Powell v. United States of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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CALVIN POWELL, :

: OPINION & ORDER GRANTING

Plaintiff, : IN PART AND DENYING IN

: PART MOTION TO DISMISS

UNITED STATES OF AMERICA; United States :

Drug Enforcement Agency (“DEA”) Detectives : 19 Civ. 11351 (AKH)

SEAN FOGARTY, JOHANNA SANTOS, and :

“JOHN and/or JANE DOES” Nos. 1, 2, 3, etc., in :

their individual capacities; THE CITY OF NEW :

YORK, a municipal entity; NEW YORK CITY :

POLICE DEPARTMENT (“NYPD”) POLICE :

OFFICERS JOHN DOHERTY, and “RICHARD :

and/or RACHEL ROES Nos. 1, 2, 3, etc., in their :

individual capacities; and Investigators and :

Officials of The Office of the Special Narcotics :

Prosecutor for the City of New York “STANLEY :

and/or SALLY SOES” Nos. 1, 2, 3, etc., in their :

individual capacities, :

:

Defendants. :

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ALVIN K. HELLERSTEIN, U.S.D.J.:

In or around April 2018, law enforcement officials obtained a warrant to search

the first and second floors of a three-story Bronx apartment building. In this civil rights action,

Plaintiff Calvin Powell claims that the officers executing the search warrant found no evidence

of criminality on the first or second floors of the building, proceeded to exceed the scope of the

warrant by searching the third floor, and, after finding several kilograms of cocaine on the third

floor, falsely maintained that the drugs were found pursuant to the warrant, ultimately resulting

in Powell’s arrest, imprisonment, and prosecution. The prosecution was later dropped, however,

after Powell adduced photographs taken by officers at the scene revealing that the cocaine and

other contraband were recovered from the third floor.1 Powell seeks to recover damages against

1 News sources indicate that one of the officers involved in the search, Defendant Sean Fogarty, later pled guilty to a

perjury charge in connection with his statement to a grand jury that the drugs and related evidence were found on the

second floor of the apartment. See Jonathan Bandler, Yonkers Detective Sean Fogarty Pleads Guilty to Perjury for

the officers involved in the search and prosecution, among other defendants, under the Federal

Tort Claim Act (“FTCA”), Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971) (“Bivens”), 42 U.S.C. § 1983, and related New York state law theories. Now

before me is a motion to dismiss by one of the individual officers: Defendant Johanna Santos.

For the reasons that follow, the motion is granted in part and denied in part.

Factual Background

I summarize the alleged facts and procedural history only to the extent necessary

to resolve the instant motion to dismiss.2

A. The Search

Powell owns a three-family, three-story apartment building (hereinafter, the

“Building”) in the Bronx. See Complaint (“Compl.”), ECF No. 1, at ¶ 24. For the last twenty

years, Powell has lived with his family on the first floor of the Building and has rented out the

second- and third-floor apartments to others for residential use. Id. at ¶¶ 25-27.

On April 18, 2018, Defendant Detective Sean Fogarty obtained a warrant to

search the first and second floors of the Building. See id. at ¶¶ 44-48. The warrant was prepared

by Fogarty and supported by his affidavit. See id. The warrant and affidavit both alleged that

there was reasonable cause to believe that drugs were being sold out of both the first and second

floors of the Building. See id. at ¶¶ 46, 49. By contrast, the warrant specifically stated that law

Lying in Drug Case, Rockland/Westchester Journal News, https://www.lohud.com/story/news/crime/2019/12/27/yo

nkers-detective-sean-fogarty-pleads-guilty-perjury-case/2753367001/ (last visited July 6, 2020). According to these

sources, Fogarty was forced into early retirement as part of his plea deal. See id. Although Powell “does not expect

Detective Santos will dispute that … Fogarty pled guilty to misdemeanor perjury,” Pl. Opp. Mem., ECF No. 49, at

23 n.1, I take judicial notice only of the article’s existence and not the truth of its description of the facts, see, e.g., In

Re Bank of Am. Corp. Sec., Derivative, & Employee Ret. Income Sec. Act (ERISA) Litig., 757 F.Supp.2d 260, 302

(S.D.N.Y. 2010), as it is immaterial for present purposes whether Fogarty indeed took such a plea.

2 The facts are taken from the FAC and are assumed true for purposes of this motion. See, e.g., Cooper v. Parsky,

140 F.3d 433, 440 (2d Cir. 1998).

enforcement had “no reason to believe” that any criminal activity was taking place on the third

floor, and, as such, did not request access to that floor. Id.

Later in the day on April 18, Powell received a call from his probation officer,

Sandra Osman. Id. at ¶ 30.3 Osman informed Powell that two of her colleagues were waiting

outside of his home in order to perform a “house visit,” and asked Powell to meet them outside.

Id. at ¶¶ 31-32. Complying, Powell exited his residence and was met at the sidewalk by two

individuals. Id. at ¶ 34. After confirming Powell’s identity, the two individuals stated that they

were members of law enforcement and handcuffed Powell, arresting him. Id. at ¶¶ 34-35.

Meanwhile, Powell observed numerous law enforcement officers and vehicles

arriving at the Building. Id. at ¶ 37. Several officers–––including Fogarty and Defendants John

Doherty and Johanna Santos, all of whom were members of the United States Drug Enforcement

Agency’s New York Drug Enforcement Taskforce–––proceeded to enter Powell’s first-floor

apartment and search the premises. Id. at ¶¶ 38-39.

The officers executing the search did not find any contraband or evidence of

illegal activity on the first floor. Id. at ¶ 50. Undeterred, the officers proceeded to the second-

floor apartment, where they arrested the tenants of that unit and commenced a new search. Id. at

¶¶ 51-52. Once again, the officers’ search of the second-floor apartment failed to turn up any

evidence of criminality. Id. at ¶ 54.

Having found no incriminating evidence on the first or second floors and aware

that the warrant confined its authorization to just those two floors, the officers present at the

scene–––including, inter alia, Fogarty and Santos–––“deliberately went beyond the scope of the

… warrant” and embarked on a new search of the third floor. Id. at ¶¶ 55-58. Upon breaking

down the door to the third-floor apartment, the officers discovered papers and personal effects

3 The Complaint does not specify why Powell was on probation.

that indicated that the unit was controlled and occupied by a tenant other than Powell. The

officers further discovered a large quantity of cocaine, crack cocaine, and drug paraphernalia

such as plastic bags containing “cutting agents” and “digital scales.” Id. at ¶¶ 60-61.

