United States District Court, W.D. New York
March 30, 2004.
RONALD DAVIDSON (76-A-1166), Plaintiff,
ROBERT KYLE, JAMES SNYDER, K. WILES, KEITH WHITE, POWELL, BECK and JOHN DOES 26-100,[fn1] Defendants.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
*fn1 Plaintiff has not identified John Does 26-100, nor has he
set forth any reasons why they should not be dismissed. Plaintiff
contends that he has inquired into the identify of the John Does,
but that his inquiries remain unanswered. Nevertheless, because
John Does 26-100 are alleged to have engaged in conduct similar
to either those defendants who have been dismissed or the named
Defendants who are parties to this motion, this Court will
dismiss Plaintiff's claims against John Does 26-100.
DECISION AND ORDER
Plaintiff Ronald Davidson filed this pro se action pursuant
to 42 U.S.C. § 1983 and 1985 alleging that Defendants violated
his constitutional rights by strip frisking him on several
occasions while he was an inmate in the custody of the New York
State Department of Correctional Services ("DOCS"). Presently
before this Court is Defendants' Motion for Summary Judgment,
filed on April 30, 2003.*fn2 This Court has reviewed and
considered the motion papers and finds that oral argument is
unnecessary. For the following reasons, Defendants' Motion for
Summary Judgment is granted in its entirety. II. BACKGROUND
A. Procedural History
Plaintiff filed his Complaint on July 10, 2001, and it was
entered on the docket on October 10, 2001.*fn3 The Complaint
names 15 individual defendants and 100 John Doe defendants (John
Does 1-26 and John Does 26-100). Because Plaintiff was initially
granted in forma pauperis status,*fn4 his Complaint was
screened by the Honorable John T. Elfvin, Senior United States
District Judge, pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(a).
On November 9, 2001, Judge Elfvin filed a Memorandum and Order
dismissing several of Plaintiff's claims for failure to state a
claim upon which relief could be granted. Specifically, Judge
Elfvin (1) dismissed Plaintiff's claims under 42 U.S.C. § 1985,
(2) dismissed Plaintiff's claims related to strip frisks and
strip searches conducted at the Auburn Correctional Facility as
untimely, and (3) dismissed Plaintiff's § 1983 claims against
several defendants for failure to allege the defendants' personal
involvement in the complained-of acts. What remains are Plaintiff's § 1983 claims against the
defendants listed in the caption related to strip frisks
conducted on Plaintiff while he was an inmate at the Wende
Correctional Facility ("Wende"). The facts underlying those
claims are discussed below.
Unless otherwise noted, the following facts are not in dispute.
At all times relevant, Plaintiff was an inmate in the custody of
the DOCS residing at Wende. (Defendants' Rule 56 Statement of
Undisputed Facts ("Defendants' Statement"), ¶ 1.) Defendants
Robert Kyle, James Snyder, Keith White, Emmanuel Powell, Kevin
Wiles and Arthur Beck were at all times relevant employed by DOCS
as corrections officers at Wende. (Defendants' Statement, ¶ 5.)
On September 11, 1998, Plaintiff was strip frisked at Wende by
Defendant Kyle at the direction of the Acting Deputy
Superintendent prior to Plaintiff being transported for an
outside medical trip. (Defendants' Statement, ¶ 9; Complaint, ¶¶
On September 29, 1998, Plaintiff was again scheduled for an
outside medical trip. (Defendants' Statement, ¶ 10; Complaint, ¶
44.) As per the facility's procedure, Plaintiff's escort
officers, Defendants Snyder and White, were ordered to strip
frisk Plaintiff prior to departing the facility. (Defendants'
Statement, ¶ 10.) On this occasion, Plaintiff refused to submit
to the strip frisk. (Defendants' Statement, ¶ 10; Complaint, ¶
47.) Consequently, Plaintiff's outside medical trip was cancelled
and Plaintiff was not strip frisked. (Defendants' Statement, ¶
10; Complaint, ¶ 48.)
