United States District Court, E.D. New York
MEMORANDUM OF DECISION AND ORDER
LASHANN DEARCY HALL UNITED STATES DISTRICT JUDGE
Ursula Washington and Ziare Cook, proceeding pro se,
filed this action against Defendant Detective Brian Ilund
alleging constitutional violations pursuant to 42 U.S.C.
§ 1983 arising from searches of Plaintiffs' home by
Defendant Uund on November 19 and November 20, 2014.
Defendant moves pursuant to Federal Rules of Civil Procedure
12(b)(6) and 41(b) to dismiss the Complaint in its entirety.
allege that Defendant, with other officers, arrived at their
home on November 19, 2014. (Compl. ¶ 3, ECF No. 2.)
There, officers questioned Plaintiff Cook and conducted a
search of the apartment in an unsuccessful attempt to locate
Jamar Cook, Plaintiff Cook's father. (Id.) The
officers did not present a search warrant. (Id.)
officers returned the following day. (Id.) According
to Plaintiffs, officers broke the knocker to their front door
and flashed a light through the peephole while banging on the
door. (Id.) When Plaintiff Washington opened the
door, the officers rushed past her, again in search of Jamar
Cook. (Id.) The officers proceeded to search the
bedrooms, behind the sofa, and in the closets. (Id.)
Washington asked the officers if they had a search warrant,
but no such warrant was presented to her. (Id.) At
some point after the search of the home concluded, Defendant
asked Washington her name. (Id.) Upon learning her
name, Defendant arrested Plaintiff Washington pursuant to a
bench warrant that had issued in August 2014 for an open
container violation. (Id.)
withstand a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). A claim
has facial plausibility when the plaintiff pleads factual
content that allows a court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard "is not akin to a 'probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. (internal citations omitted). A court
considering a 12(b)(6) motion must take factual allegations
in the complaint to be true and draw all reasonable
inferences in the plaintiffs favor. Id.
motion to dismiss stage, the Court "must merely
determine whether the complaint itself is legally
sufficient." Morris v. Northrop Grumman Corp.,
37 F.Supp.2d 556, 565 (E.D.N.Y. 1999) (internal citation
omitted). It is not the Court's function to weigh the
evidence that might be presented at trial. Id. The
issue before the Court on a Rule 12(b)(6) motion "is not
whether a plaintiff will ultimately prevail, but whether the
claimant is entitled to offer evidence to support the
claims." Id. (citing Villager Pond Inc. v.
Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995),
cert, denied, 519 U.S. 808 (1996)). Recovery
"may appear remote and unlikely on the face of the
pleading, but that is not the test for dismissal under Rule
12(b)(6)." Id. (citing Gant v. Wallingford
Bd. of Educ, 69 F.3d 669, 673 (2d Cir. 1995)).
as here, the plaintiff is proceeding pro se, courts are
"obliged to construe the plaintiffs pleadings
liberally." Giannone v. Bank of Am., N.A., 812
F.Supp.2d 216, 219 (E.D.N.Y. 2011). As such, pro se
complaints should be read to raise the strongest arguments
that they suggest. Sykes v. Bank of Am., 723 F.3d
399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). A pro se
complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers." Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)). This rule is
"particularly so when the pro se plaintiff alleges that
her civil rights have been violated." Id.
(citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004)). Accordingly, the dismissal of a pro se claim as
insufficiently pleaded is appropriate "only in the most
unsustainable of cases." Rios v. Third Precinct Bay
Shore, No. 08-cv-4641, 2009 WL 2601303, at *2 (E.D.N.Y.
Aug. 20, 2009).
Plaintiffs' Fourth Amendment Claim
argues that dismissal is warranted in this case because: (1)
Defendant had a bench warrant for Plaintiff Washington's
arrest; (2) the purported search of the apartment amounted to
no more than a "quick walk through, " not a search;
and (3) any search that occurred on November 20, 2014, was a
permissible protective sweep to ensure the safety of the
officers. (Mem. Law Supp. Def's Mot. to Dismiss 7, 9-10,
ECF No. 32.) The Court disagrees.
regard to Defendant's first argument, there is no
question that "an arrest warrant founded on probable
cause implicitly carries with it the limited authority to
enter a dwelling in which the suspect lives where there is
reason to believe the suspect is within." Payton v.
New York, 445 U.S. 573, 603 (1980). This authority
extends to bench warrants issued for a failure to appear in
court. See Cogswell v. Cty. of Suffolk Deputy
Sheriff's Dep't, 375 F.Supp.2d 182, 187
(E.D.N.Y. 2005) (authority to enter dwelling to arrest
"includes arrests pursuant to bench warrants issued for
failing to appear in court"). Accordingly, where a bench
warrant is issued for a failure to appear, authorities may
"find and seize" the suspect "anywhere they
[can] find [her]." United States v. Spencer,
684 F.2d 220, 223 (2d Cir. 1982). The existence of a bench
warrant, however, does not give law enforcement unfettered
authority to enter a suspect's dwelling. Rather, for
entry to be lawful, an officer must have "a reasonable
belief that the suspect resides at the place to be entered to
execute an arrest warrant[.]" United States v.
Lauter, 57 F.3d 212, 215 (2d Cir. 1995). In addition,
and of particular significance here, the officer must have a
"reason to believe that the suspect is present."
Id.; see also Spencer, 684 F.2d at 224 (where search
of home was conducted pursuant to a bench warrant in
connection with misdemeanor charges, court had to
"determine whether reason existed to believe that the
suspect was within his home").
case, Plaintiffs allege that officers, including Defendant,
entered and searched their home on two separate
occasions-each time looking for Jamar Cook. (Compl. ¶
3.) According to the Complaint, on the first occasion, the
officers searched the apartment, but did not present a search
warrant. (Id.) On the second occasion, Plaintiff
Washington alleges that when she answered the door, officers
rushed into her home and conducted a search for Jamar Cook.
(Id.) Plaintiff Washington further alleges that it
was only after the officers began searching the residence,
and after she asked the officers whether they had a search