Conklin v. Morris

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LARRAYSHA CONKLIN,

Plaintiff,

MEMORANDUM & ORDER

- against - 18-CV-3805 (PKC) (CLP)

POLICE OFFICER SARA MORRIS and

POLICE OFFICERS JOHN DOE 1-10, all of

whom are sued individually and in their official

capacities,

Defendants.

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PAMELA K. CHEN, United States District Judge:

New York City Police Department (“NYPD”) Sergeant Sarah Morris seeks summary

judgment against Plaintiff Larraysha Conklin, who brought this action under 42 U.S.C. § 1983.

For the following reasons, Defendant Morris’s motion is granted and this case is dismissed.1

BACKGROUND

I. Factual Background2

On July 1, 2015, and for a period of time prior thereto, Plaintiff and her four children

resided on the first floor of 117-18 219th Street, Queens, New York (the “Premises”).

(Defendant’s Response to Plaintiff’s 56.1 Statement (“Pl. 56.1”), Dkt. 57, ¶ 3.) The Premises

consists of three floors: a basement, first floor, and second floor. (Certificate of Occupancy, Dkt.

1 The John Doe Defendants have not been identified or served. As discussed further below,

although the motion for summary judgment was filed on behalf of Defendant Morris only, the

Court sua sponte dismisses all claims against the John Doe Defendants as well.

2 The following facts, taken from the parties’ Local Civil Rule 56.1 statements and relevant

parts of the summary judgment record, are undisputed unless otherwise noted. To the extent “the

record does not support certain critical assertions” in the parties’ 56.1 statements, the Court has

disregarded those unsupported assertions. Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir.

2003).

24-1.) The front door allows entrance to the first floor. (Pl. 56.1, Dkt. 57 ¶ 5.) There is access to

the basement through the first-floor kitchen (id. ¶ 7), and an interior door within one of the first-

floor bedrooms provides access to a stairway to the second floor (id. ¶ 8). The second floor is also

accessible from an outside doorway on the side of the Premises, which has a separate doorbell.

(Id. ¶¶ 10–11.) In July 2015, the basement was occupied by Plaintiff’s brother, Lawrence Conklin,

while the second floor was occupied by a separate tenant, whom Plaintiff did not know. (Id. ¶¶ 13–

15; Defendant’s 56.1 Statement (“Def. 56.1”), Dkt. 55, ¶ 19.)

Beginning in the spring of 2014, Defendant Morris, an NYPD police officer, was assigned

to investigate potential financial crimes occurring on the Premises. (Pl. 56.1, Dkt. 57, ¶¶ 2, 18.)

Plaintiff was not the subject of the investigation. (Id. ¶ 19.) During the investigation, the NYPD

utilized a confidential informant, who had been employed in obtaining five separate search

warrants that resulted in recovered contraband. (Id. ¶ 20; Def. 56.1, Dkt. 55, ¶¶ 4–5.) On three

separate occasions, the confidential informant entered the first floor of the Premises through the

front door, proceeded to the basement, and purchased forged credit cards in exchange for cash.

(Pl. 56.1, Dkt. 57, ¶ 20; Def. 56.1, Dkt. 55, ¶¶ 5–6.) On one occasion, the confidential informant

told Defendant Morris that the forged credit card was purchased from an individual named

“Lawrence.” (Def. 56.1, Dkt. 55, ¶ 7.) The investigation revealed that Plaintiff’s brother is

Lawrence Conklin. (Id. ¶ 19.) Defendant Morris subsequently showed the confidential informant

a picture of Lawrence Conklin and the confidential informant identified Lawrence Conklin as the

person who had sold the forged credit card to the informant. (Search Warrant Affidavit, Dkt. 54-

2, at ECF3 7.)

3 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

In preparation for a search warrant application, Defendant Morris performed several public

record database inquiries, including searches for domestic incident reports, arrest reports,

complaint reports, warrants, and licenses for weapons in connection with the Premises. (Def. 56.1,

Dkt. 55, ¶ 10; Database Query Report, Dkt. 54-4.) Additionally, Defendant Morris searched

Consolidated Edison (“ConEd”) power service records, which showed that there were two separate

ConEd meters on the Premises—one for the first floor and another for the second floor—although

both were in the name of Julene Mercano, Plaintiff’s mother. (Def. 56.1, Dkt. 55, ¶¶ 10, 16; see

also ConEd Records, Dkt. 60-11, Exhibit K.) Defendant Morris did not search for a Certificate of

Occupancy. (Pl. 56.1, Dkt. 57, ¶ 22.) Defendant Morris and another NYPD officer, Sergeant

Michael Sykora, also conducted reconnaissance of the Premises. (Def. 56.1, Dkt. 55, ¶ 9.) The

officers observed that the Premises had one mailbox, one driveway, and one street number. (Id.

¶ 12.) While there was a side door with a doorbell, the door neither had a separate mailbox nor an

address marker. (Id. ¶ 13.)

On June 30, 2015, Defendant Morris appeared before the Queens County Criminal Court,

where she applied for a search warrant. (Pl. 56.1, Dkt. 57, ¶ 26; Def. 56.1, Dkt. 55, ¶ 23.) In the

application, Defendant Morris listed the Premises as a “single family detached brick house.”

(Search Warrant Affidavit, Dkt. 54-2, at ECF 2.) The search warrant affidavit provided

information regarding the investigation of the Premises, including the purchase of forged credit

cards by the confidential informant. (Search Warrant Affidavit, Dkt. 54-2, at ECF 4–8.) The

magistrate judge issued a search warrant for the Premises to search and seize any computers,

computer related equipment, external storage media, portable storage media, credit card

applications, and various types of documents and records. (Pl. 56.1, Dkt. 57, ¶ 28.)