On November 12, 1998, at the direction of the Deputy
Superintendent, Plaintiff was strip frisked at Wende by Defendant
Snyder prior to being transported for an outside medical trip. (Defendants' Statement, ¶ 11; Complaint, ¶¶ 64,
Plaintiff further alleges that on November 19, 1998, he was
scheduled for an outside medical trip, and was advised by
Defendants Powell and Beck that he would be stripped frisked
prior to leaving the facility. (Complaint, ¶¶ 71-74.) Plaintiff
refused to submit to the strip frisk and his outside medical trip
was cancelled. (Complaint, ¶¶ 75-76.) Defendants assert that
Defendant Beck was on vacation on November 19, 1998. (Defendants'
Statement, ¶ 12.) Plaintiff contends that whether Defendant Beck
was present on November 19, 1998, is a disputed fact, and that
this incident could have occurred on a different date.*fn5
(Plaintiff's Response to Defendants' Statement.)
All strip frisks conducted on Plaintiff were performed in
compliance with DOCS policy and as ordered by the Deputy
Superintendent of Security. (Defendants' Statement, ¶ 13.) On
those occasions when Plaintiff refused to submit to the strip
frisk, he was not permitted to leave the facility. (Defendants'
Statement, ¶ 13.) Corrections officers assigned to escort inmates
leaving Wende did not have discretion as to whether to conduct a
strip frisk of the departing inmate. (Defendants' Statement, ¶
14; Powell Dec., ¶ 4; Snyder Dec., ¶ 4; White Dec., ¶ 4; Kyle
Dec., ¶ 4; Wiles Dec., ¶ 4.) Rather, corrections officers were
required to complete the strip frisk as ordered by the Deputy
Superintendent of Security. (Defendants' Statement, ¶ 14.) III. DISCUSSION
Cognizant of the distinct disadvantage that pro se litigants
face, federal courts routinely read their submissions liberally,
and interpret them to raise the strongest arguments that they
suggest. See Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994). As Plaintiff is proceeding pro se,
this Court has considered his submissions and arguments
Plaintiff alleges that the strip frisks performed on September
11 and November 12, 1998, and those attempted on September 29 and
November 19, 1998, were violative of his rights under the Fourth,
Eighth and Fourteenth Amendments, and were performed in
contravention of the consent decree entered on July 21, 1983, in
the Southern District of New York in Hurley v. Coughlin,
77-CV-3847. This Court notes that Plaintiff does not allege that
the manner in which the strip frisks were conducted was in
violation of any of his rights, but solely complains of the fact
that the strip frisks were conducted or attempted. Defendants
have moved for summary judgment on each of Plaintiff's remaining
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that
summary judgment is warranted 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
judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine
issue" exists "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Ford v.
Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). A fact is "material"
if it "might affect the outcome of the suit under governing law."
Anderson, 477 U.S. at 248. In a case where the non-moving party
bears the ultimate burden of proof at trial, the movant may
satisfy its burden by pointing to the absence of evidence
supporting an essential element of the non-moving party's claim.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 So.
Ct. 2548, 91 L.Ed.2d 265 (1986).
At this stage, the function of the court is not "to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Anderson, 477 U.S.
at 249. Thus, summary judgment is not appropriate if "there is
any evidence in the record that could reasonably support a jury's
verdict for the non-moving party." Ford, 316 F.3d at 354.
When deciding a motion for summary judgment, a court must view
the evidence and the inferences drawn from the evidence "in the
light most favorable to the party opposing the motion." Addickes
v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598,
1609, 26 L.Ed.2d 142 (1970). However, the party against whom
summary judgment is sought "must do more than simply show that
there is some metaphysical doubt as to the material facts. . . .
[T]he nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial." Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). "Only when
reasonable minds could not differ as to the import of evidence is
summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982
(2d Cir. 1991). B. § 1983 Claims
Civil liability is imposed under 42 U.S.C. § 1983 only upon
persons who, acting under color of state law, deprive an
individual of rights, privileges, or immunities secured by the
Constitution and laws. See 42 U.S.C. § 1983. On its own, § 1983
does not provide a source of substantive rights, but rather, a
method for vindicating federal rights conferred elsewhere in the
federal statutes and Constitution. See Graham v. Connor,
490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989)
(quoting Baker v. McCollan, 443 U.S. 137, 145 n. 3,
99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979)). Accordingly, as a threshold
matter in reviewing claims brought pursuant to § 1983, it is
necessary to precisely identify the constitutional violations
alleged. See Baker, 443 U.S. at 140. Here, Plaintiff's § 1983
claims are grounded in the Fourth, Eighth and Fourteenth
1. Fourth and Fourteenth Amendment Claims
The Fourth Amendment to the United States Constitution is
applicable to the States by way of the Fourteenth Amendment.
Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130,
2135, 124 L.Ed.2d 334 (1993). It protects "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures." U.S. Const.
This fundamental protection is not lost by inmates merely as a
consequence of their incarceration. See Hudson v. Palmer,
468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984)
(prisoners retain rights that are not fundamentally inconsistent
with imprisonment or incompatible with the objectives of
incarceration). In particular, in the context of body searches,
the Second Circuit has recognized that inmates retain a limited expectation of bodily privacy. Covino v. Patrissi, 967 F.2d 73,
78 (2d Cir. 1992) ("we have little doubt that society is prepared
to recognize as reasonable the retention of a limited right to
bodily privacy even in the prison context"). Strip frisks have
been examined many times over, and have been found to pass
constitutional muster so long as the search is reasonable and not
conducted in an abusive manner. See Shabazz v. Pico,
994 F. Supp. 460, 473 (S.D.N.Y. 1998) (citing cases).
For example, in Bell v. Wolfish, 441 U.S. 520, 558-560,
99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), the Supreme Court
examined the use of body cavity searches after inmates had
"contact visits" with persons from outside the facility. Noting
that these types of searches gave the Court "pause," the Court
nonetheless found that the searches did not violate the Fourth
Amendment because they were reasonable and not conducted in an
abusive manner. Bell, 441 U.S. at 558. The Bell opinion is
driven, in part, by the Court's recognition that "[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." Id. at 559. Therefore, while Bell
does not stand for the proposition that body cavity searches are
always constitutional, it is clear that such searches are
constitutional if they are reasonably related to a legitimate
penological goal and are conducted in a reasonable manner.
Frazier v. Ward, 528 F. Supp. 80, 81 (N.D.N.Y. 1981); Duamutef
v. Leonardo, No. 91-CV-1100, 1993 WL 428509, at *3 (N.D.N.Y.
Oct. 22, 1993).
Turning to the record in this case, this Court finds that the
strip frisks at issue did not violate Plaintiff's Fourth
Amendment right to be free from unreasonable search and seizure.*fn6 Given the undisputed facts, this Court finds
that no reasonable fact-finder could reach a conclusion other
than that the searches were related to a significant and
legitimate penological goal (i.e., detection and interception
of contraband), and were carried out in a reasonable, non-abusive
manner. See Bryant, 923 F.2d at 982 (summary judgment is
appropriate when reasonable minds could not differ as to the
import of the evidence).
The legitimate penological goal identified by the Court in
Bell is equally applicable here: prisons are dangerous places
and the safety of both the inmates and the prison staff is served
by detecting and intercepting contraband flowing in and out of
the facility. While a strip frisk is undoubtedly a violation of
one's bodily integrity, the balance of interests often requires
that "a prisoner's Fourth Amendment privacy rights must yield to
the governmental interest in preventing contraband from entering
the prisons." Duamutef, 1993 WL 428509, at *2.
As to the reasonableness of the strip frisks that Plaintiff
complains of, this Court notes that the undisputed facts
demonstrate that the strip frisks conducted by Defendants were in
compliance with Wende's policies and procedures, and were
performed at the direction of the Deputy Superintendent.
(Defendants' Statement, ¶ 13.) The procedure at Wende provided
that when an inmate was scheduled for an outside hospital trip,
an itinerary was generated by the medical unit and forwarded to
the office of the Deputy Superintendent of Security for review.
(Skinner Dec., ¶ 4.) It was then the Deputy Superintendent of
Security's responsibility to determine whether a strip search or
frisk was to be conducted on the inmate. (Skinner Dec., ¶ 4.) If a strip
frisk was ordered, Form 1140 "Report of Strip Search or Strip
Frisk" was generated. (Skinner Dec., ¶ 5.) Reasons justifying an
order for a strip frisk included probable cause to believe the
inmate was concealing contraband, a history of being an escape
risk, and/or when an inmate had notice of the date of a trip.
(Skinner Dec., ¶ 4.)
In the case of outside medical trips, an escort officer was
required to perform the strip search or strip frisk as directed
on the Form 1140 prior to taking the inmate out of the facility.
