Henry v. The City of New York et al
MEMORANDUM OPINION AND ORDER re: 115 MOTION for Summary Judgment . filed by Randys Figuereo, The City of New York, Carlos Thomas, Gary Perez, Juan Carrero, Christain Hernandez, Carlos Pimentel., Therefore, there are no via ble state law claims against Lieutenant Hernandez. All claims against Lieutenant Hernandez should be dismissed. The Court has considered all of the arguments. To the extent not specifically addressed, the arguments are either moot or without mer it. For the reasons stated above, the defendants' motion for summary judgment dismissing the claims is denied with respect to the plaintiffs Section 1983 excessive force claim and state law claims for assault and battery. The defendants 9; motion for summary judgment dismissing the claims is granted with respect to all other claims, including all claims against Lieutenant Hernandez. The Clerk is directed to close Docket No. 115. SO ORDERED. Christain Hernandez (of Transit Bureau District 11, in his official and individual capacity) terminated. (Signed by Judge John G. Koeltl on 4/27/2021) (ks) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LEVAR T. HENRY,
17 cv 3450 (JGK)
- against -
CITY OF NEW YORK, ET AL.,
JOHN G. KOELTL, District Judge:
The pro se plaintiff, Levar T. Henry, has brought this
action alleging violations of his constitutional rights pursuant
to 42 U.S.C. § 1983 and violations of New York state law against
the City of New York (the “City”) and police officers Gary
Perez, Randys Figuereo, Carlos Pimentel, Carlos Thomas, Juan
Carrero, and Christian Hernandez.
The plaintiff has asserted
claims including false arrest, malicious prosecution,
fabrication of evidence, excessive force, municipal liability,
and analog state law claims.
The defendants have moved for
summary judgment dismissing all of the plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 56.
following reasons, the defendants’ motion is granted in part and
denied in part.
Unless otherwise noted, the following facts are undisputed. 1
On the evening of August 18, 2016, Officers Perez, Carrero,
and Figuereo observed from an unmarked vehicle the plaintiff
engage in what they believed to be a drug transaction.
Decl. Exs. F at 63-69, I.
Based on their observations, the
three plain clothed officers stopped the plaintiff to
Allen Decl. Exs. E at 40-41, H at 28.
Officer Figuereo demanded the plaintiff to stop, at which point
the plaintiff resisted.
Allen Decl. Ex. H at 29-33.
Perez and Figuereo forced the plaintiff to the ground, though
the officers’ testimony does not clearly establish how the
plaintiff wound up on the ground.
F at 73-75, H at 29-31.
Allen Decl. Exs. E at 42-43,
The plaintiff asserts that the
plaintiff was knocked to the ground after officers repeatedly
slammed his head into a wall.
Allen Decl. Ex. B at 40-41.
after, Officers Pimentel and Thomas arrived to assist the other
Allen Decl. Exs. C at 62, D at 46-47, F at 76-77.
The plaintiff failed to respond to or contest the defendants’ statement of
facts in the defendants’ Rule 56.1 Statement. The defendants advised the pro
se plaintiff, who was represented by counsel through discovery, of his Rule
56 obligations pursuant to Local Rule 56.2. See ECF Nos. 110, 111, 117.
Therefore, the plaintiff is not excused from the requirements of Local Rule
56.1. See Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009).
Nevertheless, the Court is required to assure that the statements in the Rule
56.1 statement are supported in the record. See Holtz v. Rockefeller & Co.,
258 F.3d 62, 74 (2d Cir. 2001). Moreover, the Court will “conduct an
assiduous review of the record” in light of the special solicitude given to
pro se litigants. Holtz, 258 F.3d at 73.
While bringing the plaintiff to the ground, the officers
observed multiple bags of crack cocaine fall from the
plaintiff’s person, and after they transported him to a police
vehicle, the officers found another bag where he was seated in
Allen Decl. Ex. E at 78-79.
