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Tammaro v. City of New York

United States District Court, S.D. New York

March 30, 2018

CITY OF NEW YORK, et al., Defendants.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge.

         Michael Tammaro brings this pro se federal civil rights action against the City of New York (the “City”), Detective Christopher Breslin, Minjak LLC, Jan Zonon, Jennifer Gatien, one named and three unnamed New York Police Department property clerks, and four unnamed Rikers Island corrections officers. The various claims that Tammaro alleges against a web of defendants in the Third Amended Complaint (“Complaint”) branch from Tammaro's March 2013 arrest for cashing false checks and subsequent convictions for grand larceny, forgery, identity theft, and criminal possession of a forged instrument.[1] This Court stayed the claims challenging the lawfulness of Tammaro's arrest and the seizure of his property pending the disposition of his criminal conviction. (See ECF No. 104.) As such, those claims are not subject to dismissal on the instant motion. In addition, Tammaro voluntarily dismissed his claims against Minjak LLC and Zonon, who were the landlords of his apartment where he was arrested. (ECF No. 107.)

         The City and Detective Breslin (together, the “Moving Defendants”) move under Fed.R.Civ.P. 12(b)(6) to dismiss Tammaro's Fourth and Fourteenth Amendment claims arising from the NYPD's retention and destruction of property seized in connection with Tammaro's arrest. The Moving Defendants also seek to dismiss Eighth and Fourteenth Amendment claims stemming from abuse Tammaro allegedly suffered at the hands of Rikers Island corrections officers and other inmates while incarcerated. For the reasons that follow, the Moving Defendants' motion is granted as to the property claims against Detective Breslin and the NYPD property clerks, and denied as to (1) the property claims against the City to the extent that they arise out of the Fourteenth Amendment; and (2) the Eighth and Fourteenth Amendment prisoner abuse claims.


         The relevant facts are gleaned from the Complaint and Tammaro's opposition papers, which are presumed true for purposes of this motion. See Ceara v. Deacon, 68 F.Supp.3d 402, 405 (S.D.N.Y. 2014) (explaining that on a motion to dismiss a pro se complaint, a court may consider materials outside the pleadings “to the extent that they are consistent with the allegations in the complaint, ” including “documents that a pro se litigant attaches to his opposition papers” (quotation marks omitted)).

         I. The Underlying Criminal Proceeding

         On March 4, 2013, NYPD detectives arrested Tammaro-a fashion and celebrity photographer-at his Manhattan apartment based on a tip from Jennifer Gatien, a woman who had been living in Tammaro's apartment. (Compl. ¶¶ 1, 4-10.) After bringing Tammaro to the precinct, Detective Breslin informed him that Gatien claimed that Tammaro had forged her signature on three checks he cashed. (Compl. ¶¶ 1, 10.) Although Tammaro denied these allegations, he was arraigned on March 5, 2013 and remanded into custody at Rikers Island, where he remained incarcerated until July 26, 2016. (Compl. ¶ 11-12, 37.)

         II. Seizure and Destruction of Tammaro's Property

         On the heels of Tammaro's arrest and arraignment, Detective Breslin obtained a warrant to search Tammaro's apartment.[2] Pursuant to a search conducted on March 12, 2013, Detective Breslin and other NYPD members seized various items that are the subject of this motion, including eight external hard drives, two desktop computers, one laptop, four cellphones, an iPad, an iPod, Tammaro's passport, and other documents. (Compl. ¶ 17-18.) While some of these items were vouchered as investigatory evidence, other seized property was not listed on the voucher, including some of the hard drives, the laptop, and the iPad. (Compl. ¶¶ 20-21.)