On July 1, 2015, at 7:20 a.m., an Emergency Service Unit (“ESU”) team, executing the

warrant, forcibly entered Plaintiff’s home through the front door. (Id. ¶ 29.) Plaintiff and her

family were asleep when the ESU team entered. (Id. ¶¶ 31–33.) Plaintiff, her children, and her

two younger sisters were asleep on the first floor. (Id. ¶¶ 31–32.) Plaintiff’s mother, Julene

Mercano, who was visiting Plaintiff at the time, was asleep in the basement. (Id. ¶ 33.) Plaintiff’s

brother, Lawrence Conklin, who resided in the basement, was not present. (Def. 56.1, Dkt. 55,

¶ 19.) Once the Premises were secured, Defendant Morris and other officers entered to conduct a

search of the first floor. (Id. ¶ 30.) Plaintiff and her family were initially confined in the living

room, but were later removed to the backyard. (Pl. 56.1, Dkt. 57, ¶¶ 36–37.) Plaintiff and Mercano

were handcuffed after being removed to the backyard. (Id. ¶ 38.)

During the search of the first floor, Defendant Morris and other officers found and seized

several designer handbags, $397 in cash, credit cards, laptops, phones, and an Apple watch. (Def.

56.1, Dkt. 55, ¶ 32.) In the basement, officers found and seized more designer handbags, $10,000

in cash, cell phones, mail, a chemical storage tank that was empty, and bank documents. (Pl. 56.1,

Dkt. 57, ¶ 40; Def. 56.1, Dkt. 55, ¶ 33.) The officers also found two electricity meters. (Pl. 56.1,

Dkt. 57, ¶ 16.) ConEd representatives who arrived at the Premises during the search determined

that there was approximately $64,792.73 in unmetered electrical service diverted from the first

floor to the second floor of the Premises. (Id. ¶ 47; Preliminary Estimated Bill for Unmetered

Service, Dkt. 60-12.)

After conducting a search of the first floor and basement, officers attempted to reach the

second floor. The interior door that led from a first-floor bedroom to the second floor was

barricaded by heavy furniture and was inaccessible. (Pl. 56.1, Dkt. 57, ¶¶ 8–9.) The ESU team

and Defendant Morris exited the Premises and went to the side door. (Id. ¶¶ 42–43.) Because

Plaintiff did not have a key for this door, the ESU team forced entry into the second floor. (Id.

¶¶ 12, 43.) Upon entry, officers found and seized 41 marijuana plants, with an aggregate weight

of approximately 10 pounds, and equipment and chemicals used to grow marijuana. (Id. ¶ 45.)

Defendant Morris arrested Plaintiff for grand larceny in the second degree (N.Y. Penal Law

§ 155.40), criminal possession of marijuana in the first degree (N.Y. Penal Law § 221.30), theft of

services (N.Y. Penal Law § 165.15), endangering the welfare of a child (N.Y. Penal Law

§ 260.10), and criminally using drug paraphernalia in the second degree (N.Y. Penal Law

§ 220.50). (Def. 56.1, Dkt. 55, ¶ 38; Arrest Report, Dkt. 54-28.) Plaintiff was subsequently

charged with grand larceny in the second degree (N.Y. Penal Law § 155.40-1), criminal possession

of marijuana in the first degree (N.Y. Penal Law § 221.30), and two counts of theft of services

(N.Y. Penal Law § 165.15-4A and N.Y. Penal Law § 165.15-7). (Pl. 56.1, Dkt. 57, ¶ 48; Criminal

Complaint, Dkt. 60-16, at ECF 2–3.)

Following the arrest, Defendant Morris filed a Report of Suspected Child Abuse or

Maltreatment form, notifying Susan Tucker from the Administration for Children’s Services

(“ACS”) of the “marijuana growhouse.” (Pl. 56.1, Dkt. 57, ¶ 50; Report to ACS, Dkt. 60-8.) ACS

was also notified of Plaintiff’s arrest. (Pl. 56.1, Dkt. 57, ¶¶ 51–52.) Plaintiff’s children were

removed from her custody for approximately nine months following the arrest. (Id. ¶ 56.)

Defendant Morris gave testimony during Ms. Mercano’s family court proceeding regarding

visitation rights with her grandchildren, Plaintiff’s children. (Id. ¶ 54.)

On March 2, 2016, Plaintiff received an adjournment in contemplation of dismissal,

pursuant to N.Y. Crim. Proc. Law § 170.55, and was required to participate in a supervised release

program to regain custody of her children. (Id. ¶¶ 58–60; Def. 56.1, Dkt. 55, ¶ 43.) Plaintiff

successfully completed the program and regained custody of her children on March 29, 2016. (Pl.

56.1, Dkt. 57, ¶¶ 60–61.)

On June 29, 2018, Plaintiff initiated the instant action against Defendants, alleging an

unlawful search and false arrest, in violation of her rights under the Fourth and Fourteenth

Amendments. (Id. ¶ 1.)

II. Plaintiff’s Failure to Provide a Compliant 56.1 Statement

Local Rule 56.1(b) requires that “[t]he papers opposing a motion for summary judgment

. . . include 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.” E.D.N.Y. Local Rule 56.1(b). Despite being represented by counsel,

Plaintiff did not provide a 56.1 Statement that complies with the Local Rule. Defendant Morris

therefore asks that the Court deem the facts contained in Defendant’s 56.1 Statement admitted.

(Defendant’s Reply, Dkt. 58, at ECF 6.) The Court declines to do so.

