Opinion
3:19-cv-00868 (TJM/TWD)
07-20-2020
JOE W. PEEPLES, III, Plaintiff, v. FBI AGENT CHRIS FIORITO, et al., Defendants.
APPEARANCES: JOE W. PEEPLES, III Plaintiff, pro se 40425-048 USP POLLOCK U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 2099 POLLOCK, LA 71467
APPEARANCES: JOE W. PEEPLES, III
Plaintiff, pro se
40425-048
USP POLLOCK
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 2099
POLLOCK, LA 71467 OF COUNSEL: THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court an amended complaint submitted by pro se Plaintiff Joe W. Peeples, III ("Plaintiff" or "Peeples") asserting claims under 42 U.S.C. § 1983 arising out of his January 5, 2017, arrest, and subsequent detainment, prosecution, and conviction. (Dkt. No. 9.) Plaintiff, who is now a federal prison inmate, has not paid the filing fee and seeks leave to proceed in forma pauperis. (Dkt. No. 10.) Named as Defendants are FBI Agent Chris Fiorito, FBI Agent John Bokal, Binghamton Sheriff, Binghamton PD Lock-up, and U.S. Dept. of Justice ("DOJ").
Plaintiff filed his original complaint on or about July 18, 2019. (Dkt. No. 1.) On July 22, 2019, the Court administratively closed this action due to Plaintiff's failure to comply with the filing fee requirement. (Dkt. No. 4.) On March 13, 2020, Plaintiff filed an amended complaint. (Dkt. No. 9.) On April 9, 2020, Plaintiff provided a complete application to proceed in forma paupers ("IFP Application") and this action was restored to the Court's active docket. (Dkt. Nos. 10, 12.)
The DOJ was not listed as a Defendant in the caption of the original complaint. (Dkt. No. 1.) The Clerk is directed to amend the caption to add the U.S. Dept. of Justice as a Defendant.
I. IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). As noted, Plaintiff has submitted a completed and signed IFP Application, which demonstrates economic need. (Dkt. No. 10.) Plaintiff has also filed the inmate authorization form required in this District. (Dkt. No. 11.) Accordingly, Plaintiff's IFP Application is granted.
Section 1915 permits "an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Plaintiff should also note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Standard of Review
Having found that Plaintiff meets the financial criteria for commencing this action in forma pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the amended complaint in light of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
Section 1915(e) of Title 28 United States Code directs that when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See id.
To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Similarly, under Section 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both Sections 1915 and 1915A are available to evaluate prisoner pro se complaints).
Additionally, when reviewing a complaint, the Court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) (other citations omitted)).
A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. Thus, a pleading that contains only allegations which "are so vague as to fail to give the defendants adequate notice of the claims against them" is subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Summary of the Amended Complaint
The following facts are set forth as alleged by Plaintiff in the amended complaint, which also references two federal actions, Case 6:17-cr-06032, captioned United States v. Joseph W. Peeples, III, filed in the Western District of New York ("W.D.N.Y.") and Case 3:17-mc-00026, captioned Joseph W. Peeples v. United States, filed in the Northern District of New York ("N.D.N.Y."). (See generally Dkt. No. 9.)
The Court notes the allegations in Plaintiff's amended complaint are substantially similar to those in his original complaint. (Dkt. Nos. 1, 9.)
On January 5, 2017, Plaintiff was "free in travel" in Binghamton, located in the N.D.N.Y. when FBI Agent John Bokal "made an independent decision to force himself beyond the locked doors of The Grand Royale Hotel located at 79 Collier St. and detain [Plaintiff] without any attempts at summons, writ, or warrant under Federal Law F.R.C.P Rule 5(1)(A)." Id. at 1-2. Plaintiff claims Bokal "willfully and intentionally did circumvent all applicable federal law regarding his unsupportable seizure of [Plaintiff's] body against his will" and violated his "civil rights under 'Miranda.'" Id. at 2.
