The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMIE E. YOUNG,
Plaintiff, ORDER
18-CV-4216(JS)(JMW)
‑against‑
MARK LUGO, et al.
Defendants.
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APPEARANCES
For Plaintiff
Jamie Young: Frederick K. Brewington, Esq.
Law Offices of Frederick K. Brewington
556 Peninsula Boulevard
Hempstead, New York 11550
For Defendants
Mark Lugo and
Alonzo Payton: Valerie Singleton, Esq.
Assistant Attorney General
State of New York
200 Old Country Road, Suite 240
Mineola, New York 11501
SEYBERT, District Judge:
Pursuant to Rule 72(b) of the Federal Rules of Civil
Procedure, Defendants Mark Lugo (“Lugo”) and Alonzo Payton
(“Payton”, together with Lugo, the “R&R Defendants”) object to the
portion of Magistrate Judge James M. Wicks’s February 6, 2026
Report and Recommendation (“R&R”, ECF No. 244) recommending denial
of summary judgment on the unreasonable seizure/excessive force
and assault and battery claims brought by Plaintiff Jamie Young
(“Plaintiff”, together with the R&R Defendants, the “Parties”).
(See Obj., ECF No. 248; Supp. Obj., ECF No. 251; Reply, ECF No.
253; Motion, ECF No. 234.) Plaintiff’s causes of action relate to
events that took place while Plaintiff was in law enforcement
custody on December 14, 2017. Because this Court concludes no
dispute of material fact precludes application of the qualified
immunity defense, the R&R Defendants’ Objection is SUSTAINED and
their Motion is GRANTED, as set forth below.
BACKGROUND
I. Undisputed Facts
The Court draws all undisputed facts from the Rule 56.1
materials submitted by the Parties. (See Pl.’s 56.1 Response, ECF
No. 236-1, attached to Opp’n; Defs.’ 56.1 Response, ECF No. 235-
2, attached to Defs.’ Reply.) Unless otherwise noted, all facts
are undisputed.
On December 14, 2017, Plaintiff was arrested for
allegedly violating his parole by fraternizing with Shati Roy
(“Roy”), a known parolee. (Pl.’s 56.1 Response ¶¶ 15, 19.) Both
Plaintiff and Roy were additionally suspected of being involved
with a prostitution ring. (Id.) New York State Department of
Correction and Community Supervision (“DOCCS”) Officer Lugo
effectuated Plaintiff’s arrest. (Id. ¶ 19.) The Parties dispute
whether Roy was found in possession of crack cocaine on his person
and in his vehicle. (Id. ¶ 17.) Plaintiff’s term of parole stemmed
from several drug-related convictions and a weapons conviction
from 1996. (Id. ¶ 12.) Plaintiff has a history of cocaine abuse
and has spent time in drug rehabilitation, which is reflected in
his medical records. (Id. ¶ 14.)
After Plaintiff was arrested and taken into custody,
Lugo and DOCCS Officer and Defendant Orrison McLean drove Plaintiff
to the Suffolk County Police Department’s Fifth Precinct (“Fifth
Precinct”). (Id. ¶ 20.) The Parties dispute several aspects of
Plaintiff’s conduct in the vehicle at the Fifth Precinct parking
lot. Lugo testified that Plaintiff: was “acting suspiciously”;
was “fidgeting in his pants quite feverishly”; and repeatedly
placed his hands down the back of his pants. (Id. ¶ 21.) Plaintiff
denies engaging in this conduct, but acknowledged in his deposition
that he “shift[ed] his position” while at the Fifth Precinct to
relieve rectal discomfort. (Id.; Pl.’s Tr., ECF No. 237-5, 183:06-
11, attached to Decl., ECF No. 237.)
Believing Plaintiff may have rectally-stored drugs, Lugo
and Suffolk County Detective and Defendant Alberto Acevedo
(“Acevedo”) went with Plaintiff to a holding cell. (Id. ¶¶ 23–
24.) Plaintiff was subsequently advised he would have to remove
his clothes so police could search his body for drugs. (Id. ¶ 24.)
Plaintiff complied. (Id.) As part of his parole, Plaintiff had
consented to searches of his person or property. (Id. ¶ 13.)
During the search, Lugo observed something resembling a
bubble protruding from Plaintiff’s rectum. (Id. ¶ 26; Defs.’ 56.1
Response ¶ 7.) Lugo believed the “bubble” was a bag of drugs,
testifying it appeared to have three balloon knots. (Pl.’s 56.1
Response ¶ 26.) But Plaintiff testified that, after officers
laughed and referred to what they observed as a “bubble”, he
informed them the “bubble” was actually a hemorrhoid.1 (Defs.’ 56.1
Response ¶¶ 10–11.) Defendants dispute that Plaintiff disclosed
his hemorrhoid condition; Lugo contends instead Plaintiff stated,
“if you want to know what’s in my ass, take me to the hospital.”
(Id. ¶¶ 10–11.) Plaintiff denies making that statement or ever
requesting to be taken to a hospital. (Pl.’s 56.1 Response ¶ 26.)
After Plaintiff was told to get dressed, he indicated he was
willing to provide officers a second look at his rectum and
thereafter requested an attorney. (Defs.’ 56.1 Response ¶¶ 12,
15.) Acevedo advised Plaintiff that a warrant would be obtained to
1 Although Plaintiff asserts Defendants did not subjectively
believe Plaintiff had a bag of drugs in his rectum (see Pl.’s 56.1
Response ¶ 26), he cites to no record support for the proposition.
