Waller et al v. Smith et al
Filing
28
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 18 Motion to Dismiss; DIRECTING the Clerk of the Court to CORRECT the caption of this case to substitute "Ibrahim Abdul-Wahed" for "Akim-Waheed. Signed by William M. Skretny, United States District Judge on 8/20/2019. (MEAL)- CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ZACK WALLER and SOMALY KHAM,
Plaintiffs,
v.
DECISION AND ORDER
17-CV-212(WMS)
ALLEN SMITH, City of Buffalo Police Officer,
JEFFERY RINALDO, City of Buffalo Police
Lieutenant, OBED CASILLAS, City of Buffalo
Police Officer, AKIM WAHEED1 City of Buffalo
Police Officer,
Defendants.
I. INTRODUCTION
Plaintiffs Zack Waller and Somaly Kham bring this action under 42 U.S.C. § 1983,
alleging that the Defendants, all of whom are police officers employed of the City of
Buffalo, violated their Fourth Amendment right to be free from unreasonable searches
and seizures when the officers searched their home without a warrant, resulting in the
seizure of a firearm and, ultimately, the conviction of Plaintiff Waller. Presently before
this Court is Defendants’ motion to dismiss Plaintiffs’ Complaint pursuant to the doctrine
articulated by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364,
129 L. Ed. 2d 383 (1994). (Docket No. 18). For the following reasons, Defendants’
motion is granted in part and denied in part.
1 Defendant “Ibrahim Abdul-Wahed” is misidentified in the complaint and caption as “Akim Waheed.” (See
Defendants’ Answer, Docket No. 5 ¶ 1.) The Clerk will be directed to correct the caption.
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II. BACKGROUND
The following facts, drawn from Plaintiffs’ Complaint, are assumed true for
purposes of resolving Defendants’ motion to dismiss.
See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (“[A] judge ruling
on a defendant's motion to dismiss a complaint must accept as true all of the factual
allegations contained in the complaint.” (internal quotation marks omitted)).
At all times relevant, Plaintiffs Zack Waller and Somaly Kham resided together at
1970 Delaware Avenue, Apt. 2, Buffalo, NY 14216 (“the Residence”).
(Complaint,
Docket No.1, ¶¶2-4). On March 7, 2014, at approximately 7:00 p.m., Plaintiff Waller was
attempting to recover his belongings from a vehicle registered to a person named Lakeya
Johnson but “financed and paid for” by Plaintiff Waller. (Id. ¶ 18). Johnson attempted
to stop Plaintiff Waller from retrieving his belongings; in doing so, Johnson closed the
door on Plaintiff Waller’s arm and “took ahold of” him. (Id. ¶¶ 18-19). Plaintiff Waller
attempted to get Johnson off of him, when Johnson “told a bystander to call the police.”
(Id. ¶ 19).
Defendant Officers arrived at the scene and then went to the residence of Plaintiffs
Waller and Kham. (Id. ¶ 20). Plaintiff Kham, who was pregnant at the time, was at
home getting ready for bed, and her son was asleep in the living room. (Id.). At around
8:30 pm, six to seven Buffalo police officers knocked on Plaintiffs’ apartment door, then
stood at the doorway with guns drawn. (Id. ¶ 21). Defendant Officer Rinaldo asked
Plaintiff Kham to enter the apartment; she “unequivocally refused Defendants” entry.
(Id.). Defendants Casillas and Wahed then “manhandled Plaintiff Kham by extracting
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her from the apartment” and entered the residence “without a warrant, consent, or any
exigent circumstances.” (Id.). Plaintiff Kham told the Defendant Officers that Plaintiff
Waller was not home and asked the officers “numerous times” to leave the apartment.
(Id.).
While searching Plaintiffs’ bedroom, Defendant Officer Casillas retrieved “a ten
bullet magazine inside a closed closet on one of the top shelves” and an Olympic Arms
firearm which was “behind a dresser/cubicle, and pressed up against the wall,
inconspicuous and indiscernible to the naked eye.”
(Id. ¶ 22).
Defendant Officer
Casillas moved the dresser to locate the firearm. (Id.). Plaintiff Kham contacted and
told Plaintiff Waller that the police were searching for him, had found a gun, and that he
needed to come home. (Id. ¶ 24). Plaintiff Waller was thereafter apprehended and
taken into custody. (Id.). Both Plaintiffs allege that this search was in violation of the
Fourth Amendment. (Id. ¶¶ 28-42).
