Opinion
16 Civ. 3063 (KPF)
08-04-2017
ERIC KEATON, Plaintiff, v. N.Y.C. D.O.C. COMM. JOSEPH PONTE, GRVC WARDEN WINDLEY, DEPUTY WARDEN SECURITY CAPUTO, CAPTAIN VALEJO 15B HOUSING UNIT, BRENDA WHITAKER, Defendants.
OPINION AND ORDER
:
Plaintiff Eric Keaton brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 and New York state law against Defendants New York City Department of Corrections ("DOC") Commissioner Joseph Ponte; George R. Vierno Center ("GRVC") Warden Monica Windley; Deputy Warden Security Caputo (together, the "Supervisory Defendants"); Captain Valejo; and Brenda Whitaker. Plaintiff alleges that his First, Fourth, Eighth, and Fourteenth Amendment rights were violated when Defendants installed and utilized security video cameras in GRVC's shower and chapel facilities, including when Plaintiff was strip-searched in the latter area, and when at least some of this video footage was sold on the internet by certain Defendants. Plaintiff also alleges that this conduct violates his rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to 2000cc-5 ("RLUIPA"), and various state-law doctrines.
Defendants have moved to dismiss Plaintiff's Third Amended Complaint, the operative pleading, under Federal Rule of Civil Procedure 12(b)(6), and Plaintiff has opposed their motion. For the reasons explained below, Defendants' motion is granted without prejudice to Plaintiff's refiling of a Fourth Amended Complaint within the parameters set forth in this Opinion.
BACKGROUND
In resolving Defendants' Motion, the Court has considered the facts as pleaded in Plaintiff's Third Amended Complaint (the "TAC" (Dkt. #95)). The Court has taken all well-pleaded allegations as true as it must at this stage. See, e.g., Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78 (2d Cir. 2015). The Court has also reviewed the briefing submitted by the parties and will refer to it as follows: Defendants' memorandum of law in support of their motion to dismiss will be referred to as "Def. Br." (Dkt. #101). Plaintiff's opposition to Defendants' motion will be referred to as "Pl. Opp." (Dkt. #106). Defendants' reply memorandum of law in further support of their motion will be referred to as "Def. Reply." (Dkt. #108). Plaintiff has attached to the TAC several supplemental sheets of lined paper, on which Plaintiff has continued those of his allegations that exceed the space allotted in this District's Amended Complaint form. Because the pages are not provided in the correct order in the TAC, the Court pauses here to explain its designation of them. Plaintiff's narrative of the "Facts" giving rise to his claims extends from the fifth page of the TAC to two sheets of lined paper that Plaintiff has numbered "2" and "3." The Court will refer to these pages as "TAC Supp. 2" and "TAC Supp. 3." Plaintiff's description of his "Injuries" suffered and his "Relief" requested continue from the fifth page of the TAC to two sheets of lined paper that Plaintiff has numbered "6" and "7." The Court will refer to these pages as "TAC Supp. 6" and "TAC Supp. 7." The number of each supplemental page is found in the upper left corner thereof. (See generally TAC). [I thought about using the ECF designation page number , but realized that P probably doesn't have that. MCC: That was my thought as well]]
A. Factual Background
Plaintiff brings this action as a "victim ... caught on cameras" that were installed and used in the "upper level shower area" of "housing unit 15B" in the GRVC and "in the chapel area where detainee[s] [are] stripped searched prior to all court appearances." (TAC 4). Plaintiff alleges that "[t]he defendants all named herein" used the footage of the inmates to "essentially promot[e] pornography via websites and internet" and "possibly traffic[] said tapes across state lines to television shows such as [L]ockdown, and 'Inmates Gone Wild[] on Rikers Island.'" (TAC 4). He indicates that Defendants did so under color of state law. (TAC Supp. 3).
Plaintiff breaks out his allegations with regard to specific subsets of Defendants, and also with regard to his injuries and the relief that he seeks. The Court will consider these allegations in the sections that follow.
1. The Alleged Misconduct of Captain Valejo and Brenda Whitaker
Plaintiff identifies Defendants Whitaker and Valejo as the two "main promotors and female watchers of the taping of inmates and detainee[s] in the upper level shower" area. (TAC 5). Plaintiff claims that these Defendants
both encourage inmate[s] and detainee[s] to utilize these showers on a daily basis while they take watch hoping inmate[s] and detainee[s] decide[] to "cash checks" (masturbate) while they take watch and make sexual gestures towards inmate detainee with their lipstick, and tongues to get inmate "caught on camera" to increase the sale of these unauthorized certified classified tapes floating around the United States, and maybe the world[.](Id.; TAC Supp. 2).
Plaintiff indicates that he never "signed any consent forms to the making and production of these video tapes." (TAC 4; see also TAC Supp. 2). He also alleges that these Defendants "attempt to defraud the Government in evading taxes to the transporting and international exporting of '[I]nmates [G]one [W]ild on Rikers Island' pornography tapes." (TAC 4). Finally, Plaintiff alleges that Defendants' conduct violates "[a] preexisting court order that bans the conspiracy and making of said derogatory tapings and placing of camer[a]s in areas as sensitive as [the] shower and or strip search area." (Id. at 4-5). Plaintiff also expresses his belief that "[g]iven modern technology[,] there is a strong possibility that the [GRVC] Defendants are logging on-line to purchase spyware gadgets and small microscopic video material small enough to smuggle into the facility and tape via camera from the officers station inmate detainee showering on a daily morning noon evening basis." (TAC Supp. 3).
2. The Alleged Misconduct of the Supervisory Defendants
Plaintiff does not attribute any specific conduct to the remainder of the Defendants. He instead alleges that Defendants DOC "Commissioner [Ponte], [GRVC] Warden Monica Windley, Deputy Warden Security Caputo, and Deputy Warden Programs John/Jane Doe are liable under Municipal law in that they could [have], and did not[,] commit themselves to providing enough training and devising policies, and directives that prevent" the "tort acts" Plaintiff alleges. (TAC Supp. 2). Plaintiff further argues that the "unlawful use of cameras" in the shower and strip-search areas "fall[s] below the minimum standards of the Board of Corrections" insofar as the use invades privacy and "defame[s]/slanders" the character of "religion Islam" and "culture of practicing inmate detainee by strip searching inmate in the house of God." (Id.). Plaintiff appears to claim that this "outrageous and unethical conduct" violates the code of professionalism outlined in the DOC employees' manual, or is improperly condoned thereunder. (Id.).
3. Plaintiff's Claimed Injuries
Plaintiff indicates that Defendants' conduct has caused him to suffer an "enormous amo[unt] of emotional stre[ss] and mental anguish." (TAC 5). He claims to suffer insomnia, paranoia, increased anxiety, headaches, stress, and stress-induced body pains and aches. (Id.).
Plaintiff also claims that he has had problems with "employment placement" due to the "defamation of [his] character" that resulted from the shower-scene videos. (TAC 5). In particular, he indicates that the alleged violations of his rights "together create havoc for [Plaintiff] in seeking employment upon his release, social contact with ... community leaders upon his release, and interaction with his family upon release." (TAC Supp. 2). Indeed, Plaintiff alleges that the sole purpose of using the cameras was to "inflict[] emotional shame on the inmate and his family who can potentially mistakenly view this member via video (social media), and or sex tapes." (Id.).
Finally, as alluded to above, Plaintiff indicates that the "unlawful use of cameras" in the shower and strip-search areas "defame[s]/slanders" the character of "religion Islam" and the "culture of practicing inmate detainee by strip searching inmate in the house of God." (TAC Supp. 2). Plaintiff explains that he was "discriminated against" by Defendants' "unlawful and illegal Tort acts" because "video taping in the[] showers and strip search ... is an abomination in the eyes of his higher power, that degrades and shames his walk through said religious beliefs." (TAC Supp. 3).
4. Plaintiff's Requested Relief
a. Monetary Damages
"As a direct and proximate result of [Defendants'] acts, Plaintiff suffered damages and injuries for which he is entitled to compensatory damages in an amount to be determined at trial." (TAC Supp. 7). But for his "emotional stress and mental anguish," Plaintiff seeks damages "from each defendant in the amount of one million dollars in their individual and official capacity." (TAC 5). "Plaintiff also seeks pain and suffering damages from each defendant in their individual and official capacity in the amount of one million dollars." (Id.). "Finally[,] Plaintiff seeks punitive damages from each defendant in their individual and official capacity in the amount of three million dollars, for a subtotal of [twenty-]one million dollars." (TAC 5; TAC Supp. 6). Plaintiff argues in this regard that Defendants' "acts were intentional, malicious, reckless, wanton, [and/or] cruel." (TAC Supp. 7).
To the extent that one or more Defendants are "themselves ... able to assert claims of privilege or immunity from liability," Plaintiff believes "[D]efendants Insurances Companies 1-5, are contractually obliga[ted] to pay ... on behalf of the insured [Defendants'] acts up to their policy limits. (TAC Supp. 7). Therefore, "[p]ursuant to Statute 22:655B Plaintiff brings a direct action against [D]efendants [I]nsurance [C]ompanies 1-5, to recover any and all sums they are obligated to pay Plaintiff on behalf of the[ir] insured or to indemnify their insureds." (Id.).
The Court understands this reference to be to Section 22:655B of Louisiana's Revised Statutes, which specifies conditions under which a direct action may be instituted against an insurance carrier because of the practical unavailability of the insured — as, for example, where the insured is insolvent or deceased. See La. R.S. § 22:655B (2006). This statute, however, is inapplicable to this case, since (i) by its terms, it permits a direct action against the insurer to be filed only in Louisiana, "in the parish in which the accident or injury occurred or in the parish in which an action could be brought"; and (ii) Plaintiff has not alleged facts bringing Defendants within any category listed in the statute. Id.
b. Equitable Relief
Plaintiff also asks the Court to issue an "immediate injunction ... banning all cameras focused on [the] shower area ... and strip[] searching in the chapel on camera." (TAC Supp. 6). In the event that the Court issues such an injunction and the DOC Commissioner and GRVC Warden do not comply therewith, Plaintiff asks that they be sanctioned. (Id.). He also asks that the Court ensure "no reprisals [are] taken against Plaintiff" because of his "filing of the [Third Amended Complaint]." (Id.).
B. Procedural Background
This action was initially filed by Plaintiff on behalf of himself and thirty other prisoners detained at Rikers Island on April 25, 2016. (Dkt. #2). On May 18, 2016, then-Chief Judge Loretta Preska directed the then-Plaintiffs to file declarations and pay filing fees or submit in forma pauperis ("IFP") applications and prisoner authorizations. (Dkt. #4). Judge Preska also dismissed then-Plaintiff Dwayne Singleton because he was barred under 28 U.S.C. § 1915(g) from filing federal civil actions IFP as a prisoner. (Id.).
On July 1, 2016, Judge Preska dismissed an additional eighteen of the then-Plaintiffs under Federal Rule of Civil Procedure 41(b) for their failure to comply with the May 18, 2016 Order. (Dkt. #57). The case was then reassigned to the undersigned. The remaining Plaintiffs were Eric Keaton, Anthony Nelson, Dawud McKelvin, Antoine Garcia, William White, Marvin Bland, Willie Brown, Robert Anderson, Dushawn King, Thirman Caudle, Jose Pizarro, and Rafael Lopez (the "Reassigned Plaintiffs").
On July 5, 2016, this Court issued an Order. (Dkt. #61). The Court had found that the Reassigned Plaintiffs' claims were not properly joined together under Federal Rule of Civil Procedure 20(a) because those Plaintiffs had not shown that "each individual Plaintiff was involved in the relevant transactions or occurrences," but rather made only "generalized allegations that prisoners [were] filmed while showering or being strip searched." (Id.). "Accordingly, the Court dismisse[d] from this action the claims of Anthony Nelson, Dawud McKelvin, Antoine Garcia, William White, Marvin Bland, Willie Brown, Robert Anderson, Dushawn King, Thirman Caudle, and Jose Pizarro without prejudice." (Id.). It also requested that Defendants Commissioner Joseph Ponte, Deputy Warden of Security Caputo, Warden Monica Windley, Captain Valejo, and C.O. Jackson waive service of summons. (Id.). Thus, on July 27, 2016, the DOC agreed on behalf of Defendants Ponte, Windley, Caputo, and Vallejo to waive service of the Summons and Complaint in this case. (Dkt. #72).
Plaintiff Rafael Lopez was omitted from the Court's July 5, 2016 Order as the result of a typographical error. Accordingly, he was dismissed by the Court on October 18, 2016 when the Court became aware of its error. (Dkt. #88).
The DOC did not agree to waive service of C.O. Jackson at that time because the DOC was not able to identify any person by the name "C.O. Jackson" employed at the GRVC. (Dkt. #76). In the months thereafter, Defendant Jackson was not served. (Def. Br. 1 n.1). Accordingly, the Court issued an Order on July 13, 2017, directing the New York City Law Department to identify Defendant Jackson and provide an address at which she could be served. (Dkt. #113). On July 27, 2017, the Law Department identified "C.O. Jackson" as "Brenda Whitaker." (Dkt. #117). On July 28, 2017, the DOC agreed to waive service of Brenda Whitaker (Dkt. #119, 121). And on July 31, 2017, Defendant Whitaker indicated that she wished to join the pending motion to dismiss the Third Amended Complaint. (Dkt. #122). That request is hereby granted. The Court will adjudicate the pending motion to dismiss with regard to Plaintiff's claims against all of the Defendants named in the Third Amended Complaint, including Defendant Whitaker.
