FRANK P. GERACI, JR., Chief District 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.
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
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.
Plaintiff seeks to hold the City of Rochester liable on each of his four claims. See ECF No. 1, at 6-14. He argues that the City was deliberately indifferent "to an obvious need for training of its officers both in the laws pertaining to unlawful seizures, in the art of de-escalation, and in how to avoid conflict and especially lethal conflict when dealing with canines." Id. at 9. Plaintiff maintains that the "deliberate indifference" evinced in the City's alleged failure to train its officers as described "resulted in Defendant Officer Perrone's actions in slaying [the dog]." Id.
A municipality cannot be held vicariously liable under § 1983 for the actions of its employees. Connick v. Thompson, 563 U.S. 51, 60 (2011). Rather, the municipality must "itself `subject' a person to a deprivation of rights or `cause[]' a person `to be subjected' to such deprivation." Id. Thus, to hold a municipality liable under § 1983, a plaintiff must show that the complained-of injury came from "action pursuant to official municipal policy." Id. at 60-61 (quoting Monell v. Dep't of Social Servs. of N.Y.C., 436 U.S. 658, 694 (1978)).
While "official municipal policy" logically encompasses actual procedures—for example, "the decisions of a government's lawmakers, the acts of its policymaking officials, [or] practices so persistent and widespread as to practically have the force of law"—it can also include the absence of necessary procedures. Id. at 61. A municipality's failure to train its employees "about their legal duty to avoid violating citizens' rights" can be actionable if it "rises to the level of an official government policy." Id. That standard is exacting, though: the choice to forgo training "must amount to `deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.'" Id. (alteration in original) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also id. ("A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train."). To be considered "deliberately indifferent," a municipality's inaction must stem from a "conscious choice"—not "mere negligence." Cash v. County of Erie, 654 F.3d 324, 334 (2d Cir. 2011). Typically, a plaintiff asserting Monell liability on the basis of a municipality's failure to train needs to show "a pattern of similar constitutional violations by untrained employees." Connick, 563 U.S. at 62.
As Defendants observe, Plaintiff fails to offer any example of another allegedly untrained Rochester police officer killing a dog. See ECF No. 1; ECF No. 10, at 2-3. While Plaintiff argues that he has pleaded a "widespread . . . violent, prolific, and barbarous practice" of "puppycide," ECF No. 9, at 3, his Complaint alleges only the following with respect to City policy:
ECF No. 1, at 8-9. Apart from the incident in question, Plaintiff fails to provide any facts to flesh out his conclusory recitation of the requisite showing for Monell liability.
Plaintiff also seeks to hold Chief Ciminelli liable on all claims. See ECF No. 1, at 6-14. To sufficiently plead individual liability under § 1983, Plaintiff must provide facts showing "[D]efendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138-39 (2d Cir. 2013). In Colon v. Coughlin, the Second Circuit instructed that
58 F.3d 865, 873 (2d Cir. 1995). Whether Iqbal's pleading standard heightened the showings formerly sufficient under Colon does not affect the Court's analysis, because Plaintiff's claims against Chief Ciminelli fail to survive even Colon's requirements. See, e.g., Grullon, 720 F.3d at 139 (using the same approach).
Plaintiff alleges that Chief Ciminelli "w[as] aware of the custom of dogs being killed by the Department due to a lack of any training and/or protocol as to how armed officers should act around companion animals." ECF No. 1, at 9. Aside from an isolated reference to conspiracy,
Of the four claims at issue, Officer Perrone moves to dismiss only the claims of unlawful entry, excessive force, and due process violations. For the reasons that follow, those claims against Officer Perrone are dismissed, and the only remaining claim is for unlawful deprivation of property.
Plaintiff claims that Officer Perrone violated the Fourth Amendment when he "entered onto Plaintiff's premises" without Plaintiff's permission. ECF No. 1, at 7. The Fourth Amendment protects against warrantless searches of a person's home, subject to certain exceptions.
