Sheppard v. Leuze

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANNIL CHRISTON-SCORPIO SHEPPARD,

Plaintiff,

-against- MEMORANDUM AND ORDER

21-CV-2075(KAM)(TAM)

LT. LEUZE; P.O. SOSE; P.O. GLORIMAR

DURAN,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Jannil Christon-Scorpio Sheppard commenced this

action on March 26, 2021, against four New York City police

officers based on his removal from 392 Adelphi Street, which he

alleged was in violation of 42 U.S.C. §§ 1981 and 1983. (ECF No.

2 (“Compl.”) at 2.) Defendants previously moved to dismiss the

complaint for failure to state a claim pursuant to Federal Rule of

Civil Procedure 12(b)(6). (See ECF No. 29, Motion to Dismiss.)

On June 27, 2022, the Court granted the Defendants’ motion as to

the Fourteenth Amendment and Section 1981 claims and denied it as

to the Fourth Amendment claim. (See ECF No. 33, M&O.) Defendants

now move for summary judgment as to Plaintiff's sole remaining

cause of action alleging that Plaintiff’s removal from the 392

Adelphi Street premises was an illegal seizure that violated the

Fourth Amendment.

For the reasons set forth below, the Court finds no genuine

disputes of material fact and grants Defendants’ motion for summary

judgment with respect to Plaintiff’s remaining claim which is

dismissed with prejudice.

BACKGROUND

I. Factual Background

The following facts are taken from the parties’ Local Rule

56.1 statement and counter-statement, as well as from documents

and transcripts cited in the parties’ Local Rule 56.1 statements.

(See ECF No. 65, Defendants’ Statement of Undisputed Material Facts

(“Def. 56.1”); (ECF No. 68, Plaintiff’s Counter-Statement (“Pl.

56.1”).) Except as otherwise indicated, the facts set forth below

from the parties’ Local Rule 56.1 statements are undisputed. The

court summarizes only those facts that are relevant and material

to the adjudication of the instant motion.

At the heart of the remaining claim in this case is a property

in Brooklyn – 392 Adelphi Street. Plaintiff stated during his

deposition that the property has been in his family “for

generations” and that his grandmother, Josephine English, had

previously resided in an apartment at the property. (ECF No. 72,

Deposition of Jannil Sheppard (“Pl. Dep.”), at 22, 64.) Indeed,

property records available on New York City’s Automated City

Register Information System1 (“ACRIS”) support this contention,

reflecting that the property was transferred from 375 Stuyvesant

Ave Realty Corporation2 to Josephine English in 1993. See ACRIS,

N.Y.C. Dep't of Fin., https://a836-

acris.nyc.gov/DS/DocumentSearch/Index (last visited Jul. 25,

2024). Plaintiff stated that his grandmother began living at the

property after the death of his grandfather, and that Plaintiff’s

father, Michael Sheppard, resided with Plaintiff’s grandmother at

the property. (Pl. Dep. at 64-65; Compl. at p. 31.) Plaintiff’s

father continued to reside in the apartment at 392 Adelphi Street

following the death of Plaintiff’s grandmother in 2011. (Pl. Dep.

at 65.)

It is undisputed that 392 Adelphi Street was conveyed to Barry

Sheppard3, Plaintiff’s uncle (“Uncle Barry”), in or around 1999 by

Plaintiff’s grandmother Josephine English. (Def. 56.1 ¶ 16.)

Property records on ACRIS also reflect this transaction, showing

1 “Multiple district courts within the Second Circuit have held that property

records made available on ACRIS are subject to judicial notice.” Disame v.

Kantharia, No. 23-CV-7102 (HG)(PK), 2023 WL 6879614, at *2 n. 2 (E.D.N.Y. Oct.

18, 2023); see also Fawn Second Ave. LLC v. First Am. Title Ins. Co., 610 F.

Supp. 3d 621, 628, 633 (S.D.N.Y. 2022) (taking judicial notice of ACRIS records

because “New York County's real property records” were “undoubtedly proper

subjects of judicial notice” and dismissing complaint).

2 Plaintiff stated in his deposition that this corporation was controlled by

his family, although it was dissolved and then later re-incorporated by a family

member. (Pl. Dep. at 23.) The 1993 Deed transferring the property states that

at the time of the conveyance, Josephine English was the President of 375

Stuyvesant Ave Realty Corporation. See ACRIS, N.Y.C. Dep't of Fin.,

https://a836-acris.nyc.gov/DS/DocumentSearch/Index (last visited Jul. 25,

2024).

3 Barry Shepard is also known as “Ira Barry Sheppard,” based on civil court

documents attached to Plaintiff’s complaint. (See Compl. at p. 21.)

that Josephine English conveyed 392 Adelphi Street to Uncle Barry

via deed on December 20, 1999. See ACRIS, N.Y.C. Dep't of Fin.,

https://a836-acris.nyc.gov/DS/DocumentSearch/Index (last visited

Jul. 25, 2024). Subsequently, on July 18, 2017, Plaintiff’s Uncle

Barry transferred 392 Adelphi Street to “392 ADL LLC,” signing the

transfer documents as both the seller and as a “member” or

“managing member” of the buyer, 392 ADL LLC. (ECF No. 66-9,

Exhibit I to the Declaration of Caroline McGuire (“Ex. I”), at 6-

9.) Plaintiff acknowledged during his deposition that it was

possible that Uncle Barry owned 392 ADL LLC, and stated that even

if Uncle Barry did not own the entity, “he’s in full control of

it.” (Pl. Dep. at 121.) No evidence has been submitted showing

any change in the membership of 392 ADL LLC or any subsequent

transfer of 392 Adelphi Street, and ACRIS records do not reflect

any further transfers after 2017.

