Brown v. Oneida County et al

Filing 29

MEMORANDUM-DECISION AND ORDERED, that Defendants Motion to Dismiss (Dkt. No. 10) is GRANTED in part as to claims against Oneida County and its departments, claims of supervisory liability, and attorney fees, and DENIED in part, as to Plaintiffs claims of malicious prosecution, false arrest, and unlawful strip search against the individual Defendants in their individual capacities; and it is further ORDERED, that Defendants Motion to Dismiss (Dkt. No. 10) is DENIED as moot in part as to all New York state law tort claims and claims of malicious abuse of process; and it is further ORDERED, that Oneida County, Oneida County District Attorneys Office, Oneida County Police Department, Oneida County Sheriffs Department, Oneida County Correctional Facility, and Sergeant John Doe are terminated as Defendants; and it is further ORDERED, that Plaintiffs Motion to Amend (Dkt. No. 19) is GRANTED; and it is furtherORDERED, that Plaintiff file an amended complaint within thirty (30) days consistent with this Memorandum-Decision and Order that will be deemed the operative pleading in this action. Signed by Senior Judge Lawrence E. Kahn on August 12, 2016. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES E. BROWN,
Plaintiff,
-against-

6:15-CV-0849 (LEK/ATB)

ONEIDA COUNTY, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On July 10, 2015, Plaintiff James E. Brown commenced this action against Defendants

Oneida County, the Oneida County District Attorney’s Office, the Oneida County Police
Department, the Oneida County Sheriff’s Department, Oneida County Correctional Facility, the
Town of Marcy, the Town of Marcy Police Department, Assistant District Attorney Robert A.
Bauer, Investigator Nicholas Loconte, Correctional Officers Chapman and John Does 1–6,
Sergeant John Doe, and Police Officer John Doe. Dkt. No. 1 (“Complaint”). Plaintiff alleges the
following claims against Defendants pursuant to 42 U.S.C. § 1983 or New York state law:
(1) malicious prosecution; (2) false arrest and false imprisonment; (3) malicious abuse of
process; (4) liability of town and county for constitutional violations; (5) failure to train and
supervise; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional
distress; (8) unlawful strip search; (9) negligence; (10) negligence in hiring, screening, retention,
supervision, and training; (11) respondeat superior liability; (12) supervisory liability;
(13) trespass; and (14) attorney fees. Compl. ¶¶ 71–144. Plaintiff seeks two million dollars in

compensatory damages and three million dollars in punitive damages for each individual claim.
Id. ¶¶ 80, 83, 89, 101, 109, 113, 116, 119, 122, 127, 130, 133, 139, 142.
Currently before the Court is a Motion to Dismiss, brought by all remaining Defendants1
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 10 (“Motion to Dismiss”); Dkt.
No. 10-1 (“Memorandum”). Plaintiff has requested ;leave to amend his Complaint, Dkt. Nos. 19
(“Motion to Amend”); 19-1 (“Proposed Amended Complaint”), and also opposes the Motion to
Dismiss, Dkt. No. 20 (“Response”). Defendants filed a Reply. Dkt. No. 22 (“Reply”). For the
following reasons, Plaintiff’s Motion to Amend is granted, and Defendants’ Motion to Dismiss is
granted in part and denied in part.
II.

BACKGROUND
A. Plaintiff’s Original Complaint2
On April 7, 2013, Plaintiff was pulled over under suspicion of speeding and was issued a

ticket for disobeying a traffic device. Compl. ¶ 34. When Plaintiff appeared in Marcy Town
Court on May 2, 2013, he met with Bauer to discuss a resolution of the ticket, as is customary in
town court. Id. ¶ 38. Plaintiff informed Bauer that he was not speeding and that there were no
traffic devices in the area that he could have disobeyed. Id. ¶ 39. Then Plaintiff made a statement

1

Counsel for the Town of Marcy advised Plaintiff via communications extrinsic to court
filings that the Town of Marcy does not maintain a police force and therefore cannot be
responsible for Plaintiff’s claims arising out of his arrest. Dkt. No. 24. Plaintiff and the Town of
Marcy filed a stipulation of dismissal on January 26, 2016, and the Court terminated the Town of
Marcy as a defendant on January 27, 2016. Dkt. Nos. 26, 28.
2

Consistent with the Court’s duty to construe a plaintiff’s factual allegations in the light
most favorable to the plaintiff in addressing a motion to dismiss, the allegations of the Complaint
are accepted as true and form the basis for this section. See Matson v. Bd. of Educ., 631 F.3d 57,
72 (2d Cir. 2011).
2

to the effect of “there’s a lot of fraud going on,” believing that the officers had fabricated the
ticket. Id. ¶ 40. Plaintiff thought Bauer was infuriated by his statement. Id. ¶ 41. Over Plaintiff’s
objections, Bauer put Plaintiff’s case on for trial. Id. ¶¶ 42–43. On May 9, 2013, Plaintiff
returned to Marcy Town Court without an appointment intending to resolve the ticket and avoid a
trial. Id. ¶¶ 45–46. After he was told by a court officer that Bauer did not want to speak with him,
Plaintiff was advised that he could sit in the courtroom. Id. ¶ 47. The presiding judge gave
Plaintiff a card with Bauer’s contact information and instructions that Plaintiff could call Bauer
but that he would be unable to speak with Bauer that day. Id. ¶ 48.
A conversation then occurred between Plaintiff and Bauer in the parking lot, which was
initiated by Bauer when he pulled his car next to Plaintiff’s vehicle. Id. ¶ 50. Bauer asked
Plaintiff if he still wished to resolve the ticket, and when Plaintiff responded affirmatively, Bauer
gave him a new court date for May 14, 2013. Id. ¶ 50–51. On or about May 9, 2013, Plaintiff was
called to appear at the State University of New York Police Department, where he was given new
tickets. Id. ¶ 53. Plaintiff was informed that his original tickets for disobeying a traffic device
were increased to speeding tickets and that Bauer wanted Plaintiff to have the new tickets. Id.
¶¶ 53–54. The next day, Plaintiff was arrested at work and escorted to the Oneida County Jail on
charges of stalking in the third degree, harassment in the first degree, menacing in the second
degree, and obstructing governmental administration in the second degree. Id. ¶¶ 55, 57, 72. All
of these charges were apparently related to Plaintiff’s interactions with Bauer.
On arrival at Oneida County Jail, Correctional Officers Chapman and John Does 1–6
pointed an object at Plaintiff and instructed Plaintiff to remove his clothing. Id. ¶ 58. During the
strip search, Plaintiff was laughed at and mocked. Id. ¶ 60. Once he was naked, Plaintiff was
3

