Rainey v. Ponte et al

Filing 17

OPINION AND ORDER re: 12 MOTION to Dismiss filed by Joseph Ponte, Deputy Warden Security Caputo, Monica Windley: Pro se Plaintiff Malik Rainey brings this action against Commissioner Joseph Ponte, Warden Monica Windley, Deputy Warden Security Caput o, Captain Valejo, and Corrections Officer Jackson (collectively Defendants) pursuant to 42 U.S.C. § 1983, alleging violations of his First, Fourth, Eighth, and Fourteenth Amendment rights stemming from the improper filming of inmates in the sho wers and the strip searches conducted in religious areas. Before the Court is Defendants motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth above, Defendants' motion to dismiss is GRANTED without pr ejudice. The Clerk of Court is respectfully directed to mail a copy of this Order to Plaintiff and terminate the motion, Doc. 12. Plaintiff is directed to amend his Complaint, if at all, by no later than August 17, 2017. Furthermore, the Court certif ies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Amended Pleadings due by 8/17/2017.) (Signed by Judge Edgardo Ramos on 7/28/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MALIK RAINEY,
Plaintiff,
OPINION AND ORDER
– against –
16 Civ. 6336 (ER)
COMM. JOSEPH PONTE, WARDEN
MONICA WINDLEY, DEPUTY WARDEN
SECURITY CAPUTO, CAPTAIN VALEJO,
and C.O. JACKSON,
Defendants.

Ramos, D.J.:
Pro se Plaintiff Malik Rainey brings this action against Commissioner Joseph Ponte,
Warden Monica Windley, Deputy Warden Security Caputo, Captain Valejo, and Corrections
Officer Jackson (collectively “Defendants”) pursuant to 42 U.S.C. § 1983, alleging violations of
his First, Fourth, Eighth, and Fourteenth Amendment rights stemming from the improper filming
of inmates in the showers and the strip searches conducted in religious areas.
Before the Court is Defendants’ motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons discussed below, Defendants’ motion is GRANTED without
prejudice.
I. Factual Background 1
Plaintiff claims that Corrections Officer Jackson and Captain Valejo were assigned to Unit
15B at the George R. Vierno Center (“GRVC”) on the Rikers Island Complex. Jackson and

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The following facts are drawn from allegations contained in the Amended Complaint, Doc. 2, which the Court
accepts as true for purposes of the instant motion. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.
2012).

Valejo are responsible for watching “the recording of detainees [and] inmates in the upper level
shower.” Plaintiff claims that while on duty, Jackson and Valejo “watched and encouraged”
detainees and inmates to use the upper level showers in order to film them. They would also
make obscene sexual gestures towards them. Plaintiff claims that once the inmates or detainees
were filmed, these videos were uploaded onto the internet as pornography on sites like “BIT
TORR, TORR, and dark angel.”
Plaintiff also alleges that cameras were also placed in the chapel area where inmates are
strip searched before court appearances. In addition to claiming that these videos are also
uploaded onto pornographic websites, Plaintiff also seems to claim that the practice of
conducting strip searches in a chapel is violative of his religious views.
Plaintiff claims that a preexisting order expressly forbids the placing of cameras in these
areas and prohibits corrections staff from recording and uploading videos.
II. Procedural Background
Plaintiff commenced this action on August 10, 2016. Doc. 2. On August 25, 2016, the
Court issued an Order of Service requesting that Defendants waive service of summons. Doc. 6.
On September 21, 2016, the waiver of service was returned executed as to Ponte, Windley, and
Caputo (the “City Defendants”). Doc. 7. The waiver of service was returned unexecuted as to
Valejo and Jackson, who could not be properly identified. Doc. 8. The City Defendants filed the
instant motion on November 21, 2016. Doc. 12. On June 1, 2017, the Court directed Plaintiff to
file a response to Defendants’ motion by June 30, 2017. Doc. 15. Plaintiff did not file a
response. Consequently, the Court will decide Defendants’ motion to dismiss on the papers
submitted.

