Opinion
16 Civ. 2765 (ER)
03-31-2017
ELIZABETH GRANT, Plaintiff, v. THE AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, COUNTY OF QUEENS, RICHARD A. BROWN, NICOLETTA CAFERRI, and JANE & JOHN DOES 1-20, Defendants.
OPINION AND ORDER
I. INTRODUCTION
Elizabeth Grant ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against Queens County District Attorney Richard A. Brown, Queens County Assistant District Attorney Nicoletta Caferri (collectively, the "Queens DA Defendants"), the American Society for the Prevention of Cruelty to Animals ("ASPCA"), the City of New York (the "City"), the New York City Police Department ("NYPD"), and the County of Queens ("Queens County"), alleging violations of her First, Fourth, and Fourteenth Amendment rights arising from the seizure and continued retention of her animals. Before the Court are Defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Defendants' motions to dismiss are GRANTED. II. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are drawn from allegations contained in the Amended Complaint (Doc. 67), which the Court accepts as true for purposes of the instant motion. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). The Court may also consider public records and documents that are referenced or integral to the complaint. DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010); Wims v. N.Y.C. Police Dep't, No. 10 Civ. 6128 (PKC), 2011 WL 2946369, at *2 (S.D.N.Y. July 20, 2011). Therefore, the Court will consider the attachments to the original Complaint (Doc. 1), the January 28, 2016 search warrant, and the April 15, 2016 arrest warrant, which were incorporated by reference in the Amended Complaint. The Court will also consider the docket from Plaintiff's criminal case. People v. Grant, No. 02504-2016 (N.Y. Crim. Ct. Queens Cty. 2016).
Plaintiff, a Jackson Heights, Queens resident owned a large number of pets which she kept in her home. Amended Complaint (Doc. 67) ¶ 50. On January 28, 2016, pursuant to a search warrant, her animals were seized by the ASPCA and NYPD. Id. The warrant, issued as number 109/2016, and signed by Judge Michelle A. Armstrong of the New York City Criminal Court in Queens County, stated:
Proof by affidavit having been made this day before me by Police Officer Lorraine Vultaggio, Shield # 26668, of the 115 Police Precinct of the New York City Police Department that there is reasonable cause to believe that certain property . . . may be found in 25-44 82nd Street, Jackson Heights, Queens County . . . and that the above described property constitutes evidence, tends to demonstrate that an offense was committed and that a particular person participated in the commission of said offense.ASPCA's Declaration in Opposition to Plaintiff's Order to Show Cause ("ASPCA Decl.") (Doc. 17), Ex. A. The property was described as:
approximately forty cats and ten dogs, some of which were tethered to objects in the home. The cats appeared to be underweight, missing patches of fur, crusted eyes, and one cat appeared to be unable to walk; the dogs were missing patches of fur, had fur matted with feces, one dog appeared to have skin disease, and several dogs had crusted eyes; turtles and birds in addition to the above-described dogs and cats in the house.Id. The warrant also commanded the NYPD "to deliver the animals to the ASPCA Animal Hospital, or other veterinary partners, hospitals, and facilities, for examination and treatment and . . . to retain such property until directed otherwise by this Court." Id. It further noted that "the status of the animal(s) shall be subject to any lawful order issued by this Court in proceedings following the execution of this warrant," and that Officer Vultaggio's affidavit "is sealed, except that a copy of any such sworn testimony may be obtained . . . upon written order of the Court." Id.
Plaintiff claims that she was not provided with a voucher when her animals were seized. Amended Complaint ¶ 56. Further, at some point after her animals were seized, and before April 1, 2016, either she or her attorney called the Queens County Property Clerk and the Property Officer of the 115th precinct, the precinct that executed the search warrant. Id. Plaintiff alleges that neither officer had a voucher number available, "nor were any of the animals so seized vouchered or otherwise documented by the NYPD." Id.
Besides the calls, Plaintiff does not claim that she personally made any further attempts to regain possession of her animals. On March 3, 2016, Plaintiff's attorney filed a notice of appearance with the Criminal Court of the City of New York in Queens, Complaint (Doc. 1), Ex. A, though at that point, no criminal charges had been filed against her. On April 1, 2016, approximately two months after her animals had been seized, the Queens County District Attorney's Office received a letter from Plaintiff's attorney requesting a hearing to determine the validity of the seizure. Id. This letter stated that Plaintiff's lawyer had been retained "in anticipation of a criminal action to be commenced by information from your office." Id. The letter also noted that the District Attorney's Office had previously claimed that Plaintiff's animals were "being held as evidence pursuant to the prosecution of the putative criminal action." Id. However, nowhere in the Amended Complaint does Plaintiff allege that she or her attorney communicated with any individual from the Queens County District Attorney's Office prior to the April 1 letter.
