Baines v. The City of New York et al
Filing
107
OPINION AND ORDER re: 96 MOTION to Dismiss filed by Brian White, Michael Delmerico, Peter Guyheen, Chris McNerney, John Christman, Odonoghue, Joseph Cutrone, Joseph Leonard: For the reasons stated above, the Officer De fendants' motion to dismiss is GRANTED in part and DENIED in part. Specifically, with respect to the Officer Defendants, Plaintiff's equal protection, due process, and conspiracy claims are dismissed, while his claims under the Fourth Am endment - for the allegedly unlawful entries into his apartment and the allegedly unlawful search - survive. (Additionally, as noted, the Officer Defendants did not move to dismiss Plaintiff's excessive-force claim.) Further, the Court sua sp onte dismisses the conspiracy and due process claims against Mitchell. As those are Plaintiff's only claims against Mitchell, the Clerk of the Court is directed to terminate her as a party to this litigation. The Clerk is also directed to terminate Docket No. 96 and to mail Plaintiff a copy of this Opinion and Order. (Signed by Judge Jesse M. Furman on 6/8/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DONNELL BAINES,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, et al.,
:
:
Defendants.
:
:
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06/08/2015
10-CV-9545 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Donnell Baines, who is proceeding pro se, was convicted in New York State
court of first-degree rape, sex trafficking, and promoting prostitution, and sentenced to more than
forty years in prison. In this case, he sues various officers from the New York City Police
Department (the “Officer Defendants”) and Kimberly Mitchell, a woman he was convicted of
assaulting (collectively, “Defendants”), pursuant to Title 42, United States Code, Section 1983.
Against the Officer Defendants, Plaintiff appears to assert claims for unlawful entry, excessive
force, and unreasonable search in violation of the Fourth and Fourteenth Amendments, as well as
selective enforcement of the laws in violation of the Equal Protection Clause of the Fourteenth
Amendment. In addition, against all Defendants, he asserts a claim for deprivation of property in
violation of the Due Process Clause of the Fourteenth Amendment and for conspiracy to violate
his civil rights. The Officer Defendants now move to dismiss all claims except for the excessiveforce claim. (See Defs.’ Mem. Law Supp. Mot. To Dismiss Second Am. Compl. Pursuant Fed.
R. Civ. P. 12(b)(6) (Docket No. 98) (“Defs.’ Mem.”) 2 & n.2). 1 For the reasons that follow, the
motion is granted in part and denied in part. Additionally, although Plaintiff has not yet served
Mitchell, the Court sua sponte dismisses all claims against her.
BACKGROUND
Before describing the relevant background, the Court must address two preliminary
matters. First, the Officer Defendants suggest that the Court should disregard some allegations
in the Second Amended Complaint (“SAC”), on the ground that they “directly contradict” the
facts pleaded in Plaintiff’s earlier complaints. (Defs.’ Mem. 13-14, 16-17). It is true that a Court
may disregard the factual allegations in an amended complaint where a plaintiff “blatantly
changes” his story to “directly contradict[]” his earlier pleadings. E.g., Colliton v. Cravath,
Swaine & Moore LLP, No. 08-CV-400 (NRB), 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24,
2008) (internal quotation marks omitted), aff’d sub nom. Colliton v. Cravath, Swain & Moore
LLP, 356 F. App’x 535 (2d Cir. 2009); see, e.g., Wallace v. NYC Dep’t of Corr., No. 95-CV4404, 1996 WL 586797, at *1-2 (E.D.N.Y. Oct. 9, 1996) (disregarding the assertion in an
amended complaint that an action was taken pursuant to an official policy because the original
complaint contended that the action was an aberration from that policy). However, “the more
usual and benevolent option is to accept the superseded pleadings but allow the factfinder to
consider the earlier pleadings as admissions in due course.” Barris v. Hamilton, No. 96-CV9541 (DAB), 1999 WL 311813, at *2 (S.D.N.Y. May 17, 1999); see also Kermanshah v.
Kermanshah, 580 F. Supp. 2d 247, 266 (S.D.N.Y. 2008) (noting that courts typically disregard
subsequent pleadings only where they are “blatant” or “directly contradictory” as opposed to
This is the second motion to dismiss filed in this case. The Court previously granted a
motion to dismiss all claims against the City of New York. See Baines v. City of New York, No.
10-CV-9545 (JMF), 2014 WL 1087973 (S.D.N.Y. Mar. 19, 2014).
1
2
merely “inconsistent” (internal quotation marks omitted)). Here, the Court will follow the latter
course. For one thing, the discrepancies between the SAC and Plaintiff’s earlier pleadings are
not the sort of “blatant[] . . . contradict[ions]” that have caused other courts to disregard
allegations in amended pleadings. Colliton, 2008 WL 4386764, at *6. For another, Plaintiff is
proceeding pro se, so his pleadings “‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Thus, the better option is to treat the SAC as the sole
operative pleading for purposes of this motion, without prejudice to the Officer Defendants
arguing “in due course” that the earlier pleadings should be treated as “admissions.” Barris,
1999 WL 311813, at *2.
Second, in moving to dismiss, the Officer Defendants rely on police reports describing
Mitchell’s allegations that Plaintiff assaulted her. (E.g. Defs.’ Mem. 2, 3, 14, 22-23 (citing Decl.
Matthew Bridge Supp. Defs.’ Partial Mot. To Dismiss Second Am. Compl. (Docket No. 97),
Exs. B & C)). On a motion to dismiss, however, a court may consider only materials of which it
may take judicial notice or that were attached to the complaint or incorporated by reference. See,
e.g., City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir.
2014); Anderson v. Rochester-Genesee Reg’l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir.
