Turner v. Dellapia
| Decision Date | 03 November 2020 |
| Docket Number | No. 18-CV-1973-LTS-GWG,18-CV-1973-LTS-GWG |
| Citation | 498 F.Supp.3d 500 |
| Parties | Wilbert K.A. TURNER, Plaintiff, v. Agent Jeremy DELLAPIA, et al., Defendants |
| Court | U.S. District Court — Southern District of New York |
Wilbert K.A. Turner, New York, NY, pro se.
Alexander James Hogan, Jennifer C. Simon, United States Attorney's Office Southern District Of New York, New York, NY, for Defendants.
Plaintiff Wilbert K.A. Turner ("Mr. Turner" or "Plaintiff"), proceeding pro se, brings this action against special agents Jeremy Dellapia and George Gjelaj of the Federal Bureau of Investigation ("FBI") (the "Federal Defendants"), as well as Christopher Kelly, Erin Moore, and Mark Carey of the Westchester Country police department (the "County Defendants," and with the Federal Defendants, "Defendants"), pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1 Plaintiff alleges that Defendants violated his federal constitutional rights in connection with a warrantless search of his apartment in the Bronx, New York, on August 23, 2017. The Federal Defendants (Docket Entry No. 58) and County Defendants (Docket Entry No. 68) each move to dismiss Plaintiff's claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. The Court has considered the parties’ submissions carefully and, for the following reasons, both motions are granted in part and denied in part.
The following summary of relevant facts is drawn from the Plaintiff's complaint in this action (Docket Entry No. 2, "Compl.") and amended complaint in Case No. 19-CV-6529 (LTS) (GWG) (),2 the well-pleaded factual contents of which are taken as true for purposes of this motion practice, and Plaintiff's response in opposition to the Federal Defendants’ motion to dismiss. (Plaintiff's Motion Opposing Dismissal ("Pl. Opp."), Docket Entry No. 63.)3
Around midday on August 23, 2017, Plaintiff left his apartment at 3550 Birona Ave. for a doctor's appointment. (Compl. at ECF page 4.) Upon reaching his car, Plaintiff was arrested by agent Dellapia, who had a federal warrant for Plaintiff's arrest, but no warrant for a search of Plaintiff's apartment. (Id. ) Agent Dellapia took Plaintiff's keys and requested permission to search his apartment. (Id. ) Plaintiff denied that request. (Id. )
"About 5 to 6 officers," including agent Gjelaj, then went to Plaintiff's three-bedroom apartment on the twelfth floor of 3550 Birona and began using his keys to unlock the door. (Compl. at ECF pages 4-5, 9; Am. Compl. at 4.) Before they were able to unlock the door, a woman named Elita Hudson—a friend of Plaintiff's girlfriend, who was visiting the United States from Jamaica with her 10 year old son for approximately five weeks and was staying in a room in Plaintiff's apartment during at least a portion of her stay—locked the deadbolt and asked who was at the door. (Compl. at ECF pages 4-5, 8; Pl. Opp. at 1-2.) She then "remove[d]" the deadbolt and the officers entered. (Compl. at ECF page 5.) She told the officers she was a visitor from Jamaica, and showed them her passport, visa, and travel itinerary, as well as the room she and her son were staying in, but said that "she could not give them permission to search the apartment." (Id. at ECF pages 5, 8.) According to Plaintiff, the officers "tried to confiscate her money" if she did not sign a piece of paper. (Id. ) Ms. Hudson then left the building. (Id. )
Plaintiff acknowledges the existence of, and attaches to his pleading a copy of, a "Consent to Search" form dated August 23, 2017, signed by "E. Hudson," authorizing a search of Plaintiff's apartment. (Compl. at ECF page 7.) Plaintiff alleges in his Complaint that the signature "may be a forge[ry]" (id. at ECF page 9); alleges in his Amended Complaint that it was indeed a "forged signature" (Am. Compl. at 4); and alleges in his opposition brief that two tenants in his building have provided him "new information" that "the person the agents had signing the consent form did so downstairs to the right of the building by the large garbage dumpster," and was, by implication, not Ms. Hudson. (Pl. Opp. at 4.) In a sur-reply letter received by the Court on November 8, 2019 (Docket Entry No. 67), Plaintiff elaborated:
When agent George Gjelaj opened the apartment door the day of August 23rd 2017, Ms. Hudson told agent Gjelaj she does not live in the apartment or the country, she showed them her bank statement for her cash, her travel [itinerary], and a passport. George Gjelaj let her leave the apartment, she did not sign the form. He told her to wait downstairs, she got in a cab to Staten Island. Agent George Gjelaj then solicit[ed] a tenant in the building a known drug abuser to sign the consent form. This was done in the courtyard in the presence of the surveillance camera, and other tenants and NYCHA workers who also recorded it and put it on a social media site. This signing occurred by the garbage dumpsters not upstairs.
(Id. at 1.)4
"The officers in the Amended Complaint" then "entered [Plaintiff's apartment] without a search warrant" and "assisted" the "previously named agents"—i.e., the Federal Defendants—"in the illegal search." (Am. Compl. at 4.)5 At some point during or shortly after the search, Plaintiff observed agent Dellapia with Plaintiff's brown leather wallet, which, he alleges, had been "left on top of a mini refrigerator in my bedroom which was lock[ed]." (Compl. at ECF page 8.) When Plaintiff realized that officers were searching his apartment, he asked agent Dellapia to "lock my doors and give me the keys." (Id. at ECF page 9; see also Am. Compl. at 5 ( ).) "The apartment door was not secured" (Am. Compl. at 4), and when Plaintiff's family members went to the apartment one week later on August 30, 2017, "all [Plaintiff's] belongings [were] gone and the apartment was trash[ed] with evidence of someone cooking and eating Chinese take out order." (Compl. at ECF page 9.)6
In his pleadings, Plaintiff asserts a number of federal constitutional and common law claims. (Compl. at ECF page 5 ().) He seeks damages to "replace the missing property" from his apartment, as well as punitive damages. (Id.; Am. Compl. at 5.)
To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A proper complaint cannot simply recite legal conclusions or bare elements of a cause of action; there must be factual content pleaded that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court accepts as true the nonconclusory factual allegations in the complaint and draws all reasonable inferences in the nonmoving party's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007).
Complaints filed by pro se plaintiffs like Mr. Turner are held to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation omitted). A pro se complaint "must be construed liberally to raise the strongest arguments it suggests." Walker, 717 F.3d at 124 (internal quotations and citations omitted). However, "a pro se complaint must [still] state a plausible claim of relief." Id. (citing Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) ).
The Federal Defendants principally argue that Plaintiff's claims against them must be dismissed because: (1) "Plaintiff fails to allege the personal involvement of Special Agent Dellapia in the search of Plaintiff's apartment"; (2) both agent Dellapia and agent Gjelaj are entitled to qualified immunity; (3) Plaintiff's claims arising from the search of his apartment are precluded by the Supreme Court's decision in Ziglar v. Abbasi, ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017) ; and (4) Plaintiff's claims arising from his door being left unlocked at the conclusion of that search are precluded by Abbasi and fail on a number of other grounds. (Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint (Docket Entry No. 59, "Fed. Def. Memo.") at 6-20.)
The Federal Defendants’ first argument is that Plaintiff's claims against agent Dellapia must be dismissed due to Plaintiff's failure to allege agent Dellapia's personal participation in the deprivation of Plaintiff's constitutional rights. (Fed. Def. Memo. at 6-7.)
The Federal Defendants are liable for deprivations of Plaintiff's constitutional rights, "if at all," under Bivens and its progeny, which "recognized causes of action for damages against individual federal officials for certain unlawful conduct." Ochoa v. Bratton, No. 16-CV-2852 (JGK), 2017 WL 5900552, at *6 (S.D.N.Y. Nov. 28, 2017). "A plaintiff bringing a claim under Bivens must allege that he has been deprived of a constitutional right by a federal agent acting under color of federal authority," and, as relevant here, "that the individual defendant was personally involved in the constitutional violation." Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). See also Iqbal...
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