Wilson v. ADA Kelly Sessoms-Newton et al
ORDER granting 151 Motion for Summary Judgment: For the reasons set forth in the attached Memorandum and Order, the Court grants summary judgment to Defendants on Plaintiff's unlawful entry claim and deprivation of property claim. The Clerk of Court is respectfully directed to enter judgment in Defendants' favor and terminate this action.The Court certifies that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 8/17/2017. (Lee, Helen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
THEODORE O. WILSON, III,
MEMORANDUM & ORDER
- against ADA KELLY SESSOMS-NEWTON, D.I.
PAMELA K. CHEN, United States District Judge:
Plaintiff Theodore Wilson (“Plaintiff” or “Wilson”), proceeding pro se, brought this action
pursuant to 42 U.S.C. § 1983, alleging that Defendants Assistant District Attorney Kelly SessomsNewton (“Sessoms-Newton”) and Detective Investigator Janet Helgeson (“Helgeson”) unlawfully
entered the property in which Plaintiff lived and that Defendants stole Plaintiff’s belongings, in
violation of his Fourth Amendment rights against unreasonable searches and seizures. Before the
Court is Defendants’ motion for summary judgment. For the reasons stated below, the Court grants
Defendants’ motion and dismisses this action in its entirety.
Relevant Facts 1
Plaintiff’s Place of Residence
From February 2010 to October 1, 2011, Plaintiff and his then girlfriend, Mildred Shinsel
(“Shinsel”), lived in the first floor apartment of a two-family residential building located at 146-
The facts discussed below are taken largely from the Defendants’ exhibits because
Plaintiff’s Rule 56.1 Counter-Statement is not compliant with local rules. Specifically, Plaintiff’s
56.1 Counter-Statement includes numbering that does not correspond with any paragraphs in
Defendants’ 56.1 Statement, and rather than admitting or denying Defendants’ statements, Plaintiff
simply lists what appear to be page numbers to exhibits he has not submitted. See November 22,
18 130th Avenue in Jamaica, New York (“130th Avenue building”). (Def. 56.1 ¶¶ 6–7, 17; Aff.
of Mildred Shinsel (“Shinsel Aff.”), Ex. F, ¶ 1–2; Plaintiff’s Dep., Ex. E at 17:14–23.) There
was one other apartment in the building on the second floor. (Def. 56.1 ¶ 8; Aff. of Lisa Thomas
(“Thomas Aff.”), Ex. G, ¶ 2.) There was a common staircase in the building that was not part of
either apartment. (Def. 56.1 ¶ 9; Thomas Aff., Ex. G, ¶¶ 3–4.) At all relevant times, Lisa
Thomas was the legal owner of the property. (Def. 56.1 ¶ 10; Thomas Aff., Ex. G, ¶ 1; see also
Thomas’s Deed for 146-18 130th Ave., Jamaica, New York, 11436 (“Thomas Deed”), Ex. H.)
As of 2009, the property was in foreclosure, and the last legal tenant of the first floor apartment
was Karina Jones (“Jones”), who was Shinsel’s friend and had vacated the unit in 2009. (Def.
56.1 ¶¶ 11–13; Thomas Aff., Ex. G, ¶¶ 6–9.)
The parties dispute whether Plaintiff had permission to live in the first floor apartment
and whether any rent was paid for Plaintiff and Shinsel’s occupancy of the apartment. The
property owner, Thomas, states that neither Plaintiff nor Shinsel ever obtained permission to
enter the premises. (Def. 56.1 ¶ 20; Thomas Aff., Ex. G, ¶ 11.) Thomas, in fact, states that she
does not know Plaintiff or Shinsel, that no rental agreement was entered into with either of them,
and that she never received any payment from them for the use of the first floor apartment. (Def.
56.1 ¶¶ 19–21; Thomas Aff., Ex. G, ¶ 10–12). In her affidavit, Thomas states that she has not
received rent payments from anyone at the property since 2009. (Def. 56.1 ¶ 16; Thomas Aff.,
2016 Minute Entry (noting that the last two pages of Dkt. 142-13 are Plaintiff’s 56.1 CounterStatement). Nonetheless, in light of Plaintiff’s pro se status, the Court considers “Plaintiff’s
Declaration in Opposition to Defendants’ Summary Judgment Motion” (Dkt. 143-13 at ECF 5–8)
and “Fourth Declaration of [Plaintiff] in Response to Defendants’ Summary Judgment Motion
(4/25/16) With Undisputed Facts” (Dkt. 143-11) to be part of Plaintiff’s 56.1 Counter-Statement.
See Onitiri v. Security, No. 12–cv–5425, 2015 WL 13019584, at *1 (E.D.N.Y. Feb. 5, 2015) (citing
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)) (noting that courts have discretion to
overlook a party’s failure to comply with local rules).
Ex. G, ¶ 8.) Shinsel similarly admits that she and Plaintiff were squatters in the 130th Avenue
building and that they never paid rent or obtained permission from anyone to reside there. (Def.
56.1 ¶ 17; Shinsel Aff., Ex. F, ¶ 3.) Rather, Shinsel initially stayed at the first floor apartment for
one to two weeks in late 2009 with her friend Jones. (Def. 56.1 ¶ 12–14; Mapp Hr’g Tr. (“Mapp
Hr’g”), Ex. J at 9:13–10:3.) Toward the end of Shinsel’s visit, the apartment was rendered
uninhabitable by water damage, and Jones moved out, leaving the apartment vacant. (Def. 56.1 ¶
47; Mapp Hr’g, Ex. J at 9:24-10:10.) Shinsel and Plaintiff moved in shortly thereafter. (Def.
56.1 ¶ 17; Shinsel Aff., Ex. F, ¶¶ 2–3.) According to Shinsel, she and Plaintiff obtained a blank
lease template to create a fake lease for the first floor apartment. (Det. 56.1 ¶¶ 23–25; Shinsel
Aff., Ex. F, ¶¶ 4–5.)
In contrast to Shinsel’s and Thomas’ assertions, Plaintiff claims that “an associate of Ms.
Thomas” gave him keys to the property, that a lease was signed, and that he and the associate
agreed upon a monthly rent of $600. (March 4, 2013 Hr’g Tr. (“Suppression Hr’g.”), Ex. L at
49:18–50:1.) Plaintiff alleges that he paid rent for eighteen of the twenty months he lived in the
apartment. (Id. at 50:15–17.) 2 Plaintiff and Shinsel’s occupancy of the first floor apartment
ended on October 1, 2011, when Plaintiff was arrested on suspicion of assaulting Shinsel. (Def.