         Over the next few years, Tammaro embarked on a Kafkaesque odyssey to retrieve his belongings. Shortly after the seizure, Tammaro and his attorneys repeatedly asked the prosecutor to return his property, both at court appearances and through off-the-record requests. (Compl. ¶ 24.) As early as December 10, 2013, the prosecution indicated that they intended on using only a recovered checkbook at trial. And at a hearing on March 28, 2014, the judge presiding over Tammaro's criminal case instructed the prosecutor that if he did not intend to use the property as evidence in the criminal case, then he should provide a district attorney's release for Tammaro to retrieve his property. (Compl. ¶¶ 24-25.) Sometime after the March 28 hearing, the prosecutor informed Tammaro's attorney that Tammaro could designate individuals to retrieve the property. (Compl. ¶ 26.) Although Tammaro designated three such individuals in late-September 2014-Maury DiMauro, Jason Lopez, and Jackie Harris-the prosecutor did not provide a district attorney's release until October 21, 2014. (Compl. ¶¶ 27-28.) The release indicated that the property was not needed as evidence and sanctioned its release to any authorized individual. (Compl. ¶ 27.)

         The NYPD Property Clerk Division received the district attorney's release sometime in mid-November 2014. Armed with the release, DiMauro and Harris attempted to retrieve Tammaro's property from the NYPD's Manhattan Property Office at 1 Police Plaza. (Compl. ¶ 30.) The property clerk informed them that they needed to retrieve the property from the Pearson Place Warehouse in Long Island City. (Compl. ¶ 30.) Those attempts were also unsuccessful because Pearson Place Warehouse property clerk refused to release the property unless she first received authorization from Detective Breslin. (Compl. ¶ 31.) Subsequent efforts to reach Detective Breslin were unavailing. First, the property clerk contacted Detective Breslin to request release of the property and informed Harris that she would be contacted when Detective Breslin provided authorization-notification that never arrived. (Compl. ¶ 31, 33.) Attempts by DiMauro and Harris to reach Detective Breslin to authorize the release of Tammaro's property were similarly ineffective. (Compl. ¶ 32.) Finally, while incarcerated, Tammaro sent letters to the judge, Detective Breslin, and the prosecutor requesting the release of his property, but received no response. (Compl. ¶ 35.)

         After his release from incarceration on July 26, 2016, Tammaro's attempt to retrieve his property from the NYPD's Manhattan Property Office was rebuffed because he now needed a new district attorney's release. (Compl. ¶¶ 37-38.) Separately, around August 16, 2016, Detective Breslin finally authorized the property clerk to release Tammaro's property. (Compl. ¶ 39.) But it was now too late. While Tammaro eventually secured a new district attorney's release around September 2016, the Pearson Place Warehouse property clerk informed him that his property-including all of the photographs that he had taken in his 25-year photography career-had already been destroyed by the NYPD almost one year earlier, on October 9, 2015. (Compl. ¶¶ 36, 41-42.) Tammaro alleges that throughout this entire ordeal, he was never informed that he could retrieve his property, of the procedure for retrieving his property, or that his property could be destroyed. (See Compl. ¶¶ 22, 33.) Moreover, he claims that he did not receive a copy of the property voucher until he attempted to recover his property on August 5, 2016, after being released from incarceration. (Compl. ¶ 22.)

         III. Tammaro's Treatment at Rikers Island

         Tammaro also asserts constitutional violations by corrections officers while he was incarcerated at Rikers Island, which are principally premised on three categories of actions or omissions. First, Tammaro alleges that the corrections officers failed to protect him from repeated physical violence and verbal harassment from other inmates based on his race and sexual orientation. Although Tammaro reported these incidents to corrections officers and medical personnel, the corrections officers instead disclosed his sexual orientation to other inmates, exposing him to further violence. (Compl. ¶¶ 12-13.) Second, Tammaro claims that the corrections officers themselves verbally harassed him with homophobic slurs and physically assaulted him by shoving him into walls without provocation. (Compl. ¶ 13.) Finally, he avers that on one occasion, corrections officers discarded his belongings because of his sexual orientation. (Compl. ¶ 13.)


         The standards governing motions to dismiss under Rule 12(b)(6) are well-settled. To avoid dismissal, a pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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.” Iqbal, 556 U.S. at 678. In resolving a motion under Rule 12(b)(6), a court must accept a plaintiff's allegations as true and draw all reasonable inferences in his favor. Gonzalez v. Hasty, 802 F.3d 212, 219 (2d Cir. 2015). However, this “tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014) (quotation mark omitted).

         Where a plaintiff is proceeding pro se, courts liberally construe the complaint, which, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). This maxim applies with particular force when “the pro se plaintiff alleges that [his] civil rights have been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Thus, this Court affords Tamarro “special solicitude” by interpreting his complaint “to raise the strongest claims that it suggests.” Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (quotation marks omitted).


         This Court construes the Complaint to assert Fourth and Fourteenth Amendment claims arising from the failure to release and subsequent destruction of Tammaro's property by Detective Breslin, the NYPD property clerks, and the City of New York (the “Property Claims”), and Eighth and Fourteenth Amendment claims arising from his treatment by Rikers Island corrections officers while incarcerated (the “Prison Abuse Claims”). Because Tammaro asserts claims against government officials, this Court also considers whether any of the Defendants are entitled to qualified immunity. Where, as here, Moving Defendants raise qualified immunity in a Rule 12(b)(6) motion, the facts supporting qualified immunity must appear on the face of the complaint. See McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir. 2004). Accordingly, courts have noted judicial reluctance “to find that defendants are entitled to qualified immunity at the initial stages of the pleadings.” Soto v. City of New York, 2015 WL 3422155, at *3 (S.D.N.Y. May 28, 2015) (quotation mark and citation omitted).

         The qualified immunity doctrine protects public officials “from claims for money damages arising from the performance of their duties.” Ganek v. Leibowitz, 874 F.3d 73, 80 (2d Cir. 2017). Qualified immunity “attaches when an official's conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” White v. Pauly, 137 S.Ct. 548, 551 (2017) (quotation marks omitted). Thus, the shield applies “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Whether a right is “clearly established” depends on “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). While there need not be a case directly on point for a right to be “clearly established, ” existing precedent “must have placed the statutory or constitutional question beyond debate.” White, 137 S.Ct. at 551 (quotation marks omitted); Dudek v. Nassau Cty. Sheriff's Dep't, 991 F.Supp.2d 402, 416 (E.D.N.Y. 2013) (noting that this determination “principally relies on ‘whether or not the law was governed by controlling precedent of this Circuit'”).

I. Documents Considered

As an initial matter, this Court addresses Tammaro's opposition to various documents submitted by Moving Defendants in support of their motion to dismiss. Because a motion brought under Rule 12(b)(6) “challenges only the ‘legal feasibility' of a complaint, ” and takes “no account of its basis in evidence, a court adjudicating such a motion may review only a narrow universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 558-59 (2d Cir. 2016). Accordingly, a court may generally only consider the “facts stated on the face of the complaint, . . . documents appended to the complaint or incorporated in the complaint by reference, and . . . matters of which judicial notice may be taken.” Concord Assocs., L.P. v. Entm't Props. Trust, 817 F.3d 46, 51 n.2 (2d Cir. 2016) (citation omitted). However, “[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect, ' which renders the document ‘integral' to the complaint.” Chambers v. Time Warner, 282 F.3d 147, 153 (2d Cir. 2002).

         As noted above, this Court takes judicial notice of Tammaro's certificate of disposition for the limited purpose of providing background context. See Reilly Decl. Ex. B. In addition, this Court takes judicial notice of the existence and filing of Tammaro's First Amended Complaint and the documents attached thereto. (See Reilly Decl. Ex. F.) See also Eaves v. Designs for Finance, Inc., 785 F.Supp.2d 229, 244-45 (S.D.N.Y. 2011) (taking judicial notice of previous iterations of the complaint “as matters of public record”); Reisner v. Stoller, 51 F.Supp.2d 430, 440 (S.D.N.Y. 1999) (noting that judicial notice may be taken of “matter of public ...

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