Plaintiff Waller was ultimately arrested and indicted in Erie County with one count
of Criminal Possession of a Weapon in the Second Degree in violation of New York Penal
Law §§ 265.03(3) and 265.02(1) and with another charge not relevant to the instant
matter.
(Docket No. 18-2, ¶¶ 3-4).
A suppression hearing was held before the
Honorable Deborah A. Haendiges, Justice of the Supreme Court, Erie County, over the
dates of January 5, March 4, and March 6, 2015, ostensibly resulting in the admission of
the firearm seized during the search (the record does not reflect the result of the
suppression hearing).
(Id. ¶ 6; Docket Nos. 18-5, 18-6).
Plaintiff Waller ultimately
pleaded guilty to one count of Attempted Criminal Possession of a Weapon in the Second
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Degree in violation of New York Penal Law §§ 110, 265.03(3)—again, ostensibly due to
the fact that the firearm seized during the search was deemed admissible. (Docket Nos.
18-2, ¶ 7; 18-8).
Plaintiffs filed the instant action on March 7, 2017. (Docket No. 1). Defendants
filed an Answer to the Complaint on April 10, 2017.
(Docket No. 5).
The parties
subsequently proceeded to discovery with the magistrate judge (Docket Nos. 8, 11, 15,
17), and unsuccessfully attempted mediation (Docket Nos. 13-14). On March 28, 2018,
Defendants filed the instant motion to dismiss.2 (Docket No. 18). Plaintiffs opposed the
motion on April 30, 2018. (Docket No. 20). Defendants filed a reply on May 15, 2018.
(Docket No. 21).
Defendants move to dismiss the Complaint for failure state a claim for relief based
on (1) unlawful entry into, and search of, Plaintiffs’ home based on the Supreme Court’s
decision in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994);
(2) false arrest; (3) malicious prosecution of Plaintiff Waller; (4) municipal liability; and (5)
any other possible state law claims. (Docket No. 18-1 at 7-18). Plaintiffs respond that
they only assert a cause of action for unlawful entry into, and search of, Plaintiffs’ home.
(Docket No. 20 at 2). Accordingly, the only issue for the Court to address is whether
Plaintiffs’ Fourth Amendment claims are barred by Heck.
Defendants move to dismiss pursuant to Rules “12(b)(6), 12(c), and/or 56.” (Docket No. 18-1 at 4).
The docket entry styles the motion as one for summary judgment. In substance, however, Defendants
move to dismiss all claims in the Complaint for failure to state a claim. (See id. at 7-20).
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III. DISCUSSION
A.
Rule 12(b)(6) Standard
Where, as here, a Rule 12(b)(6) motion is filed “after a defendant answers the
complaint,” it “should be treated as a motion for judgment on the pleadings” pursuant to
Rule 12(c). Wojtczak v. Safeco Prop. & Cas. Ins. Companies, 669 F. Supp. 2d 305, 311
(W.D.N.Y. 2009); Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d
Cir. 2001) (holding that “a motion to dismiss for failure to state a claim (or one of the other
non-waivable defenses under Rule 12(h)) that is styled as arising under Rule 12(b) but is
filed after the close of pleadings, should be construed by the district court as a motion for
judgment on the pleadings under Rule 12(c)”) (footnotes omitted).
“The standard for granting a Rule 12(c) motion for judgment on the pleadings is
identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel, 259 F.3d at
126 (collecting cases). “In both postures, the district court must accept all allegations in
the complaint as true and draw all inferences in the non-moving party’s favor.” Id. “To
survive a Rule 12(c) motion, [the] ‘complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face.’” Johnson v.
Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). “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.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937.
Legal conclusions, however, are not afforded the same presumption of truthfulness. Id.
(the tenet that a court must accept as true all factual allegations contained in a complaint
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is inapplicable to legal conclusions).
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. Id. (quoting
Twombly, 550 U.S. at 570, 127 S. Ct. 1955).