56.1 ¶ 27; Arrest Report, Ex. M.)
Plaintiff testified at his criminal proceeding that he signed a lease with “an associate of
Ms. Thomas, named Michael Thomas,” and that he had paid rent. (Suppression Hr.’g, Ex. L at
49:18–50:1.) Despite testifying that he had paid rent for eighteen of the twenty months he lived
in the apartment, and that he had receipts for his rent payments, Plaintiff never produced any
documents supporting these statements. (Id. at 50:15–19.)
Prosecution of Plaintiff
It is undisputed that during the course of Plaintiff’s criminal prosecution, Defendants
entered the 130th Avenue building without a warrant on two separate occasions, and that on one of
these occasions, they entered the first floor apartment.
October 2001 Search
On October 21, 2011, Sessoms-Newton, who was assigned to prosecute the case against
Plaintiff, and Helgeson visited the 130th Avenue building to canvas the area and search for a
possible witness who might have information about Shinsel’s injuries. (Def. 56.1 ¶ 48; Decl. of
Sessoms-Newton (“Sessoms-Newton Decl.”), Ex. I, ¶ 13.) Prior to visiting the building,
Sessoms-Newton visited the hospital, where Shinsel remained unresponsive, and learned that
Shinsel’s mother, Judith Workman (“Workman”), had the authority to make medical decisions
on Shinsel’s behalf. (Sessoms-Newton Decl., Ex. I, ¶¶ 2–3; Shinsel Aff., Ex. F, ¶¶ 6, 9; Aff. of
Judith Workman (“Workman Aff.”), Ex. O, ¶ 10.) After further communicating with hospital
staff, as well as with Workman, Sessoms-Newton concluded that Workman considered herself to
be responsible for all decisions made on behalf of Shinsel. (Def. 56.1 ¶ 42; Sessoms-Newton
Decl., Ex I, ¶ 7.) Over the phone, Workman asked Sessoms-Newton to retrieve some of
Shinsel’s personal belongings from the apartment. (Def. 56.1 ¶ 41; Workman Aff., Ex. O, ¶ 5.)
Before October 21, 2011, Sessoms-Newton also spoke to Jones, who informed Sessoms-Newton
that the first floor apartment at the 130th Avenue building had been rendered uninhabitable due to
water damage and that Plaintiff and Shinsel were not legal residents of the apartment. (Def. 56.1
¶ 46–47; Sessoms-Newton Decl, Ex. I, ¶¶ 10–11.)
When Defendants arrived at the 130th Avenue building, they noted the unkempt nature of
the curtilage and the mail slot bursting with unopened envelopes. (Def. 56.1 ¶ 50–51; SessomsNewton Decl., Ex. I, ¶¶ 15–16.) They also noticed the front door partially unhinged and unlocked.
(Def. 56.1 ¶ 54–55). When no one answered their knocks, Defendants entered the building. (Def.
56.1 ¶ 53, 55; Sessoms-Newton Decl., Ex. I, ¶17.) They made their way to the second floor to
look for a witness. (Def. 56.1 ¶ 56; Sessoms-Newton Decl., Ex. I, ¶ 17.) Following a brief survey
of the second floor apartment, which was empty but for a few items strewn across the floor, they
went downstairs to the first floor apartment. (Def. 56.1 ¶ 56–59; Sessoms-Newton Decl., Ex. I, ¶
18.) Upon finding the first floor apartment similarly unlocked, and after no one answered their
knocks, they entered the apartment. (Def. 56.1 ¶ 60–61; Mapp Hr’g, Ex. J at 14:22–15:3; SessomsNewton Decl., Ex. I, ¶ 21.) Defendants noticed furniture, grocery bags, and clothes in the
apartment. (Def. 56.1 ¶ 62; Mapp Hr’g, Ex. J at 15:4–9.) Because Sessoms-Newton had
previously been informed of Plaintiff’s allegation that Shinsel injured herself by banging her head
against the wall, Sessoms-Newton took three photographs of the apartment wall as evidence. (Def.
56.1 ¶ 65; Sessoms-Newton Decl., Ex. I, ¶ 22.)
November 2011 Search
Shortly after the October 2011 search, Plaintiff was indicted by a grand jury. (Grand Jury
Indictment, Ex. Q.) Plaintiff testified in the grand jury that Shinsel had fallen down the stairs in
the common stairwell of the building. (Trial Tr., People v. Theodore Wilson, Dec. 12, 2013, Ex.
P at 688:12–688:25.) On November 23, 2011, Sessoms-Newton, who heard the testimony, again
visited the 130th Avenue building with Helgeson to collect evidence and search for a potential
witness who may have known Shinsel. (Def. 56.1 ¶¶ 70–71; Sessoms-Newton Decl., Ex. I, ¶ 26.)
Once there, they again entered through the unlocked front door of the building and then took
several photographs of the stairwell. (Def. 56.1 ¶ 72–73; Sessoms-Newton Decl., Ex. I, ¶ 27.)
This time, they did not enter either of the apartments. (Sessoms-Newton Decl., Ex. I, ¶ 28.)
March 2013 Suppression Hearing
During the subsequent criminal proceedings, the Honorable Joseph Zayas of the New York
Supreme Court found that Plaintiff had an expectation of privacy in the first floor apartment
because Plaintiff “treated . . . the apartment as his own,” and there was no indication that Thomas
had any objection to Plaintiff’s use of the property; still, the court did not credit Plaintiff’s
testimony that a lease agreement had been entered into and that Plaintiff had paid rent.
(Suppression Hr.’g, Ex. L at 51:14–22, 52:18–19.) Accordingly, Judge Zayas granted Plaintiff’s
motion to suppress the photographs taken on October 21, 2011. (Def. 56.1 ¶ 76; Suppression
Hr.’g, Ex. L at 52:18–53:6.) However, the court denied the motion as to the photographs taken of
the common stairwell in November 2011. (Def. 56.1 ¶ 76; Suppression Hr.’g, Ex. L at 53:7–
53:19.) Even though the prosecution was not allowed to introduce into evidence photographs of
the first floor apartment wall, Plaintiff was ultimately convicted of assault in the first degree and
assault in the second degree. (Def. 56.1 ¶ 78; Certificate of Disposition, Ex. R.)