B. Post-Arrest Representations

Following Powell’s arrest, and fully cognizant of their having violated the terms

of the warrant, the officers transported Powell to detention. See id. at ¶¶ 65-67. Powell alleges

on “information and belief” that Fogarty and Santos, among others, “agreed to falsely claim that

they had recovered the drugs and other criminal evidence … within the bounds of their warrant

on the first and second floor apartments.” Id. at ¶ 65.

In the course of processing Powell’s arrest, Fogarty and Santos, among others,

“prepared false and misleading arrest paperwork,” which was “forwarded to an Assistant District

Attorney.” Id. at ¶¶ 69-70. For instance, Doherty prepared an arrest report that falsely asserted

that the officers executing the warrant had found Powell to be “in possession of a large quantity

of a controlled substance,” id. at ¶ 71, and similarly created invoices for the evidence recovered

that falsely listed Powell as the “owner” of the evidence, id. at ¶ 72. As another example, Santos

swore to an affidavit that confirmed that the invoices created by Doherty contained a “true and

detailed account of all property” seized during the search, without “correct[ing]” Doherty’s false

statement that Powell owned the recovered evidence, or otherwise affirmatively indicating that

the arrest evidence was found in contravention of the warrant. Id. at ¶¶ 75-77. Fogarty likewise

purposely withheld from the ADA that the evidence had been found outside the bounds of the

warrant. See id. at ¶ 81.

C. The Prosecution

Acting on the representations of Doherty, Santos, and Fogarty, the Office of the

Special Narcotics Prosecutor elected to prosecute Powell. Id. at ¶ 82. Powell was charged with

criminal possession of drugs and drug paraphernalia under New York law. Id. at ¶ 83. Although

Fogarty knew that the criminal complaint charging Powell made materially false representations,

he signed it nonetheless. See id. at ¶ 84. As a result of the false and misleading representations

given by, inter alia, Fogarty, Santos, and Doherty–––specifically, the statements that the officers

who conducted the search found Powell in possession of cocaine and drug equipment on the first

two floors of the Building–––a Grand Jury indicted Powell. See id. at ¶¶ 90-97.

Thereafter, Powell remained in detention for several months. In early May 2018,

just weeks after Powell’s arrest, Powell’s father passed away. Due to his confinement, Powell

was unable to visit with his father during his final living days; nor was he permitted to attend his

father’s funeral. Id. at ¶¶ 98-101.

In June 2018, Powell moved to suppress all of the evidence seized during the

April 18 search, contending that the officers had exceeded the scope of the warrant by searching

the Building’s third floor. Id. at ¶ 102. The prosecution at first opposed Powell’s motion, citing

“discussions with the police officers involved in the matter”–––including Fogarty, Santos, and

Doherty–––as evidence that the evidence had been properly recovered from the first two floors

of the Building. Id. at ¶¶ 103-04.

At a hearing on Powell’s motion to suppress, Powell produced photographs

showing that the evidence had been found on the third floor. Id. at ¶ 106. The presiding judge

ordered the prosecution and defense counsel to inspect the Building in person to determine

whether the photographs corroborated Powell’s argument. Id. at ¶¶ 107-08. After an inspection

of the Building, the prosecution conceded that the evidence had been seized from the third floor

and, in September 2018, dropped all criminal charges against Powell. Id. at ¶¶ 108-11. Powell

was released from jail. In all, he had been in detention approximately five months.

Procedural History

Powell commenced this suit in December 2019, bringing 16 counts principally

for false arrest, malicious prosecution, deprivation of due process, failure to intercede, and civil

rights conspiracy, in violation of the FTCA, Bivens, 42 U.S.C. § 1983, and New York State law.

Compl. at ¶¶ 117-203. Relevant for present purposes, Powell brings the following counts against

Defendant Santos:

• False arrest. Santos and others caused Powell to be arrested and charged

with drug possession and related charges, despite knowing that probable

cause did not exist, in violation of his Fourth Amendment rights as made

actionable under Bivens. (“Count IV”). Id. at ¶¶ 138-42.

• Malicious prosecution. Santos and others caused Powell to be prosecuted

after intentionally withholding information that would have eliminated any

probable cause against him, and despite the fact that Powell was innocent,

in violation of his Fourth Amendment rights as made actionable under

Bivens. (“Count V”). Id. at ¶¶ 143-48.

• Due process deprivation. Santos and others deprived Powell of his right to

a fair trial by withholding material exculpatory evidence as to the location

where the evidence was taken, in violation of his Fourteenth Amendment

rights as made actionable under Bivens. (“Count VI”). Id. at ¶¶ 149-55.

• Failure to intercede. Santos and others had opportunities to intercede on

Powell’s behalf to prevent his arrest, prosecution, and imprisonment, but

declined to do so, in violation of his rights made actionable under Bivens.

(“Count VII”). Id. at ¶¶ 156-160.

• Civil rights conspiracy. Santos and others agreed to deprive Powell of his

right to be free from unreasonable searches and seizures, false arrest, false

imprisonment, malicious prosecution, and deprivations of liberty without

due process of law, in violation of his Fourth and Fourteenth Amendment

rights as made actionable under Bivens. (“Count VIII”). Id. at ¶¶ 161-

164.

Santos filed her motion to dismiss on May 21, 2020. Mtn. to Dismiss, ECF No. 44; Def. Mem.,

ECF No. 45. The motion became fully briefed on July 10, 2020. See Pl. Opp. Mem., ECF No.

49; Def. Reply Mem., ECF No. 50.

Discussion

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

court must “accept as true all of the factual allegations contained in the complaint,” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 572 (2007), draw “all inferences in the light most favorable to

the non-moving party’s favor,” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007),

and determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotation marks omitted).

A. Bivens

In Bivens, the Supreme Court held that “a person claiming to be the victim of an

unlawful arrest and search could bring a Fourth Amendment claim for damages … even though

no federal statute authorized such a claim.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020).

The Court subsequently extended Bivens to “cover two additional constitutional claims: in Davis

v. Passman, 442 U.S. 228 (1979), a former congressional staffer’s Fifth Amendment claim of

dismissal based on sex, and in Carlson v. Green, 446 U.S. 14 (1980), a federal prisoner’s Eighth

Amendment claim for failure to provide adequate medical treatment.” Id. But after recognizing

these three Bivens claims, “the Court changed course.” Id.