Because multiple bags
of crack cocaine had fallen from the plaintiff’s person,
Lieutenant Christian Hernandez approved a strip search of the
Allen Decl. Exs. A ¶ 39, B at 83, G at 44-45.
plaintiff resisted the officers’ strip search, but the officers
were still able to recover more bags of cocaine during the
Allen Decl. Ex. E at 72.
Because of the altercations, the plaintiff required medical
Allen Decl. Exs. G at 38-39, E at 63, 76, H at 41-
After the strip search, and several hours after the arrest,
the plaintiff was brought by ambulance to Harlem Hospital.
Allen Decl. Ex. I, R, S at D00143.
The hospital treated the
plaintiff for a laceration on his face and abrasions to his
elbow and wrists.
Allen Decl. Ex. S at D00146, D00150, D00160.
The medical records note that the plaintiff alleged to the
medical staff that he was assaulted by the officers, that he was
punched in the face and head, that the officers slammed his head
into a wall and kneed him in the chest, and the medical report
included that he had a bruise and laceration on his forehead.
Id. at D00146, D00155.
The report also included that the
plaintiff complained of chest and rectal pain after his arrest
Id. at D00155.
The hospital administered sutures
on the plaintiff’s forehead to seal the laceration.
At the hospital, additional crack cocaine was found in
the plaintiff’s underwear.
Allen Decl. Exs. Q at D00146; S at
The hospital also found “no overt evidence of foreign
bodies within the gastrointestinal tract.”
Allen Decl. Ex. S at
On March 27, 2017, the plaintiff pleaded guilty to criminal
possession of a controlled substance in the fourth degree in New
York State Court in connection with his August 18, 2016 arrest.
Allen Decl. Ex. N at D00417.
He was sentenced to 42 months’
imprisonment and two years of post-release supervision.
appeal, his conviction was affirmed.
People v. Henry, 116
N.Y.S.3d 565 (App. Div. 2020).
The defendants moved for summary judgment dismissing all
claims on December 18, 2020.
ECF No. 115.
The plaintiff failed
to respond, and on January 26, 2021, the Court entered an Order
extending the plaintiff’s time to respond until February 12,
ECF No. 120.
In that Order, the Court stated that it
would decide the motion on the papers submitted if the plaintiff
failed to respond by February 12, 2021.
On February 24, 2021,
the defendants filed a letter with the Court noting that the
plaintiff had not responded and requesting that Court decide the
motion on the papers submitted.
ECF No. 121.
plaintiff has not responded to the motion, the Court decides the
motion on the papers submitted.
The standard for granting summary judgment is well
“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994). 2
court’s task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
any genuine issues of material fact to be tried, not to deciding
Its duty, in short, is confined at this point to issue-
finding; it does not extend to issue-resolution.”
F.3d at 1224.
The moving party bears the initial burden of
“informing the district court of the basis for its motion” and
identifying the matter that “it believes demonstrate[s] the
absence of a genuine issue of material fact.”
Celotex, 477 U.S.
“Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
2 Unless otherwise noted, this Memorandum Opinion and Order omits all
citations, alterations, emphasis, and internal quotation marks in quoted
entry of summary judgment.”
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)
(per curiam)); see also Gallo, 22 F.3d at 1223.
judgment is improper if any evidence in the record from any
source would enable a reasonable inference to be drawn in favor
of the nonmoving party.
See Chambers v. TRM Copy Ctrs. Corp.,
43 F.3d 29, 37 (2d Cir. 1994).
If the moving party meets its
burden, the nonmoving party must produce evidence in the record
and “may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not
Ying Jing Gan v. City of New York, 996 F.2d 522, 532
(2d Cir. 1993).
The plaintiff has asserted claims pursuant to 42 U.S.C.
§ 1983 for unlawful arrest, malicious prosecution, fabrication
of evidence, excessive force, municipal liability, violation of
due process under the Fifth Amendment, unlawful taking in
violation of the Fifth Amendment, unlawful search in violation
of the Fourth Amendment, violation of the Sixth Amendment
protections for criminal defendants, violation of the Eighth
Amendment, violation of the Fourteenth Amendment, and New York
state law claims for negligence, assault, battery, false arrest,
false imprisonment, and malicious prosecution.
