Spencer v. Sullivan County Sheriff Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GLYNN SPENCER,

Plaintiff,

v. No. 18-CV-365 (KMK)

SULLIVAN COUNTY, et al., OPINION & ORDER

Defendants.

Appearances:

Glynn Spencer

Rome, NY

Pro Se Plaintiff

Cheryl A. McCausland, Esq.

Dante David De Leo, Esq.

Sullivan County Attorney’s Office

Monticello, NY

Counsel for Defendant Sullivan County and Robert B. Cintron

Michael Davidoff, Esq.

Drew, Davidoff & Edwards Law Offices, LLP

Monticello, NY

Counsel for Defendant Sgt. Starner

KENNETH M. KARAS, United States District Judge:

Glynn Spencer (“Plaintiff”) brings this pro se Action, pursuant to 42 U.S.C. § 1983,

against Sullivan County (“Sullivan”) and Robert B. Cintron (“Cintron”) (together, “County

Defendants”), and Sgt. Starner (“Starner”) (collectively, “Defendants”), alleging that Defendants

violated his rights under the Fourth and Eighth Amendments in connection with an October 11,

2017 arrest and related searches. (See generally Am. Compl. (Dkt. No. 23).) Before the Court

are Defendants’ Motions To Dismiss the Amended Complaint. (See County Defs.’ Not. of Mot.

(Dkt. No. 45); Starner Not. of Mot. (Dkt. No. 41).) For the reasons that follow, the Motions are

granted in part and denied in part.

I. Background

A. Factual History

The following allegations are drawn from the Amended Complaint, and are taken as true

for the purpose of resolving the instant Motions.

On October 11, 2017, Plaintiff was a passenger in a car that was stopped by Starner and

Cintron “for a suppose[d] tail light out.” (Am. Compl. 1.) Starner told Plaintiff to get out of the

car, take everything out of his pockets, and submit to a search of his person. (Id.) During the

search, Starner allegedly grabbed Plaintiff’s genitals. (Id.) Plaintiff “jump[ed] from the force

and pain,” and told Starner, “that was my dick.” (Id.) Plaintiff “was told to turn around and shut

up,” and then Starner allegedly “grabb[ed] [Plaintiff’s genitals] twice again[,] causing [him] to

jump from the force and pain.” (Id.) Starner then allegedly grabbed Plaintiff’s pants, and

“pulled them up [his] . . . ass . . . hard, pulling [him] up on [his] toes.” (Id.) Plaintiff yelled to

Starner, “yoo that’s going up my ass.” (Id.) Starner told Plaintiff to shut up and turn around,

“pulling [his] pants up [his] ass twice more for no apparent reason.” (Id.)

Afterward, Plaintiff was “taken to the barracks,” where he was asked a few questions and

then placed in a small room and handcuffed to a bench. (Id. at 3.) Plaintiff fell asleep “for 2–3

hours,” and when he awoke he was told to “come upstairs to make a statement.” (Id.) Plaintiff

was “read[] [his] rights” and confirmed that he understood them. (Id.) Plaintiff was asked where

he lived, and he responded that he did not “want to talk on camera.” (Id.) F.B.I. Officer Ramos

(“Ramos”) told Plaintiff that he “had to, that [there] was [no] other way,” and Plaintiff responded

that he had “nothing to say.” (Id.) Plaintiff was taken back downstairs and returned to the same

small room and handcuffed to the bench, where he remained “for maybe a[n] hour or more.”

(Id.)

Starner woke Plaintiff up and said that he had to submit to another pat down, and that

afterward he would be strip searched. (Id.) Starner directed Plaintiff “to get on the wall to be

frisk[ed] again.” Plaintiff asked, “isn’t this against the law?” (Id.) Starner said that it was not,

and ordered him to “get on the wall.” (Id.) Cintron and another unnamed deputy were present

with Starner when this took place. (Id. at 4.) While Plaintiff was against the wall, Starner

“grab[bed] [Plaintiff’s] pants and pulled them up [his] ass.” (Id.) Plaintiff “turn[ed] around and

yell[ed], ‘yoo that’s going up my ass.’” (Id.) Plaintiff alleges that Starner told him to “turn

around and shut up,” and “pull[ed] [his] pants up [his] ass twice more[,] looking [him] in [his]

eyes [and] smiling at [him].” (Id.) Plaintiff alleges that Starner’s actions “inflam[ed] [his]

hemorroidal tissue,” and that he continues to suffer pain but is “ashame[d] and afraid to have

someone look at [his] issue back there because of the trauma of what was done to [him].” (Id.)