2003). In this case, the police reports at issue were neither attached as exhibits to, nor referenced
in, the SAC, and Plaintiff’s passing mention of Mitchell’s assault allegations (see SAC ¶ 56),
which were detailed in one of the police reports, is insufficient to incorporate it into the SAC
such that it may be considered on a motion to dismiss. See Sahu v. Union Carbide Corp., 548
F.3d 59, 67 (2d Cir. 2008) (holding that limited references are insufficient to incorporate
documents or exhibits into the complaint). Thus, the Court may not, and does not, consider the
3
reports in deciding the Officer Defendants’ motion. Avalos v. IAC/Interactivecorp., No. 13-CV8351 (JMF), 2014 WL 5493242, at *3 n.1 (S.D.N.Y. Oct. 30, 2014).
Accordingly, the following facts, presumed to be true for purposes of this motion, are
taken from the SAC and public documents of which the Court may take judicial notice. See
Karmely v. Wertheimer, 737 F.3d 197, 199 (2d Cir. 2013); see also McNamee v. Clemens, 762 F.
Supp. 2d 584, 592 n.1 (E.D.N.Y. 2011) (noting that a court may take judicial notice of an
indictment, but not for the truth of the allegations contained therein); Lowery v. Home Depot,
No. 13-CV-3957 (JPO), 2014 WL 5151402, at *1 n.2 (S.D.N.Y. Oct. 14, 2014) (noting that a
court may take judicial notice of a verdict in a criminal trial); Williams v. City of N.Y., No. 07CV-3764 (RJS), 2008 WL 3247813, at *2 & n.3 (S.D.N.Y. Aug. 7, 2008) (taking judicial notice
of the plaintiff’s incarceration and the term of his sentence based on the inmate lookup website
of the New York State Department of Corrections and Community Supervision). Plaintiff’s
claims all arise from interactions involving him and Mitchell, who lived with (and, although not
expressly alleged in the SAC, was presumably romantically involved with) Plaintiff for about six
months beginning in April 2009. (SAC ¶¶ 13-14, 17). Plaintiff alleges that, on October 1, 2009,
Mitchell moved out of Plaintiff’s apartment. (Id. ¶¶ 15, 17). A few weeks later, on October 18,
2009, Mitchell called Plaintiff to tell him that she was outside his apartment, accompanied by
multiple police officers, and asked permission to enter and retrieve her belongings. (Id. ¶¶ 1820). Plaintiff consented, at which point Mitchell and the officers removed all her remaining
possessions from his apartment. (Id. ¶¶ 20-24).
On October 21, 2009, Mitchell called Plaintiff and asked permission to come over “for a
‘social visit.’” (Id. ¶ 27). Plaintiff agreed, but when Mitchell was in his apartment, he told her
that she could not stay in the apartment when he was not there and that if she wanted to come
4
over “for a ‘social visit,’” she “would be required to call well in advance of coming over to seek
Plaintiff’s permission.” (Id. ¶ 28). From that date to December 7, 2009, Mitchell was “an
‘infrequent visitor’” to Plaintiff’s apartment, “knowing full well during this entire period that she
had no authority over Plaintiff’s residence.” (Id. ¶ 30). On December 7, 2009, for reasons that
are not clear, Mitchell was at Plaintiff’s apartment and allegedly got into a physical fight with
Plaintiff’s then-girlfriend. (Id. ¶¶ 30-31). Plaintiff kicked Mitchell out of his apartment and told
her not to return; as she was leaving, Mitchell told Plaintiff that she was going to have him and
his then-girlfriend arrested. (Id. ¶¶ 32-33). The next afternoon, Mitchell and two men associated
with Mitchell threatened Plaintiff multiple times, both on the telephone and in person. (Id.
¶¶ 34-39). Among other things, Mitchell “threatened Plaintiff’s safety,” telling him that she was
going to arrange to have him beaten up and robbed; she also told Plaintiff that she was going to
lie to the police, by informing them “that it was Plaintiff who assaulted her, thereby having
Plaintiff arrested.” (Id. ¶ 34).
On the evening of December 8, 2009, Plaintiff received a call from Mitchell, who was
outside his apartment and requested his permission to enter the apartment to retrieve her
possessions (despite the fact that she had allegedly removed all of her possessions in October).
(Id. ¶¶ 44-46). Mitchell was apparently accompanied by at least some of the same police officers
— the Officer Defendants here — who had escorted her to remove her belongings on October
18, 2009. (Id. ¶ 47). Plaintiff refused, telling Mitchell and the accompanying officers that she
no longer had any possessions in his apartment. (Id. ¶ 46). One of the officers — Defendant
Brian White — then took the phone and told Plaintiff that Mitchell had a copy of the keys to the
apartment and had told the police that she lived in the apartment and that she and Plaintiff were
in a romantic relationship. (Id. ¶¶ 49, 51). Plaintiff denied that he and Mitchell were in a
5
relationship and asked the officer to arrest Mitchell for possessing his keys, asserting that they
were stolen property. (Id. ¶ 51). Over the phone, Plaintiff then heard Officer White ask Mitchell
whether she still lived in the apartment, to which Mitchell responded “No, not any more [sic],
but my belongings are up there and he assaulted me.” (Id. ¶ 56).
Shortly thereafter, Plaintiff heard his doorknob rattle and, upon realizing that Defendants
were at the door, again refused to consent to their entry into the apartment and threatened to call
the police if they did not leave. (Id. ¶¶ 64, 66-67). The Officer Defendants then used the keys to
open the door and forced their way into Plaintiff’s apartment, whereupon one of the Officers
immediately placed Plaintiff in handcuffs. (Id. ¶¶ 68-71). Plaintiff alleges that the Officers
pinned him down and handcuffed him in “a jerking fashion, which caused Plaintiff to suffer
pain.” (Id. ¶¶ 72-73). They then pulled him to his feet by the handcuffs and twisted his arms
behind his back, causing a “loud ‘popping’” sound in his shoulder. (Id. ¶¶ 75-76). Shortly
thereafter, an Officer told him to have a seat, and pulled downward on the cuffs “with enough
force to slam the Plaintiff down on the floor,” causing injuries to his back and thigh. (Id. ¶ 81).