Labels, conclusions, or “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555,
127 S. Ct. 1955. Facial plausibility exists when the facts alleged allow for a reasonable
inference that the defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678,
129 S. Ct. 1937. The plausibility standard is not, however, a probability requirement: the
pleading must show, not merely allege, that the pleader is entitled to relief. Twombly,
550 U.S. at 556, 127 S. Ct. 1955; Fed. R. Civ. P. 8 (a)(2). Well-pleaded allegations in
the complaint must nudge the claim “across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570, 127 S. Ct. 1955.
B.
Plaintiffs’ Fourth Amendment Claim
“To maintain a cause of action under 42 U.S.C. § 1983, a plaintiff must show that
the defendant, acting under color of state law, denied the plaintiff a constitutional or
federal statutory right.” Forney v. Forney, 96 F. Supp. 3d 7, 11 (E.D.N.Y. 2015) (citing
42 U.S.C. § 1983). The Fourth Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const., amend. IV.
Plaintiffs allege that Defendants violated their Fourth Amendment rights by
entering their home without a warrant and under circumstances that did not present
exceptions to the warrant requirement. (Docket No. 1, ¶¶ 28-42). Defendants move to
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dismiss both Plaintiffs’ Fourth Amendment claims as barred by Heck v. Humphrey, 512
U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) due to Plaintiff Waller’s ultimate
conviction for attempted criminal possession of a weapon in the second degree. (Docket
No. 18-1 at 16). For the reasons discussed below, the Court will grant the motion to
dismiss with respect to Plaintiff Waller but will deny it as to Plaintiff Kham.
1. Plaintiff Waller
In Heck, the Supreme Court held that a plaintiff may not bring a Section 1983 suit
for damages that “would necessarily imply the invalidity of [the plaintiff’s] conviction or
sentence,” unless the plaintiff can show that the conviction or sentence has been
“reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” Id. at 487, 114 S. Ct. 2364. As Heck’s civil claim
relied on his innocence and challenged the validity of the conviction that secured his
incarceration, it met none of these criteria; so the Court determined he had no cause of
action under Section 1983. “To preserve ‘finality and consistency,’ the [Heck] Court
applied ‘the hoary principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments . . . to § 1983 damages actions
that necessarily require the plaintiff to prove the unlawfulness of his conviction or
confinement, just as it has always applied to actions for malicious prosecution.’”
Poventud v. City of New York, 750 F.3d 121, 130 (2d Cir. 2014) (quoting Heck, 512 U.S.
at 485-86, 114 S. Ct. 2364).
In essence, Heck stands for the proposition that civil
lawsuits may not be used to collaterally attack criminal convictions.
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Thus, when a party seeks damages in a Section 1983 suit, “the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Heck, 512 at 487, 114 S. Ct. 2364.
As relevant here, Heck articulated the following caveat with respect to Section
1983 claims premised on unreasonable searches and seizures:
a suit for damages attributable to an allegedly unreasonable search may lie
even if the challenged search produced evidence that was introduced in a
state criminal trial resulting in the § 1983 plaintiff’s still-outstanding
conviction. Because of doctrines like independent source and inevitable
discovery, and especially harmless error, such a § 1983 action, even if
successful, would not necessarily imply that the plaintiff's conviction was
unlawful.
Heck, 512 U.S. at 487, n.7, 114 S. Ct. 2364 (internal citations omitted). Put another way,
“because the admission of unlawfully seized evidence does not always require a
conviction to be set aside, a conclusion that evidence was unlawfully seized does not
require the further conclusion that the plaintiff’s conviction was invalid.” McCord v. City
of New York, No. 13–CV–2008, 2014 WL 2567108, at *3 (AJN) (S.D.N.Y. June 6,
2014); see also Williams v. Ontario Cty. Sheriff’s Dep’t, 662 F. Supp. 2d 321, 329
(W.D.N.Y. 2009) (“[A] federal court’s finding of a Fourth Amendment violation would not
necessarily imply that a prior state conviction was unlawful if, despite the constitutional
violation, the subject evidence was admissible based on such doctrines as independent
source, inevitable discovery, and harmless error.”). Courts applying the Heck doctrine
in circumstances such as this, therefore, must assess “whether a [person’s] victory in in
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a § 1983 suit would necessarily demonstrate the invalidity of his conviction or
sentence . . . .” McKithen v. Brown, 481 F.3d 89, 102 (2d Cir. 2007) (emphasis in
original). Accordingly, the Court must determine whether Plaintiffs’ success on their
Section 1983 claim would necessarily demonstrate the invalidity of Plaintiff Waller’s
conviction.