Plaintiff began to stay with his father at 392 Adelphi Street

when Plaintiff moved to the neighborhood from East New York in

2012. (Id. at 142.) Plaintiff acknowledged in his deposition

that his residence at 392 Adelphi Street was somewhat intermittent

from 2012 to 2020, as he also lived in shelters. (Id. at 112-13.)

Plaintiff stated that from 2016 forward, he stayed at a shelter

instead of 392 Adelphi Street “two or three nights a week.” (Id.

at 113.) During the time that Plaintiff stayed with his father at

392 Adelphi Street, he never paid any rent. (Id. at 114.)

Plaintiff also acknowledged that his father had a restraining order

against him at some point during the period he intermittently

stayed at 392 Adelphi Street, possibly in 2018. (Id. at 49.)

Records submitted by the Plaintiff show that the order of

protection barring him from his father’s residence was issued on

November 11, 2018, and expired on May 31, 2019. (ECF No. 69,

Exhibit 1 to the Cajoux Declaration.)

Plaintiff further explained in his deposition that he had a

storage unit for his belongings because his father was “throwing

[him] out [of 392 Adelphi Street] a hundred times a year or twice

every day . . . [his father was] very argumentative, and [] had a

severe alcohol problem . . . [and his father was] throwing

everybody out all the time.” (Id. at 143.) Plaintiff explained

that “at any moment” his father could “get mad and throw [him]

out” of 392 Adelphi Street, necessitating the storage unit. (Id.

at 141.) For the same reason, Plaintiff also received mail at a

mailing facility at 40 Ann Street, New York, to avoid any

disruption in receiving mail if his father were to put him out of

392 Adelphi Street. (Id. at 174-76.)

The events leading to Plaintiff’s lawsuit began on March 7,

2020, when Plaintiff voluntarily admitted himself to an alcohol

treatment center, where he stayed throughout the duration of the

program. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) On March 21, 2020, the

treatment program ended, and Plaintiff returned to his father’s

apartment at 392 Adelphi Street. (Def. 56.1 ¶¶ 6, 8.) Upon

arriving at 392 Adelphi Street, Plaintiff was told by his Uncle

Barry that the apartment needed to be quarantined because his

father had contracted COVID-19, so Plaintiff picked up some of his

belongings that were stored in the apartment before departing.

(Id. ¶ 9; Pl. Dep. at 97-98.) After departing 392 Adelphi Street,

Plaintiff made plans to stay with his Uncle John Sheppard (“Uncle

Johnny”) at 1325 Union Street in Crown Heights, Brooklyn. (Def.

56.1 ¶ 7.) In addition to Uncle Johnny’s apartment, Plaintiff

also temporarily stayed in shelters, on trains, and outdoors

between March 21, 2020, and April 19, 2020. (Def. 56.1 ¶¶ 12-13.)

On April 14, 2020, Plaintiff’s father passed away. (Def.

56.1 ¶ 15.) Plaintiff believed that once his father had passed

away, he had gained a possessory interest in 392 Adelphi Street.

(Def. 56.1 ¶ 17.) On April 19, 2020, Plaintiff returned to 392

Adelphi Street. (Def. 56.1 ¶ 18.) Upon his arrival, Plaintiff

discovered that “many items [had been] cleared away and put into

garbage bags.” (Def. 56.1 ¶ 19; Pl. 56.1 ¶ 19.) Plaintiff

anticipated that his Uncle Barry was going to state that Plaintiff

could no longer stay at 392 Adelphi Street, and waited for his

Uncle Barry to arrive. (Def. 56.1 ¶ 20; Pl. Dep. at 126.) When

Uncle Barry arrived, he told Plaintiff that he “[c]an’t stay here

[at 392 Adelphi Street.]” (Pl. Dep. at 126.) Plaintiff and his

Uncle Barry argued about Plaintiff’s right to be at the property,

and eventually, Uncle Barry “half tried to swing” a walking stick

at Plaintiff. (Id. at 127.) After Uncle Barry swung the walking

stick, Plaintiff shut the door in Uncle Barry’s face and called

the police. (Def. 56.1 ¶ 25; Pl. Dep. at 128.)

The police responded to a radio call for what was described

as a “verbal dispute” incident in which one of the individuals

involved had a stick. (Def. 56.1 ¶¶ 27-28.) Several police

officers arrived to 392 Adelphi Street, and Officer John Sosa4

(“Officer Sosa”) approached Plaintiff to speak with him. (ECF No.

66-5, Officer Sosa’s Deposition, Exhibit E to the McGuire

Declaration (“Ex. E”), at 11-12.) Plaintiff explained to Officer

Sosa that his father had passed away, and that upon his father’s

death, he inherited the property. (Def. 56.1 ¶ 29; Ex. E. at 16.)

Plaintiff informed Officer Sosa that his family owned properties

in the surrounding area, including 392 Adelphi Street. (Def. 56.1

¶ 30.) Plaintiff explained that his uncle and his father owned

these properties as it was listed on his grandmother’s will. (Id.

¶ 31.) Plaintiff acknowledged to Officer Sosa, however, that the

registered owner of 392 Adelphi Street “might be [Uncle Barry].”

(Def. 56.1 ¶ 33; Pl. 56.1 ¶ 33; Officer Sosa’s Body Worn Camera

Footage, Exhibit F to the McGuire Declaration (“Ex. F”), at 3:02-

3:215.)

4 Incorrectly named in the caption as Officer “Sose.”

5 The body worn camera footage cited herein includes the timestamp in the

underlying video file.

While Officer Sosa was speaking to Plaintiff, other police

officers spoke to Uncle Barry. (Def. 56.1 ¶ 34; Ex. E at 16.)

Uncle Barry told Officers Rodriguez and Kim (and later Officer

Sosa) that he owned the building at 392 Adelphi Street “entirely.”

(Def. 56.1 ¶ 38.) Uncle Barry told Officers Rodriguez and Kim

that Plaintiff did not live at 392 Adelphi Street, and that

Plaintiff could not stay there. (Id. ¶ 35.) Uncle Barry also

explained to the officers that Plaintiff had a mental health

history, was homeless, and that he did not know where Plaintiff

lived. (Id. ¶¶ 35-37.)

Uncle Barry explained to Officer Sosa that he had come to the

property because a tenant called Uncle Barry to inform him that

someone the tenant had never seen before was on the first floor of

the property. (Id. ¶ 56.) When Officer Rodriguez spoke to tenants

at 392 Adelphi Street, the tenants identified Uncle Barry as their

landlord and stated that Plaintiff did not live at the location.

(Id. ¶ 446-45.)

While Plaintiff was speaking to Officer Sosa, he explained

that the portion of 392 Adelphi Street he considered his bedroom

lacked heat and had visible mold in it. (Id. ¶ 39.) Plaintiff

6 Plaintiff argues that Officer Sosa and Lieutenant Leuze never spoke to tenants

or witnesses, but the Rule 56.1 Statement states only that Officer Rodriguez

spoke to tenants, which is reflected in Officer Rodriguez’s body worn camera

footage. (Exhibit G to the McGuire Declaration (“Ex. G”), at 5:07–5:23.)

also explained to Officer Sosa that all7 of his personal belongings

were in storage because his father would frequently throw him out

of 392 Adelphi Street. (Id. ¶¶ 40, 42.) Plaintiff also explained

that the set of keys he had for 392 Adelphi Street had been given

to him by his Uncle Johnny. (Id. ¶ 46.) Officer Sosa later

testified at his deposition that the fact that Plaintiff had to

borrow keys to the property led him to believe that Plaintiff did

not live at 392 Adelphi Street. (Ex. E at 36-37.)

Eventually, officers entered 392 Adelphi Street to further

investigate whether Plaintiff lived there. (Def. 56.1 ¶ 50; Ex.

E at 24.) The officers observed Plaintiff did not have a bed and

that there was no heat. (Def. 56.1 ¶¶ 51-52.) Officer Sosa later

testified in his deposition that Plaintiff did not have any

property in the residence, and that the residence was not clean

and was in disorder. (Ex. E at 25.) Soon after, the officers

called their supervisor, then-Lieutenant (now Captain) Stephen

Leuze, to the scene. (Def. 56.1 ¶ 54; Captain Leuze’s Deposition,

Exhibit D to the McGuire Declaration (“Ex. D”), at 10-15.)

When Lieutenant Leuze arrived at 392 Adelphi Street, the

officers advised him of the situation. (Def. 56.1 ¶ 55.)

Lieutenant Leuze entered the residence, and afterwards, spoke to

7 Plaintiff disputes that all of his belongings were actually in storage, but

it is undisputed that the body worn camera footages shows Plaintiff telling

Officer Sosa that “[a]ll my stuff is in my storage . . . in Manhattan.” (See

Ex. F, at 5:23-5:50.)

Plaintiff and Uncle Barry separately outside. (Id. ¶¶ 57-61.)

Uncle Barry informed Lieutenant Leuze that he allowed Plaintiff’s

father to stay at 392 Adelphi Street, that the Plaintiff was living

in a shelter, and that the family “kind of disowned [Plaintiff],

so to speak, in some shape or form,” and that Plaintiff believed

he now owned the property because his father passed away. (Id. ¶

62.) Uncle Barry additionally informed Lieutenant Leuze that

Plaintiff’s father previously had an order of protection against

Plaintiff that had since expired. (Def. 56.1 ¶ 63; Ex. D at 35-

36.)

Lieutenant Leuze asked Plaintiff to step outside to speak and

Plaintiff exited 392 Adelphi Street with a small bag. (Def. 56.1

¶ 65.) Plaintiff explained to Lieutenant Leuze that the last time

he was at the location was “approximately two weeks ago” and he

currently did not have a bed in the location. (Id. ¶¶ 66-67.)

Plaintiff told Lieutenant Leuze that because his New York driver’s

license listed 392 Adelphi Street as the address, and because he

received mail at the location, the officers should not ask him to

leave. (Id. ¶ 68.) Plaintiff also asked the officers why they

did not ask Uncle Barry for any documentation demonstrating his

ownership of the building. (Id. ¶ 69.) Lieutenant Leuze and

Officer Rodriguez explained to Plaintiff that witnesses did not

recognize Plaintiff as a tenant, and they also identified Uncle

Barry as their landlord who received their monthly rent. (Id. ¶

70.) Officer Sosa encouraged Plaintiff to resolve the dispute in

landlord tenant court because police officers do not determine

ownership; they just “validate who lives there or not.” (Id. ¶

71.) Throughout this interaction, Plaintiff continued to protest

that he was a part owner of the house. (Id. ¶ 72.)

Ultimately, Lieutenant Leuze determined, based on the

officers’ investigation of the situation, that Plaintiff was not

a resident of 392 Adelphi Street, and that Uncle Barry owned the

property. (Ex. D at 31-34, 46-47.) Lieutenant Leuze therefore

ultimately approved the decision to ask Plaintiff to leave the

property, and subsequently asked Plaintiff to leave 392 Adelphi

Street. (Def. 56.1 ¶¶ 78-79.) Upon being asked to leave,

Plaintiff left the immediate area of 392 Adelphi Street and went

around the corner for approximately fifteen to twenty minutes.

(Id. ¶ 80.) While he was around the corner, Plaintiff looked up

the ownership of 392 Adelphi Street. (Id. ¶¶ 81-82; Pl. Dep. at

162-64.) Plaintiff believed that the deed proved that his uncle

did not own the property and called the police as soon as he saw

the ownership did not say “Barry Sheppard.” (Def. 56.1 ¶ 83.)

After Plaintiff called the police for a second time, a

different group of officers responded to the call and arrived at

392 Adelphi Street. (Id. ¶¶ 83-84.) When those officers arrived,

they began speaking with Plaintiff. (Id. ¶ 85.) Plaintiff made

similar arguments to the second set of officers regarding his

father’s death and his right to the property as he had made with

the first group of officers. (Id. ¶¶ 86-89.) Plaintiff then

showed the officers his driver’s license and explained he had been

living at 392 Adelphi Street since 2012. (Id. ¶ 90.) Plaintiff

also described his previous altercation with Uncle Barry and his

interaction with the first group of police officers. (Id. ¶¶ 92-

93.) Plaintiff showed the officers that he had keys to 392 Adelphi

Street and explained that his Uncle Johnny had given him the keys.

(Id. ¶¶ 95-96.) Plaintiff admitted to the officers that he did

not have any mail with his name on it at 392 Adelphi Street “right

now.”8 (Def. 56.1 ¶ 98; Officer Carlin’s Body Worn Camera Footage,

Exhibit to the McGuire Declaration (“Ex. H”), at 3:28-3:47.)

Eventually, Officer Carlin spoke to Uncle Barry. (Id. ¶¶ 99-

101.) Uncle Barry told Officer Carlin that he owned the building

and had previously allowed Plaintiff’s father to stay at the

apartment until his recent death. (Id. ¶¶ 102-03.) Uncle Barry

then stated that he hadn’t seen Plaintiff in over a year and had

told Plaintiff that he could not stay at the apartment. (Id. ¶¶

104; 106.) Uncle Barry further told Officer Carlin that Plaintiff

had previously “beat his father up,” and that Plaintiff’s father

had two orders of protection against him which meant Plaintiff

8 Plaintiff disputes this paragraph of Defendants’ Rule 56.1 statement, but the

Court’s review of Officer Carlin’s body worn camera footage confirms that

Plaintiff states to the police officers “I don’t have any mail there [at the

apartment] right now.” (Ex. H. at 3:28-3:47.)

should not have been anywhere near 392 Adelphi Street. (Id. ¶

108.) Uncle Barry stated to Officer Carlin that Plaintiff did not

live with his father. (Id. ¶ 109.)

While speaking to Officer Carlin, Uncle Barry called his

nephew, Lieutenant Tarik Sheppard, who was a police officer in the

NYPD, and put the call on speaker phone for Officer Carlin. (Id.

¶ 111.) Lieutenant Sheppard explained to Officer Carlin that

Plaintiff’s father had passed away, and that Plaintiff had not

been living at 392 Adelphi Street on a regular basis, arriving

only within the last day. (Id. ¶¶ 112-13.) Another police officer

at the scene, Officer Duran, witnessed some of this conversation

take place. (Id. ¶¶ 117; 124.) Lieutenant Sheppard ended the

call by providing his NYPD Tax Register Number, upon request, to

Officer Carlin. (Id. ¶ 123.)

Uncle Barry indicated to the officers that he was going to

change the locks at the location. (Id. ¶ 125.) Officer Duran

then told Officer Carlin that she had spoken to Officer Rodriguez,

who was one of the officers who had responded to the location

earlier in the day. (Id. ¶ 126.) Officer Duran explained that

she had been told that Plaintiff had not been living at 392 Adelphi

Street for years and that Plaintiff was emotionally disturbed.

(Id. ¶ 127.) Following this conversation, Officer Duran walked

with Officer Carlin to speak to Plaintiff. (Id. ¶ 128.) Officer

Carlin informed Plaintiff that he had spoken to members of

Plaintiff’s family, who stated that Plaintiff did not live at the

location. (Id. ¶ 129.) Officer Carlin explained to Plaintiff

that “until the will is completely done and through and you take

ownership, you don’t own [392 Adelphi Street].” (Id. ¶ 131.)

Officer Duran added, “You have to follow the correct procedures,

your father just passed away, you can’t just take ownership of a

property that was your father’s . . . You have an option of taking

your things and leaving, or we could just send you to a hospital.”

(Id. ¶¶ 134-135.) Based on his investigation, Officer Carlin

concluded Plaintiff did not live at the location. (Id. ¶ 132.)

Plaintiff left the location shortly thereafter and was never

put under arrest. (Id. ¶¶ 136-38.) The next day, on April 20,

2020, Plaintiff discovered that the locks at 392 Adelphi had been

changed, and Plaintiff later stated in his deposition that he

“assumed” his Uncle Barry changed the locks. (Id. ¶ 145.) When

the officers twice responded to 392 Adelphi Street on April 19,

2020, Plaintiff was not proceeding in probate court against his

Uncle Barry. (Id. ¶ 139.)

II. Procedural History

Plaintiff commenced this action by filing a complaint against

Defendants on March 26, 2021, (see Compl.), in the United States

District Court for the Southern District of New York, which

subsequently transferred the case to this court on April 9, 2021,

(ECF No. 4, Transfer Order). Plaintiff brought claims pursuant to

42 U.S.C. §§ 1981 and 1983, asserting that his Fourth and

Fourteenth Amendment rights were violated. (Compl. At 2.)

On November 22, 2021, Defendants filed their fully-briefed

motion to dismiss Plaintiff’s complaint for failure to state a

claim. (ECF Nos. 27-32.) On June 27, 2022, the Court granted in

part and denied in part Defendants’ Motion to Dismiss, dismissing

Plaintiff’s equal protection and 42 U.S.C. § 1981 claims, but

allowing his Fourth Amendment claim to proceed. (ECF No. 33, M&O.)

The parties proceeded to discovery under the supervision of

Magistrate Judge Taryn A. Merkl. (See, e.g., August 17, 2022,

Order; September 29, 2022, Minute Entry; November 10, 2022, Minute

Entry; ECF No. 44; January 19, 2023, Minute Entry; March 1, 2023,

Minute Entry; April 19, 2023, Minute Entry; May 15, 2023, Minute

Entry.) During the course of discovery, Plaintiff obtained

counsel, who entered a notice of appearance on April 27, 2023, and

has represented Plaintiff since that time. (ECF No. 52.) A status

report was given to the Court on June 30, 2023, certifying the

close of fact discovery. (ECF No. 53.)