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Thereafter, Bokal "hands [Plaintiff's] body to jailers at the Binghamton PD Lock-up; where [he] was booked, photographed, finger printed, stripped totally nude and required to expose his anus and cough out loud 2x, and placed in a cell-block with other inmates." Id. at 2-3. The next morning, FBI Agent Chris Fiorito, "walked into Binghamton PD and kidnapped [Plaintiff's] body against [his] will without any legal writ, warrant, summons, or indictment." Id. at 3. Plaintiff was transferred approximately 200 miles to the W.D.N.Y. in violation of the "law" and his "civil rights" and "[e]specially after totally booking [Plaintiff] and stripping him but naked and peering in his anus." Id. at 3-4.
Plaintiff claims "Binghamton PD Jail is 100% liable for several plain violations of [his] civil rights." Id. at 4. "However, they would not have been so if there was proper lawful receiving and discharging papers." Id. "By law agents can't travel with detainees without any paper-work." Id.
Plaintiff contends it is "criminal" to "hand over a prisoner without anything because the clerk of the jail had to docket and log something!" (Dkt. No. 9 at 4.) He notes "someone was charged for Mr. Peeples stay and meal and phone calls! What if Mr. Peeples and those agents would have died in a roll over crash? What proof of Mr. Peeples identity would have been in that car?" Id.
Thereafter and pursuant to the Freedom of Information Act, Plaintiff requested his "booking and release papers" from Binghamton PD Lock up, but there was "no answer" because the "W.D.N.Y. U.S. Atty. who is also liable in this criminal cover up says on record under oath there is no paperwork." Id. at 5. Plaintiff asserts "no one arrested in America should/can't by law be arraigned without a legally sworn signed affidavit warrant on file or indictment!" Id. at 7.
Plaintiff claims he was "robbed" of his "due process preliminary hearing in [the] District of arrest to have an impartial mind determine probable cause for arrest." Id. at 9. "Upon kidnapping and arrival back in W.D.N.Y. for arrignment in court open for business said member of court illegally allowed [Plaintiff] to be arraigned without any live/real signature on any document referring to entire criminal complaint/warrant and a blank jurat on affidavit by complaining agent." Id. Therefore, "by undisputed fact [Plaintiff] was arraigned without a signed criminal complaint or warrant (filed by clerk on record 1-6-17) or indictment." Id. at 10. Plaintiff was "brought 200 miles in violation of every law and given a verbal sentence to jail without no check and balance by signature of magistrate empowered to administer oath." Id. "To be certain [Plaintiff] ha[s] without doubt according to law been deprived of [his] constitutional right to 'due process' after warrantless indictmentless arrest." Id. He also was "forced to trial." Id. at 9.
Plaintiff has "suffered different pains, punishment, and loss of property, life, liberty, and freedom intentionally because color of [his] skin." Id. According to Plaintiff, his constitutional rights have been violated under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, and "others." Id. at 5. Plaintiff claims he was "kidnapped, sexually asulted, held, and handed over without due process." Id. Plaintiff seeks monetary damages and requests "this case be returned to the U.S. Attorney for review for several criminal charges related to the cover-up of the usurpation of this citizen." Id. He also requests that the Attorney General be notified of the foregoing for "referral of criminal charges or an investigation." Id. at 6.
For a complete statement of Plaintiff's claims and the facts he relies on which he relies in support of those claims, reference is made to the amended complaint. (Dkt. No. 9.)
C. Nature of Action
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). "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
A plaintiff cannot hold a defendant liable under Section 1983 unless he or she can establish that the defendant acted under color of state law. See 42 U.S.C. § 1983; see also Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994) (noting state action requirement under Section 1983). In order to recover damages in a civil rights action, plaintiff must allege a defendant's direct or personal involvement in the alleged constitutional deprivations. Farrell v. Burke, 449 F.3d 470, 474 (2d Cir. 2006); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'") (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus, "a Section 1983 plaintiff must 'allege a tangible connection between the acts of the defendant and the injuries suffered. " Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)).