The Court has explained that “Bivens, Davis, and Carlson were the products of an

era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the

provision that was allegedly violated,” and that, “[i]n later years, [the Court] came to appreciate

more fully the tension between this practice and the Constitution’s separation of legislative and

judicial power.” Id. (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017)). Accordingly, the

Court has expressed its “reluctan[ce] to create new causes of action,” recognizing that “Congress

is best positioned to evaluate ‘whether, and the extent to which, … liabilities should be imposed

upon individual officers and employees of the Federal Government.’” Id. (quoting Abbasi, 137

S. Ct. at 1856)). In light of this “change in the Court’s approach to recognizing implied causes

of action, … the Court has made clear that expanding the Bivens remedy is now a disfavored

judicial activity.” Abbasi, 137 S. Ct. at 1857 (emphasis added) (quotation marks omitted).

If anything, “[d]isfavored” understates the change of course. The Court has “gone so far

as to observe that if ‘the … three Bivens cases had been … decided today,’ it is doubtful that [the

Court] would have reached the same result.” Hernandez, 140 S. Ct. at 742-43 (quoting Abbasi,

137 S. Ct. at 1856) (some alterations omitted). This observation tracks history: For “almost 40

years,” the Court has “consistently rebuffed requests to add to the claims allowed under Bivens.”

Id. at 743. In all, when facing Bivens claims in the modern era, the Court’s main “watchword is

caution.” Id. at 742; see Abbasi, 137 S. Ct. at 1856 (cautioning against creating additional

implied remedies “no matter how desirable that might be as a policy matter”).

The Supreme Court’s decision in Abbasi outlines a “two-step framework for

determining whether a Bivens remedy may properly be implied.” Bueno Diaz, 2020 WL

1082482, at *3. At the first step, “a court must decide whether a plaintiff seeks damages in a

new Bivens context,” and to do so, “must evaluate whether ‘the case is different in a meaningful

way from previous Bivens cases decided by the Supreme Court.’” Id. (quoting Abbasi, 137 S.

Ct. at 1859). Although the Court has not yet “endeavor[ed] to create an exhaustive list of

differences that are meaningful enough to make a given context a new one,” it has provided

some instructive examples:

A case might differ in a meaningful way because of the rank of the officers

involved; the constitutional right at issue; the generality or specificity of the

official action; the extent of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the risk of disruptive intrusion by

the Judiciary into the functioning of other branches; or the presence of potential

special factors that previous Bivens cases did not consider.

Abbasi, 137 S. Ct. at 1859-60. The Court has stressed that its “understanding of a ‘new context’

is broad.” Hernandez, 140 S. Ct. at 743. While “[s]ome differences, of course, will be so trivial

that they will not suffice to create a new Bivens context,” id. at 1865, the ‘new context’ test is not

demanding and can be satisfied even with minor extensions and even where the claim arises out

of the same constitutional provision as was previously recognized under Bivens, see Abbasi, 137

S. Ct. at 1864 (“[E]ven a modest extension is still an extension.”); Hernandez, 140 S. Ct. at 743

(“A claim may arise in a new context even if it is based on the same constitutional provision as a

claim in a case in which a damages remedy was previously recognized.”); Note, Constitutional

Remedies–––Bivens Actions–––Ziglar v. Abbasi, 131 Harv. L. Rev. 313, 318 (2017) (“The new

context inquiry is quite exacting…”)

If a given claim “does not present a new Bivens context, then such relief is not

precluded, and the court may evaluate the claim for damages on the merits.” Bueno Diaz, 2020

WL 1082482, at *3. If, on the other hand, “the court determines that the context is new, then it

must proceed to analyze whether there are ‘special factors counselling hesitation in the absence

of affirmative action by Congress.’” Id. (quoting Abbasi, 137 S. Ct. at 1857). This analysis

comprises the second step of the Abbasi framework.

The “special factors” step of the test assesses “whether there are any factors that

‘cause a court to hesitate before’ ‘allowing a damages action to proceed.’” Bueno Diaz, 2020

WL 1082482, at *6 (quoting Abbasi, 137 S. Ct. at 1858). This analysis “is focused on ‘whether

the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the

costs and benefits of allowing a damages action to proceed.’” Id. (quoting Abbasi, 137 S. Ct. at

1858). As with the first step of the Abbasi framework, the Court has “not attempted to create an

exhaustive list of factors that may provide a reason not to extend Bivens,” but has highlighted as

useful touchstones, the “risk of interfering with the authority of the other branches,” any reason

to believe that “Congress might doubt the efficacy or necessity of a damages remedy,” and the

existence of alternative means of recovery. Hernandez, 140 S. Ct. at 743, 749; see also Abbasi,

137 S. Ct. at 1863, 1865 (noting that “the existence of alternative remedies usually precludes a

court from authorizing a Bivens action” and “when alternative methods of relief are available, a

Bivens remedy usually is not”).

Even before Abbasi and Hernandez underscored the restrictiveness of the Bivens

inquiry, the Second Circuit sitting en banc concluded that “the only relevant threshold–––that a

factor ‘counsels hesitation’–––is remarkably low. It is at the opposite end of the continuum from

the unflagging duty to exercise jurisdiction.” Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009).

Hesitation is “a pause, not a full stop, or an abstention; and to counsel is not to require.” Id. As

such, hesitation is counseled “whenever thoughtful discretion would pause even to consider.” Id.

Whatever its precise contours, “‘[s]pecial factors’ is an embracing category.” Id. at 574.

* * * * *

With these principles in mind, I turn to the instant motion. Santos argues that

Powell’s claims against her–––for false arrest; malicious prosecution; deprivation of due process;

failure to intercede; and civil rights conspiracy–––seek to extend Bivens and that ‘special factors’

counsel hesitation against such extensions. See Def. Mem. at 5-14. For the reasons that follow, I

agree that Powell’s failure to intercede and civil conspiracy claims must be dismissed. However,

I disagree as to Powell’s false arrest, malicious prosecution, and due process claims, and find that

all three are viable under Bivens.

1. False arrest

Bivens “concerned an allegedly unconstitutional arrest and search carried out in

New York City.” Hernandez, 140 S. Ct. at 744 (citing Bivens, 403 U.S. at 389). The Court held

that the petitioner had a right of action against federal officers who had conducted a warrantless

search and arrested him in his home in violation of the Fourth Amendment. See Bivens, 403 U.S.

at 397. In the instant matter, Powell contends that he was unconstitutionally arrested, in his New

York City home, by federal officers after the officers conducted an extralegal, warrantless search

of the Building’s third floor, in violation of his Fourth Amendment rights. See Compl. at ¶¶ 39-

58. The similarity of Bivens and this dispute is readily apparent, see, e.g., Turkmen v. Hasty, 789

F.3d 218, 275 (2d Cir. 2015) (Raggi, J., concurring) (denoting “false arrest” a “familiar Bivens

context[]”), rev’d in part on other grounds, Abbasi, 137 S. Ct. 1843, if not to Santos.

