Prophete v. N.Y.C. Department of Homeless Services

United States District Court

Eastern District of New York

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Gerald C. Prophete,

Plaintiff, Memorandum and Order

- against - No. 19-cv-3466 (KAM) (LB)

Haydee Acevedo-Smith, et al.,

Defendants.

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Kiyo A. Matsumoto, United States District Judge:

Gerald Prophete brought this federal civil rights action

against Haydee Acevedo-Smith, Abraham Watkins, and Alex Andujar,

all officers of the New York City Department of Homeless

Services, after an incident at the shelter where he lived.

Officer Andujar now moves under Federal Rule of Civil

Procedure 56(a) for partial summary judgment as to Prophete’s

unreasonable search claim against him. The defendants do not

seek summary judgment on any other remaining claim. For the

reasons below, the Court grants Officer Andujar’s motion.

Background

Except where otherwise indicated, the following facts are

taken from the parties’ statements submitted in accordance with

Local Civil Rule 56.1 and are not in dispute.

Gerald Prophete lived in a communal dorm room at Samaritan

Village, a shelter in Brooklyn run by the New York City

Department of Homeless Services (“DHS”). (ECF No. 80-4, Pl.’s

Resp. Def.’s R. 56.1 Statement & Pl.’s Counterstatement Facts

(“Pl.’s 56.1”), ¶ 1.) As a resident, Prophete was automatically

assigned a bed and a locker next to it. (Id. ¶ 2.) He signed

paperwork regarding Samaritan Village’s rules, his bed, and his

locker. (Id. ¶ 3.) He also was given a padlock for the locker,

though he used his own instead. (Id.; ECF No. 83-3, Def.’s

Resp. Pl.’s Opp’n Def.’s R. 56.1 Counter Statement (“Def.’s

56.1”), ¶ 26.)

DHS Procedure 16-404, which governs locker assignments and

client belongings at DHS shelters, requires each shelter’s

director to complete a “Form 412A.” (Pl.’s 56.1 ¶¶ 4–5.) That

form advises DHS clients that “[a]n agency lock will be

provided,” that this lock is the only lock that the client may

use, and that “[u]nauthorized locks will be removed.” (Id.

¶ 6.) It also explains that DHS will retain either a master key

or the combination to the lock. (Id.) Finally, the form states

that the “locker and its contents are subject to inspection, at

any time, by authorized personnel” and that “[b]anned articles

and substances will be confiscated.” (Id. ¶ 7.)

Form 412A has a signature line where the resident may

indicate, “I understand my rights and responsibilities regarding

my locker and belongings.” (ECF No. 89-3, Zilinski Decl.

Ex. B.) There is no evidence in the record that Prophete ever

signed a Form 412A, however. (Def.’s 56.1 ¶ 23.) Prophete

observed the arrests of several residents while he stayed at

Samaritan Village, and he observed each arrested resident’s

locker get searched. (Pl.’s 56.1 ¶ 8.)

On the morning of October 2, 2018, after having lived at

Samaritan Village for five years, Prophete was involved in an

altercation that ended in him being pepper sprayed by Sergeant

Acevedo-Smith and arrested. (Id. ¶¶ 9–11; Def.’s 56.1 ¶ 21.)

After the incident, Officer Andujar told Prophete to give him

the keys to his locker or else he would cut off the lock. (Id.

¶ 27.) Understanding he had no other choice, Prophete gave

Officer Andujar the keys, and Officer Andujar searched his

locker. (Id. ¶ 30; Pl.’s 56.1 ¶ 12.)

Prophete then brought this action pro se against the three

officers involved in the incident, alleging various

constitutional violations. (See ECF No. 1, Compl.) Since then,

Prophete retained counsel, completed discovery, and voluntarily

dismissed his claims for wrongful denial of medical care. (See

ECF Nos. 71, 75–76, 82, 85.) Officer Andujar now moves for

partial summary judgment as to Prophete’s claim that Officer

Andujar conducted an unreasonable search. (ECF No. 89, Notice

Mot.)

Legal Standard

Summary judgment is proper when there are no genuine

disputes of material fact and the undisputed facts entitle the

moving party to judgment as a matter of law. Fed. R. Civ. P.

56(a). A factual dispute is “genuine” if a reasonable jury

could return a verdict for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is

“material” if it might affect the outcome of the case under the

governing law. Id. In resolving a motion for summary judgment,

the court views the evidence in the light most favorable to the

non-moving party and draws all reasonable inferences in the non-

moving party’s favor. Bart v. Golub Corp., 96 F.4th 566, 567

(2d Cir. 2024).

The party moving for summary judgment has the initial

burden to show that there are no genuine disputes of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Where the non-moving party would have the burden of proof at

trial, the moving party’s burden at the summary judgment stage

is only to “point out” that there is insufficient evidence to

create a genuine dispute of material fact. Id. at 325. The

burden then shifts to the non-moving party to submit its own

evidence sufficient to create a genuine dispute of material fact

in order to avoid summary judgment and proceed to trial. Souza

v. Exotic Island Enters., Inc., 68 F.4th 99, 108 (2d Cir. 2023).

Discussion

Prophete brings his unreasonable search claim against

Officer Andujar under a provision of the Civil Rights Act of

1871 now codified at Section 1983 of Title 42 of the United

States Code (frequently referred to just as “Section 1983”),

which allows a private right of action against a state official

who deprives another person of a federal constitutional right.

(ECF No. 7, Am. Compl., p. 7); see 42 U.S.C. § 1983. In

response, Officer Andujar invokes qualified immunity, which

shields an official from liability in a Section 1983 action

unless the asserted right was “clearly established” at the time

of the alleged violation. (ECF No. 89-7, Def.’s Mem. Law Supp.

Mot. Summ. J. (“Mem.”), 7–9); see Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982) (stating the current formulation of the

qualified immunity doctrine).

A court assesses a qualified immunity claim in two stages.

First, it determines whether the official violated a

constitutional right. Washington v. Napolitano, 29 F.4th 93,

105 (2d Cir. 2022). Second, it determines whether the right was

clearly established at the time of the challenged conduct. Id.

As explained below, the Court finds genuine disputes of material

fact as to whether Officer Andujar conducted an unreasonable

search; however, the Court concludes that qualified immunity

shields Officer Andujar from liability regardless of whether he

conducted an unreasonable search.

I. Whether Officer Andujar Violated a Constitutional Right

The constitutional basis for Prophete’s claim is the Fourth

Amendment, which forbids “unreasonable searches.” See U.S.

Const. amend. IV. “Search” is a term of art meaning an invasion

of a place where a person has “exhibited an actual (subjective)

expectation of privacy” that “society is prepared to recognize

as ‘reasonable.’” Katz v. United States, 389 U.S. 347, 361

(1967) (Harlan, J., concurring); United States v. Lewis,

62 F.4th 733, 741 (2d Cir. 2023).

A. Whether Officer Andujar Conducted a Search

Officer Andujar first argues that Prophete had no

subjective expectation of privacy in his locker regardless of

whether such an expectation would have been objectively

reasonable. (Mem. 6.) In support, Officer Andujar cites

Prophete’s deposition testimony that Prophete “ha[d] an

understanding of why they needed to search [his] locker in [his]

room.” (Id.; see ECF No. 89-6 pp. 4–26 (“Prophete Dep.”),

103:11–13.) Prophete had continued, however, that he “didn’t

feel the search was needed” and that a search occurred “[e]very

time a client [was] arrested but [there was] no probable cause.”

(Prophete Dep. 103:13–16.) In context, this exchange reveals

little about Prophete’s subjective privacy expectations.

