Torres v. City of New York

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| DOCUMENT □

UNITED STATES DISTRICT COURT | ELECTRONICALLY FILED |

SOUTHERN DISTRICT OF NEW YORK □□□

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JOSE M. TORRES, Se

Plaintiff, :

~against- MEMORANDUM DECISION

.

CITY OF NEW YORK, CAPTAIN JOHNSON, _ : AND ORDER

OFFICER LEWIS, and OFFICER DURITY, : 17 Civ. 6604 (GBD) (DCF)

Defendants. :

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GEORGE B. DANIELS, United States District Judge:

Pro se Plaintiff Jose M. Torres brings this action under 42 U.S.C. § 1983 against

Defendants Captain Timothy Johnson, Officer Dave Durity, Officer Junior Lewis (collectively,

the “Officer Defendants”), and the City of New York, alleging that Defendants violated his

constitutional rights by subjecting him to a body cavity search while he was in custody at the Anna

M. Kross Center (the “AMKC”) on Rikers Island. (Compl., ECF No. 2.) Defendants move for

summary judgment pursuant to Federal Rule of Civil Procedure 56, seeking to dismiss all of

Plaintiff's claims. (Notice of Mot., ECF No. 38.)

Before this Court is Magistrate Judge Debra C. Freeman’s August 14, 2019 Report and

Recommendation (the “Report”), recommending that Defendants’ motion for summary judgment

be granted.'! (Report, ECF No. 55, at 1, 34.) Magistrate Judge Freeman advised the parties that,

pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), failure to file timely

objections to the Report would constitute a waiver of those objections on appeal. (/d. at 34.) No

' The relevant factual and procedural background is set forth in greater detail in the Report and is

incorporated by reference herein.

objections have been filed. Having reviewed the Report for clear error and finding none, this

court ADOPTS the Report’s recommendation to dismiss the complaint.

I. FACTUAL BACKGROUND

A. Balloons of Contraband.

On February 25, 2016, Plaintiff began serving a two-to-four-year prison sentence. (Defs.’

Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (“Defs. 56.1 Stmt.”), ECF No.

40, 1-2.) On the evening of February 24, 2016, prior to reporting to the AMKC on Rikers

Island, Plaintiff swallowed 10 to 12 balloons containing various types of contraband. (/d. {¥ 3-4,

7.) The balloons exited Plaintiff's system over the following three days. Ud. 6.)

B. First Search on March 1, 2016.

On March 1, 2016, Plaintiff was incarcerated in the Dorm 4 Main housing area (“Dorm □□□

of the AMKC. (id. 79.) On that day, Plaintiff had a balloon containing K2? inserted into his

rectum, K2 rolled up into a piece of paper concealed in the groin area of his pants, as well as money

and matches stuffed in the waistband of his underwear. (Jd. □□ 11-12.) When a security team at

the AMKC—which included the Officer Defendants—entered Dorm 4 in order to conduct a

search, Plaintiff reached toward the front of his pants to determine whether the K2 hidden in his

groin area had fallen out. (/d. J 13-15.) Defendants Johnson and Lewis observed Plaintiffs

motion and subsequently instructed Plaintiff to go to the bathroom of Dorm 4 so that he could be

strip searched. (/d. J 16-17.)

2 On September 10, 2019, Plaintiff requested an extension of time to file objections to the Report. (PI.’s

Letter dated Aug. 18, 2019, ECF No. 56.) On September 13, 2019, this Court granted an extension to

September 23, 2019. (Order, ECF No. 57.) Plaintiff has filed no formal objections to the Report.

3 K2 is an informal name for a synthetic form of marijuana.

During the strip search, Lewis recovered from Plaintiffs clothing K2, matches, and money,

and further instructed Plaintiff to squat. (id. 18-19.) Plaintiff complied, and Lewis observed

an object protruding from Plaintiff's anus. (Jd. § 20.) Subsequently, an unidentified officer‘

touched Plaintiff's buttocks for a few seconds, which prompted Plaintiff to jump up and turn

around. (/d. {§ 22-23.) At that time, another unidentified officer’ brought Plaintiff to the ground

through a chokehold.° (/d. { 24.) In addition, Plaintiff testified that in order to prevent the officers

from touching his buttocks, he began to resist them and tried to push himself away from them by

“tussling” his body. (Millar Decl., Ex. B (July 24, 2018 Tr. of Dep. of Jose M. Torres), at 101:12—

18, 105:5-106:14.) Plaintiff did not suffer any injuries as a result of the search. (Defs. 56.1 Stmt.