If the defendant is a supervisory official, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). In other words, supervisory officials may not be held liable merely because they held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, supervisory officials may be considered "personally involved" if they (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Similarly, a "municipality cannot be held liable solely on a theory of respondeat superior." Anderson v. Cty. of Nassau, 297 F. Supp. 2d 540, 546 (E.D.N.Y. 2004). In order to sustain a claim for relief under Section 1983 against a municipal defendant, a plaintiff must show the existence of an officially adopted policy or custom that caused injury and a direct causal connection between that policy or custom and the deprivation of a constitutional right. Bd. of County Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978)); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) ("The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.")
Additionally, in light of Plaintiff's status as a pro se litigant, the Court also considers whether the amended complaint states claims cognizable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Morales v. City of New York, 752 F.3d 234, 237 (2d Cir. 2014) (holding that district court properly construed § 1983 claims brought against federal employee as arising under Bivens); see also Feldman v. Lyons, 852 F. Supp. 2d 274, 278 (N.D.N.Y. 2012); McQueen v. United States, No. 9:19-CV-0998 (TJM/CFH), 2019 WL 4221545, at *3 (N.D.N.Y. Sept. 5, 2019). "Bivens actions, although not precisely parallel to actions pursuant to 42 U.S.C. § 1983 against state actors, are the analog to such actions; and the constitutional standard of review is the same for either type of action." McQueen, 2019 WL 4221545, at *3 (citing Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (per curiam)). Thus, federal courts have "typically incorporated § 1983 law into Bivens actions." Tavarez, 54 F.3d at 110.
In Bivens, the Supreme Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Correctional Services Corp. v. Malesko, 534 U.S. 61, 66 (2001).
D. Analysis
As set forth above, Plaintiff alleges violations of his constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments when, inter alia, he was seized, searched, detained, held, handed over, and kidnaped without due process, indicted, and forced to trial. Plaintiff also claims he was denied equal protection of the laws and Defendants engaged in "criminal conspiracy."
1. Claims against DOJ
It is unclear from the amended complaint what, if any, claims are alleged against the DOJ. Plaintiff lists the DOJ as a Defendant in the caption of the amended complaint, yet makes no factual allegations against this Defendant in the body of the amended complaint.
While a plaintiff may bring a Bivens action against a federal agent who engages in unconstitutional conduct under color of his authority, a lawsuit cannot be maintained against the agency for which the official works, such as the DOJ, which generally enjoys sovereign immunity from suit. See Bivens, 403 U.S. at 410. Since the United States is entitled to sovereign immunity, and has not expressly waived that immunity, Plaintiff cannot maintain his claim for a violation of his constitutional rights against the DOJ. See id.; see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (holding that plaintiff could not bring a Bivens claim against the United States or the employing federal agency, the BOP); see also Philippeaux v. United States, No. 19-CV-3221, 2019 WL 2082549, at *3 (S.D.N.Y. May 13, 2019) ("A Bivens action must be brought against an individual for the individual's own acts and may not be brought against federal agencies." (internal citations omitted)).
Therefore, the Court recommends that the amended complaint be dismissed in its entirety with prejudice as against the DOJ pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
2. Claims against Binghamton PD Lock-up
Plaintiff names the Binghamton PD Lock-up as a Defendant. However, "[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); accord 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 also 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."). Because the Binghamton Police Department is an administrative arm of the City of Binghamton, it lacks the capacity to be sued.
Therefore, the Court recommends that the amended complaint be dismissed in its entirety with prejudice as against the Binghamton PD Lock-up pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
However, in deference to Plaintiff's pro se status, the Court recommends that Plaintiff be provided with an opportunity to amend his complaint to clarify claims, if any, he intended to allege against the City of Binghamton, the real party in interest pursuant to the standard for establishing municipality liability laid out in Monell, supra.
