Opinion
6:24-CV-1169 (DNH/MJK)
10-30-2024
AKO BURRELL, Plaintiff, v. TIA VAN WINKLER, N. PEZDEK, D. TRAGLIA, LAPORTE, D. BEKTIC, BONK and STATE OF NEW YORK DOCCS, Defendants.
TO THE HONORABLE DAVID N. HURD, U.S. DISTRICT JUDGE:
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, U.S. MAGISTRATE JUDGE
Plaintiff commenced this action on September 25, 2024 by filing a complaint (Dkt. No. 1) together with a motion for leave to proceed in forma pauperis (Dkt. Nos. 2, 6). The Clerk has sent to the court for review the complaint brought pursuant to 42 U.S.C. § 1983 as well as the IFP Application.
I. IFP Application
Plaintiff's IFP application declares that he is unable to pay the filing fee. (Dkt. No. 2). After reviewing plaintiff's application, this court finds that he is financially eligible for IFP status.
However, in addition to determining whether plaintiff meets 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. See 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. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge, 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. See Fitzgerald v. First E. 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 Twombly, 550 U.S. at 570). “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).
In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)).
II. Complaint
The complaint alleges violations of plaintiff's civil rights pursuant to 42 U.S.C. §§ 1983 and 1988. (Dkt. No. 1) (Complaint (“Compl.”)). Plaintiff asserts that the court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1334(3), and 1343(4). (Id. at ¶ 3).
Plaintiff alleges that on June 21, 2024 while traveling from Wende Correctional Facility to Utica, New York, he received a telephone call directing him to report to parole by 2:00 p.m. that day. (Id. at ¶ 14). When he arrived at the parole office, plaintiff alleges that he was informed by defendant Van Winkler that he would have to live at a local shelter, and not with his mother, Patricia Campbell. (Id. at ¶¶ 15, 16). Plaintiff was also advised that he would have to wear a GPS monitor because of threats he made to correction officers, parole officers, and their families while incarcerated. (Id. at ¶ 16).
On the evening of June 21, 2024, defendant Van Winkler, together with eleven parole officers, arrived at plaintiff's mother's residence, and they searched her home, “destroying property” in the process. (Id. at ¶¶ 17, 18, 19). Upon arrival, the complaint alleges that defendant Van Winkler “covered the ring doorbell with her finger [and] refused to identify herself.” (Id. at ¶ 18).
On or about June 26, 2024, plaintiff alleges he was informed that his GPS monitor was not working and that it needed to be replaced. (Id. at ¶ 20). At that time, defendants Pezdek, Pelligrino and LaPorte entered defendant Van Winkler's office and informed plaintiff that the New York State Attorney General's office advised of outstanding lawsuits pending against multiple DOCCS employees. (Id. at ¶ 20). Defendants Pezdek, Pelligrino and Van Winkler specifically mentioned actions pending against Sheriff Maciol, Officer Gerhardt, and Officer Cacoppla. (Id. at ¶ 21). Defendants Pezdek, Pelligrino and Van Winkler informed plaintiff that the GPS bracelet would be removed if the pending actions against Officers Gerhardt and Cacoppla were dismissed. (Id.). In response, plaintiff stated that he thought the GPS monitor was required “over some threats.” (Id. at ¶ 22). Defendant Van Winkler advised plaintiff that defendant Bonk “wrote a report of threats” that was the basis for the GPS monitor, but that it would be removed if the claims against various officers were dismissed. (Id. at ¶ 22). Plaintiff refused to dismiss the pending actions, and defendant Pelligrino placed the GPS monitor on plaintiff's leg so tightly that he could “hardly walk.” (Id. at ¶ 23). Defendants Pelligrino and Van Winkler refused plaintiff's request to loosen the GPS bracelet. (Id.).
The complaint further alleges that on or about August 6, 2024, plaintiff informed defendant Van Winkler that he was changing his address and would be living with Shauniece Turner. (Id. at ¶ 29). In response, defendant Van Winkler “grabbed plaintiff['s] face and gave him a kiss on the mouth.” (Id.). Plaintiff “jerked” backwards “surprise[d]” by defendant Van Winkler's advance. (Id.). Defendant Van Winkler also stated that “you [plaintiff] deal with all the wrong women you never look me in the eye, I'm the girl you need. I picked your file.” (Id. at ¶ 30). Defendant Van Winkler sat on plaintiff's lap and proceeded to fondle and squeeze his penis. (Id.). Plaintiff pushed defendant Van Winkler away. (Id.). Defendant Van Winkler responded that “now you[‘re] getting violated, you['re] going to regret that.” (Id.).
