Davis Payne v. Galie et al

Filing 72

-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part and denying in part 68 Motion to Dismiss for Failure to State a Claim (it is granted to the extent that the Niagara Falls Police Department is terminated as a defendant in this action and the Police Defendants are denied qualified immunity; granting in its entirety 69 Motion to Dismiss for Failure to State a Claim and the amended complaint is dismissed with prejudice as against the State of New York, Dorothy Jones, and Robert Lee; the plaintiff is allowed to file a supplemental affidavit or declaration alleging facts that plausibly support her assertion that she had "overnight guest" status at the apartment where she was arrested; plaintiff must file the supplemental aff idavit or declaration with thirty (30) days of this Decision and Order; the failure to do so will result in the dismissal of the amended complaint without further Order of this Court. The Clerk of the is directed to terminate the State of New York, Dorothy Jones, Robert Lee, and the Niagara Falls Police Department as parties to this action. Copy of this Decision and Order mailed to Diane Davis-Payne. Signed by Hon. Michael A. Telesca on 5/11/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHANIKKA DAVIS-PAYNE,
Plaintiff,

DECISION AND ORDER
No. 09-CV-6363(MAT)

-vsJOHN GALIE, THOMAS FOURNIER, THEODORE
WEED, JOHN FASO, JOSEPH GIANQUINTO,
NIAGARA FALLS POLICE DEPARTMENT, DOROTHY
JONES, COUNTY CRIME TASK FORCE,
Defendants.

I.

Introduction
This action was instituted by pro se plaintiff Channika Davis-

Payne (“Plaintiff”) pursuant to 42 U.S.C. § 1983 on the basis that
Defendants violated her constitutional rights by entering another
person’s apartment without a warrant in order to arrest her on
March 6, 2007, in the City of Niagara Falls. Presently pending
before the Court are two motions to dismiss the Amended Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“F.R.C.P.”). One motion is on behalf of the State of New York
(“the State”), New York State Police Investigator Dorothy Jones
(“Inv. Jones”), and New York State Assistant Attorney General
Robert Lee (“AAG Lee”) (hereinafter, collectively, “the State
Defendants”). The State Defendants also move, in the alternative,
for summary judgment pursuant to F.R.C.P. 56(a). The second motion
to dismiss is on behalf of the Niagara Falls Police Department
(“the NFPD”), John Galie, Thomas Fournier, Theodore Weed, John

Faso,

and

Joseph

Gianquinto

(collectively,

“the

Police

Defendants”).
II.

Factual Background and Procedural History
On March 6, 2007 Plaintiff was arrested at a residence which

was not her own as a result of her February 21, 2007 sale of a
controlled

substance

Investigator,

Dorothy

to

an

undercover

Jones.

Plaintiff

New
was

York

State

charged

Police

with

two

felonies. These charges were dismissed as part of a plea bargain
entered

into

by

Plaintiff

on

an

unrelated

matter

that

was

prosecuted by the New York State Attorney General’s Organized Crime
Task Force. Plaintiff then instituted this § 1983 action, alleging
various constitutional violations in connection with the March 6,
2007 arrest and other incidents.
By Decision and Order (Dkt. #55) dated October 16, 2012, this
Court dismissed Plaintiff’s original Complaint in its entirety.
Plaintiff appealed to the United States Court of Appeals for the
Second Circuit, which affirmed the judgment in part and reversed it
in part. See Payne v. Galie, et al., No. 12-4743-cv (2d Cir.
Sept. 10, 2014) (Dkt. #66). The Second Circuit vacated this Court’s
dismissal with prejudice of Plaintiff’s warrantless entry claim
based on the March 6, 2007 arrest, and sua sponte granted Plaintiff
leave to amend her Complaint to plead facts showing she had a
“reasonable expectation of privacy” in the apartment where the
arrest took place. Id., pp. 3-4. The Second Circuit affirmed the