Plaintiff filed the Complaint in this action on January 2, 2014. (Dkt. 1.) On February 11,
2014, Plaintiff filed an amended complaint. (Dkt. 6.) On March 26, 2014, the Honorable John
Gleeson ordered that the Amended Complaint would proceed against Sessoms-Newton and
Helgeson solely as to two of Plaintiff’s claims: (1) unlawful entry, relating to Defendants’
warrantless entries into the 130th Avenue building in October and November 2011; and (2)
deprivation of personal property, relating to Plaintiff’s claim that Defendants took a camera and
two cell phones from the first floor apartment. (See Dkt. 9.) On April 25, 2016, Defendants served
Plaintiff with their motion for summary judgment. (Dkt. 118.) Because Plaintiff claimed that the
first copy of the motion was destroyed by prison officials, Defendants served a second copy of the
motion on May 9, 2016. (See May 6, 2016 order, Dkt. 120.) After granting several extension
requests from Plaintiff, the Court ordered Plaintiff to file his opposition papers by August 1, 2016;
Plaintiff did not comply with that order. (See June 8, 2016 order.) On August 25, 2016, the
briefing schedule was adjourned to ensure that Defendants received Plaintiff’s opposition papers.
(See August 25, 2016 order.) Around September 15, 2016, Defendants received approximately
thirteen separate packets of documents from Plaintiff. (See Dkt. 143.) On November 22, 2016, at
Defendants’ request, the Court conducted a status conference to clarify the scope of Plaintiff’s
opposition papers because Plaintiff had sent Defendants approximately 160 pages of single-spaced
documents. (Id.) At the conference, Plaintiff confirmed that his July 17 and 18, 2017 submissions
to the Court (Dkts. 127, 128) and all 160-pages of documents he had sent Defendants (Dkt. 143)
represented the entirety of his opposition. (See November 22, 2016 order). Defendants’ summary
judgment motion was fully briefed on January 30, 2017. 3 (Dkt. 151.)
Summary Judgment Standard
“Summary judgment is appropriate where there are no genuine disputes concerning any
material facts, and where the moving party is entitled to judgment as a matter of law.” Summa v.
Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013) (quoting Weinstein v. Albright, 261 F.3d 127, 132
(2d Cir. 2001)); see also Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “Material” facts are facts that “might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. A “genuine”
dispute exists “if the evidence is such that a reasonable jury could return a verdict for the
Plaintiff continued to submit exhibits and another document entitled memorandum in
opposition to Defendants’ summary judgment motion after January 30, 2017. (See Dkts. 158–
163.) The Court has not considered Plaintiff’s belated submissions, which are either irrelevant or
duplicative of his earlier submissions, in deciding Defendants’ motion.
nonmoving party.” Id. “The moving party bears the burden of establishing the absence of any
genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d
Cir. 2010) (citing Celotex Corp., 477 U.S. at 322). Once a defendant has met his initial burden,
the plaintiff must “designate specific facts showing that there is a genuine issue for trial.” Celotex
Corp., 477 U.S. at 323–24 (internal quotation marks omitted). In determining whether there are
genuine disputes of material fact, the court must “resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is sought.” Terry v.
Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (citation and internal quotation marks omitted).
The Court’s inquiry upon summary judgment is “determining whether there is the need for
a trial—whether, in other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250. “Summary judgment is appropriate only ‘[w]here the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party.’” Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (alterations in original)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“When a pro se litigant is involved, although the same standards for summary judgment
apply, the pro se litigant ‘should be given special latitude in responding to a summary judgment
motion.’” Laster v. Mancini, No. 07–cv–8268, 2013 WL 5405468, at *2 (S.D.N.Y. Sept. 25, 2013)
(quoting Gonzalez v. Long, 889 F. Supp. 639 (E.D.N.Y. 1995)). “Nevertheless, a pro se litigant
cannot rely solely upon the pleadings or conclusory allegations or unsubstantiated speculation to
defeat summary judgment.” Cole v. Rogers, No. 14–cv–3216, 2017 WL 1157182, at *6 (E.D.N.Y.
Mar. 6, 2017) (citation and internal quotation marks omitted), report and recommendation
adopted, 2017 WL 1155002 (E.D.N.Y. Mar. 27, 2017).
Plaintiff’s Unlawful Entry Claim
Plaintiff alleges that Defendants’ warrantless entries into the first floor apartment and the
common stairwell area of the 130th Avenue building, and the photographing of these premises,
violated his Fourth Amendment rights. Defendants respond that Plaintiff’s unlawful entry claim
fails as a matter of law because (1) Plaintiff, as a squatter, did not have a reasonable expectation
of privacy in the building; and (2) he did not have a reasonable expectation of privacy in the
common stairwell of the apartment building, which was a multi-family dwelling. 4
The Fourth Amendment to the United States Constitution guarantees:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
U.S. Const. amend. IV; see also Southerland v. City of N.Y., 680 F.3d 127, 132 n.1 (2d Cir. 2012)
(citing, inter alia, Mapp v. Ohio, 367 U.S. 643, 655 (1961)) (noting that the Fourth Amendment’s
search and seizure provisions are applicable to the States through the Fourteenth Amendment’s
Due Process Clause). “The Fourth Amendment’s warrant requirement protects one’s privacy
interest in home or property. Absent exigent circumstances or some other exception, [State actors]
must obtain a warrant before they enter the home to conduct a search or otherwise intrude on an
individual’s legitimate expectation of privacy. ” U.S. v. Gori, 230 F.3d 44, 50 (2d Cir. 2000). At
Because Plaintiff’s unlawful entry claim is dismissed based on the finding that Plaintiff,
as a squatter, did not have a reasonable expectation of privacy in any part of the building in which
he lived and that Defendants are entitled to qualified immunity, the Court does not address
Defendants’ third argument that their entries into the property were based on consent from
Shinsel’s mother, who allegedly had apparent authority to give consent.
the same time, the Supreme Court has “uniformly [ ] held that the application of the Fourth
Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a
‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.”
El-Nahal v. Yassky, 835 F.3d 248, 253 n.2 (2d Cir. 2016) (quoting Smith v. Maryland, 442 U.S.
