United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR., United States District Court Chief
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. 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. See id.
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 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 GRANTED.
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.
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 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).
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.
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.
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 ...