3. Claims against Binghamton Sheriff
Plaintiff names the Binghamton Sheriff as a Defendant in the caption of the amended complaint. However, there is no such person. Moreover, the amended complaint is void of any reference to this individual. In the absence of factual allegations sufficient to plausibly suggest this Defendant was personally involved in conduct that violated Plaintiff's constitutional rights, the amended complaint fails to state a cognizable claim against the Binghamton Sheriff and, therefore, is subject to dismissal. See Cipriani v. Buffardi, No. 06-CV-0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y. Feb. 20, 2007) ("[d]ismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff") (citation omitted).
Therefore, the Court recommends that the amended complaint be dismissed in its entirety with prejudice as against the Binghamton Sheriff pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
However, in deference to Plaintiff's pro se status, the Court recommends that Plaintiff be provided with an opportunity to amend his complaint to clarify claims, if any, he intended to allege against the City of Binghamton Chief of Police, whom the Court assumes is the real party in interest pursuant to the standard for establishing supervisory liability laid out in Colon, supra.
4. Claims pursuant to 18 U.S.C. § 242
Plaintiff purports to assert claims pursuant to 18 U.S.C. § 242. (Dkt. No. 9 at 1.) Section 242, however, is part of the United States criminal code and there is no private right of action under this section. See Storm-Eggink v. Gottfried, 409 F. App'x 426, 427 (2d Cir. 2011) ("[T]here is no private right of action under [18 U.S.C.] § 242[.]"); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (affirming dismissal of plaintiff's claim under 18 U.S.C. § 242 because this "criminal statute[s] . . . do[es] not provide private causes of action").
Therefore, the Court recommends dismissal of Plaintiff's claims under 18 U.S.C. § 242 with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
5. Claims related to Visual Body Cavity Search
Plaintiff alleges that on January 5, 2017, after being booked and photographed at the Binghamton PD Lock-up, he was "stripped totally nude and required to expose his anus and cough out loud 2x, and placed in a cell-block with other inmates" in violation of his constitutional rights. (Dkt. No. 9 at 2-3.)
The Fourth Amendment "protects individual privacy against certain kinds of governmental intrusion," Katz v. United States, 389 U.S. 347, 350 (1967), and its protections extend to prisoners and pretrial detainees, see Bell v. Wolfish, 441 U.S. 520, 545, 559 (1979). The Supreme Court has recognized that "correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities." Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 328 (2012). In Florence, the Supreme Court held that a county jail did not violate prisoners' rights when it permitted visual inspection body cavity searches, without reasonable suspicion, prior to the prisoners' introduction to a general population unit. Id. at 339; see also Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir. 1992) (Although "inmates do possess a limited right to bodily privacy, some aspects of that right must yield to searches for contraband, even random visual body-cavity searches, so that prison administrators may maintain security and discipline in their institutions."). Here, as in Florence, Plaintiff's allegations of an unlawful search relate specifically to a "visual body cavity search" conducted upon his admission to the Binghamton City Jail.
To be sure, "[a] strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person's body, is a serious invasion of privacy." Harris, 818 F.3d at 58 (quoting Florence, 566 U.S. at 344-45 (Breyer, J., dissenting)). But a constitutional violation requires more—for example, "that the search was excessive, was needlessly prolonged[,] . . . was otherwise meant to intimidate, harass or punish him," see Perez v. Ponte, 236 F. Supp. 3d 590, 624 (E.D.N.Y. 2017), report and recommendation adopted by 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017), or was "conducted in the presence of unnecessary spectators," see Harris, 818 F.3d at 62.
