Calderon v. City of N.Y.

• Decision Date: 05 October 2015
• Docket Number: No. 14 Civ. 1082(PAE).,14 Civ. 1082(PAE).
• Citation: 138 F.Supp.3d 593
• Parties: Miguelina CALDERON, Plaintiff, v. The CITY OF NEW YORK, James South, Alexander Sosa, and John/Jane Doe 1 Through 10, Defendants.
• Court: U.S. District Court — Southern District of New York

138 F.Supp.3d 593

Miguelina CALDERON, Plaintiff,

v.The CITY OF NEW YORK, James South, Alexander Sosa, and John/Jane Doe 1 Through 10, Defendants.

No. 14 Civ. 1082(PAE).

United States District Court, S.D. New York.

Signed Oct. 5, 2015.

Eric Edward Rothstein, Rothstein Law PLLC, New York, NY, for Plaintiff.

Omar Javed Siddiqi, New York City Law Department, New York, NY, for Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER

, District Judge.

In August 2013, the New York Police Department ("NYPD") developed substantial evidence that a man named German Perez was trafficking in cocaine out of 275 East 201st Street, a Bronx apartment building. James South, an NYPD detective, swore out an affidavit seeking search warrants for apartments 5F and 5K in that building. South attested that he and Alexander Sosa, also an NYPD detective, had seen Perez use both apartments at various times immediately before and after selling cocaine to a confidential informant outside the building. He also attested that, during a car stop, Perez had produced a New York State driver's license identifying his home address as apartment 5F in that building. A state court judge issued a warrant to search the two apartments, and NYPD officers then conducted searches pursuant to these warrants. In apartment 5F, the officers found and handcuffed plaintiff Miguelina Calderon, but the search of that apartment yielded no evidence of Perez, drug-dealing, or other criminal activity. In apartment 5K, the officers found and arrested Perez and seized drugs.

Calderon now brings this action under 42 U.S.C. § 1983

and state law, against, inter alia, the City of New York ("the City"), South, and Sosa. She alleges that South knowingly or recklessly made false statements in his affidavit seeking authority to search apartment 5F. In particular, she claims that South and Sosa falsely represented that they had seen Perez entering and exiting apartment 5F shortly before and after selling drugs outside the building, and that a magistrate presented with an accurate affidavit would not have issued the search warrant. She alleges that she was falsely arrested and wrongfully imprisoned as a result of the unjustified search of her apartment. She further alleges that the City failed to properly train and discipline its officers with respect to proper practices in seeking search warrants.

Calderon seeks compensatory damages of $1 million, plus punitive damages.

Defendants move to dismiss Calderon's Third Amended Complaint ("TAC") as to all claims. For the reasons that follow, the Court denies the motion as to the claims against South and Sosa, and grants the motion as to all other claims, including the claim of municipal liability.

I. Background¹

A. The Parties

Calderon resides in apartment 5F of 275 East 201st Street ("the building") in the Bronx. TAC ¶ 6. She has lived there since July 2012 with her husband and son. Id. ¶ 21.

Calderon has sued 13 defendants. Id. ¶¶ 7–17. The first, the City, is responsible for the NYPD. The second, South, swore out an affidavit in which he stated, inter alia, that he had personally seen Perez, a narcotics trafficking suspect, exit apartment 5F shortly before selling cocaine to a confidential informant outside the building. See Dkt. 46 ("Siddiqi Decl."), Ex. B, ¶ 8. The third, Sosa, informed South that he had seen Perez enter apartment 5F immediately after another such sale. Id. ¶ 9. The other defendants are 10 John or Jane Does—police officers and detectives "whose identities are currently unknown who are members of the NYPD who took place [sic] in the incident described herein." TAC ¶ 17. South, Sosa, and the 10 Does are sued in their individual and official capacities. Id. ¶¶ 9, 13, 17.

B. Calderon's Occupancy of Apartment 5F Before the August 27, 2013 Search

In or about June 2012, Calderon signed a lease with her landlord for apartment 5F. Id. ¶ 20. In or about July 2012, she moved into apartment 5F with her husband and her son. Id. ¶ 21. No one else lived with them. Id. In July 2012, the Con Edison bill was put in Calderon's name. Id. ¶ 23.

