JOHNSON v. CITY OF DURHAM et al
Filing
50
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION - MAGISTRATE JUDGE. IT IS THEREFORE RECOMMENDED that 28 Defendants' Motion to Dismiss Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) be GRANTED, that 25 Plaintiffs Motion for Judgement o n the Pleadings be DENIED, and that this action be DISMISSED WITH PREJUDICE. IT IS ORDERED that all of Plaintiffs other pending motions 23 , 24 , 27 , 34 , 35 , 36 , 40 , 41 , 47 are DENIED. Signed by MAG/JUDGE L. PATRICK AULD on 9/30/2011. (Powell, Gloria)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL JOHNSON,
Plaintiff,
v.
CITY OF DURHAM, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:09CV954
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for a recommendation on Defendants’ Motion to
Dismiss Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6)
(Docket Entry 28) and Plaintiff’s Motion for Judgement on the
Pleadings (Docket Entry 25) (see Docket Entry dated Jan. 12, 2011;
see also Fed. R. Civ. P. 72(b)(1)), as well as for rulings on a
series
of
non-dispositive
motions
filed
by
Plaintiff
(Docket
Entries 23, 24, 27, 34-36, 40, 41, 47) (see Docket Entries dated
Jan. 12 and Apr. 11, 2011; Fed. R. Civ. P. 72(a)).
For the reasons
that follow, Plaintiff’s non-dispositive motions are all denied and
it is recommended that the Court grant Defendants’ Motion to
Dismiss Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and
deny Plaintiff’s Motion for Judgement on the Pleadings.
BACKGROUND
This case began when Plaintiff filed a pro se Complaint
pursuant to 42 U.S.C. § 1983, in which he alleged that the City of
Durham and various city officials violated unspecified rights of
his in connection with the enforcement of housing and/or building
codes
from
June
through
December
2009.
(Docket
Entry
1.)
Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
(Docket Entry 5.)
In that Motion, Defendants specifically raised,
inter alia, the absence of allegations regarding any policy or
custom of Defendant City of Durham and any culpable conduct by a
number of the individual Defendants, as well as the existence of a
state-law,
inverse
condemnation
remedy
and
the
Defendants’ entitlement to qualified immunity.
Docket Entry 6 at 5-8.)
individual
(See id. at 2;
Plaintiff responded that he “answered”
Defendants’ dismissal motion by filing a Motion to Amend Complaint
(Docket Entry 10), through which he sought leave to state “4th and
5th Amendment violations . . . in [an] Amended Complaint.”
Entry 9 at 2.)1
In
addition,
Plaintiff
filed
a
(Docket
Motion
for
Supplemental Complaint in which he described an incident that
allegedly occurred on January 29, 2010 (Docket Entry 11) and a
“Supplemental Complaint” in which he set out allegations about
events on February 19, 2010 (Docket Entry 17).
The Court (per the undersigned Magistrate Judge) granted
Plaintiff’s
Motion
to
Amend
Complaint
(Docket
Entry
10)
and
directed Plaintiff to file an Amended Complaint that “include[d]
any and all claims he wishe[d] to present against Defendants,
including any claims described in his original Complaint, his
Motion
for
Supplemental
Complaint,
1
and
his
‘Supplemental
Although Plaintiff’s filings do not use standard capitalization
conventions, for ease of reading, this Memorandum Opinion will apply such
conventions when quoting from Plaintiff’s filings.
-2-
Complaint.’”
(Docket Entry 21 at 5-6.)
The Memorandum Opinion
that granted Plaintiff’s request for leave to amend his Complaint
specifically stated that, “[i]n drafting his amended complaint,
Plaintiff would be well-advised to consider carefully the arguments
presented
by
Defendants
in
their
[earlier]
filings
that
identif[ied] apparent, serious defects in Plaintiff’s allegations
. . . .”
(Docket Entry 21 at 4.)
In light of that disposition, it
was recommended that the Court deny Defendants’ Motion to Dismiss
Complaint (Docket Entry 5) without prejudice to re-filing after
Plaintiff filed his Amended Complaint.
(Docket Entry 21 at 6.)
The Court (per Chief Judge James A. Beaty, Jr.) adopted that
recommendation.