Questing to squeeze daylight between Bivens and this case where there is none,

Santos asserts that here, unlike in Bivens, the “officers deliberately went beyond the parameters

of the warrant” by searching the third floor, presumably in contrast to Bivens where there was no

warrant at all. Def. Mem. at 7. This distinction is entirely without difference. Whether officers

conduct a search without a warrant or conduct a search in brazen disregard of the scope of a

warrant makes no difference here given that that Bivens and later cases have sustained a right to

recover for Fourth Amendment search-and-seizure violations in roughly similar cases to Bivens

without restricting the right based on the degree of Fourth Amendment error. See Prado v.

Perez, --- F.Supp.3d ---, 2020 WL 1659848, at * 5 (S.D.N.Y. Apr. 3, 2020) (petitioner sued “for

an allegedly unconstitutional arrest and search” and the court held that this did not “differ in a

meaningful way from the core Bivens context,” rejecting defendants’ argument that the claim

was different because the government agents had “an administrative warrant … rather than no

warrant at all”); cf. Abbasi, 137 S. Ct. at 1856 (“[T]his opinion is not intended to cast doubt on

the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it

arose.”). And just as there is clear ‘judicial guidance’ on the impropriety of warrantless searches,

so too is there ample guidance on the impropriety of searches that exceed a warrant’s scope. See

Horton v. California, 496 U.S. 128, 140 (1990). The remedy fashioned in Bivens allows those

injured by “officers who violated the prohibition against unreasonable search[es] and seizures” to

seek damages, Abbasi, 137 S. Ct. at 1854, and that is precisely what Powell seeks to do here. In

sum, Powell’s false arrest claim is squarely within the context faced in Bivens and as such does

not present a “new context.”4

4 The two cases cited by Santos for a contrary result are distinguishable. See Def. Mem. at 7. In Oliveras v. United

States Dep’t of Homeland Sec. Investig. Spec. Response Team Officer Robert Basile, 440 F.Supp.3d 365 (S.D.N.Y.

2. Malicious prosecution

Powell’s malicious prosecution claim, on the other hand, does not fit into the

Bivens mold. Neither Bivens nor Davis nor Carlson involved a malicious prosecution claim. In

light of this difference, courts in the Second Circuit and in other circuits have held that malicious

prosecution claims present a new Bivens context. See Butler v. Hesch, No. 116 Civ. 1540, 2020

WL 1332476, at *11-12 (N.D.N.Y. Mar. 23, 2020) id. at *12 (collecting cases from the Third,

Fifth, Eighth, and Tenth Circuits finding that claims of malicious prosecution would require an

extension of Bivens).

I agree with these decisions. Powell’s malicious prosecution claim differs in

focus from the claims pursued in Bivens. Rather than a claim of false arrest, Powell’s malicious

prosecution claim rests on the allegation that Santos, along with others, “initiated and continued

a prosecution against him without probable cause and that they misled prosecutors and the court

by omitting material and exculpatory information when bringing charges against him.” Butler,

2020 WL 1332476, at *12; Compl. at ¶ 125. Neither Bivens, nor Davis, nor Carlson addressed

conduct of this kind. Butler, 2020 WL 1332476, at *12; see also Farah v. Weyker, 926 F.3d 492,

499 (8th Cir. 2019) (“[I]nformation-gathering and case-building activities are a different part of

police work than the apprehension, detention, and physical searches at issue in Bivens.”).5

2020), the petitioner claimed to be the “unwitting victim of collateral damage stemming from Defendants’ execution

of an arrest warrant” after the officers detonated explosives in the course of executing a valid warrant in a separate

area of petitioner’s building. Id. at 371. There, the court noted that petitioner’s claims were factually distinct from

Bivens, implicated an uncertain area of law as to the propriety of using explosives “in an outdoor area, in the course

of executing an arrest warrant, and inadvertently injur[ing] a non-target of that warrant,” and involved the right to be

free from excessive force rather than the privacy right to be free from unconstitutional searches. See id. at 372-73.

And Martinez v. D’Agata, No. 16 Civ. 44, 2019 WL 6895436 (S.D.N.Y. Dec. 18, 2019), addressed petitioner’s

claim for “failure to intervene when excessive force was used to effectuate an arrest,” not the right to be free from

warrantless searches, and in any event involved an arrest effected pursuant to a valid warrant wherein the arrest was

not challenged for infidelity to the warrant but for its alleged use of excessive force. 2019 WL 6895436, at *5-6.

Neither Oliveras nor Martinez involved a false arrest claim leveled on precisely the same grounds as Bivens: an

arrest made after officers unconstitutionally searched the claimant’s home.

5 Powell argues that Butler and Farah, among other similar authority, should be ignored because they “both fail to

recognize that Second Circuit precedent recognizes Bivens actions for malicious prosecution.” Pl. Opp. Mem. at 9.

But the cases cited by Powell do not substantiate this proposition. Take Barone v. United States, 722 F. App’x 57

3. Due process deprivation

Powell’s due process claim, mistakenly brought against Santos (a federal officer)

under the Fourteenth rather than the Fifth Amendment,6 likewise arises in a different context

from previously recognized Bivens actions. Powell’s due process claim is based on the same

conduct as his malicious prosecution claim–––the fabrication and withholding of evidence to

(2d Cir. 2018) first. Barone, a non-precedential summary order, affirmed the dismissal of a malicious prosecution

claim brought under Bivens, on the grounds that probable cause existed for the prosecution, and without addressing

whether malicious prosecution is viable under Bivens. What’s more, the district court opinion reviewed by Barone

was decided in February 2017, several months before Abbasi, and several years before Hernandez. It is therefore no

surprise that the district court assumed the existence of this species of Bivens action without any discussion and also

without applying Abbasi’s two-step framework. See Barone v. United States, No. 12 Civ. 4103, 2017 WL 478259,

at *9 (S.D.N.Y. Feb. 6, 2017). The Barone summary order has been cited only a single time, in a situation having

nothing to do with Bivens. See Williams v. City of New York, 409 F.Supp.3d 137, 145 (E.D.N.Y. 2019). The other

case cited by Powell, Green v. Montgomery, 219 F.3d 52 (2d Cir. 2000), no better serves his purposes. Green was

decided around twenty years before Abbasi and Hernandez, and involved claims brought under 42 U.S.C. § 1983

and not Bivens. In its entirety, the Green opinion makes a single fleeting reference to Bivens in a footnote, in which

it is observed that “the New York presumption of probable cause, if unrebutted, is sufficient to block a Bivens claim

for malicious prosecution.” Id. at 60 n.2. No challenge to the availability of a Bivens malicious prosecution action

was discussed and, given that the opinion addressed claims under Section 1983, any allusion to Bivens was at most

dictum. It is “beyond debate that ‘[q]uestions which merely lurk in the record, neither brought to the attention of the

court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’” Ret. Plans

Comm. of IBM v. Jander, 140 S. Ct. 592, 597 (2020) (Gorsuch, J., concurring) (quoting Webster v. Fall, 266 U.S.