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III. Standard of Review
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
the court must accept as true all of the factual allegations from the complaint, and draw all
reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
However, this requirement does not apply to legal conclusions, bare assertions, or conclusory
statements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). The complaint must adhere to Rule 8(a), which has been interpreted to
require that it contain enough factual matter for the claim to be plausible on its face. Id. (citing
Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Rule 8(a) “does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. If
the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the]
Complaint must be dismissed.” Twombly, 550 U.S. at 570.
The same standard applies to motions to dismiss pro se complaints. See Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010). However, the Court is also obligated to construe a
pro se complaint liberally and to interpret a pro se plaintiff’s claims as raising the strongest
arguments that they suggest. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam). The obligation to be
lenient while reading a pro se plaintiff’s pleadings “applies with particular force when the
plaintiff’s civil rights are at issue.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However,
even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless

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their pleadings contain factual allegations sufficient to raise a right to relief above the speculative
level.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). A complaint
that “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks and brackets
omitted); see also Triestman, 470 F.3d at 477 (“[P]ro se status ‘does not exempt a party from
compliance with relevant rules of procedural and substantive law.’”) (quoting Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983)) (internal quotation marks omitted).
IV. Discussion
To state a claim under section 1983, a plaintiff must allege “that the conduct complained of
was committed by a person or entity acting under color of state law, and that the conduct
deprived a person of rights, privileges, or immunities secured by the Constitution.” Newton v.
City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008) (citing Palmieri v. Lynch, 392 F.3d
73, 78 (2d Cir. 2004)). Section 1983 does not create any rights, but merely provides “a
procedure for redress for the deprivation of rights [already] established.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993) (citation omitted). The conduct complained of must have “deprived
the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United
States.” Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994). In the instant case, Plaintiff
alleges that his First, Fourth, Eighth, and Fourteenth Amendment rights were violated through
the existence of video cameras in GRVC’s shower area and chapel and the dissemination of the
recorded videos on the internet.
A. Article III Standing
As an initial matter, Defendants argue that Plaintiff lacks standing to a raise a claim
concerning the alleged distribution of the security videos. Memorandum in Support of Motion to

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Dismiss the Complaint (“Defs. Memo”) (Doc. 13) at 10–11. “Article III, § 2, of the Constitution
restricts the federal ‘judicial Power’ to the resolution of ‘Cases’ and ‘Controversies.’ That caseor-controversy requirement is satisfied only where a plaintiff has standing.” Sprint Commc’ns
Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 (2008) (citing DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006)). “[I]n order to have Article III standing, a plaintiff must adequately
establish: (1) an injury in fact (i.e., a concrete and particularized invasion of a legally protected
interest); (2) causation (i.e., a fairly traceable connection between the alleged injury in fact and
the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely
speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing
suit).” Id. at 273-74 (internal quotation marks and alterations omitted) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Generally, a plaintiff “has standing to seek
redress for injuries done to him, but may not seek redress for injuries done to others.” Johnakin
v. NYC Dep’t of Corr., No. 11 Civ. 4807 (SLT) (LB), 2013 WL 5519998, at *9 (E.D.N.Y. Sept.
30, 2013) (quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972)). Therefore, to have
standing to bring a claim under Section 1983, a plaintiff must show that he personally suffers
from a violation of his civil rights. Padberg v. McGrath–McKechnie, 203 F. Supp. 2d 261, 275
(E.D.N.Y. 2002). Moreover, a pro se litigant cannot represent anyone other than himself. See
Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990). If a
party lacks Article III standing, a court has no subject matter jurisdiction to hear its claims. Cent.
States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433
F.3d 181, 198 (2d Cir. 2005). Thus, the question of standing must be resolved prior to deciding a
case on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).

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Here, Plaintiff has styled the Complaint as though he is asserting claims on behalf of a
class of inmates and detainees. Specifically, Plaintiff alleges that “inmates and detainees” are
“recorded or caught on camera” and that these videos are then uploaded to “Bit TORR, TORR,
and Dark Angel” as pornography. He also claims that inmates and detainees are strip-searched
in religious areas and that this process is also recorded and distributed. However, he does not
allege that he has ever been personally videotaped, that the videos in which he appears were
uploaded to these sites, or that persons outside of Rikers have seen videos of him. Additionally,
Plaintiff does not claim that he has been strip-searched in a chapel, nor does he assert that he
practices or belongs to a certain religion. Because Plaintiff does not allege that he has been
personally harmed, and because a pro se plaintiff cannot bring claims on behalf of others,
Plaintiff has no standing to assert his claims. Accordingly, Defendants’ motion to dismiss is
granted.
B. Personal Involvement
To the extent that Plaintiff does have standing to assert his claims, the Court finds that all
claims against Ponte, Windley, and Caputo should be dismissed for failure to allege personal
involvement in the deprivation of Plaintiff’s constitutional rights.
Personal-capacity suits “seek to impose individual liability upon a government officer for
actions taken under color of state law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). Such suits must
be premised on a certain level of personal involvement. See Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994) (“It 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.’”)
(quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). “An individual cannot
be held liable for damages under § 1983 ‘merely because he held a high position of authority,’