Plaintiff alleges that throughout the incident, Cintron and the unnamed deputy “[were] standing

there and said nothing.” (Id.) After the pat down, Starner and Cintron told Plaintiff to remove

his clothes. (Id.) To facilitate the search, he was told to open his mouth, stick out his tongue, lift

his genitals, and “turn around and spread [his] cheeks” so that officers could search his anal

cavity with a flashlight. (Id.) Plaintiff ultimately pled guilty to one count of criminal possession

of a controlled substance in the third degree, PL § 220.16(1), a class B felony. (See Starner Decl.

Ex. 3 (“Certificate of Conviction”); Plea Tr. 8–9.)1

1 The Court may take judicial notice Plaintiff’s guilty plea and certificate of conviction.

See John v. Lewis, No. 15-CV-5346, 2017 WL 1208428, at *5 n.11 (E.D.N.Y. Mar. 31, 2017)

(taking judicial notice of statements made during the plaintiff’s plea hearing “not for their truth”

but for “their legal effect” in establishing probable cause for the plaintiff’s arrest); Parker v.

Cummings, No. 13-CV-3151, 2014 WL 2946144, at *3 (S.D.N.Y. June 30, 2014) (“The Court

Plaintiff asserts that he “suffer[s] daily from the abuse caused by” Defendants, “from the

excessive use of force, sexual assault, cruel and unusual punishment, pain and suffering, assault

and battery, [and] unreasonable search and seizures.” (Id. at 7.) Plaintiff seeks a total of

$1,500,000 in compensatory damages from Defendants, as well as “250,000 each for punitive”

and “250,000 each nominal.” (Id. at 9.)

B. Procedural History

The initial Complaint was filed in this Court on January 12, 2018. (Compl. (Dkt. No. 2).)

Plaintiff filed the operative Amended Complaint on August 2, 2018. (Am. Compl.) Defendants

filed their respective Motions To Dismiss on October 23, 2018. (County Defs.’ Not. of Mot.;

County Defs.’ Mem. of Law in Supp. of Mot. (“County Defs.’ Mem.”) (Dkt. No. 47); County

Defs.’ Decl. in Supp. of Mot. (“County Defs.’ Decl.”) (Dkt. No. 46); Starner Not. of Mot.;

Starner Mem. of Law in Supp. of Mot. (“Starner Mem.”) (Dkt. No. 43); Starner Decl. in Supp. of

Mot. (“Starner Decl.”) (Dkt. No. 42).) Plaintiff did not file a response to either Motion, and on

December 17 and 19, 2018, the Court deemed Defendants’ respective Motions fully submitted.

(Dkt. Nos. 54, 55.)

II. Discussion

A. Standard of Review

The Supreme Court has held that, while a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

may take judicial notice of [the plaintiff’s plea] transcript and the sentencing disposition because

they are matters of public record.”).

(citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” Id. (quotation marks and alteration omitted).

Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated

adequately, it may be supported by showing any set of facts consistent with the allegations in the

complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that

is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the

line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.

Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering a motion to dismiss, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency

of a complaint we accept as true all factual allegations . . . .” (quotation marks omitted)).

Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all

reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d

302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.

2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally

and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723

F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal

treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

procedural rules and to comply with them.” (italics and quotation marks omitted)). “In

adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated

on the face of the complaint, in documents appended to the complaint or incorporated in the

complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr.

Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citation and quotation marks omitted).

B. Analysis

Liberally construed, theAmended Complaint asserts claims for unlawful search and

seizure and use of excessive force in violation of the Fourth Amendment, as well as for cruel and

unusual punishment in violation of the Eighth Amendment. (See generally Am. Compl.)

County Defendants seek dismissal of the Amended Complaint for (1) failure to state a

claim of municipal liability against Sullivan County; and (2) failure to state a Fourth or Eighth

Amendment claim against Cintron. County Defendants also argue that Cintron is entitled to

qualified immunity for his actions, and that any state law claims are barred for failure to plead

that Plaintiff filed the required notice of claim. (See generally County Defs.’ Mem.) Starner

similarly argues that Plaintiff fails to state a Fourth or Eighth Amendment claim, that he is

entitled to qualified immunity, and that any state law claims are barred for failure to plead that

Plaintiff filed the required notice of claim. (See generally Starner Mem.) The Court will address

each argument separately to the extent necessary.

1. Claims Against Sullivan County

“Congress did not intend municipalities to be held liable [under § 1983] unless action

pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); see also Pembaur v. City of Cincinnati, 475 U.S.

469, 478 (1986) (holding that a municipality may not be liable under § 1983 “by application of

the doctrine of respondeat superior” (citation and italics omitted)). That is, “municipalities may

only be held liable when the municipality itself deprives an individual of a constitutional right.”

Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008). Therefore, “to prevail

on a claim against a municipality under [§] 1983 based on acts of a public official, a plaintiff is

required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or

statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality

caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)

(citing Monell, 436 U.S. at 690–691). The fifth element reflects the notion that a Monell

defendant “may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of

County Comm’rs v. Brown, 520 U.S. 397, 403 (1997) (citation omitted). A plaintiff may satisfy

the fifth element by alleging one of the following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken by

government officials responsible for establishing the municipal policies that caused

the particular deprivation in question; (3) a practice so consistent and widespread

that, although not expressly authorized, constitutes a custom or usage of which a

supervising policy-maker must have been aware; or (4) a failure by policymakers

to provide adequate training or supervision to subordinates to such an extent that it

amounts to deliberate indifference to the rights of those who come into contact with

the municipal employees.

Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).

Here, Plaintiff fails to allege the fifth element required to state a Monell claim. Plaintiff

does not allege the existence of any policy, any actions taken or decisions made by any Sullivan

County policymaking officials, any systemic failures to train or supervise, or any practices so

widespread that they practically have the force of law. Plaintiff simply does not allege any

factual indicia from which this Court could infer the existence of a policy or custom.

Accordingly, because Plaintiff does not allege the fifth element required to state a Monell claim

against Sullivan County, all claims against Sullivan County are dismissed. See McKenzie v. City

of Mount Vernon, No. 18-CV-603, 2018 WL 6831157, at *7 (S.D.N.Y. Dec. 28, 2018)

(dismissing Monell claim where the plaintiff did “not allege any facts suggesting a policy or

custom that led to [the] alleged” constitutional deprivation); cf. Brown, 520 U.S. at 404 (“[I]t is

not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the

municipality.”); Triano v. Town of Harrison, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012)

(“Normally, a custom or policy cannot be shown by pointing to a single instance of

unconstitutional conduct by a mere employee of the municipality.” (citation, alteration, and

quotation marks omitted)); Gordon v. City of New York, No. 10-CV-5148, 2012 WL 1068023, at

*4 (E.D.N.Y. Mar. 29, 2012) (dismissing Monell claim where the plaintiff’s “allegation [was]

unsupported by anything other than the facts of what occurred in his particular case” (citing

Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991))); Brogdon v. City of New

Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally

insufficient to establish the affirmative link between the municipal policy or custom and the

alleged unconstitutional violation.” (citing City of Okla. City v. Tuttle, 471 U.S. 808, 824

(1985))).

2. Claims Against Starner

Construed liberally, Plaintiff asserts claims for unlawful search and seizure and excessive

use of force in violation of the Fourth Amendment.2

a. Unlawful Search

i. Pat Down Incident to Arrest

It is not clear from the Amended Complaint whether Plaintiff intended to assert a Fourth

Amendment claim based on the absence of probable cause to conduct a search of his person, but

the Court will construe Plaintiff’s allegations as attempting to make such a claim. Starner argues

that the pat down was lawful because it was performed incident to Plaintiff’s lawful arrest. (See

Starner Mem. 13–14.) “[O]nce a police officer has probable cause to effect an arrest, he has the

authority to conduct a search incident to it regardless of the nature of the offense.” Joyner v. City

of Mount Vernon, No. 09-CV-8982, 2011 WL 3296083, at *4 (S.D.N.Y. July 25, 2011) (citing

U.S. v. Robinson, 414 U.S. 218, 224 (1973)); see also U.S. v. Scopo, 19 F.3d 777, 782 (2d Cir.

1994) (same). Starner argues that the Court may take judicial notice of statements made during

Plaintiff’s plea hearing, including Plaintiff’s admissions that he was found to be in possession of

2 Plaintiff also asserts a claim for cruel and unusual punishment in violation of the Eighth

Amendment. However, because it is clear from Plaintiff’s allegations that he was not in custody

pursuant to a conviction at the time of these incidents, he may not assert claims under the Eighth

Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (“[T]he State

does not acquire the power to punish with which the Eighth Amendment is concerned until after

it has secured a formal adjudication of guilt in accordance with due process of law.”); Lindsey v.

Butler, 43 F. Supp. 3d 317, 325 (S.D.N.Y. 2014) (“[The] [p]laintiff claims that the officers

subjected him to excessive force in violation of the Eighth Amendment. The Court must dismiss

this claim because the Eighth Amendment attaches only after conviction.”), on reconsideration

in part, No. 11-CV-9102, 2014 WL 5757448 (S.D.N.Y. Nov. 5, 2014). Plaintiff’s Eighth

Amendment claim is therefore dismissed.

a controlled substance when he was arrested. (Starner Mem. 10, 13–14; see also Plea Tr. 5–6

(noting that Plaintiff had illegal drugs worth $2,000 on his person at the time of his arrest), 48–

49 (admitting to possession of 44 grams of heroin at the time of arrest)). Although it is

appropriate to take judicial notice of statements made at a plea hearing for their legal effect, i.e.,

as evidence that Plaintiff pled guilty, the Court may not take accept the statements for their truth,

i.e., that Plaintiff was found to be in possession of controlled substances at the time of his arrest.

