Opinion
10 Civ. 00891 (LGS)
07-02-2013
CARLOS RODRIGUEZ et al, Plaintiffs, v. ERIK RODRIGUEZ et al, Defendants.
MEMORANDUM AND ORDER
:
Plaintiffs Carlos Rodriguez, Michelle Seda and Doris Velez (collectively "Plaintiffs") bring this action against various defendants, including Beverly Johnson, Plaintiff Rodriguez's parole officer, pursuant to 42 U.S.C. § 1983. Presently before the Court is the motion of Defendant Johnson to dismiss the claims against her, pursuant to Federal Rule of Civil Procedure 12(b)(6) because (i) they fail to state a claim for relief, (ii) Defendant Johnson is entitled to qualified immunity and (iii) the claims are time-barred.
For the reasons stated below, Defendant Johnson's motion is granted. I. Background
A. Relevant Procedural History
Plaintiff Carlos Rodriguez initiated this civil rights action on December 23, 2009, against various entities and individuals associated with the New York Police Department ("NYPD") and the New York District Attorney's Office. Defendant Johnson was not named originally as a defendant. On December 30, 2010, Judge Barbara Jones, to whom this case was then assigned, granted the defendants' motions to dismiss, in part, and dismissed all but three defendants from the case (defendant NYPD police officers Erik Rodriguez, Cecilio Cintron and Patrick Bubb). (Dkt. No. 28). Magistrate Judge Katz granted Plaintiff Rodriguez's motion to file an amended complaint, in part, on October 24, 2011. (Dkt. No. 35).
Plaintiffs filed the First Amended Complaint on January 24, 2012, which added (1) two additional plaintiffs (Michelle Seda and Doris Velez), (2) five new defendants, including Defendant Johnson, the movant here, as well as four NYPD officers (Ohmeed Davodian, Paul Trapani, Frankie Rivera and Oscar Diaz (the "NYDP Officers")) and (3) a claim that in conducting a search on June 18, 2009 (the "June 18 Search"), Defendant Johnson and the NYPD Officers violated Plaintiffs' right to be free of unreasonable searches under the Fourth Amendment. (Dkt. No. 40).
Plaintiffs' Second Amended Complaint was filed July 3, 2012 and docketed July 9, 2012. (Dkt. No. 50). The Second Amended Complaint omits certain claims that Magistrate Judge Katz determined could not proceed, but otherwise contains the same causes of action concerning the same incidents as the First Amended Complaint. Although some of the details vary slightly, the allegations related to Defendant Johnson in the two amended complaints are substantially similar.
B. Factual background
The facts are drawn from various pleadings and documents filed in this matter. Although the Court is typically confined to "the allegations contained within the four corners of the complaint, Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), when analyzing the sufficiency of a pro se pleading, a court may consider factual allegations contained in a pro se litigant's opposition papers and other court filings. See Torrico v. Int'l Bus. Machs. Corp., 213 F. Supp. 2d 390, 399 n.4 (S.D.N.Y. 2002) (Lynch, J.). Defendant incorrectly argues that the Court must consider statements from only the current, operative complaint, relying mainly on cases where the issue of considering extraneous material arose on a summary judgment motion, and with plaintiffs who were represented by counsel. See Scott v. City of New York Dep't of Correction, 641 F. Supp. 2d 211, 229 (S.D.N.Y. 2009), aff'd, 445 F. App'x 389 (2d Cir. 2011) (declining to consider new factual allegations raised for the first time in opposition to a motion for summary judgment where plaintiff currently represented by counsel); Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357, 363 n.9 (S.D.N.Y. 2011) (declining to consider facts raised for first time in opposition to motion for summary judgment where plaintiff represented by counsel); Southwick Clothing LLC v. GFT (USA) Corp., No. 99 Civ. 10452, 2004 WL 2914093, at *6 (S.D.N.Y. Dec. 15, 2004) (same). In pro se cases, a court may consider new allegations raised by the plaintiff in opposition to a motion to dismiss. See, e.g., Torrico, 213 F. Supp.2d at 399 n.4; Agu v. Rhea, No. 09 Civ. 4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) ("On a motion to dismiss, the Court can consider documents that a pro se litigant attaches to his opposition papers."); Graves v. MidHudson, No. 04 Civ. 3957, 2005 WL 1377948, at *1 (E.D.N.Y. June 9, 2005) ("[I]n addition to the allegations included in the Amended Complaint, the Court should consider allegations contained in the other court filings of a pro se plaintiff.' " (quoting Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992) (alterations omitted))); Odom v. Calero, No. 06 Civ. 15527, 2008 WL 449677, at *1 (S.D.N.Y. Feb. 19, 2008) ("[T]he mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum" (quoting Burgess v. Goord, No. 98 Civ. 207, 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999))); but see Williams v. U.S. Info. Sys, Inc., 2013 WL 214318, at *4 n.4 (S.D.N.Y. Jan. 17, 2013)) (stating that the court cannot consider allegations outside the complaint raised by pro plaintiff in opposition to a motion to dismiss). In any event, if statements made outside the operative complaint demonstrate that a pro se plaintiff could state a claim, if allowed to amend, the Court must grant leave to amend. See Torrico, 213 F. Supp.2d at 400 n.4. Consequently, here the Court considers statements from Plaintiffs' Second Amended Complaint, First Amended Complaint, opposition and surreply in analyzing whether the June 18 Search allegations state a claim, or could state a claim if allowed to amend.
Plaintiffs allege that the defendants violated the Fourth Amendment in the conduct of three distinct searches that occurred on three different days. For the present motion, only the June 18 Search is at issue because this is the only search in which Defendant Johnson was involved.
Plaintiffs allege that at around 9:35 p.m., two parole officers - Defendant Johnson and Parole Officer Pitchardo, who is not a defendant in this matter - requested to enter the apartment at 101 Post Avenue, in the County and State of New York, where the three Plaintiffs resided. (Sec. Am. Compl. ¶ 24). At the time, Plaintiff Rodriguez was a parolee of the Department of Corrections and Community Supervision, Board of Parole. (Sec. Am. Compl. ¶ 3). Plaintiff Rodriguez admitted the parole officers to the apartment and showed them his room. After viewing Rodriguez's room, Defendant Johnson followed a non-resident, Lisabeth Franco, out of the apartment. (Sec. Am. Compl. ¶ 25). Parole Officer Pitchardo exited the apartment with Defendant Johnson. (First Am. Compl. ¶ 43).
Moments after the parole officers left the apartment, the NYPD Officers and other unidentified police officers entered the apartment without the authorization or consent of the residents. (Sec. Am. Compl. ¶ 25; Surreply at 3, Dkt. No. 79). Plaintiff Rodriguez asked to see a search warrant, and Defendant Davodian told him that a search warrant was not required. (Id). When asked if he had any contraband, Plaintiff produced a bottle of steroids and syringes from the desk in his room. (Sec. Am. Compl. ¶ 28). The NYPD Officers then removed Plaintiff Rodriguez from his room to the hallway of the apartment and searched his room, after which they searched the hallway, closets and bathroom in the apartment. (Sec. Am. Compl. ¶ 28). In both the First Amended Complaint and the opposition to the instant motion, Plaintiffs assert that the NYPD Officers discovered "a large quantity of marijuana, United States currency, drug paraphernalia, and a .45 automatic hand gun" in the bathroom of the apartment. (First Amended Complaint ¶ 51; Rodriguez's Opp. at 2). Plaintiff Rodriguez then was arrested and removed from the apartment to the hallway steps of the building. (Sec. Am. Compl. ¶ 29).
Plaintiffs further allege that after the NYPD Officers discovered the contraband items, "they attempted to get a search warrant, via telephone," but that the request for a search warrant was denied. (Opp. at 2). The NYPD Defendants then contacted Defendant Johnson and explained that their request for a search warrant had been rejected. (Id. at 3). Defendant Johnson returned to the apartment and "took the credit for all the contraband that [had been] discovered" by the NYPD Defendants. (Id; see also First Am. Compl. ¶¶ 57-58). Defendant Johnson falsely accused Plaintiff Rodriguez of removing two knives from a drawer in his bedroom when, in fact, the knives had been part of a religious statue in the front entry to the apartment. (Sec. Am. Compl. ¶ 32).
To the extent that Plaintiffs attempt to state a claim under the First Amendment in relation to knives removed from a religious statue, the Court notes that, in granting Plaintiffs' motion to amend on October 24, 2011, Magistrate Judge Katz allowed Plaintiffs to add only an illegal search claim in relation to the June 18 Search, and dismissed all other claims stemming from the June 18 Search.
The criminal complaint about the June 18 Search, filed by Defendant Diaz and appended to the First Amended Complaint as Exhibit M, does not corroborate Plaintiffs' claim that Defendant Johnson "took credit" for the search and seizure. Exhibit M states, that according to Defendant Johnson, Plaintiff Rodriguez provided the apartment address to the Division of Parole as his residence, and that Defendant Johnson saw him and Franco inside the apartment, and inside the bathroom where the contraband was found. Exhibit M does not say that Defendant Johnson found the contraband. Rather, it says that Defendant Davodian found the marijuana and the handgun. Exhibit M does not mention other contraband.
After returning to the apartment for a few minutes, Defendant Johnson left again, passing Plaintiff Rodriguez, who was still detained in the stairway, "tapping" him on the head as she left the building. (Sec. Am. Compl. ¶ 30). Plaintiffs allege that when Plaintiff Rodriguez was escorted out of the building, he saw that Franco had been detained. (First Am. Compl. ¶ 53). Franco was charged with criminal possession of a weapon and marijuana, although the charges against her were later dismissed. (First. Am. Compl. ¶ 61). Defendant Diaz escorted both Plaintiff Rodriguez and Franco to the 34th precinct, New York County. (First Am. Compl. ¶ 54). Plaintiffs also allege that the NYPD Officers removed Velez, Seda and Seda's granddaughter from the apartment, advising them that they had to find somewhere else to sleep. (Sec. Am. Compl. ¶ 31).
In his surreply, Plaintiff Rodriguez states that during a violation of parole hearing on August 3, 2009, Defendant Johnson stated:
On June 18, 2009, Manhattan III did a special ops along with the New York City Police Department and at the time we were doing robbery cases and we were doing violent felony offense cases at that time. We had approximately 14 cases to do that evening.(Dkt. No. 79). Defendant Johnson's parole was subsequently revoked, resulting in his current incarceration. II. Discussion
A. Standard of Review
On a motion to dismiss, this Court accepts as true all well pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To withstand dismissal, a pleading "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. While " 'detailed factual allegations,' " are not necessary, the pleading must be supported by more than mere " 'labels and conclusions' or 'formulaic recitation[s] of the elements of a cause of action.' " Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Id. (quoting Twombly, 550 U.S. at 557). Rule 8 of the Federal Rules of Civil Procedure "requires factual allegations that are sufficient to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied, 133 S. Ct. 846 (2013) (quoting Twombly, 550 U.S. at 555). Moreover, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal punctuation omitted); see also Fed. R. Civ. P. 8(a)(2).
In addressing the claims by plaintiffs proceeding pro se, the Court must construe such complaints liberally, "applying a more flexible standard to evaluate their sufficiency than [it] would when reviewing a complaint submitted by counsel." Lerman v. Bd. of Elections in City of N.Y., 232 F.3d 135, 139-40 (2d Cir. 2000) (quoting Elliot v. Bronson, 872 F.2d 20, 21 (2d Cir. 1989)); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."). Thus, the Court is obligated to construe pro se pleadings "liberally to raise the strongest arguments [they] suggest." Torrico v. Int'l Bus. Machs. Corp., 213 F.Supp.2d 390, 400 (S.D.N.Y. 2002).
B. Fourth Amendment and Searches of Parolees
Defendant Johnson argues that Plaintiffs fail to state a claim against her under the Fourth Amendment for illegal search. Defendant Johnson contends that, as Plaintiff Rodriguez's parole officer, she acted reasonably and that the June 18 Search was rationally related to her duties as a parole officer. The Court agrees that the allegations related to Defendant Johnson's direct involvement in the June 18 Search (namely the initial search of Plaintiff Rodriguez's room) do not state a claim for a constitutional violation. Likewise Plaintiffs' claim that Defendant Johnson aided and abetted the NYPD Officers in an unconstitutional search fails, because as discussed below, the Court concludes that the underlying police search was lawful.
1. Parole officers and reasonable searches
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Amend. IV. Although warrantless searches are generally presumed unreasonable, in some circumstances, such as "[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like," the Supreme Court has held that a warrantless search or seizure may be reasonable. Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (quoting Illinois v. McArthur, 531 U.S. 326, 330 (2001)).
In light of the government's substantial interest in supervising parolees, a parolee has diminished expectations of privacy, which are less than those of ordinary citizens. See Samson v. California, 547 U.S. 843, 848 (2006) ("We further observed that, by virtue of their status alone, probationers [and parolees] do not enjoy 'the absolute liberty to which every citizen is entitled.' " (quoting United States v. Knights, 534 U.S. 112, 119 (2001))); United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004) (noting that "probationers and parolees are subject to a degree of impingement upon privacy that would not be constitutional if applied to the public at large") (internal quotation marks and citation omitted). However, "[e]ven if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution." Maryland v. King, 133 S. Ct. 1958 (2013). Reasonableness still must be measured "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interest." Samson, 547 U.S. at 848 (quoting Knights, 534 U.S. at 118-19); accord Newton, 369 F.3d at 665 (Even though parolees have a diminished expectation of privacy, "the Fourth Amendment's reasonableness requirement" still must be satisfied (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)).
With regard to searches of parolee's homes, the standard adopted by the New York Court of Appeals in People v. Huntley has been widely adopted in the Second Circuit: A "parolee's constitutional right to be secure against unreasonable searches and seizures is not violated when his apartment is searched, without a search warrant, by his parole officer if the latter's conduct is rationally and reasonably related to the performance of his duty as a parole officer." 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 33 (1977); see United States v. Newton, 369 F.3d 659, 666 (2d Cir. 2004) ("Huntley's articulation of a reasonable relationship rule for warrantless parole searches is 'coextensive with the requirements of the Fourth Amendment.' " (quoting United States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000))); see also United States v. Massey, 461 F.3d 177, 179 (2d Cir. 2006) ("[T]he state has a legitimate interest in closely monitoring the activities' of [] parolees and a home visit is a 'routine and appropriate element[] of supervising a convicted person.' " (quoting United States v. Reyes, 283 F.3d 446, 460 (2d Cir. 2002) (internal marks omitted))). In 2006, the Supreme Court seemed to adopt a different standard -- that a parolee, at least in the circumstances of that case, did "not have an expectation of privacy that society would recognize as legitimate." Samson, 547 U.S. at 852.
Courts in this circuit are divided on whether the standard articulated by the Supreme Court in Samson has replaced the Huntley "reasonableness" test. The different views arise largely from the question whether the relevant parole regulation in New York is sufficiently similar to the California statute at issue in Samson. See United States v. White, 622 F. Supp. 2d 34, 41 (S.D.N.Y. 2008) ("[T]hus there is no consensus on whether or not Samson applies to cases involving New York parolees.") (collecting cases). In the instant case, there has been no allegation that Plaintiff Rodriguez signed release paperwork consenting to a lowered expectation of privacy, as he would have under the California statute. So it is not clear that the standard in Samson would be applicable to him. Also, the Second Circuit has yet to explore whether or how the holding in Samson, which pertained to the search of a parolee's person, relates to the search of a parolee's apartment, which is the situation here. See White, 622 F. Supp. 2d 34 at 41-42 ("[T]he scope of Samson's holding is unclear. . . . At no point in the opinion does the Supreme Court address the issue of whether a suspicionless search of a parolee's residence is permitted by the Fourth Amendment.") In any event, it is unnecessary for the Court to weigh in on this debate now.
Regardless of the standard employed, it is clear on the basis of Plaintiffs' allegations that the search of Plaintiff Rodriguez's room by his parole officer, Defendant Johnson, was reasonable and did not violate his reasonable expectation of privacy.
2. Police officers and searches of parolees
If Defendant Johnson's search were the only basis for Plaintiff's claim, the analysis would end there. In addition to her search of Plaintiff Rodriguez's room on June 18, 2009, Defendant Johnson is alleged to have: (1) falsely stated that she recovered contraband in Plaintiffs' apartment, when she had not, to conceal the fact that the police officers had conducted a warrantless search and (2) falsely claimed to have found two knives in Plaintiff Rodriguez's room, when the police officers actually found the knives in the front entry of Plaintiffs' apartment as part of a religious statue. However, as stated above, Plaintiffs' own submission indicates that Defendants admit that Defendant Davodian, and not Defendant Johnson, discovered the contraband.
The Court examines whether Plaintiffs have stated a claim against the NYPD Officers for an illegal search, and, by extension, against Defendant Johnson for attempting to help the officers conceal this fact. "In general the standard by which the reasonableness of a search or seizure with respect to a parolee by a police officer is to be measured would be the familiar requirement of a showing of probable cause." People v. Huntley, 43 N.Y.2d 175, 181, 371 N.E.2d 794, 797 (1977); see United States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000) (noting that police officers generally could not conduct warrantless search without probable cause). However, where the police officers work in tandem with the parole officer, the probable cause requirement may be waived and a warrant may not be necessary. "[T]he law permits cooperation between probation officers[, parole officers] and other law enforcement officials so that they may work together and share information to achieve their objectives." United States v. Reyes, 283 F.3d 446, 471 (2d Cir. 2002).
Some criminal defendants have alleged a "stalking horse" defense, claiming that a police officer unlawfully used the authority of a probation officer to evade the Fourth Amendment's usual warrant and probable cause requirements for police searches and seizures. The Second Circuit has expressly rejected "stalking horse" challenges to a police search in conjunction with a parole officer. Reyes, 283 F.3d at 462 (rejecting stalking horse challenges in the Second Circuit); United States v. Newton, 369 F.3d 659, 667 (2d Cir. 2004) (affirming Reyes's rejection of stalking horse theory in the Second Circuit); cf. United States v. Watts, 67 F.3d 790, 794 (9th Cir. 1995) (noting that "probation search may not be used as a subterfuge for a criminal investigation"), rev'd on other grounds, 519 U.S. 148 (1997). The Second Circuit observed that parole and police officers frequently collaborate; indeed, " 'it is difficult to imagine a situation' in which a probation/parole officer who entered a residence with other law enforcement officials based on 'information about a supervisee's illegal activities . . . would not be pursuing legitimate supervis[ion] objectives.' " Newton, 369 F.3d at 667 (quoting Reyes, 283 F.3d at 463). Thus, it is clear in the Second Circuit, where a police officer accompanies a parole officer in performing a parole search, a warrant is not required, so long as the search is rationally and reasonably related to the parole officer's duties.
Drawing all inferences in favor of Plaintiffs, as is required, the Court concludes that the police actions during the June 18 Search occurred as part of a parole search initiated by Defendant Johnson and parole officer Pitchardo, and that the probable cause requirement was waived vis-à-vis the police officers, at least as far as Plaintiff Rodriguez is concerned. **
On the evening of June 18, 2009, Defendant Johnson was working on a special operation with the New York City Police. The police entered the apartment moments after Defendant Johnson exited the apartment. Although she was not present when the police initially arrived, Defendant Johnson returned quickly after the NYPD officers contacted her. The fact that the NYPD Officers knew to contact Defendant Johnson and were able to summon her quickly, corroborates that the NYPD Officers were collaborating with the parole officers.
Although Defendant Johnson was not in the apartment at all times during the June 18 Search, the facts as alleged show that while the search took place, Defendant Johnson was working with the police officers. Defendant Johnson initiated the parole search. She viewed Plaintiff Rodriguez's bedroom. Defendant Johnson then left the apartment to follow a guest, Lisabeth Franco. The inference is easily drawn that Defendant Johnson left in pursuit of Franco and apparently was successful. The police arrived at the apartment while the parole officers were outside and continued the search, but Defendant Johnson returned to the apartment before the search concluded, tapping the head of Plaintiff Rodriguez, who by that time had been detained, when she again exited the building. Plaintiffs allege that both Plaintiff Rodriguez and Franco were arrested and taken to the 34th precinct after the June 18 Search.
The Second Circuit's holding in Reyes and Newton are controlling here. As a matter of law, Plaintiff has not stated claims sufficient to show that the police officers were required to obtain a warrant before searching Plaintiff Rodriguez's apartment on June 18, 2009. Because the search itself was a parole search, the allegation that Defendant Johnson made false statements after the search concluded, concerning where the contraband was discovered or by whom, does not alter the legality of the search itself. With regard to Plaintiff Rodriguez, the parole search had a constitutional basis when it occurred, and allegedly false statements made by a parole officer do not change the legality of the preceding search. Cf. United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (concluding that search was not illegal, even though search warrant potentially included false statements, because the false statements were not material to the probable cause determination); United States v. Martin, 426 F.3d 68, 73 (2d Cir. 2005) ("A false statement is material when the alleged falsehoods or omissions were necessary to . . . [a] probable cause finding.") (internal quotation marks and citations omitted); United States v. Salameh, 152 F.3d 88, 114 (2d Cir. 1998) (affirming constitutionality of search after finding that "allegedly false statements in . . . affidavit were not necessary for a finding of probable cause"). Thus, assuming Plaintiffs' allegations are true, Plaintiffs have not alleged sufficient facts to state a claim against Defendant Johnson for illegal search under the Fourth Amendment.
To the extent that Plaintiffs Seda or Velez attempt to state a claim against Defendant Johnson for an illegal search, this claim also is dismissed. The Court does not address the issue on this motion whether these plaintiffs can state an illegal search claim against the NYPD Officers for invading their reasonable expectation of privacy in the apartment's common areas.
Accordingly, Defendant Johnson's motion to dismiss Plaintiffs' Second Amended Complaint for failure to state a claim is granted.
C. Qualified Immunity
Defendant Johnson also argues that she is entitled to qualified immunity. 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." Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotation marks and citation omitted).
Qualified immunity protects a government official sued in his official capacity: '(1) if the conduct attributed to him was not prohibited by federal law; or (2) where that conduct was so prohibited, if the plaintiff's right not to be subjected to such conduct by the defendant was not clearly established at the time it occurred; or (3) if the defendant's action was objective[ly] legal[ly] reasonable[ ] . . . in light of the legal rules that were clearly established at the time it was taken." Manganiello v. City of N.Y., 612 F.3d 149, 164 (2d Cir. 2010) (alterations and omission in original) (internal quotation marks and citations omitted).
As explained above, Plaintiffs' allegations, construed in their favor, are insufficient to allege a violation of Plaintiffs' rights. Thus, Defendant Johnson is entitled to qualified immunity.
D. Statute of Limitations
Because the Court concludes that the Second Amended Complaint does not state a claim and that Defendant Johnson is entitled to qualified immunity, the Court does not reach the statute of limitations issue. III. Conclusion
For the foregoing reasons, Defendant Johnson's motion to dismiss Plaintiffs' Second Amended Complaint is GRANTED with regard to the claims against Defendant Johnson, but not the remaining Defendants.
The Clerk of the Court is directed to terminate the motion at Docket Number 55 and to mail a copy of this Order to the pro se Plaintiffs.
SO ORDERED. Dated: July 2, 2013
New York, New York
/s/ _________
LORNA G. SCHOFIELD
UNITED STATES DISTRICT JUDGE