357 F. App'x 334

2d Cir.

2009

John BONILLA, Plaintiff-Appellant, v. UNITED STATES of America, George Wright, John M. Anticev, sued in their individual capacities, Ilkiw Ihor, Buddy Murane, Frank Diaz, sued in their individual capacities, Defendants-Appellees.

No. 05-1438-cv

United States Court of Appeals, Second Circuit

Dec. 17, 2009

334 Fed. Appx. 334

We have considered plaintiffs other arguments and find them to be without merit.

CONCLUSION

Accordingly, we AFFIRM the judgment of the District Court.

John Bonilla, White Deer, PA, pro se.

Benton J. Campbell, United States Attorney, Varuni Nelson and Margaret M. Kolbe, Assistant United States Attorneys, of counsel, Brooklyn, NY, for Appellees George Wright and John M. Anticev.

Michael A. Cardozo, Corporation Counsel of the City of New York, Larry A. Sonnenshein and Julian L. Kalkstein, of counsel, New York, NY, for Appellees Ilkiw Ihor, Buddy Murane, and Frank Diaz.

PRESENT: PIERRE N. LEVAL and PETER W. HALL, Circuit Judges, J. GARVAN MURTHA,^* District Judge.

SUMMARY ORDER

Appellant John Bonilla, pro se, appeals a judgment of the district court granting defendants’ motion for summary judgment and dismissing his complaint brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and the issues on appeal.

This Court reviews a district court‘s grant of summary judgment on the basis of qualified immunity de novo. See Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999). The doctrine of qualified immunity protects government officials from suits for money damages where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “A qualified immunity defense is established if (a) the defendant‘s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996). Although qualified immunity is a question of law for the Court, if there are factual disputes that bear directly upon whether it was objectively reasonable for an official to believe that he was acting lawfully, these disputes must be resolved by a jury before the legal question can be addressed. See Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003).

Here, the district court properly granted summary judgment to defendant Anticev on the basis of qualified immunity because it was undisputed that Anticev did not enter or search Bonilla‘s apartment. See Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (holding that a plaintiff in a Bivens action must allege that the individual defendant was personally involved in the constitutional violation). The district court also properly granted summary judgment to the remaining defendants based upon the undisputed facts that obtain with respect to the protective sweep conducted in Bonilla‘s apartment. These defendants are entitled to qualified immunity because there is no holding in the applicable jurisprudence dictating that their sweep violated clearly established law governing the permissible scope of such a search.

The summary judgment record showed that Bonilla had been involved with numerous accomplices in armed hijackings, and it was therefore objectively reasonable for defendants to believe that other persons might have been present in the apartment who might have had access to a weapon and who might have presented an immediate threat to the officers’ safety. Additionally, to the extent that defendants’ recording of the serial numbers on Bonilla‘s electronics equipment during the search did not fall within the protective sweep, the district court properly concluded that this conduct fell within the plain view exception to the Fourth Amendment because defendants were lawfully in the apartment, the electronics equipment was in plain view, and the officers had probable cause to believe that this equipment was stolen. See Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Arizona v. Hicks, 480 U.S. 321, 325-26, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

We have reviewed Appellant‘s remaining arguments and find them to be without merit. We need not reach Appellees’ alternative basis upon which to affirm the judgment.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

Notes

J. Garvan Murtha, Senior Judge of the United States District Court for the District of Vermont, sitting by designation.