See John, 2017 WL 1208428, at *5 n.11 (taking judicial notice of “statements made during [the]

[p]laintiff’s . . . plea hearing” for their legal effect, but “not for their truth, i.e., that [the]

[p]laintiff, in fact, committed the crime of disorderly conduct, that he was making his plea

‘voluntarily,’ or that there was or was not probable cause for [the] [p]laintiff’s two arrests”).

However, even if the Court could consider the statements for their truth, it remains unclear

whether Plaintiff was in fact under arrest and whether illegal substances had been discovered at

the time of Plaintiff’s initial pat down, and thus it is not possible to discern whether sufficient

probable cause existed at the time of the search. See Arizona v. Johnson, 555 U.S. 323, 327

(2009) (“To justify a pat[ ]down of the driver or a passenger during a traffic stop, . . . the police

must harbor reasonable suspicion that the person subjected to the frisk is armed and

dangerous.”); Sibron v. New York, 392 U.S. 40, 63 (1968) (“It is axiomatic that an incident

search may not precede an arrest and serve as part of its justification.”); Carlos Quiles & Carlos

Rodriguez v. City of New York, No. 15-CV-1055, 2016 WL 6084078, at *9 (S.D.N.Y. Oct. 12,

2016) (noting that a “pat[ ]down search cannot be justified as a search incident to [a] lawful

arrest” if “at the time that the officers pat [the plaintiff] down, he had not yet” engaged in any

conduct that would support probable cause for his arrest); Evans v. Solomon, 681 F. Supp. 2d

233, 248 (E.D.N.Y. 2010) (“[P]robable cause to arrest obtained after a search cannot validate an

otherwise unlawful search.”); Dasher v. Hughes, No. 95-CV-3913, 2000 WL 726865, at *3–4

(S.D.N.Y. June 6, 2000) (upholding jury verdict in favor of the plaintiff on unlawful frisk claim

because the jury could have rationally determined that, despite having probable cause to stop the

car and to pat down other passengers based on their furtive movements, the defendant lacked

reasonable suspicion to pat down the plaintiff who was “calm[ly] . . . standing beside him some

distance away from the car”).3

Furthermore, Plaintiff’s description of the pat down, which involved a search of his

pockets and an allegedly rough frisk, suggests that the pat down may have “exceeded the scope

of a simple pat down.” Tyus v. Newton, No. 13-CV-1486, 2016 WL 6090719, at *10 (D. Conn.

Oct. 18, 2016) (denying summary judgment on unlawful search claim where the plaintiff

testified that the defendant “searched inside the pockets of [the plaintiff’s] pants to seize an

assisted-folding knife, and also repeatedly grabbed [the plaintiff’s] crotch and buttocks” because

the search may have “exceeded the bounds of a pat down search for narcotics”). Therefore, at

this early stage, the Court declines to dismiss Plaintiff’s unlawful search claim based on his

initial pat down.4

3 Starner did not argue that Plaintiff was or could have been arrested for the broken tail

light that served as the basis for the stop. Furthermore, it is not beyond dispute that the car in

which Plaintiff was a passenger in fact had a broken tail light, as Plaintiff alleges that the car was

stopped “for a suppose[d] tail light out,” suggesting that Plaintiff disputes the basis of the stop.

(Am. Compl. 1.) See Tyus v. Newton, No. 13-CV-1486, 2016 WL 6090719, at *9 (D. Conn. Oct.

18, 2016) (denying summary judgment on unlawful search claim where there was a dispute of

fact as to whether the plaintiff failed to illuminate his rear license plate, the stated basis for the

stop). Thus, taking all allegations in the Amended Complaint as true and drawing all inferences

in Plaintiff’s favor, the purported broken tail light cannot serve as probable cause for the stop.

4 Although not raised, the Court notes that Plaintiff’s claim may be barred by the Heck

Doctrine. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.” Heck v. Humphrey,

ii. Strip Search

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).