507, 511 (1925)). This maxim is all the more worthy of attention here, given the Supreme Court’s later decisions in

Abbasi and Hernandez.

As a final note, Plaintiff contends that Butler should not be read as contrary to a Sixth Circuit opinion, which found

that a malicious prosecution claim may proceed under Bivens. See Jacobs v. Alam, 915 F.3d 1028, 1038-39 (6th Cir.

2019). This is wrong for a few reasons. First, Butler expressly declined to follow Jacobs, concluding that the long

list of contrary authority listed by Butler and referenced supra, is “persuasive.” Butler, 2020 WL 1332476, at *12.

Second, while Butler distinguishes Jacobs as involving the “warrantless entry by federal agents into the plaintiff’s

home” and therefore being “aligned with the factual scenario presented by Bivens,” id., these referenced facts have

to do with searches and seizures, and not with the actual mechanics of a malicious prosecution claim (indeed, that is

why Butler references these differences in rejecting a Bivens action for malicious prosecution. Finally, Jacobs itself

appears to over-read Abbasi. Jacobs relies heavily on the language from Abbasi referring to the “recurrent sphere of

law enforcement” as reason to uphold a Bivens remedy in a range of contexts, including malicious prosecution. See

Jacobs, 915 F.3d at 1037-39. But the phrase in Abbasi–––“this common and recurrent sphere of law enforcement”

–––was not referring to “law enforcement” generally, but to one incarnation of enforcement activity, namely “the

search-and-seizure context” in which Bivens arose. Abbasi, 137 S. Ct. at 1856-57; see Abdoulaye v. Cimaglia, No.

15 Civ. 4921, 2018 WL 1890488, at *6 (S.D.N.Y. Mar. 30, 2018) (“[T]he common presence of law enforcement in a

claim for constitutional violations against federal agents does not end the inquiry with which the Court is tasked.”).

6 Because Santos she was operating in her capacity as a member of a federal task force, and because Powell alleges

that she was acting under “color of Federal law,” Compl. at ¶ 18, she is not bound by Fourteenth Amendment’s due

process restrictions. See Def. Mem. at 8; Cooper v. U.S. Postal Serv., 577 F.3d 479, 491 (2d Cir. 2009) (“The

Amendment applies only to state action.”) (emphasis added); accord Maloney v. Soc. Sec. Admin, No. 02 Civ. 1725,

2006 WL 1720399, at *8 (E.D.N.Y. June 19, 2006) (“[T]he Fourteenth Amendment does not apply to the federal

government, but only to acts by a State.”), aff’d, 517 F.3d 70 (2d Cir. 2008). From here on out, I treat this claim as

though it were properly brought under the Fifth Amendment.

pervert a criminal prosecution–––and therefore also presents a new Bivens context. Compare

Compl. at ¶¶ 143-48 with Compl. at ¶¶ 149-55.

Powell attempts in his briefing to demonstrate that the Second Circuit recognizes

a Bivens due process claim for fabrication of evidence. But the cases upon which Powell relies

simply do not say what Powell implies they say. Powell cites primarily to Zahrey v. Coffey, 221

F.3d 342 (2d Cir. 2000) and Ganek v. Leibowitz, 874 F.3d 73 (2d Cir. 2017). Pl. Mem. at 10, 16.

However, Ganek merely “assume[d], without deciding,” that the petitioner “could successfully

clear possible threshold obstacles to his pursuit of such a due process claim,” and identified as

one potential hurdle, “the availability of a Bivens remedy for such a due process claim” under

Abbasi. Ganek, 874 F.3d at 90 and n.11. Ganek even took notice of Zahrey, describing that as a

case that, many years before Abbasi, “recogniz[ed] without discussion, [a] Bivens claim for

fabrication of evidence.” Id. at 90 n.11.7 In short, Powell’s due process claim cannot be slotted

into a previously approved Bivens context.

4. Failure to intercede

Powell alleges that Santos failed to intervene to prevent his malicious prosecution

and false arrest. See Compl. at ¶ 158.

There is scant post-Abbasi authority in this Circuit considering whether a failure

to intervene claim presents a new Bivens context at step one of the Abbasi analysis. However, I

need not traverse this uncharted Bivens territory in this case. Even if I were to find that Powell’s

7 Unable to find solid ground in this Circuit, Powell again turns elsewhere. Pointing to the Sixth Circuit’s decision

in Jacobs, Powell argues that due process claims for “fabrication of evidence” are “garden-variety Bivens claims.”

Jacobs, 915 F.3d at 1038. Jacobs is neither controlling nor persuasive. Jacobs batches together the “fabrication of

evidence” claim with other counts of “excessive force, false arrest, malicious prosecution, … and civil conspiracy,”

without any substantive analysis as to why a “fabrication of evidence” claim in particular satisfies the first step of

the Abbasi test. Worse, the principal reasoning explaining the Sixth Circuit’s determination that this fabrication

claim does not break new Bivens ground, is the Court’s statement that it had previously recognized a Bivens action

for this type of claim prior to Abbasi–––needless to say, the cases relied upon in Jacobs did not apply the framework

later established by the Supreme Court to fabrication of evidence claims under Bivens. See Jacobs, 915 F.3d at

1038-39 (citing, inter alia, Webb v. United States, 789 F.3d 647, 667 (6th Cir. 2015)).

failure to intervene claim fit into an established Bivens mold, I would still dismiss. The “‘failure

to intervene theory is inapplicable’” if the officer at issue is a “‘direct participant in the allegedly

unlawful conduct.’” Ulerio v. City of New York, No. 18 Civ. 2155, 2018 WL 7082155, at *7-8

(S.D.N.Y. Dec. 20, 2018) (quoting Sanabria v. Detective Shawn Tezlof, No. 11 Civ. 6578, 2016

WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016)). The Complaint here principally describes Santos

as participating directly in both his false arrest and malicious prosecution, adding far less robust

allegations regarding her purported failure to intervene. See Compl. at ¶ 55 (alleging that Santos

knowingly exceeded the scope of the warrant and searched the third floor of the Building), ¶ 75

(alleging that Santos swore to an affidavit that falsely represented that the incriminating evidence

taken from the Building was found within the warrant’s cope); ¶¶ 156-60 (alleging generally that

Santos “had opportunities to intercede on behalf of Calvin Powell”). This flavor of “conclusory

allegation … does not plausibly allege that [the] officer was not directly involved in causing the

constitutional harm,” Corso v. City of New York, No. 17 Civ. 6096, 2018 WL 4538899, at *12-13

(S.D.N.Y. Sept. 20, 2018), and given that the Complaint plainly describes Santos as a primary,

rather than secondary, wrongdoer, I see no need to allow this tag-along failure to intercede claim

to muddle this case. Powell’s failure to intercede claim (Count VII) as to Santos is dismissed.

5. Civil rights conspiracy

Powell alleges that Santos and others conspired to deprive him of his right to be

free from false arrest and malicious prosecution, and his right to due process of law. See Compl.

at ¶¶ 162-63. As with Powell’s due process and failure to intercede claims, see supra, I need not

reach the question of whether the civil rights conspiracy count is actionable under Bivens, as this

claim is doomed by other pleading deficiencies.

To state a claim for civil rights conspiracy, Powell must allege “(1) an agreement

between two or more state actors …; (2) to act in concert to inflict an unconstitutional injury; and

(3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200

F.3d 65, 72 (2d Cir. 1999).8 Given “the relative ease with which conspiracy allegations may be

brought, and the substantial disruption of governmental function that they can cause,” a claimant

is required to furnish “‘more than conclusory allegations to avoid dismissal of a claim predicated

on a conspiracy to deprive [the claimant] of his constitutional rights.’” Nwanze v. Phillip Morris,

Inc., 100 F.Supp.2d 215, 219 (S.D.N.Y. 2000), aff’d sub nom., Nwanze v. Morris, 6 F. App’x 98

(2d Cir. 2001) (quoting Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) and collecting cases).

Applying the requisite liberality owed to Powell generally at this stage and to

conspiracy claims specifically, I find that the Complaint’s conspiracy count rests on a foundation

too anemic to survive Santos’s motion to dismiss. The Complaint surely alleges that Santos and

others took actions that violated his constitutional rights, such as disregarding the limitations of a

warrant and misrepresenting evidence to a grand jury. But only once in the Complaint’s factual

recitation does Powell actually charge Santos with “agreement,” an indispensable element:

On information and belief, the law enforcement officers, including Detective

Fogarty, Detective Santos, and Police Officer Doherty, agreed to falsely claim

that they had recovered the drugs and other criminal evidence in Mr. Powell’s

possession within the bounds of their warrant…

Compl. at ¶ 65. Powell must do more than append, “[o]n … belief,” the label of “agreement” to

otherwise independent charges of constitutional misconduct, in order to state a conspiracy claim.

Powell’s civil rights conspiracy claim (Count III) is dismissed as to all Defendants.

6. Extension of Bivens

Powell’s claim is that Santos and others willfully violated the Fourth and Fifth

Amendments by perverting the integrity of the judicial process through the introduction of false

evidence against him. This Circuit has long recognized that, “To hold that police officers … are

… free to fabricate [evidence] at will, would make a mockery of the notion that Americans enjoy

8 These elements are taken from a claim brought under 42 U.S.C. § 1983 for civil rights conspiracy–––I assume, as

do the parties, without deciding, that these elements are the same under Bivens.

the protection of due process of the law and fundamental justice.” Ricciuti v. N.Y.C. Trans. Auth,

124 F.3d 123, 130 (2d Cir. 1997). The question here is whether, under the modern incarnation of

the Bivens doctrine, “special factors” counsel hesitation against extending Bivens and require that

this Court acquiesce to a “mockery … of due process of the law and fundamental justice.” For

the reasons that follow, no special factors counsel against allowing Powell’s claims to proceed.

Santos contends that Powell “has a potential, alternative method of relief through

the FTCA.” Def. Mem. at 10. I am unpersuaded. True, the FTCA provides a cause of action for

recovery against the United States for “malicious prosecution.” See 28 U.S.C. §§ 2674, 2680(h).

But the FTCA facilitates only liability in “tort” against the United States itself, 28 U.S.C. § 2674,

whereas the Bivens remedy “vindicates violations of constitutional rights by federal employees,”

Bueno Diaz, 2020 WL 1082482, at *6. The FTCA aims to protect citizens from a different form

of harm and does so without holding responsible individual officers–––as the Supreme Court has

explained, this divergence renders Bivens and the FTCA “parallel,” nonfungible causes of action.

See Carlson, 446 U.S. at 20 (ruling it is “crystal clear that Congress views FTCA and Bivens as

parallel, complementary causes of action”). And as for Powell’s due process claim, Santos does

not dispute that the FTCA’s limitation to intentional torts disqualifies that statute as a colorable

alternative remedy for Fifth Amendment constitutional violations.

In Carlson, the Supreme Court identified several meaningful differences between

claims brought under the FTCA versus under Bivens. To name just a few: First, “[b]ecause the

Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA

remedy against the United States.” Id. at 21. Second, although the Court has not addressed the

question directly, it has “indicate[d] that punitive damages may be awarded in a Bivens suit.” Id.

at 21-22. The FTCA prohibits punitive damages. See 28 U.S.C. 2674. Third, Bivens provides

for the constitutional guarantee of trials by jury, whereas the FTCA does not make jury trials

available. Carlson, 446 U.S. at 22 (citing 28 U.S.C. § 2402). In all, the Court determined, the

“FTCA is not a sufficient protector of the citizens’ constitutional rights.” Id. at 23. And in the

ensuing years, the Court has, on more than one occasion, made similar statements regarding the

interplay between the FTCA and Bivens. See Bush v. Lucas, 462 U.S. 367, 378 (1983) (Congress

never “expressly declared the FTCA remedy to be a substitute for a Bivens action”); Wilkie v.

Robbins, 551 U.S. 537, 553 (2007) (citing Carlson’s reasoning approvingly).