A. Unlawful Arrest
The plaintiff has asserted that the plaintiff was
unlawfully arrested because the defendant officers lacked
probable cause to arrest him.
A false arrest claim under
Section 1983 based on the Fourth Amendment right to be free from
unreasonable seizures, including arrest without probable cause,
“is substantially the same as a claim for false arrest under New
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Accordingly, “a plaintiff claiming false arrest must show, inter
alia, that the defendant intentionally confined him without his
consent and without justification.”
constitutes such justification, and therefore “is a complete
defense to an action for false arrest.”
Bernard v. United
States, 25 F.3d 98, 102 (2d Cir. 1994); see also Jaegly v.
Couch, 439 F.3d 149, 152 (2d Cir. 2006); Jocks v. Tavernier, 316
F.3d 128, 135 (2d Cir. 2003); Bullard v. City of New York, 240
F. Supp. 2d 292, 297 (S.D.N.Y. 2003); L.B. v. Town of Chester,
232 F. Supp. 2d 227, 233 (S.D.N.Y. 2002).
The plaintiff’s claim of false arrest fails because the
officers had probable cause to arrest him and because the
plaintiff’s conviction pursuant to his guilty plea has been
affirmed on appeal.
An officer has probable cause to arrest when the officer
has “knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.”
Jaegly, 439 F.3d at
The probable cause inquiry assesses “whether the facts
known by the arresting officer at the time of the arrest
objectively provided probable cause to arrest.”
Id. at 153.
“Courts in this circuit have routinely found probable cause
where an officer arrests an individual whom the officer
believes, based on his or her own observation, engaged in a
hand-to-hand drug sale.”
Smith v. City of New York, No. 04-cv-
3286, 2010 WL 3397683, at *6 (S.D.N.Y. Aug. 27, 2010), aff’d sub
nom., Smith v. Tobon, 529 F. App'x 36 (2d Cir. 2013).
The defendants had probable cause to arrest the plaintiff
because Officers Perez, Carrero, and Figuereo were surveilling a
known drug dealer when they observed the plaintiff engage in a
See Allen Decl. Ex. E at 40-41, F at 67-69.
When the officers approached the plaintiff and the known drug
dealer, the known drug dealer ate the item in his hand.
Additionally, “[p]robable cause for the arrest is
conclusively established where there is a valid prosecution
resulting in a conviction, including where the individual is
convicted upon a guilty plea.”
Routier v. O’Hara, No. 08-cv-
02666, 2013 WL 3777100, at *5 (E.D.N.Y. July 17, 2013); see also
Thomas v. Roach, 165 F.3d 137, 144 (2d Cir. 1999); Cameron v.
Fogarty, 806 F.2d 380, 388–89 (2d Cir. 1986).
plaintiff pleaded guilty to the charge against him in connection
with his arrest, he has conceded that the arrest was supported
by probable cause.
Moreover, “in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.
A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.”
512 U.S. 477, 486-87 (1994).
Heck v. Humphrey,
Where a guilty plea has not been
overturned or successfully withdrawn, the conviction “stands as
a complete bar to any claims of false arrest, false
imprisonment, and malicious prosecution under § 1983.”
P.O. Canine Dog Chas, No. 02-cv-6240, 2004 WL 2202564, at *6
(S.D.N.Y. Sept. 28, 2004).
Mr. Henry pleaded guilty to the
charge against him, and his conviction was affirmed on appeal.
Accordingly, because the defendants had probable cause to
arrest the plaintiff and the plaintiff was convicted for
possession of a controlled substance, the plaintiff’s claim for
false arrest must be dismissed.
Therefore, the defendants’
motion for summary judgment is granted with respect to the false
B. Malicious Prosecution
The plaintiff has asserted a malicious prosecution claim
based on his prosecution for the events of August 18, 2016.
sustain a Section 1983 claim based on malicious prosecution, a
plaintiff must demonstrate conduct by the defendants that is
tortious under state law and that results in a constitutionally
cognizable deprivation of liberty.
Singer v. Fulton Cnty.
Sheriff, 63 F.3d 110, 116 (2d Cir. 1995); see also Shabazz v.
Kailer, 201 F. Supp. 3d 386, 391 (S.D.N.Y. 2016) (collecting
The elements of a malicious prosecution claim under New
York law are: “(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff’s favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
Shabazz, 201 F. Supp. 3d at 391–92.
showing of malice can include that the officer acted “with a
wrong or improper motive” or anything other than “a desire to
see the ends of justice served.”
188, 198 (2d Cir. 2002).
Fulton v. Robinson, 289 F.3d
“[T]he existence of probable cause to
commence a proceeding is also a complete bar to a claim of
Bullard, 240 F. Supp. 2d at 297.
The malicious prosecution claim fails because the
defendants had probable cause to arrest the plaintiff, the
plaintiff did not secure a favorable termination of the criminal
action, and the plaintiff has not alleged malice adequately.
The claim is also barred by Heck.
See 512 U.S. at 486-87.
Therefore, the defendants’ motion for summary judgment is
granted with respect to the claim for malicious prosecution.
C. Fabrication of Evidence
The plaintiff has alleged that the defendants falsified
paperwork and testimony that the plaintiff was in possession of
crack cocaine on the date of his arrest.
fabrication of evidence claim fails for several reasons.
such a claim is precluded because of his guilty plea and the
subsequent affirmance of the conviction.
Second, the plaintiff admitted that he possessed crack
cocaine on the date of his arrest.
See Heck, 512 U.S. at
See Allen Decl. Ex. B at 63,
Third, the medical reports also stated that the plaintiff
possessed crack cocaine based on the evidence recovered by the
medical staff at the hospital.
Accordingly, there is no dispute of material fact in
connection with the fabrication of evidence claim.
the defendants’ motion for summary judgment is granted with
respect to the claim for fabrication of evidence.
D. Excessive Force
The plaintiff has asserted that the defendants used
excessive force against him in violation of his constitutional
“The Fourth Amendment prohibits the use of excessive
force in making an arrest, and whether the force used is
excessive is to be analyzed under that Amendment’s
Brown v. City of New York, 798 F.3d
94, 100 (2d Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386,
A police officer’s use of force is “excessive” in
violation of the Fourth Amendment if it is objectively
unreasonable in light of the facts and circumstances known to
Lennon v. Miller, 66 F.3d 416, 425-26 (2d Cir.
1995); see also Maxwell v. City of New York, 380 F.3d 106, 108
(2d Cir. 2004).
To determine whether the amount of force
applied to a plaintiff was unreasonable, courts consider “the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether [the suspect] is actively resisting arrest or attempting
to evade arrest by flight.”
Graham, 490 U.S. at 396.
force claims require “serious or harmful,” and “a de minimis use
of force will rarely suffice.”
Drummond v. Castro, 522 F. Supp.
2d 667, 678-79 (S.D.N.Y. 2007).
The defendants have argued that the officers’ use of force
was reasonable and de minimis and therefore the excessive force
claim should be dismissed.
However, there are disputed material
facts about the use of force, and a determination of whether the
use of force was reasonable or de minimis turns on the
resolution of those disputed material facts.
First, there is a dispute of exactly how the officers and
the plaintiff wound up on the ground at the scene of the arrest.
In deposition testimony, some defendants asserted that the
officers and the plaintiff fell to the ground while other
defendants stated that they did not remember how the officers
and the plaintiff wound up on the ground.
The plaintiff stated
in his deposition that the plaintiff fell to the ground after
the defendant officers repeatedly slammed the plaintiff’s head
and face into a wall.
The defendants contend that the plaintiff
was resisting arrest, but the plaintiff stated in his deposition
that the officers did not identify themselves as police and that
the plaintiff thought he was being robbed.
Allen Decl. Ex. B at
As a result of the events at the scene of the arrest, the
plaintiff needed sutures for a laceration on his forehead.
Because there is a genuine dispute about what happened at the
scene of the arrest, the degree and origin of the injuries, and
the extent of the force, the excessive force claim cannot be
resolved on a motion for summary judgment.