According to the complaint, when plaintiff was informed that he was “receiving a violation for a GPS failure to charge” he stated, “you keep giving me defective chargers.” (Id. at ¶ 31). In the presence of defendant Pezdek, defendant Van Winkler stated “[i]t's []part of the plan you'll be back in jail soon.” (Id.). The complaint further alleges that when plaintiff asked defendant Van Winkler whether the probation violation was a result of “that other shit from earlier,” she responded that everything would be fine if plaintiff lived at the shelter and not with other women. (Id. at ¶ 32). Plaintiff further alleges that defendants Pezdek and Van Winkler denied his request for the “directive for the GPS monitoring,” and directed him to leave the probation office or be arrested for trespassing. (Id. at ¶ 33).
On September 3, 2024, plaintiff alleges that he reported to parole and informed defendant Van Winkler that he could not be late for a job interview that morning. (Id. at ¶ 34). Defendants Traglia and Bektic detained plaintiff in a holding room and placed him in handcuffs and shackles. (Id.). Once detained, defendants Van Winkler and LaPorte strip searched plaintiff, looking for contraband. (Id. at ¶ 35). Once the strip search was completed, the complaint alleges that defendant Traglia broke the GPS charger and allowed plaintiff to leave the parole building. (Id.).
On September 4, 2024, defendant Van Winkler directed plaintiff to report to parole to replace the broken GPS charger. (Id.). Plaintiff informed defendant Van Winkler that he was in New York City for a job interview and requested that his mother meet defendant Van Winkler to exchange the GPS charger, which his mother failed to do. (Id.). Plaintiff missed the next bus to Utica. (Id.). Instead, plaintiff alleges that he reported to the parole office in Manhattan where the Senior Parole Officer contacted defendant Pezdek, who denied knowing plaintiff. (Id. at ¶ 36).
On or about September 6, 2024, plaintiff alleges that he was struck by a vehicle on his way to Penn Station. (Id. at ¶ 37). Plaintiff was transported to Harlem Hospital, but left because of the wait time. (Id.). In the interim, plaintiff lost his cell phone. (Id.).
Plaintiff boarded the next bus to Utica, New York and upon his arrival, proceeded to a hospital where he was diagnosed with a pinched nerve, rib contusion, and knee contusion. (Id. at ¶ 38). Plaintiff alleges that he asked his mother to inform defendant Van Winkler of his return to Utica, that he sustained injuries from an accident, that he lost his cell phone, and that he needed a new GPS charger. (Id. at ¶ 39). Plaintiff alleges that his mother failed to do so. (Id.).
According to the complaint, plaintiff's fiancee, a licensed nurse practitioner, “ordered” plaintiff to stay at her home while he recovered from his accident. (Id. at ¶ 40). Plaintiff then alleges that defendant Van Winkler and a parole task force entered his fiancee's home and “escorted plaintiff to a court.” (Id.). Defendant Van Winkler informed plaintiff that he had an “absconding warrant.” (Id. at ¶¶ 40, 41). Defendant Van Winkler “insisted” that plaintiff remain in custody because he was allegedly “30 minutes late to a preliminary hearing for her retaliation violation [from] 08/06/2024.” (Id. at ¶ 41).
Without specifying a date, the complaint alleges that plaintiff was contacted by a “client” who was incarcerated at Midstate Correctional Facility about representing him at a Tier III hearing. (Id. at ¶ 25). The complaint alleges that the incarcerated individual “made a deposit” in connection with the representation. (Id.). According to the complaint, defendants Van Winkler, Pozdek, and LaPorte informed plaintiff that he was not “legally a paralegal” and could not represent the incarcerated individual. (Id. at ¶ 26).
Plaintiff seeks compensatory damages in the amount of $150,000,00.00 and punitive damages in the amount of $20,000,000.00. (Compl. at pg. 15).
Page references are to those assigned by the CM/ECF system.
