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Strong v. Perrone

United States District Court, W.D. New York

January 8, 2018



          HON. FRANK P. GERACI, JR., United States District Court Chief Judge


         Plaintiff 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.[1] 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.[2] See id.

         Plaintiff 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.


         On 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.


         Federal 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).


         Plaintiff 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.

         Section 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.

         Notably, 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.

         II. Claims Against the ...

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