strapped to a “wheeled chair” and covered with a clear gown. Id. ¶ 61. He was then wheeled to
the lowest floor of the jail and left to sit there, where he began to suffer an anxiety attack and was
given no treatment. Id. ¶¶ 61–62. Plaintiff claims that he was given no food for approximately
twenty-four hours. Id. ¶ 63.
Plaintiff’s Complaint stated that the tickets were dismissed and terminated in his favor on
September 17, 2015. Id. ¶ 74.3
B. Plaintiff’s Amended Complaint
Plaintiff’s Proposed Amended Complaint is largely similar to his original Complaint.
Plaintiff omits the Town of Marcy and its police department from the list of defendants and
removes all of the state law tort claims that were originally brought against Defendants. In
addition, Plaintiff adds two new claims of excessive force and failure to intervene under § 1983.
Plaintiff also alleges that either Loconte or police officer John Doe effectuated his arrest and that
Bauer ordered police officers to follow Plaintiff in his car. Proposed Am. Compl. ¶¶ 52–53.
III.

LEGAL STANDARD
A. Motion to Dismiss
For pleadings, the Federal Rules require “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to survive a motion
to dismiss, a plaintiff must offer more than conclusions or a formulaic recitation of the elements
of the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff does not need
to set out “detailed factual allegations,” but must assert more than “an unadorned, the-defendant-

3

Considering that Plaintiff’s Complaint was filed on July 10, 2015, the Court assumes
that the year was a typographical error.
4

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). A complaint is insufficient if it “tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(alteration in original). “[O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)).
B. Motion to Amend
Generally, a party may amend his or her pleading once as a matter of course. Fed. R. Civ.
P. 15(a)(1). When the time to amend as a matter of course has elapsed, the plaintiff may amend
his complaint with the written consent of the opposing party or the court’s leave. Fed. R. Civ. P.
15(a)(2). Where there exists no apparent reason for a court to deny a plaintiff’s motion to amend,
leave to amend should be “freely given.” Price v. Gizzi, No. 11-CV-976, 2012 WL 2120028, at
*3 (N.D.N.Y. June 11, 2012) (Kahn, J.) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Potential reasons to deny a motion to amend include undue delay, bad faith, failure to cure
deficiencies by previously granted amendments, undue prejudice to opposing party, or futility of
amendment. Id. “Where ‘futility is an appropriate basis for denying leave to amend, such denial
should be contemplated within the standards necessary to withstand a motion to dismiss pursuant
to [Rule 12(b)(6)].’” Id. at *4 (alteration in original) (quoting Gorham-DiMaggio v. Countrywide
Home Loans, Inc., No. 08-CV-19, 2009 WL 1748743, at *3 (N.D.N.Y. June 19, 2009)).

5

IV.

DISCUSSION
A. Plaintiff’s § 1983 Claims
42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.” 42 U.S.C. § 1983. There are no substantive rights created
by § 1983; rather, it provides the means for “vindicating federal rights elsewhere conferred.”
Dzwonczyk v. Syracuse City Police Dep’t, 710 F. Supp. 2d 248, 261 (N.D.N.Y. 2008) (quoting
Patterson v. County of Oneida, 375 F.3d 206, 255 (2d Cir. 2004)). A claim pursuant to § 1983
requires an allegation “(1) that some person has deprived [the plaintiff] of a federal right, and
(2) that the person who has deprived him of that right acted under color of state . . . law.” Id.
(quoting Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)).
1. Claims Against County Agencies
Defendants contend that Plaintiff has named incorrect parties as Defendants in his
Complaint. Mem. at 2. Specifically, Defendants state that since Oneida County has already been
named as a defendant, claims against its departments are redundant. Id. “[U]nder New York law,
departments that are merely administrative arms of a municipality do not have a legal identity
separate and apart from the municipality and therefore, cannot sue or be sued.” Macaluso v.
Nassau Cty. Corr. Ctr., No. 13-CV-6206, 2014 WL 1401429, at *4 (E.D.N.Y. Apr. 8, 2014)
(alteration in original) (quoting Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477
6

(E.D.N.Y. 2002)); accord Moffet v. Town of Poughkeepsie, No. 11-CV-6243, 2012 WL
3740724, at *1 n.1 (S.D.N.Y. Aug. 29, 2012). The district attorney’s office, police departments,
sheriff’s department, and correctional facility are all administrative arms of Oneida County. As
such, Oneida County is the proper defendant in this case. Therefore, all claims against the Oneida
County District Attorney’s Office, Oneida County Police Department, Oneida County Sheriff’s
Department, and Oneida County Correctional Facility are dismissed.
2. Monell Claims Against Oneida County
“Congress did not intend municipalities to be held liable [under § 1983] unless action
pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). The Supreme Court has stated that “governments
should be held responsible [in § 1983 claims] when, and only when, their official policies cause
their employees to violate another person’s constitutional rights.” City of St. Louis v. Praprotnik,
485 U.S. 112, 122 (1988). Therefore, in order for a municipality to be liable under § 1983 for
acts of a public official, the plaintiff must plausibly allege that an official policy of the
municipality caused the constitutional injury. Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.
2008) (citing Monell, 436 U.S. at 690–91). To plead the existence of a municipal policy, Plaintiff
must allege one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions
taken by government officials responsible for establishing the
municipal policies that caused the particular deprivation in question;
(3) a practice so consistent and widespread that, although not
expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by
policymakers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate

7

indifference to the rights of those who come into contact with the
municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010). In addition to
pleading the plausible existence of a municipal policy, a plaintiff must allege an “affirmative
link” between the municipal policy and the constitutional violation at issue. Oklahoma City v.
Tuttle, 471 U.S. 808, 824 n.8 (1985).
Plaintiff brings the following claims against Oneida County pursuant to § 1983: malicious
prosecution, false arrest, malicious abuse of process, liability of the county for constitutional
violations, failure to train and supervise, unlawful strip search, intentional infliction of emotional
distress, and supervisory liability. Defendants have moved to dismiss Plaintiff’s Monell claims
due to Plaintiff’s failure to plead facts regarding the existence of a municipal custom that would
make Oneida County liable under a Monell claim. Mem. at 10.
Plaintiff’s Complaint contains many conclusory statements regarding municipal policies.
Plaintiff states that Defendants “had in effect de facto policies, practices, customs, and usages
that were a direct and proximate cause of the unconstitutional conduct of the Defendant police
officers, investigators, prosecutors, their agents, servants and employees.” Compl. ¶ 91. The
policies that Plaintiff refers to are “arresting persons without probable cause, providing false
information to prosecutors, falsifying police reports and affidavits, working and conspiring with
others under a wall of silence, unlawfully utilizing law enforcement and testifying and/or
swearing falsely under oath.” Id. ¶ 92. Plaintiff fails to substantiate these conclusory allegations
with facts that would meet the required plausibility standard. Plaintiff’s claims amount to
“boilerplate statements” that Oneida County employees were acting according to a municipal

8

policy with no facts that support those statements. Rifenburg v. Hughes, No. 15-CV-978, 2016
WL 866344, at *3 (N.D.N.Y. Mar. 3, 2016); accord Duncan v. City of New York, No.
11-CV-3826, 2012 WL 1672929, at *2–3 (E.D.N.Y. May 14, 2012). “[T]o survive a motion to
dismiss, Plaintiff cannot, through conclusory allegations, merely assert the existence of a
municipal policy or custom, but ‘must allege facts tending to support, at least circumstantially, an
inference that such a municipal policy or custom exists.’” Tieman v. City of Newburgh, No.
13-CV-4178, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26, 2015) (quoting Santos v. City of
New York, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012)). Plaintiff’s Complaint at most alleges
unconstitutional actions taken by employees of a municipality, which is insufficient to establish
municipal liability. Monell, 436 U.S. at 691. Plaintiff has failed to meet the plausibility
requirements to survive a motion to dismiss.
Plaintiff attempts to bolster his Monell claims in his Proposed Amended Complaint by
adding more conclusory statements. Plaintiff adds that the Oneida County District Attorney’s
office has a policy and custom “of allowing the prosecutors whom cover town court jurisdictions
to hold an unreasonable amount of power [and the] ability to [single handedly] file charges
against individual[s] without having to obtain authorization from a supervisor or seek
authorization from a hierarchical chain of command.” Proposed Am. Compl. ¶ 85. Additionally,
Plaintiff alleges a policy within the Oneida County Correctional Facility that “authorizes
corrections officers to strip search inmates without a reasonable basis or for a purpose related
solely to the safety of the facility and allows misdemeanor inmates to be strip searched in front of
other corrections officers then strap him down to a wheelchair while depriving him of food and
medical treatment.” Id. ¶ 88. The only facts that are in accord with these pleaded policies are
9

those that are specific to Plaintiff’s case. “[A] custom or policy cannot be shown by pointing to a
single instance of unconstitutional conduct by a mere employee of the [government].” Newton v.
City of New York, 566 F. Supp. 2d 256, 271 (S.D.N.Y. 2008). Plaintiff states no facts at all that
would support the inference that others besides Plaintiff have been affected by these alleged
“policies.” In order for municipal liability to attach to a single decision, that decision must have
been made by a final policymaker that had sufficient power to act on behalf of the municipality.
Pembaur v. Cincinnati, 475 U.S. 469, 479–80 (1986). Plaintiff does not allege actions on behalf
of any final policymaker in his original or proposed amended complaints.
In consideration of the lack of plausible allegations concerning a municipal policy, all
claims against Oneida County are dismissed. As a result, Plaintiff’s claims of “Liability of Town
and County for Constitutional Violations” and “Failure to Train and Supervise” are dismissed
entirely, as they were alleged solely against the municipality and its departments.
3. Section 1983 Claims Against Individual Defendants
a. False Arrest
The elements for a claim of false arrest under § 1983 are substantially the same as those
under New York law. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). The elements
are “(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was
not otherwise privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). If the arrest was conducted without
“knowledge or reasonably trustworthy information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that the person to be arrested has
10

committed or is committing a crime,” the plaintiff has a claim for false arrest. Jenkins, 478 F.3d
at 84 (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
Plaintiff has plausibly pleaded the first three Savino factors. Plaintiff’s arrest itself
satisfies intent to confine, and Plaintiff was aware that he was being arrested and confined.
Compl. ¶ 55. Additionally, Plaintiff did not consent to the confinement. Id. ¶ 82. Lack of
privilege, however, requires a deeper inquiry into probable cause.
The burden of proving that probable cause existed at the time of Plaintiff’s arrest lies with
Defendants. See Caidor v. M & T Bank, No. 05-CV-297, 2006 WL 839547, at *5 (N.D.N.Y.
Mar. 27, 2006) (denying a motion to dismiss since it was not discernible from the plaintiff’s
complaint whether probable cause existed); see also Hernandez v. City of Rochester, 260 F.
Supp. 2d 599, 606 n.6 (W.D.N.Y. 2003) (collecting cases); Mason v. Town of New Paltz Police
Dep’t, 103 F. Supp. 2d 562, 565 (N.D.N.Y. 2000) (observing that federal and New York cases
state that where “an arrest or imprisonment is extrajudicial, that is, without legal process, the
burden is on the defendant to prove justification”). Plaintiff states in his Complaint that the
actions in dispute were initiated “without reasonable or probable cause or any legal justification.”
Compl. ¶ 72. Plaintiff also stated that Bauer had initiated contact with him in the courthouse
parking lot. Id. ¶ 50. Taken as a whole, Plaintiff’s Complaint describes subsequent encounters
with Bauer after May 2, 2013, as being lawful. Plaintiff has demonstrated that he had done no
acts that would warrant the charges he was given. “[A]n arrest is justified and a claim for false
arrest must be dismissed pursuant to Rule 12(b)(6), if the undisputed facts in plaintiff’s
complaint demonstrate that the arresting officers had probable cause to believe that the suspect
had committed a crime.” Brewster v. Nassau County, 349 F. Supp. 2d 540, 551 (E.D.N.Y. 2004).
11

