Andrews, Jr. v. Town of West Seneca, New York et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
JOHN R. ANDREWS JR.,
Plaintiff,
v. 	21-CV-746-LJV
DECISION & ORDER
TOWN OF WEST SENECA et al.,
Defendants.
_________________________________________
TOM CRONIN, KELLY CRONIN, and
BRITTANY CRONIN,
Plaintiffs,
v. 	23-CV-14-LJV
DECISION & ORDER
TOWN OF WEST SENECA et al.,
Defendants.
_________________________________________
On June 17, 2021, one of the plaintiffs, John R. Andrews Jr., commenced this
action under 42 U.S.C. § 1983. Docket Item 1.1 He subsequently amended his
complaint to include claims under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), the False Tort Claims Act (“FTCA”), and New
York state law. Docket Items 5 and 27. Andrews asserts claims related to the
execution of a search warrant at his home and the criminal investigation and charges
1 Unless otherwise noted, docket citations are to case number 21-cv-746, and
page numbers in docket citations refer to ECF pagination.
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that resulted from that search. More specifically, he alleges violations of his Fourth and
Fourteenth Amendment rights by the defendants: the Town of West Seneca (“West
Seneca”); West Seneca Police Department (“WSPD”) Lieutenant Detective Kevin
Baranowski; WSPD Detective Donald Driscoll; WSPD Officers Jeffrey Coia, Jamie
Pappaceno, Gerald Fibich, and Robert Deppeler; United States Customs and Border
Protection (“CBP”) Officer Jamie Pimentel; a Special Agent for the United States
Department of Homeland Security (“DHS”), United States Immigration and Customs
Enforcement (“ICE”), and the United States Homeland Security Investigation
Department (“HSI”), Glenn Erny; and the United States. Docket Item 27.
Defendants West Seneca, Baranowski, Driscoll, Coia, Pappaceno, Fibich, and
Deppeler (collectively, the “West Seneca defendants”) answered the second amended
complaint, Docket Item 35, and then moved for judgment on the pleadings, Docket Item
41. In his response to that motion, Andrews cross-moved to strike the affidavit of Arthur
J. Smith, Esq., and the attached exhibits. Docket Item 46-1 at ¶ 6.
The plaintiffs in case number 23-cv-14—Tom Cronin, Kelly Cronin, and Brittany
Cronin (collectively, “the Cronins”)—filed their related complaint against the West
Seneca defendants, Erny, and Pimentel in January 2023. Case No. 23-cv-14, Docket
Item 1. The next month, Erny, Pimentel, and the United States (collectively, the “federal
defendants”) all moved to dismiss Andrews’s claims against them. Docket Items 56 and
57. A few months later, Erny and Pimentel moved to dismiss the Cronins’ claims
against them as well. Docket Item 70.
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In the meantime, Andrews moved to consolidate case number 21-cv-746 with
case number 23-cv-14. Docket Item 62. This Court granted that motion and
consolidated the cases under Case No. 21-cv-746. Docket Item 69.
After careful review of the many and voluminous submissions, this Court grants
Andrews’s motion to strike, and it grants in part and denies in part the West Seneca
defendants’ motion for judgment on the pleadings. More specifically, this Court grants
the West Seneca defendants’ motion with respect to Andrews’s state law claims,
section 1983 conspiracy claims, and official capacity claims, but denies it with respect to
Andrews’s Monell claims and his section 1983 claims for unreasonable search and
seizure, false arrest and imprisonment, malicious prosecution, and failure to intervene.
The Court also grants the federal defendants’ motions to dismiss.
FACTUAL BACKGROUND2
On May 24, 2011, the town court in Alden, New York, granted Andrews a
“Certificate of Relief from Disabilities for a previous Class A Misdemeanor for attempted
escape from a county correctional facility.” Docket Item 27 (“Andrews complaint”) at
¶ 24; Case No. 23-cv-14, Docket Item 1 (“Cronin complaint”) at ¶ 24. The Certificate of
2 On a motion to dismiss or for judgment on the pleadings, the court “accept[s] all
factual allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.”
Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d
Cir. 2016); see L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).
The following facts are taken from Andrews’s second amended complaint, Docket Item
27, and the Cronins’ complaint, Case No. 23-cv-14, Docket Item 1.
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Relief “provided . . . Andrews the right to possess and own firearms.”3 Andrews
complaint at ¶ 25; Cronin complaint at ¶ 25.
“On or around December 2019, . . . Andrews purchased a solvent trap through
the commercial website Wish.com.” Andrews complaint at ¶ 26; Cronin complaint at
¶ 27. Solvent traps have “multiple uses,” including “cleaning motors and firearms by
catching excess solvent and oil during the cleaning and lubrication process.” Andrews
complaint at ¶ 27; Cronin complaint at ¶ 28. They “may be bought commercially
through multiple websites, as well as at various gun stores, Army Navy surplus stores,
and auto parts stores.” Andrews complaint at ¶ 28; Cronin complaint at ¶ 29. But some
individuals “convert[] solvent traps into firearm mufflers or silencers, which is illegal.”4
Andrews complaint at ¶ 29; Cronin complaint at ¶ 30.
“On or around December 28, 2019, the solvent trap [that Andrews had ordered]
. . . arrived in the United States at the Los Angeles, California[,] International Mail
Facility.” Andrews complaint at ¶ 32; Cronin complaint at ¶ 32. CBP Officer Pimentel
3 The judge who granted the Certificate of Relief from Disability “failed to include
the phrase ‘ability to buy, own, and possess firearms.’” Andrews complaint at ¶ 82.
“Therefore, . . . Andrews applied for a corrected Certificate of Relief from Disabilities in
November 2019[,] which was granted on February 11, 2020.” Id. “The February 11,
2020 Certificate of Relief from Disabilities provided . . . Andrews the right to possess,
purchase, or receive a firearm for any purpose.” Id. at ¶ 83.
4 “The National Firearms Act defines a firearm silencer or muffler to mean ‘any
device for silencing, muffling, or diminishing the report of a portable firearm, including
any combination of parts, designed or redesigned, and intended for the use in
assembling or fabricating a firearm silencer or firearm muffler, and any part intended
only for use in such assembly or fabrication.’” Andrews complaint at ¶ 30 (quoting 18
U.S.C. § 921(A)(24)). “For a solvent trap to be converted into a silencer, the owner
must drill holes in all internal cups of the solvent trap as well as the bottom cap to allow
a projectile to pass through and to prevent the solvent trap and firearm from exploding.”
Andrews complaint at ¶ 31; Cronin complaint at ¶ 31.
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“targeted the package,” physically examined it, and then “incorrectly classified the
solvent trap as a firearms suppressor.” Andrews complaint at ¶¶ 33-34; Cronin
complaint at ¶¶ 33-34. A few days later, “Special Agent Glenn Erny of [DHS, ICE, and
HSI in the] Buffalo, New York[,] office was notified that CBP in Los Angeles, California[,]
[had] intercepted a package containing a firearm silencer and that [the package] was
destined to . . . Andrews’s home” in West Seneca. Andrews complaint at ¶ 35; see also
Cronin complaint at ¶ 35. “The notification from CBP Officer Pimentel included
misleading photographs of the contents of the package, including a photograph that
showed a hole on one end of the solvent trap.” Andrews complaint at ¶ 36; Cronin
complaint at ¶ 36. “The photographs, however, were insufficient to determine whether
the solvent trap’s internal cups and bottom cap were drilled to convert the legal solvent
trap to an illegal firearm suppressor.” Andrews complaint at ¶ 36; Cronin complaint at ¶
36.
On or around January 3, 2020, HSI notified the WSPD “that a package
containing a firearm suppressor was destined to arrive at” Andrews’s home, and “HSI
requested assistance from WSPD to investigate and seize the package.” Andrews
complaint at ¶ 37; Cronin complaint at ¶ 52; see Andrews complaint at ¶ 41; Cronin
complaint at ¶ 61 (“Detective Driscoll swore that, on January 3, 2020, WSPD detectives
were notified that the package was deemed suspicious and was intercepted by agents
of CBP at a facility in Los Angeles, California.”). “That notification was reduced to a
written complaint, dated January 3, 2020, which was received and acted upon by
WSPD [D]etective . . . Driscoll.” Andrews complaint at ¶ 38; see also Cronin complaint
at ¶ 53.
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A few days later, Driscoll “applied for a search warrant . . . from Judge Shannon
Filbert of the Town of West Seneca Justice Court.” Andrews complaint at ¶ 39; Cronin
complaint at ¶ 59. “Detective Driscoll swore on the search warrant application that he
[had] received information from SA Glenn Erny that . . . Andrews was receiving a
firearm silencer, which was to be delivered at [Andrews’s residence] during a controlled
delivery by law enforcement officers.” Andrews complaint at ¶ 40; Cronin complaint at ¶
60. “According to Detective Driscoll, the package was received by ‘Law Enforcement
Officers in Buffalo[,] NY,’ but the search warrant application did not state whether the
Buffalo ‘Law Enforcement Officers’ investigated the package themselves to determine
the contents of it.”5 Andrews complaint at ¶ 43; Cronin complaint at ¶ 63.
“Detective Driscoll wrote that based on his past experience of 26 years on the
force” and “involve[ment] in numerous investigations, [Andrews’s home and/or vehicle]
should be entered without giving notice of authority or purpose” because “giving notice
[could] endanger the life or safety of the executing police officers as it [wa]s likely
firearms [might] be present.” Andrews complaint at ¶ 46; see also Cronin complaint at ¶
66. “Detective Driscoll also requested that Judge Filbert allow the seizure of any
weapon the incorrectly categorized silencer [wa]s capable of attachment thereto [sic].”
Andrews complaint at ¶ 49. And “Driscoll . . . applied for the seizure of any evidence
that tend[ed] to demonstrate criminal possession of weapons including ammunition,
ammunition magazines, firearms boxes, holsters, and any personal papers or
5 Andrews alleges that those officers “should have opened the package to
determine whether the solvent trap had been drilled and manufactured to convert the
legal solvent trap into an illegal firearm suppressor.” Andrews complaint at ¶ 45; Cronin
complaint at ¶ 65.
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documents which would tend to identify the owner, lessee, or whomever has custody or
control over the premises or items seized.” Id. at ¶ 50.
