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Shepherd v. Powers

United States District Court, S.D. New York

September 26, 2014

EUGENE C. SHEPHERD, Plaintiff,
v.
C.O. JAMES POWERS et al., Defendants

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[Copyrighted Material Omitted]

Page 510

For Eugene C. Shepherd, Plaintiff: Michael Anthony Deem, Michael A. Deem, P.L.L.C., Ossining, NY.

For James Powers, Westchester County, Westchester County Health Care Corporation, Kevin Cheverko, Captain Anthony Amicucci, Robert O'Dell, C.O. Mervin Enders, C.O. Kevin Johnson, Karim Haspil, Jose Pena, Defendants: Taryn Anita Chapman, LEAD ATTORNEY, Westchester County Attorney's Office, White Plains, NY; Janine Agnes Mastellone, Peter Alexander Meisels, Wilson Elser, Moskowitz Edelman & Dicker LLP (White Plains), White Plains, NY; John Martin Flannery, Wilson Elser Moskowitz Edelman & Dicker LLP (CT), Stamford, CT.

For Westchester Medical Center, Randy Goldberg, M.D., Jean Kadel, R.N., Defendants: Taryn Anita Chapman, LEAD ATTORNEY, Westchester County Attorney's Office, White Plains, NY.

For Emergency Response Team Members #1 through #8, Defendant: Janine Agnes Mastellone, Peter Alexander Meisels, Wilson Elser, Moskowitz Edelman & Dicker LLP (White Plains), White Plains, NY; John Martin Flannery, Wilson Elser Moskowitz Edelman & Dicker LLP (CT), Stamford, CT; Taryn Anita Chapman, Westchester County Attorney's Office, White Plains, NY.

For Karl Adler, M.D., New York Medical College, Defendants: Sarah Layfield Reid, Coleman Thomas Lechner, Kelley Drye & Warren, LLP (NY), New York, NY.

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Memorandum Opinion and Order

LAURA TAYLOR SWAIN, United States District Judge.

Eugene Shepherd (" Shepherd" or " Plaintiff" ), who was at all relevant times an inmate or detainee at the Westchester County Jail, brings this civil rights action against Correction Officer James Powers (" Powers" ), Correction Officer Mervin Enders (" Enders" ), and Westchester County (" the County" ) (collectively, " Defendants" ). Shepherd asserts (1) a claim of excessive force against Powers pursuant to 42 U.S.C. § 1983; (2) a claim of excessive force against Enders pursuant to 42 U.S.C. § 1983; (3) a claim of liability against the County based on Monell v. Dep't of Social Servs., 436 U.S. 658, 98

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S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the exercise of excessive force by Powers and Enders; (4) a claim against Powers for malicious prosecution pursuant to 42 U.S.C. § 1983 and state law; and (5) a claim against the County for denying or interfering with Plaintiff's religious rights pursuant to 42 U.S.C. § § 1983 and 2000cc-1.[1]

Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court has considered carefully all of the parties' submissions in connection with the motion.

The Court has jurisdiction of this action pursuant to 28 U.S.C. § § 1331 and 1367. For the following reasons, Defendants' motion is denied in its entirety.

Background

The following facts are undisputed except insofar as they are characterized here as allegations. On April 18, 2009, Shepherd was arrested and charged with, among other things, burglary in the third degree. (Defs.' Rule 56.1 Statement at ¶ 11.[2] Shepherd attended a court appearance in connection with those charges on March 9, 2010. (Id. at ¶ 13.) After attending the appearance, Shepherd was taken back to the Westchester County Jail. (Id. at ¶ 14.) According to the Westchester County Department of Correction Policy and Procedure, inmates returning from court appearances must be strip-searched. (Id. at ¶ 15.) Powers was the on-duty correction officer assigned to search inmates returning from court appearances on March 9, 2010. (Id. at ¶ 17.) During a routine strip search, an inmate must remove all of his clothing, show the bottoms of his feet, squat, and cough " to show that he is not hiding any contraband within his buttocks or anus." (Id. at ¶ 21.)

Defendants allege that Powers instructed Plaintiff to remove all of his clothing. (Defs.' Rule 56.1 Statement at ¶ 26.) They allege that Plaintiff began to remove his clothing, but refused to remove his underwear and socks. (Id. ¶ 27.) Defendants allege that, when Powers ordered Plaintiff to take off his underwear, Plaintiff accused Powers of being a " fagot [sic]." (Id. at ¶ 29.) Plaintiff then allegedly removed his underwear and threw it at Powers and attempted to throw a sock toward Powers. (Id. at ¶ 29.) Defendants allege that Powers attempted to stop Plaintiff from throwing the other sock at him and that Powers responded by pinning Powers' head to the metal search table in the cubicle. (Id. at ¶ 30.) Defendants allege that Powers ordered Plaintiff to stop, but that Plaintiff continued to struggle. (Id. at ¶ ¶ 30-31.) Defendants allege that nearby officers and the Emergency Response Team (" ERT" ) responded to the disturbance, which was classified as a Code 13 (officer needs assistance) matter. (Id. at ¶ ¶ 34-42.) One of the ERT officers, Enders, placed Plaintiff in handcuffs and leg irons. (Id. at ¶ 45.) Defendants allege that Plaintiff did not cooperate with instructions to comply with a search. (Id. at ¶ 48.)

Plaintiff presents a different version of the events. Plaintiff alleges that he removed all of his clothing except his socks and underwear of his own initiative after entering the search cubicle. (Pl.'s Rule 56.1 Statement at ¶ 23.) Powers, Plaintiff

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alleges, gave no verbal instructions for a few minutes. Plaintiff alleges that he said to Powers, " What, are you new, you don't know what to do? Let me go ahead and initiate this for you, and I dropped [my underwear] and I squat." (Pl.'s Rule 56.1 Statement at ¶ 28.) After Plaintiff dropped his underwear and squatted once, Powers asked him to " do it again." Plaintiff then responded by asking Powers whether he was gay. (Pl.'s Rule 56.1 Statement at ¶ 29; Defs.' Rule 56.1 Statement at ¶ 29.) Plaintiff alleges that, after Powers instructed Plaintiff to pull down his underwear again, Plaintiff drew down his underwear and squatted. (Pl.'s Rule 56.1 Statement at ¶ 30.)

Plaintiff alleges that Powers screamed at him to take the rest of his clothing off and that Plaintiff responded by placing his underwear on the table and throwing his socks on the table. (Pl.'s Rule 56.1 Statement at ¶ 30.) Plaintiff alleges that Powers then reached across the table and tried to choke him. (Pl.'s Rule 56.1 Statement at ¶ 32.) According to Plaintiff, he then retreated to a corner of the search cubicle. (Pl.'s Rule 56.1 Statement at ¶ 33.) Plaintiff alleges that Powers then grabbed his left leg. (Id.) Plaintiff alleges that Powers also grabbed and squeezed Plaintiff's testicles. (Id.) ...


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