Bradshaw v. The City of New York et al

Filing 105

OPINION AND ORDER re: 100 MOTION for Reconsideration of the Court's February 9, 2018 Opinion and Order filed by The City of New York, Larry Wilson, Dora Schriro. Defendants' motion for reconsideration is DENIED. The parties are directed to appear for a status conference on May 29, 2018 at 10:30 a.m. The Clerk of Court is respectfully directed to terminate the motion (Doc. 100) and to mail a copy of this order to Bradshaw. It is SO ORDERED. (Status Conference set for 5/29/2018 at 10:30 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 4/18/2018) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JAY BRADSHAW,
Plaintiff,
- against -

OPINION AND ORDER

THE CITY OF NEW YORK, DORA SCHRIRO,
LARRY WILSON, CAPTAIN JOHN DOES 1–30,
New York City Department of Corrections—
Emergency Service Unit, OFFICER JOHN DOES
1–120, New York City Department of
Corrections—Emergency Service Unit, and
CAPTAIN JOHN DOE 1, Green Haven
Correctional Facility,

15 Civ. 4638 (ER)

Defendants.

Ramos, D.J.:
Jay Bradshaw (“Bradshaw” or “Plaintiff”) brings this action under 42 U.S.C. § 1983
(“Section 1983”) alleging violations of his Fourth and Eighth Amendment rights. See Compl.
(Doc 1).
On February 9, 2018, the Court partially granted the City of New York’s motion for
summary judgment. The Court terminated three defendants—Defendants Dora Schriro, Larry
Wilson, and Captain John Doe 1. See Doc. 98. It also determined that, of the sixty allegedly
unconstitutional strip searches Bradshaw was subjected to, Defendants were entitled to judgment
as a matter of law on fifteen searches, searches that were irrefutably conducted for a penological
purpose and not to punish or humiliate Bradshaw. Id. at 13–14. The Court found that a
reasonable jury could conclude that the remainder of the strip searches, all of which were the
second or third strip search of Bradshaw on the day in question, violated Bradshaw’s Fourth
Amendment rights. Id. at 9–12. The Court also found that Defendants were not entitled to

qualified immunity because a jury could conclude that would be unreasonable for a corrections
officer to conduct a subsequent strip search in light of the continuous surveillance of Bradshaw
following his initial strip search. Id. at 12 n.8. Defendants now move for reconsideration,
arguing that the Defendants are entitled to qualified immunity for all of the conduct alleged in
Bradshaw’s complaint. See Doc. 100. 1 For the reasons stated herein, Defendants’ motion is
DENIED.
I.

LEGAL STANDARD
Rule 6.3 of the Local Civil Rules for this District provides for reconsideration of a court’s

order on a motion only where the court has overlooked controlling decisions or factual matters
that were “put before it on the underlying motion . . . and which, had they been considered,
might have reasonably altered the result before the court.” Mikol v. Barnhart, 554 F. Supp. 2d
498, 500 (S.D.N.Y. 2008) (quoting Greenwald v. Orb Commc’ns & Mktg., Inc., No. 00 Civ.
1939 (LTS), 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003)); see also Local R. 6.3. Under
such circumstances, a motion for reconsideration may be granted “to correct a clear error or
prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Trust, 729 F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks omitted).
“Reconsideration of a court’s previous order is an ‘extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.’” Parrish v.
Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (quoting In re Health Mgmt. Sys. Inc. Secs.
Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). Local Rule 6.3 is “narrowly construed and
strictly applied so as to avoid repetitive arguments on issues that have been considered fully by
the Court.” Mikol, 554 F. Supp. 2d at 500 (internal quotation marks omitted) (quoting Dellefave

1

The Court has received a letter from Bradshaw requesting the opportunity to file a late response to Defendants’
motion. Doc. 104. Because the Court denies the motion, Bradshaw’s request is denied as moot.

2

v. Access Temps., Inc., No. 99 Civ. 6098 (RWS), 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22,
2001)). “Where the movant fails to show that any controlling authority or facts have actually
been overlooked, and merely offers substantially the same arguments he offered on the original
motion or attempts to advance new facts, the motion for reconsideration must be denied.” Id.
(citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Whether to grant or deny a motion for reconsideration lies within the sound discretion of
the district court. Premium Sports Inc. v. Connell, No. 10 Civ. 3752 (KBP), 2012 WL 2878085,
at *1 (S.D.N.Y. June 11, 2012) (citing Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009)).
II.

DISCUSSION
Defendants argue that the Court should have found that they were entitled to qualified

immunity because the cases on which the Court relied, Vasquez v. Williams, Turkmen v. Hasty,
and N.G. ex rel. S.C. v. Connecticut, are factually distinguishable and/or “apply inconsistent legal
analyses.” See Defendants’ Memorandum of Law in Support of their Motion for
Reconsideration (“Recons. Mem.”) (Doc. 100) at 4. In essence, Defendants argue the Court
applied these precedents incorrectly, or that it should not have been persuaded by the analysis in
these cases at all. However, a motion for reconsideration “is not a substitute for appeal.” In re
Initial Pub. Offering Sec. Litig., 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005), aff’d sub nom
Tenney v. Credit Suisse First Boston Corp., No. 05-3430, 2006 WL 1423785 (2d Cir. May 19,
2006) (quoting RMED Int’l, Inc. v. Sloan’s Supermarkets, Inc., 207 F. Supp. 2d 292, 296
(S.D.N.Y. 2002)). “Misapplication of the law . . . is a ground for appeal, not reconsideration.”
Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 609 (S.D.N.Y. 2012) (collecting cases). At the
outset, then, the Court notes that the proper vehicle for Defendants’ disagreement with its
decision is appeal.

3

Further, upon consideration of Defendants’ specific arguments as to why the Court
misapplied or was wrongly persuaded by Vasquez, Turkmen, and N.G., the Court finds that
reconsideration is not appropriate.
First, Defendants argue that Vasquez and Turkmen should not have been considered
because they were decided in 2015, years after the strip searches in question were conducted.
See Recons. Mem. at 3. Defendants misunderstand the Court’s citation to Vasquez and Turkmen.
Vasquez was not the first case to clearly establish that a corrections officer must have a
penological purpose in conducting a strip search, especially when an inmate has been under
continuous surveillance since an earlier strip search that same day. Rather, Vasquez found that
officers who conducted such strip searches as early as 2012 (a year before the relevant conduct in
this case) were not entitled to qualified immunity in 2015. See Vasquez v. Williams, No. 13 Civ.
9127 (LGS), 2015 WL 4757657 (S.D.N.Y. Aug. 11, 2015). In other words, Vasquez applied
principles that were already clearly established to conduct that occurred even before the conduct
in this litigation. Similarly, in Turkmen, the Second Circuit determined that by September 11,
2001, it was “clearly established” that strip searches must be rationally related to legitimate
government purposes. See Turkmen v. Hasty, 789 F.3d 218, 261–62 (2d Cir. 2015), rev’d in part
on other grounds sub nom. Ziglar v. Abasi, 17 S. Ct. 1843 (2017). Both cases, in turn, pointed to
Hodges v. Stanley, in which the Second Circuit, in a per curiam decision, considered yet another
similar factual pattern and concluded that the plaintiff had stated a constitutional challenge:
Hodges’ challenge is not to the validity of predetention searches per
se, but instead to the need for a second search. The second search
took place shortly after the first, and Hodges had been under
continuous escort. Under these circumstances it seems clear that
there was no possibility that Hodges could have obtained and
concealed contraband. Thus the second search appears to have been
unnecessary. We therefore cannot say that Hodges has failed to state
a constitutional claim.
4

Hodges v. Stanley, 712 F.2d 34, 35–36 (2d Cir. 1983). 2 The Court therefore is not persuaded by
Defendants’ argument that because Turkmen and Vasquez were published after the conduct at
issue in this case, “the law regarding the alleged strip searches herein was not clearly
established.” Recons. Mem. at 4. Turkmen and Vasquez both denied qualified immunity to
officers for conduct that predated the conduct in this case, and both relied on earlier Second
Circuit cases explaining the constitutional problems presented by successive strip searches.
Second, Defendants argue that all three cases are too factually dissimilar from
Bradshaw’s strip searches to clearly establish that Defendants’ conduct was unlawful. See
Recons Mem. at 4. Defendants argue that none of the cases relied upon by the Court specifically
held that:
[A]n adult, convicted and sentenced inmate had the right to be free
from subsequent strip searches (1) conducted upon the inmate being
transferred to the custody of another correctional institution and/or
(2) conducted several hours after an earlier strip search after such
inmate has been exposed to other inmates and individuals outside of
the correctional facility, even where the inmate alleges that he could
not have obtained contraband between searches. 3

2

Defendants point to Judge Raggi’s dissent in Turkmen, in which she argued that “Hodges . . . was decided before
Turner and Covino. Thus, courts cannot assume that its ‘no possibility’ to obtain contraband conclusion invariably
equates to the required showing of no rational relationship to a legitimate government purpose.” Recons. Mem. at 8;
Turkmen, 789 F.3d at 301 (Raggi, J., dissenting). But Judge Raggi went on to contrast Hodges with Turkmen by
noting that in Hodges, there were successive strip searches in a short time frame, while in Turkmen, the plaintiffs
complained of “random” strip searches and “required strip searches in circumstances involving intervening events—
e.g., before and after non-contact visits.” Id. at 301. If anything, then, Judge Raggi’s dissent appears to recognize
the constitutional significance of successive strip searches like the ones in this case, which were almost all
conducted in the absence of intervening contact or non-contact visits.
3

The Court also notes that the record does not indicate that while Bradshaw was at Bronx Criminal Court, he was
“exposed to other inmates”—both parties represented in their 56.1 statements that Bradshaw was placed in a
segregated cell apart from other inmates. See Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment
(Doc. 94) at 2; Defendants’ Statement of Undisputed Facts (Doc. 83) ¶¶ 35–37. Further, Bradshaw was handcuffed
and under continuous escort during the times he left his isolated cell. See Declaration of Megan Conger (Doc. 96)
Ex. A (Bradshaw Dep.) at 93:25–94:24. The record before the Court indicates only one non-contact visit, which
took place between Bradshaw and his attorney on September 3, 2013. See Plaintiff’s Opposition to Defendants’
Motion for Summary Judgment (Doc. 94) ¶109.

5

Recons. Mem. at 3. Defendants point to District of Colombia v. Wesby, in which the Supreme
Court reiterated that the “clearly established” standard “requires a high degree of specificity” and
that it must be “clear to a reasonable officer that his conduct was unlawful.” Wesby, 138 S. Ct.
577, 590 (2018) (internal quotations omitted). But qualified immunity “does not require a case
directly on point for a right to be clearly established.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). Instead, it requires that “the right’s
contours were sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” Id. at 1153 (quoting Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014)). Although Defendants point to certain factual differences between
Bradshaw’s searches and the searches in Vasquez, 4 Turkmen, 5 and N.G., 6 the Court finds that

4

For example, Defendants argue that Vasquez is distinguishable because in Vasquez, the plaintiff was transferred
among institutions all within the purview of the City of New York, while in this case, Bradshaw was transferred
between a New York state facility and a New York City facility. Recons. Mem. at 5. Vasquez does not draw this
distinction, and in both Vasquez and N.G., the inmates or confined individuals were transferred between facilities.
In N.G., the Second Circuit noted that while it might be more “convenient” for the personnel at the second facility to
conduct a second strip search, “mere convenience . . . cannot be a sufficient interest to justify such a serious
impairment of privacy.” N.G. v. Connecticut, 382 F.3d 225, 234 (2d Cir. 2004). Defendants also argue that Vasquez
misapplies the law because it is the plaintiff’s burden to show that the strip search lacked a rational relationship to
any penological purpose. Recons. Mem. at 6–7. Defendants argue that here, Bradshaw cannot meet that burden
because his complaint does not refer to the initial strip searches at Greenhaven. Id. at 2 n.1. However, Bradshaw
details his allegations about the initial strip searches in his opposition, and he cites to admissible evidence in the
form of his deposition. See Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (Doc. 94), at 1.
When a plaintiff proceeds pro se, the Court may rely on opposition papers in assessing the legal sufficiency of the
claims. Henning v. New York City Dep’t of Corr., 2016 WL 297725, at *3 (quoting Rosado v. Herard, No. 12 Civ.
8943 (PGG) (FM), 2013 WL 6170631, a *2 (S.D.N.Y. Nov. 25, 2013)). Further, a court must afford special
solicitude to pro se litigants confronted with motions for summary judgment. See Fawemimo v. Am. Airlines, Inc.,
No. 14 Civ. 4510 (PKC), 2017 WL 398387, at *1 (citing Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)).
Finally, the Court notes that Defendants did not raise this argument in its opening or reply papers in support of their
motion for summary judgment, despite the fact that they were aware of Bradshaw’s arguments with respect to
“subsequent” strip searches. See Reply Memorandum of Law in Support of Defendants’ Motion for Summary
Judgment (Doc. 95) at 7.
5

With respect to Turkmen, Defendants argue that the plaintiffs in that case never left the prison facility and that the
strip searches were “part of larger conditions of confinement allegations.” Recons. Mem. at 7. As discussed above,
courts in this Circuit have found that subsequent strip searches may violate the Fourth Amendment even when a
confined individual has been transferred among facilities. Second, although the Turkmen plaintiffs alleged a wider
array of unlawful conduct, their strip search claim (Claim 6) was independent of the unconstitutional conditions
claim (Claim 1). Turkmen, 789 F.3d at 232, 259–62.

6

Defendants argue that in N.G., the Second Circuit “heavily weighted” the fact that the plaintiffs were minors.
Recons. Mem. at 9. But both prior and subsequent cases determined that successive strip searches could violate an

6