The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LAFVORNE BARNETT,
Plaintiff, OPINION & ORDER
-against- 24-CV-01174 (PMH)
C.O. A. THOMAS, et al.,
Defendants.
Philip M. Halpern, United States District Judge:
Lafvorne Barnett (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983 against C.O. A. Thomas, C.O. K. Edwards, and C.O. M. Banks
(“Defendants”) alleging Defendants violated his constitutional rights on December 19, 2023 while
he was incarcerated at Sing Sing Correctional Facility. (Doc. 23, “Am. Compl.”). The Amended
Complaint, construed liberally, presses claims for: (1) unlawful search in violation of the Fourth
Amendment; (2) sexual abuse in violation of the Eighth Amendment; and (3) excessive force in
violation of the Eighth Amendment. (See id.). Pending before the Court is Defendants’ motion for
summary judgment. (Doc. 97; Doc. 98, “Defs. Br.”; Doc. 99, “56.1 Stmt.”; Doc. 100, “Cahn
Decl.”; Doc. 101). Plaintiff did not file opposition to Defendants’ motion; the Court therefore
deems the motion unopposed.1 Defendants, despite Plaintiff’s failure to file opposition, filed reply.
(Doc. 102, “Reply”).
For the reasons set forth below, Defendants’ unopposed motion for summary judgment is
granted in part and denied in part.
BACKGROUND
The Court recites the facts only to the extent necessary to adjudicate the extant motion for
summary judgment and draws them from the pleadings, Defendants’ Rule 56.1 Statement, and the
Cahn Declaration along with the exhibits annexed thereto, which include, inter alia: (1) Plaintiff’s
deposition transcript (Cahn Decl., Ex. A, “Pl. Dep. Tr.”); (2) Plaintiff’s ambulatory health record
progress notes (id., Ex. B); (3) the Unusual Incident and Use of Force Report packet stemming
from the December 19, 2023 incident (id., Ex. C); (4) records of Plaintiff’s grievances (id., Exs.
D-G); and (5) disciplinary disposition records from the December 19, 2023 incident (id., Ex. H).
I. December 19, 2023 Incident
Plaintiff alleges that, on December 19, 2023, Defendants unlawfully searched him, sexually
assaulted him during the search, and used excessive force against him both during and following
1 Defendants, in accordance with the Court’s Individual Practices, filed a pre-motion letter seeking leave to
file a motion for summary judgment and a 56.1 Statement on October 23, 2025. (Doc. 95). Defendants
attached to their letter-motion an affidavit of service which indicates that their letter-motion and 56.1
Statement were served on Plaintiff. (Doc. 95-2). The Court granted Defendants leave to move for summary
judgment and set a briefing schedule for Defendants’ motion on November 5, 2025. (Doc. 96). A copy of
the Court’s order was mailed to Plaintiff. (See November 6, 2025 Docket Entry). Defendants filed their
motion on December 8, 2025, in accordance with the briefing schedule set by the Court. (Doc. 97).
Defendants attached to their Notice of Motion an affidavit of service, indicating that Defendants’ motion
and supporting documents were served on Plaintiff at his address listed on the docket and, “because Plaintiff
appears to longer be in DOCCS custody,” at Plaintiff’s address currently on file with his parole officer.
(Doc. 97-1). Defendants also provided to Plaintiff the requisite Notice to Pro Se Litigants Pursuant to Local
Civil Rule 56.2 which included, inter alia, the text of Federal Rule of Civil Procedure 56 and a forewarning
that failure to respond may result in the dismissal of the case. (Doc. 101). Plaintiff was plainly on notice of
Defendants’ motion for summary judgment and the deadline to file his opposition, as he had been served
with the moving papers as well as several other documents notifying him of Defendants’ motion.
Accordingly, the Court finds that Plaintiff received adequate notice that his claims might be dismissed for
failure to file an opposition to Defendants’ motion for summary judgment.
the search. (See Am. Compl.). Plaintiff, at the time of the incident, was incarcerated at Sing Sing
Correctional Facility. (56.1 Stmt. ¶ 4). Defendants were all employed as correctional officers at
Sing Sing Correctional Facility during the relevant period. (Id. ¶¶ 11-13).
On December 19, 2023, Defendants Thomas and Banks escorted Plaintiff on a “medication
run.” (Id. ¶ 27). According to Plaintiff’s deposition testimony, Defendant Edwards conducted an
initial pat frisk of Plaintiff when he left his cell2 and Plaintiff also passed through a metal detector
on his way to the facility’s medical center. (Pl. Dep. Tr. at 49:11-13, 71:11-19). Plaintiff, during
the medication run, “made verbal threats towards Defendants and other DOCCS staff.” (56.1 Stmt.
¶ 28). Plaintiff, for his part, testified at his deposition that he was “being harassed,” “threatened,”
and “picked on” by Defendants Thomas and Edwards. (Pl. Dep. Tr. at 56:4-9). Defendant Edwards,
according to Plaintiff, left and went “back to the block,” but Defendant Thomas continued making
“threats towards [Plaintiff]” on their way to the medical center, including telling Plaintiff to
“swing, just swing”; only then did Plaintiff “start[] talking back to” Defendants. (Pl. Dep. Tr. at
56:10-16, 56:24-57:3). For instance, Plaintiff testified that he told Defendant Banks that “Attica is
way worse than you guys. You guys are weak.” (Id. at 52:12-13).