Moreover, there are disputed material facts with respect to
the attempted strip search of the plaintiff.
contend that the strip search was never completed because the
plaintiff resisted and that the plaintiff’s clothing was never
The plaintiff contends that there was anal penetration
that caused the plaintiff significant pain.
defendants contend that the plaintiff’s description of the
events is not believable, the Court cannot resolve this factual
dispute on a motion for summary judgment.
The medical records
indicate that the plaintiff complained to the medical staff at
the hospital that he was experiencing significant pain in his
anal area due to the search.
Moreover, additional crack cocaine
was recovered as a result of the strip search, which undercuts
the defendants’ claim that the strip search could not be
Given the factual dispute, the excessive force claim
cannot be resolved on a motion for summary judgment.
Accordingly, because there are genuinely disputed material
facts, the motion for summary judgment is denied with respect to
the excessive force claim.
E. Municipal Liability
The plaintiff asserts a municipal liability claim against
the City pursuant to Monell v. Dep’t of Soc. Servs. of the City
of New York, 436 U.S. 658 (1978).
To bring a claim against a
municipality under Section 1983, the plaintiff generally must
allege that the challenged conduct was “performed pursuant to a
municipal policy or custom.”
Patterson v. Cnty. of Oneida,
N.Y., 375 F.3d 206, 226 (2d Cir. 2004); Sorlucco v. N.Y.C.
Police Dep’t, 971 F.2d 864, 870 (2d Cir. 1992); see generally
Monell, 436 U.S. at 694.
To identify a “policy or custom,” the
plaintiff must demonstrate that the municipality, through its
deliberate conduct, was the “moving force” behind the injuries
Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown,
520 U.S. 397, 404 (1997).
The alleged policy does not need to
be contained in an explicitly adopted rule so long as the
unlawful practices of city officials are so “persistent and
widespread . . . as to constitute a custom or usage with the
force of law.”
Sorlucco, 971 F.2d at 870-71; see also
Connick v. Thompson, 563 U.S. 51, 61 (2011) (stating that the
acts of city officials must be “so persistent and widespread as
to practically have the force of law”); see also Viruet v. City
of New York, No. 16-cv-8327, 2019 WL 1979325, at *8 (S.D.N.Y.
May 3, 2019).
The plaintiff can satisfy the “policy or custom”
requirement by alleging:
(1) a formal policy officially endorsed by the
municipality; (2) actions taken by government officials
responsible for establishing municipal policies that
caused the particular deprivation in question; (3) a
practice so consistent and widespread that, although not
expressly authorized, constitutes a custom or usage of
which a supervising policy-maker must have been aware;
or (4) a failure by policymakers to provide adequate
training or supervision to subordinates to such an
extent that it amounts to deliberate indifference to the
rights of those who come into contact with the municipal
Tieman v. City of Newburgh, No. 13-cv-4178, 2015 WL 1379652, at
*13 (S.D.N.Y. Mar. 26, 2015).
The plaintiff has alleged that the City was deliberately
indifferent to widespread constitutional violations, and that
the City has failed to train, supervise, investigate, or
discipline officers for unconstitutional behaviors.
respect to the deliberate indifference claim, a plaintiff must
proffer specific details of how a policymaker acted with
378, 388 (1989).
City of Canton v. Harris, 489 U.S.
To demonstrate deliberate indifference, a
plaintiff must show that “a policymaking official had notice of
a potentially serious problem of unconstitutional conduct, such
that the need for corrective action was obvious, and the
policymaker’s failure to investigate or rectify the situation
evidences deliberate indifference, rather than mere negligence
or bureaucratic inaction.”
Amnesty Am. V. Town of W. Hartford,
361 F.3d 113, 128 (2d Cir. 2004).
The plaintiff has not
produced any evidence of a policy, custom, or deliberate
indifference by the City.
The plaintiff likewise has failed to
produce any evidence of a failure to train, supervise,
investigate, or discipline officers for unconstitutional
Accordingly, the plaintiff has not provided any support for
the Monell claim and therefore, the defendants are entitled to
summary judgment dismissing the Monell claim.