Inspector Thomas Scollan, commanding officer of the NYPD Property Clerk, and Officer Chen, Property Officer of the 115th Precinct, were sent similar letters on April 6, 2016. Id. Both letters advised the NYPD Officers that Plaintiff intended to file a civil lawsuit in the event her animals were not immediately returned. Id.
Plaintiff's attorney also sent a letter to Beverly Jones, the ASPCA's Chief Legal Officer and Senior Vice President on April 6, 2016. Id. Plaintiff's attorney noted that the Queens County Property Clerk and Property Officer Chen had previously "advise[d] that the animals had been given over to the custody of the ASPCA," and Plaintiff's attorney informed Ms. Jones that Plaintiff intended to file a civil lawsuit in the event her animals were not immediately returned. Id.
Plaintiff claims that "mere days" after Defendants received her letters, she was informed that she would be arrested and a criminal proceeding would begin. Amended Complaint ¶¶ 36, 37.
On April 13, 2016, Plaintiff filed the instant civil action against the ASPCA, the City, the NYPD, Queens County, the Queens DA Defendants, and unnamed individuals for violations of her First, Fourth, and Fourteenth Amendment rights arising from the seizure and continued retention of her animals. Doc. 1. On April 14, 2016, Plaintiff filed a motion for a temporary restraining order and preliminary injunction. Doc. 3. On April 15, 2016, only two days after she filed the Complaint and more than 70 days after the seizure of her animals, an arrest warrant was issued for Plaintiff, charging her with violations of New York Agriculture and Markets Law Article 26 Sections 353 and 353-a. ASPCA Decl., Ex. B.
Section 353, titled, "Overdriving, torturing and injuring animals; failure to provide proper sustenance," provides in pertinent part that "[a] person who . . . deprives any animal of necessary sustenance, food or drink, or causes, procures or permits any animal to be . . . deprived of necessary food or drink . . . is guilty of a class A misdemeanor." N.Y. Agric. & Mkts. Law § 353. Section 353-a further states that "[a] person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty." Id. § 353-a.
After a hearing on April 21, 2016, this Court denied the motion for a preliminary injunction. Doc. 25. Plaintiff was arraigned on April 26, 2016. Amended Complaint ¶ 51. On July 22, 2016, the City, the NYPD, Queens County, and the Queens DA Defendants filed the instant motion to dismiss the Complaint for failure to state a claim. Doc. 46. Thereafter, the ASPCA filed a motion to dismiss the Complaint on July 29, 2016. Doc. 49. Approximately three months later, on November 7, 2016, with consent of the Court, Plaintiff filed an Amended Complaint. Doc. 67. Of note, the Amended Complaint was updated with information about Plaintiff's arraignment. Id. ¶ 51. It also removed allegations related to a conspiracy claim. See Complaint ¶¶ 2, 58. The Court allowed Defendants to file supplemental briefing in response to Plaintiff's Amended Complaint, which the ASPCA filed on December 7, 2016. Doc. 69. The City, the NYPD, Queens County, and the Queens DA Defendants did not file supplemental briefing and relied on their original motion to dismiss the Amended Complaint. Doc. 68.
A grand jury returned a true bill on October 14, 2016, to which Plaintiff pled not guilty. People v. Grant, No. 02504-2016 (N.Y. Crim. Ct. Queens Cty. 2016).
III. LEGAL STANDARD
On a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy the pleading standard set forth in Rule 8, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Id. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support his claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
Though a plaintiff may plead facts alleged upon information and belief, "where the belief is based on factual information that makes the inference of culpability plausible," Arista Records LLC v. Doe , 604 F.3d 110, 120 (2d Cir. 2010), "such allegations must be 'accompanied by a statement of the facts upon which the belief is founded.'" Navarra v. Marlborough Gallery, Inc., 820 F. Supp. 2d 477, 485 (S.D.N.Y. 2011) (quoting Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 385 (S.D.N.Y. 2006)); see also Williams v. Calderoni, No. 11 Civ. 3020 (CM), 2012 WL 691832, at *7-8 (S.D.N.Y. Mar. 1, 2012) (finding pleadings on information and belief insufficient where plaintiff pointed to no information that would render his statements anything more than speculative claims or conclusory assertions). A complaint that "tenders naked assertions devoid of further factual enhancement" will not survive a motion to dismiss under Rule 12(b)(6). Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted) (brackets omitted).
IV. DISCUSSION
A. Fourteenth Amendment
Plaintiff asserts a laundry list of Fourteenth Amendment violations. See Amended Complaint ¶ 66 ("Defendants . . . have not provided plaintiff an opportunity to contest the validity of the seizure . . . thus violating plaintiff's rights under the Fourteenth Amendment . . . ."); id. ¶ 68 ("These actions are further unconstitutional because plaintiff has been deprived of visitation with her animals and of providing her choice of care . . . ."); id. ¶ 70 ("These actions are further unconstitutional because defendants' enforcement of the law . . . has not provided her with a timely notice and an opportunity for a hearing or any other review of the decision to seize and retain [her property] . . . thus violating plaintiff's rights under the Fourteenth Amendment . . . ."); id. ¶ 71 ("[D]efendants have failed to provide plaintiff with a prompt and timely post-seizure hearing . . . to determine whether defendants . . . are authorized, without providing notice of an opportunity to be heard or any other process, to seize and detain plaintiff's animals, and under what circumstances they may do so."); id. ("[D]efendants have failed to provide plaintiff with a prompt and timely post-seizure hearing . . . to determine whether defendants . . . had properly determined whether means short of detention of her animals could satisfy the municipal defendants' need for continued impoundment and detention of her animals."). Generally, Plaintiff's allegations revolve around the argument that she was entitled to a post-deprivation hearing pursuant to Krimstock v. Kelly, 506 F. Supp. 2d 249, 251 (S.D.N.Y. 2007), to contest the seizure and continued retention of her animals. Amended Complaint ¶¶ 44-49, 67.
In Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), the Second Circuit dealt with a procedural due process claim stemming from the City's "continued retention of vehicles after their warrantless seizure by the police and prior to the ultimate resolution of the forfeiture action in court." Id. at 48. On remand following the Second Circuit's ruling, the district court created what is known as a "Krimstock hearing." See Krimstock v. Kelly, 506 F. Supp. 2d 249, 251 (S.D.N.Y. 2007). At this type of hearing, the municipality "has the burden to prove, by a preponderance of the evidence, that a) probable cause existed for the arrest of the vehicle's operator, b) it is likely the [municipality] would prevail in an action to forfeit the vehicle, and c) it is necessary that the vehicle remain impounded in order to ensure its availability in the eventual civil forfeiture action." Id. at 252 (citing Jones v. Kelly, 378 F.3d 198, 204 (2d Cir. 2004)). The Court can find no law to support extending the Second Circuit's ruling regarding the warrantless seizure of cars to include property seized pursuant to a warrant, and Plaintiff has not cited to any cases holding that a Krimstock hearing would be appropriate. Courts have been reluctant to extend the reasoning in Krimstock to cases outside the scope of the original set of facts. See, e.g., United States v. All Funds On Deposit in Dime Sav. Bank of Williamsburg Account No . 58-400738 in the Name of Ishar Abdi and Barbara Abdi, 255 F. Supp. 2d 56, 72 (E.D.N.Y. 2003) (deciding that Krimstock is inapplicable because, inter alia, the government seized money pursuant to a warrant).
The Due Process Clause of the Fourteenth Amendment guarantees that no person shall be deprived "of life, liberty or property, without due process of law." U.S. Const. amend. XIV, § 1. "Courts 'examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.'" Finch v. City of New York, 591 F. Supp. 2d 349, 358-59 (S.D.N.Y. 2008) (quoting Kentucky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)) (internal citations omitted).
In regards to the first step, "[t]he source of a property right is determined by looking to the relevant state law, which here is the law of the State of New York." Van Patten v. City of Binghamton, 137 F. Supp. 2d 98, 104 (N.D.N.Y. 2001). Owners of dogs, cats and other types of pets have a property interest in their animals under New York law, although the interest is qualified and subject to regulation. See id. (citing Mullally v. People, 86 N.Y. 365, 368 (N.Y. 1881)) ("[The] definition of personal property is certainly comprehensive enough to include dogs."); Central Westchester Humane Soc'y v. Hilleboe, 116 N.Y.S.2d 403, 406 (Sup. Ct. West. Ct. 1952) (holding that cats and dogs are property, although the property right is qualified); N.Y.S. Voters League Against Vivisection, Inc., v. Hilleboe, 114 N.Y.S.2d 805, 807 (1952) ("[T]here is but a qualified property in dogs and other animals . . . ."); see also Altman v. City of High Point, 330 F.3d 194, 200-05 (4th Cir. 2003) (describing the historical basis for the conclusion that dogs are recognized as property under state laws, including New York). Here, Plaintiff alleges that the State seized her animals, and that therefore she had a property interest which has been interfered with by the State. This is sufficient to establish the first step.
In regards to the second step, "[t]he touchstone of due process, of course, is 'the requirement that a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.'" Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009) (quoting Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976)) (internal quotation marks omitted). Here, because Plaintiff's property was seized pursuant to a warrant issued upon probable cause, as long as there was an adequate post-deprivation remedy available, Plaintiff's due process claim will fail. See Perkins v. City of W. Covina, 113 F.3d 1004, 1010 (9th Cir. 1997) ("There is thus no requirement of a prior hearing before the seizure of possessions under a search warrant.") rev'd on other grounds, 525 U.S. 234 (1999), and opinion withdrawn in part sub nom. Perkins ex rel. Perkins v. City of W. Covina, 167 F.3d 1286 (9th Cir. 1999). Although Plaintiff alleges that there were no post-deprivation remedies available to her, Amended Complaint ¶ 60, Defendants provide a list of statutes and rules that purportedly govern the return of Plaintiff's animals. The Court finds that two such avenues provide adequate post-deprivation remedies: an Article 78 proceeding and a motion pursuant to New York Criminal Procedure Law § 690.55.
Defendants also, and incorrectly, allege that Plaintiff could have sought the return of her animals at a hearing pursuant to AML Section 373. Moreover, Defendants contend that after her criminal case is concluded, Plaintiff can file a civil action for replevin. Id.
"New York's remedy for the recovery of property taken during a police search is an Article 78 proceeding, through which an individual can appeal the action of a state official or agency." Miller v. Bazan, No. 13 Civ. 993 (BKS), 2015 WL 339533, at *4 (N.D.N.Y. Jan. 26, 2015); see also N.Y. C.P.L.R. § 7801; see, e.g., Moss v. Spitzer, 798 N.Y.S.2d 482, 483 (2d Dep't 2005) ("A CPLR article 78 proceeding will properly lie to require the return of property, other than contraband, seized pursuant to a search warrant and held for an unreasonable length of time without the commencement of a criminal action."). Case law in this Circuit has uniformly held that an Article 78 proceeding is an adequate post-deprivation procedure, and its availability precludes a plaintiff from stating a claim for a procedural due process violation. See, e.g., Tessler v. Paterson, No. 10 Civ. 9313 (JSR), 2011 WL 1044208, at *7 (S.D.N.Y. Mar. 11, 2011) (quoting Locurto v. Safir, 264 F.3d 154, 175 (2d Cir. 2001)) ("It is well-established that the Article 78 proceeding 'constitutes a wholly adequate post-deprivation hearing for due process purposes.'"); Miller, 2015 WL 339533, at *4 ("The availability of an Article 78 procedure is itself sufficient to satisfy an individual's right to due process."); Hourihan v. Lafferty, 58 F. Supp. 2d 10, 15 (N.D.N.Y. 1999) (dismissing plaintiff's claim to recover to value of his seized property because his "remedy was to seek relief under Article 78 of the C.P.L.R. rather than file a suit in federal court"); McMenemy v. City of Rochester, 241 F.3d 279, 288-89 (2d Cir. 2001) ("[T]he availability of an Article 78 proceeding under New York law provided McMenemy with an adequate post-deprivation remedy such that no procedural due process violation occurred . . . .").
Plaintiff does not allege that she commenced an Article 78 proceeding, nor has she offered any convincing reason why an Article 78 proceeding would be an inadequate remedy in this case. In her response, Plaintiff argues that an "Article 78 proceeding can be defeated by a simple assertion from the respondent that the subject property is being held as evidence seized pursuant to a search warrant in an ongoing investigation." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pl. Opp." or "Response") (Doc. 73) at 8. However, the fact that an Article 78 proceeding may result in a judicial determination that Plaintiff is not entitled to the return of her property is not relevant to the question of whether the proceeding is an adequate post-deprivation remedy.
To the extent Plaintiff implies that she would not have an opportunity to argue her case in response to "a simple assertion" from Defendants, and therefore an Article 78 proceeding is inadequate, she is incorrect. "[A] petitioner in an Article 78 proceeding . . . is permitted to submit, in addition to the petition, affidavits and other written proof [of their claim], and where a triable issue of fact is raised, the petitioner may obtain a trial." Moccio v. N.Y.S. Office of Court Admin., 95 F.3d 195, 202 (2d Cir. 1996); see also N.Y. C.P.L.R. 7804(d) & (h).
Second, pursuant to New York Criminal Procedure Law § 690.55, as Defendants point out, Plaintiff could have immediately made a motion for the return of her property by applying directly to the court that issued the warrant. New York Criminal Procedure Law § 690.55 governs the disposition of property seized pursuant to a search warrant, and establishes that the judge issuing the warrant retains control over the property. See N.Y. Crim. Proc. § 690.55; Moss, 798 N.Y.S.2d at 483 ("[P]roperty seized pursuant to a search warrant remains in the control of the issuing judge . . . ."); In re Documents Seized Pursuant to Search Warrant, 478 N.Y.S.2d 490, 493-94 (Sup. Ct. N.Y. Cty. 1984) ("The court's authority to control the disposition of property seized pursuant to its warrant is established by statute (CPL 690.55) and by long usage.").
Here, the search warrant was issued by Judge Armstrong of the Queens County Criminal Court. ASPCA Decl., Ex. A. The warrant expressly ordered the ASPCA to retain the animals "until directed otherwise by this Court," and noted that "the status of the animal(s) shall be subject to any lawful order issued by this Court . . . ." Id. Plaintiff does not allege that she ever made any kind of request to the Queens County Criminal Court or Judge Armstrong. Plaintiff instead claims, wrongly, that New York Criminal Procedure Law § 690.55 does not allow "for the return of the (animal) property to the owner, but only, upon order, to the court which issued the aforesaid search warrant," and therefore, "[she] did not have, an avenue to seek the return of her property through an ex parte motion under § 690.55." Pl. Opp. at 8. However, Plaintiff's failure to make a motion based on a misinterpretation of the statute is not availing. See Harvey v. Morabito, No. 99 Civ. 1913 (HGM), 2003 WL 21402561, at *5, 8 (N.D.N.Y. June 17, 2003) (noting that the owner of a dog seized by police failed to state a claim for a due process violation because the owner had "various procedural mechanisms" available to him, including "making a simple demand"); see also Mostafa v. City of New York, No. 13 Civ. 155 (PAE), 2014 WL 4354689, at *3 n.3 (S.D.N.Y. Sept. 2, 2014) ("And whether a plaintiff has a viable § 1983 claim does not turn on whether the particular plaintiff is or is not aware of available state-law remedies."). Therefore, two adequate post-deprivation procedures were available to Plaintiff, neither of which she made use of. "Plaintiff's failure to take advantage of the state procedures does not convert [her] cause of action into a constitutional due process claim." Smith v. O'Connor, 901 F.Supp. 644, 647 (S.D.N.Y. 1995) (citing Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988)).
Although not stated clearly, it appears that Plaintiff alternatively argues that in the event there were procedures available for the recovery of her animals, a due process violation occurred because she was given inadequate notice of them. Amended Complaint ¶ 52 ("[D]efendants have made no effort to advise the plaintiff of any sort of hearing or possible means of challenging the validity of such seizure."). Plaintiff also alleges that because she was not given a voucher number for her seized animals, she could not "identify and claim her property" pursuant to the Rules of the City of New York. Id. ¶¶ 54-57. These arguments are also unavailing.
"A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful." City of W. Covina v. Perkins, 525 U.S. 234, 240 (1999). In City of West Covina v. Perkins, respondents' property was seized pursuant to a search warrant, although respondents were not arrested. Id. at 236. While respondents did not contest that there were adequate post-deprivation remedies available to them, they argued that due process required them to receive notice of those post-deprivation procedures, and "the factual information - specifically, the search warrant number - they needed to invoke their judicial remedies." Id. at 240, 243. The District Court rejected this argument and granted petitioner's motion for summary judgment, finding that respondents "failed to establish that they needed the search warrant number to file a court motion seeking return of their property." Id. at 238, 243. On appeal from the Ninth Circuit's reversal, the Supreme Court held that due process does not require the police to give the owner of lawfully seized property individualized notice of state law procedures for recovering property because that information is "established by published, generally available state statutes and case law . . . [and a property owner] can turn to these public sources to learn about the remedial procedures available to him." Id. at 241. The Supreme Court noted that the District Court's finding regarding the search warrant number - i.e., that respondents failed to establish that they needed the warrant number in order to file a motion for the return of their property - "undermine[d] the factual predicate for respondents' alternative argument." Id. at 244.
Similarly, here, due process did not require Defendants to notify Plaintiff of available state law procedures for recovering her lawfully seized property, or to provide Plaintiff a voucher number. Plaintiff has not alleged that she was unable to access public sources of information to learn about the procedures by which she could challenge the continued retention of her animals. More to the point, she has not alleged that the voucher number was necessary for her to make use of the available post-deprivation remedies described above. Further, unlike the plaintiffs in West Covina, Plaintiff was provided with the warrant number, 109/2016. ASPCA Decl., Ex. A. Plaintiff was also notified that the warrant was issued by Judge Armstrong of the Queens County Criminal Court. Id. The search warrant expressly noted that "the status of the animal(s) shall be subject to any lawful order issued by this Court in proceedings following the execution of this warrant," thereby notifying Plaintiff that Judge Armstrong was the individual with the authority to issue orders regarding the status of the animals. Id. It also notified Plaintiff that the warrant was based on the affidavit of Officer Vultaggio, provided Plaintiff with her shield number and precinct, and instructed Plaintiff that a copy of the sealed affidavit "may be obtained . . . upon written order of the Court." Id. Therefore, Plaintiff had all the notice that due process required.
