Thomas v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KENYA THOMAS, TYANA MILLER,

Plaintiffs,

17-CV-8593 (JPO)

-v-

OPINION AND ORDER

CITY OF NEW YORK et al.,

Defendants.

J. PAUL OETKEN, District Judge:

Plaintiffs Kenya Thomas and Tyana Miller bring constitutional claims and state sexual

assault and battery claims against Defendants City of New York and City of New York Police

Department (“NYPD”) Officers Bridget Penner, David Cheesewright, Andrew Kamna, and

Leonard Clarke, arising from Defendants’ execution of a search warrant on February 2, 2017.

They challenge both the basis for the search warrant and Defendants’ specific acts and omissions

as they relate to the search itself. Defendants now move for summary judgment. For the reasons

that follow, Defendants’ motion is granted in part and denied in part.

I. Background

In January 2017, Defendants Kamna and Clarke reported conducting, under the

supervision of Defendant Cheesewright, two controlled buys of heroin and crack cocaine through

a confidential informant. (Dkt. No. 57-3; Dkt. No. 57-4.) As reported, the confidential

informant went to 60 Moore Street, Apartment 6C, in Brooklyn, New York (the “Apartment”),

where he met an individual who sold him heroin on one occasion and crack cocaine on another.

(Id.) The confidential informant described the seller as “a black male, approximately 5’10” tall,

weighing approximately 170 pounds.” (Dkt. No. 57-2 at ¶ 3.) Defendant Kamna affirmed that,

subsequent to the controlled buys, he conducted a photographic array with the confidential

informant. (Dkt. No. 57-2 ¶ 9.) From the photographic array, the confidential informant

identified as the seller a man who had previously informed the NYPD that he lived at the

Apartment. (Dkt. No. 57-2 ¶ 10.)

On January 27, 2017, Defendant Kamna sought a no-knock search warrant for the

Apartment from the Kings County Supreme Court. (Dkt. No. 57-2 at 4–5.) He submitted an

affidavit recounting the controlled buys and the confidential informant’s identification of the

seller. (Dkt. No. 57-2.) Based on the affidavit, an Acting Justice of the Supreme Court found

“probable cause for believing that certain property,” including and relating to heroin and crack

cocaine, would be found in the Apartment. (Dkt. No. 57-1.) The Acting Justice granted the

requested no-knock search warrant for the Apartment, as well as a search warrant for the seller.

(Id.)

On the morning of February 2, 2017, the NYPD, under the supervision of Defendant

Cheesewright, executed the search warrant for the Apartment. (Dkt. No. 56 ¶ 4.) At the time of

the search, Plaintiffs were in the Apartment. Plaintiff Thomas lived in the Apartment, and

Plaintiff Miller was staying with her boyfriend at the time, Ira Thomas. (Dkt. No. 56 ¶¶ 5, 16.)

Plaintiffs testified that they woke up because of the search. (Dkt. No. 64-3 at 57:16–18; Dkt. No.

64-5 at 40:19–23.) Upon waking up, Plaintiffs were cuffed behind the back, and Plaintiff

Thomas was moved from her private room into her sister’s smaller room. (Dkt. No. 56 ¶ 20;

Dkt. No. 64-5 at 75:4–15.)

The NYPD team conducting the search, which included Defendants Cheesewright,

Kamna, and Clarke, did not include any female officers. (Dkt. No. 58 at 1.) A member of the

team called for a female officer to search the women, who were in various states of undress.

(Id.) Defendant Penner, who had been assisting a different search taking place at 60 Moore

Street, arrived at the Apartment. (Dkt. No. 64-4 at 6:12–19, 20:5–7.) When testifying,

Defendant Penner could not recall what, precisely, she had been instructed to do in the

Apartment, but she could recall searching three women. (Dkt. No. 64-4 at 29:19–21, 35: 2–7).

She first searched Plaintiff Miller in Ira Thomas’s room of the Apartment. (Dkt. No. 64-4 at

52:7–12.) Ira Thomas, who Defendant Penner assumed was Plaintiff Miller’s boyfriend, was

present for the search. (Id.) Defendant Penner then went to a smaller room in the Apartment,

where she searched two more women, one of whom, by description, could be Plaintiff Thomas.

(Dkt. No. 64-4 at 54:23, 55:24–25.) Plaintiff Thomas testified that she was searched by

Defendant Penner in the smaller room. (Dkt. No. 64-5 at 75:8–17, 83:8–9.)

