Garcia Jimenez v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

:

JENNIFER GARCIA JIMENEZ, on behalf of her

minor daughter “J.M.”, FRANKLIN :

CAMPOVERDE, and JOAN MANUEL

: MEMORANDUM DECISION AND

JIMENEZ,

ORDER

Plaintiff, :

23-CV-9476 (AMD) (RLM)

:

– against – :

:

COUNTY OF SUFFOLK, SUFFOLK COUNTY

POLICE DETECTIVE SOLON PARKER, :

SUFFOLK COUNTY POLICE

COMMISSIONER RODNEY K. HARRISON, :

SUFFOLK COUNTY DISTRICT ATTORNEY :

RAYMOND A. TIERNEY, SUFFOLK

COUNTY ASSISTANT DISTRICT :

ATTORNEY WILLIAM C. NASH, POLICE

:

OFFICER DANIEL LILLIS, TOWN OF EAST

HAMPTON, EAST HAMPTON TOWN :

POLICE CHIEF MICHAEL D. SARLO, EAST

HAMPTON TOWN POLICE DETECTIVE :

RYAN HOGAN, EAST HAMPTON TOWN :

SUPERVISOR PETER VAN SCOYAC,

“STATE” “DOES” 1-20 and “FEDERAL” :

“ROES” 1-20,

:

Defendants. ::

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ANN M. DONNELLY, United States District Judge:

The plaintiffs assert various claims pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U.S. 388 (1971), and state law, arising out of the October 5, 2022

execution of a search warrant at the plaintiffs’ Montauk home. Before the Court are the

defendants’ motions to dismiss the amended complaint. (ECF Nos. 44, 46, 47, 62.) For the

reasons that follow, the motions are granted in part and denied in part, and the plaintiffs’ request

for leave to amend a second time is denied.

BACKGROUND1

a. The Search of 361 Flamingo Avenue

On October 4, 2022, defendant Solon Parker, a Suffolk County detective, signed an

affidavit in support of an application for a no-knock search warrant for 361 Flamingo Avenue in

Montauk, New York, where the plaintiffs lived. (ECF No. 34 ¶ 44; ECF No. 44-2.) Parker

affirmed that there was “probable cause to believe that Cocaine and/or evidence related to the

possession and the distribution of same reside at the premises . . . .” (ECF No. 44-2 at 2.) Parker

alleged that Anuedis Garces-Medrano, a target of a task force investigation into a cocaine

distribution enterprise, “resided at this location” until “approximately one month ago.” (Id. at 5.)

Additionally, Parker described an undercover drug purchase, in which the seller left from 361

Flamingo Avenue to meet the undercover buyer and returned to the address immediately after

selling the drugs. (Id.)

Based on the affidavit, Justice Steven A. Pilewski of the New York Supreme Court

signed a search warrant on October 4, 2022. (ECF No. 34-3.) The warrant authorized the search

of the premises at 361 Flamingo Avenue for the following:

Cocaine; U.S. currency as proceeds of the illicit drug business; books and records

reflecting transactions of the illicit drug business; cellular telephones; drug

paraphernalia related to the storage and distribution of controlled substances; items

constituting indicia of knowing possession, ownership or control of the premises or

of the contraband including, but not limited to, bills, receipts and other personal

effects indicating such ownership, knowledge or control.

(Id. at 3.) In addition, the warrant said that “361 Flamingo Avenue is believed to be

occupied by Anuedis Garces-Medrano.” (Id.)

1 The facts are drawn from the allegations in the plaintiffs’ amended complaint, documents incorporated

by reference into the amended complaint, documents appended or integral to the amended complaint.

See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). The Court draws all reasonable inferences in

the plaintiffs’ favor and accepts the factual allegations in the amended complaint as true for purposes of

this motion. See Town of Babylon v. Fed Hous. Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012).

The following day, “various law enforcement officials” executed the warrant. (ECF No.

34 ¶ 45.) Officers in “military uniforms” “barged into” the house at 6:00 a.m., and “pointed guns

at” plaintiffs Franklin Campoverde and Juan Manuel Jimenez, as well as at J.M., plaintiff

Jennifer Garcia Jimenez’s 11-year-old daughter. (Id. ¶ 46.) One set of officers asked

Campoverde, “where the drugs and money were, while holding a gun to his face.” (Id. ¶ 48.)

Another group “used a battering ram” to “barge into the bathroom,” causing the door to hit

Jimenez and cut his foot. (Id. ¶ 49.) The officers handcuffed Jimenez and Campoverde, injuring

Campoverde’s shoulder, and held them at the house for over three hours. (Id. ¶¶ 48–49, 51.)

They did not get medical attention for Jimenez’s foot injury, which bled as he remained

handcuffed. (Id. ¶ 58.) The officials did not respond when Jimenez and Campoverde asked to

have their handcuffs loosened. (Id. ¶ 51.)

Garcia Jiminez was not at 361 Flamingo Avenue when the warrant was executed, but the

officers detained her outside the house when she arrived to check on J.M. (Id. ¶ 59.) The

officers kept J.M. in the house, separated from her mother, for nearly an hour and did not allow

her to use the bathroom. (Id. ¶ 60.) The officers ultimately brought J.M. out of the house and let

her stand with her mother, but “forced [them] to stand in the rain” and still did not let them use

the bathroom. (Id. ¶¶ 63–65.)

Officers seized “cellphones, marriage licenses, car titles, a ‘Nokia camera,’” computers,

and approximately $14,000 in cash during the search. (Id. at ¶¶ 53–54.) “The officers did not

leave any receipts nor any inventory.” (Id. ¶ 55.) Despite “strenuous efforts” to recover the

seized property, $14,000 of the seized money remains unaccounted for and has not been returned

to the plaintiffs. (Id. ¶ 74.) The plaintiffs’ efforts to recover these funds included initiating an

internal investigation within the Suffolk County Police Department (id. ¶ 76), emailing and

calling the county police commissioner (id. ¶ 77), and emailing the chief of the civil division in

the United States Attorney’s Office for the Eastern District of New York (id. ¶ 78). None of

these avenues proved fruitful. The seized computers and cellphones were returned, but they

were damaged and broken. (Id. ¶ 75.)

b. Procedural History

The plaintiffs filed this action on December 26, 2023. (ECF No. 1.) The original

complaint named eight individual defendants, all of whom worked for Suffolk County, the Town

of East Hampton, or the Town of Southold: Solon Parker, a detective in the Suffolk County

Police Department; Rodney K. Harrison, the Suffolk County Police Commissioner; Raymond A.

Tierney, the Suffolk County District Attorney; William C. Nash, a Suffolk County Assistant

District Attorney; Daniel Lillis, a police officer in the Southold Police Department; Michael D.

Sarlo, the East Hampton Police Chief; Ryan Hogan, a detective in the East Hampton Police

Department; and Peter Van Scoyac, the East Hampton Town Supervisor. In addition, the

complaint named Suffolk County and the Town of East Hampton as defendants. Finally, the

plaintiffs asserted claims against Does 1–20 and Roes 1–20, who the plaintiffs allege are the

unknown state and federal officers, respectively, that executed the search warrant.2

The plaintiffs brought a litany of claims against these defendants in a nine-count

complaint that spanned more than 80 pages and included 15 exhibits. On February 14, 2024, the

2 On September 3, 2024, Magistrate Judge Steven Locke denied the plaintiffs’ fourth motion for an

extension of time to serve the unnamed federal defendants and dismissed the claims against those

defendants without prejudice. (ECF Order dated Sept. 9, 2024.) Judge Locke explained that the

plaintiffs had not served either the unidentified individual defendants or the United States, as required

by Rule 4(i). (Id.) He also noted that he had already extended the time to serve on three prior

occasions, which gave the plaintiffs over seven months to identify and serve the Roe defendants. (Id.)

Finally, Judge Locke held that the plaintiffs would not be prejudiced by the denial because their claims

against the federal defendants would be timely for more than a year. (Id.; see also Viera v. United

States, No. 24-CV-1862, 2024 WL 2219434, at *3 (S.D.N.Y. May 14, 2024) (statute of limitations for

Bivens claim is three years for conduct that occurred in New York).)

Town of East Hampton answered the complaint on behalf of the municipality and defendants

Sarlo, Hogan, and Van Scoyac (collectively the “Town defendants”). (ECF No. 18.) On March

20, 2024, defendant Tierney requested a pre-motion conference to discuss his anticipated motion

to dismiss. (ECF No. 23.) The Court ordered the remaining defendants to state whether they

joined in the request. (ECF Order dated Mar. 21, 2024.) Suffolk County, on behalf of the

municipality and defendants Harrison, Nash, and Parker (collectively the “County defendants”)

joined the request (ECF No. 24), and the Town defendants explained that they joined any request

that challenged the complaint under Federal Rule of Civil Procedure Rule 8, even though they

had already filed their answer (ECF No. 27).

The Court held a pre-motion conference on April 24, 2024, at which it expressed its

concerns about the labyrinthine complaint and cautioned the plaintiffs that the complaint as

drafted did not provide the defendants with sufficient notice of their individual conduct and

raised inappropriate arguments at the expense of potentially meritorious claims. (See, e.g., ECF

No. 53 at 10:7–16, 13:7–16.) The Court suggested — though did not order — that the plaintiffs

amend their complaint to focus their factual allegations and to narrow their claims before the

parties briefed the defendants’ anticipated motions to dismiss. (Id. at 13:17–14:2.) To ensure

that the amended complaint would comply with Federal Rule of Civil Procedure 8, the Court

ordered that the amended complaint not exceed 50 pages. (Minute Entry dated Apr. 24, 2024.)

The plaintiffs filed an amended complaint on June 10, 2024. (ECF No. 34.) The

amended complaint is precisely 50 pages, but there is no relevant difference between the original

and the amended complaint. The amended complaint has the same number of paragraphs (269),

claims (nine), and exhibits (15). It appears that plaintiffs succeeded in cutting 30 pages from the

original complaint by adjusting the font size and page margins, excising block quotes, and

shortening certain phrases. (Compare, e.g., ECF No. 1 ¶ 3 (“The causes of actions also include”)

with ECF No. 34 ¶ 3 (“The claims include”); ECF No. 1 ¶ 137 (quoting at length from a

statement issued by the Department of Justice, which was also attached as an exhibit) with ECF

No. 34 ¶ 137 (removing quoted language and stating that the same document is attached as an

exhibit).) Simply put, the amended complaint did not remedy the serious deficiencies in the first

complaint.

The Court set a briefing schedule for the motions to dismiss (ECF Order dated June 24,

2024), and granted the remaining defendants’ motions to join the briefing schedule (ECF Order

dated June 26, 2024 (defendant Tierney); ECF Order dated July 1, 2024 (defendant Lillis); ECF

Order dated July 1, 2024 (Town defendants)).3 Each of the defendants moved to dismiss. (ECF

Nos. 44, 46, 47, 62.) The plaintiffs opposed those motions in one brief, as the Court directed.

(ECF No. 64.) The County defendants, the Town defendants, and defendant Tierney replied.

(ECF Nos. 65, 68, 69.) The Court held oral argument on March 4, 2025, and asked the County

defendants, the Town defendants, and the plaintiffs to file supplemental letter briefs on the

potential application of Ketcham v. City of Mount Vernon, 992 F.3d 144 (2d Cir. 2021) to the

plaintiffs’ excessive force claims, which the parties did. (ECF Order dated Mar. 4, 2025; ECF

Nos. 74, 75, 76, 77.)

