Waller v. Smith

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

ZACK WALLER and SOMALY KHAM,

Plaintiffs,

v. DECISION AND ORDER

17-CV-212(WMS)

ALLEN SMITH, City of Buffalo Police Officer,

JEFFERY RINALDO, City of Buffalo Police

Lieutenant, OBED CASILLAS, City of Buffalo

Police Officer, AKIM WAHEED1 City of Buffalo

Police Officer,

Defendants.

I. INTRODUCTION

Plaintiffs Zack Waller and Somaly Kham bring this action under 42 U.S.C. § 1983,

alleging that the Defendants, all of whom are police officers employed of the City of

Buffalo, violated their Fourth Amendment right to be free from unreasonable searches

and seizures when the officers searched their home without a warrant, resulting in the

seizure of a firearm and, ultimately, the conviction of Plaintiff Waller. Presently before

this Court is Defendants’ motion to dismiss Plaintiffs’ Complaint pursuant to the doctrine

articulated by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364,

129 L. Ed. 2d 383 (1994). (Docket No. 18). For the following reasons, Defendants’

motion is granted in part and denied in part.

1 Defendant “Ibrahim Abdul-Wahed” is misidentified in the complaint and caption as “Akim Waheed.” (See

Defendants’ Answer, Docket No. 5 ¶ 1.) The Clerk will be directed to correct the caption.

1

II. BACKGROUND

The following facts, drawn from Plaintiffs’ Complaint, are assumed true for

purposes of resolving Defendants’ motion to dismiss. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (“[A] judge ruling

on a defendant's motion to dismiss a complaint must accept as true all of the factual

allegations contained in the complaint.” (internal quotation marks omitted)).

At all times relevant, Plaintiffs Zack Waller and Somaly Kham resided together at

1970 Delaware Avenue, Apt. 2, Buffalo, NY 14216 (“the Residence”). (Complaint,

Docket No.1, ¶¶2-4). On March 7, 2014, at approximately 7:00 p.m., Plaintiff Waller was

attempting to recover his belongings from a vehicle registered to a person named Lakeya

Johnson but “financed and paid for” by Plaintiff Waller. (Id. ¶ 18). Johnson attempted

to stop Plaintiff Waller from retrieving his belongings; in doing so, Johnson closed the

door on Plaintiff Waller’s arm and “took ahold of” him. (Id. ¶¶ 18-19). Plaintiff Waller

attempted to get Johnson off of him, when Johnson “told a bystander to call the police.”

(Id. ¶ 19).

Defendant Officers arrived at the scene and then went to the residence of Plaintiffs

Waller and Kham. (Id. ¶ 20). Plaintiff Kham, who was pregnant at the time, was at

home getting ready for bed, and her son was asleep in the living room. (Id.). At around

8:30 pm, six to seven Buffalo police officers knocked on Plaintiffs’ apartment door, then

stood at the doorway with guns drawn. (Id. ¶ 21). Defendant Officer Rinaldo asked

Plaintiff Kham to enter the apartment; she “unequivocally refused Defendants” entry.

(Id.). Defendants Casillas and Wahed then “manhandled Plaintiff Kham by extracting

2

her from the apartment” and entered the residence “without a warrant, consent, or any

exigent circumstances.” (Id.). Plaintiff Kham told the Defendant Officers that Plaintiff

Waller was not home and asked the officers “numerous times” to leave the apartment.

(Id.).

While searching Plaintiffs’ bedroom, Defendant Officer Casillas retrieved “a ten

bullet magazine inside a closed closet on one of the top shelves” and an Olympic Arms

firearm which was “behind a dresser/cubicle, and pressed up against the wall,

inconspicuous and indiscernible to the naked eye.” (Id. ¶ 22). Defendant Officer

Casillas moved the dresser to locate the firearm. (Id.). Plaintiff Kham contacted and

told Plaintiff Waller that the police were searching for him, had found a gun, and that he

needed to come home. (Id. ¶ 24). Plaintiff Waller was thereafter apprehended and

taken into custody. (Id.). Both Plaintiffs allege that this search was in violation of the

Fourth Amendment. (Id. ¶¶ 28-42).

Plaintiff Waller was ultimately arrested and indicted in Erie County with one count

of Criminal Possession of a Weapon in the Second Degree in violation of New York Penal

Law §§ 265.03(3) and 265.02(1) and with another charge not relevant to the instant

matter. (Docket No. 18-2, ¶¶ 3-4). A suppression hearing was held before the

Honorable Deborah A. Haendiges, Justice of the Supreme Court, Erie County, over the

dates of January 5, March 4, and March 6, 2015, ostensibly resulting in the admission of

the firearm seized during the search (the record does not reflect the result of the

suppression hearing). (Id. ¶ 6; Docket Nos. 18-5, 18-6). Plaintiff Waller ultimately

pleaded guilty to one count of Attempted Criminal Possession of a Weapon in the Second

3

Degree in violation of New York Penal Law §§ 110, 265.03(3)—again, ostensibly due to

the fact that the firearm seized during the search was deemed admissible. (Docket Nos.

18-2, ¶ 7; 18-8).

Plaintiffs filed the instant action on March 7, 2017. (Docket No. 1). Defendants

filed an Answer to the Complaint on April 10, 2017. (Docket No. 5). The parties

subsequently proceeded to discovery with the magistrate judge (Docket Nos. 8, 11, 15,

17), and unsuccessfully attempted mediation (Docket Nos. 13-14). On March 28, 2018,

Defendants filed the instant motion to dismiss.2 (Docket No. 18). Plaintiffs opposed the

motion on April 30, 2018. (Docket No. 20). Defendants filed a reply on May 15, 2018.

(Docket No. 21).

Defendants move to dismiss the Complaint for failure state a claim for relief based

on (1) unlawful entry into, and search of, Plaintiffs’ home based on the Supreme Court’s

decision in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994);

(2) false arrest; (3) malicious prosecution of Plaintiff Waller; (4) municipal liability; and (5)

any other possible state law claims. (Docket No. 18-1 at 7-18). Plaintiffs respond that

they only assert a cause of action for unlawful entry into, and search of, Plaintiffs’ home.

(Docket No. 20 at 2). Accordingly, the only issue for the Court to address is whether

Plaintiffs’ Fourth Amendment claims are barred by Heck.

2 Defendants move to dismiss pursuant to Rules “12(b)(6), 12(c), and/or 56.” (Docket No. 18-1 at 4).

The docket entry styles the motion as one for summary judgment. In substance, however, Defendants

move to dismiss all claims in the Complaint for failure to state a claim. (See id. at 7-20).

4

III. DISCUSSION

A. Rule 12(b)(6) Standard

Where, as here, a Rule 12(b)(6) motion is filed “after a defendant answers the

complaint,” it “should be treated as a motion for judgment on the pleadings” pursuant to

Rule 12(c). Wojtczak v. Safeco Prop. & Cas. Ins. Companies, 669 F. Supp. 2d 305, 311

(W.D.N.Y. 2009); Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d

Cir. 2001) (holding that “a motion to dismiss for failure to state a claim (or one of the other

non-waivable defenses under Rule 12(h)) that is styled as arising under Rule 12(b) but is

filed after the close of pleadings, should be construed by the district court as a motion for

judgment on the pleadings under Rule 12(c)”) (footnotes omitted).

“The standard for granting a Rule 12(c) motion for judgment on the pleadings is

identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel, 259 F.3d at

126 (collecting cases). “In both postures, the district court must accept all allegations in

the complaint as true and draw all inferences in the non-moving party’s favor.” Id. “To

survive a Rule 12(c) motion, [the] ‘complaint must contain sufficient factual matter,

accepted as true, to state a claim for relief that is plausible on its face.’” Johnson v.

Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). “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.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937.

Legal conclusions, however, are not afforded the same presumption of truthfulness. Id.

(the tenet that a court must accept as true all factual allegations contained in a complaint

5

is inapplicable to legal conclusions).

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Id. (quoting

Twombly, 550 U.S. at 570, 127 S. Ct. 1955). Labels, conclusions, or “a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555,

127 S. Ct. 1955. Facial plausibility exists when the facts alleged allow for a reasonable

inference that the defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678,

129 S. Ct. 1937. The plausibility standard is not, however, a probability requirement: the

pleading must show, not merely allege, that the pleader is entitled to relief. Twombly,

550 U.S. at 556, 127 S. Ct. 1955; Fed. R. Civ. P. 8 (a)(2). Well-pleaded allegations in

the complaint must nudge the claim “across the line from conceivable to plausible.”