“Regardless of who performs the search, a visual body cavity search, such as the one conducted

here, is invasive: ‘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 v. Miller, 818 F.3d 49, 58 (2d Cir. 2016) (quoting Florence v. Bd.

of Chosen Freeholders, 566 U.S. 318, 344–45 (2012)). Thus, the Fourth Amendment requires

“all searches conducted [in custody], including strip searches, to be reasonable.” Holland v. City

of New York, 197 F. Supp. 3d 529, 542 (S.D.N.Y. 2016) (citing Hodges v. Stanley, 712 F.2d 34,

35 (2d Cir. 1983) (per curiam)). “[A] misdemeanor arrestee may not be strip searched in the

absence of ‘an individualized reasonable suspicion that a misdemeanor arrestee is concealing

weapons or other contraband based on the crime charged, the particular characteristics of the

arrestee, and/or the circumstances of the arrest.’” Sims v. Farrelly, No. 10-CV-4765, 2013 WL

512 U.S. 477, 487 (1994). In the context of Fourth Amendment claims, if “[a] finding that the

searches pursuant to which the [contraband that formed the basis of a conviction] were procured

were unlawful would necessarily imply the invalidity of the underlying conviction,” then the

claim is barred. Bogle v. Melamed, No. 09-CV-1017, 2012 WL 1117411, at *3 (E.D.N.Y. Mar.

30, 2012); see also Black v. Blackmun, No. 11-CV-2372, 2011 WL 6019394, at *2 (E.D.N.Y.

Dec. 1, 2011) (“Because [the plaintiff’s] conviction hinged directly on the weapons procured

during this allegedly unlawful search, an award of damages would necessarily imply the

invalidity of his state court conviction. [The plaintiff] is therefore precluded from recovering

damages on these claims under § 1983.”); Kaminski v. Hayes, No. 06-CV-1524, 2009 WL

3193621, at *6 (D. Conn. Sept. 30, 2009) (dismissing Fourth Amendment claim as barred by

Heck because “[i]t is apparent that the entire evidentiary basis for the charged offenses . . .

derives from a single search that is now being challenged as part of a [§] 1983 action,” and the

plaintiff pled guilty to the underlying charges resulting from that search). In the absence of a

developed factual record or any legal argument on this point, however, the Court will not dismiss

Plaintiff’s unlawful search claim on this basis at the motion-to-dismiss stage.

3972460, at *7 (S.D.N.Y. Aug. 2, 2013) (some quotation marks omitted) (quoting Hartline v.

Gallo, 546 F.3d 95, 100 (2d Cir. 2008)). “The same rule applies to felony narcotics arrestees.”

Id. (collecting cases).

Strip searches of detainees in custody do not violate the Constitution. See Florence, 566

U.S. at 324, 339 (holding that suspicionless strip search of detainee arrested for a minor offense

prior to his admission into the general jail population did not violate Fourth Amendment); Myers

v. City of New York, No. 11-CV-8525, 2012 WL 3776707, at *9 (S.D.N.Y. Aug. 29, 2012)

(holding that suspicionless strip searches of non-felony pretrial detainees at intake and upon

leaving facility for court appearances were constitutional). Nevertheless, there must be

“individualized reasonable suspicion” of an arrestee in order to justify a strip search. Sims, 2013

WL 3972460, at *7 (denying summary judgment on unlawful strip search claim where search

was performed based on “the narcotics nature of the incident, the easy concealability [sic] of

crack cocaine, and the criminal history of many of the subjects,” because, inter alia, “no

particular acts [were] attributed to Plaintiff that would raise reasonable suspicion that he was

concealing drugs”); see also Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 273

(S.D.N.Y. 2002) (“[N]o court has ever held that being arrested for a narcotics-related crime

automatically gives rise to reasonable suspicion that drugs are being carried in an arrestee’s body

cavities, so as to justify a strip search or visual body cavity inspection.”). Because the Court

cannot determine from the facts alleged in the Amended Complaint whether Plaintiff was strip

searched pursuant to individualized reasonable suspicion, it would be premature at this stage to

find that Plaintiff has failed to state a claim.

Nevertheless, Starner is entitled to qualified immunity with respect to Plaintiff’s claims

based on his strip search. (Starner Mem. 16–20.) The Second Circuit has made clear that it

“ha[s] never held that the Fourth Amendment is violated by a suspicionless search (strip search

or visual body cavity search) of a person arrested for felony drug possession.” Gonzalez v. City

of Schenectady, 728 F.3d 149, 161 (2d Cir. 2013) (affirming grant of qualified immunity because

“a reasonable officer . . . would not have understood that conducting an otherwise suspicionless

visual body cavity search of a person arrested for a felony drug offense was unlawful”). To date,

the Second Circuit still has not clearly held that such searches violate the Constitution, and the

Court cannot find a Supreme Court case so holding. Because it is not clearly established that

suspicionless visual body cavity searches of detainees arrested for felony drug offenses violate

the Fourth Amendment, Starner is entitled to qualified immunity on this claim. See Gonzalez,

728 F.3d at 162 (affirming dismissal of Fourth Amendment claim for suspicionless strip search

of felony arrestee based on qualified immunity). Plaintiff’s claim based on his strip search is

therefore dismissed.

b. Excessive Force

Plaintiff alleges that Starner used excessive force in performing pat downs pursuant to

Plaintiff’s arrest. Specifically, Plaintiff alleges that Starner pulled his pants “up his ass” in a way

that exacerbated his pre-existing hemorrhoids, and grabbed his genitals in a sexual manner.

