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Brown v. Utica Police Department

United States District Court, N.D. New York

November 16, 2017

KEVIN C. BROWN, Plaintiff,
v.
UTICA POLICE DEPARTMENT, et al., Defendants.

          KEVIN C. BROWN, Plaintiff, pro se.

          ORDER AND REPORT-RECOMMENDTION

          HON. ANDREW T, BAXTER U.S. MAGISTRATE JUDGE.

         The Clerk has sent to the court for review a complaint brought pursuant to 42 U.S.C. § 1983, originally filed on October 27, 2017 by pro se plaintiff Kevin C. Brown. (Dkt. No. 1 (“Compl.”)). On October 30, 2017, the Honorable Brenda K. Sannes ordered that the case be administratively closed because plaintiff's IFP application was incomplete. (Dkt. No. 4). On November 13, 2017, plaintiff filed a “supplemental” motion to proceed IFP, together with the properly completed forms, and a motion for appointment of counsel. (Dkt. Nos. 6, 7). Based on the appropriate filings by plaintiff Judge Sannes ordered reopening of the action. (Dkt. No. 8). On November 14, 2017, this case was sent to me for initial review.

         I. IFP Application

         As to plaintiff's IFP application, the Court finds that plaintiff has demonstrated economic need and has now filed the appropriate forms. As a result, plaintiff's motion to proceed IFP is granted.

         In addition to determining whether plaintiffs meet the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).

         In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

         To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).

         II. Complaint

         Plaintiff alleges that on August 14, 2017, at 11:30 a.m. in Utica, New York, he was “stopped and detained” by Officer Mahay and immediately put in handcuffs. (Complaint (“Compl.”) ¶ 6 at 4).[1] Plaintiff states that he was told that the arrest was part of an investigation. (Id.) Soon, thereafter, defendants Sergeant Mark Fields and Investigator Paul Paladino of the Utica Police arrived on the scene, accompanied by Investigator David Desens. (Id. at 4-5). Plaintiff claims that defendant Paladino approached plaintiff and began frisking him, “aggressively focusing on my buttocks area.” (Id. at 5). Plaintiff claims that defendant Paladino stuck his thumb in the “middle” of plaintiff's buttocks, while he and defendant Paladino were standing on the street, in plain view of the public. (Id. at 6).

         Plaintiff states that he began asking bystanders for help, and defendant Paladino responded by placing plaintiff in the back seat of Police Car 25 and instructing Officer Mahay to drive plaintiff to the Utica Police Station. (Id.) Defendant Paladino followed in his own vehicle. Plaintiff admits that, during the ride to the police station, he “began stuffing evidence [he] had consealed [sic] in [his] buttock cavity area into my anal cavity/rectum per the rear of my pants.” (Id.) Officer Mahay looked in his rear-view mirror, observed plaintiff moving around, and told him to “knock it off.” Plaintiff claims that Officer Mahay then used his radio and pulled his car over in front of the Stanley Theater in Utica. Defendant Paladino and defendant Mark Fields pulled up behind Officer Mahay's car. The officers had a discussion outside the vehicles, and then opened the car door and put a seatbelt around plaintiff. Defendant Paladino then told plaintiff that the “Butt trick” would not work this time.[2] (Id.) Plaintiff claims that when they arrived at the police station, both hands were handcuffed to a bench in a holding cell, where plaintiff was forced to wait for at least an hour while defendant Paladino attempted to obtain a warrant to search plaintiff's body. (Id. at 8). Plaintiff alleges that he was under constant surveillance during that time. (Id.)

         Plaintiff claims that when defendant Paladino returned with a warrant, plaintiff was escorted to a cell at the back of the station and instructed to sit on a bed. Plaintiff claims that the handcuffs were never removed. (Id.) Plaintiff then describes the subsequent search in detail. (Id. at 8-9). Without reciting each detail, the court notes that plaintiff claims that the body cavity search was improperly conducted. Plaintiff alleges that he was forced to bend over multiple times, was left “bottomless” with only a T-Shirt, and was handcuffed the entire time.

         Plaintiff alleges that when he refused to cooperate with the officers, defendant Paladino “aggressively got in [plaintiff's] face and told him that the officers knew that he had drugs in his anal cavity, and either plaintiff could remove them, or defendant Paladino was going to remove them himself. (Id. at 10). Ultimately, plaintiff claims that defendant Paladino reached into plaintiff's rectum to retrieve the contraband, while he was handcuffed and restrained by Officer Mahay and Investigator Desens.[3]

         Plaintiff states that the entire incident was degrading. He was disrobed by defendant Paladino, left with no pants or underwear, while being held by two police officers in a cell for at least half an hour, forced to bend over multiple times, and eventually was the subject of a sexual assault by defendant Paladino. (Id.) Plaintiff claims that defendant Fields stood and watched the intrusion without acting or remedying the situation. (Id. at 11). Plaintiff claims that the officers lied about their conduct in their report of the incident. Plaintiff alleges that the “matter” is with “Internal Affairs.” (Id.) Plaintiff claims that the Utica Police Department has failed to properly train and supervise its officers because this incident was allowed to occur. For a more complete recitation of the facts, reference is made to the complaint herein.

         Plaintiff claims that he has suffered serious mental and physical damage as a result of this incident and requests injunctive as well as substantial monetary relief. Plaintiff asks that cameras be provided so that strip searches may be recorded. (Compl. ¶ 9 at 12).

         The complaint contains three causes of action. Plaintiff alleges that defendant Paladino violated his Fourth (First Cause of Action) and Eighth (Second Cause of Action) Amendment rights. (Compl. ¶ 7 at 5). Plaintiff also claims that his Fourteenth Amendment ...


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