(Skinner Dec., ¶ 5.) Once the search or frisk was completed, the
officer signed the form and noted the results of the search.
(Skinner Dec., ¶ 5.) If an inmate refused to submit to a strip
search or strip frisk as directed, the outside trip would be
cancelled and a Form 1140 would not be completed. (Skinner Dec.,
In Plaintiff's case, Form 1140 was generated for his outside
medical trips of September 11, 1998, and November 12, 1998.
(Skinner Dec., Exhibits A and B.) The reason stated on the Form
for ordering the strip frisk on September 11, 1998, was: "History
of Escape: 7-31-74 from O/S Hospital, while on medical trip; 7/84
was in possession of hacksaw blades & U.S. currency." (Skinner
Dec., Exhibit A). Similarly, the reason stated for the ordering
of the November 12, 1998 strip frisk was: "Inmate escaped 7-31-74
from St. Francis Hospital while on medical trip from Mattewan
State Hospital. 7/84 inmate in possession of 3 hacksaw blades
$71 dollars while at MCC." (Skinner Dec., Exhibit B.)
Plaintiff does not contend that the strip frisks of September
11, 1998, and November 12, 1998, were conducted in an abusive
manner. Indeed, the 1140 forms relating to the strip frisks note
that force was not required to complete the frisks, and that no
contraband was found. (Skinner Dec., Exhibits A and B.) The basis of
Plaintiff's opposition to Defendants' summary judgment motion
rests upon his contention that the information used to justify
the ordering of the strip frisks was false. He denies having a
"history of escape" and possessing hacksaw blades and money.
However, Defendants are not the individuals who ordered the strip
frisks. Defendants are those corrections officers that carried
out or intended to carry out the strip frisks as directed by the
Deputy Superintendent and as reflected on the 1140 forms. There
are no allegations in the Complaint that the 1140 forms were
facially invalid, and there is no information in the record to
suggest that Defendants had any reason to doubt the validity of
the strip frisk orders. Moreover, it is undisputed that
Defendants did not have the discretion to refuse to perform the
strip frisks as directed (other than if Plaintiff refused to
submit to the strip frisk, in which case the trip would be
cancelled). From a practical standpoint, Defendants had no choice
but to carry out the orders they received. See Varrone v.
Bilotti, 123 F.3d 75, 82 (2d Cir. 1997) (upholding qualified
immunity of subordinate officers and noting that
"[r]ealistically, those two officers had no choice but to carry
out the order they received, which was facially valid").
Accordingly, based on the undisputed facts of this case and the
relevant legal authority, this Court finds that the strip frisks
conducted by Defendants on Plaintiff did not violate the Fourth
Amendment because they were reasonably related to a legitimate
penological goal and were conducted in a reasonable, non-abusive
manner. Bell, 441 U.S. at 558. Moreover, even if it were found
that Plaintiff suffered a violation of his constitutional rights
under the Fourth Amendment, Defendants are nonetheless entitled
to qualified immunity. See Varrone, 123 F.3d at 81-82
(holding that subordinate prison officers who executed a facially valid order to perform a strip
search were entitled to qualified immunity even though they did
not independently investigate the basis and reason for the
order). Defendants' Motion for Summary Judgment on Plaintiff's
Fourth and Fourteenth Amendment Claims is therefore
2. Eighth and Fourteenth Amendment Claims
The Eighth Amendment to the United States Constitution applies
to the States through the Fourteenth Amendment, and "prohibits
the infliction of `cruel and unusual punishments' on those
convicted of crimes." Wilson v. Seiter, 501 U.S. 294, 297,
11 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991); U.S. Const. amend.
VIII. As such, prison conditions and the treatment prisoners
receive while incarcerated are subject to scrutiny under the
Eighth Amendment. See DeShaney v. Winnebago County Dept. of
Social Svcs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005-1006,
103 L.Ed.2d 249 (1989). In addition, the Supreme Court has
recognized that a prisoner's claim that he was intentionally
denied medical treatment is cognizable under the Eighth Amendment
and 42 U.S.C. § 1983: We therefore conclude that deliberate indifference to
serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed
by the Eighth Amendment. This is true whether the
indifference is manifested by prison doctors in their
response to the prisoner's needs or by prison guards
in intentionally denying or delaying access to
medical care or intentionally interfering with the
treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner's
serious illness or injury states a cause of action
under § 1983.