“[O]n January 6, 2020, Judge Filbert granted Detective Driscoll’s search warrant
application,” issuing a warrant that “contained all the information from the search
warrant application.” Andrews complaint at ¶ 51; Cronin complaint at ¶ 69. “The search
was required to take place within 10 days of the issuance of the search warrant.”
Andrews complaint at ¶ 52; Cronin complaint at ¶ 70. Neither the search warrant
application nor the warrant itself “note[d that] the item in the package was a solvent trap,
which is legal to purchase and own, and that further steps needed to be taken to
convert the solvent trap into an illegal firearm silencer.” Andrews complaint at ¶ 53;
Cronin complaint at ¶ 71. “Moreover, nowhere in the search warrant application d[id]
Detective Driscoll . . . differentiat[e] between an unaltered solvent trap, which is entirely
legal, and an altered solvent trap, which is illegal.” Andrews complaint at ¶ 54; Cronin
complaint at ¶ 72.
The next day, WSPD officers Baranowski, Driscoll, Coia, Pappaceno, Fibich, and
Deppeler, joined by HSI Special Agent Erny and other officers from HSI, the United
States Department of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), ICE, and the
United States Postal Inspector’s Office went to Andrews’ home to execute the search
warrant. Andrews complaint at ¶ 55; Cronin complaint at ¶ 73. First, United States
Postal Inspector’s Office Agent “Carosella hand delivered . . . Andrews the package
containing the solvent trap.” Andrews complaint at ¶ 56; Cronin complaint at ¶ 74.
“[L]ess than five minutes” later, the WSPD officers “made contact with . . . Andrews by
knocking on his front door.” Andrews complaint at ¶ 57; Cronin complaint at ¶ 75.
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“Andrews was taken out through the front door, placed in handcuffs, patted down for
weapons,” and read his Miranda rights. Andrews complaint at ¶¶ 58-59; Cronin
complaint at ¶ 76. Driscoll and HSI Agent Melania Meyers “were told [that] Andrews
would not answer any questions without his attorney.” Andrews complaint at ¶ 60.
At about the same time, Kelly Cronin—Andrews’s landlord who lived at the same
address but was not at home then—attempted to call him. Cronin complaint at ¶¶ 77-
78. After Andrews answered the phone and told Kelly,6 “we have company,” Driscoll
took the phone away “and asked Kelly if she was the ‘owner of the house.’” Id. at ¶¶ 78-
79. When “Kelly responded that she was, . . . Driscoll told her there was some ‘illegal
activity’ at the house.” Id. at ¶ 80. More specifically, Driscoll told Kelly that “Andrews
[had] ordered and received an illegal silencer.”7 Andrews complaint at ¶ 60.
After the arrest, the detectives and agents executed the search warrant.
Andrews complaint at ¶¶ 62, 110; Cronin complaint at ¶ 160. They confiscated
numerous guns, the solvent trap, “[seven] loaded rifle magazines,” “a flashlight style
silencer,” “two firearms denial letters,” and “boxes of assorted ammunition.” Andrews
complaint at ¶ 63. Those items were “sent” to the WSPD headquarters, where Andrews
also was sent “for questioning.” Id. at ¶¶ 63-64.
When Kelly and her husband, Tom, “returned home, [they] found their home in
complete disarray and their dogs, who were not outdoor dogs, in the backyard in the
6 Because the complaint refers to Kelly Cronin as “Kelly” and Tom Cronin as
“Tom,” this Court does the same.
7 “By telling [Kelly] Cronin that . . . Andrews ordered and received an illegal
silencer, Detective Driscoll put . . . Andrews’s living situation into an uncertain position.”
Andrews complaint at ¶ 61.
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freezing cold without water or food.” Cronin complaint at ¶ 87. “All the doors to the
[p]roperty were unlocked, causing Kelly and Tom to be fearful that they were not safe
[because] someone might be in the home.” Id. at ¶ 88. And “[w]hen they walked
through their house, it became very evident to Tom and Kelly that [the d]efendants [had]
searched it in its entirety.” Id. at ¶ 89. “For example, the drawers to the dresser in [their
daughter] Brittany’s room were pulled and rummaged through, furniture was pulled
away from the wall, plastic evidence bags were left on Tom and Kelly’s bed, [and]
basement totes were pulled from their shelves and opened.” Id. at ¶ 90.
Meanwhile, at the WSPD headquarters, Pappaceno and Baranowski “formally
interviewed” Andrews. Andrews complaint at ¶ 64; Cronin complaint at ¶ 101. “During
the interrogation . . . , the WSPD detectives admitted on multiple occasions that they
knew the item purchased by . . . Andrews was a solvent trap and that the unaltered
solvent trap was legal for . . . Andrews to purchase and own.” Andrews complaint at
¶ 65; Cronin complaint at ¶ 102. “In fact, Detective Pappaceno stated that ‘ATF t[old
him]’ that there [we]re ‘some steps’ needed to convert the solvent trap . . . into an illegal
firearm silencer.” Andrews complaint at ¶ 66; Cronin complaint at ¶ 103. “Nevertheless,
Detectives Pappaceno and Baranowski repeatedly asserted that the otherwise legal
solvent trap . . . was in fact an illegal firearm silencer merely because the detectives
believed that . . . Andrews possessed the knowledge and ability to potentially convert
the solvent trap into a silencer as demonstrated by his business as a seller of ‘ghost
guns.’”8 Andrews complaint at ¶ 67; Cronin complaint at ¶ 104.
8 “Notably, those allegations regarding . . . Andrews’s knowledge and ability to
convert the solvent trap into a firearm silencer were not contained in the search warrant
application, and Detective Driscoll merely attested in the search warrant affidavit
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Driscoll and Deppeler signed criminal complaints charging Andrews “with [eight]
counts of Felony Criminal Possession of a Weapon in the Third Degree.” Andrews
complaint at ¶¶ 70-71; Cronin complaint at ¶¶ 107-08. “Those charges were based on
falsified evidence submitted by one or more of the WSPD officers— . . . Kevin
Baranowski, Donald Driscoll, Jeffrey Coia, Jamie Pappaceno, Gerald Fibich, and/or
Robert Deppeler.” Andrews complaint at ¶ 72; Cronin complaint at ¶ 109. “Specifically,
one or more WSPD officers assembled the ‘ghost guns’ kept by . . . Andrews . . . , and
the WSPD officers falsely claimed that they seized fully assembled guns from”
Andrews’s residence.9 Andrews complaint at ¶ 72; Cronin complaint at ¶ 109. “In fact,
WSPD admitted in its ‘Firearms Analysis Report’ that . . . Andrews’s [seized] Sig Sauer
P226 was ‘partially disassembled with the slide/barrel assembly separated from the
frame.’” Andrews complaint at ¶ 73; Cronin complaint at ¶ 110. “WSPD officers
submitted to Judge Filbert that the item being sent to . . . Andrews was an illegal firearm
silencer.” Andrews complaint at ¶ 68; Cronin complaint at ¶ 105. “Upon information
and belief, the WSPD detectives were informed before the illegal search that the item
being sent to . . . Andrews was a solvent trap, but falsely alleged that the item was a
firearm silencer in the search warrant application.” Andrews complaint at ¶ 69; Cronin
complaint at ¶ 106.
9 “‘[G]host guns,’ or firearms that a[re] partially assembled from kits and do not
carry serial numbers, are legal as they are not considered ‘firearms’ by [ATF] under the
Gun Control Act.” Andrews complaint at ¶ 74. “Andrews was engaged in the business
of selling ‘ghost guns,’ which he typically shipped as ‘80 percent receivers’—meaning
that the gun was 80 percent complete, and buyers would have to assemble the final 20
percent themselves.” Id. at ¶ 75. “As part of his business, . . . Andrews would advise
his customers how to perform the machining of the ghost gun kits as the kits generally
need to be drilled to complete the frame.” Id. at ¶ 76. “However, [he] never sold to his
customers fully assembled guns, and the guns that were seized from his home on
January 7, 2020 were ‘80 percent receivers,’ which were legal under then-prevailing
rules promulgated by ATF as ‘80 percent receivers’ or ‘ghost guns’ are not considered
‘firearms.’” Id. at ¶ 77. “In other words, . . . Andrews’s business was completely legal
under then-prevailing rules promulgated by ATF.” Id. at ¶ 78.
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assembled and tested the Sig Sauer P226 and, when ‘analyzed in this manner, the
pistol . . . [was] operable.’” Andrews complaint at ¶ 73 (alteration in original); Cronin
complaint at ¶ 110 (alteration in original).
On January 7, 2020, Andrews “was arraigned by Judge Jeffrey Harrington of the
West Seneca Justice Court and charged with [eight] counts of Felony Criminal
Possession of a Weapon.” 	Andrews complaint at ¶ 79; Cronin complaint at ¶ 118.
Those charges were “based solely on the falsified evidence submitted by WSPD officers
regarding the ‘ghost runs’ that were seized from . . . Andrews’s home and assembled by
WSPD officers.” Andrews Complaint at ¶ 79. “Andrews was released but was
prohibited from traveling outside Erie County and was not allowed to have any weapons
of any kind.” Id. at ¶ 80. His “restriction on the freedom to travel and to bear arms,
along with his required attendance [at] numerous court appearances based [on] a bogus
search warrant[,] resulted in feelings of shock, humiliation, and embarrassment.” Id. at
¶ 81.
“On January 14, 2021, . . . Andrews moved before [New York State Supreme
Court Justice] Christopher J. Burns . . . to suppress the inventory obtained pursuant to
the search warrant and the subsequent search.” Id. at ¶ 84; Cronin complaint at ¶ 132.
Justice Burns granted that motion, and “all the inventory of the search was suppressed”
on the ground that “the false categorization of the legal solvent trap as an illegal
firearms suppressor was [made] knowingly, intentionally, or with reckless disregard for
the truth.” Andrews complaint at ¶¶ 84-86; Cronin complaint at ¶¶ 132-34. “Following
[Justice] Burns’s decision and order suppressing the evidence obtained by law
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enforcement, the prosecutor agreed to dismiss all charges against . . . Andrews.”
Andrews complaint at ¶ 87; Cronin complaint at ¶ 135.
Andrews then asked Daniel Denz, the Chief of the WSPD, to return the inventory
to him. Andrews complaint at ¶ 88. Denz “advised . . . Andrews that he would have to
submit an Article 78 Petition to have the inventory returned to him on instructions from
the Erie County District Attorney.” Id. at ¶ 89. As of the date Andrews filed the second
amended complaint, the inventory had not yet been returned to him. Id.
