Rivera v. Weir et al

Filing 9

INITIAL REVIEW ORDER: Pursuant to the attached Initial Review Order, the Court hereby DISMISSES the complaint without prejudice to refiling an amended complaint on or before 20 days from the date of this order by using the Prisoner E-filing System , so long as he can allege facts sufficient to support a Fourth Amendment privacy claim or First Amendment religious exercise claim pursuant to 28 U.S.C. § 1915A(b)(1). The Clerk is directed to close this case after 20 days of the date of this order if Plaintiff does not file an amended complaint. Signed by Judge Vanessa L. Bryant on 04/17/2017. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LUIS RIVERA,
Plaintiff,
v.
KIMBERLY WEIR, et al.,
Defendants.

:
:
:
:
:
:
:

CASE NO. 3:17-cv-181 (VLB)

INITIAL REVIEW ORDER
Plaintiff, Luis Rivera, currently incarcerated at the New Haven Correctional
Center in New Haven, has filed a complaint pro se under 42 U.S.C. § 1983 (2000).
The complaint was received by the court on February 8, 2017, and his motion to
proceed in forma pauperis was granted on April 12, 2017. The named Defendants
are Warden Kimberly Weir; Deputy Warden Paul Oulette; Captain Woods;
Counselor Supervisor Sandra Violette; Correctional Officers Alverado, Jane Doe 1
and John Doe 1; Correctional Counselors Kimberly Casey, James Zuccolo,
Cassandra Moss and Jane Doe 2; and Lieutenant Dino Cichetti. All Defendants
are named in individual and official capacities. Plaintiff alleges that Defendants
unreasonably subjected him to a strip search in view of other inmate and female
staff. He seeks declaratory relief and damages.
Under 28 U.S.C. § 1915A(b) (2000), the court must review prisoner civil
complaints and dismiss any portion of the complaint that is frivolous or
malicious, that fails to state a claim upon which relief may be granted, or that
seeks monetary relief from a defendant who is immune from such relief.

In

reviewing a pro se complaint, the court must assume the truth of the allegations,
and interpret them liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations
are not required, the complaint must include sufficient facts to afford the
defendants fair notice of the claims and the grounds upon which they are based
and to demonstrate a right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-56 (2007). Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. Nevertheless, it is
well-established that “pro se complaints ‘must be construed liberally and
interpreted to raise the strongest arguments that they suggest.’” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d
90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se
litigants).
I. Allegations
On February 5, 2014, Plaintiff was housed in Dorm 9A at Carl Robinson
Correctional Institution serving a nine-month sentence.

Doc. #1, ¶ 18. At 8:30

a.m. inmates were allowed to exchange their identification cards for single blade
disposable razors to shave. Doc. #1, ¶ 20. At 9:00 a.m., Defendant John Doe
announced that one razor had not been returned. Doc. #1, ¶ 21. Operations in
Dorm 9A remained normal through lunch time.
2

Doc. #1, ¶¶ 22-23.

Upon

returning from the dining hall, Defendant Cichetti ordered all inmates in Dorm 9A
to go to their bunks and remain there.

Doc. # 1, ¶ 26. All Defendants except

Defendants Weir, Oulette, Woods and Violette were present in the dorm at this
time.

Doc. #1, ¶ 26.

Defendants Alvarado, Zuccolo and Jane Doe 1 were

patrolling the tiers adjacent to the bunks. Doc. #1, ¶ 27. The other Defendants
were stationed throughout Dorm 9A. Doc. #1, ¶ 28.
While sitting on his bunk, Plaintiff observed Defendant Woods enter Dorm
9A, speak briefly to Defendant Cichetti, and leave. Doc. #1, ¶ 29. As Defendant
Woods left Dorm 9A, Defendant Cichetti ordered the inmates, eighteen at a time,
to go to an adjacent recreation room to be strip-searched. Doc. #1, ¶ 30. All
Defendants except Defendants Weir, Oulette and Woods organized the searches.
Doc. #1, ¶ 31. Defendant Violette was present only part of the time. Doc. #1, ¶ 32.
The recreation area is fully visible from Dorm 9A. Doc. #1, ¶ 33. When the
searches began, inmate Bushwick complained to Defendant Cichetti that the
searches were being conducted in direct view of female employees. Doc. #1, ¶
34.

Defendant Cichetti told him to undergo the search or go to restrictive

housing. Doc. #1, ¶ 34.
Plaintiff was strip-searched by Defendant John Doe in direct view of
seventeen other inmates in the recreation room, 100 inmates in Dorm 9A and all
Defendants except Defendants Weir, Oulette and Woods. Doc. #1, ¶ 35. The
search was recorded on a digital camera. Doc. #1, ¶ 37. Plaintiff saw Defendant
Alverado, a female, and Jane Doe 1 observe naked inmates.
3

Doc. #1, ¶ 38.

