Rodriguez v. WOLBACH

499 F. Supp. 2d 479, 2007 U.S. Dist. LEXIS 46949, 2007 WL 1862260

• Court: District Court, S.D. New York
• Decided: June 27, 2007
• Docket: 05 Civ. 219(SAS)
• Status: Published

Opinion

OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

Robert Rodriguez brings this action against Drug Enforcement Agency (“DEA”) Special Agent Robert John Wol-bach in his individual capacity. 1 He alleges a violation of his Fourth Amendment rights and is seeking money damages. 2 In his Complaint, Rodriguez alleged that a DEA Special Agent caused the U.S. Marshals Service to file a detainer against him while he was incarcerated at Rikers Island based on an arrest warrant issued by the Southern District of West Virginia on June 3, 1999. 3 The warrant charged Rodriguez with possession of six hundred pounds of marijuana with intent to distribute. 4 Wol-bach eventually took custody of Rodriguez at Rikers Island based on that warrant. 5 Rodriguez alleged that this arrest was made without probable cause, albeit based on a warrant, because Wolbach should have known that Rodriguez had been incarcerated in New York State when many of the events described in the warrant allegedly occurred. 6

Wolbach now moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and, in the alternative, for summary judgment on the ground of qualified immunity. 7 In response to defendant’s motion, Rodriguez has abandoned his previous allegations and now asserts that Wolbach took him into custody pursuant to a facially invalid warrant. 8 Rodriguez seeks leave to amend his Complaint to conform to this new theory. 9 For the reasons stated below, Wolbach’s motion for summary judgment is granted.

II. BACKGROUND 10

A. The Investigation

Special Agent James L. Balcom, a DEA agent based in Charleston, West Virginia, was assigned to investigate a drug dealer based in New York who sold drugs in West Virginia. 11 The subject of the investigation was “Mark” or “Merv,” described in 1995 by two cooperating witnesses who alleged that he trafficked in cocaine hydrochloride and cocaine base in the Southern District of West Virginia. 12

During January 1999, an anonymous informant told a detective in the Charleston, West Virginia Police Department Drug Unit that “Merve Minoya,” 13 a Dominican male, was trafficking cocaine from New York and selling it in Bluefield, West Virginia and Charleston, West Virginia. 14 This informant told the detective that Mi-noya used the alias “Damon Anthony Stone.” 15 The informant also told the police that Minoya maintained two addresses in the Charleston area — rental properties in Charleston, West Virginia and Belle, West Virginia. 16 Lastly, the informant told the police that Minoya used a blue Buick Park Avenue with a hidden compartment. 17 By checking with the property’s landlord, the detective determined that a person using the name Damon Stone had rented the Charleston property since May I,1996. 18

On May 2, 1999, Virginia State troopers stopped and searched a blue Buick Park Avenue registered to “Kevin James Turpin.” 19 They seized $240,000 from the car and found a secret compartment. 20

On May 11,1999, Balcom secured search warrants for both of Minor’s residences. 21 He and other DEA officers searched the Charleston residence and recovered seven hundred pounds of marijuana, fifteen grams of cocaine, six handguns, digital scales, miscellaneous papers, and a vehicle registered to Kevin Turpin. 22 The police also determined that an “Anthony Stone” had subscribed, since May 1, 1996, to a utility at the Belle residence. 23 DEA Agents and West Virginia Police raided the Belle residence and seized four kilograms of cocaine, two guns, $36,600 in currency, and receipts payable to “Damon Stone.” 24

During May 1999, Balcom received two arrest reports .concerning Damon Anthony Stone from the Bluefield, West Virginia Police Department. 25 The first arrest on June 9, 1993 was for Joyriding. 26 This report contained a photograph of Rodriguez. 27 The second arrest on June 25, 1993 was for Breaking and Entering. 28 During the second arrest, Stone’s girlfriend told the police that Stone’s real name was Robert Quinsy Rodriguez. 29 The arrest report also noted that Rodlike’s birth date was June 24, 1970. 30 Rodriguez admitted that the two reports described him as the arrestee and that he told the Bluefield police that his name was Damon Stone. 31