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but can be held liable if he was personally involved in the alleged deprivation.” Back v. Hastings
on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v. Coughlin,
76 F.3d 72, 74 (2d Cir. 1996)).
Here, Plaintiff does not allege that Ponte, Windley, or Caputo were involved in the video
recordings or strip searches, nor does he claim that Defendants knew of the alleged wrongdoing
and ordered or helped others engage in those acts. See generally, Provost v. City of Newburgh,
262 F.3d 146, 155 (2d Cir. 2001) (defining personal involvement in two ways: “direct
participation, such as “personal participation by one who has knowledge of the facts that
rendered the conduct illegal,” or indirect participation, such as “ordering or helping others to do
the unlawful acts”). Plaintiff simply asserts that Ponte, Windley, and Caputo “pledge[d] an oath
under the United States Constitution to . . . serve and protect.” Complaint at 2. Thus, without a
claim that they were present during the recordings or strip searches or that they were grossly
negligent in their supervision of subordinates who committed the wrongful acts, Plaintiff’s
allegations are insufficient to establish personal involvement for the purposes of Section 1983
liability. See Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 326 (S.D.N.Y. 2006), aff’d, 461
F. App’x 18 (2d Cir. 2012) (dismissing claim against defendant who had not been alleged to
have “been present or personally involved in any of the incidents” underlying the suit and was
solely named as a defendant by “virtue of his rank”).
Accordingly, Defendants motion to dismiss Plaintiff’s claims against Ponte, Windley,
and Caputo is granted.

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C. Eighth and Fourteenth Amendment Claims
Although the Court finds that the Complaint should be dismissed for lack of standing, in
an abundance of caution, the Court will address Plaintiff’s Eighth, Fourteenth and First
Amendment claims.
Plaintiff claims that Jackson and Valejo “encouraged” inmates and detainees to use the
“upper showers” where they were stationed, in order to watch them and make obscene sexual
gestures at them. Complaint at 4. Plaintiff does not allege that Jackson or Valejo directed him to
use these showers or actually made any of these gestures to him. Additionally, although Plaintiff
claims that inmates and detainees were recorded while in the shower, Plaintiff does not assert
that Jackson or Valejo personally recorded any videos or uploaded any videos to the internet.
Construing the Complaint liberally, Plaintiff seems to assert that Jackson’s and Valejo’s
actions violated his Eighth Amendment right to be free from cruel and unusual punishment. See
Boddie v. Schnieder, 105 F.3d 857, 860–61 (2d Cir. 1997) (“[S]exual abuse of a prisoner by a
corrections officer may in some circumstances violate the prisoner’s right to be free from cruel
and unusual punishment”). However, because Plaintiff alleges that he was a pre-trial detainee at
the time of the alleged wrongful acts, his claims of alleged sexual abuse are analyzed under the
Due Process Clause of the Fourteenth Amendment as opposed to the Cruel and Unusual
Punishment Clause of the Eighth Amendment. Holland v. City of N.Y., 197 F.Supp.3d 529, 545–
46 (S.D.N.Y. 2016). Nevertheless, it is clear that any claims alleging a “serious threat to the
health or safety of a person in custody should be analyzed under the same standard irrespective
of whether they are brought under the Eighth or Fourteenth Amendment.” Caiozzo v. Koreman,
581 F.3d 63, 72 (2d Cir. 2009); see also Holland, 197 F. Supp. 3d at 545–46 (applying Eighth
Amendment standard to claim of sexual abuse brought by pre-trial detainee). Thus, to “prove a