Central to this case, Plaintiffs and Defendant Penner sharply dispute the nature of

Defendant Penner’s searches. Plaintiff Miller testified that she was fully unclothed when she

awoke and during the search. (Dkt. No. 64-3 at 41:3–14; Dkt. No. 63 ¶ 34.) She recounted that

Defendant Penner digitally penetrated her twice during the search and also directly contacted and

“groped” her breasts. (Dkt. No. 64-3 at 45:1–7.) Plaintiff Thomas testified that she was wearing

a short nightgown and no underwear when she awoke and during the search. (Dkt. No. 64-5 at

62:4–9; Dkt. No. 63 ¶ 33). She recounted that Defendant Penner made direct contact with her

labia and clitoris during the search. (Dkt. No. 64-5 at 86:6–9.) In contrast, Defendant Penner

recalled all of the women in the Apartment being clothed when she conducted her searches.

(Dkt. No. 64-4 at 46:6–18, 56:2–4.) Defendant Penner stated that she would “absolutely not”

have searched underneath the clothes the women were wearing. (Dkt. No. 64-4 at 62:6–7.)

In addition to Defendant Penner’s searches of the women, the NYPD team searched the

Apartment. Plaintiff Miller recalled watching members of the team search Ira Thomas’s room

and testified that the officers “didn’t destroy anything” during their search. (Dkt. No. 64-3 at

44:6–11, 53:17–20.) Plaintiff Thomas did not witness the search of her room but testified that

the dresser and television in her room were “damaged” during the search. (Dkt. No. 64-5 at

109:6.) Based on his written records and personal recollection of the search, Defendant Kamna

estimated that the search of the Apartment took two and a half hours altogether. (Dkt. No. 64-1

at 37:23–25, 38:4–6.) Similarly, Plaintiff Miller estimated that the NYPD left after roughly two

hours. (Dkt. No. 56 ¶ 19.) Plaintiff Thomas recalled the search lasting four hours. (Dkt. No. 56

¶ 12.)

On November 7, 2017, Plaintiffs brought this action against Defendants, in relation to the

events of the February 2, 2017 search. (Dkt. No. 1.) In their original complaint, Plaintiffs

claimed that they had been subjected to an unlawful search of the Apartment and of their

persons, in violation of the Fourth and Fourteenth Amendments, and to sexual assault and

battery, in violation of New York law. (Dkt. No. 1 at 5–9.) These claims were reiterated in

Plaintiffs’ amended complaint, which was filed on October 31, 2018. (Dkt. 31 at 7–10.) On

September 6, 2019, Defendants moved for summary judgment on all claims. (Dkt. No. 55.)

II. Legal Standard

Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

material if it “might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “On summary judgment, the party bearing the

burden of proof at trial must provide evidence on each element of its claim or defense.” Cohen

Lans LLP v. Naseman, No. 14-cv-4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). “If the party with the burden of proof

makes the requisite initial showing, the burden shifts to the opposing party to identify specific

facts demonstrating a genuine issue for trial, i.e., that reasonable jurors could differ about the

evidence.” Clopay Plastic Prods. Co. v. Excelsior Packaging Grp., Inc., No. 12-cv-5262, 2014

WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014). The Court must view all evidence “in the light

most favorable to the non-moving party and draw all reasonable inferences in its favor,” and

summary judgment may be granted only if “no reasonable trier of fact could find in favor of the

nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotation marks

and citations omitted).

III. Discussion

In their motion for summary judgment, Defendants argue that Plaintiffs’ claims fail

because (1) the search of the Apartment was done pursuant to a valid search warrant and was

conducted reasonably; (2) Defendants Cheesewright, Kamna, and Clarke were not personally

involved in the searches of Plaintiffs; (3) Defendant Penner did not subject either Plaintiff to a

strip search or body cavity search; (4) similarly, Defendant Penner did not subject either Plaintiff

to sexual assault and battery; and (5) Plaintiffs have adduced no evidence that Defendant City of

New York has a policy or custom of conducting unlawful searchers. (Dkt. No. 58.) The Court

addresses each of these arguments. The search of the Apartment and searches of Plaintiffs are

discussed in turn. The personal involvement of the male defendants is assessed in the context of

each search. The liability of Defendant City of New York is then addressed.

