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January 7, 1997

RICHIE SHOW, ROBERT JOHNSON, JOHN HARRIS and SALADEEN MALIK, Plaintiffs, against FRANCIS PATTERSON, Warden; CAPTAIN WHITEHEAD; CAPTAIN SIMON; and CAPTAIN HURREY # 449, Defendants. ROBERT JOHNSON # 361-91-00390; RICHIE SHOW # 141-92-01593; JOHN HARRIS # 349-92-01238; SALADEEN MALIK # 441-91-12496, Plaintiffs, -against- FRANCIS PATTERSON, Warden-George R. Vierno Center; CAPTAIN WHITEHEAD; CAPTAIN SIMON; CAPTAIN HURREY Shield # 449, Defendants.

The opinion of the court was delivered by: KRAM


 In this prisoners' civil rights action, defendants Francis M. Patterson ("Warden Patterson"), Captain Raymond Whitehead ("Captain Whitehead"), Captain Ronny Simon ("Captain Simon"), and Captain Ronald Hurrey ("Captain Hurrey") move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that no genuine issues of material fact exist. For the reasons set forth below, defendants' motion is granted in part and denied in part.


 On or about June 15, 1992, at approximately 5:00 p.m., plaintiffs Richard Shaw ("Shaw"), *fn1" Robert Johnson ("Johnson"), John Harris ("Harris") and Saladeen Malik ("Malik") were present in the mess hall at the Department of Correction's George R. Vierno Center on Rikers Island. At this time, a prison disturbance began as a result of a verbal confrontation between Captain Whitehead and an inmate not a party to the present litigation. Captain Whitehead had directed the disruptive inmate to leave the mess hall and then to place his hands on the wall for a frisk. Use of Force Report by Captain Whitehead, dated June 15, 1992, annexed to the Declaration of Deanna Waldron, sworn to Jan. 16, 1996 (the "Waldron Decl."), as Exh. "4," at PP 4-6. According to Captain Whitehead, when he attempted to handcuff the inmate, the inmate unexpectedly turned around, grabbed him by the waist, lifted him into the air and threw him onto the floor. Id. Captain Whitehead claims that the inmate then began punching him in the head and verbally threatened to kill him. Id. Other officers quickly came to Captain Whitehead's assistance and successfully subdued and handcuffed the inmate. Id. The disturbance escalated when a second inmate assaulted another officer, and a large group of inmates rushed toward the mess hall doors. Use of Force Report by Officer Mooney, dated June 16, 1992, annexed to the Waldron Decl. as Exh. "4," at P 4; Deposition of Richard Shaw, taken Nov. 8, 1994 (the "Shaw Dep."), annexed to the Waldron Decl. as Exh. "Dep.," at 15-16. Once the inmates forced open the mess hall doors, a violent altercation ensued between several inmates and officers. Id.

 At this time, plaintiffs and other inmates from their housing area were ordered to. exit the mess hall and were detained in the corridor while members of the "Probe Team" (or riot squad) responded to the disturbance. Subsequently, plaintiffs and approximately forty other inmates were taken to an intake area where Captain Hurrey, one of approximately fifteen officers present, ordered them to remove their clothes. Shaw Dep. at 38. Plaintiffs claim that they asked Captain Hurrey to take them to a separate area, as officials had done on other occasions, in light of their Muslim principles. *fn2" Deposition of John Harris, taken Dec. 5, 1994 (the "Harris Dep."), annexed to the Waldron Decl. as Exh. "Dep.," at 72. According to plaintiffs, Captain Hurrey ignored this request. See Complaint in 92 Civ. 7089, at 3. In addition, plaintiffs claim that the riot squad, equipped with riot gear, was standing nearby and that Captain Hurrey and other prison officials made threatening comments about the consequences of non-compliance. Id. For example, Johnson claims that one captain stated that if the inmates did not comply with their orders, the officers "would try their best to kill [the inmates]." Deposition of Robert Johnson, taken Dec. 6, 1994 (the "Johnson Dep."), annexed to the Waldron Decl. as Exh. "Dep.," at 47.

