Sanders et al v. The City of New York et al
Filing
88
MEMORANDUM AND ORDER: granting in part and denying in part 80 Motion to Dismiss. For the reasons set forth above, the defendant's motions to dismiss (Dkt. No. 80 in 12 Civ. 6365, Dkt. No. 14 in 13 Civ. 3511, Dkt. No. 12 in 13 Civ. 3514) are gr anted in part and denied in part as follows. Defendants motion is granted with respect to the claims of plaintiffs Sanders, Perry, and Duran; all claims against defendants Warden at GRFC, the City of New York, and any other still-unnamed municipal de fendants; and all claims predicated on violations of the First and Eighth Amendments. Defendants' motion to dismiss is denied with respect to plaintiffs' claims that the strip search violated a right protected by the Fourth Amendment. In li ght of the previously-effected division of claims, the Clerk shall remove: (1) all plaintiffs in 13 Civ. 3511, except for Jose Zaball, (2) all plaintiffs in 13 Civ. 3516, except for Kyle Robinson, and (3) all plaintiffs in 12 Civ. 6365, except for Vi ncent George Junior, William Parker, Marvin Sanders, Alfonso Duran, and Broad Perry. Defendants' counsel is ordered to mail to the plaintiff copies of all unpublished authorities cited herein. The Court certifies pursuant to 28 U.S.C. § 191 5(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED.(Signed by Judge P. Kevin Castel on 11/06/2013) (ama)
USDSSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
VINCENT GEORGE JR., MARVIN SANDERS,
ALFONSO DURAN, WILLIAM PARKER, BROAD
PERRY,
DOCUMENT
ELECTRONICALLY FILED
DOC#: ________~~_
DATE FILED:
//-(p- 13
•
12 Civ. 6365 (PKC) (JLC)
Plaintiffs,
-againstTHE CITY OF NEW YORK, et aI,
Defendants.
-----------------------------------------------------------x
-----------------------------------------------------------x
JOSE ZABALL,
13 Civ. 3511 (PKC)(JLC)
Plaintiff,
-againstC.O. BENBOW (7002), C.O. PHILLIPS (7620), C.O.
YOUSUF (18907), C.O. HAMER (18467), C.O.
FLEURIMAND (8299), CAPTAIN MASSEY (126),
CAPTAIN HARVEY (1109), CAPTAIN PENDEGRASS
(68),
Defendants.
-----------------------------------------------------------x
-----------------------------------------------------------x
KYLE ROBINSON,
13 Civ. 3514 (PKC) (JLC)
Plaintiff,
-againstMEMORANDUM
AND ORDER
C.O. BENBOW (7002), C.O. PHILLIPS (7620), e.O.
YOUSUF (18907), C.O. HAMER (18467), C.O.
FLEURIMAND (8299), CAPTAIN MASSEY (126),
CAPTAIN HARVEY (1109), CAPTAIN PENDEGRASS
(68),
Defendants.
-----------------------------------------------------------x
CASTEL, District Judge:
These three actions are brought against the City of New York and certain
conections officers, alleging violations of certain unspecified constitutional rights in connection
with a group strip search in a mess hall at Riker's Island conducted in front of trainee conections
officers. Defendants have moved to dismiss all three actions. For the reasons discussed below,
defendants' motions are granted in part and denied in pmt.
1.
BACKGROUND
On August 20, 2012, pro se plaintiffs Vincent George Jr., Marvin Sanders,
Darvell Jones, Alfonso Dum, William Parker, Perry Board, Keith Walcott, Karim Kamal, Rivera
Candido, Mark Enoch, Jose Zaball, and Kyle Robinson brought this action in a single complaint
(the "Initial Complaint") against the City of New York, the New York Department of
Conections, several unidentified corrections officers who worked in the mess hall at the George
R. Viemo Center (the "GRFC"), a conectional facility located on Rikers Island, the GRFC
warden, and "Any and All Municiple [sic] Defendants.'" Magistrate Judge James L. Cott
dismissed without prejudice the claims of plaintiffs Jones, Walcott, Kamal, Candido, and Enoch
for failure either to pay filing fees or file proper applications to proceed in forma pauperis. (Dkt.
Nos. 31-40)2
On December 21,2012, this Court dismissed by order all claims against the New
York City Department of Correction, a non-suable entity (the "December 12 Order"). (Dkt. No.
I In the original complaint, Jose Zaball was listed as lOVase Raball," and Perry Board was listed as "Broad Perry."
Subsequent signed filings by the two individual plaintiffs indicate that the original names were likely inaccurate.
See Dkt. Nos. 17, 60.
