United States District Court, D. Connecticut
RULING ON AMENDED COMPLAINT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
February 25, 2019, Plaintiff Shawn Gonzalez, a convicted
prisoner currently incarcerated at the Cheshire Correctional
Center in Connecticut, filed a civil rights complaint pro
se pursuant to 42 U.S.C. § 1983 against four
Middletown police officials in their individual and official
capacities: Sergeant George Yepes, Detective Frederick Dirga,
Detective Justin Lathrop, and Detective Mark Lemieux. Doc. 1
("Compl.") at 2-3. Gonzalez alleges that the
Defendants violated his rights under the Fourth, Eighth, and
Fourteenth Amendments to the United States Constitution by
providing false statements in, and omitting material facts
from, their affidavits in support of the warrants for the
search of his wife's and girlfriend's residences and
the seizure of various items therein. Id. at 3. The
searches of the residences and the evidence uncovered led to
Gonzalez's state convictions for sale of narcotics by a
non-drug dependent person,  criminal possession of a pistol
or revolver,  and risk of injury to a
child. Gonzalez has appealed his convictions in
state court, and the appeal remains pending.
25, 2019, this Court issued its Initial Review Order pursuant
to 28 U.S.C. § 1915A, dismissing Gonzalez's Eighth
Amendment claim with prejudice because (1) he was not a
prisoner at the time of the alleged deprivation, (2) the
allegations did not give rise to a plausible Eighth Amendment
claim, and (3) any further attempt to amend the claim would
be futile. Doc. 8 ("IRO") 15-16, 19. Although the
Court concluded that Gonzalez's Fourth and Fourteenth
Amendment claims were barred by Heck v. Humphrey,
512 U.S. 477 (1994), it gave him one opportunity to amend his
complaint if he can "plausibly allege that his
conviction has been overturned, expunged, or otherwise
invalidated, or that the evidence collected from the
challenged search was not necessary to his conviction."
See IRO at 20.
19, 2019, Gonzalez filed an Amended Complaint, abandoning his
Eighth Amendment claim but stating additional allegations and
arguments in support of his Fourth and Fourteenth Amendment
claims. Doc. 9 ("Am. Compl."). For the following
reasons, the Amended Complaint is dismissed with prejudice.
STANDARD OF REVIEW 
Court must dismiss a complaint "in which a prisoner
seeks redress from a governmental entity[, ] or officer or
employee of a governmental entity," that "is
frivolous, malicious, or fails to state a claim upon which
relief may be granted." See 28 U.S.C. §
1915A(a)-(b); Abbas v. Dixon, 480 F.3d 636, 639 (2d
Cir. 2007). Although detailed allegations are not required, a
complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic 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. This plausibility standard is not simply a
"probability requirement," but imposes a standard
higher than "a sheer possibility that a defendant has
acted unlawfully." Id.
undertaking this analysis, the Court must "draw all
reasonable inferences in [the plaintiff's] favor, assume
all well-pleaded factual allegations to be true, and
determine whether they plausibly give rise to an entitlement
to relief." Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). However, the Court is "not bound to accept
conclusory allegations or legal conclusions masquerading as
factual conclusions," id., and "a
formulaic recitation of the elements of a cause of action
will not do," Iqbal, 556 U.S. at 678.
Ultimately, "[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
se submissions "are reviewed with special
solicitude, and 'must be construed liberally and
interpreted to raise the strongest arguments that they
suggest.'" Matheson v. Deutsche Bank Nat'l
Tr. Co., 706 Fed.Appx. 24, 26 (2d Cir. 2017) (quoting
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (per curiam)). See also Erickson v.