In reviewing the National Crime Information Center database, Balcom learned that Rodriguez had been arrested for robbery in New York in 1995. 32 Balcom obtained the photographs from that arrest. 33 On June 1, 1999, Balcom met with each of the two witnesses who spoke to the West Virginia Police at the start of the investigation. 34 The first witness identified the individual in Rodriguez’s 1993 and 1995 arrest photographs as the “Mark” or “Merv” who was the suspected West Virginia drug dealer. 35 The second witness identified the individual in those photographs as the “Mark” who had sold him drugs. 36 The second witness also stated that “Mark” had a girlfriend in Bluefield, West Virginia and that he owned cars with hidden compartments. 37

B. The Warrant

On June 3, 1999, Balcom filed a criminal complaint and an affidavit in the Southern District of West Virginia detailing his investigation of the intended arrestee. 38 Based on these documents, the court issued an arrest warrant for “Damon Stone a/k/a ‘Merv Minaya,’ Mark and Robert Quincy Rodriguez.” 39 In his affidavit, Balcom stated that he was “participating in a[n] ... investigation involving Merve M[inoya] (phonetic),” that he believed that “M[erv], M[ark], Damon Anthony Stone, Damon S[tone], Anthony S[tone], Merve M[inoya] (M[inaya]) and Robert Quincy Rfodriguez] [were] all the same person,” and that there was probable cause to believe that the individual was “working in concert” with Kevin Turpin and other unknown individuals to distribute cocaine and marijuana. 40 The affidavit also noted the addresses of the intended arrestee’s residences in West Virginia and Robert Quincy Rodriguez’s date of birth. 41

C. The Arrest

On December 1, 2001, New York City police officers arrested Rodriguez for possession of a weapon and marijuana. 42 Bal-com received notification of Rodriguez’s arrest through a computer system that tracks outstanding warrants, and contacted Wolbach. 43 Balcom told Wolbach that “someone [Balcom] had an arrest warrant for, Robert Quincy Rodriguez, had been locked up by the New York Police Department.” 44 Wolbach obtained a copy of the 1999 arrest warrant and a copy of the photograph from Rodriguez’s 1995 New York arrest report, and faxed the photograph to Balcom. 45 Balcom advised Wol-bach that “that this was the guy [Balcom] was looking for, Robert Quincy Rodriguez.” 46

On December 10, 2001, Rodriguez pled guilty to disorderly conduct and was sentenced to time served. 47 Before his release, however, the United States Marshals Service filed a detainer on Rodriguez and the authorities continued to hold him at Rikers Island. 48

Three days later, on December 13, 2001, Wolbach received a digital photograph of Rodriguez from the staff at Rikers Island and emailed the photograph to Balcom. 49 Balcom showed the picture to one of the cooperating witnesses, who identified Rodriguez as the individual described in the arrest warrant. 50 Balcom advised Special Agent Wolbach of the identification, and Wolbach took custody of Rodriguez on December 14, 2001. 51 He fingerprinted Rodriguez and sent these fingerprints to the Federal Bureau of Investigation (“FBI”). 52 The FBI confirmed that Rodriguez’s fingerprints were identical to those of an individual named in an outstanding warrant. 53

On December 19, 2001, at an identity hearing held in the Southern District of New York, Magistrate Judge Debra Freeman found that there was probable cause to believe that Rodriguez was the individu al named in the warrant. 54 A Grand Jury in the United States District Court for the Southern District of West Virginia indicted Rodriguez for drug trafficking violations on December 19, 2001. 55 Federal authorities held Rodriguez in custody in correctional facilities in Oklahoma and then in West Virginia. 56

D. The Release

On January 11, 2002, approximately five weeks after the New York police took Rodriguez into custody, a Police Sergeant in Walterboro, South Carolina stopped a car for a traffic violation. 57 The driver first identified himself as Robert Quincy Rodriguez, but he also possessed identification in a different name. 58 After the police arrested the driver for possession of marijuana, the driver informed the Sergeant that he knew the real Robert Quincy Rodriguez. 59 A fingerprint check revealed that the driver’s real name was Mervin Meniar. 60 On January 15, 2002, Balcom obtained an arrest warrant for Meniar based on the facts detailed in the affidavit attached to the 1999 warrant. 61

