Patterson v. Aponte et al

Filing 43

REPORT AND RECOMMENDATION re: 26 MOTION to Dismiss the Complaint and Amended Complaint filed by Maxolaine Mingo, Joseph Aponte. For the reasons discussed above, I recommend that the defendants' motion be granted. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk o f the Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, Room 2201, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 4/13/2017.) (Signed by Magistrate Judge James C. Francis on 3/30/2017) (anc)

Background
Mr. Patterson claims that while he was detained 2 at the AMKC,
his cellblock was frequently locked down for long periods even
when the reason for the lockdown was “not in [his] area” and
despite “the problem area [being] secured.”
at 3).

(Complaint (“Compl.”)

As a result, he has been “denied visits, counsel visits,

law library, mail, packages, social service legal aid, timely
medication, recreation, phone, commissary, showers, t.v., sick
call, and barbershop.”

(Compl. at 3).

Furthermore, he has been

denied recreation, sick call, and use of the law library because
of understaffing.

(Amend. Compl. at 2-3; Inmate Grievance and

Request Program Statement Form dated Sept. 17, 2016 (“9/17/16
Grievance”), attached as an exhibit to Letter of Trent Patterson
filed Sept. 27, 2016).

He further alleges that he has been

assigned a mattress that is “unfit for human usage,” causing him
pain.

(Compl. at 3).

He claims that “[t]he warden[] and commisser

[sic] are aware of and responsible for all the above-mentioned
constitutional violations.”

(Compl. at 3).

plaintiff does not intend to abandon his original claims. (Amended
Complaint (“Amend. Compl.”) at 5).
2

While no party has indicated whether Mr. Patterson is a pretrial detainee or a convicted prisoner, I will assume that he is
the former, as he would be entitled to somewhat greater
constitutional protection.
2

On March 4, 2016, the plaintiff was strip searched by C.O.
Lewis in the pantry area of the facility.

(Inmate Grievance and

Request Program Statement Form dated March 11, 2016 (“3/11/16
Grievance”), attached as an exhibit to Amend. Compl.; Letter of
Trent Patterson filed Dec. 28, 2016 (“12/28/16 Patterson Letter”),
at 2). 3

The plaintiff claims that during the strip search, he was

directed to “squat” several times, but after he was ordered to do
so for a fourth time, he refused; C.O. Lewis then “grabbed [his]
buttocks and a verbal altercation erupted.”

(3/11/16 Grievance).

Captain Johnson arrived and ordered Mr. Patterson handcuffed, and
he was escorted to the receiving room where he was searched and
ordered to squat again.
found.

(3/11/16 Grievance).

No contraband was

(Notice of Intention to File a Claim, attached as an

exhibit to Amend. Compl., ¶ 3). 4

The plaintiff claims that he

“[d]idn’t do anything to provoke the search or assault.”

(Letter

of Trent Patterson filed Feb. 2, 2017, at 2).
Mr. Patterson states that he filed administrative grievances
concerning these allegations and then appealed to the Warden, but
received no responses to the appeals.

(Compl. at 4; Amend. Compl.

at 4).

3

The grievance is attached in the middle of the Amended
Complaint.
4

This document also appears in the middle of the Amended
Complaint.
3

Discussion
To survive a motion to dismiss under Rule 12(b)(6) of the
Federal

Rules

of

Civil

Procedure,

“a

complaint

must

contain

sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
dismiss

The court’s charge in ruling on a 12(b)(6) motion to
“is

merely

to

assess

the

legal

feasibility

of

the

complaint, not to assay the weight of the evidence which might be
offered in support thereof.”

GVA Market Neutral Master Ltd. v.

Veras Capital Partners Offshore Fund, Ltd., 580 F. Supp. 2d 321,
327 (S.D.N.Y. 2008) (quoting Eternity Global Master Fund Ltd. v.
Morgan Guaranty Trust Co. of New York, 375 F.3d 168, 176 (2d Cir.
2004)).