Second Circuit case law requires that a voucher explaining the procedures for recovering property seized by the NYPD be given to an arrestee. See Butler v. Castro, 896 F.2d 698, 701-03 (2d Cir. 1990). However, Plaintiff has proffered no authority, and the Court has found none, that a property voucher has to be given to an individual who is not arrested, whose property is seized pursuant to a search warrant, and whose property remains under the control of a court.
The availability of an Article 78 proceeding and a motion to the Queens County Criminal Court pursuant to New York Criminal Procedure Law § 690.55 provided Plaintiff with two adequate post-deprivation remedies. Plaintiff availed herself of neither. The warrant and accessibility of public information regarding state law remedies provided Plaintiff with sufficient notice. Accordingly, Plaintiff has failed to state a claim for a due process violation. The motion to dismiss Plaintiff's Fourteenth Amendment claim is GRANTED.
B. Fourth Amendment
Plaintiff also argues that the seizure and continued retention of her animals violated her Fourth Amendment rights. Amended Complaint ¶¶ 73-77. The Court will address the seizure and continued retention claims separately.
1. Seizure of Animals
The Fourth Amendment "expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity." Kentucky v. King, 563 U.S. 452, 459 (2011). "A search is presumptively reasonable when executed pursuant to a warrant. A search warrant issued by a neutral magistrate, upon a finding of probable cause, must be afforded great deference and creates a presumption that the officers executing the warrant acted in an objectively reasonable fashion." Merriweather v. City of New York, No. 12 Civ. 5258 (KPF), 2015 WL 57399, at *6 (S.D.N.Y. Jan. 5, 2015); see also United States v. Murtaugh, 382 F. App'x 83, 85 (2d Cir. 2010) ("Warrant-based searches are presumptively reasonable.") (citing Golino v. New Haven, 950 F.2d 864, 870 (2d Cir. 1991)). In order to overcome this presumption, a plaintiff must allege that the underlying affidavit was made by an individual who "knowingly and deliberately, or with a reckless disregard of the truth, made false statements or material omissions in his application for a warrant, and that such statements or omissions were necessary to the finding of probable cause." Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994).
Here, Plaintiff acknowledges that her animals were seized "under the execution of a search warrant." Amended Complaint ¶ 50. Moreover, nowhere in the Amended Complaint does Plaintiff allege that the search warrant was in any way invalid. Thus, because a seizure pursuant to a warrant is presumed reasonable and Plaintiff has not alleged facts to overcome this presumption, her claim that the initial seizure of her animals violated her Fourth Amendment rights is DISMISSED. See Salvador v. City of New York, No. 15 Civ. 5164 (DLC), 2016 WL 2939166, at *4 (S.D.N.Y. May 19, 2016) (dismissing Fourth Amendment claim for illegal search when search was executed pursuant to a warrant signed by a "neutral magistrate. . . . [and] stated with particularity the place to be searched . . . [and] the items that were the object of the search").
2. Continued Retention of Animals
Plaintiff next asserts that the continued retention of her animals was in violation of the Fourth Amendment. Pl. Opp. at 7. "[W]here, as here, 'an initial seizure of property was reasonable, defendants' failure to return the items does not, by itself, state a separate Fourth Amendment claim of unreasonable seizure.'" Ahlers v. Rabinowitz, 684 F.3d 53, 62 (2d Cir. 2012) (quoting Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004)). "To the extent the Constitution affords . . . any right with respect to a government agency's retention of lawfully seized property, it would appear to be procedural due process." Id. (quoting Shaul, 363 F.3d at 187). Therefore, the Court finds that Plaintiff's claims regarding the continued retention of her animals were properly analyzed above under the Fourteenth Amendment's due process clause. See McMillan v. City of New York, No. 03 Civ. 626 (SLT) (LB), 2009 WL 261478, at *11 (E.D.N.Y. Feb. 4, 2009) (finding that a plaintiff could not state a claim under the Fourth Amendment where the plaintiff alleged that his bullhorn was never returned to him after being seized as the instrumentality of an offense, and that he instead needed to plead a procedural due process violation); see also Chunn v. Amtrak, No. 14 Civ. 6140 (PAC) (HBP), 2015 WL 10520663, at *6 (S.D.N.Y. Aug. 6, 2015) (finding that a plaintiff could not state a claim under the Fourth Amendment where the defendants did not return money lawfully seized incident his arrest). Accordingly, Plaintiff's Fourth Amendment claim is DISMISSED.
C. First Amendment Retaliation
Although Plaintiff's Amended Complaint alleges violations of her First Amendment rights "as against all defendants," Amended Complaint at 20, Plaintiff concedes in her Response that "the First Amendment retaliation action does not lie, and was never asserted, against [the ASPCA]." Pl. Opp. at 11. Therefore, the First Amendment retaliation claim against the ASPCA is DISMISSED.
Plaintiff alleges that "in retaliation for" submitting a letter to the Queens County District Attorney's Office requesting a hearing and filing the Complaint, the Queens DA Defendants "commenced a criminal proceeding in order to chill plaintiff's free exercise of her First Amendment right to petition the government for redress of grievances." Amended Complaint ¶ 36. This count, as counsel for Plaintiff clarified in his response, is premised on the allegation that Defendants (other than the ASPCA) violated her right to petition the government for redress by hindering her ability to access the courts. Pl. Opp. at 3 n.2. Specifically, Plaintiff asserts that she should have been granted a Krimstock hearing.
See supra text accompanying note 4.
"The Second Circuit has held that the right to petition the government for the redress of grievances is generally subjected to the same constitutional analysis as the right to free speech." Gusler v. City of Long Beach, 823 F. Supp. 2d 98, 133 (E.D.N.Y. 2011) (citing White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993)). To prevail on a First Amendment retaliation claim based on the exercise of free speech, a plaintiff must allege that: (1) she has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by the plaintiff's exercise of that right; and (3) the defendant's actions chilled the exercise of the plaintiff's First Amendment rights. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); Gonzalez v. Bronx Cty. Hall of Justice Court Officer Mark Hirschman, No. 15 Civ. 810 (GHW), 2017 WL 435829, at *8 (S.D.N.Y. Jan. 1, 2017). Here, the parties do not dispute that Plaintiff has a right protected by the First Amendment, namely, the right to petition the government for the redress of grievances, which encompasses the letters Plaintiff sent to the parties specifically requesting a Krimstock hearing and the Complaint that Plaintiff filed in this Court. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002) ("The rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment.").
1. Motivation
In regards to the second prong, the Second Circuit has held that the existence of probable cause will defeat the First Amendment claim when the retaliation is in the form of an arrest, regardless of any existing improper motives. Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992) ("An individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause that is in reality an unsuccessful attempt to deter or silence criticism of the government."); Lozada v. Weilminster, 92 F. Supp. 3d 76, 99 (E.D.N.Y. 2015) ("If both proper and improper motivations were behind defendants' conduct, the action may be upheld if it would have been taken based on proper reasons alone.").
In Hartman v. Moore, the Supreme Court held that "a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges." 547 U.S. 250, 258 (2006) (emphasis added). In a 2012 decision regarding qualified immunity, the Supreme Court observed that whether the same rule applies to retaliatory arrests had not been clearly established, and declined to extend the ruling in Hartman to include retaliatory arrests. Reichle v. Howards, 566 U.S. 658, 666-70 (2012). However, the Second Circuit has not made a "distinction between claims of retaliatory arrest and claims of retaliatory prosecution when considering the relevance of probable cause." Id. at 667; see, e.g., Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992).
At issue here is whether Defendants' actions were motivated by Plaintiff's letters to Defendants requesting a Krimstock hearing and the Complaint that Plaintiff filed in this Court, and whether their actions chilled the exercise of her First Amendment rights to petition the government.
Plaintiff's arrest was based on a finding of probable cause by a New York City Criminal Court Judge, as evidenced by the arrest warrant. See ASPCA Decl., Ex. B; Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007) ("Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause."). This "creates a presumption that probable cause existed, and is rebuttable only through proof of fraud, perjury or the misrepresentation or falsification of evidence." Vasquez v. Reilly, No. 15 Civ. 9528 (KMK), 2017 WL 946306, at *7 (S.D.N.Y. Mar. 9, 2017). Plaintiff has not alleged that the search warrant or the arrest warrant lacked probable cause, and therefore, she has not overcome this presumption.
Plaintiff also alleges that she was arraigned on April 26, 2016. Amended Complaint ¶ 51. Plaintiff's criminal court docket reveals that a true bill was issued on November 14, 2016. People v. Grant, No. 02504-2016 (N.Y. Crim. Ct. Queens Cty. 2016). Neither party has submitted a copy of the charging instrument, but if it was issued by a grand jury, the Second Circuit has held that "under New York law, indictment by a grand jury creates a presumption of probable cause that may only be rebutted by evidence that the indictment was procured by 'fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.'" Savino v. City of New York, 331 F.3d 63, 73 (2d Cir. 2003) (quoting Colon v. City of New York, 60 N.Y.2d 78, 83 (1983)).
Because the Court finds that Plaintiff has failed to sufficiently allege that Defendants were motivated by the exercise of her First Amendment right, the Court need not resolve the third prong. Accordingly, her First Amendment retaliation claim is DISMISSED. See Marlin v. City of New York, No. 15 Civ. 2236 (CM), 2016 WL 4939371, at *15 (S.D.N.Y. Sept. 7, 2016) (dismissing plaintiff's First Amendment retaliation claim because there was probable cause for his arrest); Heller v. Bedford Cent. Sch. Dist., 144 F. Supp. 3d 596, 613 n.6 (S.D.N.Y. 2013) (holding that the plaintiff could not state a claim for First Amendment retaliation because "those claims are barred by the existence of probable cause, which is a complete defense to a retaliatory arrest claim").
In any event, Plaintiff would have been unable to meet the third prong as well. Although not stated clearly in the Amended Complaint, Plaintiff's First Amendment retaliation claim also appears to be premised on Defendants' failure to provide her with a judicial venue, in the form of a Krimstock hearing, in which to request the return of her animals, which she argues violated her right to petition the government for redress of grievances. In her Response, Plaintiff explains that she "does not claim any violation of her rights to free speech pursuant to the First Amendment, but rather and as expressly alleged in her original and amended complaints, claims a violation of her right to petition the government for a redress of grievances." Pl. Opp. at 3 n.2. Here too, she fails to state a claim. "[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 741 (1983). "To state a claim for denial of access to the courts . . . a plaintiff must allege that the defendant 'took or was responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim.'" Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (quoting Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997)) (internal citation omitted). While Plaintiff alleges that she unsuccessfully called the Queens County Property Clerk and the Property Officer of the 115th Precinct to make inquiries regarding a voucher for her seized animals, Amended Complaint ¶ 56, these allegations have no bearing on Plaintiff's ability to pursue her legal claim in court. Plaintiff has not alleged that she attempted to file any petitions for the return of her animals with Judge Armstrong, nor has she alleged that she attempted to file a petition for the return of her animals with any other judge in the Queens County Criminal Court. That she did not take advantage of her right to petition the court does not mean that Defendants denied her access to it.
E. Municipal Liability Pursuant to 42 U.S.C. § 1983 ("Monell Claim")
Plaintiff has sued the City, the County of Queens, and the NYPD. However, because the NYPD is a non-suable entity, the claims against it are dismissed. See, e.g., 5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 284 (S.D.N.Y. 2009) ("Chapter 17, § 396 of the New York City Charter provides that, all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not that of any agency except where otherwise provided by law. Since the NYPD is an agency of New York City, it is a non-suable entity, and all claims against it must be dismissed.") (internal quotation marks omitted).
A § 1983 claim can only be brought against a municipality if the action that is alleged to be unconstitutional was the result of an official policy or custom. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690, 691 (1978). Thus, a plaintiff must allege that such a municipal policy or custom is responsible for his injury. Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted); see also Connick v. Thompson, 563 U.S. 51, 60 (2011) ("A municipality or other local government may be liable under [Section 1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell, 436 U.S. at 692)).
Courts in this Circuit apply a two-prong test for § 1983 claims brought against a municipality. See Johnson v. City of New York, No. 06 Civ. 09426 (GBD), 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011). First, the plaintiff must "prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer." Id. (quoting Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)). Second, the plaintiff must establish "'a causal connection . . . between the policy and the deprivation of his constitutional rights.'" Id. (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)). To satisfy the first prong of the test on a motion to dismiss, a plaintiff can allege the existence of a formal policy which is officially endorsed by the municipality. Id. "Monell established that alleging that a municipal policy or ordinance is itself unconstitutional is always sufficient to establish the necessary causal connection between the municipality and the constitutional deprivation, because an employee's act of enforcing an unconstitutional municipal policy may be considered the act of the municipality itself." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 125 (2d Cir. 2004).
Plaintiff asserts that the City and Queens County are liable for all three of her claims. However, the Court need not reach the merits of Plaintiff's Monell claim. As the Second Circuit has stated, "Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation." Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). When a district court concludes that there is "no underlying constitutional violation," it need not address "the municipal defendants' liability under Monell." Id.; see also Williams v. City of New York, No. 11 Civ. 6679 (CM), 2012 WL 3245448, at *12 (S.D.N.Y. Aug. 8, 2012) (dismissing Monell claim). Because the Court finds that Plaintiff did not state a claim for any constitutional violations, the Monell claims against the City and Queens County are DISMISSED.
V. CONCLUSION
For the reasons set forth above, Defendants' motions are GRANTED. The Clerk of Court is respectfully directed to terminate the motions, Docs. 46 and 49, and close the case.
It is SO ORDERED. Dated: March 31, 2017
New York, New York
/s/_________
Edgardo Ramos, U.S.D.J.