“Claims that law enforcement officers have used excessive force . . . in the course of an arrest,

investigatory stop, or other seizure of a free citizen [are] analyzed under the Fourth Amendment

and its reasonableness standard.” Usavage v. Port Auth. of N.Y. & N.J., 932 F.Supp.2d 575, 591

(S.D.N.Y. 2013) (citation and quotation marks omitted). Likewise, “[s]exual misconduct by a

police officer during a ‘seizure’ is analyzed under the Fourth Amendment.” Wright v. City of

Waterbury, No. 07-CV-306, 2011 WL 1106217, at *6 (D. Conn. Mar. 23, 2011) (citing, inter

alia, Poe v. Leonard, 282 F.3d 123, 136–37 (2d Cir. 2002)). “[T]he reasonableness question is

whether the officers’ actions were ‘objectively reasonable’ in light of the facts and circumstances

. . . without regard to their underlying intent or motivation.” Mickle v. Morin, 297 F.3d 114, 120

(2d Cir. 2002). When evaluating whether the use of force was reasonable, courts are to consider

the “facts and circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490

U.S. 386, 396 (1989); see also Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.2010) (same).

Courts have allowed excessive force claims to stand where the plaintiff suffered only minor

injuries. See, e.g., Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (“[W]e have

permitted a plaintiff’s claim to survive summary judgment on allegations that, during the course

of an arrest, a police officer twisted her arm, ‘yanked’ her, and threw her up against a car,

causing only bruising.”); Sforza v. City of New York, No. 07-CV-6122, 2009 WL 857496, at *15

(S.D.N.Y. Mar. 31, 2009) (“A plaintiff need not demonstrate serious injury to prevail in an

excessive force claim; bruising and other nonpermanent injuries are sufficient.”).

At this early stage, the Court cannot say as a matter of law that the amount of force used

was objectively reasonable. Starner argues that Plaintiff’s injuries from the pat downs are “de

minimis,” which are insufficient to state an excessive force claim. (Starner Mem. 13.) However,

“[i]t is the force used, not the injuries caused, which must be determined to be de minimis as a

matter of law.” Campbell v. City of New York, No. 06-CV-5743, 2010 WL 2720589, at *8

(S.D.N.Y. June 30, 2010); Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375, 390

(S.D.N.Y. 2009) (“Even in the arrest context, . . . the Second Circuit has indicated that a very

minimal injury is sufficient to trigger potential [Fourth Amendment] liability.” (citing Robison v.

Via, 821 F.2d 913 (2d Cir. 1987))). Regarding Starner’s use of force, the use of even de minimis

force that serves no purpose is not objectively reasonable. See Lindsey, 43 F. Supp. 3d at 327

(noting that where there is no evidence “reflecting a reason for the use of any force during the

interrogation, . . . the use of more than de minimis force, if even that, . . . would not be

objectively reasonable”); Yang Feng Zhao, 656 F. Supp. 2d at 391 (S.D.N.Y. 2009) (holding that

during interrogation at police precinct, where there is “no reason for any use of force,” “any

force is potentially illegitimate”); Love v. Town of Granby, No. 03-CV-1960, 2004 WL 1683159,

at *5 (D. Conn. July 12, 2004) (“Where there is no need for force, any force used is

constitutionally unreasonable.” (alteration omitted)).

The Amended Complaint does not include any facts suggesting that Plaintiff resisted his

search or arrest, or identify any reason that his pat down was performed in a way that was

allegedly painful. Without the benefit of a developed record, the Court cannot say as a matter of

law that the force with which Starner searched Plaintiff was objectively reasonable, even if

Starner had authority to search Plaintiff. See Scalpi v. Town of E. Fishkill, No. 14-CV-2126,

2016 WL 858944, at *11 (S.D.N.Y. Feb. 29, 2016) (holding that although “some bodily

intrusions may be provably accidental or de minimis and thus constitutionally reasonable,” the

plaintiff sufficiently stated a Fourth Amendment excessive force claim where she described a

“rough and excessive” search and alleged that she “felt pain” as a result of the force used

(citations, alteration, and quotation marks omitted)); see also Collier v. Locicero, 820 F. Supp.

