Opinion
Civil Action No. 9:14-CV-1505 (TJM/DEP)
08-09-2016
DERRICK GRAY, Plaintiff, v. DAVID E. HARDER, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: DERRICK GRAY, Pro Se No. 15-A-0873 Franklin Correctional Facility P.O. Box 10 Malone, NY 12953 FOR DEFENDANTS: HON. ROBERT G. BEHNKE Broome County Attorney Broome County Office Building P.O. Box 1766 60 Hawley Street Binghamton, NY 13902 OF COUNSEL: LEIA D. SCHMIDT, ESQ. Assistant County Attorney
APPEARANCES: FOR PLAINTIFF: DERRICK GRAY, Pro Se
No. 15-A-0873
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953 FOR DEFENDANTS: HON. ROBERT G. BEHNKE
Broome County Attorney
Broome County Office Building
P.O. Box 1766
60 Hawley Street
Binghamton, NY 13902 OF COUNSEL: LEIA D. SCHMIDT, ESQ.
Assistant County Attorney DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Derrick Gray, who is currently a prison inmate being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983, alleging that, while he was held as a pretrial detainee at the Broome County Correctional Facility ("BCCF"), certain corrections officers deprived him of his civil rights. Generally, plaintiff's complaint, as amended, alleges that upon arrival at BCCF where he was to be incarcerated for a misdemeanor offense, he was forced to submit to a strip search in violation of his Fourteenth Amendment rights.
Currently pending before the court is a motion by the only named defendant in this action, the Broome County Sheriff, for summary judgment seeking dismissal of plaintiff's amended complaint based on, inter alia, Gray's failure to identify the Doe defendants against whom the remaining causes of action are asserted. Based upon the record now before the court, I recommend that defendant's motion be granted, and that plaintiff's amended complaint be dismissed. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). That record includes statements from plaintiff's local rule 7.1 response to defendant's statement of material facts, which the court will treat as an affidavit in light of the fact that the document is notarized and is not a proper rule 7.1 response. Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir. 2001). Where plaintiff has failed to provide any evidence refuting statements contained in defendant's statement of material facts, the court will deem such facts admitted for purposes of the pending motion. See N.D.N.Y. L.R. 7.1(a)(3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."); see also Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *2 (N.D.N.Y. Oct. 25, 2011) (McAvoy, J.) ("The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly." (listing cases)).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS at Franklin Correctional Facility located in Malone, New York. Dkt. No. 42. At all times relevant to his complaint, as amended, he was a pretrial detainee at the BCCF as a result of an arrest for a class A misdemeanor charge of fourth-degree criminal mischief, in violation of New York Penal Law § 145.00. Dkt. No. 7 at 2-3.
Plaintiff has annexed various exhibits to his amended complaint, including his criminal history, which the court considers as part of the complaint. Dkt. No. 7-1; Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) ("[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.").
According to plaintiff, upon his arrival at the facility, he was "forced to submit to a strip[] search in a secluded shower room area by [defendant] Intake Officer John Doe who order[ed] Plaintiff to remove all his clothing so that [the officer] could. . . inspect[]. . .[the clothing and] plaintiff's mouth, hair, ears, armpits, knees and toes." Dkt. No. 7 at 3. After removing his clothes, plaintiff was instructed to "bend over backwards [and] squat and cough three times to ensure . . . he was not hiding any contraband." Id. Plaintiff thereafter spoke to defendant Sergeant John Doe, who "told plaintiff that the strip[] search was not against his constitutional right[s] and that it was County Correctional Jail[']s policies to strip[] search every inmate at their facility." Id. Defendant Sergeant John Doe instructed plaintiff to "grieve it [b]ecause if plaintiff had refused to the Intake Officers strip[] search, he would be escorted to the SHU keeplock box" and issued "a ticket with a surcharge of $25.00." Id.
Plaintiff claims to have filed a grievance regarding this incident. Dkt. No. 7 at 3-4, Dkt. No. 36 at 4. Defendant David Harder, the Broome County Sheriff, however, contends that plaintiff never filed a proper grievance in accordance with the facility policies set forth in the handbook that was provided to plaintiff at the time of booking. Dkt. No. 34-7 at 8.
Plaintiff alleges that, "[a]s a result of the deliberate indifference[] exercised by the defendants, [he] suffered from extreme emotional distress[]" and seeks recovery of compensatory damages. Dkt. No. 7 at 4-5.
II. PROCEDURAL HISTORY
Plaintiff filed his complaint in this action on December 12, 2014, against several defendants, including (1) County Jails/DOCCS, (2) Otsego County Sheriff Richard J. Devlin; (3) John Doe Warden of Otis Bantum Corrections Center; (4) Broome County Sheriff David E. Harder; and (4) Chemung County Sheriff Christopher Wilson Moss. Dkt. No. 1 at 1-2. On January 21, 2015, Senior District Judge Thomas J. McAvoy issued a decision, pursuant to 28 U.S.C. §§ 1915(e), 1915A, granting plaintiff's request to proceed in forma pauperis and sua sponte dismissing plaintiff's claims against County Jails/DOCCS, with prejudice, and the remaining claims with leave to file an amended complaint. See generally Dkt. No. 5.
On February 26, 2015, plaintiff filed an amended complaint against defendants (1) Sheriff David E. Harder, (2) Correctional Officer John Doe of Broome County Correctional Facility ("Intake Officer John Doe"), (3) Sergeant John Doe of Broome County Correctional Facility ("Sergeant John Doe"), and (4) Acting Grievance Officer John Doe of Broome County Correctional Facility ("Acting Grievance Officer John Doe"). Dkt. No. 7 at 1-2. On April 16, 2015, Judge McAvoy accepted the amended complaint and supporting exhibits as the operative pleading but dismissed the claims stemming from allegations of verbal threats and failure to respond to a grievance. Dkt. No. 8. Judge McAvoy's order also dismissed plaintiff's claims against defendants Moss, Delvin, John Doe Warden of Otis Bantum Corrections Center, and Acting Grievance Officer John Doe. Id. As a result, the only claim remaining in this action is related to the strip search conducted by defendants Intake Officer John Doe and Sergeant John Doe, allegedly in violation of plaintiff's Fourteenth Amendment rights. Id.
At the present time, defendant Harder remains a defendant in the case, at least nominally. In his initial order, Judge McAvoy determined that plaintiff's amended complaint included no facts plausibly suggesting the personal involvement of defendant Harder for purposes of any of the section 1983 claims asserted against him. Id. at 7. Defendant Harder was not dismissed from the action at that early juncture, however, only so that plaintiff could proceed with the action against the remaining Doe defendants. See id. at 8 ("Giving due deference to plaintiff's status as an incarcerated pro se litigant and recognizing that the Court has an obligation to assist in identifying unknown defendants, Harder will remain as a defendant in this lawsuit until plaintiff has been afforded an opportunity to conduct discovery to identify the 'John Doe' defendants.").
On January 22, 2016, following the close of discovery, defendant Harder moved for summary judgment dismissing plaintiff's amended complaint. Dkt. No. 34. In their motion, defendant argues that (1) defendant Harder was not personally involved in the conduct giving rise to plaintiff's claims, (2) plaintiff's claims are subject to dismissal based upon his failure to exhaust available administrative remedies before filing suit, (3) plaintiff's remaining strip search claim lacks merit, and (4) the Doe defendants are entitled to qualified immunity from suit. That motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
B. Failure to Identify Doe Defendants
Despite the court's assistance by permitting temporary inclusion of defendant Harder as a named defendant despite the absence of any actionable claims against him, plaintiff has been unable to identify defendants Intake Officer John Doe and Sergeant John Doe. Defendant Harder now seeks dismissal of plaintiff's amended complaint based upon his failure to identify and serve those defendants. Dkt. No. 34-7 at 6-8.