After Plaintiff was detained, another officer entered the room and asked whether the
officers had searched Plaintiff’s apartment for weapons. (Id. ¶ 84). They reported that they had
not. (Id.). When Plaintiff protested that the officers did not have permission to search his
apartment, one of the officers then went out to the hallway where Mitchell was waiting and
asked for her permission to search the apartment, which she granted. (Id. ¶¶ 86-88). According
to Plaintiff, the Officer Defendants then “‘ransack[ed]’” the apartment, searching it from “‘topto-bottom.’” (Id. ¶¶ 91-92).
Following the search, Plaintiff was taken from his apartment to the local police station,
where he was placed in a holding cell. (Id. ¶¶ 101, 103, 106). One of the Defendants, Officer
6
Robert O’Donoghue, informed Plaintiff that other officers would be escorting Mitchell back to
his apartment so that she could retrieve her belongings. (Id. ¶ 109). When Plaintiff asked
Officer O’Donoghue to intercede to stop Mitchell from taking his property, the officer told
Plaintiff that there was nothing he could do and that Plaintiff’s only remedy was to bring a civil
suit against Mitchell. (Id. ¶¶ 111-12). Plaintiff was released from custody later that evening;
upon returning to his apartment, he found that several valuables had been taken from his
apartment. (Id. ¶¶ 114-15).
On November 10, 2010, nearly a year after the events at issue in this case, Plaintiff was
indicted on charges, including first-degree rape, sex trafficking, and assault, stemming from his
interactions with Mitchell in December 2009. (See Bridge Decl., Ex. H). Shortly thereafter, on
December 17, 2010, Plaintiff filed the instant action. (Compl. (Docket No. 2)). The case was
stayed during the pendency of Plaintiff’s criminal proceedings, which culminated, on October
24, 2012, with Plaintiff’s conviction by a jury of, among other things, first-degree rape, sex
trafficking, promoting prostitution, and assault arising from the December 2009 events. (Bridge
Decl. ¶ 8; id., Ex. F; see Docket No. 24). According to the New York State Department of
Corrections and Community Supervision, Plaintiff’s aggregate minimum prison sentence for
those convictions is forty-two years, ten months, and four days — meaning that his earliest
possible release date is May 13, 2053. See Inmate Population Information Search, New York
State Department of Corrections and Community Supervision Inmate Information,
http://nysdoccslookup.doccs.ny.gov/ (last visited June 8, 2015). He is currently incarcerated at
Five Points Correctional Facility. (Id.).
7
LEGAL STANDARDS
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
facts set forth in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008). A claim will
survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must
show “more than a sheer possibility that a defendant has acted unlawfully,” id., and cannot rely
on mere “labels or conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiff’s
pleadings “have not nudged [his or her] claims across the line from conceivable to plausible,
[the] complaint must be dismissed.” Id. at 570. Here, because Plaintiff is proceeding pro se, his
Complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson, 551 U.S. at 94 (internal quotation marks omitted). Nonetheless, a pro se litigant must
still state a plausible claim for relief. See, e.g., Walker v. Schult, 717 F.3d 119, 124 (2d Cir.
2013). Thus, the Court’s “‘duty to liberally construe a plaintiff’s complaint is not the equivalent
of a duty to re-write it.’” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y.
2009) (quoting 2 Moore’s Federal Practice § 12.34[1][b], at 12-61).
8
DISCUSSION
Plaintiff alleges that the Officer Defendants committed three categories of constitutional
torts. 2 First, he contends that they violated his Fourth Amendment rights by unreasonably
entering and searching his apartment without his consent. Second, he asserts that the Officer
Defendants — and Mitchell — violated his due process rights by taking his property. And third,
he avers that the Officer Defendants violated his equal protection rights by arresting him and not
arresting Mitchell. In addition, he claims that the Officer Defendants and Mitchell conspired to
deprive him of his constitutional rights. The Officer Defendants argue that all claims against
them should be dismissed, either on the ground that Plaintiff fails to state a claim or that they are
entitled to qualified immunity. The Court considers each category of Plaintiff’s claims in turn.
A.
The Initial Entry
The Court begins with Plaintiff’s claim that the Officer Defendants’ initial entry into his
apartment on December 8, 2009, violated his rights under the Fourth Amendment. (SAC ¶¶ 6768; Pl.’s Mem. 7-20). “It is well settled under the Fourth and Fourteenth Amendments that a
search conducted without a warrant issued upon probable cause is ‘per se unreasonable subject
Plaintiff in his memorandum acknowledges that he is not asserting claims for “malicious
prosecution, false imprisonment, or any other New York state law claims.” (Pl.’s Mem. Law
Opp’n Defs.’ Mot. To Dismiss Second Am. Compl. Pursuant Fed. R. Civ. P. 12(b)(6) (Docket
No. 103) (“Pl.’s Mem.”) 6). In addition, although he does not squarely renounce a claim for
false arrest, he appears to have abandoned that claim as well. In any case, Plaintiff’s conviction,
which he concedes has not been overturned (id.), precludes any claim for malicious prosecution,
false imprisonment, or false arrest. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994);
Poventud v. City of N.Y., 750 F.3d 121, 130-31 (2d Cir. 2014) (en banc); Magnotta v. Putnam
Cnty. Sheriff, 13-CV-2752 (GBD) (GWG), 2014 WL 705281, at *5 (S.D.N.Y. Feb. 24, 2014)
(“The common-law rule, equally applicable to actions asserting false arrest, false imprisonment,
or malicious prosecution, was and is that the plaintiff can under no circumstances recover if he
was convicted of the offense for which he was arrested because where law enforcement officers
have made an arrest, the resulting conviction is a defense to a § 1983 action asserting that the
arrest was made without probable cause.” (internal quotation marks omitted)).
