NELSON S. ROMÁN, District Judge.
Plaintiff Robert Smith, proceeding pro se, commenced this action on November 28, 2016 against Defendants Rita Flynn, Jennifer Armstrong, Paul Pacheco, Cori Rescigno, Faith Watson, and Tina Stanford, employees of the New York State Department of Corrections and Community Supervision ("DOCCS") ("State Defendants"), and Defendant Carl Dubois, Sherriff of Orange County, alleging violations of 42 U.S.C. § 1983. Presently before this Court is a motion to dismiss the complaint pursuant to the Federal Rules of Civil Procedure, Rules 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted by State Defendants and a motion to dismiss the complaint pursuant to Rule 12(b)(6) by Defendant Dubois. For the reasons set forth below, Defendants' motions are GRANTED.
The following facts are taken from Plaintiff's complaint filed on November 28, 2016 (the "Complaint") or matters of which the Court may take judicial notice and are accepted as true for the purposes of this motion.
After serving live years for a parole violation, stemming from a warrant executed by Parole Officer Defendant Rita Flynn on May 27, 2010,
Plaintiff had questions about the 2015 "certified warrants [sic] validity" and requested and received a certified copy of the warrant.
On February 24, 2016, Plaintiff submitted a FOIL request for, and obtained, a copy of the certified warrant executed by Defendant Flynn on the Plaintiff on May 27, 2010 and lodged with Defendant Dubois on May 28, 2010. (Id.) Notary Public Defendant Faith Watson is listed as the notary on the 2010 warrant.
On April 5, 2016, Plaintiff's parole revocation hearing was held before Administrative Law Judge Edward Mevec. (Id. pp. 8-9.) According to Plaintiff, at that proceeding, Defendant Flynn testified that she called Defendant Armstrong requesting that Defendant Armstrong issue a warrant to authorize Defendant Flynn to take the Plaintiff into custody and detention awaiting action from the Board of Parole. (Id. at 9.) Defendant Flynn testified that she both prepared and signed the warrant herself and stated that the warrant had been notarized while it was still blank. (Id.) Judge Mevec "did not vacate the warrant," despite Plaintiffs claim that the 2015 warrant executed by Defendant Flynn and lodged with Defendant Dubois contained forgery and invalid certification.
On April 11, 2016, Plaintiff wrote to the DOCCS Peekskill Area Office Supervisor Defendant Paul Pacheco, copying Chairperson Defendant Tina Stanford, with a description of his complaints against Defendants Flynn, Armstrong, Rescigno, and Watson. (Id. p. 11.) Neither Defendant Pacheco nor Defendant Stanford responded. (Id. pp. 11-12.)
On April 29, 2016, the Plaintiff received the Board of Parole's decision finding him guilty of violating the conditions of his parole and imposing a time assessment to December 19, 2016. (Id. at 12.) Plaintiff was scheduled to be conditionally released to parole supervision on August 2, 2016. (Id.) However, Plaintiff, a convicted sex offender, was detained beyond his August 2, 2016 conditional release date because he was unable to attain housing compliant with the residency requirements under the 2005 amendments to the Sexual Assault Reform Act ("SARA"). (Id.)
To survive a Rule 12(b)(6) motion,
Further, a court is generally confined to the facts alleged in the complaint for the purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the complaint, statements or documents incorporated into the complaint by reference, matters of which judicial notice may be taken, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., plc. 706 F.3d 145, 152 (2d Cir. 2013).
Where, as here, a plaintiff proceeds pro se, the court must construe the Complaint liberally and interpret it to raise the strongest arguments that it suggests. Askew v. Lindsey, No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016) (citing Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet, "`the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.'" Id. (quoting Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013)).
Section 1983 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." 42 U.S.C. § 1983.
Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, a plaintiff must allege "(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution." Castilla v, City of New York, No. 09-CV-5446(SHS), 2013 WL 1803896, at *2 (S.D.N.Y. April 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010), Therefore, a Section 1983 claim has two essential elements: (1) the defendant acted under color of state law, and (2) as a result of the defendant's actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v. Nassau Cry. Police Dep't, 53 F.Supp.2d 347, 354 (E.D.N.Y. 1999) (Section 1983 "furnishes a cause of action for the violation of federal rights created by the Constitution.").
Plaintiff's § 1983 complaint is that he was subject to a warrantless search as well as false arrest and false imprisonment in violation of the Fourth Amendment, made applicable to the States by the Fourteenth Amendment. See Terry v. Ohio, 392 U.S. 1, 8 (1968) (citing Mapp v. Ohio, 367 U.S. 643, 655 (1961)).
The Fourth Amendment to the United States Constitution protects citizens'"persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The general contours of a search and seizure under the Fourth Amendment are well-defined. A search occurs when "`the government violates a subjective expectation of privacy that society recognizes as reasonable.'" United States v. Lainbis, 197 F.Supp.3d 606, 609 (S.D.N.Y. 2016) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). A seizure occurs when "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jones, 565 U.S. 400, 408 (2012) (internal quotations omitted); Harrell v. City of New York, 138 F.Supp.3d 479, 488 (S.D.N.Y. 2015) ("It is settled law that [a] seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property.") (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)) (internal quotations omitted). The "ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California, 134 S.Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)) (internal quotations omitted). The reasonableness standard invokes a "`careful balancing of governmental and private interests.'" Harrell, 138 F. Supp. 3d at 488 (quoting Soldal v. Cook Cry., Ill., 506 U.S. 56, 71 (1992)).
"Parolees subject to terms and conditions of release `have severely diminished expectations of privacy by virtue of their status alone.'" U.S. v. Quinones, 457 Fed. App'x 68, 69 (2d Cir. 2012) (quoting Samson v. California, 547 U.S. 843, 848 (2006)). At the same time, the State's interest in monitoring parolees are substantial, particularly in assisting the State in "reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees." Samson, 547 U.S. at 853.
Plaintiff also invokes the Ex Post Facto Clause and alleges that the application of the 2005 SARA amendment to him was a violation of this clause. The Ex Post Facto Clause prohibits laws that (1) retroactively alter the definition of crimes, (2) make more burdensome the punishment of a crime after its commission, or (3) deprive one charged with a crime of any defenses available according to law at the time when the crime was committed. Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001). "A criminal or penal law is ex post facto when it is: (1) retrospective, and (2) more onerous than the law in effect on the date of the offense." United States v. Ramirez, 846 F.3d 615, 619 (2d Cir. 2017), cert denied, 137 S.Ct. 2253 (2017).
State Defendants claim that the October 31, 2015 search of Plaintiff's residence does not implicate the Constitution because parolees have diminished Fourth Amendment protections. (Defendants' Memorandum of Law in Support of Motion to Dismiss ("State Defs.' Mot.") at 7.) While this Court does not agree that the search did not implicate the Constitution, construing the Plaintiff's Complaint liberally, see Askew v. Lindsey, No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016), the Court holds that the Plaintiff failed to plead sufficient facts to state a claim that the search was unconstitutional. See Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff states that the search of his residence was warrantless and unconsented.
On October 30, 2015, Defendant Flynn conducted a home visit for Plaintiff, to ensure he was adhering to the terms of his parole, which required him to remain in his residence from October 30, 2015 through October 31, 2015. In re Matter of Robert Smith, DOCCS, Warr, # 664261, at 2 (Apr. 2016). The Plaintiff was not at his residence on October 30, 2015 at the time of Defendant Flynn's visit, as was required by his parole. Id. at 2-3. Defendant Flynn returned to Plaintiff's residence on October 31, 2015 during which time she conducted the search. Id. at 3. Because Defendant Flynn knew Plaintiff had violated his parole the day before, Defendant Flynn's October 31, 2015 search of Plaintiff's residence was rationally and reasonably related to the performance of Defendant Flynn's duty to monitor the Plaintiff as a parolee. See Lambus, 2018 WL 3553324, at *30; United States v. Washington, 12-CR-146(JPO), 2012 WL 5438909, at *9-10 (S.D.N.Y. Nov. 7, 2012) (holding that a parole officer's warrantless search of a parolee's residence was rationally and reasonably related to the performance of his duty because the parole officer knew the parolee violated the terms of his supervised release); United States v. Stuckey, 06-CR-339(BSJ), 2006 WL 2390268, at *4 (S.D.N.Y. Aug. 16, 2006) (holding that a parole officer's search of a parolee's residence after learning from parolee that he was having "trouble" with another was "reasonably related" to the performance of his duties).
The seizure was also constitutional. By Plaintiff's own admission, as a result of the search, Defendant Flynn seized items that she had "reasonable cause to believe [caused] [P]laintiff [to be] in violation of conditions of his parole." (Compl. pp. 6-7.) See Riley v. California, 134 S.Ct. 2473, 2482 (2014) (stating that the "ultimate touchstone of the Fourth Amendment is reasonableness.") (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)) (internal quotations omitted). Thus, both the search and the seizure were reasonable, consistent with the state's strong interest in monitoring parolees and not overly intrusive on the Plaintiff's diminished expectation of privacy. See Samson v. California, 547 U.S. 843, 848, 853 (2006). Plaintiff fails to state a facially plausible claim that the search violated his constitutional rights.
To prevail on a false arrest claim, a plaintiff must establish: (1) that the defendant intended to confine the plaintiff; (2) that the plaintiff was conscious of the confinement; (3) that the plaintiff did not consent to the confinement; and (4) that the confinement was not otherwise privileged. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). "[F]alse arrest is considered a kind of false imprisonment, and the claims are analyzed in identical fashion." Mitchell v. Home, 377 F.Supp.2d 361, 371 (S.D.N.Y. 2005).
Probable cause is a complete defense to a false arrest claim. Bernard, 25 F.3d at 102; see also Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause."). "Probable cause is established when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Singer, 63 F.3d at 119 (internal quotation marks omitted); see also Drummond v. Castro, 522 F.Supp.2d 667, 673 (S.D.N.Y. 2007).
Defendant Dubois states that Plaintiff's detention was privileged due to facially valid parole warrants (Defendant Dubois's Memorandum of Law, at 3) and State Defendants argue that Plaintiff's 2010 and 2015 arrests for parole violations were constitutional because they were based on probable cause. (State Defs.' Mot., at 9-10.) This Court agrees and, construing the Plaintiff's Complaint liberally, see Askew v. Lindsey, No. 15-CV-7496(KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016), finds that the Plaintiff has failed to state a claim for false arrest or false imprisonment for both his 2010 and 2015 arrests.
Defendant Flynn arrested Plaintiff on October 31, 2015 with probable cause that Plaintiff violated his parole. (Compl. pp. 6-7.) She knew that the Plaintiff had violated the October 30, 2015 curfew by failing to be at his residence at that time, and a person of reasonable caution would understand this to be a parole violation. See In re Matter of Robert Smith, DOCCS, Warr. # 664261, at 2-3 (Apr. 2016). Additionally, Defendant Flynn discovered, through a constitutional search at the time of Plaintiff's arrest, see discussion supra, items she determined provided "reasonable cause to believe [P]laintiff was in violation of conditions of his parole." (Compl. pp. 6-7.) Thus, Defendant Flynn had probable cause to arrest the Plaintiff, regardless of the validity of the search warrant.
Plaintiff alleges that both the 2010 and the 2015 arrest warrant are invalid because they were notarized before they were completed and because Defendant Flynn signed for the issuing senior parole officers when Defendant Armstrong was in fact the issuer of the 2015 warrant and another senior parole officer was the issue of the 2010 warrant.
Assuming that Plaintiff's allegations about the arrest warrants are true, the Plaintiff is only claiming that there are issues with the certified copies of the arrest warrants, and the issues with those certified copies are technical, insufficient to undermine the arrests because those warrants were supported by probable cause that Plaintiff had violated the terms of his parole. See United States v. Basso, 632 F.2d 1007, 1014 (2d Cir. 1980) ("Even if the warrant application was faulty in some narrow technical sense . . . this defect should not be sufficient to void the warrant when the facts alleged in the petition and the accompanying memorandum established probable cause, as the district judge conceded, to believe that a violation had taken place."); United States v. Broward, 594 F.2d 345, 350 (2d Cir. 1979) (holding that an arrest made under an invalid warrant was still valid if the arresting officers had probable cause). Moreover, those elements in the warrants that Plaintiff identifies as faulty are not necessary for a valid arrest of a parolee. In New York, for a valid parole arrest, a parole officer must (1) have reasonable cause to believe that the parolee violated parole, (2) report the violation to a senior parole officer, and (3) arrange for the senior parole officer to issue the warrant. The individual issuing the warrant cannot be the same as the individual recommending the issuance of a warrant. 9 NYCRR § 8004.2(a)-(b).
For the 2010 arrest, Plaintiff provides no information about the circumstances of that arrest, including whether a Senior Parole Officer was contacted to issue that arrest warrant. Pro se plaintiffs "cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (internal quotation marks omitted). Here, Plaintiff offers only his perception of the validity of the 2010 warrant and copies of the warrant itself, but does not provide sufficient factual allegations to establish deprivations of a constitutional right. Moreover, Plaintiff concedes that the 2010 arrest warrant was issued for a parole violation, making that arrest reasonable. (Compl. p. 6.) Thus, the Plaintiff has failed to state a claim for relief from the 2010 arrest warrant.
For the 2015 arrest, Plaintiff states that Defendant Flynn followed procedure and called Defendant Armstrong to request that she issue an arrest warrant. (Id. p. 7.) Defendant Flynn had probable cause to detain the Defendant and had an arrest warrant issued by a senior parole officer. See discussion supra; 9 NYCRR § 8004.2(a)—(b). Plaintiff failed to show that his 2015 arrest was not `otherwise privileged' and thus failed to state a claim for relief from the 2015 arrest warrant. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994).
Turning to the Plaintiff's false imprisonment claims against Defendants Dubois, Pecheco, and Stanford, Defendant Dubois accepted custody of the Plaintiff in 2010 and in 2015 on the authority of two facially valid warrants, which satisfied the requirements of 9 NYCRR § 8004.2 and provided sufficient authority to detain the Plaintiff. New York Executive Law §259-i(3)(a)(i) ("A warrant issued pursuant to this section shall constitute sufficient authority to the superintendent or other person in charge of any jail, penitentiary, lockup or detention pen to whom it is delivered to hold in temporary detention the person named therein"). Plaintiff fails to allege sufficient facts to show that the officers accepting custody of the Plaintiff, including Defendant Dubois, would have reason to suspect or detect the alleged forgery. Defendant Dubois and the officers acted consistent with their duty in detaining the Plaintiff, subjecting him to privileged confinement. Dupree v. City of New York, 418 F.Supp.2d 555, 559 (S.D.N.Y. 2006) (granting the defendant's motion for summary judgement in the plaintiff's § 1983 case for false imprisonment because the plaintiff was lawfully detained pursuant to a facially valid warrant). "It is settled that such a privileged confinement will not give rise to an action against the entity that detained plaintiff." Id.; see also Knowles v. Johnson, 08-CV-4741(PAC), 2010 WL 1050973, at *4 (S.D.N.Y. Mar. 23, 2010) (holding that, because the defendants had probable cause to arrest the plaintiff for violating the terms of his conditional release, plaintiff's confinement was privileged and there was no false arrest or imprisonment); Hardy v. City of New York, 732 F.Supp.2d 112, 140-41 (E.D.N.Y. 2010). Moreover, confinements by correctional officials based on parole warrants are privileged. See Kearney v. Westchester Cty. Dep't of Corr., 506 F. App'x 45, 46 (2d Cir. 2012). Plaintiff was detained by correction officials acting under a facially valid warrant. Thus, the Plaintiff has failed to state a claim for false imprisonment.
Plaintiff states that he alerted Defendant Dubois on February 8, 2016 and Defendants Pecheco and Stanford on April 11, 2016
Plaintiff claims that applying the 2005 SARA amendments to him for an offense for which he was convicted in 1993
While the 2005 amendment imposes additional restrictions, the residency requirement is nonpunitive and does not violate the Ex Post Facto Clause. The amendments were enacted to protect communities, not to punish offenders. See Wallace v. New York, 40 F.Supp.3d 278, 314 (E.D.N.Y. 2014); Williams v. Dep't of Corr. and Cmty. Supervision, 24 N.Y.S.3d 18, 23 (N.Y.App. Div. 1st Dep't 2016) (noting that the justification for the 2005 amendment provides that "[t]here is a need to prohibit those sex offenders who are determined to pose the most risk to children from entering upon school grounds or other areas where children are cared for.") (quoting Sponsor's Mem., L. 2005, ch. 544, http://public.leginfo.state.ny.us/menugetf.cgi). Because the 2005 amendment is not a punishment, it cannot lead to an Ex Post Facto Clause violation.
For the reasons stated above, Defendants' motions to dismiss the Complaint are GRANTED in their entirety. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Opinion and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coopedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is respectfully directed to terminate the motions (Doc. Nos. 31, 41) and to terminate the case. The Clerk of Court is also directed to mail a copy of this Opinion and Order to Plaintiff at his address listed on ECF and show proof of service on the docket. This constitutes the Court's Opinion and Order.
SO ORDERED.
