Peeples v. Fiorito

• Court: District Court, N.D. New York
• Decided: February 1, 2021
• Docket: 3:19-cv-00868
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

JOE W. PEEPLES, III,

Plaintiff, 3:19-cv-00868 v. (TJM/TWD)

FBI AGENT CHRIS FIORITO, et al.,

Defendants. _____________________________________________

APPEARANCES:

JOE W. PEEPLES, III Plaintiff, pro se 40425-048 USP POLLOCK U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 2099 Pollock, LA 71467

THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION The Clerk has sent to the Court for initial review the amended complaint in this action, brought pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by pro se Plaintiff Joe W. Peeples, III. (Dkt. No. 19.) For the reasons set forth below, the Court recommends that Plaintiff’s amended complaint (Dkt. No. 19) be dismissed in its entirety for failure to state a claim upon which relief may granted and without further leave to replead. I. BACKGROUND The Court granted Plaintiff’s application to proceed in forma pauperis in its Order and Report-Recommendation filed in the case on July 20, 2019. (Dkt. No. 16.) Generally, in the original complaint, Plaintiff claimed Defendants Federal Bureau of Investigation Agents Chris

Fiorito and John Bokal, the Department of Justice, and local agencies and officers, violated his rights during and after an arrest in Binghamton, New York when they transported him away from that city to face charges in another federal judicial district. (Dkt. No. 9.) On initial review conducted pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, the Court recommended that Plaintiff’s complaint be dismissed with prejudice in part and with leave to replead in part (the “July Report-Recommendation”). (Dkt. No. 16.) Plaintiff did not file objections to the Report-Recommendation. By Decision & Order filed October 19, 2020, the Honorable Thomas J. McAvoy, Senior United States District Judge, accepted and adopted the July Report-Recommendation in its entirety for the reasons stated therein. (Dkt. No. 17.) Accordingly, it was Ordered that

Plaintiff’s complaint be dismissed in part and dismissed with leave to replead in part, as follows: 1. Any claims against Defendants the United States Department of Justice, the Binghamton PD Lock-up, and the Binghamton Sheriff are hereby DISMISSED WITH PREJUDICE;

2. Any claims brought pursuant to 18 U.S.C. § 242 in which Defendant seeks criminal prosecution of Defendants or others are hereby DISMISSED WITH PREJUDICE;

3. Any Eighth Amendment claims are hereby DISMISSED WITH PREJUDICE;

4. Any Fourth Amendment claims are hereby DISMISSED WITHOUT PREJUDICE TO REPLEADING; and 5. All remaining claims are hereby DISMISSED WITHOUT PREJUDICE as barred by Heck v. Humphrey, 512 U.S. 477 (1994).

Id. at 2-3. Plaintiff was advised that an amended complaint supersedes in all respects the prior pleading. Id. at 3. He was instructed that any amended complaint must be a complete pleading and include all facts and claims not otherwise dismissed by the Court with prejudice. Id. He was advised to properly allege in the amended complaint all factual bases for all claims asserted therein, and that the amended complaint must be in compliance with Rules 8 and 10 of the Federal Rules of Civil Procedure. Id. II. SUFFICIENCY OF THE AMENDED COMPLAINT A. Legal Standard 28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).1 Similarly, 28 U.S.C. § 1915A, directs that a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A.

1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). When reviewing a complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, courts are guided by applicable requirements of the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain (1) a short and plain statement of the grounds for the court’s jurisdiction . . .;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.” Hudson v. Artuz, No. 95 Civ. 4768(JSR), 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)). Rule 10 of the Federal Rules of Civil Procedure provides, in part: (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial— must be stated in a separate count or defense.

Fed. R. Civ. P. 10(b). The purpose of Rule 10 is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Laspisa v. Citifinancial Does 1 to 20, 269 F. Supp. 3d 11, 13 (N.D.N.Y. 2017) (citations omitted). A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009). Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed “without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.

1999) (citation and quotation marks omitted). An opportunity to amend is not required where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). B. Analysis Plaintiff’s amended complaint, like his original complaint, alleges Defendants Federal Bureau of Investigation Agents Chris Fiorito and John Bokal, the Department of Justice, and local agencies and officers, violated his rights in Binghamton, New York when, following his arrest, they transported him away from that city to face charges in another federal judicial district. (Dkt. No. 19.) Specifically, Plaintiff claims that on January 6, 2017, “unknown” law enforcement officers “illegally gained custody of [his] body from Binghamton Jail without any legal paper work at all.” Id. at 2.2 Plaintiff claims FBI Agent Fiorito “with the assistance from unknown person at the Binghamton Jail” and against Plaintiff’s will “without any controlling legal documents” “force[d]” Plaintiff to “remove all of [his] clothes, bend over and spread [his]

cheeks and cough.” Id. at 4. Plaintiff claims he was “only accused of a crime” by Agent Bokal with no other probable cause determination and “was forcibly placed into an SUV and kidnapped.” Id. He claims he was “sexually exploited and kidnapped” in violation of his constitutional rights under the Fourth and Fourteenth Amendments. Id. at 5. Plaintiff alleges he is being incarcerated “illegally” and was denied his “due process” in that he was denied a preliminary hearing in the “district of arrest” before an impartial magistrate judge. Id. at 1-2. “To this day,” Plaintiff has “been usurped by these actions against all written rule of law and the U.S. Constitution” and “has no signature of affirmation or attestment on my indictment or criminal affidavit.” Id. at 5. Plaintiff seeks monetary damages. Id. at 5. For a complete statement, reference is made to the amended complaint. (Dkt. No. 19.)

1. Claims against the United States Department of Justice, the Binghamton PD Lock-up, and the Binghamton Sheriff

Plaintiff lists the “DOJ, et al.” as Defendants in the caption of the amended complaint. (Dkt. No. 19 at 1.) As set forth above, the District Court dismissed any claims against the United States Department of Justice, the Binghamton PD Lock-up, and the Binghamton Sheriff with

2 Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected. prejudice. (Dkt. No. 17.) Therefore, the Court recommends these Defendants be terminated from the Docket. 2. Fourth Amendment Claims Related to Visual Body Cavity Search As discussed in the July Report-Recommendation, the Fourth Amendment “protects

individual privacy against certain kinds of governmental intrusion,” Katz v. United States, 389 U.S. 347, 350 (1967), and its protections extend to prisoners and pretrial detainees, see Bell v. Wolfish, 441 U.S. 520, 545, 559 (1979). (Dkt. No. 16.) However, the Supreme Court has recognized that “correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities.” Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328 (2012); see also Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992) (“Although inmates do possess a limited right to bodily privacy, some aspects of that right must yield to searches for contraband, even random visual body-cavity searches, so that prison administrators may maintain security and discipline in their institutions.”).

Here, Plaintiff claims FBI Agent Fiorito “with the assistance from unknown person at the Binghamton Jail” and against Plaintiff’s will “without any controlling legal documents” “force[d]” Plaintiff to “remove all of [his] clothes, bend over and spread [his] cheeks and cough.” (Dkt. No. 19 at 4.) To be sure, “[a] strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy.” Harris, 818 F.3d at 58 (quoting Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 344-45 (2012) (Breyer, J., dissenting)). But a constitutional violation requires more—for example, “that the search was excessive, was needlessly prolonged[,] . . . was otherwise meant to intimidate, harass or punish him,” Perez v. Ponte, 236 F. Supp. 3d 590, 624 (E.D.N.Y. 2017), report and recommendation adopted by 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017), or was “conducted in the presence of unnecessary spectators.” Harris, 818 F.3d at 62. Here, Plaintiff’s allegations do not suggest that the visual body search “did not serve a

legitimate penological purpose” or that it was “instead designed to intimidate, harass, or embarrass” him. Rather, Plaintiff claims he was being held and subject to the visual body search “without any controlling legal documents” at the Binghamton jail. As pleaded, Plaintiff’s allegations do not amount to a constitutional violation “because Florence permits corrections officers to strip search detainees without particularized suspicion . . . and recognizes that strip searches are specifically ‘designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches.’” Chaney v. City of Albany, No. 6:16-CV-1185 (NAM/TWD), 2019 WL 3857995, at *7 (N.D.N.Y. Aug. 16, 2019) (quoting Thompson v. City of New York, No. 16-CV-824, 2017 WL 1929552, at *2 (S.D.N.Y. May 9, 2017)). Therefore, the Court recommends dismissing Plaintiff’s Fourth Amendment claims

related to the visual body cavity strip search against Defendant FBI Agent Fiorito and the “unknown individual” pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because Plaintiff has already been afforded an opportunity to amend this claim, the Court recommends dismissal without leave to replead. 3. Remaining Claims barred by Heck Like the original complaint, Plaintiff claims he is “illegally” incarcerated and alleges violations of his constitutional rights when, inter alia, he was denied due process and a preliminary hearing in the district of arrest. (See generally Dkt. No. 19.) However, as set forth in the July Report-Recommendation, a civil lawsuit may not be used to collaterally attack a criminal conviction. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that 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 [Section] 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 a determination, or called into question by a federal court’s issuance of a writ of habeas corpus.

Id. at 486-87 (internal footnote omitted). Although Heck involved a Section 1983 claim, the Second Circuit has held that the rationale of Heck applies equally to a Bivens action. See Tavarez v. Reno, 54 F.3d at 110; see also Maietta v. Artuz, 84 F.3d 100, 103 n.1 (2d Cir. 1996). Broadly stated, Heck precludes a prisoner from using Section 1983 and/or Bivens as a vehicle to obtain damages where success on the particular constitutional claims alleged would necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement. Poventud v. City of N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc). Thus, under Heck and its progeny, a Section 1983 and/or Bivens action “is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original). “Disposition of the claims on Heck grounds, however, warrants only dismissal without prejudice, because the suit may be reinstituted should plaintiff’s conviction be ‘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.’” Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (quoting Heck, 512 U.S. at 487) (other citations omitted). Here, Plaintiff has not pleaded any new facts in the amended complaint suggesting the Heck bar has disappeared. On the contrary, Plaintiff claims “to date” he is still being “illegally” incarcerated because he was denied due process at a preliminary hearing and challenges the validity of his indictment or criminal affidavit. (Dkt. No. 1 at 1, 5.) It thus does not appear that

Plaintiff’s conviction has been invalidated, and — given the nature of his allegations — the success of his claims would necessarily imply the invalidity of his conviction or sentence. Therefore, the Court recommends dismissing Plaintiff’s remaining claims, if any, which would necessarily imply the invalidity of his current conviction or sentence, be dismissed without prejudice as barred under Heck unless and until such time as Plaintiff’s conviction is overturned or his sentenced invalidated. See Amaker, 179 F.3d at 52. ACCORDINGLY, for the reasons set for above, it is hereby RECOMMENDED that the amended complaint (Dkt. No. 19) be DISMISSED IN ITS ENTIRETY WITHOUT FURTHER LEAVE TO REPLEAD for failure to state a claim upon which relief may be granted; and it is further

RECOMMENDED that the Clerk be directed to terminate the U.S. Dept. of Justice, Binghamton PD Lock-up, and Binghamton Sheriff from the Docket; and it is further ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.3 Such objections shall be filed with the Clerk of the

3 If you are proceeding pro se and are served with this Order and Report- Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2015); Fed. R. Civ. P. 72, 6(a).