735, 740 (1979)); see also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring)); United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) (noting that the “cornerstone
of the modern law of searches is the principle that, to mount a successful Fourth Amendment
challenge, ‘a defendant must demonstrate that he personally has an expectation of privacy in the
place searched’” (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998))). 5
“Thus, a Fourth Amendment search . . . does not occur unless the search invades an object
or area [in which] one has a subjective expectation of privacy that society is prepared to accept as
objectively reasonable.” United States v. Ulbricht, 858 F.3d 71, 96 (2d Cir. 2017) (quoting United
States v. Hayes, 551 F.3d 138, 143 (2d Cir. 2008) (internal quotation marks omitted)); see also
Kyllo v. United States, 533 U.S. 27, 33 (2011); Illinois v. Caballes, 543 U.S. 405, 408 (2005)
(“Official conduct that does not compromise any legitimate interest in privacy is not a search
subject to the Fourth Amendment.” (internal quotation marks omitted)). In other words, a plaintiff
challenging a search must demonstrate not only his subjective expectation of privacy in the place
searched, but also that his expectation was objectively reasonable. Ulbricht, 858 F.3d at 96.
See also Minnesota v. Carter, 525 U.S. at 88 (“[C]apacity to claim the protection of the
Fourth Amendment depends . . . upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place.” (quoting Rakas v.
Illinois, 439 U.S. 128, 143 (1978)); Illinois v. Andreas, 463 U.S. 765, 771 (1983) (“The Fourth
Amendment protects legitimate expectations of privacy rather than simply places. If the inspection
. . . does not intrude upon a legitimate expectation of privacy, there is no ‘search’ subject to the
Warrant Clause.”); United States v. Gray, 283 F. App’x 871, 872 (2d Cir. 2008) (summary order)
(citing Illinois v. Andreas).
Plaintiff as a Trespasser Did not Have an Objectively Reasonable
Expectation of Privacy in Any Part of the Areas Defendants Entered
By explicitly stating that “a mere trespasser has no Fourth Amendment protection in
premises he occupies wrongfully,” 6 United States v. Sanchez, 635 F.2d 47, 64 (2d Cir. 1980), the
Second Circuit indicated that an unlawful occupant’s subjective expectation of privacy is not one
that “society is prepared to accept as objectively reasonable,” see Ulbricht, 858 F.3d at 96 (quoting
United States v. Hayes, 551 F.3d at 143). 7 See, e.g., Sanchez, 635 F.2d at 64 (affirming district
Under New York law, “[a] person is guilty of trespass when he knowingly enters or
remains unlawfully in or upon premises.” Zaniewska v. City of N.Y., 569 F. App’x 39, 42 (2d Cir.
2014) (summary order) (quoting N.Y. Penal Law § 140.05).
In the absence of Supreme Court precedent regarding a trespasser’s Fourth Amendment
rights against unreasonable searches, courts have developed different theories of trespassers’
privacy expectations and Fourth Amendment rights. Some circuit courts have held that trespassers
and squatters cannot have a reasonable expectation of privacy in the property they wrongfully
occupy. See, e.g., Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975) (holding that
squatters on government property do not have a reasonable expectation of privacy on that property
because they can be immediately evicted); United States v. Ruckman, 806 F.2d 1471, 1471 (10th
Cir. 1986) (trespasser had no legitimate expectation of privacy in a cave in which he resided on
federal land); United States v. Whitehead, 415 F.3d 583, 587 (6th Cir. 2005) (collecting cases in
which courts have concluded that those “who inhabit a residence wrongfully may not claim a
legitimate expectation of privacy in the property”); United States v. Murray, No. 1:10-cr-00024,
2010 WL 3069485, at *6 (D.V.I. Aug. 2, 2010) (noting that “virtually every court . . . has found
that a squatter lacks standing to contest a search of the structure in which he or she is squatting”
(collecting cases)). The Ninth Circuit, in contrast, has recognized trespassers’ legitimate
expectation of privacy so long as the trespassers have not been warned of their unlawful tenancy.
See United States v. Sandoval, 200 F.3d 659, 660–61 (9th Cir. 2000) (holding that an unwarned
trespasser maintained a legitimate expectation of privacy in a tent-like structure on unmarked
federal government land); see also State v. Dias, 609 P.2d 637, 639–40 (Haw. 1980) (holding that
squatters on State government land had a legitimate expectation of privacy in structure built on the
land because the government “acquiesced” its right to eject the squatters and the squatters had used
the land by sufferance of the State for a “considerable period of time”).
In Sanchez, the Second Circuit joined the jurisdictions that employ the AmezquitaRuckman approach. 635 F.2d at 64 (“[A] mere trespasser has no Fourth Amendment protection in
premises he occupies wrongfully . . . .”). Consequently, courts in this jurisdiction do not recognize
a trespasser’s subjective expectation of privacy in a premises he or she unlawfully occupies to be
objectively reasonable. See, e.g., Gill, 2017 WL 1097080, at *6 (noting that “squatters’ claims
under Section 1983 are routinely rejected by courts in the Second circuit” (collecting cases)); Walls
v. Giuliani, 916 F. Supp. 214, 221 (E.D.N.Y. 1996) (“Under [Rakas v. Illinois], a trespasser
court’s denial of a criminal defendant’s motion to suppress evidence obtained from searching a car
where defendant demonstrated neither ownership of the car, nor license from the owner to possess
the car). “The [Supreme Court] in [Jones v. United States, 362 U.S. 257 (1960), overruled on
other grounds by United States v. Salvucci, 448 U.S. 83, 100 (1980),] was quite careful to note
that ‘wrongful’ presence at the scene of a search would not enable [an individual] to object to the
legality of the search.” Sanchez, 635 F.3d at 64 (quoting Rakas v. Illinois, 439 U.S. 128, 141 n.9
(1978)); see also, Gill v. City of N.Y., No. 15-CV-5513, 2017 WL 1097080, at *5–6 (E.D.N.Y.
Mar. 23, 2017) (finding that plaintiff lacked standing to object to police entry of the apartment
where plaintiff was an unlawful tenant and noting that “squatters’ claims under Section 1983 are
routinely rejected by courts in this circuit” (collecting cases)); United States v. Rounds, No. 10CR-239S, 2015 WL 5156872, at *5–6 (W.D.N.Y. Sept. 2, 2015) (“Unlawful occupation of
property runs contrary to societal standards of reasonableness.” (collecting cases)); United States
v. Shelton, No. 14-cr-6009, 2015 WL 500886, at *3 (W.D.N.Y. Feb. 5, 2015) (unwelcomed
boyfriend who broke into the home of the leaseholder had no reasonable expectation of privacy in
the residence); Lagasse v. City of Waterbury, No. 3:09-cv-391, 2011 WL 2709749, at *9–10 (D.