The court must construe the complaint in the light most

favorable to the plaintiff, “taking its factual allegations to be
true and drawing all reasonable inferences in the plaintiff’s
favor.”

Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

This standard applies equally to pro se plaintiffs, but their
pleadings are read more liberally and are construed as raising the
strongest claims implied.

See Triestman v. Federal Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam).

The court

may also consider “materials outside the complaint to the extent
that they are consistent with the allegations in the complaint.”
4

Martinez v. Aycock-West, 164 F. Supp. 3d 502, 508 (S.D.N.Y. 2016)
(quoting Alsaifullah v. Furco, No. 12 Civ. 2907, 2013 WL 3972514,
at *4 n.3 (S.D.N.Y. Aug. 2, 2013)).
To plead a claim properly under § 1983, a plaintiff must
allege that “(1) the challenged conduct was attributable at least
in part to a person who was acting under color of state law and
(2) the conduct deprived the plaintiff of a right guaranteed under
the Constitution of the United States.”

Snider v. Dylag, 188 F.3d

51, 53 (2d Cir. 1999); accord Thomas v. City of New York, No. 11
Civ. 0578, 2012 WL 4889257, at *2 (S.D.N.Y. Oct. 16, 2012).
The defendants have moved to dismiss the plaintiff’s § 1983
claims, arguing that (1) the plaintiff failed to exhaust his
administrative

remedies,

(2)

the

constitutional

claims

are

insufficiently pled, and (3) Warden Mingo and Commissioner Ponte
were

not

personally

involved

in

any

of

the

constitutional

deprivations.
A.

Administrative Exhaustion

The Prison Litigation Reform Act (the “PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.”

42 U.S.C. § 1997e(a).
5

However, “failure to exhaust

is an affirmative defense” and “is not a jurisdictional predicate.”
Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated on
other grounds by Ross v. Blake, __ U.S. __, 136 S. Ct. 1850 (2016).
Thus, it need not be pled with particularity.
136 F. Supp. 3d 570, 580 (S.D.N.Y. 2015).

Lopez v. Cipolini,
But a complaint may

still be dismissed on a Rule 12(b)(6) motion if it is evident from
the face of the complaint that administrative procedures were not
followed and if none of the exceptions to the procedures are
germane.

See id. at 581.

Mr. Patterson alleges that he filed grievances for all of his
claims 5 and that he appealed those grievances to the Warden.
(Compl. at 4; Amend. Compl. at 4).
responses.

(Compl. at 4).

His appeals received no

“It is well settled that an inmate who

receives no response to his grievance must continue with the next
steps in the grievance process.”

Tyler v. Argo, No. 14 Civ. 2049,

2014 WL 5374248, at *4 (S.D.N.Y. Oct. 10, 2014).

However, the

pleadings are silent regarding whether Mr. Patterson filed further
appeals.

Because it is unclear from the face of the Complaint and

Amended Complaint whether administrative remedies have been fully
exhausted, they should not be dismissed for failure to exhaust.

5

The defendants concede that “the strip search claim is not
subject to the IGRP process, as shown by the disposition form.”
(Memorandum of Law in Support of Defendant’s Motion to Dismiss at
6).
6

See Shaw v. Ortiz, No. 15 Civ. 8964, 2016 WL 7410722, at *5
(S.D.N.Y. Dec. 21, 2016).
B.

Liberty Interest Claim

Mr. Patterson alleges that the lockdowns in the facility are
excessive because the prison administration “continues to lockdown
the entire facility because of violent incidents even after the
problem area is secured, located and not in my area.”
3).

(Compl. at

The Second Circuit has stated that “[l]iberty from bodily

restraint always has been recognized as the core of the liberty
protected by the Due Process Clause from arbitrary governmental
action.”

Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001)

(quoting Youngberg v. Romeo, 457 U.S. 307, 316 (1982)).

However,

“a detainee’s liberty interest in freedom from restraint is highly
qualified and must be balanced against the state’s reasons for
restraining that liberty.”