Dated: February 1, 2021 Syracuse, New York a Wiley Dancks : United States Magistrate Judge

mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

1998 WL 832708 By Judge Rakoff's Order dated April 14, 1998, this case was referred to me for general pretrial purposes and for a Report Only the Westlaw citation is currently available. and Recommendation on any dispositive motion. Presently United States District Court, S.D. New York. pending is defendants' renewed motion to dismiss. Plaintiff Theodore HUDSON, Plaintiff, filed a reply on July 6, 1998. For the reasons discussed v. below, plaintiff's complaint is dismissed without prejudice, Christopher ARTUZ, Warden Philip and plaintiff is granted leave to replead within thirty (30) days of the date of the entry of this order. Coombe, Commissioner Sergeant Ambrosino Doctor Manion Defendants. No. 95 CIV. 4768(JSR). FACTS | Nov. 30, 1998. Plaintiff alleges that he was assaulted by four inmates in the Green Haven Correctional Facility mess hall on March 14, Attorneys and Law Firms 1995. (Complaint at 4.) He alleges that he was struck with a pipe and a fork while in the “pop room” between 6:00 Mr. Theodore Hudson, Great Meadow Correctional Facility, p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends Comstock. that the attack left him with 11 stitches in his head, chronic Alfred A. Delicata, Esq., Assistant Attorney General, New headaches, nightmares, and pain in his arm, shoulder, and York. back. (Id.) Plaintiff also states that Sergeant Ambrosino “failed to secure [the] area and separate” him from his attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz is that he “fail [sic] to qualify as warden.” (Complaint at MEMORANDUM AND ORDER 4.) Plaintiff names Commissioner Coombes as a defendant, BUCHWALD, Magistrate J. alleging Coombes “fail [sic] to appoint a qualified warden over security.” (Amended Complaint at 5.) Plaintiff further *1 Plaintiff Theodore Hudson filed this pro se action alleges that Dr. Manion refused to give him pain medication. pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's (Complaint at 5.) Plaintiff seeks to “prevent violent crimes” complaint alleges defendants violated his constitutional rights and demands $6,000,000 in damages. (Amended Complaint while he was an inmate at Green Haven Correctional at 5.) Facility.1 Plaintiff's complaint was dismissed sua sponte by Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 Defendants moved to dismiss the complaint, arguing that: (1) U.S.C. § 1915(d). On September 26, 1995, the Second Circuit the Eleventh Amendment bars suit against state defendants Court of Appeals vacated the judgment and remanded the case for money damages; (2) the plaintiff's allegations fail to state to the district court for further proceedings. a claim for a constitutional violation; (3) the defendants are qualifiedly immune from damages; and (4) plaintiff must 1 Plaintiff is presently incarcerated at Sullivan exhaust his administrative remedies before bringing this suit. Correctional Facility. The case was reassigned to Judge Barbara S. Jones on DISCUSSION January 31, 1996. Defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. I find that plaintiff's complaint runs afoul of Rules 8 and Thereafter, the case was reassigned to Judge Jed S. Rakoff 10 of the Federal Rules of Civil Procedure and dismiss the on February 26, 1997. On February 26, 1998, Judge Rakoff complaint without prejudice and with leave to amend. Federal granted defendants' motion to dismiss, but vacated the Rule 8 requires that a complaint contain “a short and plain judgment on April 10, 1998 in response to plaintiff's motion statement of the claim showing that the pleader is entitled to for reconsideration in which plaintiff claimed that he never relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to received defendants' motion to dismiss. prepare an adequate defense.” Powell v. Marine Midland cases in which the court dismisses a pro se complaint for Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. failure to comply with Rule 8, it should give the plaintiff leave Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin to amend when the complaint states a claim that is on its v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d “principal function of pleadings under the Federal Rules is to Cir.1995). give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial”). In determining whether a nonfrivolous claim is stated, the complaint's allegations are taken as true, and the “complaint *2 Rule 10 of the Federal Rules of Civil Procedure requires, should not be dismissed for failure to state a claim unless inter alia, that the allegations in a plaintiff's complaint be it appears beyond doubt that the plaintiff can prove no set made in numbered paragraphs, each of which should recite, of facts in support of his claim which would entitle him to as far as practicable, only a single set of circumstances. relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to 10 also requires that each claim upon which plaintiff seeks be liberally construed in his favor when determining whether relief be founded upon a separate transaction or occurrence. he has stated a meritorious claim. See Haines v. Kerner, 404 Id.2 The purpose of Rule 10 is to “provide an easy mode U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it of identification for referring to a particular paragraph in a is difficult to determine the actual substance of the plaintiff's prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL complaint, outright dismissal without leave to amend the 392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & complaint is generally disfavored as an abuse of discretion. A. Miller, Federal Practice and Procedure, § 1323 at 735 See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of (1990)). New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y. Mar.12, 1997). 2 Rule 10 states: Here, plaintiff's pro se complaint fails to satisfy the (b) Paragraphs; Separate Statements. All requirements of Federal Rules 8 and 10. The complaint is averments of claim or defense shall be made in often illegible and largely incomprehensible, scattering what numbered paragraphs, the contents of each of appear to be allegations specific to plaintiff within a forest which shall be limited as far as practicable to a of headnotes copied from prior opinions. Defendants have statement of a single set of circumstances; and answered with a boilerplate brief, which is perhaps all a a paragraph may be referred to by number in all defendant can do when faced with such a complaint. The succeeding pleadings. Each claim founded upon Court is left with an insurmountable burden in attempting to a separate transaction or occurrence and each make a reasoned ruling on such muddled pleadings. defense other than denials shall be stated in a separate count or defense whenever a separation *3 Although plaintiff's complaint is substantially facilitates the clear presentation of the matters set incomprehensible, it appears to plead at least some claims forth. that cannot be termed frivolous on their face. For example, A complaint that fails to comply with these pleading rules plaintiff clearly alleges that inmates assaulted him and that “presents far too heavy a burden in terms of defendants' Dr. Manion refused to provide him medical attention. He also duty to shape a comprehensive defense and provides no appears to assert that Sergeant Ambrosino failed to protect meaningful basis for the Court to assess the sufficiency of” him from the attack or take steps to prevent future attacks. a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (Plaintiff's Reply at 5). It is well established that an inmate's (N.D.N.Y.1996). It may therefore be dismissed by the court. constitutional rights are violated when prison officials act Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When with deliberate indifference to his safety or with intent to a complaint does not comply with the requirement that it cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d be short and plain, the court has the power to, on its own Cir.1991). It is similarly well established that an inmate's initiative, ... dismiss the complaint”). Dismissal, however, is constitutional rights are violated when a prison doctor denies “usually reserved for those cases in which the complaint is his request for medical care with deliberate indifference to so confused, ambiguous, vague, or otherwise unintelligible the inmate's serious medical needs. Estelle v. Gamble, 429 Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. Plaintiff's complaint shall contain the facts specific to the incidents plaintiff alleges occurred, and not any facts relating 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although to any case that has been decided previously by a court of law. plaintiff provides few facts to support his allegations, I Plaintiff's complaint shall also contain a clear statement of the disagree with defendants' assertion that outright dismissal is relief he seeks in addition to monetary damages. appropriate because it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Defendant's Memorandum at 5 (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d CONCLUSION 80 (1957)). For the reasons set forth above, plaintiff's complaint is Because plaintiff's complaint does not comply with Rules 8 dismissed without prejudice, and plaintiff is granted leave to and 10, it is hereby dismissed without prejudice, and plaintiff replead within thirty (30) days of the date of the entry of this is granted leave to replead within thirty (30) days of the date Order. of the entry of this Order. In drafting his second amended complaint, plaintiff is directed to number each paragraph and IT IS SO ORDERED. order the paragraphs chronologically, so that each incident in which he alleges a constitutional violation is described in the All Citations order that it occurred. Plaintiff is also directed to specifically describe the actions of each defendant that caused plaintiff Not Reported in F.Supp.2d, 1998 WL 832708 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 1050109 the case with prejudice for failure to prosecute. Only the Westlaw citation is currently available. Where there are no objections, the Court may adopt the United States District Court, E.D. New York. report and recommendation without de novo review. See Jesswill PEREZ, Plaintiff, Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear v. that Congress intended to require district court review of a Joseph PONTE, et al., Defendants. magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those 16-CV-645 (JFB)(AKT) findings.”); see also Mario v. P & C Food Mkts., Inc., 313 F.3d | 758, 766 (2d Cir. 2002) (“Where parties receive clear notice Signed 03/15/2017 of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further Attorneys and Law Firms judicial review of the magistrate's decision.”); cf. 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de Jesswill Perez, Fishkill, NY, pro se. novo review after objections). However, because the failure Colin M. Ceriello, Office of the Corporation Counsel New to file timely objections is not jurisdictional, a district judge York City Law Department, New York, NY, Pablo A. may still excuse the failure to object in a timely manner and Fernandez, Nassau County Attorney's Office, Mineola, NY, exercise its discretion to decide the case on the merits to, for Defendants. for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98,107 (2d Cir. 2003) (“[B]ecause the waiver rule is non jurisdictional, we ‘may excuse the default in the interests of justice.’ ” (quoting Thomas, 474 U.S. at 155)). ORDER Joseph F. Bianco, United States District Judge Although plaintiff has waived any objections to the R&R and thus de novo review is not required, the Court has *1 Before the Court is a Report and Recommendation conducted a de novo review of the R&R in an abundance (“R&R,” ECF No. 40) from Magistrate Judge Tomlinson of caution. Having conducted a review of the full record recommending that the Court grant defendants Michael and the applicable law, and having reviewed the R&R de Sposato's and Joseph Ponte's (“defendants”) motions to novo, the Court adopts the findings and recommendations dismiss (ECF Nos. 16, 20). The R&R instructed that any contained in the well-reasoned and thorough R&R in their objections to the R&R be submitted within fourteen (14) entirety. Accordingly, IT IS HEREBY ORDERED that days of service of the R&R. (See R&R, dated February defendants' motion to dismiss plaintiff's claims is granted. IT 14, 2017, at 68.) Defendants served the R&R on plaintiff IS FURTHER ORDERED that plaintiff's motion to amend on February 21, 2017 (see ECF No. 43), and the date for is granted, in part, and denied, in part, in accordance with filing any objections has accordingly since expired. Plaintiff Judge Tomlinson's R&R. In particular, plaintiff may amend has not filed any objections to the R&R. For the reasons his Complaint to: (1) substitute only Chief Turhan Gumusdere set forth below, the Court adopts the thorough and well- and Officers John Doe #1 and John Doe #2 as Defendants; reasoned R&R in its entirety, grants defendants' motion to and (2) assert claims of constitutional deprivations of his dismiss plaintiff's claims, grants plaintiff's motion to amend Fourteenth Amendment Due Process rights based upon his his complaint, in part, and denies the motion to amend, in transfer from Riker's to Rockland as well as his failure-to- part. Specifically, plaintiff may amend his Complaint to: (1) protect claim. Plaintiff shall file the amended complaint by substitute only Chief Turhan Gumusdere and Officers John April 24, 2017. Failure to file an amended complaint by that Doe #1 and John Doe #2 as Defendants; and (2) assert claims date may result in dismissal of the case with prejudice for of constitutional deprivations of his Fourteenth Amendment failure to prosecute. Due Process rights based upon his transfer from Riker's to Rockland as well as his failure-to-protect claim. Plaintiff shall *2 SO ORDERED. file the amended complaint by April 24, 2017. Failure to file Not Reported in Fed. Supp., 2017 WL 1050109 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2019 WL 3857995 action under 42 U.S.C. § 1983 alleging various claims arising out of encounters with the Defendant law enforcement Only the Westlaw citation is currently available. officers. (Dkt. No. 1). Currently before the Court are United States District Court, N.D. New York. Defendants' motions for summary judgment, (Dkt. Nos. 165, Nakia CHANEY, Plaintiff, 167, 168), which Plaintiff has opposed, (Dkt. No. 176, 177, v. 178). For the reasons that follow, Defendants' motions are CITY OF ALBANY, Albany Police Department, granted in part and denied in part. Steven Krokoff, Scott Gavigan (Badge #1826), Richard Gorleski (Badge #2232), Daniel Kuhn II. BACKGROUND (Badge #1952), Kevin Meehan (Badge #2407), John Doe (Badge #889), Brian Kisling, Matthew A. Procedural History Staley, Daniel James, Jason Wilson, Seeber, Schenectady County, Schenectady County Jail, Plaintiff commenced this action on September 30, 2016, Anthony Sinatra (Badge #270), Joseph Glasser asserting at least nine claims for alleged violations (Badge #065), Kris Van Hoesen (Badge #291), Ernie of his constitutional rights by known and unknown Reaulo (Badge #24), Unknown John Does From individuals. (Dkt. No. 1). Specifically, Plaintiff first Schenectady Sheriff, Unknown John Does From alleges that Defendants Schenectady County, Schenectady County Sheriff's Department, Schenectady County Jail, and Schenectady County Jail, and Alan Bell, Defendants. Officers Sinatra, Glasser, Van Hoesen, Reaulo, and other 6:16-CV-1185 (NAM/TWD) unknown John Does (collectively, the “Schenectady County | Defendants”) conducted “unlawful [ ] visual body cavity Signed 08/16/2019 searches” on Plaintiff's person prior to his admission to Schenectady County Jail in 2013 and 2014. (Id., p. 22).1 Attorneys and Law Firms Plaintiff also alleges that on December 28, 2013, Defendant Glasser used “excessive force [by] unlawfully tasering Nakia Chaney, Schenectady, New York 13206, Plaintiff Pro plaintiff while [in] handcuffs....” (Id., p. 23). Defendant Se. further claims that the Schenectady County Defendants The Rehfuss Law Firm, P.C., Stephen J. Rehfuss, Esq., unlawfully denied him medical care immediately following Abigail W. Rehfuss, Esq., 40 British American Blvd., the December 28th incident. (Id., p. 7). Latham, New York 12110, Attorneys for Defendants City of Albany, Krokoff, Gavigan, Gorleski, Kuhn, Meehan, Kisling, 1 All citations to documents in the record reference Wilson, Seeber, Staley, James. the page numbers identified on the CM/ECF page stamp. Burke, Scolamiero, Mortati & Hurd LLP, Judith B. Aumand, Esq., 7 Washington Square, Albany, New York 12212, Plaintiff claims that the Albany Police Department (“APD”), Attorney for Defendant Alan Bell. Police Chief Steven Krokoff, and Officers Gavigan, Gorleski, Kuhn, Meehan, Kisling, Staley, James, Wilson and Seeber Goldberg Segalla, LLP, James F. Faucher, II, Esq., Jonathan (collectively the “Albany Defendants”) conducted “unlawful M. Bernstein, Esq., 8 Southwoods Blvd., Suite 300, Albany, [ ] visual body cavity searches” on Plaintiff's person at the New York 12211, Attorneys for Defendants Schenectady Albany police station. (Dkt. No. 1, p. 22). Plaintiff further County, Reaulo, Sinatra, Vanhoesen, Glasser. alleges that the Albany Defendants violated his constitutional rights in August 2014 and October 2014 for separate incidents involving alleged “unlawful gun point stop[s], arrest or MEMORANDUM-DECISION AND ORDER frisk, forcible touching [ ], sexual assault, excessive force, and abuse of legal process.” (Id.). Plaintiff claims that the Hon. Norman A. Mordue, Senior District Court Judge: Albany Defendants violated his right to privacy through alleged strip searches. (Id., p. 23). ¶ 4). The chase ended at 767 Westmoreland Drive in the Town of Niskayuna, where Plaintiff lived at the time. (Dkt. Finally, Plaintiff alleges that Defendant Alan Bell of No. 165-28, pp. 117, 123). There, Plaintiff was involved in the Niskayuna Police Department, along with Defendant a brief struggle with Schenectady County Sheriff's Deputy Gavigan, conducted “unlawful [GPS] tracking of [Plaintiff's] Glasser, who used a taser to subdue Plaintiff. (Dkt. No. every move for over 9 months without a warrant....” (Dkt. No. 165-29, ¶ 4). Plaintiff appeared in court and was released 1, pp. 10, 23). Specifically, Plaintiff claims that Defendant on bail that same night. (Dkt. No. 165-28, p. 125). Plaintiff Bell “requested [that] [D]efendant Scott Gavigan use the did not receive medical treatment for any injuries while in unlawful GPS tracking device,” and “controlled the GPS police custody, nor did he seek medical treatment following device in the Town of Niskayuna [while] Defendant Scott his release. (Id., pp. 127–28). Plaintiff was later charged with Gavigan covered the GPS device for the Albany Police obstructing governmental administration and resisting arrest; without a warrant [ ] or probable cause.” (Id., p. 10). he pled guilty to disorderly conduct in full satisfaction of those charges. (Dkt. No. 165-28, p. 116; Dkt. No. 165-29, ¶ In November 2017, the Court granted the Albany County 9; see also Dkt. No. 165-36, pp. 3–4; Dkt. No. 165-37, p. 2). Defendants' motion for judgment on the pleadings, dismissing them from this action. (Dkt. No. 110, pp. 7–8). In that same order, the Court denied Defendant Alan Bell's motion to 2. August 14, 2014 Arrest dismiss. (Id., pp. 11–14). On December 15, 2017, the Court granted Plaintiff's motion to substitute Joseph Glasser for On August 14, 2014, Plaintiff was a passenger in a vehicle Defendant Schenectady County Sheriff Badge #SCP 065; and driven by his friend, Jonathan Smith. (Dkt. No. 165-28, p. 25). granted Plaintiff's motion to substitute APD Officers Daniel APD officers stopped the vehicle after Smith failed to use a Kuhn, Brian J. Kisling, Jason A. Wilson, Seeber, Matthew turn signal. (Dkt. No. 167-2, p. 4). The police report states Staley, and Daniel James for “Defendant John Does Albany that APD officers then observed Smith throw three glassine Police.” (See Dkt. No. 111). envelopes, each containing a quantity of heroin, out of the vehicle. (Id.). Smith was arrested and charged with criminal possession of a controlled substance and criminal possession B. Record Before the Court2 of a hypodermic instrument. (Id.). Plaintiff was not charged with any crime, and he was released from the scene. (Dkt. No. 2 The discovery deadline expired on November 30, 165-28, p. 45). 2018. Defendants deposed Plaintiff on July 31, 2018. (See Dkt. No. 165-28). Plaintiff did not depose any of the Defendants. 3. October 13, 2014 Arrest *2 While the Court “is not required to consider what the On October 13, 2014, APD Officer Gavigan received parties fail to point out,” in deference to Plaintiff's pro se information from a confidential informant that Plaintiff and status and out of an abundance of caution, the Court has the informant would be transporting heroin to the Albany area nevertheless conducted “an assiduous review of the record” from New Jersey. (Dkt. No. 167-2, p. 93). When Plaintiff and to determine whether there is evidence that might support the informant exited the highway in Albany, APD officers any of Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d stopped the vehicle and ordered Plaintiff to show his hands 62, 73 (2d Cir. 2001). The Court has construed the following and exit the vehicle. (Id., pp. 93–94). The Arrest Report undisputed facts in the light most favorable to the Plaintiff. indicates that APD recovered 198 glassine envelopes from the left pocket of Plaintiff's coat located in the trunk of the vehicle. (Id., p. 6). Each envelope contained a quantity of 1. December 28, 2013 Arrest heroin, with an aggregate weight of 4 grams. (Id.). Plaintiff was later charged and convicted of Criminal Possession of On December 28, 2013, Plaintiff was a passenger in a vehicle a Controlled Substance in the Third Degree in violation of driven by Lorenzo McGill. (Dkt. No. 165-28, p. 114). McGill Penal Law § 220.16(1). (Dkt. No. 167-2, p. 7). 4. Visual Body Cavity Searches Cir. 2003). “Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment In 2014, Plaintiff was convicted of drug crimes in Niskayuna when the moving party has set out a documentary case.” Town Court based on activities unrelated to this action. (Dkt. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). To No. 165-28, p. 46). Plaintiff was sentenced to serve 30 that end, “sworn statements are more than mere conclusory consecutive four-day weekends in Schenectady County Jail. allegations subject to disregard [ ]; they are specific and (Id.). While serving that sentence, Plaintiff was required to detailed allegations of fact, made under penalty of perjury, submit to a “visual body cavity search” before each admission and should be treated as evidence in deciding a summary to the Schenectady County Jail. (Dkt. No. 165-28, pp. 15– judgment motion.” Id. at 289 (citing Flaherty v. Coughlin, 713 16). Plaintiff was admitted to the Schenectady County Jail F.2d 10, 13 (2d Cir. 1983)). and searched according to the County's admission policy on at least six occasions in August and September 2014. (Dkt. Further, where a plaintiff proceeds pro se, the Court must No. 165-38, ¶ 4). read his submissions liberally and interpret them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos III. STANDARD OF REVIEW v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, a *3 Under Federal Rule of Civil Procedure 56(a), summary pro se party's “ ‘bald assertion,’ completely unsupported by judgment may be granted only if all the submissions, taken evidence, is not sufficient to overcome a motion for summary together, “show that there is no genuine issue as to any judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268 material fact and that the moving party is entitled to judgment (N.D.N.Y. 2010) (citing Carey v. Crescenzi, 923 F.2d 18, 21 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. (2d Cir. 1991)). 