3 Because defendant Lillis answered the amended complaint before filing his motion to dismiss (see ECF

No. 37), his motion “must be deemed a motion for judgment on the pleadings pursuant to Rule 12(c).”

United States v. Pelt, No. 11-CV-6156, 2013 WL 1173898, at *2 (E.D.N.Y. Mar. 18, 2013). This

procedural detail has no effect on the Court’s evaluation of Lillis’s motion because “[a] motion for

judgment on the pleadings pursuant to Rule 12(c) is assessed under the same standard applicable to a

pre-answer motion to dismiss for failure to state a claim.” Stephens v. Maxx Properties, No. 11-CV-

2575, 2012 WL 1949339 at *2 (E.D.N.Y. May 29, 2012) (citing Bank of N.Y. v. First Millennium, Inc.,

607 F.3d 905, 922 (2d Cir. 2010)).

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Hogan v. Fischer, 738 F.3d 509, 514 (2d Cir. 2013) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). “A claim is plausible ‘when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.’” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir.

2011) (quoting Iqbal, 556 U.S. at 678). Although detailed factual allegations are not required,

the pleading standard “requires more than labels and conclusions, and a formulaic recitation of a

cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(noting that courts “are not bound to accept as true a legal conclusion couched as a factual

allegation”). “A motion for judgment on the pleadings pursuant to Rule 12(c) is assessed under

the same standard applicable to a pre-answer motion to dismiss for failure to state a claim.”

Stephens, 2012 WL 1949339 at *2.

DISCUSSION

The Court “is not required to make arguments for [] represented part[ies]” like the

plaintiffs in this action. Toran v. Cnty. of Nassau, No. 21-CV-5159, 2024 WL 1158982, at *7

(E.D.N.Y. Mar. 18, 2024). Moreover, “[t]his Court may, and generally will, deem a claim

abandoned when a plaintiff fails to respond to a defendant’s arguments that [a] claim should be

dismissed.” Lipton v. Cnty. of Orange, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004) (collecting

cases); see also Chan v. City of New York, No. 19-CV-7239, 2023 WL 2734681, at *8 (E.D.N.Y.

Mar. 31, 2023) (dismissing claim as abandoned where the plaintiff “d[id] not respond to

defendants’ argument that the allegations in plaintiff’s complaint” failed to state a claim); Belfon

v. Credit Check Total Consumerinfo.com, Inc., No. 18-CV-408, 2018 WL 4778906, at *8

(E.D.N.Y. Oct. 1, 2018) (“District courts in this circuit have found that ‘[a] plaintiff’s failure to

respond to contentions raised in a motion to dismiss claims constitute an abandonment of those

claims.’” (quoting Youmans v. Schiro, No. 12-CV-3690, 2013 WL 6284422, at *5 (S.D.N.Y.

Dec. 3, 2013) and collecting cases)).

The amended complaint is extremely difficult to follow. Nevertheless, guided by the

above principles and the parties’ briefing, the Court understands the plaintiffs to assert claims

against the individual defendants under 42 U.S.C. § 1983 for retaliation in violation of the First

Amendment (Count I); for excessive force in the course of executing the search warrant —

specifically, the way officers handcuffed two of the plaintiffs and the force they used to open a

bathroom door, which hit one of the plaintiffs (Count II); for due process violations relating to

the affidavit in support of the search warrant and the defendants’ conduct in the aftermath of the

search, including depriving the plaintiffs’ of their property and defaming them (Count IV); for

various state torts (Count V); for malicious abuse of criminal process (Count VI); for failure to

train (Count VI); and for failure to intervene during the execution of the search warrant (Count

VII).4 The plaintiffs also assert claims for Monell liability against Suffolk County and the Town

of East Hampton on the failure to train and intervene counts, and perhaps the excessive force and

due process counts. Finally, the plaintiffs ask the Court to issue declaratory relief holding that

New York State Criminal Procedure Law §§ 245.20(7), 245.30, 690.50(4) and 690.50(5) are

unconstitutional (Count VIII), and that no-knock warrants — as currently administered —

4 The plaintiffs also style Counts I, II, III, IV, VI, VII, and IX as Bivens claims. “[T]he only proper

defendant for a Bivens claim is an individual federal official.” Viera, 2024 WL 2219434, at *5.

Because Judge Locke dismissed the claims against the federal defendants without prejudice under Rule

4(m), the amended complaint does not state any viable Bivens claim. (See ECF No. 34 ¶ 4 (stating that

the plaintiffs brought Bivens claims against only the federal Roe defendants in their individual

capacities).)

violate substantive and procedural due process (Count IX). The Court deems all other claims

abandoned. 5

Section 1983 Claims

Section 1983 provides, in relevant part, that: “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.

§ 1983. To state a § 1983 claim, a plaintiff must allege: “(1) that the challenged conduct was

‘committed by a person acting under color of state law’; and (2) that such conduct ‘deprived [the

plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United

States.’” Gazzola v. Cnty. of Nassau, No. 16-CV-909, 2016 WL 6068138, at *4 (E.D.N.Y. Oct.

13, 2016) (quoting Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)).

a. Personal Involvement

The Court first addresses the individual defendants’ arguments that at least some of the

claims against them should be dismissed because the plaintiffs do not sufficiently plead the

defendant’s personal involvement in the constitutional violations.

The “personal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.” Back v. Hastings On Hudson Union Free

5 The plaintiffs abandoned (at least) the following claims, to the extent that their complaint could possibly

be read to allege them: a § 1983 right of access claim (Count I) (see ECF No. 44-4 at 6–8; ECF No. 46-1

at 6–8; ECF No. 64 at 31–32); a § 1983 claim that the search warrant was invalid under the Fourth

Amendment for lack of probable cause (Count II) (see ECF No. 44-4 at 9–10; ECF No. 46-1 at 14–15;

ECF No. 64 at 32–34); a § 1983 claim for deliberate indifference to medical need (Count III) (see ECF

No. 44-4 at 15–16; ECF No. 64 at 34–38); a § 1983 claim sounding in substantive due process (Count

III) (see ECF No. 44-4 at 16; ECF No. 64 at 34–38); a § 1983 claim based in equal protection related to

statements made to the press (Count III) (see ECF No. 44-4 at 16–17; ECF No. 64 at 34); a § 1983 claim

against Tierney sounding in equal protection (Count VIII) (see ECF No. 46-1 at 14–15; ECF No. 64 at

47).

Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (quoting McKinnon v. Patterson, 568 F.2d 930, 934

(2d Cir. 1977)). Therefore, to state a claim under § 1983, “a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S.

at 676); see also Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (“If a defendant has not

personally violated a plaintiff’s constitutional rights, the plaintiff cannot succeed on a § 1983

action against the defendant.” (emphasis in original).) Moreover, in Tangreti v. Bachmann, the

Second Circuit held that “there is no special rule for supervisory liability,” and a plaintiff must

still satisfy the same requirements of personal involvement to state § 1983 claims against a

defendant in a supervisory role. Falls v. (Police Officer) Detective Michael Pitt, No. 16-CV-

8863, 2021 WL 1164185, at *32 (S.D.N.Y. Mar. 26, 2021) (quoting Tangreti, 983 F.3d at 618).

Because “[t]he factors necessary to establish a [§ 1983] violation will vary with the

constitutional provision at issue,” the Court considers an individual defendant’s alleged personal

involvement in each constitutional deprivation separately. Tangreti, 983 F.3d at 618 (quoting

Iqbal, 556 U.S. at 676). Accordingly, “[p]leadings that do not differentiate which defendant was

involved in the unlawful conduct are insufficient to state a claim” under § 1983. Ying Li v. City

of New York, 246 F. Supp. 3d 578, 598 (E.D.N.Y. 2017); see also id. (dismissing claims when

the complaint “simply recite[d] the same conclusory, formulaic, and non-substantive allegations

as to each of these Defendants”); Thomas v. Venditto, 925 F. Supp. 2d 352, 363 (E.D.N.Y. 2013)

(“[I]t is insufficient for the plaintiffs to rely on group pleading against these defendants without

making specific factual allegations against them.” (alterations adopted)); Leneau v. Ponte, No.

16-CV-776, 2018 WL 566456, at *15 (S.D.N.Y. Jan. 25, 2018) (dismissing § 1983 claims that

relied on group pleading).

i. Detective Parker

The gravamen of the plaintiffs’ allegations against Parker is that he made false statements

in the affidavit in support of the search warrant (the “Parker Affidavit”). (ECF No. 34 ¶¶ 44,

131, 138, 178.) The complaint also states that Parker signed an inventory statement, which the

plaintiffs claim was fabricated. (Id. ¶¶ 68, 76, 249.) Finally, the complaint suggests — though

does not allege directly — that Parker had policy-making authority. (Id. ¶ 120.) However, for

the reasons discussed below, the plaintiffs do not plausibly allege a constitutional violation

related to Parker’s personal involvement in signing the affidavit or inventory, and so those

claims are dismissed.

Separately, the plaintiffs do not plead that Parker was present at 361 Flamingo Avenue

when the officers executed the warrant, and they do not allege that he personally used excessive

force or that he witnessed any officer using excessive force. Therefore, the causes of action

related to excessive force, including Count II (Fourth Amendment) and Count VII (failure to

intercede), must be dismissed against Parker.

Additionally, while the complaint states that Parker and others “transgressed Plaintiffs’

[First] Amendment rights by their conjoined conduct, customs, policies and procedures” (id.

¶ 103), this conclusory allegation does not plead that Parker did anything specific to retaliate

against the plaintiffs for exercising their First Amendment rights. Accordingly, Count I (First

Amendment) must also be dismissed against Parker.

Because Parker is not a supervisor and the plaintiffs do not allege that he had any duty to

train or to set county policy, Count VIII (failure to train and supervise) must be dismissed against

him, too.

ii. Commissioner Harrison

The plaintiffs’ only specific allegation about Harrison is that he did not respond to

counsel’s calls or emails related to the plaintiffs’ attempt to recover the $14,000, and generally,

that he did not compel officers in the Suffolk County Police Department to cooperate with the

internal investigation. (ECF No. 34 ¶¶ 76–77, 87.) The plaintiffs also allege that Harrison

refused to do a complete investigation into the seized property and “thwart[ed]” the plaintiffs’

attempts to recover their property. (Id. ¶¶ 113, 115.)

The remaining allegations that mention Harrison are conclusory, non-substantive and do

not plead anything specific that Harrison did to cause any alleged constitutional violation. (See,

e.g., id. ¶¶ 168 (Harrison and others “caused to be confiscated over $14,000.00”), 203 (Harrison

and others “deliberately, intentionally, maliciously, and recklessly failed to adequately train and

supervise” officers “on the fundamental core principles of police work”).) Thus, these claims are

dismissed.

While the plaintiffs plead Harrison’s personal involvement in the conduct underlying

Counts I and III — that he obstructed the internal investigation in violation of the due process

clause and refused to help the plaintiffs collect their property in retaliation against Campoverde

for initiating the internal investigation, in violation of the First Amendment — as explained

below, the plaintiffs do not plausibly allege a constitutional violation related to this conduct, so

those claims against Harrison are dismissed.

iii. District Attorney Tierney

The complaint alleges that Tierney issued a press release that falsely implied that the

plaintiffs were drug dealers and did so “merely to achieve some self-promotional objective.”

