Green v. City of Mount Vernon

• Decision Date: 31 March 2015
• Docket Number: Case No. 10–CV–707 (KMK).
• Citation: 96 F.Supp.3d 263
• Parties: Ivamae GREEN, individually and as parent and natural guardian of Fitzroy Barnes, Fatima Barnes, and Eustace Barnes, infants, Plaintiffs, v. The CITY OF MOUNT VERNON, Sgt. Scott Glenn, Sgt. Chris Gallagher, Richard Fox, Michael Kushner, Leonard Coopler, Eugene Wilson, Richard Azron, Jared Kmiotek, and Jane Doe, said name being fictitious, Defendants.
• Court: U.S. District Court — Southern District of New York

96 F.Supp.3d 263

Ivamae GREEN, individually and as parent and natural guardian of Fitzroy Barnes, Fatima Barnes, and Eustace Barnes, infants, Plaintiffs,

v.The CITY OF MOUNT VERNON, Sgt. Scott Glenn, Sgt. Chris Gallagher, Richard Fox, Michael Kushner, Leonard Coopler, Eugene Wilson, Richard Azron, Jared Kmiotek, and Jane Doe, said name being fictitious, Defendants.

Case No. 10–CV–707 (KMK).

United States District Court,

S.D. New York.

Signed March 31, 2015.

Andrew C. Risoli, Esq., Eastchester, NY, for Plaintiffs.

Hina Sherwani, Esq., Joana Helen Aggrey, Esq., City of Mount Vernon Corporation Counsel, Mt. Vernon, NY, for Defendants.

OPINION & ORDER

KENNETH M. KARAS, District Judge.

Plaintiffs Ivamae Green (“Green”), Fitzroy Barnes, Fatima Barnes, and Eustace Barnes (collectively, “Plaintiffs”) ¹bring this Action under 42 U.S.C. § 1983 and New York State law, alleging that Defendants Sergeant Glenn Scott (“Scott”), Sergeant Chris Gallagher (“Gallagher”), Richard Fox (“Fox”), Michael Kushner (“Kushner”), Leonard Cooper (“Cooper”),² Eugene Wilson (“Wilson”), Richard Azron (“Azron”), Jared Kmiotek (“Kmiotek”), Jane Doe a/ka Jean Jerome (“Jane Doe”) (collectively, the “Police Officer Defendants”), and the City of Mount Vernon (“Mount Vernon”) violated the U.S. Constitution and committed a number of state torts. Defendants move to dismiss all claims. For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from Plaintiffs' Fourth Amended Complaint (“FAC”), and certain documents the Parties submitted that the Court considers, as explained below, and are taken as true for the purpose of resolving the instant Motion. This action arises out of a search of Plaintiffs' home that occurred on June 3, 2009 at approximately 10:30 p.m. pursuant to a search warrant that relied in part on information from a confidential informant (“CI”) and that identified two people allegedly involved in the sale of cocaine. ( See Fourth Am. Compl. (“FAC”) ¶ 10 (Dkt. No. 47).) At the time of the search, Green was “home in her apartment with her three infant children.” ( Id.) Scott, Fox, and Kushner, acting “with a purported[ly] valid search warrant,” broke down the door to Plaintiffs' apartment “without any prior warning,” entered the apartment with guns drawn, and “threatened bodily harm” to Plaintiffs if they did not comply with police demands. ( Id.; see also id. ¶ 27 (alleging that Scott, Fox, and Kmiotek “intentionally placed [Plaintiffs] in fear of imminent harm or contact” when they drew their guns, pointed the guns at all three Plaintiffs, and threatened them with immediate harm (internal quotation marks omitted)).) Scott, Fox, and Kushner then “handcuffed and arrested” Green and separated her from her children. ( Id. ¶ 10.) Plaintiffs allege that the Police Officer Defendants “intended to confine Plaintiffs,” that “Plaintiffs objected to and were conscious of the confinement at gun point,” and that the confinement “was not privileged” because the search warrant was invalid. ( Id. ¶ 49.)

After Green was handcuffed, Cooper, Wilson, Azron, Kmiotek, Jane Doe, and McKennie entered the apartment. ( Id. ¶ 10.) Plaintiffs allege that McKennie forced Green to strip off all of her clothing, and that Jane Doe and McKennie performed two vaginal searches of Plaintiff. ( Id. ¶ 10.) ³ Plaintiffs allege that Jane Doe and McKennie “completely ransacked Plaintiff[s'] apartment [,] destroying much of [their] property[.]” ( Id.) Furthermore, Plaintiffs allege that the Police Officer Defendants searched Green's apartment, but did not find drugs or either of the two individuals described in the search warrant. ( Id.)

Plaintiffs allege that “[d]uring the search,” Scott told Green that “they had entered the wrong apartment.” ( Id. ¶ 11.) However, Plaintiffs allege that even after Scott stated that they were in the wrong place, the apartment search continued, as did “the imprisonment” of Plaintiffs and the “further destruction of” Plaintiffs' property. ( Id.) ⁴ Plaintiffs also allege that Mount Vernon and the Police Officer Defendants “negligently or intentionally caused personal injuries and traumatic emotional distress to all Plaintiffs.” ( Id. ¶ 41.) In particular, Plaintiffs allege that they were “rendered sick, sore, lame, and disabled,” and have incurred medical expenses as a result of the Police Officer Defendants' actions. ( Id. ¶ 54.) Finally, Plaintiffs allege that Defendants did not “perform repairs” on Plaintiffs' apartment. ( Id. ¶ 18.)

Plaintiffs claim that there were defects with the search warrant and the affidavit submitted by Detective Fegan in support of the search warrant (the “Fegan Affidavit” or the “Affidavit”).⁵ First, Plaintiffs allege that Defendants' search warrant was “defective on its face,” because it “described the premises to be searched as ‘15 South 5th Avenue, 1st floor apartment,’ ” and therefore “does not state with particularity what is meant by the ‘1st’ floor.” ( Id. ¶ 14.) More specifically, the warrant states that it authorizes a search and seizure “FOR THE FOLLOWING RESIDENTIAL PREMISES: 15 SOUTH 15TH AVENUE, 1ST FLOOR APARTMENT WITH SIDE ENTRANCE ON NORTH SIDE OF HOUSE.” (Aff'n of Hina Sherwani (“Sherwani Aff'n”) Ex. B (First Floor Search Warrant) (“Search Warrant”), at unnumbered 1 (Dkt. No. 52).) Additionally, Plaintiffs allege that the “warrant describes two ... individuals[—]FNU LNU[ ] ‘Blue[,]’ a male black, and FNU LNU[ ] ‘Jan[,]’ a female black,” as residing in or being present in the apartment to be searched, but that “[n]either of these individuals resides [in] or was present in [the] apartment.” (FAC ¶ 14.) In addition to providing for the search and seizure of those two individuals, the warrant also states that it authorizes a search and seizure of “ANY INDIVIDUALS ON THE PREMISES AT THE TIME OF THE SEARCH WARRANT EXECUTION INCLUDING BUT NOT LIMITED TO THOSE EXERCISING CONTROL AND OR DOMINION OVER SAID PREMISES, ACTING IN THE ROLE OF A LESSEE, SUB–LESSEE AND/OR OWNER.” (Search Warrant at unnumbered 1.) The warrant further provides, “You are therefore commanded at any hour of the day or night, without first announcing your purpose or authority, to make a search of the above listed Premises and person(s) for cocaine as described in Penal Law Sections 220.00.” ( Id. at unnumbered 2 (emphasis added).) Furthermore, the warrant lists the items to be seized. ( Id.)

In addition to alleging that the warrant was defective on its face, Plaintiffs allege that after the warrant was issued, the Defendant Police Officers and Mount Vernon “as a matter of policy did no investigation to [e]nsure that, prior to [the] execution of [the] warrant, the facts [underlying the] warrant were reasonably correct, and that [the] persons named in the warrant actually resided there.” (FAC ¶ 21; see also id. ¶ 33 (alleging that the search warrant lacked probable cause because the Defendant Police Officers and Mount Vernon “did no investigation[,] as a matter of policy, to [e]nsure that the information they obtained from their informant was true, reliable, and credible.”).) ⁶ Plaintiffs conclude that all of the above facts are “proof that the Affidavit submitted to the [c]ourt to obtain [the] search warrant was not credible, and the ‘informant’ who provided the information was unreliable.” ( Id. ¶ 14.)

With regard to the Fegan Affidavit, Plaintiffs submit that the affiant, Detective Fegan, who the Court notes is not named as a Defendant in the FAC, stated that “he received information from a registered and reliable confidential informant,” that the Mount Vernon Police “sent the informant” to 15 South 15th Ave. to “purchase drugs with marked money,” that the “police witnessed the transaction, obtained the drugs purchased from the informant, and field tested the drugs,” and found that they were cocaine. ( Id. ¶ 25.) Plaintiffs allege that “[they] may presume that [the informant] has some problems [with] the law that cause[d] him to be an informant.” ( Id.) Furthermore, Plaintiffs allege that because “[n]o arrest was made” following the controlled drug buy, “it must be concluded that the police surmised that there was not sufficient probable cause to make such an arrest,” and therefore there could not have been sufficient “probable cause to grant the search warrant.” ( Id.) In addition to what Plaintiffs allege, the Affidavit also states that Detective Fegan received information from a “registered and reliable” CI,⁷ that an

unknown male black in his 40's–50's who wears his hair in long dreadlocks and who identifies himself as “Blue” was selling powder cocaine from his apartment located on the first floor of 15 S 15th Ave, CI further states that “Blue” lives with his wife, an unknown female black in her 30's–40's who identifies herself as “Jan”, CI states that “Jan” also sells powder cocaine when “Blue” is not around. CI states that “Blue” and “Jan” conduct their drug transactions at all times of the day and night, including but not limited to the times between 2100–0600 Hrs. CI further states that although “Blue” and “Jan” live in the first floor apartment of 15 S 15th Ave they frequently hang out in the 2nd floor apartment of 15 S 15th Ave, and do conduct drug transactions from the 2nd floor apartment. CI also stated that he/she has purchased powder cocaine from “Blue” and “Jan” 3 times in the past two weeks and has observed “Blue” and “Jan” conduct drug transactions with unknown individuals approx. 7–10 in the past two weeks.

(Sherwani Aff'n Ex. D (Aff. for Search Warrant) (“Fegan Affidavit”), at unnumbered 2.) Furthermore, with respect to the controlled drug buy, Detective Fegan averred that he met with the CI, that the CI made a phone call to “Blue” to place an order for $50 of cocaine, that “Blue” advised the CI he was not home but told him to call “Jan,” and that he placed an order with “Jan” for $50 of cocaine. ( Id.) Detective Fegan...