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Court’s dismissal of Plaintiff’s other claims. Thus, the only claim
remaining for consideration on remand is the alleged violation of
Plaintiff’s Fourth Amendment rights based on the Niagara Falls
Police officers’ warrantless entry into another person’s apartment
to effectuate her arrest.
After Plaintiff filed an Amended Complaint (Dkt #67), the
State Defendants moved for dismissal for failure to state a claim,
or, in the alternative, for summary judgment (Dkt #69). Plaintiff
did not file any papers in opposition to the State Defendants’
motion. The NFPD and the Police Defendants moved for dismissal for
failure to state a claim (Dkt #68). Plaintiff did not file any
papers in opposition to the NFPD’s and the Police Defendants’
motion. For the reasons discussed below, the State Defendants’
motion is granted in its entirety. The NFPD’s and the Police
Defendants’ motion is granted in part and denied in part.
III. General Legal Principles
A. Motions to Dismiss for Failure to State a Claim
Rule 12(b)(6) allows dismissal of complaints based upon the
plaintiff’s failure “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In order “[t]o survive a motion
to

dismiss

under

[Rule

12(b)(6)],

a

complaint

must

contain

sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, ––– U.S.
––––, ––––, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.

-3-

v. Twombly, 550 U.S. 544, 570 (2007)). In assessing a claim’s
plausibility, the district court must “assume [the] veracity” of
all well-pleaded factual allegations contained in the complaint,
Iqbal, 129 S. Ct. at 1950, and draw every reasonable inference in
favor of the plaintiff, Zinermon v. Burch, 494 U.S. 113, 118
(1990). However, the plaintiff’s allegations must consist of more
than mere labels or a “formulaic recitation of the elements of a
cause of action,” and bare legal conclusions are “not entitled to
the assumption of truth.” Iqbal, 129 S. Ct. at 1949–50.
B.

Summary Judgment Standard

Summary

judgment

is

appropriate

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c). Initially,
the moving party must show that there is “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Once the moving party has carried its burden,
the opposing party must set forth “specific facts showing that
there is a genuine issue for trial[,]” FED. R. CIV. P. 56(e), and
must introduce evidence beyond the mere pleadings to show that
there is an issue of material fact concerning “an element essential
to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322. If, “as to the issue

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on which summary judgment is sought, there is any evidence in the
record from which a reasonable inference could be drawn in favor of
the opposing party, summary judgment is improper.” Security Ins.
Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83
(2d Cir. 2004) (quotation omitted).
IV.

The State Defendants’ Motion
A.
In

Allegations Involving the State of New York
the

Amended

Complaint

(“Am.

Compl.”),

Plaintiff

has

attempted to name the State of New York (“the State”) as a separate
defendant. The State argues that it should be dismissed as a party
on the basis of sovereign immunity.
The Constitution provides that the power of the federal
judiciary “shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. CONST., amend. XI. Thus, the Eleventh Amendment
generally “bars suits that seek either money damages, or injunctive
relief[,]” McGinty v. New York, 251 F.3d 84, 91 (2d Cir. 2001)
(internal and other citation omitted), “absent waiver by the State
or valid congressional override,” Kentucky v. Graham, 473 U.S. 159,
169 (1985) (citation omitted). Here, Plaintiff seeks only money
damages against the State with regard to alleged violations of her
Fourth Amendment rights. The State has not waived its Eleventh

-5-

Amendment immunity. Accordingly, Plaintiff cannot maintain her
Fourth Amendment cause of action against the State.
Plaintiff also claims that the State is liable for unspecified
“acts and torts” of its employees under the doctrine of pendent
jurisdiction, see Am. Compl., ¶ 36, and “pursuant to the Court of
Claims Acts 10 & 11,” id., ¶ 49. It is well-established that “[t]he
Eleventh Amendment bars federal suits against state officials on
the basis of state law.” Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir.
1996), and “[t]his applies to state law claims brought into federal
court under pendent jurisdiction as well.” Id.; see also Raygor v.
Regents of Univ. of Minnesota, 534 U.S. 533, 540-41 (2002) (“[T]he
Eleventh Amendment bars the adjudication of pendent state law
claims against nonconsenting state defendants in federal court.”)
(citing Pennhurst State School and Hospital v. Halderman, 465 U.S.
89, 120 (1984)). Accordingly, given the absence of waiver by the
State, any claims Plaintiff purports to bring based on New York
State law are barred by the Eleventh Amendment and are dismissed
with prejudice. See, e.g., Emmons v. City of N.Y., 715 F. Supp.2d
394, 419 (E.D.N.Y. 2010) (citing Burrell v. City Univ. of N.Y., 995
F. Supp. 398, 410 (S.D.N.Y. 1998)).
B.