As pleaded, Plaintiff's allegations do not amount to a constitutional violation "because Florence permits corrections officers to strip search detainees without particularized suspicion . . . and recognizes that strip searches are specifically 'designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches.'" Chaney v. City of Albany, No. 6:16-CV-1185 (NAM/TWD), 2019 WL 3857995, at *7 (N.D.N.Y. Aug. 16, 2019) (quoting Thompson v. City of New York, No. 16-CV-824, 2017 WL 1929552, at *2 (S.D.N.Y. May 9, 2017)). That includes searches involving visual inspection of body cavities prior to being placed in a cell-block with other inmates at the Binghamton Jail. Id. Moreover, Plaintiff's allegations do not suggest that the search "did not serve a legitimate penological purpose" or that it was "instead designed to intimidate, harass, or embarrass" him. Nor has Plaintiff alleged the personal involvement of any properly named Defendant.
Therefore, the Court recommends dismissing Plaintiff's Fourth Amendment claims related to the visual body cavity strip search without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), but with leave to amend.
6. Eighth Amendment Claims
The amended complaint references the Eighth Amendment. (Dkt. No. 9 at 5.) However, the Eighth Amendment's Cruel and Unusual Punishment clause does not apply here because Plaintiff's claims do not arise out of his incarceration. The Cruel and Unusual Punishment Clause only protects individuals who are incarcerated after being convicted of a crime.
Therefore, the Court recommends that insofar as Plaintiff's amended complaint purports to assert Eighth Amendment claims, such claims be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
7. Claims barred by Heck v. Humphrey
As set forth above, Plaintiff alleges violations of his constitutional rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments when, inter alia, he was seized, held, and "handed over" without due process, transported from the N.D.N.Y. to the W.D.N.Y., indicted, and forced to trial. (Dkt. No. 9 at 5.) Plaintiff also claims Defendants conspired to "cover up" such wrongdoings and he was denied equal protection of the law. Id. at 10. However, a civil lawsuit may not be used to collaterally attack a criminal conviction. Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [Section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.Id. at 486-87 (internal footnote omitted). Although Heck involved a Section 1983 claim, the Second Circuit has held that the rationale of Heck applies equally to Bivens actions such as Plaintiff's claim. See Tavarez v. Reno, 54 F.3d at 110; see also Maietta v. Artuz, 84 F.3d 100, 103 n.1 (2d Cir. 1996).
Broadly stated, Heck precludes a prisoner from using Section 1983 and/or Bivens as a vehicle to obtain damages where success on the particular constitutional claims alleged would necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement. Poventud v. City of N.Y., 750 F.3d 121, 130 (2d Cir. 2014) (en banc ). Thus, under Heck and its progeny, a Section 1983 and/or Bivens action "is barred (absent prior invalidation) no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original).
The Court takes judicial notice that on January 6, 2017, the United States of America filed a criminal complaint alleging Peeples robbed a bank on January 5, 2017, in Rochester, New York, located in the W.D.N.Y. See W.D.N.Y. Case 6:17-cr-06032, Dkt. No. 1. On March 30, 2018, following a jury trial before the Hon. Frank P. Geraci, Jr., Chief United States District Judge, Peeples was convicted of bank robbery, entering a bank with the intent to commit larceny, and bank larceny. Id., Dkt. No. 88. On July 27, 2018, the District Court sentenced Peeples to 240 months' imprisonment on Count 1 (bank robbery) and Count 2 (entering a bank with intent to commit larceny), to run concurrently with 120 months' imprisonment on Count 3 (bank larceny), to be followed by 3 years of supervised release. Id., Dkt. No. 106. On appeal to the Second Circuit, Plaintiff's conviction was affirmed. See United States v. Peeples, -- F.3d ----, No. 18-2309-cr, 2020 WL 3406445, at *12 (2d Cir. June 22, 2020).
