Opinion
6:24-cv-0085 (DNH/TWD)
03-12-2024
JEFFREY J. CHOWANIEC, Plaintiff, v. WHITESBORO POLICE DEPARTMENT, et al, Defendants.
JEFFREY J. CHOWANIEC OF COUNSEL: Plaintiff, pro se.
JEFFREY J. CHOWANIEC OF COUNSEL: Plaintiff, pro se.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge.
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Jeffrey J. Chowaniec (“Plaintiff”), brought pursuant to 42 U.S.C. § 1983, alleging the Whitesboro Police Department and Brandon Macera violated his Fourth Amendment rights under the United States Constitution. Dkt. No. 1. For the reasons stated below, the Court recommends Plaintiff's complaint be dismissed.
II. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. Upon review, Plaintiff's IFP application demonstrates economic need. See id. Therefore, he is granted permission to proceed IFP.
III. BACKGROUND
On March 1, 2023, at approximately 8:00 p.m., Plaintiff received a phone call from a friend who stated she had been detained by the Whitesboro Police Department and asked Plaintiff to retrieve her service animal from the police station. Dkt. No. 1 at 5. Plaintiff agreed and drove to the police station. Id. In the station's parking lot, he was greeted by Officer Masera who asked “What's up dude” and Plaintiff responded “I am just here to pick up a dog” as he observed the dog on a nearby curb with his friend. Id.
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
“Officer Masera got right in my face and insistently said, ‘I need to see your ID.'” Id. Plaintiff asked why and the officer advised him “‘anytime there is a transfer of property we need to see an ID'.” Id. Plaintiff reached into his wallet to retrieve his driver's license and Masera asked “‘Are you ok, you look confused.'” Id. Plaintiff “in fact was confused as there was no lawful action for what he was asking of me.'” Id. Concerned for the animal's safety, Plaintiff “held up my license where he proceeded to aggressively snatch my identification from my fingertips.'” Id.
Plaintiff states the officer next “called in my license information through the National Crime Information Center (NCIC).” Id. After approximately one minute passed, “Officer Masera appeared aggravated that he had not received a timely response” then entered his vehicle where Plaintiff “could see him type my information into a laptop.” Id. Plaintiff contends “As I knew and expected, my information came back with no outstanding warrants or violations.
Officer Masera demeaner seemed extremely disappointed to this finding.” Id.
The officer then exited the vehicle and returned Plaintiff's driver's license. Id. Plaintiff asked the officer for a copy of his business card, the officer “arrogantly indicated that they do not have business cards” and provided Plaintiff his name and badge number. Id. Plaintiff “then asked, ‘Is that the dog I hear crying at the curb'”, the officer answered in the affirmative, and
Plaintiff took possession of the dog. Id.
Plaintiff “was expecting to have to sign a release of possession form” and thought “perhaps my identification was needed to fill out this release” however, “No such form was presented to me, so I left with the animal.” Id. Plaintiff contends:
[T]here was no probable cause to run my identification, I did not commit a crime, no vehicle infraction occurred, my license was not suspended, and physically taking my license from my possession was not warranted. And for that, I feel that this is a direct violation of my Fourth Amendment right when ‘a search or seizure is illegal under the Fourth Amendment if it happens without consent, a warrant, or probable cause to believe a crime has been committed'.Id. at 6 (emphasis omitted). Plaintiff further avers he “spoke to the F.B.I. field office in Albany and The Civil Rights Division of the D.O.J. in D.C. and both told me that my 4th ammendment was violated[.]” Id. Plaintiff seeks punitive damages in the amount of $100,000 for “Pain and suffering and emotional distress.” Id. at 4.
IV. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an IFP complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. ANALYSIS
A. Whitesboro Police Department
Plaintiff lists the Whitesboro Police Department as a Defendant. Dkt. No. 1 at 1. “A police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity.” Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002) (“Under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.”) (citations omitted); see also, e.g., Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *9 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant in this case.”).
Therefore, the Court recommends dismissing Plaintiff's claim against the Whitesboro Police Department with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). See, e.g., La Grande v. Town Of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, Plaintiff's Complaint is dismissed as against the Town of Bethlehem Police Department.”); Hester v. City of Oneida, No. 6:23-CV-1171 (AMN/TWD), 2023 WL 7543607, at *4 (N.D.N.Y. Nov. 14, 2023), report and recommendation adopted, 2024 WL 78485 (N.D.N.Y. Jan. 8, 2024).
B. Brandon Macera
Even accepting as true all of the allegations contained in Plaintiff's complaint, his Fourth Amendment claim against Macera is frivolous, therefore, the complaint must be dismissed. 28 U.S.C. § 1915(e)(2)(B)(i).
The Fourth Amendment generally recognizes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” U.S. Const. amend. IV. “As a threshold showing, to invoke the fourth amendment successfully a defendant must demonstrate a reasonable expectation of privacy ....” United States v. Barr, 605 F.Supp. 114, 117 (S.D.N.Y. 1985)) (citing Katz v. United States, 389 U.S. 347, 361 (1967)). Plaintiff has failed to make such a threshold showing.
Plaintiff's complaint establishes he voluntarily drove to the Whitesboro Police Department station, stated he intended to take possession of a dog which was in the police department's custody, and was instructed he would be required to provide some form of identification to take possession of the dog. Dkt. No. 1 at 5. Plaintiff knew that “to take possession of the animal I will need to show identification” so he retrieved his driver's license from his wallet and held it up for the officer. Id.
When Plaintiff presented his identification to the officer, he had no reasonable expectation of privacy in the information contained thereon. Therefore, even accepting Plaintiff's assertion that the officer used his license information to determine whether he had any outstanding warrants, the Defendant's conduct did not constitute a search for Fourth Amendment purposes. See Jennings v. Decker, 359 F.Supp.3d 196, 207-08 (N.D.N.Y. 2019) (“A ‘search' in the context of the Fourth Amendment occurs when the police intrude upon a person's reasonable expectation of privacy or if the police otherwise trespass upon one's person, house, papers, or effects for the purpose of acquiring information.”) (citations omitted). Accordingly, Plaintiff's contention that “there was no probable cause to run my identification,” Dkt. No. 1 at 6, is immaterial as Defendant's use of the information contained on the driver's license which Plaintiff voluntarily provided did not amount to a search, therefore, probable cause was not required.
See United States v. Diaz-Castaneda, 494 F.3d 1146, 1153 (9th Cir. 2007), wherein the Court stated:
[A sheriff]'s check of [the defendant's driver's license or Oregon ID card with radio dispatch also was not a Fourth Amendment search or seizure. People do not have a reasonable expectation of privacy in their driver's license or state ID card (or the identification numbers contained by those documents) once they hand them over to police officers who legitimately asked for them. That is, there is no constitutional basis for complaint when the police properly obtain information located in a driver's license or state ID card, and then use it to access additional non-private . . . information about the document's owner.In Diaz-Castaneda, the Ninth Circuit concluded the defendant's driver's license information was properly obtained because the sheriff requested the identification card pursuant to a legitimate traffic stop. While Plaintiff here was not the subject of a traffic stop, it is apparent from his complaint that he provided his driver's license voluntarily, therefore, this Court has no reason to conclude Officer Masera improperly obtained Plaintiff's license. See also, e.g., Chaney v. City of Albany, No. 6:16-CV-1185 (NAM/TWD), 2019 WL 3857995, at *8-9 (N.D.N.Y. Aug. 16, 2019) (citing Diaz-Castaneda in support of the proposition that the defendant's use of license plate reader technology did not violate the plaintiff's Fourth Amendment rights as a police officer's use of license plate data did not constitute a search for Fourth Amendment purposes).
To the extent Plaintiff contends the Defendant's interaction with him constituted an unreasonable seizure, any such claim is similarly unavailing. In assessing whether such a Fourth Amendment violation has occurred, the court must determine “(1) under all the circumstances of the case, did the encounter between the individual and the police officer constitute a ‘seizure' within the meaning of the Fourth Amendment; and (2) if said encounter did constitute a seizure, was such seizure reasonable.” Robinson v. Town of Colonie, 878 F.Supp. 387, 396 (N.D.N.Y. 1995). Because Plaintiff's encounter with Officer Masera did not amount to a “seizure” within the meaning of the Fourth Amendment, he is unable to establish a constitutional violation. See United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995) (“Whether a seizure occurred” is a question of law).
“The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984) (internal quotations and citations omitted). Therefore, a “consensual” encounter between an individual and law enforcement officer “implicates no Fourth Amendment interest.” United States v. Springer, 946 F.2d 1012, 1016 (2d Cir. 1991) (“[A] seizure takes place ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' . . . Otherwise, an encounter between a police officer and a citizen is consensual, and implicates no Fourth Amendment interest.”) (first quoting Florida v. Bostick, 501 U.S. 429, 434 (1991); then citing Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984)) (additional quotations and citation omitted); see also, e.g., United States v. Hooper, 935 F.2d 484, 491 (2d Cir. 1991) (explaining “if [an individual] was not seized within the meaning of the fourth amendment, his encounter with the [law enforcement] agents did not implicate the fourth amendment.”).
Here, based on the facts as stated in Plaintiff's complaint, his encounter with Officer Masera was surely consensual. The Supreme Court has explained “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). It necessarily follows that a seizure does not occur where a police officer asks a few questions after an individual approaches the officer, such as the Plaintiff here, who initiated the exchange by driving to the Whitesboro Police Station and announcing his intent to take possession of a dog in the department's custody. See generally, Dkt. No. 1 at 5.
Moreover, nothing in Officer Masera's statements or conduct towards Plaintiff transformed the consensual encounter into a seizure. See Gallegos v. Haggerty, 689 F.Supp. 93, 100 (N.D.N.Y. 1988) (“A consensual encounter, however, may be transformed into a seizure when, in view of all the circumstances, a reasonable person would believe he or she was not free to leave.”) (citations omitted); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“Examples of circumstances that might indicate a seizure” include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.”). Plaintiff alleges the officer merely asked “‘What's up dude'” after Plaintiff approached him and “‘Are you ok, you look confused'” as Plaintiff took out his driver's license. Dkt. No. 1 at 5. Nor did the officer's request to see identification transform the encounter into a seizure within the meaning of the Fourth Amendment. See Gallegos, 689 F.Supp. at 100 (“Police questioning relating to one's identity or a request for identification, without more, is not a seizure for purposes of the Fourth Amendment.”) (citing Delgado, 466 U.S. at 216); see also United States v. Serrano, 695 Fed.Appx. 20, 22 (2d Cir. 2017) (Summary Order) (concluding officers' conduct in asking an individual “for his identification and what he was doing in the neighborhood” was “akin to a casual, consensual encounter and is not a Fourth Amendment seizure.”) (citing United States v. Glover, 957 F.2d 1004, 1009 (2d Cir. 1992)). Put another way, in view of the surrounding circumstances, a reasonable person would have believed he was free to leave, therefore, Plaintiff was not seized within the meaning of the Fourth Amendment. See Mendenhall, 446 U.S. at 554.
In sum, “Defendants did not violate Plaintiff's Fourth Amendment rights when they asked for his identification, and he voluntarily provided it.” Brace v. Johnson, No. 1:20-CV-0588 (FJS/CFH), 2022 WL 504972, at *4 (N.D.N.Y. Feb. 18, 2022), aff'd, No. 22-590, 2023 WL 2027274 (2d Cir. Feb. 16, 2023); see also Hogan v. City of New York, No. 1:04-CV-3298, 2007 WL 9710294, at *3 n.4 (E.D.N.Y. Mar. 12, 2007) (“To the extent plaintiffs attempt to allege . . . a [Fourth Amendment unreasonable search and seizure] claim based on defendants' request for identification, that claim must fail, as both plaintiffs testified that they handed over their identification voluntarily.”) (citing Springer, 946 F.2d at 1016). Because Plaintiff's claim against Macera is based on a meritless legal theory, it must be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Although the Court has serious doubts about whether Plaintiff can amend to assert an actionable claim, in deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends Plaintiff be permitted to amend his complaint insofar as he seeks to proceed against Macera.
VI. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED, and it is RECOMMENDED that Plaintiff's Fourth Amendment claim against the Whitesboro Police Department be DISMISSED WITH PREJUDICE; and it is further RECOMMENDED that Plaintiff's Fourth Amendment claim against Macera be DISMISSED WITH LEAVE TO AMEND; and it is further
Although Plaintiff's application to proceed IFP has been granted, Plaintiff will still be required to pay fees that he may incur in the future regarding this action, including, but not limited to, copying and/or witness fees.
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.