Plaintiff’s bald assertion is insufficient to create a disputed
fact. See Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir.
2005) (“a nonmoving party ‘must offer some hard evidence showing
that its version of the events is not wholly fanciful’”) (quoting
D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)).
determine whether anything was present in Plaintiff’s rectum,
although no such warrant was ever issued. (Id. ¶¶ 9, 13.)
Following the search, and at the direction of his
supervisor, Lugo transported Plaintiff to Brookhaven Memorial
Hospital Medical Center (“Brookhaven Hospital” or “Hospital”),
accompanied by DOCCS Investigator Payton. (Pl.’s 56.1
Response ¶ 27.) In the transport vehicle, Plaintiff was
handcuffed, secured with a waist chain, and shackled at the feet.
(Id. ¶ 28.) The Parties dispute whether, on his way to the
Hospital, Plaintiff repeatedly banged his head against the window.
(Id.) Upon arrival at Brookhaven Hospital, Plaintiff exhibited
several instances of erratic and non-compliant behavior,
including: refusing to exit the vehicle; curling into the fetal
position on the floor of the vehicle; and locking his legs to
prevent law enforcement from removing him from the vehicle. (Id.
¶ 29.) Plaintiff states he was ultimately removed from the vehicle
when the R&R Defendants pulled on his handcuffs and leg shackles,
before “plac[ing]” him in a wheelchair (the “Vehicle Extraction”).
(Id. ¶¶ 29-30; Defs.’ 56.1 Response ¶ 23.) The R&R Defendants
contend Plaintiff kicked and flailed his legs during the Vehicle
Extraction, striking Lugo and causing injuries to Lugo’s wrist and
thumb. (Pl.’s 56.1 Response ¶ 29.) Plaintiff denies kicking,
flailing, or injuring Lugo. (Id.) The Parties further dispute
whether Plaintiff attempted to spit on or bite Lugo as he was
brought into the Hospital. (Id. ¶ 30.) Although Plaintiff disputes
he injured Lugo or kicked him, it is undisputed Lugo broke his
wrist and thumb at some point on December 14. (Id. ¶¶ 36–37.)
Once inside the Hospital, Plaintiff continued yelling
that he did not want to be there, at times “at the top of his
lungs.” (Id. ¶¶ 30–31.) Plaintiff was subsequently examined by Dr.
Carl Goodman (“Dr. Goodman” or “Doctor”), an attending emergency
physician at Brookhaven Hospital, who described Plaintiff as
“extremely agitated and belligerent” with some more calm periods
throughout the night. (Pl.’s 56.1 Response ¶¶ 32-33; Defs.’ 56.1
Response ¶ 33.) One of several law enforcement officers present
with Plaintiff informed Dr. Goodman they believed Plaintiff may
have put a foreign body in his rectum, and that they had observed
something protruding from Plaintiff’s rectal area. (Pl.’s 56.1
Response ¶ 33.) They requested Plaintiff be “checked out” by
medical staff. (Defs.’ 56.1 Response ¶ 26.) Law enforcement
supplied the information underlying Dr. Goodman’s belief that
Plaintiff may have had a foreign object in his rectum; the Parties
dispute whether the Doctor’s subsequent actions were the product
of independent medical judgment or law enforcement influence.
(Pl.’s 56.1 Response ¶ 33.)
After consulting with law enforcement personnel, Dr.
Goodman sedated Plaintiff with a ketamine injection. (Pl.’s 56.1
Response ¶ 34.) Dr. Goodman testified he sedated Plaintiff to
physically examine him for a suspected foreign body, amid
Plaintiff’s persistent non-compliance and erratic behavior.
(Defs.’ 56.1 Response ¶ 42.) The Parties dispute whether law
enforcement officers helped restrain Plaintiff during the ketamine
injection. (Id.) Plaintiff contends Lugo and Payton held him down
during the injection, testifying “[p]olice basically tugg[ed] on
the shackles because I was trying to avoid from being sedated, but
they overpowered me” and with one officer holding his weight to
Plaintiff’s body (hereinafter, the “Alleged Ketamine Restraint” or
the “Alleged Restraint”). (Pl.’s Tr. 61:19-62:20.) Lugo and Dr.
Goodman each testified they do not recall law enforcement
restraining Plaintiff prior to injection. (Defs.’ 56.1 Response
¶ 42.) While Plaintiff was sedated, his abdomen and pelvis were x-
rayed and Dr. Goodman performed a manual rectal examination.2
(Pl.’s 56.1 Response ¶ 34.) The examination revealed hemorrhoids
but no foreign body. (Id. ¶ 35.)
At approximately 11:15, Plaintiff was formally arrested
and charged with Assault in the Second Degree, based upon
2 Although Plaintiff contends law enforcement requested he be
sedated, the record contains no evidence that any officer
specifically requested sedation. (Defs.’ 56.1 Response ¶ 31.)
allegations he injured Lugo’s thumb, and Obstructing Governmental
Administration in the Second Degree. (Pl.’s 56.1 Response ¶ 37.)