“A district court has broad discretion to determine whether to overlook a party’s failure to

comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)

(citations omitted). “[W]hile a court is not required to consider what the parties fail to point out

in their Local 56.1 statements, it may in its discretion opt to conduct an assiduous review of the

record even where one of the parties has failed to file such a statement.” Id. (internal quotation

marks and citations omitted); cf. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241,

242 (2d Cir. 2004) (“Even when a motion for summary judgment is unopposed, the district court

is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law.”).

Thus, although Plaintiff has failed to comply with Local Rule 56.1(b), she did provide her own

factual account of the case and attached relevant non-duplicative exhibits. (See generally

Plaintiff’s Brief (“Pl. Br.”), Dkt. 59); Thigpen v. Bd. of Trs. of Local 807 Labor-Mgmt. Pension

Fund, No. 18-CV-162 (PKC) (LB), 2019 WL 4756029, at *1 (E.D.N.Y. Sept. 29, 2019) (declining

to deem defendants’ 56.1 statement admitted when plaintiff “provide[d] her own factual account

of the case and attached numerous, non-duplicative exhibits”). The Court will “examine the record

to determine whether there are any triable issues of material fact, notwithstanding the fact that

[Plaintiff] did not follow Local Civil Rule 56.1.” Cain v. Esthetique, 182 F. Supp. 3d 54, 63

(S.D.N.Y. 2016).

STANDARD OF REVIEW

Summary judgment is appropriate where the submissions of the parties, taken together,

“show[] 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 Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251–52 (1986) (The summary judgment inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.”). “A fact is material if it ‘might affect the outcome of the suit under

the governing law.’” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 13 F.4th 247, 259

(2d Cir. 2021) (quoting Anderson, 477 U.S. at 248). “To present a ‘genuine’ issue of material fact

sufficient to defeat a motion for summary judgment, the record must contain contradictory

evidence ‘such that a reasonable jury could return a verdict for the nonmoving party.’” Horror

Inc. v. Miller, 15 F.4th 232, 241 (2d Cir. 2021) (quoting Anderson, 477 U.S. at 248).

“[A]t the summary judgment stage, the district court is not permitted to make credibility

determinations or weigh the evidence. . . .” Kee v. City of New York, 12 F.4th 150, 166 (2d Cir.

2021). It must “consider the record in the light most favorable to the non-movant” and “resolve

all ambiguities and draw all factual inferences in favor of the non-movant ‘if there is a “genuine”

dispute as to those facts.’” Loreley, 13 F.4th at 259 (quoting Scott v. Harris, 550 U.S. 372, 380

(2007)).

“The moving party bears the burden to demonstrate the absence of any genuine issues of

material fact. . . .” Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166 (2d Cir. 2016). Once

this burden is met, the burden shifts to the nonmoving party to proffer some evidence establishing

the existence of a question of material fact that must be resolved at trial. See Spinelli v. City of

New York, 579 F.3d 160, 166–67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322–23 (1986). A mere “scintilla of evidence” in support of the non-moving party is insufficient;

“there must be evidence on which the jury could reasonably find for the non-movant.” Hayut v.

State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003). That is, “the nonmoving party must come

forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese,

298 F.3d 156, 160 (2d Cir. 2002) (alteration and emphasis omitted).

“A party asserting that a fact . . . is genuinely disputed must support the assertion by: (A)

citing to particular parts of materials in the record,” or “(B) showing that the materials cited do not

establish the absence . . . of a genuine dispute. . . .” Fed. R. Civ. P. 56(c). “If a party fails to

properly support an assertion of fact or fails to properly address another party’s assertion of fact

as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the

motion” and “grant summary judgment if the motion and supporting materials—including the facts

considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). Thus, “a

non-response runs the risk of unresponded-to statements of undisputed facts proffered by the

movant being deemed admitted.” Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014). Even

when a summary judgment motion is unopposed, however, the court may “rely on other evidence

in the record even if uncited,” and “must determine whether the legal theory of the motion is

sound.” Id.

DISCUSSION

I. Section 1983

Section “1983 does not confer any substantive rights, but merely provides a method for

vindicating federal rights elsewhere conferred.” Village of Freeport v. Barrella, 814 F.3d 594,

600 n.8 (2d Cir. 2016) (citation and internal quotation marks omitted). “To state a claim under

§ 1983, a plaintiff must allege that defendants violated plaintiff’s federal rights while acting under

color of state law.” McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014). “[P]ersonal

involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of

damages under § 1983.” Brandon v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019).

II. Unlawful Search

Defendant Morris seeks summary judgment on Plaintiff’s unreasonable search claim on

the basis that the search was conducted pursuant to a valid warrant. (Defendant’s Brief (“Def.

Br.”), Dkt. 56, at 6–11.) Plaintiff counters that the search warrant affidavit incorrectly identified

the Premises as a “single family dwelling” when it was in fact a multi-family dwelling. (Pl. Br.,

Dkt. 59, at 4.) Plaintiff further alleges that Defendant Morris lacked probable cause to search the

second floor apartment and therefore the search was unlawful. (Id. at 7.)

A. Legal Standard

The Fourth Amendment to the Constitution provides that “no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const. amend. IV; see also Fed. R. Crim.

P. 41.

1. The Affidavit

A Section 1983 plaintiff challenging a warrant affidavit on the ground that it deliberately

or recklessly misled the issuing judge regarding the basis of probable cause “must make the same

showing that is required at a suppression hearing” under Franks v. Delaware, 438 U.S. 154 (1978).

Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). Specifically, a plaintiff must make a

“substantial preliminary showing,” Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991)

(internal quotations and citation omitted), that “(1) the claimed inaccuracies or omissions are the

result of the affiant’s deliberate falsehood or reckless disregard for the truth; and (2) the alleged

falsehoods or omissions were necessary to the issuing judge’s probable cause or necessity finding,”

United States v. Rajaratnam, 719 F.3d 139, 146 (2d Cir. 2013) (brackets omitted) (quoting United

States v. Canfield, 212 F.3d 713, 717–18 (2d Cir. 2000)). The Second Circuit has made clear that

“Franks protects against omissions that are designed to mislead, or that are made in reckless

disregard of whether they would mislead, the magistrate.” Id. at 154 (quoting United States v.

Awadallah, 349 F.3d 42, 68 (2d Cir. 2003)).

When a warrant is based upon information obtained through the use of a confidential

informant, the Court must assess whether probable cause exists to support a search warrant “by

examining the ‘totality of the circumstances’ bearing upon [the] reliability” of information

obtained through the use of a confidential informant. United States v. Smith, 9 F.3d 1007, 1012

(2d Cir. 1993) (quoting Illinois v. Gates, 462 U.S. 213, 230–31 (1983)). “The ultimate inquiry is

whether, after putting aside erroneous information and [correcting] material omissions, ‘there

remains a residue of independent and lawful information sufficient to support [a finding of]

probable cause [or necessity].’” Canfield, 212 F.3d at 718 (quoting United States v. Ferguson,

758 F.2d 843, 849 (2d Cir. 1985)). To be sure, “[t]he Franks standard is a high one.” Rivera, 928

F.2d at 604.

2. The Particularity Requirement

The Warrants Clause of the Fourth Amendment “was intended as a bulwark against ‘the

“general warrant” abhorred by the colonists’ and protects against ‘a general, exploratory

rummaging in a person’s belongings.’” United States v. Cioffi, 668 F. Supp. 2d 385, 390 (E.D.N.Y.

2009) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). “To achieve its goal, the

Warrants Clause requires particularity and forbids overbreadth.” Id. Particularity “is the

requirement that the warrant must clearly state what is sought.” Id. (citation omitted).

“Particularity” concerns arise “when a warrant’s description of the place to be searched or the

items to be seized ‘is so vague that it fails reasonably to alert executing officers to the limits of

their search and seizure authority.’” United States v. Scully, 108 F. Supp. 3d 59, 90 (E.D.N.Y.

2015) (quoting United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011)). To satisfy the

“particularity” requirement, “[a] warrant must be sufficiently specific to permit the rational

exercise of judgment [by the executing officers] in selecting what items to seize.” United States

v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) (cleaned up).

In the context of inaccurate information on a search warrant, the Supreme Court has made

clear that “items of evidence that emerge after the warrant is issued have no bearing on whether or

not a warrant was validly issued.” Maryland v. Garrison, 480 U.S. 79, 85 (1987). Therefore, a

search warrant inaccurately identifying the place to be searched will nevertheless be “upheld

against a particularity challenge if the warrant described the structure as it was known or should

have been known to the officers after reasonable inquiry under the circumstances.” United States

v. Maneti, 781 F. Supp. 169, 179 (W.D.N.Y. 1991) (citing Garrison, 480 U.S. at 85).

3. Standing

“The [Fourth] Amendment protects persons against unreasonable searches of ‘their persons

[and] houses’ and thus indicates that the Fourth Amendment is a personal right that must be

invoked by an individual.” Minnesota v. Carter, 525 U.S. 83, 88 (1998); see also Katz v. United

States, 389 U.S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places”). The

Supreme Court has held that “capacity to claim the protection of the Fourth Amendment depends

. . . upon whether the person who claims the protection of the Amendment has a legitimate

expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143 (1978); see also

Rawlings v. Kentucky, 448 U.S. 98, 106 (1980). Accordingly, “[t]he text of the Amendment

suggests that its protections extend only to people in ‘their’ houses.” Carter, 525 U.S. at 89.

B. Analysis

1. Plaintiff Has Not Satisfied the High Bar Imposed by Franks

Plaintiff alleges that the search warrant affidavit incorrectly identified the Premises as a

“single family dwelling,” when it was in fact a multi-family dwelling, and that the misstatement

was necessary to the issuing judge’s finding of probable cause. (Pl. Br., Dkt. 59, at 4.) Plaintiff

relies on two sets of facts—one of which is in dispute—to suggest that Defendant intentionally, or

with reckless disregard for the truth, incorrectly identified the Premises as a single-family unit in

her search warrant affidavit. However, even taken as true, the facts Plaintiff relies on fail to make

the requisite showing under Franks.

First, Plaintiff emphasizes that Defendant failed to check the Certificate of Occupancy,

which identified the Premises as a multi-unit building, and did not personally review the ConEd

records showing that the Premises had two electrical meters. (Pl. 56.1, Dkt. 57, ¶¶ 22–23.)

However, failure to check these records, without more, cannot be considered a deliberate or

reckless disregard of the truth. United States v. Fennell, 496 F. Supp. 2d 279, 282 (S.D.N.Y. 2007)

(rejecting argument that failure to obtain utility records violates the Fourth Amendment if the

investigation was otherwise reasonable). This is because courts consider “the reasonableness of

law enforcement’s total inquiry,” not isolated records checks. Id. Defendant Morris undertook

other investigatory measures, including the reconnaissance conducted by Defendant Morris and

Sergeant Sykora, which revealed that the Premises has a single house number, driveway, and

mailbox. (Def. 56.1, Dkt. 55, ¶ 9.) The Court’s review of the photographs of the Premises confirm

these observations. (See Photographs of the Premises, Dkts. 54-7, 54-8.) And although the ConEd

records indicated two separate meters, they were both under a single account, suggesting, in light

of the other evidence, that the Premises was a single-family residence. See, e.g., United States v.

Gibeault, No. 20-CR-1003, 2021 WL 5816138, at *3 (2d Cir. Dec. 8, 2021) (upholding warrant as

valid because public records did not indicate the property was a multi-family dwelling and there

was one mailbox and one driveway); United States v. Santore, 290 F.2d 51, 66 (2d Cir. 1960) (en

banc) (upholding search warrant that described dwelling as a one-family residence because agents

had no reason to know it was actually subdivided into two units), cert. denied, 365 U.S. 834 (1961);

United States v. Maneti, 781 F. Supp. 169, 179–80 (W.D.N.Y. 1991) (“[I]f the building in question

appears to be a single-family structure and the investigating officers neither knew nor had reason

to know of the structure’s actual multiple-occupancy character until execution of the warrant was

under way, then the warrant is not defective for failing to specify a particular subunit.”).

Second, Plaintiff states that Defendant Morris had been at the Premises on two occasions

in 2009. (Pl. 56.1, Dkt. 57, ¶¶ 24–25.) Plaintiff asserts that “Defendant had entered into the

second-floor apartment on at least one of these occasions.” (Id.) Even taken as true, this fact does

not help Plaintiff’s argument. The related police reports reveal that in April 2009, Defendant

Morris entered an NYPD complaint report regarding a visit to the Premises in response to a missing

person call from Julene Mercano, Plaintiff’s mother, who was worried about the whereabouts of

her then-foster daughter (not Plaintiff). (Police Reports, Dkt. 60-19.) And in December 2009,

Defendant Morris visited the Premises in response to two domestic incident calls, also related to a

conflict between Julene Mercano and her foster-daughter. (Id.) Notably, both reports record the

address of the Premises without any references to separate apartment units and there is no evidence

in the record to suggest that Defendant Morris entered the second floor of the Premises from the

side door (assuming she entered the second floor at all) or that she inspected the Premises from

the inside, such that she would have been able to determine that this was a multi-family house with

a separate entry for the second floor apartment. (See id.) Moreover, even assuming that Defendant

Morris did enter the second floor of the Premises through the side door, these prior visits and her

subsequent application for a search warrant are separated by nearly six years—a significant amount

of time that excuses a reasonable officer for failing to remember how a house she visited was

configured. See Fennell, 496 F. Supp. at 282 (“Defendant argues that Lt. Centamore previously

executed a search warrant on the ‘second floor apartment’ of 294 First Street in January 2003, and

thus, when executing the current warrant in August 2006, the police should have known that the

premises was a multi-family residence. This argument fails. . . . [The] Court [does not] fault Lt.

Centamore for not remembering a warrant he executed more than three years earlier, given that he

testified that he has sworn out more than 2000 warrants in his career, including at least 150 between

January 2003 and August 2006.”). No reasonable jury could find that Defendant Morris filled out

the search warrant affidavit with deliberate or reckless disregard of the truth in light of these facts,

coupled with the investigatory efforts she undertook and the outward appearance of the Premises

as a single-family home.

Even if Plaintiff were able to satisfy the first prong of the Franks analysis, she cannot meet

the second, that is, Plaintiff’s claims “fail under the ‘corrected affidavit’ doctrine because a

hypothetical warrant affidavit, deleting the purported misstatements and including the challenged

omissions, would not affect the probable cause determination.” Coderre v. City of Wallingford,

668 F. App’x 399, 399–400 (2d Cir. 2016); see also Daniels v. City of New York, No. 16-CV-190

(PKC) (JO), 2018 WL 4119191, at *6 (E.D.N.Y. Aug. 29, 2018) (granting summary judgment

after assuming arguendo that Plaintiff could satisfy the first part of Franks). Here, Plaintiff would

have to show that a court would not have issued the warrant had the affidavit described the

Premises as a multi-family house. As outlined in the search warrant affidavit, Defendant Morris

employed a confidential informant, who had proven reliable in five separate search warrant

applications that resulted in the recovery of contraband. (Def. 56.1, Dkt. 55, ¶ 4.) On three

separate occasions, officers searched the confidential informant for potential contraband and sent

the informant into the Premises to purchase a forged credit card. (Id. ¶ 5; Search Warrant Affidavit,

Dkt. 54-2.) On all three occasions, the confidential informant entered through the front door, went

into the basement, and returned with a forged credit card. (Def. 56.1, Dkt. 55, ¶ 6.) The

confidential informant reported that on one occasion, the transaction was executed with someone

named “Lawrence,” and the informant subsequently identified “Lawrence” as Plaintiff’s brother,

Lawrence Conklin, who lived in the basement of the Premises. (Id. ¶¶ 7, 19; Search Warrant

Affidavit, Dkt. 54-2, at ECF 7.) Plaintiff does not dispute any of the abovementioned facts related

to the controlled buys. It was these facts, and not the number of families living in the home, that

provided the basis for the magistrate judge’s probable cause finding. These investigatory findings

made the warrant not “so facially deficient that reliance upon it is unreasonable.” United States v.

Moore, 968 F.2d 216, 222 (2d Cir. 1992); see also United States v. Moody, No. 20-CR-6070 (CJS),

2021 WL 202698, at *8 (W.D.N.Y. Jan. 19, 2021) (upholding validity of warrant that identified a

two-family dwelling as a single-family dwelling because confidential informant’s purchase of

fentanyl created probable cause to search the entire premise), report and recommendation adopted,

2021 WL 1054372 (W.D.N.Y. Mar. 19, 2021); United States v. Worjloh, 546 F.3d 104, 109 (2d

Cir. 2008) (upholding validity of warrant that classified a multi-family home as a single-family

home).

2. The Warrant Does Not Violate the Particularity Requirement

Plaintiff also asserts that the failure to correctly specify the type of home meant the warrant

violated the “particularity requirement” of the Fourth Amendment Warrants Clause. (Pl. Br., Dkt.

59, at 4.) Even if the warrant is valid under Franks, the failure to correctly specify the type of

premises may render the warrant deficient under the “particularity requirement.” Plaintiff cites

United States v. Wiggins, 298 F.R.D. 75 (E.D.N.Y. 2014) to support the proposition that Defendant

conducted an unreasonable inquiry into the Premises and that Defendant knew or should have

known that the Premises was a multi-family dwelling. (Pl. Br., Dkt. 59, at 4–5.) In Wiggins,

officers incorrectly identified a multi-family home as a single-family home in their search warrant

affidavit. Wiggins, 298 F.R.D. at 78. In preparation for the search warrant affidavit, the officers

checked public and utility records, and conducted surveillance on the property. Id. at 80.

Regarding the public and utility records, the officer “ran an ‘Accurint’ report which lists various

people who have lived or received mail at an address over many years.” Id. at 78. The report

listed the property under a different last name than the person the police were investigating. Id.

One of the officers testified that upon seeing this report, the officer believed that “multiple people

lived at that location.” Id. at 80. The utility records also revealed that there were two accounts

listed at the residence. Id. The court found that the officers knew or should have known that

multiple families resided at the house, and did not credit the officers’ testimony that they did not

observe other families come and go from the building after months of surveillance because one of

the families left daily to take their children to school. Id. The court’s decision rested on the fact

that the officers had not conducted a reasonable investigation of the property prior to filing for a

search warrant. Id. at 80–81.

The present case is distinguishable in several ways. First, other than the Certificate of

Occupancy, which Defendant Morris did not review, nothing suggested the Premises was a multi-

family home. Second, the utility records revealed that there was a single account for the entire

Premises, listed under Plaintiff’s mother’s name. (Def. 56.1, Dkt. 55, ¶ 16.) Finally, Plaintiff does

not allege, nor do the facts suggest, that the Premises had the same “comings and goings” as the

property in Wiggins. Investigative measures taken by Defendant Morris in preparation for the

search warrant application were not unreasonable. Courts have found this level of investigation

sufficient to satisfy the particularity requirement. For example, in Gibeault, the Second Circuit

found that surveillance and record checks were sufficient where the home had one driveway and

one mailbox. Gibeault, 2021 WL 5816138, at *3. In Maneti, the court found that the particularity

requirement is satisfied “if the building in question appears to be a single-family structure and the

investigating officers neither knew nor had reason to know of the structure’s actual multiple-

occupancy character until execution of the warrant was under way.” 781 F. Supp. at 179–80; see

also United States v. Villegas, No. 92-CR-699 (CSH), 1993 WL 535013, at *3–4 (S.D.N.Y. Dec.

22, 1993) (“The only showing made by Jaramillo is that he knew that he lived separately from

Casas and Sanchez, not that this knowledge was conveyed to the government.”). Because the

information reasonably known to Defendant Morris “at the time [she] acted” suggested that the

Premises were a single-family home, the Court finds the warrant valid. Maryland, 480 U.S. at 85.

3. Plaintiff Has No Standing To Assert Claims Based on the Search of the

Second Floor Apartment

Plaintiff further alleges that the officers lacked probable cause to search the second floor

apartment and therefore the search was unlawful. (Pl. Br., Dkt. 59, at 7–9.) As Plaintiff insists

that the second floor apartment was occupied by a tenant unknown to her at the time the search

was executed, Plaintiff does not have standing to claim a reasonable expectation of privacy in

someone else’s apartment. In order to bring an unreasonable search claim, Plaintiff must show

that “the challenged conduct invaded [her] legitimate expectation of privacy rather than that of a

third party.” United States v. Payner, 447 U.S. 727, 731 (1980); Carter, 525 U.S. at 88 (“[T]he

Fourth Amendment is a personal right that must be invoked by an individual.”); Katz, 389 U.S. at

351 (“[T]he Fourth Amendment protects people, not places”).

Throughout Plaintiff’s papers and Rule 56.1 statement, Plaintiff contends that “she did not

have dominion and control over that apartment.” (Pl. Br., Dkt. 59, at 9.) Plaintiff also testified

that she did not have a key to the second floor apartment at the time the search warrant was

executed. (Transcript of Plaintiff’s Deposition, Dkt. 60-2, 47:15–18.) Plaintiff cannot claim a

“legitimate expectation of privacy in the” second floor apartment unless that apartment was her

home at the time the apartment was searched. Carter, 525 U.S. at 89. Therefore, because Plaintiff

contends that she did not have dominion and control over the second floor apartment, she cannot

prevail on an unreasonable search claim relating to that apartment.4

* * * *

The search warrant relied on by Defendant Morris in searching the Premises was valid both

under Franks and the particularity requirement. Given the warrant’s validity, the Court similarly

finds that Plaintiff’s and her family’s detention during the execution of the warrant was valid. See

4 The Court does not reach the qualified immunity issue with respect to Plaintiff’s unlawful

search claim. See WWBITV, Inc. v. Vill. of Rouses Point, 589 F.3d 46, 52 (2d Cir. 2009) (“Because

we conclude that there was no violation of the plaintiffs’ constitutional rights, we do not reach the

issue[ ] of qualified immunity[.]”). “However, if the Court were to address this issue, it would

conclude that Officer [Morris] possessed arguable probable cause to conduct the [search], in that

‘officers of reasonable competence could disagree on whether the probable cause test was met.’”

Stwaerd v. City of New York, No. 09-CV-936 (PKC), 2014 WL 4384471, at *6 n.14 (E.D.N.Y.

Sept. 4, 2014) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991), cert.

denied, 505 U.S. 1221 (1992)).