(ECF No. 34 ¶¶ 70, 73, 81, 97.) The plaintiffs also contend that Tierney obstructed their

attempts to recover their seized property and to learn additional information about the October 5,

2022 search — at least in part to retaliate against Campoverde for initiating an internal

investigation. (Id. ¶¶ 86–87, 89, 104–07, 113, 115.) Finally, the complaint asserts that Tierney

“delegated” certain duties and “reposed confidence” in Parker, Nash, and others who were

responsible for securing the search warrant. (See, e.g., id. ¶¶ 139, 142, 145–50.)

Therefore, the plaintiffs plead Tierney’s personal involvement only in the alleged

constitutional violations underlying Counts I and III — that Tierney obstructed the internal

investigation and the plaintiffs’ attempts to recover their property to retaliate against

Campoverde for initiating the investigation and defamed the plaintiffs in a press release.

However, for the reasons discussed below, the plaintiffs do not plausibly allege a constitutional

violation related to this conduct, and so those claims against Tierney are dismissed.

The remaining allegations against Tierney are conclusory and, even when accepted as

true, insufficient to state a claim. The plaintiffs’ assertions that Tierney delegated duties related

to securing the search warrant are obviously deficient. The complaint does not allege that

Tierney delegated these duties outside the standard operation of the district attorney’s office; and

this “delegate down” theory of liability, where there are no allegations that Tierney personally

did anything to secure the warrant, is precisely what the Second Circuit meant when it held that

“[t]he violation must be established against the supervisory official directly.” Tangreti, 983 F.3d

at 618. Accordingly, all the remaining claims against Tierney are dismissed.

iv. Assistant District Attorney Nash

The plaintiffs claim that Nash was directly involved in investigating the case and

misleading the judge who signed the search warrant. (ECF No. 34 ¶ 44.) Yet they do not allege

that Nash took any specific actions to secure the warrant, only that he knew that the Parker

Affidavit was “deliberately misleading.” (Id. ¶ 131.) The complaint also names Nash in the

obstruction and retaliation allegations. (Id. ¶¶ 87–88, 90, 103–05, 113, 115.) The only specific

allegation against Nash is that he wrote the plaintiffs’ counsel an email in which he stated that he

would “look into this again and send another release to Property for your client at 361 Flamingo

and advise.” (Id. at ¶ 90.) The other allegations about Nash are conclusory, non-substantive, and

do not sufficiently plead his personal involvement in the alleged constitutional violations.

Accordingly, the remaining claims against Nash are dismissed.

While the complaint pleads that Nash personally participated in the constitutional

violations underlying Counts I and III — preventing the plaintiffs from recovering their property

and retaliating against them — as discussed below, the plaintiffs do not plausibly allege a

constitutional violation related to this conduct, and so those claims against Nash are dismissed.

v. Officer Lillis

The few allegations against Lillis are related to the receipt of the seized cash. (ECF No.

34 ¶¶ 16, 53, 68.) The plaintiffs claim that Lillis “failed to include any reference to, or any

accounting of” the approximately $14,000 that was seized during the search. (Id. ¶ 53.) They

further allege that Lillis “mishandled, converted, trespassed, and/or stole” this money.

(Id. ¶ 186.) While these allegations are sufficient to plead Lillis’s personal involvement in Count

II, for the reasons discussed below, the plaintiffs do not sufficiently allege a constitutional

violation, and so those claims against Lillis are dismissed. And because the complaint does not

otherwise plead Lillis’s personal involvement, the remaining claims against Lillis are dismissed

as well.

vi. Chief Sarlo and Detective Hogan

The complaint’s allegations against Sarlo and Hogan are substantively the same. The

plaintiffs alleges that the Doe officers executed the search warrant “with the direct personal

involvement of Hogan [and] Sarlo.” (ECF No. 34 ¶ 45.) The plaintiffs do not specify, however,

how Sarlo or Hogan were personally involved. The closest they come is to suggest that the

search warrant was issued “as a result” of the “joint efforts” of Hogan among others. (Id. ¶ 44.)

The complaint also claims that Sarlo and Hogan “caused to be confiscated over $14,000.00”

from the plaintiffs and “deliberately failed to provide for the emergency medical services” during

the execution of the search warrant. (Id. ¶¶ 94, 168.) Yet they do not allege that either Sarlo or

Hogan were at the scene where the warrant was executed. They also claim that Sarlo refused to

investigate the whereabouts of the seized cash and “thwart[ed]” the internal investigation of the

Suffolk County Police Department. (Id. ¶¶ 113, 115.) But the complaint offers no further

description of their conduct. These allegations are plainly insufficient to establish that these

defendants were personally involved in any of the alleged constitutional violations. Accordingly,

all claims against these defendants are dismissed.

vii. Town Supervisor/Commissioner Van Scoyac

The complaint does not allege that Van Scoyac took any specific, individual action.

Indeed, not a single allegation in the complaint (except for his identification as a party) names

Van Scoyac alone, without at least two other defendants. (See, e.g., ECF No. 34 ¶¶ 93, 94, 113,

115, 120, 168.) Group pleading like this does not give the defendants fair notice of the claims

against them. Accordingly, all claims against Van Scoyac are also dismissed.6

b. Absolute Prosecutorial Immunity7

Tierney and Nash also argue that they are entitled to absolute prosecutorial immunity.

(ECF No. 44-4 at 13; ECF No. 46-1 at 5.) “Prosecutors are absolutely immune from liability in

§ 1983 suits brought against prosecutorial actions that are ‘intimately associated with the judicial

phase of the criminal process.’” Van de Kamp v. Goldstein, 555 U.S. 335, 335 (2009) (quoting

Imbler v. Pachtman, 424 U.S. 409, 428, 430 (1976)). To the extent that a prosecutor is sued in

his or her official capacity, “such a suit is deemed to be a suit against the state, and the official is

entitled to invoke the Eleventh Amendment immunity belonging to the state.” Ying Jing Gan v.

City of New York, 996 F.2d 522, 529 (2d Cir. 1993). “[D]istrict courts are encouraged to

determine the applicability of an absolute immunity defense at the earliest appropriate stage, and

preferably before discovery . . . and before assessing whether a plaintiff has sufficiently alleged a

constitutional violation.” Kanciper v. Lato, 989 F. Supp. 2d 216, 229 (E.D.N.Y. 2013) (quoting

Moye v. City of New York, 11-CV-316, 2012 WL 2569085, at *4 & n.3 (S.D.N.Y. July 3, 2012)).

Tierney and Nash argue that they are absolutely immune from any claim regarding the

validity of the search warrant. The plaintiffs respond that Tierney and Nash were not acting in

6 In any event, town supervisors “acting in their legislative capacity are immune from civil liability.”

Highview Properties D.H.F. Inc. v. Town of Monroe, 606 F. Supp. 3d 5, 27 (S.D.N.Y. 2022); see also

Ferreira v. Town of E. Hampton, 56 F. Supp. 3d 211, 237 (E.D.N.Y. 2014) (East Hampton town

supervisor immune from due process claims, where only claimed personal involvement was legislative).

7 The defendants each argue that they are entitled to qualified immunity on various of the plaintiffs’

claims. Because the Court disposes of the claims to which these arguments are presently relevant on

other grounds, the Court does not address the defendants’ qualified immunity arguments. See Birch v.

City of New York, 184 F. Supp. 3d 21, 28 (E.D.N.Y. 2016) (cautioning that while qualified immunity is

a shield from suit, a district court “must approach the issue of qualified immunity with particular caution

when it is raised in a motion under Federal Rule of Civil Procedure 12(b)(6)”), aff’d, 675 F. App’x 43

(2d Cir. 2017).

their prosecutorial capacities when they engaged in the alleged constitutional violations and are

therefore not entitled to absolute immunity. (ECF No. 34 at 23.) Under the “functional approach

used in this Circuit,” the labels a plaintiff stamps on a prosecutor’s conduct are irrelevant.

Kanciper, 989 F. Supp. 2d at 229. “The ultimate ‘question is whether the prosecutors have

carried their burden of establishing that they were functioning as advocates when they’ engaged

in the challenged conduct.” Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996) (cleaned up)

(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). “Although the line between a

prosecutor’s acts as an advocate and as an investigator is often difficult to draw, the key is the

degree to which the specific conduct at issue is intimately associated with the judicial phase of

the criminal process.” Galgano v. Cnty. of Putnam, New York, No. 16-CV-3572, 2024 WL

1623401, at *63 (S.D.N.Y. Apr. 15, 2024) (cleaned up).

Courts in this district have held that a prosecutor’s “role in the procurement of the search

warrants is protected by absolute immunity.” Kanciper, 989 F. Supp. 2d at 230; see also Bristol

v. Queens Cnty., 09-CV-95544, 2018 WL 5077166, at *26 (E.D.N.Y. Mar. 30, 2018), report and

recommendation adopted, 2018 WL 4328828 (E.D.N.Y. Sept. 11, 2018). Moreover, the

Supreme Court has held that a prosecutor is absolutely immune from claims related to

“appear[ing] in court in support of an application for a search warrant and the presentation of

evidence at that hearing.” Burns v. Reed, 500 U.S. 478, 492 (1991). The same principle applies

here; the plaintiffs do not plead that Tierney or Nash “swore that probable cause existed to

support” the search. Kanciper, 989 F. Supp. 2d at 230; see also id. (holding that prosecutor was

absolutely immune when he “helped to draft and prepare the search warrant materials”). Indeed,

the complaint pleads facts that demonstrate that all of Tierney’s and Nash’s allegedly illegal

conduct took place after the prosecutors believed they had probable cause to search the premises.

(See ECF No. 34 140–42.) Accordingly, these defendants were operating in their prosecutorial

function in procuring the October 5th search warrant.

c. First Amendment Retaliation Claim

The plaintiffs allege that the defendants retaliated against them for initiating an internal

investigation, in violation of their First Amendment rights, by refusing to provide material to

which the plaintiffs insist they were entitled.

To plead a First Amendment retaliation claim, a plaintiff must allege: “(1) he has a right

protected by the First Amendment; (2) the defendant’s actions were motivated or substantially

caused by his exercise of that right; and (3) the defendant’s actions caused him some injury.”

Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). This claim cannot survive the

motions to dismiss because the plaintiffs have not sufficiently alleged that Tierney or Nash

caused them concrete harm.8

As best as the Court can tell, the plaintiffs’ theory is this: Campoverde, exercising his

First Amendment right to petition, filed a grievance against the Suffolk County Police

Department, which initiated an investigation coordinated by the internal affairs bureau. (ECF

No. 34 ¶ 76.) Tierney, Nash, and Does then “obstructed . . . and stonewalled” the plaintiffs’

attempts to get certain materials, which the plaintiffs wished to provide to the officer in charge of

the internal affairs investigation, as well as information that was otherwise “required” for the

plaintiffs’ anticipated lawsuits in state and federal courts. (Id. ¶¶ 104–05.) The plaintiffs further

allege that “Tierney, Nash, Harrison, [Suffolk] County, [the] Town [of East Hampton], Sarlo,

and Van Scoyac deliberately refused to fully investigate and return all of the seized cash” to

8 As detailed above, the allegations in the complaint are insufficient to state a claim against any other

defendants.

retaliate against Campoverde for filing a grievance. (Id. ¶ 113.) This conduct, the plaintiffs say,

harmed them because it deprived them of their lost property and violated their First Amendment

rights of access to judicial materials and to the courts. (Id. ¶¶ 106–07, 117.)

i. First Amendment Right

“The rights to complain to public officials and to seek administrative and judicial relief

are protected by the First Amendment.” Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir.

