# Culpepper v. Doe

> District Court, E.D. New York · October 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10310602

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
KENNETH CULPEPPER,

Plaintiff,
MEMORANDUM AND ORDER
-against- 21-CV-6704(JS)(LGD)

JANE DOE FEMALE SECURITY OFFICER #1;
JANE DOE FEMALE E.S.U. OFFICER #2;
JOHN DOE MALE SECURITY OFFICER #3;
JOHN DOE MALE SECURITY OFFICER #4;
JOHN DOE MALE SECURITY OFFICER #5;
JOHN DOE MALE E.S.U. OFFICER #6,

Defendants.
------------------------------------X
APPEARANCES
For Plaintiff: Kenneth Culpepper, pro se
223 Gunther Avenue
Bay Shore, New York 11706

For Defendants: No appearances.

SEYBERT, District Judge:
Before the Court is the renewed application to proceed
in forma pauperis (“IFP”) (see IFP App., ECF No. 13) filed by pro
se plaintiff Kenneth Culpepper (“Plaintiff”) in relation to his
civil rights Complaint filed pursuant to 42 U.S.C. § 1983 (“Section
1983”). (See Compl., ECF No. 1.) For the reasons that follow,
the Court GRANTS Plaintiff’s IFP Application and DISMISSES the
Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),
1915A(b)(1), for failure to allege a plausible claim for relief.
BACKGROUND1
Plaintiff filed his sparse Complaint while incarcerated
at the Willard Drug Treatment Campus and has since been discharged.

(See Compl., ¶ I; Not. of Change of Address, ECF No. 11.)
Plaintiff complains about a strip search conducted on December 22,
2020 at the “Booking area” of the Suffolk County Correctional
Facility (the “Jail”). (Id., ¶ II, and at 4.)
More specifically, Plaintiff alleges, in its entirety:
I was a pre-trial detainee and I was subject
to a humiliating strip frisk search by
multiple female and male officers (Farmer v.
Perrill, 288 F.3d 1254, 1260) (10th Circuit
2002) violating my 4th and 8th amendment
right. (Peckham v. Wis. Dept. of Corr., 141
F.3d 694, 697 (7th Cir. 1998) stating 8th
amendment protects you from unconstitutional
strip searches. (Elliot v. Lynn, 38 F.3d 188,
191 (5th Cir. 1994), cf. Moore v. Corewell, 168
F.3d 234, 236 (5th Cir. 1999) holding that in
absence of emergency or extraordinary
circumstances, body cavity searches by an
officer of opposite sex in view of other
officers violates prisoner’s constitutional
rights (Thompson v. Souza, 111 F.3d 694, 700-
01)(9th Cir. 1997). Cf Byrd v. Moricopa
County Sheriff’s Dept., 629 F.3d 1135 (9th
Cir. 2011) holding that strip searches by
female officers of male prisoners violated the
4 amendment.

(Id., ¶ II, at 3-4.) As a result, Plaintiff claims to have
suffered “mental and emotional distress, anxiety, sleepless nights

1 Excerpts from the Complaint are reproduced here exactly as they
appear in the original. Errors in spelling, punctuation, and
grammar have not been corrected or noted.
and depression.” (Id., ¶ II.A, at 4.) Plaintiff also claims to
“fear for my life of retaliation from these officer was given
sleeping medication and pills for depression.” (Id.) For relief,

Plaintiff seeks to recover a damages award in the sum of
$1 million. (Id., ¶ III, at 5.)
DISCUSSION
I. Plaintiff’s In Forma Pauperis Application is Granted
The Court finds that Plaintiff is qualified by his
financial status to commence this action without prepayment of the
filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s
renewed IFP Application (ECF No. 13) is GRANTED.
II. Consideration of the Complaint Under 28 U.S.C. § 1915
A. Legal Standards

1. 28 U.S.C. § 1915

Section 1915 requires a district court to dismiss an IFP
complaint if the action is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief. See 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(iii); 1915A(b). An action is frivolous as a
matter of law when, among other things, it is based on an
“indisputably meritless legal theory” or when it “lacks an arguable
basis in law . . . or [when] a dispositive defense clearly exists
on the face of the complaint.” Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998) (citation omitted). The
Court is required to dismiss the action as soon as it makes such
a determination. See 28 U.S.C. § 1915A; Avant v. Miranda, No.
21-CV-0974, 2021 WL 1979077, at *2 (E.D.N.Y. May 18, 2021).