2
9
only to a few specifically established and well-delineated exceptions.’” Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
One such exception is an entry or search that is performed with the consent of a resident or of “a
third party who possesses common authority over the premises.” Illinois v. Rodriguez, 497 U.S.
177, 181 (1990); see Georgia v. Randolph, 547 U.S. 103, 109 (2006) (noting that “one jealously
and carefully drawn exception [to the warrant requirement] recognizes the validity of searches
with the voluntary consent of an individual possessing authority” (internal quotation marks and
citations omitted)).
A third party has authority to consent to a search “‘if two prongs are present: first, the
third party had access to the area searched, and, second, either: (a) common authority over the
area; or (b) a substantial interest in the area; or (c) permission to gain access.’” United States v.
McGee, 564 F.3d 136, 139-40 (2d Cir. 2009) (quoting United States v. Davis, 967 F.2d 84, 87
(2d Cir. 1992)). Additionally, “even if a third party lacks actual authority to consent to a search
of a particular area, he still may have apparent authority to consent to the search.” Moore v.
Andreno, 505 F.3d 203, 209 (2d Cir. 2007). A third party has apparent authority when “the facts
available to the officer[s] . . . [would] warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises.” Rodriguez, 497 U.S. at 188 (internal
quotation marks omitted). Significantly, however, a party — whether possessing actual authority
or apparent authority — cannot authorize a search as to a physically present and objecting tenant.
See Randolph, 547 U.S. at 120; accord Moore, 505 F.3d at 209. That is, if two people with
common authority over a property are present and one consents to a search, but the other
immediately objects, the search is unreasonable as to the objecting party. See Randolph, 547
U.S. at 120.
10
Applying those principles here, Plaintiff plainly states a valid Fourth Amendment claim
with respect to the Officers’ initial entry into his apartment. Plaintiff alleges that he was
physically present at the scene and expressly refused to allow the Officer Defendants to enter his
apartment. (SAC ¶¶ 66-67). If those allegations are true, and the Court is required to assume
they are, then the Officer Defendants’ initial entrance violated the Fourth Amendment “as to
him,” Randolph, 547 U.S. at 120, regardless of whether Mitchell consented (Pl.’s Mem. 13).
That is, his “refusal of consent to search abrogated the consent given by [Mitchell],” and the
SAC thus states a plausible Fourth Amendment claim, at least for the purposes of the Officer
Defendants’ motion to dismiss. United States v. Andino, 768 F.3d 94, 100 n.5 (2d Cir. 2014);
Mangino v. Inc. Vill. of Patchogue, 739 F. Supp. 2d 205, 243 n.33 (E.D.N.Y. 2010).
The Officer Defendants do not seriously argue otherwise. Instead, they argue that they
are entitled to qualified immunity because a reasonable officer in their positions could have
believed that he was entitled to enter the apartment over Plaintiff’s objections to protect Mitchell,
the alleged victim of domestic violence. (Defs.’ Mem. 11-15; Defs.’ Reply Mem. Law Further
Supp. Partial Mot. To Dismiss Second Am. Compl. (Docket No. 106) (“Defs.’ Reply Mem.”) 26). Qualified immunity shields government officials from civil suits for damages “insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
qualify as “clearly established,” a right “must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.’” Reichle v. Howards, — U.S.
—, 132 S. Ct. 2088, 2093 (2012) (internal quotation marks omitted); see Raspardo v. Carlone,
770 F.3d 97, 113 (2d Cir. 2014). Put another way, existing precedent of the Supreme Court and
Second Circuit “must have placed the . . . constitutional question . . . beyond debate.” Plumhoff
11
v. Rickard, — U.S. —, 134 S. Ct. 2012, 2023 (2014) (internal quotation marks omitted). The
inquiry “must be undertaken in light of the specific context of the case, not as a broad general
proposition.” DiStiso v. Cook, 691 F.3d 226, 229 (2d Cir. 2012) (internal quotation marks
omitted). Further, in the Rule 12(b)(6) context, the facts supporting the defense of qualified
immunity must appear on the face of the complaint; even then, a motion to dismiss may be
granted only if the plaintiff fails to plausibly allege a claim for relief. See, e.g., Looney v. Black,
702 F.3d 701, 710 (2d Cir. 2012); McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
In this case, the Officer Defendants’ arguments rely on dicta in Randolph, the Supreme
Court’s decision holding that a search conducted on the basis of a tenant’s consent is
unreasonable as to a physically present and objecting co-tenant. Responding to criticism from
the dissent that that holding would jeopardize the victims of domestic violence, the Court stated
that its decision
ha[d] no bearing on the capacity of the police to protect domestic victims . . . No
question has been raised, or reasonably could be, about the authority of the police
to enter a dwelling to protect a resident from domestic violence; so long as they
have good reason to believe such a threat exists, it would be silly to suggest that
the police would commit a tort by entering, say, to give a complaining tenant the
opportunity to collect belongings and get out safely, or to determine whether
violence (or threat of violence) has just occurred or is about to (or soon will)
occur, however much a spouse or other co-tenant objected . . . The undoubted
right of the police to enter in order to protect a victim, however, has nothing to do
with the question in this case, whether a search with the consent of one co-tenant
is good against another, standing at the door and expressly refusing consent.