A. Plaintiffs’ Claims Regarding the Search of the Apartment

1. The Search Warrant

In claiming that the search of the Apartment violated the Fourth and Fourteenth

Amendments, Plaintiffs first call into question the validity of the January 27, 2017 search

warrant. (Dkt. No. 62 at 9.) They suggest that Defendant Kamna’s lack of “recollection of any

event leading up to the search of the [Apartment], including the controlled buys, the confidential

informant [] utilized, [and] whether he was ever present at the location prior to February 2,

2017,” undermines the substance of Defendant Kamna’s search warrant affidavit. (Dkt. No. 62

at 8.) Without specific testimony to support the affidavit, Plaintiffs contend, a “jury should be

permitted to decide whether the warrant was properly obtained.” (Dkt. No. 62 at 9.)

Plaintiffs misplace the burden of proof. As Defendants point out, “[a] search warrant

affidavit is presumed reliable.” United States v. Klump, 536 F.3d 113, 119 (2d Cir. 2008). To

void a warrant, a party must demonstrate “that there were . . . material misstatements or

omissions in the search warrant affidavit.” Id. The party must show that such misstatements or

omissions were made “knowingly and deliberately, or with a reckless disregard of the truth.”

Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994). “Unsupported conclusory allegations of

falsehood or material omission cannot support” a challenge to a search warrant affidavit and its

resulting search warrant. Id.

In their amended complaint, Plaintiffs alleged that “Defendants misled the [Kings County

Supreme Court] intentionally and/or negligently in that the person wanted had not resided in the

subject apartment for several years.” (Dkt. No. 31 at 31.) This is the only supposed falsehood or

omission that Plaintiffs identify. Plaintiffs, however, have adduced no evidence to support their

allegation that the seller described in Defendant Kamna’s search warrant affidavit had moved out

of the Apartment years earlier. (See generally Dkt. No. 63.) Nor have Plaintiffs adduced any

evidence suggesting that Defendants knew or should have known that the seller had moved. (Id.)

Irrespective of the seller’s address, Plaintiffs have provided no evidence to rebut that two

controlled buys actually occurred at the Apartment in January 2017. (Dkt. No. 56 ¶ 3; Dkt. No.

63 ¶ 3.) In other words, Plaintiffs present nothing with which to “challenge the truthfulness of

the factual statements made in the affidavit.” United States v. Awadallah, 349 F.3d 42, 64 (2d

Cir. 2003) (citations omitted). Accordingly, there are no triable issues of fact with respect to the

search warrant, which is presumed valid.

2. The Search of the Apartment, in General

Plaintiffs also challenge whether Defendants searched the Apartment in a reasonable

manner. They highlight that the search lasted an “unreasonable four hours,” Plaintiff Thomas’s

furniture was damaged during the search, Defendants had their guns drawn when securing the

Apartment, and Plaintiffs were cuffed throughout the search. (Dkt. No. 62 at 9–11.) Plaintiffs

are correct that the Fourth Amendment “applies not only to prevent searches and seizures that

would be unreasonable if conducted at all, but also to ensure reasonableness in the manner and

scope of searches and seizures . . . that are carried out . . . pursuant to a warrant.” Ayeni v.

Mottola, 35 F.3d 680, 684 (2d Cir. 1994), abrogated on other grounds by Wilson v. Layne, 526

U.S. 603 (1999). But the facts highlighted by Plaintiffs do not suggest that Defendants acted

unreasonably in conducting their search.

First, Plaintiffs’ cited case, Hollins v. City of New York (Dkt. No. 62 at 10), does not

stand for the proposition that a four-hour search of an apartment may be unreasonable, based on

the duration of the search. No. 10-cv-1650, 2014 WL 836950 (S.D.N.Y. Mar. 3, 2014). Instead,

the court in Hollins concluded that the detention of an apartment’s occupant may be “excessively

long,” and thus an unreasonable seizure, if the record suggests that the occupant was handcuffed

for “more than three hours and possibly more than four hours,” including “an additional hour”

after the end of the search. Id. at *7. Plaintiffs cite no case law to support their insinuation that a

four-hour search, pursuant to a search warrant for drugs, is reasonable only if an “apartment [i]s

unkempt or otherwise difficult to search.” (Dkt. 62 at 10.) To the contrary, courts have rejected

challenges to the reasonableness of searches, and incidental seizures, lasting several hours, with

no regard to the state of the location prior to the search. See Lynch ex rel. Lynch v. City of Mt.