III. Eleventh Amendment
The court recommends that plaintiff's claims under Section 1983 against DOCCS, as well as his claims for damages against the individual defendants in their official capacities, be dismissed with prejudice pursuant to the Eleventh Amendment. “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogate[d] the states' Eleventh Amendment immunity ....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration in original) (quotation marks and citation omitted). “[T]he immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. (citation omitted). DOCCS is a state agency for purposes of the Eleventh Amendment. See Simmons v. Gowanda Corr. Facility, No. 13-CV-647, 2013 WL 3340646, at *2 (W.D.N.Y. July 1, 2013); see also Jackson v. Johnson, 985 F.Supp. 422, 426 (S.D.N.Y. 1997). Moreover, plaintiff's claims against the defendants in their official capacities are construed as claims against New York State, and are also barred by Eleventh Amendment immunity. See Drawhorne v. Aloise, 23-CV-1278 (TJM/TWD), 2023 WL 8188396, at *3 (N.D.N.Y. Nov. 27, 2023). This immunity shields states from claims for money damages, injunctive relief, and retrospective declaratory relief. See Green v. Mansour, 474 U.S. 64, 72-74 (1985). IV. Fifth Amendment
The court is mindful of the United States Supreme Court's decision Ex parte Young, 209 U.S. 123, 155-56 (908), where the Court held that “individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” Here, there are no allegations in the complaint that would invoke the exception to the immunity doctrine provided for in Ex parte Young.
The court recommends that plaintiff's Fifth Amendment claims against the defendants in their individual capacities be dismissed with prejudice, and without leave to amend. It is well settled that the Fifth Amendment Due Process Clause applies only to the federal government, and not to state or municipal governments. See Dusenbery v. United States, 534 U.S. 161, 167, (2002) (“The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without due process of law.”); see also Poe v. Ullman, 367 U.S. 497, 540 (1961) (explaining that prohibitions “against the deprivation of life, liberty or property without due process of law” set forth in Fourteenth Amendment are applicable to state government and same prohibitions in Fifth Amendment are applicable to “the Federal Government”); Robinson v. Wright, No. 5:21-CV-1098 (TJM/ML), 2022 WL 2663369, at *3 (N.D.N.Y. Jul. 11, 2022) (plaintiff's Fifth Amendment claims dismissed where no allegations made against any federal official); Ambrose v. City of New York, 623 F.Supp.2d 454, 466-67 (S.D.N.Y. 2009) (holding that any due process claim “against the City is properly brought under the Fourteenth Amendment, not the Fifth Amendment”); Mitchell v. Home, 377 F.Supp.2d 361, 372-73 (S.D.N.Y. 2005) (“The Fifth Amendment's Due Process Clause protects citizens against only federal government actors, not State officials. Any due process rights plaintiff enjoys as against state government officials ... arise solely from the Fourteenth Amendment due process clause.” (internal citations omitted)).
The complaint does not allege that any federal official violated plaintiff's Fifth Amendment due process rights. Rather, all of plaintiff's allegations are against state officials. Accordingly, plaintiff's due process claims, if any, may only be brought under the Fourteenth Amendment, not the Fifth Amendment. See Dusenbery, 534 U.S. at 167 (explaining that Fifth Amendment does not apply to State officials).
V. Fourteenth Amendment
A. Legal Standard
The Fourteenth Amendment provides that a state may not deprive a person of liberty or property “without due process of law.” U.S. Const. amend. XIV. The Due Process Clause contains both a procedural and substantive component. Procedural due process claims concern the “adequacy of the procedure provided by [a] governmental body for the protection of liberty or property rights of an individual.” Sanchez v. Univ. of Connecticut Health Care, 292 F.Supp.2d 385, 397 (D. Conn. 2003) (citation omitted). To successfully state a claim under section 1983 for denial of procedural due process, a plaintiff must show that he or she 1) possessed an actual liberty or property interest, and 2) was deprived of that interest without being afforded sufficient process. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004); see also Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (citations omitted).
In addition to its governance over fair process, the Fourteenth Amendment “cover[s] a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them.” Hurd v. Fredenburgh, No. 193482, 2021 WL 96886, at *7 (2d Cir. Jan. 12, 2021) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840, (1998) (internal quotation marks and citations omitted)). “Substantive due process rights safeguard persons against the government's exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Id. (quoting Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012) (internal quotation marks and citation omitted).