 According to Shaw, the inmates were forced to stand naked in the cell for approximately one half hour. Shaw Dep. at 42. Moreover, plaintiffs claim that none of the officers used the word "search" and that no visual inspection or cavity search was ever conducted. Id. ; Johnson Dep. at 47. Rather, plaintiffs claim that they were simply ordered to strip and go into a small cell and stand "heel to heel." Id. at 41-42. *fn3" As a result of the size of the cell and the number of inmates involved in the search, plaintiffs assert that the inmates' "'private parts' were touching one another." Complaint in 92 Civ. 7089, at 3. Plaintiffs claim that the only "search" the officers conducted consisted of shuffling the inmates' clothes, which were in a pile in the center of the cell. Harris Dep. at 70-71; Johnson Dep. at 49. Moreover, according to Johnson, the officers were not actually searching for contraband when they were kicking the inmates' clothes around on the floor. Id. In addition, Johnson claims that while the prisoners were taking off their clothes, the guards were standing on the other side of the gate, laughing and calling the prisoners names. Johnson Dep. at 48. According to plaintiffs, the purpose of the "search" was to humiliate the inmates, rather than to inspect them for contraband, as evidenced by the fact that unlike in other strip searches, the inmates were not asked to lift their feet, open their mouths or squat down. Harris Dep. at 72; Johnson Dep. at 47; Malik Dep. at 51.

 According to Johnson, when he and the other inmates from his housing unit were ordered to leave the mess hall, the riot squad ordered them to put their faces against the wall. Johnson Dep. at 18, 23. At this time, Johnson claims that the riot squad, dressed in riot gear and armed with "blackjack" sticks, began to use force against the inmates. Id. at 24. Specifically, Johnson claims that he was thrown against the wall by Captain Simon, see Complaint in 92 Civ. 7310, at 3, and then hit four or five times in the back and shoulder with a blackjack by an unknown member of the riot squad, id. ; Johnson Dep. at 24. Similarly, Malik recalled seeing Captain Simon push Johnson in the "pit of his back" with his hands. Malik Dep. at 38. Malik further stated that Captain Simon did not have a stick, and that Captain Simon pushed Johnson after Johnson had started to turn around from the wall to ask whether "all this [was] necessary." Id. at 39.

 As a result of this physical force, Johnson claims that he sustained shoulder and lower back injury, though he was not given medical attention until three days after the incident. Id. at 4. *fn4" The doctor who performed the examination noted that Johnson complained of pain to his shoulder, back and chest. Investigative Supervisor's Report, dated June 26, 1992, annexed to the Waldron Decl. as Exh. "5." Although the doctor noted that there was no evidence of swelling or bruises, he marked that Johnson exhibited "tenderness in palpation of left scapulse [sic]." Id. Johnson was treated with an analgesic balm and Ibuprofen. Id.

 On or about September 30, 1992, plaintiffs commenced the present action pursuant to 28 U.S.C. § 1983, alleging that the strip search violated their First Amendment right to practice their Muslim religious beliefs, their Fourth Amendment right to privacy, and their Eighth Amendment right to be free from cruel and unusual punishment. In addition, plaintiffs assert a free exercise claim pursuant to the Religious Freedom Restoration Act. On or about October 8, 1992, plaintiffs commenced a second action, entitled Johnson, et al. v. Patterson, 92 Civ. 7310 (KTD), in which they alleged virtually identical claims against the same defendants, as well as a claim that Captain Simon used excessive force against Johnson. By Order of this Court dated August 3, 1994, the two actions were consolidated, pursuant to Federal Rule of Civil Procedure 42(b).


 I. Standard of Law

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing to an absence of evidence in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The nonmoving party must then come forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial," Celotex Corp. v. Catrett, 477 U.S. at 322.

 The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). But the Court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50; Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the nonmoving party has met his or her burden, the Court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion, see, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12. In sum, if the Court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1969)).

 II. Lack of Personal Involvement

 Section 1983 imposes liability on any person who, acting pursuant to state government authority or under color of state law, abridges "rights, privileges, or immunities secured by the Constitution and laws . . . ." 42 U.S.C. § 1983. However, a defendant may be liable under Section 1983 only if he was personally involved in the alleged constitutional violation. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Respondeat superior is not a valid basis for Section 1983 liability and cannot be used as a substitute for personal involvement. Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 660-67, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). There are four ways in which a defendant may be personally involved in a Section 1983 violation: (1) by participating directly in the deprivation; (2) by failing to remedy the wrong after learning of the violation through a report or ...

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