1994). Courts in this district have “readily conclude[d]” that a “plaintiff’s complaint to [an

internal affairs bureau] is protected under the First Amendment.” Griffin v. City of New York,

880 F. Supp. 2d 384, 394 (E.D.N.Y. 2012). Accepting the plaintiffs’ allegations as true,

Campoverde engaged in protected conduct when he filed a grievance with the Suffolk County

Police Department.

ii. Harm

A plaintiff must also allege that a defendant’s retaliatory conduct caused an injury, which

requires that he “show either that his speech has been adversely affected by the government

retaliation or that he has suffered some other concrete harm.” Dorsett, 732 F.3d at 160

(emphasis in original).

The plaintiffs maintain that the defendants did not cooperate in — or sought to undermine

— the internal investigation, which deprived the plaintiffs of a “timely, comprehensive IAB

report.” (See ECF No. 64 at 31.) But the plaintiffs also seem to claim that the defendants’

conduct independently violated the plaintiffs’ First Amendment rights — specifically, the right

to get documents related to the search warrant and the right of access to the courts. (See, e.g., id.

¶ 107 (alleging Tierney “thwarted Plaintiffs’ cognizable 1st Amendment . . . right of access . . .

[and] interfered with Plaintiffs’ ability to file a federal suit.”).)

Neither theory of harm is convincing. First, the plaintiffs do not plead a viable harm to

their First Amendment interests — either based on a theory that they were wrongfully denied

access to judicial documents or to the courts. The plaintiffs do not articulate any coherent theory

of the harm related to their alleged failure to obtain documents to which they claim they have a

First Amendment or common law right. While the plaintiffs generally assert these interests (in

legal arguments that are out of place in a pleading), they do not plead that their inability to obtain

these documents caused them any direct harm, only that it prevented them from providing those

materials to investigators or judges. (Id. ¶¶ 108–113.) The plaintiffs cite no case law — and the

Court is not aware of any — that supports this theory of harm in the context of a retaliation

claim.

Moreover, as Tierney notes, the plaintiffs have already used the state courts to assert their

right to the search warrant materials, and the Appellate Division held that they “failed to

demonstrate a clear legal right to the relief sought.” Matter of Weiss v. Pilewski, 219 A.D.3d

1341, 1341 (2d Dep’t 2023), lv to appeal denied, 41 N.Y.3d 961. Therefore, any purported

violations of the plaintiffs’ right of access to the search warrant materials does not satisfy the

harm element for a retaliation claim.

Because the plaintiffs have used the courts to assert their rights, their claim that the

defendants denied them access to the courts is meritless. They brought an Article 78 proceeding

against Judge Pilewski, who signed the search warrant at issue in this case, and sought leave to

appeal the Appellate Division’s denial of that motion, which the Court of Appeals denied. Id.

And obviously, they have brought their claims in this Court. Thus, they have not demonstrated

that the defendants encumbered their right of access to this Court or any other. See, e.g., Oliva v.

Town of Greece, 630 F. App’x 43, 45 (2d Cir. Nov. 17, 2015) (summary order) (a plaintiff must

show “that the defendant took or was responsible for actions that had the actual effect of

frustrating the plaintiff's effort to pursue a legal claim”) (collecting cases); Mahon v. Moultrie,

657 F. App’x 52, 53 (2d Cir. Aug. 24, 2016) (summary order) (“To state a claim of denial of

court access, a plaintiff must allege . . . that the defendant’s actions resulted in actual injury to

the plaintiff.”). “Where a party can show no change in his behavior, he has quite plainly shown

no chilling of his First Amendment right to free speech.” Searle v. Red Creek Cent. Sch. Dist.,

No. 22-2049-CV, 2023 WL 3398137, at *2 (2d Cir. May 12, 2023) (quoting Curley v. Village of

Suffern, 268 F.3d 65, 73 (2d Cir. 2001)).

The plaintiffs cite cases holding that under certain circumstances “actual chilling” is not

required to state a claim for retaliation. (ECF No. 64 at 31 (quoting Gill v. Pidlypchak, 389 F.3d

379, 381 (2d Cir. 2004)). “Various non-speech related harms are sufficient to satisfy the third

requirement for a First Amendment retaliation claim, including a lost government contract,

additional scrutiny at a border crossing, revocation of a building permit, and a refusal to enforce

zoning laws.” O’Reilly v. Inc. Vill. of Rockville Ctr., No. 23-CV-4249, 2024 WL 3328590, at *9

(E.D.N.Y. July 8, 2024) (alterations accepted and internal quotations omitted); see also Searle,

2023 WL 3398137, at *2 (“[I]n limited contexts, other forms of harm have been accepted in

place of this ‘actual chilling’ requirement” to state a claim for retaliation.” (quoting Zherka v.

Amicone, 634 F.3d 642, 645 (2d Cir. 2011)). But the plaintiffs cite no cases — and the Court is

aware of none — that suggest that a plaintiff has a right to a timely or favorable IAB ruling. (See

ECF No. 64 at 31–32.) Accordingly, the complaint does not state a claim for retaliation.

d. Claims Relating to the Warrant9

The plaintiffs assert that Parker “deliberately misl[ed]” Justice Pilewski in the affidavit in

support of the search warrant. (ECF No. 34 ¶¶ 131, 134.) The plaintiffs further allege that Nash

knew that Parker misled the judge but did not correct the error. (Id.) Specifically, the plaintiffs

claim that the Parker Affidavit made Justice Pilewski believe that Anuedis Garces-Medrano lived

at 361 Flamingo Avenue. (Id. ¶¶ 131–34, 140–41.) But a review of the affidavit, which is

incorporated by reference into the complaint, belies the plaintiffs’ claim. Parker swore in the

affidavit that “Garces-Medrano, up until approximately one month ago, resided at” 361 Flamingo

Avenue, and that he was living elsewhere in October 2022. (ECF No. 44-2 at 7.) The plaintiffs

do not argue that this statement was false.10 Instead, they contend that it was a material omission

not to alert the judge that the search warrant incorrectly stated that “361 Flamingo Avenue is

believed to be occupied by Anuedis Garces-Medrano.” (ECF No. 34-3 at 2.) As a result of that

error, the plaintiffs claim, the search warrant was not based on probable cause, and the ensuing

search was unlawful. (See ECF No. 34 ¶ 144; ECF No. 64 at 32–33.)

The plaintiffs assert three claims related to the search warrant: (1) unreasonable seizure,

asserting that law enforcement detained them unlawfully during the execution of the search

warrant; (2) violation of due process; and (3) malicious abuse of criminal process. The

9 The plaintiffs’ request that the Court declare no-knock warrants unconstitutional is denied. “No-knock

warrants . . . are constitutional and permitted by New York law.” Sanders v. City of Rochester, 360 F.

Supp. 3d 152, 163 (W.D.N.Y. 2019) (citing N.Y. C.P.L. § 690.35(4)(b)); see also Lynch v. City of

Mount Vernon, 567 F. Supp. 2d 459, 467 n.5 (S.D.N.Y. 2008) (“The constitutionality, in appropriate

cases, of no-knock search warrants is clearly established.” (citing United States v. Banks, 540 U.S. 31,

36 (2003)).

10 Although the complaint alleges that Parker fabricated evidence in the affidavit (see, e.g., ECF No. 34

¶ 1), the plaintiffs do not argue that the affidavit, as sworn, is false. The Court considers the affidavit

because the plaintiffs incorporated it into the complaint. See Goel, 820 F.3d at 559.

plaintiffs’ allegations of personal involvement are adequate only as to Parker, Nash and the

Does; the warrant claims against the other defendants are dismissed.

As explained below, moreover, because “there was no underlying constitutional

violation, there is also no supervisory liability.” Raspardo v. Carlone, 770 F.3d 97, 129 (2d Cir.

2014). Finally, there are no colorable allegations of a constitutional violation related to the

warrant because the plaintiffs do not state a claim against Parker, Nash or the Does under the

Fourth Amendment or the Fourteenth Amendment, or against Parker and Nash for malicious

abuse of process.11

i. Unreasonable Search and Seizure

“The Fourth Amendment prohibits ‘unreasonable searches and seizures.’” Ganek v.

Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (quoting U.S. Const. amend. IV). “[A] search

pursuant to a warrant issued by a judicial officer upon a finding of probable cause is

presumptively reasonable.” Siddiqui v. Rocheleau, 818 F. App’x 20, 22 (2d Cir. 2020)

(summary order) (quoting Ganek, 874 F.3d at 81); see also Fabrikant v. French, 691 F.3d 193,

215 (2d Cir. 2012) (“The existence of probable cause will defeat a claim of . . . unreasonable

search and seizure.”). Officers executing a search warrant are authorized “to detain the

occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S.

692, 705 (1981); see also Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991) (“Absent

special circumstances, the police of course have the authority to detain occupants of premises

11 It is not at all obvious that the plaintiffs asserted a due process claim separate from the malicious abuse

of process claim. A “malicious abuse of process violates procedural due process rights protected by the

Fifth and Fourteenth Amendments.” Williams v. Young, 769 F. Supp. 2d 594, 603 (S.D.N.Y. 2011).

The plaintiffs’ due process claims related to the warrant are duplicative of the malicious abuse of

process claim or otherwise controlled by the Court’s holding that there was probable cause to search the

residence.

while an authorized search is in progress, regardless of individualized suspicion.”). Moreover,

“[a]n officer’s authority to detain incident to a search is categorical; it does not depend on the

‘quantum of proof justifying detention or the extent of the intrusion to be imposed by the

seizure.’” Muehler v. Mena, 544 U.S. 93, 98 (2005) (quoting Summers, 452 U.S. at 705 n.19).

Accordingly, it is not unreasonable for an officer executing a facially valid search warrant to

detain someone for the time it takes to conduct the search. See, e.g., Bancroft v. City of Mount

Vernon, 672 F. Supp. 2d 391, 403 (S.D.N.Y. 2009) (detention “was not unreasonable when it

lasted for the duration of a search . . . some two to three hours” (citing Muehler, 544 U.S. at

100)).

Given the categorical nature of an officer’s right to detain an individual incident to a

search warrant, the plaintiffs’ detention in this case was unreasonable only if the plaintiffs

overcome the presumption of reasonableness and establish that the warrant was defective. The

“presumption can be defeated by showing that a defendant (1) ‘knowingly and deliberately, or

with a reckless disregard of the truth,’ procured the warrant, (2) based on ‘false statements or

material omissions,’ that (3) ‘were necessary to the finding of probable cause.’” Ganek, 874

F.3d at 81 (quoting Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994)).

In this case, as noted above, it is undisputed that Parker’s statements in the affidavit were

accurate and truthful. However, while Parker stated in the warrant application that the target of

the investigation, Anduedis Garces-Medrano, moved out of 361 Flamingo Avenue a month

earlier, the warrant itself suggested that he still lived there: “361 Flamingo Avenue is believed to

be occupied by Anuedis Garces-Medrano.” (ECF No. 34-3 at 2.) To plead a Fourth Amendment

violation under these circumstances, the plaintiffs would have to allege that the detective, who

swore to the contents of an affidavit free of false statements, nevertheless deliberately misled

Judge Pilewski, by material omission or concealment, into signing a warrant that had, in addition

to the accurate basis, an erroneous basis justifying probable cause. Nothing in the complaint as

pled establishes that this is so. Cf. Washington v. Napolitano, 29 F.4th 93, 105 (2d Cir. 2022)

(“It is clearly established in this Circuit that . . . a concealment, which deprives the judge of

material information that could impact the probable cause determination, would not be protected

by qualified immunity.”)

