Opinion
6:23-cv-01171-AMN-TWD
11-14-2023
RONALD HESTER, Plaintiff, v. CITY OF ONEIDA et al., Defendants.
APPEARANCES RONALD HESTER Plaintiff, pro se
APPEARANCES
RONALD HESTER
Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
The Clerk has sent the Court a civil rights complaint filed by Ronald Hester (“Plaintiff”) for initial review pursuant to 28 U.S.C. § 1915. (Dkt. No. 1.) Plaintiff also filed a motion to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
II. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. (Dkt. No. 2.) After reviewing Plaintiff's application, this Court finds he is financially eligible for IFP status. Therefore, Plaintiff's IFP application is granted.
III. STANDARD OF REVIEW
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action if the Court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting 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 internal quotation marks omitted). However, 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).
IV. BACKGROUND
A. The Arrest, Search, and Questioning of Plaintiff
On the morning of January 5, 2023, Det. Salle of the Rome Police Department was conducting surveillance in the “500 block” of North Madison Street in Oneida County in relation to a recent “shots fired” investigation. (Dkt. No. 1 at 5; Dkt. No. 1-1 at 2.) During the surveillance of the residence located at 506 North Madison Street, Det. Salle observed two black males and one white female exit the residence and enter a red Honda sedan. (Dkt. No. 1 at 5; Dkt. No. 1-1 at 2.) Det. Salle contacted other members of the Rome Police Department and relayed that the sedan had an expired Florida registration; the owner of the sedan, Plaintiff, had a suspended New York Driver's License; and Jessica Reed was driving the vehicle. (Dkt. No. 1 at 5.) Officers Page and Zonnevylle conducted a traffic stop of the sedan due to its expired registration in the “400 block” of North George Street. Id. Ms. Reed told the officers she had a suspended license. Id. at 5, 7. The officers took Ms. Reed into custody and placed her in the back of the patrol vehicle. Id. at 7.
Although Det. Salle's last name is spelled “Salley” in the caption of the complaint, the Court uses the spelling provided in the attached state court opinion. (Dkt. No. 1-1 at 1-13.) The Clerk is directed to correct the spelling to Salle on the docket.
Per his bodycam footage, Officer Page spoke with the two black males who were still in the vehicle. Id. Plaintiff was sitting in the front passenger seat and identified himself to Officer Page. Id. Upon being told the vehicle was being towed, Plaintiff and the other man exited the vehicle. Id. Because they were not detained, they left the scene shortly after exiting the vehicle. Id.
According to Officer Page, he began an inventory search of the vehicle pursuant to Rome Police Department policy prior to the arrival of the tow truck. Id. However, Officer Page “did not complete the inventory record of the entire contents of the vehicle.” (Dkt. No. 1 at 7; Dkt. No. 1-1 at 3.) As Officer Page “searched for ‘something big,'” he came across a handgun in the spare tire compartment of the vehicle. (Dkt. No. 1-1 at 3.) Per his bodycam footage, Officer Page told Officer Zonnevylle he ceased the inventory search upon finding the gun. Id. Officer Zonnevylle later testified he completed the inventory search record of the vehicle the next day. Id.
After securing the gun, the police located Plaintiff and took him into custody. Id. at 4. While at the Rome Police Station, Det. Salle read Plaintiff his Miranda warnings. Id. Plaintiff stated he understood his rights and agreed to speak with the detective. Id.
Det. Salle interviewed Plaintiff twice. Id. At the first interview, Plaintiff denied any knowledge of the recovered gun. Id. Plaintiff then underwent a visual body cavity search. Id.
Plaintiff was directed to remove his clothes and then squat and cough in the presence of Officer White. Id. Officer White observed a “foreign object” under Plaintiff's scrotum and directed him to remove the item and place it on the floor. Id. The item was suspected to be cocaine. Id.