Plaintiff was transported back to the Fifth Precinct and later to
Yaphank Correctional Facility. (Id. ¶ 38.) Plaintiff ultimately
pleaded guilty to a parole revocation charge and to promoting
prostitution. (Id. ¶ 41.) Plaintiff maintains the assault charge
was brought maliciously, citing the fact he did not plead guilty
to the offense. (Id. ¶ 4.)
In the days following the examination, Plaintiff
experienced swollen and reddened wrists and ankles from the
restraints and pain in his rectal area, which he treated with
Tylenol. (Id. ¶ 42; Defs.’ 56.1 Response ¶ 23.) Plaintiff contends
the swollen and reddened wrists and ankles stem from the R&R
Defendants pulling on his chains, and the rectal pain stemmed from
Dr. Goodman’s examination. (Defs.’ 56.1 Response ¶ 23.) He did
not seek follow-up medical treatment. (Pl.’s 56.1 Response ¶ 42.)
Plaintiff also claims ongoing emotional distress, embarrassment,
diminished self-esteem, and mental trauma resulting from the
events of that night. (Id.)
II. Relevant Procedural Background
A. Commencement of Action and Substantive Claims Against
Law Enforcement Defendants
On January 25, 2018, Plaintiff commenced this action pro
se. (See Compl., ECF No. 1.) On December 27, 2021, after retaining
counsel, Plaintiff filed the operative Second Amended Complaint
against: the R&R Defendants; DOCCS Officers Orrison McLean, Joseph
Rehal, Ross Botwinick, and Catherine Mencarelli; Suffolk County
Police Officers Alberto Acevedo, Matthew Spilatros, and four John
Doe Suffolk Police Officers (collectively with the aforementioned
Defendants, the “Law Enforcement Defendants”); Dr. Goodman, and
Nurse Henry Hernandez (collectively with the Law Enforcement
Defendants and Dr. Goodman, the “Defendants”). (“SAC,” ECF No.
151.) The SAC generally alleges Defendants: subjected Plaintiff to
an unlawful warrantless body cavity search; used excessive force
to compel his submission to the search; fabricated criminal charges
against Plaintiff in retaliation; and falsified records to conceal
their conduct. (See generally SAC.) Pertinent to this decision,
the SAC alleges the Law Enforcement Defendants violated
Plaintiff’s Fourth and Fourteenth Amendment rights by using
unjustified physical force to remove him from a patrol vehicle and
transport him into the Hospital, by restraining him before he was
sedated, and sedating him to compel submission to a body cavity
search (the “Excessive Force Claim”). (Id. ¶¶ 52-59.) Such
behavior, per the SAC, also amounts to assault and battery under
New York State law (the “Assault and Battery Claim”). (Id. ¶¶ 92-
98.) The SAC also asserts claims against the Law Enforcement
Defendants for: unreasonable search/invasion of privacy; malicious
prosecution; abuse of process; fabrication of evidence; cruel and
unusual punishment; and violations of Plaintiff’s substantive due
process right to bodily autonomy. (See generally id.)
B. Law Enforcement Defendants’ Motion and Plaintiff’s
Opposition
On March 19, 2024, the Law Enforcement Defendants served
their Motion for Summary Judgment. (See generally Support Memo,
ECF No. 234-1, attached to Motion.) At a high level, the Law
Enforcement Defendants maintain none of their actions violated
Plaintiff’s constitutional rights, while additionally emphasizing
Plaintiff’s diminished expectation of privacy as a parolee. (See
id. at 6–22.) In the alternative, the Law Enforcement Defendants
contend they are entitled to qualified immunity because no
precedent clearly established a parolee’s right to be free from
the type of body cavity search at issue. (Id. at 25-26.) The Law
Enforcement Defendants further assert qualified immunity is
applicable because: (1) they had an arguable reasonable basis to
believe Plaintiff was concealing drugs in his rectum; and (2) they
acted objectively reasonable under the circumstances. (Id. at
26.)
On September 12, 2024, Plaintiff served his Opposition.
(See generally Opp’n, ECF No. 236.) The Opposition maintains,
first, the searches at issue were unlawful, and, second, several
issues of material fact preclude summary judgment. Id. For
example, Plaintiff disputes whether, prior to visiting the
Hospital: certain witnesses actually observed the events they
described; Plaintiff was fidgeting or reached into his pants in
the vehicle; whether the warrantless rectal search complied with
County policy; and whether Plaintiff possessed contraband in his
rectum. (Opp’n. at 2-8; 10-11.) As to the events at the Hospital,
Plaintiff contends the parole officers “served as the driving force
to have Dr. Goodman perform the unconsented to and opposed
injection of ketamine as a sedative, performed the unconsented and
opposed by Plaintiff anal probe and other medical tests upon
Plaintiff without a warrant.” (Id. at 15.) On qualified immunity,
Plaintiff argues the Law Enforcement Defendants are not protected
because the constitutional prohibition on warrantless, invasive
body cavity searches was clearly established at the time, and the
searches here fell short of the required legal threshold. (Id. at
24-25.)
