United States District Court, N.D. New York
KEVIN C. BROWN, Plaintiff,
UTICA POLICE DEPARTMENT, et al., Defendants.
C. BROWN, Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDTION
ANDREW T, BAXTER U.S. MAGISTRATE JUDGE.
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.
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.
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).
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).
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).
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). 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).
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. (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.)
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.
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
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.
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).
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 ...