Shannon v. Venettozzi et al

Filing 111

MEMORANDUM OPINION & ORDER re: 104 MOTION to Dismiss Amended Complaint filed by Nitoscha Moore, Jermaine McTurner, V. Colon. The motion to dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 104 and to terminate this action. (As further set forth in this Memorandum Opinion & Order.) (Signed by Judge Katherine B. Forrest on 5/9/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JESSE SHANNON,
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Plaintiff,
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-v:
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D. VENETTOZZI et al.,
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Defendants.
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: May 9, 2017

13-cv-4530 (KBF)
MEMORANDUM
OPINION & ORDER

KATHERINE B. FORREST, District Judge:
Plaintiff Jesse Shannon, initially proceeding pro se, filed his first complaint
in this action on June 28, 2013, alleging that in 2011 he had been repeatedly groped
by a corrections officer in violation of the Eighth Amendment, that other officers
violated his rights by failing to protect him from sexual assault, and that he had
been retaliated against for complaining of the alleged assaults. (ECF No. 2.)
Plaintiff sought both damages and injunctive relief. (Id. at 6.) Defendants moved to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF
No. 64.)
On January 8, 2015, the Court granted defendants’ motion in its entirety.
(ECF No. 81, Shannon v. Venettozzi, No. 13-cv-4530, 2015 WL 114179 (S.D.N.Y.
Jan. 8, 2015).) As is relevant here, the Court held that allegations of Correctional
Officer Jermaine McTurner fondling and grabbing plaintiff’s genital area and
buttocks on several occasions, while despicable, did not rise to the level of what the

Second Circuit had previously found to violate the Constitution. (Id. at *4-5 (citing
Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997).) Plaintiff appealed, and on
November 15, 2016, the Second Circuit vacated the dismissal of plaintiff’s Eighth
Amendment claims in light of its intervening August 11, 2015 decision in Crawford
v. Cuomo, 796 F.3d 252 (2d Cir. 2015). (ECF No. 95, Shannon v. Venettozzi, 670 F.
App’x 29, 31 (2d Cir. 2016).) In Crawford, the Second Circuit held that district
courts had been interpreting its 1997 opinion in Boddie v. Schnieder too narrowly,
and that “[l]ess severe but repetitive conduct may still be ‘cumulatively egregious’
enough to violate the Constitution.” Crawford, 796 F.3d at 257 (quoting Boddie, 105
F.3d at 861).
Plaintiff retained counsel in early February 2017. (ECF No. 96.) After
seeking and receiving leave to amend the complaint, plaintiff’s counsel filed a first
amended complaint (“FAC”), which reiterates plaintiff’s Eighth Amendment claims
pursuant to 42 U.S.C. § 1983 but, unlike plaintiff’s original complaint, does not seek
injunctive relief. (See ECF No. 103.) On March 17, 2017, defendants again moved
to dismiss the complaint. (ECF No. 104.)
The Court assumes familiarity with, and therefore will only briefly
summarize, the facts alleged in plaintiff’s FAC. Plaintiff is currently incarcerated
at Sing Sing Correctional Facility in Ossining, New York, and has been at all times
relevant to this action. (FAC ¶ 9.) He alleges that defendant McTurner repeatedly
sexually assaulted him when plaintiff attempted to use the restroom during
visitation time, and that defendants Correctional Officer Nitoscha Moore and
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Correctional Sergeant V. Colon ignored plaintiff’s requests for intervention to stop
the alleged assaults. (Id. ¶¶ 12-20.) For example, plaintiff alleges that in August
2011, he was waiting in line to use the restroom during a visit from his wife when
defendant McTurner sexually assaulted plaintiff by rubbing plaintiff’s genitalia,
inner thighs, stomach, and chest. (Id. ¶ 12.) Plaintiff alleges that defendant
McTurner’s touching was sexual in nature and “totally unconducive to a legitimate
search for contraband.” (Id.) Plaintiff claims that when he complained to defendant
Moore—who, he alleges, witnessed the assault—Moore ignored him and refused to
intervene. (Id. ¶ 13.)
Defendants move to dismiss the FAC for failure to state a claim because,
inter alia, defendants have qualified immunity from plaintiff’s Eighth Amendment
claims, and plaintiff has not shown that Crawford’s holding was clearly established
law at the time of defendant McTurner’s alleged conduct. (ECF No. 104 at 10.) The
Court agrees.
Qualified immunity attaches unless the right plaintiff claims was “so clearly
established” that “it is obvious that no reasonably competent officer would have
concluded” the alleged conduct was constitutionally permissible. Malley v. Briggs,
475 U.S. 335, 341 (1986); see also Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088,
2093 (2012); Pearson v. Callahan, 555 U.S. 223, 231 (2009). This is a high bar, as
qualified immunity “gives ample room for mistaken judgments” and “provides
ample protection to all but the plainly incompetent or those who knowingly violate
the law.” Malley, 475 U.S. at 343, 341.
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In the eighteen years between Boddie and Crawford, district courts
repeatedly declined to find unconstitutional conduct similar to that alleged here.
See, e.g., Irvis v. Seally, 2010 WL 5759149, at *1 (N.D.N.Y. Sept. 2, 2010), report
and rec. adopted 2011 WL 454792 (N.D.N.Y. Feb. 4, 2011) (dismissing plaintiff’s
Eighth Amendment claim alleging three instances of sexual touching during strip
searches); Garcia v. Watts, No. 08-cv-7778, 2009 WL 2777085, at *6-*7 (S.D.N.Y.
Sept. 1, 2009) (dismissing plaintiff’s Eight Amendment claim alleging continuous
harassment extending over one year, including incidents of defendant grabbing
prisoner’s buttocks and rubbing his penis against prisoner’s buttocks); Montero v.
Crusie, 153 F.Supp.2d 368, 372-73, 375 (S.D.N.Y. 2001) (granting summary
judgment in part because a corrections officer who “threw kisses” at plaintiff,
“squeezed plaintiff’s genitalia” on several occasions, and spread rumors about
plaintiff’s sexuality did not violate the Eight Amendment). Moreover, as the Second
Circuit explained in its decision in this action, “Crawford observed that ‘conduct
that might not have been seen to rise to the severity of an Eighth Amendment
violation 18 years ago may now violate community standards of decency.’” 670 F.
App’x at 31 (quoting Crawford, 796 F.3d at 260)).
Crawford’s broader interpretation of Boddie was therefore not clearly
established at the time of the alleged sexual assaults, and it was not objectively
unreasonable for officials to believe that defendant McTurner’s conduct did not
violate the Constitution. It is therefore not the case that “existing precedent placed
the conclusion that [defendants] acted unreasonably in these circumstances ‘beyond
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debate.’” Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (quoting Ashcroft v. Al-Kidd,
563 U.S. 731, 741 (2011)).
Because defendants have immunity against plaintiff’s remaining claims, and
because plaintiff no longer seeks injunctive relief, the Court need not reach the
additional bases on which defendants move to dismiss. (See ECF No. 106; Sudler v.
City of New York, 689 F.3d 159, 177-78 (2d Cir. 2012).)
The motion to dismiss is GRANTED. The Clerk of Court is directed to close
the motion at ECF No. 104 and to terminate this action.
SO ORDERED.
Dated:

New York, New York
May 9, 2017

______________________________________
KATHERINE B. FORREST
United States District Judge

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