Defendants Jane Doe 2 and Moss were pointing at naked inmates and giggling.
Doc. #1, ¶ 38.
There are seven private shower stalls adjacent to Dorm 9A that could have
been used to conduct private strip searches. Doc. #1, ¶ 40. Following the strip
searches, the inmates were sent to the gym while staff searched the housing
area. Doc. #1, ¶ 41. Upon their return from the gym, normal operations resumed.
Doc. #1, ¶ 42.
II. Discussion
Plaintiff alleges that the Defendants violated his First Amendment right to
practice his religion and his Fourth Amendment right to be free from
unreasonable searches by conducting the searches in view of other inmates as
well as male and female staff and by recording the searches. He also claims the
Defendants violated Administrative Directive 6.7.
Where an inmate’s Fourth Amendment claim challenges an isolated search,
“courts typically apply the standard set forth in Bell v. Wolfish, 441 U.S. 520
(1979).” Harris v. Miller, 818 F.3d 49, 58 (2d Cir. 2016) (citing Byrd v. Maricopa
Cty. Sheriff's Dep’t, 629 F.3d 1135, 1141 n. 6 (9th Cir. 2011) (en banc)). Inmate
strip searches “are constitutionally valid if they are reasonably related to a
legitimate penological interest.” Perez v. Ponte, No. CV 16-645 (JFB) (AKT), 2017
WL 1047258, at *19 (E.D.N.Y. Feb. 14, 2017) (citation omitted). Reasonableness is
evaluated by considering “the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and the place in which it is
4

conducted.” Bell, 441 U.S. at 559. Correctional officials must be permitted to
create reasonable search policies to detect and deter possession of contraband.
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328
(2012).

Thus, absent “substantial evidence in the record to indicate that the

officials exaggerated their response” to legitimate penological concerns, courts
generally defer to the judgment of prison officials. Id. Here, Plaintiff does not
object to the search itself, only to the fact that he was searched in the view of
other inmates and staff.
Other district courts within the Second Circuit considering this issue have
concluded that the presence of other inmates or staff, either male or female, does
not render a strip search per se unconstitutional. See Perez, 2017 WL 1047258, at
*20 (citing cases).

Recent cases addressing an inmate’s “right to privacy

suggest that occasional, indirect, or brief viewing of a naked prisoner by a guard
of the opposite sex may be permissible but that ‘regular and close viewing’ is
prohibited.” Corr. Officers Benevolent Ass’n of Rockland Cty. v. Kralik, No. 04
Civ. 2199(PGG), 2011 WL 1236135, at *11 (S.D.N.Y. Mar. 30, 2011); see also Miles
v. Bell, 621 F. Supp. 51, 67 (D. Conn. 1985) (“As a general rule, courts have found
a violation only in those cases in which guards regularly watch inmates of the
opposite sex who are engaged in personal activities, such as undressing, using
toilet facilities or showering.”) (internal quotation marks omitted).
Plaintiff’s claim related to one search. The presence of correctional staff
and other inmates does not necessarily render the search unconstitutional. See
5

Harris v. Miller, 818 F.3d at 58-59 (noting that a cross-gender strip searches is a
“greater invasion” of privacy and typically frowned upon) (citing Canedy v.
Boardman, 16 F.3d 183, 185 (7th Cir.1994)).

Plaintiff does not allege facts

showing that he was regularly viewed by female staff. In fact, he does not allege
that any female staff members looked at him in particular. Nor does he allege that
the officers conducting the search were aware that it was being observed by
female officers. The Second Circuit has noted that while best-practice standards
in prison management typically discourage cross-gender strip searches, they
may be necessitated by exigent circumstances. Id.
The search was justified and critical. In this circuit, inmates have a limited
right to bodily privacy subject to prison security interests. Covino v. Patrissi, 967
F.2d 73, 78 (2d Cir.1992); Powell v. Cusimano, 326 F. Supp. 2d 322, 335-36 (D.
Conn. 2004). A razor is a lethal weapon, particularly in the confines of a prison.
That lethality created a clear and present danger to the safety and security of the
occupants of the prison facility. That danger in turn created a legitimate and
immediate penological interest in assuring the security and safety of inmates and
staff by locating the razor as quickly as possible. When balancing a legitimate
immediate need to locate the razor to assure the safety and security of the
inmates and staff at the facility against an individual inmate’s limited right to
privacy, the scale tips in favor of safety and security.
Here, the reason for conducting the search, the lethality of the object of the
search, the exigent circumstances, the large number of inmates who had to be
6

searched, the gender of the person conducting the search and the incidental
nature of the privacy invasion justify the intrusion of Plaintiff’s limited privacy
rights. Thus, the Plaintiff has failed to raise a meritorious claim that his Fourth
Amendment right to privacy was violated.
Plaintiff also argues that the search violated his right to practice his
religion. To state a claim for violation of the right to freely exercise religion,
Plaintiff “must show at the threshold that the disputed conduct substantially
burdens his sincerely held religious beliefs.” Salahuddin v. Goord, 467 F.3d 263,
274-75 (2d Cir. 2006).

Plaintiff includes no facts to support this claim.

A

conclusory statement is insufficient to state a cognizable claim for relief. See
Iqbal, 556 U.S. at 678. Accordingly, this claim is dismissed.

CONCLUSION
The federal law claims in the Complaint are DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915A(b)(1). The Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claim for failure to comply with prison
directives. See 28 U.S.C. § 1367(c)(3) (if federal court dismisses all federal claims
it may decline to exercise supplemental jurisdiction over supplemental state law
claims). Plaintiff may pursue his state law claims in Connecticut Superior Court.
The dismissal is without prejudice to Plaintiff filing an amended complaint
if he can allege facts to support a Fourth Amendment privacy claim or a First
Amendment religious exercise claim. Any amended complaint should be filed
7

within twenty days from the date of this order using the Prisoner E-filing System.
SO ORDERED this 17th day of April 2017, at Hartford, Connecticut.

/s/
Vanessa L. Bryant
United States District Judge

8