. . .
In order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical
needs. It is only such indifference that can offend
evolving standards of decency in violation of the
Estelle v. Gamble, 429 U.S. 97
, 104, 106, 97 S.Ct. 285, 291,
292, 50 L.Ed.2d 25 (1976) (quotations and citations omitted).
"A claim of cruel and unusual punishment in violation of the
Eighth Amendment has two components one subjective, focusing on
the defendant's motive for his conduct, and the other objective,
focusing on the conduct's effect." Sims v. Artuz, 230 F.3d 14,
20 (2d Cir. 2000) (citing Hudson v. McMillian, 503 U.S. 1, 7-8,
112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992); Blyden v. Mancusi,
186 F.3d 252, 262 (2d Cir. 1999)).
The subjective component "requires a showing that the defendant
"had the necessary level of culpability, shown by actions
characterized by `wantonness' in light of the particular
circumstances surrounding the challenged conduct." Sims, 230
F.3d at 21 (citations omitted). The objective component is
"contextual and responsive to contemporary standards of decency."
Id. (quoting Hudson, 503 U.S. at 8).
With respect to a claim that the conditions of confinement
violated a prisoner's Eighth Amendment rights, "a prisoner must show `extreme
deprivations,' `[b]ecause routine discomfort is `part of the
penalty that criminal offenders pay for their offenses against
society.'" Sims, 230 F.3d at 21 (quoting Hudson, 503 U.S. at
9); see also Blyden, 186 F.3d at 263 (holding that
"[b]ecause society does not expect or intend prison conditions to
be comfortable, only extreme deprivations are sufficient to
sustain a `conditions-of-confinement' claim."). The plaintiff
must establish a "sufficiently serious deprivation of a basic
human need." Williams v. Goord, 142 F. Supp.2d 416, 425
(S.D.N.Y. 2001) (citing Wilson v. Seiter, 501 U.S. 294, 303-04,
111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991)).
With respect to a claim of deliberate indifference to a serious
medical need, a prisoner must show that he suffered from a
"sufficiently serious" medical condition, see Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), and that the
defendants acted with a "sufficiently culpable state of mind,"
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
"An official acts with the requisite deliberate
indifference when he `knows of and disregards an
excessive risk to inmate health or safety; the
official must be both aware of facts from which the
inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
Brown v. Picarelli, No. 96 Civ. 1222, 2003 WL 1906180, at *6
(S.D.N.Y. Apr. 15, 2003) (quoting Farmer v. Brennan,
511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)).
This Court finds that Plaintiff has not demonstrated the
existence of any genuine issue of fact regarding his Eighth
Amendment claims. First, as for his claim that the strip frisks
violated his Eighth Amendment rights as a condition of his
confinement, this Court notes that it is undisputed that
Plaintiff was not subject to abusive treatment during the course of the strip frisks that were performed. On those
occasions when Plaintiff refused to submit to the strip frisks,
the only consequence was that his medical trip was cancelled. At
no time was Plaintiff forced to submit to the strip frisk
procedure. Conditions of confinement only violate the Eighth
Amendment when "they result `in unquestioned and serious
deprivations of basic human needs' or `deprive inmates of the
minimal civilized measure of life's necessities.'" Anderson v.
Coughlin, 757 F.2d 33, 34-35 (2d Cir. 1985) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59
(1981)). There is simply no evidence that Plaintiff suffered a
serious deprivation of his basic human needs as a result of being
Second, Plaintiff cannot sustain a claim that the cancellation
of his outside medical appointments due to his refusal to submit
to the strip frisks constitutes deliberate indifference to his
medical needs. There is no evidence or allegation that Plaintiff
suffered from a "sufficiently serious" medical condition that
required his attendance at the cancelled medical appointments. In
fact, the two appointments Plaintiff missed were with an
orthopedic specialist (Complaint, ¶ 44) and a dermatologist
(Complaint, ¶ 78). There is no suggestion in the record, let
alone any evidence, that these appointments were related to
treatment for a serious medical condition.
