Houston v. Coveny

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

TYRONE HOUSTON,

Plaintiff, Case # 14-CV-6609-FPG

v. DECISION AND ORDER

R. COVENY, et al.,

Defendants.

INTRODUCTION

On October 28, 2014, pro se Plaintiff Tyrone Houston sued numerous Defendants pursuant

to 42 U.S.C. § 1983 for alleged violations of his constitutional rights. ECF No. 1. Defendant

Lester Cady is the only remaining defendant in this case. ECF No. 119. Plaintiff alleges that

Defendant subjected him to sexual abuse, excessive force, and retaliation on three occasions—

September 22, 2015 and December 22 and 31, 2015—in violation of his First and Eighth

Amendment rights. ECF No. 85.

On October 28, 2019, Defendant moved for summary judgment pursuant to Federal Rule

of Civil Procedure 56. ECF No. 127. Plaintiff made a cross motion for summary judgment. ECF

No. 137. In Plaintiff’s reply to his motion for summary judgment, he appears to bring motions in

limine and to appoint counsel. ECF No. 140 at 6, 9. For the reasons that follow, Plaintiff’s motion

for summary judgment (ECF No. 137) is DENIED and Defendant’s motion for summary judgment

(ECF No. 127) is GRANTED IN PART and DENIED IN PART. Plaintiff’s motions in limine and

to appoint counsel (ECF No. 140) are DENIED WITHOUT PREJUDICE TO RENEW.

BACKGROUND1

On September 22, 2015, Plaintiff was an inmate at Five Points Correctional Facility. On

that day around 8:10 a.m., Plaintiff was heading to the law library when Defendant directed him

to put his hands on the wall for a pat frisk. Defendant submitted a sworn declaration wherein he

averred that part of his job that morning “was to conduct random searches of inmates for

contraband” and that he frisked Plaintiff “as part of a random search of inmates traveling in that

part of the prison at that time of the day.” ECF No. 127-3 ¶¶ 4, 6. Plaintiff alleges that Defendant

said: “Put your hands on the wall—you want to keep writing me up? Now I’m going to fuck you.”

ECF No. 135 at 1.

Two weeks earlier, on September 8, 2015, Plaintiff wrote a letter to the Superintendent of

Five Points complaining about two other corrections officers. In that letter, Plaintiff wrote that he

wanted the Superintendent to “stop allowing prisoner guard [C]ady to illegally encourage and

influence their judgments.” ECF No. 138 at 16. Defendant affirmed that he did not know about

the September 8 letter when he frisked Plaintiff on September 22. ECF No. 127-3 ¶ 7.

Nonetheless, Plaintiff believes that the letter was the reason for Defendant’s actions that day.

Defendant pat frisked Plaintiff over his clothes while inmates passed them in the hallway

and another corrections officer stood next to Defendant and searched Plaintiff’s papers. Security

cameras recorded the interaction, and this footage was submitted to the Court. The video reveals

that the entire interaction lasted about three minutes and that Defendant had his hands on Plaintiff

for about one minute and fifteen seconds. Defendant avers that he frisked Plaintiff “in a

professional and thorough manner” the same way he frisks all other inmates. ECF No. 127-3 ¶ 9.

1 The Court draws these facts from the parties’ Rule 56 Statements, which are undisputed unless otherwise noted.

ECF No. 127-1; ECF No. 135.

Plaintiff tells a very different story about the pat frisk. He alleges that Defendant

“violently” pulled his pants upward, which squeezed his genital and rectal areas tightly, kicked his

right foot, and squeezed his penis “real hard twice, causing painful swelling and bloody

urinations.” ECF No. 138 at 2. Defendant admits touching Plaintiff’s buttocks and genitals as

part of the pat frisk but maintains that he “did not do this for any sexual gratification” and “did not

squeeze any part of [P]laintiff’s genitals.” ECF No. 127-3 ¶¶ 14-15.

The undisputed facts about the December 22 and 31 incidents are sparse. According to

Defendant, Plaintiff alleges that he frisked him on those days the same way he frisked him on

September 22. Defendant also asserts that the December 22 incident was not the subject of a

grievance and that neither the December 22 nor December 31 incidents were fully appealed.

Therefore, Plaintiff did not properly exhaust claims related to those incidents.