Courts are obligated to construe the pleadings of a pro
se plaintiff liberally and to interpret them to raise the
“strongest [claims] that they suggest.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation
marks and citations omitted) (emphasis in original). “But the
‘special solicitude’ in pro se cases[] has its limits –- to state
a claim, pro se pleadings still must comply with Rule 8 of the
Federal Rules of Civil Procedure, which requires a complaint to
make a short and plain statement showing that the pleader is
entitled to relief.” Wynn v. Regus Mgmt. Grp. LLC, No. 21-CV-3503,
2021 WL 2018967, at *1 (S.D.N.Y. May 17, 2021) (quoting Triestman,
470 F.3d at 475).

2. Section 1983
Section 1983 provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . subjects, or causes to be
subjected, any citizen of the United States
. . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff
must “allege that (1) the challenged conduct was attributable at
least in part to a person who was acting under color of state law
and (2) the conduct deprived the plaintiff of a right guaranteed
under the Constitution of the United States.” Rodriguez v.

Shoprite Supermarket, No. 19-CV-6565, 2020 WL 1875291, at *2
(E.D.N.Y. Apr. 15, 2020) (internal quotation marks and citation
omitted). Plaintiff challenges the strip search allegedly
conducted on December 22, 2020 as violative of his Fourth and
Eighth Amendment rights. (Compl., ECF No. 1, ¶ II, at 3.)
B. Application
1. Fourth Amendment Claims
“[B]oth convicted prisoners and pretrial detainees[]
retain some Fourth Amendment rights upon commitment to a
corrections facility.” Bell v. Wolfish, 441 U.S. 520, 558 (1979).
“The Fourth Amendment prohibits only unreasonable searches.” Id.
Indeed, “[t]here is a long-established principle that the routine,

random strip searches of inmates, including body cavity
inspections, do not violate the Fourth Amendment.” Vaughn v.
Strickland, Nos. 12-CV-2696, 12-CV-2995, 12-CV-3333, 12-CV-3335,
2013 WL 3481413, at *4 (S.D.N.Y. July 11, 2013) (internal quotation
omitted). “Nevertheless, ‘the Fourth Amendment still requires all
searches conducted within a prison, including strip searches, to
be reasonable.’” Id. (quoting Jean-Laurent v. Wilkerson, 438 F.
Supp. 2d 318, 323 (S.D.N.Y. 2006), aff’d, 461 F. App’x 18 (2d Cir.
2012)). In determining the reasonableness of a search, courts
must “consider the scope of the particular intrusion, the manner
in which it is conducted, the justification for initiating it, and
the place in which it is conducted.” Bell, 441 U.S. at 559. In

the setting of a jail or prison, “correctional officers must be
permitted to devise reasonable search policies to detect and deter
the possession of contraband in their facilities,” and deference
must be given to such officers’ judgment “unless there is
‘substantial evidence’ demonstrating their response to the
situation is exaggerated.” Florence v. Bd. of Chosen Freeholders
of County of Burlington, 566 U.S. 318, 327 (2012) (citing Bell,
441 U.S. at 546). “[D]espite the fact that visual strip searches
are ‘undoubtedly humiliating and deeply offensive to many,’ prison
officials may reasonably ‘require all arrestees who are committed
to the general population of a jail to undergo visual strip
searches not involving physical contact by corrections officers.’”

Vaughn, 2013 WL 3481413, at *5 (quoting Florence, 566 U.S. at 341
(Alito, J., concurring)).
Here, Plaintiff’s thin allegations do not provide
sufficient information concerning the challenged search to
demonstrate a plausible Fourth Amendment claim. Wholly absent are
any factual allegations surrounding the circumstances of the
search, making it impossible for the Court to assess its
reasonableness. (Compl., in toto.) Indeed, there are no facts
giving rise to an inference that the search was not reasonably
related to legitimate security interests. Moreover, Plaintiff
attributes no conduct or inaction to any particular individual
Defendant. A complaint based upon a violation under Section 1983

that does not allege the personal involvement of a defendant fails
as a matter of law and should be dismissed. See Johnson v. Barney,
360 F. App’x 199, 201 (2d Cir. 2010).
Accordingly, Plaintiff fails to state a claim that the
challenged, isolated, search violated his rights under the Fourth
Amendment; therefore, this claim is DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).
2. Fourteenth Amendment Claims2
In addition to the protections of the Fourth Amendment,
the Due Process Clause of the Fourteenth Amendment protects a
pre-trial detainee from the use of excessive force that amounts to
punishment, and from actions that are not rationally related to a

legitimate nonpunitive government purpose or actions that are
excessive in relation to that purpose. See Kingsley v.
Hendrickson, 576 U.S. 389, 397-400 (2015); Frost v. N.Y.C. Police
Dep’t, 980 F.3d 231, 251-52 (2d Cir. 2020).
Like his Fourth Amendment claim, Plaintiff’s sparse