Twombly, 550 U.S. at 570, 127 S. Ct. 1955.

B. Plaintiffs’ Fourth Amendment Claim

“To maintain a cause of action under 42 U.S.C. § 1983, a plaintiff must show that

the defendant, acting under color of state law, denied the plaintiff a constitutional or

federal statutory right.” Forney v. Forney, 96 F. Supp. 3d 7, 11 (E.D.N.Y. 2015) (citing

42 U.S.C. § 1983). The Fourth Amendment protects “[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.

Plaintiffs allege that Defendants violated their Fourth Amendment rights by

entering their home without a warrant and under circumstances that did not present

exceptions to the warrant requirement. (Docket No. 1, ¶¶ 28-42). Defendants move to

6

dismiss both Plaintiffs’ Fourth Amendment claims as barred by Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) due to Plaintiff Waller’s ultimate

conviction for attempted criminal possession of a weapon in the second degree. (Docket

No. 18-1 at 16). For the reasons discussed below, the Court will grant the motion to

dismiss with respect to Plaintiff Waller but will deny it as to Plaintiff Kham.

1. Plaintiff Waller

In Heck, the Supreme Court held that a plaintiff may not bring a Section 1983 suit

for damages that “would necessarily imply the invalidity of [the plaintiff’s] conviction or

sentence,” unless the plaintiff can show that the conviction or sentence has been

“reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus.” Id. at 487, 114 S. Ct. 2364. As Heck’s civil claim

relied on his innocence and challenged the validity of the conviction that secured his

incarceration, it met none of these criteria; so the Court determined he had no cause of

action under Section 1983. “To preserve ‘finality and consistency,’ the [Heck] Court

applied ‘the hoary principle that civil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judgments . . . to § 1983 damages actions

that necessarily require the plaintiff to prove the unlawfulness of his conviction or

confinement, just as it has always applied to actions for malicious prosecution.’”

Poventud v. City of New York, 750 F.3d 121, 130 (2d Cir. 2014) (quoting Heck, 512 U.S.

at 485-86, 114 S. Ct. 2364). In essence, Heck stands for the proposition that civil

lawsuits may not be used to collaterally attack criminal convictions.

7

Thus, when a party seeks damages in a Section 1983 suit, “the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Heck, 512 at 487, 114 S. Ct. 2364.

As relevant here, Heck articulated the following caveat with respect to Section

1983 claims premised on unreasonable searches and seizures:

a suit for damages attributable to an allegedly unreasonable search may lie

even if the challenged search produced evidence that was introduced in a

state criminal trial resulting in the § 1983 plaintiff’s still-outstanding

conviction. Because of doctrines like independent source and inevitable

discovery, and especially harmless error, such a § 1983 action, even if

successful, would not necessarily imply that the plaintiff's conviction was

unlawful.

Heck, 512 U.S. at 487, n.7, 114 S. Ct. 2364 (internal citations omitted). Put another way,

“because the admission of unlawfully seized evidence does not always require a

conviction to be set aside, a conclusion that evidence was unlawfully seized does not

require the further conclusion that the plaintiff’s conviction was invalid.” McCord v. City

of New York, No. 13–CV–2008, 2014 WL 2567108, at *3 (AJN) (S.D.N.Y. June 6,

2014); see also Williams v. Ontario Cty. Sheriff’s Dep’t, 662 F. Supp. 2d 321, 329

(W.D.N.Y. 2009) (“[A] federal court’s finding of a Fourth Amendment violation would not

necessarily imply that a prior state conviction was unlawful if, despite the constitutional

violation, the subject evidence was admissible based on such doctrines as independent

source, inevitable discovery, and harmless error.”). Courts applying the Heck doctrine

in circumstances such as this, therefore, must assess “whether a [person’s] victory in in

8

a § 1983 suit would necessarily demonstrate the invalidity of his conviction or

sentence . . . .” McKithen v. Brown, 481 F.3d 89, 102 (2d Cir. 2007) (emphasis in

original). Accordingly, the Court must determine whether Plaintiffs’ success on their

Section 1983 claim would necessarily demonstrate the invalidity of Plaintiff Waller’s

conviction.