When this action was filed, Rule 4(m) of the Federal Rules of Civil Procedure authorized "the court - on motion or on its own after notice to the plaintiff" - to dismiss a plaintiff's claims against a defendant where a summons and complaint were not served upon that party within 120 days after filing of the complaint, absent a showing of good cause. Fed. R. Civ. P. 4(m); see also Shuster v. Nassau Cnty., No. 96-CV-3635, 1999 WL 9847, at *1 (S.D.N.Y. Jan. 11, 1999) ("Rule 4(m) authorizes a court upon a motion to dismiss an action without prejudice as against a defendant if service of the summons and complaint is not made upon that defendant within 120 days after the filing of the complaint."); Romand v. Zimmerman, 881 F. Supp. 806, 809 (N.D.N.Y. 1995) (McAvoy, J.) ("[T]he 120-day filing requirement applies to pro se plaintiffs as well as those represented by counsel."). This is because when "Doe" defendants have not been served or otherwise appeared in the action within this time period, the court does not acquire jurisdiction over them. See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (citing Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)).
Effective on December 1, 2015, Rule 4(m) was amended to require service of a summons within ninety days. It should be noted, moreover, that the period specified in Rule 4(m) is further restricted by the local rules of this court, which require that service be effectuated within sixty days. N.D.N.Y. L.R. 4.1(b).
All unreported cases have been appended to this report for the convenience of the pro se plaintiff.
Upon a showing of good cause, the time for service must be extended. Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed. R. Civ. P. 4(m)); see also Zapata v. City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007) ("We hold that district courts have discretion to grant extensions even in the absence of good cause."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists and whether an extension may be granted in the absence of good cause. Zapata, 502 F.3d at 197.
In this instance, plaintiff was permitted to pursue a claim against defendants Intake Officer John Doe and Sergeant John Doe provided that he "take reasonable steps to ascertain [the] identity" of them. Dkt. No. 8 at 8. In the order permitting the case to proceed, Judge McAvoy explicitly warned plaintiff that "[i]f [he] fails to ascertain the identity of any Doe defendant so as to permit the timely service of process, this action will be dismissed as against that individual." Id. Following that order, discovery, which is now closed, took place over a period of several months. See Dkt. No. 15 at 5. During that time, plaintiff was unable to identify either of the individuals allegedly responsible for the strip search. Dkt. No. 36 at 4-5. Plaintiff has clearly been on notice that he has failed to serve and join the Doe defendants because, in response to defendant Harder's motion, plaintiff submitted an affidavit in which he "affirm[ed] that he cannot identify the Defendant's [sic] by names at this present time, due to their names not being made available to him." Id. There is nothing in the record now before the court, however, that suggests defendant Harder is responsible for plaintiff's failure to name and join the Doe defendants or that defendant Harder otherwise rendered the Doe defendants' identities unavailable to plaintiff during discovery. Indeed, although plaintiff has submitted certain filings with the court related to discovery, none of them included an allegation that the identities of the Doe defendants were improperly withheld by the named defendant. Dkt. Nos. 22, 30, 33. Although plaintiff contends that "he can at [a] later time identify [the defendants] if giv[en] the opportunity," he does not explain how the identities were not "made available to him" during discovery or why he did not ascertain the identities prior to the close of discovery. Dkt. No. 36 at 5. Because dismissal of a claim is appropriate "[w]here discovery has closed and the Plaintiff has had ample time and opportunity to identify and serve John Doe defendants" but has failed to do so, I recommend that defendant Harder's motion to dismiss plaintiff's claims against the Doe defendants be granted on this basis. Delrosario v. City of N.Y., No. 07-CV-2027, 2010 WL 882990, at *5 (S.D.N.Y. Mar. 4, 2010); accord, Jones v. Rock, No. 12-CV-0447, 2015 WL 791547 at *21, (N.D.N.Y. Feb. 24, 2015) (Mordue, J., adopting report and recommendation by Dancks, M.J.).
IV. SUMMARY AND RECOMMENDATION
The remaining claims in this case are asserted against two unidentified individuals. Notwithstanding the opportunity to discover those individuals' identities through discovery, plaintiff has failed to identify and join the Doe defendants. In the absence of any evidence demonstrating good cause for plaintiff's failure, it is hereby respectfully
The court has previously concluded that plaintiff's amended complaint fails to state a cognizable claim against defendant Harder. See Dkt. No. 8 at 7.
RECOMMENDED that defendant Harder's motion for summary judgment (Dkt. No. 34) be GRANTED, and that plaintiff's remaining claims in this action be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: August 9, 2016
Syracuse, New York