On July 31, 2023, Defendants submitted a motion for a pre-

motion conference in anticipation of filing a motion for summary

judgment. (ECF No. 54.) The Court held the conference on November

2, 2023, and set a briefing schedule. (November 2, 2023, Minute

Entry.) The motion was fully briefed and submitted on February

12, 2024. (See ECF No. 63, Defendants’ Notice of Motion for

Summary Judgment; ECF No. 64, Defendants’ Memorandum of Law in

Support (“Def. Mem.”); Def. 56.1; ECF No. 66, Declaration of

Caroline McGuire (“McGuire Decl.”); ECF No. 67, Plaintiff’s

Memorandum of Law in Opposition (“Pl. Mem.”); Pl. 56.1; ECF No.

69, Declaration of Marjory Cajoux (“Cajoux Decl.”); ECF No. 70,

Defendants’ Reply in Further Support (“Def. Reply”).)

LEGAL STANDARD

Defendants move for summary judgment pursuant to Federal Rule

of Civil Procedure 56, which provides that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed R. Civ. P. 56(a). “[T]he mere

existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986) (emphasis in original). A fact is material if it

“might affect the outcome of the suit under the governing law,”

and a dispute is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. at 248.

For a genuine issue of material fact to exist, there must be

“sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party. If the evidence is merely

colorable, or is not significantly probative, summary judgment may

be granted.” Id. at 249-50 (citations omitted).

In reviewing a motion for summary judgment, the court “is not

to weigh the evidence but is instead required to view the evidence

in the light most favorable to the party opposing summary judgment,

to draw all reasonable inferences in favor of that party, and to

eschew credibility assessments.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst,

101 F.3d 845, 854 (2d. Cir. 1996)); accord Tolan v. Cotton, 572

U.S. 650, 651 (2014) (“[I]n ruling on a motion for summary

judgment, ‘[t]he evidence of the nonmovant is to be believed, and

all justifiable inferences are to be drawn in his favor.’”

(alteration in original) (quoting Anderson, 477 U.S. at 255)).

The moving party has the burden of establishing the absence

of a genuine dispute as to any material fact, and in opposing

summary judgment, the nonmoving party “need only present evidence

from which a jury might return a verdict in his favor” to defeat

a motion for summary judgment. Anderson, 477 U.S. at 256-57. To

meet this burden, however, a party opposing summary judgment must

“come forward with specific facts showing that there is a genuine

issue for trial,” not merely “show that there is some metaphysical

doubt as to the material facts.” Caldarola v. Calabrese, 298 F.3d

156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-

87 (1986)).

In opposing summary judgment, it is “not sufficient merely to

assert a conclusion without supplying supporting arguments or

facts,” and a party must instead set forth “concrete particulars.”

BellSouth Telecomm., Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603,

615 (2d Cir. 1996) (citation omitted). Accordingly, “[t]he

nonmoving party must go beyond the pleadings, and by his or her

own affidavits, or by the depositions, answers to interrogatories,

and admissions on file, designate specific facts showing that there

is a genuine issue for trial.” Davis v. New York, 316 F.3d 93,

100 (2d. Cir. 2002) (internal punctuation and citation omitted);

accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

DISCUSSION

Defendants seek summary judgment as to Plaintiff's sole

remaining claim pursuant to 42 U.S.C. § 1983 relating to

Defendants’ alleged unlawful seizure of Plaintiff within the

meaning of the Fourth Amendment. (See Def. Mem. at 1.)

For the reasons set forth below, the Court concludes that

defendants are entitled to summary judgment dismissing Plaintiff's

unlawful seizure claim both because (1) the undisputed facts show

that Plaintiff did not have an expectation of privacy at 392

Adelphi Street nor the right to be there, and (2) Defendants

Lieutenant Leuze, Officer Sosa, and Officer Duran are entitled to

qualified immunity with respect to their instruction for Plaintiff

to leave the property.

I. Plaintiff’s Unlawful Seizure Claim

Plaintiff alleges an unlawful seizure claim based on the

Defendants’ directive to Plaintiff to leave 392 Adelphi Street on

April 19, 2020. (Pl. Mem. At 4-5.) Defendants move for summary

judgment on Plaintiff’s unlawful seizure claim, arguing that

Plaintiff lacks standing to bring a Fourth Amendment claim because

his Uncle Barry owns 392 Adelphi Street, because Plaintiff was not

actually residing at the premises and was not legally entitled to

remain there, and because Officer Duran told Plaintiff to leave a

public space. (Def. Mem. at 9-21.)

To state a claim under Section 1983, “a plaintiff must allege

two elements: (1) the violation of a right secured by the

Constitution and laws of the United States, and (2) the alleged

deprivation was committed by a person acting under color of state

law.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-

88 (2d Cir. 2015) (internal quotation marks and citation omitted).

Here, Plaintiff’s Section 1983 claim is based on alleged violations

of the Fourth Amendment by police officers. (Compl. at 2.) The

Fourth Amendment assures “the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV.

The Fourth Amendment protects individuals’ right to be free

from unreasonable government intrusions into areas where they have

a legitimate expectation of privacy. United States v. Snype, 441

F.3d 119, 130 (2d Cir. 2006) (citation omitted). The Fourth

Amendment “does not protect all subjective expectations of

privacy, but only those that society recognizes as ‘legitimate.’”

Cassidy v. Chertoff, 471 F.3d 67, 76 (2d Cir. 2006) (quoting

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995)).

Therefore, “a [plaintiff] must demonstrate (1) that he had an

expectation of privacy that society is prepared to consider

reasonable and (2) that he acted in a way with respect to the

property in question that indicated a subjective expectation of

privacy.” Shaul v. Cherry Valley-Springfield Cent. Sch. Dist.,

363 F.3d 177, 181-82 (2d Cir. 2004).

Although common-law property concepts “do not control the

Fourth Amendment inquiry,” United States v. Fields, 113 F.3d 313,

320 (2d Cir. 1997), the Second Circuit has stated that “[a] mere

trespasser has no Fourth Amendment protection in premises he

occupies wrongfully,” United States v. Sanchez, 635 F.2d 47, 64

(2d Cir. 1980). “Courts in this Circuit therefore frequently

reject Fourth Amendment . . . claims by trespassers or squatters.”

Murphy v. County of Chemung, No. 18-CV-6628 (FPG), 2024 WL 3228056,

at *13 (W.D.N.Y. June 28, 2024) (collecting cases).

It is undisputed that Plaintiff is not the owner of record of

392 Adelphi Street and did not have permission of the owner to be

present there. Instead, property records show that Plaintiff’s

Uncle Barry became the record owner of the property in 1999, and

that he subsequently transferred the property in 2017 to “392 ADL

LLC,” signing the transfer documents as both the seller and as a

“member” or “managing member” of the buyer, 392 ADL LLC. (Ex. I

at 6-9.) Plaintiff makes no claim to have ownership or control

over 392 ADL LLC, the current registered owner. Instead, Plaintiff

argues that he was a “lawful occupant” of 392 Adelphi Street, and

thus entitled to a legitimate expectation of privacy at the

property. (Pl. Mem. at 9-11.) There is no evidence that any

individual affiliated with 392 ADL LLC9, the property’s owner of

record, gave Plaintiff permission to be present at 392 Adelphi

Street. Based on the undisputed factual record, the Court does

not find Plaintiff’s argument to be persuasive.

Plaintiff is correct that that the Supreme Court has

recognized that “overnight guests” can invoke the Fourth

Amendment's protections. Minnesota v. Olson, 495 U.S. 91, 96-97,

9 The Court notes that Uncle Barry was the “managing member” of 392 ADL LLC at

the time he conveyed the property to the entity in 2017, but neither party

offers any evidence regarding whether 392 ADL LLC’s ownership, members, or

management changed between 2017 and April 19, 2020. (Ex. I at 6-9.)

Notwithstanding this lack of evidence, what is clear is that Plaintiff does not

claim to have been at the property with the permission of 392 ADL LLC or offer

any evidence suggesting he had such permission. (See Pl. Dep. at 121

(“[Question]: So do you think it's possible that your uncle Barry could own 392

ADL LLC? [Answer]: Absolutely. If not, he's in full control of it.”).)

(1990). In Olson, the court held that Olson’s arrest violated his

Fourth Amendment rights because an overnight guest like himself

“seeks shelter in another's home precisely because it provides him

with privacy, a place where he and his possessions will not be

disturbed by anyone but his host and those his host allows inside.”

Id. at 99. Furthermore, “[a] person need not ‘reside’ in a

particular dwelling, in the sense of living primarily at that

location, to enjoy a legitimate expectation of privacy when he is

on the premises . . . a social guest can, under some circumstances,

legitimately expect privacy in his host's home.” Figueroa v.

Mazza, 825 F.3d 89, 109–10 (2d Cir. 2016).

“This ‘overnight guest’ theory of Fourth Amendment standing

generally requires a showing [that the individua] actually enjoyed

the owner or host's permission to be there.” United States v.

Harrison, 683 F. Supp. 3d 184, 198 (N.D.N.Y. 2023) (citing United

States v. Ray, 541 F. Supp. 3d 355, 380 (S.D.N.Y. 2021)). “A

Fourth Amendment seizure does not occur where a person is merely

escorted out of a place in which he has no expectation of privacy.”

Faga v. Faga, No. 08-CV-11229 (CS), 2010 WL 11712776, at *6

(S.D.N.Y. Mar. 25, 2010).

As discussed in more detail in the factual background section,

supra, Plaintiff resided intermittently at 392 Adelphi Street

between 2012 and his admission to an alcohol treatment program on

March 7, 2020. (Def. 56.1 ¶ 4; Pl. Dep. at 112-13, 142.) Plaintiff

stayed with his father at the property, but never paid any rent

and was thrown out regularly by his father, who had permission

from Uncle Barry to reside at the property. (Pl. Dep at 114, 141-

43; Def. 56.1 ¶ 62.) It is undisputed that Plaintiff stayed at

392 Adelphi Street because he was given permission by his father

to stay at the property, and when his father revoked that

permission or otherwise told him to leave, he departed. (Pl. Dep

at 141-43.) It is also undisputed that Plaintiff had not slept at

392 Adelphi Street since at least March 7, 2020, instead sleeping

at another uncle’s house, in shelters, on trains, and outdoors,

and that his father passed away on April 14, 2020. (Def. 56.1 ¶¶

4, 12-13, 15.) Plaintiff could not have been at the property with

his father’s permission or at his father’s invitation on April 19,

2020, as his father had passed away.

Furthermore, Plaintiff’s argument that he was a “lawful

occupant” of the property even after the death of his father,

citing to York v. W. Kingsbridge, LLC, 133 N.Y.S.3d 783 (N.Y. Civ.

Ct. 2020), is unavailing. In York, the occupant of a rent-

stabilized apartment resided in the property with her mother, the

tenant of record, and paid the rent on behalf of her mother. Id.

