Opinion
3:19-cv-00868 (TJM/TWD)
02-01-2021
JOE W. PEEPLES, III, Plaintiff, v. FBI AGENT CHRIS FIORITO, et al., Defendants.
APPEARANCES: JOE W. PEEPLES, III Plaintiff, pro se 40425-048 USP POLLOCK U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 2099 Pollock, LA 71467
APPEARANCES: JOE W. PEEPLES, III
Plaintiff, pro se
40425-048
USP POLLOCK
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 2099
Pollock, LA 71467 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for initial review the amended complaint in this action, brought pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by pro se Plaintiff Joe W. Peeples, III. (Dkt. No. 19.) For the reasons set forth below, the Court recommends that Plaintiff's amended complaint (Dkt. No. 19) be dismissed in its entirety for failure to state a claim upon which relief may granted and without further leave to replead.
I. BACKGROUND
The Court granted Plaintiff's application to proceed in forma pauperis in its Order and Report-Recommendation filed in the case on July 20, 2019. (Dkt. No. 16.) Generally, in the original complaint, Plaintiff claimed Defendants Federal Bureau of Investigation Agents Chris Fiorito and John Bokal, the Department of Justice, and local agencies and officers, violated his rights during and after an arrest in Binghamton, New York when they transported him away from that city to face charges in another federal judicial district. (Dkt. No. 9.)
On initial review conducted pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, the Court recommended that Plaintiff's complaint be dismissed with prejudice in part and with leave to replead in part (the "July Report-Recommendation"). (Dkt. No. 16.) Plaintiff did not file objections to the Report-Recommendation.
By Decision & Order filed October 19, 2020, the Honorable Thomas J. McAvoy, Senior United States District Judge, accepted and adopted the July Report-Recommendation in its entirety for the reasons stated therein. (Dkt. No. 17.) Accordingly, it was Ordered that Plaintiff's complaint be dismissed in part and dismissed with leave to replead in part, as follows:
1. Any claims against Defendants the United States Department of Justice, the Binghamton PD Lock-up, and the Binghamton Sheriff are hereby DISMISSED WITH PREJUDICE;
2. Any claims brought pursuant to 18 U.S.C. § 242 in which Defendant seeks criminal prosecution of Defendants or others are hereby DISMISSED WITH PREJUDICE;
3. Any Eighth Amendment claims are hereby DISMISSED WITH PREJUDICE;
4. Any Fourth Amendment claims are hereby DISMISSED WITHOUT PREJUDICE TO REPLEADING; and
5. All remaining claims are hereby DISMISSED WITHOUT PREJUDICE as barred by Heck v. Humphrey, 512 U.S. 477 (1994).Id. at 2-3. Plaintiff was advised that an amended complaint supersedes in all respects the prior pleading. Id. at 3. He was instructed that any amended complaint must be a complete pleading and include all facts and claims not otherwise dismissed by the Court with prejudice. Id. He was advised to properly allege in the amended complaint all factual bases for all claims asserted therein, and that the amended complaint must be in compliance with Rules 8 and 10 of the Federal Rules of Civil Procedure. Id.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Legal Standard
28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is 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).
To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Similarly, 28 U.S.C. § 1915A, directs that a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A.
When reviewing a complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, courts are guided by applicable requirements of the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain
(1) a short and plain statement of the grounds for the court's jurisdiction . . .;Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense." Hudson v. Artuz, No. 95 Civ. 4768(JSR), 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Rule 10 of the Federal Rules of Civil Procedure provides, in part:
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.Fed. R. Civ. P. 10(b). The purpose of Rule 10 is to "provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]" Laspisa v. Citifinancial Does 1 to 20, 269 F. Supp. 3d 11, 13 (N.D.N.Y. 2017) (citations omitted).
A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. Thus, a pleading that contains only allegations which "are so vague as to fail to give the defendants adequate notice of the claims against them" is subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Analysis
Plaintiff's amended complaint, like his original complaint, alleges Defendants Federal Bureau of Investigation Agents Chris Fiorito and John Bokal, the Department of Justice, and local agencies and officers, violated his rights in Binghamton, New York when, following his arrest, they transported him away from that city to face charges in another federal judicial district. (Dkt. No. 19.) Specifically, Plaintiff claims that on January 6, 2017, "unknown" law enforcement officers "illegally gained custody of [his] body from Binghamton Jail without any legal paper work at all." Id. at 2. Plaintiff claims FBI Agent Fiorito "with the assistance from unknown person at the Binghamton Jail" and against Plaintiff's will "without any controlling legal documents" "force[d]" Plaintiff to "remove all of [his] clothes, bend over and spread [his] cheeks and cough." Id. at 4. Plaintiff claims he was "only accused of a crime" by Agent Bokal with no other probable cause determination and "was forcibly placed into an SUV and kidnapped." Id. He claims he was "sexually exploited and kidnapped" in violation of his constitutional rights under the Fourth and Fourteenth Amendments. Id. at 5.
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff alleges he is being incarcerated "illegally" and was denied his "due process" in that he was denied a preliminary hearing in the "district of arrest" before an impartial magistrate judge. Id. at 1-2. "To this day," Plaintiff has "been usurped by these actions against all written rule of law and the U.S. Constitution" and "has no signature of affirmation or attestment on my indictment or criminal affidavit." Id. at 5. Plaintiff seeks monetary damages. Id. at 5. For a complete statement, reference is made to the amended complaint. (Dkt. No. 19.)