Rodriguez was released from federal prison in West Virginia on January 15, 2002. 62 The United States dropped the charges against him that same day. 63 The United States also admitted, in its motion to dismiss the 1999 arrest warrant, that “Robert Quincy Rodriguez is not the true individual referenced in the warrant and related complaint and indictment.” 64 Rodriguez seeks ten million dollars in damages for the approximately five weeks during which he was wrongfully incarcerated. 65

III. LEGAL STANDARD

A. Motion to Dismiss

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific facts are not necessary ....” 66 When a complaint is attacked by a Rule 12(b)(6) motion to dismiss, the plaintiff need not provide “detailed factual allegations.” 67 To survive a motion to dismiss, it is enough that the complaint “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” 68

The task of the court is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” 69 When deciding a defendant’s mo tion to dismiss under Rule 12(b)(6), a judge must “accept as true all of the factual allegations contained in the complaint” 70 and “draw all reasonable inferences in plaintiffs favor.” 71

While there are legitimate reasons to dismiss a case under Rule 12(b)(6), “[t]he case cannot, however, be dismissed on the ground that petitioner’s allegations of harm were too conclusory to put these matters in issue.” 72 Thus, although the court must take the plaintiffs allegations as true, “the claim may still fail as a matter of law if it appears ... that the plaintiff can prove no set of facts in support of its claim which would entitle [him] to relief, or if the claim is not legally feasible.” 73

B. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” 74 An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 75 A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’ ” 76 “It is the movant’s burden to show that no genuine factual dispute exists.” 77

To defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. 78 To do so, it must do more than show that there is “ ‘some metaphysical doubt as to the material facts,’ ” 79 and it “ ‘may not rely on conclusory allegations or unsubstantiated speculation.’ ” 80 However, “ ‘all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’ ” 81

In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party’s fa vor. 82 However, “[i]t is a settled rule that ‘[credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’ ” 83 Summary judgment is therefore inappropriate “if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.” 84

IV. APPLICABLE LAW

A. Bivens Claims

To maintain a Bivens action, a plaintiff must establish that a federal actor violated his rights under the Constitution or laws of the United States. 85 To prevail, a plaintiff must show that his arrest violated his Fourth Amendment rights. 86

B. Qualified Immunity

The doctrine of qualified immunity shields government officials from civil liability as long as ‘“their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” 87 Qualified immunity balances “the need ... to hold responsible public officials exercising then-power in a wholly unjustified manner and ... [the need] to shield officials responsibly attempting to perform their public duties in good faith from having to explain their actions to the satisfaction of a jury.” 88 Because qualified immunity “is ‘an immunity from suit rather than a mere defense from liability ... it is effectively lost if a case is erroneously permitted to go to trial.’” 89 Accordingly, the Supreme Court has repeatedly “ ‘stressed the importance of resolving the question of qualified immunity at the earliest possible stage in litigation.’ ” 90

When assessing a claim of qualified immunity, a court must first determine whether, “taken in the light most favorable to the party asserting injury ... the officer’s conduct violated a constitutional right.” 91 If no constitutional right is violated, no further inquiry is necessary. However, if a constitutional violation is proven, “the next ... step is to ask whether the right was clearly established.” 92 Qualified immunity applies unless the official’s conduct violated a clearly established constitutional right.

1. False Arrest and Probable Cause

The false arrest and false imprisonment of an individual are unconstitutional under the Fourth Amendment. 93 However, the existence of probable cause to arrest an individual is an absolute defense to these claims. 94

Probable cause exists when government officials have “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” 95 This knowledge must only provide “sufficient probability, not certainty.” 96 The existence of probable cause is determined by the totality of the circumstances. 97

Even if probable cause does not exist in a given case, a law enforcement officer is entitled to qualified immunity where an officer has “ ‘reasonable, if mistaken beliefs as to the facts establishing the existence of probable cause.’ ” 98 In addition, if officers of reasonable compe-fence could disagree on whether the probable cause test was met, then the officer is entitled to qualified immunity. 99

Moreover, even if the officer who actually arrests a suspect lacks information to form the specific basis for probable cause, the arrest is lawful if other law enforcement officers involved in the investigation have sufficient information to justify the arrest. 100 “The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates.” 101 “Absent any evidence tending to show that it was objectively unreasonable for [the arresting officer] to disbelieve his [fellow] officer or question his good faith, [the arresting officer] [is] entitled to rely upon [his fellow officer] in deciding whether there was probable cause to [make the] arrest.” 102

2. The Particularity Requirement of the Fourth Amendment

For an arrest pursuant to a warrant to be lawful under the Fourth Amendment, the arrest warrant must “particularly” describe “the person to be seized.” 103 To satisfy this requirement, an arrest warrant must “contain the [intended arres-tee]’s name or, if it is unknown, contain a name or description by which the [intended arrestee] can be identified with reasonable certainty.” 104 This description should be on the face of the warrant. 105

“Where the authorities do not know, or are uncertain of the intended arrestee’s name, then the name[s] placed on the warrant ... [are] ... arbitrary” 106 and a valid arrest warrant must give some other description sufficient to identify the intended arrestee. 107 Although an arrest warrant is “[not] necessarily invalid whenever it incorrectly names the intended ar-restee and contains no other description of him,” additional description is needed where “the authorities had reason to suspect that the name placed on the warrant was not the real name of the intended arrestee.” 108 This requirement does not apply to a case in which “the authorities responsible for preparing the warrant have good reason to believe that the name on the warrant is the real name of the intended arrestee, and have no reason to suspect otherwise.” 109

The warrant does not have to describe the intended arrestee’s physical appearance or address. 110 Rather, to avoid a “substantial risk ... that a person to whom not the least suspicion has attached will be arrested,” 111 the description must be “accurate” 112 and eliminate most people as potential subjects of the warrant. 113 If the authorities have reason to suspect that the name on the warrant was not the real name of the intended arrestee, an alias used by the intended arrestee will not be a sufficient description. 114

3. Clearly Established Law Standard

Once a plaintiff establishes that a defendant’s conduct infringed a constitutional right, he must then prove that at the time the infringement took place, the law prohibiting defendant’s conduct was clearly established. Clearly established means: “ ‘(1) the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful.’ ” 115 If an official’s conduct did not violate clearly established law, that official is entitled to qualified immunity.

“Even where the plaintiffs federal rights and the scope of the official’s permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.” 116 “A[n] [official]’s actions are objectively unreasonable, and therefore are not entitled to immunity, when no officer of reasonable competence could have made the same choice in similar circumstances.” 117

V. DISCUSSION

A. False Arrest and Probable Cause

Rodriguez initially alleged that he was falsely arrested and imprisoned for drug trafficking offenses that he did not commit. 118 The evidence shows that Bal-com knew of “reasonably trustworthy information of facts and circumstances that [were] sufficient to warrant a person of reasonable caution in the belief’ 119 that Rodriguez had possessed six hundred pounds of marijuana with the intent to distribute. Accordingly, because Balcom had probable cause to arrest Rodriguez, Wolbach cannot be held liable for false arrest or imprisonment.

Balcom based his determination that there was probable cause to arrest Rodriguez on a variety of sources. First, a confidential informant gave West Virginia police information about a drug dealer named “Merve Minoya” who brought cocaine from New York to West Virginia for distribution and who used the name “Damon Anthony Stone.” Other evidence corroborated this information — an automobile and currency that West Virginia police seized at a traffic stop; the lease for one residence and a utility subscription for the other residence; and drugs (including the six hundred pounds of marijuana identified on the face of the warrant), guns, currency, receipts and a car that Balcom and other DEA agents seized during searches of these two residences.