Allegations Involving Inv. Jones and AAG Lee
1. Preliminary Matters

Although the scope of the Second Circuit’s remand was narrow,
in that Plaintiff only was permitted to amend her Complaint to

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plead a reasonable expectation of privacy, Plaintiff nevertheless
named new defendants, State employees AAG Lee and Inv. Jones. The
allegations against them must be dismissed for several reasons.
First, Plaintiff has made allegations concerning AAG Lee in
which she attempts to re-assert claims that this Court already has
dismissed. Those claims, pertaining to arrests that the Court has
found to be outside the statute of limitations (a finding which the
Second Circuit did not disturb on appeal), are dismissed, again,
with prejudice. Second, in making allegations against Inv. Jones,
Plaintiff improperly has disregarded the Stipulation entered into
by the attorney assigned by the Second Circuit to represent her on
appeal. In the Stipulation dated February 27, 2014, assigned
counsel for Plaintiff, Hanna Y.S. Chanoine, Esq., and counsel for
Inv. Jones, Assistant Solicitor General Kate H. Nepveu, Esq.,
“stipulate[d] that the above-captioned case is withdrawn against
defendant Dorothy Jones, with prejudice.” Stipulation, attached as
Exhibit A to the Declaration of Stephanie Calhoun, Esq. (Dkt #70).
Plaintiff has offered no reason why this Stipulation should not be
enforced, and the Court sees none on the record before it.
In the interest of completeness, however, the Court will
address the new allegations asserted against Inv. Jones and AAG
Lee.

-7-

2.
The

Eleventh Amendment Immunity

Eleventh

Amendment’s

shield

also

extends

to

state

employees when they are acting in their official capacities,
because in such cases, “the real party in interest . . . is the
governmental entity and not the named official.” Hafer v. Melo, 502
U.S. 21, 25 (1991); see also, e.g., Graham, 473 U.S. at 169
(explaining that “‘a judgment against a public servant “in his
official

capacity”

represents’”)

imposes

(internal

liability

citations,

on

the

quotation,

entity

that

and

he

footnote

omitted). Therefore, AAG Lee and Inv. Jones, in their official
capacities

as

an

assistant

attorney

general

and

a

police

investigator, respectively, are immune from suit. See Seitz v.
DeQuarto, 777 F. Supp.2d 492, 499 (S.D.N.Y. 2011) (“[B]oth the
State Police (a governmental subunit of the State of New York) and
the Investigators, in their official capacities, are immune from
the [plaintiffs]’ suit. The Constitution forbids the prosecution of
these claims against the State and its officials.”).
3.

State-Law Tort Claims Against Inv. Jones and AAG
Lee

Plaintiff asserts that Inv. Jones and AAG Lee are liable under
unspecified state law tort theories. Plaintiff also cites the New
York Court of Claims Act Sections 10 and 11,1 and asserts that this
1

The New York Court of Claims has jurisdiction to hear and determine, inter
alia, “a claim of any person. . . against the state for . . . the torts of its
officers or employees while acting as such officers or employees, providing the
claimant complies with the limitations of this article.” N.Y. CT. CLAIMS ACT §

-8-

Court should exercise its pendent jurisdiction over these state-law
claims.
Neither a federal court’s pendent jurisdiction “nor any other
basis of jurisdiction may override the Eleventh Amendment,” and a
state’s

immunity

against

state

law

claims

extends

to

state

officials. Pennhurst, 465 U.S. at 121. Thus, to the extent that
Plaintiff has asserted state law claims seeking damages against
Inv. Jones and AAG Lee in their official capacities, such claims
are barred by sovereign immunity. See, e.g., Emmons, 715 F. Supp.2d
at 420-21 (“[A]ll state law claims brought against [employees of
the City University of New York] in their official capacities are
dismissed with prejudice for lack of subject matter jurisdiction.”)
(footnote omitted); Corrado v. New York State Unified Court System,
No. CV 2012–1748(DLI)(MDG), 2014 WL 4626243, at *13 (E.D.N.Y.
Sept.

15,

2014)

(plaintiff’s

state

law

tort

claims

against

employees of the New York State Unified Court System in their
official capacities were barred by sovereign immunity) (citations
omitted).

Plaintiff’s

contention

that

the

Court

may

exercise

pendent jurisdiction over these state claims against the individual
defendants is without merit, for a federal court “cannot exercise
pendent jurisdiction over claims which cannot be brought against

9(2). Section 10 deals with the time for filing claims and notices of intention
to file claims. Id., § 10. Section 11 simply deals with the filing, service, and
contents of a claim or a notice of intention. Id., § 10. These sections do not
confer a particular legal right or authorize a specific cause of action.

-9-

the state in federal court.” Corrado, 2014 WL 4626234, at *12
(citing Pennhurst, 465 U.S. at 121).
4.

Lack of Personal Involvement

“It is well settled in this Circuit that ‘personal involvement
of

defendants

in

alleged

constitutional

deprivations

is

a

prerequisite to an award of damages under § 1983.’” Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); other citations
omitted). “[A] a supervisory official cannot be held liable under
§ 1983 on a theory of respondeat superior.” Ying Jing Gan v. City
of N.Y., 996 F.2d 522, 536 (2d Cir. 1993) (citation omitted).
As noted above, the only claim that remains pending in this
action is the Fourth Amendment claim based on the warrantless entry
on March 6, 2007, and arrest of Plaintiff at a residence which was
not her own, as a result of her previous sale of a controlled
substance to an undercover law enforcement officer (Inv. Jones) on
February 21, 2007. See, e.g., Declaration of Thomas O’Donnell,
Esq., ¶¶ 31-35 (Dkt #23-2). There is no suggestion in the record
that Inv. Jones was involved in any way in the actual arrest of
Plaintiff on March 6, 2007. In a declaration dated May 20, 2010,
Inv. Jones attested that her only role in connection with the
incident at

issue

here

was

that

she

“witnessed

a

controlled

purchase of crack cocaine from” Plaintiff on February 21, 2007; it
was this controlled purchase which led to Plaintiff’s arrest on

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March 6, 2007. See Declaration of Dorothy Jones, ¶¶ 3-4 & attached
exhibits (Dkt. #21); see also Dkt #23-7. Based on the record before
the Court, Plaintiff has failed to raise a triable issue of fact as
to Inv. Jones’ personal involvement in the warrantless entry of
March 6, 2007.
Furthermore, in February 2014, Plaintiff stipulated to the
discontinuance of this action, with prejudice, as to Inv. Jones. It
is

of

no

moment

that

Plaintiff’s

assigned

attorney,

and

not

Plaintiff herself, signed the Stipulation. See, e.g., Woo v. City
of N.Y., No. 93 CIV.7007(AJP)(HB), 1997 WL 277368, at *4 (S.D.N.Y.
May 27, 1997) (“It is black letter law in this Circuit,. . . that
a client . . . is bound by the conduct of his attorney.”) (citing
In re Artha Management, Inc., 91 F.3d 326, 329 (2d Cir. 1996)
(presumption that attorney who enters into a settlement agreement
had authority to do so); York Research Corp. v. Landqarten, 927
F.2d 119, 122 (2d Cir. 1991) (“As the Supreme Court has observed,
a litigant is deemed bound by the acts of his lawyer-agent . . .
.”) (quotation omitted)); other citations omitted).
With regard to AAG Lee’s personal involvement, Plaintiff is
unable to

plausibly

allege

a

viable

claim.

Notably,

none

of

Plaintiff’s allegations actually implicate AAG Lee in the March 6,
2007 warrantless entry. Instead, Plaintiff continues to assert
allegations regarding events that the Court has found to be time-

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barred, such as her October 2005 arrest. See, e.g., Am. Compl.,
¶¶ 10-12, 21.
Plaintiff’s

bare

assertion

that

“[a]ll

named

defendants

jointly participated in the wrongs complained of by arresting and
continuing the prosecution of me on both warrantless home invasions
and on falsified search warrant invasions in 2005 and 2007’s
allegations”

is

simply

too

vague

and

conclusory

to

state

a

plausible claim against AAG Lee in connection with the March 6,
2007 arrest. See Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d
236,

240

(2d

Cir.

