v. Alternative Constr.
Techs., 638 F. Supp. 2d 360, 371 (S.D.N.Y. 2009) (“The failure to file an affidavit under Rule
56(f) [now renumbered 56(d)] is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.” (citation and quotation marks omitted)).
2. Search Warrant
“To prevent . . . general, exploratory rummaging in a person’s belongings and the
attendant privacy violations, the Fourth Amendment provides that a warrant may not be issued
unless probable cause is properly established[,] and the scope of the authorized search is set out
with particularity.” United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (citations and
quotation marks omitted). Thus, a search warrant must (1) be based on probable cause, (2) be
supported by oath or affirmation, (3) describe with particularity the place to be searched, and (4)
describe with particularity the things to be seized. See Groh v. Ramirez, 540 U.S. 551, 557
(2004). “[S]earches and seizures inside a home without a [valid] warrant are presumptively

18

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (footnote and quotation marks
omitted).
“Probable cause for a search exists ‘where the known facts and circumstances are
sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence
of a crime will be found.’” United States v. Feng Ling Liu, No. 12-CR-934, 2014 WL 101672, at
*3 (S.D.N.Y. Jan. 10, 2014) (alteration in original) (quoting Ornelas v. United States, 517 U.S.
690, 696 (1996)). “[T]he issuance of a warrant by a neutral magistrate, which depends on a
finding of probable cause, creates a presumption that it was objectively reasonable for the
officers to believe that there was probable cause . . . .” Golino v. City of New Haven, 950 F. 2d
864, 870 (2d Cir. 1991) (citation omitted). “To rebut that presumption, a plaintiff must make a
substantial preliminary showing that the affiant knowingly and intentionally, or with reckless
disregard for the truth, made a false statement in his affidavit and that the allegedly false
statement was necessary to the finding of probable cause.” Lynch ex rel. Lynch v. City of Mount
Vernon, 567 F. Supp. 2d 459, 466 (S.D.N.Y. 2008) (citation and quotation marks omitted); see
also Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991) (“A plaintiff who argues that a
warrant was issued on less than probable cause faces a heavy burden.”).
Viewing the evidence in the light most favorable to Plaintiff, the Court finds no basis for
concluding that the Warrant was forged and thus invalid. Plaintiff has stated numerous times
that Justice Simon’s signature on the Warrant was forged, and attached to his Complaint a sworn
Civilian Complaint Report by Mortel stating the same. (See Compl. 3 (“[Defendant and
RCDTF] falsely made a search warrant [and] forged a signature to enter my home . . . .”);
Civilian Complaint Report 1 (“[Defendant] enter[ed] my apartment with a falsified
warrant . . . .”); Pl.’s Dep. Tr. 74 (stating that the signatures on two copies of the warrants are
19

“not the same” and “[in] fact different”).) Plaintiff has further averred that he has “the proof to
show that the [Warrant] is . . . a forged document,” submitting as “proof” two separate copies of
the Warrant, one that he received from Defendant, and the other that he received from his
appointed counsel. (Pl.’s Opp’n 1, 3–4, 6–7.) Plaintiff argues that the two copies are “entirely []
different” because the style of the dates and the judge’s signature were not identical on each. (Id.
at 1.) 8 These statements, however, are wholly conclusory, if not entirely fanciful, and do not
establish any “basis [on which Plaintiff] learned that [Justice] Simon’s signature was forged.”
(Op. 12 n.6.) “[P]laintiff may not survive a properly asserted motion for summary judgment on
the basis of conclusory allegations alone.” Kia P. v. McIntyre, 235 F.3d 749, 763 (2d Cir. 2000)
(citation omitted); see also Blue v. City of New York, No. 14-CV-7836, 2018 WL 1136613, at
*12 (S.D.N.Y. Mar. 1, 2018) (granting summary judgment where the plaintiff did not “provide
any evidence to question or otherwise dispute that the search[] of his apartment . . . [was]
pursuant to [a] lawful search warrant” and instead relied on “conclusory allegations of forgery
and fraud”); United States v. Bailey, No. 15-CR-6082G, 2016 WL 6995067, at *20 (W.D.N.Y.
Nov. 29, 2016) (concluding, in the context of a suppression hearing, that the plaintiff’s
“speculation that the signature was forged is insufficient to find the warrant invalid”); Dockery v.
Tucker, No. 97-CV-3584, 2006 WL 5893295, at *19 (E.D.N.Y. Sept. 6, 2006) (finding that the