An initial pretrial conference was scheduled to take place on October 25, 2016. (Dkt. #80, 81). However, on September 23, 2016, counsel for Defendants Ponte, Windley, Caputo, and Valejo filed a letter requesting a pre-motion conference to discuss their contemplated motion to dismiss. (Dkt. #83). Accordingly, the initial pretrial conference was converted into a pre-motion conference. (Dkt. #86).
On October 25, 2016, the parties participated telephonically in the pre-motion conference. (Dkt. #93). After discussing Defendants' contemplated motion with the parties, the Court granted Plaintiff leave to amend his Complaint to remedy its infirmities. (Id.). The Court also determined that it was appropriate to sever Plaintiff's Complaint from a complaint filed by claimant Larry McNair on October 13, 2016 (Dkt. #90), and so severed the latter complaint (id.).
On November 28, 2016, Plaintiff filed the Third Amended Complaint, the operative pleading in this case. (Dkt. #95). Defendants indicated through a letter filed on December 19, 2016, that they still wished to file a motion to dismiss. (Dkt. #96). The Court set a briefing schedule for the motion. (Dkt. #97). Defendants filed their motion to dismiss on January 20, 2017 (Dkt. #100-02); Plaintiff's opposition thereto was docketed on March 6, 2017 (Dkt. #106); and Defendants filed their reply on March 17, 2017 (Dkt. #108-09).
Plaintiff attempted to file a Fourth Amended Complaint on January 10, 2017. (Dkt. #98). The Fourth Amended Complaint replicated the TAC except with respect to the defendants named: rather than naming Defendants, the Fourth Amended Complaint named the United States and the Department of the Treasury. (Id.). Because this complaint was filed without Defendants' written consent or leave of the Court, and was thus in violation of Federal Rule of Civil Procedure 15(a)(2), the Court ordered that it be stricken on January 12, 2017. (Dkt. #99). On February 1, 2017, Plaintiff filed a letter that the Court construed in part as a request for reconsideration of the Court's January 12, 2017 Order. (Dkt. #104). This request was denied. (Dkt. #105).
DISCUSSION
A. Applicable Law
1. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
When considering a motion to dismiss under Rule 12(b)(6), a court should "draw all reasonable inferences in [the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted) (quoting Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In this regard, a complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. See, e.g., Hart v. FCI Lender Servs., Inc., 797 F.3d 219, 221 (2d Cir. 2015) (citing Fed. R. Civ. P. 10(c) ("A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.")).
"While Twombly does not require heightened fact pleading of specifics, it does require enough facts to '[nudge a plaintiff's] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
To be clear, however, this "Twombly plausibility standard ... does not prevent a plaintiff from pleading facts alleged 'upon information and belief' where the facts are peculiarly within the possession and control of the defendant, or where the belief is based on factual information that makes the inference of culpability plausible." Lefkowitz v. McGraw-Hill Glob. Educ. Holdings, LLC, 23 F. Supp. 3d 344, 356 (S.D.N.Y. 2014) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)). Indeed, the Court is mindful of the Circuit's instruction that "[a] district court should not dismiss a claim 'unless it is satisfied that the complaint cannot state any set of facts that would entitle [the plaintiff] to relief.'" Id. (second alteration in original) (quoting Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)).
2. Motions to Dismiss Involving Pro Se Plaintiffs
When ruling on a motion to dismiss a pro se plaintiff's complaint, a court must "construe the complaint broadly, and interpret it to raise the strongest arguments that it suggests." Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002) (internal quotation mark and alterations omitted) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Nonetheless, even a pro se plaintiff's factual allegations must be at least "enough to raise a right to relief above the speculative level" to survive a motion to dismiss. Twombly, 550 U.S. at 555. Moreover,
while this special leniency may somewhat loosen the procedural rules governing the form of pleadings (as the Second Circuit very recently observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Rules 8, 10 and 12. Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Rules 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow. Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended."Dallio v. Hebert, 678 F. Supp. 2d 35, 55-56 (N.D.N.Y. 2009) (internal citations and footnotes omitted) (quoting Stinson v. Sheriff's Dep't of Sullivan Cty., 499 F. Supp. 259, 262 (S.D.N.Y. 1980)).
3. Claims Under 42 U.S.C. § 1983
Plaintiff alleges numerous violations of his constitutional rights. For example, he claims an Eighth Amendment violation stemming from the GRVC strip-search and security-camera practices. The former of these is also alleged to violate his Fourth Amendment right against unreasonable searches and, because certain of the searches took place in the chapel area, his First Amendment right to the free exercise of his religion. In resolving Plaintiff's claims, the Court will first outline general legal principles common to lawsuits brought under 42 U.S.C. §§ 1983 and 1985, and will then consider the law specific to each of Plaintiff's claims.
Section 1983 provides a remedy when a state actor deprives a plaintiff of federally protected rights. An actionable § 1983 claim requires the plaintiff to show (i) a violation of a right, privilege, or immunity protected by the Constitution or laws of the United States, and (ii) that the actor was acting under the color of state law. See Cruz v. City of N.Y., No. 15 Civ. 2265 (PAE), 2017 WL 544588, at *7 (S.D.N.Y. Feb. 8, 2017) (citing West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56 (1978)); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) ("By its terms, of course, [Section 1983] creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.").
Of note, there are particular pleading requirements occasioned by Plaintiff's request for damages under this statute. "As a prerequisite to an award of damages under § 1983, a plaintiff must show the personal involvement of defendants in the alleged constitutional deprivations." Vassallo v. City of N.Y., No. 15 Civ. 7125 (KPF), 2016 WL 6902478, at *6 (S.D.N.Y. Nov. 22, 2016) (citing Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010)). To show personal involvement, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555).
A court may consider supervisory personnel "personally involved" if a plaintiff plausibly alleges facts showing that those defendants: (i) participated directly in the alleged constitutional violation; (ii) failed to remedy the wrong after being informed of it; (iii) created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (iv) were grossly negligent in supervising subordinates who committed the wrongful acts; or (v) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating there were ongoing unconstitutional acts. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). In practice, this means that "[t]he bare fact that [a defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [a plaintiff's] claim." Colon, 58 F.3d at 874. And "[i]n addition to satisfying one of these requirements, a plaintiff must also establish that the supervisor's actions were the proximate cause of the plaintiff's constitutional deprivation." Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (citing Poe v. Leonard, 282 F.3d 123, 134 (2d Cir. 2002)).
"Since 2009, '[t]here has been considerable division among the district courts of the Second Circuit as to whether Iqbal abrogates several factors of the Colon test and if so to what extent.'" Shepherd v. Fisher, No. 08 Civ. 9297 (RA), 2017 WL 666213, at *13 (S.D.N.Y. Feb. 16, 2017) (quoting James v. Orange Cty. Corr. Facility, No. 09 Civ. 7226 (CM), 2011 WL 5834855, at *4 (S.D.N.Y. Nov. 18, 2011)). However, even if Iqbal "heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations, [the Court] need not reach Iqbal's impact on Colon in this case, for [the Third Amended Complaint does] not adequately plead [the Supervisory Defendants'] personal involvement even under Colon.," for the reasons provided in the Analysis section of this Opinion. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
4. Claims Under 42 U.S.C. § 1985
Section 1985, in turn, bars conspiracies to interfere with civil rights. Allegations that a conspiracy exists to deprive a person of his rights or privileges are governed by § 1985(3), which "requires a plaintiff to allege: '[i] a conspiracy; [ii] for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and [iii] an act in furtherance of the conspiracy; [iv] whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.'" Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006)); see also 42 U.S.C. § 1985(3).
"In order to maintain an action under Section 1985, a plaintiff 'must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.'" Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). A plaintiff must also demonstrate that the conspiracy was "motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus." Dolan, 794 F.3d at 296 (internal quotation marks omitted) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007)).
5. RLUIPA
Though Plaintiff has not invoked RLUIPA expressly, Defendants have construed his pleading to bring a claim under this statute, and the Court therefore discusses it here. RLUIPA "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). To do so, the statute "provides a more stringent standard than does the First Amendment, barring the government from imposing a substantial burden on a prisoner's free exercise unless the challenged conduct or regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest." Holland v. Goord, 758 F.3d 215, 224 (2d Cir. 2014) (alterations and internal quotation marks omitted); see also Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006) ("RLUIPA protects inmates by providing that a government shall not 'impose a substantial burden' on the 'religious exercise' of inmates in certain institutions unless the government shows that the burden furthers a compelling governmental interest by the least restrictive means.'" (footnote omitted) (quoting 42 U.S.C. § 2000cc-1(a))). Accordingly, once the plaintiff demonstrates that the "state has imposed a substantial burden on the exercise of his religion[,] ... the state may overcome a RLUIPA claim by demonstrating that the challenged policy or action furthered a compelling governmental interest and was the least restrictive means of furthering that interest." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (citing 42 U.S.C. § 2000cc-1(a)).
B. Analysis
1. Plaintiff's Section 1983 Claims Against Defendants in Their Official Capacities Are Dismissed
The Eleventh Amendment, as a general matter, immunizes states from suit. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). This immunity extends to state officials sued in their official capacities. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). "Employees of DOC[C]S and its facilities, when sued in their official capacities, have been held to be subject to the State's Eleventh Amendment immunity." Lyerly v. Phillips, No. 04 Civ. 3904 (PKC), 2005 WL 1802972, at *3 (S.D.N.Y. July 29, 2005) (collecting cases); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002). However, while "[t]he eleventh amendment bars recovery against an employee who is sued in his official capacity, [it] does not protect him from personal liability if he is sued in his individual or personal capacity." Ramrattan v. Fischer, No. 13 Civ. 6890 (KPF), 2015 WL 3604242, at *8 (S.D.N.Y. June 9, 2015) (internal quotation marks omitted) (quoting Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988)). Thus, to the extent Plaintiff sues Defendants in their official capacities under Section 1983, his claims are dismissed.
2. Plaintiff's RLUIPA Claims Are Dismissed
Plaintiff's RLUIPA claims for money damages fail because RLUIPA does not afford a plaintiff a cause of action for money damages against individual defendants in either their official or individual capacities. See, e.g., Holland, 758 F.3d at 224. Accordingly, to the extent Plaintiff seeks monetary damages under RLUIPA, those claims are dismissed. See id.; see also Ramrattan, 2015 WL 3604242, at *9.
Plaintiff's RLUIPA claims for injunctive relief also fail because they have been mooted. As a general matter, RLUIPA allows that "[p]laintiffs may ... seek injunctive relief against officials in their official capacities." Ramrattan, 2015 WL 3604242, at *9 (citing Sossamon v. Texas, 563 U.S. 277, 285 (2011) ("[A] waiver of sovereign immunity to other types of relief does not waive immunity to damages.")); see also Sossamon, 563 U.S. at 298 (Sotomayor, J., dissenting) ("[T]he majority appears to accept that equitable relief is available to RLUIPA plaintiffs.")). However, "[i]n this circuit, an inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility." Salahuddin, 467 F.3d at 272; see also, e.g., Washington v. Gonyea, 731 F.3d 143, 144 n.1 (2d Cir. 2013) (per curiam); Lopez v. Cipolini, 136 F. Supp. 3d 570, 589 (S.D.N.Y. 2015). The Court understands that Plaintiff no longer resides at the GRVC, but is presently incarcerated at Queensboro Correctional Facility. (Dkt. #110, 114). Because this is not the prison facility "in which the actions complained of here occurred," the Court must dismiss these claims as moot. Salahuddin, 467 F.3d at 272.
3. Plaintiff's Section 1983 Claim Premised on a Violation of His Eighth Amendment Rights Is Dismissed
a. Applicable Law
"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993). The Supreme Court has "held repugnant to the Eighth Amendment punishments which are incompatible with 'the evolving standards of decency that mark the progress of a maturing society,'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)), "or which 'involve the unnecessary and wanton infliction of pain,'" id. (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). See also, e.g., Hope v. Pelzer, 536 U.S. 730, 737-38 (2002). "What is necessary to establish an 'unnecessary and wanton infliction of pain,' ... varies according to the nature of the alleged constitutional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)).
"A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components — one subjective, focusing on [a] defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson, 503 U.S. at 7-8); accord Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016). To plead properly the subjective component, a "prisoner must allege that the defendant acted with a subjectively sufficiently culpable state of mind." Harris, 818 F.3d at 63 (internal quotation mark omitted) (quoting Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015)). This "requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Id. (internal quotation mark omitted) (quoting Wright v. Goord, 554 F.3d at 268).