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violation of the Eighth Amendment, an inmate must show (1) that the deprivation alleged is
‘objectively sufficiently serious’ . . . and (2) that the defendant official possessed a ‘sufficiently
culpable state of mind’ associated with ‘the unnecessary and wanton infliction of pain.’”
Trammel v. Keane, 338 F.3d 155, 161 (2d Cir. 2003).
Here, Plaintiff does not allege sufficient facts to show that Jackson’s and Valejo’s
conduct was objectively serious. Jackson’s and Valejo’s inappropriate sexual gestures, without
more, do not rise to a level of an Eighth Amendment violation. Courts in this Circuit have
routinely dismissed cases involving inappropriate touching—not just sexual gestures as alleged
here—as insufficient to sustain an Eighth Amendment claim. See .e.g., Garcia v. Watts, No. 08
Civ. 7778 (JSR) (HBP), 2009 WL 2777085, at *7 (S.D.N.Y. Sept. 1, 2009) (dismissing Eighth
Amendment claim because, among other things, “two instances of improper sexual contact,
several inappropriate comments, and an allegedly unauthorized cell search-although abhorrent,
does not rise to the level of cruel and unusual punishment”). Accordingly, Defendants’ motion
to dismiss claims against Jackson and Valejo is granted.
D. First and Fourth Amendment Claims
Plaintiff claims that being filmed while strip searched in religious areas is improper and
violate the First and Fourth Amendment rights of the inmates and detainees. Complaint at 6–7.
“A regulation that impinges on a prisoner’s freedom of religion must be rationally related to a
legitimate penological interest to survive First Amendment scrutiny.” Jean-Laurent v.
Wilkerson, 438 F. Supp. 2d 318, 324 (S.D.N.Y. 2006), aff’d, 461 F. App’x 18 (2d Cir. 2012).
Reasonable strip searches of prisoners, regardless of their religion, are generally acceptable

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under the First Amendment because they further the compelling governmental interest of
penological safety. See Hurley v. Ward, 549 F. Supp. 174, 186 (S.D.N.Y. 1982).
As noted previously, Plaintiff does not allege that he practices a certain religion or that
any particular tenet of his religious practice or faith was burdened by the filmed strip searches.
Moreover, Plaintiff asserts that detainees and inmates are strip searched before being taken to
court. Courts have found that these type of searches are constitutional because they “serve the
legitimate penological purpose of contraband from coming into and out of prisons and jails.”
Thompson v. City of N.Y., No. 16 Civ. 824 (PKC), 2017 WL 1929552, at *2 (S.D.N.Y. May 9,
2017); see also Myers v. City of N.Y., No. 11 Civ. 8525 (PAE), 2012 WL 3776707, at *9
(S.D.N.Y. Aug. 29, 2012) (finding that suspicionless strip searches of non-felony pretrial
detainee at intake and upon leaving facility for court appearances were constitutional); Israel v.
City of N.Y., No. 11 Civ. 7726 (JMF), 2012 WL 4762082, at *3 (S.D.N.Y. Oct. 5, 2012) (finding
strip searches before and after court visits and incident to random cell searches were reasonably
related to legitimate security interests and did not violate Fourth Amendment).
V. Leave to Amend
The Second Circuit has explained that “[a] pro se complaint is to be read liberally.
Certainly the court should not dismiss without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citations and internal quotation marks omitted).
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, the “court should freely give
leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Here, Plaintiff does not allege or even suggest that Ponte, Windley, or Caputo engaged in
any conduct resulting in a deprivation of his constitutional rights. Thus, it is clear from the

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Complaint that Plaintiff does not have any possibility of asserting plausible claims against these
individuals. See Cuoco, 222 F.3d at 112 (“The problem with [plaintiff’s] cause[ ] of action is
substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile
request to replead should be denied.”) (citing Hunt v. Alliance N. Am. Gov’t Income Trust, 159
F.3d 723, 728 (2d Cir. 1998)); see also Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 58 (2d
Cir. 2002) (explaining that “[w]here it appears that granting leave to amend is unlikely to be
productive . . . it is not an abuse of discretion to deny leave to amend . . . [and that] [a]n
amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6)”) (citations omitted).
However, construing the Complaint liberally, the Court finds that it is possible for
Plaintiff to allege additional facts and name particular defendants specific to his claim that he
personally has been inappropriately filmed and that those videos of him were uploaded onto the
internet. Accordingly, the Court grants Plaintiff leave to amend the Complaint to include
additional allegations regarding his claims about inappropriate filming in shower interiors and to
name defendants personally involved in any alleged conduct.

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