Generally, on his counseled appeal to the Second Circuit, Peeples argued his judgment of conviction should be vacated for two principal reasons. See id. at *1. First, he argued the District Court erred in declining to dismiss the criminal charges against him because: (1) he was transferred outside of the district of arrest (N.D.N.Y.) to the district where the crime took place (W.D.N.Y.) without first appearing before a magistrate judge, assertedly in violation of Rule 5(c)(2) of the Federal Rules of Criminal Procedure, and (2) the W.D.N.Y. magistrate judge failed to sign the jurat on the last page of the affidavit in alleged violation of Rule 3 of the Federal Rules of Criminal Procedure even though the magistrate judge signed the face of the complaint. Id. Second, he aruged the District Court erred in admitting: (1) the bank employees' testimony identifying Peeples for the first time at trial in alleged violation of his due process rights, and (2) physical evidence seized from the Binghamton hotel room in alleged violation of his right to be free from unreasonable searches and seizures. Id. at *2. As noted, the Second Circuit affirmed Peeples' conviction and concluded, inter alia, that: (1) the appropriate remedy for a violation of Rule 5(c)(2) of the Federal Rules of Criminal Procedure is not dismissal of an indictment but suppression of any post-arrest evidence illegally obtained as a result of the violation of the rule's requirement; (2) Peeples failed to show that his transfer to the W.D.N.Y. for an initial appearance in violation of Rule 5(c)(2) caused him any prejudice; (3) the District Court did not err in denying Peeples' motion to dismiss the criminal complaint because, even though the magistrate judge failed to sign the jurat on the last page of the affidavit in support of the criminal complaint, the magistrate judge signed the jurat on the complaint itself, to which the affidavit was attached and the magistrate judge's signature in the complaint attested to the fact that the complainant's assertions were sworn before the magistrate judge and signed in his presence, thereby complying with the requirement of Rule 3 of the Federal Rules of Criminal Procedure; (4) Peeples failed to present evidence showing that the in-court identification by the Chase Bank employees was irreparably tainted by suggestibility in violation of his due process rights; and (5) Peeples failed to support his speculative belief that there was a warrantless entry and exploratory search of the Grande Royal Hotel Room 310 prior to the execution of the search warrant and thus the District Court did not err in admitting the physical evidence seized from the hotel room pursuant to the search warrant. United States v. Peeples, 2020 WL 3406445, at *20.
The Court also takes judicial notice of Case 3:17-mc-00026, captioned Joseph W. Peebles v. United States, referenced in the amended complaint and which is a matter of public record, which was filed by Peeples in this District pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure seeking the return of property seized, including over $51,000 in currency and coins, at a hotel in Binghamton pursuant to a search warrant issued in this District on January 6, 2017, where Peeples had checked-in on January 5th. See N.D.N.Y. Case 3:17-mc-00026, Dkt. No. 4 (citing N.D.N.Y. Case 3:17-mj-10, Dkt. No. 1). After the search was completed, agents transported and secured the seized evidence at the offices of the FBI in Rochester, in the W.D.N.Y., where the prosecution of Peeples had been initiated. Id. By Report-Recommendation and Order dated November 3, 2017, United States Magistrate Judge Andrew T. Baxter recommended that Peeples' motion for the return of property seized pursuant to the search warrant be denied. Id., Dkt. No. 4. By Decision and Order entered November 28, 2017, Senior United States District Judge Thomas J. McAvoy accepted and adopted the recommendation of Magistrate Judge Baxter. Id., Dkt. No. 11. Accordingly, Peeples' motion for return of property seized pursuant to a search warrant was denied and judgment was entered in favor of United States of America. Id., Dkt. Nos. 11, 12.
Specifically, the Second Circuit held: (a) With respect to the trial proceedings, because the Government did not rely on Peeples' post-arrest statements in its case before the jury, there was no evidence that could have been excluded and thus the motion to dismiss the criminal charges was correctly denied; and (b) with respect to the affidavit in support of the application for the search warrant and the affidavit in support of the criminal complaint, Peeples failed to demonstrate that the circumstances presented warranted the exclusion of the post-arrest statements. And, in any event, even if they were to excise those statements from the affidavits, the District Court correctly denied the motion to dismiss because the search warrant and the criminal complaint remained valid in light of the ample untainted evidence in the affidavits supporting the magistrate judge's probable cause findings. United States v. Peeples, 2020 WL 3406445, at *20.
