Harmon v. Dunlap
Filing
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ORDER granting 9 Motion to Dismiss for Failure to State a Claim and granting leave to amend the complaint, Amended Complaint shall be filed within 30 days; failure to file the Amended Complaint will result in dismissal of all claims with prejudice. Signed by Hon. William K. Sessions III on 3/4/20. (SG)
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
WILLETTA C. HARMON,
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Plaintiff,
v.
ANDRE R. DUNLAP,
Defendant.
Case No.: 1:18-cv-80
OPINION AND ORDER
Plaintiff Willetta Harmon brings this civil rights action
against New York State Police Investigator Andre Dunlap pursuant
to 42 U.S.C. § 1983. Harmon claims that Dunlap violated her
Fourth Amendment rights first by ordering her to change her
clothes in front of him, and then by conducting a pat-down search
after she had changed. Now before the Court is Dunlap’s motion to
dismiss the Complaint for failure to state a claim upon which
relief can be granted. For the reasons set forth below, the
motion to dismiss is granted and Harmon may file an Amended
Complaint within 30 days.
Factual Background
On the morning of January 29, 2015, Harmon and her four
children were at home preparing breakfast. ECF No. 1, at ¶ 12. At
approximately 9:15 a.m., Dunlap and another New York State Police
Officer arrived at Harmon’s residence and knocked on her door.
Id. at ¶¶ 12-13. When Harmon opened the door, one of the officers
presented his badge and asked her if she would answer a few
questions. Id. at ¶ 13. Harmon allowed the officers to enter her
home. Id.
Dunlap informed Harmon that he had been surveilling her and
accused her of running a brothel out of the home. Id. at ¶ 15. He
also accused her of using and selling drugs. Id. at ¶ 14. Dunlap
further questioned Harmon about her relationship with Keila
Williams—an acquaintance of Harmon’s who had previously lived
with her. Id. at ¶ 16. Following this line of questioning, Dunlap
asked Harmon if someone could watch her children because the
officers had a warrant for her arrest. Id. Harmon responded that
she did not know anyone who could watch her kids. Id. at ¶ 18.
Dunlap informed Harmon that she would be gone for a few hours and
ordered her to change her clothes. Id. at ¶ 19. Harmon was
wearing a nightgown at the time. Id.
Dunlap then followed Harmon to her bedroom upstairs while
the other officer remained by the front door. Id. Once he and
Harmon were both in the bedroom, Dunlap shut the door behind him.
Id. at ¶ 20. Harmon asked Dunlap to turn around while she changed
clothes, but he refused. Id. Dunlap then watched as Harmon got
completely naked and put on new clothes. Id. They both then
proceeded downstairs and the officers placed Harmon in handcuffs.
Id. at ¶ 21.
After Harmon continued to raise concerns about her children,
Dunlap asked a neighbor to watch Harmon’s kids. Id. at ¶¶ 22-23.
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Harmon’s neighbor Ms. June refused. Id. at ¶ 23. Dunlap then
conducted a pat-down search of Harmon while Ms. June witnessed
the search. Id. at ¶ 24. Harmon alleges that she felt violated by
the search, as Dunlap “gave extra attention to her breasts,
buttocks, and the area between her legs.” Id. at ¶ 25. She
further alleges that she “felt as though she was being groped
rather than having a search performed on her.” Id.
Following this search, the officers took Harmon to Erie
County Holding Center. Id. at ¶ 27. During the ride there, Dunlap
informed Harmon that she was under arrest for Grand Larceny. Id.
That charge was later dismissed. Id. Harmon claims that Dunlap
caused her severe emotional distress by forcing her to change in
front of him and then conducting an unnecessary search after
watching her change. Id. at ¶ 28.
Standard of Review
When reviewing a Rule 12(b)(6) motion to dismiss, courts
must determine whether the complaint pleads “sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be
facially plausible, a complaint must contain “well-pleaded facts”
that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678-79. A
complaint “does not need detailed factual allegations” but
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“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.
In determining the plausibility of a claim, courts assume
that all factual allegations in the complaint are true. Iqbal,
556 U.S. at 678. Moreover, courts view the facts in the light
most favorable to the plaintiff, drawing all inferences in its
favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir.
2013). However, “pleadings that . . . are no more than
conclusions are not entitled to the assumption of truth.” Iqbal,
556 U.S. at 679.
Discussion
I.
Harmon’s First Cause of Action
Harmon first alleges that Dunlap violated her constitutional
right to bodily privacy by ordering her to change clothes and
refusing to divert his gaze. ECF No. 1, at ¶ 32. Harmon argues
that Dunlap “manufactured circumstances so that he would be able
to see [her] naked body for an extended period of time.” Id. In
her view, Dunlap’s actions constituted an unreasonable search
that infringed on her Fourth Amendment rights.
Dunlap claims
that he is shielded by qualified immunity.
Qualified immunity protects government officials from money
damages “unless a plaintiff pleads facts showing (1) that the
official violated a statutory or constitutional right, and (2)
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that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To qualify as clearly established, a “right’s contours [must be]
sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating
it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014).
Accordingly, qualified immunity “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ganek v.
Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (quoting al-Kidd, 563
U.S. at 743).
Here, the analysis begins with Dunlap requiring Harmon to
change out of her nightgown and into appropriate clothing.
Second Circuit precedent imposes a duty on officers to ensure
that arrestees are properly clothed before removing them from
their residence. See United States v. Di Stefano, 555 F.2d 1094,
1101 (2d Cir. 1977)(“The officers had a duty to find clothing for
[Defendant] to wear or to permit her to do so.”); United States
v. Titus, 445 F.2d 577, 579 (2d Cir. 1971) (“[The agents] were
bound to find some clothing for [Defendant]"); United States v.
Rudaj, 390 F. Supp. 2d 395, 401 (S.D.N.Y. 2005) (“The Second
Circuit has long recognized that an arresting officer has a duty
to ensure that an arrestee is sufficiently dressed before
removing her from her residence.”). Dunlap was also compelled to
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“maintain a watchful eye on” Harmon to ensure that she did not
“destroy evidence or procure a weapon.” Rudaj, 390 F. Supp. 2d at
401 (citing Di Stefano, 555 F.2d at 1101); see also Washington v.
Chrisman, 455 U.S. 1, 6 (1982) (“The officer had a right to
remain literally at [the arrestee’s] elbow at all times . . .
.”).
Harmon relies in part upon cases that establish a prisoner’s
right to bodily privacy, “which includes freedom from ‘the
involuntary viewing of private parts of the body by guards of the
opposite sex.’”
ECF No. 10, at 11 (quoting Forts v. Ward, 621
F.2d 1210, 1217 (2d Cir. 1980)). She argues that arrestees have,
at a minimum, the same right to privacy as inmates, and concludes
that because “there [was] no indication that the officers were in
a hurry,” they should have requested a female officer report to
the scene to accompany Harmon while she changed. Id. at 6.
While Harmon’s arguments may have merit in terms of both
common sense and decency, they do not establish a violation of a
clearly established right. In fact, several courts have dismissed
claims involving prison guards viewing the naked bodies of
prisoners of the opposite sex.
See, e.g. Little v. City of New
York, 13 CV 3813 (JGK), 2014 WL 4783006 (S.D.N.Y. Sept. 25,
2014); Baker v. Welch, No. 03 Civ. 2267, 2013 WL 229010521
(S.D.N.Y. Dec. 10, 2013).
invasive strip searches.
Some of these cases even involved
See, e.g., Holland v. City of New York,
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197 F. Supp. 3d 529 (S.D.N.Y. 2016) (holding that even though
strip searches performed by the opposite sex are “subject to
higher scrutiny,” they are generally constitutional if they
consist of an “incidental and brief viewing of a naked
prisoner”).
Moreover, none of the prisoners’ rights cases cited
by Harmon would have put Dunlap on notice that his actions were
unlawful.
The Supreme Court has repeatedly warned lower courts “not to
define clearly established law at a high level of generality.”
See, e.g., Mullenix v. Kuna, 136 S. Ct. 305, 308 (2015).
In this
case, Harmon relies upon case law that does not address the
situation found here: a suspect needing to change into
appropriate clothing prior to transport by law enforcement
agents.
Consequently, the case law does not establish that has
“it would be clear to a reasonable officer that [Dunlap’s]
conduct was unlawful in the situation he confronted.” Saucier v.
Katz, 533 U.S. 194, 202 (2001).
Harmon’s first cause of action
is therefore dismissed on the basis of qualified immunity.
II.
Harmon’s Second Cause of Action
Harmon’s second cause of action challenges the pat-down
search Dunlap performed after Harmon had changed her clothes. She
asserts that Dunlap knew she did not have a weapon or evidence of
a crime on her person because he had “recently observed [her] get
naked and then put on clothes.” ECF No. 1, at ¶ 48. Thus, she
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claims Dunlap had “no justification to conduct said search,”
arguing that it did not fall under the search-incident-to-arrest
exception because “[n]either the interest of officer safety or
evidence preservation were present.” Id. at ¶ 41. She contends
that the pat-down search violated her Fourth Amendment rights
because the lack of justification rendered the search
unreasonable. Id. at ¶ 40. Like Harmon’s first cause of action,
qualified immunity shields Dunlap from this claim.
In United States v. Robinson, the Supreme Court held that a
“custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no
additional justification.” 414 U.S. 218, 235 (1973). The Court
explicitly rejected the notion that courts must conduct
case-by-case adjudications to determine “whether or not there was
present one of the reasons supporting the authority for a search
of the person incident to a lawful arrest.” Id. More recently,
the Supreme Court reaffirmed that “searches of a person incident
to arrest . . . are reasonable regardless of ‘the probability . .
. that weapons or evidence would in fact be found.’” Riley v.
California, 134 S. Ct. 2473, 2485 (2014) (quoting Robinson, 414
U.S. at 235).
Harmon does not challenge the lawfulness of her arrest and
admits that the officers acted pursuant to a valid arrest
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warrant. She also does not dispute the reasonableness of a search
incident to a lawful arrest. Rather, she argues that the
exception allows for only a single search and any subsequent
searches require additional justification. In her view, Dunlap
had already conducted “a visual strip search” by watching her
change.
Harmon’s arguments are unavailing. As an initial matter, she
has not established that Dunlap watching her change into
appropriate clothing constitutes a search for Fourth Amendment
purposes. In addition, the cases cited above did not frame the
officers’ actions as searches. Similarly, Harmon does not cite
any authority supporting the proposition that the
search-incident-to-arrest exception permits only one search of
the arrestee. In fact, she acknowledges that “there is no case
which outright states that an officer can only search an
individual incident to arrest a single time.” ECF 10, at 6.
Instead, she relies on a tenuous argument regarding the wording
of the cases that have addressed the exception, emphasizing that
courts have phrased their decisions in the singular. See
Robinson, 414 U.S. at 235 (“[A] search incident to the arrest
requires no additional justification.”); United States v. Diaz,
854 F.3d 197, 209 (2d Cir. 2017) (“The authority to conduct a
full field search as incident to arrest [is] a bright-line
rule.”); but see Riley, 134 S. Ct. at 2485 (“[S]earches of a
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person incident to arrest . . . are reasonable.”).
In contrast, Dunlap points to multiple cases where courts
have found that the search-incident-to-arrest exception covers
more than one search. United States v. Scott, No. 09 CR 331(HB),
2009 WL 4975269, at *7 (S.D.N.Y. June 8, 2009) (“[The officer’s]
second search of [the arrestee’s] person at . . . headquarters
was a permissible search incident to arrest.”) (citing United
States v. Edwards, 415 U.S. 800 (1974)); see also Sroka v.
Welcher, 13-cv-00190-RJA-HKS, Dkt. No. 28 (W.D.N.Y. Jan. 20,
2016) (Report and Recommendation finding that the
search-incident-to-arrest exception covered three frisks of an
arrestee’s legs).
Consequently, while Dunlap’s actions do not
appear to have violated Harmon’s constitutional rights, clearly
established law would not have put him on notice that his actions
were unlawful.
Moreover, the facts alleged in the Complaint do not support
a plausible claim. The parties agree that Dunlap did not search
Harmon’s clothes before she put them on. Thus, the “visual strip
search” did not dissipate the officer’s interest in ensuring his
safety.
See, e.g., United States v. McCargo, 464 F.3d 192, 201
(2d Cir. 2006) (“[P]olice officers should be certain before
transporting members of the public . . . that none of them is
armed” and “we think the most reasonable, and least intrusive,
solution is to permit a pat-down for weapons.”). Dunlap was
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therefore justified in performing a pat-down search of Harmon’s
person, and qualified immunity bars the second cause of action.
III.
Leave to Amend
Federal Rule of Civil Procedure Rule 15(a)(2) states that
“[t]he court should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. R. 15(a)(2). Courts may deny leave to
amend when amendment would be futile. Tocker v. Phillip Morris
Companies, Inc., 470 F.3d 481, 491 (2d Cir. 2006).
Harmon may have a colorable claim that the manner in which
Dunlap conducted the pat-down search violated her constitutional
rights. Her Complaint states that “Dunlap gave extra attention to
her breasts, buttocks, and the area in between her legs,” and
that she “felt as though she was being groped rather than having
a search performed on her.”
ECF No. 1 at ¶ 25.
Dunlap addresses
this potential cause of action in his motion to dismiss.
In
doing so, he concedes that “additional evidence of improper
conduct during a search” may make the search unlawful. ECF 9, at
12.
The Court will therefore allow Harmon leave to amend her
Complaint to develop this cause of action.
Conclusion
For the reasons set forth above, Dunlap’s motion to dismiss
(ECF No. 9) is granted, and Harmon may file an Amended Complaint
within 30 days.
Failure to timely file an Amended Complaint will
result in the dismissal of all claims with prejudice.
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DATED at Burlington, Vermont, this 4th day of March, 2020.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge
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