I recognize that several courts in this District have found the FTCA to qualify as

an alternative remedy to Bivens.9 Many of these decisions have taken the language in Abbasi as

to Carlson perhaps being decided differently if it were addressed today to mean that, whereas the

“FTCA was once considered parallel and complementary to a Bivens remedy,” that is “no longer

the case.” Sosa, 2020 WL 1940550, at *4. However, like Judge Torres in her recent Bueno Diaz

decision, I decline to adopt this reasoning. The Supreme Court has not been bashful in signaling

its skepticism of the Bivens remedy–––if the Court intended to overrule Carlson, I am quite sure

it would simply do so. See, e.g., Doe v. United States, 381 F.Supp.3d 573, 615 (M.D.N.C. 2019)

(“If the Supreme Court wanted to overrule its earlier precedent in Abbasi, it would have done so

explicitly.”); Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013) (observing that “the ground has

shifted under Bivens, shaking its doctrinal foundations,” but reasoning that, “shaky or no, Bivens

remains the law, and we are not free to ignore it”). The FTCA standing on its own does not give

the Court reason to hesitate in extending Bivens.

From there, Santos argues that “allowing a damages remedy in malicious

prosecution Bivens action,” would interfere with “investigative and prosecutorial functions.”10

9 See Abdoulaye, 2018 WL 1890488, at *7; Sosa v. Bustos, No. 17 Civ. 417, 2020 WL 1940550, at *4 (S.D.N.Y.

Apr. 22, 2020); Rivera v. Samilo, 370 F.Supp.3d 362, 369-70 (E.D.N.Y. 2019); Martinez, 2019 WL 6895436, at *7;

Morgan v. Shivers, No. 14 Civ. 7921, 2018 WL 618451, at *5-6 (S.D.N.Y. Jan. 29, 2018); Style v. Mackey, No. 17

Civ. 1691, 2020 WL 3055319, at *4 (E.D.N.Y. June 8, 2020); Oliveras, 440 F.Supp.3d at 373.

10 Santos does not raise this same argument with respect to Powell’s due process claim.

Def. Mem. at 11 (quotation marks omitted). Again, I am not convinced. Unlike Abbasi (which

concerned matters of national security and challenges to high-level Executive branch policy, see

Abbasi, 137 S. Ct. at 1860-63), or Hernandez (which concerned issues of international relations,

national security, and immigration policy; took place against the backdrop of federal statutes that

limited recovery for any injuries occurring abroad; and had garnered specific attention from

Congress, see Hernandez, 140 S. Ct. at 744-49), the malicious prosecution claim here challenges

the same species of run-of-the-mill, low-level law enforcement behavior at issue in Bivens itself.

Tellingly, the potential negative “interference” identified by Santos–––that

allowing Powell’s malicious prosecution Bivens claim here would interfere with prosecutorial

discretion and further disincentivize law enforcement from sharing information with prosecutors,

Def. Mem. at 11–––is inapplicable to the present case. Powell claims that Santos lied in sworn

statements in order to fabricate evidence to support his meritless prosecution. Prosecutors surely

have discretion as to a wide range of actions, but nowhere in this prerogative is the prosecutorial

right to bring a case based on outright lies. And if Santos is right that a Bivens claim here would

“disincentivize law enforcement” from fabricating evidence, Def. Mem. at 11, then that is all the

more reason to permit Powell’s claim to proceed. Cf., e.g., Lanuza v. Love, 899 F.3d 1019, 1033

(9th Cir. 2018) (“[A] Bivens action here will produce widespread litigation only if ICE attorneys

routinely submit false evidence, which no party argues is the case. And if this problem is indeed

widespread, it demonstrates a dire need for deterrence, validating Bivens’s purpose.”); Engel,

710 F.3d at 708 (applying Bivens to Brady claims and noting, “we cannot see how prosecutors

and law-enforcement officers could be ‘overdeterred’ in the disclosure of exculpatory material to

criminal defendants”).

Because the Supreme Court has made clear that separation of powers principles

are “central” to the Bivens analysis, see Hernandez, 140 S. Ct. at 743, I close this discussion with

a response to the question of “whether the Judiciary is well suited, absent congressional action or

instruction, to consider and weigh the costs and benefits” of allowing a Bivens action to proceed,

Abbasi, 137 S. Ct. at 1858. The right Powell seeks to vindicate—whether framed as a malicious

prosecution under the Fourth Amendment or a due process violation under the Fifth—is the right

of citizens to be free from prosecution on the basis of false evidence adduced by federal officers.

It is no exaggeration to say that this right–––which stems from the legal system’s

unflagging obligation to pursue truth and justice–––lies near the core of what the Judicial Branch

is entrusted with securing. See Sherman v. United States, 356 U.S. 369, 380 (1958) (Frankfurter,

J., concurring) (“The federal courts have an obligation to set their face against enforcement of

the law by lawless means or means that violate rationally vindicated standards of justice.”). The

Ninth Circuit, in extending Bivens to an alien’s claim that a federal immigration officer falsified

evidence to support removal proceedings against the alien, explained why lawsuits involving the

falsification of evidence by government officers are well-suited to Article III adjudication:

Judges are particularly well-equipped to weigh the costs of constitutional

violations that threaten the credibility of our judicial system. Indeed, there are

few persons better equipped to weigh the cost of compromised adjudicative

proceedings than those who are entrusted with protecting their integrity. And,

more often than not, the Judicial Branch, not Congress or the Executive, is

responsible for remedying circumstances where a court’s integrity is

compromised by the submission of false evidence. Thus, it falls within the

natural ambit of the judiciary’s authority to decide whether to provide a remedy

for the submission of false evidence …

Lanuza, 899 F.3d at 1032-33.

I could not agree more. The right to be free from false testimony and prosecution

is essential to the integrity of the judicial process. And given that malicious prosecution and due

process claims are familiar in this court and Circuit, see, e.g., Lanning v. City of Glens Falls, 908

F.3d 19, 25-28 (2d Cir. 2018) (discussing at length the federal standard for malicious prosecution

actions); Ganek, 874 F.3d at 90 (reviewing the elements of a claim for violation of due process);

Garnett v. Undercover Officer COO39, 838 F.3d 265, 274 (2d Cir. 2016) (“No arrest … gives an

arresting officer or his fellow officers license to deliberately manufacture false evidence against

an arrestee.”) (alterations and quotation marks omitted), there are no discernible “difficult[ies] in

defining a workable cause of action,” Wilkie, 551 U.S. at 539.

In sum, in the narrow circumstances alleged here–––a federal law enforcement

officer fabricating evidence in furtherance of a malicious prosecution, in direct violation of the

Fourth Amendment–––I conclude that no special factors counsel hesitation toward extension of

Bivens and deny the motion to dismiss Powell’s claims on that basis. Indeed, if I were to permit

federal officers to fabricate evidence without repercussions, it would have consequences beyond

Powell’s case. It would cause society to lose faith that the government plays fair.

