Strong v. City of Rochester, et al.
DECISION AND ORDER: Defendants' 4 Motion for Partial Dismissal is GRANTED. All claims against Defendants Ciminelli and the City of Rochester are DISMISSED, and the claims of unlawful entry, excessive force, and due process violations against D efendant Perrone are also DISMISSED. The only remaining claim is against Defendant Perrone for unlawful deprivation of property. The Clerk of Court is directed to terminate Defendants Ciminelli and the City of Rochester as parties to this action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/8/18. (KSB)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 17-CV-6183-FPG
DECISION AND ORDER
and CITY OF ROCHESTER
Plaintiff Joseph Strong brings this action pursuant to 42 U.S.C. § 1983 (2012) against
Defendants Police Officer Joseph Perrone, Police Chief Michael Ciminelli, and the City of
Rochester for alleged violations of the Fourth and Fourteenth Amendments. 1 See ECF No. 1.
Plaintiff claims that Defendants are liable for (1) unlawful entry under the Fourth Amendment; (2)
unlawful deprivation of property under the Fourth Amendment; (3) excessive force under the
Fourth Amendment; and (4) due process violations under the Fourteenth Amendment. 2 See id.
Plaintiff filed his Complaint on March 28, 2017. Id. On May 11, 2017, Defendants moved
to partially dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No.
4. Chief Ciminelli and the City of Rochester seek dismissal of all of the claims against them, and
While the Complaint also references the Eighth Amendment, ECF No. 1, at 1, Plaintiff does not argue any
As Defendants observe, Plaintiff’s Reply Memorandum of Law (ECF No. 9) only addresses the arguments regarding
municipal liability. See ECF No. 10, at 1. Plaintiff does not attempt to directly defend the underlying constitutional
claims, Chief Ciminelli’s individual liability, or Officer Perrone’s individual liability. In responding to a motion to
dismiss, the failure to defend claims can render them “abandoned,” resulting in dismissal. See, e.g., Fero v. Excellus
Health Plain, Inc., 236 F. Supp. 3d 735, 753–54 (W.D.N.Y. 2017). Here, because a theory of liability necessarily
assumes some underlying claim, the Court addresses all of the challenged claims on the merits, but warns against
failing to defend every claim in the future.
Officer Perrone seeks to dismiss only the claims of unlawful entry, excessive force, and due
process violations. See id. For the reasons that follow, Defendants’ Motion for Partial Dismissal is
On January 16, 2015, the Rochester Police Department received a call reporting a suspected
burglary at Plaintiff’s home, located at 123 Trafalgar Street in Rochester, New York. See ECF No.
1, at 5. Officer Perrone was one of the responding officers, and, when he arrived, he noticed that
the doors to Plaintiff’s home were open. Id. He proceeded onto the front porch and, upon seeing
Plaintiff’s pit bull inside the home, shot the dog through the open front door from his position on
the porch. Id. at 4–5. The dog was injured by Officer Perrone’s bullet, and animal control officers
responded to the scene. Id. at 5–6. Because Plaintiff was not home, animal control officers called
for his permission to euthanize the dog, which Plaintiff gave. Id. at 6. By the time Plaintiff returned
home, the dog had been removed from the premises. Id. Officers ultimately determined that
Plaintiff’s doors had been blown open by the wind. See id. at 5.
Federal Rule of Civil Procedure 8(a)(2) instructs that a complaint must include “a short
and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme
Court clarified the requirements of Rule 8(a)(2) for “all civil actions.” Iqbal, 556 U.S. at 684. To
be sufficient, a pleading “does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (quoting Twombly,
550 U.S. at 555). In that vein, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
All facts are drawn from Plaintiff’s Complaint (ECF No. 1).
recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at
555). Rather, “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). That measure of
plausibility requires “more than a sheer possibility that a defendant has acted unlawfully”—the
pleaded facts must permit a “reasonable inference” of liability for the alleged misconduct. Id.; see
also Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (instructing that “all reasonable
inferences” are to be taken in the plaintiff’s favor). Beyond the facts alleged in the complaint, a
court may also consider “documents attached to the complaint as exhibits and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111
(2d Cir. 2010).
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983 (2012), which provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law.
Section 1983 does not create any substantive rights; rather, it serves as a vehicle “for vindicating
federal rights elsewhere conferred.” See, e.g., Patterson v. County of Oneida, 375 F.3d 206, 225
(2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 133 n.3 (1979)). Plaintiff invokes §
1983 to assert claimed violations of the Fourth and Fourteenth Amendments against Defendants.
See ECF No. 1.
Notably, however, each of Plaintiff’s claims repeatedly refers to “violations of the rights
secured . . . by the Fourth and Fourteenth Amendments . . . and § 1983.” See id. at 6–14. The Court
seeks to clarify that—as discussed—§ 1983 does not confer substantive rights upon Plaintiff, and
Plaintiff’s joint invocation of the Fourth and Fourteenth Amendments is inapposite. The Fourth
Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV.
Accordingly, it governs Plaintiff’s claims of unlawful entry, unlawful deprivation of property, and
excessive force. See Albright v. Oliver, 510 U.S. 266, 273 (1994). The Fourteenth Amendment
would only be relevant to those claims in that it makes the Fourth Amendment applicable to
Defendants, see, e.g., Tenenbaum v. Williams, 193 F.3d 581, 602 n.14 (2d Cir. 1999), but it does
not affect the Court’s analysis of the claims under the Fourth Amendment, see Albright, 510 U.S.
at 273. The Fourteenth Amendment guarantees Plaintiff substantive and procedural due process.
See U.S. Const. amend. XIV § 1; see also, e.g., Vaher v. Town of Orangetown, 133 F. Supp. 3d
574, 601 (S.D.N.Y. 2015). Accordingly, Plaintiff’s claim of due process violations involves the
Fourteenth Amendment, not the Fourth Amendment.
Claims Against the City of Rochester
Plaintiff seeks to hold the City of Rochester liable on each of his four claims. See ECF No.
1, at 6–14. He argues that the City was deliberately indifferent “to an obvious need for training of
its officers both in the laws pertaining to unlawful seizures, in the art of de-escalation, and in how
to avoid conflict and especially lethal conflict when dealing with canines.” Id. at 9. Plaintiff
maintains that the “deliberate indifference” evinced in the City’s alleged failure to train its officers
as described “resulted in Defendant Officer Perrone’s actions in slaying [the dog].” Id.
A municipality cannot be held vicariously liable under § 1983 for the actions of its
employees. Connick v. Thompson, 563 U.S. 51, 60 (2011). Rather, the municipality must “itself
‘subject’ a person to a deprivation of rights or ‘cause’ a person ‘to be subjected’ to such
deprivation.” Id. Thus, to hold a municipality liable under § 1983, a plaintiff must show that the
complained-of injury came from “action pursuant to official municipal policy.” Id. at 60–61
(quoting Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658, 694 (1978)).
While “official municipal policy” logically encompasses actual procedures—for example,
“the decisions of a government’s lawmakers, the acts of its policymaking officials, [or] practices
so persistent and widespread as to practically have the force of law”—it can also include the
absence of necessary procedures. Id. at 61. A municipality’s failure to train its employees “about
their legal duty to avoid violating citizens’ rights” can be actionable if it “rises to the level of an
official government policy.” Id. That standard is exacting, though: the choice to forgo training
“must amount to ‘deliberate indifference to the rights of persons with whom the [untrained
employees] come into contact.’ ” Id. (alteration in original) (quoting City of Canton v. Harris, 489
U.S. 378, 388 (1989)); see also id. (“A municipality’s culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”). To be considered “deliberately
indifferent,” a municipality’s inaction must stem from a “conscious choice”—not “mere
negligence.” Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011). Typically, a plaintiff
asserting Monell liability on the basis of a municipality’s failure to train needs to show “a pattern
of similar constitutional violations by untrained employees.” Connick, 563 U.S. at 62.
As Defendants observe, Plaintiff fails to offer any example of another allegedly untrained
Rochester police officer killing a dog. See ECF No. 1; ECF No. 10, at 2–3. While Plaintiff argues
that he has pleaded a “widespread . . . violent, prolific, and barbarous practice” of “puppycide,”
ECF No. 9, at 3, his Complaint alleges only the following with respect to City policy:
[T]he Defendant’s violations were part of the customary practices of the City of Rochester
and its police department. Such repeated Fourth and Fourteenth Amendment violations
amount to . . . deliberate indifference . . . . This departmental failure [to train] includes and
is most evident in the failures leading to the death of [the dog] . . . . Supervisors Police
Chief Ciminelli and the City of Rochester were aware of the custom of dogs being killed
by the Department due to a lack of any training and/or protocol as to how armed officers
should act around companion animals.
ECF No. 1, at 8–9. Apart from the incident in question, Plaintiff fails to provide any facts to flesh
out his conclusory recitation of the requisite showing for Monell liability. 4 This sort of formulaic
and unadorned pleading is insufficient under Iqbal. 5 Accordingly, his claims against the City of
Rochester must be dismissed.
Claims Against Chief Ciminelli
Plaintiff also seeks to hold Chief Ciminelli liable on all claims. See ECF No. 1, at 6–14. To
sufficiently plead individual liability under § 1983, Plaintiff must provide facts showing
“[D]efendant’s personal involvement in the alleged constitutional deprivation.” Grullon v. City of
New Haven, 720 F.3d 133, 138–39 (2d Cir. 2013). In Colon v. Coughlin, the Second Circuit
[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1)
the defendant participated directly in the alleged constitutional violation[;] (2) the
defendant, after being informed of the violation through a report or appeal, failed to remedy
the wrong[;] (3) the defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or custom[;] (4) the
defendant was grossly negligent in supervising subordinates who committed the wrongful
acts[;] or (5) the defendant exhibited deliberate indifference to the rights of [persons] by
failing to act on information indicating that unconstitutional acts were occurring.
58 F.3d 865, 873 (2d Cir. 1995). Whether Iqbal’s pleading standard heightened the showings
formerly sufficient under Colon does not affect the Court’s analysis, because Plaintiff’s claims
against Chief Ciminelli fail to survive even Colon’s requirements. See, e.g., Grullon, 720 F.3d at
139 (using the same approach).
Moreover, this is not the sort of “rare” situation in which the consequences of failing to train are so predictable and
obvious that a known pattern need not be pleaded for a claim of deliberate indifference. See Connick, 563 U.S. at 63–
64 (citing Canton, 489 U.S. at 390, n.10). By comparison, Canton’s hypothesized sufficiency of single-incident proof
involved a failure to train officers on the use of deadly force. See 489 U.S. at 390 n.10. The Supreme Court explained
that the patent obviousness of those consequences could be inferred, given that “city policymakers know to a moral
certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms,
in part to allow them to accomplish this task.” Id.
In an attempt to offset the lack of facts, Plaintiff cites “the Leatherman case” as “a comparative example,” see ECF
No. 9, at 3—although no citation was provided, the Court understands Plaintiff to refer to Leatherman v. Tarrant Cty.
Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). That reference provides no respite: Leatherman
was decided pre-Iqbal, which now dictates the governing pleading standards.
Plaintiff alleges that Chief Ciminelli “w[as] aware of the custom of dogs being killed by
the Department due to a lack of any training and/or protocol as to how armed officers should act
around companion animals.” ECF No. 1, at 9. Aside from an isolated reference to conspiracy, 6 this
description is the only mention of Chief Ciminelli’s purported misconduct. See ECF No. 1. With
respect to the Colon factors, those assertions provide no actual facts suggesting: (1) that Chief
Ciminelli directly participated in a Fourth or Fourteenth Amendment violation; (2) that Chief
Ciminelli, after being informed of a Fourth or Fourteenth Amendment violation, failed to provide
a remedy; (3) that Chief Ciminelli created or continued a policy or custom of Fourth or Fourteenth
Amendment violations; (4) that Chief Ciminelli was grossly negligent in supervising Officer
Perrone; or (5) that Chief Ciminelli was deliberately indifferent in failing to act on apparent Fourth
or Fourteenth Amendment violations. Without more, Plaintiff’s claims against Chief Ciminelli are
the sort of conclusory assertions that cannot survive a motion to dismiss.
Claims Against Officer Perrone
Of the four claims at issue, Officer Perrone moves to dismiss only the claims of unlawful
entry, excessive force, and due process violations. For the reasons that follow, those claims against
Officer Perrone are dismissed, and the only remaining claim is for unlawful deprivation of
Plaintiff claims that Officer Perrone violated the Fourth Amendment when he “entered onto
Plaintiff’s premises” without Plaintiff’s permission. ECF No. 1, at 7. The Fourth Amendment
Plaintiff alleges that “Defendant Ciminelli and the City of Rochester then conspired to cover up the scene and remove
all bullets from the house and surrounding area to try and conceal the fact that the shooting was criminal in nature,”
ECF No. 1, at 8, but he does not advance an actual claim of conspiracy.
protects against warrantless searches of a person’s home, subject to certain exceptions. 7 See, e.g.,
Harris v. O’Hare, 770 F.3d 224, 231–32 (2d Cir. 2014). While Plaintiff’s front porch may have
fallen within the physical “curtilage” considered an extension of the home, Officer Perrone simply
approached the open front door, which he may do without a warrant. See, e.g., Florida v. Jardines,
569 U.S. 1, 8 (2013) (reasoning that approaching and knocking is “no more than any private citizen
might do” (quoting Kentucky v. King, 563 U.S. 452, 469 (2011))). Plaintiff does not claim that
Officer Perrone then entered his home—instead, Plaintiff argues that “the bullet discharged by
Defendant Perrone constitutes an unlawful entry into Plaintiff’s property, as the bullet serves as an
extension of the Defendant in this matter.” ECF No. 1, at 15. Plaintiff characterizes the bullet’s
entry into his corridor as “depriv[ing] . . . his rights to be free from such unlawful searches and
seizures.” ECF No. 1, at 7.
