Houston v. Unknown Agents of the National Securities Agency
MEMORANDUM AND OPINION: ORDER granting 2 Motion for Leave to Proceed in forma pauperis plaintiffs claims are dismissed without prejudice pursuant to 28 U.S.C. §§ 19 15(e)(2)(B)(ii) and 19 15A(b). The Clerk of the Court is directed to: ( 1) close this case, (2) enter judgment, and (3) ma l a copy of this Order to the prose plaintiff at his last known address. The Court certifies pursuant to 28 U.S.C. § 19 15(a)(3) that any appeal from this Orderwould not be taken in good faith and therefore informa pauper is status is denied for the purpose of any appeal.. Ordered by Judge Joseph F. Bianco on 5/22/2017. (Bollbach, Jean)cm by chambers to pro se by fcm on 5/22/17
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.O.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG \SLAND OFF\CE
ROBERT LEE HOUSTON, #6762-053,
OPINION & ORDER
-againstUNKNOWN AGENTS OF THE NATIONAL
SECURITIES AGENCY AT THE METROPOLITAN
DETENTION CENTER, Brooklyn, N.Y.,
JOSEPH F. BIANCO, District Judge:
On February 8, 2017, incarcerated prose plaintiff Robert Lee Houston ("plaintiff') filed an
informa pauperis civil rights complaint against "Unknown Agents of the National Securities
Agency at the Metropolitan Detention Center, Brooklyn, NY" ("Unknown Agents" or
"defendants") pursuant to 42 U.S.C. § 1983 ("Section 1983") together with an application to
proceed informa pauperis. Upon review of the declaration accompanying plaintiffs application
to proceed informa pauperis, the Court finds that plaintiffs financial status qualifies him to
commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(l).
Accordingly, plaintiffs application to proceed informa pauperis is granted. However, for the
reasons that follow, plaintiffs claims are dismissed in their entirety pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii) and 1915A(b)(l).
Plaintiffs brief, handwritten complaint is difficult to comprehend, but he appears to
challenge conduct of unidentified officers on a single occasion at the Metropolitan Detention
Center in Brooklyn, New York. According to the complaint, on February 5, 2017, plaintiff, who
alleges he is heterosexual, was viewed by unidentified "homosexual National Securities Agency
Agents" while plaintiff was in the shower. (Compl. at 3-4.) Plaintiff alleges that the defendants
made comments about his genitalia and
us[ed] implanted behavioral instrumentation-not behavior modification to not only
violate my [Privacy] under the 1st Amendment of the United States Constitution
while in the shower with a shower curtain and (reasonable expectation ofprivacy)But is sexually harassing me as well.
(Id. at 4-5 (emphasis in original),) Plaintiff also claims that on the same date, the defendants were
"banging on [his] cell wall to 'break his concentration."' (Id.)
In the space on the form complaint that calls for a description of any claimed injuries,
I a heterosexual male was affected mentally this impaired my mental faculties
permanently. I may never forget unknown National Securities Agents who were
clearly gay piercing the shower curtain and exposing my personal privacy to the
S.H.U. population and using implanted behavioral instrumentation not behavior
modification along with my eyes to violate my privacy. I may very well need
counseling. I may be tramatized [sic] this was absolutely humiliating.
(Id. at 5.) For relief, plaintiff seeks "$700,000 or what this Court deems just compensation for
mental anguish." (Id. at 6.) Plaintiff also seeks "an immediate federal injunction protection
order against the above referenced unknown National Securities Agents at MDC Brooklyn, N. Y.
and a federal injunction protection order against the National Securities Agency as an entity 200
billion bits mega data base, sophisticated technology immediately." (Id.)
Sufficiency of the Pleadings
It is axiomatic that district courts are required to read pro se complaints liberally, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to construe them '"to raise the strongest
arguments that [they] suggest ,"'Chavis, 618 F.3d at 170 (quoting Harris v. City ofNew York,
607 F.3d 18, 24 (2d Cir. 2010)). Moreover, at the pleadings stage of the proceeding, the Court
must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010), aff'd, 133 S. Ct. 1659
(2013) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). However, "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements ... are not entitled to the
assumption of truth." Iqbal, 556 U.S. at 678 (citation omitted).
Notwithstanding a plaintiffs prose status, a complaint must plead sufficient facts to "state
a claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. The plausibility standard requires "more than a sheer possibility that a
defendant has acted unlawfully." Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128
(2d Cir. 2011). While "detailed factual allegations" are not required, "[a] pleading that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not
do."' Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Section 1983 provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the United
States ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured ....
42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution and
federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999). In order to state a§ 1983 claim, a plaintiff must allege
two essential elements. First, the conduct challenged must have been "committed by a person
acting under color of state law." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Second, "the conduct complained of must
have deprived a person of rights, privileges or immunities secured by the Constitution or laws of
the United States." Id.; see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). Here, plaintiff
claims that he was deprived of his constitutional right to privacy under the First Amendment.
First Amendment Right to Privacy
It is well-established that although inmates "retain certain fundamental rights of privacy,"
Houchins v. KOED, Inc., 438 U.S. 1, 5 n. 2 (1978), these rights may be restricted and retracted in
order to '"maintain[ ] institutional security and preserve[ ] internal order and discipline,'"' Urbano
v. Murphy, No. 11-CV-806, 2013 WL 6842939, at *3 (D. Conn. Dec. 23, 2013) (quoting Bell v.
