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Jolivert v. Riley

December 29, 2005


The opinion of the court was delivered by: Hurley, District Judge


Presently before the Court is the motion by defendants Edward Riley, Sheriff of Nassau County Correctional Center ("Riley"), Correction Officers Evans, John and Jane Does, and all other prison officials and employees of the Nassau County Correctional Center (collectively, "Defendants") for an Order granting summary judgment and dismissing the Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons stated below, the motion is granted and the Amended Complaint is dismissed in its entirety.


The facts of this case are detailed in the Court's prior decisions, dated May 13, 2003, and December 17, 2003, familiarity with which is presumed. Thus, the Court will only state the facts necessary for disposition of the instant motion.

Plaintiff Frankels Jolivert ("Plaintiff") commenced this action pro se on December 18, 2000 against defendant Riley only. He alleged that on October 31, 2000, while incarcerated, a few correctional officers conducted a shakedown search of his prison cell, the purpose of which was to find a missing food tray. (May 13, 2003 Memorandum and Order at 2.) He further alleged that he was told to step out of his cell and take off all of his clothes, all in the presence of a female officer. (Id.) Based on these allegations, he complained that the search was conducted in an improper manner, leaving him humiliated and embarrassed. (Id.)

By Memorandum and Order dated May 13, 2003, the Court held that Plaintiff's Complaint failed to state a claim. Noting that Plaintiff did not contend that the search itself was invalid, the Court found that the mere presence of a female officer does not violate a prisoner's privacy right and thus cannot render a validly initiated strip search unconstitutional. (Id. at 4-5.) The Court further found that Plaintiff failed to allege that the search was in any way unrelated to legitimate penological objectives or that the search could have been conducted in a less restrictive manner. (Id. at 6.) Thus, the Court granted Riley's motion to dismiss under Federal Rule of Civil Procedure 12(c) and granted Plaintiff permission to file a motion for leave to amend. (Id. at 7.)

Thereafter, Plaintiff moved for leave to amend and Riley moved to dismiss. By Memorandum and Order dated December 17, 2003, the Court granted Plaintiff leave to amend, denied Riley's motion to dismiss, and accepted the Amended Complaint for filing, finding that Riley's arguments ultimately went to the factual merits of Plaintiff's claim and were not appropriate in the context of a motion for leave to amend. (Dec. 17, 2003 Memorandum and Order at 4-5.) The Amended Complaint arises out of the same October 31, 2000 search but this time, there is no mention of the female officer. Instead, Plaintiff now alleges that he was subject to an unjustified strip search and an assault. (Am. Compl. at 4, 12.) Specifically, Plaintiff alleges that the strip search was unauthorized because of the correction officers' negligence in allowing the tray to be stolen in the first instance. (Id. at 5-6.) He further claims that there was "no video camera present" during the search as opposed to other searches conducted the following day when a video camera was present. (Id. at 8.)

The only evidence proffered by Plaintiff as to the strip search is his deposition testimony and various affidavits and declarations, all written by Plaintiff. In his deposition testimony, Plaintiff stated that the strip search took place between three and four p.m. on October 31, 2000. (Pl.'s Dep. at 15.) He further stated that all of the inmates on his tier were searched for the missing tray, half on October 31st and the remaining half on the following day. (Id. at 15-16.) He conceded that he had been the subject of strip searches before at the Nassau County Correctional Center but that this search was different in that: (1) all prior searches were conduced in his cell with a video camera present but this one was conducted outside of his cell with no video camera; (2) the officers' misconduct in doing their job caused the search; and (3) although prior searches involved being "patted down," this search "was more like the anal, touching the genitals. You know, it was thoroughly seeking, looking for this food tray." (Id. at 16-20) Finally, Plaintiff admitted that a plastic food tray could be made into a plastic knife or weapon that could be hidden on an inmate and that prison officials would have to conduct a more elaborate search if they were looking for such a weapon. (Id. at 21-22.)

Plaintiff further describes the search in one of his declarations as follows:

I was told to step out of my cell and subjected to a strip frisk search/body cavity search. I complied with the direct order that was given to me by C.O. Evans #2107, meanwhile another officer enter[ed] my cell and began to search for the missing food tray. As I stood completely naked during the (body cavity search) process, on the second tier floor of housing unit "E-2-C," I felt humiliated, embarassed [sic] by this degrading situation. I felt as though, I was put on public display and being viewed by other inmates.

Pl.'s Aff. dated June 5, 2003 at 10.)

Defendants move for an order dismissing the Amended Complaint pursuant to Rule 56. Because the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to any of his Constitutional claims, Defendants' motion is granted.


I. Summary Judgment ...

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