2 The docket citations here refer to the docket for 12 Civ. 6365, which includes all relevant submissions connected
with the other two docket numbers listed in the caption. Similarly, references to defendants' Memorandum on this
motion pertain to Dkt. No. 83 rather than the other two (substantially similar) Memoranda filed.
2
43) The December 12 Order directed the New York City Corporation Counsel to provide the
names and service addresses for the "Johu" and "Jane Doe" corrections officers and supervisors
involved in the incident giving rise to the complaint. Id. Once the Office of the Corporation
Counsel complied with the Order, plaintiffs were required to file an amended complaint naming
the unidentified individuals. Id. The December 12 Order further provided that the amended
complaint would replace, rather than supplement, the Initial Complaint. Id.
Instead of filing one amended complaint, plaintiffs filed three. On March 26,
2013, plaintiffs filed a complaint signed only by Vincent George JI. (the "George Complaint")
that purported to be on behalf of all twelve original plaintiffs. (Dkt. No. 57) The George
Complaint named the same defendants as the Initial Complaint, and also named eight individual
corrections officers ("e.O.'s"): C.O. Benbow, C.O. Phillips,
c.o. Yousuf, C.O. Hamer, C.O.
Fleurimand, Captain Massey, Captain Halvey, and Captain Pendegress. Id. On April 10,2013,
plaintiffs Jose Zaball and Kyle Robinson filed two additional amended complaints (the
"RobinsoniZaball Complaints"). (Dkt. Nos. 60, 61) These amended complaints each named
only the seven plaintiffs who remain in the action, and each was signed only by the individual
plaintiff filing the complaint. Id. Further, the RobinsoniZaball Complaints omitted the original
list of defendants, instead listing on Iy the same eight corrections officers named in the George
Complaint. The other four remaining plaintiffs have not filed signed amended complaints.
Because of differences between the amended complaints, particularly with respect
to parties named and remedies sought, Magistrate Judge Cot! severed the claims into three
separate actions. (Dkt. No. 64) Magistrate Judge Cot! further ordered plaintiffs Sanders, Duran,
Board, and Parker to file signed, amended complaints by June 12,2013, indicating that if
plaintiffs failed to do so or othelwise respond he would recommend dismissal for failure to
3
prosecute. rd. After advising the COUlt of a change of address, plaintiff Parker filed an executed
signature page on June 21, 2013, joining the George Complaint. (Dkt. No. 72) To date,
plaintiffs Sanders, Duran, and Board have not responded.
Plaintiffs' three amended complaints (together, the "Complaints") all focus on an
alleged incident on August 2, 2012 at approximately 3 :45 PM in the mess hall at the GRFC. The
factual allegations in the RobinsoniZaball Complaints, though handwritten, are nearly identical
in language. (Dkt. Nos. 60, 61) The Complaints all allege an illegal strip search conducted in
violation of prison procedures. Plaintiffs allege that, in front of one another and corrections
officer trainees in the GRFC mess hall, they were forced to strip naked, tum around, and squat
down. The Complaints further allege that the search was inconsistent with typical search
procedures, because mess hall searches are usually "pat searches" rather than strip searches, and
strip searches are usually conducted privately, behind dividers, rather than in front of a group of
other inmates and conections officers. Plaintiffs allege that the searches were conducted in this
fashion in order to "make a spectacle of [the inmates1for the new recluits," "for the sake of an
example," and to humiliate and "bring shame to" the inmates. (Dkt. Nos. 57, 60, 61 at 2-3)
With respect to the relief requested, the Complaints diverge. The George
complaint seeks injunctive relief in the fOlm oftelmination of the employment of all involved
corrections officers, and also seeks damages in an amount left to the discretion of the Court.
(Dkt. No. 57 at 5) The Robinson/Zaball Complaints each seek damages of $100,000 to redress
constitutional rights violations and emotional and psychological harms, and also request that the
alleged practices be stopped. (Dkt. Nos. 60, 61 at 5)
Defendants filed three motions to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ.
P., seeking dismissal of the Complaints for failure to state a claim. Because the Complaints
4
concern the same incident and, ultimately, the same defendants, and because defendants'
arguments in each of the three motions are nearly identical, this Memorandum and Order will
treat the three cases as one.
Plaintiff William Parker has filed an affirmation in opposition to motion (the
"Parker Affirmation"). (Dkt. No. 85) The Parker Affirmation asserts that the strip search was
conducted despite his specific request for a private strip search because he was a Muslim
observing Ramadan. Id. at 1.
II.