Moreover, Plaintiff cannot demonstrate that Defendants acted
with a sufficiently culpable state of mind to meet the deliberate
indifference standard. See Hathaway, 37 F.3d at 66. The
record demonstrates that the only reason Plaintiff was prevented
from attending his outside medical appointments was because he
refused to submit to the strip frisks. In fact, it is undisputed
that on the occasions when Plaintiff complied with the strip frisk orders, he was taken to his outside medical appointments as
Accordingly, for the reasons stated above, this Court finds
that Defendants are entitled to summary judgment on Plaintiff's
Eighth and Fourteenth Amendment claims.
C. Hurley Consent Decree
Along with alleging that Defendants strip frisked him in
violation of his constitutional rights, Plaintiff also alleges
that Defendants conducted the strip frisks in violation of a
consent decree issued by the Honorable Robert L. Carter, United
States District Judge for the Southern District of New York, in a
class action suit brought by all DOCS inmates challenging the
strip frisk policies in New York State correctional facilities.
See Hurley v. Coughlin, 77-CV-3847 (S.D.N.Y. July 21,
1983).*fn8 In pertinent part, the consent decree provided:
ORDERED, ADJUDGED AND DECREED, that when an inmate is
leaving on a supervised outside trip, an officer may,
in his discretion, strip frisk or strip search the
inmate when it appears that the inmate has:
1. Notice of the date or dates of the trip or trips
2. A history of escape, absconding or attempts
thereof, using contraband, or
3. A history of possession of contraband used or
attempted to be used for the purpose of escape
attempted escape, assault on a correction officer, or
attempted assault on a correction officer.
Hurley, 77-CV-3847, at *7 (S.D.N.Y. July 21, 1983).
The parties have advised this Court that the consent decree was
dissolved by a stipulation approved by the court on June 19, 2001, which was
prior to the commencement of this action. The consent decree,
however, was in place during the events complained of in
Plaintiff's Complaint. Plaintiff suggests that in light of the
fact that the consent decree has been dissolved, contempt
proceedings should be conducted nunc pro tunc. (Plaintiff's
Letter Response to Defendants' Declaration in Reply to
Plaintiff's Sur-Reply, at 2.)
Consent decrees are interpreted according to principles of
contract law. United States v. ITT Cont'l Baking Co.,
420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975). Moreover, "a
consent decree is an order of the court and thus, by its very
nature, vests the court with equitable discretion to enforce the
obligations imposed on the parties." United States v. Local 539,
United Seafood Workers, 55 F.3d 64, 69 (2d Cir. 1995).
Assuming that Plaintiff can state a viable claim under the
consent decree, resolution of Plaintiff's claim (whether
contract-based or in the context of contempt proceedings) would
require examination and interpretation of the decree itself. By
its plain terms, the consent decree provides that Judge Carter
"shall retain jurisdiction to enforce the terms of this decree
and to entertain applications for costs and attorneys' fees."
Hurley, 77-CV-3847, at *7 (S.D.N.Y. July 21, 1983). Moreover,
the Second Circuit has noted that "[f]ew persons are in a better
position to understand the meaning of a consent decree than the
district judge who oversaw and approved it." United Seafood
Workers, 55 F.3d at 68 (quoting Berger v. Heckler,
771 F.2d 1556, 1576 n. 32 (2d Cir. 1985)). Accordingly, due to the
equitable relief Plaintiff requests and the fact that Judge
Carter is intimately familiar with the Hurley litigation, this
Court finds that any claims Plaintiff asserts arising under the
Hurley consent decree are most properly brought before Judge
Carter in the Southern District of New York, not this Court. Cf. Local Number 93,
Int'l. Assoc. of Firefighters, AFL-CIO v. City of Cleveland,
478 U.S. 501, 524 n. 13, 106 S.Ct. 3063, 3076 n. 13, 92 L.Ed.2d 405
(1986) (endorsing the view that benefits of consent decrees
include avoiding relitigation of facts, flexibility of
enforcement procedures available to courts, and channeling of
litigation to a single forum). Plaintiff's claims brought
pursuant to the Hurley consent decree are therefore
D. Retaliation Claim/Motion to Amend
In his sur-reply affidavit, Plaintiff contends that Defendants
performed the strip frisks on him in retaliation for his filing
of grievances and civil rights actions. (Plaintiff's Sur-Reply
Aff., ¶ 7.) Plaintiff's Complaint does not contain any
retaliation allegations or claims. Relying on his status as a
pro se litigant, Plaintiff argues that he should be permitted
to amend his Complaint pursuant to Rule 15 of the Federal Rules
of Civil Procedure.
