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George v. City of New York

United States District Court, Second Circuit

November 6, 2013

THE CITY OF NEW YORK, et al, Defendants. JOSE ZABALL, Plaintiff,
C.O. BENBOW (7002), C.O. PHILLIPS (7620), C.O. YOUSUF (18907), C.O. HAMER (18467), C.O. FLEURIMAND (8299), CAPTAIN MASSEY (126), CAPTAIN HARVEY (1109), CAPTAIN PENDEGRASS (68), Defendants. KYLE ROBINSON, Plaintiff,
C.O. BENBOW (7002), C.O. PHILLIPS (7620), C.O. YOUSUF (18907), C.O. HAMER (18467), C.O. FLEURIMAND (8299), CAPTAIN MASSEY (126), CAPTAIN HARVEY (1109), CAPTAIN PENDEGRASS (68), Defendants.


P. KEVIN CASTEL, District Judge.

These three actions are brought against the City of New York and certain corrections officers, alleging violations of certain unspecified constitutional rights in connection with a group strip search in a mess hall at Riker's Island conducted in front of trainee corrections officers. Defendants have moved to dismiss all three actions. For the reasons discussed below, defendants' motions are granted in part and denied in part.


On August 20, 2012, pro se plaintiffs Vincent George Jr., Marvin Sanders, Darvell Jones, Alfonso Durn, William Parker, Perry Board, Keith Walcott, Karim Kamal, Rivera Candido, Mark Enoch, Jose Zaball, and Kyle Robinson brought this action in a single complaint (the "Initial Complaint") against the City of New York, the New York Department of Corrections, several unidentified corrections officers who worked in the mess hall at the George R. Viemo Center (the "GRFC"), a correctional facility located on Rikers Island, the GRFC warden, and "Any and All Municiple [sic] Defendants."[1] Magistrate Judge James L. Cott dismissed without prejudice the claims of plaintiffs Jones, Walcott, Kamal, Candido, and Enoch for failure either to pay filing fees or file proper applications to proceed in forma pauperis. (Dkt. Nos. 31-40)[2]

On December 21, 2012, this Court dismissed by order all claims against the New York City Department of Correction, a non-suable entity (the "December 12 Order"). (Dkt. No. 43) The December 12 Order directed the New York City Corporation Counsel to provide the names and service addresses for the "John" and "Jane Doe" corrections officers and supervisors involved in the incident giving rise to the complaint. Id . Once the Office of the Corporation Counsel complied with the Order, plaintiffs were required to file an amended complaint naming the unidentified individuals. Id . The December 12 Order further provided that the amended complaint would replace, rather than supplement, the Initial Complaint. Id.

Instead of filing one amended complaint, plaintiffs filed three. On March 26, 2013, plaintiffs filed a complaint signed only by Vincent George Jr. (the "George Complaint") that purported to be on behalf of all twelve original plaintiffs. (Dkt. No. 57) The George Complaint named the same defendants as the Initial Complaint, and also named eight individual corrections officers ("C.O.'s"): C.O. Benbow, C.O. Phillips, C.O. Yousuf, C.O. Hamer, C.O. Fleurimand, Captain Massey, Captain Harvey, and Captain Pendegress. Id . On April 10, 2013, plaintiffs Jose Zaball and Kyle Robinson filed two additional amended complaints (the "Robinson/Zaball Complaints"). (Dkt. Nos. 60, 61) These amended complaints each named only the seven plaintiffs who remain in the action, and each was signed only by the individual plaintiff filing the complaint. Id . Further, the Robinson/Zaball Complaints omitted the original list of defendants, instead listing only the same eight corrections officers named in the George Complaint. The other four remaining plaintiffs have not filed signed amended complaints.

Because of differences between the amended complaints, particularly with respect to parties named and remedies sought, Magistrate Judge Cott severed the claims into three separate actions. (Dkt. No. 64) Magistrate Judge Cott further ordered plaintiffs Sanders, Duran, Board, and Parker to file signed, amended complaints by June 12, 2013, indicating that if plaintiffs failed to do so or otherwise respond he would recommend dismissal for failure to prosecute. Id . After advising the Court of a change of address, plaintiff Parker filed an executed signature page on June 21, 2013, joining the George Complaint. (Dkt. No. 72) To date, plaintiffs Sanders, Duran, and Board have not responded.

Plaintiffs' three amended complaints (together, the "Complaints") all focus on an alleged incident on August 2, 2012 at approximately 3:45 PM in the mess hall at the GRFC. The factual allegations in the Robinson/Zaball Complaints, though handwritten, are nearly identical in language. (Dkt. Nos. 60, 61) The Complaints all allege an illegal strip search conducted in violation of prison procedures. Plaintiffs allege that, in front of one another and corrections officer trainees in the GRFC mess hall, they were forced to strip naked, turn around, and squat down. The Complaints further allege that the search was inconsistent with typical search procedures, because mess hall searches are usually "pat searches" rather than strip searches, and strip searches are usually conducted privately, behind dividers, rather than in front of a group of other inmates and collections officers. Plaintiffs allege that the searches were conducted in this fashion in order to "make a spectacle of [the inmates] for the new recruits, " "for the sake of an example, " and to humiliate and "bring shame to" the inmates. (Dkt. Nos. 57, 60, 61 at 2-3)

With respect to the relief requested, the Complaints diverge. The George complaint seeks injunctive relief in the form of termination of the employment of all involved corrections officers, and also seeks damages in an amount left to the discretion of the Court. (Dkt. No. 57 at 5) The Robinson/Zaball Complaints each seek damages of $100, 000 to redress constitutional rights violations and emotional and psychological harms, and also request that the alleged practices be stopped. (Dkt. Nos. 60, 61 at 5)

Defendants filed three motions to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., seeking dismissal of the Complaints for failure to state a claim. Because the Complaints concern the same incident and, ultimately, the same defendants, and because defendants' arguments in each of the three motions are nearly identical, this Memorandum and Order will treat the three cases as one.

Plaintiff William Parker has filed an affirmation in opposition to motion (the "Parker Affirmation"). (Dkt. No. 85) The Parker Affirmation asserts that the strip search was conducted despite his specific request for a private strip search because he was a Muslim observing Ramadan. Id. at 1.


Defendants have moved to dismiss the claims of plaintiffs Sanders, Board, and Duran under Rule 41(b), Fed.R.Civ.P. These plaintiffs, each of whom failed to sign any of the three Complaints, were directed by Magistrate Judge Cott's May 14, 2013 Order to comply with Rule 11(a), Fed. R. Civ. P., which requires that "[e]very pleading, written motion, and other paper must be signed by... a party personally if the party is unrepresented." (Dkt. No. 64) Specifically, the order provided:

Sanders, Duran, Board, and Parker must submit signed, amended complaints by June 12, 2013. [...] If these four remaining plaintiffs fail to submit signed amended complaints or otherwise respond to this Order by June 12, I will recommend that their claims be dismissed for failure to prosecute.

Id. (emphases in original) To facilitate this request, the Court sent copies of the Amended Complaints with blank signature pages to each of the three plaintiffs. None of the three has responded to the May 14, 2013 Order to date.

"If the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). "[D]ismissal of an action under Rule 41(b) is considered a harsh remedy' that should be utilized only in extreme situations.' Lewis v. Rawson , 564 F.3d 569, 576 (2d Cir. 2009) (quoting Minette v. Time Warner , 997 F.2d 1023, 1027 (2d Cir. 1993)). This is especially true when the plaintiff is a pro se litigant. LeSane v. Hall's Sec. Analyst, Inc. , 239 F.3d 206, 209 (2d Cir. 2001) (noting that "pro se plaintiffs should be granted special leniency regarding procedural matters" and "deference is due to a district court's decision to dismiss a pro se litigant's complaint only when circumstances are sufficiently extreme.") (citation and quotations omitted).

The Second Circuit has "fashioned guiding rules that limit a trial court's discretion" when determining whether to dismiss for failure to prosecute. United States ex rel. Drake v. Norden Sys., Inc. , 375 F.3d 248, 254 (2d Cir. 2004). Under these rules, district courts must consider five factors in determining whether dismissal pursuant to Rule 41(b) is proper: "(1) the duration of the plaintiff's failures, (2) whether plaintiff had received notice that further delays would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) whether the district judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard... and (5) whether the judge has adequately assessed the efficacy of lesser sanctions." LeSane. 239 F.3d at 209 (quoting Alvarez v. Simmons Mkt. Research Bureau, Inc. , 839 F.2d 930, 932 (2d Cir. 1988)). "[N]one of the five factors is separately dispositive." Id. at 210 (citing Nita v. Connecticut Dep't of Envtl. Prot. , 16 F.3d 482, 485 (2d Cir. 1994).

A. Delay

Plaintiffs were ordered to submit a signed complaint no later than June 12, 2013. Over four months have elapsed since this deadline, and none of the three plaintiffs has either complied with the May 14, 2013 Order or sought additional time to do so. Plaintiff Sanders last contacted the Court on March 29, 2013, when he submitted a change of address. (Dkt. No. 58) Plaintiffs Board and Duran last contacted the Court in October and November 2012, respectively, when each filed a declaration in support of their request to proceed in forma pauperis. (Dkt. Nos. 17, 23) In sum, there has been utter silence from these three plaintiffs since early 2013. The considerable delay thus weighs in favor of dismissal.

B. Notice

In clearly-worded bold typeface, the May 14, 2013 Order directed compliance with the signature requirement, and further expressly warned that the Magistrate Judge would recommend dismissal for failure to prosecute if plaintiffs failed to comply with the Order. The Court finds that plaintiffs received meaningful, non-technical notice that failure to sign the complaint would likely result in dismissal of their claims. See Lucas v. Miles , 84 F.3d 532, 535 (2d Cir. 1996) ...

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