Randolph, 547 U.S. at 118-19. Relying on that passage, the Officer Defendants argue that a
reasonable officer in their positions might have believed that he or she was authorized to enter
Plaintiff’s apartment to accompany Mitchell. (Defs.’ Mem. 11-15). 3
3
The Officer Defendants also contend that a reasonable officer could have understood
N.Y. C.P.L. 530.11(6), which requires that the police inform a domestic violence victim that he
or she is entitled to police assistance in retrieving his or her “essential personal effects” to
sanction their entrance into Plaintiff’s apartment. (Defs.’ Mem. 14). Their argument is not
12
The Officer Defendants’ argument is unpersuasive. 4 There is nothing in Randolph that
suggests that law enforcement officers may enter a private residence over the objection of a
physically present resident simply because they are accompanying an assault victim. The
passage at issue expressly concerned “the authority of the police to enter a dwelling to protect a
resident from domestic violence.” Randolph, 547 U.S. at 118 (emphasis added). And the
Court’s confidence that its holding would not jeopardize victims of domestic violence was based
on its assumptions that most victims would have actual authority to authorize an officer’s
entrance and search or that exigent circumstances would authorize the officers’ entry — if not
both. See, e.g., id. at 118 (stating that “it would be silly to suggest that the police would commit
a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get
out safely, or to determine whether violence (or threat of violence) has just occurred or is about
to (or soon will) occur, however much a spouse or other co-tenant objected.” (emphasis added));
id (noting that “[n]o question has been raised, or reasonably could be, about the authority of the
police to enter a dwelling to protect a resident from domestic violence . . . so long as they have
good reason to believe such a threat exists.” (emphasis added)). In other words, despite the
Officer Defendants’ suggestions to the contrary, Randolph did not establish a broad new
persuasive. As discussed below, the provision merely requires that the police provide a victim
with notice; it does not authorize any affirmative steps by the police to retrieve a victim’s
personal effects . Moreover, a state statute obviously cannot override the protections of the
Fourth Amendment. Accordingly, no reasonable officer could have understood the provision to
carve out an exception to the Fourth Amendment.
4
The Officer Defendants’ argument is premised on Mitchell being a victim of domestic
abuse. Given Plaintiff’s criminal conviction, that premise appears to be well founded. But, on a
motion to dismiss, the Court may not consider Plaintiff’s conviction for the truth of any matters
asserted, and the only allegation relating to domestic violence in the SAC is Mitchell’s statement
to Officer White that Plaintiff had previously assaulted her. (SAC ¶ 56). Nevertheless, for the
purposes of resolving this motion, the Court assumes that Mitchell was the victim of domestic
abuse — and that the Officer Defendants had reason to believe that she was such a victim.
13
domestic-violence exception to the Fourth Amendment prohibition on warrantless searches.
That is, nothing in Randolph suggests that an officer may enter a residence to accompany a party
who does not have actual or apparent common authority over that residence, at least absent
exigent circumstances. See, e.g., Ryburn v. Huff, — U.S. —, 132 S. Ct. 987, 990 (2012) (stating
that a “reasonable police officer could read [the line of cases culminating in Randolph] to mean
that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable
basis for concluding that there is an imminent threat of violence.” (emphasis added)); see also
United States v. Sikut, 488 F. Supp. 2d 291, 307 (W.D.N.Y. 2007) (requiring exigent
circumstances to justify a police officer’s entrance into a home to protect a victim of domestic
violence); cf. Khalil v. Moore, No. 10-CV-859 (JCH), 2011 WL 5910088, at *3-4 (D. Conn.
Nov. 28, 2011) (upholding a search where a victim of domestic violence had actual authority to
consent).
Even if the dicta in Randolph could be reasonably read more narrowly — to suggest that
an officer may enter a residence, without regard for exigent circumstances, so long as they are
accompanying a domestic abuse victim with actual or apparent authority to consent — it would
not aid the Officer Defendants here. Treating the allegations in the SAC as true, as the Court
must, there is no basis to conclude that Mitchell had actual or apparent authority to consent to the
entry and search of Plaintiff’s apartment. In arguing otherwise, the Officer Defendants point to
the fact that Mitchell possessed keys to the apartment. (Defs.’ Mem. 13). But while the
possession of keys can support a finding of apparent authority in some circumstances, see, e.g.,
Krug v. Cnty. of Rennselaer, No. 04-CV-0640 (TJM) (DRH), 2010 WL 3937319, at *5
(N.D.N.Y. Oct. 5, 2010) (concluding that the possession of keys to a van was sufficient to create
apparent authority to consent to a search of the van), it does not necessarily justify such a
14
finding, see, e.g., Stoner v. California, 376 U.S. 483, 485, 490 (1964) (holding that a hotel
manager cannot consent to a search of the room of a guest even though a manager possessed a
key to that room); Chapman v. United States, 365 U.S. 610 (1961) (holding that a landlord could
not authorize the search of a rented house). Further, in this case, Plaintiff alleges that he
explicitly told the Officer Defendants that Mitchell no longer lived in the apartment and that she
explicitly confirmed that information. (SAC ¶¶ 49, 56; see also id. ¶ 47 (stating that at least one
of the officers present on the night of December 8, 2009, was also present when Mitchell moved
her possessions out of the apartment on October 18, 2009, and therefore knew that she no longer
lived there)). In light of those allegations, it cannot be said that an officer “of reasonable
caution” would have believed that Mitchell “had authority over the premises.” Rodriguez, 497
U.S. at 188 (internal quotation marks omitted); see also Moore, 505 F.3d at 206, 210 (concluding
that a woman who explicitly represented that she did not have actual authority over part of the
residence could not authorize a search, even though she had removed the locks to that part of the
residence).
The Officer Defendants contend that it was reasonable for them to rely on Mitchell’s
earlier statement that she lived in Plaintiff’s apartment and to disregard her later statements,
made in the presence of her abuser, that she no longer lived there. (Defs.’ Mem. 13; Defs.’
Reply Mem. 2-3). But there is nothing in the SAC that would explain Mitchell’s subsequent
recantation of her statement that she lived in the apartment; she was not directly facing Plaintiff
and she was accompanied by several officers, mitigating any concerns she might have had about
her immediate safety. It may well be the case that the Officer Defendants can, in a subsequent
stage of the case, show that it was reasonable for them to rely only on her earlier statement and
discount her later one (or that the Officer Defendants had some other valid basis to believe that
15
they had authority to enter the apartment), but the Court cannot reach that conclusion at this
stage of the case. Accordingly, for the purposes of this motion, the Court must conclude that the
Officer Defendants’ initial entry into Plaintiff’s apartment “constitute[d] a violation of clearly
established law, and no objectively reasonable public official could have thought otherwise.”
Coggins v. Buonora, 776 F.3d 108, 114 (2d Cir. 2015). The Officer Defendants’ motion to
dismiss Plaintiff’s claim based on the initial entry into his apartment is therefore DENIED.
B.
The Search
Next, Plaintiff contends that, once inside his apartment, the Officer Defendants also
violated the Fourth Amendment by conducting a search far in excess of the limited protective
sweep authorized by Maryland v. Buie, 494 U.S. 325 (1990). (Pl.’s Mem. 18-19). In Buie, the
Court concluded that police officers “could, as a precautionary matter and without probable
cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place
of arrest from which an attack could be immediately launched.” Id. at 334. But a Buie search is
appropriate only “where entry was made by police pursuant to lawful process,” United States v.
Hassock, 631 F.3d 79, 85 (2d Cir. 2011) (internal quotation marks omitted), “such as an order
permitting or directing [a police] officer to enter for the purpose of protecting a third party,”
United States v. Miller, 430 F.3d 93, 98 (2d Cir. 2005); see also United States v. Fadul, 16 F.
Supp. 3d 270, 282-86 (S.D.N.Y. 2014) (discussing the Second Circuit’s application of Buie to
warrantless searches performed with an inhabitant’s consent). Moreover, as the Buie Court made
clear, “a ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person may be hiding.” 494 U.S. at 327.
16
Plaintiff’s search claims cannot be dismissed at this stage for two reasons. First, the
Court has already concluded that Plaintiff adequately states a claim of unlawful entry. If the
police officers illegally entered Plaintiff’s apartment (and they had no reason to believe, after
entering the apartment, that Mitchell had authority to consent to a search), it would follow that
they were not in the apartment “pursuant to lawful process” and, thus, that their protective sweep
was invalid. Second, and in any event, Plaintiff alleges that the Officer Defendants
“ransack[ed]” his apartment as part of a “top-to-bottom” search. (SAC ¶ 91). Those allegations
are more than sufficient to state a claim that the Officer Defendants’ search extended beyond the
“cursory visual inspection of those places in which a person may be hiding” permitted by Buie.
494 U.S. at 327. And because “the law regarding protective sweeps was ‘clearly established’
under [Buie and Miller] at the time of the officers’ conduct in this case,” the Court concludes that
the Officer Defendants are not entitled to qualified immunity, at least for the purposes of this
motion. Palmieri v. Kammerer, 690 F. Supp. 2d 34, 47 (D. Conn. 2010).
C.
The Second Entry
Plaintiff also asserts an unlawful entry claim based on the Officer Defendants’ second
entry into his apartment, which occurred while he was detained at the police station. (SAC
¶¶ 109, 113). It is true that in Fernandez v. California, — U.S. —, 134 S. Ct. 1126, 1134 (2014),
the Supreme Court held that Randolph’s requirement of co-tenant consent does not apply where
the co-tenant was not physically present at the time of the search, even when the co-tenant “was
absent only because the police had taken him away.” Nevertheless, Plaintiff’s claim based on
the second entry cannot be dismissed because, as discussed above, the Court cannot say — based
on the current record — that Mitchell had actual or apparent authority to consent to the second
entry. That is, although the holding in Randolph does not apply where, as here, an objecting
17
tenant is absent from the scene (at least where the police were objectively justified in removing
the tenant from the premises, Fernandez, 134 S. Ct. at 1134), the Officer Defendants were not
allowed to enter Plaintiff’s apartment unless they had a warrant or an exception to the warrant
requirement applied. There is no suggestion that the Officer Defendants went and obtained a
warrant. Instead, they contend that the consent exception applies because Mitchell authorized
them to enter the apartment. (Defs.’ Mem. 15-16). But the Court has already determined that —
based on the limited record before the Court — Mitchell lacked actual or apparent authority to
consent to their entry. Thus, the Court concludes that Plaintiff states a valid Fourth Amendment
claim with respect to the Officer Defendants’ second entry into his apartment as well.
D.
Due Process
Plaintiff also alleges that the Officer Defendants permitted Mitchell to deprive him of
property without due process of law by allowing Mitchell into his apartment while he was
detained at the police station, so that they could “confiscate various items of Plaintiff’s personal
property.” (SAC ¶¶ 114, 127; Pl.’s Mem. 20). Not all deprivations of private property by a state
actor, however, give rise to a claim under Section 1983. Specifically, there is no constitutional
violation, and, thus, no Section 1983 liability, if the deprivation was the result of a “random
unauthorized” act and state law provided an adequate post-deprivation remedy. Beechwood
Restorative Care Ctr. v. Leeds, 436 F.3d 147, 156 (2d Cir. 2006) (internal quotation marks
omitted); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that the intentional
deprivation of property is not actionable under Section 1983 if there is a meaningful postdeprivation remedy available under state law). A deprivation is “random [and] unauthorized”
when it is not performed pursuant to “an established state procedure.” Beechwood, 436 F.3d at
156 (internal quotation marks omitted). In addition, even when not sanctioned by an established
18
state procedure, a deprivation performed by a “high-ranking official” with “final authority over
significant matters” will not be considered random and unauthorized. DiBlasio v. Novello, 344
F.3d 292, 302 (2d Cir. 2003) (internal quotation marks omitted).