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears IV. DISCUSSION the initial burden of demonstrating “the absence of a genuine Plaintiff asserts a number of claims against each of the issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. Defendants. The Court has construed Plaintiff's Complaint 2548. A fact is “material” if it “might affect the outcome of liberally, and will address each of the Defendants' arguments the suit under the governing law,” and is genuinely in dispute for summary judgment in turn. “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d A. Claims Against the Schenectady County Defendants 549, 553 (2d Cir. 2005) (citing Anderson). If the moving party meets this burden, the nonmoving party 1. Excessive Force on December 28, 20133 must “set out specific facts showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also 3 To the extent they are alleged, the Court dismisses Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; Wright v. Goord, Plaintiff's claims against “Unknown John Does 554 F.3d 255, 266 (2d Cir. 2009). Further, “[w]hen no rational from Schenectady County Sherriff” arising from jury could find in favor of the nonmoving party because the the encounter between Plaintiff and Officer Glasser evidence to support its case is so slight, there is no genuine on December 28, 2013. The Court has reviewed the issue of material fact and the grant of summary judgment is record and finds that there is no evidence to support proper.” Gallo v. Prudential Residential Servs., Ltd. P'ship, a claim that excessive force or other unlawful 22 F.3d 1219, 1223–24 (2d Cir. 1994) (citing Dister v. conduct was committed by any unidentified Continental Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). officer(s) on that date. “When ruling on a summary judgment motion, the district *4 Plaintiff alleges that on December 28, 2013, Officer court must construe the facts in the light most favorable to Glasser of the Schenectady County Sherriff's Department the nonmoving party and must resolve all ambiguities and used “excessive force [by] unlawfully tasering plaintiff while draw all reasonable inferences against the movant.” Dallas was proper under the circumstances, and they argue that and leaving a scar. (Dkt. No. 165-28, pp. 120–21). “Plaintiff is estopped from claiming that he was a passive recipient of police violence.” (Dkt. No. 165-43, pp. 6–11). Officer Glasser recalls the encounter quite differently, asserting that when the chase ended at 767 Westmoreland “The Fourth Amendment prohibits the use of unreasonable Drive: and therefore excessive force by a police officer in the course of effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 Plaintiff Nakia Chaney jumped out of the passenger side (2d Cir. 2010). To succeed on an excessive force claim, “a door and ran to the front door of the house trying to get the plaintiff must ultimately demonstrate that the defendant's use door open. I took plaintiff to the ground where he resisted of force was objectively unreasonable in light of the facts and refused to place his hands behind his back. I gave and circumstances confronting them, without regard to their Plaintiff direct orders to put his hands behind his back, underlying intent or motivation.” Hulett v. City of Syracuse, which he ignored. I used my taser to drive stun plaintiff in 253 F. Supp. 3d 462, 491 (N.D.N.Y. 2017); see also Maxwell the back. This caused plaintiff's hands to move from the v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004). The front of his body to the back. Once that occurred, I was able “objective reasonableness” inquiry is “case and fact specific to handcuff plaintiff. and requires balancing the nature and quality of the intrusion *5 At the time of arrest, I did not know why plaintiff had on the plaintiff's Fourth Amendment interests against the tried to run away. I also did not know if plaintiff was armed countervailing governmental interests at stake.” Tracy, 623 and why plaintiff was resisting so hard to keep his hands F.3d at 96 (citing Amnesty America v. Town of West Hartford, in front of him. For my safety and the safety of the other 361 F.3d 113, 123 (2d Cir. 2004)). officers involved, Plaintiff needed to be handcuffed so that he could not access a weapon or flee the scene.... In evaluating an excessive force claim, courts consider: “(1) the nature and severity of the crime leading to the arrest, (2) Since the taser did not cause any injury to plaintiff, he was whether the suspect poses an immediate threat to the safety of not given medical treatment. No taser darts were used. I the officer or others, and (3) whether the suspect was actively employed the taser using a drive stun. A drive stun is when resisting arrest or attempting to evade arrest by flight.” Id. the taser is held against someone's body without firing (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. the projectiles, and is used to employ electricity to gain 1865, 104 L.Ed.2d 443 (1989)). “[A] court must evaluate compliance. the record from the perspective of a reasonable officer on scene, rather than with the 20/20 vision of hindsight.” Hulett, (Dkt. No. 165-29, ¶¶ 4–5, 8). Officer Glasser's recollection 253 F. Supp. 3d at 491 (citing Tracy, 623 F.3d at 96; Jones appears to be consistent with his Arrest Report and Taser Use v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). “[G]ranting Report from the night of the incident. (See Dkt. No. 165-33, summary judgment against a plaintiff on an excessive force p. 2; Dkt. No. 165-30, p. 2). claim is not appropriate unless no reasonable fact finder could conclude that the officers' conduct was objectively Aside from these accounts, the parties offer no additional unreasonable.” Amnesty Am., 361 F.3d at 123. evidence to support their opposing versions of events. At a minimum, there are material issues of fact as to whether Here, the parties have offered vastly different versions of Plaintiff ran and resisted arrest, where the taser struck him, the events that occurred after the police chase on December and whether it did so before or after he was in handcuffs, all of 28th. Plaintiff claims that he “did not run [from police] which affect the reasonableness of the use of force. Weighing and had no reason to run,” and adds that he was “snatched the competing evidence and the parties' credibility is a task out of the vehicle by several officers at gun point [sic] reserved for the trier of fact. Accordingly, the disputed issues flanked by several officers and immediately handcuffed and of material fact preclude resolution as a matter of law, and tasered.” (Dkt. No. 176, p. 2). These allegations are consistent the Schenectady County Defendants' motion for summary with the Complaint, and align with his recollection of events judgment on this claim must be denied.4 during his deposition testimony. (Dkt. No. 1, p. 7; see also Dkt. No. 165-28, pp. 117–28). According to Plaintiff, he was 4 The Court rejects the Schenectady County because Plaintiff pled guilty to disorderly conduct. claim that he was “extremely hot,” “nervous,” and “shocked” (See Dkt. No. 165-43, pp. 16–19). Here, a falls far short of the necessary showing. See Bradley v. Village favorable adjudication of Plaintiff's excessive force of Greenwood Lake, 376 F. Supp. 2d 528, 535 (S.D.N.Y. claim would not “necessarily imply the invalidity” 2005) (dismissing excessive force claim against an arresting of Plaintiff's guilty plea because disorderly officer who kicked the plaintiff in the stomach causing conduct involves materially different elements temporary nausea and an abdominal scratch); Esmont v. City than obstructing governmental administration and of New York, 371 F. Supp. 2d 202, 213–15 (E.D.N.Y. 2005) resisting arrest—the original charges against him. (dismissing an excessive force claim where the arresting See Shapard v. Attea, 710 F. App'x 15, 17–19 (2d officer caused the plaintiff to bump her head as she was Cir. 2017) (reversing the district court's finding placed in patrol car, resulting in a headache; left her in hot that Section 1983 claims were barred where the patrol car for ten minutes, resulting in profuse sweating; and excessive force claims were not incompatible with applied handcuffs too tightly, resulting in bruising, swelling the plaintiff's prior guilty plea to second degree and unsubstantiated claims of nerve damage); Roundtree v. assault against an officer). City of New York, 778 F. Supp. 614, 622 (E.D.N.Y. 1991) (dismissing an excessive force claim where the arresting officer pushed the plaintiff into a patrol car causing alleged 2. Denial of Medical Attention pain and suffering). Plaintiff also appears to claim that he was unlawfully denied Further, Plaintiff admits that he did not seek medical medical attention by the Schenectady County Defendants attention for his alleged medical needs following his release, following his arrest on December 28, 2013. (Dkt. No. 1, and he does not claim any lasting physical injuries from p. 7). Plaintiff alleges that he required medical treatment the December 28th encounter. (See Dkt. No. 165-28, p. because “he became extremely hot, nervous, heart racing 128). Indeed, courts have found that a plaintiff's failure to [sic], shocked scared weird feeling but was denied initial seek medical attention after being released from custody medical treatment to document complaints.” (Dkt. No. 176, undermines any claim of serious pain or that urgent care p. 2). was needed. See, e.g., Carey v. Maloney, 480 F. Supp. 2d 548, 557–58 (D. Conn. 2007) (dismissing a plaintiff's claim A claim for deliberate indifference to a pre-trial detainee's for denial of medical treatment where the plaintiff never serious medical needs is analyzed under the Fourteenth requested medical attention from the police, and did not Amendment, and requires a two-part showing: (1) that seek medical attention until nearly twenty-four hours after Plaintiff had a serious medical need for treatment; and (2) his release from custody); see also Rivera v. Goord, 253 F. that the Schenectady County Defendants acted with deliberate Supp. 2d 735, 756 (S.D.N.Y. 2003) (“Evidence that a plaintiff indifference to such needs. See Gabriel v. County of Herkimer, has refused medical care has been found to effectively rebut 889 F. Supp. 2d 374, 392 (N.D.N.Y. 2012) (citing Caiozzo claims of deliberate indifference to serious medical needs.”). v. Koreman, 581 F.3d 63, 71–72 (2d Cir. 2009)). The first After careful review of the record, the Court concludes that element requires “a condition of urgency, one that may there are no facts from which a jury could find that Plaintiff produce death, degeneration, or extreme pain.” Bruno v. City had a serious medical need on December 28, 2013. of Schenectady, 727 F. App'x 717, 720 (2d Cir. 2018) (citing Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)). The Moreover, even if Plaintiff could show a serious medical second element is met when “the official ‘acted intentionally need, he has not presented any evidence that the Defendant to impose the alleged condition, or recklessly failed to act with officers ignored or rejected a specific request by Plaintiff reasonable care to mitigate the risk that the condition posed to for medical attention. Indeed, there is no evidence that the pretrial detainee even though the defendant-official knew, the Schenectady County Defendants were even aware of or should have known, that the condition posed an excessive Plaintiff's alleged serious medical condition. Thus, the record risk to health or safety.’ ” Id. (quoting Darnell v. Pineiro, 849 offers no facts whatsoever to show deliberate indifference by F.3d 17, 35 (2d Cir. 2017)). the Defendant officers. *6 Here, Plaintiff offers no evidence of a serious medical verdict in Plaintiff's favor for denial of medical attention, In support of summary judgment, the Schenectady County the Schenectady County Defendants' motion for summary Defendants argue that Plaintiff's claims have been expressly judgment is granted on this claim. rejected by the Supreme Court, and that his allegations “fail[ ] to show that the alleged admission visual strip searches violated a clearly established law in the Second Circuit.” (Dkt. No. 180-4, pp. 11–12). According to Captain 3. Unlawful Visual Body Cavity Searches Gregory Cufari of the Schenectady County Sherriff's Office, Next, Plaintiff alleges that he was subjected to unlawful visual “[e]ach time the plaintiff entered the jail he was a security body cavity searches performed by the Schenectady County risk because he was coming off the street and going into Defendants prior to each admission for his weekend stays at the jail's general population. By coming into the jail from the Schenectady County Jail. (Dkt. No. 1, p. 22). Plaintiff adds the street, plaintiff had the ability [ ] to bring into the jail that the “schenectady county jail admission policy in which such items as weapons, drugs or other contraband.” (Id.). [Plaintiff] was forced to undress and spread apart his rectal In response, Plaintiff argues that “there was no reason to and lift up his penis was without justification as there was conduct a cavity search after plaintiff cleared all boss chairs no reason to believe that weapons or contraband was being and handwands without detection,” and he contends that concealed on or in the body and therefore violated [Plaintiff's] “[a]ny cavity searches was only to humiliate as there was constitutional rights.” (Id., pp. 19–20). Plaintiff claims that no reasonable suspicion as plaintiff cleared security and Defendants Van Hoesen, Reaulo, and Sinatra performed an unrelated to legitimate penological interests.” (Dkt. No. 176, “unlawful admission visual body cavity search” on Plaintiff p. 4). on several occasions in August, September, and October of 2014. (Id.). Plaintiff also alleges that unidentified John Does On this claim, the Court's previous ruling dismissing of the Schenectady County Sherriff's Department performed Plaintiff's claim against the Albany County Defendants unlawful visual body cavity searches in December 2013, and applies with equal force. (See Dkt. No. 110, pp. 7–8). Plaintiff May and August of 2014. (Id.). Defendants acknowledge that alleges that the searches he underwent at the Schenectady Plaintiff was admitted to the Schenectady County Jail on six County Jail were unconstitutional because the Schenectady separate occasions in August and September 2014. (Dkt. No. County Defendants did not have reasonable suspicion of 165-38, ¶ 4). concealed contraband—precisely the same claim rejected by the Supreme Court in Florence. Again here, Plaintiff's *7 It is well-established that “[t]he general practice of strip argument fails “because Florence permits correction officers searching a detainee during housing searches and on the way to strip search detainees without particularized suspicion ... to and from court appearances is not unconstitutional, even if and recognizes that strip searches are specifically ‘designed the detainee is accused only of a misdemeanor.” Thompson v. to uncover contraband that can go undetected by a patdown, City of New York, No. 16-CV-824, 2017 WL 1929552, at *2, metal detector, and other less invasive searches.’ ” Thompson, 2017 U.S. Dist. LEXIS 70423 (S.D.N.Y. May 9, 2017) (citing 2017 WL 1929552, at *2, 2017 U.S. Dist. LEXIS 70423 cases). The Supreme Court has recognized that “correctional (quoting Florence, 566 U.S. at 334, 132 S.Ct. 1510). officials must be permitted to devise reasonable search That includes searches involving visual inspection of body policies to detect and deter the possession of contraband in cavities. Florence, 566 U.S. at 340–41, 132 S.Ct. 1510. their facilities.” Florence v. Bd. of Chosen Freeholders of Moreover, there is no evidence that the searches “did not serve County of Burlington, 566 U.S. 318, 328, 132 S.Ct. 1510, a legitimate penological purpose,” or that they were “instead 182 L.Ed.2d 566 (2012). In Florence, the Supreme Court designed to intimidate, harass, or embarrass [Plaintiff].” See held that a county jail did not violate prisoners' rights when Smith v. City of New York, No. 14-CV-5934, 2015 WL it permitted visual inspection body cavity searches, without 3929621, at *2, 2015 U.S. Dist. LEXIS 81337 (S.D.N.Y. June reasonable suspicion, prior to the prisoners' introduction to 17, 2015). a general population unit. Id. at 339, 132 S.Ct. 1510. As in Florence, Plaintiff's allegations of unlawful searches relate Accordingly, Plaintiff's claims of unlawful searches fail as specifically to “visual body cavity searches” conducted upon a matter of law, and the Schenectady County Defendants' his admission to the Schenectady County Jail. (See, e.g., Dkt. motion for summary judgment on these claims is granted. No. 1, p. 7). Plaintiff's claims against the Schenectady County Jail and John Does from Schenectady County Jail” are dismissed with without a warrant [ ] or probable cause.” (Dkt. No. 1, prejudice. pp. 10, 23). Plaintiff claims that “[t]he unlawful GPS tracking on plaintiff [sic] vehicle or cellphone was done without a warrant,” resulting in a “massive invasion of [his] privacy.” (Id., p. 20). Plaintiff admits that these allegations are 4. Monell Claim solely based on logs from the Albany-area license plate reader Next, Plaintiff alleges that “[t]he wrongful conduct alleged (“LPR”) system, which identify dates, times, and locations herein in regards to the admission visual body cavity searches when Plaintiff's vehicle was observed on public roads. (Dkt. has been conducted generally upon all members of the No. 165-28, p. 141). Plaintiff testified that he is aware that plaintiff class in that the strip searches were conducted Albany has cameras stationed throughout the city, and that pursuant to a long-established plan, policy, or procedure of these cameras are used to “record everything that goes by the [Schenectady County Sherriff.]” (Dkt. No. 1, p. 20). This them,” including license plates on passing vehicles. (Id., could be construed as a municipal liability claim against pp. 133–34). Plaintiff also acknowledged that he does not Schenectady County pursuant to Monell v. Dep't of Soc. Servs. believe that any LPR technology was placed directly on his of City of New York, 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 vehicle. (Id., pp. 135–37). Nonetheless, he argues that the L.Ed.2d 611 (1978). In general, municipalities are responsible use of numerous cameras throughout the city operated like a only for “their own illegal acts,” Pembaur v. Cincinnati, 475 tracking device for law enforcement “because it continuously U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and are tracks and it works the same way as the GPS works.” (Id.). not vicariously liable for civil rights violations perpetrated by their employees. Monell, 436 U.S. at 691, 98 S.Ct. 2018. In Defendant Bell argues that summary judgment is appropriate order to sustain a claim for municipal liability under Section “because there is no evidence that Defendant Bell placed or 1983, a plaintiff must show that he suffered a constitutional directed to be placed a GPS device on Plaintiff's vehicle(s) violation in the first place, and that the violation resulted from and/or cellphone.” (See Dkt. No. 168-32, pp. 6–9). Defendant an identified municipal policy or custom. Monell, 436 U.S. at Bell contends that Plaintiff's allegations about unlawful 694–95, 98 S.Ct. 2018. The same is true for claims against GPS tracking stem from a misunderstanding of the LPR other government entities such as the County of Schenectady. technology. (See id.). According to Defendant Bell, “it See Sheriff's Silver Star Ass'n of Oswego County, Inc. v. is without question that [LPRs] are lawful, constitutional County of Oswego, 56 F. Supp. 2d 263, 266 (N.D.N.Y. 1999). technology and may be used by law enforcement as a valuable tool.” (Id., p. 7). *8 As noted by the Schenectady County Defendants, Plaintiff's Monell claim is limited to the alleged policy Indeed, courts have consistently upheld the use of LPR and and practice of conducting visual body cavity searches similar technologies by law enforcement agencies. See, e.g., upon admission to the Schenectady County Jail. Because United States v. Miranda–Sotolongo, 827 F.3d 663, 668 (7th the Court has already determined that the County's pre- Cir. 2016) (“Because the police conducted a check of a admission search practices for the jail did not violate the database containing only non-private information and did so Constitution, Plaintiff's Monell claim fails for the same using only registration information that could be seen by any reason. See Segal v. City of New York, 459 F.3d 207, 219 member of the public, the police did not conduct a Fourth (2d Cir. 2006) (municipal liability under Monell may only Amendment search.”); United States v. Diaz–Castaneda, 494 lie where there is an underlying constitutional violation). F.3d 1146, 1152 (9th Cir. 2007) (stating that “when police Accordingly, the Schenectady County Defendants' motion for officers see a license plate in plain view, and then use that plate summary judgment on Plaintiff's Monell claim is granted. to access additional non-private information about the car and its owner, they do not conduct a Fourth Amendment search”); United States v. Ellison, 462 F.3d 557, 563 (6th Cir. 2006) (“Thus, so long as the officer had a right to be in a position B. Claim Against Defendant Bell to observe the defendant's license plate, any such observation and corresponding use of the information on the plate does Plaintiff alleges that Defendant Alan Bell, a sergeant with the Niskayuna Police Department, “requested [that] Defendant not violate the Fourth Amendment”). In People v. Bushey, the New York Court of Appeals addressed a similar challenge to technology. See generally 29 N.Y.3d 158, 75 N.E.3d 1165 Defendant Bell states that: (2017). There, the Court of Appeals explained that: Plaintiff has relied on print outs from *9 Because the purpose of a license the [ACAC] to claim that I placed or plate is to readily facilitate the caused to be placed a GPS device on identification of the registered owner his vehicle(s) and/or cell phone. I did of the vehicle for the administration not. Instead, I requested information of public safety, a person has no from the ACAC pertaining to license reasonable expectation of privacy plates known to be associated with the in the information acquired by the plaintiff. It just so happens that the State for this purpose and contained license plate information I entered into in a law enforcement or DMV the system was captured by some of database. Indeed, the information is the license plate readers in Albany and typically provided voluntarily by a the print out demonstrates when and driver to a government agency in where the license plates passed any of exchange for the privilege of a valid the various cameras. license and registration. Considering that police officers are authorized by law to inspect and check for (Id., ¶ 6). Defendant Bell further explains the LPR log forms violations of licensing and registration cited by Plaintiff as follows: requirements (see Vehicle and Traffic Law §§ 390, 401), drivers cannot claim any objectively reasonable expectation One heading of the print out states of privacy with respect to the DMV “GPS”. In this context, it is not a GPS information being obtained by law in the way plaintiff alleges where a enforcement. An officer's observation device is placed onto a vehicle or cell of that which is publicly displayed phone and then sends out information and the use of the information as to the vehicle's whereabouts at any relative thereto contained in the DMV point in time. Instead, in the context database does not violate defendant's of the license plate readers, “GPS” Fourth Amendment rights, nor any refers to the location of the license provision of our New York State plate reader itself. Based on this, I Constitution. As defendant did not am able to tell whether the license have any reasonable expectation of plate associated with the plaintiff was privacy in either his license plate captured as it drove by a stationary or the information lawfully obtained camera or a camera affixed to a police and accessible through the DMV vehicle. If a vehicle associated with database, there was no search or Mr. Chaney did not drive by a license seizure cognizable under federal or plate reader, I would not know his state constitutional law. whereabouts. Had there actually been a GPS placed on the vehicle, I would be able to know his whereabouts at Id. at 163–64. all times. Because I only accessed the database and did not use a GPS, I Here, Defendant Bell has explained how the Albany Crime would not know where Mr. Chaney Analysis Center (“ACAC”), a division of the Albany Police occasions when he passed a camera. *10 The Albany Defendants argue that Plaintiff's excessive force claim is subject to summary judgment because “[Plaintiff] fails to articulate any specific physical injuries,” (Id., ¶ 7). and “never sought or received medical treatment as a result of either incident.” (Dkt. No. 167-1, pp. 10–11). In response, In sum, the record shows that APD used fixed cameras Plaintiff argues that officers used “extreme and excessive throughout the city that indiscriminately recorded 24-hours force” on both occasions, but he fails to identify any resulting a day, without any particular focus on specific individuals, injuries. (Dkt. No. 177, p. 3). a fact acknowledged by Plaintiff. (See Dkt. No. 165-28, pp. 135–36). And Plaintiff has presented no evidence that As discussed above, excessive force claims brought under Defendant Bell used any technology other than LPR to Section 1983 are evaluated under the Fourth Amendment's track the location of Plaintiff's vehicles or his cell phone. “objective reasonableness” standard. See Terranova v. New Thus, for the reasons outlined by the Court of Appeals in York, 676 F.3d 305, 308 (2d Cir. 2012). “[A] plaintiff must Bushey, Defendant Bell's use of the LPR technology did present sufficient evidence to establish that the alleged use of not violate Plaintiff's Fourth Amendment rights because he force is ‘objectively sufficiently serious or harmful enough’ had no reasonable expectation of privacy in his license plate to be actionable.” Washpon v. Parr, 561 F. Supp. 2d 394, 406 information while traveling on public roads. (S.D.N.Y. 2008) (quoting United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)). “[T]he Second Circuit and district Accordingly, Defendant Bell's motion for summary judgment courts in the Circuit recognize the concept of de minimis is granted. injury and, when the injury resulting from alleged excessive force falls into that category, the excessive force claim is dismissed.” Jackson v. City of New York, 939 F. Supp. 2d 219, 231 (E.D.N.Y. 2013); see also Romano v. Howarth, 998 F.2d C. Claims Against the City of Albany Defendants5 101, 105 (2d Cir. 1993). Furthermore, a “ ‘[d]e minimis injury can serve as conclusive evidence that de minimis force was 5 The Court notes that the Albany Defendants have used.’ ” Washpon, 561 F. Supp. 2d at 407 (quoting Carr v. not moved for summary judgment on Plaintiff's Deeds, 453 F.3d 593, 606 (4th Cir. 2006)). However, “the unlawful tracking claims against APD and Officer absence of any significant injury to [Plaintiff] does not end Gavigan. (Compare Dkt. No. 1, with Dkt. No. 167). the [excessive force] inquiry, for our standards of decency are violated even in the absence of such injury if the defendant's use of force was malicious or sadistic.” Wright v. Goord, 554 1. Excessive Force Claim F.3d 255, 270 (2d Cir. 2009). Plaintiff claims that he was subjected to excessive force Here, Plaintiff does not allege any specific injuries resulting during encounters with APD officers on August 14, 2014 and from the claimed excessive force by APD officers on August October 13, 2014. (Dkt. No. 1, pp. 7–8, 22–23). Specifically, 14 or October 13 in 2014. (See generally Dkt. No. 1; Dkt. Plaintiff claims that an unknown officer (Defendant John No. 171). Plaintiff merely asserts that, on August 14th, he was Doe Badge #889) “used excessive force by tackling [ ] “surrounded by all the officers who basically just took me plaintiff to the ground and handcuffing plaintiff as he tried down,” and that “[t]hey came over with guns drawn, threw to enter the store on central ave on the night of August me down to the floor, rushing me down, and handcuffing 14, 2014.” (Id., p. 7). Plaintiff also claims that he was me.” (Dkt. No. 165-28, pp. 29–30). After being pushed to subjected to excessive force on October 13, 2014 when APD the ground, Plaintiff states that the APD officers “searched Officers Gavigan, Gorleski, Kuhn, and Meehan “roadblocked around me, took my phone and stuff out of my pocket, plaintiffs [sic] vehicle at gun point and strong armed plaintiff searched my pocket and my, you know, genital area around facedown in the middle of interstate I-90.” (Id., p. 8). During me at first. And then after that they went and told me to sat his deposition, Plaintiff stated that he was “snatched out [sic] down on the curb, like helped me sit down because I was of the vehicle at gunpoint, ... rustled, handcuff[ed], and handcuffed.” (Id., p. 32). As for October 13th, Plaintiff recalls arrested.” (Dkt. No. 165-28, pp. 55–56). Plaintiff claims that that he “got tooken [sic] out of the car, snatched to the ground, to the precinct.” (See id., pp. 55–56). on the Supreme Court's decision in Heck v. Humphrey, which held that: For both arrests, it is undisputed that APD officers had probable cause to believe that drug crimes had been committed and did not know whether Plaintiff and his [I]n order to recover damages for [an] associates were armed. (See Dkt. No. 167-2, pp. 4–9, 93– allegedly unconstitutional conviction 94). Crediting Plaintiff's allegations, the officers made these or imprisonment, or for other harm arrests by taking Plaintiff down to the ground and placing caused by actions whose unlawfulness him in handcuffs. There is no evidence whatsoever that would render a conviction or sentence Plaintiff suffered any injury resulting from their actions, invalid, a § 1983 plaintiff must much less a significant one. Nor could malicious or sadistic prove that the conviction or sentence intent be inferred based on their actions. On these facts, has been reversed on direct appeal, no jury could find that the force used against Plaintiff was expunged by executive order, declared unreasonable. Therefore, Plaintiff's excessive force against invalid by a state tribunal authorized the APD Defendants must be dismissed. See Bermudez v. to make such determination, or called Waugh, No. 11-CV-947, 2013 WL 654401, at *5, 2013 U.S. into question by a federal court's Dist. LEXIS 23422 (N.D.N.Y. Feb. 21, 2013) (finding that issuance of a writ of habeas corpus. tackling of inmate that caused minor bruising constituted A claim for damages bearing that de minimis force) (collecting cases); Bradley v. Village of relationship to a conviction or sentence Greenwood Lake, 376 F. Supp. 2d 528, 535 (S.D.N.Y. that has not been so invalidated is not 2005) (dismissing excessive force claim against arresting cognizable under § 1983. Thus, when officer who kicked the plaintiff in the stomach causing a state prisoner seeks damages in a temporary nausea and an abdominal scratch); Esmont v. City Section 1983 suit, the district court of New York, 371 F. Supp. 2d 202, 213–15 (E.D.N.Y. 2005) must consider whether a judgment in (dismissing excessive force claim where arresting officer favor of the plaintiff would necessarily caused the plaintiff to bump her head as she was placed in imply the invalidity of his conviction patrol car, resulting in a headache; left her in hot patrol car or sentence; if it would, the complaint for ten minutes, resulting in profuse sweating; and applied must be dismissed unless the plaintiff handcuffs too tightly, resulting in bruising, swelling and can demonstrate that the conviction or unsubstantiated claims of nerve damage). sentence has already been invalidated. 2. October 13, 2014 Arrest Report 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). *11 Plaintiff next claims that Defendant Gavigan “falsified the arrest report/accusatory instrument on October 13, 2014 Here, Plaintiff offers no evidence that his conviction for by alleging the red jacket found in the trunk belonged Criminal Possession of a Controlled Substance in the Third to this plaintiff as opposed to the driver who owned the Degree (see Dkt. No. 167-2, p. 7) has been reversed or vehicle.” (Dkt. No. 1, p. 9). As a result, Plaintiff claims invalidated. Furthermore, the undisputed facts demonstrate that his due process rights were violated because the that Plaintiff's conviction stems entirely from the evidence “perjured arrest report/accusatory instrument” did not meet obtained by APD officers on October 13th, which included the “requirements of CPL 100.40 and CPL 100.15” since 198 glassine envelopes of heroin recovered from Plaintiff's Gavigan “failed to provide any facts to support his conclusory left coat pocket. (See id., p. 6). Thus, the success of Plaintiff's statements[.]” (Id.). claim challenging the arrest report would necessarily imply the invalidity of his conviction. In response, the Albany Defendants argue that Plaintiff's drug conviction related to the October 13th incident precludes him For these reasons, the Court finds that Plaintiff's claim from asserting that Detective Gavigan falsified the related 674 F. App'x 71, 73 (2d Cir. 2017), cert. denied, ––– U.S. physically touched his genitals during both searches. (Id., pp. ––––, 138 S. Ct. 123, 199 L.Ed.2d 75 (2017) (finding that 66–67). the appellant's claims alleging that defendants “conspired to fabricate evidence and testimony against him and introduced The Albany Defendants admit that a visual body cavity search such fabricated evidence and perjury at trial,” if proved, was conducted in a private room at the police station on “would demonstrate the invalidity of his conviction,” and October 13th, but they insist that no strip-searches were ever were therefore barred by Heck); Monroe v. Gould, 372 F. conducted in public.6 (Dkt. No. 167-1, p. 9). Further, the Supp. 3d 197, 202–03 (S.D.N.Y. 2019) (granting summary Albany Defendants argue that Plaintiff's claims about public judgment on a plaintiff's Section 1983 claim challenging the strip-searches are “simply unbelievable and unsupported by validity of the police search of a vehicle where the plaintiff's evidence,” and that “the facts and totality of the circumstances success would have implied the invalidity of the plaintiff's rendered the strip [at the police station] necessary and prior conviction). constitutional.” (Id., pp. 9–10). 