While it is unclear from the record the basis on which the firearm recovered during

the search was deemed admissible and resulted in Plaintiff Waller’s guilty plea to a

weapons possession charge, district courts in this Circuit have frequently found that

Section 1983 actions targeting a single episode involving a single search, if successful,

would necessarily demonstrate the invalidity of a conviction based on that search. In

support of this conclusion, district courts have observed that “the doctrines of independent

source, inevitable discovery, and harmless error discussed in Heck are not applicable,

[such as] where . . . the entire evidentiary basis for the charged offense derive[d] from a

single episode involving a single search.” Clayton v. City of Poughkeepsie, No. 06–CV–

4881 (SCR), 2007 WL 2154196, at *4 (S.D.N.Y. June 21, 2007) (dismissing unlawful

search claims as barred by Heck where entire criminal case turned on motion to suppress

evidence from one search and plaintiff pled guilty immediately after the motion to

suppress was denied); Black v. Blackman, No. 11–CV–2372 (BMC)(ALC), 2011 WL

6019394, at *2 (E.D.N.Y. 2011) (where conviction hinged directly on the weapons

procured during search, and motion to suppress was denied, an award of damages for

an unlawful search would necessarily imply the invalidity of state court conviction).

Here, it appears from the facts pleaded in the Complaint that Plaintiff Waller’s

9

conviction of attempted criminal possession of a weapon in the second degree in violation

of NY Penal Law §§ 110, 265.03-3 stems solely from the evidence obtained in the March

7, 2014 search that is the subject of the instant Complaint—a single episode involving a

single search. See El v. City of New York, No. 14-CV-9055-GHW, 2015 WL 1873099,

at *4 (S.D.N.Y. Apr. 23, 2015) (“[D]istrict Courts have frequently found that Section 1983

actions targeting a single episode involving a single search, necessarily demonstrate the

invalidity of a conviction based on that search.”); Black v. Blackmun, No. 11-CV-2372,

2011 WL 6019394, at *2 (E.D.N.Y. Dec. 1, 2011) (“Because [plaintiff's] conviction [for

weapons possession] hinged directly on the weapons procured during [an]

allegedly unlawful search, an award of damages would necessarily imply the invalidity of

his state court conviction.”). Under these circumstances, having pleaded guilty to those

charges, success on Plaintiff Waller’s Section 1983 claim that the search was unlawful

would necessarily imply the invalidity of his conviction. Cf. Monroe v. Gould, 16 CV

2885(VB), 2019 WL 1206700, at *3 (S.D.N.Y. Mar. 14, 2019) (barring under Heck

plaintiff’s Section 1983 claim based on a single vehicle search yielding cocaine where

plaintiff was ultimately convicted of criminal possession of a controlled substance).

Accordingly, Plaintiff Waller’s claim under Section 1983 that the search of his home

violated his Fourth Amendment rights is barred under Heck and must be dismissed.3

3 To recover compensatory damages, a civil rights plaintiff “must prove not only that the search was

unlawful, but that it caused him actual, compensable injury, which . . . does not encompass the ‘injury’ of

being convicted and imprisoned (until his conviction has been overturned).” Heck, 512 U.S. at 487

n.7, 114 S. Ct. 2364 (citation omitted). Plaintiff Waller also fails to allege that the search of his home

“caused him actual, compensable injury” other than “the ‘injury’ of being convicted and imprisoned”—which

is not cognizable. Id.

10

2. Plaintiff Kham

Defendants also move to dismiss Plaintiff Kham’s claim as barred by Heck, arguing

that any such successful action would necessarily imply the invalidity of Plaintiff Waller’s

conviction. (Docket No. 18-1 at 18). Defendants cite no authority for the proposition

that Heck bars Section 1983 claims brought by third parties. Courts have sparsely

discussed the applicability of Heck to third parties, and no courts within the Second Circuit

have squarely addressed this issue. At least one circuit has explicitly held that “Heck

does not apply to third-party § 1983 claims,” Hayward v. Cleveland Clinic Found., 759

F.3d 601, 616 (6th Cir. 2014), and one has endorsed this approach in an unpublished

opinion, see Eberhardiner v. City of York, No. 18-3310, 2019 WL 3544021, at *3 n.2 (3d

Cir. Aug. 5, 2019) (unpublished) (“Heck concerned the relationship between a prisoner’s

criminal conviction and his own § 1983 suit, and it has been applied to bar a third party’s §

1983 suit only where the convict was the third party’s accomplice.”) (internal citation

omitted) (emphasis in original).