More relevant is Prophete’s very act of using the locker,

through which he manifested an expectation of privacy by

“keeping his belongings from plain view.” See MacWade v. Kelly,

460 F.3d 260, 272 (2d Cir. 2006); see also United States v.

Ross, 456 U.S. 798, 822–23 (1982) (stating that “the Fourth

Amendment provides protection to the owner of every container

that conceals its contents from plain view”). Further, Prophete

used his own lock rather than the one DHS provided him, thus

manifesting an even greater intent to prevent others from

accessing his items. (Def.’s 56.1 ¶ 26.) The record thus

leaves genuine disputes as to whether Prophete had a subjective

expectation of privacy in his locker.

The Court thus considers whether such an expectation would

have been objectively reasonable. A person “has a paramount

interest in freedom from government intrusion in his [or her]

home.” Jones v. Cty. of Suffolk, 936 F.3d 108, 119 (2d Cir.

2019). Nonetheless, “the Fourth Amendment protects people, not

places,” Carpenter v. United States, 585 U.S. 296, 304 (2018)

(quoting Katz, 389 U.S. at 351)), so an “official intrusion”

into any similarly “private sphere generally qualifies as a

search,” id. It is not dispositive that Prophete lacked an

ownership or possessory interest in his locker at Samaritan

Village. For example, “an overnight guest has a legitimate

expectation of privacy in his [or her] host’s home.” Minnesota

v. Olson, 495 U.S. 91, 98 (1990).

Here, the parties offer starkly different characterizations

of Prophete’s living quarters. Prophete argues that “the

communal dorm room that he lived in . . . for five years” was

effectively his “home.” (ECF No. 91, Pl.’s Mem. Law Opp’n

Def.’s Mot. Summ. J. (“Opp’n”), Opp’n 5.) Officer Andujar, on

the other hand, argues that Prophete, as DHS’s “client,” was not

residing in a “home” at all, much less his own. (Mem. 5.)

The Second Circuit addressed the parameters of what

constitutes a “home” for Fourth Amendment purposes in Anobile v.

Pelligrino, 303 F.3d 107 (2d Cir. 2001), which concerned dorms

at a horse racetrack used as residences by the racetrack’s

employees. The court concluded the dorms were the employees’

“residences entitled to the protection of homes,” noting that

one plaintiff paid a deposit on the room, had a key he shared

with his roommate, and used the room for storing equipment,

changing clothes, and “do[ing] anything you do in your own

bedroom.” Id. at 120. The other plaintiff had his own room,

which he used to store clothes and where he slept most nights.

Id. The plaintiffs signed waivers of their “rights to object to

any search” of any premises they had a “right to occupy or

control and of [their] personal property,” which the Second

Circuit found “somewhat reduced” their expectations of privacy

but did not totally negate them. Id. at 112, 120.

Drawing all reasonable inferences in Prophete’s favor, as

the Court must at this stage, the Court finds that the current

record could reasonably support a finding that Prophete’s shared

dorm room qualified as a “residence entitled to the protection

of a home” under Anobile’s rubric. Like in Anobile, Prophete

lived in a dorm-style room. (Pl.’s 56.1 ¶ 1.) On the day of

the incident, he had lived there for five years, (see Def.’s

56.1 ¶ 21), enhancing his expectations of privacy there, see

Sheppard v. Leuze, No. 21-cv-2075 (KAM), 2022 WL 2315981, at *4

(E.D.N.Y. June 27, 2022) (noting that the “substantial time” the

plaintiff “spent on the premises” favored finding plaintiff

alleged facts supporting reasonable expectation of privacy).

Though Prophete shared his room, (see Pl.’s 56.1 ¶ 1), the fact

that one of the plaintiffs in Anobile had a roommate did not

negate his expectation of privacy in the room, see 303 F.3d at

120; see also United States v. Haqq, 213 F. Supp. 2d 383, 387

(S.D.N.Y. 2002)(explaining that an “exclusive possessory

interest” is unnecessary to establish a reasonable expectation

of privacy in an area).

Further, even if the Court were to consider Prophete an

“overnight guest” at Samaritan Village rather than a resident

entitled to the protection of a home, genuine issues of material

fact would remain. In determining whether an overnight guest

reasonably expects privacy, the Second Circuit considers (1) the

nature of the guest’s visit, (2) the length of time spent on the

property, (3) the connection between the guest and host,

(4) whether the guest has a key, (5) whether the guest can use

the property in the host’s absence, and (6) whether the guest

keeps belongings in the host’s home. Figueroa v. Mazza,

825 F.3d 89, 109 (2d Cir. 2016). Here, Prophete lived at the

property for five years and used his locker to store his

belongings. (See Pl.’s 56.1 ¶¶ 1–2, 21.) He presumably lived

there with Samaritan Village’s permission, as the shelter

existed to serve the unhoused. It is unclear whether Prophete

had a key to his room, but he at least used his own key – though

not the one Samaritan Village provided him – to secure his

locker. (See id. ¶ 27.) The current record is ambiguous as to

the remaining factors, though the balance of the factors does

not so clearly weigh against Prophete that no reasonable juror

could find that he had a reasonable expectation of privacy in

his locker.

Officer Andujar responds that the ultimate question the

Figueroa factors implicate is whether the host “so liberally

shared [its] own privacy interest with [its] guest that it

shelter[ed] the guest against unreasonable government

intrusion,” and that DHS’s own policies establish that it did

not intend to “share” any privacy interest with Prophete. (Mem.

5 (quoting Figueroa, 825 F.3d at 109).) But the record leaves

substantial ambiguity regarding precisely what DHS’s policies

were. The parties agree Prophete signed “paperwork related to

Samaritan Village rules, his bed[,] and [his] locker

assignment,” (see Pl.’s 56.1 ¶ 3), but Officer Andujar does not

specify what this “paperwork” said. Officer Andujar has

produced a form residents could sign, which contemplates that

the resident’s “locker and its contents” would be “subject to

inspection, at any time, by authorized personnel,” but there is

no evidence Prophete ever signed the form or even was aware of

it. (See Pl.’s 56.1 ¶¶ 6–7.)

Even if Prophete had signed that form, it is not certain

that doing so would have eliminated his privacy expectations in

his room. Both plaintiffs in Anobile signed “blanket waiver[s]

of the right to object to any future searches of [their]

residences,” yet the Second Circuit found “the demand embodied

by the waiver provision . . . unreasonable” because there was

“no evidence demonstrating that the plaintiffs were aware of

their right to refuse to give consent” or “whether they could

refuse and still obtain employment.” 303 F.3d at 124–25. The

stakes for Prophete were even higher, as he stood to lose not

merely a job but a place to live. See Cox v. Dawson,

No. 18-cv-578 (JBA), 2020 WL 127890, at *8 (D. Conn. Jan. 10,

2020) (declining to read public housing tenant’s lease as

“irrevocably waiving her right to refuse entry to her apartment”

because “otherwise, eligible tenants would have to bargain away

their Fourth Amendment rights for lengthy and for indeterminate

periods to receive public housing benefits”). The existence of

the form, which there is no evidence Prophete knew about or

signed, does not remove all triable issues of fact regarding his

reasonable expectations of privacy.

One factor distinguishing this case from Anobile is that

Samaritan Village is a state-run facility rather than merely a

private facility in an industry closely regulated by the state.

(See Pl.’s 56.1 ¶ 4); 303 F.3d at 111. Still, Prophete did not

lose all reasonable expectations of privacy simply because he

resided at a shelter. His choice was between the “shelter and

the streets,” so Samaritan Village was “the most private place

[he] could possibly have gone.” See Cmty. For Creative Non-

Violence v. Unknown Agents of the U.S. Marshals Serv.,

791 F. Supp. 1, 6 (D.D.C. 1992); see United State v. Voice,

622 F.3d 870, 877–78 (8th Cir. 2010) (finding “troubling”

government’s implication that “a person has no Fourth Amendment”

rights in “a closed container left unattended near a bunk in a

homeless shelter, college dormitory, or military barracks”).