6 Regarding the October 13th encounter, Defendant 3. Unlawful Strip and Visual Body Cavity Searches Gavigan states that police performed a “pat down” search on Plaintiff's person. (Dkt. No. 167-2, ¶ 9). Plaintiff also claims that APD officers subjected him to a number of unlawful strip and visual body cavity searches. The Fourth Amendment protects individuals from (Dkt. No. 1, pp. 23–24). Specifically, Plaintiff alleges that unreasonable searches by the government. See U.S. Const. while he was handcuffed on August 14, 2014, “[Defendant amend. IV. A search of a person is presumptively John Doe Badge #889], Detective Scott Gavigan and unreasonable if conducted without a warrant, but warrantless members of his unit arrived on scene and performed there searches may be justified if they fall under an exception to [sic] own search of plaintiff private area [sic].” (Id., p. the warrant requirement. Katz v. United States, 389 U.S. 347, 8). According to Plaintiff, several APD officers, including 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). For example, Defendant Gavigan, took him to a parking lot and searched strip-searches at detention facilities are generally valid under his pockets, waistband, shoes, socks, and then removed his the Fourth Amendment, as discussed above. Under the belt. (Dkt. No. 165-28, pp. 33–35). Plaintiff states that “my circumstances here, Plaintiff's allegations about searches at genitals and all that was lift up, [officers] searched inside my the police station also fall in this category. Notably, the record pants ... up under my arms, my shoes and socks was tooken shows that Plaintiff was arrested with a large amount of [sic] off and then the back was also searched.” (Id., pp. 35– narcotics in glassine envelopes and has a criminal history 36). When asked specifically whether the officers touched his involving narcotics. (See Dkt. No. 167-2, p. 6). Therefore, the genitals, Plaintiff testified: “Yes. Yes. Yes. Outside and at the police also had reasonable suspicion that Plaintiff could be precinct also, when I got down to the station house.” (Id., p. carrying and concealing drugs on his person, which justified 36). the search. Further, Plaintiff admits that the search at the station was performed in a private room, limiting the intrusion *12 Plaintiff also alleges that APD officers conducted a on his privacy. (See Dkt. No. 165-28, p. 64). similar unlawful search when he was arrested on October 13, 2014, wherein Defendant Officers Gavigan and Kuhn Accordingly, Plaintiff's allegations about searches at the performed a public search of Plaintiff's “private areas.” (Dkt. police station do not permit a rational finding that his Fourth No. 1, pp. 8–9, 22–23). And Plaintiff claims that APD Amendment rights were violated. See Elk v. Townson, 839 Officers Gorleski, Kuhn and Meehan performed another F. Supp. 1047, 1052 (S.D.N.Y. 1993) (holding that the unlawful visual body cavity search when Plaintiff arrived at defendant's presence in a vehicle in which drugs were found the Albany police station. (See id., pp. 8–9, 22). Plaintiff gave the sheriff's office “reasonable grounds” to conduct a claims that, on both occasions, the APD officers lacked strip-search at the precinct); Easton v. City of New York, probable cause to “forcibly search” his underwear in public. No. 05-CV-1873, 2009 WL 1767725, at *3–4, 2009 U.S. (Id., pp. 8–9). Consistent with these allegations, Plaintiff Dist. LEXIS 53519 (E.D.N.Y. June 23, 2009) (holding that testified that the police strip-searched him in public and again reasonable suspicion existed for visual body cavity search at the police station. (Dkt. No. 165-28, pp. 57, 66). According where the plaintiff was arrested while in possession of was engaged in the sale and distribution of marijuana); see 4. Deprivation of Property also United States v. Doutre, No. 08-CR-10215, 2009 WL 1211048, at *5, 2009 U.S. Dist. LEXIS 37758 (D. Mass. *13 Next, Plaintiff alleges that Defendant Gavigan May 5, 2009) (holding that police had reasonable suspicion to unlawfully “seized” $5,832.00 from him on an unspecified conduct a strip-search of the defendant at the station where the date. (Dkt. No. 1, p. 12). Plaintiff asserts that he has “yet to defendant was arrested for a drug trafficking crime and police receive a voucher or notification of forfeiture proceedings,” had received information from an informant that defendant and that “[n]othing was ever mentioned in court and I hereby possessed cocaine earlier that evening). request [the] return of my money confiscated. Plaintiff asserts a claim of conversion [ ].” (Id.). However, as to the alleged public strip-searches, the parties' contrasting accounts preclude summary judgment The Albany Defendants deny that that Detective Gavigan because there is an issue of fact as to whether Plaintiff ever seized any money from Plaintiff, and argue that “even was subjected to a public strip-search/visual body cavity assuming this allegation is true, the availability of an Article inspection. A public search as alleged would rise to the 78 procedure is sufficient to satisfy Plaintiff's right to due level of a Fourth Amendment violation. In sum, the Albany process such that Plaintiff fails to state a cognizable [Section Defendants' motion for summary judgment on Plaintiff's 1983] due process claim.” (Dkt. No. 167-1, p. 14). In Fourth Amendment claims is granted as to the strip and/or response, Plaintiff argues that the “court has jurisdiction visual body cavity searches conducted upon intake at the over plaintiff [sic] property claim irrespective of plaintiff not Albany police station, but denied as to Plaintiff's claims that filings [sic] and article 78 and waisting [sic] time.” (Dkt. No. APD officers touched his genitals during public strip-searches 177, p. 3). on August 14th and October 13th of 2014.7 In general, “there is no constitutional violation (and no 7 The Court rejects the Albany Defendants' argument available Section 1983 action) when there is an adequate state postdeprivation procedure to remedy a random, that Officers Kisling, Wilson, Seeber, and James arbitrary deprivation of property or liberty.” Hellenic Am. were not personally involved in any of the alleged Neighborhood Action Comm. v. City of New York, 101 conduct. (See Dkt. No. 167-1, p. 6). Plaintiff F.3d 877, 881–82 (2d Cir. 1996) (citations omitted). As has consistently recalled that numerous officers noted by the Albany Defendants, the Second Circuit has were involved in the alleged unlawful searches held that “an Article 78 proceeding constitutes an adequate on August 14th. Plaintiff specifically alleges that postdeprivation procedure under the Due Process Clause....” after his apprehension on August 14th, “Defendant Id. (citing Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988)). Scott Gavigan and members of his unit arrived Moreover, this Court has held that Article 78 proceedings on the scene and performed [their] own search provide an adequate remedy for those who seek to challenge of [Plaintiff's] private areas.” (Dkt. No. 1, p. 8). any action or inaction by an administrative agency or officers During Plaintiff's deposition, he recalled that he of state or local government. See Hourihan v. Lafferty, 58 F. was escorted by four officers to a parking lot Supp. 2d 10, 14–15 (N.D.N.Y. 1999) (citing N.Y. C.P.L.R. § where the alleged search was conducted. (Dkt. 7801). No. 165-28, p. 35). In opposition to the Albany Defendants' motion, Plaintiff argues that “these Here, Plaintiff has offered no evidence that he ever sought the officers [sic] names didn't fall from the sky there return of the money that was allegedly seized by Detective [sic] names are a result of there [sic] participation in Gavigan, either directly from APD or through an Article the unlawful public cavities [sic] searches....” (Dkt. 78 proceeding. Plaintiff's remedy for this claim was to seek No. 177, p. 1). Viewing the alleged facts in a light relief under Article 78 rather than file suit in federal court. most favorable to the Plaintiff, the Court finds that Accordingly, Plaintiff's claim to recover the value of the a reasonable jury could find that Officers Kisling, seized property is dismissed as a matter of law. Wilson, Seeber, and James were involved in the alleged conduct. 5. Monell Claim opinion); or (4) a failure to train or supervise that amounts to “deliberate indifference” to the rights of those with whom the Lastly, Plaintiff asserts a municipal liability claim against municipality's employees interact. City of Canton v. Harris, the City of Albany under several theories, including: (1) 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). failure to train, supervise, or discipline its employees; (2) creation and use of “a blanket policy that allowed ... officers Here, Plaintiff has not demonstrated any underlying to commit perjury within arrest reports;” (3) “fail[ure] to constitutional violation to support his Monell claim, with the implement a policy that screen [sic] all arrest reports/ possible exception of the alleged public searches. Moreover, accusatory instruments for facial and jurisdictional defects he has not produced any evidence of a municipal policy prior to infringing upon a plaintiff [sic] due process liberty or custom by the City of Albany that caused the alleged rights;” (4) creation of “a blanket policy that allowed all constitutional violations. Plaintiff simply asserts, without officers to arrest a plaintiff in the absence of probable offering supporting evidence, that his experiences with APD cause;” (5) “deliberate indifference to Plaintiff's false arrest officers were part of a larger pattern of systemic misconduct. by enforcing a blanket policy created by the prosecutor and (See Dkt. No. 1, pp. 9–10, 15–17, 20–21). At most, Plaintiff the police chief to allow the Albany police to conduct stop- has only alleged a few isolated instances of misconduct.8 frisks, unlawful cavity searches, and file false reports without Without more, he cannot sustain a Monell claim because it conducting a thorough investigation;” and (6) “the admission is well-settled that “a single incident alleged in a complaint, visual body cavity searches ... conducted pursuant to a long- especially if it involved only actors below the policy-making established plan, policy, or procedure of the ... albany police level, does not suffice to show a municipal policy.” DeCarlo department.” (Dkt. No. 1, pp. 9–10, 15–17, 20–21). v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); see also Southerland v. Garcia, 483 F. App'x 606, 609 (2d Cir. 2012) (holding In support of summary judgment, the Albany Defendants that summary judgment was proper where the “[p]laintiffs argue that “the only proof Plaintiff has offered in an attempt [ ] failed to allege, let alone present any evidence of, an to substantiate these conclusory, boilerplate allegations are official custom or policy such as is necessary to establishing his own isolated allegations of misconduct which form the liability under Monell”); Giaccio v. City of New York, 308 basis of this litigation.” (Dkt. No. 167-1, p. 12). In response, F. App'x 470, 472 (2d Cir. 2009) (affirming the district Plaintiff argues that “[t]he defendants were put on notice for court's dismissal of a Monell claim where isolated evidence years about the same identical issues raised herein and failed of constitutional violations “[fell] far short of establishing a to discipline or institute a policy to detect perjury, filings practice that is so ‘persistent and widespread’ to justify the of perjured false police report, unlawful cavity searches etc. imposition of municipal liability”). Accordingly, Plaintiff's wherefore these issues are not isolated and clearly establishes conclusory allegations of wider misconduct by the Albany a monell claim.” (Dkt. No. 177, p. 3). police are insufficient to show a policy or practice by the City, and Plaintiff's Monell claim must be dismissed.9 *14 Under Monell, a city may only be held liable u con nd se tr i tS ute ic ot nio an l 1 v9 io8 l3 a tiw onh er ce o ma pp ll aa ii nn eti df f od fe m wo an ss tr ca at ue ss e dth a bt yt h ae 8 The Court notes that Plaintiff's opposition municipal “policy or custom.” 