The Second Circuit also noted it need not conclude that the District Court erred in admitting the identification testimony while denying Peeples' request for a special in-court identification procedure because any such error would have been harmless beyond a reasonable doubt and thus would not warrant a vacatur of Peeples' conviction. United States v. Peeples, 2020 WL 3406445, at *20.
Here, Plaintiff's claims regarding his arrest, indictment, criminal charges, prosecution, trial, and ultimate conviction, including vague allegation of conspiracy and denial of equal protection of the laws, represent challenges that fall squarely within the ambit of Heck. Indeed, Plaintiff presents many of the same issues he argued on appeal to the Second Circuit challenging his conviction as violations of his constitutional rights in the case at bar. Because Plaintiff's success on his remaining claims in this case would necessarily call into question the validity of his conviction, such claims are not cognizable under Heck. See, e.g., Feldman v. Lyons, 852 F. Supp. 2d 274, 279 (N.D.N.Y. 2012) (holding the plaintiff's conviction precludes his claims for false arrest, false imprisonment, and malicious prosecution); Barnes v. City of New York, No. 13-CV-7283 (GBD) (JLC), 2015 WL 4076007, at *16 (S.D.N.Y. July 2, 2015) ("Where the plaintiff's underlying conviction has not been so invalidated, courts routinely dismiss Section 1983 claims for, inter alia, malicious prosecution, conspiracy and deprivation of the right to a fair trial pursuant to Heck"); Micolo v. F.B.I. Special Agents #1-3, No. 17-CV-5938, 2018 WL 1730351, at *3 (E.D.N.Y. Apr. 9, 2018) ("Because [the plaintiff's] success on his Bivens claims in this case would necessarily invalidate the conviction, which is not alleged to have been reversed or vacated, such claims are not cognizable under Heck.").
Therefore, the Court recommends dismissing Plaintiff's remaining claims as barred by Heck without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
III. STATUS LETTERS
Upon review of the docket, the Court notes Plaintiff filed letters regarding the status of this action. (Dkt. Nos. 13, 14.) To the extent Plaintiff raises new issues and/or complaints about his conditions of confinement at USP Pollock, located in the Western District of Louisiana, he should file grievances at the facility level, and these new issues and/or complaints are not part of the present action.
IV. CONCLUSION
For the foregoing reasons, the Court recommends dismissal of the amended complaint (Dkt. No. 9) in its entirety pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 10) is GRANTED; and it is further
RECOMMENDED that the Clerk be directed to provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 11), and notify that official that Plaintiff has filed this action and is required to pay to the Northern District of New York the entire statutory filing fee of $350 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk is directed to amend the caption to add the U.S. Dept. of Justice as a Defendant; and it is further
RECOMMENDED that the amended complaint be DISMISSED IN ITS ENTIRETY WITH PREJUDICE as against Defendants U.S. Dept. of Justice, Binghamton PD Lock-up, and Binghamton Sheriff pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A;
RECOMMENDED that any claims in which Plaintiff seeks the criminal prosecution of Defendants or others pursuant to 18 U.S.C. § 242 be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A; and it is further
RECOMMENDED that any Eighth Amendment claims be DISMISSED WITH PREJUDICE, pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A; and it is further
RECOMMEDED that any Fourth Amendment claims related to the visual body cavity strip search be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, BUT WITH LEAVE TO AMEND; and it is further
RECOMMENDED that any remaining claims be dismissed in its ENTIRETY WITHOUT PREJUDICE as barred by Heck v. Humphrey, 512 U.S. 477 (1994); and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2015); Fed. R. Civ. P. 72, 6(a). Dated: July 20, 2020
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge