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Perez v. New York State Dep't of Corr. Servs.

March 16, 2010

JERRY PEREZ, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS., DEFENDANT.
JOSE FERNANDEZ, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, DEFENDANTS.
STEVEN MORALES, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, EASTERN CORR. FACILITY, DEFENDANTS.
ALCENIO SEGURA, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, EASTERN CORR. FACILITY, DEFENDANTS.
CARLOS DE LA ROSA, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, SECURITY CAPTAIN, EASTERN CORR. FACILITY, DEFENDANTS.
MICHAEL MAISONET, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, DEFENDANTS.
LUIS JAVIER, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, DEFENDANTS.
DAVID BENAVIDES, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; CAPTAIN LEGHORN; WILLIAM D. BROWN, SUPERINTENDENT, EASTERN CORR. FACILITY; MILSAP, CORR. OFFICER, DEFENDANTS.
LOUIS BATTISTINI, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, EASTERN CORR. FACILITY; WILLIAM D. BROWN, SUPERINTENDENT, EASTERN CORR. FACILITY; MILSAP, OFFICER, EASTERN CORR. FACILITY, DEFENDANTS.
MICHAEL A. BERNARD, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN; WILLIAM D. BROWN, SUPERINTENDENT, EASTERN CORR. FACILITY; MILSAP, CORR. OFFICER, DEFENDANTS.
EDWIN TAVERAS, PLAINTIFF, V NEW YORK STATE DEP'T OF CORR. SERVS.; MICHAEL LEGHORN, CAPTAIN, EASTERN CORR. FACILITY, DEFENDANTS.
GABRIEL ALCANTARA, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; LEGHORN, CAPTAIN, WILLIAM D. BROWN, DEFENDANTS.
KEVIN GENTLE, PLAINTIFF,
v.
NEW YORK STATE DEP'T OF CORR. SERVS.; CAPTAIN MICHAEL LEGHORN, EASTERN CORR. FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

The pro se Plaintiffs listed in the above captions each brought separate civil rights Complaints, pursuant to 42 U.S.C. § 1983, alleging their constitutional rights were violated. On October 9, 2008, after reviewing some of the earlier received Complaints, we realized that the form and substance of the these Complaints were nearly identical and directed that the cases be consolidated, with Perez v. New York State Dep't of Corr. Servs., Civ. No. 9:08-CV-1031 (LEK/RFT), as the designated Lead Case. Dkt. No. 4. Upon the subsequent filing of related Complaints, we further directed consolidation therewith, Dkt. Nos. 5, 18, 43, & 56.*fn1

Pending before the Court is Defendants' Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6),*fn2 for failure to state a claim for relief. Dkt. No. 48; see also Dkt. No. 73, Defs.' Lt.-Mot. (asking that the pending motion to dismiss be applicable to each Consolidated Plaintiff).*fn3 Each Plaintiff separately opposes the Motion. Dkt. Nos. 55, 60-70, & 77-78.*fn4 For the reasons that follow, the Court recommends that Defendants' Motion be granted and all the Complaints be dismissed.

I. BACKGROUND

In accordance with the standard of review for a motion to dismiss, the following facts are derived from the collective Complaints.*fn5 Plaintiffs are inmates in the custody of New York State Department of Correctional Services (DOCS), and, at all times relevant to the Complaints and continuing until the present, have been housed at Eastern Correctional Facility, a maximum security prison. On June 14, 2008, all Plaintiffs attended the Saint Jude's Catholic Family Day event at Eastern. Dkt. No. 1, Perez Compl., at ¶ 6. Because the event constituted a "contact visit," each Plaintiff was subjected to a strip frisk at the conclusion of the event; the strip frisks were conducted by Defendant Correction Officer Milsap, as directed by Defendant Captain Michael Leghorn. Id.;

Dkt. No. 35, Benavides Compl., at Part IV. According to DOCS Directive 4910(IV)(B) & (IV)(I)(1), all inmates in maximum security facilities shall be strip frisked following contact visits, which is defined as a meeting between an inmate and, inter alia, "his family, friends, legal counsel, and any other authorized persons in an area designated for this purpose." Dkt. No. 48-3, Douglas J. Goglia, Esq., Decl., dated Mar. 6, 2009, Ex. A at pp. 10-11. According to this same Directive, a strip frisk is performed when specifically authorized by the Directive, or upon a finding of probable cause, and is defined as follows:

A strip frisk means a search of an inmate's clothes and body including a visual inspection of body cavities. For a male this involves one or more of the following procedures: a mouth search . . ., running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his armpits, lifting his testicles to expose the area behind his testicles, and bending over and spreading his buttocks to expose his anus to the frisking officer.

Id., DOCS Directive 4910(III)(E)(1).

When it came time for inspection of the Plaintiffs' buttocks, Defendant Milsap, claiming to be under orders from Defendant Captain Leghorn, utilized a flashlight/floodlight*fn6 to examine each of the Plaintiff's anuses, for approximately thirty seconds each. Perez Compl. at ¶ 6; Dkt. No. 35, Benavides Compl. at p. 4.

Days later, Grievances were submitted (and consolidated) to the Inmate Grievance Review Committee (IGRC). Perez Compl. at ¶ 7. Thereafter, Defendant Superintendent William D. Brown and Deputy Superintendent for Security T. Griffin*fn7 held a meeting with approximately twenty-six inmates and advised them that the use of the flashlight/floodlight during the strip search was inappropriate and would not happen again. Id. at ¶ 8. On July 9, 2008, Superintendent Brown entered a decision on the Consolidated Inmate Grievance, noting that, after conducting a proper investigation, it was determined that the strip frisk was properly conducted in accordance with DOCS Directive 4910, but the use of a flashlight was inappropriate and corrective action had been taken.*fn8 Id. at ¶ 9. That resolution was appealed to the Cental Office Review Committee (CORC), who accepted the Consolidated Grievance in part, upholding the Superintendent's determination and noting that the matter had been properly investigated. Id. at ¶ 10. The CORC also determined that it had not been presented with sufficient evidence to substantiate any malfeasance by the employees referenced in the Grievance. Id.

All Plaintiffs concede, in their respective Complaints and Opposition papers, that because they participated in a contact visit, it was proper for a strip frisk to be conducted pursuant to DOCS Directive 4910. Similarly, all Plaintiffs admit that during the entire strip search, they were not physically touched nor harmed. However, Plaintiffs collectively contend that the use of the flashlight/floodlight was prohibited by this Directive and that the use of such device was degrading and humiliating. Plaintiffs assert that because of this incident, they have been deterred from participating in and/or attending Catholic Services at Eastern. Perez Compl. at ¶ 12. Other inmates further allege they suffer from mental pain, anguish, paranoia, and sleeplessness as a result of the incident (i.e., Benavides Compl. at p. 5), while still others profess to be victims of staff mocking and taunting in the days following the incident (i.e., Dkt. No. 36, Javier Compl., at ¶ 8). Plaintiffs claim that the use of the flashlight/floodlight during the otherwise valid strip frisk violated their First, Fourth, Eighth, and Fourteenth Amendment rights and that the search amounted to various state torts, including negligence, "intentional infliction of emotional pain and suffering," and loss of consortium. Perez Compl. at Preliminary Statement.

II. DISCUSSION

A. Standard of Review

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."

Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth ...


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