Id.

“Thus, ‘[a]bsent a showing of an

expressed intent to punish,’ courts in this circuit consider
whether there is ‘an alternative purpose to which [the restriction]
may rationally be connected . . . and whether [the restriction]
appears

excessive

in

relation

to

the

alternative

purpose.’”

Williams v. Ramos, No. 13 Civ. 826, 2013 WL 7017674, at *3
(S.D.N.Y.

Dec.

23,

2013)

(alterations

Benjamin, 264 F.3d at 188).

7

in

original)

(quoting

The plaintiff has not alleged an express intent to punish.
See id.

Furthermore, he has failed to allege his liberty claim

with sufficient specificity: he provided no facts with respect to
the length, frequency, or reasons for the lockdowns.

Absent such

information, the court cannot engage in the requisite balancing of
interests.

Therefore, the plaintiff’s liberty interest claim

should be dismissed.
C.

Access to Counsel and to the Court

“[T]he right to counsel and the right to access to the court
are interrelated . . . [h]owever, the two rights are not the same.”
Benjamin, 264 F.3d at 186.

“[A]ccess claims . . . concern[] the

ability of . . . prisoners to attack their sentences, directly or
collaterally,
confinement.

and

to

challenge

the

conditions

of

their

By contrast . . . the Sixth Amendment [confers the]

right of a pretrial detainee, in a case brought against him by the
state, to utilize counsel in his defense.”

LaRock v. Amato, No.

12 CV 503, 2013 WL 5466410, at *6 (N.D.N.Y. Sept. 30, 2013)
(alterations in original) (quoting Benjamin, 264 F.3d at 186).
The plaintiff claims that the lockdowns have restricted access to
the

court

and

to

counsel,

stating

specifically

that

a

legal

telephone conference was postponed and that a paralegal was denied
access to him.

(Letter of Trent Patterson filed Feb. 1, 2017

(“2/1/17 Patterson Letter”), at 2-3).
8

1.

Sixth Amendment

A pre-trial detainee needs “‘access to the courts and counsel
. . . to defend against the charges brought against [him].’
Accordingly, the Second Circuit has determined that a pretrial
detainee’s Sixth Amendment rights are infringed upon when prison
regulations ‘unjustifiably obstruct’, ‘infringe’, ‘unreasonably
burden’, or ‘significantly interfered’ with the detainee’s access
to counsel.”

LaRock, 2013 WL 5466410, at *6 (first alteration in

original) (citations omitted) (quoting Benjamin, 264 F.3d at 18687).

“[E]ven

when

an

institutional

restriction

infringes

a

specific constitutional guarantee . . . the practice must be
evaluated

in

the

light

of

the

central

objective

administration, safeguarding institutional security.”

of

prison
Bell v.

Wolfish, 441 U.S. 520, 547 (1979).
The plaintiff’s allegations fail to show how the postponement
of a single telephone conference and the inability to speak with
a paralegal on a single occasion unreasonably burdened his right
to counsel.

See LaRock, 2013 WL 5466410, at *6.

The Sixth

Amendment claim should therefore be dismissed.
2.

Access to the Courts

Mr. Patterson’s allegations, liberally construed, suggest a
claim of denial of access to the courts.

He claims that he was

unable to file a “440.20/30/10” because his attorney could not
9

assist him and that his legal mail has been delayed.
Patterson

Letter

at

4;

2/1/17

Patterson

Letter

(12/28/16
at

3).

Additionally, he asserts that the law library is understaffed,
that it is not large enough, and that he has been denied access
because of lockdowns.

(Inmate Grievance and Request Program

Statement Form dated Sept. 10, 2016, attached as an exhibit to
Letter of Trent Patterson filed Sept. 14, 2016).
“To state a claim for denial of access to the courts, a
plaintiff must assert non-conclusory allegations demonstrating
that (1) the defendant acted deliberately and maliciously, and (2)
the plaintiff suffered an actual injury.”