673, 679 (D. Conn. 1993) (explaining that “evidence indicating that a frisk was ‘excessively

rough or intrusive’ is sufficient to raise questions of fact” regarding a Fourth Amendment claim).

Plaintiff “does more than simply complain of incidental contact with sensitive areas,” Scalpi,

2016 WL 858944, at *11; cf. Wright, 2011 WL 1106217, at *6 (dismissing a Fourth Amendment

claim where the police officer “cupped” the male plaintiff’s groin area on two occasions during a

pat down), he alleges that he alerted Starner that his pat down involved an excessive amount of

force, but that Starner nonetheless proceeded with precisely the same force, causing Plaintiff

severe pain. “Accordingly, the Court cannot say—at least at the motion to dismiss stage—that

the search conducted by [Starner], as described by Plaintiff, was reasonable.” Scalpi, 2016 WL

858944, at *11. Therefore, Starner is not entitled to dismissal on this claim.5

3. Claims Against Cintron

Construed liberally, the Amended Complaint alleges a failure to intervene claim against

Cintron for failing to prevent Starner’s use of excessive force.6

“A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen

whose constitutional rights are being violated in his presence by other officers.” O’Neill v.

Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). “An officer who does not personally inflict the injury

at the core of an excessive use of force claim may still be liable under § 1983 if the officer both

fails to intervene to prevent the harm, in spite of a ‘realistic opportunity’ to do so, and ‘observes

or has reason to know . . . that excessive force is being used.’” Scalpi, 2016 WL 858944, at *13

(quoting O’Neill, 839 F.2d at 11, and Anderson v. Bremen, 17 F.3d 552, 557 (2d Cir. 1994)).

“Whether an officer had sufficient time to intercede or was capable of preventing the harm being

caused by another officer is an issue of fact for the jury unless, considering all the evidence, a

5 To the extent Starner raised a qualified immunity defense with respect to this claim,

dismissal on grounds of qualified immunity is inappropriate at this stage because “in the context

of excessive force, the Fourth Amendment reasonableness inquiry tends to converge with the

qualified immunity reasonableness inquiry.” Wang, 2012 WL 119591, at *11 (citing Cowan v.

Breen, 352 F.3d 756, 764 & n.7 (2d Cir. 2003)). “Having determined that [P]laintiff’s claim for

excessive force” survives Starner’s Motion To Dismiss, “the court likewise concludes that [he is]

not entitled to [dismissal] on the basis of qualified immunity.” Id.

6 Plaintiff’s Fourth Amendment claim against Cintron for the unlawful strip search is

dismissed, as Cintron is entitled to qualified immunity for the same reasons as Starner. See

supra Section II.B.2.a.ii.

reasonable jury could not possibly conclude otherwise.” Anderson, 17 F.3d at 557. “Courts

have found that, where officers assault an individual so quickly that a fellow officer does not

have a realistic opportunity to intercede, the witness officer is not liable for the excessive force.”

Phillips v. Roy, No. 08-CV-878, 2011 WL 3847265, at *6 (N.D.N.Y. Aug. 29, 2011); see also

Lehal v. United States, No. 13-CV-3923, 2015 WL 9592706, at *8 (S.D.N.Y. Dec. 29, 2015)

(“Courts may look to the length of the incident, inter alia, to determine whether an officer had a

realistic opportunity to intervene.” (italics omitted)).

County Defendants argue that “it is not plausible that Cintron would have noticed any

sexual intent on the part of Starner where Plaintiff did not raise the issue at the time,” and that

the Amended Complaint “does not allege any facts as to why or how a reasonable officer would

intervene in” the scenarios alleged in the Amended Complaint. (County Defs.’ Mem. 12.)

However, based on the limited allegations in the Amended Complaint, the Court cannot conclude

as a matter of law that Cintron had no reason or opportunity to intervene. See Anderson v.

Waterbury Police Dep’t, No. 14-CV-829, 2017 WL 1157843, at *14 (D. Conn. Mar. 28, 2017)

(“Whether the officer had a realistic opportunity to intervene is normally a question for the jury,

unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.”

(quoting Terebesi v. Torreso, 764 F.3d 217, 244 (2d Cir. 2014))). Plaintiff alleges that, in

Cintron’s presence, Starner pulled Plaintiff’s pants up such that they caused great pain, including

exacerbating his hemorrhoids. Although Plaintiff did not inform the officers he was suffering

from hemorrhoids, he did cry out during each alleged incident that the pants were “going up [his]

ass,” after which Starner pulled Plaintiff’s pants up twice more. (See Am. Compl. 1, 3.)