Plaintiff’s Second Amended Complaint reveals that, on December 22, Defendant allegedly

hit Plaintiff in the left knee so hard that it bent, made threatening comments to him, stole his

program card, and put him in keeplock in retaliation for Plaintiff’s grievance about the September

22 incident. ECF No. 85 at 4-5. Defendant avers that he does not recall pat frisking Plaintiff on

December 22 and that prison officials advised him that there is no known grievance related to this

date. ECF No. 127-3 ¶ 17. Nonetheless, Defendant states that he conducts all his frisks in the

same manner “for the purpose of institutional safety and not for the intent of sexual gratification.”

Id.

On December 31, Defendant allegedly “sexually and maliciously” pat frisked Plaintiff by

“touching and hitting his genitalia area hard” and threatened to put contraband in Plaintiff’s cell

and beat his head into the wall. ECF No. 85 at 5. Plaintiff also claims that Defendant rammed his

arm into Plaintiff’s back and “hit [his] genitalia hard twice,” which caused painful swelling to his

left testicle. Id. Defendant avers that he did not touch Plaintiff “with any intent of sexual

gratification” on that day. ECF No. 127-3 ¶ 16.

LEGAL STANDARD

A court grants summary judgment when the moving party demonstrates that there are no

genuine issues of material fact and that it is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(a)-(b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). It is the movant’s burden to

establish the nonexistence of any genuine issue of material fact. If there is record evidence from

which a reasonable inference in the non-moving party’s favor may be drawn, a court will deny

summary judgment. Id.

Once the movant has adequately shown the absence of a genuine issue of material fact, the

burden shifts to the nonmoving party to present evidence sufficient to support a jury verdict in its

favor, without simply relying on conclusory statements or contentions. Goenaga v. March of

Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Fed. R. Civ. P. 56(e)). “[F]actual

issues created solely by an affidavit crafted to oppose a summary judgment motion are not

‘genuine’ issues for trial.” Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996). To

survive a motion for summary judgment on § 1983 claims, the plaintiff must offer concrete

evidence from which a reasonable juror could conclude that the defendants deprived him of the

rights, privileges, or immunities guaranteed to him by law. See Johnson v. Davis, No. 12-CV-

2449, 2015 WL 1286764, at *2 (E.D.N.Y. Mar. 20, 2015).

Here, in light of Plaintiff’s pro se status, the Court will construe his opposition papers

liberally “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2009) (quotation and citation omitted). Nevertheless, proceeding pro

se does not relieve Plaintiff from the usual summary judgment requirements. See Wolfson v.

Bruno, 844 F. Supp. 2d 348, 354 (S.D.N.Y. 2011).

DISCUSSION

Plaintiff alleges that Defendant subjected him to sexual abuse, excessive force, and

retaliation on three occasions—September 22, 2015 and December 22 and 31, 2015—in violation

of his First and Eighth Amendment rights. ECF No. 85. The Court addresses each claim for each

incident in turn.

I. September 22, 2015 Incident

A. Sexual Abuse Claim

A corrections officer violates an inmate’s Eighth Amendment right to be free from cruel

and unusual punishment when he makes “intentional contact with an inmate’s genitalia or other

intimate area” and that contact “serves no penological purpose and is undertaken with the intent to

gratify the officer’s sexual desire or humiliate the inmate.” Telesford v. Wenderlich, No. 16-CV-

6130 CJS, 2018 WL 4853667, at *9 (W.D.N.Y. Oct. 5, 2018) (citing Crawford v. Cuomo, 796

F.3d 252, 254 (2d Cir. 2015) [hereinafter “Crawford I”]).

A single incident may “reach constitutional significance if sufficiently severe or serious,”

but, “[a]t the same time, there are searches of an intensely personal nature that are not properly the

subject of a lawsuit.” Id. (quotation marks and citations omitted). A court’s “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.” Id. (citation omitted).

Here, Plaintiff insists that the pat frisk involved the squeezing of his genitals and that

Defendant said “I’m going to fuck you” while frisking him. ECF No. 135 at 1, 4. Another inmate

averred to hearing the same. ECF No. 135 at 27. Defendant argues that he conducted a random

pat frisk on Plaintiff in a “professional and thorough manner” without squeezing Plaintiff’s genitals

to search for contraband but makes no mention of whether he spoke to Plaintiff during the frisk.

ECF No. 127-3 at 1-2.

The alleged manner of the pat frisk of Plaintiff’s genitals coupled with Defendant’s alleged

comments as overheard by another inmate create a question of fact as to whether the pat frisk was

“undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate.” See

Hayes v. Dahkle, No. 9:16-CV-1368 (TJM/CFH), 2018 WL 7356343, at *12 (N.D.N.Y. Dec. 11,

2018), report and recommendation adopted, 2019 WL 689234 (N.D.N.Y. Feb. 19, 2019)

(collecting cases indicating that “offensive remarks” made during pat frisk would not violate

Eighth Amendment unless the comments allude to officer’s current or future sexual contact with

the inmate); Shepherd v. Fisher, No. 08-CV-9297 (RA), 2017 WL 666213, at *19 (S.D.N.Y. Feb.

16, 2017) (denying summary judgment on plaintiff’s sexual abuse claim where officer commented

during pat frisk that “he was going to fuck [plaintiff] in [his] ass with [a hand] scanner.” (internal

quotation marks omitted)); cf. Torres v. City of New York, No. 17 Civ. 6604 (GBD) (DCF), 2019

WL 4784756, at *5 (S.D.N.Y. Sept. 30, 2019) (dismissing plaintiff’s sexual abuse claim where

officer touched his buttocks during contraband search but officer had not “said anything of a sexual

nature during the course of the search”); Allen v. Graham, No. 9:16-CV-0047 (GTS/ATB), 2017

WL 5957742, at *6 n.6, 7 (N.D.N.Y. Dec. 1, 2017) (collecting cases holding that pat frisks

involving only touching of plaintiffs’ genitals accompanied by “inappropriate” comments do not

violate the Eighth Amendment, particularly when plaintiffs did not allege any associated pain due

to the pat frisk).

Because there is an issue of fact, Defendant’s and Plaintiff’s motions for summary

judgment are DENIED with respect to Plaintiff’s sexual abuse claim.

B. Excessive Force Claim

To determine whether prison officials used excessive force in violation of the Eighth

Amendment, a court considers “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S.

1, 7 (1992). To succeed on such a claim, a plaintiff must prove objective and subjective elements.

Id. at 7-8.

The objective element is “contextual and responsive to contemporary standards of

decency,” id. at 8-9 (quotation and citation omitted), and requires that “the injury actually inflicted

is sufficiently serious to warrant Eighth Amendment protection.” Blyden v. Mancusi, 186 F.3d

252, 262 (2d Cir. 1999). Thus, the Eighth Amendment “necessarily excludes from constitutional

recognition de minimis uses of physical force, provided that the use of force is not of a sort

repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10 (quotation marks and citation

omitted). “Consequently, not every malevolent touch by a prison guard gives rise to a federal

cause of action.” Id. at 9 (citation omitted).

The subjective component “requires a showing that the defendant had the necessary level

of culpability, shown by actions characterized by wantonness in light of the particular

circumstances surrounding the challenged conduct.” Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000)

(quotation marks and citations omitted). Whether the defendant’s conduct was “wanton” turns on

“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Blyden, 186 F.3d at 262-63.

Plaintiff claims that he suffered bloody urine, a swollen testicle, and bladder wall

thickening as a result of Defendant’s pat frisk. ECF No. 135 at 8-9, 15. An inmate injury report

from the day of the incident indicates that Plaintiff’s anus and scrotum were examined and showed

“excoriations/redness/swelling.” ECF No. 138 at 22. Yet, a progress note from a medical visit the

day after the alleged incident states that there are “no visible injuries” to Plaintiff’s scrotum or

anus. ECF No. 135 at 29. Plaintiff points to the results of a urinalysis that shows Plaintiff’s urine

is positive for the presence of blood and a progress note indicating Plaintiff has a swollen left

testicle as further proof of his injuries. ECF No. 135 at 31; ECF No. 141. The urinalysis was

conducted on a sample of Plaintiff’s urine taken 17 days after the incident. ECF No. 135 at 30-31.

The progress note showing Plaintiff has a swollen testicle is dated more than four years after the

incident. ECF No. 141.