While it is unclear from the record the basis on which the firearm recovered during
the search was deemed admissible and resulted in Plaintiff Waller’s guilty plea to a
weapons possession charge, district courts in this Circuit have frequently found that
Section 1983 actions targeting a single episode involving a single search, if successful,
would necessarily demonstrate the invalidity of a conviction based on that search. In
support of this conclusion, district courts have observed that “the doctrines of independent
source, inevitable discovery, and harmless error discussed in Heck are not applicable,
[such as] where . . . the entire evidentiary basis for the charged offense derive[d] from a
single episode involving a single search.” Clayton v. City of Poughkeepsie, No. 06–CV–
4881 (SCR), 2007 WL 2154196, at *4 (S.D.N.Y. June 21, 2007) (dismissing unlawful
search claims as barred by Heck where entire criminal case turned on motion to suppress
evidence from one search and plaintiff pled guilty immediately after the motion to
suppress was denied); Black v. Blackman, No. 11–CV–2372 (BMC)(ALC), 2011 WL
6019394, at *2 (E.D.N.Y. 2011) (where conviction hinged directly on the weapons
procured during search, and motion to suppress was denied, an award of damages for
an unlawful search would necessarily imply the invalidity of state court conviction).
Here, it appears from the facts pleaded in the Complaint that Plaintiff Waller’s
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conviction of attempted criminal possession of a weapon in the second degree in violation
of NY Penal Law §§ 110, 265.03-3 stems solely from the evidence obtained in the March
7, 2014 search that is the subject of the instant Complaint—a single episode involving a
single search. See El v. City of New York, No. 14-CV-9055-GHW, 2015 WL 1873099,
at *4 (S.D.N.Y. Apr. 23, 2015) (“[D]istrict Courts have frequently found that Section 1983
actions targeting a single episode involving a single search, necessarily demonstrate the
invalidity of a conviction based on that search.”); Black v. Blackmun, No. 11-CV-2372,
2011 WL 6019394, at *2 (E.D.N.Y. Dec. 1, 2011) (“Because [plaintiff's] conviction [for
weapons possession] hinged directly on the weapons procured during [an]
allegedly unlawful search, an award of damages would necessarily imply the invalidity of
his state court conviction.”). Under these circumstances, having pleaded guilty to those
charges, success on Plaintiff Waller’s Section 1983 claim that the search was unlawful
would necessarily imply the invalidity of his conviction. Cf. Monroe v. Gould, 16 CV
2885(VB), 2019 WL 1206700, at *3 (S.D.N.Y. Mar. 14, 2019) (barring under Heck
plaintiff’s Section 1983 claim based on a single vehicle search yielding cocaine where
plaintiff was ultimately convicted of criminal possession of a controlled substance).
Accordingly, Plaintiff Waller’s claim under Section 1983 that the search of his home
violated his Fourth Amendment rights is barred under Heck and must be dismissed.3
To recover compensatory damages, a civil rights plaintiff “must prove not only that the search was
unlawful, but that it caused him actual, compensable injury, which . . . does not encompass the ‘injury’ of
being convicted and imprisoned (until his conviction has been overturned).” Heck, 512 U.S. at 487
n.7, 114 S. Ct. 2364 (citation omitted). Plaintiff Waller also fails to allege that the search of his home
“caused him actual, compensable injury” other than “the ‘injury’ of being convicted and imprisoned”—which
is not cognizable. Id.
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2. Plaintiff Kham
Defendants also move to dismiss Plaintiff Kham’s claim as barred by Heck, arguing
that any such successful action would necessarily imply the invalidity of Plaintiff Waller’s
conviction. (Docket No. 18-1 at 18). Defendants cite no authority for the proposition
that Heck bars Section 1983 claims brought by third parties.
Courts have sparsely
discussed the applicability of Heck to third parties, and no courts within the Second Circuit
have squarely addressed this issue. At least one circuit has explicitly held that “Heck
does not apply to third-party § 1983 claims,” Hayward v. Cleveland Clinic Found., 759
F.3d 601, 616 (6th Cir. 2014), and one has endorsed this approach in an unpublished
opinion, see Eberhardiner v. City of York, No. 18-3310, 2019 WL 3544021, at *3 n.2 (3d
Cir. Aug. 5, 2019) (unpublished) (“Heck concerned the relationship between a prisoner’s
criminal conviction and his own § 1983 suit, and it has been applied to bar a third party’s §
1983 suit only where the convict was the third party’s accomplice.”) (internal citation
omitted) (emphasis in original).