It is unclear from Plaintiff’s Complaint whether Defendants had probable cause for the arrest.
Therefore, since the Complaint does not allow the Court to determine whether or not probable
cause existed at the time of arrest, and since it is the Defendants’ burden to prove probable cause,
Plaintiff’s claim of false arrest against Police Officer John Doe is allowed to proceed.
Defendants state that based upon Plaintiff’s Complaint, it is reasonable to assume that it
was the Town of Marcy that arrested Plaintiff. Mem. at 8. In their Motion to Dismiss, Defendants
reason that since Plaintiff did not specifically allege which law enforcement department arrested
him, the logical conclusion is that it was the Town of Marcy Police Department based on the fact
that he appeared in Marcy Town Court. Id. Defendants then go on to state that while Plaintiff
may have a claim against the Town of Marcy for false arrest, any claim against Oneida County
and its officers must be dismissed. Id. The Town of Marcy has been dismissed as a defendant on
the grounds that they do not have a police department. Dkt. No. 24. Therefore, it clearly was not
the Town of Marcy who arrested Plaintiff and Defendants’ argument must fail. The Court will
allow the action of false arrest to proceed against Bauer and Police Officer John Doe so that
Plaintiff has the opportunity to ascertain the identity of the arresting officers through discovery.
Plaintiff had also brought his false arrest claim against Loconte. In his original
Complaint, Plaintiff failed to state any facts indicating that Loconte had any involvement at all in
the arrest. However, in his Proposed Amended Complaint, Plaintiff asserts that it was either
Loconte or Police Officer John Doe who arrested him. Proposed Am. Compl. ¶ 53. In light of
Plaintiff’s amended pleadings, the Court will allow Plaintiff’s false arrest claim to continue
against Loconte as well as Police Officer John Doe.

12

Bauer was also listed as a Defendant for Plaintiff’s false arrest claim in both his original
and Proposed Amended Complaint. Compl. ¶ 82; Proposed Am. Compl. ¶ 82. Since Plaintiff
makes no mention in his amended pleadings of Bauer aiding in or effectuating the arrest, the
false arrest claim against Bauer is dismissed.
b. Malicious Prosecution Under Color of State Law
In order to state a claim for malicious prosecution, the plaintiff must allege: (1) the
commencement or continuation of a proceeding against him (2) with malice and without
probable cause (3) that was terminated in his favor. Fulton v. Robinson, 289 F.3d 188, 195 (2d
Cir. 2002). Probable cause has been defined as “knowledge of, or reasonably trustworthy
information as to, facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that an offense has been or is being committed by the person to be arrested.”
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (quoting Williams v. Town of Greenburgh,
535 F.3d 71, 79 (2d Cir. 2008)).
In support of their Motion to Dismiss, Defendants state three deficiencies with Plaintiff’s
pleading of malicious prosecution. First, Defendants argue that Plaintiff has failed to allege a
particular individual who has commenced a criminal proceeding against him. Mem. at 6–7.
Second, Defendants state that Plaintiff has failed to plead facts demonstrating that the arrest was
conducted without probable cause. Id. at 6. Finally, Defendants claim that no facts have been
pleaded that would support a finding of malice. Id.
Plaintiff’s Complaint, taken in light most favorable to Plaintiff, states that he was served
with tickets for stalking, harassment, menacing, and obstructing governmental administration
that required his appearance in court in the County of Oneida. Compl. ¶ 72. Plaintiff pleads that
13

the proceeding was instituted by Oneida County “officers”—although only Police Officer John
Doe is listed as a defendant police officer—as well as Bauer, and Loconte. Compl. ¶ 76. Plaintiff
has sufficiently pleaded the commencement of an action against him by Police Officer John Doe,
Loconte, and Bauer.
Defendants state that Plaintiff has not pleaded a lack of probable cause. Mem. at 6. In
order to establish probable cause in a malicious prosecution action, it must be shown that
probable cause existed “to charge [the suspect] with each of the crimes.” Cannistraci v. Kirsopp,
No. 10-CV-980, 2012 WL 1801733, at *10 (N.D.N.Y. May 16, 2012) (alteration in original)
(quoting Kavazanjian v. Rice, No. 03-CV-1923, 2005 WL 1377946, at *4 (E.D.N.Y. June 7,
2005)). “Malicious prosecution asks whether the facts objectively support a reasonable belief that
a criminal prosecution should be initiated or continued because that prosecution could succeed.”
McClellan v. Smith, No. 02-CV-1141, 2009 WL 3587431, at *6 (N.D.N.Y. Oct. 26, 2009).
Where, as it seems to be in this case, the arrest was not pursuant to a warrant, the Court must
evaluate whether there was “probable cause to file the complaints that commenced the criminal
proceeding against Plaintiff.” Lenhard v. Dinallo, No. 08-CV-165, 2011 WL 4592804, at *7
(N.D.N.Y. Sept. 30, 2011). “The probable cause to prosecute inquiry focuses solely on those
facts available to the officer leading up to, and at the time of, the arraignment.” Simons v. New
York, 472 F. Supp. 2d 253, 264 (N.D.N.Y. 2007). If an officer has “knowledge of facts, actual or
apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for
prosecuting the defendant in the manner complained of,” then probable cause for the prosecution
exists. Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994) (quoting Pandolfo v. U.A. Cable
Sys. of Watertown, 568 N.Y.S.2d 981, 982 (App. Div. 1991)). “The question of whether or not
14

probable cause existed may be determinable as a matter of law if there is no dispute as to the
pertinent events and the knowledge of the officers.” Lenhard, 2011 WL 4592804, at *7 (quoting
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
In his Complaint, Plaintiff states that Bauer and Loconte caused the criminal charges to
be instituted against him. Compl. ¶ 76. After his arrest, Plaintiff was taken to court and was seen
by the presiding judge without an attorney present. Id. ¶ 56. The presiding judge told Plaintiff
“you’re going to jail,” denied bail, and ordered a mental examination to be performed. Id. The
criminal charges brought against Plaintiff were stalking, harassment, menacing, and obstructing
governmental administration. Id. ¶ 72. As described previously, these charges were instituted on
the basis of interactions with Bauer that appear to be lawful and benign. Plaintiff’s Complaint
pleads a lack of probable cause for his arrest, and it does not seem that any facts came to light
between the time of Plaintiff’s arrest and arraignment that would give the prosecutor probable
cause for the charges brought against him.
Additionally, Plaintiff satisfactorily pleaded a favorable termination. Plaintiff stated that
the charges against him “were dismissed and withdrawn with prejudice upon decision or motion
(Order) before Honorable Justice William M. Virkler.” Compl. ¶ 32.
As to malice, Rule 8 requires that where state of mind is an element of a claim, that state
of mind must be “plausibly pleaded and supported by factual allegations.” Biro v. Conde Nast,
807 F.3d 541, 544 (2d Cir. 2015). However, “a lack of probable cause generally creates an
inference of malice.” Pizarro v. City of New York, No. 14-CV-507, 2015 WL 5719678, at *4
(E.D.N.Y. Sept. 29, 2015) (quoting Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003)).
As stated previously, Plaintiff has pleaded a lack of probable cause. In addition, “[a]lthough
15