(See Docket Entry 49.)2
Plaintiff filed an Amended Complaint against Defendants City
of Durham, Theodore L. Voorhess, Keith C. Chadwell, William V.
Bell, Thomas J. Bonfiel, Cora McFadden, Diane Catotti, Howard
Clement III, Farad Ali, J. Michael Woodard, Constance Stancil, Rick
Hester, Stacy Crabtree, Burt Rauch, and Eugene A. Brown.
Entry 26 at 1.)
(Docket
Viewed through the forgiving lens of liberal
construction employed in connection with pro se pleadings, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Amended Complaint
asserts the following claims:
1) Defendants violated the Fourth and Fifth Amendments to the
United States Constitution by “tear[ing] the house down on 1010
2
The Court (per Chief Judge Beaty) previously had denied preliminary
injunctive relief because, inter alia, “it d[id] not appear that Plaintiff ha[d]
stated any viable claim . . . .” (Docket Entry 15 at 3.)
-3-
Washington Street, Durham, North Carolina, without a 30 day notice
. . . [in violation of North Carolina law and the] Durham City
Code” (Docket Entry 26 at 9);3
2) Defendants City of Durham, Hester, Crabtree, and Rauch
violated the Fourth and Fifth Amendments by trespassing at 1010
Washington Street on June 4, 2009 (id. at 8);4 and
3) Defendant Rauch violated the Fourth and Fifth Amendments by
trespassing at 1010 Washington Street on December 7, 2009 (id.).
Defendants thereafter moved to dismiss the Amended Complaint
on November 10, 2010.
(Docket Entry 28.)
Plaintiff did not file
a response (see Docket Entries dated Nov. 10, 2010, to present),
but has filed a Motion for Judgement on the Pleadings that contains
no argument or citation of authority (Docket Entry 25), as well as
these non-dispositive motions:
1) “Motion for Joining Motions”/“Motion for Hearing before
Trial” (Docket Entry 23);
2) “Motion for a More Definite Statement” (Docket Entry 24);
3) “Motion for a More Definite Statement” (Docket Entry 27);
4)
“Motion
Special
Matters”/“Motion
Definite
Statement”
(Docket Entry 34);
3
The Amended Complaint also seeks punitive damages in connection with this
claim because the failure to give proper notice involved “wicked and malice”
conduct that caused Plaintiff “to panic and be afraid.” (Docket Entry 26 at 10.)
4
In addition, the Amended Complaint alleges that the other Defendants
“comprisously [sic] permitted [Defendants Hester, Crabtree, and Rauch] to commit
[that] trespass” (Docket Entry 26 at 3) and thus that Plaintiff has a claim under
the Fourth Amendment against the other Defendants because they “capriciously
permitted [Defendants Hester, Crabtree, and Rauch to] violate[] [Plaintiff’s] 4th
Amendment rights” (id. at 6).
-4-
5) “Motion for a More Definite Statement” (Docket Entry 35);
6) “Motion for Joining Motions”/“Motion for Hearing before
Trial” (Docket Entry 36);
7) “Motion Hearing” (Docket Entry 40);
8) “Motion Waiving 12b(6) Motion to Dismiss by City of Durham”
(Docket Entry 41); and
9) “Motion Admissions by City of Durham Defendants et al”
(Docket Entry 47).
DISCUSSION
Defendants’ Motion to Dismiss Amended Complaint
Defendants have moved to dismiss the Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6).
(Docket Entry 28.)
Under said Rule, a complaint falls short if it does not “contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (emphasis added) (internal citations omitted)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
This standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
Id.
In other words, “the tenet
that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions . . . [and]
[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Id.
“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
-5-
judicial experience and common sense.”
F.3d 186, 193 (4th Cir. 2009).
Francis v. Giacomelli, 588
Moreover, although the United
States Supreme Court has reiterated the importance of affording pro
se litigants the benefit of liberal construction, Erickson, 551
U.S. at 94, the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that
a
pleading
contain
more
than
labels
and
conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly standard in
dismissing pro se complaint).
Accord Atherton v. District of
Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A
pro se complaint . . . ‘must be held to less stringent standards
than formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson,
551
U.S.
at
94,
and
Iqbal,
129
S.
Ct.
at
1950,
respectively)), cert. denied, 130 S. Ct. 2064 (2010).