C. Judge Wicks’s R&R
On February 6, 2026, Judge Wicks issued the R&R. (See
R&R.) The R&R recommended dismissal of all claims except the
Excessive Force and Assault and Battery Claims against the R&R
Defendants, on grounds disputes of material fact surrounded the
Vehicle Extraction and Alleged Ketamine Restraint, therefore the
R&R Defendants were not entitled to qualified immunity.3 (Id. at
17-21.) With respect to the Vehicle Extraction, Judge Wicks
observed the Parties disputed whether Plaintiff kicked and flailed
which, in Judge Wicks’s view, called into question how much force
was justified to extract Plaintiff. (Id. at 18-19.) On the Alleged
Ketamine Restraint, Judge Wicks found the dispute over whether,
first, the R&R Defendants were involved at all and, second,
“whether the level of force necessary to assist Goodman in sedating
Plaintiff was reasonable under the circumstances” precluded
summary judgment. (Id.) Judge Wicks likewise recommended denying
summary judgment as to the Assault and Battery Claim, since it
arose from the same facts as the Excessive Force Claim. (Id. at
37-38.)
These factual disputes foreclosed qualified immunity,
Judge Wicks also reasoned, because they prevented any
determination that Defendants’ conduct was reasonable as a matter
of law. (Id. at 19-21.) In addressing whether Plaintiff’s rights
were clearly established, Judge Wicks briefly quoted Frederique v.
County of Nassau for the proposition that “‘it is axiomatic that
the right that plaintiff asserts—namely plaintiff’s right under
3 Judge Wicks recommended summary judgment be granted on all claims
against McLean, Mencarelli, Rahal, and Botwinick, on grounds these
defendants were not alleged to be personally involved in the
alleged violations and torts. (Id. at 11-13.) The R&R did not
address the involvement of Acevedo, Spilatros, or John Does 1-4.
(Id.)
the Fourth Amendment to be free from excessive force—is clearly
established.’” (Id. at 20 (citing 168 F. Supp. 3d 455, 479
(E.D.N.Y. 2016) (quoting Hodge v. Village of Southampton, 838 F.
Supp. 2d 67, 86 (E.D.N.Y. 2012)).) Because the federal Excessive
Force claim survived, Judge Wicks suggested exercising
supplemental jurisdiction over the Assault and Battery Claim,
because it related to the same conduct as the Excessive Force
Claim. (Id. at 30-31.)
D. Defendants’ Objections and Plaintiff’s Response
On March 21, 2026, a few hours after the Court-imposed
March 20 deadline, the R&R Defendants untimely filed their
Objection.4 (See generally Obj.) On April 7, 2026, at this Court’s
direction, the R&R Defendants submitted a Supplemental Objection
addressing the applicability of the Supreme Court’s decision in
Zorn v. Linton, as the Supreme Court’s issuance of Zorn came after
Judge Wicks issued the R&R. (See generally Supp. Obj. (citing
Zorn, 146 S. Ct. 926 (2026)).)
In their Objection, the R&R Defendants argue they are
entitled to qualified immunity because the force they employed was
objectively reasonable under the totality of the circumstances.
4 On March 23, 2026, the R&R Defendants filed an untimely,
“corrected” Objection. (See Second Obj., ECF No. 249.) For the
reasons discussed infra, this Court will not consider the arguments
raised in the “corrected” objection.
(Obj. at 2-4.) In support, they emphasize: Plaintiff’s parolee
status; drug-related criminal history; arrest while associating
with a parole absconder; Lugo’s observation of a “bubble” in
Plaintiff’s rectum; and Plaintiff’s resistance. (Id. at 2-7.) The
Supplemental Objection further contends Zorn reinforces their
position, as no prior precedent clearly established the force used
here as unlawful. (Supp. Obj. at 2.)
On May 1, 2026, Plaintiff filed his Reply, maintaining
Judge Wicks was correct on qualified immunity. (See generally
Reply.) Plaintiff continues to maintain the R&R Defendants used
unreasonable force in violation of his constitutional rights, and
that existing precedent clearly establishes such conduct as
illegal. (Id.)
DISCUSSION
I. Applicable Law, Generally
A. Reports and Recommendations
A district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also FED R. CIV. P. 72(b)(3).
A party objecting to an R&R “must lodge a specific objection to
some specific aspect of the R&R,” and “[w]hen a timely filed
objection raises and properly briefs arguments previously rejected
by the magistrate judge, the district judge must review those
arguments de novo.” Nambiar v. Cent. Orthopedic Grp., LLP, 158
F.4th 349, 361 (2d Cir. 2025). The Court need not review the
findings and conclusions to which no proper objection has been
made, and an objection “may not simply rest on the briefs
considered by the magistrate judge.” Id.; Thomas v. Arn, 474 U.S.
140, 150 (1985).
B. Summary Judgment
The Court shall grant summary judgment under Rule 56(a)
when “the movant shows that 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 for the purposes
of resolving a summary judgment motion “when it might affect the
outcome of the suit under the governing law.” Adamson v. Miller,
808 F. App’x 14, 16 (2d Cir. 2020). “An issue of fact is ‘genuine’
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. (quoting Jeffreys v. City
of N.Y., 426 F.3d. 549, 553 (2d Cir. 2005)).
“The movant bears the burden of ‘demonstrat[ing] the
absence of a genuine issue of material fact.’” Nick’s Garage,
Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)
(quoiting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The burden of persuasion may be satisfied by either: “(1) [ ]
submitting evidence that negates an essential element of the non-
moving party’s claim; or (2) by demonstrating that the non-moving
party’s evidence is insufficient to establish an essential element
of the non-moving party’s claim.” Id. (further citation omitted).