It is undisputed that, on the way back to Plaintiff’s cell from the medication run, Plaintiff
reached into the crotch area of his pants. (See 56.1 Stmt. ¶ 29; Pl. Dep. Tr. at 58:10-13). Defendant
Banks claims that he saw Plaintiff, after reaching into his pants, make a motion with his hand.
(56.1 Stmt. ¶ 29). Plaintiff testified that he was “fixing [his] pants” because his “boxers was down
in [his] pants,” and that he did not “think they thought it was a weapon, because [Plaintiff] never
played with weapons.” (Pl. Dep. Tr. at 58:10-13, 73:22-23). Defendants Thomas and Banks stated
2 Plaintiff does not allege that Defendant Edwards violated his constitutional rights during this initial pat
frisk. (See Am. Compl.).
that they believed Plaintiff was reaching for a weapon and, accordingly, asked Plaintiff if he had a
weapon in his hand. (56.1 Stmt. ¶¶ 31-32).
Defendant Thomas ordered Plaintiff to submit to a pat frisk in a stairwell. (56.1 Stmt. ¶ 33).
According to Plaintiff, this occurred roughly “five or six minutes” after he had reached into his
pants because Defendants Thomas and Banks were “wait[ing] till there was no one around.” (Pl.
Dep. Tr. at 85:18-19, 86:11-14). Defendants contend that, although Plaintiff initially complied and
placed his hands on the wall, once Defendant Thomas began the pat frisk, Plaintiff attempted to
punch Defendant Thomas. (Id. ¶¶ 33-36). Plaintiff testified that Defendant Thomas “choked [him]
up [his] sweatshirt” and then “grabbed inside of [his] pants in [his] private” and only then did he
swing at Defendant Thomas. (Pl. Dep. Tr. at 49:16-22, 59:3-9). Defendant Banks was present for
but did not participate in the pat frisk; Defendant Edwards was not present for the pat frisk. (See
56.1 Stmt. ¶¶ 37-38). Plaintiff stated at his deposition that no weapon was found as a result of the
search. (Pl. Dep. Tr. at 49:23-25).
Plaintiff also stated that, after he “swung on” Defendant Thomas for grabbing his crotch,
“Officer Edwards and everybody start[ed] intervening.” (Pl. Dep. Tr. at 48:10-16, 49:18-20).
Defendant Banks allegedly “knocked out [Plaintiff’s] teeth and bust [his] head open with the stick”
and told Plaintiff “we’re worse than Attica.” (Id. at 51:6-9, 52:14). Plaintiff testified that Defendant
Banks hit him “[a]t least three or four times in [his] mouth, and three or four times in [his] head”
with a baton (id. at 93:14-19), and Defendant Thomas “started putting hands on” him (id. at 59:15-
20). According to Plaintiff, Defendant Thomas struck him “three or four times” in his stomach,
ribs, side, and legs. (Id. at 94:4-10). Defendant Edwards also “came down to help them” and
Plaintiff “was getting beaten up by three guys at first.” (Id. at 59:21-22). Plaintiff further testified
that he “was getting beat a lot, to the point where it was a lot [of] blood on the floor.” (Id. at 92:19-
21).
Plaintiff stated that, following this incident, he was in the hospital until December 28, 2023.
(Pl. Dep. Tr. at 37:13-17).
II. Plaintiff’s Grievance of December 19, 2023 Incident
Plaintiff filed a grievance regarding the December 19, 2023 incident on January 5, 2024.
(56.1 Stmt. ¶ 17). Plaintiff stated in this grievance that, on his way back from a medical run,
Defendant Thomas choked him with his shirt, threw him against the wall to search him, and
grabbed his genitals. (See Cahn Decl., Ex. D at 2).3 Plaintiff states that he then “swang on”
Defendant Thomas, Defendant Edwards punched him, and Defendant Banks “pulled out his stick
and struck [him] in [his] teeth and in [his] head 3 times each.” (Id.).
Plaintiff’s grievance was divided into two separate grievances, one regarding his
allegations of sexual abuse, and another regarding his allegations of excessive force. (56.1 Stmt.
¶¶ 18-20). The grievance concerning Plaintiff’s allegations of excessive force was referred to the
superintendent of the prison pursuant to N.Y. Comp. Codes R. & Regs. Tit. 7 § 701.8(b); this
grievance “was found to be unsubstantiated” on February 20, 2024. (Id. ¶ 24). Plaintiff appealed
the denial of the excessive force grievance to the Central Office Review Committee on February
22, 2024, 13 days after he filed this lawsuit. (Id. ¶ 25).
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if
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’ if it ‘might affect the
3 Citations to specific pages of filings on the docket correspond to the pagination generated by ECF.
outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, 442 F.
Supp. 3d 714, 722 (S.D.N.Y. Feb. 26, 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot
preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-05486, 2013 WL 1681261, at *1
(S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). “The question at summary
judgment is whether a genuine dispute as to a material fact exists—not whether the parties have a
dispute as to any fact.” Hernandez v. Comm’r of Baseball, No. 22-343, 2023 WL 5217876, at *5
(2d Cir. Aug. 15, 2023) (citing McKinney v. City of Middletown, 49 F.4th 730, 737 (2d Cir. 2022)).
The Court’s duty, when determining whether summary judgment is appropriate, is “not to
resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”
McKinney, 49 F.4th at 738 (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)).
Indeed, the Court’s function is not to determine the truth or weigh the evidence. The task is material
issue spotting, not material issue determining. Therefore, “where there is an absence of sufficient
proof as to one essential element of a claim, any factual disputes with respect to other elements of
the claim are immaterial.” Bellotto v. Cnty. of Orange, 248 F. App’x 232, 234 (2d Cir. 2007)
(quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)).
“It is the movant’s burden to show that no genuine factual dispute exists.” Vermont Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970)). The Court must “resolve all ambiguities and draw all reasonable
inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d
Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with specific
facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586-87 (1986)). The non-movant
cannot defeat a summary judgment motion by relying on “mere speculation or conjecture as to the
true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)).
However, if “there is any evidence from which a reasonable inference could be drawn in favor of
the opposing party on the issue on which summary judgment is sought, summary judgment is
improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).
Should there be no genuine issue of material fact, the movant must also establish its
entitlement to judgment as a matter of law. See Glover v. Austin, 289 F. App’x 430, 431 (2d Cir.
2008) (“Summary judgment is appropriate if, but only if, there are no genuine issues of material
fact supporting an essential element of the plaintiff’s claim for relief.”); Pimentel v. City of New
York, 74 F. App’x 146, 148 (2d Cir. 2003) (holding that because plaintiff “failed to raise any issue
of material fact with respect to an essential element of her[] claim, the District Court properly
granted summary judgment dismissing that claim”). Simply put, the movant must separately
establish that the law favors the judgment sought.
The Court is, of course, mindful that “[p]ro se litigants are afforded a special solicitude,”
which includes reading their filings “to raise the strongest arguments they suggest.” Mortimer v.
City of New York, No. 15-CV-07186, 2018 WL 1605982, at *9 (S.D.N.Y. Mar. 29, 2018). “It is
through this lens of leniency towards pro se litigants that this Court must consider a defendant’s
motion for summary judgment against a pro se plaintiff.” Adams v. George, No. 18-CV-02630,
2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020). This status does not, however, excuse a pro se
litigant from making the showing required to defeat summary judgment; he or she must offer more
than “bald assertions, completely unsupported by evidence” to overcome the motion. Wisdom v.
Loiodice, No. 17-CV-04837, 2020 WL 4431590, at *4 (S.D.N.Y. July 31, 2020); see also
Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (explaining that the mere fact that
a litigant is pro se “does not relieve plaintiff of his duty to meet the requirements necessary to
defeat a motion for summary judgment”); Ross v. Koenigsmann, No. 14-CV-01321, 2017 WL
9511096, at *1 (N.D.N.Y. Aug. 16, 2017), adopted sub nom. Ross v. Mannava, 2017 WL 4338883
(N.D.N.Y. Sept. 29, 2017).
Where, as here, a summary judgment motion is unopposed, “uncontroverted facts in the
moving party’s statement pursuant to Local Rule 56.1 are deemed admitted.” Johnson v. City of
New York, No. 15-CV-00403, 2016 WL 7335663, at *2 (S.D.N.Y. Dec. 16, 2016) (citing Giannullo
v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)); see also Fate v. Petranker, No. 19-CV-
05519, 2022 WL 2672317, at *1 (S.D.N.Y. July 8, 2022) (“Statements made by Defendant that are
supported by admissible evidence and not refuted by Plaintiff are deemed admitted.”). “Even when
a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide
whether the movant is entitled to judgment as a matter of law.” Vermont Teddy Bear, 373 F.3d at
242. “Before summary judgment may be entered, the district court must ensure that each statement
of material fact is supported by record evidence sufficient to satisfy the movant’s burden of
production even if the statement is unopposed.” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d
Cir. 2014). “And, of course, the court must determine whether the legal theory of the motion is
sound.” Id. A summary judgment motion in a pro se case “may be granted unopposed only if (1)
the plaintiff has received adequate notice that failure to file any opposition may result in dismissal
of the case; and (2) the Court is satisfied that the facts as to which there is no genuine dispute show
that the moving party is entitled to judgment as a matter of law.” Lurch v. Berry, No. 20-CV-02312,
2021 WL 3668113, at *3 (S.D.N.Y. Aug. 17, 2021).
ANALYSIS
Plaintiff asserts three claims for relief: (1) unlawful search in violation of the Fourth
Amendment; (2) sexual abuse in violation of the Eighth Amendment; and (3) excessive force in
violation of the Eighth Amendment. (See Am. Compl.).4
Plaintiff’s claims are brought pursuant to 42 U.S.C. § 1983. Section 1983 provides in
pertinent part that “[e]very person who, under color of any statute . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured . . . .” 42 U.S.C. § 1983. “[T]his language does not create substantive
rights; rather, it creates a mechanism by which individuals can vindicate the violation of rights
secured elsewhere.” Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan.
8, 2021). Thus, to state a claim under § 1983, Plaintiff must demonstrate “(1) a right secured by
the Constitution or laws of the United States was violated, and (2) the right was violated by a
person acting under color of state law, or a state actor.” Id. “The first step in any [§ 1983] claim is
to identify the constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271
(1994).