After the death of the occupant’s mother, the occupant reached out

to the landlord to “try to clear up any rental arrears” before

departing the apartment “for a couple of days.” Id. Upon her

return, the occupant discovered that the apartment’s locks had

been changed. Id. The New York City Civil Court found that the

changing of locks was an unlawful eviction because the occupant

had “sustained her burden of proving that she had been in lawful

possession of the subject apartment for more than thirty days at

the time [the landlord] locked her out of the apartment.” Id.;

see also N.Y. Real Prop. Acts. Law (“RPAPL”) § 768(1)(a) (“It shall

be unlawful for any person to evict . . . an occupant of a dwelling

unit who has lawfully occupied the dwelling unit for thirty

consecutive days or longer.”).

The facts of the instant case are easily distinguishable from

York. Plaintiff did not pay any rent to the owner of 392 Adelphi

Street, and he had been absent from the property for at least 43

days as of April 19, 2020. (Def. 56.1 ¶¶ 4, 15; Pl. Dep at 114,

141-43.) Furthermore, Plaintiff’s own complaint reflects that he

subsequently initiated an illegal lockout proceeding against his

Uncle Barry with the Housing Part of the Civil Court of the City

of New York. (Compl. at pp. 21-23); see RPAPL § 713(10). The

Housing Court found that title to 392 Adelphi Street passed from

Plaintiff’s grandmother to his Uncle Barry, and then to 392 ADL

LLC. (Compl. at p. 22.) As such, the Housing Court concluded

that even if Plaintiff was unlawfully ousted, he was not entitled

to be restored to possession because he would not be able to

prevail in a subsequent eviction proceeding. (Id. at p. 23.)

Plaintiff’s additional contention that he was in “constructive

possession” of the apartment at the time of his ejection is also

unpersuasive, as Plaintiff has offered no evidence of any leasehold

or possessory interest in 392 Adelphi Street. See Hui Zhen Wei v.

259 E. Broadway Assocs. LLC, 66 N.Y.S.3d 653 (N.Y. App. Term. 2017)

(finding the Petitioner was at least in constructive possession of

the apartment at the time when landlord locked her out based on

Petitioner’s husband’s agreement to surrender the apartment). As

a result, the Court does not find any evidence to suggest that

Plaintiff was a “lawful occupant” of 392 Adelphi Street at the

time he was asked to leave.

Because at the time that Plaintiff was asked to leave 392

Adelphi Street he was neither an owner nor a guest at the property,

his Fourth Amendment rights were not implicated by his removal.

See Faga v. Faga, 2010 WL 11712776, at *5. Plaintiff therefore

did not have a legitimate expectation of privacy at the premises

and in any event cannot prove that he was seized in being directed

to leave the premises in violation of the Fourth Amendment.

Defendants are entitled to summary judgment dismissing Plaintiff’s

claim of a violation of his Fourth Amendment constitutional rights.

Plaintiff’s subsequent interaction with police officers on

the sidewalk half a block away from 392 Adelphi Street similarly

does not constitute a seizure and cannot support a claim of a

violation of Plaintiff’s constitutional rights. At the time

Officer Duran, part of the second round of police officers to

respond, asked Plaintiff to leave the area, he was in a public

space. (Def. 56.1 ¶¶ 128-35.) Plaintiff failed to address

Defendants’ arguments on this point and appears to concede that no

seizure occurs when an individual is asked to leave a place in

which he has no expectation of privacy. (Pl. Mem. at 13.) The

Court finds that Plaintiff was not seized when he was asked by

police officers to leave the area immediately surrounding 392

Adelphi Street, as it was a public space in which he had no

expectation of privacy. See Sethi v. Nassau County, No. 11–CV–

6380 (SJF)(GRB), 2014 WL 2526620, at *5 (E.D.N.Y. June 3, 2014)

(finding plaintiff was not restrained when law enforcement

encouraged plaintiff to leave a public space called RXR Plaza);

Posr v. Killackey, No. 01-CV-2320 (LTS)(GWG), 2003 WL 22962191, at

*7 (S.D.N.Y. Dec. 17, 2003) (finding no seizure when videographer

was escorted out of courthouse, released, and “not prevented from

going anywhere he wanted – except back into the courthouse”).

Thus, Officer Duran’s statement and acts do not constitute a

seizure, and cannot support Plaintiff’s claim of a violation of

his Fourth Amendment rights.

II. Qualified Immunity

Even assuming, arguendo, that Plaintiff did have a reasonable

expectation of privacy at 392 Adelphi Street, and that the

Defendants’ actions constituted a seizure, the Court finds that

the Defendants would be entitled to qualified immunity, and thus

Plaintiff’s claim would be barred.

“Qualified immunity shields government officials from claims

for money damages unless a plaintiff adduces facts showing that

‘(1) the official violated a statutory or constitutional right,

and (2) the right was clearly established at the time of the

challenged conduct.’” Mara v. Rilling, 921 F.3d 48, 68 (2d Cir.

2019) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

“[A] court that decides this second question in a defendant's favor

may award qualified immunity without conclusively answering the

first.” Id.

For the law to be clearly established, “the law must be so

clearly established with respect to the ‘particular conduct’ and

the ‘specific context’ at issue that ‘every reasonable official

would have understood’ that his conduct was unlawful.” Id. at 68–

69 (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “In short,

if at least some reasonable officers in the defendant's position

could have believed that the challenged conduct was within the

bounds of appropriate police responses, the defendant officer is

entitled to qualified immunity.” Id. at 69 (internal quotation

marks and citation omitted). “Even if an officer is mistaken . .

. the officer will not be held liable if he acted reasonably and

in good faith.” Washpon v. Parr, 561 F. Supp. 2d 394, 403 (S.D.N.Y.

2008) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir.

1994).

Although consideration of a motion for summary judgment

requires the Court to view the facts in the light most favorable

to the nonmoving party, when a case “concerns the defense of

qualified immunity . . . the Court considers only the facts that

were knowable to the defendant officers.” White v. Pauly, 580

U.S. 73, 76-77 (2017). In the instant case, the Court finds that

Lieutenant Leuze, Officer Sosa, and Officer Duran had a reasonable

basis to believe Plaintiff did not live at 392 Adelphi Street on

April 19, 2020, and consequently, they are protected by qualified

immunity.