Wolfish, 441 U.S. 520, 546 ( 1979)). Indeed, the Second Circuit has recognized that "prisoners
retain a right to bodily privacy, even if that right is limited by institutional and security concerns."
Nicholas v. Goord, 430 F .3d 652, 658 (2d Cir. 2005).
"Cases in this Circuit and elsewhere addressing inmates' privacy rights suggest that
occasional, indirect, or brief viewing of a naked prisoner by a guard of the opposite sex may be
permissible, but that regular, close and frequent viewing is prohibited." Urbano, 2013 WL
6842939, at *3 (citing Thomas v. Shields, 981F.2d1252 (4th Cir. 1992) (male plaintifrs "right to
privacy was not violated by the occasional, inadvertent encounter with female guards" who
observed him in shower and on toilet); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988)
("Our circuit's law respects an incarcerated prisoner's right to bodily privacy, but has found that
assigned positions of female guards that require only infrequent and casual observation, or
observation at a distance, and that are reasonably related to prison needs are not so degrading as to
warrant court interference."); Rogers v. Clark, No. 94-CV-0444, 1996 WL 328218, at *1
(W.D.N.Y. June 11, 1996) (court found no basis for detainee's claim that "female correctional
officer glanced at him as he completed taking a shower" violated his constitutional right to
privacy); Miles v. Bell, 621 F. Supp. 51, 67-68 (D. Conn. 1985) (finding no violation of inmates'
right to privacy because inmates failed to demonstrate that female guards regularly and frequently
viewed them undressing or using the shower or toilet)).
In addition, "without any showing of physical injury or damage, claims of verbal
harassment, including taunts, insults, and racial slurs cannot form the basis of a claim under
Section 1983." McKethan v. Carbone, No. 97-CV-0061, 1998 WL 178804, at *2 (N.D.N.Y Apr.
13, 1998); see also Cole v. Fischer, 379 F. App'x 40, 43 (2d Cir. 2010) ("[V]erbal harassment,
standing alone, does not amount to a constitutional deprivation."); Purcell v. Coughlin, 790 F .2d
263, 264-65 (2d Cir. 1986) (per curiam) (affirming dismissal of Section 1983 claims alleging that
various prison officials called plaintiff names on one occasion).
Finally, a district court has the inherent power to sua sponte dismiss a frivolous case. See
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). It is
well-established that an action is "frivolous" when "the factual contentions are clearly baseless,
such as when allegations are the product of delusion or fantasy." Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotations and citations omitted). "[A]
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are judicially noticeable facts available to
contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Gelish v. Social Sec.
Admin., 10-CV-3713, 2010 WL 3780372, at *4 (E.D.N.Y. Sept. 17, 2010); Morse v. Network of
Al-Queda Attorneys, 12-CV-1102, 2012 WL 1155821, *5 (E.D.N.Y. Apr. 5, 2012).
Here, plaintiff alleges that, on a single date, he was viewed by officers while naked in the
shower and that crude remarks were made by the officers about plaintiff. As is readily apparent,
plaintiffs allegations fall far short of stating a plausible constitutional deprivation. Even
assuming the truth of these claims, this isolated incident does not implicate plaintiffs First
Amendment rights. Moreover, the allegations concerning the "implant[ation] of behavior
instrumentation" set forth in the complaint "rise to the level of the irrational or the wholly
incredible." Denton, 504 U.S. at 33. Upon a casual reading of plaintiffs complaint, these
allegations can only be described as the "product of delusion or fantasy." Livingston, 141 F .3d at
437. Construing plaintiffs complaint liberally and raising the strongest arguments they suggest,
Burgos v. Hopkins, 14 F.3d 787, 780 (2d Cir. 1994), the Court finds that plaintiff has failed to
statue a plausible claim and therefore dismisses the complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l).
Leave to Amend
In light of the pleading deficiencies set forth above, the Court has considered whether
plaintiff should be given an opportunity to re-plead his claims. Leave to amend should be freely
granted when justice so requires. Fed. R. Civ. P. 15(a)(2). "This relaxed standard appl ies with
particular force to p rose litigants." Pangburn v. Culbertson, 200 F.3 d 65, 70 (2d Cir. 1999).
The Second Circuit has emphasized that a "court should not dismiss [a p rose complai nt] without
granting leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid cla im might be stated." Cuoco v. Morilsug u, 222 F.3 d 99, 11 2 (2d Cir. 2000)
(citations and internal quotation marks omitted).
Given that the reason for the dism issal of plaintiff s comp laint is substantive and could not
be cured in an amended complaint, leave to amend the compl aint is denied.
For the reasons set fo rth above, plaintiffs application to proceed informa pauperis is
granted. However, plainti ffs claims are dismissed without prej udice pursuant to 28 U.S.C.
§§ 19 15(e)(2)(B)(ii) and 19 15A(b). The Clerk of the Court is directed to: ( 1) close this case,
(2) enter judgment, and (3) ma il a copy of this Order to the prose plaintiff at his last known
The Court certifies pursuant to 28 U .S.C. § 19 15(a)(3 ) that any appeal fro m this Order
wou ld not be taken in good faith and therefore inf
orma pauper is status is deni ed for the purpose of
any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 ( 1962).
SO ORDERED .
MayQ:d , 201 7
Central Islip, New York
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