B. Analysis
Here, the complaint plausibly alleges that defendants Van Winkler, LaPorte, Pezdek, and Pelligrino, in their individual capacities, violated plaintiff's Fourteenth Amendment rights when they arbitrarily imposed and/or enforced a GPS monitoring requirement in connection with plaintiff's parole. Whether the justification for placing plaintiff on GPS monitoring because of threats he made while incarcerated (against correctional officials, parole officers and their families) (Compl. at ¶¶ 16, 22) or because of claims he filed against various correctional officials (Compl. at ¶¶ 21, 22) was arbitrary cannot, and will not, be decided by the court at this early juncture. For that reason, the court recommends that plaintiff be permitted to pursue his due process claim challenging the GPS monitoring imposed by these defendants beyond the court's initial review. In doing so, the court renders no opinion as to whether plaintiff can withstand a properly filed dispositive motion as to these claims.
Last, the complaint should be dismissed without prejudice and with leave to amend as to defendant Bonk regarding any Fourteenth Amendment claims, as it is devoid of any allegations giving rise to such a claim against this defendant.
VI. Eighth Amendment
The court recommends that plaintiff's Eighth Amendment claims for cruel and unusual punishment be dismissed with prejudice, and without leave to amend, against the defendants in their individual capacities. Although the Second Circuit has not definitively addressed the issue, a parolee's claim that he was subjected to excessive force during an arrest for a parole violation arises under the Fourth Amendment, not the Eighth Amendment. See Rushion v. NYS Div. of Parole, No. 13-CV-4277, 2016 WL 5255812, at *4 (E.D.N.Y. Sept. 21, 2016) (“Allegations by a parolee that he was subjected to excessive force while being arrested by his parole officer for a parole violation are analyzed under the Fourth Amendment.”); see also Rivera v. Madan, No. 10-CV-4136, 2013 WL 4860116, at *8 (S.D.N.Y. Sept. 12, 2013) (“The Fourth Amendment applies to an excessive force claim brought by a parolee in connection with some new offense or violation parole officers believed had been committed.” (alteration omitted) (internal quotation marks omitted)); Turner v. White, 443 F.Supp.2d 288, 294 (E.D.N.Y. 2005). “The rationale is straightforward: when officers use force against a parolee they suspect of violating the conditions of his parole, they are effecting a ‘seizure' of the parolee for committing a new offense, not a ‘punishment' for committing the crime for which he was convicted.” Cox v. Fischer, 248 F.Supp.3d 471, 479 (S.D.N.Y. Mar. 31, 2017) (quoting U.S. Const. amends IV, VIII).
VII. Fourth Amendment
A. Legal Standard
i. Unreasonable Search and Seizure
The Fourth Amendment protects people from “unreasonable searches and seizures.” U.S. Const. amend. IV. “Whether a search is reasonable ‘is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.'” United States v. Massey, 461 F.3d 177, 178 (2d Cir. 2006) (quoting Samson v. California, 547 U.S. 843, 848, (2006)). “Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979) (citations omitted). “Courts must ‘examin[e] the totality of the circumstances' surrounding the search, which includes Plaintiff's status as a parolee,” Rivera v. Madan, No. 10-CV-4136, 2013 WL 4860116, at *4 (S.D.N.Y. Sept. 12, 2013) (citations omitted), as parolees “have severely diminished expectations of privacy by virtue of their status alone.” Samson, 547 U.S. at 852; see also Massey, 461 U.S. at 179 (“A parolee's reasonable expectations of privacy are less than those of ordinary citizens” (citations omitted)). “While parolees possess diminished Fourth Amendment protections, and the precise scope of the protections they retain is uncertain, a parolee still enjoys a level of Fourth Amendment protection that is greater than the de minimis Fourth Amendment protection that incarcerated inmates retain.” Rivera, 2013 WL 4860116, at *5 (citing Hope v. Goines, No. 00-CV- 3476, 2002 WL 2003201, at *3 (E.D.N.Y. Aug. 8, 2002)) (internal quotation marks omitted).