The Cronins continue to experience negative repercussions as a result of the
search of their home and the charges against Andrews. See Cronin complaint at
¶¶ 136-41. Among other things, it “has been extremely embarrassing for [them]” and
caused “their neighbors [to] become fearful of [them] and avoid all contact with [them]
and . . . Andrews.” Id. at ¶¶ 136, 139.
LEGAL PRINCIPLES
The standard for deciding a Rule 12(c) motion is “the same standard [that
applies] to dismissal pursuant to Rule 12(b)(6).” L-7 Designs, Inc. v. Old Navy, LLC,
647 F.3d 419, 429 (2d Cir. 2011) (alterations omitted) (quoting Johnson v. Rowley, 569
F.3d 40, 43 (2d Cir. 2009)). “To survive a motion to dismiss [under Rule 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but
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it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 550 U.S. at 556).
“A case is properly dismissed for lack of subject matter jurisdiction under
[Federal] Rule [of Civil Procedure] 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see Durant, Nichols, Houston, Hodgson &
Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (“‘[F]ederal courts are
courts of limited jurisdiction’ and lack the power to disregard such limits as have been
imposed by the Constitution or Congress.” (quoting Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978))). “In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside
the pleadings.” Makarova, 201 F.3d at 113 (citing Kamen v. Am. Tel. & Tel. Co., 791
F.2d 1006, 1011 (2d Cir.1986)). “A plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it exists.” Id.
DISCUSSION
I. 	THE WEST SENECA DEFENDANTS’ MOTION TO DISMISS AND
ANDREWS’S MOTION TO STRIKE
The West Seneca defendants ask for judgment on the pleadings on several
grounds.10 Docket Item 41-28. Andrews opposed the motion and moved to strike
materials outside the pleadings on which the West Seneca defendants relied. Docket
Item 46-2. 	For the reasons that follow, Andrews’s motion to strike is granted, and the
10 The West Seneca defendants have not moved for judgment on the pleadings
with respect to the Cronins’ claims.
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West Seneca defendants’ motion for judgment on the pleadings is granted in part and
denied in part.
A. 	Andrews’s Motion to Strike
Andrews argues that the West Seneca defendants improperly “introduce and
reference” various documents “outside the four corners” of Andrews’s second amended
complaint and that this Court should not consider those documents. See Docket Item
46-2 at 5-7. Those documents include:
1) an undated “Mission Statement” for [ATF] ([Docket Item] 41-5);
2) alleged “official statements” by ATF regarding solvent-trap style silencers
([Docket Item] 41-6);
3) an “IMF Interception Tracker Report” completed by co-defendant Jamie
Pimentel ([Docket Item] 41-8);
4) photographs allegedly taken by co-defendant Pimentel purporting to
depict “the package destined for [Andrews’s] residence” ([Docket Items] 41-
7 and 41-9);
5) an alleged “request for assistance” from co-defendant Glenn Erny to the
. . . West Seneca [d]efendants ([Docket Item] 41-10);
6) “Detective Driscoll’s corresponding police report” regarding co-defendant
Erny’s alleged request for assistance ([Docket Item] 41-11);
7) a “Search Warrant Application” allegedly completed by defendant Driscoll
([Docket Item] 41-12);
8) the “Search Warrant” issued by Judge Filbert that the . . . West Seneca
[d]efendants allege was “wholly based on reliable information from federal
law enforcement” ([Docket Item] 41-13; see also [Docket Item] 41-1, at ¶
13);
9) a police report allegedly completed by defendant Driscoll ([Docket Item]
41-14);
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10) an alleged “Firearms [A]nalysis [R]eport” that the . . . West Seneca
[d]efendants claim “establish[es] that all firearms seized from [Andrews’s]
home were operable” ([Docket Item] 41-15; see also [Docket Item] 41-1, at
¶ 15);
11) a “certified transcript of [Andrews’s] custodial interview with Lieutenant
Baranowski and Detective Pappaceno” ([Docket Item] 41-16);
12) a police report allegedly “detailing [Andrews’s] arraignment before
Judge Harrington of the West Seneca Justice Court” ([Docket Item] 41-17);
13) an alleged “copy of the Information Complaint and Charging Instrument
delineating the charges against [Andrews]” ([Docket Item] 41-18);
14) Andrews’s [2020] “Certificate of Relief from Disabilities” ([Docket Item]
41-19);
15) a police report allegedly completed by defendant Driscoll dated January
8, 2020 that contains hearsay statements that the . . . West Seneca
[d]efendants assert “show[ ] that WSPD officers did not know or have
reason to know the subject item was anything but an illegal silencer”
([Docket Item] 41-20);
16) the “Decision and Order of [Justice] Burns to suppress the evidence
seized as a result of the search warrant” ([Docket Item] 41-21); and
17) documents that the . . . West Seneca [d]efendants allege “are the
Letters of [A]cquittal and [C]ommendation concerning the investigated and
justified shooting of suspect Jeffrey Edwards on April 25, 2010” (see
[Docket Items] 41-20 – 41-22; see also [Docket Item] 41-1, at ¶ 22).
Docket Item 26-2 at 6-7. This Court agrees that it would be improper to consider such
documents on a motion to dismiss.
As the Second Circuit has explained, “[t]he purpose of Rule 12(b)(6) is to test, in
a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for
relief without resolving a contest regarding its substantive merits.” Glob. Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). “The Rule thus
assesses the legal feasibility of the complaint[] but does not weigh the evidence that
might be offered to support it.” Id. To that end, Federal Rule of Civil Procedure 12(d)
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clearly states that “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). In such a case,
“[a]ll parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.” Id.; see also Glob. Network, 458 F.3d at 155 (“As indicated by
the word ‘shall,’ the conversion of a Rule 12(b)(6) motion into one for summary
judgment under Rule 56 when the court considers matters outside the pleadings is
‘strictly enforce[d]’ and ‘mandatory.’” (alteration in original) (quoting Amaker v. Weiner,
179 F.3d 48, 50 (2d Cir. 1999) and Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.
1985))).
There are exceptions to the conversion requirement for (1) documents that are
integral to the complaint and (2) documents of which the court can take judicial notice.
See Glob. Network, 458 F.3d at 156. But neither of those exceptions apply here.
First, for documents to be “integral” to a complaint, “a necessary prerequisite for
that exception is that the ‘plaintiff[ ] rel[y] on the terms and effect of [the] document in
drafting the complaint . . . ; mere notice or possession is not enough.’” Id. (alterations in
original) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
Thus, “[i]n most instances where this exception is recognized, the incorporated material
is a contract or other legal document containing obligations upon which the plaintiff’s
complaint stands or falls, but which for some reason—usually because the document,
read in its entirety, would undermine the legitimacy of the plaintiff's claim—was not
attached to the complaint.” Id. at 157. That is not the case here.
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Moreover, although at least some of the documents at issue are the type “of
which a court may take judicial notice, it may do so on a motion to dismiss only to
establish the existence” of the document, “not for the truth of the facts asserted in [it].”
Id. (citation and internal quotation marks omitted). And here, the defendants submit the
documents “not to establish their existence, but rather to” support their version of the
facts. See id. “Analysis of such material [i]s therefore not appropriate under the judicial
notice exception to the conversion requirement.” See id.
When a district court is “presented with matters outside the pleadings, Rule 12(b)
afford[s] two options.” Chambers, 282 F.3d at 154. The court can either “exclude[] the
extrinsic documents” or convert the motion to one for summary judgment. See id. In
this case, the Court uses its discretion to strike the extraneous materials, as it would be
unfair to compel Andrews to respond to them without the benefit of discovery. Cf.
Lapoint v. Vasiloff, 2017 WL 976947, at *2 (N.D.N.Y. Mar. 13, 2017) (finding it
“inappropriate to consider [a] police report” not integral to complaint on a motion to
dismiss).
For all those reasons, this Court grants Andrews’s motion to strike.
B. 	The West Seneca Defendants’ Motion for Judgment on the Pleadings
1. 	Effect of the Suppression of the Evidence in the Criminal
Proceedings
The West Seneca defendants first contend that Andrews “cannot be permitted to
recover damages where he already enjoyed the benefit of dismissal of the criminal
prosecution against him.” Docket Item 41-28 at 4-7. Essentially, they argue that
permitting Andrews to recover damages under section 1983 after the state court
suppressed the evidence obtained through the search of Andrews’s house would
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amount to double-dipping. See id. They base that argument on one Second Circuit
case: Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999).
In Townes, police officers searched a taxi in which the plaintiff, Victor Townes,
was a passenger and found two handguns that Townes had hidden. Id. at 142. The
police also found cocaine on Townes’s person, and Townes was charged with criminal
possession of a weapon and criminal possession of a controlled substance. Id. After
the trial court denied Townes’s motion to suppress the handguns and cocaine, Townes
pleaded guilty. Id. “More than two years later, the Appellate Division reversed the
conviction on the ground that the police lacked probable cause to stop and search the
taxicab.” Id. “Eventually, the indictment was dismissed.” Id.
Townes then commenced a civil action under section 1983, alleging that the
officers had violated his Fourth Amendment rights and seeking damages for injuries
caused by “his arrest, conviction, and incarceration.” Id. at 141-42. The defendants
moved to dismiss, and the district court granted that motion in part and denied it in part.
Id. at 143. Both sides appealed. Id.
After finding that Townes “enjoyed a clearly established right to be free from an
unreasonable seizure while a passenger in a taxicab,” the Second Circuit “proceed[ed]
to consider the related issue of whether the stop and search were a proximate cause of
the damages that the plaintiff [sought].” Id. at 144-45. It concluded that they were not
for two reasons.
First, the court found that “[t]he fruit of the poisonous tree doctrine [could ]not link
the unreasonable seizure and search to Townes’s conviction and incarceration because
th[at] evidentiary doctrine is inapplicable to civil [section] 1983 actions.” Id. at 145. It
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also noted that the goal of that doctrine—deterrence of unlawful conduct by law
enforcement—had been accomplished adequately by the suppression of the evidence
in the plaintiff’s criminal proceedings. Id. at 145-46.