Once the moving party has met its burden, the non-moving party
must “do more than simply show that there is some metaphysical
doubt as to the material facts” and instead must offer “some hard
evidence showing that its version of the events is not wholly
fanciful.” Stein v. County of Nassau, 417 F. Supp. 3d 191, 197
(E.D.N.Y. 2019) (citations omitted).
“Summary judgment is inappropriate when the admissible
materials in the record make it arguable that the claim has merit.”
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(citations and quotation marks omitted). In reviewing the record,
the Court “may not make credibility determinations or weigh the
evidence” as such determinations are to be made by the jury, not
the judge. Id. (citing Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 150 (2000)). Accordingly, where an issue as to a
material fact cannot be resolved without weighing the credibility
of a witness, summary judgment is improper. Id.
C. Which Objections This Court Will Consider
On February 12, 2026, this Court instructed the Parties
to file any objections to the R&R by March 20, 2026. (See Feb.
12, 2026 Order.) On March 21, 2026, the R&R Defendants filed their
Objection, shortly after midnight. (Obj.) On March 23, 2026,
without explanation or leave of Court, the R&R Defendants filed a
“Corrected Memorandum of Law in Support of State Defendants’
Objections to the Report and Recommendation.” (Supp. Obj.) Because
“[a] district court has broad discretion to determine whether to
overlook a party’s failure to comply with local court rules,” and
because the Objection was filed shortly after the relevant
deadline, the Court will consider the arguments made in the
Objection notwithstanding the noncompliance with the Court’s
deadline. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d
Cir. 2001), abrogated in part on other grounds, Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009). However, because the Second
Objection was submitted several days past the deadline and without
any explanation or leave, in its broad discretion, the Court will
not consider any arguments raised therein.
II. Qualified Immunity
A. Applicable Law
Qualified immunity shields state actors “performing
discretionary functions . . . from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Where applicable, qualified immunity offers “ample protection to
all but the plainly incompetent or those who knowingly violate the
law.” Sacaza v. City of N.Y., 169 F.4th 363, 369 (2d Cir. 2026)
(quoting Dufort v. City of N.Y., 874 F.3d 338, 354 (2d Cir. 2017)).
“The issues on qualified immunity are: (1) whether plaintiff has
shown facts making out violation of a constitutional right; (2) if
so, whether that right was ‘clearly established’; and (3) even if
the right was ‘clearly established’, whether it was ‘objectively
reasonable’ for the officer to believe the conduct at issue was
lawful.” Monroe v. Gould, 372 F. Supp. 3d 197, 204 (S.D.N.Y. 2019)
(quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d
Cir. 2013)). “Courts may use their discretion in deciding the
order in which to approach a qualified immunity analysis.” Sacaza,
169 F.4th at 370 (citing Coollick v. Hughes, 699 F.3d 211, 219-20
(2d Cir. 2012)).
“[C]ourts have observed that the distinction between
the defense of qualified immunity and the substantive law of an
excessive force claim has become blurred.” Frederique, 168 F.
Supp. 3d at 479 (citing Landy v. Irizarry, 884 F. Supp. 788, 800
(S.D.N.Y. 1995)). To determine whether force was excessive, courts
must assess “the need for the application of force, the
relationship between the need and the amount of force that was
used, the extent of injury inflicted, and whether force was applied
in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.”
Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (citing Johnson
v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251–52 (2d Cir.
2001)). “The evaluation of a police officer’s use of force must
be from the perspective of a reasonable police officer at the
incident, not from hindsight.” Cruz v. City of N.Y., 232 F. Supp.
3d 438, 451 (S.D.N.Y. 2017) (citing Graham v. Connor, 490 U.S.
386, 396 (1989)).
“To be entitled to qualified immunity at the summary
judgment stage of a case, a defendant must show that, even viewing
the evidence in the light most favorable to the plaintiff, the
defendant’s actions did not violate clearly established law.”
Falls v. Pitt, No. 16-CV-8863, 2021 WL 1164185, at *28 (S.D.N.Y.
Mar. 26, 2021) (citation omitted). A right is clearly established
only when it is “sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.”
Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (quoting
Mullenix v. Luna, 577 U.S. 7, 11 (2015)). To find a right is
clearly established, courts ordinarily “need to identify a case
where an officer acting under similar circumstances was held to
have violated” the Constitution. Escondido v. Emmons, 586 U.S.
38, 43 (2019) (further citation omitted); see also Zorn, 146 S.
Ct. at 930 (“[a] right is not clearly established if existing
precedent does not place the constitutional question ‘beyond
debate’”) (citing Rivas-Villegas, 595 U.S. at 5). “The relevant
precedent must define the right with a ‘high degree of
specificity,’ so that ‘every reasonable official would interpret
it to establish the particular rule the plaintiff seeks to apply.’”
Zorn, 146 S. Ct. at 930 (citing District of Columbia v. Wesby, 583
U.S. 48, 63 (2018)). “Principles stated generally, such as that
‘an officer may not use unreasonable and excessive force,’ do not
suffice.” Id. (citing Kisela v. Hughes, 584 U.S. 100, 105 (2021)).