8

With the same letter, Plaintiff also submits the Warrant Receipt signed by Defendant on
September 14, 2015, (Pl.’s Opp’n 5), and the Warrant Inventory, signed by Defendant on
September 15, 2015 and Justice Simon on October 1, 2015, (id. at 8–9). Plaintiff does not
explain how these lists establish that Justice Simon’s signature on the Warrant was forged, other
than to speculate, “I am very incline[d] to believe that [Justice] [] Simon would [not] over[look]
this amount of defects on a legal document.” (Id. at 1.)
In his affidavit, Defendant elaborates on the difference between these two documents,
stating that he left the Warrant Receipt, which “itemize[d] property seized,” inside Plaintiff’s
home and that he provided the Warrant Inventory, which Justice Simon signed, to the court.
(Def.’s Aff. ¶¶ 14, 20.)
20

plaintiff’s allegations that a warrant had been forged “d[id] not present a material issue of fact as
to the existence of a valid active warrant,” because “plaintiff provide[d] only conclusory
allegations of the arrest warrant’s invalidity” (citation omitted)). Moreover, a reasonable jury
could not conclude only from the face of the Warrant copies submitted by Plaintiff that Justice
Simon’s signature was forged, because Plaintiff has provided no basis for his allegation. See
Wheeler v. Slanovec, No. 16-CV-9065, 2019 WL 2994193, at *7 n.7 (S.D.N.Y. July 9, 2019)
(noting that although the plaintiff attached the two warrants at issue to his complaint, he failed to
“explain[] the basis for his allegation that [a] [w]arrant was forged” and instead was “entirely
speculative and therefore insufficient to state a claim” (collecting cases)).
Defendant, on the other hand, submits consistent sworn statements from himself and
Justice Simon regarding the signature on the Warrant. Defendant states that he submitted the
eight-page Warrant Application and duplicate copies of the Warrant to Justice Simon, who
“reviewed the application and the proposed search warrant . . .[,] then signed each copy of the
[Warrant] submitted as duplicate originals, authorizing the search of Plaintiff’s apartment.”
(Def.’s Aff. ¶¶ 11–12.) Justice Simon states the same; he received the Warrant Application and
proposed Warrant from Defendant, “reviewed” both, and “then signed and dated the multiple
duplicate original copies of the [Warrant] presented to [him].” (Simon Aff. ¶¶ 4–6; Sokoloff
Nov. 12 Letter Ex. A (“Simon Aff. Ex.”).) Further, at a hearing before Justice Simon after the
search took place, Defendant confirmed that he “obtain[ed] a search warrant from th[e] [c]ourt”
and “execut[ed] it according to its terms.” (Oct. 1, 2015 Tr. 2.) The sworn affidavits and
October 1, 2015 hearing transcript demonstrate “that the [Warrant] satisfied all requirements for
validity: [it was] issued by [a] ‘neutral, disinterested’ judge[], there was ‘probable cause to
believe that the evidence sought would aid in a particular apprehension or conviction for a
21

particular offense,’ and the [W]arrant specifically described the items ‘to be seized, as well as the
place to be searched.’” Blue, 2018 WL 1136613, at *12 (alteration omitted) (quoting Lynch, 567
F. Supp. 2d at 464–45). Conversely, “Plaintiff does not cite any evidence to support his belief in
the falsity of [Defendant’s] statements.” Id. (comparing the lack of evidence submitted by the
plaintiff to a sworn affidavit submitted by the defendant detective); see also Thurman v. Allard,
No. 01-CV-8746, 2004 WL 2101911, at *12 (Sept. 22, 2004) (finding, in the context of a habeas
motion, that the petitioner’s claim that a parole violation warrant was forged “appear[ed] to be
simply untrue” because the signatory “ha[d] submitted an affidavit stating unequivocally that she
did in fact sign the warrant”); O’Hagan v. Soto, 523 F. Supp. 625, 628 (S.D.N.Y. 1981)
(concluding that, when a judge who signed the arrest warrant at issue “unequivocally identified
his signature [in a sworn statement during a deposition], and rejected the possibility of
backdating or forgery[,] . . . [the] plaintiff [could] not avoid summary judgment . . . by merely
alleging that the arrest warrant is a fabrication”).
Plaintiff has repeatedly made several allegations throughout the history of this case in an
attempt to support his forgery claim. First, Plaintiff has submitted to the Court on more than one
occasion a notarized document, written and signed by his wife, Sharon Parker, which states that
Ms. Parker went to the Village Court on July 2, 2018 and asked to see the Warrant. (Letter from
Pl. to Court (Nov. 8, 2018) Ex. A (“Sharon Parker Statement”) 1 (Dkt. No. 65).) 9 According to