Heck itself held that where “a state prisoner seeks damages in a § 1983 suit, the

district court must consider whether a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487, 114 S. Ct. at

2372 (emphasis added). A plain reading of Heck suggests that courts are only required

to consider whether a successful Section 1983 action brought by a convicted plaintiff

would imply the invalidity of the convicted plaintiff’s conviction. The Heck Court “was

concerned that § 1983 and the federal habeas statute were on a collision course,” but

“[b]ecause such a concern does not extend to the civil rights claims of third parties,”

11

Plaintiff Kham’s claim is not barred by Heck. Hayward, 759 F.3d at 616.

In Rodriguez v. City of Salinas, the Northern District of California confronted the

same proposition that Defendants proffer here. In that case, a warrantless search of

plaintiff’s residence resulted in the conviction of a third party, whose weapon was found

at plaintiff’s residence during the search. Rodriguez v. City of Salinas, No. 09-CV-02454-

LHK, 2011 WL 62500, at *1-2 (N.D. Cal. Jan. 7, 2011). Plaintiff, too, was charged, but

the charges against plaintiff were dismissed. Id. at *2. Plaintiff subsequently brought a

Section 1983 action asserting, among other claims, that the search violated the Fourth

Amendment. Id. Defendants moved to dismiss plaintiff’s complaint, in part on grounds

that the claim was precluded by Heck, arguing that success on the plaintiff’s Fourth

Amendment claim would undermine the third party’s conviction. Id. at *3.

In rejecting Defendants’ argument, the court observed that Heck involved “‘the

intersection of the two most fertile sources of federal-court prisoner litigation’—the habeas

corpus statute and Section 1983.” Id. at * 4 (quoting Heck, 512 U.S. at 480). It further

observed that the Heck doctrine focused on ensuring that prisoners do not circumvent

habeas remedies, and that, as here, “Defendants cite no authority for the proposition

that Heck bars a Section 1983 action brought by an individual who has not been convicted

of any crime simply because his constitutional claims may have some bearing on the

validity of a third party’s conviction.” Id. The court continued: “Plaintiff is not a state

prisoner, has not been convicted of any crimes, and does not seek to challenge the

legality of his conviction. No habeas remedy is, or ever was, available to him as an

alternative remedy for the constitutional violations alleged. Accordingly, the law and

12

reasoning of Heck do not apply.” Id.

This case is materially similar to the Rodriguez case with respect to Plaintiff Kham,

and the Court is persuaded by the court’s reasoning in that case: Plaintiff Kham is not a

state prisoner, has not been convicted of any crimes, and therefore cannot be seeking to

challenge the legality of a conviction through a habeas remedy (because it is not available

to her). Defendants here nonetheless argue that Plaintiff Kham’s allegations cannot be

accepted because if so, “the firearm in question would have been suppressed and

inadmissible at trial”; in other words, Plaintiff Kham’s Fourth Amendment allegations

cannot stand without assuming the invalidity of Plaintiff Waller’s conviction. (Docket No.

18-1 at 18). However, it is well established that “Fourth Amendment rights are personal

rights which, like some other constitutional rights, may not be vicariously asserted,” Rakas

v. Illinois, 439 U.S. 128, 133–34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978) (internal

citation and quotation marks omitted), and it is axiomatic that “the Fourth Amendment

protects people, not places,” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19

L. Ed. 2d 576 (1967). Put differently, a single search may be lawful as to one person,

but unlawful as to another. Accordingly, the Court will deny Defendants’ motion to

dismiss Plaintiff Kham’s claims as barred by Heck.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff Waller’s claim is

GRANTED, and their motion to dismiss Plaintiff Kham’s claim is DENIED.

13

V. ORDERS

IT HEREBY IS ORDERED, that the Motion to Dismiss (Docket No. 18) is

GRANTED in part and DENIED in part.

FURTHER, that the Clerk of the Court shall CORRECT the caption of this case to

substitute “Ibrahim Abdul-Wahed” for “Akim-Waheed”.

SO ORDERED.

Dated: August 20, 2019

Buffalo, New York

/s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge

14