To plead the objective component of this claim, a prisoner must "allege that the conduct was objectively harmful enough or sufficiently serious to reach constitutional dimensions." Harris, 818 F.3d at 64 (internal quotation mark omitted) (quoting Crawford, 796 F.3d at 256). This component "is also context specific, turning upon contemporary standards of decency." Id. (internal quotation mark omitted) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)).
b. Discussion
Plaintiff alleges that his Eighth Amendment rights were violated when Defendants Valejo and Whitaker encouraged inmates to utilize the showers, watched them doing so, and made sexual gestures toward the inmates with their lipsticks and tongues. (TAC 5). To the extent this conduct is cognizable as sexual abuse, it does not violate Plaintiff's Eighth Amendment rights. The Second Circuit has held that "sexual abuse by a corrections officer may constitute cruel and unusual punishment if it is 'severe or repetitive.'" Crawford, 796 F.3d at 257 (quoting Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)). In other words,
a single incident of sexual abuse, if sufficiently severe or serious, may violate an inmate's Eighth Amendment rights no less than repetitive abusive conduct. Recurrences of abuse, while not a prerequisite for liability, bear on the question of severity: Less severe but repetitive conduct may still be 'cumulatively egregious' enough to violate the Constitution.Id. (quoting Boddie, 105 F.3d at 861).
But in both Crawford and Boddie, the underlying allegations were of illicit physical contact between a corrections officer and an inmate. Plaintiff has not alleged such contact here. Nor has Plaintiff alleged that Defendants Valejo and Whitaker repeatedly harassed him personally. And the Court does not believe the harassment Plaintiff does allege can be characterized as "severe." Thus, Plaintiff has not pleaded that he was subject to sexual abuse that constituted cruel and unusual punishment under the Eighth Amendment.
To the extent that the conduct of Defendants Valejo and Whitaker is cognizable as verbal harassment, such conduct similarly does not violate Plaintiff's Eighth Amendment rights. "[V]erbal harassment, without more, is not actionable under § 1983." Williams v. Dubray, 557 F. App'x 84, 86 (2d Cir. 2014) (summary order) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)); Black v. Cuomo, 101 F.3d 681 (2d Cir. 1996) (table) ("[A]ll of [plaintiff's] claims, including verbal harassment, denial of haircuts, withholding of law library books for two days, late delivery of food and denial of a pen, fall short of the degree of seriousness demanded by the Eighth Amendment."); Myers v. City of N.Y., No. 11 Civ. 8525 (PAE), 2012 WL 3776707, at *9 (S.D.N.Y. Aug. 29, 2012) ("Verbal harassment or profanity alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and is therefore not actionable." (alteration omitted) (internal quotation marks omitted) (quoting Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998))), aff'd, 529 F. App'x 105 (2d Cir. 2013) (summary order). Accordingly, Plaintiff's § 1983 claim premised on violations of his Eighth Amendment rights must be dismissed.
4. Plaintiff's Section 1983 Claim Premised on a Violation of His Fourth Amendment Rights Is Dismissed
a. Applicable Law
"The Fourth Amendment guarantees 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" Smith v. Maryland, 442 U.S. 735, 739 (1979) (alteration omitted). And though "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell," Harris, 818 F.3d at 57 (internal quotation marks omitted) (quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984)), the Second Circuit has nonetheless maintained that under the Amendment, "inmates retain a limited right to bodily privacy," id. (affirming holding of Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992), "that maintenance of prison security is not burdened unduly by the recognition that inmates do retain a limited right to bodily privacy").
The Second Circuit has offered guidance to district courts in evaluating Fourth Amendment claims brought by incarcerated plaintiffs:
Courts assessing an inmate's claim that officers infringed his or her right to bodily privacy must undertake a two-part inquiry: [i] First, the court must determine whether the inmate has "exhibit[ed] an actual, subjective expectation of bodily privacy"; and [ii] second, the court must determine "whether the prison officials had sufficient justification to intrude on [the inmate's] [F]ourth [A]mendment rights."Harris, 818 F.3d at 57 (second and fourth alterations in original) (quoting Covino, 967 F.2d at 78).
To answer the second question, courts must "apply one of two separate but overlapping frameworks." Harris, 818 F.3d at 57. Where an inmate "challenges a prison regulation or policy," courts analyze the claim under Turner v. Safley, 482 U.S. 78 (1987), which established that a challenged "regulation is valid if it is reasonably related to legitimate penological interests." Harris, 818 F.3d at 57-58 (internal quotation marks omitted) (quoting Turner, 482 U.S. at 89). "Courts make this determination with reference to four factors discussed in Turner," id. at 58, which consider:
(i) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (ii) whether there are alternative means of exercising the right in question that remain open to prison inmates; (iii) whether accommodation of the asserted constitutional right will have an unreasonable impact upon guards and other inmates, and upon the allocation of prison resources generally; and (iv) whether there are reasonable alternatives available to the prison authorities.Covino, 967 F.2d at 78-79 (citing Turner, 482 U.S. at 89-90). "The burden is upon the prisoner to show that a challenged prison regulation is unreasonable." Id. at 79.
Alternatively, where an inmate "challenges an isolated search," courts apply the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979). See Harris, 818 F.3d at 58. In an effort to balance "the need for the particular search against the invasion of personal rights that the search entails," this test requires courts to "consider [i] the scope of the particular intrusion, [ii] the manner in which it is conducted, [iii] the justification for initiating it, and [iv] the place in which it is conducted." Id. (quoting Bell, 441 U.S. at 559).
b. Discussion
In his Complaint, Plaintiff appears to challenge the constitutionality of the GRVC policy of conducting strip searches prior to court visits. (TAC 4). The Court must therefore determine whether Plaintiff had an expectation of bodily privacy that these searches violated, and whether the GRVC had sufficient justification to intrude on Plaintiff's Fourth Amendment rights.
To the extent Plaintiff intended to challenge any particular strip search — a search performed by one of the named Defendants, for example — he has not done so. Plaintiff has not identified any single search that he believes violated his Fourth Amendment rights. If Plaintiff wishes to do so, he must identify the particular search or searches that he challenges and the reasons for his challenge in his amended pleading.
It cannot be disputed that "[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 (internal quotation marks omitted) (quoting Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 344-45 (2012) (Breyer, J., dissenting)). However, courts in this District have uniformly held, in light of the Supreme Court's decision in Florence, that "[t]he general practice of strip searching a detainee during housing searches and on the way to and from court appearances is not unconstitutional, even if the detainee is accused only of a misdemeanor." Thompson v. City of N.Y., No. 16 Civ. 824 (PKC), 2017 WL 1929552, at *2 (S.D.N.Y. May 9, 2017) (collecting cases); see also, e.g., Perkins v. City of N.Y., No. 14 Civ. 3779 (WHP), 2017 WL 1025987, at *2-3 (S.D.N.Y. Mar. 15, 2017); Myers, 2012 WL 3776707, at *9 ("[U]nder the standard outlined in Florence, the searches to which [plaintiff] was subjected were 'reasonably related to legitimate security interests,' including preventing the smuggling of contraband into or out of [the jail in which plaintiff was confined]." (quoting Florence, 566 U.S. at 326)).
Plaintiff has not given the Court any reason to deviate from this line of case law. He argues that he was inappropriately strip-searched on camera, without cause, and in the chapel area of the GRVC. (TAC 4). Plaintiff is not specific with regard to the identities of the officers who performed the strip searches, but the Court can infer from his naming of two female officers as Defendants in this case that at times the searches were performed by or in the presence of female officers. (See generally TAC). None of these allegations amounts to a constitutional violation, however. See, e.g., Thompson, 2017 WL 1929552, at *2 ("Plaintiff's argument that there was no 'cause' to strip search him is unavailing because Florence permits correction officers to strip search detainees without particularized suspicion."); Walker v. Ponte, No. 14 Civ. 8507 (ER), 2016 WL 4411415, at *4 (S.D.N.Y. Aug. 18, 2016) ("That the strip searches were carried out in front of cameras and other inmates does not counter [the legitimate security interest of discovering contraband]." (citing Peek v. City of N.Y., No. 13 Civ. 4488 (AJN), 2014 WL 4160229, at *2 (S.D.N.Y. Aug. 18, 2014)); Jean-Laurent v. Lawrence, No. 12 Civ. 1502 (JPO), 2013 WL 1129813, at *8 (S.D.N.Y. Mar. 19, 2013) (affirming constitutionality of stripping Muslim inmate down to his underwear in the presence of female officers despite well-known "taboo in the Islamic faith concerning male nudity in the presence of women" because "impingements on a prisoner's constitutional rights — including religious rights — that are rationally related to a legitimate penological interest are permissible."); Israel v. City of N.Y., No. 11 Civ. 7726 (JMF), 2012 WL 4762082, at *3 (S.D.N.Y. Oct. 5, 2012) ("The presence of other inmates and officers, males and females, does not alter [the] determination [that the searches were reasonably related to legitimate security interests].").
To make out a claim that the GRVC strip-search policy violated Plaintiff's Fourth Amendment rights, Plaintiff must allege facts that indicate that the GRVC's strip-search policy, or a particular strip search, was meant to intentionally humiliate, harass, or abuse him. See Perkins, 2017 WL 1025987, at *2 ("[W]hile humiliation caused by strip searches may be sufficient to make a claim, the search must be 'conducted intentionally to harass or embarrass the plaintiff.'" (quoting Walker, 2016 WL 4411415, at *5)). Additionally or alternatively, Plaintiff must indicate whether and in what way he believes the strip-search policy, or a particular strip search, unduly impinged upon his religious rights, as discussed more fully in the next section. Because Plaintiff has not yet done so, his § 1983 claim premised on a violation of his Fourth Amendment rights must be dismissed.
5. Plaintiff's Section 1983 Claim Premised on a Violation of His First Amendment Rights Is Dismissed
a. Applicable Law
"The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (citation omitted). Thus, while
a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice[,] ... [a] law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.Id. at 531-32 (citation omitted).
Prisoners do not relinquish their Free Exercise rights upon incarceration. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) ("Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion." (citation omitted)); Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) ("Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause."). That said, "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." O'Lone, 482 U.S. at 348 (alteration in original) (internal quotation marks omitted) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)).
"The free exercise claims of prisoners are therefore 'judged under a reasonableness test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.'" Ford, 352 F.3d at 588 (quoting Farid v. Smith, 850 F.2d at 925); see also O'Lone, 482 U.S. at 349. "[A] regulation that burdens a protected right passes constitutional muster 'if it is reasonably related to legitimate penological interests.'" Salahuddin, 467 F.3d at 274 (quoting O'Lone, 482 U.S. at 349). Courts evaluate the four Turner factors described above in making this reasonableness determination. Id. (citing Turner, 482 U.S. at 89-90).
Prior to the Supreme Court's holding in Employment Division v. Smith, 494 U.S. 872 (1990), a prisoner was required to make a threshold showing "that the disputed conduct substantially burden[ed] his sincerely held religious beliefs" before a court would proceed to analyze the Turner factors. Salahuddin, 467 F.3d at 274-75. The Second Circuit has not yet decided whether that threshold showing is still required. See Holland, 758 F.3d at 220 (quoting Salahuddin, 467 F.3d at 274-75); Ford, 352 F.3d at 592 (assuming without deciding that substantial-burden requirement applies). "Accordingly, this Court 'will follow the analysis in Holland and proceed to consider the First Amendment analysis, assuming that the substantial burden test is still valid.'" Vasquez v. Rockland Cty., No. 15 Civ. 8912 (KMK), 2017 WL 456473, at *7 n.4 (S.D.N.Y. Feb. 1, 2017) (quoting Weathers v. Rock, No. 9:12 Civ. 1301 (NAM) (ATB), 2014 WL 4810309, at *4 (N.D.N.Y. Sept. 23, 2014)).
The Supreme Court held in Smith that the application of the substantial-burden "test embroils courts in 'the unacceptable business of evaluating the relative merits of differing religious claims.'" Holland v. Goord, 758 F.3d 215, 220 (2d Cir. 2014) (quoting Ford v. McGinnis, 352 F.3d 582, 592 (2d Cir. 2003)); see also Emp't Div. v. Smith, 494 U.S. 872, 887 (1990).
"Supreme Court precedents teach that a substantial burden on religious exercise exists when an individual is required to 'choose between following the precepts of [his] religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of [his] religion ... on the other hand.'" Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007) (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963)); see also Newdow v. Peterson, 753 F.3d 105, 109 (2d Cir. 2014) ("A substantial burden exists where the state put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs." (alteration and internal quotation marks omitted) (quoting Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996)). A "[p]laintiff need not show that the disputed conduct impedes a religious practice mandated by his religion, but he must show that it burdens a religious practice that is 'central or important' to his practice of religion." Ramrattan, 2015 WL 3604242, at *7 (quoting Ford, 352 F.3d at 593-94).
Once this showing has been made, "[t]he defendants then bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct; 'the burden remains with the prisoner to show that these articulated concerns were irrational.'" Salahuddin, 467 F.3d at 275 (alteration omitted) (quoting Ford, 352 F.3d at 595).
b. Discussion
While the merits of Plaintiff's free exercise claim implicate thought-provoking legal issues, the Court need not address them, because Plaintiff's claim fails for lack of personal involvement. To begin, Plaintiff appears to bring this claim against the supervisory Defendants alone — he does not allege that Captain Valejo or Brenda Whitaker participated in the strip searches in the chapel area of the GRVC. (See TAC). The Court therefore considers the viability of these claims only with regard to the Supervisory Defendants.
And with regard to the Supervisory Defendants, Plaintiff does not allege that they participated directly in the strip-searching. Nor does he allege that the Supervisory Defendants were made aware of any improper conduct in the course of strip searches and failed to stop it, or that they exhibited deliberate indifference to the rights of inmates by failing to act on information indicating ongoing unconstitutional acts in the course of these searches.
In substance, Plaintiff alleges that the Supervisory Defendants could have, and did not, devise training programs and internal policies that would have prevented the "tort acts" of DOC staff. (See TAC Supp. 2). Plaintiff also expresses his belief that the strip-search practice violated the DOC employees' code of professionalism and minimum standards of the Board of Corrections. (Id.). But Plaintiff has not alleged that that the chapel strip-searching was the result of a policy or custom, that the Supervisory Defendants were involved with creating that policy or custom, or that the Supervisory Defendants knew of any such policy or custom and allowed it to continue. Put simply, Plaintiff has not alleged that the Supervisory Defendants had any knowledge of the alleged wrongful acts. Plaintiff has also not alleged that the Supervisory Defendants were negligent in their supervision of subordinates performing wrongful acts. Accordingly, the Court cannot find that Plaintiff has made a satisfactory showing under Colon. Plaintiff's § 1983 claim for damages premised on a violation of his First Amendment rights must be dismissed.
The Court notes for Plaintiff's benefit, however, that it would likely dismiss this claim on the merits as well. The Court does not believe that Plaintiff has alleged adequately that the practice of strip-searching in the GRVC chapel substantially burdened the exercise of his religion. Plaintiff indicates only that the strip-search practice "degrades and shames his walk through said religious beliefs." (TAC Supp. 3). Plaintiff has not alleged that beliefs "central or important" to his religion were infringed upon.
6. Plaintiff's Claim Premised on a Consent Decree Violation Is Dismissed
As a separate Fourteenth Amendment claim, Plaintiff alleges that the conduct described in the TAC violates an existing court order. Plaintiff does not identify the specific court order that he believes to have been violated by the presence of security cameras in the shower area. (TAC 4-5). However, Defendants construe Plaintiff's pleading to allege that the cameras violate "the settlement order in Nuñez v. City of N.Y., a class action in which the plaintiffs — present and future inmates confined in jails operated by DOC — alleged that DOC staff used unnecessary and excessive force against inmates in violation of the Constitution and federal and state law." (Def. Br. 6 (citing Nuñez v. City of N.Y., No. 11 Civ. 5845 (LTS) (JCF), 2013 WL 765132 (S.D.N.Y. Feb. 28, 2013)). That settlement judgment required the DOC to install video surveillance cameras throughout New York City's jails, except for in the interior of shower and toilet areas. (Id. at 6-7 (citing Nuñez v. City of N.Y., No. 11 Civ. 5845 (LTS) (JCF), 2015 U.S. Dist. LEXIS 176190, at *16 (S.D.N.Y. July 10, 2015) (Notice of Proposed Class Action Settlement annexed to Opinion of the Court)).
If indeed this is Plaintiff's allegation, it must fail. "[A] consent decree cannot create rights enforceable under the Due Process Clause[;] the proper 'remedy for breach of [a consent decree] is a suit for ... enforcement of the decree through judicial sanctions, including contempt, not an action under § 1983.'" Febres v. City of N.Y., 238 F.R.D. 377, 390 n.16 (S.D.N.Y. 2006) (alteration and omission in original) (quoting Batista v. Rodriguez, 702 F.2d 393, 398 (2d Cir. 1983)); Marable v. Kurtz, No. 99 Civ. 1387 (LAP), 2000 WL 1279763, at *6 (S.D.N.Y. Sept. 11, 2000) ("The existence of a remedial court order is not a separate basis for a constitutional claim. Rather, a claim that a consent decree or settlement agreement has been violated is properly enforced in a contempt or breach of contract proceeding.").
"As a preliminary matter, it is unclear whether [Plaintiff] has standing to seek ... relief with regard to" the alleged violations of the consent decree. Holiday v. Martinez, 68 F. App'x 219, 221 (2d Cir. 2003) (summary order). "In any event, given the complex nature of the[] consent decree[], ... potentially interested parties must seek enforcement through the issuing court, not through a separate action brought under 42 U.S.C. § 1983." Id. (citing Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 523 n.13 (1986)); see also Barile v. City of Hartford, 386 F. Supp. 2d 53, 55 n.1 (D. Conn. 2005), aff'd, 264 F. App'x 91 (2d Cir. 2008) (summary order); Tyson v. N.Y.C. Hous. Auth., 369 F. Supp. 513, 518 (S.D.N.Y. 1974) ("To the extent that plaintiffs claim that the [defendant] has violated the terms of the decree in this regard, their remedy lies with the [decree-issuing] court.").
Even if Plaintiff intends to challenge a different court order, Plaintiff has failed to state a claim. Plaintiff has not identified any court order that was violated by the placement of cameras in the shower area. Plaintiff's claim premised on the violation of a court order must be dismissed.
7. Plaintiff's Claim Based on the Distribution of the Security Videos Is Dismissed
Plaintiff lacks standing to bring a claim regarding any distribution of the video footage. The Supreme Court has held that "the 'irreducible constitutional minimum' of standing consists of three elements. [A] plaintiff must have [i] suffered an injury in fact, [ii] that is fairly traceable to the challenged conduct of the defendant, and [iii] that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, — U.S. —, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). It is the plaintiff's burden to establish these elements, and facts demonstrating each element's establishment must be clearly alleged at the pleading stage. Id.
Here, Plaintiff has not shown that he suffered an injury in fact as a result of the distribution of the security videos. "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). And "[f]or an injury to be 'particularized,' it 'must affect the plaintiff in a personal and individual way.'" Id. (quoting Lujan, 504 U.S. at 560 n.1).
Plaintiff has not alleged that he personally was the subject of any video distributed on the internet. His argument is less that he "is," than that he "might have been." More importantly, he has not identified a present harm that he has experienced as a result of the videos' distribution. Plaintiff speculates that the existence of these videos could harm his relationships with his family and community and damage his prospects of future employment upon his release. (TAC Supp. 2). But Plaintiff has not pleaded that he has suffered any of these injuries at present. Speculative injury is not sufficient to confer standing. Accordingly, Plaintiff's claim premised on the video distribution is dismissed.
