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Mark Tuminello v. John Doe

April 30, 2013

MARK TUMINELLO, PLAINTIFF,
v.
JOHN DOE, RICHARD ROE AND HARLOW HO, INDIVIDUALLY AND AS EMPLOYEES OF THE NASSAU COUNTY SHERIFF'S DEPARTMENT, AND THE COUNTY OF NASSAU,
DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Mark Tuminello ("plaintiff" or "Tuminello") commenced this Section 1983 action against the County of Nassau (the "County") and certain unidentified employees of the Nassau County Sheriff's Department for violating his constitutional rights under the Fourth and Fourteenth Amendments when they allegedly subjected him to an intrusive strip search. Presently before the Court is the County's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, the County's motion is GRANTED.

BACKGROUND

The following material facts, drawn from the parties' Local Civil Rule 56.1 Statements and evidentiary submissions, are undisputed unless otherwise noted.*fn1

Tuminello was arrested on July 14, 2007 at approximately 2:45 p.m. and transported to the Nassau County Police Department, First Precinct. (Defs.' 56.1 Stmt. ¶¶ 3-4) After being processed, he was transported to Police headquarters in Mineola. (Id. ¶ 3.) On July 15, 2007, Plaintiff appeared in Nassau County District Court for arraignment on a charge of menacing. (Id. ¶ 5.) Following his arraignment, Tuminello was transported to the Nassau County Correctional Center ("NCCC"). (Id. ¶ 6.) Plaintiff was admitted to NCCC on July 15, 2007 at 1:39 p.m. (Id. ¶ 7.) At 2:54 p.m., plaintiff was discharged from the NCCC after his brother posted his bail (Id. ¶¶ 8-9.)

The NCCC policy in effect in July 2007 for the inmate admission process (hereafter, "NCCC Policy") did not permit blanket strip searches of all inmates upon their admission to the NCCC.*fn2 (Defs.' 56.1 Stmt. ¶ 13.) Pursuant to the applicable NCCC Policy, "[i]f the detainee is not charged with a felony, such detainee will be thoroughly pat searched" while those "[d]etainees with felony charges, and all sentenced inmates, will be subject to a strip search." (Ben-Sorek Decl., Ex. D ("NCCC Policy") at 9-10.) Non-felon detainees, however, can be strip searched "based on a reasonable suspicion that the person may be concealing a weapon, or other form of contraband" on the condition that the strip search "will only be accomplished on approval of the Operations Supervisor" and the completion of a "Strip Search form." (NCCC Policy at 10.) Moreover, the applicable NCCC Policy defined "Strip Search" as a "visual search of an inmate's person/body after an inmate has removed his/her clothing" which does not include "physical contact between the inmate and the Officer conducting the search." (NCCC Policy at 2.)

Notwithstanding the above, Tuminello claims that he was subjected to an intrusive strip search while he was at the NCCC. (Pl.'s 56.1 Stmt. ¶ 9.) Specifically, Tuminello alleges that he was brought into a fifteen by fifteen foot room and two officers told him to take off his clothes and bend over and squat. (Ben-Sorek Decl., Ex. B ("Tuminello Dep.") at 27:23-28:17, 30:7-8, 34:18-35:7.) Tuminello further claims that one of the officers put a gloved finger up his rectum and turned his finger around. (Tuminello Dep. at 36:12-37:6.) The County, however, maintains that plaintiff was discharged without ever being searched. (Defs.' 56.1 Stmt. ¶ 9.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, on conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible," Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

The district court, in considering a summary judgment motion, must also be mindful of the underlying burdens of proof because "the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, "the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the" non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to present sufficient evidence in support of his claim, the burden shifts to the non-movant to offer "persuasive evidence that his claim is not 'implausible.'" Id. at 211 (citing Matsushita, 475 U.S. at 587).

II. Municipal Liability

A municipality may not be held liable under section 1983 on a respondeat superior theory of liability for its employees' alleged constitutional violations. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A municipal entity may only be liable if the alleged conduct was undertaken pursuant to "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [its] officers" or a "governmental 'custom' even though such a custom has not received formal approval through [ ] official decision making channels." Monell, 436 U.S. at 690-91. Therefore, a local government may not be sued under ยง 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's ...


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