The nature of these alleged injuries, if caused by Defendant’s part frisk, creates a question

of fact as to whether they are more than de minimis. See Brown v. Jones, 471 F. App’x 420, 420-

21 (5th Cir. 2012) (vacating grant of summary judgment to officer on excessive force claim

where plaintiff alleged that “during a pat down search [the officer] struck him in the groin and

squeezed his testicles . . . . result[ing] in both immediate and continuing pain, as well as an injury

that resulted in blood in his urine”); Scalpi v. Amorim, No. 14-CV-2126 (KMK), 2018 WL

1606002, at *19-20 (S.D.N.Y. Mar. 29, 2018) (indicating allegations “that [the defendant] struck

[plaintiff] so hard in the testicles that his testicles were swollen and he was urinating blood,” and

“[t]o this day, [the] [p]laintiff maintains he suffers from pain in his testicular area and has blood in

his urine” would allow excessive force claim to survive summary judgment (citation omitted)).

There is also a question of fact as to whether Defendant acted wantonly. The Second

Circuit has considered the following factors when assessing whether a defendant acted maliciously

or wantonly in applying force:

[T]he extent of the injury and the mental state of the defendant, as well as the need

for the application of force; the correlation between that need and the amount of

force used; the threat reasonably perceived by the defendants; and any efforts made

by the defendants to temper the severity of a forceful response.

Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (quotation and citation omitted).

Plaintiff alleges that he was frisked in this manner for naming Defendant in a grievance

letter prior to the frisk, complaining of Defendant’s encouragement and influence on other guards’

judgment. ECF No. 138 at 16. Defendant denies knowledge of the letter when he randomly

selected Plaintiff for a pat frisk. ECF No. 127 at 1-2. Otherwise, there is little information in the

record pertaining to Defendant’s mental state precipitating the pat frisk.

There is no question that “conducting pat frisks on prisoners is a necessary procedure to

ensure safety and security of prisons, and correction officers are authorized to conduct random pat

frisks on free movement inmates going to or coming from services and programs.” Tavares v. City

of New York, No. 08 Civ. 3782(PAE)(JCF), 2011 WL 5877550, at *6 (S.D.N.Y. Oct. 17, 2011)

(quotation and citation to record omitted). However, given the nature of Plaintiff’s injuries, the

temporal proximity of the grievance letter to the incident, and the seeming lack of threat or need

for force as indicated by the video evidence, there is a question of fact as to whether Defendant

acted wantonly in how he conducted the pat frisk. See Santiago v. C.O. Campisi Shield No. 4592,

91 F. Supp. 2d 665, 673 (S.D.N.Y. 2000) (“[P]laintiff has satisfied his burden on [the subjective

excessive force] element by merely pleading a scenario in which the use of force could not have

been in good faith.”); cf. Hayes, 2018 WL 7356343, at *13 (ruling plaintiff had not satisfied

summary judgment burden on subjective element of excessive force claim when record was clear

that force was justified in response to plaintiff’s assault on staff member). But see Fox v. Lee, No.

9:15-CV-0390 (TJM/CFH), 2018 WL 1211111, at *24 (N.D.N.Y. Feb. 25, 2018) (denying

plaintiff’s summary judgment motion on excessive force claim where plaintiff “self-serving[ly]”

alleged officer was “furious” at him for filing grievance and record lacked other evidence of

officer’s mental state); Caldwell v. Crossett, No. 9:09–CV–576 (LEK/RFT), 2010 WL 2346337,

at *4 (N.D.N.Y. May 24, 2010) (finding that grabbing of plaintiff’s testicles during pat frisk,

resulting in “exchange of words” and plaintiff being slammed against a wall, did not satisfy

subjective element of excessive force claim because force was used to ensure compliance with

orders).

Accordingly, with respect to Plaintiff’s excessive force claim, both Plaintiff’s and

Defendant’s motions for summary judgment are DENIED.

C. Retaliation Claim

To prevail on a First Amendment retaliation claim, a plaintiff must show that: (1) he

engaged in constitutionally protected speech or conduct; (2) the defendant took adverse action

against him; and (3) there is a causal link between the protected conduct and the adverse action.

Williams v. King, 763 F. App’x 36, 38 (2d Cir. 2019) (citation omitted) (summary order). Adverse

action is conduct “that would deter a similarly situated individual of ordinary firmness from

exercising . . . constitutional rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003).

Because courts “recognize both the near inevitability of decisions and actions by prison

officials to which prisoners will take exception and the ease with which claims of retaliation may

be fabricated, [they] examine prisoner’s claims of retaliation with skepticism and particular care.”

Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Here, Plaintiff alleges that he was frisked and

threatened for naming Defendant in a grievance letter written two weeks prior. Defendant denies

knowledge of the letter when he randomly selected Plaintiff for a pat frisk. ECF No. 127 at 1-2.

There is no dispute that Plaintiff’s use of the prison grievance system is a protected activity.

Hayes v. Dahkle, No. 9:16-CV-1368 (TJM/CFH), 2017 WL 9511178, at *7 (N.D.N.Y. Oct. 30,

2017), report and recommendation adopted as modified, 2018 WL 555513 (N.D.N.Y. Jan. 19,

2018) (collecting cases). However, “pat frisks, even if conducted for retaliatory reasons, cannot

constitute an adverse action as required to support a First Amendment retaliation claim”

because “prisoners have no legitimate expectation of privacy.” Amaker v. Fischer, No. 10-CV-

0977A (Sr), 2014 WL 8663246, at *8 (W.D.N.Y. Aug. 27, 2014), report and recommendation

adopted, 2015 WL 1822541 (W.D.N.Y. Apr. 22, 2015) (internal quotation and citation omitted).

Thus, a pat frisk of the type Plaintiff alleges does not constitute an adverse action for purposes of

a retaliation claim. Joseph v. Annucci, No. 18-cv-7197 (NSR), 2020 WL 409744, at *5 (S.D.N.Y.

Jan. 23, 2020) (holding a “ pat frisk . . . in which [officer] ‘squeez[ed]’ and ‘pok[ed]’ [plaintiff’s]

chest, arms, legs, and ‘private parts’ was not retaliatory); Amaker, 2014 WL 8663246, at *8

(holding an officer’s pat frisk consisting of “rubbing plaintiff’s penis, fondling and squeezing

plaintiff’s buttocks and running his index finger across plaintiff’s anus” was not retaliatory).

Accordingly, with respect to Plaintiff’s retaliation claim, Defendant’s motion for summary

judgment is GRANTED and Plaintiff’s motion for summary judgment is DENIED.

II. Failure to Exhaust Administrative Remedies for the December 22, 2015 and

December 31, 2015 Incidents

Defendant argues that any allegations stemming from the December 22, 2015 incident

should be dismissed because the incident was never the subject of a grievance complaint and that

the December 31, 2015 complaint was never fully appealed—thus, Plaintiff has failed to exhaust

his administrative remedies for either incident. ECF No. 127-5 at 4-5. Plaintiff argues that the

December 22, 2015 incident was consolidated with his December 31, 2015 grievance and thus he

has exhausted his administrative remedies. ECF No. 135 at 11.

The exhaustion process is as follows:

Pursuant to the [Prison Litigation Reform Act] [“PLRA”], “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a).

“To satisfy that requirement, prisoners in New York must ordinarily follow

a three-step DOCS grievance process. The first step in that process is the filing of

a grievance with the Inmate Grievance Resolution Committee [(“IGRC”)]. Next,

the inmate may appeal an adverse decision to the prison superintendent. Finally,

the inmate may appeal the superintendent’s decision to the Central Office Review

Committee (“CORC”). In general, it is only upon completion of all three levels of

review that a prisoner may seek relief in federal court under § 1983.” Crenshaw v.

Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (citations omitted) (granting

motion for summary judgment filed in lieu of answer because plaintiff did not file

grievances or appeals to CORC).

In addition to the normal grievance process, when an inmate in the custody

of DOCCS makes an allegation of sexual abuse, the allegation is referred to the

Inspector General’s Office, which performs an investigation. See Amador v.

Andrews, 655 F.3d 89 (2d Cir. 2011) (“[A]n IG investigation of alleged acts of

sexual abuse is an integral part of the internal grievance procedure.”). The Inspector

General’s determination following its investigation can also be appealed to

CORC. Id. (“[A]n IG determination about abuse of an inmate can be appealed to

CORC when the determination is reported to and accepted by the superintendent.”).

Omaro v. Annucci, 68 F. Supp. 3d 359, 363 (W.D.N.Y. 2014).

It appears from the record that Plaintiff’s December 22 grievance was never received by

the IGRC, or, in the alternative, was consolidated with the December 31 grievance complaint. In

any event, while complaint FPT-31235-16 appears to have been appealed to the prison

superintendent, it was not appealed to CORC. ECF No. 134 at 8, 10-11. Therefore, Plaintiff has

not exhausted his administrative remedies for either the December 22 or 31 incidents.