Upon arriving at the scene, Officer Sosa spoke to Plaintiff,

and heard Plaintiff explain that 392 Adelphi Street had passed to

him based upon his father’s death. (Def. 56.1 ¶ 29; Ex. E. at

16.) Plaintiff conceded to Officer Sosa that his Uncle Barry

“might be” the registered owner of the property, however. (Def.

56.1 ¶ 33.) While Officer Sosa spoke to Plaintiff, two other

police officers spoke to Uncle Barry, who explained that he owned

the property “entirely,” Plaintiff did not live at the property

and could not stay, and that Plaintiff was homeless. (Id. ¶¶ 35-

38.) Officer Rodriguez subsequently spoke to tenants who

identified Uncle Barry as the landlord of 392 Adelphi Street, and

stated that Plaintiff did not live at the premises. (Id. ¶¶ 44-

45.)

Further discussions with Plaintiff revealed that “all” his

belongings were in storage in Manhattan and that the set of keys

Plaintiff had were provided by his Uncle Johnny. (Id. ¶¶ 40, 46.)

Inspecting the property, the officers observed that Plaintiff did

not have a bed in the property, and the heat was not on. (Id. ¶¶

51-52.) Plaintiff further explained to the officers that the last

time he had been at the property was approximately two weeks ago,

but that he did have a driver’s license with the address 392

Adelphi Street. (Id. ¶¶ 66, 68.) The only facts known to the

officers that would suggest Plaintiff had a right to be at the

property were his own statements about inheriting the property

from his father, his set of keys, and his driver’s license with

392 Adelphi Street.

The Defendants did not find Plaintiff’s arguments about his

right to be present at the property convincing. Lieutenant Leuze

explained his thinking at the time of the incident giving rise to

this action during his deposition for the instant case:

[LIEUTENANT LEUZE:] Well, the uncle stated that he owned

the property. The tenants that lived upstairs stated

that they pay the uncle rent money to live there. The

neighbors stated that the uncle owns the residence. The

plaintiff stated that the uncle owned the residence.

The plaintiff although –- also stated that his father

just died. There was a -- that the father just died,

that the uncle allowed him to stay there. At some point,

the plaintiff lived at the location, but it wasn't

recently.

The plaintiff stated that he had an ID with the address

on it. Which even though the address may be the same as

the residence, it doesn't establish that he lives there

at the current moment in time. It's that he could have

lived there at some point. A lot of people do not update

their DMV records.

. . . Further, there was -- there was an order of

protection from the deceased father of the plaintiff

against the son, the plaintiff in this case, that since

expired before his death. I'm not sure of -- of the exact

date. So that would establish the fact that he wasn't

allowed in the residence for a period of time.

(Ex. D at 31-33.) Similarly, Officer Sosa stated during his

deposition that the fact that Plaintiff had to borrow keys from

his Uncle Johnny “made [Officer Sosa] believe that [Plaintiff]

didn’t live there at all because he had to borrow the keys.” (Ex.

E at 37.) Ultimately, Officer Sosa and Lieutenant Leuze concluded

that Plaintiff had no right to remain at the property, and that it

was appropriate to ask him to leave.

The second set of police officers, including Officers Duran

and Carlin, engaged in similar discussions with Plaintiff when

they arrived at the scene following his call. (Def. 56.1 ¶¶ 90-

106.) Officer Carlin also heard from an additional family member

on the phone, Lieutenant Tarik Sheppard of the NYPD, who explained

that Plaintiff had not been living at 392 Adelphi Street on a

regular basis. (Id. ¶¶ 111-13.) Officer Carlin then explained to

Plaintiff that, even if he did inherit the property from his

father, “until the will is completely done and through and you

take ownership, you don’t own [392 Adelphi Street].” (Id. ¶ 131.)

Based on their investigations, Officers Carlin and Duran

reasonably concluded that Plaintiff did not live at 392 Adelphi

Street, and that it was appropriate to ask him to leave the

sidewalk near the home. (Id. ¶ 132.) The Court is aware of no

law clearly establishing that Plaintiff had the right to remain in

a property on which he had previously been trespassing, or in the

immediate vicinity. Wilson v. Sessoms-Newton, No. 14-CV-106

(PKC), 2017 WL 3575240, at *10 (E.D.N.Y. Aug. 17, 2017) (“If

anything, the Second Circuit has found that trespassers and

squatters have no constitutionally protected property interests

with respect to the places where they reside and thus have no

Fourth Amendment protection as to those premises.”); see also

Sanchez, 635 F.2d at 64 (“[A] mere trespasser has no Fourth

Amendment protection in premises he occupies wrongfully . . . .”)

The Supreme Court has stated that qualified immunity

“provides ample protection to all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986). This Court finds that the police officers

undertook a good faith investigation of the circumstances at 392

Adelphi Street on April 19, 2020, and that based on the facts they

knew, made the reasonable determination that Plaintiff did not

live at and was not permitted by his Uncle Barry to stay at the

property and asked him to leave. The Court therefore concludes

that it was objectively reasonable for the Defendants to believe

that asking Plaintiff to leave 392 Adelphi Street and the

immediately surrounding area did not violate any clearly

established law, and Defendants are entitled to qualified immunity

on Plaintiff’s federal claim of violations of his Fourth Amendment

rights.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary

judgment is GRANTED and Plaintiff’s claims are dismissed with

prejudice. The Clerk of Court is respectfully directed to enter

judgment in favor of Defendants and close this case.

The Court certifies that any appeal from this Order would not

be taken in good faith, and, therefore, in forma pauperis status

is denied for the purpose of any appeal. See Coppedge v. United

States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

ba;

Dated: July 29, 2024 □

Brooklyn, New York ay □ ee a ewe

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

32