The Second Circuit addressed the standard applicable to the search of a parolee by a parole officer in United States v. Braggs, 5 F.4th 183 (2d Cir. 2021). In Braggs, the Second Circuit noted the distinction between the Supreme Court's decision in Samson, which involved the search of a parolee by a police officer, and the situation presented in Braggs, where a parolee was searched by a parole officer. Id. at 187-88; see also Samson, 547 U.S. at 857 (“[T]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.”). The court noted that although it had “continued to abide by the Special Needs standard for parole searches, the trial courts in this Circuit have at times misunderstood the Supreme Court's decision in Samson . . . as undermining our Special Needs jurisprudence.” Braggs, 5 F.4th at 187. Under the Special Needs Doctrine, “a parole officer may search a parolee so long as the search is reasonably related to the performance of the officer's duties[.]” Id. at 184; see also Id. at 188 (“[a]pplying the Special Needs Doctrine, we conclude that the search of Braggs's house was reasonably related to the performance of the DOCCS officers' duties and therefore constitutionally permissible,” and “[b]ecause a search undertaken by a parole officer of a parolee to detect parole violations is reasonably related to the parole officer's duties, such a search is permissible under the Special Needs framework and accordingly comports with the Fourth Amendment.” (alterations, citations, and quotations omitted)); see also United States v. Lambus, 897 F.3d 368, 403 (2d Cir. 2018) (“New York law authorizes a parole officer to search a parolee's home or person, without a search warrant, if the search is ‘rationally and reasonably related to the performance of his duty as a parole officer.' ”) (quoting People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794 (1977)); United States v. Grimes, 225 F.3d 254, 258, 259 n.4 (2d Cir. 2000) (explaining that “parole justifies some departure from traditional Fourth Amendment standards” and “a search of a parolee is permissible so long as it is reasonably related to the parole officer's duties”).
ii. Excessive Force
The consensus among the district courts in this Circuit strongly favors the application of Fourth Amendment principles to a parolee's excessive force claim. See, e.g., Horace v. Gibbs, No. 14-CV-655S, 2017 WL 4344435, at *4 (W.D.N.Y. Sept. 29, 2017) (“Although Horace identifies the Eighth Amendment as the source of his excessive force claim, it in fact arises under the Fourth Amendment, because the excessive force is alleged to have occurred during a parolee's arrest for a parole violation.” (collecting cases)); Cox v. Fischer, 248 F.Supp.3d 471, 479 (S.D.N.Y. 2017) (“As several courts have recognized, a parolee's claim that he was subjected to excessive force in the course of an arrest for a parole violation arises under the Fourth Amendment, not the Eighth Amendment.” (collecting cases)); Towsley v. Frank, No. 5:09-CV-23, 2010 WL 5394837, at *5 (D. Vt. Dec. 28, 2010) (noting that “the weight of authority, including decisions from district courts in the Second Circuit, favors applying the Fourth Amendment standard” to excessive force claims brought by a parolee); Turner, 443 F.Supp.2d at 296 (noting that “[t]he status of a parolee who seeks to bring claims of excessive force against his parole officer is unsettled in this Circuit,” but stating that those cases that “have held that constitutional claims by parolees are governed by an Eighth and Fourteenth Amendment analysis . . . appear to be contrary to the approach followed by district courts in this Circuit” (citing cases)).
Pursuant to this standard, three elements must be objectively examined to determine whether excessive force was used for Fourth Amendment violations: “(1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; and (3) the extent of the injury inflicted.” Graham v. Connor, 490 U.S. 386, 390, 397 (1989). The “extent of intrusion on the suspect's rights” must be balanced against the “importance of governmental interests.” Tennessee v. Garner, 471 U.S. 1, 8 (1985). The standard for excessive force under the Fourth Amendment is not a demanding one. See, e.g., Castro v. Cnty. of Nassau, 739 F.Supp.2d 153, 176 (E.D.N.Y. 2010) (plaintiff's testimony that handcuffs “left imprints on his wrists and caused his wrists to become ‘red and sore,' ” was sufficient); Sforza v. City of New York, No. 07-CV-6122, 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009) (“bruising and other nonpermanent injuries are sufficient” to prevail in an excessive force claim). “It is the force used, not the injuries caused, which must be determined to be de minimis as a matter of law.” Campbell v. City of New York, No. 06-CV-5743, 2010 WL 2720589, at *8 (S.D.N.Y. June 30, 2010); see also Pulliam v. Lilly, No. 07-CV-1243, 2010 WL 935383, at *4 (E.D.N.Y. Mar. 11, 2010) (“[T]he record is devoid of any evidence reflecting a reason for the use of any force during the interrogation, i.e., that plaintiff was acting aggressively or otherwise posed a threat to the officers during the interrogation. Accordingly, the use of more than de minimis force, if even that, under the circumstances presented here, would not be objectively reasonable.”); Yang Feng Zhao v. City of New York, 656 F.Supp.2d 375, 391 (S.D.N.Y. 2009) (holding that during interrogation at police precinct, where there is “no reason for any use of force,” then “any force is potentially illegitimate”).