Conn. July 12, 2011) (dismissing plaintiff’s unlawful entry claim, because, as a trespasser, plaintiff
did not have a reasonable expectation of privacy (citing Sanchez)); United States v. Diaz, 675 F.
obviously cannot claim any reasonable expectation of privacy in premises he is unlawfully
occupying.”); De Villar v. City of N.Y., 628 F. Supp. 80, 83 (S.D.N.Y. 1986) (finding that plaintiffs,
for purposes of a Section 1983 action, “had no more of a property interest in those apartments than
in any other in the [c]ity they might have trespassed into and encamped within, that is, none at all,”
where plaintiffs entered the building illegally after it was placed in a consolidation program and
did not pay any rent to the city); accord United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987)
(“[W]hen a hotel guest’s rental period has expired or been lawfully terminated, the guest does not
have a legitimate expectation of privacy in the hotel room or in any articles therein of which the
hotel lawfully takes possession.” (collecting cases)). As these cases make clear, trespass for
purposes of Fourth Amendment analysis encompasses occupancy of a premises that might
otherwise qualify as “adverse possession” under State common law.
Supp. 1382, 1387 (E.D.N.Y. 1987) (denying a motion to suppress evidence seized from searching
a car where the car was registered to a third party and defendant did not show “a legitimate basis—
such as the owner’s permission—for being in it”).
The Second Circuit has explained that infringement of one’s legitimate expectation of
privacy can be demonstrated “by showing that he owns the premises or property subjected to
search, or by showing that he occupies and has dominion and control over the premises or property
by leave of the owner.” Sanchez, 635 F.2d at 63–64 (emphasis added) (citing Rakas, 439 U.S. at
143 n.12 and Jones, 362 U.S. at 267). Here, nothing in the summary judgment record indicates
that Plaintiff owned the first floor apartment or that he occupied the unit by leave of the owner,
Thomas. Uncontested evidence in the record demonstrates that Thomas was the legal owner of
the apartment building when Defendants lived in the first floor unit. (Def. 56.1 ¶ 10; Thomas Aff.,
Ex. G, ¶ 1; Thomas Deed, Ex. H.) Moreover, Thomas has stated that Plaintiff and Shinsel never
entered into a rental agreement with her. (Def. 56.1 ¶¶ 16–21; Thomas Aff., Ex. G, ¶11 (stating
that neither Plaintiff nor Shinsel ever entered into any rental agreement with Thomas).) Thomas
has also sworn that she has not received any rent payments from anyone at the 130th Avenue
building since 2009, when Jones vacated the building. (Thomas Aff., Ex. G, ¶¶ 8–9.) Notably,
Shinsel herself admits that she and Plaintiff lived in Thomas’ apartment building as squatters, that
she and Plaintiff never paid rent or obtained permission from anyone to reside there, and that they
used a “blank lease template to create a fake lease” listing themselves as tenants. (Def. 56.1 ¶¶ 6,
23–25; Shinsel Aff., Ex. F, ¶¶ 2–5.)
While Plaintiff insists that he was given permission to live in Thomas’ building, that he
signed a rental lease, and that he had paid rent, Plaintiff has not produced any evidence in support
of his claims. At his previous criminal proceedings, Plaintiff asserted—without any corroborating
evidence—that a signed lease existed and that he had receipts for eighteen months of rent payments
to Thomas. (See Suppression Hr.’g, Ex. L at 49:18–20, 50:15–17.) Four years later, Plaintiff still
has not produced any supporting evidence for such assertions. Plaintiff cannot create a dispute of
material fact by relying only on his allegations. Even a pro se litigant must provide more than
conclusory allegations to defeat summary judgment. See Cole, 2017 WL 1157182, at *6; see also
Matsushita Elec. Indus. Co., 475 U.S. at 586 (noting that a nonmoving party cannot defeat
summary judgment by “simply show[ing] that there is some metaphysical doubt as to the material
facts . . . .”). Based on the record evidence, no reasonable jury could find that Plaintiff was a legal
tenant with an objectively reasonable expectation of privacy. Here, the evidence presented is “so
one-sided” that Defendants must prevail as a matter of law. See Anderson, 477 U.S. at 251–52
(“In essence [ ], the inquiry [at the summary judgment stage is] whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.”); see also Sanchez, 635 F.2d at 64 (“[W]e have held that where a
defendant had the keys to a car and permission from the owner to use it[,] he had standing to
challenge the search of the car; but where the car driven by one defendant with the other defendant
as a passenger was registered in someone else’s name, and neither defendant showed any
legitimate basis for being in the car, neither had standing.” (citations omitted)). In sum, because
Plaintiff, as a trespasser, did not have an objectively reasonable expectation of privacy, the Court
dismisses his unlawful entry claim. 8
The Court need not delve into whether Plaintiff had a subjective expectation of privacy
in the property in which he lived—an issue that does not seem to be in dispute, in any case—given
that Plaintiff did not have an objectively reasonable expectation of privacy. See United States v.
Zodhiates, 166 F. Supp. 3d 328, 336 (W.D.N.Y. 2016) (“[N]o Fourth Amendment ‘search’
occurred, even if the defendant otherwise demonstrated his subjective expectation of privacy . . .
.”); United States v. Santopietro, 809 F. Supp. 1001, 1007 (D. Conn. 1992) (“Assuming, arguendo,
that the defendant [ ] exhibited a subjective expectation of privacy, the Court simply cannot
Plaintiff Did Not Have an Objectively Reasonable Expectation of Privacy in
the Common Stairwell
Moreover, Plaintiff’s contention that Defendants’ entries into the building and specifically
the common stairwell constituted “unreasonable searches” is meritless. The Second Circuit has
held that “a person does not have a reasonable expectation of privacy in the common areas of
multi-unit buildings.” United States v. Simmonds, 641 F. App’x 99, 104 (2d Cir. 2016) (summary
order); see also United States v. Gray, 283 F. App’x 871, 873 (2d Cir. 2008) (summary order)
(finding that defendant “did not have a privacy interest in the hallway because it was not subject
to his exclusive control. The record indicates that [plaintiff] and his neighbor shared the hallway
. . . .”); United States v. Holland, 755 F.2d 253, 255–56 (2d Cir. 1985) (finding arrest in common
hallway of two-story apartment building did not occur in defendant’s “zone of privacy”); Watkins
v. Ruscitto, No. 14–cv–7504, 2016 WL 3748498, at *9 (S.D.N.Y. July 11, 2016) (finding that
plaintiff did not have a legitimate expectation of privacy in a bathroom in a common hallway in a
Section 1983 suit). The building in which Plaintiff lived had two apartment units, and the staircase,
of which Defendants took photos, was a common staircase within the building. (Thomas Aff., Ex.