9

While Ms. Parker’s statement is notarized, the statement does not declare that it was
made under penalty of perjury, as required for a declaration under 28 U.S.C. § 1746. See
Tackman v. Goord, No. 99-CV-0438, 2005 WL 2347111, at *26–27 (W.D.N.Y. Sept. 26, 2005)
(“[A] statement may properly be considered in opposition to summary judgment provided the
proffered statement conforms to the requirements of 28 U.S.C. § 1746. . . . [However, an
affidavit] may not be considered in opposition to [a] summary judgment motion . . . [if the
affiant] has not subjected himself to the penalties for perjury should it ultimately be determined
that the statements contained therein are false.” (citations omitted)). “Unsworn statements are
inadmissible in evaluating a motion for summary judgment, but the [C]ourt has nonetheless
22

Ms. Parker, Elsie Cheron (“Cheron”), a clerk of the court, informed her “that there was no such
documentation on file for the date of September 14, 2015.” (Id.) Defendant, on the other hand,
has submitted sworn statements proving that the Warrant was on file. The first is Cheron’s
sworn statement, wherein she states that the Warrant was “maintained [by her] in the ordinary
course of business of the [Justice Court],” and that warrants generally “are only accepted for
filing in th[e] office when they are provided directly from the [Justice Court].” (Cheron Aff.
¶¶ 2–4.) This is borne out in the record from the October 1, 2015 hearing, when Justice Simon
directed, “Ask the Clerk to put [the return of the Warrant] in the file or file it appropriately.”
(Oct. 1, 2015 Tr. 2.) Even taking Ms. Parker’s written statement as true and admissible, which it
is not, the alleged encounter between Cheron and Ms. Parker still does not establish a dispute of
material fact as to whether Justice Simon himself signed the Warrant. Whether Cheron was able
to locate the Warrant on July 2, 2018 is not relevant to the allegation that Justice Simon’s
signature was forged, particularly when Plaintiff has failed to set forth facts or evidence
contradicting the sworn statements of Defendant and Justice Simon stating that Justice Simon
did, in fact, sign the Warrant. See O’Hagan, 523 F. Supp. at 627–28 (concluding that although
the plaintiff submitted an earlier unsworn letter from a judge stating that an allegedly forged
warrant did not appear in the court’s files, the plaintiff failed to present “evidence to contradict
[the judge’s later] sworn testimony,” in which he positively identified his signature on the
warrant).

reviewed the statement[] and notes that the facts presented therein—assuming that Plaintiff could
present them in an admissible form—do not affect the outcome of this decision.” Vazquez v.
Southside United Hous. Dev. Fund Corp., No. 06-CV-5997, 2009 WL 2596490, at *2 n.3
(E.D.N.Y. Aug. 21, 2009) (citation omitted); see also Mills v. Miteq, Inc., No. 06-CV-752, 2009
WL 10701646, at *5 (E.D.N.Y. Feb. 20, 2009) (declining to consider statements by a pro se
plaintiff and witnesses because the statements were not made under penalty of perjury), adopted
in relevant part by 2009 WL 10701647 (E.D.N.Y. Mar. 10, 2009).
23

Second, Plaintiff claims that one of the charges against him was dismissed by Judge
Zuckerman because of the alleged illegal search, which Mortel reiterates in her sworn statement.
(Compl. 3 (“Once Judge Zuckerman found out about the forgery and the unlawful search[,] he
dismissed [] [I]ndictment [No.] 2015-457 . . . .”); Civilian Complaint Report 1 (“The Indictment
[No.] 2015-457 . . . was dismissed by Judge Zuckerman [because of] the illegal search . . . .”).)
As with Plaintiff’s forgery allegation, there is no evidence on the record to support this claim,
beyond these conclusory statements. In fact, Judge Zuckerman’s order directly belies Plaintiff’s
claim. (See Judge Zuckerman Order 14 (“[T]he presentation [of the charges] was defective due
to [] improper instructions given to the [g]rand [j]ury . . . .”).) In light of Judge Zuckerman’s
order, no reasonable jury could conclude that this indictment was dismissed due to the alleged
forgery of the Warrant. Thus, Plaintiff has not presented any evidence to suggest a genuine issue
of material fact as to the reason for the dismissal of one of his indictments.
At the Motion To Dismiss stage, the Court declined to consider Cheron’s affidavit,
submitted by Defendant, but warned Plaintiff that the affidavit “may present an insurmountable
obstacle . . . at summary judgment, because Plaintiff has not explained on what basis he learned
that [Justice] Simon’s signature was forged.” (Op. 12 n.6.) Now, after considering the sworn
statements and admissible evidence submitted by the Parties, the Court concludes that Plaintiff
has presented nothing more than “bald assertions unsupported by evidence,” Houston, 27 F.
Supp. 3d at 351 (citation and quotation marks omitted), to support his claims and that
Defendant’s evidence is indeed insurmountable.
Accordingly, the Court grants Defendant’s Motion as to Plaintiff’s Fourth Amendment
claim of forgery of the Warrant.

24

2. Property Damage
Although Defendant does not address Plaintiff’s property damage claim in his Motion,
the Court declined to dismiss this claim in its previous decision, (Op. 13–14), and thus addresses
it now.
“Excessive or unnecessary destruction of property in the course of a search may violate
the Fourth Amendment . . . .” United States v. Ramirez, 523 U.S. 65, 71 (1998). “However, it is
well recognized that officers executing search warrants on occasion must damage property in
order to perform their duty,” and “before any due process liability can be imposed for property
damage occurring in a lawful search, it must be established that the police acted unreasonably or
maliciously in bringing about the damage.” Smith v. City of New York, No. 04-CV-3286, 2010
WL 3397683, at *13 (S.D.N.Y. Aug. 27, 2010) (citation, alteration, and quotation marks
omitted), aff’d sub nom. Smith v. Tobon, 529 F. App’x 36 (2d Cir. 2013); see also Cody v. Mello,
59 F.3d 13, 16 (2d Cir. 1995) (same). Moreover, there must be allegations that “more than
ordinary disarray and damage incident to the execution of the warrant occurred.” Bender v.
Alvarez, No. 06-CV-3378, 2009 WL 112716, at *7 (E.D.N.Y. Jan. 16, 2009) (citation and
quotation marks omitted).
Plaintiff alleges that Defendant “damaged and seized” his property and “destroyed” his
home. (Compl. 3; see also Civilian Complaint Report 1 (stating that property was “destroy[ed]”
during the search).) 10 Although “[d]etermining whether a particular instance[] of property

10

To the extent that Plaintiff has raised a claim under the Fourth Amendment related to
Defendant’s seizure of his “safe deposit box[] [and U.S.] currency,” (Compl. 3), these items are
squarely included on the face of the Warrant, (see Search Warrant 1 (directing Defendant to
search “[f]or the following property: . . . United States [c]urrency and financial records
representing proceeds of drug trafficking; . . . safe deposit box receipts or keys, [and] safes and
their respective keys”).) Although not raised in the Complaint, and thus not addressed by the
Court in its previous Opinion, Plaintiff has claimed in letters to the Court that guns were illegally
25

damage was unreasonable or malicious is ordinarily not amenable to resolution at the summary
judgment stage[,] where a plaintiff has not produced any documentary evidence to support his
allegations, such as photos of broken property, receipts documenting repairs, or sworn testimony
attesting to specific damages, he fails to meet his burden to set out specific facts showing a
genuine issue for trial[,] and thus cannot survive a summary judgment motion.” Vaher, 133 F.
Supp. 3d at 592 (citations and quotation marks omitted). Here, Plaintiff fails to specify any
specific property that was destroyed. Instead, he merely alleges that damage occurred, which is
insufficient to “establish[] that [Defendant] acted unreasonably or maliciously” during the
search. Smith, 2010 WL 3397683, at *13 (citation omitted); see also Rogers v. Cartagena, No.
10-CV-9285, 2013 WL 1285169, at *6 (S.D.N.Y. Mar. 28, 2013) (granting summary judgment
because there was “no record evidence to support” claims of property damage during search);
Pina v. City of Hartford, No. 07-CV-0657, 2009 WL 1231986, at *8 (D. Conn. Apr. 29, 2009)
(“[The p]laintiffs have put forth no evidence of the destruction of property. [The executing