Pardus, 551 U.S. 89, 94 (2007) ("A document filed
pro se is 'to be liberally construed,' and 'a pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.'" (internal citations omitted)). This
liberal approach, however, does not exempt pro se
litigants from the minimum pleading requirements described
above: A pro se plaintiff's complaint still must
"'state a claim to relief that is plausible on its
face.'" Mancuso v. Hynes, 379 Fed.Appx. 60,
61 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
Therefore, even in a pro se case, "threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice," Chavis
v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal
quotation marks and citation omitted), and the Court may not
"invent factual allegations" that the plaintiff has
not pleaded, id.
factual allegations contained in the Amended Complaint are
recounted below, recited in the light most favorable to the
Sergeant George Yepes, Detective Frederick Dirga, Detective
Justin Lathrop, and Detective Mark Lemieux are all employees
of the Middletown Police Department in Middletown,
Connecticut. Am. Compl. at 12. Defendants Dirga and Lathrop
submitted two affidavits on April 27, 2017 and May 30, 2017 in
support of an application for a search and seizure warrant to
be executed at the Middletown apartment of Gonzalez's
wife, Courtney Gonzalez, and the Meriden apartment of his
ex-girlfriend, Baughnita Leary. Id. at 12, 35.
Defendants Dirga and Lathrop also applied for a warrant to
search a UHaul storage unit in Middletown and for a
tracking device to be placed on Courtney Gonzalez's car.
Id. at 12, 35, 37-38. In the affidavit, Dirga and
Lathrop claimed that Gonzalez had been the subject of a
narcotics investigation over the course of several months and
that they had arranged for two confidential informants
("CIs") to purchase cocaine from Gonzalez at both
locations. Id. at 12-13, 35-38. The affidavit also
stated that the CIs had communicated with Gonzalez via a
cellular phone that Gonzalez had provided them. Id.
at 12-13, 36. The Defendants never field tested the
substances purchased by the CIs to determine whether it was,
in fact, cocaine. Id. at 13-14.
Dirga and Lathrop omitted several facts from their
affidavits. They failed to mention how much money they had
given to the CIs, how much cocaine was purchased, or whether
they had recorded any phone conversations between the CIs and
Gonzalez. Am. Compl. at 13. Gonzalez also contends that the
controlled purchases never occurred, and the CIs do not
exist. Id. The Defendants' affirmations that
they used CIs to make controlled purchases of cocaine from
Gonzalez were false, and such "false statements were
necessary for a finding of probable cause to the issuing
judge, in order to obtain the search and seizure warrants
for" the Middletown and Meriden apartments. Id.
at 12-13. They also falsely stated that Gonzalez was the
president of a local outlaw motorcycle club known as the
"Dog Pound Rydaz," which was affiliated with the
"Hells Angels," "Ruthless for Life," and
other outlaw gangs in the area. Id. at 17, 35.
Gonzalez's pre-sentence investigation report later stated
that this claim was untrue. Id. at 17. Finally, the
Defendants falsely stated that a canine had "made a
hit" for the presence of narcotics at a UHaul storage
facility in Middletown,  which Gonzalez believes was a ruse to
seize his motorcycle. Id. at 15.
31, 2017, the Defendants executed a search and seizure
warrant at the two locations. Am. Compl. at 14. No narcotics
were found at the Leary residence in Meriden. Id.
When the Defendants arrived at Courtney Gonzalez's
apartment in Middletown, they searched for more than one hour
without finding any narcotic substances until they decided to
bring in a canine unit. Id. One officer said to the
canine, "If you don't find nothing, you ain't
getting no treat." Id. The canine handler then
entered Courtney Gonzalez's bedroom, which had already
been searched and, within mere seconds, found 3.6 grams of
cocaine in a dresser. Id. Gonzalez contends that the
Defendants had planted the cocaine for the canine to find.
Id. at 14-15. The Defendants also found a digital
scale in the communal basement of the apartment building,
which did not belong to the Gonzalez family. Id.
Gonzalez's criminal trial, the state never presented
testimony from the CIs or any evidence to prove they existed.
Am. Compl. at 13. The trial court denied (1) Gonzalez's
motion for the state to produce a toxicologist report on the
substances allegedly purchased by the CIs, (2) a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978),
to challenge the Defendants' statements in the warrant
application, (3) Gonzalez's motion for a bill of
particulars "to inform [him] on specific occurrences
intended to be investigated [at] the trial and to limit the
course of the evidence to the particular scope of the
inquiry," (4) Gonzalez's motion to compel production
of the police reports and other investigatory materials, (5)