I. Administrative Exhaustion of Excessive Force Claim
Defendants argue that Plaintiff failed to administratively exhaust his excessive force claim
as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”). (Defs. Br. at 12-
4 Plaintiff also purports to assert a Fourteenth Amendment claim. (See id. at 2 (“[A]s for the three C.O.’s . .
. I am s[uing] them . . . for vi[o]lating my 14th Amendment right . . . .”)). However, the Amended Complaint
supplies no allegations concerning that claim. (See id.). Accordingly, to the extent Plaintiff seeks to press a
claim under the Fourteenth Amendment, that claim is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),
which provides that the Court “shall dismiss the case at any time if the court determines that the action . . .
fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
21). For the reasons stated below, the Court finds that Plaintiff properly exhausted his excessive
force claim.
The PLRA provides that “[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). This provision “applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes,” Hernandez v. Coffey, 582 F.3d 303, 305 (2d
Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002); and it is “‘mandatory’: An inmate
‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent
exhaustion of available administrative remedies,” Ross v. Blake, 578 U.S. 632, 638 (2016).
“Moreover, the PLRA ‘requires proper exhaustion, which means using all steps that the prison
grievance system holds out.’” Ayala-Rosario v. Westchester Cnty., No. 19-CV-03052, 2020 WL
3618190, at *4 (S.D.N.Y. July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir.
2016)). This “means that ‘prisoners must complete the administrative review process in accordance
with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison
grievance process itself.’” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 108590, at *6
(S.D.N.Y. Mar. 6, 2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)).
The New York Compilation of Codes, Rules & Regulations has special procedures for
grieving “alleged incident[s] of sexual abuse or sexual harassment.” N.Y.C.R.R. tit. 7 § 701.3(i).
Under this section, “an inmate is not required to file a grievance concerning an alleged incident of
sexual abuse or sexual harassment to satisfy the Prison Litigation Reform Act (PLRA) exhaustion
requirement (42 U.S.C. § 1997e(a)) before bringing a lawsuit regarding an allegation of sexual
abuse” as long as certain procedures are followed. Id. Furthermore, if an inmate files a grievance
“regarding a complaint of sexual abuse or sexual harassment . . . [t]he complaint shall be deemed
exhausted upon filing for PLRA purposes.” Id. “If the grievance does not set forth any additional
matters that require a response, the grievance shall be closed.” Id.
While the Second Circuit has not addressed this issue, several courts have held that “any
non-sexual act ‘intertwined’ with sexual abuse is subject to the relaxed grievance standards” of
section 701.3(i). Akinlawon v. Polonco, No. 21-CV-02621, 2023 WL 6216724, at *14 (S.D.N.Y.
Sept. 25, 2023). The reasoning for this is two-fold: (1) “the regulation provides that the relaxed
standard governs ‘any allegation concerning an incident of sexual abuse or sexual harassment’”;
and (2) requiring inmates “to file separate grievances for actions that occurred simultaneously and
in concert with one another would have the adverse effect of forcing an inmate to determine
whether such related assaults were ‘sufficient under [the Prison Rape Elimination Act] prior to
relying upon the language in Directive 4040[,]’ and such an implied requirement would be
‘untenable.’” Id. (alteration in original) (first quoting N.Y.C.R.R. tit. 7 § 701.3(i); and then quoting
Henderson v. Annucci, No. 14-CV-00445, 2016 WL 3039687, at *5 (W.D.N.Y. Mar. 14, 2016));
see also Sheffer v. Fleury, No. 18-CV-01180, 2019 WL 3891143, at *4 (N.D.N.Y. Aug. 19, 2019)
(report and recommendation), adopted by, 2019 WL 4463672 (S.D.N.Y. Sept. 18, 2019)
(“Directive 4040 specifically refers to an ‘incident’ of sexual abuse.”). “Thus, all non-sexual
misconduct ‘intertwined’ with any allegations of sexual assault should be considered as covered
by the lenient exhaustion requirements.” Akinlawon, 2023 WL 6216724, at *14. “That incident
could include, not only the acts of sexual abuse by an inmate or corrections officer, but also other
events which are necessarily intertwined with such a claim, such as a physical assault during the
course of the abuse; the failure of correctional staff to intervene to stop the rape; or acts or failures
to act making a jail official legally accountable for the sexual abuse.” Sheffer, 2019 WL 3891143,
at *4 (citing Abreu v. Miller, No. 15-CV-01306, 2018 WL 4502007, at *2 (N.D.N.Y. Sept. 20,
2018)).
Here, Plaintiff’s excessive force claim is sufficiently intertwined with his allegations of
sexual misconduct such that it is subject to the relaxed grievance standard of section 701.3(i).
Plaintiff’s grievance alleges that Defendant Thomas choked him and threw him against the wall in
order to search him, grabbed and squeezed his genitalia during the search, and, after Plaintiff
swung at Defendant Thomas for grabbing his genitalia, the Defendants punched Plaintiff and beat
him with a stick. (Cahn Decl., Ex. D at 2). Thus, Plaintiff’s excessive force claim is “intertwined”
with his sexual abuse claim. Accord Haywood v. Annucci, No. 18-CV-10913, 2022 WL 4357648,
at *8 (S.D.N.Y. Sept. 20, 2022) (pushing of the plaintiff against a wall and punching his face which
“occurred in concert with the sexual assault and within a matter of seconds in the same location”
were intertwined with the sexual assault claim).
