Leveto v. Lapina

• Decision Date: 17 July 2001
• Docket Number: No. 00-3241,00-3241
• Citation: 258 F.3d 156
• Parties: (3rd Cir. 2001) DANIEL J. LEVETO; MARGARET A. LEVETO, APPELLANTS v. ROBERT A. LAPINA; RICHARD W. ADAMS; JUDY A. GRAHAM; SUZI HINES; THOMAS DEMKO; GEORGE TORBIC; JOHN WATSON; DAVID KIRK; DEBORAH KIRK; ROBERT GROOVER; JEFF MILLER; EDWARD WIRTH; CYNTHIA UNDERWOOD; ELIZABETH QUINN; "JOE RIVERA&#34
• Court: U.S. Court of Appeals — Third Circuit

Page 156

258 F.3d 156 (3rd Cir. 2001)

DANIEL J. LEVETO; MARGARET A. LEVETO, APPELLANTS v. ROBERT A. LAPINA; RICHARD W. ADAMS; JUDY A. GRAHAM; SUZI HINES; THOMAS DEMKO; GEORGE TORBIC; JOHN WATSON; DAVID KIRK; DEBORAH KIRK; ROBERT GROOVER; JEFF MILLER; EDWARD WIRTH; CYNTHIA UNDERWOOD; ELIZABETH QUINN; "JOE RIVERA"

No. 00-3241

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued October 26, 2000

Filed July 17, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Dist. Court No. 98-143) District Court Judge: Maurice B. Cohill, Jr. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

William G. McCONNELL (Argued) Ekker, Kuster & McConnell, Sharon, PA, Counsel for Appellants

Jonathan S. Cohen A. Wray Muoio (Argued) Tax Division United States Department of Justice, Washington, DC, Counsel for Appellees

Before: Mansmann, Alito, and Fuentes, Circuit Judges.

OPINION FOR THE COURT

Alito, Circuit Judge

Dr. Daniel Leveto and his wife, Margaret Leveto, filed this action against numerous known and unknown Internal Revenue Service ("IRS") agents. The Levetos asserted numerous federal constitutional claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as well as many federal statutory claims. All of the claims arose from an IRS investigation of the Levetos and the execution of search warrants at the Levetos' home and Dr. Leveto's veterinary office. The District Court dismissed the Complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), and the Levetos took this appeal.

Most of the arguments raised on appeal lack merit and do not require further discussion. However , some of the Levetos' Fourth Amendment claims present important issues concerning the execution of search warrants. The Levetos allege that the IRS agents, in executing the warrants, improperly patted them down, detained them for up to eight hours without probable cause or reasonable suspicion, and closed Dr. Leveto's business. We hold that the Levetos successfully alleged certain violations of their Fourth Amendment rights, but we conclude that the defendants were entitled to qualified immunity due to uncertainty in the case law, and we therefore affirm the decision of the District Court.

I.

A.

The following facts are alleged in the Second Amended Complaint ("the Complaint"). On May 2, 1996, as part of an investigation into Dr. Leveto's tax-related activities, 15 IRS agents executed search warrants at the Levetos' home and the Langdon and Leveto Veterinary Hospital, where Dr. Leveto worked as a veterinarian and general manager . See Complaint PP 20-21, 23-24, 31. According to the Complaint, Dr. Leveto arrived at the hospital that day at approximately 6:30 a.m. and was rushed in the parking lot by armed agents. Id. P 20. Some agents informed Dr. Leveto that they had a search warrant, flashed the warrant in front of him, and patted him down, while other agents shouted, "Where are the weapons?" Id. P 21. The agents escorted Dr. Leveto into the hospital, where he was held in a small room for roughly one hour and was prohibited from answering the phone or speaking with anyone other than the agents. Id. P 22.

After an hour, the agents ordered Dr. Leveto to accompany them to a location where they met other agents, and they then proceeded to the Levetos' home. Id. P 23. At the Levetos' home, the agents again displayed a search warrant and patted down Margaret Leveto, who was wearing only a nightgown. Id. Several agents remained at the Levetos' home, where they detained Mrs. Leveto for approximately six hours, interrogated her without providing Miranda warnings, and conducted a search in which they seized thousands of documents, including family medical records, personal mail, and most of the publications in the Levetos' personal library. Id. PP 24, 106-07, 120, 138.

Other agents ordered Dr. Leveto to return with them to the hospital, where they held him in a closed room for approximately six hours. Id. PP 25, 141. He was not permitted external communication and was supervised during visits to the restroom. Id. During this six-hour seizure, armed agents interrogated Dr. Leveto without providing Miranda warnings, while other agents searched the hospital. Id. PP 26-27, 137, 141, 145.

During the course of the search, the IRS agents sent hospital employees home and turned away clients in the parking lot, informing them that the hospital was closed until further notice. Id. PP 29-30. The agents likewise prevented Dr. Leveto from speaking with clients or fellow employees or otherwise performing his duties as general manager. Id. PP 31-32, 145.

When the search of the hospital concluded, the agents took away thousands of documents containing records of five companies, confidential medical and financial information on clients, and computer software. Id. PP 33-34. No weapons were located on the premises. Id. P 36.

B.

The named defendants moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and they contended that they were entitled to qualified immunity on the federal constitutional claims. The District Court granted this motion. Holding that the pat downs did not violate the Levetos' Fourth Amendment rights, the Court quoted with approval another district court opinion stating that " `the courts have permitted police officers to frisk all occupants of premises being searched without regard to any particularized suspicion that the officer may have' " and that this authority permits the frisking of "even those persons who happen to be scantily clad at the time of the search." App. 41 (quoting Collier v. Locicero, 820 F. Supp. 673, 681 (D. Conn. 1993)). With respect to the detention of the Levetos, the District Court relied on Michigan v. Summers, 452 U.S. 692 (1981), and stated that "during execution of a search warrant, police can detain the occupant of the premises they have a warrant to search." App. 41. In addition, the Court held that "no reasonable officer in the defendants' position would have believed that their conduct violated clearly established constitutional rights." Id. at 42. This appeal followed.

II.

A.

Our review of both a dismissal under Fed. R. Civ. P. 12(b)(6) and a grant of qualified immunity is plenary. Board of Trustees of Bricklayers & Allied Craftsmen Local 6 of New Jersey Welfare Fund v. Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999). In reviewing the dismissal of a claim under Rule 12(b)(6), we must "accept the allegations of the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff[s]." Board of Trustees, 237 F.3d at 272. Dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Brown v. Philip Morris Inc., 2001 WL 533654, *3 (3d Cir. 2001).

This same approach must be followed when qualified immunity is asserted in a Rule 12(b)(6) motion. Although immunity is an affirmative defense, "a complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face." ALA, Inc. v. CCAir, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 1357, at 358-59 (1990) (citing cases). Thus, qualified immunity " `will be upheld on a 12(b)(6) motion only when the immunity is established on the face of the complaint.' " Hafley v. Lohman, 90 F .3d 264, 266 (8th Cir. 1996) (citation omitted); see also, e.g. , Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) (official immunity); Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir. 1998).

B.

The principles governing claims of qualified immunity are well-established. Under this doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Torres v. United States, 200 F .3d 179, 184 (3d Cir. 1999); Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996); Shea v. Smith, 966 F.2d 127, 130 (3d Cir. 1992). The doctrine of qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Giuffre v. Bissell, 31 F .3d 1241, 1255 (3d Cir. 1994).

In determining whether qualified immunity applies in a specific case, we "first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all." Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)); see also Assaf v. Fields, 178 F.3d 170, 174 (3d Cir. 1999); Siegert v. Gilley, 500 U.S. 226, 232 (1991) ("A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all."); Torres, 200 F .3d at 184 ("A court . . . need not consider whether the right implicated was clearly established . . . if the plaintiff has not alleged a deprivation of a constitutional right."); Giuffre, 31 F.3d at 1247, 1255.¹ "[I]f so, [we] proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson, 526 U.S. at 609 (quoting Conn , 526 U.S. at 290); see Assaf, 178 F.3d at 174.

A right may be clearly established even if there is no "previous precedent directly in point." Good v. Dauphin County Soc. Servs. for Children &...