{ 32.)

C. Second Search on March 1, 2016.

Shortly thereafter, Johnson and Lewis escorted Plaintiff to another room in Dorm 4 where

only the three of them were present. (/d. §§ 33-34.) Johnson and Lewis then instructed Plaintiff

to surrender the contraband that was still in his rectum. (/d. 35-36.) After Plaintiff repeatedly

denied having the contraband and repeatedly refused to comply with the officers’ orders, Lewis

removed Plaintiff's handcuffs and instructed him to remove his clothing, bend over, and squat.

‘ Plaintiff testified at his deposition that he initially did not know which or how many officers touched his

buttocks, but that another inmate informed him that Johnson was the officer who had done so. (Millar

Decl., Ex. B (July 24, 2018 Tr. of Dep. of Jose M. Torres), at 106:15-21, 107:4-13.)

5 Plaintiff initially testified that he was unsure whether Lewis or another officer had brought him down to

the floor through a chokehold, but he later testified, “Lewis was the one that yoked me up.” (Millar Decl.,

Ex. B (July 24, 2018 Tr. of Dep. of Jose M. Torres), at 102:17—20, 110:25—111:2.)

6 Lastly, Plaintiff initially testified that Durity “did not intervene,” “did not stop [anything],” and “just

watched what happened,” but he later testified that he “would assume” Durity was the officer who had also

pinned him down on the floor through a chokehold at some point because “he was the only one close to

[Plaintiff]” at the time. (Millar Decl., Ex. B (July 24, 2018 Tr. of Dep. of Jose M. Torres), at 110:18-25,

111:4-112:2.)

(Millar Decl., Ex. B (July 24, 2018 Tr. of Dep. of Jose M. Torres), at 121:10-125:6.) Plaintiff

testified at his deposition that when he bent over and spread his butt cheeks, Lewis touched his

butt cheeks for “[a]bout three, four seconds” and “tried to reach” for his anus. (Ud. at 125:1-13,

126:22-127:2.) Plaintiff testified that he then jumped up and turned around, which then led Lewis

to pin Plaintiff down on the ground through a chokehold. (/d. at 125:14-17, 127:1-8.) While on

the ground, Plaintiff began kicking Lewis several times. (Jd. at 128:5—6.) Plaintiff further testified

that Johnson “laid [Plaintiff] down on [his] shoulders,” forcing him to lie on his back, and that

Lewis then spread Plaintiff’s legs apart, stuck his hand in Plaintiff’s anus, and removed a balloon

containing K2. (Jd. at 125:18—25, 127:9-128:10.)

D. Plaintiff’s Injury and Medical Treatment.

On March 3, 2016, Plaintiff went to the AMKC medical clinic and complained of pain in

his rectum in connection with the removal of contraband. (Defs. 56.1 Stmt. § 48; see Millar Decl.,

Ex. C (Medical Records), ECF No. 41-3, at D00049-51.) According to the medical record, upon

examination, Plaintiff was diagnosed with a “small pinkish mass outside his anus” with no

bleeding. (Millar Decl., Ex. C (Medical Records), at D00050; see Millar Decl., Ex. D (Injury to

Inmate Report dated Mar. 3, 2016), ECF No. 41-4, at D00019.) On the same day, Plaintiff went

to the AMKC medical clinic for a second time, complaining of the same pain. (Millar Decl., Ex.

C (Medical Records), at D00185.) Plaintiffs medical record from the second examination reflects

that he had “hemorrhagic mass in the rectum” with his rectum being “tender to palpation” without

any evidence of bleeding. (7d. at D00186.)

On March 3, 2016, Plaintiff also saw a psychologist. (/d. at D00315—19.) According to

the medical record, Plaintiff felt “traumatized” by the second search, but “in no way views this as

a sexual assault.” (/d. at D00318.)

I. LEGAL STANDARDS

A. Reports and Recommendations.

A court “may accept, reject, or modify, in whole or in part, the findings or

recommendations” set forth in a magistrate judge’s report. 28 U.S.C. § 636(b)(1)(C). Portions of

a magistrate judge’s report to which no or “merely perfunctory” objections have been made are

reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006)

(citations and internal quotation marks omitted). Clear error is present only when “upon review

of the entire record, [the court is] left with the definite and firm conviction that a mistake has been

committed.” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation and internal quotation

marks omitted).