Defendants make a colorable argument that Plaintiff’s excessive force claim is not
intertwined with his sexual assault claim because the events can be broken up into “a discrete
sequence of incidents.” (Defs. Br. at 18). However, as described by Plaintiff, this “discrete
sequence of incidents” occurred in quick succession (see Cahn Decl., Ex. D at 2), such that they
are one “incident.” Accord Sheffer, 2019 WL 3891143, at *4.
Defendants also argue that, because the prison facility split Plaintiff’s excessive force
grievance from his sexual assault grievance, “specifically advised” him that he needed to be
interviewed for his excessive force grievance, and Plaintiff took steps towards exhausting his
excessive force grievance, “Plaintiff was in no way required to guess whether his allegations of
sexual assault permitted him to rely on Section 701.3(i)’s relaxed exhaustion standard for his entire
grievance.” (Defs. Br. at 19). Defendants are correct that this may obviate the concern that Plaintiff
was placed in an untenable position of determining whether he must file separate grievances, see
Akinlawon, 2023 WL 6216724, at *14, but Defendants ignore the plain text of section 701.3(1),
which states that “any allegation concerning an incident of sexual abuse or sexual harassment” is
subject to the relaxed grievance procedure. N.Y.C.R.R. tit. 7 § 701.3(4) (emphasis added). Since
Plaintiffs allegations concern a single incident, which includes sexual abuse, his excessive force
claim is sufficiently intertwined with his sexual assault claim such that it is subject to the
relaxed grievance standard.
Defendants make no argument regarding the merits of Plaintiff's excessive force claim.
Accordingly, since the Court finds that Plaintiff’s excessive force claim was properly grieved,
Defendants’ motion for summary judgment is denied as to Plaintiff’s excessive force claim.
Il. Fourth Amendment Claim Against Defendant Thomas
Defendants also move for summary judgment “[t]o the extent Plaintiff seeks to challenge
the reasonableness of CO Thomas’ pat frisk under the Fourth Amendment .. . .” (Defs. Br. at 25).
Plaintiff writes in his Amended Complaint that he is suing Defendants “for violating [his] 4th
Amendment right.” (Am. Compl. at 2). Plaintiff also describes the alleged unlawful search. (See
id. at 1-2). Accordingly, the Court finds that Plaintiff has pled a Fourth Amendment claim.
The Fourth Amendment prohibits only unreasonable searches. Carroll v. United States, 267
U.S. 132, 147 (1925). “[T]here is a ‘long-established principle that the routine, random strip
searches of inmates, including body cavity inspections, do not violate the Fourth Amendment.’”
Vaughn vy. Strickland, Nos. 12-CV-02696, 12-CV-03335, 12-CV-02995, 12-CV-03333, 2013 WL
3481413, at *4 (S.D.N.Y. July 11, 2013) (quoting Castro-Sanchez v. N.Y.S. Dep t of Corr. Servs.,
No. 10-CV-08314, 2012 WL 4474154, at *3 (S.D.N_Y. Sept. 28, 2012)). “Nevertheless, ‘the Fourth
Amendment still requires all searches conducted within a prison, including strip searches, to be
13
reasonable.’” Id. (quoting Jean-Laurent v. Wilkinson, 438 F. Supp. 2d 318, 323 (S.D.N.Y. 2006),
aff’d sub nom. Jean-Laurent v. Wilkerson, 461 F. App’x 18 (2d Cir. 2012)).
The test of reasonableness under the Fourth Amendment requires a balancing of the need
for the search against the invasion of personal rights that it entails. Bell v. Wolfish, 441 U.S. 520,
559 (1979). In that regard, “[a] detention facility is a unique place fraught with serious security
dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an
occurrence.” Torres v. City of New York, No. 17-CV-06604, 2019 WL 4784756, at *5 (S.D.N.Y.
Sept. 30, 2019). Notwithstanding, “inmates retain a limited right to bodily privacy under the Fourth
Amendment.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016) (noting that “maintenance of prison
security is not burdened unduly by the recognition that inmates do retain a limited right to bodily
privacy”).
“[I]f the inmate’s Fourth Amendment claim challenges an isolated search, courts typically
apply the standard set forth in Bell v. Wolfish.” Harris, 818 F.3d at 58. The Bell four-factor test of
reasonableness requires courts to consider: (1) the scope of the intrusion; (2) the manner in which
the search was conducted; (3) the justification for commencing the search; and (4) the place in
which the search was conducted. Torres, 2019 WL 4784756, at *5 (citing Bell, 441 U.S. at 559).
The Court agrees with Defendants that the first Bell factor weighs in favor of a finding of
reasonableness. (See Defs. Br. at 25-26). Plaintiff was not even strip-searched, let alone subject to
a visual or manual body cavity search. See Harris, 818 F.3d at 59 (“[T]he first Bell factor—the
scope of the intrusion—varies with the type of search.”). Moreover, that Plaintiff was searched by
a man, and not a woman, weighs in Defendant Thomas’ favor. See id. at 59 (finding cross-gender
strip searches to aggravate the scope of the intrusion); Sankara v. Plaskett, No. 15-CV-08470, 2017
WL 4444250, at *3 (S.D.N.Y. Oct. 4, 2017) (finding a strip search performed by a member of the
same sex reasonable).
Under the second Bell factor, a “search conducted in a professional manner is more
reasonable than one that is not.” Harris, 818 F.3d at 59-60 (citing Grummett v. Rushen, 779 F.2d
491, 496 (9th Cir. 1985)). Here, viewing the evidence in the light most favorable to Plaintiff, a
reasonably jury could conclude that the search by Defendant Thomas was not conducted in a
professional manner. Plaintiff testified at his deposition that Defendant Thomas choked him with
his sweatshirt and grabbed and squeezed his private parts. (Pl. Dep. Tr. at 49:16-22, 59:3-9). The
“violent and forceful manner” of the search, Harris, 818 F.3d at 60, if Plaintiff’s testimony is to
be credited, weighs against a finding of reasonableness. Accord Layne v. Panzarella, No. 19-CV-
04531, 2022 WL 2343184, at *5 (S.D.N.Y. June 29, 2022) (finding that the second Bell factor
weighed against reasonableness where the defendants “sprayed [the plaintiff] with mace, tackled
him to the ground, and kicked him before . . . perform[ing] an anal cavity search.”).
For the third factor, the justification for the search, Defendants argue that “CO Thomas”
was “concerned Plaintiff was retrieving a weapon.” (Defs. Br. at 26). However, “a factfinder could
find [Defendants’] proffered justification unconvincing.” Harris, 818 F.3d at 61. A jury could
credit Plaintiff’s testimony, and find that Defendants were not in fact concerned that Plaintiff had
a weapon, but instead conducted the search to punish Plaintiff. (See, e.g., Pl. Dep. Tr. at 75:2-10
(“He kept saying he was going to beat me up. And why it’s going to be way worse . . . than other
facilities.”)). Moreover, if Plaintiff had already been pat frisked by Defendant Edwards and passed
through a metal detector, as he testified (see Pl. Dep. Tr. at 49:11-13, 71:11-19), this calls into
question whether Defendants truly believed Plaintiff had a weapon. Further, Plaintiff testified that
Defendants waited several minutes after he reached into his crotch area before searching him. (Pl.
Dep. Tr. at 85:18-19, 86:11-14). If true, a jury could find that this cuts against the notion that
Defendants believed Plaintiff had a weapon. Accordingly, viewing the evidence in the light most
favorable to Plaintiff, the third Bell factor weighs against the reasonableness of the search.
Finally, for the fourth factor, the Court agrees with Defendants that the fact that the search
was conducted in a stairwell outside the presence of anyone but Plaintiff, Defendant Thomas, and
Defendant Banks, weighs in favor of a finding of reasonableness. See Layne, 2022 WL 2343184,
at *6 (finding that the search was conducted in “a private area of the prison away from other
inmates . . . weigh[ed] in favor of reasonableness under the fourth Bell factor.”).
Accordingly, as there are material issues of fact regarding at least two of the Bell factors,
Defendants’ motion for summary judgment as to Plaintiff’s Fourth Amendment claim against
Defendant Thomas is denied. Accord Johnson v. Naqvi, No. 18-CV-00694, 2021 WL 1723773, at
*14-16 (D. Conn. Apr. 29, 2021) (denying summary judgment on Fourth Amendment claim where
there were material issues of fact regarding the third Bell factor).
III. Sexual Abuse Claim Against Defendant Thomas
Plaintiff’s sexual abuse claim is assessed under the Eighth Amendment. Sexual abuse
claims are a “species of excessive force.” Russell v. Scott, 170 F.4th 83, 94 (2d Cir. 2026). “Under
the Eighth Amendment, conditions of confinement ‘must not involve the wanton and unnecessary
infliction of pain.’” Vann v. Griffin, No. 16-CV-09903, 2018 WL 6199860, at *6 (S.D.N.Y. Nov.
28, 2018) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “[S]exual 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.” Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997).
Moreover, the violation must be (i) objectively serious, and (ii) committed by a defendant with
subjective culpability. See Castro-Sanchez, 2012 WL 4474154, at *2-3. Under this standard, “the
principal inquiry is whether the contact is incidental to legitimate official duties, such as a
justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the
officer or humiliate the inmate.” Crawford v. Cuomo, 796 F.3d 252, 257-58 (2d Cir. 2015). As the
Second Circuit has explained, “even an officer who is meticulous in conducting a search does not
violate an inmate’s constitutional rights as long as the officer had no intention of humiliating the
inmate or deriving sexual arousal or gratification from the contact.” /d. at 258.
Defendants argue that “Plaintiff cannot adduce any admissible evidence showing that such
touching was intended to humiliate Plaintiff or gratify CO Thomas.” (Defs. Br. at 24). The Court
disagrees. The Second Circuit recognized, in Delee v. Hannigan, 729 F. App’x 25, 30 (2d Cir.
2018), that “intent may be inferred from statements made by a corrections officer, from the use of
demeaning sexualized remarks, from the timing of an assault, or from a lack of any legitimate law
enforcement or penological purpose for the defendant’s alleged conduct.” (citation modified).