Claims against Defendants City of Durham,
Voorhess, Chadwell, Bell, Bonfiel, McFadden,
Catotti, Clement, Ali, Woodard, Stancil, and Brown
The Amended Complaint lacks sufficient factual matter to state
any claim(s) against Defendants City of Durham, Voorhess, Chadwell,
Bell, Bonfiel, McFadden, Catotti, Clement, Ali, Woodard, Stancil,
and Brown.
As to the claims against the City of Durham, “[a] municipality
cannot be held liable under Section 1983 unless action pursuant to
official
municipal
policy
of
-6-
some
nature
caused
[the]
constitutional tort.”
Monell v. Department of Social Services,
436 U.S. 658, 691 (1978).
To establish liability against a
municipality under Section 1983, a plaintiff therefore must show
that “the constitutional injury is proximately caused by a written
policy or ordinance, or by a widespread practice that is ‘so
permanent and well settled as to constitute a ‘custom or usage’
with the force of law.’”
McFadyen v. Duke Univ., ___ F. Supp. 2d
___, ___, 2011 WL 1260207, at *50 (M.D.N.C. 2011) (Beaty, C.J.)
(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988)).
The
allegations.
Amended
Complaint
contains
no
such
factual
(See Docket Entry 26.)5
As to Defendants Voorhess, Chadwell, Bell, Bonfiel, McFadden,
Catotti, Clement, Ali, Woodard, Stancil, and Brown, “[b]ecause
vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff
must
plead
that
each
Government-official
defendant,
through the official’s own individual actions, has violated the
Constitution [or federal law].”
Iqbal, 129 S. Ct. at 1948.
Moreover, any claim against supervisory officials under Section
1983 requires a showing that “‘(1) the supervisor had actual or
5
This deficiency also forecloses any official-capacity claim against any
individual defendant because “[s]uch a claim, in effect, is against the
governmental entity employing [the official].” Nivens v. Gilchrist, 444 F.3d
237, 249 (4th Cir. 2006) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985));
accord Gray v. Lewis, 51 F.3d 426, 431 (4th Cir. 1995). “[Because] the claims
against the officers in their official capacities are claims against the entities
for which the officers were acting . . ., it must be shown that the actions of
the officers were unconstitutional and were taken pursuant to a custom or policy
of the entity.” Giancola v. State of W. Va. Dep’t of Pub. Safety, 830 F.2d 547,
550 (4th Cir. 1987) (citing Monell, 436 U.S. at 690-92) (emphasis added); accord
Gordon v. Kidd, 971 F.2d 1087, 1097 (4th Cir. 1992).
-7-
constructive knowledge that his subordinate was engaged in conduct
that posed a “pervasive and unreasonable risk” of constitutional
injury
to
citizens
like
the
plaintiff;
(2)
the
supervisor’s
response to that knowledge was so inadequate as to show “deliberate
indifference to or tacit authorization of the alleged offensive
practices”; and (3) there was an “affirmative causal link” between
the supervisor’s inaction and the particular injury suffered by the
plaintiff.’” McFadyen, ___ F. Supp. 2d at ___, 2011 WL 1260207, at
*57 (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)
(internal ellipses omitted)).
The Amended Complaint does not
allege any facts showing any personal involvement by any of these
Defendants in any alleged unlawful activity or establishing any of
the elements of supervisory liability.
(See Docket Entry 26.)
All of Plaintiff’s claims against Defendants City of Durham,
Voorhess, Chadwell, Bell, Bonfiel, McFadden, Catotti, Clement, Ali,
Woodard, Stancil, and Brown, therefore, fail as a matter of law.
Claim for Demolition of House
The Amended Complaint identifies only Defendant Hester as
having played a role (direct or supervisory) in “tear[ing] the
house down on 1010 Washington Street without a 30 day notice . . .
[in violation of North Carolina law and the] Durham City Code.”
(Id. at 9.) Accordingly, to the extent the Amended Complaint seeks
to hold Defendants Crabtree and Rauch liable for that conduct, it
fails to state a claim.
See Iqbal, 129 S. Ct. at 1948 (“Because
vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff
must
plead
that
each
-8-
Government-official
defendant,
through the official’s own individual actions, has violated the
Constitution [or federal law].”); McFadyen, ___ F. Supp. 2d at ___,
2011 WL 1260207, at *57 (quoting requirements for supervisory
liability set out in Shaw, 13 F.3d at 799).