The fact that a facility is state-run may bear on a resident’s

privacy expectations, but it does not eviscerate them.

Officer Andujar’s cases regarding workplace searches, (see

Mem. 6), fully comport with this view. The court in DeMaine v.

Samuels, No. 99-cv-34 (JBA), 2000 WL 1658586, at *7 (D. Conn.

Sept. 25, 2000), for example, concluded that a police officer

lacked a reasonable expectation of privacy in the desk in his

office but had a reasonable expectation of privacy in the

personal day planner he kept in his office. The dispositive

fact was not that those items were in a state-run workplace but

rather whether each item was work-related or personal in nature.

See id. Relatedly, as the Supreme Court has explained, the

lower standard for government workplace searches “does not

necessarily apply to a piece of closed personal luggage, a

handbag[,] or a briefcase that appears to be within the

employer’s business address.” O’Connor v. Ortega, 480 U.S. 709,

716 (1987) (plurality opinion). That follows from the premise

that a person may reasonably expect more privacy in a closed

container than in the room where the container is found. See,

e.g., United States v. Gilmore, 498 F. Supp. 3d 585, 590

(S.D.N.Y. 2020) (holding roommate’s consent to search shared

apartment did not extend to “closed containers in the bedroom

that obviously belonged to” defendant).

Moreover, the state-run workplace search cases are not

analogous in that the plaintiffs in those cases did not

regularly sleep in the areas searched. Whether a guest

reasonably expects privacy in a host’s home, for example,

depends on how the guest uses the home. Compare Olson, 495 U.S.

at 98–99 (overnight guest who slept at home with host’s

permission had reasonable expectation of privacy) with Minnesota

v. Carter, 525 U.S. 83, 90–91 (1998) (guest with no prior

connection to homeowner only present in home during day for

commercial transaction had no reasonable expectation of

privacy). One factor that motivated the Second Circuit in

Anobile to find that the workers enjoyed the same Fourth

Amendment protections applicable to homes in their racetrack

dorm rooms was that the workers slept there. See 303 F.3d at

120. Similarly, part of the Supreme Court’s rationale for

treating government workplaces differently for Fourth Amendment

purposes has been that “the privacy interests of government

employees in their place of work . . . are far less than those

found at home.” See O’Connor, 480 U.S. at 725. Thus, a key

reason why government workers might enjoy lower expectations of

privacy in their workplaces is that they generally use those

areas to work rather than to live, which was not the case here.

Finally, the mere fact that Prophete previously observed

searches of other residents’ lockers when those residents were

arrested, (see Pl.’s 56.1 ¶ 8), did not render his privacy

expectations unreasonable. As explained above, the factual

record leaves genuine disputes of material fact as to whether

the search of Prophete’s locker was constitutional. If the

prior searches of other residents were conducted under similar

circumstances, that leaves open the possibility that the policy

authorizing those searches was unconstitutional. See, e.g.,

Gem. Fin. Serv., Inc. v. City of N.Y., 298 F. Supp. 3d 464, 499

(E.D.N.Y. 2018) (holding facially invalid local law authorizing

warrantless inspections of pawnbrokers). A person does not lose

an otherwise reasonable expectation of privacy simply by

observing the government unconstitutionally violate the privacy

of others in similar ways.

The degree to which Prophete reasonably expected privacy in

his locker at Samaritan Village would have been affected by a

wide range of circumstances that the relatively thin factual

record before the Court does not establish, including further

detail about the physical layout of Samaritan Village and

Prophete’s room, how Prophete used his locker, and Samaritan

Village’s policies. Given that the Court must draw all

reasonable inferences in Prophete’s favor in resolving Officer

Andujar’s summary judgment motion, the Court cannot conclude

that no reasonable jury could find Prophete had a reasonable

expectation of privacy in his locker and thus that Officer

Andujar’s inspection of the locker was a search.

B. Whether the Search was Reasonable

A warrantless search is presumptively unreasonable, Jackson

v. City of N.Y., 29 F. Supp. 3d 161, 176 n.20 (E.D.N.Y. 2014),

and Officer Andujar does not argue or provide any evidence that

he or any other officer had a warrant to search Prophete’s

locker. Officer Andujar also does not argue that any exception

to the warrant requirement applied. (See generally Mem.) For

the sake of completeness, however, the Court finds that the

record lacks sufficient evidence of any exception to entitle

Officer Andujar to summary judgment. Although establishing that

a warrantless search occurred does not shift the burden to the

defendant to establish that an exception to the warrant

requirement applies, Ruggiero v. Krzeminski, 928 F.2d 558, 563

(2d Cir. 1991), it may require the defendant to produce at least

some evidence supporting the exception, Harris v. O’Hare,

770 F.3d 224, 234 (2d Cir. 2014).

One exception to the warrant requirement applies where the

government has consent to conduct the search. United States v.

Lajeunesse, 85 F.4th 679, 686 (2d Cir. 2023). Coerced consent,

however, is invalid. United States v. O’Brien, 926 F.3d 57, 76

(2d Cir. 2019); see Gem Fin. Serv., Inc. v. City of N.Y.,

298 F. Supp. 3d 464, 488 (E.D.N.Y. 2018) (finding store owner’s

consent coerced where officer threatened to disrupt store’s

business if owner did not comply with requests to turn over

items). Here, Prophete surrendered his keys to Officer Andujar,

but only after Officer Andujar threatened to cut his lock if

Prophete failed to comply. (See Def.’s 56.1 ¶¶ 27, 30.)

Prophete’s decision to surrender his keys in the face of that

threat was not effective consent, and Officer Andujar properly

does not argue that it was.

Another exception to the warrant requirement applies where

a search occurs incident to an arrest. United States v. Diaz,

854 F.3d 197, 205 (2d Cir. 2017). But “[i]f there is no

possibility that an arrestee could reach into the area that law

enforcement officers seek to search,” the exception “does not

apply.” United States v. Bell, No. 19-cv-717 (LAK), 2020 WL

370342, at *3 (S.D.N.Y. Jan. 22, 2020) (quoting Arizona v. Gant,

556 U.S. 332, 339 (2009)) (finding search-incident-to-arrest

doctrine inapplicable where officer searched defendant’s

backpack while defendant was pressed against car and being

patted down). Here, though the record indicates Officer Andujar

searched Prophete’s locker roughly contemporaneously with

Prophete’s arrest, (see Pl.’s 56.1 ¶¶ 11–12), the record lacks

any evidence suggesting that Prophete might have had the ability

to reach into his locker during or after the arrest. The record

also lacks evidence that the search was otherwise “required to

ensure officer safety or to protect any evidence.” See Bell,

2020 WL 370342, at *3. Accordingly, Officer Andujar is not

entitled to summary judgment based on the search-incident-to-

arrest doctrine.

Finally, yet another exception to the warrant requirement

applies where the government conducts a proper “administrative

search.” The administrative search doctrine applies where the

government has “special need” that “make[s] the warrant and

probable-cause requirements impracticable” and the “primary

purpose” of the search is to advance a governmental interest

beyond a “general interest in crime control.” Weisenberg v.

Town Bd. of Shelter Island, 404 F. Supp. 3d 720, 736 (E.D.N.Y.

2019) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 420

(2015)). Determining whether the administrative search doctrine

applies involves considering the privacy interest allegedly

compromised, the character of the governmental intrusion, the

nature and immediacy of the government’s concerns, and the

efficacy of the governmental conduct in meeting them. Palmieri

v. Lynch, 392 F.3d 73, 81 (2d Cir. 2004).

It is conceivable that state-run shelters might have

special needs beyond general crime control justifying

warrantless searches of their residents’ lockers. To make that

determination, however, the Court would have to consider

evidence of the competing interests, which is lacking in the

record currently before the Court. See Weisenberg,

404 F. Supp. 3d at 736 (declining to apply administrative search

doctrine to dismiss Fourth Amendment claim where “based on the

complaint alone,” court could not “make the requisite special-

needs or primary-purpose assessments as a matter of law” and

defendants did not “raise[] [those] issues”); MacWade v. Kelly,

No. 05-cv-6921 (RMB), 2005 WL 3338573, at *16 n.28 (S.D.N.Y.

Dec. 7, 2005) (finding defendants had “burden of producing

evidence of a ‘special need’ and supporting the factors which

must be balanced under the ‘special needs’ doctrine” even though

plaintiffs “retain[ed] the (ultimate) burden of persuasion”).

The Court thus cannot grant Officer Andujar summary judgment

based on the administrative search doctrine because he did not

argue that a special need justified his search of Prophete’s

locker or offer any evidence of a special need.

II. Whether the Right was Clearly Established

Prophete’s unreasonable search claim ultimately fails

because Officer Andujar is immune from liability for searching

Prophete’s locker regardless of whether the search violated

Prophete’s rights. As explained above, (supra 5), qualified

immunity shields an official from liability for violating any

constitutional right that was not clearly established at the

time of the alleged violation. The right must be defined by

reference to the specific facts of the case, not in terms of

abstract legal principles. White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam).

In deciding whether a right was clearly established, the

Court may consider only Supreme Court and Second Circuit

precedents that existed at the time of the alleged violation

unless a robust consensus of out-of-circuit authorities

obviously foreshadows a similar result in this circuit. Radwan

v. Manuel, 55 F.4th 101, 114 (2d Cir. 2022). The relevant

authority or authorities must be sufficiently factually

analogous to put the constitutional question “beyond debate.”

Pauly, 580 U.S. at 79 (quoting Mullenix v. Luna, 577 U.S. 7, 11

(2015) (per curiam)).

Prophete frames the constitutional question here as whether

“a person enjoy[s] the clearly established protection of the

Fourth Amendment in a locked closed container located inside

their home.” (Opp’n 12–13.) Under the governing standards,

Prophete’s framing defines the asserted right at “too high a

level of generality.” See City of Tahlequah v. Bond, 595 U.S.

9, 12 (2021) (per curiam); see also City of Escondido v. Emmons,

586 U.S. 38, 43 (2019) (per curiam) (reversing court of appeals

for framing constitutional question as whether a person had the

“right to be free of excessive force” where question should have

been framed as whether constitution “prohibited the officers

from stopping and taking down a man in these circumstances”);

Winfield v. Trottier, 710 F.3d 49, 57 (2d Cir. 2013) (reversing

district court for framing question as whether it violated

suspect’s rights “for a consensual search to exceed the scope of

the consent given” where question should have been framed as

whether it violates the constitution “when a police officer

reads a suspect’s private papers, the text of which is not in

plain view, while conducting a search authorized solely by the

suspect’s generalized consent to search the area in which the

papers are found”).

Phrased at the appropriate level of specificity, the

constitutional question implicated by Officer Andujar’s present

summary judgment motion is: Does it violate the Fourth

Amendment for an officer to conduct a warrantless, nonconsensual

search of a shelter resident’s locker inside a communal dorm

room during the resident’s arrest?

Prophete’s cited authorities do not put that precise

question “beyond debate.” See Pauly, 580 U.S. at 79. The only

Supreme Court or Second Circuit case Prophete cites, United

States v. Karo, 468 U.S. 705 (1984), did not concern a search of

a shelter resident’s locker but rather a container of chemicals

to which law enforcement officers had affixed a “beeper” that

monitored the container’s movements inside a home. Further, the

portion of the decision that Prophete cites is a concurring

opinion, not the majority opinion. (See Opp’n 13.) Moreover,

the cited portion of the concurring opinion is dicta, which is

not clearly established law even when it appears in a majority

opinion. See Napolitano v. Flynn, 949 F.2d 617, 624 (2d Cir.

1991) (finding that “dictum, standing alone, [was] insufficient

to create a ‘clearly established’ right”). Thus, Karo falls far

short of the authority necessary to put the constitutional

question in the instant case beyond debate.

Prophete’s remaining authorities, which comprise district

court decisions and out-of-circuit appellate decisions, (see

Opp’n 13–14), do not reflect a robust consensus of persuasive

authorities regarding the scope of Fourth Amendment protections

that apply to lockers located in communal dorm rooms inside

state-run shelters, see, e.g., McKinney v. City of Middletown,

49 F.4th 730, 740 (2d Cir. 2022) (finding out-of-circuit

decisions and district court decisions holding that the use of

an untrained or poorly trained police dog could amount to

unconstitutionally excessive force did not reflect a robust

consensus that using a police dog for a purpose outside its

training could amount to excessive force). All of Prophete’s

authorities concerned searches that occurred inside private

residences, not state-run facilities. See United States v.

Turner, 23 F. Supp. 3d 290, 310–19 (S.D.N.Y. 2014); United

States v. Chisholm, No. 07-cr-795 (NGG), 2009 WL 29313, at *7–10

(E.D.N.Y. Jan. 5, 2009); United States v. Peyton, 745 F.3d 546,

552–56 (D.C. Cir. 2014); United States v. Waller, 426 F.3d 838,

845–49 (6th Cir. 2005); United States v. Fultz, 146 F.3d 1102,

1105–06 (9th Cir. 1998); United States v. Block, 590 F.2d 535,

539–42 (4th Cir. 1978); United States v. Robinson, 999 F. Supp.

155, 161–63 (D. Mass. 1998). Though Fultz involved a search of

an unhoused person’s private container, the container was

located in a residential garage; it was not a state-owned

container located inside a state-owned facility. See 146 F.3d

at 1105–06.

That factual distinction is sufficiently material to

prevent Prophete from overcoming qualified immunity. See, e.g.,

McKinney, 49 F.4th at 741–43 (finding no clearly established law

prohibiting officers from striking, tasing, and allowing dog to

continue biting arrestee lying on ground who previously resisted

arrest but was not presently resisting despite circuit law

holding that tasing an arrestee who previously resisted arrest

but was not presently resisting amounted to unconstitutionally

excessive force); Cugini v. City of N.Y., 941 F.3d 604, 616

(2d Cir. 2019) (finding “right to be free from excessive force

during handcuffing” clearly established but also finding it not

clearly established where person handcuffed “exhibited only non-

verbal aural and physical manifestations of her discomfort” and

did not make “an explicit verbal complaint”); Berg v. Kelly,

897 F.3d 99, 112 (2d Cir. 2018) (finding it clearly established

that nonconsensual confinement violated the Fourth Amendment but

not clearly established where confinement was for purpose of

protecting the President).

Accordingly, because Prophete’s asserted constitutional

right defined at the appropriate level of factual specificity

was not clearly established by Supreme Court or Second Circuit

precedent or by a robust consensus of persuasive authorities at

the time of the alleged violation, qualified immunity shields

Officer Andujar from liability with respect to Prophete’s

unreasonable search claim.

Conclusion

For the reasons stated above, the Court grants Officer

Andujar’s motion for partial summary judgment and dismisses

Prophete’s unreasonable search claim against Officer Andujar

with prejudice. The Court will set Prophete’s remaining claims

for trial. The parties shall jointly file a proposed pre-trial

order in accordance with Section IV(A) of the undersigned

judge’s Chambers Practices by August 19, 2024.

So ordered.

Dated: August 5, 2024 “f? aa

Brooklyn, New York ww oe. owe ww

kiddin. Matsumoto. ==

United States District Judge

Eastern District of New York

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