Vernon, 567 F. Supp. 2d 459, 469 & n.6 (S.D.N.Y. 2008) (referring to the plaintiff’s “conclusory

assertion that the [three-hour] search lasted an unreasonably long time” as “completely

unpersuasive”).

Second, the law recognizes that “officers executing search warrants on occasion must

damage property in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 259

(1979). Plaintiff Miller witnessed no damage to the property in Ira Thomas’s room, and Plaintiff

Thomas testified that the damage to her dresser, the misalignment of the rollers of several

drawers, cost $100 to repair. (Dkt. No. 64-5 at 110:3–21.) Plaintiff Thomas testified that

Defendants cracked her television screen, but she has provided no documentary evidence of the

damage. (Dkt. No. 64-5 at 110:1–2; Dkt. No. 56 ¶¶ 9–11.) This is not the kind of “[e]xcessive

or unnecessary destruction” that implicates the Fourth Amendment. United States v. Ramirez,

523 U.S. 65, 71 (1998); see also Soichet v. Toracinta, 111 F.3d 124, 1997 WL 183776, at *3 (2d

Cir. 1997) (table opinion) (affirming a grant of summary judgment despite the plaintiff’s

“conclusory allegations” that government agents unreasonably “ransacked” her apartment,

“destroyed antique furniture,” and damaged a phone cord).

Third, “[i]n executing a search warrant for drugs, as in this case, it is reasonable for

police officers to enter a residence with guns drawn to secure the area.” Bolden v. Village of

Monticello, 334 F. Supp. 2d 407, 419 (S.D.N.Y. 2004); see also Green v. City of Mt. Vernon, 96

F. Supp. 3d 263, 296 (S.D.N.Y. 2015) (collecting cases). Fourth and finally, because Defendants

were executing a search warrant for drugs, their use of handcuffs on Plaintiffs was a reasonable

measure for “minimiz[ing] the risk of harm” or violence and preventing any “efforts to conceal

or destroy evidence.” Muehler v. Mena, 544 U.S. 93, 98–100 (2005) (citing Michigan v.

Summers, 452 U.S. 692, 702 (1981)).

Plaintiffs have not identified anything in the record suggesting that Defendants’ search of

the Apartment, in general, was unreasonable and in violation of the Fourth Amendment. (See

generally Dkt. No. 63.) Furthermore, “[b]efore any due process liability can be imposed for

property damage occurring in a lawful search, it must be established that the police acted

unreasonably or maliciously in bringing about the damage.” Cody v. Mello, 59 F.3d 13, 16 (2d

Cir. 1995). Plaintiffs have not alleged, let alone marshaled evidence to suggest, that Defendants

acted maliciously, thereby working the kind of “deprivation of property” that implicates the Due

Process Clause. (Dkt. No. 31 at 10.) Accordingly, Defendants are entitled to summary judgment

on Plaintiffs’ Fourth Amendment and Due Process claims regarding Defendants’ search of the

Apartment as a general matter.

3. The Search of Ira Thomas’s Room

Plaintiff Miller testified that she was fully unclothed when the NYPD arrived at the

Apartment. (Dkt. No. 64-3 at 41:3–14.) Furthermore, she testified that an officer “pulled [a]

blanket” from her body, cuffed her behind the back, and told her to stand in the nude. (Dkt. No.

64-3 at 41:3–11.) She estimated that she stood, waiting for a female officer, for “[m]aybe five to

ten minutes.” (Dkt. No. 64-3 at 43:6.) This specific interaction may have constituted an

unreasonable search and presents triable issues of fact.

In Los Angeles County, California v. Rettele, the Supreme Court suggested that a search

would have violated the Fourth Amendment had the defendants “prevented [the unclothed

plaintiffs] from dressing longer than necessary to protect [the officers’] safety.” 550 U.S. 609,

615 (2007). In that case, the plaintiffs were unclothed for two to three minutes. Id. Applying

Rettele, the court in Brown v. City of New York assessed that the search at issue may have been

unreasonable, and that the defendant-officers were not evidently entitled to qualified immunity,

because the plaintiff in Brown was detained in the nude for forty minutes. No. 11-cv-1068, 2013

WL 491926, at *7–8 (S.D.N.Y. Feb. 8, 2013). The analysis looks much the same here.