Further, as to
Defendant Hester (and, as an alternative ground for dismissal for
all other Defendants), this claim fails as a matter of law because
Plaintiff has “an adequate and meaningful postdeprivation remedy in
the form of an action for inverse condemnation in state court.”
Yates v. Jamison, 782 F.2d 1182, 1185 (4th Cir. 1986) (ordering
dismissal of Section 1983 case brought by property-owners against
North Carolina city and its officials based on alleged destruction
of house without notice required by North Carolina law).
The Court, therefore, should dismiss Plaintiff’s Section 1983
claim regarding demolition of the house at 1010 Washington Street.
Claims for Trespass
Defendants have asserted the defense of qualified immunity as
a
basis
for
Defendants.
dismissal
of
all
claims
against
the
individual
(See Docket Entry 28 at 3; Docket Entry 29 at 7.) The
Amended Complaint alleges that federal constitutional violations
occurred when Defendants Hester, Crabtree, and Rauch trespassed at
1010 Washington Street, on June 4, 2009, and Defendant Rauch
trespassed there on December 7, 2009.
(Docket Entry 26 at 8.)
In
light of the assertion of qualified immunity, the Court must
determine whether, on the date(s) in question, “it would [have]
be[en] clear to a reasonable [official] that [his or her] conduct
was unlawful in the situation he [or she] confronted.”
-9-
Saucier v.
Katz, 533 U.S. 194, 202 (2001). See also Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982) (holding that government officials “are
shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known”); McVey v.
Stacy, 157 F.3d 271, 277 (4th Cir. 1998) (“When determining whether
a reasonable officer would have been aware of a constitutional
right, we do not impose on the official a duty to sort out
conflicting decisions or to resolve subtle or open issues.”).
“A necessary concomitant to the determination of whether the
constitutional
right
asserted
by
a
plaintiff
is
‘clearly
established’ at the time the defendant acted is the determination
of
whether
the
plaintiff
has
constitutional right at all.
asserted
a
violation
of
a
Decision of this purely legal
question permits courts expeditiously to weed out suits which fail
the test without requiring a defendant who rightly claims qualified
immunity to engage in expensive and time consuming preparation to
defend the suit on its merits.”
Siegert v. Gilley, 500 U.S. 226,
232 (1991); see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(recognizing that qualified immunity is “an entitlement not to
stand trial or face the other burdens of litigation” (emphasis
added)).
In this case, Plaintiff has not come forward with
sufficient allegations to permit a finding that Defendants Hester,
Crabtree,
and
Rauch
violated
Plaintiff’s
clearly-established
constitutional rights on June 4 and/or December 7, 2009.
-10-
According to the Amended Complaint:
On June 4, 2009, Defendants Hester, Crabtree, and Rauch
trespassed at 1010 Washington Street (“which was ‘posted’ in a
manner reasonably likely to come to the attention of anyone who
would approach the front entry”), when they “knock[ed] loudly at
the front door[,] . . . stated that they were city inspectors
investigating a complaint and requested that they be let in ‘now,’
. . . [such that an occupant] let[] [them] inside the house.”
(Docket
Entry
26
at
3-4;
accord id.
at 11.)6
In addition,
“[Defendant] Rauch and a demolition team [trespassed] on December
7, 2009 [by] conducting a walk around of 1010 Washington Street
. . . [and] proceed[ing] to conduct a visual inspection of the
crawl space of the property.”
(Id. at 4-5.)
They accomplished
that inspection by “opening up [a] rear acess [sic],” after which
Plaintiff “confront[ed] [Defendant] Rauch . . . and ask[ed] whats
[sic] up now” to which Defendant Rauch “replie[d] its [sic] coming
down [Plaintiff] we are gonna [sic] bulldoze the house down.” (Id.
at 14-15; accord id. at 5 (stating that when Plaintiff “arrive[d]
at
1010
Washington
Street
[he]
was
immediately
informed
by
[Defendant] Rauch that 1010 Washington Street ha[d] been scheduled
for demolition”).) Plaintiff “then asked [Defendant] Rauch and his
demolition team to get the hell off of the property.”
6
(Id. at 15.)