In this case, Plaintiff contends that the seizure of his property was not “random and
unauthorized” because it was done pursuant to N.Y. C.P.L. § 530.11(6), which provides that
victims of domestic violence must be given notice stating that, as a victim of domestic violence,
“you may request that the officer assist in providing for your safety and that of your children,
including providing information on how to obtain a temporary order of protection. You may also
request that the officer assist you in obtaining your essential personal effects” (SAC ¶¶ 114, 127;
Pl.’s Mem. 20-21). By its terms, however, the statute deals only with notice, and, at most, it
authorizes retrieval of a victim’s own personal effects; it does not authorize a police officer to
allow an alleged victim to take property from his or her alleged abuser. Thus, Plaintiff fails to
identify an established policy pursuant to which the alleged deprivation took place. In addition,
there is no suggestion in the SAC that any of the Officers Defendants — who consist of a
sergeant, a detective, and several officers (Defs.’ Mem. 1) — is a “high-ranking official” with
“final authority over significant matters.” Cf. Fredricks v. City of N.Y., No. 12-CV-3734 (AT),
2014 WL 3875181, at *7 (S.D.N.Y. July 23, 2014) (concluding that the plaintiff had failed to
adequately allege an established state procedure because the complaint lacked any allegations
that the defendant, a captain with the New York City Department of Corrections, “ha[d] any
responsibilities other than merely supervising” subordinate correctional officers). Accordingly,
the alleged deprivation of Plaintiff’s property was, as a matter of law, “random and
unauthorized.” Because state-law actions for conversion, trespass to chattels, or replevin provide
an adequate post-deprivation remedy to recover stolen or converted property, see Stancati v.
19
Cnty. of Nassau, No. 14-CV-2694 (JS) (ARL), 2015 WL 1529859, at *6 (E.D.N.Y. Mar. 31,
2015) (“To the extent that the alleged deprivation was random and unauthorized, New York state
law provides an adequate post-deprivation remedy in the form of a state law cause of action for
conversion, which would fully compensate Plaintiff for her alleged property loss.”); Fredricks,
2014 WL 3875181, at *8 (same), Plaintiff fails to state a claim against the Officer Defendants
under the Due Process Clause. 5
E.
Equal Protection
Plaintiff’s last substantive constitutional claim is brought pursuant to the Equal Protection
Clause of the Fourteenth Amendment. Plaintiff contends that the Officer Defendants violated his
equal protection rights by arresting him for assault, but not arresting Mitchell for possessing the
keys to his apartment, which he maintains were stolen property. (SAC ¶¶ 119-120). He
advances two theories of liability: first, that the Officer Defendants selectively enforced the laws
based on impermissible criteria, and, second, that they treated him as a “class of one.” (Id.
¶ 120). To prevail under the first theory, Plaintiff must show “(1) that . . . , compared with others
similarly situated, [he] was selectively treated; and (2) that such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person.” Freedom Holdings, Inc.
v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004). To prevail under the second, he “must allege that
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a
comparator to a degree that would justify the differential treatment on the basis of a legitimate
5
Even if Plaintiff did state a due process claim, the Officer Defendants would be entitled
to qualified immunity as there appears to be no case within this Circuit that even calls into
question the constitutionality of Section 530.11. See Amore v. Novarro, 624 F.3d 522, 532-34
(2d Cir. 2010) (finding an officer qualifiedly immune for arresting someone pursuant to a statute
that remained on the books, even though the statute had been declared unconstitutional).
20
governmental policy; and (ii) the similarity in circumstances and difference in treatment are
sufficient to exclude the possibility that the defendants acted on the basis of a mistake.” Fahs
Const. Grp., Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (internal quotation marks omitted).
Both theories fail for the same reason: Plaintiff fails to allege that he was treated
differently from someone who was similarly situated to him. For purposes of showing selective
prosecution, some courts have held that a plaintiff must allege an “extremely high degree of
similarity,” while others have held that a plaintiff must allege only that he was similar in all
material respects. See, e.g., Missere v. Gross, 826 F. Supp. 2d 542, 561 (S.D.N.Y. 2011)
(collecting cases). In the class-of-one context, “plaintiffs must show an extremely high degree of
similarity between themselves and the persons to whom they compare themselves.” Id.
Whatever the context, Plaintiff’s allegations fall short, as he was alleged to have assaulted
Mitchell — a charge that any reasonable person would regard as far more serious than Plaintiff’s
claim that Mitchell, a former co-tenant, possessed an unauthorized set of keys to the apartment.
See, e.g., Neilson v. D’Angelis, 409 F.3d 100, 106 (2d Cir. 2005) (holding that two parties were
not similarly situated where they committed different offenses even though reasonable persons
might disagree as to which offense was more serious), overruled on other ground by Appel v.
Spiridon, 531 F.3d 138 (2d Cir. 2008); Wood v. Town of E. Hampton, No. 08-CV-4197 (DRH),
2010 WL 3924847, at *20 (E.D.N.Y. Sept. 30, 2010) (finding that the plaintiff was not similarly
situated to another individual who was alleged to have committed less serious misconduct).
Accordingly, Plaintiff’s equal protection claims must be and are dismissed. 6
6
Even if Plaintiff could show a sufficient similarity for purposes of the selectiveprosecution theory, his claim would fail because — conclusory assertions aside — he does not
plausibly allege that the selective treatment “was based on impermissible considerations such as
race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad
faith intent to injure a person.” Freedom Holdings, 357 F.3d at 234; see Liang v. City of New
21
F.
