# Powell v. United States of America

> District Court, S.D. New York · August 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10325498

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10325498

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
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. :
-------------------------------------------------------------- X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10325498. Public record. Not legal advice.