436 U.S. at 694–95, 98 S.Ct. papers include several articles from Albany-area 2018; see also Patterson v. County of Oneida, 375 F.3d 206, newspapers identifying at least one other case in 226 (2d Cir. 2004) (citing Jett v. Dallas Indep. Sch. Dist., 491 which APD and Defendant Gavigan were accused U.S. 701, 733–36, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989)). of civil rights violations. (See, e.g., Dkt. No. 177-1, A municipal policy or custom may be established by any pp. 15–16, 41–42). Although there appears to be of the following: (1) a formal policy, officially promulgated some tangential similarities between the claims in by the municipality, id. at 690, 98 S.Ct. 2018; (2) an action those cases and Plaintiff's claims here, there is taken by the official responsible for establishing policy with nothing to suggest anything more than isolated respect to a particular issue, Pembaur, 475 U.S. at 483– incidents of alleged wrongdoing on behalf of 84, 106 S.Ct. 1292; (3) unlawful practices by subordinate specific officers. officials so permanent and widespread as to practically have 9 Plaintiff claims that Albany Police Chief Steven the force of law, City of St. Louis v. Praprotnik, 485 U.S. unlawful stops, frisks without probable cause or [to Motion for Summary Judgment (Dkt. No. 165), is prevent] the filing of perjurous [sic] police reports GRANTED as to Plaintiff's claims for: (1) unlawful visual body cavity searches; (2) denial of necessary medical that lead to unwarranted malicious prosecution or deprivation of plaintiff [sic] due process liberty attention; and (3) municipal liability under Monell; but is rights.” (See Dkt. No. 1, pp. 9–11). However, DENIED as to Plaintiff's excessive force claim arising from the encounter on December 28, 2014; and it is further Plaintiff has failed to offer any evidence supporting these allegations, and therefore, Plaintiff's claims against Chief Krokoff must be dismissed. ORDERED that Defendant Bell's Motion for Summary Judgment (Dkt. No. 168), is GRANTED; and it is further V. CROSS-CLAIMS ORDERED that the Albany Defendants' Motion for *15 The Schenectady County Defendants and Defendant Summary Judgment (Dkt. No. 167), is GRANTED as to Bell also move to dismiss all cross-claims against them. (See Plaintiff's claims for: (1) unlawful searches at the police Dkt. No. 165-43, pp. 32–33; Dkt. No. 168-32, p. 9). Although station on October 13, 2014; (2) excessive force on August 13, “[n]either the Supreme Court nor the Second Circuit has ruled 2014 and October 13, 2014; (3) unlawfully “seized” money; on the question of whether there is a right to contribution and (4) municipal liability under Monell; but is DENIED as to between joint tortfeasors under 42 U.S.C. § 1983, New York Plaintiff's claims for unlawful public strip-searches on August district courts have consistently held that federal law does 13, 2014 and October 14, 2014; and it is further not provide a basis for contribution under Section 1983.” See Thomas v. City of Troy, 293 F. Supp. 3d 282, 301– ORDERED that all cross-claims, to the extent they are 02 (N.D.N.Y. 2018) (“even if this action went to trial and asserted by and against the Defendants, are DISMISSED City Defendants were found liable, they would be liable with prejudice; and it is further for their own actions and not for the actions of County Defendants”); see also De Ratafia v. County of Columbia, ORDERED that, in accordance with this Memorandum- No. 13-CV-0174, 2013 WL 5423871, at *18, 2013 U.S. Decision and Order, Defendants Sinatra, Van Hoesen, Reaulo, Dist. LEXIS 138169 (N.D.N.Y. Sept. 26, 2013) (holding that Bell, Schenectady County Jail, Unknown John Does from “federal law does not provide a basis for contribution for the Schenectady County Jail, Unknown John Does from liability under Section 1983”); Castro v. County of Nassau, the Schenectady County Sherriff, and Albany Police Chief 739 F. Supp. 2d 153, 184 (E.D.N.Y. 2010) (“To the extent the Steven Krokoff are hereby DISMISSED from this action with County seeks indemnification and contribution on plaintiff's prejudice; and it is further § 1983 claims, they cannot do so as a matter of law. No right to contribution exists under § 1983. Nor is there a federal right ORDERED that the Clerk provide a copy of this of indemnification under the statute.”). The Court sees no Memorandum-Decision and Order to the parties in reason to diverge from this well-established precedent here. accordance with the Local Rules of the Northern District of Accordingly, Defendants' cross-claims for contribution and New York. indemnity are dismissed. IT IS SO ORDERED. VI. CONCLUSION For the foregoing reasons, it is All Citations Not Reported in Fed. Supp., 2019 WL 3857995 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 1929552 classes of detainees may not pass constitutional muster: (1) detainees charged with misdemeanors and segregated Only the Westlaw citation is currently available. alone from the general population; and (2) detainees charged United States District Court, S.D. New York. with misdemeanors and segregated with other detainees Andre THOMPSON, Plaintiff, charged with misdemeanors from the general population.”), v. and Turkmen v. Hasty, 789 F.3d 218, 260 (2d Cir. 2015) CITY OF NEW YORK, and (policy requiring strip searches “was not reasonably related to legitimate penological interests” when there was “no John Does 1-3, Defendants. possibility that [inmates] could have obtained contraband”)). 16 Civ. 824 (PKC) | Plaintiff filed an Amended Complaint on April 7, 2016. (Dkt. Signed 05/09/2017 6.) In an Order dated July 13, 2016, this Court set a briefing schedule for the defendant's proposed motion to dismiss, Attorneys and Law Firms requiring any opposition from the plaintiff by October 10, 2016. (Dkt. 14.) On September 8, 2016, defendant City Andre Thompson, New York, NY, pro se. of New York moved to dismiss the Amended Complaint Kate Fay McMahon, New York City Law Department, New pursuant to Rule 12(b)(6), Fed. R. Civ. P. (Dkt. 15.) It is now York, NY, for Defendants. more than seven months since the defendant filed its motion to dismiss, and more than six months since the deadline for the plaintiff's response has passed. (Dkt. 14.) The plaintiff has not submitted opposition papers, and has not written the Court MEMORANDUM AND ORDER to request an extension. As a result, the motion is unopposed. P. Kevin Castel, United States District Judge When considering a Rule 12(b)(6) motion, the Court draws *1 Plaintiff Andre Thompson, who is unrepresented, asserts all reasonable inferences in the plaintiff's favor and accepts pursuant to 42 U.S.C. § 1983 that his constitutional rights as true the facts alleged in the complaint. In re Elevator were violated when the defendants strip searched him Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). To survive upon entering and leaving New York City Department of a motion to dismiss, a complaint must “contain sufficient Correction (“DOC”) facilities and during searches of his factual matter ... to ‘state a claim to relief that is plausible housing area. Plaintiff alleges that because he was a pretrial on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) detainee facing only misdemeanor charges, these actions (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 violated his Fourth Amendment rights as applicable to the (2007)). Plausibility exists “when the plaintiff pleads factual defendants by reason of the Fourteenth Amendment. content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” This action was filed on February 2, 2016. (Dkt. 2.) In Id. Nevertheless, “ ‘a pro se complaint, however inartfully an Order dated March 18, 2016, then Chief Judge Loretta pleaded, must be held to less stringent standards than formal Preska wrote that “[p]laintiff's allegations that he is a pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551 U.S. pretrial detainee facing misdemeanor charges and is strip 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 searched when going to and from court, without more, are (1976)). Courts continue to afford special solicitude for pro se insufficient to state a claim.” (Dkt. 5) (citing Florence v. complaints after Iqbal and Twombly. See Harris v. Mills, 572 Board of Chosen Freeholders of Cty. of Burlington, 566 F.3d 66, 72 (2d Cir. 2009). A plaintiff's failure to respond to U.S. 318 (2012)). However, Chief Judge Preska granted a motion to dismiss does not automatically warrant dismissal plaintiff leave to amend his complaint because there were of the complaint. McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. still some situations in which it may not be reasonable to 2000). strip search pretrial detainees. (See id.) (citing Florence, 566 U.S. at 339 (declining to reach the issue of searches *2 In his Amended Complaint, plaintiff alleges that involving intentional humiliation or abuse), In re Nassau while he was held in three different DOC facilities—the Cty. Strip Search Cases, 639 Fed.Appx. 746, 750-51 (2d Manhattan Detention Center (“MDC”), the George Motchan (“AMKC”)—he was strip searched multiple times in housing June 17, 2015) (“[T]he policy of strip searching inmates areas and in the intake areas when he was on his way after contact visits or upon departing for court appearances to and from court. (Amended Complaint, Dkt. 6.) Plaintiff does not, in itself, violate the Constitution.”); Myers v. City claims these searches occurred between September 9, 2015 of N.Y., No. 11 Civ. 8525 (PAE), 2012 WL 3776707, at and March 29, 2016. (Id.) According to plaintiff, the DOC *9 (S.D.N.Y. Aug. 29, 2012) (suspicionless strip searches officers had no “cause” to strip search him before he was taken of non-felony pretrial detainee at intake and upon leaving to court because he was already required to clear multiple facility for court appearances were constitutional); Israel v. metal detectors and his clothing and property were scanned City of N.Y., No. 11 Civ. 7726 (JMF), 2012 WL 4762082, and hand searched by correction officers. (Id.) Similarly, at *3 (S.D.N.Y. Oct. 5, 2012) (strip searches before and he claims that there was no “cause” for officers to take after court visits and incident to random cell searches were him and 5-7 other inmates to the bathroom to be strip reasonably related to legitimate security interests and did not searched during housing area searches because correction violate Fourth Amendment). The types of searches described officers already use drug sniffing dogs, metal detectors, and by the plaintiff serve the legitimate penological purpose of x-ray machines to search the person and property of the preventing contraband from coming into and out of prisons inmates during these searches. (Id.) Accordingly, plaintiff and jails. See Smith, 2015 WL 3929621, at *2; Israel, 2012 concludes that the only purpose of these strip searches WL 4762082, at *3 (strip search during search of inmate's was to “demoralize, dehumanize, and violate [his Fourth] cell reasonable because it ensures inmate is not concealing Amendment rights.” (Id.) contraband on his person). Plaintiff alleges that he filed grievances at AMKC and Plaintiff's argument that there was no “cause” to strip GMDC regarding these strip searches. (Id.) According to the search him is unavailing because Florence permits correction Amended Complaint, there was “no result” in his AMKC officers to strip search detainees without particularized grievance and in response to his GMDC grievance he was suspicion, see Florence, 566 U.S. at 339; Jean-Laurent v. “deemed a security risk.” (Id.) Plaintiff does not appear to Wilkerson, 438 F. Supp. 2d 318, 323 (S.D.N.Y. 2006), aff'd, have appealed the DOC decision, if any, on either of his 461 Fed.Appx. 18 (2d Cir. 2012) (“Generally, strip searches grievances. (Id.) (showing no response to the question “What have been upheld as a reasonable security measure within a steps, if any, did you take to appeal that decision?”). However, correctional facility even in the absence of probable cause as in his original complaint, he wrote that he was “never part of long as they are related to a legitimate penological goal.”), the appeals process because [he] was never spoken to anyone and recognizes that strip searches are specifically “designed about [his] grievance.” (Dkt. 2.) to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches.” Florence, The Amended Complaint fails to cure the deficiencies 566 U.S. at 334. identified by Chief Judge Preska and is dismissed for substantially the same reasons noted in Chief Judge Preska's *3 For the foregoing reasons, the defendant's motion to Order of March 18, 2016. The general practice of strip dismiss (Dkt. 15) is GRANTED. searching a detainee during housing searches and on the way to and from court appearances is not unconstitutional, SO ORDERED. even if the detainee is accused only of a misdemeanor. See Florence, 566 U.S. at 324, 339 (holding that suspicionless All Citations strip search of detainee arrested for a minor offense prior to his admission into the general jail population did not Not Reported in Fed. Supp., 2017 WL 1929552 violate Fourth Amendment); Smith v. City of N.Y., No. End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.