This claim cannot survive dismissal. Plaintiff offers no authority to support interpreting the
bullet as a “search.” See ECF No. 1. Indeed, the bullet “obviously could not ‘look,’ ‘explore,’ or
‘examine,’ nor did its entry facilitate such conduct.” See Denning ex rel. Denning v. Metropolitan
Gov’t of Nashville, 330 Fed. App’x 500, 505 (6th Cir. 2009). Plainly, then, the bullet entering
Plaintiff’s home cannot constitute a “search” within the purview of the Fourth Amendment. To the
extent Plaintiff is taking issue with the bullet’s “seizure” of his dog, that matter is addressed by his
claim for unlawful deprivation of property. Accordingly, Plaintiff’s unlawful entry claim against
Officer Perrone must be dismissed.
Plaintiff argues that Officer Perrone “us[ed] excessive force against the Plaintiff to
summarily deprive him of his property rights in possessing his dog.” ECF No. 1, at 12. However,
Defendants note the exigent circumstances of the reported burglary, see ECF No. 6, at 7, but the Court’s findings do
not require it to reach that claimed exception.
the Fourth Amendment protects “the right of the people” to be free from unreasonable searches
and seizures—it does not safeguard any independent right for dogs, which are considered property
for purposes of the Fourth Amendment. See U.S. Const. amend. IV (emphasis added); Carroll v.
County of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (framing the killing of a companion animal
as a seizure of property); Powell v. Johnson, 855 F. Supp. 2d 871, 874 (D. Minn. 2012) (“Plaintiffs
cannot bring an excessive-force claim on [a dog’s] behalf.”). Moreover, Plaintiff was not home at
the time of the incident to be subjected to any purportedly unlawful “seizure” of his person, and
the deprivation of property is addressed in a separate claim. Any allegation of excessive force in
the deprivation of Plaintiff’s property speaks to the lawfulness of that seizure—it would not
constitute a separate claim in itself. See, e.g., Powell, 855 F. Supp. 2d at 874 (“[T]he so-called
excessive force bears only on whether [the dog] was unreasonably seized in violation of the Fourth
Amendment.”). The excessive force claim against Officer Perrone must therefore be dismissed.
Due Process Violations
Plaintiff asserts that Officer Perrone deprived him “of due process in pursuing a lawsuit . .
. [and] by disposing of [the dog’s] body without consent nor [sic] authority, by unlawfully
converting [the dog] into state hands, and by falsifying reports and findings surrounding her
demise.” ECF No. 1, at 13. To the extent Plaintiff is asserting violations of substantive and
procedural due process, both claims fail.
Any substantive due process claim fails because Plaintiff’s deprivation is properly—and
already—addressed under the Fourth Amendment. The Supreme Court has instructed that,
“[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’
against a particular sort of government behavior, ‘that Amendment, not the more generalized
notion of substantive due process, must be the guide for analyzing these claims.’ ” Albright v.
Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Here,
Plaintiff brings a claim for unlawful deprivation of property under the Fourth Amendment. Given
the Fourth Amendment’s explicit protections, Plaintiff cannot also contest the deprivation of that
property more broadly as a violation of his substantive due process rights.
Any procedural due process claim fails for a lack of factual pleading. The Supreme Court
has held that “an unauthorized deprivation of property by a state employee does not constitute a
violation of [procedural due process] if a meaningful postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984) (cited by Hellenic Am. Neighborhood
Action Comm. v. City of New York, 101 F.3d 877, 882 (2d Cir. 1996) (contrasting “claims based
on established state procedures” with “claims based on random, unauthorized acts”)). Plaintiff
does not explain how he was barred from any postdeprivation remedy—rather, he simply alleges
that Officer Perrone and others “conspired” to deprive him of the opportunity to file a lawsuit.
ECF No. 1, at 13. At most, Plaintiff claims that Officer Perrone was involved in “falsifying reports
and findings surrounding [the dog’s] demise.” Id. Plaintiff cannot adequately claim a violation of
procedural due process where he fails to plead facts regarding his postdeprivation remedies.
For the reasons stated, Defendants’ Motion for Partial Dismissal (ECF No. 4) is
GRANTED. All claims against the City of Rochester and Chief Ciminelli are DISMISSED, and
the claims of unlawful entry, excessive force, and due process violations against Officer Perrone
are also DISMISSED. The only remaining claim is against Officer Perrone for unlawful
deprivation of property. The Clerk of Court is directed to terminate Defendants Ciminelli and the
City of Rochester as parties to this action.
IT IS SO ORDERED.
Dated: January 8, 2018
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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