1. Claims against the United States Department of Justice, the Binghamton PD Lock-up, and the Binghamton Sheriff
Plaintiff lists the "DOJ, et al." as Defendants in the caption of the amended complaint. (Dkt. No. 19 at 1.) As set forth above, the District Court dismissed any claims against the United States Department of Justice, the Binghamton PD Lock-up, and the Binghamton Sheriff with prejudice. (Dkt. No. 17.) Therefore, the Court recommends these Defendants be terminated from the Docket.
2. Fourth Amendment Claims Related to Visual Body Cavity Search
As discussed in the July Report-Recommendation, the Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion," Katz v. United States, 389 U.S. 347, 350 (1967), and its protections extend to prisoners and pretrial detainees, see Bell v. Wolfish, 441 U.S. 520, 545, 559 (1979). (Dkt. No. 16.) However, the Supreme Court has recognized that "correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities." Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328 (2012); see also Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992) ("Although inmates do possess a limited right to bodily privacy, some aspects of that right must yield to searches for contraband, even random visual body-cavity searches, so that prison administrators may maintain security and discipline in their institutions.").
Here, Plaintiff claims FBI Agent Fiorito "with the assistance from unknown person at the Binghamton Jail" and against Plaintiff's will "without any controlling legal documents" "force[d]" Plaintiff to "remove all of [his] clothes, bend over and spread [his] cheeks and cough." (Dkt. No. 19 at 4.) To be sure, "[a] strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person's body, is a serious invasion of privacy." Harris, 818 F.3d at 58 (quoting Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 344-45 (2012) (Breyer, J., dissenting)). But a constitutional violation requires more—for example, "that the search was excessive, was needlessly prolonged[,] . . . was otherwise meant to intimidate, harass or punish him," Perez v. Ponte, 236 F. Supp. 3d 590, 624 (E.D.N.Y. 2017), report and recommendation adopted by 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017), or was "conducted in the presence of unnecessary spectators." Harris, 818 F.3d at 62.
Here, Plaintiff's allegations do not suggest that the visual body search "did not serve a legitimate penological purpose" or that it was "instead designed to intimidate, harass, or embarrass" him. Rather, Plaintiff claims he was being held and subject to the visual body search "without any controlling legal documents" at the Binghamton jail. As pleaded, Plaintiff's allegations do not amount to a constitutional violation "because Florence permits corrections officers to strip search detainees without particularized suspicion . . . and recognizes that strip searches are specifically 'designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches.'" Chaney v. City of Albany, No. 6:16-CV-1185 (NAM/TWD), 2019 WL 3857995, at *7 (N.D.N.Y. Aug. 16, 2019) (quoting Thompson v. City of New York, No. 16-CV-824, 2017 WL 1929552, at *2 (S.D.N.Y. May 9, 2017)).
Therefore, the Court recommends dismissing Plaintiff's Fourth Amendment claims related to the visual body cavity strip search against Defendant FBI Agent Fiorito and the "unknown individual" pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because Plaintiff has already been afforded an opportunity to amend this claim, the Court recommends dismissal without leave to replead.
3. Remaining Claims barred by Heck
Like the original complaint, Plaintiff claims he is "illegally" incarcerated and alleges violations of his constitutional rights when, inter alia, he was denied due process and a preliminary hearing in the district of arrest. (See generally Dkt. No. 19.) However, as set forth in the July Report-Recommendation, a civil lawsuit may not be used to collaterally attack a criminal conviction. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [Section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.Id. at 486-87 (internal footnote omitted). Although Heck involved a Section 1983 claim, the Second Circuit has held that the rationale of Heck applies equally to a Bivens action. See Tavarez v. Reno, 54 F.3d at 110; see also Maietta v. Artuz, 84 F.3d 100, 103 n.1 (2d Cir. 1996).
Broadly stated, Heck precludes a prisoner from using Section 1983 and/or Bivens as a vehicle to obtain damages where success on the particular constitutional claims alleged would necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement. Poventud v. City of N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc). Thus, under Heck and its progeny, a Section 1983 and/or Bivens action "is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original). "Disposition of the claims on Heck grounds, however, warrants only dismissal without prejudice, because the suit may be reinstituted should plaintiff's conviction be 'expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.'" Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (quoting Heck, 512 U.S. at 487) (other citations omitted).
Here, Plaintiff has not pleaded any new facts in the amended complaint suggesting the Heck bar has disappeared. On the contrary, Plaintiff claims "to date" he is still being "illegally" incarcerated because he was denied due process at a preliminary hearing and challenges the validity of his indictment or criminal affidavit. (Dkt. No. 1 at 1, 5.) It thus does not appear that Plaintiff's conviction has been invalidated, and — given the nature of his allegations — the success of his claims would necessarily imply the invalidity of his conviction or sentence.
Therefore, the Court recommends dismissing Plaintiff's remaining claims, if any, which would necessarily imply the invalidity of his current conviction or sentence, be dismissed without prejudice as barred under Heck unless and until such time as Plaintiff's conviction is overturned or his sentenced invalidated. See Amaker, 179 F.3d at 52.
ACCORDINGLY, for the reasons set for above, it is hereby
RECOMMENDED that the amended complaint (Dkt. No. 19) be DISMISSED IN ITS ENTIRETY WITHOUT FURTHER LEAVE TO REPLEAD for failure to state a claim upon which relief may be granted; and it is further
RECOMMENDED that the Clerk be directed to terminate the U.S. Dept. of Justice, Binghamton PD Lock-up, and Binghamton Sheriff from the Docket; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2015); Fed. R. Civ. P. 72, 6(a). Dated: February 1, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge