Parker v. Zugibe et al

Filing 47

OPINION & ORDER re: 36 MOTION to Dismiss filed by Honorable Judge Alan Simon, Officer Phillip Fantasia, 30 MOTION to Dismiss filed by District Attorney Thomas P. Zugibe, Assistant District Attorney Maria T Gaston-De simone. For the foregoing reasons, the D.A. Defendants' Motion is granted, and the Motion brought on behalf of Officer Fantasia and Judge Simon is granted in part and denied in part. Plaintiff may, within 30 days from the date of this Opini on, file an amended pleading addressing the deficiencies identified above. Plaintiff is advised that the failure to comply with this deadline will likely result in the dismissal of the claims asserted against the D.A Defendants and Judge Simon w ith prejudice. If Plaintiff chooses to file an amended pleading, he must specify the role that each individual played in the conduct that allegedly violated his rights. Plaintiff must include all of his allegations in the amended pleading and may not rely on later submissions to supplement the factual allegations. If Plaintiff does not file an amended pleading, the case will proceed only on the claim that Officer Fantasia violated Plaintiff's Fourth Amendment rights by forging Judge Simon's signature on a search warrant and searching Plaintiff's residence in reliance on the forged warrant. In the event that Plaintiff does not file an amended pleading, Officer Fantasia shall file an Answer within 60 days from the date of this Opinion. The Clerk of Court is directed to terminate the pending Motions, (Dkt. Nos. 30, 36), and to mail a copy of this Opinion to Plaintiff. (Signed by Judge Kenneth M. Karas on 9/26/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

AARON E. PARKER, Jacket #20168,
Plaintiff,
No. 16-CV-4265 (KMK)
-vOPINION & ORDER
DISTRICT ATTORNEY THOMAS P. ZUGIBE,
A.D.A. MARIA T. GASTON-DESIMONE,
OFFICER PHILLIP FANTASIA #830 (ROCKLAND
COUNTY DRUG TASK FORCE) & SPRING
VALLEY POLICE DEPT., and HONORABLE
JUDGE ALAN SIMON,
Defendants.

Appearances:
Aaron E. Parker
Dannemora, NY
Pro Se Plaintiff
Mark L. Schuh, Esq.
Cantina, Mahon, Milligram & Rider, PLLC
Newburgh, NY
Counsel for Defendants Zugibe and Gaston-DeSimone
Brian S. Sokoloff, Esq.
Sokoloff Stern LLP
Carle Place, NY
Counsel for Defendants Fantasia and Simon
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Aaron Parker brings this Action against Defendants District Attorney
Thomas P. Zugibe (“Zugibe”), Assistant District Attorney Maria T. Gaston-DeSimone (“GastonDeSimone”), Officer Phillip Fantasia (“Officer Fantasia”), and Judge Alan Simon (“Judge
Simon,” and collectively, “Defendants”), pursuant to 42 U.S.C. § 1983, alleging that Defendants

violated his Fourth and Eighth Amendment rights. Before the Court are Defendants’ Motions To
Dismiss (the “Motions” (Dkt. Nos. 30, 36).) For the reasons to follow, the Motion brought on
behalf of Gaston-DeSimone and Zugibe (the “D.A. Defendants”) is granted, and the Motion
brought on behalf of Officer Fantasia and Judge Simon is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Complaint and Amended Complaint, and
are taken as true for the purpose of resolving the Motions.1
Plaintiff alleges that on September 15, 2015, at approximately 2:00 a.m., Officer Fantasia
and the Rockland County drug task force “falsely made a search warrant” and forged Judge
Simon’s signature in order to enter and search Plaintiff’s home. (Compl. § III.B–C (Dkt. No. 1).)
During the course of the alleged illegal entry into Plaintiff’s home, Officer Fantasia and other
officers damaged certain items of Plaintiff’s property and seized other items. (See id. § III.C; see
also id. Ex. B (listing the property seized during the search).) Plaintiff alleges that GastonDeSimone oversaw the Rockland County drug task force, and authorized Officer Fantasia to
execute the search warrant. (See Am. Compl. ¶ 1 (Dkt. No. 27).) Zugibe allegedly supervised
Gaston-DeSimone’s actions and was “very much involved with executing” the search warrant.
(Id. ¶ 2.)
Plaintiff alleges that Judge Simon violated his constitutional rights because Judge Simon
signed a false search warrant and demanded that police officers search Plaintiff’s home, which

1

On September 13, 2016, Plaintiff filed a letter purporting to amend the Complaint.
(Dkt. No. 27.) The Court construes this submission as supplementing, as opposed to replacing,
the Complaint. For ease of reference, the Court will refer to this document as the “Amended
Complaint.”
2

caused the police officers to submit an application for a search warrant containing false
statements. (See Compl. § III.C.) It appears that the search warrant Plaintiff alleges that Judge
Simon signed is the same search warrant that Officer Fantasia allegedly forged. Once a different
judge found out about the forgery and the unlawful search, that judge allegedly dismissed an
indictment that was brought against Plaintiff on the ground that Plaintiff’s Fourth Amendment
rights were violated. (See id.)
Plaintiff alleges that five other indictments were filed against him based on “illegal”
wiretaps and false warrants, (see id.), but does not discuss these other indictments or the facts
leading up to the time that the indictments were filed in any detail.
B. Procedural Background
Plaintiff initiated this Action by filling a Complaint on June 7, 2016. (See Dkt. No. 1.)
Plaintiff filed the Amended Complaint on September 13, 2016. (See Dkt. No. 27.) Pursuant to a
memo endorsement, the D.A. Defendants filed their Motion and supporting papers on October
26, 2016. (See Dkt. Nos. 30–33.) Officer Fantasia and Judge Simon filed their Motion and
supporting papers on October 28, 2016. (See Dkt. Nos. 36–39.) Plaintiff filed opposition papers
on November 10, 2016. (See Dkt. No. 41.) The D.A. Defendants filed reply papers on
December 7, 2016. (See Dkt. No. 42.) Judge Simon and Officer Fantasia did not file a reply.
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
[or her] 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

3

(2007) (alteration and internal quotation marks omitted). Instead, the Supreme Court has
emphasized that “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” id., and that “once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint,” id. at 563. A plaintiff
must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to
plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific 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)).
For purposes of Defendants’ Motions, the Court is required to consider as true the factual
allegations contained in the Complaint and Amended Complaint. See Ruotolo v. City of New
York, 514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a
complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and
drawing all reasonable inferences in the plaintiff’s favor.” (internal quotation marks and italics
omitted)); Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008) (same). “In
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).

4

Because Plaintiff is proceeding pro se, the Court construes his “submissions . . . liberally”
and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks
omitted). Furthermore, it is appropriate to consider “materials outside the complaint to the extent
that they are consistent with the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted),
including “documents that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No.
09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted); see also
Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a court may consider “factual
allegations made by a pro se party in his papers opposing the motion” (italics omitted));
Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013)
(“Although the [c]ourt is typically confined to the allegations contained within the four corners
of the complaint, when analyzing the sufficiency of a pro se pleading, a court may consider
factual allegations contained in a pro se litigant’s opposition papers and other court filings.”
(citation and internal quotation marks omitted)).
B. Analysis
1. The Claims Asserted Against the District Attorney Defendants
The D.A. Defendants argue that this Action must be dismissed on several grounds: (1)
Plaintiff has failed to state a claim; (2) Plaintiff’s claims are barred by the Eleventh Amendment;
(3) the D.A. Defendants are entitled to absolute immunity; and (4) the claims are baseless
because Judge Simon actually signed the search warrant. (See generally D.A. Defs.’ Mem. of
Law in Supp. of Mot. To Dismiss (Dkt. No. 32).)

5

It is unclear what claims Plaintiff is attempting to assert against the D.A. Defendants
because the D.A. Defendants are not alleged to have violated any of Plaintiff’s constitutional
rights. Plaintiff alleges that the D.A. Defendants authorized the search of Plaintiff’s home, (Am.
Compl. ¶¶ 1–2), but there is no indication that the D.A. Defendants knew anything about the
alleged falsehoods contained in the search warrant. Moreover, Plaintiff does not allege that the
D.A. Defendants participated in the illegal wiretaps Plaintiff vaguely refers to in the Complaint.
(See Compl. § III.C.) Without more information, the Court holds that Plaintiff has not stated a
claim against the D.A. Defendants. See Iqbal, 556 U.S. at 678 (holding that “an unadorned, thedefendant-unlawfully-harmed-me accusation” is insufficient to state a claim).
Even if Plaintiff had adequately stated a claim against the D.A. Defendants, the claims
asserted against them in their official capacities would be barred by the Eleventh Amendment
and the claims asserted against them in their individual capacities would be barred by the
doctrine of absolute prosecutorial immunity. “The Eleventh Amendment bars suits for damages
against states, state agencies and state officials acting in their official capacity, absent the state’s
consent to suit or an express or statutory waiver of immunity.” Hensler v. N.Y. State Dep’t of
Envtl. Conservation, No. 16-CV-3445, 2017 WL 2589311, at *3 (E.D.N.Y. June 14, 2017). It is
well-settled that New York State has not waived its sovereign immunity in § 1983 suits. See,
e.g., Marino v. City Univ. of N.Y., 18 F. Supp. 3d 320, 335 (E.D.N.Y. 2014) (“It is well settled
that Congress did not abrogate the States’ sovereign immunity by enacting § 1983 and New York
has not waived its immunity.”); Goonewardena v. New York, 475 F. Supp. 2d 310, 329
(S.D.N.Y. 2007) (“The State of New York has not waived its sovereign immunity in regard to
[§] 1983 actions nor has its sovereign immunity been abrogated.”). Accordingly, the claims
asserted against the D.A. Defendants in their official capacities are barred by the Eleventh

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Amendment. See Brims v. Ramapo Police Dep’t, No. 11-CV-712, 2011 WL 7101233, at *7
(S.D.N.Y. Dec. 23, 2011) (“[A]bsent any indication that the State or the District Attorney’s
Office has waived its rights under the Eleventh Amendment—and there is no evidence that it
has—the Eleventh Amendment bars [the] plaintiff’s claims against [an assistant district attorney]
in his official capacity.”); Eisenberg v. Dist. Attorney of County of Kings, 847 F. Supp. 1029,
1035 (E.D.N.Y. 1994) (“[T]o the extent that [the plaintiff] has asserted claims against the
[d]istrict [a]ttorney in his official capacity, the claims against the [d]istrict [a]ttorney are
construed as claims against the state and must be dismissed as barred by the Eleventh
Amendment.”).
Additionally, “[a]ll prosecutors are afforded absolute immunity under federal law for
actions undertaken as part of the prosecution.” Brims, 2011 WL 7101233, at *7; see also
Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005) (“It is by now well established
that a state prosecuting attorney who acted within the scope of his duties in initiating and
pursuing a criminal prosecution is immune from a civil suit for damages under § 1983.” (citation
and internal quotation marks omitted)). “A prosecutor engaging in prosecutorial activities
intimately associated with the judicial phase of the criminal process loses the absolute immunity
he would otherwise enjoy only if he acts without any colorable claim of authority.” Shmueli, 424
F.3d at 237 (internal quotation marks omitted). “This immunity exists regardless of the
unreasonableness of the action or the actual malice in deciding to prosecute.” Brims, 2011 WL
7101233, at *7. Here, Plaintiff alleges that the D.A. Defendants authorized a search that Plaintiff
contends was impermissible. (See Am. Compl. ¶¶ 1–2.) It is not entirely clear what role the
D.A. Defendants played in the process leading up to the issuance of the search warrant, but even
if they drafted the warrant, district attorneys are “entitled to absolute immunity for the . . .

7

function of drafting and obtaining [a] search warrant.” E. Coast Novelty Co. v. City of New York,
809 F. Supp. 285, 291 (S.D.N.Y. 1992); see also Kanciper v. Lato, 989 F. Supp. 2d 216, 230
(E.D.N.Y. 2013) (holding that an attorney’s “role in the procurement of [a] search warrant[] is
protected by absolute immunity”).2 Accordingly, the claims asserted against the D.A.
Defendants are barred by the doctrine of prosecutorial immunity.
Because Plaintiff’s claims against the D.A. Defendants are barred by the Eleventh
Amendment and prosecutorial immunity, the Court need not consider the validity of the warrant
to adjudicate these claims.3
2. The Claims Asserted Against Officer Fantasia
Plaintiff asserts two related claims against Officer Fantasia: (1) Officer Fantasia violated
the Fourth Amendment when he searched Plaintiff’s residence, and (2) during the course of the
search, Officer Fantasia damaged Plaintiff’s property. The Court will address each of these
contentions in turn.

2

There is nothing in the Complaint or Amended Complaint suggesting that Plaintiff is
alleging that the D.A. Defendants participated in the execution of the search itself, which would
not be covered by prosecutorial immunity. See Kanciper, 989 F. Supp. 2d at 230–31 (holding
that a prosecutor was not entitled to immunity for “taking part in the search of the [p]laintiff’s
property,” because searches and seizures are “normally police functions” and “do not become
prosecutorial functions merely because a prosecutor has chosen to participate” (internal
quotation marks omitted)).
3

In his submissions, Plaintiff alleges that five indictments were filed against him, (see
Compl. § III.C), and that “[t]he district attorney” filed a “weapons charge” against Plaintiff as a
ploy to coerce Plaintiff into pleading guilty to certain drug trafficking offenses. (Pl.’s Opp’n to
Defs.’ Mots. To Dismiss 1 (Dkt. No. 41).) These contentions do not defeat the D.A. Defendants’
entitlement to absolute immunity because “it has long been settled that prosecutors are entitled to
immunity from § 1983 liability for initiating a prosecution.” Hill v. City of New York, 45 F.3d
653, 661 (2d Cir. 1995).
8

a. Validity of the Search
Plaintiff asserts that Officer Fantasia violated the Fourth Amendment during the search of
his home on September 15, 2015. (See Compl. § III.C.) Plaintiff alleges alternatively that
Officer Fantasia either provided a false search warrant to Judge Simon, which Judge Simon then
signed, (see id. (“[I]’m also accusing Honorable Judge of signing a false search warrant . . . .”)),
or that Officer Fantasia created a fake search warrant upon which he forged Judge Simon’s
signature, (see id. (“These people falsely made a search warrant [and] forged a signature to enter
my home . . . .”)). Officer Fantasia contends that Plaintiff has not alleged a viable Fourth
Amendment claim because the search warrant was actually signed by Judge Simon and the
warrant application was supported by probable cause. (See Def. Fantasia’s & Judge Simon’s
Mem. of Law in Supp. of Mot. To Dismiss (“Defs.’ Mem.”) 5–7 (Dkt. No. 38).)
No Party disputes that a search warrant authorizing the search of Plaintiff’s residence
actually exists. Indeed, Plaintiff has attached a copy of the search warrant to the Complaint.
(See Compl. Ex. A.) The question, then, is whether the warrant is valid. “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 internal 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).
“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

9

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). “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) (internal 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.”).
Here, under one theory of the case, Plaintiff alleges that the search warrant contained
falsehoods. (See Compl. § III.C.) Plaintiff has not, however, identified any false statements in
the warrant or the warrant application. “Unsupported conclusory allegations of falsehood or
material omission cannot support a challenge to the validity of [a] warrant; rather, the plaintiff
must make specific allegations supported by an offer of proof.” Calderon v. City of New York,
138 F. Supp. 3d 593, 604 (S.D.N.Y. 2015) (internal quotation marks omitted).4 Plaintiff’s bald
assertion that the warrant contained false statements does not plausibly state a claim that Officer

This requirement is derived from the “substantial preliminary showing” that a criminal
defendant must make to suppress the fruits of a court-authorized search. Rivera, 928 F.2d at 604
(quoting Franks v. Delaware, 438 U.S. 154, 155 (1978)); see also Velardi v. Walsh, 40 F.3d 569,
573 (2d Cir. 1994) (noting that the Franks standard applies to challenges to a search warrant in a
civil case).
4

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Fantasia “knowingly and intentionally, or with reckless disregard for the truth, made a false
statement.” Lynch, 567 F. Supp. 2d at 466 (internal quotation marks omitted). Accordingly,
Plaintiff’s claim that the warrant contained false statements is dismissed for failure to state a
claim.5
Under an alternative theory, Plaintiff claims that Officer Fantasia forged the warrant and
Judge Simon’s signature. (See Compl. § III.C.) This allegation is sufficient to state a claim
because “searches and seizures inside a home without a warrant are presumptively
unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (internal quotation marks
omitted). Officer Fantasia argues that the Court should reject this allegation because (1) Officer
Fantasia has proof that the warrant was actually signed by Judge Simon, (see Defs.’ Mem. 7),
and (2) Plaintiff’s allegations are internally inconsistent because Plaintiff alleges that Officer
Fantasia forged Judge Simon’s signature and that Judge Simon actually signed the warrant, (see
id.; see also Compl. § III.C (“These people falsely made a search warrant & forged a signature to
enter my home . . . .”); id. (“I’m also accusing Honorable Judge of signing a false search warrant
. . . .”)).
Officer Fantasia’s proof that the warrant was actually signed by Judge Simon consists of
an affidavit from the Village of Spring Valley Court Clerk, Elsie Cheron (“Cheron”), which
attaches a copy of the search warrant and states that search warrants on file in the clerk’s office
are received directly from the Village of Spring Valley Justice. (See Att’y Decl. in Supp. of
Defs.’ Mot. To Dismiss Ex. C ¶ 4 (Dkt. No. 37).) The Court, however, cannot consider the

5

Officer Fantasia argues that the Court should consider his sworn warrant application as
proof of the fact that the warrant was indeed supported by probable cause. (See Defs.’ Mem. 6.)
The Court declines this invitation because the warrant application was not “appended to the
complaint or incorporated in the complaint by reference.” Leonard F., 199 F.3d at 107 (internal
quotation marks omitted).
11

contents of this affidavit at this stage of the litigation. In deciding a motion to dismiss, the 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., 199 F.3d at 107 (internal quotation marks omitted).
Thus, Officer Fantasia’s contention that the warrant was actually signed by Judge Simon does
not prove meritorious at this stage.6
Officer Fantasia’s second argument also is without merit. “It is well-settled, pursuant to
Rule 8(d)(2) of the Federal Rules of Civil Procedure, that a party is entitled to plead inconsistent
positions in the alternative.” Henry v. U.S. Dep’t of Homeland Sec., No. 10-CV-2164, 2011 WL
477719, at *7 (E.D.N.Y. Feb. 2, 2011); see also Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d
Cir. 1994) (holding that under the predecessor version of Rule 8(d)(2), “[t]he inconsistency may
lie either in the statement of the facts or in the legal theories adopted” (internal quotation marks
omitted)); 2004 Stuart Moldaw Tr. v. XE L.I.F.E., LLC, 642 F. Supp. 2d 226, 240 (S.D.N.Y.
2009) (“I do note, however, that while Rule 8(d)(2) permits parties to plead inconsistent factual
allegations, an alternative pleading is nonetheless subject to the terms of Rule 11.”). The Court
construes Plaintiff to be proceeding under two separate theories of the case: (1) Judge Simon
signed a warrant containing falsehoods, or (2) Officer Fantasia forged the judge’s signature.
Given the Second Circuit’s admonition that the Court interpret a plaintiff’s submissions “to raise
the strongest arguments that they suggest,” Triestman, 470 F.3d at 474, the Court will accept as
true for purposes of the Motions that Officer Fantasia forged Judge Simon’s signature.

Although the Court cannot consider Cheron’s affidavit at this stage of the proceeding,
the Court notes that it may present an insurmountable obstacle to Plaintiff’s claims at summary
judgment, because Plaintiff has not explained on what basis he learned that Judge Simon’s
signature was forged.
6

12

Moreover, the fact that Officer Fantasia allegedly forged Judge Simon’s signature appears to be
Plaintiff’s main contention because he reiterates it throughout his submissions. (See Am. Compl.
¶ 3 (“Said former judge’s alleged signatures appear to be forged, thus rendering the alleged
search warrant void in its entirety.”); Pl.’s Opp’n to Defs.’ Mots. To Dismiss 2 (Dkt. No. 41)
(“Plaintiff maintains the illegality and ultimate ‘forgery’ of the search warrant in question.”).)
Accordingly, the Court declines to dismiss the Fourth Amendment claim Plaintiff has asserted
against Officer Fantasia.7
b. Property Damage
“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) (alternation and internal quotation marks

7

Officer Fantasia additionally asserts that he is entitled to qualified immunity. (See
Defs.’ Mem. 9–10.) “Under the doctrine of qualified immunity, government actors may be
shielded from liability for civil damages if their conduct did not violate [the] plaintiff’s clearly
established rights, or if it would have been objectively reasonable for the official to believe that
his conduct did not violate [the] plaintiff’s rights.” Rodrigues v. Inc. Village of Mineola, 16-CV1275, 2017 WL 2616937, at *4 (E.D.N.Y. June 16, 2017) (internal quotation marks omitted).
The Court concludes that it is premature to determine whether Officer Fantasia is entitled to
qualified immunity because Plaintiff has alleged a violation of the Fourth Amendment—the use
of a forged search warrant—and it is not objectively reasonable for an officer to allegedly forge a
warrant and then use that forged warrant to conduct an illegal search. See id. at *5 (“Because the
evidence supporting a finding of qualified immunity is normally adduced during the discovery
process and at trial, the defense of qualified immunity usually cannot support the grant of a Fed.
R. Civ. P. 12(b)(6) motion for failure to state a claim upon which relief can be granted.”
(alternation and internal quotation marks omitted)). Of course, Officer Fantasia is free to reassert
this defense at a later stage of the proceedings.
13

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) (internal quotation
marks omitted). Here, Plaintiff alleges only that Officer Fantasia “damaged” his property, but
does not identify any of the property that was damaged. (Compl. § III.C.) Although the
Complaint is completely devoid of an allegation that something more than ordinary disarray and
damage occurred, Officer Fantasia’s contentions regarding this claim are premised entirely on
the fact that the search of Plaintiff’s residence was legal. (See Defs.’ Mem. 7–8.)8 As the Court
has concluded that Plaintiff has alleged a plausible Fourth Amendment violation, the Court
declines to dismiss this claim.9

8

Indeed, every case cited by Officer Fantasia involves property damage occurring during
execution of a valid search warrant or an otherwise lawful search. See Vaher v. Town of
Orangetown, 133 F. Supp. 3d 574, 591 (S.D.N.Y. 2015) (describing destruction of property
occurring “in the course of an otherwise valid search,” including while “executing search
warrants” (internal quotation marks omitted)); Green v. City of Mount Vernon, 96 F. Supp. 3d
263, 290 (S.D.N.Y. 2015) (analyzing standards for “property damage occurring in a lawful
search” and concluding that plaintiff plausibly alleged property damage “beyond what was
necessary to effectuate [the] search . . . pursuant to the terms of the warrant” (alteration and
internal quotation marks omitted)); Dockery v. Tucker, No. 97-CV-3584, 2008 WL 2673307, at
*10 (E.D.N.Y June 26, 2008) (collecting cases involving property damage occurring during
execution of search warrants). The Court is aware of no authority excusing officers from
liability for property damage occurring during a warrantless or otherwise unlawful search. Cf.
Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999) (“Victims of unreasonable
searches . . . may recover damages directly related to the invasion of their privacy—including . . .
property damage.”).
The Court does not construe Plaintiff’s Complaint or Amended Complaint to be
asserting any additional causes of action against Officer Fantasia, as Officer Fantasia is alleged
only to have participated in the search of Plaintiff’s residence. (See generally Compl.) Although
Plaintiff mentions that five indictments were issued based on illegal wiretaps, (id. § III.C),
Plaintiff has not alleged that Officer Fantasia participated in those events.
9

14

3. The Claims Asserted Against Judge Simon
Plaintiff alleges that Judge Simon directed the police to search Plaintiff’s home and that
Judge Simon signed a warrant containing false statements. (See Compl. § III.C.)10 Judge Simon
argues that the claims asserted against him must be dismissed because he is entitled to judicial
immunity. (See Defs.’ Mem. 10–11.)
“Since the seventeenth century, the common law has immunized judges from damage
claims arising out of their judicial acts.” Tucker v. Outwater, 118 F.3d 930, 932 (2d Cir. 1997).
“The cloak of immunity is not pierced by allegations of bad faith or malice, even though
unfairness and injustice to a litigant may result on occasion,” id. (citation and internal quotation
marks omitted), and can be overcome “only if the court is alleged to have taken non-judicial
actions or if the judicial actions taken were in the complete absence of all jurisdiction,” Radford
v. Crimi, No. 16-CV-6441, 2017 WL 1106932, at *1 (W.D.N.Y. Mar. 23, 2017) (internal
quotation marks omitted); see also Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir. 2005) (“[I]f
the relevant action is judicial in nature, the judge is immune so long as it was not taken in the
complete absence of jurisdiction.”).
During the time giving rise to this Action, Judge Simon served as Village Justice for the
Village of Spring Valley.11 It is within this capacity that Judge Simon allegedly signed the
search warrant. Judge Simon is entitled to judicial immunity for these actions because “the
issuance of a search warrant is unquestionably a judicial act.” Burns v. Reed, 500 U.S. 478, 492
(1991); see also Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009) (“Actions that are judicial in

Despite Plaintiff’s allegations to the contrary, the Court assumes for purposes of this
section that Judge Simon signed the search warrant. Plaintiff’s other theory, that Officer
Fantasia forged Judge Simon’s signature, does not plausibly state a claim against Judge Simon.
10

11

Judge Simon no longer serves in this capacity. (See Compl. Ex. D.)
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nature include issuing a search warrant . . . .”). Accordingly, the claims asserted against Judge
Simon are dismissed.
4. Plaintiff’s State Law Claims
Plaintiff also may be attempting to assert causes of action under state law. “State claims
brought under state law in federal court are subject to state procedural rules.” Coggins v. County
of Nassau, 988 F. Supp. 2d 231, 250 (E.D.N.Y. 2013). New York General Municipal Law § 50-i
“provides that a plaintiff must commence any action against a county for ‘personal injury’ within
one year and [90] days from the claim’s accrual.” Id. (quoting N.Y. Gen. Mun. Law § 50-i(1)).
Claims for assault, battery, and false imprisonment are subject to this requirement. See id. at 250
n.11 (noting that personal injury includes “malicious prosecution, assault, battery, false
imprisonment, or other actionable injury to the person either of the plaintiff, or of another”).
Section 50-e(1) “requires that a notice of claim be filed within [90] days of the incident giving
rise to the claim.” Id. These same conditions apply to suits against employees of a county or
municipality. See Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 396 (S.D.N.Y.
2013) (noting that “filing a [n]otice of [c]laim with a municipality is a condition precedent to
commencing a tort claim against any employee of that municipality”). Plaintiffs are required to
plead compliance with these sections in their complaints. See Horvath v. Daniel, 423 F. Supp.
2d 421, 423 (S.D.N.Y. 2006) (“A plaintiff must plead in the complaint that: (1) the [n]otice of
[c]laim was served; (2) at least [30] days has elapsed since the [n]otice of [c]laim was filed and
before the complaint was filed; and (3) in that time the defendant has neglected to or refused to
adjust or to satisfy the claim.”).
Plaintiff has not alleged that he filed a notice of claim prior to commencing this Action.
Therefore, any claims premised on state law are dismissed. See Smith, 2010 WL 3397683, at

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*15 (“The notice of claim requirements are strictly construed, and a plaintiff’s failure to comply
with the mandatory New York statutory notice-of-claim requirements generally results in
dismissal of his claims.” (internal quotation marks omitted)).
5. Plaintiff’s Other Claims
Plaintiff asserts that his Eighth Amendment rights are being violated and that he is being
unlawfully imprisoned. (See Compl. § III.C.) On this point, Plaintiff alleges only that his rights
are being violated because he is being imprisoned on the basis of illegally seized evidence. (See
id.) Plaintiff has not, however, alleged the personal involvement of any of the Defendants named
in the Complaint in the conduct giving rise to these alleged violations. Accordingly, Plaintiff’s
Eighth Amendment and false imprisonment claims are dismissed. See Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is well settled that, in order to establish a
defendant’s individual liability in a suit brought under § 1983, a plaintiff must show, inter alia,
the defendant’s personal involvement in the alleged constitutional deprivation.” (italics
omitted)); Lovick v. Schriro, No. 12-CV-7419, 2014 WL 3778184, at *3 (S.D.N.Y. July 25,
2014) (dismissing § 1983 claims where the complaint contained “no allegations whatsoever
indicating [the defendants] were personally involved in the purported violations” of the
plaintiff’s constitutional rights); Robinson v. City of New York, No. 10-CV-4947, 2011 WL
318093, at *3 (E.D.N.Y. Jan. 31, 2011) (noting that a plaintiff “must name individual defendants
who were personally involved in the wrongdoing or misconduct” in order to state a claim under
§ 1983), reconsideration denied, 2011 WL 795734 (E.D.N.Y. Mar. 1, 2011).12

12

It is possible that Plaintiff intended to assert these claims against the D.A. Defendants.
If so, these claims would be barred by the doctrine of prosecutorial immunity. See Shmueli, 424
F.3d at 236 (“It is by now well established that a state prosecuting attorney who acted within the
scope of his duties in initiating and pursuing a criminal prosecution is immune from a civil suit
for damages under § 1983.” (citation and internal quotation marks omitted)).
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III. Conclusion
For the foregoing reasons, the D.A . Defendants' Motion is granted, and the Motion
brought on behalf of Officer Fantasia and Judge Simon is granted in part and denied in part.
Plaintiff may, within 30 days from the date of this Opinion, file an amended pleading addressing
the deficiencies identified above. Plaintiff is advised that the failure to comply with this deadline
will likely result in the dismissal of the claims asserted against the D.A Defendants and Judge
Simon with prejudice. If Plaintiff chooses to file an amended pleading, he must specify the role
that each individual played in the conduct that allegedly violated his rights. Plaintiff must
include all of his allegations in the amended pleading and may not rely on later submissions to
supplement the factual allegations. If Plaintiff does not file an amended pleading, the case will
proceed onl y on the claim that Officer Fantasia violated Plaintiffs Fourth Amendment rights by
forging Judge Simon ' s signature on a search warrant and searching Plaintiffs residence in
reliance on the forged warrant. In the event that Plaintiff does not file an amended pleading,
Officer Fantasia shall file an Answer within 60 days from the date of this Opinion.
The Clerk of Court is directed to terminate the pending Motions, (Dkt. Nos. 30, 36), and
to mail a copy of thi s Opinion to Plaintiff.

SO ORDERED.
Dated: SeptemberID, 2017
White Plains, New York

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