“[P]robable cause to search exists where circumstances indicate a ‘fair probability that

contraband or evidence of a crime will be found in a particular place.’” Ganek, 874 F.3d at 82

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).12 “[W]here an officer knows, or has

reason to know, that he has materially misled a magistrate on the basis for a finding of probable

cause, as where a material omission is intended to enhance the contents of the affidavit as

support for a conclusion of probable cause, the shield of qualified immunity is lost.”

Washington, 29 F.4th at 105 (quoting Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.

1991)). To determine whether a false statement or omission was necessary to a finding of

probable cause, the Court must “consider a hypothetical corrected affidavit, produced by deleting

any alleged misstatements from the original warrant affidavit and adding to it any relevant

omitted information.” Id. (quoting Ganek, 874 F.3d at 82). If the hypothetical, corrected

affidavit establishes an “objective basis to support arguable probable cause,” then the omission

or false statement was not necessary to the judicial determination, and there was no

constitutional violation. Ganek, 874 F.3d at 82. And even if the material omission were

necessary to the finding of probable cause, the officers executing the search would still be

12 As the County defendants explain, the plaintiffs confuse probable cause necessary for an arrest with

probable cause necessary for a search. (ECF No. 65 at 3 (quoting Ganek, 874 F.3d at 82).)

entitled to qualified immunity because “a similarly situated law enforcement official could have

held an objectively reasonable — even if mistaken — belief that the corrected affidavit

demonstrated the necessary probable cause.” Id. (citing Escalera v. Lunn, 361 F.3d 737, 744 (2d

Cir. 2004)).

In this case, there is no need for the Court to craft a “hypothetical affidavit,” because the

contents of the actual affidavit are accurate. The question is whether the error in the warrant —

the statement that the target still lived at the plaintiffs’ address — was necessary to establish

probable cause. The Court holds that it was not, because the contents of Parker’s affidavit

provide an “objective basis to support arguable probable cause” — that is, that the

“circumstances indicate a fair probability that contraband or evidence of a crime will be found in

a particular place.” Ganek, 874 F.3d at 82 (internal quotations omitted).

Parker swore to the following statements about 361 Flamingo Avenue: (1) the property

had been used in furtherance of drug trafficking; (2) “Garces-Medrano, up until approximately

one month ago, resided at this location with others known to be involved in this illicit operation;”

(3) pole cameras set up around the house captured pedestrian and vehicle traffic over the

previous months consistent with drug sales; and (4) during a controlled purchase, the seller left

from 361 Flamingo Avenue to meet the undercover buyer and returned to that address

immediately after the sale. (ECF No. 44-2 at 2.) These facts provide an objective basis to

support a fair probability that contraband or evidence of a crime would be found at 361 Flamingo

Avenue. Therefore, the warrant was based on probable cause.

Because the search warrant was valid, the plaintiffs’ claim that Campoverde, Jimenez and

J.M. were unlawfully detained while the warrant was executed must also fail. As explained

above, officers executing a search warrant are authorized “to detain the occupants of the

premises while a proper search is conducted.” Muehler, 544 U.S. at 98. Nor is there merit to the

plaintiffs’ suggestion that a different analysis applies to Garcia Jiminez because she arrived at the

address during the execution of the warrant and was not permitted to go inside. The plaintiffs

cite Bailey v. United States, 568 U.S. 186, 199 (2013) for the proposition that officers’ authority

to detain is limited to the people in “the immediate vicinity of the premises to be searched,” but

the Court also envisioned exactly the scenario that occurred here when it observed, “[i]t is likely,

indeed almost inevitable in the case of a resident, that an occupant will return to the premises at

some point; and this might occur when the officers are still conducting the search.” Id. at 195.

When that happens, the police can detain the occupant. Suren v. City of New York, No. 19-CV-

2659, 2022 WL 5414377, at *9 (E.D.N.Y. Aug. 8, 2022) (citing Bailey, 568 U.S. at 196), report

and recommendation adopted as modified, No. 19-CV-2659, 2022 WL 4466098 (E.D.N.Y. Sept.

26, 2022). In this case, the officers detained Garcia Jiminez, an occupant of the searched

premises (see ECF No. 34 ¶ 56), outside the house while they finished the search.

Because the plaintiffs do not allege a colorable constitutional violation based on their

detention, their Fourth Amendment unlawful search claims are dismissed.

ii. Malicious Abuse of Criminal Process

The plaintiffs also allege that securing the search warrant was malicious abuse of

criminal process, but do not sufficiently allege that any defendant used criminal process to obtain

a collateral objective. Accordingly, they do not state a claim on which relief can be granted.

“[W]here the process alleged to have been abused is criminal in nature, an adequately

pled claim for malicious abuse of process is ‘by definition a denial of procedural due process,’”

which may be asserted under § 1983. Peter L. Hoffman, Lotte, LLC v. Town of Southampton,

523 F. App’x 770, 771 (2d Cir. 2013) (summary order) (quoting Cook v. Sheldon, 41 F.3d 73, 80

(2d Cir.1994)). To state a malicious abuse of process claim under New York law, a plaintiff

must plead that a defendant “(1) employ[ed] regularly issued legal process to compel

performance or forbearance of some act (2) with intent to do harm without excuse [or]

justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of

the process.” Savino v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003) (quoting Cook, 41 F.3d

at 80).

The complaint pleads that only Parker, Nash, and the Does were personally involved in

obtaining and executing the warrant.13 To support their claim that these defendants “abused the

Search Warrant to obtain personal gratification and to obtain personal and professional

advantages,” the plaintiffs allege that the defendants: stole $14,000, used “overly aggressive

physical and verbal conduct” to prove their “worthiness” to other officers, “employ[ed]

excessive force,” separated J.M. from her mother, “gratuitously tortur[ed]” the plaintiffs, and

issued press statements “exaggerating” the nature of the investigation. (ECF No. 34 ¶ 177.)

They do not allege, however, that any defendant procured the warrant with the intent to

harm the plaintiffs. Nor do they allege a collateral objective “outside the legitimate ends of the

process.” Savino, 331 F.3d at 76 (emphasis added). Instead, they cite alleged conduct incident

to and intertwined with the legal search based on probable cause as the collateral objective of the

search. Allegations like this cannot form the basis of a malicious abuse of process claim. See,

e.g., Vessa v. City of White Plains, No. 12-CV-6989, 2014 WL 1271230, at *8 (S.D.N.Y. Mar.

27, 2014) (dismissing malicious abuse of process claim even where the plaintiff alleged an

13 “[T]he Second Circuit has emphasized that the ‘gist of abuse of process is the improper use of process

after it is regularly issued.’” Baron v. Lissade, No. 19-CV-6256, 2021 WL 4407836, at *6 (E.D.N.Y.

Sept. 27, 2021) (emphasis in original) (quoting Cook, 41 F.3d at 80). Accordingly, the Court declines

to hold that Nash is absolutely immune from an abuse of process claim.

“improper motive” and “intent to harass and embarrass him” because “such allegations do not

suggest that Defendants acted with an ulterior purpose or objective, but merely with an improper

motive, which is not actionable” (emphasis in original)), aff’d, 588 F. App’x 9 (2d Cir. 2014); see

also Caraballo v. City of New York, 726 F. Supp. 3d 140, 167 (E.D.N.Y. 2024) (“Examples of a

collateral objective include the infliction of economic harm, extortion, blackmail, and

retribution.” (internal citation and quotation omitted)). Accordingly, the abuse of process claims

are dismissed.

e. Excessive Force Claims

The plaintiffs allege that the Doe defendants handcuffed Campoverde and Jiminez too

tightly during the search and used a battering ram on a bathroom door that hit Jiminez, injuring

his foot. (ECF No. 34 ¶¶ 48, 49, 51, 151.)

The Fourth Amendment prohibits a police officer from using “unreasonable and therefore

excessive force.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). “Police officers’

application of force is excessive, in violation of the Fourth Amendment, if it is objectively

unreasonable in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” B. v. City of New York, No. 14-CV-1021, 2016 WL 4530455,

at *10 (E.D.N.Y. Aug. 29, 2016) (quoting Maxwell v. City of New York, 380 F.3d 106, 108 (2d

Cir. 2004)). “Examining the reasonableness of the force used ‘requires careful attention to the

facts and circumstances of each particular case, including [1] the severity of the crime at issue,

[2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3]

whether [the plaintiff] is actively resisting [detention] or attempting to evade [detention] by

flight.” Ketcham v. City of Mount Vernon, 992 F.3d 144, 148–49 (2d Cir. 2021) (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)).

An “officer[ ] executing a search warrant for contraband [has] the authority ‘to detain the

occupants of the premises while a proper search is conducted.’” Muehler, 544 U.S. at 98

(quoting Summers, 452 U.S. at 705). “Inherent in [this] authorization . . . is the authority to use

reasonable force to effectuate the detention.” Id. at 98–99. “Although a de minimis use of force

will rarely suffice to state a constitutional claim, it is the force used, not the injuries caused,

which must be determined to be de minimis as a matter of law.” Harding v. Gould, No. 22-CV-

6285, 2024 WL 3742688, at *6 (S.D.N.Y. Aug. 9, 2024) (internal quotations and citations

omitted); see also Ketcham, 992 F.3d at 150 (“The fact that [the plaintiff’s] injuries were not

severe is insufficient to merit summary judgment.”).

“Given ‘the fact-specific nature of the inquiry on an excessive force claim,’ such claims

are often not amenable to early resolution.” Ayers v. Suffolk Cnty. Dist. Att’y Off., No. 20-CV-

1192, 2022 WL 4539580, at *4 (E.D.N.Y. Sept. 28, 2022) (quoting Lennox v. Miller, 968 F.3d

150, 155 (2d Cir. 2020)); see id. (denying motion to dismiss an excessive force claim). Indeed,

“the question of whether the use of force was reasonable under the circumstances is generally

best left for a jury to decide.” Oakley v. Dolan, 980 F.3d 279, 284 (2d Cir. 2020); see also

Phillips v. City of Middletown, 2018 WL 4572971, at *3 (S.D.N.Y. Sept. 24, 2018) (“When

courts grant motions to dismiss an excessive force claim, it is because the force used was

objectively reasonable as a matter of law.” (internal citation omitted)).

i. The Handcuffing

The Second Circuit has held that “unnecessary handcuff tightening . . . can constitute

excessive force.” Ketcham, 992 F.3d at 150 (citing Cugini v. City of New York, 941 F.3d 604,

612 (2d Cir. 2019)). “With respect to the handcuffing, ‘the question is . . . whether an officer

reasonably should have known during handcuffing that his use of force was excessive.’”

Ketcham, 992 F.3d at 150 (quoting Cugini, 941 F.3d at 613).14 A plaintiff may satisfy this

requirement “if either the unreasonableness of the force used was apparent under the

circumstances, or the plaintiff[s] signaled [their] distress, verbally or otherwise, such that a

reasonable officer would have been aware of her pain, or both.” Cugini, 941 F.3d at 613.