It is clear from the record that Plaintiff made two separate grievance complaints, one dated

December 22, 20152 and one dated December 31, 2015. ECF No. 135 at 34, 38-39. Both the

December 22 and December 31 complaints are labeled with Grievance Number FPT-31235-16.

ECF No. 135 at 34, 38-39. Only the December 31 complaint is labeled with Prison Rape

Elimination Act (“PREA”) number 2016-01 and only the December 31 complaint is stamped as

being received by the IGRC on January 7, 2016. ECF No. 127-4 at 7, 13. Defendant submitted a

log report of Plaintiff’s grievances from 2015 and 2016 showing ostensibly only one grievance for

the December 31 incident.3 ECF No. 127-4 at 5-6. The two complaints may in fact have been

consolidated,4 making it plausible that only one grievance would be noted in the correctional

facility’s log report. However, there is no copy of the December 22 complaint in the record that

bears a stamp from the IGRC. Thus, there is no evidence in the record that indicates the December

22 complaint was ever received by the IGRC.5

A February 3, 2016 notice from the Superintendent stated that “the allegations contained

in [the FPT-31235-2016] complaint have been investigated as a PREA. #2016-01 [sic]. The

investigation found that the allegations could not be substantiated. Grievance is denied.” ECF No.

134 at 8. A February 5, 2016 letter from the Inmate Grievance Program Supervisor stated that

2 The complaint is dated at the top as “11/22/15” but dated and signed at the bottom on December 22, 2015 and

discusses the December 22, 2015 incident. Thus, the Court assumes the complaint was made on December 22, 2015.

3 The log report is accompanied by a certification signed by Brenda Griffin, an office assistant for DOCCS, attesting

to the veracity of the log report. ECF No. 127-4 at 5. Plaintiff’s allegations that Defendant has made “false and

misleading representations” concerning the veracity of the log report or that Defendant “altered” or “doctored” the log

report and his medical records are conclusory and unsubstantiated. ECF No. 127-4 at 5; ECF No. 138 at 5-6; ECF

No. 140 at 1, 5.

4 See generally Fox, 2018 WL 1211111, at *5 (noting plaintiff’s grievance complaints alleging similar issues and

made within ten days of each other were consolidated into one grievance).

5 The “Violation Hearing Disposition” Plaintiff submitted indicating that a Tier I hearing was scheduled to address

the allegations of misbehavior against Plaintiff from the December 22 incident appears to relate to the process for

determining whether Plaintiff committed the acts of misbehavior alleged, and does not relate to the grievance process

for Plaintiff’s complaint against Defendant stemming from that incident. ECF No. 135 at 35, 36.

Plaintiff’s complaint was filed as FPT-31235-16 and that Plaintiff’s “PREA allegations will be

deemed exhausted upon filing for Prison Litigation Reform Act (PLRA) purposes. [Plaintiff’s]

additional allegations (harassment, retaliation, denial of meals, false misbehavior report, etc.) will

be investigated and addressed.” ECF No. 135 at 43. Thus, the December 31 complaint was

appealed to the Superintendent.

However, CORC records Defendant submitted showing Plaintiff’s closed cases do not list

complaint FPT-31235-16, which indicates that it was never appealed to CORC. ECF No. 134 at

10-11. Therefore, Plaintiff has not exhausted his administrative remedies for either the December

22 or 31 incidents.

Accordingly, with respect to any claims stemming from the December 22 and December

31, 2015 incidents, Defendant’s motion is GRANTED, and Plaintiff’s motion is DENIED.

IV. Qualified Immunity

Defendant argues that even if a question of fact exists as to any of the above alleged claims,

summary judgment should be granted in his favor because he is entitled to qualified immunity.

The Court disagrees.

A state official is entitled to qualified immunity unless a plaintiff 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. A right

is clearly established when its contours ... are sufficiently clear that, at the time of

the challenged conduct, every reasonable official would have understood that what

he is doing violates that right. [G]eneral statements of the law are not inherently

incapable of giving fair and clear warning to officers, but existing precedent must

have placed the statutory or constitutional question beyond debate. The dispositive

question is whether the violative nature of the particular conduct is clearly

established.

Crawford v. Cuomo, 721 F. App’x 57, 58-59 (2d Cir. 2018) (summary order) (internal quotations

and citations omitted) [hereinafter “Crawford II”].

Here, there can be no dispute that Plaintiff pleaded Eighth Amendment sexual abuse and

excessive force violations and that his right to be free from those abuses was clearly established at

the time of the September 22, 2015 incident. Crawford I firmly established “an inmate’s right to

be free of sexual abuse in light of evolving standards of decency,” building on the Second Circuit’s

previous statement in Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997) that “sexual abuse of

a prisoner by a corrections officer may in some circumstances violate the prisoner’s right to be

free from cruel and unusual punishment.” Id. at 58, 59. In Crawford I, the Second Circuit held

that a pat frisk of an inmate leaving the mess hall in which the officer “squeezed” and “fondled”

the inmate’s penis and made “demeaning comments” of a sexual nature was a violation of the

inmate’s Eighth Amendment rights, particularly because the officer’s comments “suggest[ed] that

[the officer] undertook the search in order to arouse himself, humiliate [the inmate], or both.”

Crawford I, 796 F.3d at 258-59.

Similarly, in the present case, Defendant allegedly squeezed Plaintiff’s penis and made a

demeaning comment stating that he was going to “fuck” the Plaintiff. Thus, Defendant’s alleged

conduct was clearly established as violative of the Eighth Amendment. Defendant’s reliance on

Shaw v. Prindle, 661 F. App’x 16, 19 (2d Cir. 2016) (summary order) is unpersuasive. There, the

Second Circuit held that a pat frisk was not violative of the Eighth Amendment where it was clearly

conducted to search for contraband the officer had just seen despite the inmate’s allegations that

the search of his crotch and buttocks was excessive and involved the massaging of his rectum and

groin. Here, in contrast, and as in Crawford I, the pat search was random and involved demeaning

comments and very specific allegations of Plaintiff having his penis squeezed “real hard twice,

causing painful swelling and bloody urinations.” ECF No. 138 at 2.

Furthermore, Crawford II makes clear that Defendant is not entitled to qualified immunity

because the Second Circuit’s August 11, 2015 decision in Crawford I was issued prior to the

September 22, 2015 incident that gives rise to Plaintiff’s alleged constitutional violations.

Accordingly, Defendant is not entitled to qualified immunity.

V. Plaintiff’s Motions in Limine and to Appoint Counsel

Plaintiff appears to make a motion for appointment of counsel and a motion in limine to

allow his own testimony in lieu of a medical expert to establish that he saw blood in his urine.

ECF No. 140 at 6, 9.

There is no constitutional right to appointed counsel in civil cases. Under 28 U.S.C.

§ 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck &

Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). The assignment of counsel

in civil cases is within the trial court’s discretion. In re Martin-Trigona, 737 F.2d 1254, 1260 (2d

Cir. 1984). The Court must consider the issue of appointment carefully, because “every

assignment of a volunteer lawyer deprives society of a volunteer lawyer available for a deserving

cause.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). In determining whether to

assign counsel, the Court considers several factors, including whether the indigent is able to

investigate the facts concerning his claim; whether the legal issues are complex; and whether there

are special reasons why the appointment of counsel would be more likely to lead to a just

determination. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); Hodge v. Police

Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).

The appointment of counsel is not warranted in this case. The remaining claims in this

case are not complex, and from reading Plaintiff’s submissions, he is articulate and has

demonstrated the ability to adequately present his own claims. In addition, there are no special

reasons that would favor the appointment of counsel.

Finally, the motion to allow Plaintiff's own testimony is one more properly brought prior

to the pre-trial conference. Accordingly, Plaintiff's motions in limine and to appoint counsel are

DENIED WITHOUT PREJUDICE TO RENEW.

CONCLUSION

Defendant’s Motion for Summary Judgment (ECF No. 127) is GRANTED IN PART and

DENIED IN PART. Plaintiff's Cross Motion for Summary Judgment (ECF No. 137) is DENIED.

Plaintiff's motions in limine and to appoint counsel (ECF No 140) are DENIED WITHOUT

PREJUDICE TO RENEW. Only Plaintiff's Eighth Amendment sexual abuse and excessive force

claims stemming from the September 22, 2015 pat frisk survive summary judgment. The Court

has set a trial date for July 13, 2020. The Court will issue a separate pre-trial order setting a date

for a pre-trial conference.

IT IS SO ORDERED.

Dated: March 9, 2020

Rochester, New York .

HON. ( oh P. has }

Chief Judge

United States District Court

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