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United States District Court, W.D. New York

March 30, 2004.

RONALD DAVIDSON (76-A-1166), Plaintiff,

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.



  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.

  B. Facts

  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, ¶¶ 35-39.)

  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, 66-67.)

  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 accordingly.

  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 claims.

  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 Amendments.

  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. amend. IV.

  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., ¶ 5.)

  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 granted.*fn7

  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 Eighth Amendment.
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 inference.'"
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 strip frisked.

  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 scheduled.

  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 and/or
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 dismissed.*fn9

  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 retaliation claim.

  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 case.


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