8. Plaintiff's Conspiracy Claims Are Dismissed
Plaintiff uses the term "conspiracy" throughout his pleading, but fails to allege any of the elements required to make out a conspiracy under § 1985. "[A] complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Boddie, 105 F.3d at 862 (internal quotation marks omitted) (quoting Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993)); see also Webb, 340 F.3d at 111 (dismissing conspiracy allegation because plaintiffs failed to allege a meeting of the minds "except in the most conclusory fashion"). Therefore, any conspiracy claim intended by Plaintiff must be dismissed.
9. Plaintiff's State-Law Tort Claims of Malfeasance, Malpractice, and the Intentional Inflection of Emotional Distress Are Dismissed
Plaintiff at times references torts inflicted by Defendants, but is far from clear with regard to which Defendants he alleges committed which of the various torts that he mentions. But even if these claims were properly pleaded, the Court would decline to exercise supplemental jurisdiction over them in light of its dismissal of Plaintiff's federal claims. See E & L Consulting, Ltd. v. Doman Indus. Ltd., 472 F.3d 23, 33 (2d Cir. 2006) (affirming propriety of state-law-claim dismissal because all federal claims had been dismissed); Giordano v. City of N.Y., 274 F.3d 740, 754 (2d Cir. 2001) ("[I]n the absence of any remaining federal claims, the [state-law question] ... is a question best left to the courts of the State of New York."). Cf. Valencia ex rel. Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003) ("[W]here the federal claims had been dismissed at a relatively early stage and the remaining claims involved issues of state law that were unsettled, we have concluded that the exercise of supplemental or pendent jurisdiction was an abuse of discretion.").
10. Plaintiff's Claim Under Sections 50 and 51 of the New York Civil Rights Law Is Dismissed
In his opposition papers, Plaintiff alleges for the first time that his rights under Sections 50 and 51 of the New York Civil Rights Law were violated. Though the Court would decline jurisdiction over this claim as well for the reasons outlined in the prior section of this Opinion, the claim also fails because Plaintiff is not permitted to interpose new factual allegations and a new legal theory in his opposition to Defendants' motion to dismiss. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998).
Defendants also indicate that this claim must fail if intended against the City of New York because Plaintiff did not file a Notice of Claim before bringing this tort action against that municipality. (Def. Reply 4 (citing Landron v. City of N.Y., No. 14 Civ. 1046 (NRB), 2014 WL 6433313, at *6 (S.D.N.Y. Nov. 7, 2014) (dismissing claim without prejudice because plaintiff did not allege "that he filed a notice of claim or offer[] a justification for failing to so file"))).
Moreover, the claim fails on the merits. Section 50 of the New York Civil Rights law provides that
[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.N.Y. Civ. Rights Law § 50; see also id. § 51 (providing private right of action for injunction and for damages). Because Plaintiff has not alleged that his name, portrait or picture was used by a person, firm, or corporation for advertising purposes or for the purposes of trade, and his claim under these statutes must fail.
11. The Dismissal of Plaintiff's Third Amended Complaint Is Without Prejudice
Federal Rule of Civil Procedure 15 mandates that with regard to pre-trial amendments, a "court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). This permissive standard is consistent with the Circuit's "strong preference for resolving disputes on the merits." Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (internal quotation mark omitted) (quoting Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (per curiam)) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) ("If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.")).
The Court has previously discussed with Plaintiff some of the infirmities of his prior pleadings, and Plaintiff has undertaken to correct them. (See Dkt. #93, 95). The Court appreciates as well that Plaintiff has kept the Court apprised of his several changes in address. (Dkt. #110, 114). It is apparent to the Court that Plaintiff cares about this case. It is also of significant concern to the Court that there appears to have been, for some period of time, a practice of strip-searching inmates and detainees in the chapel area of the GRVC. The Court is concerned that in granting Defendants' motion on the basis of formalistic pleading requirements, the Court would be penalizing Plaintiff for his pro se status and denying Plaintiff the opportunity to vindicate what may be a serious injustice. Though the Court has brought some issues with Plaintiff's pleading to his attention previously, it has not done so with the thoroughness that it has attempted here.
Thus, the Court concludes that Plaintiff should be given "the opportunity to demonstrate that [his] claims deserve to be decided on the merits, and [that] Plaintiff[] should be given that opportunity now." Loreley, 797 F.3d at 191. It is the Court's hope that "[with] the benefit of a ruling, ... [P]laintiff will ... see the necessity of amendment [and] be in a position to weigh the practicality and possible means of curing specific deficiencies." Id. at 190. Plaintiff may, but is not required to, replead each of his claims. He should consider this Opinion carefully in making his decision.
CONCLUSION
For the reasons explained above, Defendants' motion is GRANTED without prejudice to Plaintiff filing a Fourth Amended Complaint. The Clerk of Court is directed to terminate the motion pending at docket entry 100. By September 30, 2017, Plaintiff must file a Fourth Amended Complaint.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED. Dated: August 4, 2017
New York, New York
/s/_________
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Eric Keaton
#17R1283
Queensboro Correctional Facility
47-04 Van Dam Street
Long Island City, NY 11101-3081 __________ Write the full name of each plaintiff. -against- __________ Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write "see attached" in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV. 16 CV 3063
(Include case number if one has been assigned) AMENDED COMPLAINT
(Prisoner) Do you want a jury trial?
[ ] Yes [ ] No
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. LEGAL BASIS FOR CLAIM
State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a "Bivens" action (against federal defendants). [ ] Violation of my federal constitutional rights [ ] Other: __________
II. PLAINTIFF INFORMATION
Each plaintiff must provide the following information. Attach additional pages if necessary. __________
First Name __________
Middle Initial __________
Last Name __________ State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit. __________ Prisoner ID # (if you have previously been in another agency's custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) __________
Current Place of Detention __________
Institutional Address __________
County, City __________
State __________
Zip Code
III. PRISONER STATUS
Indicate below whether you are a prisoner or other confined person: [ ] Pretrial detainee [ ] Civilly committed detainee [ ] Immigration detainee [ ] Convicted and sentenced prisoner [ ] Other: __________
IV. DEFENDANT INFORMATION
To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 2:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 3:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 4:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code
V. STATEMENT OF CLAIM
Place(s) of occurrence: __________ Date(s) of occurrence: __________
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. __________
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. __________
VI. RELIEF
State briefly what money damages or other relief you want the court to order. __________
VII. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. __________
Dated
__________
Plaintiff's Signature __________
First Name __________
Middle Initial __________
Last Name __________
Prison Address __________
County, City __________
State __________
Zip Code Date on which I am delivering this complaint to prison authorities for mailing: __________