This claim cannot survive dismissal. Plaintiff offers no authority to support interpreting the bullet as a "search." See ECF No. 1. Indeed, the bullet "obviously could not `look,' `explore,' or `examine,' nor did its entry facilitate such conduct." See Denning ex rel. Denning v. Metropolitan Gov't of Nashville, 330 Fed. App'x 500, 505 (6th Cir. 2009). Plainly, then, the bullet entering Plaintiff's home cannot constitute a "search" within the purview of the Fourth Amendment. To the extent Plaintiff is taking issue with the bullet's "seizure" of his dog, that matter is addressed by his claim for unlawful deprivation of property. Accordingly, Plaintiff's unlawful entry claim against Officer Perrone must be dismissed.
Plaintiff argues that Officer Perrone "us[ed] excessive force against the Plaintiff to summarily deprive him of his property rights in possessing his dog." ECF No. 1, at 12. However, the Fourth Amendment protects "the right of the people" to be free from unreasonable searches and seizures—it does not safeguard any independent right for dogs, which are considered property for purposes of the Fourth Amendment. See U.S. Const. amend. IV (emphasis added); Carroll v. County of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (framing the killing of a companion animal as a seizure of property); Powell v. Johnson, 855 F.Supp.2d 871, 874 (D. Minn. 2012) ("Plaintiffs cannot bring an excessive-force claim on [a dog's] behalf."). Moreover, Plaintiff was not home at the time of the incident to be subjected to any purportedly unlawful "seizure" of his person, and the deprivation of property is addressed in a separate claim. Any allegation of excessive force in the deprivation of Plaintiff's property speaks to the lawfulness of that seizure—it would not constitute a separate claim in itself. See, e.g., Powell, 855 F. Supp. 2d at 874 ("[T]he so-called excessive force bears only on whether [the dog] was unreasonably seized in violation of the Fourth Amendment."). The excessive force claim against Officer Perrone must therefore be dismissed.
Plaintiff asserts that Officer Perrone deprived him "of due process in pursuing a lawsuit . .. [and] by disposing of [the dog's] body without consent nor [sic] authority, by unlawfully converting [the dog] into state hands, and by falsifying reports and findings surrounding her demise." ECF No. 1, at 13. To the extent Plaintiff is asserting violations of substantive and procedural due process, both claims fail.
Any substantive due process claim fails because Plaintiff's deprivation is properly—and already—addressed under the Fourth Amendment. The Supreme Court has instructed that, "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Here, Plaintiff brings a claim for unlawful deprivation of property under the Fourth Amendment. Given the Fourth Amendment's explicit protections, Plaintiff cannot also contest the deprivation of that property more broadly as a violation of his substantive due process rights.
Any procedural due process claim fails for a lack of factual pleading. The Supreme Court has held that "an unauthorized deprivation of property by a state employee does not constitute a violation of [procedural due process] if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984) (cited by Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 882 (2d Cir. 1996) (contrasting "claims based on established state procedures" with "claims based on random, unauthorized acts")). Plaintiff does not explain how he was barred from any postdeprivation remedy—rather, he simply alleges that Officer Perrone and others "conspired" to deprive him of the opportunity to file a lawsuit. ECF No. 1, at 13. At most, Plaintiff claims that Officer Perrone was involved in "falsifying reports and findings surrounding [the dog's] demise." Id. Plaintiff cannot adequately claim a violation of procedural due process where he fails to plead facts regarding his postdeprivation remedies.
For the reasons stated, Defendants' Motion for Partial Dismissal (ECF No. 4) is GRANTED. All claims against the City of Rochester and Chief Ciminelli are DISMISSED, and the claims of unlawful entry, excessive force, and due process violations against Officer Perrone are also DISMISSED. The only remaining claim is against Officer Perrone for unlawful deprivation of property. The Clerk of Court is directed to terminate Defendants Ciminelli and the City of Rochester as parties to this action.
IT IS SO ORDERED.