B. Analysis
Liberally construed, the complaint plausibly alleges violations of plaintiff's Fourth Amendment rights. Specifically, plaintiff alleges that upon reporting to the parole office, defendants Traglia and Bektic placed him in “handcuffs and shackles,” and that defendants Van Winkler and LaPorte “stripped searched him and anally penetrated him.” (Compl. at ¶¶ 34, 35). Plaintiff was informed that the basis for his search was that he “might” have come to the parole office with drugs to take into the jail, but also alleges that the defendants' conduct was, in fact, an effort to make plaintiff late to his job interview. Id. To the extent that plaintiff pleads the strip/body cavity search was conducted for reasons that are arbitrary, capricious, or harassing, the court recommends that plaintiff's fourth amendment claims as against defendants Traglia, Bektic, Van Winkler, and LaPorte survive sua sponte review. See Ficklin v. Rusinko, 6:18-CV-6310, 2020 WL 5513812, at *6 (W.D.N.Y. Sept. 14, 2020). In so ruling, the court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
As to the GPS monitor, the complaint alleges that “Pelligrino applied the bracelet so tight,” plaintiff could “hardly walk.” (Compl. at ¶ 23). Plaintiff further states that Van Winkler and Pelligrino applied the GPS monitor “so tight it caused no blood circulation, laceration, bruising and swelling[,]” and that after plaintiff informed the defendants of his injury, the defendants stated, “drop those lawsuits nigger.” (Id. at ¶ 52). On these facts, the court recommends that that plaintiff's claims for violations of his Fourth Amendment rights against defendants Van Winkler and Pelligrino survive sua sponte review. In so ruling, the court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
Plaintiff has also alleged a series of sexually harassing conduct by the defendant Van Winkler. Specifically, plaintiff alleges that defendant Van Winkler grabbed plaintiff's face and kissed him. (Compl. at ¶ 29). The complaint further alleges that defendant Van Winkler “fondled” and “squeezed” plaintiff's penis. (Compl. at ¶ 30). On these facts, the court recommends that that plaintiff's claims for violations of his Fourth Amendment rights against defendant Van Winkler survive sua sponte review. In so ruling, the court expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.
The court further recommends that any Fourth Amendment claims against defendants Bonk and Pezdek be dismissed, without prejudice and with leave to amend, as the complaint is devoid of any allegations against them giving rise to a Fourth Amendment claim.
VIII. First Amendment
A. Legal Standard
It is well settled that an inmate has a constitutional right under the First Amendment to file grievances, and prison officials may not retaliate against an inmate for exercising that right. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). The same holds true with respect to the filing of a federal lawsuit. See Colombo v. O'Connell, 310 F.3d 115, 118 (2d Cir. 2002); Everitt v. DeMarco, 704 F.Supp.2d 122, 132 (D. Conn. Mar. 30, 2010) (“It is well-established that the filing of a lawsuit . . . is constitutionally protected by the First Amendment.”). The Second Circuit has held that retaliation against a prisoner for pursuing a grievance violates the right to petition the government for the redress of grievances and is actionable under Section 1983. See Graham, 89 F.3d at 80; see also Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988) (citations omitted). This rule has been applied to parolees as well. See McCloud v. Kane, 491 F.Supp.2d 312 (E.D.N.Y. Jun. 4, 2007) (citing United States v. Polito, 583 F.2d 48, 54 (2d Cir. 1978)) (“Parole is not freedom. A parolee is a convicted criminal who has been sentenced to a term of imprisonment and who has been allowed to serve a portion of that term outside prison walls.”).
B. Analysis
The complaint plausibly alleges that defendants Van Winkler, Pezdek, Pelligrino, and LaPorte retaliated against plaintiff for having filed various grievances, PREA claims, and lawsuits while incarcerated. Accordingly, the court recommends that plaintiff's First Amendment claims against these defendants survive sua sponte review and that a response be required. Plaintiff's First Amendment claims against defendant Bonk, however, should be dismissed without prejudice, as the complaint is devoid of any allegations against him having participated in the alleged retaliatory behavior, beyond having authored a report.
Further, the court recommends that plaintiff's claims arising from the denial of his “right” (Compl. at ¶ 50) to “litigate at Tier III hearings, provide legal assistance to incarcerated individuals and conduct legal visits as a paralegal to correctional facilities” (Compl. at ¶ 50) be dismissed without prejudice. “[W]hile prisoners have a constitutional right of access to the courts, they do not have a constitutional right to assist other inmates in petitioning the courts.” Miller v. Loughren, No. 9:99-CV-2068 (HGM/RFT), 2003 U.S. Dist. LEXIS 7093, at *20 (N.D.N.Y. Jan. 21, 2003), report recommendation approved in part and rejected in part, 258 F.Supp.2d 61 (Apr. 23, 2003) (citing Shaw v. Murphy, 532 U.S. 223, 231 (2001) (a prisoner possesses no First Amendment right to provide legal assistance to other prisoners)); see also Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990) (no constitutional right to assist other inmates with legal claims). While there is no independent right to provide legal assistance to other inmates, “prison officials may not prevent such assistance or retaliate for providing such assistance where no reasonable alternatives are available.” See Loughren, 2003 U.S. Dist. LEXIS 7093 (quoting Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). Absent from plaintiff's complaint are any allegations that no alternatives were available to the incarcerated individual that plaintiff sought to help.
IX. Opportunity To Amend
Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted).
The court will recommend that application of the Eleventh Amendment warrants dismissal of the complaint with prejudice and without leave to amend against DOCCS and the defendants in their official capacities.
The court will also recommend that plaintiff's claims under the Fifth Amendment and Eighth Amendment be dismissed with prejudice and without leave to amend, as they are futile. See Ruffolo, 987 F.2d at 131.
The court will further recommend that the following claims survive sua sponte review, and require a response from the defendants:
1. Plaintiff's Fourteenth Amendment due process claims against defendants Van Winkler, LaPorte, Pezdek, and Pelligrino; and
2. Plaintiff's Fourth Amendment excessive force/unreasonable search and seizure claims against defendants Traglia, Bektic, Van Winkler, LaPorte, and Pelligrino; and
3. Plaintiff's First Amendment retaliation claims against defendants Van Winkler, Pezdek, Pelligrino, and LaPorte except for any claims arising from arising from the denial of his “right” (Compl. at ¶ 50) to “litigate at Tier III hearings, provide legal assistance to incarcerated individuals and conduct legal visits as a paralegal to correctional facilities” (Compl. at ¶ 50).
The court otherwise recommends that the remainder of plaintiff's complaint be dismissed without prejudice.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED,and it is
The court notes that, although plaintiff's application to proceed IFP has been granted, plaintiff will still be required to pay fees that they may incur in the future regarding this action, including, but not limited to, copying and/or witness fees.
RECOMMENDED, that the district court DISMISS plaintiff's claims against defendant DOCCS and the individual defendants in their official capacities WITH PREJUDICE AND WITHOUT LEAVE TO AMEND, and it is
RECOMMENDED, that the district court DISMISS plaintiff's Fifth Amendment and Eighth Amendment claims WITH PREJUDICE and WITHOUT LEAVE TO AMEND, as they are futile, and it is
RECOMMENDED, that the following claims survive the court's initial review and require a response from the named defendants:
1. Plaintiff's Fourteenth Amendment due process claims against defendants Van Winkler, LaPorte, Pezdek, and Pelligrino; and
2. Plaintiff's Fourth Amendment excessive force/unreasonable search and seizure claims against defendants Traglia, Bektic, Van Winkler, LaPorte, and Pelligrino; and
3. Plaintiff's First Amendment retaliation claims against defendants Van Winkler, Pezdek, Pelligrino, and LaPorte except for any claims arising from the denial of his “right” (Compl. at ¶ 50) to “litigate at Tier III hearings, provide legal assistance to incarcerated individuals and conduct legal visits as a paralegal to correctional facilities” (Compl. at ¶ 50); and it is
RECOMMENDED, that the remainder of the claims set forth in plaintiff's complaint be dismissed without prejudice, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order and ReportRecommendation on plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.