G, ¶¶ 2–4.) Therefore, Plaintiff’s unlawful entry claim based on Defendants’ entry into the
common stairwell is dismissed.
Defendants contend that Plaintiff cannot invoke offensive collateral estoppel based on the
State court decision to suppress the photographs taken of the first floor apartment, 9 because
conclude that his expectation is one that society is prepared to recognize as reasonable . . . .”
(citation and internal quotation marks omitted)).
Although Plaintiff did not raise the issue of offensive collateral estoppel in his opposition
to Defendants’ summary judgment motion, the Court considers this issue because it is plainly
implicated by the circumstances of this case.
Defendants did not have the requisite “full and fair opportunity to litigate” this issue. The Court
“Collateral estoppel, or issue preclusion, prevents parties or their privies from relitigating
in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior
proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002); see also Jenkins
v. City of N.Y., 478 F.3d 76, 85 (2d Cir. 2007) (citing Juan C. v. Cortines, 89 N.Y.2d 659, 667
(N.Y. 1997)). Under 28 U.S.C. § 1738, “issues actually litigated in a state-court proceeding are
entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts
of the State where the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 83 (1984) (discussing Allen v. McCurry, 449 U.S. 90 (1980)); Routier v. O’Hara, No. 08–
cv–2666, 2013 WL 3777100, at *7 (E.D.N.Y. July 17, 2013) (same).
“Under New York law, collateral estoppel will preclude a federal court from deciding an
issue if (1) the issue in question was actually and necessarily decided in a prior proceeding, and
(2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the
issue in the first proceeding.” Reddy v. Catone, 630 F. App’x. 120, 121 (2d Cir. 2015) (summary
order) (quoting McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007)); see also Curry v. City of
Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (“[C]ollateral estoppel prevents a party from
relitigating an issue decided against that party in a prior adjudication.” (citation and internal
quotation marks omitted)). “The party seeking the benefit of collateral estoppel has the burden of
demonstrating the identity of the issues[,] . . . whereas the party attempting to defeat its application
has the burden of establishing the absence of a full and fair opportunity to litigate the issues.”
Constantine v. Teachers College, 448 F. App’x. 92, 93 (2d Cir. 2011) (summary order) (quoting
Evans v. Ottimo, 469 F.3d 278, 281–82 (2d Cir. 2006)).
However, “collateral estoppel will not bar reconsideration of an issue if there is an inability
to obtain review or there has been no review, even though an appeal was taken.” Jenkins, 478 F.3d
at 91 (quoting Johnson v. Watkins, 101 F.3d 792, 795 (2d Cir. 1996)). In other words, “[i]f a party
has not had the opportunity to appeal an adverse finding, then it has not had a full and fair
opportunity to litigate that issue.” Id. (citation and quotation marks omitted); id. (“If review is
unavailable because the party who lost on the issue obtained a judgment in his favor, the general
rule of [collateral estoppel] is inapplicable by its own terms.” (quoting Restatement (Second) of
Judgments § 28(1) cmt. a (1982)); see also Johnson, 101 F.3d at 796 (finding application of the
doctrine of collateral estoppel in subsequent federal Section 1983 case was in error because
“[b]efore the jury’s verdict, any appeal of the State court’s ruling of probable cause would have
been premature[;] [a]fter final judgment [of acquittal] was entered[,] that issue was moot[;] [t]hus,
[the criminal defendant] had neither the opportunity nor the incentive to appeal the adverse finding
of probable cause to arrest him”); see also People v. Medina, 617 N.Y.S.2d 491, 493 (N.Y. App.
Div. 1994) (“The People did not have a full and fair opportunity to litigate the suppression order .
. . because they had no opportunity to appeal the erroneous decision”); Bland v. N.Y., 263 F. Supp.
2d 526, 552 (E.D.N.Y. 2003) (“A determination whether the first action or proceeding genuinely
provided a full and fair opportunity requires consideration of . . . , [inter alia,] the incentive and
initiative to litigate and the actual extent of litigation . . . .” (emphasis added)).
Here, Plaintiff was ultimately convicted in the criminal case—even though the prosecution
was prohibited from introducing the photographs taken of the first floor apartment—and thus
Defendants had neither the incentive nor the opportunity to appeal the State court’s finding that
Plaintiff had an expectation of privacy in the first floor apartment. See Jenkins, 478 F.3d at 92
(finding that “facts determined in a pretrial suppression hearing cannot be given preclusive effect
against a defendant subsequently acquitted of the charges,” because that defendant lacked the
opportunity and reason to seek appellate review of the determination); see also Medina, 617
N.Y.S.2d at 493. 10 “In New York, the danger inherent in the doctrine of collateral estoppel—that
an erroneous first decision on an issue will be perpetuated in subsequent litigation—is remedied
to an extent by the requirement that the doctrine not be applied when there is no opportunity for
appellate review.” Jenkins, 478 F.3d at 91; Johnson, 101 F.3d at 795 (“Under New York Law,
appellate review plays a critical role in safeguarding the correctness of judgments . . . .”).
In finding that Defendants did not have the opportunity to appeal the State court’s
suppression finding, the Court has taken into account the theoretical possibility that the prosecutors
in Plaintiff’s criminal case could have sought interlocutory appeal of the suppression order and
that “[w]here [appellate] review is available but is not sought, estoppel applies.” Pinkey v. Keane,
920 F.2d 1090, 1097 (2d Cir. 1990) (citing Restatement (Second) of Judgment § 28(1) cmt. a).
Indeed, in Pinkey, the Second Circuit explained that, “while lack of incentive to litigate vigorously
may render the collateral estoppel doctrine inoperative, lack of incentive to appeal does not have
the same effect. Rather, failure to appeal an adverse judgment negates the preclusive effect of that
judgment only when review was unobtainable ‘as a matter of law.’” Id. at 1097 (citations omitted).