In the next step of his investigation, Balcom linked the name Damon Anthony Stone to Rodriguez. He did this based on two 1993 Bluefield, West Virginia arrest reports for “Damon Anthony Stone.” In one of the reports, Rodriguez’s girlfriend told Bluefield police that Rodriguez was using the name Damon Anthony Stone as an alias. Based on a photograph of Rodriguez in the second Bluefield arrest report and another photograph of Rodriguez from a 1995 New York arrest report, two witnesses then identified Rodriguez as the “Mark” or “Merv” who had sold cocaine that had been brought from New York to West Virginia. Before Wolbach took cus tody of Rodriguez, one of these witnesses once again identified Rodriguez as the drug dealer based on a photograph that Rikers Island staff took after Rodriguez’s 2001 arrest in New York. Although Balcom was mistaken in concluding that Rodriguez was the “Damon Anthony Stone” who committed the drug trafficking offense described in the warrant, his conclusion was reasonable in light of the identifications made by the two witnesses. 120

Consequently, Balcom is not liable to Rodriguez for false arrest or imprisonment. Moreover, since Wolbaeh took Rodriguez into custody based on Balcom’s instructions and the information that Balcom had gathered in his investigation, Wolbaeh is not liable for false arrest or imprisonment.

B. Validity of the Warrant

Rodriguez argues that Wolbaeh took him into custody pursuant to a facially invalid warrant because the authorities were uncertain of the name of the intended arrestee and the warrant lacked a description of that person. 121 Rodriguez further asserts that Wolbaeh violated his Fourth Amendment right not to be arrested except pursuant to a valid warrant or upon a finding of probable cause. 122 Wolbaeh, in turn, argues that Robert Quincy Rodriguez was the name of the intended arrestee and that although Rodriguez was not the individual who committed the crime alleged in the warrant, the warrant was facially valid because it named its intended arrestee. 123 While the warrant may have been facially invalid, I need not decide the issue because Wolbach’s belief that the warrant was facially valid was reasonable. Wolbaeh is accordingly entitled to qualified immunity and amendment of the Complaint would be futile. 124

1. Facial Validity of the Warrant

It is unclear whether the warrant is facially valid. Rodriguez relies on the Seventh Circuit decision in Powe v. City of Chicago in arguing that the warrant was facially invalid because it lacked additional descriptive information about the intended arrestee. 125 But the Powe case is both non-binding and distinguishable. In Powe, the intended arrestee stole the plaintiffs driver’s license and used it as identification when he was arrested. 126 After the intended arrestee violated probation, an arrest warrant was issued in the name of the plaintiff that listed another alias that the intended arrestee used but contained no other descriptive information. 127 Chicago police then repeatedly arrested the plaintiff pursuant to this warrant. 128 There, police had good reason to believe that the name on the face of the warrant was not the intended arrestee’s true name because they arrested the plaintiff and verified that the intended arrestee had stolen his driver’s license and used it as identification before arresting the plaintiff again pursuant to the same warrant. In the instant case, by contrast, Balcom had no reason to believe that Robert Quincy Rodriguez was not the defendant’s true name. Indeed, much of the evidence that Balcom collected pointed to the conclusion that Robert Quincy Rodriguez committed the crimes charged in the warrant.

In addition, the affidavit attached to the warrant contained additional descriptive information that could be used to identify Rodriguez with reasonable certainty. In particular, it noted Rodriguez’s true date of birth and Rodriguez’s West Virginia and New York arrests. 129 This information would ordinarily be sufficient to satisfy the Fourth Amendment’s particularity requirement. 130 In United States v. George, however, the Second Circuit held that a court can only cure a defective search warrant with information in an affidavit if the affidavit is attached to the warrant and incorporated into the warrant by reference. 131 In this case the affidavit was not incorporated into the warrant by reference. It is unclear, however, whether George applies to arrest warrants as well as search warrants.

2. Qualified Immunity

Nevertheless, the court need not decide whether the warrant is facially valid because Wolbach is clearly entitled to qualified immunity. It was objectively reasonable for him to believe that the warrant was facially valid. As an initial matter, there is no Supreme Court or Second Circuit case that requires an arrest warrant to list additional descriptive information about the intended arrestee if the authorities are uncertain of the intended arrestee’s true name as long as the warrant truly named the intended arrestee or listed a name by which the intended arres-tee could reasonably be identified. 132 It was therefore objectively reasonable for Wolbach to conclude that the warrant was facially valid because it accurately named the person that Balcom told him was the intended arrestee. 133

Moreover, it was objectively reasonable for Wolbach to believe that Balcom was certain that the intended arrestee’s name was Robert Quincy Rodriguez. All of Bal-com’s communications with Wolbach sug gested that Balcom believed Rodriguez was the intended arrestee’s true name. Balcom gave Wolbach reason to believe this when he first contacted Wolbach and told Wolbach that “someone [Balcom] had an arrest warrant for, Robert Quincy Rodriguez, had been locked up by the New York Police Department.” 134 After this initial call, Wolbach sent Balcom pictures of Rodriguez and Balcom told him “that this was the guy he was looking for, Robert Quincy Rodriguez.” 135 Wolbach also read the affidavit attached to the warrant that noted both the witness’s identification of Rodriguez and Rodriguez’s true date of birth, and thus provided him with a strong basis to conclude independently that the intended arrestee’s true name was Robert Quincy Rodriguez. 136

VI. CONCLUSION

For the reasons set forth above, defendant’s motion for summary judgment based on qualified immunity is granted. 137 The Clerk of the Court is directed to close this motion [Docket No. 20] and this case.

SO ORDERED.

1 . See Complaint ¶ 1. The suit against Special Agent James L. Balcom was dismissed for failure to effectuate service pursuant to Federal Rule of Civil Procedure 4(m). The suit against Special Agent John Wolbach in his official capacity was dismissed pursuant to a Stipulation and Order. See 5/22/07 Joint Letter to the Court.

2 . See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Complaint ¶ 2.

3 . See 6/3/99 Warrant for Arrest, Criminal Complaint, and Affidavit of James L. Balcom ("Warrant”), Ex. B to 6/29/06 Declaration of Allison D. Penn, Defendant’s Counsel, ("Penn Decl.”).

4 . See Complaint ¶¶ 8-9.

5 . See id. ¶ 14.

6 . See id. ¶ 13.

7 . See Memorandum of Law in Support of the Motion by Defendant Special Agent Robert J. Wolbach to Dismiss or in the Alternative for Summary Judgment ("Def.Mem.”) at 1. I note that Wolbach never explains why he moved to dismiss for lack of subject matter jurisdiction.

8 . See Memorandum of Law in Opposition to Defendant’s Motion to Dismiss ("Pl.Mem.”) at 1.

9 . See id. at 11.

10 . The facts summarized in this section are undisputed unless otherwise noted. For convenience, this section will cite facts from the Defendant’s Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 (''Def.56.1”) whenever possible. Rodriguez “does not dispute the fact[s] raised in Defendant’s Statement of Material Fact.” Plaintiff's Statement of Material Facts in Issue Pursuant to Local Rule 56.1 (“Pl.56.1”) ¶ 1.

11 . See Warrant ¶¶ 1-2.

12 . See id. ¶¶ 2-8.

13 . West Virginia police spelled this name phonetically. See id. ¶ 9.

14 . See Dei 56.1 ¶ 2.

15 . See id.

16 . See id.; Warrant ¶¶ 10-11.

17 . SeeDef. 56.1 ¶ 2.

18 . See id. ¶ 2; Warrant ¶ 17.

19 . SeeDef. 56.1 ¶3.

20

21

22

23 . See Warrant ¶ 17.

24 . SeeDef. 56.1 113.

25 . See id. ¶ 4.

26

27

28

29

30 . See Warrant If 21.

31 . See 5/9/06 Deposition of Robert Rodriguez, ' Ex. F to Penn Deck, at 92-94.

32 . See Def. 56/1 ¶ 6

33

34 . See id. ¶ 7.

35 . See id.; 12/19/01 Transcript of Criminal Cause for Identity Hearing ("Identity Hearing Tr.”), Ex. G to Penn Deck, at 24.

36

37 . See Warrant ¶ 22.

38 . See id. at attached criminal complaint.

39 . See id. at front page of the 'warrant.

40 . Id. ¶ 23.

41 . See id. ¶¶ 10-11, 19-21.

42 . See Def. 56.1 ¶ 9; 12/14/01 Rule 40 Affidavit of Robert John Wolbach (“Wolbach Aff."), Ex. H to Penn Decl. ¶ 3.

43 . See Def. 56.1 ¶ 10.

44 . Identity Hearing Tr. at 40-41.

45

46 . See Identity Hearing Tr. at 41-42.

47 . See Wolbach Aff. ¶ 4.

48

49

50

51 . See id. ¶ 11.

52

53

54

55

56

57 . See id. ¶ 14; 1/15/02 Warrant for Arrest, Criminal Complaint and Affidavit of Special Agent James L. Balcom (“2002 Warrant”), Ex. K to Penn Decl. ¶ 23.

58 . See 2002 Warrant ¶ 23.

59 . See id.; Def. 56.1 ¶ 14.

60 . See Def. 56.1 ¶ 14.

61 . See 2002 Warrant.

62 .See Def. 56.1 ¶ 15.

63

64 . 1/15/02 Motion to Dismiss Arrest Warrant, Ex. L to Penn Decl., ¶ 2.

65 . See Complaint ¶¶ 14-18.

66 . Erickson v. Pardus, 551 U.S. -, 127 S.Ct. 2197, 2220, 167 L.Ed.2d 1081 (2007).

67 . Bell Atlantic Corp. v. Twombly, 550 U.S. -, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).

68 . Id.

69 . Eternity Global Master Fund Ltd. v, Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir.2004) (quotation marks and citation omitted).

70 . Bell Atlantic, 550 U.S. -, 127 S.Ct. at 1975 (citation omitted).

71 . Ofori-Tenkorang v. American Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir.2006).

72 . Erickson, 127 S.Ct. at 2200 (2007).

73 . In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 457 F.Supp.2d 455, 459 (S.D.N.Y.2006) (citing Allaire Corp. v. Okumus, 433 F.3d 248, 250 (2d Cir.2006)).

74 . Fed.R.Civ.P. 56(c).

75 . Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (quoting Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998)).

76 . Bouboulis v. Transport Workers Union of Am., 442 F.3d 55, 59 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

77 . Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

78 . See Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir.2005).

79 . McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

80 . Jeffreys, 426 F.3d at 554 (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir.2001)).

81 . McClellan, 439 F.3d at 144 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

82 . See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir.2007) (citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997)).

83 . McClellan, 439 F.3d at 144 (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997)). Accord Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

84 . Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.2002) (citing Pinto v. Allstate Inc. Co., 221 F.3d 394, 398 (2d Cir.2000)).

85 . See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Bivens, 403 U.S. at 389-90, 91 S.Ct. 1999.

86 . See Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (holding that plaintiff can sue federal agents who violated Fourth Amendment rights by searching plaintiff's property pursuant to facially invalid search warrant); Wong Sun v. United States, 371 U.S. 471, 481, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that Fourth Amendment particularity requirement applies to both arrest and search warrants).

87 . Velez v. Levy, 401 F.3d 75, 100 (2d Cir.2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

88 . Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir.2001).

89 . Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

90 . Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

91

92

93 . See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995).

94 . See Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir.2002) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)).

95 . Caldarola, 298 F.3d at 162.

96 . Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).

97 . See Caldarola, 298 F.3d at 162.

98 . Id. (quoting Saucier, 533 U.S. at 205, 121 S.Ct. 2151).

99 . See Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004).

100 . See United States v. Colon, 250 F.3d 130, 135 (2d Cir.2001) (citing United States v. Hensley, 469 U.S. 221, 230-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)).

101 . Id. (quoting United States v. Valez, 796 F.2d 24, 28 (2d Cir.1986)).

102 . Beal v. City of N.Y., No. 92 Civ. 718, 1994 WL 163954, at *4 (S.D.N.Y. Apr.22, 1994).

103 . U.S. Const. Amend. IV.

