United States District Court, S.D. New York
SHERMAN E. BROWN, Plaintiff,
POLICE OFFICER VOLPE, et al, Defendants.
OPINION AND ORDER
ENGELMAYER, United States District Judge
se plaintiff Sherman E. Brown brings this action under
42 U.S.C. § 1983, alleging that defendants Frank Volpe
("Volpe"), a police officer, and Sandeep Sach Deva
a/k/a "Store Operator/Manager" a/k/a
"Sam" ("Deva") violated Brown's
federal constitutional rights in connection with the alleged
installation of a "spy cam device" on Brown's
computer. Volpe moves to dismiss, under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that
follow, the Court grants Volpe's motion.
is difficult to decipher and contains conclusory allegations.
Treating the factual allegations as true in deciding this
motion to dismiss, and reading the SAC with solicitude to
Brown's pro se status, the Court understands
Brown to allege the following.
December 21, 2012, an individual named Dominic Barone
installed a "spy cam device" in Brown's
computer. SAC at 3. This device recorded private
footage of Brown. Id. at 4. Barone sent the footage
to Deva, who posted it on the internet. Id. On May
24, 2013, Brown "respectfully confronted]" Deva in
person, at Deva's workplace, about the posted footage and
expressed an intent to file a police report. Id. at
5. After Brown left, Deva called his "personal
friend" Volpe, and together Deva and Volpe
"conceived a plan ... that, [Brown] would not be allowed
to make a report against [Deva] for criminal wrong doing, and
the spy cam device [would] be 'tampered/altered' in
physical appearance, to 'cover-up' the
evidence." Id. at 5-6. Brown later went to the
New Windsor Police Department, where he spoke with Volpe and
showed Volpe the device. Id. at 7. Volpe left the
room with the device, tampered with it by removing the
camera, and then returned several minutes later to inform
Brown that no complaint could be filed because there was no
camera in the device. Id.
November 17, 2015, Brown filed the complaint. Dkt. 1. On
December 9, 2015, the Court granted Brown leave to file an
amended complaint and notified Brown that failure to do so
would result in the complaint's dismissal for failure to
state a claim upon which relief may be granted. Dkt. 3.
February 17, 2016, Brown filed his First Amended Complaint
("FAC"). Dkt. 8. The FAC alleged, pursuant to 42
U.S.C. § 1983, violations of the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments to the United States
Constitution and violations of the Americans with
Disabilities Act ("ADA"). On May 9, 2016, the Court
issued an opinion and order dismissing (a) all claims against
Barone, (b) all claims against the City of Windsor Police
Department, and (c) all claims under the ADA. Dkt. 12.
Brown's First, Fourth, Fifth, Eighth, and Fourteenth
Amendment claims against Volpe and Deva remained. On June 17,
2016, Volpe filed a motion to dismiss the FAC, Dkt. 19, along
with a supporting affidavit, Dkt. 20, and a memorandum of
law, Dkt. 22. On June 24, 2016, the Court gave Brown leave to
amend the FAC. Dkt. 24.
25, 2016, Brown filed the SAC. Dkt. 30. On August 15, 2016,
Volpe filed the pending motion to dismiss the SAC for failure
to state a claim under Rule 12(b)(6) and for lack of subject
matter jurisdiction under Rule 12(b)(1), Dkt. 34 ("Def.
Br."), as well as a supporting affidavit, Dkt. 36, and a
memorandum of law, Dkt. 37. On August 30, 2016, Brown filed
an affirmation in opposition. Dkt. 39. On September 13, 2016,
Volpe filed a reply. Dkt. 43. On February 22, 2017, Brown
filed a letter request for leave to amend his motion in
opposition to the motion to dismiss. Dkt. 51. On March 7,
2017, Brown filed a letter request for leave to amend the
SAC. Dkt. 53.
Standard of Review
survive a motion to dismiss for failure to state a claim for
which relief can be granted under Rule 12(b)(6), a complaint
must plead "enough facts to state a claim to relief that
is plausible on its face." Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it
'stops short of the line between possibility and
plausibility of entitlement to relief.'"