Det. Salle later testified the search was conducted “based solely on [Plaintiff's] history for a drug offense and no other reason.” Id. On the police department's “Unclothed Search Form,” Det. Salle indicated “the sole reason the unclothed search was performed was based upon the fact that [Plaintiff's] criminal history showed him having an undated ‘CSCS 3rd' offense.” Id.
After the visual body cavity search, Det. Salle interviewed Plaintiff again and Plaintiff discussed the recovered gun. Id.
B. Suppression of Certain Evidence
Plaintiff was indicted for Criminal Possession of a Controlled Substance in the Third Degree; Criminal Possession of a Weapon in the Second Degree; and Criminal Possession of a Firearm. Id. at 1. Plaintiff moved to suppress certain oral statements he made to law enforcement personnel “involuntarily” and certain evidence that was allegedly seized in violation of his constitutional rights. Id.
Hon. Robert L. Bauer of Oneida County Court found the inventory search of Plaintiff's car was not legal as it was equivalent to an “impermissible ‘general rummaging' to discover incriminating evidence” and accordingly suppressed the recovered gun from evidence. Id. at 9 (citation omitted).
Judge Bauer further found previous drug offenses from nine years ago, standing alone “with no further ‘specific, articulable, factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity' [were] not enough to justify the distinctly elevated level of intrusion'” of the visual body cavity search and accordingly suppressed the cocaine recovered from Plaintiff's person. Id. at 10 (citation omitted).
Additionally, Judge Bauer found the statements Plaintiff made to the officers at the scene prior to his arrest were voluntarily made, were not subject to Miranda, were not in violation of Plaintiff's constitutional rights, and would be admissible at trial. Id. at 11.
However, Judge Bauer held “those statements [Plaintiff] made after having duly waived his [ Miranda ] rights resulted from the aforementioned illegal searches and are accordingly suppressed as fruit of the poisonous tree.” Id. at 12 (citations omitted). Judge Bauer noted
the testimony and evidence admitted at the hearing, the police actions in stopping the Honda and impounding same as no valid driver was on scene, to searching its contents and finding the gun, then subsequently directing that defendant be taken into custody, Mirandized and interviewed regarding the recovered gun, then strip searched whereupon drugs were recovered, which led to defendant's second interview, constituted one continuous chain of events.Id.
Further, there was nothing in the record “to show the taint of the illegal search of the vehicle had become attenuated so that the gun would have been independently discovered or that for any other reason the gun was not come by exploitation of that illegality.” Id. (internal quotation marks and citations omitted). Judge Bauer applied the same reasoning to the “illegal, invasive search” of Plaintiff's person which yielded cocaine. Id. at 13.
C. The Current Action
Plaintiff commenced this action on September 12, 2023, against the City of Oneida, the Rome Police, the Oneida County Police, the Oneida County Sheriff's Department, Det. Salle, Officer Zonnevylle, Officer Page, and Officer White alleging violations of his Fourth Amendment rights, false arrest, false imprisonment, and an illegal cavity search of his person. (Dkt. No. 1 at 6.) He seeks $5,000,000 in damages and “the [s]uspension and/or [t]ermination of all officers involved.” Id.
V. DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (internal quotations and citations omitted). To state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege that the challenged conduct: (1) was attributable to a person acting under color of state law; and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). To establish liability under the statute, a plaintiff must plead that each government official defendant violated the Constitution through that official's own individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). An official may not be held liable for constitutional violations simply because he held a high position of authority. Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016). “Section 1983 claims against municipal employees sued in their official capacity are treated as claims against the municipality itself.” Ortiz v. Wagstaff, 523 F.Supp.3d 347, 361 (W.D.N.Y. 2021) (internal quotations and citation omitted). A municipality cannot be held liable under Section 1983 unless the challenged action was undertaken pursuant to a municipal policy, custom, or practice. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
A. City of Oneida
To begin, Plaintiff's claims against the City of Oneida must be dismissed. A municipality can be liable under § 1983 only if a plaintiff can show that a municipal policy or 7 custom caused the deprivation of his constitutional rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). The doctrine of respondeat superior cannot be used to establish municipal liability. Connick v. Thompson, 563 U.S. 51, 60 (2011); Cash v. County of Erie, 654 F.3d 324, 333-34 (2d Cir. 2011); Dzugas-Smith v. Southhold Union Free School Dist., No. 08 CV 1319, 2012 WL 1655540, at *20 (E.D.N.Y. May 9, 2012). Here, Plaintiff does not allege, and nothing in his complaint suggests, that any of the allegedly wrongful acts or omissions on the part of any City employee are attributable to a municipal policy or custom. Thus, Plaintiff has not made a showing, in his pleadings, sufficient to impose Monell liability on the City of Oneida. See Hayward v. City of New York, No. 12-CV-3220 ENV, 2012 WL 3580286, at *1 (E.D.N.Y. Aug. 17, 2012). Therefore, the Court recommends dismissing the complaint against the City of Oneida without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
B. Oneida County Police, Oneida County Sheriff's Department, and Rome Police
Plaintiff lists Oneida County Police, Oneida County Sheriff's Department, and Rome Police as defendants in the caption of his complaint. A “police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity.” Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Jackson v. Cty. of Nassau, No. 07-CV-245, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued.”); see, e.g., La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department.”); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.”).
Therefore, the Court recommends dismissing the complaint against the Oneida County Police, the Oneida County Sheriff's Department, and the Rome Police with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
C. Det. Salle, Officer Zonnevylle, Officer Page, and Officer White
The Court liberally construes Plaintiff's general claim for Fourth Amendment violations to be equivalent to his claims for false arrest, false imprisonment, and an illegal cavity search of his person. (See Dkt. No. 1 at 5-9.) Based on the facts in the complaint, the Court construes the false arrest and false imprisonment claims to pertain to Det. Salle, Officer Zonnevylle, and Officer Page and the illegal cavity search claim to pertain to Det. Salle and Officer White. (Dkt. No. 1 at 5, 7-9; Dkt. No 1-1 at 1-13.)
1. False Arrest and False Imprisonment
“A Section 1983 claim for false arrest [or false imprisonment] rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause.” Cea v. Ulster Cty., 309 F.Supp.2d 321, 329 (N.D.N.Y. 2004) (quoting Sulkowska v. City of N.Y., 129 F.Supp.2d 274, 287 (S.D.N.Y. 2001)). Such claims are one and the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007).
The elements of a claim for false arrest under § 1983 are the same elements as a claim for false arrest under New York law. Lewis v. City of New York, 18 F.Supp.3d 229, 235 (E.D.N.Y. 2014) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)). “Under New York law, the elements of a false arrest and false imprisonment claim are: ‘(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'” Hernandez v. United States, 939 F.3d 191, 199 (2d Cir. 2019) (quoting McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016)).
“For purposes of the privilege element of a false arrest and imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest supported by probable cause.” De Lourdes Torres v. Jones, 26 N.Y.3d 742, 759 (N.Y. 2016); accord Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (“Probable cause is a complete defense to an action for false arrest.”) (citation and internal quotation marks omitted). Probable cause exists where the officer has “knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citation and internal quotation marks omitted). “[T]he court looks only to the information the arresting officer had at the time of the arrest.” Peterson v. Cty of Nassau, 995 F.Supp. 305, 313 (E.D.N.Y. 1998). “Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Ricciuti v. N.Y.C. Trans. Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Here, the Court construes Plaintiff's complaint to allege that because Judge Bauer ruled the search of Plaintiff's car to be illegal and consequently suppressed the recovered gun, that there was no probable cause to arrest and confine him. (See Dkt. No. 1-1 at 1-13.) However, “[f]or federal false arrest claims, even in circumstances where a preceding search is illegal, police officers may use evidence obtained in that illegal search to establish probable cause for an arrest.” Hatcher v. City of New York, No. 15-CV-7500 (VSB), 2018 WL 1583036, at *3 (S.D.N.Y. Mar. 27, 2018) (citing Townes v. City of New York, 176 F.3d 138, 144-49 (2d Cir. 1999)); see also Serrano v. City of New York, No. 16-CIV-8105(AKH), 2018 WL 3392869, at *6 (S.D.N.Y. July 12, 2018), aff'd, 793 Fed.Appx. 29 (2d Cir. 2019) (“Under Townes, the fruit of the poisonous tree doctrine cannot be used to ‘link the unreasonable search and seizure' to what came next-the discovery of the marijuana cigarette on plaintiff's person-which unquestionably gave officers probable cause to arrest plaintiff[.]”).
In New York State, a person is guilty of Criminal Possession of a Weapon in the second degree if he or she possesses a loaded firearm and does not have a license to possess such a firearm. See Bannister v. Luis, No. 18-CV-7285 (EK) (ST), 2022 WL 19402512, at *45 (E.D.N.Y. Feb. 16, 2022) (citing N.Y. Penal Law § 265.03), report and recommendation adopted as modified, 2023 WL 2325680 (E.D.N.Y. Mar. 2, 2023). Under New York law, the existence of a firearm in an automobile creates a permissive presumption that all occupants of the vehicle have common constructive possession of the firearm, absent certain statutory exceptions which are inapplicable here. Id. (citing N.Y. Penal Law § 265.15(3)). “If a jury may make a presumption of possession under the law, it is reasonable for a police officer to do the same.” Id. “Therefore, upon finding the loaded handgun in the car, the officers had probable cause” to arrest and confine Plaintiff, defeating his false arrest and false imprisonment claims. Id. As noted above, because the fruit of the poisonous tree doctrine does not apply to § 1983 claims, the gun recovered from the illegal search of Plaintiff's car created probable cause for officers to arrest and confine him. Id. at *5 (citing Townes, 176 F.3d at 145). Accordingly, Plaintiff's false arrest and false imprisonment claims necessarily fail.
Plaintiff's Fourth Amendment false arrest and false imprisonment claims are also frivolous because a dispositive defense (i.e., probable cause) appears on the face of the complaint. Ferguson, 130 F.Supp.2d at 565; Harrell, 268 F.3d at 148-49; Woods, 921 F.Supp. at 1144-45; see also Garcia, 279 F.Supp.2d at 298. The undersigned accordingly recommends the Court dismiss Plaintiff's Fourth Amendment false arrest and false imprisonment claims because they are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
2. Body Cavity Search
The Fourth Amendment protects individuals against searches of their person without a warrant. Johnson v. City of New York, No. 21-CV-5268 (PKC), 2022 WL 4133284, at *3 (S.D.N.Y. Sept. 12, 2022). A search incident to an arrest, however, “constitutes an exception to the warrant requirement” imposed by the Fourth Amendment. Riley v. California, 573 U.S. 373, 382 (2014). Nevertheless, there are limitations upon the scope of an appropriate search incident to an arrest. See Vernonia Sch. Dist. 47Jv. Acton, 515 U.S. 646, 652 (1995). Indeed, whether a search incident to an arrest was lawful turns upon whether such search was reasonable. Id.
Visual body cavity searches in particular are “invasive and degrading” and a “serious invasion of privacy,” even more intrusive than a typical strip search. Sloley v. VanBramer, 945 F.3d 30, 38 (2d Cir. 2019). As such, “a visual body cavity search conducted as an incident to a lawful arrest for any offense must be supported by a specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity.” Sloley, 945 F.3d at 38 (citation and quotation marks omitted). To determine whether a visual body cavity search was reasonable under the circumstances, “courts also consider whether the individual's preceding arrest was for a misdemeanor or felony, whether it involved drugs, whether the individual would soon be surrounded by other inmates or arrestees or housed alone, whether the search occurred privately, and whether the search was performed pursuant to reasonable suspicion or because of a blanket policy.” Monroe v. Gould, 372 F.Supp.3d 197, 204 (S.D.N.Y. Mar. 14, 2019) (citing Gonzalez v. City of Schenectady, 728 F.3d 149, 162 (2d Cir. 2013)).
Based on relevant authority from New York State courts, Sloley identified various factors which can support a reasonable suspicion that an arrestee is secreting narcotics inside his person. See 945 F.3d at 46. For example, officers may have reasonable suspicion where the arrestee is seen placing his hands down his pants or making similarly suspicious movements. People v. Hunter, 902 N.Y.S.2d 678, 679-80 (3d Dep't 2010) (finding reasonable suspicion based in part on the officers' observation of the arrestee “fidgeting with his hands down the back of his pants”); People v. Harry, 884 N.Y.S.2d 712, 712-13 (1st Dep't 2009) (finding reasonable suspicion where an arrestee was placed in a patrol car and observed “moving around a lot, like sliding up and down in his seat and making movements with his hands” as though he were attempting to place or remove something from his pants); People v. Clayton, 868 N.Y.S.2d 303, 305-06 (2d Dep't 2008) (finding reasonable suspicion where the arrestee was observed “wiggling around” in the patrol car and placing his hands in an area where the officer had felt a hard object during a pat-and-frisk). An officer may also have reasonable suspicion based on information that a particular arrestee is secreting objects in his person, or that he has a custom of doing so. See Hunter, 902 N.Y.S.2d at 680 (finding reasonable suspicion based in part on information the officers had received from a confidential informant that the arrestee “had a habit of carrying narcotics in his rectum”); Clayton, 868 N.Y.S.2d at 306 (finding reasonable suspicion based in part on the defendant's “history of secreting contraband in his rectum”). Finally, an officer has reasonable suspicion where he has watched a suspect “retriev[e] an item from his buttocks area and exchang[e] it for money from a person found in possession of drugs minutes later.” People v. Barnville, 819 N.Y.S.2d 234, 236 (1st Dep't 2006).
None of these factors appear to be present here. See Falls v. (Police Officer) Detective Michael Pitt, No. 16-CV-8863 (KMK), 2021 WL 1164185, at *23-27 (S.D.N.Y. Mar. 26, 2021). Det. Salle testified “the visual body cavity search of [Plaintiff's] person was based solely on [his] history for a drug offense and no other reason.” (Dkt. No. 1-1 at 4, 10.) Further, on the “Unclothed Search Form,” Det. Salle indicated “the sole reason the unclothed search was performed was based upon the fact that [Plaintiff's] criminal history showed him having an undated ‘CSCS 3rd offense.'” Id. at 4, 10. Judge Bauer ultimately found
[n]o other justification was offered for the search at issue. Prior drug offenses, the last nine years prior, standing alone, with no further ‘specific, articulable, factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity' are not enough to justify the ‘distinctly elevated level of intrusion' of this search.Id. (citation omitted).
Given what is alleged, the Court recommends Plaintiff's Fourth Amendment claim based on the visual body cavity search survives initial review under 28 U.S.C. § 1915(e) and requires a response. In so recommending, the undersigned expresses no opinion regarding whether the claim could survive a properly filed motion to dismiss or motion for summary judgment.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED, and it is
Plaintiff should note that although his motion to proceed IFP has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
RECOMMENDED that Plaintiff's Fourth Amendment claim based on the body cavity search against Det. Salle and Officer White SURVIVES sua sponte review; and it is further
RECOMMENDED that Plaintiff's Fourth Amendment false arrest and false imprisonment claims against Det. Salle, Officer Zonevylle, and Officer Page be DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has 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. 2013); Fed.R.Civ.P. 72, 6(a).
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. 6(a)(1)(C).