F. Remaining Constitutional Claims
The plaintiff has asserted several other constitutional
claims, including violations of the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments of the Constitution.
these claims are nothing more than a “pleading that offers
labels and conclusions or a formulaic recitation of the elements
of a cause of action,” which is insufficient to state a claim.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In fact, many
of these claims are verbatim recitations of the various
amendments of the Constitution.
Moreover, the plaintiff has not
pleaded or produced any factual support for these remaining
constitutional claims, and therefore, there is no genuine issue
of material fact with respect to these claims.
In addition to being nothing more than conclusory
allegations, the remaining constitutional claims fail on the
The remaining Fourth Amendment claims are precluded by
the guilty plea and the facts established in this litigation.
The Fifth Amendment claims have no factual basis.
Amendment claims are precluded by the guilty plea and affirmance
of the conviction, and they also lack a factual basis.
Eighth Amendment claim does not have any evidentiary support.
The Fourteenth Amendment claim lacks a factual basis and does
not have any evidentiary support.
Accordingly, the defendants are entitled to summary
judgment dismissing the plaintiff’s remaining constitutional
G. New York Law Claims
The plaintiff has asserted various state law claims that
mirror the plaintiff’s constitutional claims, including
negligence, assault, battery, false arrest, false imprisonment,
and malicious prosecution.
For the reasons stated above with
respect to the plaintiff’s claim for excessive force, there are
disputed material facts with respect to the assault and battery
However, for the reasons stated above, there is no
genuine dispute of material facts with respect to the false
arrest, false imprisonment, and malicious prosecution claims.
See Weyant, 101 F.3d at 852; Shabazz, 201 F. Supp. 3d at 391–92.
The plaintiff has not alleged any factual basis for the
negligence claim, nor has the plaintiff produced any evidence to
support the negligence claim.
Accordingly, the defendants are entitled to summary
judgment dismissing the plaintiff’s state law claims for false
arrest, false imprisonment, malicious prosecution, and
negligence, but the motion for summary judgment with respect to
the claims for assault and battery is denied.
H. Lieutenant Hernandez
The plaintiff lists Lieutenant Hernandez as a defendant in
this case because Lieutenant Hernandez authorized the strip
search of the plaintiff.
However, there was probable cause for
such a search, and therefore Lieutenant Hernandez was justified
in authorizing such a search.
The officers observed the
plaintiff engage in what they thought to be a drug transaction,
and then they subsequently recovered multiple bags of cocaine
falling from inside the plaintiff’s pants.
The plaintiff does not allege any other involvement apart
from the authorization of the search.
There is no allegation
that Lieutenant Hernandez actually participated in the strip
search of the plaintiff.
“It is well settled in this circuit
that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite” for liability
pursuant to Section 1983.
Wright v. Smith, 21 F.3d 496, 501 (2d
Moreover, the respondeat superior theory is
inapplicable to claims brought under Section 1983.
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
Accordingly, the plaintiff has not alleged sufficient personal
involvement of Lieutenant Hernandez and therefore, the Section
1983 claims against Lieutenant Hernandez should be dismissed.
Similarly, there are no viable state law claims against
The only involvement for Lieutenant
Hernandez was the authorization of the strip search that was
Lieutenant Hernandez was not alleged to have
participated in the search itself.
Therefore, there are no
viable state law claims against Lieutenant Hernandez.
All claims against Lieutenant Hernandez should be
The Court has considered all of the arguments.
extent not specifically addressed, the arguments are either moot
or without merit.
For the reasons stated above, the defendants’
motion for summary judgment dismissing the claims is denied with
respect to the plaintiff’s Section 1983 excessive force claim
and state law claims for assault and battery.
motion for summary judgment dismissing the claims is granted
with respect to all other claims, including all claims against
The Clerk is directed to close Docket No.
New York, New York
April 27, 2021
______/s/ John G. Koeltl______
John G. Koeltl
United States District Judge
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