The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court
This matter is before the Court on defendant's motion for summary judgment (Filing No. 25) and plaintiff's response (Filing No. 33). The Court has reviewed the motion, defendant's statement of material facts (Filing No. 25-1), defendant's supporting brief and plaintiff's response and finds that defendant's motion for summary judgment should be granted.
I. Summary Judgment Standard
On a motion for summary judgment, all reasonable factual inferences must be drawn in favor of the non-moving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003)(citing Anderson, 477 U.S. at 255). However, to survive a motion for summary judgment, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(emphasis omitted)(quoting Fed. R. Civ. P. 56(e))(citation omitted). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)(citation omitted). Thus, "statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999)(citations omitted), cert. denied, 530 U.S. 1242 (2000).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A party "moving for summary judgment must prevail if the [non-movant] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)(citing Anderson, 477 U.S. at 247-48). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that the plaintiff is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment." Fitzpatrick v. New York Cornell Hosp., 2002 U.S. Dist. LEXIS 25166, 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003)(citing cases).
On July 29, 2004, Great Meadow Correctional facility ("Great Meadow") initiated a lockdown and facility-wide frisk after contraband was found in the facility (Deposition Transcript of Julio I. Smith ("Smith Tr."), 10:19-22). Great Meadow contains more than 1,600 cells, each of which needed to be searched quickly and thoroughly (Defendants Statement of Material Facts ("DSOF"), ¶¶ 17-18). Officers conducted a facility-wide frisk of cells and common areas as well as a metal detector sweep of inmates themselves (Smith Tr. 10:17-24, 18:8-15; DSOF, ¶ 2). The search of the plaintiff, Julio Isley Smith ("Smith"), and his cell occurred on August 2, 2004 (Complaint, ¶ 6). The defendant, officer Colleen Russell*fn1 ("Russell"), approached Smith's cell, along with several male officers and ordered Smith to undress down to his shorts (Smith Tr. 12:3-10). Smith told Russell that he was Muslim and, therefore, she could not be present for his search (Smith Tr. 13:9-14). In his deposition, Smith asserted that his religion forbids him from exposing his knees and upper shoulders to a female outside of his family or his marriage (Smith Tr. 18:16-19:3, 23:14-19). A male guard repeated the order for Smith to strip down to his shorts (Smith Tr. 14:2-5). Smith complied (Smith Tr. 15:1-2). Smith's body was then scanned by a male officer, using a hand held metal detector (Smith Tr. 16:18-17:10). Russell never touched Smith during the metal detector search of his body or during the frisk of Smith's cell (Smith Tr. 17:14-21). Smith was never naked in front of Russell, and his genitals were never exposed in her presence or in the presence of any officers during this search (Smith Tr. 22:25-23:13). The lockdown lasted for six days, ending at 2:40 p.m. on August 3, 2004 (Smith Tr. 21:9-13; DSOF, ¶¶ 1,21).
Smith filed an institutional grievance, alleging that Russell violated his rights as a Muslim male on August 9, 2004, by forcing him to undress in her presence (Smith Tr. 24:19-25:15). Smith filed this complaint on September 29, 2004 (Filing No. 1), alleging that Russell violated unspecified federal laws as well as Corrections Law § 610 by forcing Smith to undress in her presence (Complaint, ¶¶ 7, 9). Smith seeks $350,000 in unspecified damages (Complaint, ¶ 9).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
Smith was searched by a male officer using a hand-held metal detector which was passed over Smith's body. Smith was dressed in his undershorts and was never required to bare his genitals to any officer during this search. While this is akin to a strip frisk, it is not as invasive or as potentially objectionable.
Courts in this circuit have considered strip frisks of Muslim men and have found that they pass constitutional scrutiny so long as the search is reasonable and not abusive. In Shabazz v. Pico, 994 F. Supp. 460, 473 (S.D.N.Y. 1998)(vacated in part on other grounds, Shabazz v. Pico, 205 F.3d 1324 (2d Cir. 2000)), the Court granted summary judgment for the defendants where a Muslim inmate challenged a strip frisk as a violation of a tenet of his religion. Shabazz, 994 F. Supp. at 473. The Shabazz Court noted that "an inmate challenging a strip frisk must 'meet the burden of establishing the unreasonableness of the search.'" Id. (citing Hurley v. Ward, 549 F. Supp. 174, 184 (S.D.N.Y. 1982)). "It is not unreasonable to require inmates to remove their clothing, including their underwear, to permit a visual inspection of the naked body." Hurley, 549 F. Supp. at 186. The Shabazz Court stated that "'The religious tenets of the Muslims in the prison setting must give way to penological and security requirements of the prisons.'" Shabazz, 994 F. Supp. at 473 (quoting Hurley, 549 F. Supp. at 186).
The search of Smith is less intrusive than the search in Shabazz. Here, Smith was never asked to fully disrobe. His genitals were always covered, and he was not touched by any officer. Conversely, in Shabazz, the inmate was complaining of a strip frisk.*fn2 Where courts in this circuit have held that a strip frisk of a Muslim inmate did not violate the inmate's religious constitutional rights, this Court finds that a metal detector examination of Smith by a male officer, in the presence of female officer Russell, where he was ...