Generally, it is more common for courts to find that a State court’s ruling against a
criminal defendant in a previous criminal proceeding does not subject that defendant to defensive
collateral estoppel when he is acquitted and then pursues a Section 1983 suit. See, e.g., Johnson,
101 F.3d at 795 (“[I]n the acquittal context, New York courts have held that facts determined in a
pretrial suppression hearing cannot be given preclusive effect against a defendant subsequently
acquitted of the charges.”). Here, the Court considers whether Plaintiff can assert “offensive
collateral estoppel” based on the favorable ruling he received as a defendant in his State court
criminal matter. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 n.4 (1979) (“[O]ffensive
use of collateral estoppel occurs when the plaintiff seeks to foreclose defendant from litigating an
issue defendant has previously litigated unsuccessfully in an action with another party.”).
Here, the prosecutors in Plaintiff’s criminal case did not have a real opportunity to appeal
the suppression order. Although New York Criminal Procedure Law (“CPL”) § 450.50 provides
that the prosecution may pursue an interlocutory appeal challenging an order granting a criminal
defendant’s suppression, that appeal right is limited. In order to seek such an appeal, the
prosecution must “file a statement asserting that they cannot prevail at trial without such evidence.”
Yarter v. Winn, 645 N.Y.S.2d 333, 334 (N.Y. App. Div. 1996) (citing N.Y. CPL §§ 450.20(8) and
450.50(1)); see, e.g., People v. Howington, 946 N.Y.S.2d 368 (N.Y. App. Div. 2012); see N.Y.
CPL § 450.50 (requiring prosecution to file “statement asserting that the deprivation of the use of
the evidence ordered suppressed has rendered the sum of the proof available to the people with
respect to a criminal charge which has been filed in the court either (a) insufficient as a matter of
law, or (b) so weak in its entirety that any reasonable possibility of prosecuting such charge to a
conviction has been effectively destroyed.”); People v. McIntosh, 600 N.E.2d 199, 200 (N.Y.
1992) (noting that the “purpose of [§ 450.50(1)] is to limit appeals by the People from suppression
orders to cases in which the order is so devastating to the People’s case that, as a practical matter,
it ends the prosecution”); see also N.Y. CPL § 450.20(8). Moreover, “[i]n the event that the appeal
is unsuccessful, the taking of the appeal bars further prosecution of the indictment (see, [N.Y.]
CPL 450.50(2)).” Yarter, 645 N.Y.S.2d at 334. In Plaintiff’s criminal case, seeking interlocutory
appeal of the State court’s suppression order was not a viable option because the suppressed
evidence, i.e., photographs of the walls of the first floor apartment, were not necessary to the
prosecution’s case, and thus the government could not have filed, in good faith, the statement
required by § 450.50(1). Furthermore, because Sessoms-Newton ultimately recused herself from
prosecuting the case after having to testify as a witness in Plaintiff’s criminal proceeding (Def.
56.1 ¶ 77), Sessoms-Newton herself was unable to appeal the decision suppressing the photographs
she took of the first floor apartment building. Similarly, Hegelson, an investigator, had no
authority or opportunity to appeal the suppression order. 11
For the foregoing reasons, the Court finds that Defendants are not collaterally estopped
from litigating whether Plaintiff had an objectively reasonable expectation of privacy in the first
floor apartment and the common areas of the 130th Avenue building.
Even if Defendants violated Plaintiff’s Fourth Amendment constitutional rights, they are
entitled to qualified immunity because the law is not clearly established as to a trespasser’s right
to be free from a search of the premises where they are residing unlawfully.
Qualified immunity protects government officials from civil damages “insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
On a related note, before Plaintiff could successfully assert offensive collateral estoppel
against Defendants, he must show that the People of the State of New York, as represented by the
New York District Attorney’s office, are in privity with both Defendants in the instant action. It
is unlikely that there is privity between Defendants and the People of the State of New York when
neither Sessoms-Newton nor Hegelson had the requisite control required over the criminal
proceedings or had control over the presentation of evidence. See Jenkins, 478 F.3d at 85 (finding
application of collateral estoppel doctrine inappropriate in a Section 1983 suit because the
detectives who investigated plaintiff’s criminal case and also testified as witnesses were not in
privity with the People of the State of New York, the prosecuting party, and were “not parties to
[the plaintiff’s] criminal proceeding”); see also Amalfitano v. Rosenberg, No. 04–cv–2027, 2005
WL 2030313, at *3 (S.D.N.Y. Aug. 22, 2005) (noting relevant factors in determining whether
privity exists for purposes of collateral estoppel, including the extent to which the party against
whom preclusion is asserted “exercised some degree of actual control over the presentation”)
(quoting Stichting Ter Behartiging Van De Belangen Van Oudaandeelhouders In Het Kapitaal
Van Saybolt Int’l B.V. v. Schreiber, 327 F.3d 173, 185 (2d Cir. 2003) and Buechel v. Bain, 97
N.Y.2d 295, 301, 766 N.E.2d 914 (N.Y. 2001)); see also Stancuna v. Sherman, 563 F. Supp. 2d
349, 353–54 (D. Conn. 2008) (“Although the Second Circuit does not appear to have expressly so
held, a number of other circuits have held that government employees in their individual capacities
are not in privity with their government employer.” (collecting cases)); Krug v. Cnty. of
Rennselaer, 559 F. Supp. 2d 223, 243–44 (N.D.N.Y. 2008) (declining to find privity where
plaintiff did not have the ability to control the presentation of evidence or appeal the final decision
in the prior proceedings).
person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “A qualified immunity defense is established if (a) the
defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate such law.” Salim v. Proulx, 93 F.3d 86, 89
(2d Cir. 1996) (citations omitted); Coggins v. Buonora, 776 F.3d 108, 114 (2d Cir. 2015) (same).
In deciding whether qualified immunity applies, courts conduct a two-step analysis: “First, do the
facts show that the officer’s conduct violated plaintiff’s constitutional rights? Second, if there was
a constitutional violation, was the right clearly established at the time of the officer’s actions?”