Second, the court found that “the unconstitutional seizure and search of
Townes’s person was not a proximate cause of his conviction because . . . the trial
court’s refusal to suppress the evidence[ was] . . . an intervening and superseding
cause of Townes’s conviction.” Id. at 146. In other words, the unreasonable search
was not a proximate cause of Townes’s conviction because the trial court’s denial of the
motion to suppress broke the chain of causation between the defendants’ conduct and
Townes’s injuries. Id. at 147.
The Second Circuit ultimately concluded that there was “a gross disconnect
between the constitutional violations (Townes’s Fourth Amendment right to be free from
unreasonable searches and seizures) and the injury or harm for which Townes s[ought]
a recovery (his subsequent conviction and incarceration).” Id. at 148. Therefore, it said,
“[n]o Fourth Amendment value would be served if Townes . . . reap[ed] the financial
benefit he s[ought]” because he “already [had] reaped an enormous benefit . . . : his
freedom, achieved by the suppression of evidence obtained in violation of the Fourth
Amendment.” Id.
According to the West Seneca defendants, the same analysis applies here.
They say that Andrews, like Townes, has “‘reaped the enormous benefit’ of having [the
charges against him] dismissed,” so allowing him to “seek financial compensation over
and above his already enjoyed benefit of dismissal of the criminal charges would result
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in a remedy that would vastly over[-]deter officers and result in a ‘wealth transfer that is
peculiar, if not perverse.’” Docket Item 41-28 at 6-7 (quoting Townes, 176 F.3d at 148).
But Andrews’s case clearly is distinguishable from Townes for at least three
reasons. First, Townes sought compensation only for the injury he suffered as a result
of his conviction and resulting imprisonment, while Andrews seeks compensation for the
allegedly unreasonable search itself, as well as for malicious prosecution and false
imprisonment. See Andrews complaint at ¶¶ 92-114, 127-48. Thus, unlike Townes—
whose alleged injury “(a violation of his Fourth Amendment right to be free from
unreasonable searches and seizures) d[id] not fit the damages he s[ought]
(compensation for his conviction and incarceration),” Townes, 176 F.3d at 147—
Andrews seeks compensation precisely for the constitutional violations he alleges.
Indeed, the Second Circuit specifically noted that Townes “d[id] not plead conduct
tantamount to malicious prosecution or false imprisonment” and suggested that if he
had pleaded those claims, the court’s analysis may have been different. See id. at 147.
And the Townes court explicitly acknowledged that “[v]ictims of unreasonable searches
or seizures may recover damages directly related to the invasion of their privacy.” Id. at
148.
Second, the court in Townes based its decision largely on the fact that Townes
possessed the weapon and drugs that were the basis of the charges against him and
his conviction could not be sustained only because of the illegality of the search. See
id. Under such circumstances, Townes indeed had “reaped an enormous benefit . . . :
his freedom,” which would not have been the case but for “the suppression of evidence
obtained in violation of the Fourth Amendment.” Id. Here, on the other hand, Andrews
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says that he is innocent of the charges placed against him—charges that he claims
were based on the same false statements that led to the issuance of the warrant. See
Andrews complaint at ¶¶ 69-79. Based on those allegations, which this Court must
credit on a motion to dismiss, Andrews has not reaped anything close to the same sort
of benefit that was reaped in Townes.
Third, in Townes, the state court initially denied the plaintiff’s motion to suppress.
Thus, the Second Circuit found that “Townes’s conviction and incarceration were [not]
proximately (or legally) caused by the defendants’ constitutional torts” but instead by the
“the trial court’s failure to suppress the evidence”—which amounted to “a superseding
cause of Townes's conviction and imprisonment.” 176 F.3d at 146-47. Here, in
contrast, the state court granted Andrews’s motion and suppressed the evidence. So
there is no “intervening and superseding cause” that breaks the chain of causation
between the defendants’ actions and Andrews’s alleged injuries. See id. at 146.
In sum, Andrews’s action—which seeks damages based on an allegedly
unreasonable search, his false arrest and imprisonment, and his malicious prosecution
for a crime that he allegedly did not commit—is not barred by Townes.
2. 	State Law Claims against the West Seneca Defendants
Next, the West Seneca defendants argue that Andrews’s state law claims against
them—for false arrest, false imprisonment, malicious prosecution, and failure to
intervene (asserted in the third, fourth, fifth, and sixth causes of action, respectively)—
must be dismissed because Andrews did not file a notice of claim as required by New
York law. Docket Item 41-28 at 8-9. In response, Andrews “agrees that he did not file a
notice of claim” and that “he cannot pursue state[ ]law claims against the . . . West
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Seneca [d]efendants.” Docket Item 46-2 at 2. Andrews’s state law claims against the
West Seneca defendants therefore are dismissed.
3. 	Andrews’s Section 1983 Claims against the Town of West
Seneca
The West Seneca defendants argue that Andrews’s section 1983 claims should
be dismissed against the Town of West Seneca because Andrews has not pleaded a
custom, practice, or policy as required under Monell v. Department of Social Services,
436 U.S. 658 (1978).11 In Monell, the Supreme Court held that “a municipality cannot
be held liable solely because it employs a tortfeasor.” Id. at 691 (emphasis omitted).
“[I]n other words,” the Court said, “a municipality cannot be held liable under [section]
1983 on a respondeat superior theory.” Id. (italics omitted); see Reynolds v. Giuliani,
506 F.3d 183, 191 (2d Cir. 2007) (holding that “Monell’s bar on respondeat superior
liability under [section] 1983 applies regardless of the category of relief sought” (italics
omitted)). Therefore, “a local government may not be sued under [section] 1983 for an
injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694.
Instead, municpalities are responsible under section 1983 only when the
plaintiff’s injury is “inflicted” by the “execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.” Id.; see Outlaw v. City of Hartford, 884 F.3d 351, 372 (2d Cir.
2018) (explaining that “local governments are responsible only for their own illegal
acts[; t]hey are not vicariously liable under [section] 1983 for their employees’ actions”
11 Andrews and the West Seneca defendants agree that West Seneca cannot be
held liable on a respondeat superior theory. See Docket Item 41-28 at 48-49; Docket
Item 46-2 at 2.
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(emphasis and internal quotation marks omitted) (quoting Connick v. Thompson, 563
U.S. 51, 60 (2011))). But a section “1983 plaintiff need not prove that his injury was
caused by an explicitly stated municipal rule or regulation.” Outlaw, 884 F.3d at 372. In
fact, even without “an express municipal policy, [a] plaintiff may prove a municipal
custom, policy[,] or practice in several ways.” Ramos v. County of Suffolk, 2009 WL
10708571, at *2 (E.D.N.Y. Sept. 8, 2009).
For example, a plaintiff can demonstrate a “policymaker’s ‘acquiescence in a
longstanding practice or custom which constitutes the standard operating procedure of
the local governmental entity.’” Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000) (some
internal quotation marks omitted) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
737 (1989)). Along the same lines, a plaintiff can show that the municipality “fail[ed] to
act,” and in doing so “exhibited deliberate indifference to constitutional deprivations
caused by subordinates.” Outlaw, 884, F.3d at 372-73 (alteration and citation omitted);
see also Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 127 (2d Cir. 2004)
(explaining that a plaintiff “injured by a police officer’s use of excessive force may
establish a basis for municipal liability by alleging that the [municipality]’s policymakers
were ‘knowingly and deliberately indifferent to the possibility that its police officers were
wont’ to violate the constitutional rights of arrestees” (quoting Fiacco v. City of
Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986))). “[T]o proceed on a deliberate-
indifference theory, a plaintiff must first establish ‘that the need for more or better
supervision to protect against constitutional violations was obvious.’” Outlaw, 884 F.3d
at 373 (second set of internal quotation marks omitted) (quoting Amnesty Am., 361 F.3d
at 127).
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Here, the West Seneca defendants argue that Andrews’s allegations “fail to even
allow an inference that the Town of West Seneca was aware that its otherwise
constitutional policies may be unconstitutionally applied by inadequately trained
employees such that they may be considered ‘municipal policies.’” Docket Item 41-28
at 13. And, the West Seneca defendants say, “aside from boilerplate allegations . . .
[Andrews] has made absolutely no factual allegations demonstrating that a
policymaking official of the Town of West Seneca exhibited deliberate indifference to
constitutional deprivations caused by the officers, such that the policymaker’s inaction
constitutes a ‘deliberate choice.’” Id. at 14 (quoting City of Canton v. Harris, 489 U.S.
378, 389 (1989)).
Andrews counters that his “[c]omplaint alleges that, to date, no disciplinary action
has been taken against the Town of West Seneca [d]efendants with regard to either of
the following: (1) their participation in the false arrest of . . . Andrews based on their
search pursuant to a search warrant that they knew or should have known was bogus;
or (2) manufacturing false evidence for the prosecution of [Andrews] in the form of
assembling ‘ghost guns’ from parts that [the d]efendants knew or should have known
were legal for [Andrews] to possess and sell at the time of the search.” Docket Item 46-
2 at 19. According to Andrews, this alleged “lack of discipline . . . is consistent with the
informal policy or custom of the Town of West Seneca to turn a blind eye to officer
misconduct.” Id.
“Under the failure to supervise or discipline theory, a plaintiff must show that ‘the
municipality failed to adequately supervise or discipline its employees (thereby implicitly
encouraging or ratifying their unlawful conduct) . . . [and] that such a failure of
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supervision or discipline was tantamount to deliberate indifference.’” Buari v. City of
New York, 530 F. Supp. 3d 356, 400 (S.D.N.Y. 2021) (alterations in original) (quoting
Alwan v. City of New York, 311 F. Supp. 3d 570, 578 (E.D.N.Y. 2018)). More
specifically, a plaintiff can demonstrate deliberate indifference by showing that “the need
for more or better supervision to protect against constitutional violations was obvious,”
but that the policymaker made “no meaningful attempt . . . to investigate or to forestall
further incidents.” Id. (quoting Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.
1995)).
A failure to supervise or discipline claim generally must allege facts
demonstrating that prior incidents put supervisors on notice. For that reason, courts in
the Second Circuit routinely dismiss Monell claims based on a single instance of failing
to discipline an employee after one alleged unconstitutional event. See, e.g., Santiago
v. City of Rochester, 2022 WL 856780, at *4 (W.D.N.Y. Mar. 23, 2022) (failure to
discipline employee “after the incident [at issue] does not, standing alone, . . . ‘give rise
to an inference of an unlawful municipal policy of ratification of unconstitutional conduct
within the meaning of Monell’” (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.