Here, a reasonable jury could infer Defendant Thomas’s subjective intent to humiliate and
harass Plaintiff given the “lack of any legitimate law enforcement or penological purpose for the
defendant’s alleged conduct.” /d. at 30. As discussed supra regarding Plaintiffs Fourth
Amendment claim, there are material issues of fact whether there was a legitimate,
penological purpose for searching Plaintiff. Cf Russell, 170 F.4th at 97 (“No search for contraband
could require grabbing, squeezing, and twisting [the plaintiff’s] penis.”); see also DeJesus v.
Malloy, 531 F. Supp. 3d 650, 664 (W.D.N.Y. 2021) (“[T]he evidence presented by Plaintiff
supports the conclusion that Defendant engaged in this behavior to humiliate Plaintiff and cause
him pain” where the defendant “reach[ed] inside Plaintiff’s pants and painfully grabb[ed] his
genitalia... .”).
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Accordingly, Defendants’ motion for summary judgment is denied as to Plaintiff’s sexual
abuse claim against Defendant Thomas.
IV. Fourth Amendment and Sexual Abuse Claims Against Defendants Edwards and Banks
It is undisputed that Defendants Edwards and Banks did not directly participate in the
challenged search of Plaintiff. (56.1 Stmt. ¶¶ 37-38). Thus, in the absence of their direct
participation, the only possible theory of liability on Plaintiff’s Fourth Amendment and sexual
abuse claims against these Defendants is necessarily one for failure to intervene. The Court finds
that this theory survives summary judgment only as to the Fourth Amendment claim against
Defendant Banks.
“[A]ll law enforcement officials have an affirmative duty to intervene to protect the
constitutional rights of citizens from infringement by other law enforcement officers in their
presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). “Prison officials can be held liable
under § 1983 for failing to intervene in a situation where another official is violating an inmate’s
constitutional rights, including the use of excessive force, in their presence.” Casanova v.
Maldonado, No. 17-CV-01466, 2021 WL 3621686, at *6 (S.D.N.Y. Aug. 16, 2021) (citation
modified) (quoting Edwards v. Daniels, No. 17-CV-05018, 2020 WL 0357412, at *2 (S.D.N.Y.
June 9, 2020)).
“Failure to intercede results in liability where an officer observes excessive force is being
used or has reason to know that it will be.” Wilkerson, 461 F. App’x at 21 (quoting Curley v. Village
of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)). “An officer may be liable for failure to intervene under
Section 1983 where (1) the officer had a realistic opportunity to intervene and prevent the harm;
(2)a reasonable person in the officer’s position would know that the victim’s constitutional rights
were being violated; and (3) the officer does not take reasonable steps to intervene.” Werkheiser v.
Cnty. of Broome, 655 F. Supp. 3d 88, 108 (N.D.N.Y. 2023) (citation modified) (quoting Gerasimou
v.Cillis, No. 15-CV-06982, 2022 WL 118748, at *5 (E.D.N.Y. Jan. 12, 2022)). “Whether an officer
had sufficient time to intercede or was capable of preventing the harm being caused by another
officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could
not possibly conclude otherwise.” Anderson, 17 F.3d at 557. Moreover, a “failure to intervene
claim is contingent upon the disposition of the primary claims underlying the failure to intervene
claim.” Matthews v. City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012).
Defendants, with respect to Defendant Edwards, have submitted uncontroverted evidence
that he was not even present for the search of Plaintiff, including the alleged sexual assault. (56.1
Stmt. ¶ 38). Accordingly, Defendants’ motion for summary judgment as to the sexual assault claim
against Defendant Edwards is granted. Accord Myers v. Stasiak, No. 06-CV-00607, 2009 WL
10739625, at *18 (S.D.N.Y. Sept. 18, 2009) (granting summary judgment for failure-to-intervene
claim where the defendants “were not even present to witness the alleged constitutional
violation.”). For this same reason, the Court also dismisses Plaintiff’s Fourth Amendment claim as
against Defendant Edwards pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Defendants, with respect to Defendant Banks, argue that, although he was present for the
alleged sexual assault, he did not have “a ‘realistic opportunity to intervene and prevent the
harm[.]’” (Defs. Br. at 23 (alteration in original) (quoting Jean-Laurent v. Wilkinson, 540 F. Supp.
2d 501, 512 (S.D.N.Y. 2008)). Plaintiff stated in his deposition that the alleged sexual assault
“wasn’t that long . . . .” (Pl. Dep. Tr. at 89:3-6). Further, according to Plaintiff, Defendant Thomas
grabbed Plaintiff’s privates while reaching under his clothes. (Id. at 88:3-23). Therefore, there is
no evidence that Defendant Banks even knew that Defendant Thomas sexually assaulted Plaintiff.
Based on the foregoing, the Court agrees with Defendants that Defendant Banks did not have a
realistic opportunity to intervene in the alleged sexual assault of Plaintiff. See, e.g., Thomas v.
Jacobs, No. 19-CV-06554, 2025 WL 662899, at *11 n.19 (S.D.N.Y. Feb. 28, 2025) (“Assuming
[the defendant] digitally penetrated Plaintiff for a few seconds, there is no way anybody else had
a reasonable opportunity to intervene.”). Accordingly, Defendants’ motion for summary judgment
is granted as to Plaintiff’s sexual assault claim against Defendant Banks.
The same cannot be said for Plaintiff’s Fourth Amendment claim against Defendant Banks.