Barboza v. D’Agata, 676 F. App’x 9, 12 (2d Cir. 2017) (summary order); see Winfield v. Trottier,
710 F.3d 49 (2d Cir. 2013) (when deciding the issue of qualified immunity, “courts ask whether
the facts shown  ‘make out a violation of a constitutional right,’ and  ‘whether the right at
issue was clearly established at the time of defendant’s alleged misconduct.’” (quoting Pearson,
555 U.S. at 232)). Courts, however, “may, in [their] own discretion, refrain from determining
whether a constitutional right has been violated and instead move directly to the question of
qualified immunity . . . .” Costello v. City of Burlington, 632 F.3d 41, 51–52 (2d Cir. 2011) (Pooler,
To determine whether the relevant law was clearly established, a court considers “the
specificity with which a right is defined, the existence of Supreme Court or Court of Appeals case
law on the subject, and the understanding of a reasonable [State actor] in light of preexisting law.”
Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014), cert. denied sub nom. Torresso v. Terebesi,
135 S. Ct. 1842 (2015); see also Southerland v. City of N.Y., 681 F.3d 122, 125 (2d Cir. 2012)
(Mem) (“[T]he relevant dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable [State actor] that his conduct was unlawful in the situation
he confronted.” (citation and internal quotation marks omitted)). “In a damages action asserting
an illegal search, ‘the relevant question . . . is . . . whether a reasonable [State actor] could have
believed [the] search to be lawful, in light of clearly established law and the information the
searching [State actor] possessed.” Moore v. Vega, 371 F.3d 110, 115 (2d Cir. 2004) (second
alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “A [State
actor] conducting a search is entitled to qualified immunity where clearly established law does not
show that the search violated the Fourth Amendment.” Pearson, 555 U.S. at 243–44.
As discussed supra, there is no law clearly establishing that a warrantless search of a
premises occupied by a trespasser violates the Fourth Amendment. If anything, the Second Circuit
has found that trespassers and squatters have no constitutionally protected property interests with
respect to the places where they reside and thus have no Fourth Amendment protection as to those
premises. See Sanchez, 635 F.2d at 64 (“[A] mere trespasser has no Fourth Amendment protection
in premises he occupies wrongfully . . . .”); accord Smith v. Cnty. of Nassau, No. 10–cv–4874,
2015 WL 1507767, at *8 (E.D.N.Y. Mar. 31, 2015) (“To the extent that Plaintiff was a squatter,
he had no legal right to remain on the Property, and therefore cannot assert a cognizable property
interest in the continued occupancy of the Property.”), aff’d, 643 F. App’x 28 (2d Cir. 2016).
Moreover, prior to entering the 130th Avenue building, Sessoms-Newton found out from
Jones, who was Shinsel’s friend, that Plaintiff and Shinsel were not legal residents of the first floor
apartment, and that the first floor apartment had been rendered uninhabitable by water damage.
(See Def. 56.1 ¶¶ 45–47; Sessoms-Newton Decl., Ex. I, ¶¶ 9–11.) Both times, when Defendants
went to the 130th Avenue building, they noticed that the building and surrounding area appeared
to be unkempt and abandoned, with all of the doors unlocked, unhinged, or ajar. (Def. 56.1 ¶¶ 48,
50–51, 54–55, 57, 61.) The front door mail slot was also filled with unopened envelopes and
solicitation flyers. (Def. 56.1 ¶ 51; Sessoms-Newton Decl., Ex. I, ¶ 16.) When Sessoms-Newton
knocked on the partially unhinged and unlocked front building door, there was no answer. (Def.
56.1 ¶ 53.) Both the first and second floor apartment doors were unlocked, and no one responded
to Defendants’ knocking. (Def. 56.1 ¶¶ 56–57, 60–61.) Even though the first floor apartment
appeared to be inhabited (Def. 56.1 ¶¶ 62), given the lack of clearly established law regarding the
Fourth Amendment rights of trespassers, the information Defendants had about the property, and
other aspects of the building’s appearance, it was objectively reasonable for Sessoms-Newton and
Hegelson to believe that entering and taking photographs of the first-floor apartment unit and the
common stairway, without a warrant, did not violate any clearly established law.
Plaintiff’s Deprivation of Property Claim
Plaintiff also alleged that Defendants stole his camera and two cell phones from the first
floor apartment. As Defendants have noted, “[d]eprivation of property by a state actor, whether
intentional or negligent, does not give rise to a claim under § 1983 so long as the law of that state
provides for an adequate post-deprivation remedy and the deprivation was the result of a ‘random
and unauthorized’ act.” David v. N.Y.P.D. 42nd Precinct Warrant Squad, No. 02–cv–2581, 2004
WL 1878777, at *5 (S.D.N.Y. Aug. 23, 2004) (collecting cases); see also Davis v. N.Y., 311 F.
App’x 397, 400 (2d Cir. 2009) (summary order) (quoting Hudson v. Palmer, 468 U.S. 517, 533
(1984)). Here, Plaintiff has not claimed that any alleged deprivation of his property was authorized
or the result of an established State procedure. Moreover, there exist adequate State postdeprivation remedies that Plaintiff could have used, such as, bringing a State law claim in the Court
of Claims. See Davis, 311 F. App’x at 400; Wahid v. Mogelnicki, No. 15–cv–2869, 2017 WL
2198960, at *2 (E.D.N.Y. May 17, 2017) (“New York has adequate state post-deprivation
remedies” that allow “a plaintiff [to] bring a state law claim for negligence, replevin or conversion
with the Court of Claims”). Thus, Plaintiff’s deprivation of property claim fails as a matter of law
and is dismissed. See, e.g., Wahid, 2017 WL 2198960, at *2 (dismissing plaintiff’s deprivation of
property claim, given New York’s adequate post-deprivation remedies and plaintiff’s failure to
indicate that the deprivation was authorized or the result of an established State procedure); Alloul
v. City of N.Y., No. 09–cv–7726, 2010 WL 5297215, at *6 (S.D.N.Y. Dec. 21, 2010) (dismissing
plaintiff’s deprivation of property interest claim based on the towing and subsequent destruction
of plaintiff’s car because “there [wa]s no evidence that either the towing or the destruction of [the]
car was anything other than a ‘random and unauthorized’ act” and plaintiff failed to utilize a
constitutionally adequate post-deprivation remedy, i.e., pursue a State court action based on
negligence or conversion).
For the reasons set forth above, the Court grants summary judgment to Defendants on
Plaintiff’s unlawful entry claim and deprivation of property claim. The Clerk of Court is
respectfully directed to enter judgment in Defendants’ favor and terminate this action.
The Court certifies that any appeal from this Order would not be taken in good faith, and,
therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: August 17, 2017
Brooklyn, New York
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