Brown v. Utica Police Department et al

Filing 9

ORDER & REPORT AND RECOMMENDATIONS as to Kelvin C. Brown: IT IS ORDERED that the # 7 MOTION for Leave to Proceed in forma pauperis is GRANTED, further IT IS ORDERED that the # 6 MOTION to Appoint Counsel is DENIED WITHOUT PREJUDICE AT THIS TIME, It is RECOMMENDED that the # 1 Complaint filed by Kelvin C. Brown be DISMISSED as noted herein and Plaintiff be allowed to file a proposed Amended Complaint for review. (Objections to R&R due by 12/4/2017, Case Review Deadline 12/7/2017). Signed by US Magistrate Judge Andrew T. Baxter on 11/16/2017. (Copy served upon the pro se plaintiff via regular mail)(jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KEVIN C. BROWN,
Plaintiff,
v.

6:17-CV-1190
(BKS/ATB)

UTICA POLICE DEPARTMENT, et al.,
Defendants.
KEVIN C. BROWN, Plaintiff, pro se
ANDREW T. BAXTER
United States Magistrate Judge
ORDER and REPORT-RECOMMENDTION
The Clerk has sent to the court for review a complaint brought pursuant to 42
U.S.C. § 1983, originally filed on October 27, 2017 by pro se plaintiff Kevin C. Brown.
(Dkt. No. 1 (“Compl.”)). On October 30, 2017, the Honorable Brenda K. Sannes
ordered that the case be administratively closed because plaintiff’s IFP application was
incomplete. (Dkt. No. 4). On November 13, 2017, plaintiff filed a “supplemental”
motion to proceed IFP, together with the properly completed forms, and a motion for
appointment of counsel. (Dkt. Nos. 6, 7). Based on the appropriate filings by plaintiff
Judge Sannes ordered reopening of the action. (Dkt. No. 8). On November 14, 2017,
this case was sent to me for initial review.
I.

IFP Application
As to plaintiff’s IFP application, the Court finds that plaintiff has demonstrated

economic need and has now filed the appropriate forms. As a result, plaintiff's motion
to proceed IFP is granted.
In addition to determining whether plaintiffs meet the financial criteria to

proceed IFP, the court must also consider the sufficiency of the allegations set forth in
the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss
the case at any time if the court determines that the action is (i) frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).
In determining whether an action is frivolous, the court must consider whether
the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of
court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S.
at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has
a duty to show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been
served and has had an opportunity to respond, the court still has a responsibility to
determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)
(finding that a district court may dismiss a frivolous complaint sua sponte even when
plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain
sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,

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550 U.S. at 555).
II.

Complaint
Plaintiff alleges that on August 14, 2017, at 11:30 a.m. in Utica, New York, he

was “stopped and detained” by Officer Mahay and immediately put in handcuffs.
(Complaint (“Compl.”) ¶ 6 at 4).1 Plaintiff states that he was told that the arrest was
part of an investigation. (Id.) Soon, thereafter, defendants Sergeant Mark Fields and
Investigator Paul Paladino of the Utica Police arrived on the scene, accompanied by
Investigator David Desens. (Id. at 4-5). Plaintiff claims that defendant Paladino
approached plaintiff and began frisking him, “aggressively focusing on my buttocks
area.” (Id. at 5). Plaintiff claims that defendant Paladino stuck his thumb in the
“middle” of plaintiff’s buttocks, while he and defendant Paladino were standing on the
street, in plain view of the public. (Id. at 6).
Plaintiff states that he began asking bystanders for help, and defendant Paladino
responded by placing plaintiff in the back seat of Police Car 25 and instructing Officer
Mahay to drive plaintiff to the Utica Police Station. (Id.) Defendant Paladino followed
in his own vehicle. Plaintiff admits that, during the ride to the police station, he “began
stuffing evidence [he] had consealed [sic] in [his] buttock cavity area into my anal
cavity/rectum per the rear of my pants.” (Id.) Officer Mahay looked in his rear-view
mirror, observed plaintiff moving around, and told him to “knock it off.”
Plaintiff claims that Officer Mahay then used his radio and pulled his car over in
front of the Stanley Theater in Utica. Defendant Paladino and defendant Mark Fields
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The court will cite to the pages of the complaint that have been assigned by the court’s
electronic filing system CM/ECF.
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pulled up behind Officer Mahay’s car. The officers had a discussion outside the
vehicles, and then opened the car door and put a seatbelt around plaintiff. Defendant
Paladino then told plaintiff that the “Butt trick” would not work this time.2 (Id.)
Plaintiff claims that when they arrived at the police station, both hands were handcuffed
to a bench in a holding cell, where plaintiff was forced to wait for at least an hour while
defendant Paladino attempted to obtain a warrant to search plaintiff’s body. (Id. at 8).
Plaintiff alleges that he was under constant surveillance during that time. (Id.)
Plaintiff claims that when defendant Paladino returned with a warrant, plaintiff
was escorted to a cell at the back of the station and instructed to sit on a bed. Plaintiff
claims that the handcuffs were never removed. (Id.) Plaintiff then describes the
subsequent search in detail. (Id. at 8-9). Without reciting each detail, the court notes
that plaintiff claims that the body cavity search was improperly conducted. Plaintiff
alleges that he was forced to bend over multiple times, was left “bottomless” with only
a T-Shirt, and was handcuffed the entire time.
Plaintiff alleges that when he refused to cooperate with the officers, defendant
Paladino “aggressively got in [plaintiff’s] face and told him that the officers knew that
he had drugs in his anal cavity, and either plaintiff could remove them, or defendant
Paladino was going to remove them himself. (Id. at 10). Ultimately, plaintiff claims
2

Apparently, this was not the first time that plaintiff attempted to conceal contraband in his
rectum. (Id.) Plaintiff spends the next page and one half describing the previous incident which
occurred in 2013 and involved defendant Paladino and someone named “Peter” Paladino. (Compl. ¶ 6
at 6-7). The prior incident ended when plaintiff arrived at the Utica Police Station, and “the Body
Warrant was properly executed by Inv. Peter Paladino.” (Id. at 7). Plaintiff claims that although the
officers could see the evidence, and instructed plaintiff to remove it, when he refused, Inv. Peter
Paladino would not let defendant Paul Paladino retrieve it. As a result, plaintiff states that he plead
guilty to “a fine in 2014.” (Id.) Plaintiff then continues with the facts of the current incident. (Id.)
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that defendant Paladino reached into plaintiff’s rectum to retrieve the contraband, while
he was handcuffed and restrained by Officer Mahay and Investigator Desens.3
Plaintiff states that the entire incident was degrading. He was disrobed by
defendant Paladino, left with no pants or underwear, while being held by two police
officers in a cell for at least half an hour, forced to bend over multiple times , and
eventually was the subject of a sexual assault by defendant Paladino. (Id.) Plaintiff
claims that defendant Fields stood and watched the intrusion without acting or
remedying the situation. (Id. at 11). Plaintiff claims that the officers lied about their
conduct in their report of the incident. Plaintiff alleges that the “matter” is with
“Internal Affairs.” (Id.) Plaintiff claims that the Utica Police Department has failed to
properly train and supervise its officers because this incident was allowed to occur. For
a more complete recitation of the facts, reference is made to the complaint herein.
Plaintiff claims that he has suffered serious mental and physical damage as a
result of this incident and requests injunctive as well as substantial monetary relief.
Plaintiff asks that cameras be provided so that strip searches may be recorded. (Compl.
¶ 9 at 12).
The complaint contains three causes of action. Plaintiff alleges that defendant
Paladino violated his Fourth (First Cause of Action) and Eighth (Second Cause of
Action) Amendment rights. (Compl. ¶ 7 at 5). Plaintiff also claims that his Fourteenth
Amendment right to Equal Protection was violated by defendant Fields (Third Cause of
Action).

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Neither of these individuals appear to have been named as defendants.
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I.

Utica Police Department
Under New York law, departments, like the Utica Police Department, that are

merely administrative arms of a municipality, do not have a legal identity separate from
the municipality, and may not sue or be sued. Hayes v. County of Sullivan, Nos.
07-CV-667; 09-CV-2071, 2012 WL 1129373, at *24 (S.D.N.Y. March 30, 2012) (citing
inter alia Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002)).
Plaintiff may not sue the Utica Police Department.
Plaintiff does appear to be alleging a failure to train in this action. (Compl. at 11).
However, plaintiff’s allegations of failure to train and supervise are conclusory at this
time. Conclusory allegations are insufficient to state a claim under section 1983. See
Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987). Thus, the court will recommend
dismissing the action as against the Utica Police Department, but without prejudice to
plaintiff amending his complaint to add the City of Utica as a defendant if he properly
alleges a policy, custom, or failure to train.4

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A municipality may only be named as a defendant in certain circumstances. In Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court outlined the limited circumstances under
which a municipality may be liable under Section 1983. A municipality may not be held liable solely
because it employs a tortfeasor. LaVertu v. Town of Huntington, No. 13-CV-4378, 2014 WL 2475566,
at *3 (E.D.N.Y. Apr. 4, 2014) (citing inter alia Los Angeles County, Cal. v. Humphries, __ U.S. __,
131 S. Ct. 447, 452 (2010)), (Rep.-Rec.), adopted in relevant part, 2014 WL 2506217 (E.D.N.Y. June
2, 2014). Only when the municipality, through the execution of its policies, actually deprives an
individual of his constitutional rights, is it liable for the injury. Monell, 436 U.S. at 694.
To establish municipal liability, the policy must actually cause the violation of constitutional
rights; it must be the moving force behind the violation. Id.; Dominguez v. Beame, 603 F.2d 337, 341
(2d Cir. 1979). Official policy includes the decisions of a government’s lawmakers, the acts of
policymaking officials, and practices that are so widespread as to “practically have the force of law.”
Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability may also be shown by establishing
that a policymaking official ordered or ratified the employees’ actions either expressly or tacitly.
Finally, municipal liability can, under certain circumstances, be based upon a failure to properly train
the municipality’s employees. See City of Canton v. Harris, 489 U.S. 378, 387-90 (1989).
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II.

Eighth Amendment
A.

Legal standards

Eighth Amendment claims are normally limited to post-conviction situations,
while pre-trial detainees and free citizens are protected by the Fourth and Fourteenth
Amendments. See Holland v. City of New York, 197 F. Supp. 3d 529, 542, 545
(S.D.N.Y. 2016) (citing inter alia Katz v. United States, 389 U.S 347, 350 (1967); City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). This applies to claims of
unreasonable searches and seizures as plaintiff raises in this complaint. Id.
B.

Application

Plaintiff’s first and second causes of action assert essentially the same factual
basis against the defendants, but plaintiff’s first cause of action purports to be based
upon the Fourth Amendment, while the second cause of action asserts the Eighth
Amendment. (Compl. ¶ 7 at 5). To the extent that plaintiff asserts the Eighth
Amendment as a basis for this action, that basis may be dismissed. In addition,
plaintiff’s Fourth Amendment claim encompasses any claim for unreasonable search
and seizure that he would have under the Fourteenth Amendment. See Green v. Martin,
224 F. Supp. 3d 154, 170 (D. Conn. 2016). Thus, plaintiff’s first two cause of action
may proceed on all of plaintiff’s facts, but only under the Fourth Amendment.
III.

Equal Protection
A.

Legal Standards

The Equal Protection Clause of the Fourteenth Amendment requires that the
government treat all similarly situated people alike. Nicholas v. Tucker, 114 F.3d 17, 20

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(2d Cir. 1997). Generally, the equal protection clause has been “concerned with
governmental ‘classifications that affect some groups of citizens differently than
others.’” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008).
B.

Application

Plaintiff’s third cause of action alleges that his Fourteenth Amendment right to
Equal Protection was violated when he was “singled out” by defendants and subjected
to arbitrary, capricious, and irrational treatment in a custodial setting, under the
supervision of defendant Fields. (Compl. ¶ 7 - Third Cause of Action at 5). Although
plaintiff states that he was “singled out,” he does not claim that any other similarly
situated individual was treated differently than he was treated. Thus, plaintiff’s
conclusory Equal Protection claim may be dismissed for failure to state a claim. The
court will recommend dismissing this cause of action without prejudice to plaintiff
amending his complaint to state a viable Equal Protection claim.
IV.

Appointment of Counsel
A.

Legal Standards

Unlike criminal defendants, IFP plaintiffs bringing civil actions have no
constitutional right to the appointment of counsel. Wali v. One Source Co., No. 077550, 2009 WL 3170110, at *1 (S.D.N.Y. Sept. 30, 2009) (citation omitted).
“Appointment” of counsel in a civil action involves the court requesting an attorney to
represent an IFP party pro bono under 28 U.S.C. § 1915(a)(1). Id. In determining
whether to make such a request for the indigent party, courts do not utilize a bright-line
test. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of

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factors must be carefully considered.
As a threshold matter, the court should ascertain whether the indigent’s claims
seem likely to be of substance. If so, the court should then consider:
The indigent’s ability to investigate the crucial facts, whether conflicting
evidence implicating the need for cross examination will be the major
proof presented to the fact finder, the indigent’s ability to present the
case, the complexity of the legal issues and any special reason in that
case why appointment of counsel would be more likely to lead to a just
determination.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting
Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)). This is not to say that all, or
indeed any, of these factors are controlling in a particular case. Rather, each case must
be decided on its own facts. Velasquez v. O’Keefe, 899 F. Supp. 972, 974 (N.D.N.Y.
1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61).
However, prior to the court engaging in the above analysis, a party must first
demonstrate that he is unable to obtain counsel through the private sector or public
interest firms. Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 173-74 (2d Cir. 1989)
(citing Hodge, 802 F.2d at 61).
B.

Application

In this case, plaintiff states that he needs an attorney because his case is “very
complicated.” (Dkt. No. 6). Plaintiff also states that he has reached out to the ACLU,
Legal Aid, and various civil rights attorneys, but he has received no response from any
of the organizations which, or individuals who, he has contacted. (Id.) However, this
case was only recently commenced, and that the only facts upon which this court could
base a decision as to whether this lawsuit is of substance are the facts stated in the
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plaintiff’s complaint. Where there are merely unsupported allegations, the moving
party does not meet the first requirement imposed by the Second Circuit for
appointment of pro bono counsel. See Harmon v. Runyon, No. 96-Civ.-6080, 1997 WL
118379 (S.D.N.Y. Mar. 17, 1997). Thus, for the above reasons, this court will deny
appointment of counsel without prejudice at this time.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff’s application for IFP status (Dkt. No. 7) is
GRANTED, and it is
RECOMMENDED, that plaintiff’s claims against defendant UTICA POLICE
DEPARTMENT be dismissed WITH PREJUDICE AGAINST THE POLICE
DEPARTMENT, BUT WITHOUT PREJUDICE to plaintiff amending his complaint
to name the proper municipal defendant, based on the appropriate facts as outlined in
this Report-Recommendation, and it is
RECOMMENDED, that to the extent that plaintiff based his complaint upon the
Eighth Amendment, those claims be DISMISSED WITH PREJUDICE, and the case
proceed on the Fourth Amendment basis, and it is
RECOMMENDED, that plaintiff’s equal protection claims be DISMISSED
WITHOUT PREJUDICE to plaintiff filing a proposed amended complaint asserting a
proper Equal Protection claim, and it is
RECOMMENDED, that if the District Court adopts this Recommendation,
plaintiff be given THIRTY (30) DAYS from the date of the District Court’s order to
submit a proposed amended complaint for review, and it is

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RECOMMENDED, that at the expiration of the thirty (30) day period, or any
extended period granted by the court upon plaintiff’s request, the Clerk be directed to
return the complaint or amended complaint to me for further proceedings, including
ordering service upon the defendants, and it is
ORDERED, that plaintiff’s motion for appointment of counsel (Dkt. No. 6) is
DENIED WITHOUT PREJUDICE AT THIS TIME, and it is
ORDERED, that the Clerk serve a copy of this Order and ReportRecommendation upon plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.
Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: November 16, 2017

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