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Brown v. Police Officer Volpe

United States District Court, S.D. New York

March 13, 2017

SHERMAN E. BROWN, Plaintiff,
POLICE OFFICER VOLPE, et al, Defendants.


          PAULA. ENGELMAYER, United States District Judge

         Pro 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.

         I. Background

         A. Factual Background[1]

         The SAC 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.

         On December 21, 2012, an individual named Dominic Barone installed a "spy cam device" in Brown's computer.[2] 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.

         B. Procedural History

         On 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.

         On 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.

         On July 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.[3]

         II. Standard of Review

         To 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).

         In 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).

         In 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.

         A court 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.

         Volpe 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.

         C. Failure to State a Claim

         Brown's 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").

         Here, 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.

         1. Brown's ...

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