B. Rule 56 Motion for Summary Judgment.

Summary judgment is appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). “An issue of

fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is material when it “might affect the

outcome of the suit under the governing law.” Gayle, 313 F.3d at 682 (quoting Anderson, 477

U.S. at 248) (internal quotation marks omitted).

The party seeking summary judgment has the burden of demonstrating that no genuine

issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.

2002). In turn, to defeat a motion for summary judgment, the opposing party must raise a genuine

issue of material fact. See Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). To do so, it

“must do more than simply show that there is some metaphysical doubt as to the material facts,”

id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and it

“may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed.

Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114

(2d Cir. 1998)) (internal quotation marks omitted). Rather, the opposing party must produce

admissible evidence that supports its pleadings. See First Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 289-90 (1968). In this regard, “[t]he ‘mere existence of a scintilla of evidence’

supporting the non-movant’s case is also insufficient to defeat summary judgment.” Niagara

Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson,

477 US. at 252).

In determining whether a genuine issue of material fact exists, the court must construe the

evidence in the light most favorable to the non-moving party and draw all inferences in that party’s

favor. See id. However, “a court must not weigh the evidence, or assess the credibility of

witnesses, or resolve issues of fact.” Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (citation

and internal quotation marks omitted). Summary judgment is therefore “improper if there is any

evidence in the record that could Deeonanly support a jury’s verdict for the non-moving party.”

Marvel, 310 F.3d at 286 (citation omitted).

C. Pro Se Plaintiffs.

Submissions of pro se litigants are read liberally and interpreted to “raise the strongest

arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.

2006) (citation and internal quotation marks omitted). The Second Circuit has held that “‘special

solicitude should be afforded pro se litigants generally, when confronted with motions for

summary judgment.” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (citation omitted).

WY. SUMMARY JUDGMENT IS GRANTED

A. Plaintiff Cannot Prevail on His Eighth Amendment Claims Against the Officer

Defendants.

The Report construes Plaintiffs complaint as asserting an excessive force claim under the

Eighth Amendment against each of the Officer Defendants for their use of chokeholds and the

removal of contraband from Plaintiff's rectum. (Report at 10-12.) The Report also construes

Plaintiff's complaint as asserting a sexual assault claim under the Eighth Amendment against each

of the Officer Defendants stemming from the extraction of the contraband. (/d.)

Magistrate Judge Freeman appropriately found that Plaintiff's Eighth Amendment claims

cannot survive summary judgment given that the evidence in the record shows that Plaintiff's

injury was de minimis and that the Officer Defendants’ use of chokeholds and removal of the

contraband were not sufficiently egregious. Ud. at 12—21.) An official’s use of force violates the

Eighth Amendment when both objective and subjective requirements are met: (1) the use of force

must be “objectively, sufficiently serious[,]” and (2) subjectively, the official must have a

“sufficiently culpable state of mind.” Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)

(citation and internal quotation marks omitted). Additionally, the Eighth Amendment does not

reach “de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant

to the conscience of mankind.’” Hudson v. McMillian, 503 U.S. 1, 10 (1992) (citation omitted).

Finally, in the Second Circuit, it is well settled that “personal involvement of defendants in alleged

constitutional deprivations is a prerequisite.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)

(quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)).

First, Magistrate Judge Freeman correctly determined that Defendants’ use of force on

Plaintiff was not sufficiently harmful to satisfy the objective component of Plaintiff's excessive

force claim. As reflected in his medical records from his visits to the AMKC medical clinic and

his deposition testimony, there is no evidence or claim of an injury stemming from the alleged use

of chokeholds. (Report at 15.) Therefore, Magistrate Judge Freeman correctly determined that

Defendants are entitled to summary judgment on this claim.

Second, Magistrate Judge Freeman properly found that the removal of contraband from

Plaintiff's rectum did not constitute use of excessive force in violation of his Eighth Amendment

rights because “the evidence in the record demonstrates that any physical injury to Plaintiff caused

by the removal of contraband was de minimis, and thus insufficient to satisfy the objective prong

of the applicable standard.” (/d.) Thus, Magistrate Judge Freeman properly found that summary

judgment is warranted on this claim as well.

With respect to the sexual assault claim, Magistrate Judge Freeman correctly found that

the undisputed facts fail to establish that Lewis committed sexual assault by forcibly removing

contraband from Plaintiff's rectum. A prison officer “looking for contraband may subject inmates

to reasonable strip searches and cavity searches” because “prison security and safety may require

frequent searches of an intensely personal nature.” Crawford v. Cuomo, 796 F.3d 252, 258 (2d

Cir. 2015) (citing Bell v. Wolfish, 441 U.S. 520, 560 (1979)). In determining whether a prison

official has violated an inmate’s Eighth Amendment rights by engaging in sexual assault in the

course of a search, “the principal inquiry is whether the contact is incidental to legitimate official

duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse

or gratify the officer or humiliate the inmate.” Crawford, 796 F.3d at 257-58. Here, as Magistrate

Judge Freeman correctly noted, Lewis’s removal of contraband “was based on a reasonable belief

that Plaintiff had secreted contraband in a body cavity.” (Report at 20.)

In addition, there exists no evidence in the record that the Officer Defendants derived

sexual gratification from the removal of the contraband from Plaintiff's rectum or that they

engaged in such conduct in order to “humiliate” Plaintiff. Crawford, 796 F.3d at 257-58.

Magistrate Judge Freeman appropriately determined that “Plaintiff does not allege that the Officer

Defendants said anything of a sexual nature during the course of the search, or exhibited any

conduct that could reflect that Lewis, or Johnson for that matter, undertook the cavity search for

purposes of sexual gratification or humiliation.” (Report at 20-21 (quotation marks omitted).)

Therefore, Magistrate Judge Freeman properly found that dismissal of this claim is warranted.

Lastly, Magistrate Judge Freeman appropriately found that Plaintiffs claims against

Johnson and Durity for not intervening to prevent Lewis’s actions should be dismissed, given that

Plaintiff cannot prevail on his excessive force or sexual assault claims. Coleman v. City of New

York, No. 07 Civ. 1051 (CM), 2010 WL 571986, at *5 (S.D.N.Y. Feb. 2, 2010). Therefore,

Plaintiff's Eighth Amendment claims against the Officer Defendants are dismissed.

B. Plaintiff Cannot Prevail on His Fourth Amendment Claim Against the Officer

Defendants.

The Report construes Plaintiff's complaint as asserting claims against each of the Officer

Defendants for violating Plaintiff's Fourth Amendment rights by subjecting Plaintiff to a body

_ cavity search during which contraband was removed from his rectum. (Report at 10-12.)

Magistrate Judge Freeman correctly held that “this Court cannot find that the Officer Defendants

would have reasonably understood that their actions may have been unlawful, and thus concludes

that they are entitled to qualified immunity for their actions.” (Jd. at 21-22.)

The Second Circuit has held that “inmates retain a limited right to bodily privacy under the

Fourth Amendment.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016) (reaffirming Covino v.

Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (noting that “maintenance of prison security is not

burdened unduly by the recognition that inmates do retain a limited right to bodily privacy”)).

Courts must undertake a two-part inquiry when evaluating an inmate’s claim that officers infringed

his or her right to bodily privacy: (1) whether the inmate has “exhibit[ed] an actual, subjective

expectation of bodily privacy[,]” and (2) “whether the prison officials had sufficient justification

to intrude on [the inmate’s] fourth amendment rights.” Covino, 967 F.2d at 77-78. Further, “if

the inmate’s Fourth Amendment claim challenges an isolated search, courts typically apply the

standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979).” Harris, 818 F.3d at 58 (citation

omitted). The Bell four-factor test of reasonableness requires balancing the need for the search at

issue against the invasion of personal rights associated with the search. See Bell, 441 U.S. at 559.

Specifically, courts must consider (1) the scope of the intrusion, (2) the manner in which the search

was conducted, (3) the justification for commencing the search, and (4) the place in which the

search was conducted. See id.

As Magistrate Judge Freeman appropriately found, such a determination requires this Court

to assess “whether there is also evidence that could support a jury determination that Plaintiff's

body-cavity search was . . . an ‘unreasonable’ intrusion on his rights, under the four-factor test

articulated in Bell.” (Report at 25.) Magistrate Judge Freeman properly assessed each of the four

Bell factors and correctly determined that the last two factors—the officer’s justification for the

search and the place in which the search was conducted—weigh in favor of a finding that the

search was, in fact, reasonable. (Jd. at 25-29.) The record establishes that the Officer Defendants

had a “legitimate penelogical reason” for conducting a body cavity search based on their

observations of Plaintiffs conduct, and the fact that the body cavity search was conducted in an

isolated part of a cell block where only Lewis and Johnson were present. (/d.)