FAILURE TO PROSECUTE CLAIMS
Defendants have moved to dismiss the claims of plaintiffs Sanders, Board, and
Duran under Rule 41(b), Fed. R. Civ. P. These plaintiffs, each of whom failed to sign any of the
three Complaints, were directed by Magistrate Judge Colt's May 14, 2013 Order to comply with
Rule II(a), Fed. R. Civ. P., which requires that "[ e]very pleading, written motion, and other
paper must be signed by ... a patty personally if the party is unrepresented." (Dkt. No. 64)
Specifically, the order provided:
Sanders, Dnran, Board, and Parker mnst snbmit signed, amended
complaints by Jnne 12, 2013. [... ] If these four remaining plaintiffs fail to
submit signed amended complaints or othelwise respond to this Order by June 12,
I will recommend that their claims be dismissed for failure to prosecute.
Id. (emphases in original) To facilitate this request, the Court sent copies of the Amended
Complaints with blank signature pages to each ofthe thl'ee plaintiffs. None of the three has
responded to the May 14, 2013 Order to date.
"If the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil
Procedure] or a COUIt order, a defendant may move to dismiss the action or any claim against it."
Fed. R. Civ. P. 41(b). "[D]ismissal of an action under Rule 41(b) is considered a '''harsh
5
remedy' that should 'be utilized only in extreme situations.'" Lewis v. Rawson, 564 F.3d 569,
576 (2d Cir. 2009) (quoting Minette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993». This
is especially true when the plaintiff is a pro se litigant. LeSane v. Hall's Sec. Analyst. Inc., 239
F.3d 206, 209 (2d Cir. 2001) (noting that "pro se plaintiffs should be granted special leniency
regarding procedural matters" and "deference is due to a district court's decision to dismiss a pro
se litigant's complaint only when circumstances are sufficiently extreme.") (citation and
quotations omitted).
The Second Circuit has "fashioned guiding rules that limit a trial comt's
discretion" when determining whether to dismiss for failure to prosecute. United States ex reI.
Drake v. Norden Sys .. Inc., 375 F.3d 248, 254 (2d Cir. 2004). Under these rules, district courts
must consider five factors in detelmining whether dismissal pursuant to Rule 41 (b) is proper:
"(1) the duration ofthe plaintiffs failures, (2) whether plaintiff had received notice that flUther
delays would result in dismissal, (3) whether the defendant is likely to be prejudiced by flUther
delay, (4) whether the district judge has take[nJ care to strik[eJ the balance between alleviating
court calendar congestion and protecting a patty's right to due process and a fair chance to be
heard ... and (5) whether the judge has adequately assessed the efficacy of lesser sanctions."
LeSane. 239 F.3d at 209 (quoting Alvarez v. Simmons Mkt. Research Bureau. Inc., 839 F.2d
930,932 (2d Cir. 1988». "[NJone ofthe five factors is separately dispositive." Id. at 210 (citing
Nita v. Connecticut Dep't ofEnvtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).
A. Delay
Plaintiffs were ordered to submit a signed complaint no later than June 12,2013.
Over four months have elapsed since this deadline, and none of the three plaintiffs has either
complied with the May 14, 2013 Order or sought additional time to do so. Plaintiff Sanders last
6
contacted the Court on March 29,2013, when he submitted a change of address. (Dkt. No. 58)
Plaintiffs Board and Duran last contacted the Court in October and November 2012,
respectively, when each filed a declaration in support of their request to proceed in forma
pauperis. (Dkt. Nos. 17,23) In sum, there has been utter silence fi'om these three plaintiffs since
early 2013. The considerable delay thus weighs in favor of dismissal.
B. Notice
In clearly-worded bold typeface, the May 14,2013 Order directed compliance
with the signature requirement, and further expressly warned that the Magistrate Judge would
recommend dismissal for failure to prosecute if plaintiffs failed to comply with the Order. The
COUlt finds that plaintiffs received meaningful, non-technical notice that failure to sign the
complaint would likely result in dismissal oftheir claims. See Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996) ("A waming to a pro se litigant must be ... specific before it will constitute a
warning for the purpose ofthis analysis.").
C. Prejudice to Defendants
There is no evidence in the record that plaintiffs' delay already has caused
prejudice to defendants. However, these section 1983 claims are brought against corrections
officers in their individual capacities. The individuals stand accused of serious constitutional
violations. The pending litigations are matters which properly may be inquired into on a
mOitgage or car loan application or future employment application. The defendants and the
public are entitled to have the cloud over the defendants' names resolved one way or another.
Though prejudice may not yet have occUlTed, it is a foreseeable consequence of plaintiffs'
inaction. This factor thus weighs slightly in favor of dismissal.
D. Balancing Alleviation of Court Calendar Congestion and Right to be Heard
7
Each plaintiff has a right to his day in COUlt. This right is qualified by the
obligation to comply with lawful Court orders. Noncompliance undermines the ability of the
COUlt to manage its docket and dispense justice to all litigants in an expeditious manner.
FUlther, the Magistrate Judge's Order not only expressly apprised plaintiffs of their obligation to
respond, but also mailed copies of each Amended Complaint with a blank signature page to each
individual plaintiff. The Court notes that the presence of these three cases on its docket has not
materially enhanced "court calendar congestion." Alvarez, 839 F.2d at 932. Thus, the COUlt
finds that this factor weighs slightly against dismissal.
E. Efficacy of Lesser Sanctions
The COUlt has considered the efficacy of sanctions less severe than dismissal and
has concluded that they are inadequate. The Order clearly explained that if the plaintiffs failed to
file signed amended complaints, the Magistrate Judge would "recommend that their claims be
dismissed for failure to prosecute." In light of the express waming of dismissal, there is no
reason to believe that a lesser sanction would be effective. See Rusza v. Rubenstein & Sendy
Attys at Law, 520 F.3d 176, 178 (2d Cir. 2010) ("in light ofRusza's failure to respond to the
notice threatening dismissal, it is equally unclear that a 'lesser sanction' would have proved
effective in this case.").
For the foregoing reasons, the claims of plaintiffs Sanders, Board, and Duran are
dismissed with prejudice for failure to prosecute under Rule 41 (b).
III.
PLEADING STANDARDS
To survive a motion to dismiss for failure to state a claim upon which relief can
be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim
8
to relief 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)). In assessing a complaint, COUtts must draw
all reasonable inferences in favor of the non-movant. See In re Elevator Antitrust Litig., 502
F.3d 47, 50 (2d Cir. 2007) (per curiam).
"A pro se complaint, however inartfully pleaded, must be held to less stringent
standards than fOlmal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94
(2007) (citation and quotation marks omitted). Courts continue to afford special solicitude to pro
se complaints after Iqbal and Twombly. See Harris v. Mills. 572 F.3d 66, 72 (2d Cir. 2009).
Plaintiffs' pro se pleadings "must be read liberally and should be interpreted 'to raise the
strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Neveltheless, pro se plaintiffs
bringing an action under section 1983 must make specific claims, because "allegations which are
nothing more than broad, simple, and conclusory statements are insufficient to state a claim
under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Finally, even an
unopposed Rule 12(b)(6) motion is subject to review on its merits. McCall v. Pataki, 232 F.3d
321,322 (2d Cir. 2000).
N.
CLAIMS AGAINST MUNICIPAL DEFENDANTS
A municipality cannot be held liable for a damage claim unless a plaintiffs injury
was a result of municipal policy, custom, or practice. See generally Monell v. New York City
Dep't of Soc. Servs., 436 U.S. 658, 691-94 (1978). The City of New York may not be held
liable under section 1983 based on a theory of vicarious liability for the conduct ofits
employees. Id. at 691.
9
Here, plaintiffs have alleged generally that the strip search was conducted in a
manner inconsistent with the usual policies of the GRVC facility. Beyond listing the City of
New York as a party, plaintiffs have made no allegations involving the City. Further, plaintiffs'
allegations do not allege that the search was a result of municipal policy, custom, or practice; to
the contrary, they have alleged that the search was a departure from usual DOC procedures.
Thus, the allegations in the complaints are insufficient to support a claim of municipal liability.
See Roe v. City of Waterbury, 542 F.3d 31, 36-37 (2d Cir. 2008) (plaintiff must allege
"deliberate conduct" that renders the municipality "the 'moving force' behind the alleged
injury."). Plaintiffs' claims against the City of New York must therefore be dismissed.
The George Complaint also listed "Any and All Municipal Defendants" in its
caption. For the avoidance of doubt, because no municipal defendants other than the City of
New York and the Department of Conections have been served by plaintiffs, all other claims
against unidentified municipal defendants are dismissed pursuant to Rule 4(m), Fed. R. Civ. P.,
for failure to serve any such defendants within the 120 day limit provided by the Rule.
V.
CLAIMS AGAINST GRFC WARDEN
Though "Warden at GRFC" was listed as a party in the Initial Complaint, no
warden party was named in any of the three amended Complaints. In any event, "[i]t is well
settled in this Circuit that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983." Spavone v. NY. State
Dep't of Con. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quotation marks omitted). The
Complaints make no reference to any warden having played any role in the strip search. In this
context, the failure to allege that an individual was personally and directly involved is a fatal
10
defect on the face of the complaint. See Iqbal, 556 U.S. at 670; Alfaro Motors, Inc. v. Ward, 814
F.2d 883, 886 (2d Cir. 1987). Accordingly, plaintiffs' claims against the warden defendant must
be dismissed.
VI.
CLAIMS AGAINST CORRECTIONS OFFICERS
To state a claim under section 1983, a plaintiff must allege that a person acting
under color of state law deprived him or her of a right secured by the Constitution or laws of the
United States. 42 U.S.C. § 1983. The complaints adequately allege that the individual
defendants were New York City Depaltment of Corrections officers who by reason of the
authority of their positions acted under color of state law.
While the amended complaints do not specify which specific constitutional or
federal rights were violated by defendants' actions, the facts alleged suggest that plaintiffs may
have intended to bring claims based on violations of the First, Fourth, and Eighth Amendments.
Each of these Amendments binds the states by operation of the Fourteenth Amendment. See
Cantwell v. Comlecticut, 310 U.S. 296, 303 (1940) (First Amendment right to fi"ee exercise of
religion); Mapp v. Ohio, 367 U.S. 643, 655-56 (1961) (Fomth Amendment protection against
unreasonable searches and seizures); Robinson v. California, 370 U.S. 660,675 (1962) (Douglas,
J., concurring) (Eighth Amendment prohibition on cruel and unusual punishment).
Although defendants have raised a defense of qualified immunity with respect to
the cOlTections officers involved, "[t]he 'better approach to resolving' such claims is to first
determine whether the plaintiffs have alleged a violation of a constitutional right, and then, if
they have, to determine whether the right was clearly established at the time of the alleged
violation." Duamutefv. Hollins, 297 F.3d 108, III (2d Cir. 2002) (citations omitted). Thus,
II
each of plaintiffs' constitutional claims is addressed in tum before reaching the issue of qualified
immunity.
A. Fomih Amendment Claims
Plaintiffs' allegations concerning the purpose and manner of execution of the strip
search implicate the Fourth Amendment's proscription against unreasonable searches and
seizures. Inmates confined in prison retain basic constitutional rights. Bell v. Wolfish, 441 U.S.
520, 545 (1979). Among those rights is the freedom fi-om unreasonable searches. Id. at 558.
The test of reasonableness as applied to prison inmates was set forth in Bell:
The test of reasonableness under the FOUlih Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the need for
the palticular search against the invasion of personal rights that the search entails. Courts
must consider the scope of the p31ticular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it is conducted.
Id., 441 U.S. at 559.
Defendants contend that plaintiffs have failed to allege a violation of the Fourth
Amendment. Relying chiefly on Florence v. Bd. of Chosen Freeholders, 132 S.C!. 1510 (2012),
they argue that courts in this Circuit and beyond have held that strip searches, even when
conducted in the view of other innlates and cOlTections officers, are constitutional, and that
reviewing courts must defer to the decisions of prison authorities. Florence did "confinn[] the
importance of deference to cOlTectional officials and explain[] that a regulation impinging on an
inmate's constitutional rights must be upheld 'ifit is reasonably related to legitimate penological
interests.'" 132 S. Ct. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987). But the court's
opinion expressly disclaimed addressing a strip search where cOlTections officers engage in
"intentional humiliation and other abusive practices." Id. at 1523.
As defendants concede, strip searches perfonned with no legitimate penological
12
purpose but merely to intimidate, harass, or punish are impelmissible. By its own tenus, Florence
was not a license for prison staff to conduct strip searches anytime, anywhere, or in any manner.
The deference referred to in Florence and throughout Fourth Amendment prison search
jurisprudence only attaches in the case of a prison regulation or policy based on a legitimate
penological consideration. For instance, Florence evaluated the propriety of intake strip search
procedures conducted on all inmates upon their admission to the prison facility. 132 S.C!. at
1513. Similarly, Bell v. Wolfish held reasonable a policy requiring body cavity searches
following contact visits with persons outside the prison. 441 U.S. 520, 558 (1979). Both
decisions reviewed in depth the legitimate penological rationales underpinning the challenged
policies.
In contrast, here plaintiffs have alleged that the search at issue was not a standard
search conducted in confolTIlity with established policy and procedure in service of legitimate
ends. According to plaintiffs, the strip search was performed in order to humiliate the inmates
and to "make a spectacle" of the inmates in fi'ont of trainee conections officers. Defendants
have not argued that instruction to trainee officers on how to inflict public humiliation on
inmates is a legitimate penological purpose. The complaints do not reveal any other purpose for
the strip search.
A prison strip search must be conducted for a legitimate penological purpose.
See, e.g., Israel v. City of New York, 11 Civ. 7726, 2012 WL 4762082, at *2-3 (S.D.N.Y. Oct. 5,
2012) (three strip searches of a pre-trial detainee were penuissible when conducted pursuant to
established, express DOC policies serving the legitimate interest of preventing the smuggling of
contraband); Millerv. Bailey, 06 Civ. 5493,2008 WL 1787692, at *10 (E.D.N.Y. Dec. 20, 2007)
(claim based on improper strip search dismissed where plaintiff failed to allege that the search
13
was perfotmed for improper purposes); Brown v. Graham, 07 Civ. 1353,2010 WL 6428251, at
*13-14 (N.D.N.Y. Mar. 30,2012) (strip search was reasonable where plaintiff made no
allegation that search was intended to intimidate, harass, or punish, and defendant produced
evidence that search was conducted for protection of plaintiff, who was on suicide watch);
Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) ("a strip search ofa male prisoner in front
of female officers, if conducted for a legitimate penological purpose, would fail to rise to the
level of a" constitutional violation) (emphasis added); Elliot v. Lynn, 38 F.3d 188 (5th Cir. 1994)
(visual body cavity search conducted in presence of other inmates and correctional officers was
reasonable in view oflegitimate security concems); Franklin v. Lockhart, 883 F.2d 654 (8th Cir.
1989) (legitimate security concems justify conducting strip searches of inmates in view of other
inmates); Michenfelder v. Sunmer, 860 F.2d 328 (9th Cir. 1988) (same).
Because the plaintiffs have adequately and plausibly alleged that the strip search
was conducted to "make a spectacle of [the inmates] for the new recruits" and to publically
humiliate the plaintiffs, defendants' motion to dismiss plaintiffs' claims based on a violation of
the Fourth Amendment is denied.
B. First Amendment Claims
In the Parker Affitmation, but not in any of the Complaints, plaintiff Parker stated
that he was "a religious person and was practicing [his] religious rights as a muslin [sic]
(Ramadan) and told the office [sic] [he] should be stripped privately." (Dkt. No. 85 at I) A First
Amendment free exercise claim requires a showing "that the disputed conduct substantially
burdens [a detainee's] sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263,27475 (2d Cir. 2006) (intemal citation omitted). Once that showing is made, "[t]he defendants then
bear the relatively limited burden of identifying the legitimate penological interests that justify
14
the impinging conduct." rd. at 275.
Although two district COUlt decisions have declined to dismiss First Amendment
free exercise claims in the context of a prison strip search, see Jean-Laurent v. Wilkerson, 438 F.
Supp. 2d 318, 323-24 (S.D.N.Y. 2006) (Marrero, J.); Show v. Patterson, 955 F.Supp. at 191, no
decision of the Supreme COUlt or the Second Circuit has ever recognized such a claim of a fi'ee
exercise violation, so far as this Court has detennined.
For two independent reasons, the COUlt needs not reach the question of whether a
strip search of a Muslim inmate amounts to a substantial burden on the inmate's religious beliefs.
First, the allegations did not appear in any of the Complaints; instead, they were made for the
first time in the Parker Affirmation by a single plaintiff responding to defendants' motion. Pro
se plaintiffs are not excused fi'om the normal rules of pleading, and "dismissal under Rule
12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain
relief." Geldzahler v. N.Y. Med. College, 663 F.Supp.2d 379,387 (S.D.N.Y. 2009) (quoting 2
Moore's Fed. Practice § 12.34[4][a] at 1272.7 (2005». Second, because plaintiffs have
adequately alleged that the search was not conducted for any legitimate penological purpose,
their claims are more properly considered as a Fourth Amendment violation as discussed above. 3
Plaintiffs' First Amendment claims are therefore dismissed.
C. Eighth Amendment Claims
Plaintiffs' allegations conceming the manner of execution of the strip search and
the resulting humiliation and emotional halms potentially raise an Eighth Amendment claim of
cruel and unusual punishment. The Eighth Amendment provides that "cruel and unusual
punishments [shall not be] inflicted." U.S. Const. amend. VIII. That lUle is violated by
3 Further, even if a free exercise strip search claim were recognized here, the lack of controlling precedent would
likely entitle defendants to prevail on their qualified immunity defense. See Pearson v. Callahan, 555 U.S. 223, 231
(2009).
IS
unnecessary and wanton inflictions of pain and suffering. See Whitley v. Albers, 475 U.S. 312,
320 (1986). Prison officials violate the Eighth Amendment only when both of two requirements
are met: (1) as an objective matter, the alleged deprivation must be "sufficiently serious," and (2)
the alleged perpetrator must, subjectively, possess a "sufficiently culpable state of mind."
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotations omitted).
Under certain limited circumstances, the manner in which a search is conducted
may give rise to an Eighth Amendment claim. See Frazier v. Ward, 426 F.Supp. 1354, l366
(N.D.N.Y.1977) (body cavity search "not based on reasonable belief standards [] and extremely
dehumanizing in its method of conduct" violates the Eighth Amendment). However, "[ e]ven
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, 12 Civ. 2696, 2013 WL 34814l3, at *3 (S.D.N.Y. July II,
2013) (citation and quotations omitted).
See,~,
Boddie v. Sclmeider, 105 F.3d 857, 861 (2d
Cir. 1997) (finding that plaintiffs allegations of multiple instances of "despicable" sexual abuse
did not state an Eighth Amendment claim); Show v. Patterson, 955 F. Supp. 182, 191-92
(S.D.N.Y. 1997) (distinguishing Frazier and finding no Eighth Amendment claim where
plaintiffs alleged that guards strip searched them in the GRFC mess hall for the sole purpose of
humiliation); HalTis v. City of New York, 01 Civ. 6927,2003 WL 554745, at *5 (S.D.N.Y. Feb.
26,2003) (finding that plaintiffs allegations of a humiliating strip search did not rise to the level
of an Eighth Amendment violation). LaRocco v. N.Y.C. Dep't of COlT., 99 Civ. 9759, 2001 WL
1029044, at *5 (S.D.N.Y. Aug. 31,2001), repOlt and recommendation adopted, Sept. 26, 2001
(Dkt. No. 31) (holding that allegations that the officer forced the plaintiff-inmate to "undergo a
routine where he had to lift his penis and spread his buttocks about three times" were "not severe
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enough" to constitute an Eighth Amendment claim and recommending dismissal).
Although plaintiffs have alleged that the strip search was conducted to humiliate
the inmates and "make a spectacle" for the new recruits, plaintiffs did not allege that the
corrections officers sexually or verbally harassed them. Further, the search alleged was visual
and conducted at the direction of the officers; plaintiffs have not alleged any inappropriate
physical contact by the defendants in the course of the search. (Dkt. Nos. 57,60,61 at 2-3)
Even ifit were assumed that plaintiffs' allegations could satisfy the subjective requirement of a
culpable state of mind for an Eighth Amendment claim, 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 based on
cruel and unusual punishment under the Eighth Amendment. To the contrary, as demonstrated
by the cases cited above, allegations of far more serious misconduct by corrections officers have
consistently been held insufficiently serious to state an Eighth Amendment claim. Accordingly,
plaintiffs' claims that the searches constituted cruel and unusual punishment under the Eighth
Amendment are dismissed.
VII.
QUALIFIED IMMUNITY
Defendants argue in the altemative that, to the extent plaintiffs have alleged
constitutional rights violations, the corrections officers are entitled to qualified immunity because
plaintiffs had no clearly established right to be exempt from the challenged strip search. "The
doctrine of qualified immunity protects government officials 'from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. '" Pearson v. Callahan, 555 U.S. at 231 (quoting
17
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Qualified immunity shields government officials performing discretionary acts
fi-om liability if (1) their conduct did not violate clearly established statutory or constitutional
rights, or (2) if it was objectively reasonable for them to believe their acts did not violate those
rights. Cerrone v. Brown, 246 F.3d 194, 199 (2d CiT. 2001). "Whether a defendant officer's
conduct was objectively reasonable is a mixed question of law and fact." Manganiello v. City of
New York, 612 F.3d 149, 164 (2d Cir. 2010) (internal quotation omitted). "[T]he court must
decide whether it was objectively reasonable for the officer to believe that his conduct did not
violate a clearly established right, i.e., whether officers ofreasonable competence could disagree
as to the lawfulness of such conduct." Id. at 165.
Focusing on the first element, whether the right was clearly established, a court
must detelmine (i) whether the right at issue was defined with reasonable clarity; Oi) whether the
Supreme COUlt or the Second Circuit had affirmed the existence of the right; and (iii) whether
reasonable police officers in the defendants' position would have understood from the existing
law that their conduct was unlawful. Id.
The issue in this action is not whether inmates have a general right to be free from
visual strip searches, but rather whether the challenged search was conducted with any legitimate
penal purpose. As discussed above, the jurisprudence of the Fourth Amendment does not grant
prison officials an unconditional right to conduct strip searches in any manner they choose.