According to Plaintiff, Defendant Thomas pushed him against the wall, choked him with his own
sweatshirt, and then conducted a pat frisk of Plaintiff, which included reaching into Plaintiff’s
pants. (Pl. Dep. Tr. at 48:10-16). Defendants make no argument regarding this claim and, based on
Plaintiff’s deposition testimony, the search was sufficient in length such that Defendant Banks had
a realistic opportunity to intervene. See, e.g., Harris v. City of Newburgh, No. 16-CV-02731, 2017
WL 4334141, at *9 (S.D.N.Y. Sept. 27, 2017) (“[It] is implausible that these numerous actions
occurred in such quick succession as to preclude an opportunity for intervention.”).
Accordingly, Defendants’ motion for summary judgment is granted as to Plaintiff’s sexual
abuse claim against Defendants Edwards and Banks. Plaintiff’s Fourth Amendment claim is also
dismissed as against Defendant Edwards pursuant to U.S.C. § 1915(e)(2)(B)(ii). Plaintiff’s Fourth
Amendment claim will, however, proceed against Defendant Banks.
V. Qualified Immunity
Defendants also argue that they are entitled to qualified immunity as to Plaintiff’s sexual
abuse claim. (Def. Br. at 27-28). Having already dismissed this claim as against Defendants
Edwards and Banks, the Court addresses only whether Defendant Thomas is entitled to qualified
immunity for Plaintiff’s sexual abuse claim.
The doctrine of qualified immunity protects officials from liability for civil damages when,
“(a) the defendant’s action did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not violate such law.” Garcia v. Doe,
779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir.
2007)). “A Government official’s conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Almighty Supreme Born Allah v.
Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
The contours of a right are sufficiently clear if there is a case in which “‘an officer acting under
similar circumstances . . . was held to have violated’ the Constitution.” Zorn v. Linton, 146 S. Ct.
926, 930 (2026) (per curiam) (quoting Escondido v. Emmons, 586 U.S. 38, 43 (2019)). In other
words, if an official “could have ‘read’ the relevant precedent beforehand and ‘know[n]’ that it
proscribed their specific conduct,” then they are not entitled to qualified immunity.” Id. (quoting
City and County of San Francisco v. Sheehan, 575 U.S. 600, 616 (2015)). If an official’s belief that
his or her action does not violate clearly established law is “objectively reasonable,” he or she is
shielded from liability by qualified immunity. Cooper v. City of New Rochelle, 925 F. Supp. 2d
588, 608 (S.D.N.Y. 2013).
Here, viewing the evidence in the light most favorable to Plaintiff, Defendant Thomas’
actions did violate clearly established law, and it was not objectively reasonable for Defendant
Thomas to believe that his actions did not violate such law. As other cases have held, there is no
legitimate, penological purpose for grabbing and squeezing an inmate’s privates, particularly under
the circumstances here where there are issues of fact regarding Defendants’ belief that Plaintiff
possessed a weapon. See, e.g., Hayes v. Dahlke, 976 F.3d 259, 275 (2d Cir. 2020) (“[T]he routine
nature of . . . pat frisks alone does not shield an officer from liability, and the conduct described
by [the plaintiff], if believed, could certainly support an inference that [the defendant] engaged in
conduct beyond what was required for a pat search in order to ‘gratify [his] sexual desire’ or
‘humiliate’ [the plaintiff].”); DeJesus, 531 F. Supp. 3d at 665-66 (granting summary judgment to
plaintiff on sexual abuse claim where the defendant “reach[ed] inside Plaintiff’s pants and
painfully grabb[ed] his genitalia . . . .”); Lewis v. Fischer, No. 08-CV-03027, 2009 WL 689803, at
*5 (E.D.N.Y. Mar. 12, 2009) (denying motion to dismiss sexual abuse claim where the defendant
allegedly “reached inside [the plaintiff’s] pants and fondled his penis and squeezed his testicles
causing him severe pain and humiliation in the presence of others.”).
Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s sexual abuse
claim based on the affirmative defense of qualified immunity is denied.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART.
Plaintiff’s Eighth Amendment sexual abuse claim is dismissed as against Defendants
Edwards and Banks. Plaintiff’s Fourth Amendment claim is dismissed as against Defendant
Edwards. This case will proceed to trial on the following claims: (1) unlawful search pursuant to
the Fourth Amendment against Defendants Thomas and Banks; (2) sexual abuse pursuant to the
Eighth Amendment against Defendant Thomas; and (3) excessive force pursuant to the Eighth
Amendment against all Defendants. The parties shall file those materials required by Rules 6(A)
and 6(B) of this Court’s Individual Practices on or before August 31, 2026.
Furthermore, Plaintiff is directed to notify the Court in writing of his current address within
fourteen days of the date of this Opinion & Order. Plaintiff is reminded that it is his obligation to
promptly submit a written notification to the Court if his address changes, and the Court may
dismiss the action if Plaintiff fails to do so.
The Clerk of Court is respectfully requested to terminate the motion sequence pending at
Doc. 97 and mail a copy of this Opinion and Order to Plaintiff at his address listed on the docket,
and to the following address: 25 Operations Drive, Valhalla, NY 10595.
SO ORDERED.
Dated: White Plains, New York
July 9, 2026
“HON.PHILIPM.HALPERN ss
United States District Judge
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