Burroughs v. Petrone,

138 F. Supp. 3d 182, 210 (N.D.N.Y. 2015) (citing Lewis v. Casey,
518 U.S. 343, 353 (1996)).

To establish actual injury, the denial

must have hindered the plaintiff’s efforts in pursuing a nonfrivolous legal claim.

Abreu v. Travers, No. 15 CV 540, 2016 WL

6127510, at *11 (S.D.N.Y. Oct. 20, 2016).

Furthermore,

the Supreme Court has stated that in order to allege a
denial of access to the courts claim, “the underlying
cause of action, whether anticipated or lost, is an
element that must be described in the complaint . . . .”
The Supreme Court instructed that the underlying claim
“must
be
described
well
enough
to
apply
the
‘nonfrivolous' test and to show that the ‘arguable’
nature of the underlying claim is more than hope.”
Abreu,

2016

WL

6127510,

at

*11

(citation

omitted)

Christopher v. Harbury, 536 U.S. 403, 415-16 (2002)).

10

(quoting

While Mr. Patterson claims that he was unable to file a claim
after

a

lockdown,

he

does

not

adequately

meritorious legal claim was frustrated.

describe

whether a

Additionally, he fails to

allege that the conduct was deliberate or malicious.

Thus, this

claim should be dismissed.
D.

Communication, Visitation, and Mail

The plaintiff alleges that, because of the lockdowns, he has
been denied visitation, communication, packages, and mail.

“The

right of intimate association ‘is among the rights least compatible
with incarceration,’ which, by definition, requires confinement.”
Williams, 2013 WL 7017674, at *4 (quoting Overton v. Bazzetta, 539
U.S.

126,

131

communication,

(2003)).
mail,

An

inmate’s

packages,

and

right

telephone

to

visitation,

calls

may

be

restricted if the restrictions employed are reasonably related to
legitimate penological interests -- namely, security.

Overton,

539 U.S. at 132; Thornburgh v. Abbott, 490 U.S. 401, 409, 413
(1989); Burroughs, 138 F. Supp. 3d at 210; Williams, 2013 WL
7017674, at *4; Garraway v. Griffin, No. 12 CV 924, 2013 WL
2105903, at *4 (S.D.N.Y. May 8, 2013).
The plaintiff’s allegations are too vague and conclusory to
state a claim for relief.
11.

He

does

restrictions,

not
nor

See Burroughs, 138 F. Supp. 3d at 210-

describe
does

he

the

length

identify
11

or

with

frequency

of

specificity

the
what

communications might have been restricted.

These claims, too,

should be dismissed.
E.

Conditions of Confinement Claims

A pre-trial detainee’s conditions of confinement claims are
governed by the Due Process Clause of the Fourteenth Amendment
rather than the Eighth Amendment, and “[a] detainee’s rights are
‘at least as great as the Eighth Amendment protections available
to a convicted prisoner.’”

Darnell v. Pineiro, 849 F.3d 17, 27

(2d Cir. 2017) (quoting City of Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244 (1983)).

Thus, a pre-trial detainee

may establish a conditions claim by showing that the defendants
acted with deliberate indifference, which requires satisfying both
an objective prong and a “mental element prong.”
1.

Id.

Objective Prong

The objective prong requires that a plaintiff allege “a
deprivation that is ‘objectively, sufficiently serious’ that he
was denied ‘the minimal civilized measure of life’s necessities.’”
Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

“[A] prisoner must

prove that the conditions of his confinement violate contemporary
standards of decency.”
Cir. 2002).

Phelps v. Kapnolas, 308 F.3d 180, 185 (2d

“[T]he inmate must show that the conditions, either

alone or in combination, pose an unreasonable risk of serious
12

damage to his health.”

Darnell, 849 F.3d at 31 (quoting Walker v.

