Little v. Department of Corrections
Filing
36
MEMORANDUM OPINION AND ORDER #104794. For the foregoing reasons, the defendants' motion to dismiss the plaintiff's claims is granted and the plaintiff's claims are dismissed without prejudice and with leave to replead. Any amended complaint in this action is to be filed by October 24, 2014. re: 28 MOTION to Dismiss filed by The City of New York. (Signed by Judge John G. Koeltl on 9/24/2014) (rjm) Modified on 9/26/2014 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
JOHN LITTLE,
13 Cv. 3813 (JGK)
Plaintiff,
MEMORANDUM OPINION
AND ORDER
- against CITY OF NEW YORK, OFFICER MS. HUNTER
Defendants.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
The pro se plaintiff, John Little, brings this action
pursuant to 42 U.S.C. § 1983, seeking damages against defendants
the City of New York and “Officer Ms. Hunter.”
Little alleges
that the City and Officer Hunter violated his Fourth and Eighth
Amendment rights when Officer Hunter observed his strip search.
The defendants filed a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, and the
plaintiff did not file a response.
under 28 U.S.C. § 1331.
The Court has jurisdiction
For the reasons explained below, the
defendants’ motion to dismiss is granted, and the plaintiff’s
claims are dismissed without prejudice and with leave to
replead.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
1
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007).
The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.”
1985).
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.”
Id.
Because Little is proceeding pro se, the Court must
“construe his complaint liberally and interpret it to raise the
strongest arguments that it suggests.”
Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)
(alteration omitted).
“Even in a pro se case, . . . ‘threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’”
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Id. (quoting Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009)).
Thus, although the
Court must “draw the most favorable inferences” that the
plaintiff’s complaint supports, it “cannot invent factual
allegations that he has not pled.”
Id.; see also Bowden v.
Duffy, No. 13cv717, 2014 WL 338786, at *1 (S.D.N.Y. Jan. 30,
2014).
II.
A.
The plaintiff filed his Original Complaint on June 3, 2013.
(Original Compl. 1.)
At a December 12, 2013, conference, and
before the defendants moved to dismiss, the plaintiff elected to
amend his complaint.
20.)
(See Dec. 12, 2014, Conference Tr. 6:12–
The Amended Complaint removes many of the factual details
of the strip search and instead alleges that the defendants
violated the Fourth and Eighth Amendments.
Compl. 3, with Am. Compl. 3.)
(Compare Original
The plaintiff thus appears to
believe that the Amended Complaint supplements, rather than
replaces, the Original Complaint.
Because the plaintiff is
proceeding pro se, the Court will consider the Original
Complaint and the Amended Complaint together as the operative
pleading.
See Winters v. United States, No.10cv7571, 2013 WL
1627950, at *1 n.1 (S.D.N.Y. Apr. 16, 2013); see also Estelle v.
Gamble, 429 U.S. 97, 106 (1976).
3
B.
The following facts alleged in the complaints are accepted
as true.
The plaintiff was detained at the George R. Vierno
Center on Rikers Islands.
On April 20, 2013, the plaintiff left
his cell, and Officer Hunter (a female) asked the plaintiff (a
male) to “strip down and hand me your clothes and drop your
underwear and turn around and bend over.”
The plaintiff complied.
(Original Compl. 3.)
(Original Compl. 3.)
Ms. Feliciano, witnessed the search.
Another officer,
(Original Compl. 3.)
Officer Hunter then conducted strip searches of the inmates in
two other nearby cells.
(Original Compl. 3.)
The plaintiff claims that the search violated the Fourth
and Eighth Amendments, (Am. Compl. 3,) and requests damages for
his emotional distress.
(Am. Comp. 3.)
III.
A.
Although the constitutional rights of prison inmates are
restricted because of the institutional needs of imprisonment,
see Price v. Johnston, 334 U.S. 266, 285 (1948), abrogated on
other grounds, 28 U.S.C. § 2244, the Fourth Amendment still
requires that strip searches of inmates be reasonable.
See
Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir. 1983) (per curiam)
(citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)); see also
Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1517
4
(2012) (“[C]orrectional officials must be permitted to devise
reasonable search policies to detect and deter the possession of
contraband in their facilities.”).
The reasonableness of a
strip search, in turn, “requires a balancing of the need for the
particular search against the invasion of personal rights that
the search entails.
Courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
conducted.”
Bell, 411 U.S. at 559.
The Supreme Court has
“repeated the admonition that, ‘in the absence of substantial
evidence in the record to indicate that the officials have
exaggerated their response to these considerations courts should
ordinarily defer to their expert judgment in such matters.’”
Florence, 132 S.Ct. at 1517 (quoting Block v. Rutherford, 468
U.S. 576, 584–85 (1984)).
Because an inmate “bears the burden of showing that a
search was unreasonable,” to survive a motion to dismiss, the
plaintiff “must ‘plead facts sufficient to give rise to a
plausible inference’ that the search he challenges was
unreasonable under the standards described above.”
Peek v. City
of New York, No. 13cv4488, 2014 WL 4160229, at *2 (S.D.N.Y. Aug.
18, 2014).
The gravamen of the plaintiff’s complaint appears to be
that his search violated the Fourth Amendment because it was
5
conducted by a member of the opposite sex.
Recognizing that a
strip search by an officer of the opposite sex involves a
heightened invasion of privacy, courts in this Circuit have
distinguished between “regular” and “close” viewing and
“incidental” and “brief” viewing of a naked prisoner.
latter is constitutional.