Campoverde and Jiminez allege that they were handcuffed for more than three hours, that

the handcuffs were too tight, that they complained to the officers, and that the officers did not

loosen the cuffs. (ECF No. 34 ¶ 51.) The complaint further alleges that the handcuffing “injured

[Camponverde’s] shoulder.” (Id. ¶¶ 48, 51.)15

These facts, at this stage of the litigation, accepted as true, are sufficient to create a

plausible inherence that the Doe defendants used excessive force when they handcuffed Jiminez

and Campoverde.16

ii. The Foot Injury

Courts in this district have explained that “using a battering ram to enter a dwelling

pursuant to a valid warrant is not excessive force absent some indication of harmful bodily

contact in making the entry.” Lewis v. Bureau of Alcohol, Tobacco & Firearms, No. 16-CV-

14 Earlier district court cases holding that handcuffing injuries “must be more than merely de minimis” to

establish an excessive force claim (see Christian v. Kelly, No. 14-CV-7416, 2016 WL 3162056, at *3

(E.D.N.Y. June 3, 2016) (collecting cases)), appear to be inconsistent with Ketcham.

15 The Court does not include in this list the hyperbolic claims that the officers “torture[d]” the plaintiffs

and “sadistically laughed at them as they suffered.” (ECF No. 34 ¶ 51.)

16 Because none of the parties cited Ketcham in their briefs, the Court asked at oral argument for

supplemental briefing on the case. The County defendants argue that, notwithstanding Ketcham, the

plaintiffs’ excessive force claims should be dismissed because “Campoverde and Jimenez do not

plausibly allege that the handcuffs were tight enough to cause pain, and they do not assert that they told

any officers that the handcuffs were hurting them.” (ECF No. 74 at 3.) But the County defendants do

not cite any cases that post-date Ketcham or otherwise distinguish that controlling precedent. See Yusuf

v. City of New York, No. 15-CV-5545, 2022 WL 393882, at *10 (E.D.N.Y. Feb. 9, 2022) (citing pre-

Ketcham case law); Jeanty v. City of New York, No. 23-CV-9472, 2024 WL 5236462, at *26 (E.D.N.Y.

Dec. 28, 2024) (same); Suren, 2022 WL 5414377, at *24 (same). Additionally, two of these cases

addressed motions for summary judgment, where the courts had the benefit of developed factual

records. See Yusuf, 2022 WL 393882, at *1; Suren, 2022 WL 5414377, at *1.

1057, 2018 WL 4853043, at *9 (E.D.N.Y. Oct. 4, 2018); see also Archer v. Chisholm, 870 F.3d

603, 619 (7th Cir. 2017) (officers did not use excessive force in executing a search warrant by

bringing a battering ram and entering the home with guns drawn, where the battering ram was

not used and officers quickly holstered their weapons); cf. Harte v. Bd. of Comm’rs of Cnty. of

Johnson, Kansas, 864 F.3d 1154, 1192 (10th Cir. 2017) (Phillips, J., concurring) (using a

“battering ram to execute a [search] warrant on a family with no criminal history in an ordinary

residential neighborhood” was “unreasonably extreme” under the circumstances).

Jiminez alleges that a Doe officer “used a battering ram” to “barge” through an “unlocked

bathroom door,” which hit Jiminez and cut his foot. (ECF No. 34 ¶ 49.) On a motion to dismiss,

these allegations are sufficient to state a claim for excessive force.

The Court is not persuaded by the County defendants’ arguments to the contrary. First,

they say that any use of force that caused Jiminez’s injury was not intentional and therefore not

actionable because the Fourth Amendment “only protects individuals against ‘unreasonable’

seizures, not seizures conducted in a ‘negligent’ manner.” (ECF No. 74 at 3 (quoting Dodd v.

Norwich, 827 F.2d 1, 7-8 (2d Cir. 1987).) The plaintiffs allege, however, that the defendants

intentionally used a battering ram to get into the bathroom, and it was that action that caused the

injury. That is sufficient at the complaint stage. Second, the County defendants contend that this

claim must be dismissed because Jiminez “does not plausibly allege sustaining” any injury. (Id.

at 4.) In fact, he does allege an injury — a cut and bleeding foot.

Accepting the facts in the complaint as true, as the Court must, the plaintiffs have stated a

claim for excessive force.

f. Due Process Claims

i. Stigma-Plus

While defamation claims usually sound in state rather than constitutional law, a plaintiff

may assert a procedural due process claim on the so-called “stigma plus” theory by alleging “a

stigmatizing statement plus a deprivation of a tangible interest.” Vega v. Lantz, 596 F.3d 77, 81

(2d Cir. 2010) (quoting Algarin v. Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)). Because

of its unique application, a stigma-plus claim “involves an injury to one’s reputation (the stigma)

coupled with the deprivation of some tangible interest or property right (the plus), without

adequate process.” Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) (internal

quotations omitted). To plead this claim, a plaintiff must allege: “(1) ‘the utterance of a

statement sufficiently derogatory to injure his or her reputation, that is capable of being proved

false, and that he or she claims is false,’ and (2) ‘a material state-imposed burden or state-

imposed alteration of the plaintiff’s status or rights.’” Vega, 596 F.3d at 81 (quoting Sadallah v.

City of Utica, 383 F.3d 34, 38 (2d Cir. 2004)). The ‘stigma’ and the ‘plus’ may issue from

different government actors at different times, but the complaint must still allege the elements

are “sufficiently proximate.” Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). Because the claim is

a species of a due process claim, “the availability of adequate process defeats a stigma-plus

claim.” Segal, 459 F.3d at 213.

The plaintiffs do not satisfy the “threshold requirement” that a government actor made “a

reputation-tarnishing statement that is false.” Vega, 596 F.3d at 82 (emphasis in original). The

complaint merely alleges — on information and belief — that during a press release Tierney

“displayed cash taken” from 361 Flamingo Avenue, which “link[ed]” the plaintiffs to individuals

arrested for drug crimes. (ECF No. 34 ¶¶ 166–67; see also ECF No. 34-14 (Tierney press

release).) But Tierney did not identify any of the plaintiffs or the location of the search.17

Indeed, nothing in Tierney’s statement “designates the plaintiff[s] in such a way as to let those

who knew [them] understand” that they were the people to whom the statement referred.

Daytree at Cortland Square, Inc. v. Walsh, 332 F. Supp. 3d 610, 629 (E.D.N.Y. 2018) (quoting

Dalbec v. Gentleman’s Companion, Inc., 828 F.2d 921, 925 (2d Cir. 1987)).

It is not necessary to go further, but the plaintiffs have additionally not sufficiently pled a

“plus.” “Burdens that have been found to satisfy the ‘plus’ element of a stigma plus claim

include the loss of a protected property interest or a statutorily-granted privilege, such as

termination of government employment, loss of the right to purchase alcohol, loss of the right to

public education, and deprivation of property.” Worrell v. City of New York, No. 12-CV-6151,

2014 WL 1224257, at *5 (E.D.N.Y. Mar. 24, 2014) (collecting cases). The plaintiffs claim that

the seizure of cash itself satisfies the “plus” requirement. (ECF No. 34 ¶ 168). It does not. The

seizure was conducted pursuant to adequate process, see Ganek, 874 F.3d at 91, and therefore

cannot form the basis of a stigma-plus claim, Segal, 459 F.3d at 213. Second, the plaintiffs

maintain that the “plus” is their inability to pay for immediate therapy for J.M. (ECF No. 34

¶ 170.) But they do not have an entitlement to immediate therapy, and in any event cite no

authority for their theory. Accordingly, the stigma plus claim is dismissed.

17 “Where a complaint seeks to rely on . . . press releases to state a claim for relief, ‘the Court takes

judicial notice of [such documents], but for the limited purpose of establishing their existence and legal

effect, and determining the statements that they contain without assuming the truth of those

statements.’” Joseph v. Doe, No. 16-CV-2004, 2017 WL 4233024, at *3 (E.D.N.Y. Sept. 22, 2017)

(quoting Li v. City of New York, No. 15-CV-1599, 2017 WL 1208422, at *4 (E.D.N.Y. Mar. 31, 2017)).

ii. Deprivation of Property

The plaintiffs’ next assert that officers seized $14,000, along with various other items,

without giving them due process. “To sustain a procedural due process claim under the

Fourteenth Amendment, a plaintiff must allege ‘that [s]he: (1) had a protected liberty or property

interest and (2) was deprived of that interest without due process.’” Harris v. City of New York,

No. 16-CV-1214, 2018 WL 4471631, at *10 (E.D.N.Y. Sept. 18, 2018) (quoting Johnson v. City

of New York, No. 16-CV-2879, 2018 WL 1175139, at *3 (E.D.N.Y. Mar. 5, 2018)). “In

evaluating what process satisfies the Due Process Clause, the Supreme Court has distinguished

between (a) claims based on established state procedures and (b) claims based on random,

unauthorized acts by state employees.” Poole v. Hawkins, No. 18-CV-443, 2021 WL 695119, at

*4 (E.D.N.Y. Feb. 23, 2021) (cleaned up) (quoting Rivera-Powell v. N.Y.C. Bd. of Elections, 470

F.3d 458, 465 (2d Cir. 2006)). “When the state conduct in question is random and unauthorized,

the state satisfies procedural due process requirements so long as it provides [a] meaningful post-

deprivation remedy.” Id. “In the context of property seized pursuant to a search warrant,

adequate postdeprivation remedies satisfy procedural due process.” Best v. Monaco, No. 09-CV-

5260, 2010 WL 1438756, at *1 (E.D.N.Y. Apr. 5, 2010).

The plaintiffs identify the execution of the warrant as the conduct that deprived them of

due process. (ECF No. 64 at 35.) But the execution of a search warrant supported by probable

cause was an established state procedure, not a “random, unauthorized act[] by state employees.”

Poole, 2021 WL 695119, at *4. In these circumstances, it was the process to which the plaintiffs

were due. Ganek, 874 F.3d at 91 (dismissing procedural due process claim where “the only

property loss alleged to have occurred without due process resulted from seizures made during

the challenged search[,]” which was “supported by probable cause, the only process due”).

Courts in this district have consistently held that New York state law provides individuals

in the plaintiffs’ position with meaningful post-deprivation remedies. See Poole, 2021 WL

695119, at *4 (dismissing due process claim premised on deprivation of property at motion to

dismiss stage because the plaintiff could have brought suit in the Court of Claims); Harris, 2018

WL 4471631, at *10 (same); Best, 2010 WL 1438756, at *1 (“If no criminal prosecution is

pending, a property owner may either file an action for replevin or a CPLR ‘[A]rticle 78

proceeding to review a refusal after demand.’” (quoting Boyle v. Kelley, 42 N.Y.2d 88 (1977)).

The due process claims about the plaintiffs’ property are dismissed.

g. Failure to Intercede

“A police officer is under a duty to intercede and prevent fellow officers from subjecting

a citizen to excessive force, and may be held liable for his failure to do so if he observes the use

of force and has sufficient time to act to prevent it.” Figueroa v. Mazza, 825 F.3d 89, 106 (2d

Cir. 2016). The plaintiffs allege that Doe officers saw and did not intercede in the excessively

forceful handcuffing and the use of the battering ram. (ECF No. 34 ¶¶ 49, 51.) These

allegations — together with the Court’s analysis of the plaintiffs’ excessive force claim — are

sufficient to plead a failure to intercede to prevent excessive force.