2002)

(“[C]onclusory

allegations

or

legal

conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.”) (quotation omitted). There is no
evidence in the record that AAG Lee was present at, or was involved
in any way whatsoever with the March 6, 2007 warrantless entry.
Plaintiff’s allegation that the “municipal defendants” are
liable “based on the acts of their policymakers such as the
prosecutorial officials and NYS Attorney General [sic] Robert Lee”
likewise is insufficient to state a plausible claim. See, e.g.,
Castillo v. Commissioner of N.Y. State Dep’t of Corr. Serv.,
No. 06–CV–858A, 2008 WL 4501881, at *2 (W.D.N.Y. Sept. 30, 2008)
(allegation of personal involvement insufficient where plaintiff
did

“not

specify

the

particular

policy

or

custom

that

each

defendant created, or allege how that policy or custom resulted in
the alleged deprivation” of her constitutional rights) (citing

-12-

Covington v. Coughlin, No. 93 Civ. 8372(JSM), 1994 WL 163692, at *3
(S.D.N.Y. Apr. 28, 1994) (“[P]laintiff’s vague reference to ‘faulty
policy and procedures’ used by the Board of Parole does not meet
even the minimal standards courts apply to pro se pleadings.”);
other citation omitted).
V.

The Motion to Dismiss by the Police Defendants and the NFPD
A.

Sufficiency
of
Allegations
Regarding
Reasonable Expectation of Privacy

Plaintiff’s

The Police Defendants urge dismissal of the warrantless entry
claim on the basis that Plaintiff has not sufficiently alleged a
reasonable expectation of privacy in the apartment where she was
arrested. Plaintiff asserts that she had reasonable expectation of
privacy in the Whitney Avenue apartment where she was arrested
because she was an overnight guest.
The Fourth Amendment does not protect an individual’s privacy
in any and all circumstances; rather, to successfully object to an
entry and search of a residence under the Fourth Amendment, a
plaintiff must show that she had a “‘legitimate expectation of
privacy’” in the place searched. United States v. Hamilton, 538
F.3d 162, 167 (2d Cir. 2008) (quoting Rakas v. Illinois, 439 U.S.
128, 143 (1978)). In Minnesota v. Olson, 495 U.S. 91 (1990), the
Supreme Court held that an overnight guest has a “legitimate
expectation of privacy in his host’s home.” Id. at 98-100. The
Supreme Court “reasoned that an overnight guest could depend on his

-13-

host to protect his privacy interests and to provide a ‘place where
he and his possessions will not be disturbed by anyone but his host
and those his host allows inside.’” United States v. Osorio, 949
F.2d 38 (2d Cir. 1991) (quoting Olson, 110 S.Ct. at 1689); see also
Georgia v. Randolph, 547 U.S. 103, 113 (2006).
In her Amended Complaint, Plaintiff refers to the apartment at
which she was arrested in Paragraphs 14, 15, 32 and 46. The Police
Defendants argue that Paragraph 15 and Paragraph 46 assert bare
legal conclusions2 that do not assist Plaintiff in stating a
plausible claim for relief. The Court agrees and declines to credit
Paragraphs 15 and 46 as true because the assertions contained
therein are simply “legal conclusions masquerading as factual
conclusions.” Kirch v. Liberty Media Corp., 449 F.3d 888, 398
(2d Cir. 2006) (quotation omitted).
In Paragraph 14, Plaintiff avers that in March 2007, she “had
been a regular guest and visitor of the residence and often stayed
overnight at the residence with her children with the permission of
the tenants of that residence.” Am. Compl., ¶ 14. Paragraph 32
essentially duplicates Paragraph 14 by stating that she often
stayed overnight at the Whitney Avenue apartment in 2007, and that
she often went to the residence with her children. Plaintiff adds

2

Plaintiff alleges that the Police Defendants deprived her of her Fourth
Amendment rights by the “illegal warrantless arrest of [her] at the home in 2007
wherein [she] had a legitimate expectation of privacy.” Plaintiff also alleges,
without explanation, that she “had far more than an overnight guest status in
that home.” See Am. Compl., ¶¶ 15, 46.

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that Police Defendants must have known this and observed her coming
and

going

from

the

apartment,

since

they

had

her

“under

surveillance at those times.” Id., ¶ 32. The Police Defendants
argue that these allegations are insufficient because Plaintiff
“offers no indication as to the identities of the ‘tenants’, her
relationship to these individuals, what her purpose was for her
various visits, when she had actually stayed overnight at the
residence, what her purpose was for this particular visit, or most
importantly, whether she had stayed overnight during the night
preceeding [sic] the arrest.” Defendants’ Memorandum of Law.
The Court agrees that Plaintiff’s newly made allegations
remain too conclusory to state a plausible claim for relief. “An
‘overnight guest’ is much more than someone who simply spends the
night.

Such

status

is

contingent

upon

an

invitation

by

an

authorized host.” United States v. Gonzales–Barrera, 288 F. Supp.2d
1041, 1050 (D. Ariz. 2003) (citing Olson, 495 U.S. at 99); United
States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984) (“[T]he
mere

legitimate

presence

on

the

searched

premises

.

.

.

is

insufficient in itself to create a protectable expectation.”)
(quoting United States v. Meyer, 656 F.2d 979, 981 (5th Cir.
1981)). Here, Plaintiff has not made any non-conclusory allegations
regarding, e.g., the identity of the tenants of the apartment, her
relationship to the tenants, the identity of the person who gave
her permission to stay overnight at the apartment, and whether that

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person actually was a tenant of the apartment. See United States v.
Armenta, 69 F.3d 304, 308-09 (9th Cir. 1995) (finding defendant did
not have standing to challenge warrantless entry where he simply
asserted he was an overnight guest but there was no identifiable
“host” who could have given or did give him permission to stay at
the house in question); Gonzales–Barrera, 288 F. Supp.2d at 1050
(finding that “[a]bsent a showing that he was an invited guest,
Defendant has not borne his burden of proving that he had a
legitimate expectation of privacy in the house”).
Olson instructs that “it is the relationship between the
overnight guest and [her] host, and the common social understanding
that comes with it, which makes the guest’s expectation of privacy
reasonable.” United States v. Vasquez, 706 F. Supp.2d 1015, 1023
(C.D. Cal. 2010) (citing Olson, 495 U.S. at 98-99). Plaintiff’s
Amended Complaint does not adduce sufficient facts to support a
plausible claim she had a relationship with anyone who had the
authority to grant her permission to stay overnight at the Whitney
Avenue apartment. The Amended Complaint, as it stands, does not
allege

a

plausible

claim

that

Plaintiff

had

a

reasonable

expectation of privacy at the apartment. However, because Plaintiff
is proceeding pro se, the Court will allow her another opportunity
to cure the deficiency in her Amended Complaint. Plaintiff need not
file another

complaint

but

instead

is

directed

to

submit

an

affidavit or declaration alleging facts that plausibly support her

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assertion that she had “overnight guest” status at the Whitney
Avenue apartment where she was arrested.
B.

Qualified Immunity

The Police Defendants argue that Plaintiff “has failed to
allege facts that plausibly overcome [their] qualified immunity”
because “there can be no question that either of her arrests were
not supported by probable cause.” Defs’ Mem., Argument § C. The
Police Defendants assert that the “the two judicial findings of
probably [sic] cause together with the Grand Jury Indictment
further demonstrate

the

probable

cause

warranting

Plaintiff’s

arrests.” Id.
“Police officers are immune from liability for money damages
in suits brought against them in their individual capacities if
‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Anthony v. City of N.Y., 339 F.3d 129, 135 (2d Cir. 2003)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “A police
officer’s actions are objectively unreasonable, and therefore are
not entitled to immunity, when ‘no officer of reasonable competence
could have made the same choice in similar circumstances.’” Id. at
138 (quoting Lennon v. Miller, 66 F.3d 416, 420–21 (2d Cir. 2003)
(citation omitted)).
To be reasonable under the Fourth Amendment, a search of a
home must either be conducted pursuant to a warrant or meet an

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exception

to

the

warrant

requirement.

See,

e.g.,

Kyllo

v.

United States, 533 U.S. 27, 31 (2001). While certain exceptions to
the warrant requirement exist, probable cause to arrest, in and of
itself, is insufficient. See, e.g., Bashir v. Rockdale Cnty., Ga.,
445 F.3d 1323, 1328 (11th Cir. 2006) (“[A] warrantless arrest in a
home violates the Fourth Amendment unless the arresting officer had
probable cause to make the arrest and either consent to enter or
exigent circumstances demanding that the officer enter the home
without

a

warrant.”)

(emphasis

in

original)

(citing

Kirk

v.

Louisiana, 536 U.S. 635, 638 (2002) (reversing state court ruling
that warrantless entry, arrest, and search did not violate the
Fourth Amendment because there had been probable cause to arrest);
other citation omitted). Indeed, since 1980, it has been clearly
established Supreme Court law that the Fourth Amendment, made
applicable to the States by the Fourteenth Amendment, prohibits the
police from making a warrantless and nonconsensual entry into a
suspect’s home in order to make a routine felony arrest. Payton v.
New York, 445 U.S. 573, 576 (1980); see also id. at 576-77
(reversing convictions where police officers, acting with probable
cause but without warrants, had gone to the defendant’s residence
to arrest the defendant on a felony charge and had entered the
premises

without

Defendants’

the

qualified

consent
immunity

of

any

argument

without merit.

-18-

occupant).
is

The

therefore

Police
clearly

C.

Amenability to Suit of the NFPD

The NFPD argues that it is a division of the City of Niagara
Falls and not a separate legal entity and, as such, it does not
qualify as an individual or corporate entity against which an
action can be maintained. The Court agrees. “[A] police department,
which is an administrative arm of a municipality, does not have a
legal identity separate and apart from the municipality and cannot
sue or be sued[.]” Griffith v. Sadri, No. CV-07-4824 (BMC)(LB),
2009 WL 2524691, at *8 (E.D.N.Y. Aug. 14, 2009) (citing Jenkins v.
City of N.Y., 478 F.3d 76, 93 n. 19 (2d Cir. 2007); Hall v. City of
White Plains, 185 F. Supp.2d 293, 303 (S.D.N.Y. 2002); Wray v. City
of N.Y., 340 F. Supp.2d 291, 303 (E.D.N.Y. 2004)).

The NFPD is

hereby terminated as a defendant in this action.
D.

Amenability to Suit of the City of Niagara Falls

Although the City of Niagara Falls has not been named as a
defendant, the NFPD argues that “no action under 42 USC 1983 may be
maintained against a municipality, or by extension, a ‘department’
thereof.” Defs’ Mem., Argument § D. This is not a correct statement
of the law. The Supreme Court clearly has held that a municipality
may be liable under 42 U.S.C. § 1983 if the plaintiff presents
evidence that the alleged deprivation of her constitutional rights
was caused by an official custom, policy, or practice of the
municipality. See Monell v. Department of Soc. Servs., 436 U.S.
658, 690 (1978).

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VI.

Conclusion
For the reasons discussed above, the Court grants the State

Defendants’ motion to dismiss (Dkt #69) the Amended Complaint for
failure to state a claim, or in the alternative, for summary
judgment. The Amended Complaint is dismissed with prejudice as
against the State of New York, Dorothy Jones, and Robert Lee. The
Clerk of the Court is directed to terminate the State of New York,
Dorothy Jones, and Robert Lee as parties to this action.
The Police Defendants’ and the NFPD’s motion to dismiss
(Dkt #68) is granted in part and denied in part. It is granted to
the extent that the NFPD is terminated as a defendant in this
action. The Clerk of the Court is directed to amend the caption to
remove the Niagara Falls Police Department as a party.
The Police Defendants’ qualified immunity argument is without
merit, and their motion is denied on that grounds.
The Court will reserve decision on the Police Defendants’
argument that Plaintiff has failed to state a warrantless entry
claim because she has failed to sufficiently plead a reasonable
expectation of privacy in the apartment where she was arrested.
Because Plaintiff is proceeding pro se, the Court will allow her
another opportunity to cure the deficiency in her Amended Complaint
by submitting an affidavit or declaration alleging facts that
plausibly support her assertion that she had “overnight guest”
status at the Whitney Avenue apartment where she was arrested.

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Plaintiff

is

directed

to

file

her

supplemental

affidavit

or

declaration, in accordance with the Court’s instructions above,
within thirty (30) days of this Decision and Order. Plaintiff is
cautioned that the failure to comply with the Court’s instructions
will result in the dismissal of the Amended Complaint without
further order of this Court.
IT IS SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 11, 2015
Rochester, New York

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