Schult, 717 F.3d 119, 125 (2d Cir. 2013)).
confinement

may

be

aggregated

to

rise

Thus, “conditions of
to

the

level

of

a

constitutional violation, but ‘only when they have a mutually
enforcing

effect

that

produces

the

deprivation

of

a

single,

identifiable human need such as food, warmth, or exercise.’”
Walker, 717 F.3d at 125 (quoting Wilson v. Seiter, 501 U.S. 294,
304

(1991)).

“Although

the

Constitution

does

not

require

‘comfortable’ prison conditions, the conditions of confinement may
not ‘involve the wanton and unnecessary infliction of pain.’”
(quoting Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981)).

Id.
Each

condition “must be measured by its severity and duration, not the
resulting injury.”
a.

Darnell, 849 F.3d at 32.
Showers and Barbershop

The plaintiff claims he was denied use of the showers and the
barbershop.

A deprivation “must result in the denial of the

minimal civilized measure of life’s necessities.”

Farmer, 511

U.S. at 298.

Indeed, “[t]he failure to provide inmates with

showers

lockdowns

during

has

been

upheld

in

cases

where

the

lockdown itself was not subject to constitutional challenge.”
Brooks v. NYC DOC Commissioner, 14 CV 6283, 2016 WL 4530456, at *5
(E.D.N.Y. Aug. 29, 2016) (collecting cases).

Mr. Patterson does

not specify how long he was denied shower access, and therefore
13

his “threadbare allegation must fail.”

Banks v. Argo, No. 11 Civ.

4222, 2012 WL 4471585, at *4 (S.D.N.Y. Sept. 25, 2012).

Moreover,

“the claimed denial of ordinary access to a barber, as a matter of
law, fails to amount to the denial of the minimal civilized measure
of life’s necessities.”

Id.

Therefore, these claims should be

dismissed.
b.
The

plaintiff

Recreation
claims

that

facility

personnel

denied

him

recreation time because of lockdowns and lack of staffing. (Compl.
at 3; 9/17/16 Grievance). Exercise is a basic human need protected
by

the

Eighth

Amendment

Amendment as well).

(and

necessarily

by

the

Fourteenth

See Wilson, 501 U.S. at 304–05; Williams v.

Greifinger, 97 F.3d 699, 704 (2d Cir. 1996). While “[d]eprivations
of exercise must be limited to unusual circumstances or situations
where restrictions are needed for disciplinary reasons . . . [,]
[s]poradic infringement of the right to exercise does not rise to
the level of to a constitutional deprivation.”

Gamble v. City of

New York ex rel. NYC Department of Correction, No. 04 Civ. 10203,
2009 WL 3097239, at *4-5 (S.D.N.Y. Sept. 25, 2009).

The plaintiff

claims only occasional restrictions on recreation and fails to
allege facts showing that the restriction resulted in a severe
deprivation.

Therefore, this claim should be dismissed.

14

c.

Television and Commissary

There is no constitutional right to the use of a television
or a commissary.

Montalvo v. Lamy, 139 F. Supp. 3d 597, 606

(W.D.N.Y. 2015); LaRock, 2013 WL 5466410, at *10.

The plaintiff

here has not alleged that the lack of either has resulted in the
loss of life’s necessities.
d.

These claims should be dismissed.

Denial of Timely Medication and Sick Call

The plaintiff alleges that he was denied sick call because of
the lockdowns and because of understaffing.
Grievance).

To

determine

whether

(Compl. at 3; 9/17/16

allegations

of

inadequate

medical care are sufficient under the objective prong, a court
must decide “first, if ‘the prisoner was actually deprived of
adequate medical care’ and, second, ‘whether the inadequacy in
medical care is “sufficiently serious.”’”

Howard v. City of New

York, Nos. 12 Civ. 4069 et al., 2012 WL 7050623, at *6 (S.D.N.Y.
Dec. 20, 2012) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006)).
that

the

The deprivation must be sufficiently serious “such
medical

condition

might

degeneration, or extreme pain.’”

have

produced

‘death,

Mena v. City of New York, No. 13

Civ. 2430, 2014 WL 4652570, at *6 (S.D.N.Y. Sept. 18, 2014)
(quoting Jones v. Vives, 523 F. App’x 48, 49 (2d Cir. 2013)).
determining

the

seriousness

of

courts consider:
15

a

medical

condition,

In

district

(1) the “existence of an injury that a reasonable doctor
or patient would find important and worthy of comment or
treatment”; (2) “the presence of a medical condition
that significantly affects an individual’s daily
activities”;
(3)
“the
existence
of
chronic
and
substantial pain”; and (4) “adverse medical effects or
demonstrable physical injury.”
Ferguson v. Cai, No. 11 Civ. 6181, 2012 WL 2865474, at *3 (S.D.N.Y.
July 12, 2012) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998), and Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir.
2003)).
The plaintiff states that because of the lockdowns he has
sometimes been denied insulin, which places his “life in imminent
danger.”

(12/29/16 Patterson Letter at 4).

He also states that

he is “on a lot of medications for a lot of reasons, and anytime
[he is] denied medical care [his] life is in imminent danger.”
(2/1/17 Patterson Letter at 2).

He further asserts that he has

not been able to visit a dentist about a tooth that is decaying.
(9/17/16 Grievance).

However, the plaintiff does not allege

sufficient facts describing the length or frequency of the delays,
nor does he identify the effects that the delays have had on him.
Therefore, those claims should be dismissed. 6

6

The plaintiff is a party in an action in the District Court
for the Eastern District of New York concerning diabetic care.
Complaint, Jeffers v. City of New York, No. 14 CV 6173 (E.D.N.Y.
Oct. 14, 2014). However, that case chiefly concerns diabetic meals
and the timing of insulin shots.
See id.
Here, Mr. Patterson
complains of not being called for sick call or insulin shots at
all as a result of understaffing and lockdowns.
16

e.

Mattress Claim

To succeed on a claim involving an alleged deficient bed, a
plaintiff must allege that “the plaintiff had a medical condition
requiring a non-standard bed to protect against serious damage to
his future health” or “that the medical condition was itself
created by an inadequate bed or mattress . . . .”

Youmans v.

Schriro, No. 12 Civ. 3690, 2013 WL 6284422, at *5 (S.D.N.Y. Dec.
3, 2013).
The plaintiff alleges that his mattress is “unfit for human
usage, and causes extreme hip, back, and leg pain.”
3).

(Compl. at

These naked assertions “fail to provide the factual detail

necessary to allege plausibly that [he] suffered the injuries as
a result of the bed[].”

Howard, 2012 WL 7050623, at *4.

There is

also insufficient detail about how the bed could cause injury.
Therefore, this claim should be dismissed.
2.
The

Mental Element Prong

Second

Circuit

in

Darnell

recently

reevaluated

standard for the subjective prong, stating,
[T]o establish a claim for deliberate indifference to
conditions of confinement under the Due Process Clause
of the Fourteenth Amendment, the pretrial detainee must
prove that the defendant-official acted intentionally to
impose the alleged condition, or recklessly failed to
act with reasonable care to mitigate the risk that the
condition posed to the pretrial detainee even though the
defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.
In other words, the “subjective prong” (or “mens rea
17

the

prong”) of a deliberate indifference claim is defined
objectively.
849 F.3d at 35.
Here, the plaintiff states that the defendants are “aware of
and responsible for” the deprivations he complains of.
3).

(Compl. at

He states that his grievances should have made them aware.

(2/1/17 Patterson Letter at 4).

He further claims that the

defendants are “daily notified of all the conditions existing in
the facility, and the Warden routinely tours the facility several
times a week.”

(12/28/16 Patterson Letter at 6-7).

Even under

the more liberal standard announced in Darnell, these meager
allegations are insufficient to show how any specific defendant
would have known about the alleged conditions.

Therefore, the

conditions of confinement claims should be dismissed.
F.

Loss of Property, Religious Exercise, and Warm Clothes

In other submissions, the plaintiff appears to complain of
lost property, undue restriction on exercise of religion, and
denial of warm clothing.

(Inmate Grievance and Program Request

Form dated Dec. 13, 2016, attached as an exhibit to Letter of Trent
Patterson filed Dec. 19, 2016; 12/28/16 Patterson Letter at 4;
2/1/17 Patterson Letter at 2).

While a court may rely on the

opposition papers of a pro se litigant to supplement allegations
in the complaint, “[e]ntirely new claims [] are not given such
liberal treatment.”

Vlad-Berindan v. MTA New York City Transit,
18

No. 14 Civ. 675, 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014)
(alterations in original) (quoting Rosado v. Herad, No. 12 Civ.
8943, 2013 WL 6170631, at *3 (S.D.N.Y. Nov. 25, 2013)).

These

allegations therefore should not be considered.
G.

Search Claim
1.

Fourth Amendment

“[I]nmates retain a limited right to bodily privacy under the
Fourth Amendment.”
2016).

Thus,

Harris v. Miller, 818 F.3d 49, 57 (2d Cir.

while

an

inmate’s

constitutional

rights

are

necessarily restricted, a strip search must still be conducted in
a reasonable manner.

Green v. Martin, __ F. Supp. 3d __, __, 2016

WL 7230500, at *4 (S.D.N.Y. 2016); Holland v. City of New York,
197 F. Supp. 3d 529, 542 (S.D.N.Y. 2016).

To state a claim for an

unreasonable strip search, “[a] plaintiff must allege facts that
suggest the[] search[] did not serve any legitimate penological
purposes,

or

that

each

search

was

intimidate, harass[,] or punish.’”

specifically

‘designed

to

Green, __ F. Supp. 3d at __,

2016 WL 7230500, at *5 (quoting Davila v. Messier, No. 13 CV 81,
2014 WL 4638854, at *6 (D. Conn. Sept. 17, 2014)).

Alternatively,

a search may be unreasonable if it is conducted in an unreasonable
manner, is particularly invasive, or is unnecessarily humiliating.
Id.

“Generally, strip searches have been upheld as a reasonable

security measure within a correctional facility even in the absence
19

of probable cause as long as they are related to a legitimate
penological goal.”

Smith v. City of New York, No. 14 Civ. 5934,

2015 WL 3929621, at *2 (S.D.N.Y. June 17, 2015) (quoting Jean–
Laurent v. Wilkerson, 438 F. Supp. 2d 318, 323 (S.D.N.Y. 2006)).
“[I] t is not unreasonable for prison officials to perform routine
random strip searches on prison inmates.”

Edwards v. Horn, No. 10

Civ. 6194, 2012 WL 760172, at *9 (S.D.N.Y. March 8, 2012) (quoting
N.G. v. Connecticut, 382 F.3d 225, 230–32 (2d Cir. 2004)).
While the grabbing of an inmate’s buttocks may be unreasonable
where a plaintiff pleads that it served no penological purpose or
where it was motivated by sexual desire, the plaintiff here has
not provided enough facts to infer that this unwanted touching was
motivated by an illegitimate purpose or that the conduct was
unreasonable.

See Peek v. City of New York, No. 13 Civ. 4488,

2014 WL 4160229, at *2 (S.D.N.Y. Aug. 18, 2014); Castro-Sanchez v.
N.Y.S. Department of Correctional Services, No. 10 Civ. 8314, 2012
WL 4474154, at *3 (S.D.N.Y. Sept. 28, 2012).

Similarly, while

forcing an inmate to perform multiple squats could be unreasonable
in some circumstances, the plaintiff here has not sufficiently
pled that the conduct here served no penological goal or was
motivated by an illegitimate purpose.
pled

facts

unreasonably.

showing

that

the

Mr. Patterson has also not

second

search

was

conducted

Finally, he proffers no facts from which it could
20

be inferred that it was unreasonable to search him in the pantry
area.

The plaintiff’s Fourth Amendment claim should therefore be

dismissed.
2.

Sexual Assault Claim

The plaintiff claims that the strip search constituted a
sexual assault.
may

constitute

sufficiently
cognizable
claims.

as

“Because sexual abuse by a corrections officer
serious

culpable

harm
state

Fourteenth

inflicted
of

mind,”

Amendment

by

an

such

conditions

officer

with

allegations
of

a

are

confinement

Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997).

Thus, the conduct must be objectively serious and the prison
official must have a “sufficiently culpable state of mind.”

Id.

Objectively, “[a] corrections officer’s intentional contact with
an inmate’s genitalia or other intimate area, which serves no
penological purpose and is undertaken with the intent to gratify
the officer’s sexual desire or humiliate the inmate, violates the
Eighth Amendment.”
2015).

Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir.

With respect to the mental element prong, “a pretrial

detainee must show only that the force purposely or knowingly used
against

him

was

objectively

unreasonable.”

Kingsley

v.

Hendrickson, __ U.S. __, __, 135 S. Ct. 2466, 2473 (2015).
In Boddie, the Second Circuit held that the plaintiff “failed
to state an Eighth Amendment claim after a female corrections
21

officer made a pass at an him, squeezed his hand, touched his
penis, called him a ‘sexy black devil,’ and bumped into him ‘with
her whole body vagina against penis.’”

Crawford, 796 F.3d at 257

(quoting Boddie, 105 F.3d at 859-60). In Castro-Sanchez, the court
held that “[t]he groping of [the inmate’s] buttocks during a single
strip search is far less egregious than the conduct alleged in
Boddie.

Since the conduct described in Boddie was insufficient to

constitute a violation of a prisoner’s Eighth Amendment rights, a
fortiori the conduct alleged by [the plaintiff] is insufficient.”
2012 WL 4474154, at *3.
The plaintiff here does not allege sufficient facts showing
that the conduct was unreasonable or objectively serious, and
therefore his allegations are insufficient to state a claim.

See

Vaughn v. Strickland, Nos. 12 Civ. 2696 et al., 2013 WL 3481413,
at *3 (S.D.N.Y. July 11, 2013); Castro-Sanchez, 2012 WL 4474154,
at *3; LaRocco v. N.Y.C. Department of Corrections, No. 99 Civ.
9759, 2001 WL 1029044, at *5 (S.D.N.Y. Aug. 31, 2001).

Therefore,

this claim should be dismissed. 7

7

Because the plaintiff’s constitutional allegations are
insufficiently pled, I need not reach the issue of whether the
plaintiff has adequately stated that Commissioner Ponte and Warden
Mingo were personally involved in the conduct.
22

H.

Leave to Amend

“[A]

pro

se

litigant

should

be

afforded

at

least

one

opportunity to ‘amend his complaint prior to its dismissal for
failure to state a claim, unless the court can rule out any
possibility,

however

unlikely

it

might

be,

complaint [will] succeed in stating a claim.’”

that

an

amended

Ford v. City of

New York, No. 15 Civ. 7598, 2016 WL 4990258, at *5 (S.D.N.Y. Aug.
26, 2016) (second alteration in original) (quoting Gomez v. USAA
Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1990) (per
curiam)).

Mr. Patterson has not yet been given that chance, and

he should therefore be permitted to amend his complaint, consistent
with this Report and Recommendation.
Conclusion
For

the

reasons

discussed

defendants’ motion be granted.

above,

I

recommend

that

the

Pursuant to 28 U.S.C. § 636(b)(1)

and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days to file
written

objections

to

this

Report

and

Recommendation.

Such

objections shall be filed with the Clerk of the Court, with extra
copies

delivered

to

the

Chambers

of

the

Honorable

Paul

A.

Engelmayer, Room 2201, 40 Foley Square, New York, New York 10007,
and to the Chambers of the undersigned, Room 1960, 500 Pearl

23