Finally, Magistrate Judge Freeman correctly found that the Officer Defendants are entitled

to qualified immunity on Plaintiffs Fourth Amendment claim. Qualified immunity is an

affirmative defense, “shield[ing] federal and state officials from money damages unless a plaintiff

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pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that

the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563

U.S. 731 (2011) (quoting Harlow vy. Fitzgerald, 457 U.S. 800, 818 (1982)). For a right to be clearly

established, “existing precedent must have placed the statutory or constitutional question beyond

debate.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citation and internal quotation marks

omitted). Indeed, qualified immunity “gives government officials breathing room to make

reasonable but mistaken judgments, and protects all but the plainly incompetent or those who

knowingly violate the law.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (citation and

internal quotation marks omitted).

Magistrate Judge Freeman appropriately determined that “this Court is constrained to agree

with Defendants that, at the time of the conduct at issue, Plaintiff's right to be free from the type

of search that was conducted was not sufficiently established to enable him to proceed against the

Officer Defendants, even if the Court were to determine that the Bell factors, on balance, weigh in

Plaintiff’s favor.” (Report at 30-31.) Accordingly, this Court adopts Magistrate Judge Freeman’s

recommendation that the Officer Defendants be granted summary judgment on Plaintiffs Fourth

Amendment claims.

C. Plaintiff Cannot Prevail on His First and Fourteenth Amendment Retaliation Claims.

Magistrate Judge Freeman appropriately determined that Plaintiff does not have a colorable

First or Fourteenth Amendment claim for retaliation. To state a claim under § 1983 for retaliation

under the First Amendment, a plaintiff must demonstrate the following: “(1) that the speech or

conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and

(3) that there was a causal connection between the protected speech and the adverse action.”

Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001) (citations omitted), overruled on other

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grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Magistrate Judge Freeman correctly

determined that “Plaintiff has not alleged, for example, that Defendants in any way burdened his

tight to raise a complaint about the conduct of the body-cavity search or retaliated against him for

doing so.” (Report at 10 n.5.) Accordingly, Plaintiffs First Amendment claim against Defendants

cannot prevail.

D. Plaintiff Cannot Prevail on His Monell Claim Against the City.

Magistrate Judge Freeman correctly found that Plaintiff cannot prevail on his claim against

the City under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), whether his claim is premised

on the alleged violation of Plaintiff's Eighth Amendment or Fourth Amendment rights. In order

to hold a municipality liable under § 1983, a plaintiff must establish “(1) the existence of an

officially-adopted policy, custom, or practice and (2) a direct and deliberate causal connection

between that policy, custom, or practice and the violation of plaintiff's federally-protected rights.”

Santos v. New York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (citations and internal

quotation marks omitted). Further, “[a] decision not to train certain employees about their legal

duty to avoid violating citizens’ rights” counts as an officially adopted policy in so far as “[a]

pattern of similar constitutional violations by untrained employees” can be demonstrated. Connick

v. Thompson, 563 U.S. 51, 61-62 (2011) (citations omitted).

Magistrate Judge Freeman properly rejected Plaintiff's claims against the City because

Plaintiff provides insufficient evidence of a “pattern of similar constitutional violations.” (Report

at 34 (quoting Connick, 563 U.S. at 61).) As Magistrate Judge Freeman correctly noted, “Plaintiff

alleges that the City’s ‘failure to train, supervise, and discipline its employee(s] in the appropriate

use of physical force [and] executing searches’ led to the violation of his constitutional rights and

that this failure amounted to ‘deliberate indifference.” (Jd. at 32-33 (citation omitted).)

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Magistrate Judge Freeman properly rejected this argument since there is no evidence that Lewis

or any other officers used an unconstitutional level of force at the time of this incident or on any

previous occasions. Evidence of a policy or practice by the City is lacking. (Ud at 33-34.)

Consequently, Magistrate Judge Freeman properly found that “the City is entitled to summary

judgment dismissing Plaintiff's Monell claim.” (Id. at 34.)

IV. CONCLUSION

Magistrate Judge Freeman’s Report is ADOPTED. Defendants’ motion for summary

judgment, (ECF No. 38), is GRANTED. The Clerk of Court is directed to close the motion

accordingly, and to mail a copy of this memorandum decision and order to Plaintiff at Greene

Correctional Facility, P.O. Box 975, Coxsackie, New York 12051.

Dated: New York, New York

September 30, 2019

SQ.ORDERED.

sa Done

ORGE B. DANIELS

nited States District Judge

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