Conspiracy
Finally, the Court turns to Plaintiff’s claim that the Officer Defendants and Mitchell
conspired to violate his constitutional rights. In order to survive a motion to dismiss on a Section
1983 conspiracy claim, a plaintiff “must allege (1) an agreement between a state actor and a
private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324-25 (2d Cir. 2002). It is well settled, however, that claims “containing only conclusory,
vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot
withstand a motion to dismiss.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (internal
quotation marks omitted). As courts have emphasized, “the need to guard against the use of
conclusory allegations of conspiracy in the context of Section 1983 lawsuits against private
actors is particularly compelling. If a plaintiff could overcome a motion to dismiss simply by
alleging in a conclusory fashion a ‘conspiracy’ between private actors and state actors, these
private actors would be subjected to the substantial cost and disruption incurred by litigants in
the discovery phase of these lawsuits, without any indication whatsoever that the plaintiff has a
plausible conspiracy claim.” Harrison v. New York, — F. Supp. 3d —, No. 14-CV-1296 (JFB)
(AKT), 2015 WL 1413359, at *20 (E.D.N.Y. Mar. 20, 2015) (internal quotation marks omitted)
(citing Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981)).
Although Plaintiff repeatedly asserts that Defendants entered an agreement to violate his
civil rights (e.g., SAC ¶ 59), the SAC is devoid of facts that would render that allegation
York, No. 10-CV-3089 (ENV) (VVP), 2013 WL 5366394, at *11 (E.D.N.Y. Sept. 24, 2013);
John Gil Const., Inc. v. Riverso, 99 F. Supp. 2d 345, 353 (S.D.N.Y. 2000) (dismissing the
plaintiff’s selective enforcement claim because “vague and speculative statements are
insufficient to state a claim”), aff’d, 7 F. App’x 134 (2d Cir. 2001).
22
plausible as opposed to merely conceivable. Twombly, 550 U.S. at 570. Moreover, the
allegations that Plaintiff does make are wholly implausible. For example, Plaintiff contends that
Defendants agreed to deprive him of his constitutional rights after they spoke to Plaintiff by
phone and before they entered Plaintiff’s apartment building. (SAC ¶¶ 57, 59; Defs.’ Mem. 25).
But, as noted, Plaintiff alleges that Defendants had already hung up the phone when they formed
their agreement (SAC ¶¶ 57, 59), and he provides no explanation, much less a plausible
explanation, of how he could have known of an agreement that was reached outside of his
presence. (Id. ¶ 22). In addition, Plaintiff provides no reason or motive for why the Officer
Defendants would conspire with Mitchell. In fact, the SAC alleges that Mitchell told Plaintiff
that she was going to lie to the police in order to get him arrested (id. ¶ 34), a statement that
suggests anything but an expectation on her part that the police officers would agree to violate
Plaintiff’s constitutional rights. Accordingly, Plaintiff’s conspiracy claim must be and is
dismissed.
G.
Claims Against Mitchell
As noted, the present motion is brought only by the Officer Defendants; in fact, Mitchell
has not yet been served, let alone appeared. Nevertheless, Title 28, United States Code, Section
1915(e)(2)(B) provides that a court “shall dismiss” sua sponte a case or claim brought by a pro
se plaintiff if, among other things, the complaint “fails to state a claim upon which relief may be
granted.” Crichlow v. Fischer, No. 12-CV-7774 (NSR), 2015 WL 678725, at *9 (S.D.N.Y. Feb.
17, 2015); see also DiProjetto v. Morris Protective Serv., 306 F. App’x 687, 688 (2d Cir. 2009)
(summary order) (affirming a district court’s decision to sua sponte dismiss the complaint
against a non-moving defendant for failure to state a claim while resolving a separate defendant’s
motion to dismiss). That is warranted here. Given the Court’s conclusion that Plaintiff fails to
23
state a conspiracy claim against the Officer Defendants for conspiring with Mitchell, it
necessarily follows that his claim against Mitchell for conspiring with the Officer Defendants
also fails as a matter of law. See, e.g., Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (en
banc) (noting that, in order to state a claim for conspiracy, a plaintiff must “must provide some
factual basis supporting a meeting of the minds, such that defendants entered into an agreement,
express or tacit, to achieve the unlawful end”). And to the extent that Plaintiff alleges that
Mitchell was “a willful participant in joint activity with the State or its agents,” United States v.
Price, 383 U.S. 787, 794 (1966), he fails to plausibly allege that there was “a close nexus
between the private actor and state actor,” Bender v. City of N.Y., No. 09-CV-3286 (BSJ), 2011
WL 4344203, at *14 (S.D.N.Y. Sept. 14, 2011); see also Johnson v. City of N.Y., 669 F. Supp. 2d
444, 450-51 (S.D.N.Y. 2009) (holding that, to state a joint-actor claim, “a plaintiff must allege
that the private entity and state actors carried out a deliberate, previously agreed upon plan or
that their activity constituted a conspiracy or meeting of the minds.” (internal quotation marks
omitted)). That is, just as the SAC fails to allege a conspiracy in anything but conclusory
fashion, it fails to allege facts from which the Court could plausibly draw the inference “that
[Mitchell] and the [Officer] Defendants had a plan or prearrangement to violate Plaintiff’s
constitutional rights.” Lienau v. Garcia, No. 12-CV-6572 (ER), 2013 WL 6697834, at *7
(S.D.N.Y. Dec. 19, 2013). Accordingly, the Court concludes sua sponte that all claims against
Mitchell fail as a matter of law.
CONCLUSION
For the reasons stated above, the Officer Defendants’ motion to dismiss is GRANTED in
part and DENIED in part. Specifically, with respect to the Officer Defendants, Plaintiff’s equal
protection, due process, and conspiracy claims are dismissed, while his claims under the Fourth
24
Amendment — for the allegedly unlawful entries into his apartment and the allegedly unlawful
search — survive. (Additionally, as noted, the Officer Defendants did not move to dismiss
Plaintiff’s excessive-force claim.) Further, the Court sua sponte dismisses the conspiracy and
due process claims against Mitchell. As those are Plaintiff’s only claims against Mitchell, the
Clerk of the Court is directed to terminate her as a party to this litigation. The Clerk is also
directed to terminate Docket No. 96 and to mail Plaintiff a copy of this Opinion and Order.
SO ORDERED.
Date: June 8, 2015
New York, New York
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