Instead, courts defer to the expertise of prison authorities when, and only when, prison
regulations and policies are based on a legitimate penological purpose. An unbroken line of
authority in the Supreme Court and the Second Circuit has repeatedly affirmed that prison
authority actions are not entitled to deference-and may be held unconstitutional-whenever
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they are not undertaken pursuant to any legitimate penological goal, or are designed to
intimidate, harass, or punish.
See,~,
Bell v. Wolfish, 441 U.S. at 539; Hudson v. Palmer, 468
U.S. 517, 528 (1984) ("[I]ntentional harassment of even the most hardened criminals canuot be
tolerated by a civilized society."); Hodges v. Stanley, 712 F.2d 34, 35-36 (2d Cir. 1983) (per
curiam); Boddie v. Schnieder, 105 F.3d 857,861 (2d Cir. 1997); Jackson v. Manu, 196 F.3d 316,
320 (2d Cir. 1999); Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318,323 (S.D.N.Y.2006)
(collecting circuit cases).
Thus, because clearly established law in the Second Circuit on August 2, 2012
demonstrated that a strip search conducted without a legitimate penological purpose violated
constitutional rights, defendants' invocation of qualified immunity fails.
VIII.
REMEDIAL CONSIDERATIONS
Plaintiffs seek, in addition to damages, certain injunctive relief against the
conectional officers involved in the alleged incident. (Dkt. No. 57 at 5) Although defendants
argue that plaintiffs' requests for injunctive relief should be dismissed for lack of standing, the
issue need not be addressed at this juncture.
Plaintiffs Robinson and Zaball seek $100,000 in damages for the constitutional
violations alleged. (Dkt. Nos. 60, 61 at 5) The George Complaint requests an unspecified
amount of damages. (Dkt. No. 57 at 5) Citing the Prison Litigation RefOlm Act ("PLRA"),
defendants contend that because plaintiffs have failed to allege any physical injury, their claims
mnst be dismissed in full.
The PLRA sets fOlth limitations applicable to federal civil actions brought by
prisoners alleging mental and emotional injuries. 42 U.S.C. § 1997(e). Specifically, section
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1997(e) states that "[nlo Federal civil action may be brought by a prisoner confined in ajail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury." Id. Thus, under the statute, a "plaintiff cannot
recover damages for mental or emotional injury for a constitutional violation in the absence of a
showing of actual physical injury." Thompson v. Catter, 284 F.3d 411, 417 (2d Cir. 2002).
Defendants are incorrect in assuming that the PLRA bars plaintiffs' claims in their
entirety. Notwithstanding the PLRA limitation, the Second Circuit has explained that "Section
1997e(e) purports only to limit recovery for emotional and mental injury, not entire lawsuits,"
and that the section should not be read "as a general preclusion of all relief if the only injury the
prisoner can claim---other than the intangible halm presumed to flow from constitutional
injuries-is emotional or mental." Id. at 418. Accordingly, the Court held that section 1997e(e)
did not prevent plaintiffs from vindicating their constitutional rights through nominal datnages,
punitive damages, declaratory relief, or injunctive relief. Id.
Therefore, notwithstanding any restrictions on recovery imposed by the PLRA,
the statute does not bar plaintiffs' claims in their entirety.
CONCLUSION
For the reasons set forth above, the defendant's motions to dismiss (Dkt. No. 80
in 12 Civ. 6365, Dkt. No. 14 in 13 Civ. 3511, Dkt. No. 12 in 13 Civ. 3514) are granted in part
and denied in part as follows. Defendants motion is granted with respect to the claims of
plaintiffs Sanders, PeITY, and Duran; all claims against defendants Warden at GRFC, the City of
New York, and any other still-unnamed municipal defendants; and all claims predicated on
violations of the First and Eighth Amendments. Defendants' motion to dismiss is denied with
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respect to plaintiffs' claims that the strip search violated a right protected by the FOUlth
Amendment. In light of the previously-effected division of claims, the Clerk shall remove: (1)
all plaintiffs in 13 Civ. 3511, except for Jose ZabaIl, (2) all plaintiffs in 13 Civ. 3516, except for
Kyle Robinson, and (3) all plaintiffs in 12 Civ. 6365, except for Vincent George Junior, William
Parker, Marvin Sanders, Alfonso Duran, and Broad Perry. Defendants' counsel is ordered to
mail to the plaintiff copies of all unpublished authorities cited herein.
The COUlt celtifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal fi·om this
order would not be taken in good faith and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
P. evin Castel
United States District Judge
Dated: New York, New York
November 6, 2013
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