actual malice is subjective, a court typically will infer actual malice from objective facts.”
Connolly v. Wood-Smith, No. 11-CV-8801, 2012 WL 7809099, at *9 (S.D.N.Y. May 14, 2012)
(quoting Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir. 2000)), adopted as
modified, 2013 WL 1285168 (S.D.N.Y. Mar. 28, 2013); see also Rentas v. Ruffin, 816 F.3d 214,
221–22 (2d Cir. 2016) (finding actual malice inferred based on objective facts and lack of
probable cause). Plaintiff stated that he believed Bauer to be “infuriated” by a statement made by
Plaintiff during their first encounter. Compl. ¶ 41. Plaintiff’s Complaint describes that all
subsequent interactions with Bauer were cordial. After Plaintiff was told he could not see Bauer
on May 9, 2013, since Plaintiff was not on the docket, Bauer approached Plaintiff in his vehicle
in the parking lot. Compl. ¶ 50. During that conversation, Bauer inquired as to whether Plaintiff
wanted to have his traffic ticket reduced, and Plaintiff responded affirmatively. Id. Bauer gave
Plaintiff a new court date for resolving the ticket, and then Plaintiff left the parking lot and
proceeded home. Id. ¶ 52. Plaintiff was then subsequently accused of stalking, harassment,
menacing, and obstruction of governmental administration. Id. ¶ 72. The fact that Plaintiff was
charged with these crimes, without probable cause, after supposedly benign interactions with
Bauer is sufficient to suggest that the charges were maliciously commenced.
Accordingly, Plaintiff’s claim of malicious prosecution survives Defendants’ Motion to
Dismiss.
c. Unlawful Strip Search
The Supreme Court has held that strip searches conducted on detainees who would be
admitted to the general population of a jail could be constitutional. Florence v. Bd. of Chosen
Freeholders, 132 S. Ct. 1510, 1522–23 (2012). The Court articulated that “a regulation impinging
16

on an inmate’s constitutional rights must be upheld ‘if it is reasonably related to legitimate
penological interests.’” Id. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Florence
“was not a license for prison staff to conduct strip searches anytime, anywhere, or in any
manner.” George v. City of New York, No. 12-CV-6365, 2013 WL 5943206, at *7 (S.D.N.Y.
Nov. 6, 2013). The decision in Florence was limited in its scope and refrained from discussing
the constitutionality of strip searches involving “intentional humiliation and other abusive
practices.” Florence, 132 S. Ct. at 1523.
Defendants claim that the Supreme Court’s decision in Florence is a barrier to Plaintiff’s
claim of unlawful strip search and that Plaintiff has failed to plead facts that suggest that the strip
search was unreasonable or unrelated to legitimate penological interests. Mem. at 15–16. The
Court disagrees. Plaintiff’s Complaint alleged that he was forced to strip while corrections
officers laughed and pointed an object at Plaintiff. Compl. ¶¶ 58–59. Additionally, the facts
indicate that Plaintiff was strapped to a chair wearing a clear gown and wheeled “to the lowest
floor of the jail, and he was left to sit in the chair, causing Plaintiff to begin to suffer from an
anxiety attack and trouble breathing.” Id. ¶ 61. On its face, the method of strip searching
described by Plaintiff appears to be wholly unrelated to legitimate penological goals. See JeanLaurent v. Wilkinson, 438 F. Supp. 2d 318, 323 (S.D.N.Y. 2006) (holding that a strip search
violates the Fourth Amendment “if it is unrelated to any legitimate penological goal or if it is
designed to intimidate, harass, or punish”); see also George, 2013 WL 5943206, at *8 (denying
defendants’ motion to dismiss where the complaint plausibly alleged that the purpose of the strip
search was to make a spectacle and publicly humiliate prisoner plaintiffs). Therefore, Plaintiff
has pleaded facts sufficient to indicate that the manner and circumstances of the strip search were
17

unreasonable. The Court denies Defendants’ Motion to Dismiss Plaintiff’s claim of unlawful
strip search against the individual correctional officers.
d. Supervisory Liability
42 U.S.C. § 1983 does not allow for supervisory liability based upon a respondeat
superior theory. The plaintiff must show that “each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. “Each
government official is only liable for his or her own misconduct.” Id. at 677. Personal
involvement may be shown by alleging
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by failing to
act on information indicating that unconstitutional acts were
occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).4

4

The Second Circuit has not yet addressed how the Supreme Court’s decision in Iqbal
may have affected the standards articulated in Colon for establishing supervisory liability. See
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal may have
“heightened the requirements for showing a supervisor’s personal involvement with respect to
certain constitutional violations,” but not reaching the impact of Iqbal on Colon because the
complaint “did not adequately plead the Warden’s personal involvement even under Colon”); see
also Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (expressing “no view on the extent
to which [Iqbal] may have heightened the requirements for showing a supervisor’s personal
involvement with respect to certain constitutional violations”) (citing Grullon, 720 F.3d at 139).
The Court assumes here that Colon remains good law.
18

Plaintiff’s Complaint fails to state exactly which supervisors violated his constitutional
rights and the nature of their involvement.5 Plaintiff makes statements such as “supervisory
Defendants were personally involved in failing to take preventative and remedial measures to
guard against such constitutional deprivations, such that Plaintiff would not have been injured.”
Compl. ¶ 137. Additionally, the Complaint states without further elaboration that the
“supervisory Defendants were personally involved in additional deprivation of Plaintiff’s rights.”
Id. ¶ 138. “‘Conclusory statements and formulaic recitations of the Colon factors [that are]
wholly unsupported by facts,’ present no factual support for a supervisory liability claim.” GrayDavis v. New York, No. 14-CV-1490, 2015 WL 2120518, at *8 (N.D.N.Y. May 5, 2015)
(alteration in original) (quoting Eldridge v. Kenney, No. 11-CV-6459, 2014 WL 2717982, at *3
(W.D.N.Y. June 16, 2014)). Because Plaintiff has failed to plead facts that meet the plausibility
standard, his claim for supervisory liability is dismissed.
e. Malicious Abuse of Process
To state a claim for malicious abuse of process, a plaintiff must allege that a defendant
“(1) employ[ed] regularly issued legal process to compel performance or forbearance of some act
(2) with intent to do harm without excuse [or] justification, and (3) in order to obtain a collateral
objective that is outside the legitimate ends of the process.” Hoffman v. Town of Southampton,
523 F. App’x 770, 771 (2d Cir. 2013) (summary order) (alterations in original) (quoting Savino
v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003)).

5

Plaintiff names Sergeant John Doe as a defendant but fails to mention Sergeant John
Doe anywhere else in his Complaint. As Plaintiff has alleged no personal involvement of
Sergeant John Doe in any deprivation of Plaintiff’s constitutional rights, Sergeant John Doe is
terminated as a Defendant.
19

“The crux of a malicious abuse of process claim is the collateral objective element.”
McHenry v. Bell, No. 13-CV-657, 2015 WL 2354438, at *9 (N.D.N.Y. May 15, 2015). The
Court agrees with Defendants’ statement that Plaintiff has failed to adequately plead the element
of a collateral objective. Mem. at 9. In pleading malicious abuse of process, Plaintiff recites the
elements and states that Defendants “arrested Plaintiff and/or caused the arrest, of Plaintiff in
order to obtain a collateral objective outside the legitimate ends of legal process.” Compl. ¶ 86. A
generous reading of the Complaint suggests that Plaintiff believes the charges were brought in
retaliation for Plaintiff’s insinuation to Bauer that there was a lot of fraud in the county.
“[I]t is not sufficient for a plaintiff to allege that the defendants were seeking to retaliate
against him by pursuing his arrest and prosecution. Instead, he must claim that they aimed to
achieve a collateral purpose beyond or in addition to his criminal prosecution.” Savino, 331 F.3d
at 77. “The gist of the action for abuse of process lies in the improper use of process after it is
issued.” Sullivan v. Laplante, No. 03-CV-359, 2005 WL 1972555, at *8 (N.D.N.Y. Aug. 16,
2005) (quoting Dean v. Kochendorfer, 143 N.E. 229, 231 (N.Y. 1924)). The most that can be
inferred from Plaintiff’s Complaint is that Bauer had improper motives in initiating legal process.
There are no pleaded facts indicating improper use of process after it was issued. There are no
facts indicating a collateral objective. Plaintiff properly pleaded a claim for malicious
prosecution, but is unable to do the same for malicious abuse of process. However, while
Plaintiff’s malicious abuse of process claim was pleaded insufficiently, Plaintiff omits the claim
in his Proposed Amendment Complaint. Therefore, Defendants’ Motion to Dismiss the claim of
malicious abuse of process is denied as moot.
f. Attorney Fees
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Plaintiff asserts a cause of action for attorney’s fees. Compl. ¶ 143–44. As Defendants
correctly observe, attorney fees are a remedy, not a cause of action. See Carvel v. Franchise
Stores Realty Corp., 08-CV-8938, 2009 WL 4333652, at *9 (S.D.N.Y. Dec. 1, 2009) (“Section
1988 only grants attorneys’ fees to a prevailing party under §§ 1981–83, it does not create an
independent cause of action.”). Therefore, without addressing the possibility of attorney’s fees as
a remedy, Plaintiff’s standalone cause of action for attorney’s fees is dismissed.
g. Prosecutorial Immunity for Defendant Bauer
A prosecutor enjoys absolute immunity for the “initiation and pursuit of a criminal
prosecution, including presentation of the state’s case at trial.” Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993). “The doctrine of absolute prosecutorial immunity creates a formidable obstacle
for a plaintiff seeking to maintain a civil rights action against a district attorney, as it provides
that ‘prosecutors are absolutely immune from liability under § 1983 for their conduct in
“initiating a prosecution and in presenting the State’s case,” insofar as that conduct is “intimately
associated with the judicial phase of the criminal process.”’” Pinaud v. County of Suffolk, 52
F.3d 1139, 1147 (2d Cir. 1995) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)). So long as
the actions of a district attorney are clearly within the “judicial phase of the criminal process,” he
is absolutely immune to civil suits to damages. Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir.
1990) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). However, absolute immunity
does not cover all conduct by a prosecutor. “When a prosecutor is engaged in administrative or
investigative activities, he is entitled only to qualified immunity, which requires a showing that
his acts were objectively reasonable.” Day, 909 F.2d at 77. “A prosecutor is functioning in an
investigatory capacity in a criminal case up and until he or she has gathered sufficient evidence to
21

demonstrate probable cause and effect an arrest.” Tellier v. Petrillo, No. 95-CV-211, 1996 WL
734885, at *2 (S.D.N.Y. Dec. 23, 1996). “When a prosecutor performs the investigative
functions normally performed by a detective or police officer, it is ‘neither appropriate nor
justifiable that, for the same act, immunity should protect the one and not the other.’” Buckley,
509 U.S. at 273 (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973)).
At this stage in litigation, the Court is unable to determine whether Bauer is entitled to
prosecutorial immunity. While Plaintiff’s Complaint and subsequent materials do not specify in
detail the precise actions taken by Bauer, Plaintiff does accuse Bauer of actions that are outside
of the judicial process. Plaintiff asserts that Bauer ordered the state police or Oneida County
police to follow Plaintiff in a car. Proposed Am. Compl. ¶ 52. No arrest was effectuated at that
time, which suggests that this event was prior to any potential probable cause that may have
arisen later. If Bauer ordered officers to follow Plaintiff before probable cause existed for an
arrest, Bauer was acting as an investigator and not as an advocate. “[W]hen a prosecutor
manufactures evidence for the purpose of obtaining probable cause to arrest a suspect,” the
actions are deemed to be investigatory in nature and cannot be “transformed into advocacy
simply by being characterized as work in preparation for trial.” Hill v. City of New York, 45 F.3d
653, 662–63 (2d Cir. 1995). “[A] prosecutor is not entitled to absolute immunity in situations
such as those where he ‘supervises, conducts, or assists in the investigation of a crime, or gives
advice as to the existence of probable cause to make a warrantless arrest . . . .’” Morris v. Martin,
No. 16-CV-601, 2016 WL 4059209, at *6 (N.D.N.Y. June 21, 2016) (quoting Richards v. City of
New York, No. 97-CV-7990, 1998 WL 567842, at *2 (S.D.N.Y. Sept. 3, 1998)), adopted, 2016

22

U.S. Dist. LEXIS 98404 (N.D.N.Y. July 28, 2016). The Court therefore finds that Bauer is not
currently entitled to absolute prosecutorial immunity.6
B. New York State Tort Claims
Plaintiff alleged the following state claims against Defendants: (1) false imprisonment;
(2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress;
(4) negligence; (5) negligence in hiring, screening, retention, supervision, and training;
(6) respondeat superior liability; and (7) trespass under color of state law.
Defendants observe that Plaintiff has failed to comply with General Municipal Law
section 50-e, which requires that notice of a claim be given within ninety days after the claim
arises. N.Y. Gen.Mun. Law § 50-e; Mem. at 5. “As a ‘condition precedent’ to commencing a tort
action against New York municipalities, or any of their officers, agents, or employees, New York
General Municipal Law § 50-e requires plaintiffs to file a notice of claim within ninety days after
the claim arises.” Olsen v. County of Nassau, No. 05-CV-3623, 2008 WL 4838705, at *1
(E.D.N.Y. Nov. 5, 2008) (citing Chesney v. Valley Stream Union Free Sch. Dist., No.
05-CV-5106, 2006 WL 2713934, at *8 (E.D.N.Y. Sept. 22, 2006)). “Notice of claim
requirements are generally strictly construed, and failure to comply with the requirements
typically results in dismissal due to failure to state a cause of action.” Chesney, 2006 WL
27139345, at *9 (citing Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793–94 (2d Cir.
6

Neither party has presented arguments as to whether individual Defendants are entitled
to qualified immunity. However, it has been noted that, “[g]iven the factual nature of the
qualified immunity inquiry, it is an issue ‘often best decided on a motion for summary judgment
when the details of the alleged deprivations are more fully developed.’” Rubeor v. Town of
Wright, No. 13-CV-612, 2016 WL 3199510, at *3 (N.D.N.Y. June 8, 2016) (Kahn, J.) (quoting
Walker v. Schult, 717 F.3d 119, 129 (2d Cir. 2013)). Therefore, the Court declines to address
qualified immunity at this point.
23

1999)); see also Dzwonczyk, 710 F. Supp. 2d at 271–72 (dismissing state law tort claims due to
failure to comply with section 50-e). Plaintiff has withdrawn his state tort claims in his Proposed
Amended Complaint. As a result, Defendants’ Motion to dismiss the state claims is denied as
moot.
C. Plaintiff’s Motion to Amend
Plaintiff’s Proposed Amended Complaint specifies that it was either Loconte or Police
Officer John Doe who arrested Plaintiff. Proposed Am. Compl. ¶ 53. Specifically, Plaintiff adds
facts alleging the personal involvement of Bauer that would vitiate Bauer’s entitlement to
prosecutorial immunity. Proposed Am. Compl. ¶ 52. Plaintiff’s Proposed Amended Complaint is
still sparse, and barely passes the threshold of plausibility in regard to the claims that do manage
to survive Defendants’ Motion to Dismiss. However, based upon the standard for amendments
stated in Foman, Plaintiff is entitled to amend his Complaint. Discovery may result in Plaintiff
being able to add to the narrative of the circumstances surrounding his claim. Plaintiff is also
permitted to amend his Complaint by adding his claims of excessive force and failure to
intervene for the following reasons.
1. Claim of Excessive Force
There appears to be some general confusion between the parties as to what constitutional
amendment applies to Plaintiff’s claim of excessive force. Plaintiff has pleaded that excessive
force during his strip search was in violation of his Fourth Amendment right to be free from
unreasonable searches, seizures, and excessive force by officers. Proposed Am. Compl. ¶ 110.
Defendants address the constitutionality of the strip search under the Eighth Amendment as well

24

as the Fourth, implying that his alleged strip search might be a violation of the Eighth
Amendment. Reply at 6.
The correct authority for Plaintiff’s excessive force claim is the Due Process Clause of
the Fourteenth Amendment. The Eighth Amendment would not apply in this matter, as “the State
does not acquire the power to punish with which the Eighth Amendment is concerned until after
it has secured a formal adjudication of guilt in accordance with due process of law.” Ingraham v.
Wright, 430 U.S. 651, 671 n.40 (1977). According to the Complaint, Plaintiff at no point was
adjudged guilty, and certainly not at the point at which the strip search allegedly occurred.
Instead, courts have evaluated excessive force claims by pretrial detainees under the Due Process
Clause of the Fourteenth Amendment. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
However, the standards for a claim of excessive force under the Fourteenth Amendment are
substantively the same as those brought under the Eighth Amendment. Bellatto v. County of
Orange, 248 F. App’x 232, 235 (2d Cir. 2007).
To prevail in an Eighth Amendment claim of excessive force, “the use of force ‘must be,
objectively, sufficiently serious,’ and ‘the prison official involved must have a sufficiently
culpable state of mind.’” Id. (quoting Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)).
The objective component is “contextual and responsive to ‘contemporary standards of decency.’”
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Estelle v. Gamble, 429 U.S. 97, 103
(1976)). While there is generally some degree of injury required, “the injury need not be ‘serious’
or ‘significant’ ‘as long as the amount of force used is not de minimis.’” Bellotto, 248 F. App’x
at 235 (quoting United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999)). For strip searches it is
required that a plaintiff “allege that the defendants engaged in egregious conduct.” Holland v.
25

City of New York, No. 14-CV-5517, 2016 WL 3636249, at *9 (S.D.N.Y. June 24, 2016). “Even
where inmates allege aggressive or inappropriate behavior during strip searches, courts are
reluctant to find that such activity rises to the objectively serious level of an Eighth Amendment
violation.” Vaughn v. Strickland, No. 12-CV-2696, 2013 WL 3481413, at *3 (S.D.N.Y. July 11,
2013). The subjective element is based upon “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S.
at 7.
Plaintiff’s Complaint contended that the strip search occurred “for the purpose of
harassing and intimidating Plaintiff [by] forcing him to remove his clothing with other officers
present as they laughed and mocked him then forcibly pointing an object in Plaintiff’s face and
forcibly strapping him down to a wheeled chair and wheeling him to the basement of the facility
without any food or drink for 24 hours.” Proposed Am. Compl. ¶ 111. The actions alleged by
Plaintiff do not rise to the level of a constitutional violation. Plaintiff does not assert any actual
physical contact between his person and whatever object was pointed in his face. Physical contact
may not be necessary for an excessive force claim to succeed. See, e.g., Cortez v. McCauley, 478
F.3d 1108, 1131 (10th Cir. 2007) (“Physical contact is not required for an excessive force
claim—patently unreasonable conduct is.”); Snoussi v. Bivona, No. 05-CV-3133, 2008 WL
3992157, at *5–6 (E.D.N.Y. Aug. 21, 2008) (acknowledging that the law is unsettled as to
whether physical contact is necessary); Duggan v. City of League City, 975 F. Supp. 968, 971
(S.D. Tex. 1997) (“[T]he law is uncertain regarding whether an excessive force claim can arise
without physical injury to the Plaintiff.”). However, Plaintiff has not pleaded sufficiently

26

egregious conduct flowing solely from the strip search to rise to the level of a Fourteenth
Amendment excessive force claim.
Courts have routinely declined Eighth Amendment claims arising from strip searches,
even where the strip search was determined to be for the sole purpose of humiliation. George v.
City of New York, No. 12-CV-6365, 2013 WL 5943206, at *9 (S.D.N.Y. Nov. 6, 2013).
Furthermore, in George, the court noted that “the law of this Circuit indicates that a strip search
without elements of sexual harassment, excessive force, or indeed any physical contact at all is
not ‘sufficiently serious’ under the objective prong to support a claim . . . under the Eighth
Amendment.” Id. at *10. Plaintiff has not plausibly alleged facts suggesting sexual harassment or
any physical contact. As written, Plaintiff’s Complaint suggests that Plaintiff stripped under the
threat of whatever object the correctional officers were holding, but there does not appear to have
been any physical contact between Plaintiff and either the object or the correctional officers.
Proposed Am. Compl. ¶ 56. On its own, the strip search would not be “objectively, sufficiently
serious” as to rise to the level of an Eighth—and therefore Fourteenth—Amendment excessive
force claim.
However, Plaintiff also alleged that his constitutional rights were violated by correctional
officers “forcibly strapping him down to a wheeled chair and wheeling him to the basement of
the facility without any food or drink for 24 hours.” Proposed Am. Compl. ¶ 111. “While no
court has explicitly held that denial of food is a per se violation of a prisoner’s Eighth
Amendment rights, under certain circumstances a substantial deprivation of food may well be
recognized as being of constitutional dimension.” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.
1983) (citing Moss v. Ward, 450 F. Supp. 591, 596–97 (W.D.N.Y. 1978)). Although neither the
27

strip search, nor the deprivation of food by itself would generally constitute a claim of excessive
force, in the aggregate the events of Plaintiff’s pretrial detention are sufficient to plead a claim of
excessive force. See Ziemba v. Armstrong, 343 F. Supp. 2d 173, 185 (“A twenty-two hour
restraint with no penal justification, no food or water, and no access to the bathroom would
constitute excessive force.”). The Court therefore allows Plaintiff to amend his Complaint to add
a claim of excessive force.
2. Failure to Intervene
Correctional officers can be held responsible for failing to intervene when they witness a
fellow officer violating the constitutional rights of an inmate. Philips v. Lecuyer, No. 08-CV-878,
2013 U.S. Dist. LEXIS 36452, *14 (N.D.N.Y. Feb. 19, 2013). An officer has failed to intervene
when “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a
reasonable person in the officer’s position would know that the victim’s constitutional rights
were being violated; and (3) the officer does not take reasonable steps to intervene.” JeanLaurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008).
Plaintiff’s failure to intervene claim appears to be based upon the excessive force claim.
Proposed Am. Compl. ¶ 117. Plaintiff’s Proposed Amended Complaint stated that “Defendants
Correction’s Officer Chapman and Corrections Officers John Doe 1–6 were present at said times
and places.” Id. Plaintiff’s Proposed Amended Complaint is sparse in pleading this claim.
However, if, as Plaintiff alleged, other correctional officers were present during the events giving
rise to Plaintiff’s excessive force claim, then Plaintiff may also have a claim for failure to
intervene. “Whether an officer had sufficient time to intercede or was capable of preventing the
harm being caused by another officer is an issue of fact for the jury, unless, considering all the
28

evidence, a reasonable jury could not possibly conclude otherwise.” Anderson v. Branen, 17 F.3d
552, 557 (2d Cir. 1994). Plaintiff claimed that he was strapped to a chair for twenty-four hours
and was denied meals during that time. Proposed Am. Compl. ¶ 61–62. There are sufficient facts
to indicate that a jury could find that other correctional officers had sufficient time to intercede.
Therefore, Plaintiff is allowed to amend his Complaint to include a claim of failure to intervene.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 10) is GRANTED in part as

to claims against Oneida County and its departments, claims of supervisory liability, and attorney
fees, and DENIED in part, as to Plaintiff’s claims of malicious prosecution, false arrest, and
unlawful strip search against the individual Defendants in their individual capacities; and it is
further
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 10) is DENIED as moot in
part as to all New York state law tort claims and claims of malicious abuse of process; and it is
further
ORDERED, that Oneida County, Oneida County District Attorney’s Office, Oneida
County Police Department, Oneida County Sheriff’s Department, Oneida County Correctional
Facility, and Sergeant John Doe are terminated as Defendants; and it is further
ORDERED, that Plaintiff’s Motion to Amend (Dkt. No. 19) is GRANTED; and it is
further

29

ORDERED, that Plaintiff file an amended complaint within thirty (30) days consistent
with this Memorandum-Decision and Order that will be deemed the operative pleading in this
action; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

August 12, 2016
Albany, New York

30