Flynn v. James et al
DECISION AND ORDER granting the 11 Motion to Dismiss and dismissing Plaintiff's complaint in its entirety. Signed by Senior Judge Thomas J. McAvoy on 1/24/2012. (amt) [Pltf served via reg. mail]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEBRA A. JAMES et al.,
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff Bruce Flynn commenced this action pro se pursuant to 42 U.S.C. § 1983,
asserting claims of an illegal search and seizure of his home and property. Presently, before
the Court is Defendants’ motion to dismiss the Complaint pursuant to FED . R. CIV. P. 12(b)(6).
The Court also reviews the Complaint pursuant to 28 U.S.C. § 1915A.
The following facts are taken from Plaintiff’s Complaint and, for purposes of the
instant motion, are deemed to be true.
On October 8, 2009 at approximately 10:00 a.m., Plaintiff entered the residence of
Debra James holding an item wrapped in a blanket. Plaintiff revealed the item showing that
it was a rifle. Plaintiff pointed the rifle at Ms. James, forced her to kneel on the floor and to
beg for her life. After approximately forty minutes, Plaintiff departed the residence without
shooting Ms. James.
Ms. James reported the incident to the police. Defendants New York State
Troopers Fowler and McCarty found Plaintiff driving a motor vehicle in Plattsburgh, New
York. They stopped his vehicle and took him into custody. Plaintiff then invoked the right to
counsel. Later on, however, Plaintiff gave the police consent to search his residence.
Defendants New York State Investigators Dyer and Madore searched Plaintiff’s home and
found a .40 caliber rifle with ammunition.
On January 6, 2010, Plaintiff negotiated a plea agreement in exchange for a
determinate ten year sentence. Plaintiff entered a plea of guilty to burglary in the second
degree and criminal use of a firearm in the second degree.
On August 31, 2011, Plaintiff filed the instant Complaint asserting that Defendants
violated his Constitutional rights. Plaintiff claims that Troopers Fowler and McCarty are liable
under the Fourth Amendment for a false arrest, investigator Madore is liable under the Fifth
Amendment for unlawfully obtaining Plaintiff’s consent to search his home, and investigators
Madore and Dyer are liable under the Fourth and Fourteenth Amendments for illegally
searching Plaintiff’s home and seizing his property. Lastly, Plaintiff seeks the return of his
rifle and ammunition.
STANDARD OF REVIEW
“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,’ in order to ‘give the defendant fair
notice of what the. . . claim is and the grounds upon which it rests.’ “ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations. . . a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 1964–65. “Factual allegations must be enough to raise a
right to relief above the speculative level. . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. at 1965. “ ‘[T]he pleading must contain
something more. . . than. . . a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action.’ “ Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235–236 (3d ed. 2004)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ “ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, (2009) (quoting Twombly, 550
U.S. at 570).
A complaint does not suffice “if it tenders naked assertions devoid of further factual
enhancement.” Ashcroft, 129 S.Ct. at 1949. Legal conclusions must be supported by factual
allegations. Id. at 1950. “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. at 1949. “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. “Where a complaint
pleads facts that are ‘merely consistent with’ a defendant's liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S.
557) (internal quotations omitted).
In reviewing the allegations in a complaint drafted by a pro se litigant, the Court
construes the pleading liberally. See e.g. Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review a prisoner’s
complaint in which redress is sought from a governmental entity or an officer or employee of
a governmental entity, to identify cognizable claims or dismiss the complaint if the complaint
fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A.
With these standards in mind, the Court will now address Plaintiff’s Complaint.
Because Plaintiff asserts that Defendants violated his Constitutional rights, his claims
are properly analyzed under 42 U.S.C. § 1983. To state a valid claim under §1983, Plaintiff
must allege that “(1) the challenged conduct was attributable at least in part to a person who
was acting under color of state of law; and (2) the conduct deprived Plaintiff of a right
guaranteed under the Constitution of the United States.” Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)).
The Court will address each of Plaintiff’s claims under §1983 seriatim.
Plaintiff asserts that he was falsely arrested by Troopers Fowler and McCarty because
the arrest was executed without a warrant.
The Fourth Amendment provides a source for a claim under section 1983 if the factual
allegations are based upon false arrest. Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.
1997)(citing Albright v. Oliver, 510 U.S. 266 (1994)). To state a claim for false arrest, Plaintiff
must show that (1) Defendant intended to confine him; (2) Plaintiff was conscious of the
confinement; (3) Plaintiff did not consent to the confinement; and (4) the confinement was
not otherwise privileged. Shain v. Ellison, 273 F.3d 56, 68 (2d Cir. 2001) (citing Singer v.
Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)).
Privilege includes an arrest made on probable cause. Id. Probable cause exists
“when the arresting officer has 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 the crime.” Id. The arresting
officer may rely on the victim’s allegations as probable cause to arrest. Ellison, 273 F.3d at
68 (citing Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)).
In the instant case, the facts alleged in the Complaint demonstrate that the arresting
officers had probable cause to arrest Plaintiff. According to Plaintiff’s facts, the victim called
the police station and reported that Plaintiff entered her residence with a rifle, threatened her
life and subsequently left her residence with the rifle. This gave Defendants Fowler and
McCarty probable cause to arrest. Accordingly, the arrest was privileged and the Complaint
fails to state a claim for relief.
Consent to Search
Plaintiff next claims that he was subject to an illegal search and seizure by Defendants
Madore and Dyer in violation of the Fourth Amendment. Plaintiff argues that the search and
seizure was illegal because Defendant Madore unlawfully obtained consent to search
The Supreme Court held that, absent valid consent, a warrantless search and seizure
in a home violates the Fourth Amendment. Payton v. New York, 445 U.S. 573, 584-90
(1980). Here, Plaintiff asserts that his consent was invalid because it was obtained
subsequent to his invocation of the right to counsel. Plaintiff’s consent, however, is valid
because “a request for consent to search does not constitute an interrogation . . . insofar as it
does not seek to elicit a self-incriminating statement.” United States v. Shlater, 85 F.3d
1251, 1256 (7th Cir. 1996); United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th
Cir. 1993); United States v. Gilkenson, 431 F. Supp.2d 270 (N.D.N.Y. 2006). Likewise,
consent to search is not an incriminating statement. United States v. Faruolo, 506 F.2d 490,
495 (2d Cir. 1974); Gilkenson, 431 F. Supp.2d at 281. Accordingly, Defendants search and
seizure of Plaintiff’s property does not violate the Fourth Amendment.
Plaintiff’s remaining claims depend on the existence of this Court’s finding of a false
arrest and invalid consent to the search of his residence. Having found that there was no
violation of Plaintiff’s Fourth Amendment rights, his other allegations fail to state a claim upon
which relief can be granted.
For the forgoing reasons, Plaintiff’s Complaint is dismissed in its entirety. The Clerk of
the Court shall close the file in this matter.
IT IS SO ORDERED.
Dated: January 24, 2012
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