B. Personal Involvement

Santos next argues that Powell fails to plead that she was personally involved

with the misconduct alleged. See Def. Mem. at 12-14; Def. Reply Mem. at 8-9. I disagree. The

Complaint alleges that Santos, despite knowing that the warrant only covered the first two floors

of the Building, proceeded to search the third floor, see Compl. at ¶¶ 55-62; that Santos, despite

knowing that the contraband recovered on the third floor belonged to a tenant other than Powell,

swore to an affidavit that falsely identified the evidence as belonging to Powell, see id. at ¶¶ 63-

76; and that Santos was among the officers who orally assured the prosecutors during Powell’s

motion to suppress proceedings that the evidence was lawfully obtained, see id. at ¶¶ 103-04.

Santos complains that these allegations charge Santos along with other officers, amounting to an

improper “group pleading.” Def. Mem. at 13. But the fact that Santos is alleged to have violated

Powell’s constitutional rights in the company of other officers does not somehow erase the fact

that Santos is alleged to have violated Powell’s rights–––when it comes to unconstitutional

searches, seizures, and misrepresentations of evidence, there is no such thing as safety in

numbers.11

C. Qualified Immunity

Finally, Santos contends that Powell’s claims are barred by qualified immunity.

See Def. Mem. at 19-20. The burden to establish this defense falls on Santos, see, e.g., Vincent

v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013), and she has failed to meet it. “Qualified immunity”

“protects public officials performing discretionary functions from personal liability in a civil suit

for damages insofar as the conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Id. (quotation marks omitted).

Powell contends that Santos–––albeit with some help–––arrested him despite

knowing that she had exceeded the scope of the search warrant, and made false representations in

furtherance of Powell’s ultimately-dismissed prosecution. The rights to be free from warrantless

searches and fabricated evidence are, unsurprisingly, “clearly established.” See, e.g., United

States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (“A search must be confined to the terms and

limitations of the warrant authorizing it.”); Simon v. City of New York, 893 F.3d 83, 88 (2d Cir.

2018) (“[I]t is self-evident that a seizure conducted pursuant to an arrest warrant must conform to

11 The cases cited by Santos in her brief are inapposite, both because they involved far more egregious complaints

and because the decisions recognized that specificity is required only to the degree that it puts officers on notice of

their allegedly improper acts. Here, if Santos wants to know what Powell complains of, she need only review the

Complaint, which charges her with knowingly exceeding the limitations of a warrant, and knowingly swearing to an

affidavit that incorrectly attributed the recovered drugs and drug paraphernalia to Powell. See Atuahene v. City of

Hartford, 10 F. App’x 33, 34 (2d Cir. 2001) (affirming dismissal where pro se plaintiff, after having the opportunity

to amend the complaint, “failed to identify any factual basis for the legal claims made,” and failed to “identify which

defendants were alleged to be responsible for which alleged violations,” while also noting that a complaint need not

be a “model of clarity or exhaustively present the facts alleged” so long as it gives defendants “fair notice” of claims

against them) (quotation marks omitted); Sanusi v. Dep’t of Homeland Sec., No. 06 Civ. 2929, 2014 WL 1310344, at

*6 (E.D.N.Y. Mar. 31 2014) (dismissing where plaintiff “only broadly contend[ed] that defendants were responsible

for the length and conditions of his confinement” without otherwise alleging their personal involvement).

And for the same reasons discussed in this subsection, Santos’s argument that Powell has failed to properly plead to

his malicious prosecution claim is meritless. The Complaint specifies that Santos knowingly exceeded the scope of

the warrant, falsely represented that the evidence was recovered from premises authorized for search by the warrant,

and did not correct Doherty’s materially inaccurate arrest report.

the terms of that warrant.”) (quotation marks omitted); United States v. Nejad, 436 F.Supp.3d

707, 733 (S.D.N.Y. 2020) (the “[s]eizure of items outside the scope of a search warrant is

unconstitutional…”) (quotation marks omitted); Napue v. People of State of Ill., 360 U.S. 264,

269 (1959) (“The principle that a State may not knowingly use false evidence … to obtain a

tainted conviction” is “implicit in any concept of ordered liberty”); Zahrey, 221 F.3d at 355 (“It

is firmly established that a constitutional right exists not to be deprived of liberty on the basis of

false evidence fabricated by a government officer.”); Morse v. Fusto, 804 F.3d 538, 547 (2d Cir.

2015) (“[E]veryone possesses the … right not to be deprived of liberty as a result of the

fabrication of evidence…”) (quotation marks omitted). The Second Circuit has held that, absent

“extraordinary circumstances, [i]f the law was clearly established, the immunity defense

ordinarily should fail.” Vincent, 718 F.3d at 166 (quotation marks omitted). Santos has failed to

identify any “extraordinary circumstances,” and, thus, she has failed to demonstrate entitlement

to the defense of qualified immunity.12 No reasonable officer would have thought it lawful to

wholly disregard and violate the terms of a warrant, much less thought it lawful to shroud this

violation for purposes of sustaining a criminal prosecution.

Conclusion

For the foregoing reasons, Santos’s motion to dismiss is granted in part and

denied in part. With respect to Powell’s false arrest (Count IV), malicious prosecution (Count

V), and due process (Count VI) claims, the motion is denied. In all other respects the motion is

granted. The parties shall appear for a status conference at 10:00 a.m. on September 11, 2020, to

12 In arguing otherwise, Santos contorts Powell’s claims. For instance, Santos describes the Complaint as alleging

that she “omitted to include an additional statement correcting a purportedly false statement as to which apartment

was searched,” and intimates that Powell’s claim is that Santos was not “entitled to rely on the search warrant signed

by the judge,” Def. Mem. at 20. But Powell in fact alleges that Santos falsely maintained that the drugs found in the

Building were in Powell’s possession (i.e., found on the first two floors of the apartment and not on the third floor,

which—aside from being outside the warrant—bore indicia of belonging to another person), disregarded the scope

of the warrant, and was among the officers who assured prosecutors that the contraband was found during a search

that abided by the terms of the warrant during the course of proceedings on Powell’s state court motion to suppress.

chart a course for the remainder of this litigation. The Clerk is hereby directed to close the open

motion (ECF No. 44).

SO ORDERED.

Dated: August 31, 2020 ______________/s/_____________

New York, New York ALVIN K. HELLERSTEIN

United States District Judge