Id. (quoting Twombly, 550 U.S. at 557).
considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), a court must accept as true
all the material factual allegations contained in the
complaint, but a court is "not to draw inferences from
the complaint favorable to plaintiffs." See Attica
Central Schools, 386 F.3d at 110. A court "may
consider affidavits and other materials beyond the pleadings
to resolve the jurisdictional issue, but [a court] may not
rely on conclusory or hearsay statements contained in the
affidavits." Id. "The plaintiff bears the
burden of proving subject matter jurisdiction by a
preponderance of the evidence." McGowan v. United
States, 825 F.3d 118, 125-26 (2d Cir. 2016) (quoting
Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005)). A district court properly
dismisses an action under Rule 12(b)(1) if the court
"lacks the statutory or constitutional power to
adjudicate it." Cortlandt Street Recovery Corp. v.
Hallas Telecommns. S.A.R.L., 790 F.3d 411, 416-17 (2d
Cir. 2015) (quotation omitted).
considering a motion to dismiss, a district court must
"accept all factual claims in the complaint as true,
and draw all reasonable inferences in the plaintiff's
favor." Lotes Co. v. Hon Hai Precision Indus.
Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting
Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d
106, 108 (2d Cir. 2010) (internal quotation marks omitted)).
However, this tenet is "inapplicable to legal
conclusions." Iqbal, 556 U.S. at 678.
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. "[R]ather, the
complaint's [J]actual allegations must be enough
to raise a right to relief above the speculative level,
i.e., enough to make the claim plausible."
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
Cir. 2010) (quoting Twombly, 550 U.S. at 555, 570)
(internal quotation marks omitted) (emphasis in Arista
Records). A complaint is properly dismissed where, as a
matter of law, "the allegations in [the] complaint,
however true, could not raise a claim of entitlement to
relief." Twombly, 550 U.S. at 558.
must construe a pro se plaintiff's pleadings
liberally. McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004). "[Dismissal of a pro se claim
as insufficiently pleaded is appropriate only in the most
unsustainable of cases." Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (quoting
Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir.
2008)). "[A] pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers." Id.
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam)). III. Discussion The SAC alleges that Volpe
violated Brown's constitutional rights by, after
conspiring with Deva, refusing to allow Brown to file a
police report and tampering with the "spy cam
device." See SAC at 5-7. The SAC alleges that
these actions (a) denied Brown access to the courts in
violation of the First Amendment, (b) violated his rights
under the Fourth Amendment, (c) violated his rights under the
Eighth Amendment, (d) deprived him of property without due
process of law in violation of the Fourteenth Amendment, and
(e) denied him equal protection in violation of the
Fourteenth Amendment. The SAC also brings conspiracy claims
pursuant to 42 U.S.C. §§ 1983 and 1985.
moves to dismiss on two grounds: under Rule 12(b)(6), for
failure to state a claim, and under Rule 12(b)(1), for lack
of standing. The Court is mindful that standing is a
threshold issue. But because Volpe's Rule 12(b)(1) and
Rule 12(b)(6) motions are closely interwoven, and because
understanding the elements of Brown's claims is necessary
to evaluate whether he has standing to bring them, the Court
addresses each argument in turn.
Failure to State a Claim
claims are brought under § 1983. "Section 1983
itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights
established elsewhere." Thomas v. Roach, 165
F.3d 137, 142 (2d Cir.1999) (citing City of Okla. City v.
Tuttle, 471 U.S. 808, 816 (1985)). To assert a
constitutional violation under § 1983, "a plaintiff
must allege (1) that the challenged conduct was attributable
at least in part to a person acting under color of state law,
and (2) that such conduct deprived him of rights, privileges,
or immunities secured by the Constitution or laws of the
United States." Miller v. Cty. of Nassau, 467
F.Supp.2d 308, 313 (E.D.N.Y. 2006); see Segal v. City of
New York, 459 F.3d 207, 219 (2d Cir. 2006) (a defendant
cannot be held liable under § 1983 absent an
"underlying constitutional violation").
Volpe concedes that, when interviewing civilians about
potential criminal activities, he was a state actor for
purposes of § 1983. Def. Br. at 12. He contends,
however, that Brown's SAC fails to plead a constitutional
violation. For the reasons below, the Court finds that Brown
has failed to state each of his claims.