Heck itself held that where “a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487, 114 S. Ct. at
2372 (emphasis added). A plain reading of Heck suggests that courts are only required
to consider whether a successful Section 1983 action brought by a convicted plaintiff
would imply the invalidity of the convicted plaintiff’s conviction. The Heck Court “was
concerned that § 1983 and the federal habeas statute were on a collision course,” but
“[b]ecause such a concern does not extend to the civil rights claims of third parties,”
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Plaintiff Kham’s claim is not barred by Heck. Hayward, 759 F.3d at 616.
In Rodriguez v. City of Salinas, the Northern District of California confronted the
same proposition that Defendants proffer here. In that case, a warrantless search of
plaintiff’s residence resulted in the conviction of a third party, whose weapon was found
at plaintiff’s residence during the search. Rodriguez v. City of Salinas, No. 09-CV-02454LHK, 2011 WL 62500, at *1-2 (N.D. Cal. Jan. 7, 2011). Plaintiff, too, was charged, but
the charges against plaintiff were dismissed. Id. at *2. Plaintiff subsequently brought a
Section 1983 action asserting, among other claims, that the search violated the Fourth
Amendment. Id. Defendants moved to dismiss plaintiff’s complaint, in part on grounds
that the claim was precluded by Heck, arguing that success on the plaintiff’s Fourth
Amendment claim would undermine the third party’s conviction. Id. at *3.
In rejecting Defendants’ argument, the court observed that Heck involved “‘the
intersection of the two most fertile sources of federal-court prisoner litigation’—the habeas
corpus statute and Section 1983.” Id. at * 4 (quoting Heck, 512 U.S. at 480). It further
observed that the Heck doctrine focused on ensuring that prisoners do not circumvent
habeas remedies, and that, as here, “Defendants cite no authority for the proposition
that Heck bars a Section 1983 action brought by an individual who has not been convicted
of any crime simply because his constitutional claims may have some bearing on the
validity of a third party’s conviction.” Id. The court continued: “Plaintiff is not a state
prisoner, has not been convicted of any crimes, and does not seek to challenge the
legality of his conviction. No habeas remedy is, or ever was, available to him as an
alternative remedy for the constitutional violations alleged. Accordingly, the law and
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reasoning of Heck do not apply.” Id.
This case is materially similar to the Rodriguez case with respect to Plaintiff Kham,
and the Court is persuaded by the court’s reasoning in that case: Plaintiff Kham is not a
state prisoner, has not been convicted of any crimes, and therefore cannot be seeking to
challenge the legality of a conviction through a habeas remedy (because it is not available
to her). Defendants here nonetheless argue that Plaintiff Kham’s allegations cannot be
accepted because if so, “the firearm in question would have been suppressed and
inadmissible at trial”; in other words, Plaintiff Kham’s Fourth Amendment allegations
cannot stand without assuming the invalidity of Plaintiff Waller’s conviction. (Docket No.
18-1 at 18). However, it is well established that “Fourth Amendment rights are personal
rights which, like some other constitutional rights, may not be vicariously asserted,” Rakas
v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978) (internal
citation and quotation marks omitted), and it is axiomatic that “the Fourth Amendment
protects people, not places,” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19
L. Ed. 2d 576 (1967). Put differently, a single search may be lawful as to one person,
but unlawful as to another.
Accordingly, the Court will deny Defendants’ motion to
dismiss Plaintiff Kham’s claims as barred by Heck.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff Waller’s claim is
GRANTED, and their motion to dismiss Plaintiff Kham’s claim is DENIED.
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V. ORDERS
IT HEREBY IS ORDERED, that the Motion to Dismiss (Docket No. 18) is
GRANTED in part and DENIED in part.
FURTHER, that the Clerk of the Court shall CORRECT the caption of this case to
substitute “Ibrahim Abdul-Wahed” for “Akim-Waheed”.
SO ORDERED.
Dated: August 20, 2019
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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