     14-3250-cv
     Hausch v. Ecklond

                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
     after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
     this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
     party must cite either the Federal Appendix or an electronic database (with the notation “summary
     order”). A party citing a summary order must serve a copy of it on any party not represented by
     counsel.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 15th day of May, two thousand fifteen.
 4
 5   PRESENT:
 6              CHESTER J. STRAUB,
 7              BARRINGTON D. PARKER,
 8              SUSAN L. CARNEY,
 9                           Circuit Judges.
10   ________________________________________
11
12   VIVIAN L. HAUSCH,
13
14                            Plaintiff-Appellant,
15
16                       V.                                                      No. 14-3250-cv
17
18   STEVEN A. ECKLOND, INDIVIDUALLY, THOMAS
19   GIORDANO, INDIVIDUALLY, STEPHEN QUIGLEY,
20   INDIVIDUALLY, GREG LUISI, INDIVIDUALLY,
21   JANETTE HAYES, INDIVIDUALLY, WILLIAM M.
22   WILLIAMS, JR., AKA BILL WILLIAMS,
23   INDIVIDUALLY, JOHN D. CAVALLARO,
24   INDIVIDUALLY, DAVID A. BARBUTI,
25   INDIVIDUALLY, AND THE VILLAGE OF
26   TUCKAHOE, NEW YORK,
27
28                    Defendants-Appellees.
29   ________________________________________
30
 1   FOR PLAINTIFF-APPELLANT:                                      Vivian L. Hausch, pro se,
 2                                                                 Patterson, NY.
 3   FOR DEFENDANTS-APPELLEES
 4   ECKLOND, GIORDANO, QUIGLEY,
 5   LUISI, HAYES, WILLIAMS, CAVALLARO,
 6   AND THE VILLAGE OF TUCKAHOE:                                  Steven C. Stern, Sokoloff Stern
 7                                                                 LLP, Carle Place, NY.
 8
 9   FOR DEFENDANT-APPELLEE BARBUTI:                        Jonathan P. Pirog, Tromello,
10                                                          McDonnell & Kehoe, Melville,
11                                                          NY.
12          Appeal from a judgment of the United States District Court for the Southern District
13   of New York (Román, J.).

14          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
15   ADJUDGED, AND DECREED that the judgment entered on July 31, 2014, is
16   AFFIRMED.

17          Vivian L. Hausch, proceeding pro se, appeals from the District Court’s dismissal of
18   her complaint for failure to state a claim upon which relief may be granted. Hausch brought
19   a claim pursuant to 42 U.S.C. § 1983 alleging that appellees—the Village of Tuckahoe, seven
20   of its officials, and a private architect hired by the Village (David Barbuti)—violated her
21   Fourth Amendment rights by entering, without her consent or a warrant, a building (the
22   “premises”) in which she stored personal and work-related items. We assume the parties’
23   familiarity with the underlying facts, the procedural history of the case, and the issues on
24   appeal, to which we refer only as necessary to explain our decision to affirm.

25          We review a district court’s dismissal of a complaint under Federal Rule of Civil
26   Procedure 12(b)(6) de novo, accepting as true all factual allegations in the complaint and
27   drawing all reasonable inferences in the plaintiff’s favor. Adelson v. Harris, 774 F.3d 803, 807
28   (2d Cir. 2014). A court is not bound, however, to “accept as true a legal conclusion couched
29   as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
30   marks omitted). To survive a motion to dismiss, “a complaint must contain sufficient
31   matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
32   556 U.S. 662, 678 (2009) (internal quotation marks omitted).

                                                       2
 1          Upon de novo review, we conclude that the District Court correctly held that
 2   appellees’ entry onto the premises was lawful. The Supreme Court has “often emphasized . .
 3   . that a search must be supported, as a general matter, by a warrant issued upon probable
 4   cause.” Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989). But courts have
 5   “permitted exceptions when special needs, beyond the normal need for law enforcement,
 6   make the warrant and probable-cause requirement impracticable.” Griffin v. Wisconsin, 483
 7   U.S. 868, 873 (1987) (internal quotation marks omitted). One such exception is that, “in
 8   certain circumstances[,] government investigators conducting searches pursuant to a
 9   regulatory scheme need not adhere to the usual warrant or probable-cause requirements as
10   long as their searches meet reasonable legislative or administrative standards.” Id. (internal
11   quotation marks omitted). When this exception is invoked, we balance “the intrusion on the
12   individual’s interest in privacy against the ‘special needs’ that supported the [search].”
13   Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001).

14          Here, appellees concede that they entered the premises without a warrant. But we
15   conclude that their entrance was nonetheless lawful because the public record makes clear
16   that they acted “pursuant to a regulatory scheme”—namely, the Village Code of the Village
17   of Tuckahoe—whose provisions advance the “special need” of ensuring the safety of
18   buildings within the Village. See Griffin, 483 U.S. at 873. As detailed by the District Court in
19   its thorough opinion and order, searches that follow the process outlined in the Village
20   Code, such as the one performed by appellees, “meet reasonable legislative or administrative
21   standards.” Id. (internal quotation marks omitted). And the District Court did not err in
22   concluding that the Village’s interest in ensuring the safety of the premises—which had been
23   identified by a Village building inspector as being in danger of collapse, see App. 83—
24   outweighed Hausch’s privacy interest in a building where she stored some possessions, but
25   which she did not purport to own, lease, inhabit, use as her place of employment, or even
26   visit, see App. 11 (Compl. ¶¶ 16–17). Appellees’ entrance into the premises therefore did not
27   violate Hausch’s Fourth Amendment rights.



                                                       3
 1          Even if the individual appellees entered the premises unlawfully, in the circumstances
 2   presented they would still be protected by qualified immunity. “A government official sued
 3   under § 1983 is entitled to qualified immunity unless the official violated a statutory or
 4   constitutional right that was clearly established at the time of the challenged conduct.”1
 5   Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (per curiam). “A right is clearly established only
 6   its contours are sufficiently clear that ‘a reasonable official would understand that what he is
 7   doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

 8          In this case, appellees obtained a judgment from the Westchester Supreme Court
 9   declaring that the premises violated the Village Code and authorizing them to “remove [the
10   premises] and assess the cost of same.” App. 57. It was objectively reasonable for the
11   individual appellees to believe that entering the premises, in reliance on this judgment, would
12   not violate Hausch’s Fourth Amendment rights. Accordingly, the individual appellees are
13   also shielded by qualified immunity.

14          We have considered Hausch’s remaining arguments on appeal and find them to be
15   without merit. For the reasons set out above, the judgment of the District Court is
16   AFFIRMED.

17                                                 FOR THE COURT:
18                                                 Catherine O’Hagan Wolfe, Clerk of Court




     1
      Barbuti is a private contractor working for the Village, not a government official, but Hausch does
     not challenge the District Court’s determination that he may properly assert a qualified immunity
     defense.

                                                       4