1983))); Askew v. Lindsey, 2016 WL 4992641, at *5 (S.D.N.Y. Sept. 16, 2016)
(collecting cases holding that a single failure to discipline “cannot give rise to an
inference of deliberate indifference without further evidence of a municipal policy or
practice”).
Here, however, Andrews alleges another incident. More specifically, he says that
in April 2010, several WSPD officers—including defendants Deppeler, Baranowski, and
Driscoll—were involved in the unjustified shooting of Jeffrey J. Edwards, a West Seneca
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resident. Docket Item 27 at ¶ 174. “In a police dash cam[era] video of the incident,”
Andrews says, “Edwards can be seen putting his hands out of the driver’s side window
trying to surrender.” Id. at ¶ 175. But “[s]econds later, WSPD officers, including
Deppeler, Baranowski, and Driscoll[,] fired more than 60 rounds which hit . . . Edwards
in the back and then the neck,” causing “paralysis and ultimately his death four years
later.” Id. at ¶ 175-76. Nonetheless, the Town of West Seneca “cleared [the officers] of
any wrongdoing” and took no disciplinary action against them, despite paying “a
settlement of $4.65 million to . . . Edwards’s estate.” Id. at ¶ 177.
Drawing all inferences in Andrews’s favor as this Court must at this stage, the
Court finds that this incident is sufficient to support his Monell claims. Of course, the
evidence gleaned in discovery may well tell a different story. But for now, Andrews’s
Monell claims may proceed.
4. 	Section 1983 Official Capacity Claims
Andrews sues the various WSPD officers under section 1983 in their personal
and official capacities. “Personal[ ]capacity suits seek to impose personal liability upon
a government official for actions he takes under color of state law.” Kentucky v.
Graham, 473 U.S. 159, 165 (1985) (citing Scheuer v. Rhodes, 416 U.S. 232, 237-238
(1974)). “Official[ ]capacity suits, in contrast, ‘generally represent only another way of
pleading an action against an entity of which an officer is an agent.’” Id. at 165-66
(quoting Monell, 436 U.S. at 690 n.55); see, e.g., Ware v. City of Lackawanna, 2009 WL
3464057, at *2 (W.D.N.Y. Oct. 21, 2009) (“It is settled that a suit against a municipal
officer in his official capacity is functionally equivalent to a suit against the entity of
which the officer is an agent.” (internal quotation marks omitted) (citing Graham, 473
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U.S. at 165-66)). Thus, “[a]s long as the government entity receives notice and an
opportunity to respond, an official[ ]capacity suit is, in all respects other than name, to
be treated as a suit against the entity.” Ware, 2009 WL 3464057, at *2 (quoting
Graham, 473 U.S. at 166). And for that reason, “courts routinely dismiss official
capacity claims . . . as redundant or duplicative of claims against the municipality itself.”
Id. at *3 (quoting Baines v. Masiello, 288 F. Supp. 2d 376, 384 (W.D.N.Y. 2003)).
Such is the case here. Indeed, Andrews concedes “that his claims against the
individual defendants in their official capacities are duplicative and should be
dismissed.” Docket Item 46-2 at 20 n.7. Therefore, the section 1983 claims against the
individual West Seneca defendants in their official capacities are dismissed.
5. 	Unreasonable Search and Seizure Claims
Next, the West Seneca defendants argue that the WSPD officers are entitled to
qualified immunity from Andrews’s unreasonable search and seizure claim. Docket
Item 41-28 at 17-25. Andrews responds that the WSPD officers are not immune.
Docket Item 46-2 at 27-28. This Court agrees with Andrews—at least for now.
“The doctrine of qualified immunity shields officials from civil liability so long as
their conduct ‘does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11
(2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). A right is
clearly established if it “is ‘sufficiently clear that every reasonable official would have
understood that [his actions] violate[d] that right.’” Id. (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)).
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A defendant asserting qualified immunity at the pleading stage “faces a
formidable hurdle” because “the plaintiff is entitled to all reasonable inferences from the
facts alleged.” McKenna v. Wright, 386 F.3d 432, 434, 436 (2d Cir. 2004). For that
reason, qualified immunity generally should not be resolved on a motion to dismiss or
for judgment on the pleadings. See id. at 436 (noting that a motion to dismiss on
qualified immunity grounds “may be granted only where ‘it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim that would entitle him to
relief’” (quoting Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992))); see
also Chamberlain Est. of Chamberlain v. City of White Plains, 960 F.3d 100, 111 (2d
Cir. 2020) (explaining that “a qualified immunity defense presented on a Rule 12(b)(6)
motion ‘faces a formidable hurdle . . . and is usually not successful” (alternation in
original) (quoting Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191-92 (2d Cir.
2006))); Wesley v. Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015) (“Although an
officer’s entitlement to qualified immunity is a threshold question to be resolved at the
earliest possible point, that point is usually summary judgment and not dismissal under
Rule 12.” (alteration, citations, and internal quotation marks omitted)); Newland v.
Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (per curiam) (“We caution . . . that it
is generally unwise to venture into a qualified immunity analysis at the pleading stage as
it is necessary to develop the factual record in the vast majority of cases.”).
According to the West Seneca defendants, “there is no question” that the WSPD
officers who searched Andrews’s home and arrested him “did so in good faith and under
an objectively reasonable belief that their conduct was appropriate pursuant to a facially
valid search warrant at the time.” Docket Item 41-28 at 18 (citing Docket Items 41-12
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and 41-13). And, they argue, “[t]here is similarly no dispute that probable cause to
arrest [Andrews] . . . existed when WSPD officers had reasonably trustworthy
information sufficient to form the belief that an offense had been committed by
[Andrews].” Id. at 19-20 (citing Docket Items 41-3, 41-8, 41-10, and 41-18).
To support their qualified immunity argument, the West Seneca defendants cite
several cases with facts somewhat similar to those in the instant case. See id. at 19-25
(citing Walden v. Carmack, 156 F.3d 861 (8th Cir. 1998); Sinick v. County of Summit, 76
F. App’x 675 (6th Cir. 2003); Messerschmidt v. Millender, 565 U.S. 535 (2012); and
Green v. City of Mount Vernon, 96 F. Supp. 3d 263 (S.D.N.Y. 2015)). But almost all of
those cases addressed a qualified immunity argument at a later stage of the case. See
Walden, 156 F.3d at 867 (appeal of denial of motion for summary judgment); Sinick, 76
F. App’x at 677 (same); Messerschmidt, 565 U.S. at 544 (same).
In Green, on the other hand, the court granted in part a motion to dismiss on
qualified immunity grounds. 96 F. Supp. 3d at 287-93. More specifically, the court
found that the defendant officers were entitled to qualified immunity on the plaintiff’s
unreasonable search claims with respect to (1) the plaintiffs’ claim that the warrant was
defective and (2) the plaintiff’s claim that “the no-knock entry into the apartment was
unreasonable” despite the issuance of a no-knock warrant. Id. at 287-89, 291. Among
other things, the court noted that the plaintiffs did not allege that the officer who applied
for the search warrant “made any false statements or misled the city judge who issued
the warrant.” Id. at 287. “Rather, they merely argue that what was presented to the
judge was insufficient to constitute probable cause.” Id. But the court denied the
defendants’ motion to dismiss with respect to the plaintiffs’ claims that (1) the
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defendants continued to search after “allegedly realiz[ing] that they were searching the
wrong location,” (2) the defendants “destroyed [the plaintiffs’ property] during the course
of the search,” and (3) the defendants unreasonably strip-searched the plaintiffs. Id. at
290-93.
Here, Andrews alleges that Driscoll “rel[ied] entirely on the false information
forwarded to him by defendants Pimentel and Erny without performing any independent
investigation.” Docket Item 27 at ¶ 106. As a result, the affidavit “Driscoll presented to
Judge Filbert contained materially false information—i.e.[,] that the solvent trap was
instead an illegal firearm silencer.” Id. at ¶ 107 (italics omitted). And, according to
Andrews, “Driscoll included in his affidavit materially false information deliberately, in
conscious disregard for the truth, and knowing said information to be false.” Id. at
¶ 109. So unlike the plaintiff in Green, Andrews indeed alleges that the defendants
“made . . . false statements [and] misled the . . . judge who issued the warrant.” See 96
F. Supp. 3d at 287.
At the summary judgment stage, the West Seneca defendants may well have a
qualified immunity defense. But that will depend on how the evidence pans out in
discovery, and for now, Andrews’s claims of unreasonable search and seizure may
proceed.
6. 	False Arrest and False Imprisonment Claims
“A [section] 1983 claim for false arrest, resting on the Fourth Amendment right of
an individual to be free from unreasonable seizures, including arrest without probable
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cause, is substantially the same as a claim for false arrest under New York law.”12
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal citation omitted). Under New
York law, to prevail on a claim for false arrest, a plaintiff must establish that “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged.” Ashley v. City of New York, 992 F.3d 128,
136 (2d Cir. 2021) (alterations omitted) (quoting Jocks v. Tavernier, 316 F.3d 128, 134-
35 (2d Cir. 2003)).
An arrest is privileged if it was made with probable cause. See id. (“Probable
cause to arrest is a complete defense to an action for false arrest.”). “Probable cause
exists when one has knowledge of, or reasonably trustworthy information as to, facts
and circumstances that are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the person to be arrested.”
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (quoting Williams v. Town of
Greenburgh, 535 F.3d 71, 79 (2d Cir. 2008)). An officer is entitled to qualified immunity,
however, so long as there is “arguable probable cause.” Walczyk v. Rio, 496 F.3d 139,
163 (2d Cir. 2007) (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)).
“Arguable probable cause exists if either (a) it was objectively reasonable for the officer
to believe that probable cause existed, or (b) officers of reasonable competence could
12 Because “[f]alse arrest is simply false imprisonment accomplished by means of
an unlawful arrest,” this Court addresses Andrews’s false arrest and false imprisonment
claims together. See Jenkins v. City of New York, 478 F.3d 76, 88 n.10 (2d Cir. 2007)
(“False arrest and false imprisonment are largely synonymous because an
imprisonment starts at the moment of arrest.” (citation omitted)).
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disagree on whether the probable cause test was met.” Id. (internal quotation marks
omitted) (quoting Escalera, 361 F.3d at 743).
The West Seneca defendants argue that “there is no question that ‘arguable
probable cause’ existed” because “it was objectively reasonable [for] Detective Driscoll
to” rely on “statements and information provided by federal law enforcement officers.”
Docket Item 41-28 at 34. Again, however, the defendants ignore Andrews’s allegations
that “Driscoll included in his affidavit materially false information deliberately, in
conscious disregard for the truth, and knowing said information to be false.” Id. at
¶ 109. At this stage, the Court must assume the truth of those allegations. And if
Driscoll knew that the information he had received from the federal officers and provided
in his affidavit was false, then he did not have “arguable probable cause.” See Walczyk,
496 F.3d at 163.
Once again, the bulk of cases on which the West Seneca defendants rely were
not decided on a motion to dismiss. See Triolo v. Nassau County, 24 F.4th 98, 102 (2d
Cir. 2022) (motion for judgment as a matter of law after trial); Escalera, 361 F.3d at 740
(same); Boyler v. City of Lackawanna, 287 F. Supp. 3d 308 (W.D.N.Y. 2018) (same),
aff’d, 765 F. App’x 493 (2d Cir. 2019) (summary order). The only exception is Green, in
which the court held that the defendants were “entitled to qualified immunity for the
handcuffing of [the plaintiff] during the first portion of the search” because they were
“act[ing] with good faith reliance on [an] apparently valid warrant.” 96 F. Supp. 3d at
294-95. But as discussed above, see supra Section I.B.5, Green is distinguishable
because it did not involve allegations that the officers had made false statements to
obtain the warrant. Moreover, in Green, the court denied the motion to dismiss with
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respect to the officers’ actions after they “allegedly knew they were searching the wrong
location.” See 96 F. Supp. 3d at 295.
Again, at the summary judgment stage, the West Seneca defendants may well
have a successful qualified immunity argument. But that is a question for another day.
Here, the defendants are not entitled to qualified immunity based on the facts alleged in
the complaint—and the Court is bound by those facts here. See McKenna, 386 F.3d at
436 (for a defendant to be entitled to qualified immunity at the motion to dismiss stage,
“the facts supporting the defense [must] appear on the face of the complaint”). This
Courts therefore finds that at this stage, the West Seneca defendants are not entitled to
qualified immunity on Andrews’s false arrest or false imprisonment claims.13
7. 	Malicious Prosecution Claims
“In order to prevail on a [section] 1983 claim against a state actor for malicious
prosecution, a plaintiff must show a violation of his rights under the Fourth Amendment
and must establish the elements of a malicious prosecution claim under state law.”
Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010) (internal citations
13 The West Seneca defendants also argue that even if Andrews has a claim for
false arrest and false imprisonment during the search, he “cannot assert claims for false
arrest and false imprisonment based on his confinement after the search was
conducted, where such search recovered multiple illegal firearms that plaintiff unlawfully
possessed.” Docket Item 41-28 at 39. More specifically, the defendants argue that
Andrews “cannot seek recovery for damages resulting from his post-search arrest
where incriminating evidence was recovered, and he was charged with [eight] counts of
criminal possession of a weapon.” Id. at 40. But the allegations in the complaint do not
admit any possession of illegal weapons; on the contrary, the complaint alleges that the
charges against Andrews “were based on falsified evidence submitted by one or more
of the WSPD officers,” who “falsely claimed that they seized fully assembled guns from
. . . Andrews’s property.” Andrews complaint at ¶ 72. Indeed, the complaint alleges that
all charges were dropped. Id. at ¶ 87. So again, the false arrest and false
imprisonment claims may proceed at this stage.
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omitted). In New York, those elements are: “(1) the initiation or continuation of a
criminal proceeding against [the] plaintiff; (2) termination of the proceeding in [the]
plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4)
actual malice as a motivation for [the] defendant’s actions.” Id. (quoting Murphy v.
Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). Andrews certainly has alleged the initiation of
a criminal proceeding against him that terminated in his favor. See Andrews complaint
at ¶¶ 79, 87. And as explained above, he also has sufficiently pleaded lack of probable
cause based on his allegations that the defendants knowingly used false information to
obtain the search warrant and to support the charges.
But the defendants argue that Andrews’s malicious prosecution claim also should
be dismissed because he has failed to plead the final element: actual malice. See
Docket Item 41-28 at 45-48. This Court disagrees.
“Under New York law, malice does not have to be actual spite or hatred[] but
means only ‘that the defendant must have commenced the criminal proceeding due to a
wrong or improper motive, something other than a desire to see the ends of justice
served.’” Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (quoting
Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03, 377 N.E.2d 975, 976 (1978)), as amended
(May 21, 1996). Thus, “[i]n most cases, the lack of probable cause—while not
dispositive—‘tends to show that the accuser did not believe in the guilt of the accused,
and malice may be inferred from the lack of probable cause.’” Id. (quoting Conkey v.
State, 74 A.D.2d 998, 999, 427 N.Y.S.2d 330, 332 (4th Dep’t 1980)).
Here, Andrews alleges that the WSPD officers submitted “falsified evidence” to
support the charges against him, including by “falsely claim[ing] that they seized fully
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assembled guns from . . . Andrews’s property.” Docket Item 27 at ¶ 72. At this early
stage of the case, that is sufficient to plausibly allege that the officers were motivated by
“something other than a desire to see the ends of justice served.” See Lowth, 82 F.3d
at 573; see also Blake v. Race, 487 F. Supp. 2d 187, 212 (E.D.N.Y. 2007) (concluding
that where “one or more of the defendants engaged in intentional misconduct” by
falsifying evidence “there is an issue of fact on the element of malice”).
8. 	Failure to Intervene
“A police officer ‘has an affirmative duty to intercede on the behalf of a citizen
whose constitutional rights are being violated in his presence by other officers.’” Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (quoting O’Neill v. Krzeminski,
839 F.2d 9, 11 (2d Cir. 1988)). “Failure to intercede to prevent an unlawful arrest can
be grounds for [section] 1983 liability.” Id. “Liability may attach only when (1) the officer
had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in
the officer’s position would know that the victim’s constitutional rights were being
violated; and (3) the officer does not take reasonable steps to intervene.” Jean-Laurent
v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citing O’Neill, 839 F.2d at 11-
12), aff’d sub nom. Jean-Laurent v. Wilkerson, 461 F. App’x 18 (2d Cir. 2012) (summary
order). “To recover on [a failure to intervene claim], of course, a plaintiff must still
overcome the hurdle of qualified immunity.” Ricciuti, 124 F.3d at 129.
The West Seneca defendants argue that Andrews’s failure to intervene claim
fails based on qualified immunity. More specifically, they say that “the WSPD officers
are entitled to qualified immunity as a matter of law where it was objectively reasonable
to believe their acts did not violate [the] plaintiff’s constitutional rights [under] the Fourth
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Amendment.” Docket Item 41-28 at 50. But as they do in connection with the other
claims addressed above, see supra Section I.B.5-7, the West Seneca defendants
ignore Andrews’s allegations of false statements and fabricated evidence.
According to those allegations—which, again, at this stage this Court must
credit—“[e]ach of the . . . West Seneca [d]efendants was present for the unlawful search
of [Andrews]’s residence, and therefore each of the officers knew or should have known
that . . . Andrews was not in possession of a firearm suppressor.” Docket Item 46-2 at
39; see Andrews complaint at ¶¶ 55-72. But instead of intervening to prevent the
unlawful search and charges, Andrews says, “they conspired to manufacture false
evidence and claim that [he] was in possession of fully assembled and operable
firearms.” Id. At this stage of the litigation, that is enough to raise a viable claim that
the defendants failed to intervene.
9. 	Conspiracy
“[T]o survive a motion to dismiss on a [section] 1983 conspiracy claim, the
plaintiff must allege 1) an agreement between two or more state actors, 2) concerted
acts to inflict an unconstitutional injury, and 3) an overt act in furtherance of the goal.”
Carmody v. City of New York, 2006 WL 1283125, at *5 (S.D.N.Y. May 11, 2006) (citing
Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002)). “A complaint
that includes vague allegations and fails to include specific instances of misconduct will
not withstand a motion to dismiss.” Id. (citing Ciambriello, 292 F.3d at 324-25). In fact,
the “plaintiff must provide a factual basis that supports an allegation that the defendants
‘entered into an agreement, express or tacit, to achieve the unlawful end.’” Id. (quoting
Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)); see Webb v. Goord,
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340 F.3d 105, 110 (2d Cir. 2003) (stating that “plaintiff must provide some factual basis
supporting a meeting of the minds” (citation and internal quotation marks omitted));
Warren v. Fischl, 33 F.Supp.2d 171, 177 (E.D.N.Y. 1999) (explaining that plaintiffs must
“provide some details of time and place and the alleged effects of the conspiracy”
(citations and internal quotations marks omitted)).
Here, Andrews alleges that Driscoll “received information from . . . Erny that . . .
Andrews was receiving a firearm silencer.” Docket Item 27 at ¶ 40. He further alleges
that “WSPD detectives were notified [by federal authorities] that [Andrews’s] package
was deemed suspicious and was intercepted by agents of CBP at a facility in Los
Angeles, California.” Docket Item 27 at ¶ 41. Those allegations are insufficient to
establish a “meeting of the minds” between the federal officers and the WSPD officers
to violate Andrews’s rights.
Andrews argues that “[t]he allegations in [his c]omplaint are sufficient to
demonstrate that it is at least plausible that each [WSPD] officer who searched
[Andrews]’s home knew that the search warrant was bogus and based on information
that was false.” Docket Item 46-2 at 40. And he adds that “[e]ach of the . . . West
Seneca [d]efendants then intended to inflict as much harm on [him] as possible by
finishing the assembly of [his] ‘ghost guns’ and then charging him as if the firearms were
operable and therefore illegal for him to own.” Id. But contrary to Andrews’s argument,
even assuming all that is true, it does not demonstrate that the West Seneca
defendants worked together with federal authorities to violate his rights.14 See Hickey-
14 Any claim that the WSPD officers conspired with each other is barred “by the
intracorporate conspiracy doctrine, which provides that ‘officers, agents[,] and
employees of a single corporate entity . . . are legally incapable of conspiring together.’”
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McAllister v. Brit. Airways, 978 F. Supp. 133, 139 (E.D.N.Y. 1997) (finding that plaintiff
had not adequately pleaded a conspiracy where “[s]he merely assert[ed] that [two
defendants] testified falsely at [her] hearing” and “then ma[de] the vague and conclusory
allegation that they did so in furtherance of a conspiracy between them” (internal
quotation marks omitted)). Andrews therefore has failed to state a claim for conspiracy,
and the defendants’ motion to dismiss is granted as to the seventh cause of action.
II. 	THE UNITED STATES’ MOTION TO DISMISS
The United States has moved to dismiss Andrews’s claims against it under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).15 Docket Item 56. More
specifically, the United States argues that the FTCA claims should be dismissed for lack
of subject matter jurisdiction and failure to state a claim and that the constitutional tort
claims should be dismissed because they are barred by sovereign immunity. See
Docket Item 56-1. For the reasons that follow, this Court grants the United States’
motion.
A. 	FTCA Claims
“The United States, as sovereign, is immune from suit save as it consents to be
sued . . . , and the terms of its consent to be sued in any court define that court’s
See Dowd v. DeMarco, 314 F. Supp. 3d 576, 587 (S.D.N.Y. 2018) (quoting
Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 388 (S.D.N.Y. 2013)); see also
Ivery v. Baldauf, 284 F. Supp. 3d 426, 440 (W.D.N.Y. 2018) (finding that section 1983
conspiracy claim against two Rochester Police Department officers was barred under
intracorporate conspiracy doctrine).
15 The United States also moved to dismiss based on insufficient service of
process under Federal Rule of Civil Procedure 12(b)(5), but it withdrew that argument in
its reply. See Docket Item 67 at 1 n.1.
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jurisdiction to entertain the suit.” Liranzo v. United States, 690 F.3d 78, 84 (2d Cir.
2012) (alternation in original) (quoting United States v. Mitchell, 445 U.S. 535, 538
(1980)). The FTCA, which Congress enacted in 1946, “constitutes a limited waiver by
the United States of its sovereign immunity and allows for a tort suit against the United
States under specified circumstances.” Id. at 84-85 (quoting Hamm v. United States,
483 F.3d 135, 137 (2d Cir. 2007). More specifically,
[t]he FTCA provides jurisdiction in the federal courts and waives the
sovereign immunity of the United States for “claims against the United
States, for money damages . . . for . . . injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission of any
employee of the [g]overnment while acting within the scope of his office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.”
Id. at 85 (alterations in original) (quoting 28 U.S.C. § 1346(b)(1)); see also 28 U.S.C.
§ 2674 (“The United States shall be liable, respecting the provisions of this title relating
to tort claims, in the same manner and to the same extent as a private individual under
like circumstances.”). “The United States’ waiver of immunity under the FTCA ‘is to be
strictly construed in favor of the government.’” Liranzo, 690 F.3d at 84 (quoting Long
Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir. 1988)).
The United States argues that this Court lacks jurisdiction over Andrews’s FTCA
claims because (1) the claims are barred by the due care exception, (2) the claims are
barred by the detained goods exception, and (3) there is no private analog to the
alleged conduct. See Docket Item 56-1 at 7-13. In the alternative, the United States
argues that Andrews has failed to state a claim against it for false arrest, false
imprisonment, malicious prosecution, or failure to intervene. See id. at 16-17.
Assuming without deciding that Andrews’s FTCA claims are not jurisdictionally barred,
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this Court agrees with the United States that Andrews has failed to state a claim against
it.16
Andrews bases his claims against the United States on the actions of two federal
employees: Pimentel and Erny. See generally Andrews complaint. The only allegations
against Pimentel are that (1) he “targeted the package” mailed to Andrews, id. at ¶ 33;
(2) “[f]ollowing a physical examination of the package, [he] incorrectly classified the
solvent trap as a firearms suppressor,” id. at ¶ 34, and (3) his “notification” to Erny
“included misleading photographs of the contents of the package, including a
photograph that showed a hole on one end of the solvent trap,” id. at ¶ 36. With respect
to Erny, Andrews alleges that (1) he “was notified that CBP in Los Angeles, California[,]
intercepted a package containing a firearm silencer” that was to be delivered to
“Andrews’s home,” id. ¶ 35; (2) he had the package “FedExed to him” so that “Agents of
HSI and detectives of the WSPD [could] execute a controlled delivery of [that package]
to Andrews as soon as practicable,” id. at ¶ 44; (3) he gave information to Driscoll that
“Andrews was receiving a firearm silencer,” id. at ¶ 40; and (4) he “joined” the WSPD
officers “to execute the search warrant . . . on . . . Andrews’s home,” id. at ¶ 55.
As explained above, the elements of a false arrest and false imprisonment claim
under New York law are that: “(1) the defendant intended to confine the plaintiff, (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the
16 The Court “may assume hypothetical jurisdiction where the jurisdictional issue
is statutory in nature.” Butcher v. Wendt, 975 F.3d 236, 242–43 (2d Cir. 2020) (citing
Doyle v. U.S. Dep't of Homeland Sec., 959 F.3d 72, 79 (2d Cir. 2020)); see Ward v.
United States, 2022 WL 1509672, at *1 (2d Cir. May 13, 2022) (summary order)
(resolving appeal of dismissal of FTCA claims on Rule 12(b)(6) instead of jurisdictional
grounds).
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confinement, and (4) the confinement was not otherwise privileged.” Ashley, 992 F.3d
at 136 (alterations omitted) (quoting Jocks, 316 F.3d at 134-35). But as the United
States notes, the amended complaint is devoid of any facts “indicat[ing that] Pimentel or
. . . Erny were present for, let alone participated in, [Andrews]’s arrest or confinement of
any kind.” Docket Item 56-1 at 16-17. Although Andrews alleges that Erny “joined” the
WSPD officers “to execute the search warrant,” Andrews complaint at ¶ 55, the
complaint makes no further mention of Erny after that paragraph. It was “the West
Seneca Police Department Detectives” who allegedly “made contact with . . . Andrews
by knocking on his front door.” Andrews complaint at ¶ 57. And it was the WSPD
officers who allegedly “falsified evidence.” which led to Andrews’s allegedly illegal
arrest. See id.at ¶ 79 (alleging that “Andrews was arraigned by Judge Jeffrey
Harrington of the West Seneca Justice Court and charged with [eight] counts of Felony
Criminal Possession of a Weapon based solely on the falsified evidence submitted by
WSPD officers regarding the ‘ghost guns’ that were seized from Mr. Andrews’s home
and assembled by WSPD officers”) (emphasis added)).
There are simply no facts in the second amended complaint that plausibly allege
Pimentel’s or Erny’s involvement in the alleged scheme to falsify evidence. See
Rodriguez v. City of New York, 649 F. Supp. 2d 301, 306 (S.D.N.Y. 2009) (finding that
plaintiff failed to state plausible false arrest claim against assistant district attorney who
“assisted the [police] in their investigation of the plaintiff by contacting” the judge who
[had] signed the warrant when plaintiff did not allege “that the call took place prior to the
arrest, that any information acquired during the call was conveyed to the defendant
police officers prior to the arrest, or that, as a result of the call, [the assistant district
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42
attorney] ordered [the] defendant officers to arrest the plaintiff”). Andrews therefore has
not stated a viable false arrest claim against the United States.
Similarly, malicious prosecution requires that the plaintiff establish: “(1) the
initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable
cause, and (4) malice.” Watson v. United States, 865 F.3d 123, 134 (2d Cir. 2017)
(quoting Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)). But again,
Andrews’s second amended complaint “is completely devoid of any facts alleging that
. . . Erny and . . . Pimental initiated, or in any way participated[ in Andrews]’s state
criminal prosecution.” See Docket Item 56-1 at 17. Nor is there any plausible allegation
of Erny’s or Pimental’s malice. Indeed, there are no allegations even suggesting that
Pimentel’s “incorrect[] classif[ication of] the solvent trap as a firearms suppressor” was
deliberate rather than an inadvertent mistake. See Andrews complaint at ¶¶ 33-34.
Likewise, there is no indication that Pimentel included photographs that were
purposefully “misleading.” See id. at ¶ 36. And there also is nothing alleging any
malice on Erny’s part in acting on what he was told and relaying it to the West Seneca
defendants. See id. at ¶¶ 35, 44, 55.
Finally, with respect to failure to intervene, there are no allegations indicating that
Erny or Pimental witnessed Andrews’s “constitutional rights . . . being violated,” let alone
that they “had a realistic opportunity to intervene and prevent the harm” caused by the
West Seneca defendants. See Ricciuti, 124 F.3d at 129 (quoting O’Neill, 839 F.2d at
11); see generally Andrews complaint. The closest Andrews comes to asserting either
federal officer’s involvement is his allegation that Erny “joined” the WSPD officers “to
execute the search warrant.” See Andrews complaint at ¶ 55. But that is simply not
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enough to plausibly allege that Erny had any involvement in the West Seneca
defendants’ framing Andrews. Cf. Rodriguez, 649 F. Supp. 2d at 306. As the United
States observes, “there are no allegations that . . . Erny [actually] searched the
residence, detained [Andrews], arrested [Andrews], or prosecuted [him].” Docket Item
67 at 9.
This Court therefore grants the United States’ motion with respect to Andrews’s
FTCA claims for false arrest and imprisonment, malicious prosecution, and failure to
intervene.
B. 	Constitutional Claims
The United States further argues that the first, sixth, and seventh causes of
action should be “dismissed because they are barred by sovereign immunity, and the
federal government has not waived immunity for [any] of those types of claims.” Docket
Item 56-1 at 13. Andrews concedes in his opposition that these three causes of action
should be dismissed against the United States. See Docket Item 64-1 at 2 n.1.
Accordingly, this court grants the United States’s motion to dismiss with respect to
Andrews’s federal claims.
III. 	ERNY AND PIMENTEL’S MOTIONS TO DISMISS
Erny and Pimentel move to dismiss Andrews’s complaint against them, Docket
Item 57, as well as the Cronins’ complaint, Docket Item 70.17
17 The Cronins did not name the United States as a defendant. As noted above,
the West Seneca defendants have not moved for judgment on the pleadings with
respect to the Cronins’ complaint.
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A. 	State Law Claims
This Court already has found that Andrews’s allegations about Erny’s and
Pimentel’s alleged actions fail to state a claim for false imprisonment, malicious
prosecution, or failure to intervene. See supra Section II.A. Accordingly, those claims
are dismissed against Erny and Pimentel.18
B. 	Bivens Claims
In Bivens, the Supreme Court recognized “an implied private action for damages
against federal officers alleged to have violated a citizen’s constitutional rights.” Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The plaintiff in Bivens had been
subject to an unlawful, warrantless search and arrest by federal narcotics agents, and
the Supreme Court allowed him to pursue a claim for money damages against those
agents directly under the Fourth Amendment. Bivens, 403 U.S. at 389-90, 397.
Notwithstanding the creation of a remedy under Bivens, the Supreme Court has
warned that “the Bivens remedy is an extraordinary thing that should rarely if ever be
applied in ‘new contexts.’” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (quoting
Malesko, 534 U.S. at 69). In fact, the Supreme Court has extended Bivens only twice:
once to an employment discrimination claim under the due process clause of the Fifth
Amendment, see Davis v. Passman, 442 U.S. 228 (1979), and once to a prisoner’s
Eighth Amendment claim for failure to provide adequate medical treatment, see Carlson
v. Green, 446 U.S. 14 (1980). “Since Carlson in 1980, the Supreme Court has declined
to extend the Bivens remedy in any new direction at all.” Arar, 585 F.3d at 571. Indeed,
18 The Cronins assert only federal claims. See Cronin complaint at ¶¶ 142-97.
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the Court has gone so far as to say that if “‘the Court’s three Bivens cases [had] been
. . . decided today,’ it is doubtful that we would have reached the same result.”
Hernandez v. Mesa, 589 U.S. 93, 101 (2020) (alterations in original) (quoting Ziglar v.
Abbasi, 582 U.S. 120, 134 (2017)).
When asked to extend Bivens, “courts engage in a two-step inquiry.” Id. at 102.
First, the court asks whether the claim arises in a “new context” or involves a “new
category of defendants.” Id. (quoting Malesko, 534 U.S. at 68). If the claim arises in a
new context, the court then asks whether special factors counsel hesitation about
extending Bivens to that new context. Id. And if there is “reason to pause,” the court
should not extend Bivens. Id.
Here, Andrews and the Cronins assert Bivens claims against Erny and Pimentel
for unreasonable search and seizure, failure to intervene, and conspiracy. This Court
already has addressed the insufficiency of Andrews’s allegations with respect to the
claims of failure to intervene and conspiracy. See supra Sections I.B.9 and II.A. The
Cronins’ complaint relies on the same facts for those claims.19 Thus, this Court finds
that all plaintiffs have failed to state a claim for failure to intervene or conspiracy against
Pimentel and Erny.
The Court therefore turns to whether the plaintiffs have stated a Bivens claim for
unreasonable search and seizure against Pimentel and Erny. Pimentel and Erny argue
that the plaintiffs cannot raise a Bivens claim against them for unreasonable search and
19 Indeed, much of the Cronins’ complaint appears to be copied and pasted from
Andrews’s complaint, see Case No. 23-cv-14, Docket Item 1, and there is at least once
instance in which it refers to “Mr. Andrews” as the plaintiff instead of the Cronins, see id.
at ¶ 182.
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seizure because it involves a new context and a new category of defendants, and
special factors counsel hesitation to extending Bivens to address the scenario here. For
the reasons that follow, this Court agrees.
A claim arises in a new context if it is “different in a meaningful way from previous
Bivens cases decided by [the Supreme Court].” Hernandez, 589 U.S. at 102 (quoting
Abbasi, 582 U.S. at 139). “A claim may arise in a new context even if it is based on the
same constitutional provision as a claim in a case in which a damages remedy was
previously recognized.” Id. As the Supreme Court has explained, “it is a significant step
under separation-of-powers principles for a court to . . . create and enforce a cause of
action for damages against federal officials.” Abbasi, 582 U.S. at 133.
“The question is ‘who should decide’ whether to provide for a damages remedy,
Congress or the courts?” Id. at 135 (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)).
Thus, in evaluating whether “special factors counsel[] hesitation,” courts “must
concentrate on whether the Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of allowing a damages action
to proceed.” Id. at 136. “If there is a rational reason to think that the answer is
‘Congress’—as it will be in most every case—no Bivens action may lie.” Egbert v.
Boule, 596 U.S. 482, 492 (2022) (internal citation omitted). “[I]f there is an alternative
remedial structure present in a certain case, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.” Abbasi, 582 U.S. at 137. Moreover, “a
Bivens cause of action may not lie where . . . national security is at issue.” Egbert, 596
U.S. at 494.
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Because the claims against Pimentel and Erny are somewhat distinct, the Court
will analyze them separately.
1. 	Pimentel
As noted above, the plaintiffs allege that “Pimentel targeted [Andrews’s]
package” and, “[f]ollowing a physical examination of the package, . . . incorrectly
classified the solvent trap as a firearms suppressor.” Andrews complaint at ¶¶ 33-34;
Cronin complaint at ¶¶ 33-34. Pimentel then “notified” Erny that “CBP in Los Angeles,
California[,] intercepted a package containing a firearm silencer and that it was destined
to [Andrews’s home].” Andrews complaint at ¶ 35; Cronin complaint at ¶ 35. That
“notification . . . was part of ATF’s increasing concern regarding the proliferation of
solvent traps that are sometimes modified and used as unregistered firearm silencers.”
Andrews complaint at ¶ 37; Cronin complaint at ¶ 37. But the “notification . . . included
misleading photographs of the contents of the package, including a photograph that
showed a hole on one end of the solvent trap.” Andrews complaint at ¶ 36; Cronin
complaint at ¶ 36.
As this Court previously has observed, “CBP officers are a ‘new category of
defendants’ not present in prior Bivens claims.” Darwish v. Pompeo, 2022 WL 831332,
at *8-10 (W.D.N.Y. Mar. 21, 2022) (finding that claims that plaintiff “was interrogated
and detained by a CBP officer while crossing an international border and was issued a
notice of appearance based on false information about his removability” was improper
extension of Bivens). Moreover, the claims against Pimentel “bear little resemblance to
the three Bivens claims the Court has approved in the past: a claim against FBI agents
for handcuffing a man in his own home without a warrant; a claim against a
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Congressman for firing his female secretary; and a claim against prison officials for
failure to treat an inmate’s asthma.” See Abbasi, 582 U.S. at 140. So the claims
against Pimentel present a new context.
Finally, special factors counsel against the extension that the plaintiffs seek.
CBP’s ability to monitor packages coming into the country implicates national security.
See Egbert, 596 U.S. at 494. That alone precludes extension of Bivens to this area.
See id. at 487, 494-97 (dismissing Bivens claims against CBP agents for allegedly using
excessive force against an innkeeper of an inn that was “a hotspot for cross-border
smuggling”); see also Muzumala v. Mayorkas, 2022 WL 2916610, at *5 (S.D.N.Y. July
22, 2022) (dismissing Bivens claims against DHS and ICE agents because “[s]uits
against such officials, like the suit in Egbert, implicate national security, and therefore a
Bivens action against them cannot lie” (italics added)). At the very least, it gives this
Court “reason to pause,” and the Court therefore must “reject the request.” See
Hernandez, 589 U.S. at 102.
For all those reasons, the plaintiffs’ Bivens claims against Pimentel are
dismissed.20
2. 	Erny
The plaintiffs allege that Erny “was notified that CBP in Los Angeles, California[,]
intercepted a package containing a firearm silencer and that it was destined to . . .
Andrews’s home.” Andrews complaint at ¶ 35; Cronin complaint at ¶ 35. He then had
20 Pimentel also moves to dismiss based on lack of personal jurisdiction. See
Docket Item 57-1 at 10-13; Docket Item 70-1 at 8-10. Because the Court dismisses the
claims against Pimentel on the merits, it need not and does not decide whether it has
personal jurisdiction over him.
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the package “FedExed to him for Agents of HSI and detectives of the WSPD to execute
a controlled delivery of same to Andrews as soon as practicable.” Andrews complaint at
¶ 44; Cronin complaint at ¶ 64. He subsequently relayed to Driscoll that “Andrews was
receiving a firearm silencer.” Andrews complaint at ¶ 40; Cronin complaint at ¶ 60.
“HSI requested assistance from WSPD to investigate and seize the package,” and Erny
later “joined” the WSPD officers “to execute the search warrant [issued] by Judge Filbert
on . . . Andrews’s home.” Andrews complaint at ¶¶ 37, 55; Cronin complaint at ¶¶ 52,
73.
The only allegation that even comes close to being factually similar to Bivens is
that Erny “joined” the West Seneca defendants “to execute the search warrant.” But
even that presents a new context because, as Erny and Pimentel observe, “the search
of the house where [the p]laintiffs resided was pursuant to a warrant, the federal
agent[s] and officer[s] were from DHS, CBP[,] and HSI rather than narcotics agents, and
the reason for the search was firearm and gun charges.” Docket Item 72 at 10; cf.
Martinez v. D’Agata, 2019 WL 6895436, at *7 (S.D.N.Y. Dec. 18, 2019) (distinguishing
Bivens because it “involved a warrantless arrest and search of the plaintiff’s home,
whereas this case involves an arrest made pursuant to a warrant, outside plaintiff’s
home” and because “the type of officers involved in Bivens were DEA agents, whereas
here the officers were appointed members of a federal task force”). And DHS’s ability to
intercept a package suspected of containing an illegal firearm shipped from abroad
implicates the same national security concerns cited above. See supra Section III.B.1.
That is sufficient at least to give this Court pause at extending Bivens to this set of facts.
The Court therefore dismisses the Bivens claims against Erny as well.
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CONCLUSION
For the reasons explained above, Andrews’s motion to strike, Docket Item 46, is
GRANTED; and the West Seneca defendants’ motion for judgment on the pleadings,
Docket Item 41, is GRANTED IN PART and DENIED IN PART. Andrews’s state law
claims, section 1983 conspiracy claims, and official capacity claims are dismissed; his
Monell claims and section 1983 claims for unreasonable search and seizure, false
arrest and imprisonment, malicious prosecution, and failure to intervene may proceed.
The United States’ motion to dismiss, Docket Item 56, is GRANTED, and Andrews’s
claims against the United States are dismissed. Erny and Pimentel’s motions to
dismiss, Docket Items 57 and 70, are GRANTED, and Andrews’s and the Cronins’
claims against Erny and Pimentel are dismissed. The Clerk of Court shall terminate the
United States, Pimentel, and Erny as defendants.
SO ORDERED.
Dated: 	March 31, 2025
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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