Those acting under color of state law will receive qualified
immunity “unless they could have ‘read’ the relevant precedent
beforehand and ‘know[n]’ that it proscribed their specific
conduct.” Id. (citing City and County of San Francisco v. Sheehan,
575 U.S. 600, 616 (2015)).
B. Application
1. The Undisputed Facts
In recommending denial of summary judgment, Judge Wicks
identified three primary factual disputes: whether Plaintiff
kicked, spat at, or attempted to bite Lugo during and after the
Vehicle Extraction; whether the R&R Defendants participated in the
Alleged Ketamine Restraint; and the extent to which these disputes
bore on the Excessive Force Claim. (Id. at 19–21.) Even taking
Plaintiff’s version of the facts as true—and reviewing them in
light of the relevant precedents—this Court is convinced the R&R
Defendants acted reasonably and did not violate any clearly
established right. See Bolmer v. Oliveira, 594 F.3d 134, 141 (2d
Cir. 2010) (courts may determine entitlement to qualified immunity
“on stipulated facts, or on the facts that the plaintiff alleges
are true, or on the facts favorable to the plaintiff that the trial
judge concluded the jury might find”) (quoting Salim v. Proulx, 93
F.3d 86, 90 (2d Cir. 1996)).
Prior to the Vehicle Extraction, it is undisputed
Plaintiff: had a long history of drug-related issues; was arrested
for associating with another parolee; “shifted” in a way that Lugo
believed could indicate rectal contraband; and had something
protruding from his rectum. (See supra pp. 3-4.) This set of facts
provided the R&R Defendants with a reasonable basis to believe
Plaintiff had drugs in his rectum, and they responded to the
perceived exigency of the same by taking him to the Hospital.5
(Id. at 5.) Once at the Hospital, there is no dispute Plaintiff:
(1) resisted removal by positioning himself on the floor of the
vehicle in the fetal position and locking his legs; and (2) had to
5 In recommending a grant of summary judgment on Plaintiff’s
unreasonable search/violation of privacy claim—which Plaintiff did
not challenge—Judge Wicks persuasively explained “the officers had
‘reason to believe, based on specific and articulable facts, taken
together with rational inferences from those facts, that
[Plaintiff was] secreting contraband inside a body cavity,’ and
were thus ‘permitted to conduct [the] visual body cavity search.’”
(R&R at 16-17 (quoting Sepulveda v. City of N.Y., No. 15-CV-5187,
2020 WL 2836952, at *6 (E.D.N.Y. May 29, 2020)).)
be forcibly removed from the vehicle, including via law enforcement
pulling on his chains. (Id. at 5-6.)
Even assuming the R&R Defendants did participate in the
Alleged Ketamine Restraint, Plaintiff merely states he was
“overpowered” when one officer pressed his weight on Plaintiff and
another “tugg[ed]” his shackles because he “was trying to
avoid [ ] being sedated” amid his erratic behavior, which included
screaming “at the top of his lungs” earlier in the evening that he
would not be examined. (Id. at 7.) After Plaintiff was sedated
and was no longer resisting, Dr. Goodman was able to complete the
examination. (Id.)
2. The Reasonableness of the R&R Defendants’ Actions
In light of the aforementioned backdrop and undisputed
facts, it is immaterial whether or not Plaintiff was kicking,
spitting, or biting during the Vehicle Extraction. The R&R
Defendants appear to have reasonably believed they needed to get
Plaintiff inside the Hospital quickly and, in doing so, did not
engage in any kind of drastic or disproportionate violence. The
R&R Defendants’ actions in the Alleged Ketamine Restraint, as
Plaintiff describes them, were also reasonable. Given Plaintiff’s
admitted physical resistance and erratic behavior that included
screaming “at the top of [his] lungs,” it would have been
exceedingly difficult to determine whether any medical or
evidentiary exigency existed without first sedating him. (Id. at
7.) Because “[t]he evaluation of a police officer’s use of force
must be from the perspective of a reasonable police officer at the
incident, not from hindsight,” the fact that no drugs were
ultimately found in Plaintiff’s rectum is not a bar to finding the
R&R Defendants’ conduct reasonable. Cruz, 232 F. Supp. 3d at 451.
The reasonableness of the force deployed against
Plaintiff’s undisputed resistance is further buttressed by the
lack of a major injury. It is undisputed Plaintiff had swollen
and reddened wrists and ankles, along with rectal pain, which were
temporary conditions that did not prompt follow-up treatment and
were treated with over-the-counter pain medication, i.e.: Tylenol.
(See Id. at 8.) Although not dispositive, several courts have
held similarly mild physical injuries can indicate force was
appropriately used. See, e.g., Rasmussen v. City of N.Y., 766 F.
Supp. 2d 399, 407 (E.D.N.Y. 2011) (plaintiff’s “lack of any injury
beyond bumps and bruises suggests” no excessive force); Garcia v.
Greco, No. 05-CV-9587, 2010 WL 446446, at *7 (S.D.N.Y. Feb. 9,
2010) (“pain to the left shin, right elbow, and face,” along with
brief hospitalization for difficulty breathing, suggested no
excessive force); Garcia v. Greco, No. 05-CV-9587, 2010 WL 446446,
at *8 (S.D.N.Y. Feb. 9, 2010) (collecting cases suggesting where
plaintiffs sustained, inter alia, scrapes, bruises, swelling,
contusions, back and joint pain, a bloody lip, or split stitches,
no excessive force took place).