However, “[a] failure to intervene claim does not exist when the underlying constitutional

claim has been dismissed.” McMillan v. Cap. One Bank, N.A., No. 20-CV-7981, 2022 WL

799661, at *6 (S.D.N.Y. Mar. 16, 2022) (quoting Bridgeforth v. City of New York, No. 16- CV-

273, 2018 WL 3178221, at *12 (S.D.N.Y. June 28, 2018)). Accordingly, the Court dismisses

any failure to intercede connected to dismissed claims.

h. Monell Liability

“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). However, under Monell,

“[m]unicipalities may be sued directly under section 1983 for constitutional deprivations

imposed upon the plaintiff pursuant to a ‘governmental custom, policy, or usage of the

municipality.’” Greene v. City of New York, No. 08-CV-243, 2017 WL 1030707, at *29

(E.D.N.Y. Mar. 15, 2017), aff’d, 742 F. App’x 532 (2d Cir. 2018) (quoting Jones v. Town of E.

Haven, 691 F.3d 72, 80 (2d Cir. 2012)). It is not enough for the plaintiffs to allege the existence

of a municipal policy or custom. Gazzola, 2016 WL 6068138, at *6. Instead, to survive a

motion to dismiss, a plaintiff “must allege facts tending to support, at least circumstantially, an

inference that . . . a municipal policy or custom exists.” McLennon v. City of New York, 171 F.

Supp. 3d 69, 95 (E.D.N.Y. 2016) (quoting Santos v. New York City, 847 F.Supp.2d 573, 576

(S.D.N.Y. 2012)). “A plaintiff can establish an official policy or custom by showing any of the

following: (1) a formal policy officially endorsed by the municipality; (2) actions or decisions

made by municipal officials with decision-making authority; (3) a practice so persistent and

widespread that it constitutes a custom of which policymakers must have been aware; or (4) a

failure by policymakers to properly train or supervise their subordinates, such that the

policymakers exercised ‘deliberate indifference’ to the rights of the plaintiff and others

encountering those subordinates.” Id.

The law in the Second Circuit is that “isolated acts by non-policymaking municipal

employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that

would justify municipal liability.” Carmichael v. City of New York, 34 F.Supp.3d 252, 263, 2014

WL 3818192, at *7 (E.D.N.Y. Aug. 1, 2014) (cleaned up) (quoting Jones v. Town of E. Haven,

691 F.3d 72, 81 (2d Cir.2012)). “[I]t is well established that a single incident does not give rise

to an unlawful practice by subordinate officials ‘so permanent and well-settled as to constitute

custom or usage.’” Plair v. City of New York, 789 F. Supp. 2d 459, 470 (S.D.N.Y. 2011)

(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)) (second quotation marks

omitted); see also Sorlucco v. New York City Police Department, 971 F.2d 864, 870 (2d Cir.

1992) (municipality may not be held liable under Section 1983 for isolated unconstitutional acts

of its employees) (citing Monell, 436 U.S. at 694); Anderson v. City of New York, 657 F. Supp.

1571, 1574 (S.D.N.Y. 1987) (“[The] plaintiff cannot infer a policy from the alleged violation of

his own civil rights.”). “This limitation extends to failure-to-train claims.” Wilson v. City of

New York, No. 18-CV-2262, 2021 WL 5908860, at *7 (E.D.N.Y. Dec. 14, 2021) (citing Connick

v. Thompson, 563 U.S. 51, 62 (2011)).

The necessary first step to pleading a Monell claim is to identify a constitutional violation

by a municipal actor. The plaintiffs fall short of this threshold step with respect to everything

except the excessive force and failure to intercede claims. And as to those issues, the complaint

does no more than simply state that it was the policy and custom of the municipal defendants to

use excessive force when handcuffing detainees. (ECF No. 34 ¶¶ 51, 210.) The plaintiffs do not

allege any facts that support, even circumstantially, that any such policy exists. Therefore, their

Monell claims and failure to train claims must be dismissed.

State Law Claims

The plaintiffs also assert state law claims, including: (i) assault and battery (ECF No. 34 ¶

183), (ii) negligence (id. ¶ 184–85), (iii) conversion (id. ¶ 186), and (iv) intentional and negligent

infliction of emotional distress (id. ¶¶ 187–200). The complaint explains that these claims are

levied against only the “County’s and Town’ Defendants.” (Id. ¶ 182.) The Court construes this

to mean the Doe defendants and the municipalities.

As an initial matter, the Town defendants argue that all state law claims should be

dismissed against them because the plaintiffs did not comply with the notice of claim

requirements.

In general, § 50-e of the New York General Municipal Law (“GML”) requires a plaintiff

seeking to bring a tort action against a municipality to file a notice of claim within ninety days

after the claim arises. N.Y. Gen. Mun. Law § 50-e(a). The notice triggers a municipality’s

“right to demand an examination of the claimant relative to the occurrence and extent of the

injuries or damages for which claim is made.” Id. § 50-h(1). “While compliance with GML §

50-h has been excused in exceptional circumstances, generally, ‘[a] party who [fails] to comply

with a demand for examination pursuant to [GML] § 50-h is precluded from commencing an

action against a municipality.’” Duncan v. City of New York, No. 11-CV-3901, 2017 WL

3105856, at *5 (E.D.N.Y. July 21, 2017) (E.D.N.Y. July 13, 2018) (quoting Kemp v. Cty. of

Suffolk, 61 A.D.3d 937, 938 (2d Dep’t 2009)); see also Hardy v. New York City Health & Hosp.

Corp., 164 F.3d 789, 794 (2d Cir. 1999) (“Failure to comply with [the notice of claim]

requirements ordinarily requires a dismissal for failure to state a cause of action.”).

The Town defendants argue that J.M. and Jiminez did not appear at their scheduled

§ 50-h hearing and that the plaintiffs’ counsel interfered with the Campoverde’s and Garcia

Jiminez’s examinations. (ECF No. 47-7 at 9–11.) But in order to evaluate these arguments, the

Court would have to review the transcripts of the § 50-h hearings and the record of the demands.

And while the complaint refers to the hearings briefly, “reviewing the hearing transcript in and of

itself seems an exercise that is better suited for a motion for summary judgment under Rule 56.”

Hazan v. City of New York, No. 98-CV-1716, 1999 WL 493352, at *7 (S.D.N.Y. July 12,

1999).18 Accordingly, the Town defendants’ motion to dismiss on this basis is denied without

prejudice.

a. Assault and Battery

The plaintiffs’ claim for assault and battery may proceed.

“The elements of New York assault and battery and Section 1983 excessive force claims

are substantially identical.” Tardif v. City of New York, 991 F.3d 394, 410 (2d Cir. 2021)

(internal quotation omitted). “Under both the state and federal standards, ‘[p]olice officers’

application of force is excessive . . . if it is objectively unreasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent or motivation.’”

Santiago v. City of Yonkers, No. 21-CV-764, 2023 WL 2648649, at *8 (S.D.N.Y. Mar. 27, 2023)

(quoting Maxwell, 380 F.3d at 108). For the same reasons that the plaintiffs state a claim for

excessive force related to the Doe officers’ handcuffing and use of the battering ram, the

complaint alleges sufficient facts for an assault and battery claim under New York law. See, e.g.,

Scoma v. City of New York, No. 16-CV-6693, 2021 WL 230295, at *14 (E.D.N.Y. Jan. 22, 2021)

(denying motion for summary judgment on state law assault and battery claim related to

excessive force in handcuffing for the same reasons as the motion was denied under § 1983).

The outcome of the defendants’ argument that this claim is untimely depends on whether

the plaintiffs properly noticed this claim in their notices of claim served on the County and Town

defendants under GML § 50-e: If the plaintiffs raised the assault and battery in the notice of

claim, they may take advantage of the slightly-extended statute of limitations of GML § 50-i,

which requires that a plaintiff who serves a notice of claim files suit “within one year and ninety

18 By contrast, in deciding a motion to dismiss, a court may properly consider notices of claim that a

plaintiff cites or attaches to a complaint. Hazan, 1999 WL 493352, at *6.

days after the happening of the event upon which the claim is based.” See Meng Meng Lin v.

City of New York, No. 16-CV-2270, 2018 WL 4119207, at *9 (E.D.N.Y. Aug. 29, 2018) (“When

an individual brings tort claims against the city, or against any employee indemnified by the city,

the statute of limitations is one year and 90 days.”).19 The alleged conduct happened on October

5, 2022; thus, if the limitations period of § 50-i applies, the plaintiffs’ assault and battery claim

— commenced on December 26, 2023 — was timely filed.

The County defendants argue that notice of claim was deficient because it did not

mention assault and battery. (ECF No. 44-4 at 19–20.) The plaintiffs respond that they noticed

“all common law torts,” detailed the place and time of the search, and stated that police officers

caused “[p]hysical bodily injury.” (ECF No. 64 at 38; see also, e.g., ECF No. 34-6 (Campoverde

Notice of Claim to County) at 2–3.) This is sufficient notice under the relevant standard, which

requires “merely [that] the notice includes information sufficient to enable the [municipality] to

investigate.” Martinez v. City of New York, 564 F. Supp. 3d 88, 102 (E.D.N.Y. 2021) (alterations

adopted) (quoting Brown v. City of New York, 95 N.Y.2d 389, 393 (2000)). Accordingly, the

plaintiffs’ assault and battery claim against the state officers is timely.

b. Negligence

The plaintiffs assert common a law negligence claim, which they describe as “alternative

claims.” (ECF No. 34 ¶ 185.) To the extent this claim relates to the handcuffing excessive force

and assault claim or any other claim against individual officers sounding in other traditional tort,

19 “[S]ervice of a notice of claim upon [a municipality] is required, ‘only if the [municipality] has a

statutory obligation to indemnify [the employee].” Farid v. City of New York, No. 19-CV-3463, 2021

WL 2012425, at *8 (E.D.N.Y. May 20, 2021) (quoting McGrath v. Arroyo, 2019 WL 3754459, at *18

(E.D.N.Y. Aug. 8, 2019)). The parties do not raise this issue, and the Court assumes that the

municipalities have such an obligation. See Martinez v. City of New York, 564 F. Supp. 3d 88, 101

(E.D.N.Y. 2021) (finding that the notice of claim requirements were applicable to an excessive force

claim against police officers).

it must be dismissed. See Dasrath v. City of New York, No. 15-CV-766, 2018 WL 10501877, at

*8 (E.D.N.Y. Sept. 25, 2018) (“When a plaintiff asserts excessive force and assault claims which

are premised upon a defendant’s allegedly intentional conduct, a negligence claim with respect to

the same conduct will not lie.”) (internal quotation omitted); Stratakos v. Nassau Cnty., No. 15-

CV-7244, 2019 WL 6699817, at *16 (E.D.N.Y. Dec. 9, 2019); Durr v. Slator, 558 F. Supp. 3d 1,

40 (N.D.N.Y. 2021).

To state a negligence claim under New York law, a plaintiff must prove: “a duty owed to

the plaintiff by the defendant, a breach of that duty, and injury proximately resulting therefrom.”

Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157 (2023); see also Union Mut.

