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Powell v. U.S.

False Arrest, Other Claims Over Search of Building's Third Floor Are Viable Under 'Bivens'

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OPINION & ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS   In or around April 2018, law enforcement officials obtained a warrant to search the first and second floors of a three-story Bronx apartment building. In this civil rights action, Plaintiff Calvin Powell claims that the officers executing the search warrant found no evidence of criminality on the first or second floors of the building, proceeded to exceed the scope of the warrant by searching the third floor, and, after finding several kilograms of cocaine on the third floor, falsely maintained that the drugs were found pursuant to the warrant, ultimately resulting in Powell’s arrest, imprisonment, and prosecution. The prosecution was later dropped, however, after Powell adduced photographs taken by officers at the scene revealing that the cocaine and other contraband were recovered from the third floor.1 Powell seeks to recover damages against the officers involved in the search and prosecution, among other defendants, under the Federal Tort Claim Act (“FTCA”), Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”), 42 U.S.C. §1983, and related New York state law theories. Now before me is a motion to dismiss by one of the individual officers: Defendant Johanna Santos. For the reasons that follow, the motion is granted in part and denied in part. Factual Background I summarize the alleged facts and procedural history only to the extent necessary to resolve the instant motion to dismiss.2 A. The Search Powell owns a three-family, three-story apartment building (hereinafter, the “Building”) in the Bronx. See Complaint (“Compl.”), ECF No. 1, at 24. For the last twenty years, Powell has lived with his family on the first floor of the Building and has rented out the second — and third-floor apartments to others for residential use. Id. at

25-27. On April 18, 2018, Defendant Detective Sean Fogarty obtained a warrant to search the first and second floors of the Building. See id. at

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