In concluding material factual disputes precluded
summary judgment on the Excessive Force Claim, Judge Wicks relied
upon two cases where the factual dispute addressed whether officers
deployed significant force against non-resisting plaintiffs. (See
R&R at 19 (citing Esperanza v. City of N.Y., 325 F. Supp. 3d 288,
304 (E.D.N.Y. 2018); Graham v. City of N.Y., 928 F. Supp. 2d 610,
619 (E.D.N.Y. 2013)).) For example, in Esperanza, the material
dispute concerned whether the plaintiffs posed an immediate
threat, or were even actively resisting at all, when officers
allegedly threw one plaintiff to the ground and slammed another
against a vehicle. Esperanza, 325 F. Supp. 3d at 304. Likewise,
in Graham, the court found triable issues where a non-resisting
plaintiff stopped for a non-violent traffic infraction allegedly
was dragged from his vehicle, shoved against it, and tightly
handcuffed. Graham, 928 F. Supp. 2d at 619.
These factual disputes were outcome determinative: if a
police officer did in fact slam a non-resisting plaintiff’s face
into a vehicle, such conduct would very likely be unreasonable.
But no such drastic dispute exists in this case. Indeed, the facts
of Esperanza and Graham are distinguishable from this case. Here,
Plaintiff was engaged in active physical and verbal resistance,
unlike the plaintiffs in Esperanza and Graham. And neither
Esperanza nor Graham involves perceived medical exigencies or a
parolee who had consented to searches of his body as a condition
of his release. (Id. at 4.)
Judge Wicks’s qualified immunity analysis also cites to
cases where factual disputes bore on whether substantial force was
used against plaintiffs presenting little or no active resistance.
(R&R at 20-21 (citing John v. City of N.Y., 406 F. Supp. 3d 240,
244 (E.D.N.Y. 2017) (denying qualified immunity where plaintiff
claimed his hand was twisted, he was punched in the face, and was
shoved onto the hood of a car during an arrest arising from a noise
complaint); Frederique, 168 F. Supp. 3d at 472-73, 479 (finding
factual dispute where plaintiff alleged he was repeatedly punched
and kicked despite not resisting arrest and attempting to comply
with officer demands); Smith v. Fields, No. 95-CV-8374, 2002 WL
342620, at *6 n.9 (S.D.N.Y. Mar. 1, 2002) (precluding summary
judgment where plaintiff asserted he was slapped and kicked in the
face after being placed in handcuffs).) These cases involve
outcome-determinative disputes that potentially show drastic
violence inflicted against a compliant or passive plaintiff, which
are vastly different disputes than the one present in this case.
3. Whether the R&R Defendants Violated a Clearly
Established Right
In Judge Wicks’s brief “clearly established” analysis,
he quoted to language from Frederique, explaining “plaintiff’s
right under the Fourth Amendment to be free from excessive force
[ ] is clearly established.” (R&R at 20 (citing Frederique, 168
F. Supp. 3d at 479).) This language is at odds with the Supreme
Court’s warning in Zorn, decided shortly after the R&R was issued,
which explains “[p]rinciples stated generally, such as that ‘an
officer may not use unreasonable and excessive force,’ do not
suffice” in the “clearly established” analysis. Zorn, 146 S. Ct.
at 930 (quoting Kisela, 584 U.S. at 105). To this point, neither
the aforementioned authorities, nor those cited in Plaintiff’s
Reply, clearly establish that the R&R Defendants violated
Plaintiff’s Fourth Amendment rights.
Most of Plaintiff’s cited cases fall into one of three
categories, i.e., they: (1) explain the general proposition that
searches into the body require a heightened level of probable
cause; (2) address rectal searches undertaken by officers with no
evidence pointing to the rectum specifically; or (3) concern
searches undertaken for improper purposes or under materially
different circumstances. Under the first category, Schmerber v.
California is cited for the broad proposition that “intrusions
into the human body” must meet Fourth Amendment standards of
reasonableness. (Id. at 4 (citing 384 U.S. 757, 767-68 (1966)).
This is too amorphous a concept to define any right at issue with
a “high degree of specificity.” Zorn, 146 S. Ct. at 930
(“principles stated generally” do not suffice to clearly establish
a right) (citing Kisela, 584 U.S. at 105).6 People v. Hall, a New
York State court case, applied Schmerber to hold “specific and
articulable facts” are required for a rectal search. 10 N.Y.3d
303, 311 (2008). This too is a general principle.7
Even if, ultimately, there were no drugs found in
Plaintiff’s rectum, there were certainly facts pointing to the
possibility of drugs being there, including Plaintiff’s “shifting”
in the car and appearance of his hemorrhoid. (See supra pp. 3-
5.) For this reason, cases involving rectal searches where no facts
pointed to the rectum are unavailing. For example, in Sloley v.
VanBramer, two state troopers conducted a strip and visual body
cavity search of a plaintiff following his misdemeanor arrest,
which was prompted when a drug-sniffing dog showed interest in his
vehicle. 945 F.3d 30, 35-37 (2d Cir. 2019). The Second Circuit
denied summary judgment because clearly established law required
6 In any event, Schmerber is not a qualified immunity case and did
not address body cavity searches.
7 But, in any event, here, there were specific and articulable
facts which reasonably supported the search. Moreover, Plaintiff
did not object to the portions of the R&R recommending summary
judgment be granted as to the unreasonable search claim. (See R&R
at 13-17.)