Fire Ins. Co. v. Ace Caribbean Mkt., 64 F.4th 441, 445 (2d Cir. 2023). “When a negligence

claim is asserted against a municipality or its employees, the threshold inquiry is ‘whether the

municipal entity was engaged in a proprietary function or acted in a governmental capacity at the

time the claim arose.’” Velez v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013) (quoting

Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425 (2013)). If the officers or municipality were

acting in a governmental capacity, the plaintiff must plead a “special duty.” See Ferreira v. City

of Binghamton, 38 N.Y.3d 298, 310 (2022).

The plaintiffs cite Ferreira v. City of Binghamton at length. In that case, the Court of

Appeals held that municipalities and their employees have a “special duty” when planning and

executing no-knock search warrants. Id.

In a no-knock warrant situation, the police exercise extraordinary governmental

power to intrude upon the sanctity of the home and take temporary control of the

premises and its occupants. In such circumstances, the police direct and control a

known and dangerous condition, effectively taking command of the premises and

temporarily detaining occupants of the targeted location. As a result, the

municipality’s duty to the individuals in the targeted premises, a limited class of

potential plaintiffs, exceeds the duty the municipality owes to the members of the

general public. A special duty therefore arises when the police plan and execute a

no-knock search warrant at an identified residence, running to the individuals

within the targeted premises at the time the warrant is executed.

Id. at 318. The complaint pleads that the search was executed pursuant to a no-knock warrant,

and therefore the plaintiffs have sufficiently alleged a special duty running to the plaintiffs. But

they have only pled facts that give to a potential negligence action related to the fact that

individual officers brought a battering ram to search the premises.

The facts of Ferreira are instructive. In that case, an officer executing a no-knock search

warrant shot the plaintiff in the stomach “immediately” after the door was breached. Ferreira v.

City of Binghamton, 975 F.3d 255, 263 (2d Cir. 2020). Ferreira alleged that “negligent planning

deficiencies rendered the search needlessly dangerous.” Id. at 276. The plaintiffs in this case

have not alleged anything that leads to a plausible inference that the no-knock search was

negligently planned — most obviously, the plaintiff has not sufficiently alleged who planned the

search or the negligent conduct that caused the injuries. See Flannery v. City of Rochester, 640

F. Supp. 3d 267, 285 (W.D.N.Y. 2022) (allowing the plaintiffs’ negligent planning claim to

proceed against the officer who was in charge of planning the city’s response to a protest); Stone

v. Town of Cicero, No. 21-CV-1363, 2024 WL 1219691, at *21 (N.D.N.Y. Mar. 20, 2024) (in a

negligence action, a plaintiff must “adduce a sufficient showing that causation is based on logical

inferences to be drawn from the evidence, not upon speculation”).

Thus, the plaintiffs may pursue a claim that the officer or officers negligently brought the

battering ram, but they have not adequately alleged any other facts to support a negligence claim

on any other theory.

c. Trespass and Conversion

The plaintiffs’ claim for trespass and conversion must also be dismissed. Under New

York law, “[c]onversion is the unauthorized assumption and exercise of the right of ownership

over goods belonging to another to the exclusion of the owner’s rights.” Fischkoff v. Iovance

Biotherapeutics, Inc., 339 F. Supp. 3d 408, 414 (S.D.N.Y. 2018) (quoting Thyroff v. Nationwide

Mut. Ins., 460 F.3d 400, 403 (2d Cir. 2006)). Thus, to succeed on this claim, the plaintiffs’

“would need to demonstrate that law enforcement acted without authority when it searched his

residence and the surrounding property.” Stegemann v. State, 163 A.D.3d 1303, 1303 (3d Dep’t

2018). The search warrant clearly justified the officers’ seizure of the items at issue, including

cash that the officers reasonably believed were the proceeds of illegal activity. This conduct was

therefore authorized and cannot form the basis of a conversion claim. See Sanders v. City of

Rochester, 360 F. Supp. 3d 152, 164 (W.D.N.Y. 2019) (dismissing conversion claim based on

seizure of items pursuant to a lawful warrant).

Moreover, the plaintiffs have not pleaded facts that show that Lillis or any other

defendant converted the seized cash during the inventory process. “Where a defendant lawfully

obtains possession of property and has not wrongfully disposed of it, the action is not

maintainable unless the defendant had possession of the property at the commencement of the

action.” Gonzalez v. Port Auth. of New York & New Jersey, 119 A.D.2d 628, 629 (2d Dep’t

1986). Here, the plaintiffs do not allege that Lillis — or any other defendant — possessed the

cash when they initiated this action. And although they allege that Lillis was responsible for the

money at some point, he transferred the property “in good faith.” Id.

Indeed, “courts consistently find that the [state] judiciary retains exclusive jurisdiction to

dispose of seized property under § 690.55.” Vaher v. Town of Orangetown, N.Y., 133 F. Supp.

3d 574, 607 (S.D.N.Y. 2015); see also U.S. v. $490,920 in U.S. Currency, 911 F.Supp. 720, 725

(S.D.N.Y. 1996) (“Even if the court directs another person to retain custody of the property, the

property seized pursuant to a search warrant technically remains in the custody of the court, and

the District Attorney or property clerk possesses the property only as an officer of the court,

subject to the court's direction and disposition. New York’s statutory scheme, therefore,

provides that the disposition of the res is subject only to orders of the state court.”); LM Bus.

Assocs., Inc. v. State, 124 A.D.3d 1215, 1217–18 (4th Dep’t 2015) (“[P]roperty seized pursuant

to a court order . . . cannot be taken away until that custody is ended by a conviction or acquittal,

or by an order of the magistrate permitting its surrender to the owner. In other words, property

seized pursuant to a search warrant remains in the control of the issuing judge. Therefore, even

if the seized [items] were retained without any legitimate law enforcement purpose, it was

beyond the power of [defendant] to take the property from the custody of the law and return it to

claimants without proper judicial authorization.”). Accordingly, the plaintiffs have not stated a

claim for conversion against any individual defendant or the municipalities.

d. Intentional and Negligent Infliction of Emotional Distress

The plaintiffs’ claims for intentional and negligent infliction of emotional distress fare no

better.

“Under New York law, an intentional infliction tort may ‘be invoked only as a last

resort,’ ‘to provide relief in those circumstances where traditional theories of recovery do not.’”

Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015) (internal citations omitted). Therefore, an

IIED claim fails “where the challenged conduct ‘falls well within the ambit of other traditional

tort liability,’” as it does here. Id. Moreover, the plaintiffs have not sufficiently alleged that the

defendants’ conduct went “beyond all possible bounds of decency,” so as “to be regarded as

atrocious, and utterly intolerable in a civilized community.” Chanko v. Am. Broad. Companies

Inc., 27 N.Y.3d 46, 56 (2016); see also Gazzola, 2022 WL 2274710, at *15 (granting summary

judgment for defendant in analogous circumstances).

“To plead a negligent infliction of emotional distress claim under New York law, a

plaintiff must allege (1) a breach of a duty owed to the plaintiff; (2) emotional harm; (3) a direct

causal connection between the breach and the emotional harm; and (4) circumstances providing

some guarantee of genuineness of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d 67,

81 (2d Cir. 2021). The Court has found no case extending the special duty recognized in

Ferreira v. City of Binghamton to claims for negligent infliction of emotional distress. See

Green-Page v. United States, No. 20-CV-837, 2024 WL 3584194, at *15 (W.D.N.Y. July 30,

2024) (“Ferreira has apparently never been applied in the context of an NIED claim and

Plaintiffs have not alleged that the execution of the no-knock search warrant in this case was

unreasonably dangerous due to negligent planning.”). Thus, the plaintiffs have not sufficiently

pled a duty.

Accordingly, these claims are dismissed.

Constitutional Challenges to New York Criminal Procedure Law

Finally, the plaintiffs ask the Court to declare unconstitutional New York Criminal

Procedure Law §§ 245.20(7), 245.30, 690.50(4) and 690.50(5). In particular, the plaintiffs argue

that (1) N.Y.C.P.L. §§ 245.20(7) and 245.30 are unconstitutional because they do not “include

any procedural mechanism for a non-defendant person or media company to obtain access to

‘judicial documents;’” and (2) N.Y.C.P.L. §§ 690.50(4) and 690.50(5) are unconstitutional

because they do not expressly incorporate Federal Rule of Criminal Procedure 41(f)(B) and (C).

(ECF No. 34 ¶ 246).

The Court declines the plaintiffs’ request to rewrite New York State’s criminal procedure

law. A district court has “‘broad discretion’ to decline jurisdiction under the [Declaratory

Judgment Act].” Admiral Ins. Co. v. Niagara Transformer Corp., 57 F.4th 85, 99 (2d Cir. 2023)

(internal citation omitted); see also id. at 91 (“[T]he DJA provides only that federal courts ‘may

declare the rights and other legal relations of an[ ] interested party seeking such declaration’ in ‘a

case of actual controversy’ — not that they must so declare.” (emphasis in original) (quoting 28

U.S.C. § 2201(a))). The plaintiffs do not make any cogent arguments that the challenged

provisions are unconstitutional, and the defendants have not briefed the merits of this issue.

Under these circumstances, a declaration would not “serve a useful purpose in clarifying or

settling the legal issues involved” and “concerns for ‘judicial efficiency’ and ‘judicial economy’

favor declining to exercise jurisdiction.” Id. at 99–100 (internal citation omitted).

Leave to Amend

The plaintiffs ask that the Court grant them leave to amend their amended complaint “to

address any imperfections this Court identifies.” (ECF No. 64 at 48.) “Leave to amend shall be

freely given when justice so requires.” In re Trib. Co. Fraudulent Conv. Litig., 10 F.4th 147,

175 (2d Cir. 2021) (cleaned up). But if a court has a “valid ground,” such as futility or undue

prejudice, the court may deny leave to amend. Id. (citing Foman v. Davis, 371 U.S. 178, 182

(1962). “Futility is a determination, as a matter of law, that proposed amendments would fail to

cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure.” Empire Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d 132, 139 (2d Cir.

2018).

At this point, the plaintiffs have pleaded their claims “exhaustively.” Thomas v.

Amazon.com Servs. LLC, No. 23-CV-1271, 2025 WL 253276, at *14 (E.D.N.Y. Jan. 21, 2025);

see Vasquez v. City of New York, No. 22-CV-5068, 2024 WL 1348702, at *14 (E.D.N.Y. Mar.

30, 2024) (denying leave to amend). The Court previously permitted the plaintiffs to amend the

complaint; in addition, the Court described the significant deficiencies in the complaint, and

detailed the kinds of factual allegations the plaintiffs would need to make in order to defeat a

motion to dismiss. The plaintiffs seem to have ignored the Court’s observations, because the

amended complaint is almost identical to the original complaint. In this situation, “the Court

easily concludes that granting further leave to amend would be futile because there is no

‘indication that a valid claim might be stated’ as to those claims dismissed under Rule 12(b)(6).”

Thomas, 2025 WL 253276, at *14 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

2000)).

CONCLUSION

The defendants’ motions to dismiss the amended complaint are granted in part and denied

in part. The claims for excessive force under § 1983 and assault and battery against the Doe

defendants may proceed, as may the negligence claim against the Doe defendants related to the

use of a battering ram. All other claims are dismissed. The plaintiffs’ motion to amend is

denied. The plaintiffs are directed to file a motion pursuant to Valentin v. Dinkins, 121 F.3d 72

(2d Cir. 1997) within 30 days of this order.

SO ORDERED.

s/Ann M. Donnelly

___________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

March 28, 2025