taken from his home because guns did not specifically appear in the Warrant. (See Dkt. Nos. 55,
65.) The guns removed from Defendant’s property, however, appear to have been located in
plain view, on top of the safe and inside of the safe, (Def.’s 56.1 ¶ 21 (citing Def.’s Aff. ¶ 14;
Warrant Inventory; Judge Zuckerman Order 9)), and the search and seizure of “safes” was
specifically denoted in the Warrant, (Search Warrant 1). See Vaher v. Town of Orangetown,
N.Y., 133 F. Supp. 3d 574, 590 (S.D.N.Y. 2015) (“In addition to items specifically listed in the
warrant, the ‘plain view’ exception to the warrant requirement ‘authorizes seizure of illegal or
evidentiary items visible to a police officer whose access to the object has some prior Fourth
Amendment justification and who has probable cause to suspect that the item is connected with
criminal activity.’” (quoting United States v. Gamble, 388 F.3d 74, 76 (2d Cir. 2004));
Merriweather v. City of New York, No. 12-CV-5258, 2015 WL 57399, at *6 (S.D.N.Y. Jan. 5,
2015) (“[T]he Fourth Amendment does not authorize the seizure of items other than those
identified in or reasonably covered by the terms of the search warrant, unless it is ‘immediately
apparent’ that such items are contraband or illegal on their face.” (citing Horton v. California,
496 U.S. 128, 135–36 (1990)). Even if Plaintiff had included a claim for improper seizure of
guns in the Complaint, he has not raised any issues of fact to suggest that the guns were
improperly seized. Indeed, one is hard pressed to imagine law enforcement officers not seizing
guns in a narcotics-related search.
26

officer] admits that personal property was thrown around during the search . . . but there is no
indication that the detectives damaged the plaintiff’s property beyond what was necessary to
effectuate a complete search of the apartment.” (citation and quotation marks omitted)); Lynch,
567 F. Supp. 2d at 467 n.5 (“As for the fact that the officers emptied dresser drawers during the
search, we do not doubt that this resulted in inconvenience to [the] plaintiffs, but the argument
that it was a constitutional violation is baseless.” (citation omitted)); Lewis v. City of Mount
Vernon, 984 F. Supp. 748, 756 (S.D.N.Y. 1997) (“[The] [p]laintiffs have presented no evidence
that the officers wantonly damaged or destroyed property or conducted the search in a manner
inconsistent with its professed purpose[.] . . . Rather, the only inference that can be drawn is that
the officers conducted a thorough search, as they are permitted to do in executing a warrant.”).
Although Plaintiff submitted photographs of alleged damage with his Proposed Amended
Complaint, which he subsequently withdrew, those photographs, which are blurry and difficult to
see, appear to depict nothing more than general disarray, and thus doom this claim. (Proposed
Am. Compl. 65–67.) See Glover v. City of New York, No. 15-CV-4899, 2018 WL 4906253, at
*31 (E.D.N.Y. Oct. 9, 2018) (“[T]he [c]ourt cannot discern any damage from the photograph in
the record. To the extent this image reflects any damage, it constitutes minor damage that does
not give rise to a Fourth Amendment violation.” (citations and quotation marks omitted)); Brown
v. City of Utica, 854 F. Supp. 2d. 255, 262 (N.D.N.Y. Apr. 12, 2012) (“The ‘destruction’
depicted in the pictures [attached by the plaintiff] includes a cracked glass cabinet door, a closet
door off its hinges, garbage strewn outside the home, clothing scattered on the floor inside the
home, a radiator with its metal covering removed, and what appears to be a broken mirror or
glass picture frame. However, the scene depicted in these images falls short of establishing that
[the] defendants acted unreasonably or maliciously.”); Diaz v. City of New York, No. 00-CV27

2944, 2006 WL 3833164, at *7 (E.D.N.Y. Dec. 29, 2006) (finding that most of the photographs
submitted by the plaintiffs "illustrate damage or disarray consistent with a reasonable search for
narcotics and narcotics paraphernalia"). Given the lack of Plaintiffs specific allegations and the
legality of the Warrant and search executed pursuant to it, the Court finds no dispute of material
fact as to whether Defendant caused unreasonable or malicious damage during the search.
III. Conclusion
For the foregoing reasons, the Court grants Defendant's Motion for Summary Judgment.
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 99), enter
judgment for Defendant, close this case, and mail a copy of this Opinion and Order to Plaintiff.
SO ORDERED.
Dated:

December J._, 2019
White Plains, New York

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