“a specific, articulable factual basis supporting a reasonable
suspicion to believe the arrestee secreted evidence inside a body
cavity,” and factual disputes existed as to whether such suspicion
was present. Id. at 40 (citing Hall, 10 N.Y.3d at 311). Similarly,
Monroe v. Gould involved a plaintiff who, after being arrested for
misdemeanor drug and weapon charges, was subjected to a body cavity
search in a police station where police did “not point to
plaintiff’s physical appearance, apparent discomfort, or any
suspicious actions or other articulable facts which might have
suggested he was hiding something inside his body.” 372 F. Supp.
3d at 204-05 (emphasis in original). And, in Wilson v. Aquino,
police conducted routine searches “that yielded no weapons or
contraband” and did not have any facts pointing to rectally-stored
drugs before examination. 233 F. App’x 73, 77 (2d Cir. 2007); see
also Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 268
(S.D.N.Y. 2002) (defendant “did not harbor any particular belief
that [plaintiff] was secreting drugs” before searching a
plaintiff’s rectum). Unlike the guesswork in Sloley and Wilson,
the lack of “apparent discomfort” in Monroe, and the lack of
subjective belief in Sarnicola, the “shifting” motions in the car
and the visual protrusion of a hemorrhoid upon visual examination
demonstrate the R&R Defendants had a reasonable basis to suspect
Plaintiff was concealing contraband in his rectum, thereby
warranting a further search. (See supra at pp. 3-5.)
Cases concerning searches undertaken for improper
purposes or under materially different circumstances are similarly
unpersuasive. Ficklin v. Rusinko addressed a situation involving
“an invasive body cavity search for no legitimate purpose, but
instead solely to retaliate against and humiliate Plaintiff.” No.
18-CV-06310, 2020 WL 5513812, at *6 (W.D.N.Y. Sept. 14, 2020).
Here, by contrast, other than Plaintiff’s unsubstantiated
assertions to the contrary, the record demonstrates the R&R
Defendants had at least a subjective reason to believe Plaintiff
had rectally-stored contraband. (See Id.) Similarly, in Santiago
v. City of Yonkers, a court declined to grant summary judgment on
a search-based claim due to a factual dispute about whether an
officer “inserted his fingers into plaintiff’s rectum—in the
context of either a sexual assault or a manual cavity,”
circumstances not present in this case. No. 13-CV-1077, 2015 WL
6914799, at *7 (S.D.N.Y. Oct. 30, 2015). Plaintiff’s reliance on
Harris v. Miller, is likewise misplaced, as it turned on a “violent
and forceful” strip search of a female inmate by male officers and
focused its reasoning heavily on the cross-gender nature of the
search, which is not at issue here. 818 F.3d 49, 60 (2d Cir.
2016).
Accordingly, because the factual disputes identified by
Judge Wicks are not material, the Court finds R&R Defendants’
conduct was objectively reasonable in light of the facts that are
material and undisputed, and because no authority clearly
established the R&R Defendants’ conduct, under the specific
factual scenario of this case, as unlawful, the Court SUSTAINS the
R&R Defendants’ objection as to qualified immunity.
III. Remaining State Law Claims
Although federal courts have supplemental jurisdiction
over state law claims, “a district court ‘may decline to exercise
supplemental jurisdiction’ if it ‘has dismissed all claims over
which it has original jurisdiction.’” Kolari v. New
York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting
28 U.S.C. § 1367(c)(3)). District courts have wide latitude in
deciding whether to exercise supplemental jurisdiction. See Id.
at 122. Because there are no remaining claims for which this Court
has original jurisdiction, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s Assault and Battery
claim and accordingly DECLINES TO ADOPT Judge Wicks’s R&R to the
extent it recommends exercising jurisdiction over the same.
III. Unobjected Portions of the R&R
As Judge Wicks noted in the R&R, “failure to object
timely to a magistrate’s report operates as a waiver of any further
judicial review of the magistrate’s decision.” Caidor v. Onondaga
County, 517 F.3d 601, 604 (2d Cir. 2008). The Court accordingly
ADOPTS the portions of Judge Wicks’s R&R to which there were no
specific objections.
Conclusion
For the stated reasons, IT IS HEREBY ORDERED that the
R&R Defendants’ Objection is SUSTAINED. Accordingly:
I. The Court DECLINES TO ADOPT Judge Wicks’s Report and
Recommendation to the extent it recommends denying summary
judgment as to the Excessive Force and Assault and Battery
claims;
II. Relatedly, the Court DECLINES TO ADOPT Judge Wicks’s R&R
to the extent it recommends exercising supplemental
jurisdiction over the Assault and Battery Claim, and;
III. The Court ADOPTS Judge Wicks’s Report and Recommendation
to the extent it recommends granting summary judgment on
Plaintiff’s causes of action for Fourth Amendment
unreasonable search/violation of privacy, malicious
prosecution, abuse of process, fabrication of evidence,
cruel and unusual punishment, substantive due process, and
false imprisonment; and
Having rejected in part and adopted in part the R&R, the
Court FURTHER ORDERS:
I. Because the R&R Defendants are entitled to qualified
immunity, the Court GRANTS their Motion for Summary
Judgment (ECF No. 234) as to the remaining federal claims;
and
II. Because there are no remaining federal claims, the Court
declines to take jurisdiction over the remaining state law
claims.
Judgment shall be entered for Defendants Mark Lugo and
Alonzo Payton; the Clerk of Court is accordingly directed to CLOSE
this case.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: June 9, 2026
Central Islip, New York