Lindsey v. Butler et al

Filing 33

OPINION & ORDER: For the above-stated reasons, Plaintiff's motion to amend the complaint is granted with respect to his First Amendment free exercise claim and his Fourteenth Amendment due process claim, and denied with respect to the remaining claims. Plaintiff shall file and serve his amended complaint within 60 days of the date of this order. The Defendants shall answer or otherwise move with respect to the amended complaint within 30 days of the date of service of the amended complaint. (Signed by Judge Robert W. Sweet on 6/18/2013) (ft)

UN
D STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----­ --­ -----------­ ----­ ------------x
ANTHONY LINDSEY,
Plaintiff,

11 Civ. 9102 (RWS)
OPINION

-against-

&

ORDER
DETECTIVE SEAN BUTLER, et al.,
Defendants.

--- -------- -x
A P PEA RAN C E S:
aintiff Pro Se
Anthony Lindsey
DIN # 11-A-2302
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871
for Defendants
NEW YORK CITY LAW DEPARTMENT
100 Church Street
New York, New York 10007
By: Melanie M. Speight, Esq.

Sweet, D.J.

Plaintiff Anthony Lindsey ("Lindseyu or "Plaintiff U),
proceeding pro se, has moved to amend his complaint pursuant to
. R.

. P. 15(a).

part

Plaintiff's motion is granted

and denied in part.

Prior Proceedings

PIa
December

iff filed his initial comp

int

("Complaint U) on

, 2011, alleging that while he was being

ained at

a police station following his arrest on December 16, 2008,
several police

ficers restrained

aintiff while an NYPD

ective forcibly shaved Plaintiff's facial
Plaintiff being produced in a lineup.

r prior to

Compl

named as

defendants Detective Sean Butler ("Butler U), Detect

Richard

Werner ("Werner U), Commissioner Raymond Kelly ("Kelly"), the New
York

y Police Department ("NYPD U) and the City of New York

("CityU, and collectively, "Defendants U), and construed
I

rally,l purported to assert causes of action pursuant to 42

A pro se litigant's pleading is construed liberally, and is
read as raising the strongest possible arguments it suggests.
Pabon v. Wr
, 459 F.3d 241, 248 (2d Cir. 2006).

1

1

U.S.C. § 1983 for violation of Plaintiff's rights under the
First, Fourth, Eighth and Fourteenth Amendments.

Defendants moved to dismiss the Complaint on November
30, 2012 pursuant to Fed. R. Civ. P. 12(b) (6)
state a claim.

for failure to

Plaintiff did not submit any opposition to the

motion to dismiss, but did make a submission received on January
18, 2013 entitled "Motion to Amend Pursuant to Fed. R. Civ. P.
15(a) ," which attached a proposed amended complaint
Construed liberally, see Pabon, 459 F.3d at 248, t
purports to assert a Monell
claims against the ot

r

aim aga

t

("PAC").
PAC

the City, as well as

fendants for violations of:

(i)

Plaintiff's right to free exercise of religion pursuant to the
rst Amendment;

(ii)

Plainti

's right to equal protection and

due process pursuant to the Fourteenth Amendment;

(iii)

Plaintiff's right against self incrimination pursuant to the
fth Amendment;

(iv)

Plaintiff's right to counsel pursuant to

the Sixth Amendment.

Since Plaintiff is proceeding pro se, his January 18,
2013 submission is construed as a both a withdrawal of his
initial complaint as well as a motion for leave to

2

le an

. R. Civ. P. 15(a).2 See

amended complaint pursuant to
Alvarez v. Cit

of New York

No. 10 Civ. 6130 (RWS), 2012 WL

3298131, at *1 (S.D.N.Y. Aug. 13, 2012)

(quoting LeSane v.

Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001))
("[PJro se plaintiffs should be granted special
regarding procedural matters

iency

U
)

•

Defendants submitted an opposition to t

motion to

amend on January 23, 2013, contending that the motion should be
denied because the Plaintiff has failed to state a claim even
with the proposed amendments to the initial complaint, thereby
rendering amendment futile,
Recove

---~ ....- - " ' ' - ' - - - - ­

see Burch v. Pioneer

redit

, 551 F.3d 122, 126 (2d Cir. 2008).

The motion to amend was taken on submission on
February 8, 2013.

Discussion

A motion to amend is governed by Fed. R. Civ. P.
15(a), which provides that leave to amend should be freely
granted when justice so requires.

Id.

However, a court may

Accordingly, the Defendants' motion to dismiss the initial
complaint is moot.

2

3

deny

to amend in the event that the proposed amended

complaint

Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.

futi
1990) .

Is to state a claim, thereby rendering amendment

party opposing a motion to amend has the burden of

"

demonstrating that a proposed amendment would be futile."

NECA­

IBEW Pension Trust Fund v. Bank of America, No. 10 Civ. 440
(LAK) (HPB), 2013 WL 620257, at *4 (S.D.N.Y. Feb. 15, 2013).

Plaintiff's First Amendment Free Exercise Claim

Defendants have contended that t
a claim

r violation of

aintiff's right to

religion because courts have
facial hair
exercise

PAC fails to state
exe

se of

Id that shaving an inmate's

s not constitute a violation of the inmate's free
ght when the shaving occurs pursuant to a legitimate

penological interest.

However, the cases cited by Defendants in

support of this position address only the restriction of the
First Amendment rights of individuals incarcerat
see Singh v. Goord, 520 F. Supp. 2d 487, 494

in prisons,

(S.D.N.Y. 2007)

(noting that plaintiff was incarcerated in Fishkill Correctional
Facility)3; Vann v. Fischer, No. 11 Civ. 1958 (JPO), 2012 WL

See Shain v. Ellison, 273 F.3d 56, 65 (2d Cir. 2001) (noting
that "in New York
state correctional fa lities [are]
commonly referred to as prisons.
.") .
3

4

2384428, at *1 (S.D.N.Y. June 21, 2012)
is "being

(noting that plaintiff

ld by the New York State Department of

Corrections"), whereas the events giving rise to the instant
suit occurred when Plaintiff was merely detained in a police
station following his arrest, and had not yet even been charged
w

h a crime.

PAC

~

11.

At that point,

not in a "prison," which is defined
facility that "house[s] those convict
most serious crimes," S
2001)

Plaintiff was certainly

this Circuit as a
those convicted of

in v. Ellison, 273 F.3d 56, 65 (2d Cir.

(quoting BLACK'S LAW DICTIONARY 1213 (7th ed. 1999)), but

rather was at most cons ide

to be in a "jail," which this

Circuit defines as "a place where persons awaiting trial or
those convicted of misdemeanors are confined."

Id.

The Second

Circuit has held that the threshold for impinging upon the
constitutional rights of those in prisons is
lower
Mead

than the threshold for those in jails.
No. 05 CV 2058

fferent - and
See Harriston v.

(RJD) (LB), 2008 WL 4507608, at *3 n. 2

(S.D.N.Y. Sept. 30, 2008)

(noting that in Shain, the Second

rcuit "concluded that in jails [the] individualized reasonable
suspicion test applies" whereas in prisons, the "more
deferential 'legitimate penological interest' test" controls).

Defendants have not presented any authority showing
that Plaintiff's First Amendment rights were subject to
5

limitation pursuant to 1
that at the t

itimate penological interest, given

of the alleged constitutional vi

ations,

Plaintiff was an uncharged arrestee being detained in a police
station.

Accordingly, Defendants have not satisfied
ims would

burden of showing that amendment of those
futile.

ir

4

Protection Claim

Plaintiff's Fourteenth Amendment

To state an equal protection claim, a plaintiff must
that he was treated differently than s

al

la

y situated

individuals as a result of his membership in an identifiable
ano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995).

class.

Plaintiff has alleged

the PAC that t

forcibly shaved his facial hair did so a
ot

detectives who
noting that the

"fillers" brought to the police station to participate

the lineup alongside Plaintiff were all clean shaven.

PAC

~

32.

This allegation dooms Plaintiff's equal protection claim,
because
engage in t

does not allege that the detect

,s

ision to

forcible shaving resulted from Plaintiff's

membership in a protected class (in this case, Muslims), but

To
extent that Defendants advance the same argument with
respect to Plaintiff's equal protection
aim, that argument
fails for the reasons discussed above.

4

6

rather that it was the result of a

sire by the detectives to

avoid placing Plaintiff into a constitutionally-deficient
lineup.
(2d

, 40 F.3d 1347, 1359-60

See, e.g., United States v.

r. 1994)

(discussing the identification problems that can

arise "[wJhen the appearance of participants in a lineup is not
uniform with respect to a given characte

stic.

.").

Accordingly, amendment is futile with respect to Plaintiff's
Fourteenth Amendment equal protection claim.

Plaintiff's Fourteenth Amendment Due Process Claim

Plaintiff has alleged in the PAC that the Defendants
olated his constitutional rights by using excessive force in
"physically restraining his person, rear-cuf
him to the ground, and shaving his

ng him, knocking

ial hair, while being held

down by three unidentified defendants."

PAC

~

20.

Plaintiff's

excessive force claim is construed as a due process claim under
the Fourteenth Amendment.
37, 47

(2d Cir. 1999)

See United States v. Walsh, 194 F.3d

("The right of pretrial detainees to be

free from excessive force amounting to punishment is protected
by the Due Process Clause of the Fourteenth Amendment.").5

"Due

Defendants have cited to Graham v. Connor, 490 U.S. 386, 395
(1989) for the contention that Plaintiff's claim is analyzed
under the Fourth Amendment, but the Graham Court held only that
a Fourth Amendment analysis was proper for allegedly illegal
5

7

Process protects a pretrial detainee from the use of excessive
force that amounts to punishment."
96 Civ. 7697
1999)

Rivera v. State of N.Y., No.

(RWS), 1999 WL 13240, at *10 (S.D.N.Y. Jan. 12,

(quoting Graham, 490 U.S. at 395 n. 10).

The Second Circuit has held that

In determining whether the constitutional
1
has been crossed, a court must look to
such factors as the need
the application
of
, the relationship between the need
and the amount of
that was used, the
extent of injury inflicted, and whether
force was applied in a good faith ef
to
maintain or restore disc line or
mali ously and sadistically for the very
purpose of causing harm.

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), rejected
on other grounds by Graham, 490 U.S. at 397.

seizures that occurred during the course of an arrest, and
express
noted that it was not resolving the issue of whether
Fourth Amendment continues to provide protection "beyond the
po
at which t
arrest ends and pretrial detention begins."
Id. at 395 n. 10. Here, the complained-of conduct happened
after Plaintiff had been arrested and was already within the
confines the police station, PAC ~ 11, and therefore it is
analyzed under
Fourteenth Amendment.
See Jones v. Wellham,
104 F.3d 620, 628 (4th
r. 1997) (holding that "[b]ecause the
harm inflicted did not occur in the course of an attempted
arrest or apprehension . . . the
aim was not one of a Fourth
Amendment vio
ion but of the violation
the sUbstantive
process right under the Fourteenth Amendment) .
8

There appears to be only a single case
addressing

the Circuit

forcible shaving of a detainee in the context of

a due process analysis.

In Ross v.

------------~-----

669 F. Supp. 1235

(S.D.N.Y. 1987), Ross, an inmate in custody of New York State's
Department of Correctional Services asserted, inter alia, a
Fourteenth Amendment due process claim for use of excessive
force based upon the forcible shaving of his facial hair by
prison offici

s.

Id. at 1242.

In analyzing the

im, the

District Court applied the factors articulated by the Second
rcuit in Johnson, 481 F.2d at 1033, and found that "[u]sing
this test it is not clear whether Ross' due process rights have
been violated in this claim.

First, the forced shave was

roughly done and there is no indication that the officials
needed to use their clubs to
orders.

Ross to comply with their

Second, although Ross was not seriously injured the

force used does not appear to have been used
effort./I

Ross, 669 F. Supp. at 1242.

allegations, the Dist

a good-faith

Based on these

ct Court declined to dismiss Ross' due

process claim, and instead request

that Ross "submit

affidavits to confirm the extent of the violations."

rd.

The circumstances alleged by the plaintiff in Ross
bear a material similarity to those alleged by Plaintiff in the

9

s alleged that the

in Ross, the Plaintiff here

PAC.

shaving was conducted in a rough manner, PAC

~

20, and there is

no indication that the force allegedly used by the officers was
absolutely necessary in order

r the shaving to occur.

Id.

Moreover, while in Ross the Court noted that the plaintiff "was
sly i

not

ured," t

Plaintiff here has alleged that as a

result of the force used during the shaving, he sustained "a
mi
head,

concussion from being slammed on the floor and
[and was]

ft

experienced "lower

t

[J

k pain."

PAC 21.

Plaintiff has alleged

he requested medical attention in the wake of

Butler.

Id.

Johnson is "t

s

[on]

zzy with headaches" and also

incident and that the request was

1033,

t

by

shaving

fendant

ive

Given that one of the factors articulated in
extent of the injury inflicted," 481 F.2d at

allegations set

h by PI

ntiff in the PAC would

appear to create an even more robust due

cess claim than

Ross.

sole instance of

rectly on-point authority that

has been identified indicates that

aintiff's allegations may

well be sufficient to state a due process claim, and Defendants
have not cited any on

nt case law to t

contrary.

Accordingly, Defendants have failed to demonstrate that
amendment of Plaintiff's due process cIa
10

is futile.

h and Sixth Amendment Claims

Defendants have met their burden of demonstrating
ility with respect to Plaintiff's Fifth and Sixth Amendment
cla

Plaintiff has alleged t

t the Defendants violated

s

fth Amendment right against self incrimination because they
ctim

forcibly shaved his facial hair so as to "g[iJve the

[viewing] the lineup some impression that [Plaintiff] resembled
the perpetrator .

. .

"

PAC

Amendment only protects t
testi

'![

29.

However, the Fi

accused "from

ing compelled to

against himself or otherwise provide

dence of a

'testimonial or communicative nature,'" Reid v. Cit
York, No. 00 C

. 5164

(RCC)

(S.D.N.Y. Mar. 29, 2004)

(JCF)

I

h

of New

2004 WL 626228, at *12

(quoting Scherer v. California, 384

U.S. 757, 761 (1966)), and "[ilt is well settled that compelled
participation in a lineup is not testimonial or communicative in
nature,"

2004 WL 626228, at *12, even when the suspect is

forced to alter his appearance for t
United States v. Wade, 388 U.S. 218, 2

purpose of a see also
(1967)

(compelling a

robbery suspect to alter his appearance by wearing strips of
tape on his face while participating in a lineup did not violate
the suspect's Fifth Amendment rights).
fails to state a claim

vi

Acco

ngly, the PAC

ation of Plaintiff's

11

fth

Amendment right against self-incrimination, so amendment would
be futile.

PIa inti

has also alleged that his Sixth Amendment

right to counsel was violated because he requested counsel after
ing read his Miranda rights following his arrest, but was not
given counsel at that time. It is well established that t
Sixth Amendment right to counsel "applies at t

first

appearance before a judicial officer at which a
told of the formal accusation against him and rest
impos

on his liberty."

191, 194 (2008).

fendant is
ctions are

Rothgery v. Gillespie County, 554 U.S.

Thus, while a defendant is ent

led to counsel

in the context of a postindictment lineup, Missouri v.

132

S.Ct. 1399, 1405 (2012), such an entitlement does not exist for

a pre indictment lineup such as the one in which P
participated.

intiff

At the time of that lineup, Plaintiff had not yet

been charged with a crime and had not appeared before a judic
cer, so his Sixth Amendment right to counsel had not

o

attached.

t

The PAC therefore fails to state a claim for

olation of Plaintiff's right to counsel, so amendment would
futi

12

1

Monell Claim

so met their burden of demonstrating

Defendants have

aim against the

futility with respect to Plaintiff's Monell
ty.

City is liable pursuant 42

intiff alleges that

U.S.C. § 1983 because the

ect

who participat

in the

shaving of his beard "had been following [Commissioner Raymond
Kelly's] unwritten pol

ies and practices to use excess

force

upon Plaintiff[,] a Muslim[,] to forcefully shave a Muslim's
beard without seeking a Court order
as required by law."

PAC

~

Under Monell v.

permission to do this []

35.

' t of Soc. Servo

436 U.S. 658

(1978), in order to prevail on a §1983 claim aga

t a

municipality, a plaintiff must allege a link between a
const

utional

ury and "(1) municipal policy,

(2) municipal

custom or practice, or (3) the decision of a municipal
policymaker with final policymaking authority."

Zherka

V.

Fiore, 412 Fed. Appx. 345, 348 (2d Cir. 2011); accord
v. ViI

of Haverstraw

768 F.2d 40, 44

(2d Cir. 1985), cert.

denied, 489 U.S. 916 (1987).

Here, Plaintiff has failed to all
for municipal liability against the City.
13

is

a viable basis
PI

ntiff has made

conclusory allegations regarding the existence of "racist
polic

s and practices that discriminate against religion," PAC

, 37, and "unwritten policies and practices
force upon .

. a Muslim," id. ,

use excessive

35, but has provided no

evidence to support such claims except for the allegation that
on a single occasion his facial hair was shaved.

It is well­

settled that a single incident, without more, cannot create an
inference of an unconst

utional custom or policy.

Rotundo, 831 F.2d 397, 402-03 (2d

r. 1987).

Sarus v.

Moreover,

"[b]oilerplate assertions of a municipal policy or custom
w

hout offering any accompanying factual support .

insufficient to state a claim for Monell liability."

. are
Guerrero

v. City of New York, No. 12 Civ. 2916 (RWS), 2013 WL 673872, at
*3 (S.D.N.Y. Feb. 25, 2013).

Accordingly, the PAC does not plausibly allege any
facts from which a theory of municipal liability could be
ferred,

so amendment is futile.

14

Conclusion

For

above-stated reasons,

Plaintiff's motion to

complaint is granted with respect to his First

amend

Amendment free exercise claim and his Fourteenth Amendment due
process claim, and denied with respect to the remaining claims.

Plaintiff shall file
within 60 days

the date

serve his amended complaint
this order.

The Defendants shall

answer or otherwise move with respect to the amended complaint
within 30 days of t

date of service of the amended complaint.

It is so ordered.

New Yorf ,/)NY
June /
f
2013

cr

15