Construing all inferences in Plaintiff’s favor, the Court cannot determine at the motion-to-

dismiss stage that Cintron either was not aware that the force used was excessive or did not have

an opportunity to intercede. See Barnes v. Fischer, No. 13-CV-164, 2018 WL 5660414, at *8

(N.D.N.Y. Mar. 16, 2018) (holding the plaintiff “sufficiently allege[d] that [the] [o]fficers were

present when the alleged unconstitutional assaults were occurring, and he therefore establishe[d]

questions of fact concerning whether those [o]fficers, by merely standing by, violated their

constitutional duties”), adopted by 2018 WL 4660380 (N.D.N.Y. Sept. 28, 2018); see also

Merrill v. Schell, 279 F. Supp. 3d 438, 444 (W.D.N.Y. 2017) (“Because [the plaintiff]’s

[excessive force] claim against [one defendant] survives a motion to dismiss, his claim that

[another officer] failed to intervene does as well.”). Therefore, County Defendants’ Motion To

Dismiss Plaintiff’s failure to intervene claim against Cintron is denied.

4. State Law Claims

To the extent Plaintiff intended to assert state law claims, those claims must be dismissed

for failure to file a notice of claim. Under New York law, “as a condition precedent to bringing a

claim against a municipality, a plaintiff must file a notice of claim within 90 days after her claim

accrues.” Russell v. Westchester Cmty. Coll., No. 16-CV-1712, 2017 WL 4326545, at *5

(S.D.N.Y. Sept. 27, 2017) (citing N.Y. Gen. Mun. Law § 50-e(1)(a)); see also Olsen v. County of

Nassau, No. 05-CV-3623, 2008 WL 4838705, at *1 (E.D.N.Y. Nov. 4, 2008) (“As a ‘condition

precedent’ to commencing a tort action against New York municipalities, or any of their officers,

agents, or employees, New York General Municipal Law § 50-e requires plaintiffs to file a

notice of claim within ninety days after the claim arises.”); N.Y. Gen. Mun. Law § 50-k(6) (“No

action . . . shall be prosecuted or maintained against the city . . . or any employee . . . unless

notice of claim shall have been made and served upon the city . . . .”). This rule applies in

federal court because “[s]tate claims brought under state law in federal court are subject to state

procedural rules.” Russell, 2017 WL 4326545, at *5 (citation omitted). “Federal courts do not

have jurisdiction to hear complaints from plaintiffs who have failed to comply with the notice of

claim requirement, or to grant permission to file a late notice.” Gibson v. Comm’r of Mental

Health, No. 04-CV-4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8, 2006). Further, “the

burden is on [the plaintiff] to demonstrate compliance with the notice of claim requirements.”

Peritz v. Nassau County Bd. of Coop. Educ. Servs., No. 16-CV-5478, 2019 WL 2410816, at *4

(E.D.N.Y. June 7, 2019) (citations omitted); see also Naples v. Stefanelli, 972 F. Supp. 2d 373,

390 (E.D.N.Y. 2013) (“To survive a motion to dismiss, a plaintiff must affirmatively plead that a

notice of claim was filed.” (citing, inter alia, N.Y. Gen. Mun. Law § 50-e(1)(b))).

Because Plaintiff failed to affirmatively plead that he filed a notice of claim with respect

to any state law claims, those claims are dismissed.

III. Conclusion

For the foregoing reasons, Sullivan County’s Motion To Dismiss is granted, and Starner’s

Motion to Dismiss is granted in part and denied in part. Plaintiff’s claims against Sullivan

County are dismissed without prejudice, as are his state law claims against all Defendants and his

Fourth and Eighth Amendment claims based on his strip search. Plaintiff may file a second

amended complaint with the Court within 30 days of the date of this Opinion. Plaintiff should

include within that second amended complaint all changes to correct the deficiencies identified

in this Opinion that Plaintiff wishes the Court to consider. Plaintiff should also consider

addressing the alleged deficiencies in his Complaint raised by Defendants but not considered by

the Court. Plaintiff is further advised that the second amended complaint will completely

replace, not supplement, the instant Amended Complaint. The second amended complaint must

contain all of the claims, defendants, and factual allegations that Plaintiffs wish the Court to

consider. If Plaintiff fails to abide by the 30-day deadline, his claims dismissed without

prejudice may be dismissed with prejudice, and the case will go forward solely on Plaintiff's

Fourth Amendment excessive force and failure to intervene claims.

The Clerk of the Court is respectfully requested to terminate the pending Motions, (Dkt.

Nos. 41, 45), and to mail a copy of this Opinion to Plaintiff.

SO ORDERED.

DATED: September (ik. 2019 /

White Plains, New York i a.

UNITED STATES DISTRICT JUDGE

21 .