104 . See Fed.R.Crim.P. 4(b)(1)(A); West v. Cabell, 153 U.S. 78, 85, 14 S.Ct. 752, 38 L.Ed. 643 (1894); United States v. Jarvis, 560 F.2d 494, 497 (2d. Cir.1977) (holding that "John Doe" warrant that did not contain name or description was invalid).

105 . See United States v. George, 975 F.2d 72, 76 (2d Cir.1992).

106 . Powe v. City of Chicago, 664 F.2d 639, 647 (7th Cir.1981) (holding that an arrest warrant was invalid where intended arrestee had stolen plaintiff's wallet and used plaintiff's driver’s license as identification when intended arrestee was convicted of a crime, where police issued warrant naming plaintiff after intended arrestee violated probation, and where police repeatedly arrested plaintiff pursuant to this warrant despite learning that the name on the warrant was not the intended arrestee’s name).

107

108

109

110

111 . Id. at 648.

112 . Id. at 647.

113 . See Brown v. Patterson, 823 F.2d 167, 168 (7th Cir.1987) (warrant that listed the name, address, birth date, gender and ethnicity of an intended arrestee was facially valid); United States v. Doe, 703 F.2d 745, 748 (3d Cir.1983) (holding warrant that named the intended arrestee as "John Doe a/k/a Ed” but included no other description did not reduce the number of potential subjects to a tolerable level because of the high number of people named "Ed” in the Pittsburgh area and was therefore invalid).

114 . See Powe, 664 F.2d at 647 (holding that the warrant was facially invalid even though warrant correctly listed a known alias the intended arrestee used and police arrested an individual whose name was listed on the warrant).

115 . Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.2003) (quoting Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir.1998)).

116 . Anthony v. City of N.Y., 339 F.3d 129, 137 (2d Cir.2003) (citing Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995)).

117 . Id. at 138.

118 . See Complaint V 16. Rodriguez seems to have abandoned this claim. Nevertheless, because his Complaint has not been amended, it is appropriate to briefly address this claim.

119

120 . The confusing nature of the facts in this case stems from Rodriguez and Meniar's use of the same names. Robert Quincy Rodriguez used the alias "Damon Anthony Stone." Mervin Meniar also used the alias "Damon Anthony Stone” and two derivatives of this alias — “Damon Stone” and "Anthony Stone.” Meniar also used the aliases "Mark,” "Merv” and "Robert Quincy Rodriguez.” One theory that may explain this fact is that Rodriguez and Meniar met at some point, as Meniar admitted to knowing the “real” Robert Quincy Rodriguez, and Meniar then used Rodriguez's name and alias to conceal his own activities. It is also likely that the witnesses were mistaken about their identification of Rodriguez as the individual they knew as "Mark” or "Merv.”

121 . See PL Mem. at 6.

122 . See id. at 3.

123 . See Reply Memorandum in Further Support of the Motion by Defendant Special Agent Robert J. Wolbaeh to Dismiss or in the Alternative for Summary Judgment at 4-5.

124 . It should be noted that it is procedurally improper for the defendant to raise this claim after the parties have completed discovery and without notice of motion. I will nonetheless address this new theory because it is efficient to do so while considering the other arguments raised herein.

125 . See Pl. Mem. at 6-7.

126 . See Powe, 664 F.2d at 642-43.

127

128

129 . See Warrant ¶¶ 21-22.

130 . See Brown, 823 F.2d at 167.

131 . See George, 975 F.2d at 76.

132 . But see Powe, 664 F.2d at 647 (holding that a description is required).

133 .No evidence has been proffered to show that it was objectively unreasonable for Wol-bach to rely on Balcom's statements or that Wolbach should have doubted Balcom’s good faith. Accordingly, it was reasonable for Wolbach to rely on Balcom’s statements. Cf. Beal, 1994 WL 163954, at *4 (holding that the officer who processed plaintiff's arrest was entitled to rely on superior officer’s determination that there was probable cause to arrest the plaintiff even though he did not see the plaintiff commit any crime).

134 . Identity Hearing Tr. at 41 -42.

135

136 . See Wolbach Aff.

137 .Because the action is dismissed based on qualified immunity, I need not address defendant's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6).