Muehler v. Mena, 544 U.S. 93, 98 (2005). Accordingly, Defendant Morris’s motion for summary

judgment on Plaintiff’s unlawful search claim is granted.

III. False Arrest

A. Legal Standard

“Claims for false arrest brought under Section 1983 are ‘substantially the same’ as claims

for false arrest under state law.” Ashley v. City of New York, 992 F.3d 128, 136 (2d Cir. 2021).

“Under New York law, to prevail on a claim for false arrest, a plaintiff must show that (1) the

defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3)

the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise

privileged.” Id. (cleaned up).

“Probable cause is a complete defense to a constitutional claim of false arrest. . . .” Betts

v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014). “Probable cause exists when one has knowledge of,

or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant

a person of reasonable caution in the belief that an offense has been or is being committed by the

person to be arrested.” Id. “More specifically, probable cause exists if a law enforcement officer

received information from some person, normally the putative victim or eyewitness, unless the

circumstances raise doubt as to the person’s veracity.” Id. “[A] police officer is not liable for a

false arrest under Section 1983 if probable cause to arrest the plaintiff existed for any crime—

whether or not that particular crime was closely related to the offense the officers said was the

reason for arrest.” Kee, 12 F.4th at 158–59.

“[T]he probable-cause-to-arrest inquiry is generally limited to whether the facts known by

the arresting officer at the time of the arrest objectively provide probable cause to arrest.” United

States v. Pabon, 871 F.3d 164, 176 n.5 (2d Cir. 2017) (citations and internal quotation marks

omitted). “To determine whether probable cause exists, [courts] look at the facts as the officers

knew them in light of the specific elements of the offense . . . considering the totality of the

circumstances and the perspective of a reasonable police officer in light of his training and

experience.” Caravalho v. City of New York, 732 F. App’x 18, 22 (2d Cir. 2018) (internal

quotation marks and citations omitted). “Questions of historical fact regarding the officers’

knowledge at the time of arrest are to be resolved by the jury.” Dufort v. City of New York, 874

F.3d 338, 348 (2d Cir. 2017). “However, where there is no dispute as to what facts were relied on

to demonstrate probable cause, the existence of probable cause is a question of law for the court.”

Id. (internal quotation marks omitted). “Review for probable cause should encompass ‘plainly

exculpatory evidence’ alongside inculpatory evidence to ensure the court has a full sense of the

evidence that led the officer to believe that there was probable cause to make an arrest.” Stansbury

v. Wertman, 721 F.3d 84, 93 (2d Cir. 2013).

B. Analysis

Plaintiff alleges that Defendant Morris’s arrest of Plaintiff for theft of services was based

“on an incorrect hunch” because Plaintiff’s only link to the diversion of electricity is that she lived

in the Premises. (Pl. Br., Dkt. 59, at 12.) Plaintiff further argues that, because the electricity was

diverted to the second floor and she had no control or dominion over that floor, there was no

probable cause to arrest Plaintiff for theft of services. (Id.) The Court disagrees and concludes

that Defendant had probable cause to arrest Plaintiff for theft of services.

Because the existence of probable cause is analyzed based on “the facts as the officers

knew them in light of the specific elements of the offense,” Caravalho, 732 F. App’x at 22 (internal

quotations and citations omitted), the Court begins its analysis with New York’s theft of services

statute. Under New York law, “[a] person is guilty of theft of services when . . . [w]ith intent to

avoid payment by himself or another person of the lawful charge for any telecommunications

service, including, without limitation, . . . electrical . . . service which is provided for a charge or

compensation, he . . . avoids or attempts to avoid payment therefor by himself or another person

by means of (a) tampering or making connection with the equipment of the supplier.” N.Y. Penal

L. 165.15(4). Thus, and as relevant here, the statute requires (1) intent to avoid payment for

services and (2) successful avoidance or attempt to do so (3) by tampering with the equipment. “A

person who tampers with such a device or equipment without the consent of the supplier of the

service is presumed to do so with intent to avoid, or to enable another to avoid, payment for the

service involved.” Id. As is evident, the statute specifically provides that a person is guilty of

theft of services even where their avoidance or attempt to avoid payment is for the benefit of

another person—i.e., it helps or attempts to help another person to avoid payment for services. Id.

Turning to the undisputed facts here, the Premises has two electrical meters, marked “1st

Fl” and “2nd Fl,” “located in the basement of the” Premises.5 (Pl. 56.1, Dkt. 57, ¶¶ 16–17.)

Plaintiff had access to the basement from the first floor of the Premises. (Id. ¶ 7.) ConEd

representatives were present during the search of the Premises and “determined that $64,792.73 in

unmetered electrical service had been diverted to the second floor of the” Premises. (Id. ¶¶ 46–

47; see also Preliminary Estimated Bill for Unmetered Service, Dkt. 60-12.)

Based on these facts, Defendant Morris had probable cause to arrest Plaintiff for theft of

services. First, it is undisputed that Plaintiff had access to the basement at the time of the search

and there is nothing in the record to suggest that Plaintiff did not have access to the part of the

5 Plaintiff states that the meters were marked as such on the day of the search; Defendant

Morris admits only “that on September 11, 2019, the date defense counsel conducted an inspection

of the premises, the electrical meters were marked as such.” (Pl. 56.1, Dkt. 57, ¶ 16.) The Court

does not need to resolve this factual disagreement because whether the meters were marked on the

day of the search is not a genuine issue of material fact and does not affect the Court’s analysis

here.

basement where the two meters were located, or that Defendant Morris had any reason to believe

that Plaintiff did not have access to the meters. Second, the ConEd representatives determined

that there was over $64,000 worth of services in avoided payments. Third, ConEd representatives

determined that the payment was avoided by diversion of services, which suggests that the meters

were manipulated or tampered with. (See Dkt. 54-13, at ECF 6.) Lastly, based on these facts and

pursuant to New York law, Plaintiff could be presumed to have intended to divert electricity and,

as a result, to avoid payment for services by her or another person to ConEd.

Plaintiff argues that because the electricity was diverted to the second floor apartment,

which, according to Plaintiff, she had no control or dominion over, there was no probable cause to

arrest her for theft of services. That argument is unavailing in light of the specific language of the

statute that provides that a person is guilty of theft of services for her own or another person’s

benefit. N.Y. Penal L. 165.15(4). Thus, even viewing the evidence in the light most favorable to

Plaintiff, considering the totality of the circumstances, and accepting that (1) Plaintiff did not have

control of the second floor apartment and (2) Defendant knew or should have known that Plaintiff

did not have such control, Defendant Morris could nevertheless reasonably believe that Plaintiff,

who had access to the meters, intentionally diverted electricity for the benefit of the second floor

apartment’s occupant. Betts, 751 F.3d at 82 (“Probable cause exists when one has knowledge of,

or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant

a person of reasonable caution in the belief that an offense has been or is being committed by the

person to be arrested.”). This conclusion was supported both by the officers’ findings at the time

of the search and the ConEd record that Defendant had obtained prior to the search indicating that

both the first and second floor apartments were listed under a single account in Plaintiff’s mother’s

name.

The Court need not address whether probable cause existed for other justifications for arrest

because “a police officer is not liable for a false arrest under Section 1983 if probable cause to

arrest the plaintiff existed for any crime.” Kee, 12 F.4th at 158–59 (internal quotation marks and

citations omitted).6

* * * *

Defendant Morris had probable cause to arrest Plaintiff for theft of services. Accordingly,

Defendant Morris’s motion for summary judgment on Plaintiff’s false arrest claim is granted.

IV. John Doe Defendants

Plaintiff brought this case against Defendant Morris and John Doe Defendants 1–10 in June

2018. (See Dkt. 1.) Despite having engaged in extensive discovery for over two years (see

10/5/2020 Minute Entry (denying Plaintiff’s motion to reopen the deposition of Defendant Morris

but allowing Plaintiff to serve five interrogatories to Defendant Morris, “limited in subject matter

to [] two issues . . . , by October 7, 2020)), Plaintiff has neither identified the John Doe Defendants

nor moved to amend the complaint to name them. “Where a plaintiff has had ample time to identify

a John Doe defendant but gives no indication that [s]he has made any effort to discover the

defendant’s name, . . . the plaintiff simply cannot continue to maintain a suit against the John Doe

defendant.” Coward v. Town and Village of Harrison, 665 F. Supp. 2d 281, 300 (S.D.N.Y. 2009)

6 Given the Court’s finding that defendant Morris had probable cause to arrest Plaintiff,

there is no need to reach the qualified immunity issue. WWBITV, Inc., 589 F.3d at 52 (“Because

we conclude that there was no violation of the plaintiffs’ constitutional rights, we do not reach the

issue[ ] of qualified immunity[.]”). However, even assuming that Defendant Morris did not have

probable cause to arrest Plaintiff for theft of services, Defendant Morris is entitled to qualified

immunity because “it was objectively reasonable for her to believe that her actions were lawful at

the time of the challenged act.” Frost v. N.Y.C. Police Dep’t., 980 F.3d 231, 243 n.8 (2d. Cir.

2020). Defendant Morris’s determination that Plaintiff was guilty of theft of services is objectively

reasonable because “there was ‘arguable’ probable cause at the time of the arrest” in that “officers

of reasonable competence could disagree on whether the probable cause test was met.” Gonzalez

v. City of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013).

(cleaned up); see also Nagair v. New England Motor Freight, Inc., No. 16-CV-5898 (AMD)

(RLM), 2018 WL 6272751, at *3 n.6 (E.D.N.Y. Nov. 30, 2018) (“Although the ‘John Doe’

[defendant] has not entered an appearance in this action and does not move for summary judgment,

I sua sponte dismiss the action against this defendant because the case has been pending for two

years—and the accident occurred over five years ago—and the plaintiff has not identified this

defendant.” (collecting cases)); Blake v. Race, 487 F. Supp. 2d 187, 192 n.1 (E.D.N.Y. 2007)

(“[T]he Court dismisses the claims against the unnamed John Doe defendants. Though discovery

is complete in this case, plaintiff has failed to identify any of the unnamed defendants, or to present

any evidence demonstrating their involvement in the infringing activity. Moreover, plaintiff’s

opposition to defendants’ motion for summary judgement does not specify the role of any unnamed

defendants in the infringing conduct, nor does plaintiff indicate that [s]he will be able to identify

these unnamed defendants in the future.”).

Plaintiff’s claims against John Doe Defendants 1–10 are therefore dismissed without

prejudice. See, e.g., Gordon v. Emmanuel, No. 15-CV-2439 (CBA) (SJB), 2018 WL 4688935, at

*12 (E.D.N.Y. Sept. 28, 2018) (sua sponte dismissing without prejudice claims against unnamed

defendants where plaintiff “failed to identify any of the unnamed defendants” through discovery

or “present any evidence demonstrating their involvement in the [challenged] activity).

CONCLUSION

For the reasons set forth herein, the Court grants Defendant Morris’s motion for summary

judgment. Plaintiff’s claims against Defendant Morris are therefore dismissed with prejudice.

Additionally, Plaintiff’s claims against the John Doe 1-10 Defendants are dismissed without

prejudice. The Clerk of Court is respectfully directed to enter judgment accordingly and close this

case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 30, 2022

Brooklyn, New York