Per her account of the search, Plaintiff Miller was forced to stand in the nude, without

any means of covering herself, for a period longer than were the plaintiffs in Rettele. Officers

prevented Plaintiff Miller from covering herself even as they turned their attention to activities

other than securing the Apartment and ensuring officer safety. Plaintiff Miller described that

officers searched Ira Thomas’s room as she stood waiting for a female officer to arrive (Dkt. No.

64-3 at 44:6–17), and Defendant Kamna understood that Ira Thomas’s room “was deemed safe”

by the Emergency Service Unit (“ESU”) that did an initial sweep of the Apartment. (Dkt. No.

64-1 at 34:4–13; 59:20–25.) Under Plaintiff Miller’s recounting of the facts, she may have been

detained in the nude for longer than necessary to achieve valid law enforcement purposes.

The record reflects that Defendant Kamna was personally involved in searching Ira

Thomas’s room. (Dkt. No. 64-1 at 34:4–21.) When asked if Plaintiff Miller “was clothed” at the

time he performed the search, Defendant Kamna initially testified that he could not remember.

(Dkt. No. 64-1 at 34:25, 35:1.) Even if Defendant Kamna did not himself force Plaintiff Miller

to stand in the nude, whether he “had sufficient time to intercede or was capable of preventing

the harm . . . [would be] an issue of fact for the jury.” Anderson v. Branen, 17 F.3d 552, 557 (2d

Cir. 1994). Furthermore, under Plaintiff Miller’s recounting of the facts, Defendant Kamna is

not evidently entitled to qualified immunity, which requires that it be “objectively reasonable”

for an officer “to believe that his actions were lawful at the time of the challenged act.” Jenkins

v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (internal quotation marks and citation

omitted). In light of Rettele and Brown, as well as Defendant Kamna’s understanding that Ira

Thomas’s room had been secured before his arrival, the Court declines to extend qualified

immunity to Defendant Kamna at this juncture.

Plaintiffs have not marshaled evidence to show that Defendants Cheesewright and Clarke

were personally involved in working a deprivation of Plaintiff Miller’s rights. See Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“It is well settled in this Circuit that personal

involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of

damages under § 1983.” (internal quotation marks and citation omitted)). They identify no

evidence suggesting that either Defendant Cheesewright or Defendant Clarke knew that Plaintiff

Miller was fully unclothed at any point in the search, and Plaintiffs appear to abandon their

claims against Defendant Clarke. (Dkt. No. 62 at 20 (arguing that “Defendants Kamna and

Cheesewright are sufficiently personally involved in the constitutional deprivations of February

2, 2017,” but making no mention of Defendant Clarke).) Although a defendant-supervisor’s

personal involvement may be established by showing that he was “grossly negligent in

supervising subordinates who committed [] wrongful acts,” Colon, 58 F.3d at 873–74 (citation

omitted), nothing suggests that Defendant Cheesewright had “reason to know of facts creating a

high degree of risk of . . . harm to [Plaintiff Miller] and deliberately act[ed] or fail[ed] to act in

conscious disregard or indifference to that risk,” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir.

2014) (internal quotation marks and citation omitted) (explaining when a defendant-supervisor

meets the “higher degree of culpability” of gross negligence). Per his testimony, Defendant

Cheesewright understood that in “every situation where [a] female [occupant identified in an

initial sweep] was not clothed, ESU wrapped her in a blanket or in a sheet.” (Dkt. No. 64-2 at

26:7–10.) Defendant Cheesewright recalled one conversation with a woman meeting Plaintiff

Miller’s description, in which he “spoke to her about giving [the NYPD] information on drug

dealers, people with guns,” and “[s]he was telling [him] about people that were committing

crimes behind the 84 Precinct in the Ingersoll Whitman Houses” and “about a reality TV show

she was doing in Atlanta.” (Dkt. No. 64-2 at 10:16–25, 11:1–16.) He recalled that the

conversation took place “[i]n the dining room area,” and the woman was clothed. (Id.)

Defendant Cheesewright was not on notice that Plaintiff Miller might be subjected to, or actually

was subjected to, five to ten minutes of detention in the nude.

In sum, there is a genuine dispute as to a material fact with respect to the reasonableness

of the search of Ira Thomas’s room. Defendant Kamna may bear liability for the search, and the

Court denies summary judgment with respect to him. Defendants Cheesewright and Clarke,

however, are entitled to summary judgment on this part of Plaintiffs’ claims.

B. Plaintiffs’ Claims Regarding the Searches of Their Person

1. The Search of Plaintiff Miller

Defendants offer two arguments for why Plaintiff Miller’s claims regarding Defendant

Penner’s search must fail. First, they argue that Plaintiff Miller has not provided credible or

consistent testimony. Second, they argue that Defendants Cheesewright, Kamna, and Clarke

were not personally involved in the search.

As a general rule, “[a]ssessments of credibility and choices between conflicting versions

of the events are matters for the jury, not for the court on summary judgment.” Rule v. Brine,

Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). In “rare circumstances,” however, “where the plaintiff

relies almost exclusively on [her] own testimony, much of which is contradictory and

incomplete, it will be impossible for a district court to determine whether . . . there are any

‘genuine’ issues of material fact[] without making some assessment of the plaintiff’s account.”

Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). Defendants contend that this

case presents the rare circumstance in which it would be appropriate to discount a plaintiff’s

testimony in support of her claims.

Defendants are correct that Plaintiff Miller’s testimony has not been uniformly consistent

with uncontroverted record evidence or with her own pleadings. Plaintiff Miller described the

officer who searched her as a 5’7” woman of Puerto Rican descent, with black hair. (Dkt. No.

64-3 at 41:18–23.) Defendant Penner, by contrast, is a 5’3” non-Hispanic woman of Irish

descent, with “dirty blondish” hair. (Dkt. No. 64-4 at 22:24; Dkt. No. 56 ¶ 25; Dkt. No. 64-5 at

93:16–18). Plaintiff Miller recounted that the officer who searched her was wearing “regular

clothes,” contrary to Plaintiff Thomas’s and Defendant Penner’s recollection that Defendant

Penner was in uniform. (Dkt. No. 56 ¶¶ 23, 26; Dkt. No. 64-5 at 22–23.) Plaintiff Miller’s

testimony that the search took two hours stands at odds with the pleadings, in which she alleged

that she was “detained for approximately 4 hours.” (Dkt. No. 31 ¶ 12.) Still, none of these

inconsistencies goes to the heart of Plaintiff Miller’s claim and creates a “real, unequivocal, and

inescapable contradiction” with her pertinent testimony: that a female NYPD officer — who, in

retrospect, must have been Defendant Penner — performed a body cavity search on her during

the course of the February 2, 2017 search. Rivera v. Rochester Genesee Regional Transp.

Authority, 743 F.3d 11, 23 (2d Cir. 2014); see also Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (cautioning district courts not to “engage in

searching, skeptical analyses of parties’ testimony in opposition to summary judgment”).

Only one inconsistency between Plaintiff Miller’s testimony, pleadings, and

uncontroverted record evidence gives the Court pause. Specifically, Plaintiff Miller affirmed in

her deposition and alleged in the pleadings that she sought treatment after the search from an

obstetrician-gynecologist at Woodhull Medical Center. (Dkt. No. 64-3 at 13:15–17; Dkt. No. 31

¶ 13.) Had Plaintiff Miller actually sought such treatment, that fact would be probative of

whether she was digitally penetrated during the February 2, 2017 search. But Woodhull Medical

Center denies having records of any visit by Plaintiff Miller on or after February 2, 2017. (Dkt.

No. 57-14.)

Although the discrepancy between Plaintiff Miller’s account and Woodhull Medical

Center’s records may be concerning, it is a far cry from the type and numerosity of discrepancies

in cases in which courts have looked past a plaintiff’s testimony to grant summary judgment.

See, e.g., Jeffreys, 426 F.3d at 552 (noting that the plaintiff, who was alleging that police officers

had thrown him out of a third-story window, had in fact “confessed to having jumped out of the

third-story window” on three separate occasions); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460,

469–70 (S.D.N.Y. 1998) (Sotomayor, J.) (noting that the plaintiff had changed his description of

his physical injuries no fewer than four times throughout the litigation and that his descriptions

were contrary to his medical records). Here, Plaintiff Miller’s allegations with respect to the

body cavity search are not “so contradictory that doubt is cast upon their plausibility.” Pico, 994

F. Supp. at 470. Accordingly, Plaintiff Miller’s claim survives Defendants’ attack on her

credibility.

Summary judgment, however, is warranted as regards Defendants Cheesewright and

Clarke. As discussed, Plaintiffs have adduced no evidence with respect to Defendant Clarke’s

personal involvement and appear to abandon their claims against him. Defendant Cheesewright

testified that, per his “practice,” he would have instructed Defendant Penner to “just pat down

the female,” and “[i]f the female isn’t clothed, search the clothing and have the female get

dressed.” (Dkt. No. 64-2 at 24:21–25.) Defendant Penner testified that she was not given any

“instruction to search body cavities.” (Dkt. No. 64-4 at 47:3–6.) Defendants Cheesewright

stated his belief that NYPD officers “don’t do body cavity searches” (Dkt. No. 64-2 at 21:14), a

sentiment separately raised by Defendant Penner, who explained that such searches “ha[ve] to be

done with a medical professional.” (Dkt. No. 64-4 at 9–15.) Plaintiffs have identified no

evidence suggesting that Defendant Cheesewright knew or should have known that Plaintiffs

were searched invasively. As with the search of Ira Thomas’s room, Defendant Cheesewright

was not on notice that Plaintiff Miller might be subjected to, or actually was subjected to, a body

cavity search.

The same cannot be said for Defendant Kamna, who testified that he “stayed in [Ira

Thomas’s] room the whole time, the whole two and a half hours” of the search. (Dkt. No. 64-1

at 43:8–10.) Even if Defendant Kamna did not himself perform a body cavity search of Plaintiff

Miller, he could bear liability for his failure to intercede. See Anderson, 17 F.3d at 557. Plainly,

Defendant Penner also could bear liability for the search. Defendants do not attempt to assert

qualified immunity with respect to any body cavity search that may have happened. It follows

that summary judgment on Plaintiff Miller’s claim regarding the body cavity search must be

denied as to Defendants Kamna and Penner but granted as to Defendants Cheesewright and

Clarke.

2. The Search of Plaintiff Thomas

Defendants present four arguments for why Plaintiff Thomas’s claim regarding

Defendant Penner’s search must fail: (1) although the complaint’s first cause of action is labeled

“ILLEGAL STRIP SEARCH/BODY CAVITY SEARCH” (Dkt. No. 31 at 7), the search of

Plaintiff Thomas did not meet the legal definition of a strip search or body cavity search; (2)

courts routinely grant summary judgment on Fourth Amendment claims based on brief contact

with an individual’s breasts or genitals; (3) Plaintiff Thomas has not provided credible or

consistent testimony; and (4) Defendants Cheesewright, Kamna, and Clarke were not personally

involved in the search.

The first and second arguments are plainly meritless. The Court is not inclined to quibble

over how Plaintiff Thomas chose to style her complaint when the gravamen of her claim is clear:

that Defendants’ search of her person was unreasonable and a violation of her constitutional

rights. Defendants’ own case law acknowledges that the search of a person can be conducted in

an unreasonable manner, even if the search is neither a strip search nor a body cavity search.

See, e.g., Scalpi v. Amorim, No. 14-cv-2126, 2018 WL 1606002, at *19 (S.D.N.Y. Mar. 29,

2018). Furthermore, the cases that Defendants cite to argue that Plaintiff Thomas experienced “a

standard search that has repeatedly been upheld as reasonable” involve materially different

circumstances from those at issue here. (Dkt. No. 58 at 20.) In Scalpi v. Amorim, the court

emphasized that the searching officer “touched Plaintiff’s breasts over Plaintiff’s shirt” and

“touched Plaintiff’s genital area . . . over her pants.” 2018 WL 1606002, at *18. The Scalpi

court collected a litany of cases involving over-the-clothing searches to establish that such

searches, without more, are “insufficient to violate the Fourth Amendment.” Id. And in Wang v.

Vahldieck, the court found no violation from the plaintiff’s testimony that the defendant made

skin-to-skin contact with her because the plaintiff did not allege that she was touched on her

breasts or genitals. No. 09-cv-3783, 2012 WL 119591, at *10 (E.D.N.Y. Jan. 9, 2012) (“[A]t the

very most, defendant touched plaintiff’s skin on some unspecified portion of her body.”).

Defendants neglect to mention cases like Murray v. New York, in which the court treated the

plaintiff’s allegation that a state trooper “‘groped’ [his] genitals . . . under his clothing” as

“sufficient to proceed” with a Fourth Amendment claim. No. 19-cv-6453, 2020 WL 529279, at

*3 (W.D.N.Y. Feb. 3, 2020). As in Murray, Plaintiff Thomas’s claim involves the skin-to-skin

touching of her genitals, which would be actionable as an unreasonable search.