Calderon alleges that the apartment has only one door. Id. 22. At the time Calderon moved in, the door had a lower lock, but in July 2012, she "installed a top lock and only [she], her husband, and her son had the key" to this top lock. Id. ¶¶ 24–25. It was the "custom and practice" of each of these three individuals "to always lock the top lock when leaving the apartment," id. ¶ 34, and they in fact always did so. Id. 35–36. The top-lock key could not be duplicated without a "special card." Id. ¶ 26. Calderon alleges that there is only one card, it has never been loaned or given to anyone outside the family, and the building did not have a copy of either the top-lock key or the special card. Id. ¶¶ 26–27. She, her husband, and her son never lost their keys or loaned them to anyone else, id. 28–29, including Perez, whom they do not know. Id. ¶¶ 30–31. Calderon further alleges that she, her husband, and her son never "saw anyone named German Perez" in their apartment and "never permitted anyone named German Perez" into the apartment during the time they have resided there. Id. 32–33. Finally, in August 2012, "ADT installed an alarm system that covered, among other places, the entrance /exit door to the apartment." Id. ¶ 38. This alarm "was always turned on when no one was in the apartment." Id. ¶ 39. If the alarm were activated, ADT would notify Calderon by phone before contacting the authorities, id. ¶ 41, and ADT did not so notify Calderon, her husband, or her son during "the period set forth in SOUTH'S search warrant application." Id. ¶ 42.

C. Detective South's Affidavit in Support of a Search Warrant

On August 22, 2013, South swore out a seven-page affidavit in support of warrants to search apartments 5F and 5K. See Siddiqi Decl., Ex. B. In it, South stated, among other things, the following² :

1. In approximately May 2013, NYPD's Narcotics Borough Manhattan North unit began investigating narcotics activity at 275 East 201st Street. Id. ¶ 4.

2. On two occasions in August 2013, South conducted "controlled" purchases using a confidential informant ("CI"), id. ¶¶ 8, 9, who had a history of reliability, id. ¶ 5. In each case, the CI purchased cocaine from a man inside a Ford Explorer parked outside of 275 East 201st Street. Id. ¶¶ 8, 9. Before each purchase, the drug dealer emerged from within 275 East 201st Street. Id. After each purchase, the CI exited the Ford Explorer and met South, whereupon the CI handed South a plastic twist bag containing a white powdered substance. Id. Field tests were positive for cocaine each time. Id. ¶¶ 8a, 9a.

3. After a car stop (the timing of which was not revealed), South identified the drug seller as German Perez. Id. ¶ 7. Perez showed South a New York State driver's license bearing the name "German Perez" and the address of "275 East 201st Street, Apartment 5F." Id.

4. As to the first purchase, after giving the CI money to buy drugs, South went to a stairwell within 275 East 201st Street, "overlooking the fifth floor." Id., Ex. B, ¶ 8. From that position, South "observed Perez exit Apartment 5F, retrieve keys from his pocket, and use the keys to enter Apartment 5K." Id. South "then observed Perez exit Apartment 5K and enter an elevator. A few minutes later, [South] observed Perez exit an elevator on the fifth floor of 275 East 201st Street, retrieve keys from his pocket, and use the keys to enter Apartment 5K." Id. When South returned to his vehicle, the CI handed him a plastic bag containing cocaine. Id. The CI reported to South that he had seen Perez exit 275 East 201st Street before entering the Ford Explorer, where Perez sold the cocaine to the CI. Id.

5. As to the second purchase, after giving the CI money to buy drugs, South, while near 275 East 201st Street, "observed Perez driving a grey Ford Explorer," parking the Ford Explorer in front of 275 East 201st Street, and entering that building. Id. ¶ 9. South was "informed by Detective Alexander Sosa ... who was located on the fifth floor of 275 East 201st Street, that he observed Perez exit an elevator on the fifth floor of [the building], remove keys from his pocket, and use the keys to enter Apartment 5K. Detective Sosa then observed Perez exit Apartment 5K and enter the elevator." Id. South "then observed Perez exit 275 East 201st Street and enter the Ford Explorer. [South] observed [the] CI enter the Ford Explorer and exit a short time later. [South] then observed Perez park the Ford Explorer a short distance away, exit the Ford Explorer, and enter 275 East 201st Street." Id. Sosa informed South "that, a few moments later, he observed Perez exit the elevator on the fifth floor of 275 East 201st Street, retrieve keys from his pocket, and use the keys to enter Apartment 5F." Id. Around that time, the CI again handed South a plastic bag containing cocaine. Id.

6. Apartments 5F and 5K are located on the same floor, but are on different sides of the hallway. Each door has a clearly marked apartment number. Id. ¶ 11.

On August 22, 2013, on the basis of South's affidavit, the Hon. Steven M. Statsinger of the Criminal Court of the City of New York issued no-knock search warrants for apartments 5F and 5K. Id., Ex. D. The warrants authorized the officers to search for (among other things) cocaine, proceeds from drug trafficking, and the person of German Perez. Id.

On August 26, 2013, South presented a modified affidavit to correct a typographical error pertaining to the borough of the premises (the original affidavit mistakenly said "New York, New York," not "Bronx, New York"). Id., Ex. D, ¶ 3. On the same date, Judge Statsinger issued a search warrant based on the corrected affidavit. Id., Exs. D–E.

D. The August 27, 2013 Search and Aftermath

On August 27, 2013, unidentified NYPD officers went to Calderon's apartment, 5F, to execute the search warrant. She was inside the apartment when, between 3 and 4 p.m., she heard banging at the door as sh...