After entering, Defendants Hester, Crabtree, and Rauch “walked inside the
kitchen and the bathroom and proceeded out the door.” (Docket Entry 26 at 11.)
Plaintiff arrived in time to see Defendants Hester, Crabtree, and Rauch “leaving
off [the] front porch . . . [and] walk[ing] around the corner to there [sic] City
of Durham vehicles . . . .” (Id. at 12-13.)
-11-
“The Fourth Amendment protects the ‘right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures’ by the government or its
agents.”
United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998) (quoting U.S. Const. amend. IV) (emphasis added).7
“A
‘search’ occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed.”
United States v.
Jacobsen, 466 U.S. 109, 113 (1984). “[T]ranslation of the abstract
prohibition against ‘unreasonable searches and seizures’ into
workable guidelines for the decision of particular cases is a
difficult task . . . .
Nevertheless, one governing principle
. . . has consistently been followed:
except in certain carefully
defined classes of cases, a search of private property without
proper consent is ‘unreasonable’ unless it has been authorized by
a valid search warrant.”
Camara v. Municipal Ct. of City & Cnty.
of San Francisco, 387 U.S. 525, 528-29 (1967).
“[A] search of one’s home or its curtilage, effected as a
result of a trespass, is an encroachment on a person’s expectancy
of privacy and is for that reason, but not because of the trespass,
a violation of the Fourth Amendment if not based on probable cause
7
“The basic purpose of this Amendment, as recognized in countless
decisions of th[e] [Supreme] Court, is to safeguard the privacy and security of
individuals against arbitrary invasions by governmental officials. The Fourth
Amendment thus gives concrete expression to a right of the people which is basic
to a free society. As such, the Fourth Amendment is enforceable against the
States through the Fourteenth Amendment.” Camara v. Municipal Ct. of City &
Cnty. of San Francisco, 387 U.S. 523, 528 (1967). The undersigned Magistrate
Judge is not aware of any theory by which the Fifth Amendment might bear upon
Plaintiff’s “trespass” claims.
-12-
or authorized by a search warrant.”
F.2d 653, 660 (4th Cir. 1978).
United States v. Jackson, 585
“[A] routine inspection of the
physical condition of private property is a less hostile intrusion
than
the
typical
policeman’s
search
for
the
fruits
and
instrumentalities of crime,” id. at 530, but the Supreme Court
nonetheless has held:
that administrative searches of [private property] . . .
are significant intrusions upon the interests protected
by the Fourth Amendment, that such searches when
authorized and conducted without a warrant procedure lack
the traditional safeguards which the Fourth Amendment
guarantees to the individual, and that the [the public
interest in enforcement of minimum fire, housing, and
sanitation standards is] insufficient to justify so
substantial a weakening of the Fourth Amendment’s
protections [as relaxation of the warrant requirement].
Id. at 533.
Accordingly, absent an “emergency demanding immediate
access . . . [the Fourth Amendment requires] that the inspectors
[responsible for enforcing administrative property regulations]
obtain a warrant to search [private property] . . . .”
Id. at 540.
As to the incident on June 4, 2009, assuming that their
alleged acts of “knock[ing] loudly,” identifying themselves as
“city inspectors investigating a complaint,” and “request[ing] that
they be let in ‘now’” (Docket Entry 26 at 3-4) otherwise would have
rendered the entry by Defendants Hester, Crabtree, and Rauch nonconsensual,8 Plaintiff’s claim fails as a matter of law, because
8
“It is well established that a search occurs for Fourth Amendment
purposes ‘when officers gain visual or physical access to a room after an
occupant opens the door not voluntarily, but in response to a demand under color
of authority.’” United States v. Mowatt, 513 F.3d 395, 400 (4th Cir. 2008)
(quoting United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997)) (internal
ellipses omitted), abrogated on other grounds, Kentucky v. King, 131 S. Ct. 1849
(continued...)
-13-
his original Complaint conceded that Plaintiff had agreed to an
inspection on that date and that the City of Durham had obtained a
search warrant (see Docket Entry 1 at 2-3).
See Bright v. QSP,
Inc., 20 F.3d 1300, 1305 (4th Cir. 1994) (noting that “admissions
in the pleadings are binding” (internal quotation marks omitted)).9
Plaintiff’s claim against Defendant Hester regarding the events of
December 7, 2009, also falls short.