2 Although Plaintiff alleges that these claims arise under the
Eighth Amendment, given his status as a pre-trial detainee at the
time of the challenged conduct, his claims are properly brought
under the Fourteenth, rather than the Eighth, Amendment. (See
Compl., ECF No. 1, ¶ II., at 4.)
allegations here do not plausibly allege a Fourteenth Amendment
excessive force claim. To be sure, the Complaint is bereft of any
facts suggesting that any force was used in the course of the

alleged strip search. Moreover, Plaintiff does not allege whether
or not the search was visual; nor does he allege any physical
injuries arising from the challenged search. (See Compl., in
toto.) Thus, as is readily apparent, Plaintiff has not plausibly
alleged a deprivation of his constitutional rights under the
Fourteenth Amendment. Accordingly, such claims are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i)-(ii),
1915A(b)(1).
3. Personal Involvement
Even if Plaintiff had alleged a constitutional
deprivation, which he has not, such claim would fail because he
has not adequately alleged the personal involvement of any

Defendant. To state a claim for relief under Section 1983 against
an individual defendant, a plaintiff must allege the personal
involvement of the defendant in the alleged constitutional
deprivation. See Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010).
In Ashcroft v. Iqbal, the Supreme Court held that “[b]ecause
vicarious liability is inapplicable to . . . [Section] 1983 suits,
a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. 662, 676 (2009). A complaint based
upon a violation under Section 1983 that does not allege the
personal involvement of a defendant fails as a matter of law and
should be dismissed. See Johnson v. Barney, 360 F. App’x 199, 201

(2d Cir. 2010).
Moreover, in the instant case, although Plaintiff seeks
to impose liability against five individual corrections officers,
he includes no factual allegations of conduct or inaction
attributable to any Defendant. (See Compl., in toto.)
Accordingly, Plaintiff’s claims against the Defendants are
implausible for this additional reason. Thus, Plaintiff’s Section
1983 claims against the Defendants are DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).
III. Leave to Amend the Complaint

A pro se plaintiff should ordinarily be given the
opportunity “to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated.”
Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal
quotation marks and citation omitted); see also Patel v. NYU
Langone Hosps., No. 20-112, 2021 WL 4852426, at *4 (2d Cir. Oct.
19, 2021) (absent a finding of futility, a district court should
afford a pro se litigant “at least one opportunity to amend his
complaint to cure its shortcomings”). Given the Second Circuit’s
guidance that a pro se complaint should not be dismissed without
leave to amend unless amendment would be futile, Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000), the Court has carefully
considered whether leave to amend is warranted here. In an
abundance of caution, Plaintiff is GRANTED LEAVE TO FILE AN AMENDED

COMPLAINT within thirty (30) days from the date of this Order.
If Plaintiff amends his Complaint and includes a claim
that one or more Defendants violated his rights under the Fourth
Amendment and/or Fourteenth Amendments, Plaintiff must include
facts in his Amended Complaint that put each Defendant allegedly
involved in the search on notice of what that Defendant allegedly
did or failed to do that violated Plaintiff’s rights. If Plaintiff
does not now know the identities of the individuals from whom he
seeks relief, he may continue to name them as John Doe or Jane
Doe. However, he shall include descriptive information concerning
each such individual Defendant including what each individual
Defendant allegedly did or failed to do that allegedly deprived

Plaintiff of a Constitutional right as well as the approximate
date and location of such event.
Any Amended Complaint shall be clearly labeled “Amended
Complaint”, bear the same docket number as this Order, “Case No.
22-CV-6704(JS)(LGD)”, and shall be filed within thirty (30) days
from the date of this Order. PLAINTIFF IS ON NOTICE: If Plaintiff
does not timely file an Amended Complaint, judgment shall enter
without further notice and this case will be marked closed.
Alternatively, Plaintiff is free to pursue any valid claims he may
have against any Defendant in state court.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s IFP

Application (ECF No. 13) is GRANTED;
IT IS FURTHER ORDERED that the Complaint is DISMISSED
WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),
1915A(b)(1);
IT IS FURTHER ORDERED that Plaintiff is GRANTED LEAVE TO
FILE AN AMENDED COMPLAINT in accordance with this Order within
thirty (30) days from the date of this Order; PLAINTIFF IS ON
NOTICE: Failure to timely file an Amended Complaint will lead to
the entry of judgment without further notice and this case being
closed;
IT IS FURTHER ORDERED that the Court certifies, pursuant
to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be

taken in good faith; therefore, IFP status is DENIED for purposes
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-
45 (1962); and
IT IS FURTHER ORDERED that the Clerk of Court is directed
to mail a copy of this Order to Plaintiff at his address of record.

SO ORDERED.

/s/ JOANNA SEYBERT
JOANNA SEYBERT, U.S.D.J.

Dated: October 4, 2023
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310602. Public record. Not legal advice.