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,
leave to amend pleadings shall be freely given when justice so
requires. See Livingston v. Piskor, 215 F.R.D. 84, 85
(W.D.N.Y. 2003) (Larimer, J.). Nonetheless, the decision of
whether to grant leave to amend remains within the court's
discretion. John Hancock Mut. Life Ins. Co. v. Amerford Int'l
Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citing Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962));
cf. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.
1993) (court's decision on whether to allow amendment is reviewed
for abuse of discretion). In the context of a pro se Complaint,
the Second Circuit has instructed that a district court should grant leave to amend at
least once when a liberal reading of the Complaint gives any
indication that a valid claim might be stated. Thompson v.
Carter, 284 F.3d 411, 416 (2d Cir. 2002); Branum v. Clark,
927 F.2d 698, 705 (2d Cir. 1991).
The record reveals that Plaintiff has not amended his Complaint
in this case. However, the Second Circuit's directive to allow
pro se litigants the opportunity to amend their Complaint at
least once only applies "when a liberal reading of the Complaint
gives any indication that a valid claim might be stated."
Thompson, 284 F.3d at 416. Here, this Court finds that even a
liberal reading of Plaintiff's Complaint does not suggest a
This Court has closely reviewed Plaintiff's Complaint and has
discovered that nowhere in the Complaint is a retaliation claim
stated or suggested. This is not a case where a Complaint is
confusing, disorganized, poorly pled, or otherwise technically
deficient. While Plaintiff is proceeding pro se, this Court
notes that Plaintiff is a frequent litigator in federal and state
courts, and is well-versed in the federal rules.*fn10
Plaintiff offers no reason for his failure to allege a
retaliation claim in this Complaint or his failure to move to
amend his Complaint earlier in this litigation. What Plaintiff
seeks to do is essentially shift strategy more than two years
into this case and add an entirely new claim in the face of a
summary judgment motion. This Court does not construe the Second
Circuit's directive in Thompson as granting pro se plaintiffs
carte blanche to add new claims at any time during the litigation provided they have not already amended
their Complaint. Cf. Stinson v. Sheriff's Dep't of Sullivan
County, 499 F. Supp. 259, 262 (S.D.N.Y. 1980) (noting that the
liberal standard due pro se pleadings "is not without limits,
and all normal rules of pleading are not absolutely suspended").
Finally, the undisputed facts demonstrate that Defendants
performed the strip frisks on Plaintiff as a result of orders
that they received from their superior officers. Defendants did
not have the discretion to refuse to strip frisk an inmate in the
face of an order to do so. Consequently, Plaintiff would be
unable to establish that Defendants' motivation in strip frisking
him was retaliatory. See Graham v. Henderson, 89 F.3d 75, 79
(2d Cir. 1996) (holding that the plaintiff bears the burden to
demonstrate that his participation in constitutionally protected
conduct was a substantial or motivating factor in prison
officials' actions). Granting leave to amend would therefore be
futile. See Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991).
Accordingly, while this Court is mindful of the Second
Circuit's Thompson decision and the generous reading owed to
pro se pleadings, it does not find that in this case a liberal
reading of Plaintiff's Complaint gives any indication of a valid
retaliation claim. Moreover, this Court finds that amendment of
Plaintiff's Complaint to add a retaliation claim would be futile.
As such, this Court denies Plaintiff's request to amend his
Complaint to add a new claim. Cf. Huszar v. Zeleny,
269 F. Supp.2d 98, 106 (E.D.N.Y. 2003) (denying leave to amend on
futility grounds where even a liberal reading of the complaint
revealed that it was devoid of any viable cause of action). IV. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary
Judgment on Plaintiff's § 1983 causes of action is granted.
Further, Plaintiff's claims against John Does 26-100 and any
claims arising under the Hurley consent decree are dismissed.
IT HEREBY IS ORDERED, that Defendants' Motion for Summary
Judgment (Docket No. 15) is GRANTED.
FURTHER, that Defendants John Does 26-100 are dismissed.
FURTHER, that Plaintiff's claims arising under the Hurley
consent decree are dismissed.
FURTHER, that the Clerk of the Court is directed to close this