Assuming that Plaintiff has a
reasonable expectation of privacy in the crawl-space beneath 1010
Washington Street,10 the Amended Complaint alleges an insufficient
8
(...continued)
(2011) (ruling that knocking on door loudly and announcing status as police
officers did not amount to “demand” for entry); but see United States v. Cephas,
254 F.3d 488, 493 (4th Cir. 2001) (“A voluntary response to an officer’s knock
at the front door of a dwelling does not generally implicate the Fourth
Amendment, and thus an officer generally does not need probable cause or
reasonable suspicion to justify knocking on the door and then making verbal
inquiry.”); United States v. Taylor, 90 F.3d 903, 909 (4th Cir. 1996) (“Absent
express orders from the person in possession against any possible trespass, there
is no rule of private or public conduct which makes it illegal per se, or a
condemned violation of the person’s right of privacy, for any one openly and
peaceably to walk up the steps and knock on the front door of any man’s castle
whether the questioner be a pollster, a salesman, or an officer of the law.”
(internal ellipses and quotation marks omitted)).
9
Plaintiff’s Amended Complaint does not explicitly contradict those
admissions from his original Complaint.
(See Docket Entry 26.)
Nor has
Plaintiff offered any argument that he made those earlier admissions by mistake
and that they are untrue; indeed, as noted in the Background section, supra,
p. 4, Plaintiff did not even respond to Defendants’ Motion to Dismiss Amended
Complaint.
Under these circumstances, Plaintiff remains bound by his prior
admissions. See New Amsterdam Casualty Co. v. Waller, 323 F.2d 20, 24 (4th Cir.
1963) (delimiting when court may relieve party of admissions in pleadings).
10
“At common law, the curtilage is the area to which extends the intimate
activity associated with the sanctity of a man’s home and the privacies of life
and therefore has been considered part of home itself for Fourth Amendment
purposes.
Thus, courts have extended Fourth Amendment protection to the
curtilage; and they have defined the curtilage, as did the common law, by
reference to the factors that determine whether an individual reasonably may
expect that an area immediately adjacent to the home will remain private.”
Oliver v. United States, 466 U.S. 170, 180 (1984) (internal citation and
(continued...)
-14-
intrusion upon such interests to permit a finding that Defendant
Hester violated a clearly established right under the Fourth
Amendment. Defendant Hester’s assertion of qualified immunity thus
defeats this claim as a matter of law.
In evaluating whether a Fourth Amendment violation occurred,
the
Supreme
Court
has
taken
into
account
the
fact
that
the
challenged government conduct “could, at most, have only a de
minimis impact on any protected property interest.”
U.S. at 125.
Jacobsen, 466
Moreover, the Fourth Circuit has held that a
government agent’s act of “opening [an] unlocked door and stepping
inside, without a warrant [or other lawful authority] . . . was at
worst a minor and technical invasion of [the resident’s] rights.”
Seidman, 156 F.3d at 547-49.
Simply put, “the Fourth Amendment
cannot be stretched to bar categorically all government breaches of
the curtilage. [Some] invasions implicate the law of trespass, but
not necessarily the Fourth Amendment.”
Widgren v. Maple Grove
Twp., 429 F.3d 575, 585 (6th Cir. 2005).
To
measure
the
reach
of
the
Fourth
Amendment
in
such
situations, courts consider it “highly significant [whether] the
purpose
of
government
intrusion
[that
took
place]
was
an
administrative, not criminal, inspection.” Id. Defendant Hester’s
10
(...continued)
quotation marks omitted); see also United States v. Romero-Bustamente, 337 F.3d
1104, 1108 & n.4 (9th Cir. 2003) (citing Oliver in reaffirming view that crawlspace beneath house constitutes “part of the dwelling, and thus a warrant, or
some reason for a search without a warrant, was necessary” for search of crawlspace (internal quotation marks omitted)); United States v. Van Dyke, 643 F.2d
992, 993 n.1 (4th Cir. 1981) (quoting with approval definition of “curtilage” as
“‘an area of domestic use immediately surrounding a dwelling and usually but not
always fenced in with a dwelling”).
-15-
alleged opening of the crawl-space door and peering within was not
part of a criminal investigation. Indeed, the purported actions by
Defendant
Hester
lacked
even
any
administrative
enforcement
purpose, as reflected by the admission in the Amended Complaint
(documented above, supra, p. 11) that the decision to demolish the
structure at 1010 Washington Street already then had been made.
In concluding that the allegations in the Amended Complaint
fail to show that Defendant Hester violated a clearly established
right
under
the
Fourth
Amendment
on
December
7,
2009,
the
undersigned Magistrate Judge finds persuasive a decision by the
United States Court of Appeals for the Tenth Circuit affirming the
dismissal of a Section 1983 claim under similar circumstances.
Artes-Roy v. City of Aspen, 31 F.3d 958, 962-63 (10th Cir. 1994)
(“[W]e assume [the city official] pushed open the door to the
premises and stepped into the entryway without any proper consent.
[He] was not on the premises to inspect for a violation of the
building code; he and the inspector had already seen what they
considered violations . . . .
It seems clear [the city official]
did not intend to make any arrest on the premises
. . . .
Thus,
[he] did not enter plaintiff’s home for either a search or a
seizure. We need not in this appeal determine whether an officer’s
warrantless entry without consent into a private residence can
never violate the Fourth Amendment if the official intends no
search or seizure . . . [because here the] intrusion was minimal
. . . .
In these circumstances, we hold there was no Fourth
Amendment violation.”); see also Ingraham v. Wright, 430 U.S. 651,
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674 (1977) (“There is, of course a de minimis level of imposition
with which the Constitution is not concerned.”); Hessel v. O’Hearn,
977 F.2d 299, 303 (7th Cir. 1992) (“[I]f a loss is not only small
but also indefinite, so that substantial resources would have to be
devoted to determining whether there was any loss at all, courts
will invoke the de minimis doctrine and dismiss the case, even if
it is a constitutional case.”).
In sum, the Amended Complaint fails to state a claim against
Defendants Hester, Crabtree, and Rauch regarding the events of June
4 and/or December 7, 2009.
Plaintiff’s Pending Motions
None of Plaintiff’s pending motions have any merit:
1) no need exists to join any motions or to conduct a hearing,
as Plaintiff has requested (see Docket Entries 23, 36, 40);
2) Defendants have not filed an answer or other pleading under
Federal Rule of Civil Procedure 7(a) and thus Plaintiff has no
right to a more definite statement under Federal Rule of Civil
Procedure 12(e), as he asserts (see Docket Entries 24, 27, 34, 35);
3) Plaintiff’s conclusory, unsupported Motion for Judgment on
the Pleadings (Docket Entry 25) does not address the deficiencies
that
warrant
granting
Defendants’
Motion
to
Dismiss
Amended
Complaint and provides no basis to enter judgment in his favor;
4) Plaintiff’s “Motion Special Matters” (Docket Entry 34)
simply asserts that Defendants should not have torn down the
structure at 1010 Washington Street after he instituted this
action, but that assertion fails in light of the Court’s prior
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denial of preliminary equitable relief and the conclusion herein
that his Amended Complaint lacks merit;
5) Defendants did not waive the right to move for dismissal
under Federal Rule of Civil Procedure 12(b)(6), as Plaintiff
suggests (see Docket Entry 41), but timely filed such a motion; and
6)
given
that
Defendants
moved
to
dismiss
the
Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6), the Court
neither has set a scheduling conference nor entered a scheduling
order and thus Plaintiff lacks any entitlement to pursue discovery,
as he proposes (see Docket Entry 47).
CONCLUSION
Plaintiff’s pending motions all lack merit and his Amended
Complaint fails to state a claim under Rule 12(b)(6).
This latter
failure comes after (as detailed in the Background section, supra,
pp. 2-3) Plaintiff had received a prior warning to address the
specific deficiencies that still persist.
IT IS THEREFORE RECOMMENDED that Defendants’ Motion to Dismiss
Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Docket
Entry 28) be GRANTED, that Plaintiff’s Motion for Judgement on the
Pleadings (Docket Entry 25) be DENIED, and that this action be
DISMISSED WITH PREJUDICE.
IT IS ORDERED that all of Plaintiff’s other pending motions
(Docket Entries 23, 24, 27, 34-36, 40, 41, 47) are DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 30, 2011
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