The
See, e.g., Israel v. City of New
York, No. 11cv7726, 2012 WL 4762082, at *3 (S.D.N.Y. Oct. 5,
2012) (finding that intake strip searches are constitutional and
that “the presence of other inmates and officers, males and
females, does not alter this determination”); Correction
Officers Benevolent Ass’n v. Kralik, No. 04cv2199, 2011 WL
1236135, at *11 (S.D.N.Y. Mar. 30, 2011) (“More recent cases in
this Circuit and elsewhere addressing inmates’ right to privacy
suggest that occasional, indirect, or brief viewing of a naked
prisoner by a guard of the opposite sex may be permissible, but
that ‘regular and close viewing’ is prohibited.”); Baker v.
Welch, No. 03cv2267, 2003 WL 22901051, at *20 (S.D.N.Y. Dec. 10,
2003) (holding that for parolees, “the balance should be struck
to allow incidental and obscured viewing but prohibit regular
and close viewing”); Miles v. Bell, 621 F. Supp. 51, 67 (D.
Conn. 1985) (holding that in order for inmates to show a
violation of their privacy rights, “[plaintiffs] must show that
the ‘viewing’ by guards of the opposite sex occurs on a regular
basis.”).
Courts in other circuits appear to agree.
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See, e.g.,
Oliver v. Scott, 276 F.3d 736, 745 (5th Cir. 2002) (“We twice
have found that security concerns can justify the strip search
of a male inmate in front of female guards.”); Lee v. Downs, 641
F.2d 1117, 1119 (4th Cir. 1981) (“Most people, however, have a
special sense of privacy in their genitals, and involuntary
exposure of them in the presence of people of the other sex may
be especially demeaning and humiliating.
When not reasonably
necessary, that sort of degradation is not to be visited upon
those confined in our prisons.”).
Here, the plaintiff fails to identify any facts suggesting
that the search involved close viewing of his body, that he was
subject to repeated opposite-sex viewings, or that the
individual defendant touched the plaintiff during the search.
The plaintiff also fails to identify the factual circumstances
surrounding the search—such as, whether the search was random or
a result of an emergency.
Accordingly, the plaintiff’s Fourth Amendment claim against
Officer Hunter is dismissed.
B.
The plaintiff also alleges that the defendants violated his
Eighth Amendment right to be free from cruel and unusual
punishment.
The plaintiff has not stated whether he was a
convicted prisoner, in which case his claims are analyzed under
the Eighth Amendment, or a pretrial detainee in state custody,
7
in which case his claims are analyzed under the Due Process
Clause of the Fourteenth Amendment.
F.3d 63, 69 (2d Cir. 2009).
is identical.
See Caiozzo v. Koreman, 581
In any event, the standard applied
Id. at 72; see also Morrissette v. Cripps, No.
10cv8795, 2011 WL 4089960, at *3 n.3 (S.D.N.Y. Sept. 14, 2011).
A prison official violates the Cruel and Unusual
Punishments Clause of the Eighth Amendment or the Due Process
Clause of the Fourteenth Amendment when her action involves the
“unnecessary and wanton infliction of pain.”
Whitley v. Albers,
475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S.
651, 670 (1977)).
To state a claim, the plaintiff must allege:
(1) that the alleged deprivation is sufficiently serious under
an objective standard; and (2) that the charged officials acted
with a sufficiently culpable state of mind.
McMillian, 503 U.S. 1, 8 (1992).
Hudson v.
The Second Circuit Court of
Appeals has held that severe or repetitive sexual abuse violates
the Eighth Amendment.
Boddie v. Schneider, 105 F.3d 857, 861
(2d Cir. 1997).
However, courts in this Circuit require the plaintiff to
allege that the defendant engaged in egregious conduct during
the strip search to state an Eighth Amendment violation.
A
single search, absent allegations of other culpable conduct,
does not violate the Eighth Amendment.
See, e.g., Vaughn v.
Strickland, No. 12cv2696, 2013 WL 3481413, at *3 (S.D.N.Y. July
8
11, 2013); Castro–Sanchez, 2012 WL 4474154, at *3.
The
plaintiff’s allegations here are too conclusory to state an
Eighth Amendment violation.
Accordingly, the plaintiff’s Eighth Amendment claims
against Officer Hunter are dismissed.
C.
Finally, the plaintiff failed to state a claim against the
City of New York.
“Municipalities may be sued directly under §
1983 for constitutional deprivations inflicted upon private
individuals pursuant to governmental custom, policy, ordinance,
regulation, or decision.”
Batista v. Rodriguez, 702 F.2d 393,
397 (2d Cir. 1983) (citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690–91 (1978)).
Municipalities are not subject to
liability under theories of respondeat superior, but rather
theories that their policies or customs “inflict[ed] the injury
upon the plaintiff.”
Id.
“To hold a city liable under § 1983
for the unconstitutional actions of its employees, a plaintiff
is required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.”
Id.; see also Kahn
v. Oppenheimer & Co., No. 08cv11368, 2009 WL 4333457, at *3
(S.D.N.Y. Dec. 1, 2009).
The plaintiff failed to allege a violation of a
constitutional right, let alone a custom or practice that would
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make the City of New York liable under Monell.
Accordingly, the
plaintiff’s claims against the City of New York are dismissed. 1
CONCLUSION
For the foregoing reasons, the defendants’ motion to
dismiss the plaintiff’s claims is granted and the plaintiff's
claims are dismissed without prejudice and with leave to
replead.
Any amended complaint in this action is to be filed by
October 24, 2014.
SO ORDERED.
Dated:
New York, New York
September 24, 2014
/s/
______________________________
John G. Koeltl
United States District Judge
1
Because the plaintiff failed to state a claim, the Court
need not decide whether the plaintiff failed to exhaust his
administrative remedies, see 42 U.S.C. § 1997e(a), or whether he
is barred from seeking compensatory damages, see id. § 1997e(e).
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