With respect to Defendants’ third argument, Plaintiff Thomas, like Plaintiff Miller, has at

times given inconsistent testimony. The only inconsistency that bears meaningfully on her

claim, however, regards what Plaintiff Thomas was wearing when she awoke and at the time of

her search. In her complaint, Plaintiff Thomas alleged that she “did not have any clothes on”

when the NYPD first entered the Apartment. (Dkt. No. 31 ¶ 9.) She alleged that NYPD officers

told her “she could not get dressed” and that she was fully unclothed during the search of her

person. (Id.) During her deposition, Plaintiff Thomas’s account shifted, and she testified that

she was wearing a nightgown when the NYPD entered the Apartment and when she was

searched. (Dkt. No. 64-5 at 62:4–9; Dkt. No. 63 ¶ 33). What Plaintiff Thomas was wearing at

the time of the search is of particular importance to her claim; Defendant Penner testified that the

woman matching Plaintiff Thomas’s description was fully clothed and that Defendant Penner did

not search under her clothing. (Dkt. No. 64-4 at 46:6–18, 56:2–4, 62:6–7.) Ultimately, the

inconsistency between Plaintiff Thomas’s allegations and her testimony is concerning but does

not warrant a grant of summary judgment. Under either of her accounts, Plaintiff Thomas was

not wearing underwear at the time of her search, and Defendant Penner could have made direct

contact with her genitals without lifting or asking Plaintiff Thomas to remove any clothing. The

credibility of Plaintiff Thomas’s testimony is a matter for the jury to decide.

Still, Defendants’ arguments succeed in one regard: Plaintiffs have not adduced any

evidence that Defendants Cheesewright, Kamna, and Clarke were personally involved in the

search of Plaintiff Thomas. The male defendants are therefore entitled to summary judgment on

Plaintiff Thomas’s claim regarding the search of her person.

C. Plaintiffs’ Sexual Assault and Battery Claims

“Assault and battery claims under New York law and Fourth Amendment . . . claims are

evaluated pursuant to the same standard.” Feaster v. City of Middletown, No. 16-cv-734, 2016

WL 10570984, at *3 (S.D.N.Y. Nov. 28, 2016) (citing Cosby v. City of White Plains, NY, No.

04-cv-5829, 2007 WL 853203, at *6 (S.D.N.Y. Feb. 9, 2007)). Courts measure both claims

“against a standard of ‘objective reasonableness,’ which calls for a ‘careful balancing of the

nature and quality of the intrusion on the individual’s . . . interests against the countervailing

governmental interests at stake.’” Antic v. City of New York, 273 F. Supp. 3d 445, 458 (S.D.N.Y.

2017) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). Because Plaintiffs’ constitutional

claims regarding Defendant Penner’s searches survive summary judgment, so too must the

sexual assault and battery claims. Contrary to Defendants’ suggestion, Plaintiffs do assert

injuries in relation to these claims. (Dkt. No. 63 ¶¶ 15, 21.)

D. Plaintiffs’ Claims Against the City

To hold Defendant City of New York liable for violations of Plaintiffs’ constitutional

rights, Plaintiffs must show “(1) an official policy or custom that (2) cause[d] [them] to be

subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195

(2d Cir. 2007) (citation omitted). Plaintiffs alleged that Defendant City of New York “has a

policy and/or custom of unlawfully searching persons and property” (Dkt. No. 31 ¶ 30), but they

have adduced no evidence to support this allegation. (See generally Dkt. No. 63.) Perhaps

recognizing this, Plaintiffs make no effort to defend against Defendants’ motion for summary

judgment insofar as it relates to Defendant City of New York. Defendant City of New York is

entitled to summary judgment.

IV. Conclusion

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in

part and DENIED in part.

The parties are directed to confer and to file a joint letter within 21 days after the date of

this Opinion and Order. The joint letter shall address (1) potential jury trial dates, or bench trial

dates if all parties consent to a bench trial, between April 2021 and September 2021, (2) the

parties’ estimated length of trial (in number of days), and (3) whether all parties agree to be

referred to Magistrate Judge Katharine Parker for a settlement conference.

The Clerk of Court is directed to close the motion at Docket Number 55.

SO ORDERED.

Dated: November 16, 2020

New York, New York

United States District Judge

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